Dula v. . Seagle

Smith, C. J., (after stating the case). In Mebane v. Mebane, 80 N. C., 34, this language is used: “ No report of the sale is required to be made to the Court in order that it may be set aside or confirmed and title ordered, but this is left to the uncontrolled discretion -of the commissioner. This is entirely at variance with the nature of judicial sales The commissioner acts as the agent of the Court, and must report to it all his doings in execution of its order. The bid is but a proposition to buy, and, until accepted and sanctioned by the Court, confers no right whatever upon the purchaser. The sale is consummated when that sanction is given and an order for title made and executed. This power will not be delegated to the agent who exposes the property to public biddings.” To the same effect are Miller v. Feezor, 82 N. C., 192; Foushee v. Durham, 84 N. C., 56. 2. Again, and aside from the irregularity in the form of the decree in the particular mentioned, it is well settled that an advance bid of ten per cent, before confirmation is sufficient ground for re-opening the biddings, when the performance of the offer is properly secured. Blue v. Blue, 79 N. C., 69; Pritchett v. Askew, 80 N. C., 86; Attorney General v. Roanoke Navigation Co., 86 N. C., 408. The defence of the ruling of the Court is put on the ground that the decree directs the commissioner to make title, and to distribute the money produced by the sale, without reporting for confirmation and without retaining the cause. *461 This view would be forcible, and perhaps unassailable, if the judgment had been regular, according to the course of the Court. But this irregularity is the subject matter of complaint, and its consequences sought to be averted before they pass beyond the correcting and reforming hand of the Court. The decree was not by consent, but rendered at the end of the term, for want of an answer. The remedy by motion is open until the decree is fully executed. Lord v. Beard, 79 N. C., 5; Lord v. Meroney, Ibid., 14; Murrill v. Murrill, 84 N. C., 182; Wilson v. Sykes, Ibid., 215. The sale by a commissioner, acting under the order of the Court and subject to its supervision and control, finds little analogy in, or support from, a sheriff’s sale. That officer acts under the law that prescribes his duties, with a proper responsibility to those affected by what he does. If he sells under execution, without advertising, as required by law, and the purchaser has no notice of this dereliction of duty, he acquires title; but it would be otherwise if the sale was at a time or place not warranted by law, because the purchaser is charged with knowledge of this legal requirement, and does not buy in good faith. State v. Rives, 5 Ired., 297; Mayers v. Carter, 87 N. C., 146. We pass other objections, among which is the very serious one arising out of the fact that the sale was made, not according to the public notice, but eleven days before, which may have caused the absence of bidders, since the previous objections called for the interposition of the Court and its ordering another sale. There is error in the refusal to set aside the sale, and the Superior Court will proceed according to this opinion, and restore the purchase money to the bidder. Error.