Creech v. . Wilder

WiNBORNE, J. The principal questions on this appeal are: (1) Where bidder at mortgage sale, who occupies a position of trust with relation to the holders of equitable title, assigns her bid, does, assignee take in same relationship ? (2) Is evidence of the value and rental value at the time of mortgage sale competent on the issue of fraud? (3) Is judgment as of nonsuit erroneous? On the fact situation of the case, each question is answered “Yes.” 1. The record discloses that Mrs. Lillie Creech, widow of J. Ivan Creech, was appointed administratrix of his estate and her recorded report shows that after exhausting the personal assets of the estate, she personally assumed the payment of a debt of the intestate secured by mortgage on the land in question. When personal estate of the decedent is insufficient to pay the debts and charges of administration, the administrator may, at any time after the granting of letters, apply to the Superior Court for authority to sell the real estate to create assets with which to pay the debts. C. S., 74. It becomes the duty of the administrator to make such application, Parker v. Porter, 208 N. C., 31, and to do so without undue delay, Pelletier v. Saunders, 67 N. C., 261; Clement v. Cozart, 109 N. C., 173, 13 S. E., 86. Until the debts have been paid, or the assets of the estate exhausted, the estate is not settled, and the duties and the obligations of the administrator continue. C. S., 105. The records of administration and of report termed “Final Account” were constructive notice to the world. In the instant case the administratrix filed what she designated as her “Final Account,” and having therein taken upon herself the obligation to pay the unsettled debt secured by the mortgage deed, she continued in a position of trust with relation to the heirs of the intestate. If she had taken title to the land pursuant to the mortgage sale, she would have held that title in trust for the benefit of herself, as widow, and the heirs subject to reimbursement. While the last and highest bidder at a sale under mortgage acquires no right or title of possession during the 10-day period required by law for raising the bid, he becomes a preferred bidder. C. S., 2591. . Harrell v. Blythe, 140 N. C., 415, 53 S. E., 232; Upchurch v. Upchurch, 173 N. C., 88, 91 S. E., 702; In re Sermon’s Land, 182 N. C., 122, 108 S. E., *166 497; Cherry v. Gilliam, 195 N. C., 233, 141 S. E., 594; Davis v. Ins. Co., 197 N. C., 617, 150 S. E., 120. In. Sermon’s case, supra, it is stated that the bidder at a mortgage sale “acquires a position similar to a bidder at a judicial sale and before confirmation.” In this State it has been repeatedly held that the purchaser at judicial or sheriff’s sales might assign his bid, and the commissioner or sheriff charged to make the title, could make the same to the assignee. Smith v. Kelly, 7 N. C., 507; Testerman v. Poe, 19 N. C., 103; Campbell v. Baker, 51 N. C., 256; Ward v. Lowndes, 96 N. C., 375; 35 C. J., 93, see. 147. Whether the assignee takes with notice, we think the rule stated in 35 C. J., 94, sec. 149, is reasonable in principle: “The assignee of a bid takes the same interest that his assignor had, and stands in his shoes and is subject to whatever may be ordered against the original bidder and whatever defenses may be interposed against the latter.” Again, in 21 C. J., 942, sec. 74, it is stated: “If the life tenant purchases . . . the property at a sale to satisfy an encumbrance, he cannot hold such . . . property to his exclusive benefit, but will be deemed to have made the purchase for the benefit of himself and the remainderman or reversioner. ... If the life tenant pays more than his proportionate share, he simply becomes a creditor of the estate for that amount.” Again, on the same page, it is stated: “Neither a life tenant, nor one claiming under him, who allows property to be sold for taxes, or the satisfaction of an encumbrance, . . . can acquire a title adverse to the remainderman or reversioner by purchasing at the sale.” Dower is a life estate. Holt v. Lynch, 201 N. C., 404, 160 S. E., 469; Chemical Co. v. Walston, 187 N. C., 817, 123 S. E., 196. 2. If the value of the land were greatly in excess of the bid, it would be a circumstance for the consideration of the jury on the issue of fraud. Mere inadequacy of purchase price alone is not sufficient to upset a sale when duly and regularly made. “But gross inadequacy of consideration, when coupled with any other inequitable element, even though neither, standing alone, may be sufficient for the purpose, will induce a court of equity to interpose and do justice between the parties.” Weir v. Weir, 196 N. C., 268, 145 S. E., 281; Roberson v. Matthews, 200 N. C., 241, 156 S. E., 496. Evidence as to rental value is also competent on and relevant to equitable adjustment. 3. For the reasons stated above, the judgment as of nonsuit was erroneously granted. The judgment below is Reversed.