Galloway v. Hester

Higgins. J. The facts in this case have been stated somewhat fully because of the nature of the legal questions involved. The appellants contend (1) that Judge Nettles committed error by placing a too literal and too- rigid interpretation on the requirement that a cash deposit accompany an advance bid (G.S. 1-339.25(a)), (2) that the offer of the appellants to permit their interests in the land to stand as a guarantee of their compliance with their bid in equity should be considered compliance, and (3) that if a discretionary matter, nevertheless Judge Nettles should have ordered a resale in the interest of all parties. They cite in support the following cases: Wood v. Fauth, 225 N.C. 398, 35 S.E. 2d 178; Creech v. Wilder, 212 N.C. 162, 193 S.E. 281; Alexander v. Boyd, 204 N.C. 103, 167 S.E. 462; McCormick [278] v. Patterson, 194 N.C. 216, 139 S.E. 225; Perry v. Perry, 179 N.C. 445, 102 S.E. 772; Tayloe v. Carrow, 156 N.C. 6, 72 S.E. 76. The legal principles approved in the foregoing cases cited by the appellants, in the light of the facts in those cases, tend rather to fortify than to impair the order confirming the sale. One advance bid after another had caused the property to go back to the block until finally all bidders had retired from the competition, leaving DeLaney’s bid unchallenged until the appellants, who owned three-ninths of the land, and whose interests therein were subject to deeds of trust, judgments, and tax liens in amounts undisclosed, proposed to raise the bid from $83,210 to $90,000. Plowever, they offered neither cash nor bond to secure compliance with their bid. The court’s commissioners recommended the DeLaney bid be confirmed. The plaintiffs, who own three-ninths interest in the land, filed a brief here asking this Court to confirm the judgment of the superior court. Judge Nettles “ . . . having access to the court records in this proceeding . . . finds as a fact that it is to the best interest of the parties to this proceeding that said sale be confirmed and the court in its discretion confirms said sale as being the highest bid for said property as provided by the Statutes for judicial sales.” It must be conceded the appellants’ bid, at least technically, did not meet statutory requirements as to the deposit of cash. Whether to accept the cash bid or to order another sale, thus releasing the cash bidder, called for the exercise of judicial discretion. In the case of Thompson v. Rospigliosi, 162 N.C. 145, 77 S.E. 113, this Court said: “It follows, therefore, that his Honor exercised a discretion vested in him by the law when he 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 question of confirmation rests largely in the sound legal discretion of the lower court and, on the facts stated, we are of the opinion that this discretion has been properly exercised.” Copping v. Mfg. Co., 153 N.C. 329, 69 S.E. 250. "... the question of confirming a sale is referred, as stated, to the sound legal discretion of the court, and, in the proper exercise of such discretion, the court, under certain conditions, may reject an increased bid and confirm a sale when it appears from the relevant facts and circumstances such a course is wise and just and for the best interests of all parties whose rights are being dealt with in the suit.” Upchurch v. Upchurch, 173 N.C. 88, 91 S.E. 702; Sutton v. Craddock, 174 N.C. 274, 93 S.E. 781; Chemical Co. v. Long, 184 N.C. 398, 114 S.E. 465. [279] The law and the facts in this case support Judge Nettles, and his judgment is Affirmed. PARKER, J., not sitting.