Thompson v. Rospigliosi

AlleN, J. The appeal of the guardian act litem from the order of the clerk overruling his demurrer carried the entire case into the Superior Court,.and vested it with full jurisdiction of the cause, under Acts 1887, ch. 276, now Revisal, par. 614 (Faison v. Williams, 121 N. C., 152; Roseman v. Roseman, 127 N. C., 494; Battis v. Pridgen, 147 N. C., 134, and the Superior Court, being a court of general jurisdiction in law and equity, had the power to order and confirm a private as well as a public sale (Rowland v. Thompson, 73 N. C., 504; Sutton v. Schonwald, 86 N. C., 202; Barcello v. Hapgood, 118 N. C., 725; McAfee v. Green, 143 N. C., 418). In the Rowland case, Pearson, C. J., says: “It is most usual for sales made by the order of a court of equity to be public sales, but the court, as the guardian of infants, has full power in regard to the mode of sale, and under special circumstances not only has power, but «should, in the exercise of its discretion, authorize and confirm — 154 — what is called a private sale; that is, a sale without advertisement and public outcry. The question, Has a court of equity power to order the sale of the land of an infant to be made either at public or private sale? is not an open one. It is settled.” This case was approved in Sutton v. Schonwald, supra,, the Court saying, after citing it: “In which it was held that a court of equity, as the guardian of infants, had full power in its discretion to authorize or confirm a private sale of lands belonging to such a person.” And in Barcelo v. Hapgood, supra, in which Justice Avery says: “ ‘It is usual/ said the Court in Rowland v. Thompson, 73 N. C., 504, Tor sales made by order of the court of equity to be public sales; but the court as the guardian of infants has full power in regard to the mode of sale, and under special circumstances not only has power, but should, in the exercise of its discretion, authorize and confirm what is called a private sale; that is, a sale without advertisement and public outcry.’ ” And he adds: “It is settled by a number of adjudications that The Code has not taken away from the Superior Court the jurisdiction heretofore exercised by courts of equity.” In McAfee v. Green, supra, Justice Connor, referring to the same question, says: “To the exception that the sale is directed to be made privately it is sufficient to cite Rowland v. Thompson, 73 N. C., 504; Barcello v. Hapgood, 118 N. C., 712. The power of the court to order the sale to be made privately, when it appears to be promotive of the interests of the parties, has been too frequently adjudged by this Court to be considered an open question.” The first three of these cases were decided when the statute was in force (Acts 1868-69, ch. 122, par. 15), now a part of section 2513 of the Revisal, which required the officer appointed to make sale to file his report of sale within ten days, and the last when the statutes were as they are now in that section of the Revisal, and in no one of them does it appear that the report of sale was required to remain on file ten days or that the court waited twenty days before confirniation. On the contrary, the inference is clear from the report of the Thompson case that the decree of confirmation was entered at the time the report of the commissioner was made, and in the McAfee case, decided under exist-" — 155 — ing statutes, tbe offer to buy, tbe report of tbe commissioner, and tbe decree of confirmation were all at tbe same term of court, as tbe case before us. We conclude, therefore, that tbe section of tbe Revisal referred to (section 2513) relates to public sales, and that it does not purport to interfere with tbe power of a court of equity to order and approve a private one. We have, tben, before us a proceeding properly instituted, process duly served, an offer to buy, which has been accepted and performed, a decree of confirmation of tbe sale, regularly entered by a court of competent jurisdiction, and a deed executed pursuant to tbe decree, and we are asked by one not a party to reverse tbe ruling of tbe judgment of tbe Superior Court refusing to set aside tbe decree, upon tbe ground of an advance bid of 10 per cent. There is authority for tbe position that after confirmation tbe biddings will never be reopened, except in ease of fraud (Attorney-General v. Navigation Co., 86 N. C., 412), but as tbe decree of confirmation and .the motion to set aside were at tbe same term of co.ui't, and as orders and decrees are usually within tbe control of tbe court during tbe term, we will consider tbe question as if tbe motion to confirm and a motion to accept an advance bid of 10 per cent bad been made at tbe same time. It is xmdoubtedly true that an offer to increase tbe bid 10 per cent is a sufficient reason for ordering a resale, and that it is usual to accept such an- offer, and tbe refusal of tbe court to do so should be exercised with extreme caution and-only after careful investigation; but the offer is addressed to tbe discretion of tbe court, which means, according to Chief Jnotice Marshall, when presiding at tbe trial of Aaron Burr, that it is addressed “not to tbe inclination of the court, but to its judgment, which is to be guided by sound legal principles.” In Trull v. Rice, 92 N. C., 572, tbe proceeding was for a sale of land