First National Bank of Thomasville v. Stone

*601 Barnhill, J. It does not clearly appear from the record that any evidence was offered in the trial below. The case on appeal states: “After the jury was selected, upon inquiry of counsel for defendants by the court, as set forth in the judgment in this action, the court rendered the judgment hereinbefore set out, from which said judgment of confirmation of sale and judgment in this action the defendants, and each of them, excepted and appealed to the Supreme Court.” There follows a copy of certain deeds and other documents affecting the title to the premises in controversy. As the judgment cites . . . “and it appearing to the court from the pleadings, the record of evidence offered and the admissions . . .” we may assume that the documentary evidence of title was offered. The record then presents but one question for decision: Was it error for the court to enter judgment decreeing that the plaintiff is the owner and entitled to the possession of the locus in quo without having first submitted an issue to the jury? We must answer this question in the affirmative. One of the important powers of a court of equity is to direct and control sales made by its order and under its authority through a commissioner of its own appointment. A foreclosure proceeding is essentially equitable in its nature, requiring the exercise of sound discretion by the presiding judge for the protection of the rights of all parties interested. It is an action pending on the civil issue docket in which only the judge holding the courts of the district has power to enter any order or decree. An order entered therein directing the sale of property should direct the commissioner appointed by the court to make the sale and to report the sale to the court for confirmation before conveying the land to the purchaser. Mebane v. Mebane, 80 N. C., 34. The commissioner acts as the agent of the court and must report to it all his acts in execution of its order. The bid is but a proposition to buy, and until accepted and sanctioned by the court having jurisdiction, confers no right whatever upon the purchaser. The sale is consummated when that sanction is given and an order for title made and executed. But when confirmation is made the bargain is then complete and it relates back to the date of sale. Confirmation is an act of consent and approval which the court gives to the sale, and, for all practical purposes the court is the vendor in such cases, and, within the limitations prescribed by law, may give or withhold its consent in its discretion. Harrell v. Blythe, 140 N. C., 416, 53 S. E., 232. The power to confirm or to reject a bid cannot be delegated to the commissioner, Mebane v. Mebane, supra, or to the clerk, Dixon v. Osborne, 201 N. C., 489. The court may, however, confirm a sale nunc pro tunc and whenever the decree of confirmation is entered the confirmation relates back to the day of the sale and the purchaser receives his title as of that time. Dixon v. Osborne, 204 N. C., 480, and cases there cited. *602 Tbe decree of confirmation entered by tbe court below while tbe trial in tbis cause was in progress does not purport to have been entered nunc pro tunc, but was entered as of tbe February Term, 1938. If we read an unsatisfactory record correctly, tbis decree was entered after tbe judgment roll in tbe foreclosure proceeding bad been offered in evidence and tbe plaintiff bad rested its case, and tbe record fails to disclose tbat tbe judgment roll was re-offered after tbe report of tbe commissioner and tbe order of tbe clerk and tbe execution of tbe deed by tbe commissioner bad been ratified and approved by tbe judge having jurisdiction. Thus it appears tbat when tbis judgment roll was offered it constituted evidence only of an authorized sale and tbe receipt of an offer to purchase. Tbe sale was not valid as such until confirmed. It follows tbat when tbe plaintiff rested it bad not offered evidence of any vested title in it to tbe premises in controversy. Furthermore, it appears tbat no issue was submitted to tbe jury, but tbe judgment entered -by tbe court below contains, among other recitals, tbe following: “And tbe court . . . finds as a fact that tbe plaintiff is now tbe owner of and entitled to tbe immediate possession of tbe lands described in tbe complaint. . . .” Tbis deprived defendants of a jury trial, to which they were entitled. Tbe jury only may find controverted issues of fact. Conceding without deciding tbat tbe evidence was sufficient to warrant a directed verdict upon tbe pertinent issues raised by tbe pleadings and tbe evidence, tbis does not justify tbe court in taking tbe case from tbe jury, finding tbe facts and rendering judgment thereon. Tbe burden of tbe issue rested upon tbe plaintiff and it was tbe duty of tbe court to submit appropriate issues to tbe jury to be answered by them under such charge as tbe court deemed proper. In its failure to do so tbe court deprived tbe defendants of a substantial right. Tbe order entered confirming tbe sale made by tbe commissioner, while entered during tbe progress of tbis trial, was in fact entered in tbe foreclosure action. Tbe exception of tbe defendants thereto is not here properly presented. There was no appeal in tbe foreclosure action based on tbe exception of tbe defendants to tbe entry of tbis decree of confirmation and we are, therefore,, not authorized to consider tbe same in tbis cause. We express no opinion thereon. For tbe reasons assigned tbe defendants are entitled to have their cause submitted to a jury. New trial.