Fisher v. Misenheimer

BRITT, Judge. Did the court err in entering the judgment ratifying and affirming the order of the clerk appointing a commissioner to consummate a judicial sale made in 1907 upon the payment of bid made at the sale, plus interest? We hold that it did. No party to this cause has cited, and our research has not disclosed, a precedent that controls this case. Applying well defined legal principles to the facts, however, leads us to conclude that when C. W. became the last and highest bidder for lot no. 1, a contract was created between him and Fisher, acting as commissioner of the court. The contract was subject to a confirmation by the court, and when the sale was confirmed, the contract became binding on C. W. and on Fisher. While Fisher was entitled to proceed with legal action to compel C. W. to comply with his bid, Fisher did not pursue that course but treated C. W.’s failure to comply as an abandonment of the contract by C. W. In all probability, Fisher concluded that payment of the debts of the estate required considerably more than the $60 bid by C, W., therefore, he instituted the second special proceeding to sell the 38-acre tract, which brought $750. Thus the question arises, did C. W. abandon his contract with Fisher? In May v. Getty, 140 N.C. 310, 316, 53 S.E. 75 (1905), we find: It is now well settled that parties to a written contract may, by parol, rescind or by matter in pais abandon the same. Faw v. Whittington, 72 N.C., [sic] 321; Taylor v. Taylor, 112 N.C., [sic] 27; Holden v. Purefoy, 108 N.C., [sic] 163; Riley v. Jordan, 75 N.C., [sic] 180; Gorrell v. Alspaugh, 120 N.C., [sic] 362. In the case first cited, Bynum, J., for the Court, says: “The contract is considered to have remained in force until it was rescinded by mutual consent, or until the plaintiffs did some acts inconsistent with the duty imposed upon them by the contract which amounted to an abandonment.” Dula v. Cowles, 52 N.C., [sic] 290; Francis v. Love, 56 N.C., [sic] 321. What will amount to an abandonment of a contract is of course a question of law [600] and the acts and conduct which are relied on to constitute the abandonment should be clearly proved, and they must be positive, unequivocal, and inconsistent with the existence of a contract, but when thus established they will bar the right to specific performance. Miller v. Pierce, 104 N.C., [sic] 390; Faw v. Whittington, supra; Holden v. Purefoy, supra... . Appellees cite Wood v. Fauth, 225 N.C. 398, 35 S.E. 2d 178 (1945). In that case, the court held that the report of sale in a partition proceeding, duly confirmed, confers upon the bidder certain rights of which the bidder cannot be summarily deprived; and upon the facts appearing in that case the bidder, upon a motion to show cause, should have been allowed a reasonable time within which to comply before the court vacated the sale and ordered a resale. We think Wood is distinguishable from the case at bar, primarily by reason of the time element. In Wood, approximately three years passed between the date of the sale and the order purporting to set it aside and ordering a resale. Even then, the court stated that “\u\nder the circumstances of this case we think the court below was in error in vacating the previous order of confirmation and ordering resale without affording defendant reasonable time as prayed within which to pay the full amount of her bid in cash. ...” Wood, supra at 399-400. In the portion of the May opinion quoted above, the court alluded to a contract remaining in force until rescinded by mutual consent or until one of the parties did something inconsistent with the duty imposed by the contract which amounted to an abandonment. Certainly, the sum total of the things that C. W. did, or did not do, amounted to an abandonment of his contract to purchase lot no. 1 for $60. In the first place, he failed to pay the $60 and demand a deed. Next, he evidently filed no exception to Fisher’s final account which stated that because of C. W.’s failure to comply with his bid, the lots he bid on would continue to belong to the estate. Finally, his acceptance of a warranty deed from Rosanna in 1924 for her “ . . . undivided one-half interest in and to” lot no. 1, and his execution in 1925 of a warranty deed to Rosanna for “ [a] 11 his undivided one half interest in and to” lot no. 1, were acts inconsistent with the duty imposed upon him by the contract with Fisher and tended to show an abandonment of the contract. In fact, the exchange of deeds between C. W. and Rosanna, indicated [601] that they agreed with the statement in the final accounting that the lots which C. W. did not pay for continued to belong to “the estate” and that as the two children of testator, they considered themselves to be “the estate” and, however erroneously, the fee simple owners of the property. Movants Query have no greater right to consummate the 1907 sale than C. W. would have if he were living. The conclusions of law on which the trial court based its judgment included conclusions that lot no. 1 has been in custodia legis since the date of the order of confirmation of sale, that said confirmation by the court conferred upon C. W. certain legal rights in and to the subject property “of which neither he nor his assignees have been divested,” and that movants Query, as assignees of C. W., have succeeded to all of the rights, title and interest of C. W. in this proceeding and in and to the subject real estate. We reject those conclusions. For the reasons stated, the judgment appealed from is Reversed. Judges Campbell and Vaughn concur.