for partition. Tbe land was sold under an order made in tbe cause, and a report filed recommending a confirmation of tbe sale. A party to tbe proceeding made an advance bid of 10 per cent, and a motion to confirm tbe sale and a motion for a resale were beard at tbe same time. Tbe clerk refused to order a resale and confirmed tbe sale made, — 156 — and this ruling was affirmed by the judge and again upon appeal to the Supreme Court; the rule' being then declared that: “It is a well settled rule of practice in this State, which has long prevailed, to regard an offer of an advance bid of not less than 10 per cent on the sum reported upon a sale by a commissioner acting under an order of the court, as a sufficient reason for refusing to confirm the sale, and directing a resale of the property, while, after confirmation, the biddings will not be reopened, except in case of fraud or unfairness or other adequate cause shown for reversing the order. Attorney-General v. Navigation Co., 86 N. C., 408. But we have been referred to no eases in which, upon the mere ground of a proposal to increase the bid, and without regard to surrounding circumstances, this Court has undertaken in the exdrcise of an appellate jurisdiction in matters of law to compel the judge in the Superior Court to refuse the proposal of the reported bidder, and to direct a resale of the property.” This case has been approved on this point in Uzzle v. Weil, 151 N. C., 132; Copping v. Manufacturing Co., 153 N. C., 330; and in Tayloe v. Carrow, 156 N. C., 8, the present Chief Justice saying in the first of those cases, which was a sale in foreclosure proceedings: “The brief of counsel for appellant is based on the ground that the court had the power to set aside the sale, and should have done so, upon the advance bid of 40 per cent. But conceding that, notwithstanding the increase in the value of land since 1895, it'would have been just to the purchaser to now reopen the sale, the action of the court in refusing to do so is not reviewable. Trull v. Rice, 92 N. C., 572.” And in the second, which was a proceeding in partition: “This action of the judge in setting aside the report and ordering a sale is not reviewable unless there is an error of law committed. In Simmons v. Foscue, 81 N. C., 86, the Court said: ‘Of the force and effect of the evidence in inducing the exercise of that reasonable discretion reposed by law in the judge when called on to confirm the action of the commissioners, he alone must determine, and if no error in law was committed, we cannot reverse his decision.’ This has been cited and approved. Trull v. Rice, 92 N. C., 572.” — 157 — It follows, therefore, that Ms Honor exercised a discretion vested in him by 'the law when be refused to accept the advance bid, ’associated as it was with other unfavorable circumstances, and that his discretion is not reviewable unless there has been an abuse of it, and we find none. The wise, prudent, and impartial judge before whom the hearing- was had, lives in an adjoining county, and knows more of the parties and of exjstent conditions, perhaps, than any other judge of the Superior or of the Supreme Court, and he finds, after full consideration, that it is best for those interested in the land to leave the decree of confirmation in force. No party to this proceeding objects to this finding, or excepts to his ruling, and 75 per cent or more of the interest in the property is represented personally, and the remainder by guardians .ad litem. The j)erson who does except is one Borland, who purports to be the agent of Kuhn & Kuhn, and no evidence of the agency was furnished except the affidavit of Borland. The offer which he filed as the agent of Kuhn & Kuhn on 5 August, 1912, was to pay $145,000 for the property, but he amended the offer on 9 August, 1912, by stipulating that the sum would be paid for a good title to the property, and at the same time filed an application in his own behalf to be made a party, claiming an interest in the lands under deeds procured by him for .nominal consideration, after the commencement of the term of court at which the application was made. It appears, also, that one of these deeds was based on a contract of purchase, which had been surrendered; that no money was paid for it, and that Borland said he wanted the deed for use in court; and there is no suggestion that any of the grantors in the several deeds had ever claimed an interest in the land until approached by Borland. Kuhn & Kuhn have signed no offer, and the person who purports to be their agent comes into court holding in one hand an offer to buy if a good title can be made, and in the other a declaration that the court ■ cannot give a good title, while the power company offers to take the property as it is. His Honor would have been justified, under these circumstances, in holding that there was not sufficient evidence of good faith, and that it was the part of wisdom to accept a fair price without litigation. We not only conclude — 158 — that Ms Honor did not abuse Ms discretion, but think, on tbe facts appearing in this record, that be acted wisely in refusing to set aside tbe decree of confirmation. Tbe application of Borland to be made a party was properly denied upon tbe facts presented, and'any rights be has are preserved in tbe order entered. Affirmed.