Lance v. Russell

AlleN, J. The motion to dismiss the action upon the ground that the complaint is insufficient is based upon the -allegations contained in the ninth paragraph of the complaint, the defendant contending that it is there in substance alleged that the plaintiff is resisting a recovery of possession of the land, conveyed by the defendant to H. T. Brown, and if so, that he is not entitled to an account of the purchase money. The allegations of the complaint do not, however, go as far as the defendant insists. It is not alleged that the plaintiff is a party to the action instituted against Ducker, or that there [453] bas been any refusal to surrender possession, or that any defense has been entered in the action. But if these allegations were present, we think a fair construction of the complaint is'that the plaintiff, being indebted to the defendant in the sum of $800 or $900, conveyed to him the land in controversy, and that there was a contemporaneous agreement, which was not registered, that the defendant should sell the land, subject to the approval of the plaintiff, and out of the proceeds of sale pay off the debt to the defendant, and pay any surplus to the plaintiff ; that the defendant violated his agreement and sold the land to H. T. Brown, without the approval of the plaintiff, for much less than its real value; that the said Brown has instituted an action against the tenant of the plaintiff to recover possession of the land, and that the defendant has refused to account to the plaintiff for the value of the land or for the proceeds of the sale to Brown. Under these allegations, Brown acquired title to the land, and the only redress for the plaintiff is against the defendant in this action. The case rests largely on the principles declared in Sprinkle v. Wellborn, 140 N. C., 178, and, in our opinion, a cause of action is stated in the complaint. The remaining question is as to the power of the judge to set aside the order of reference and the report of the referee. If it was within his discretion, we have no right to interfere with its lawful exercise. The authorities seem to be uniform that neither party can withdraw from a consent reference, and that it cannot be set aside except by mutual consent, but that the court retains jurisdiction and may, for good cause shown, set aside the order of reference as well as the report. Bushee v. Surles, 79 N. C., 53; Patrick v. R. R., 101 N. C., 604; Smith v. Hicks, 108 N. C., 251; Cummings v. Swepson, 124 N. C., 584; Brockett v. Gilliam, 125 N. C., 382. The judge, in effect, finds as a fact that the plaintiff was misled, and that he consented to the reference because it was represented that H. T. Brown was a party to the agreement and would be bound by it, when in fact no one had authority to represent him, which is, we think, “good cause shown.” [454] In Kerr v. Hicks, 131 N. C., 90, a consent order of reference was modified and made compulsory upon a finding by tbe court that one of tbe parties excepted at tbe time tbe order was made, and if tbis can be done, there is no reason for denying tbe power to set aside tbe order altogether, if one party is misled by tbe other, and thereby induced to agree to tbe reference. We find no error. Affirmed.