Hudson v. . Coble

Smith, C. J., (after stating the facts). We concur with the Judge in the opinion that the action cannot be maintained, and that if the plaintiffs, (if they, instead of the heirs, are entitled to recover the loss,) have misconceived the mode of reaching the fund, in resorting to an independent action, the proper remedy must be sought in a proceeding in the cause,.and to this end the first bid should have been accepted by the Court, and the contract thus consummated. That this is the course to be pursued in equity is not disputed by appellants’ counsel, and is fortified fully by precedents. Nor has the statute of frauds any application to *263 judicial sales, as .is held in case of Trice v. Pratt, 1 D. & B. Eq., 626. Numerous adjudications have established the general proposition, that where relief can be had in a pending cause, it must be there sought. Murrill v. Murrill, 84 N. C., 182, and many other cases. In Rogers v. Holt, Phil. Eq., 108, Battle, J., cites Singeltary v. Whitaker, and Cotton, Ex parte, in the same volume, at pages 77 and 79, and asserts the proper practice in this language: “ These cases assert the power of the Court of Equity, upon petition for the sale of land for the benefit of infants, to compel the purchaser by orders made in the cause, to perform specifically his contract of purchase,” &c. Even if a bond had been given for the purchase money, it is held in Council v. Rivers, 65 N. C., 54, that a separate action cannot he prosecuted to enforce payment, but that the remedy is in an order in the pending cause, and that this objection to jurisdiction may be taken on appeal, or the Court may act ex mero motu The method of procedure is particularly pointed out by the late Chief Justice in these words: “ The orderly mode of proceeding was for the Court to accept the bid of Coffield and Barnhill, by confirming the contract of sale, and then upon the matter set out in the report, to enter a rule against them, to show cause why they should not be required to comply with the terms of sale.” He then proceeds to suggest that the purchasers may be decreed, (1), to specifically perform their contract; or (2), the land may be ordered to be sold and the purchaser released; or (3), without releasing the purchaser, such second sale may be directed, the purchasers undertaking, as a condition precedent to such order, to pay the additional costs, and make good any deficiency produced thereby. The ruling appealed from in that case, was that without the confirmation the land be resold and *264 the purchasers pay the difference, if any, in the sales, and the order was set aside and the ruling reversed. • The form of the present proceedings is essentially equitable, and must involve, when necessary to accomplish its purposes, the exercise of similar powers. It could never have been intended by the Legislature to confer the jurisdiction, and leave the Court without the means of making it effectual and complete. The application is in the Superior Court, the clerk exercises jurisdiction, and any question of law or fact may be referred to the Judge or jury. There is no impediment suggested in the way of the exercise of all the functions pertinent to the case, and to a full and final determination. There is no error. Judgment affirmed. No error. Affirmed.