Beaufort County v. . Bishop

Winborne, J. Decision on this appeal fairly turns on this question: If it be conceded that the clerk of Superior Court had authority in February, 1939, to enter a judgment confirming sale of land ordered in an action instituted under the provisions of C. S., 7990, may such judgment be entered by the clerk on any day other than Monday? The statute answers “No.” Public Laws, Extra Session 1921, ch. 92, sec. 10, as amended by Public Laws 1923, ch. 68; Michie’s Code, 1935, sec. 597 (b). See Clegg v. Canady, 213 N. C., 258, 195 S. E., 770. In this State the clerk of Superior Court is a court of very limited jurisdiction, having only such jurisdiction as is given by statute. McCauley v. McCauley, 122 N. C., 288, 30 S. E., 344; Dixon v. Osborne, 201 N. C., 489, 160 S. E., 579. The statute conferring on the clerk authority to enter judgments provides in substance that, except as otherwise provided, no judgment shall be entered by the clerk except on Monday. Public Laws, Extra Session 1921, ch. 92, as amended by Public Laws 1923, ch. 68. The authority otherwise applies only to judgment of voluntary nonsuits and those entered by consent. Public Laws 1921, Extra Session 1921, ch. 92, sec. 12 (a) and (b). In the present case the clerk, by entering two decrees, one on 10 February, 1939, and the other on 21 February, 1939, has undertaken to confirm the sale and to order title made and executed. The first of these orders was on Friday, and the second on Tuesday. Therefore, the clerk having undertaken to act at a time when he had no jurisdiction to act, the purported orders of confirmation are void and give no force or validity to the deed of the commissioner purporting to be executed thereunder. McCauley v. McCauley, supra. *215 This being an action in the nature of an action to foreclose a mortgage, confirmation is essential to the consummation of the sale of the lands by the commissioner appointed and acting under the order of the court. Speaking to this question in Mebane v. Mebane, 80 N. C., 34, Smith, G. J., said: “The commissioner acts as 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.” To like effect are numerous decisions of this Court, notably among which are these: Dula v. Seagle, 98 N. C., 458, 4 S. E., 549; Joyner v. Futrell, 136 N. C., 301, 48 S. E., 649; Harrell v. Blythe, 140 N. C., 415, 53 S. E., 232; Patillo v. Lytle, 158 N. C., 92, 73 S. E., 200; Davis v. Pierce, 167 N. C., 135, 83 S. E., 182; Upchurch v. Upchurch, 173 N. C., 88, 91 S. E., 702; Perry v. Perry, 179 N. C., 445, 102 S. E., 772; In re Sermon's Land, 182 N. C., 122, 108 S. E., 497; Cherry v. Gilliam, 195 N. C., 233, 141 S. E., 594; Davis v. Ins. Co., 197 N. C., 617, 150 S. E., 120; Dixon v. Osborne, 201 N. C., 489, 160 S. E., 579; Richmond County v. Simmons, 209 N. C., 250, 183 S. E., 282; Bank v. Stone, 213 N. C., 598, 197 S. E., 132. In Harrell v. Blythe, supra, it is stated: “When land is sold under a decree of court, the purchaser acquires no independent right. He is regarded as a mere preferred proposer until confirmation, which is the judicial sanction or acceptance of the court, and until it is obtained the bargain is not complete.” In Perry v. Perry, supra, Hoke, J., after quoting from several decisions, said: “And this ‘confirmation of sale’ referred to and contemplated by these authorities means confirmation that has been fixed and determined according to the course and practice of the Court.” In keeping with these authorities, the status of the purchaser on 13 March, 1939, when the defendant J. P. Bishop deposited with the clerk sufficient money to redeem and for the purpose of redeeming the land from the tax lien, was that of a preferred bidder whose bid had not been accepted by the court and who had acquired no independent right. As the sale had not then been confirmed, J. P. Bishop, and those having an interest in the land, had the right, and should have been permitted to redeem the land. Tender of payment by him was made two days before the act of the Legislature, Public Laws 1939, ch. 107, granting the power to clerks of Superior Court to enter judgments by default and subsequent orders and judgments in actions instituted under the provisions of C. S., 7990, for the enforcement of tax liens, and ratifying judgments and orders theretofore rendered by clerks of Superior Court *216 in sueb actions, became effective. Hence, it is unnecessary to consider the effect of this act on decrees previously entered by the clerk. Also, holding that the purported decrees of the clerk entered in February, 1939, on Friday and Tuesday, respectively, are void, we find it unnecessary to consider the subject of the authority of the clerk to enter at that time judgments in actions of this character. The judgment below is Affirmed.