In Re the Administration of the Estate of Brown

Walker, J., after stating the case: The entire matter was before the judge by the appeal, and his findings will be presumed to be based upon the evidence considered by him. We do not understand that the admin-istratrix, the appellant in this case, contends that there was no evidence upon which the judge could base such a finding, and, as we understand, there is no exception taken to the finding upon the ground that there is no evidence to sustain it, but if so, it is not tenable. It will hardly be denied that, by the appeal of the respondent, Mrs. Devereux, from the clerk, the entire case was constituted before the judge, and he could “determine all matters in controversy,” and make all necessary and proper orders and decrees thereon. C. S., 637. Of course the court would order that this property be sold in such a way that it would bring the most money, and Judge Ray was certainly justified in finding that it is to the best interest of the estate to sell the property publicly when the offer of $20,210 had been made, and, as the person making that bid was ready and willing to pay the price, or secure the same, the estate could not possibly be harmed by the order requiring the property to be sold at public auction, for the reason that the amount offered and bid for it would certainly be obtained, and the judge was- *401 evidently convinced by proof before bim that a great deal more would be received if the sale was public. The petition of Mrs. Mable Brown Devereux, which appears in the record, states: 1. That this affiant made several bids for the property described, as appears from the record herein, and she was then and is now willing to pay more than the sum offered by the said E. H. and H. E. Brown, and, independently of herself as a prospective purchaser, she is informed and believes that the property is worth very much more than the price offered by E. H. and H. E. Brown, and that, if sold publicly, it will bring a fair price, and one much higher than had been offered by E. H. and H. E. Brown. 2. That she is convinced a much higher price could be obtained if the property is sold publicly, and she also alleges that the object of the administratrix in undertaking to suppress a public sale and thereby to avoid publicity is prompted by a desire to sell the property to her two sons, and, if necessary, for much less than its real value. The allegation of Mrs. Devereux is not denied, but if so, there is enough evidence in support of it to justify the disposition of the, case by Judge Eay, which will hereinafter more fully appear. In January, 1922, the administratrix urged the clerk to authorize a consummation of the proposed sale to her two sons at the price of $16,000. When she was not permitted to do so, the price was advanced by them, without advertisement, and without the public generally knowing that this valuable property was for sale, until more than $20,000 had been offered by Mrs. Devereux, who was. ready, able, and willing to purchase the property, and she alleged that other persons were ready, able, and willing to purchase the same, and she believed that a much higher price could be had for the property if it were advertised, and if the public generally, and persons interested in business of this kind, were notified that the same was for sale, than if the sale were to be conducted in secret, or without letting the public know of it. This allegation does not seem to be categorically or, at least, sufficiently denied. With all of the parties and the evidence ánd record before the court, Judge Eay took this view of the matter and found that, even in view of the offer of E. H. and H. E. Brown of $20,210, to which they had increased the bid for the property, it was to the best interest of the estate and the parties that the property be sold publicly. The allegations in the petition and answer of Mrs. Devereux, set out in the record, have not been denied, or sufficiently so, and, being duly verified, support the findings of Judge Eay that the best interests of the estate demand a public sale. There is additional evidence in the record, *402 however, that tends to sustain the contention of Mrs. Devereux and the finding of Judge Ray. In 1919 the Legislature passed an act (Public Laws 1919, ch. 66), which is now C. S., 69, which allows the personal representative in certain cases, upon application to the clerk of the Superior Court, and obtaining an order therefor, to expose certain personal property therein specified at private sale for the best price that can be obtained, and to report the sale, when made by him, to the clerk for confmnation, and permitting an increase in the bids for the same. It would seem that this statute was only permissive in character, and not mandatory upon the clerk or the judge having jurisdiction of the cause. It could scarcely have been the intention of the Legislature to .take away the sound discretion of the clerk, or judge, in determining whether a public or a private sale would best subserve the interests of the several parties, but the intention and main purpose of the act were to authorize a private sale when it was found to be best. It was said by the Court (through -Judge Daniel), in regard to what is now C. S., 68, as to the sale of “personal estate” at public vendue: “The executor or administrator might, before the passage of the act, have sold bona fide the. goods and chattels of the testator or intestate. The legal title was in him, and an honest purchaser from him would always have acquired a good title. The common law on this subject is not repealed by this act. The statute is only directory, which, however, it would be well always to follow, for if the executor or administrator fails to obtain as much at private sale as would have been got at public vendue, he or they would be bound to make good the deficiency out of their own pockets.” Wynns v. Alexander, 22 N. C., 59, citing Cannon v. Jenkins, 16 N. C. (1 Dev. Eq.), 427. We would not be warranted in holding that so radical a change in the law, as contended, was contemplated by the act of 1919, ch. 66. As the judge had acquired a general jurisdiction of the case by the appeal, it must follow that he had the power to modify, or even to reverse, the ruling of the clerk and order a public sale of the property. The mere incidental statement of the judge in making his ruling that a leasehold was real estate was a clear inadvertence on his part — a palpable slip of the tongue, which does not affect the merits of the controversy. We therefore pass it by as not requiring any further consideration from us. What we have said is all that is necessary to decide the case, and we forbear any further discussion of it. The judge was in the rightful exercise of his jurisdiction when he made the order for a public sale, there being plenty of evidence to support it. *403 The object of the law is to obtain the bigbest and best price, and tbat is its chief. concern. Justice Ashe, in Attorney-General v. Navigation Co., 86 N. C., at p. 412, citing and quoting from Daniel on Ch. Pr., 1465, says: “We find the English rule laid down as follows: ‘When estates are sold before a master under the decree of a court of equity, the court considers itself to have greater power over the contract than it would have were the contract made between party and party; and as the chief aim of the court is to obtain as great a price for the estate as can possibly be got, it is in the habit, after the estate has been sold, of “opening the biddings,” tbat is, of allowing a person to offer a larger price than the estate was originally sold for, and, upon such offer being made, and a proportionate deposit paid in, of directing a resale of the property.’ And again, on page 1466 of the same book (Daniel, Ch. Pr.), it is said: ‘That the mere advance of price, if the report of the purchaser being the last bidder is not absolutely confirmed, is sufficient to open the biddings, and tbat they may be opened more than once.’ ” And be adopts what was said by Justice Rodman in Blue v. Blue, 79 N. C., 69, as follows: “We think the correct rule is in accordance, so far as our information extends, with the uniform practice which has obtained in our courts in such cases. Judge Rodman says ‘the practice in this State is to set aside a sale before confirmation, upon an offer of an advance pf 10 per cent upon the price. That, also, is the English rule,’ ” citing Ex parte Bost, 56 N. C., 482; Wood v. Parker, 63 N. C., 379. Tbe cause was ably and learnedly argued here by Mr. Taliaferro for tbe respondent, but we think tbat we have correctly stated tbe controlling principle of tbe law. Affirmed.