Koonce v. Fort , 204 N.C. 426 ( 1933 )

Connor, J.

Tbe only question presented by this appeal for decision by this Court is whether there was error in tbe order of Judge Harris directing tbe commissioners to' return to F. R. Davis tbe sum of $1,850, deposited witb them by him as tbe last and highest bidder at tbe sale made by tbe commissioners on 14 November, 1932. This sum was deposited by F. R. Davis witb tbe commissioners pursuant to tbe order of Judge Moore. This was a valid order, made by Judge Moore in tbe exercise of bis judicial discretion. Alexander v. Boyd, ante, 103, 167 S. E., 462, is not applicable to this order. In that case, we held that where land was sold'by a trustee under tbe power of sale contained in a deed of trust, a requirement by tbe trustee that tbe last and highest bidder at tbe sale deposit witb him at tbe time of tbe sale, as an evidence of bis good faith, and of bis financial ability to comply witb tbe terms of bis bid, a sum equal to 25 per cent of tbe amount of bis bid, was arbitrary and unreasonable. Tbe requirement was not authorized by tbe terms upon wbicb tbe power of sale was conferred upon tbe trustee, and deprived tbe mortgagor of tbe protection provided by N. 0. Code of 1931, section 2591. In tbe instant case, tbe requirement was made by tbe judge, after notice to tbe parties to tbe action, in tbe exercise of bis judicial discretion, and was valid. There is nothing in tbe statute wbicb deprives tbe court of its power to prescribe tbe terms upon wbicb land or other property shall be sold under its orders, judgments or decrees.

Tbe order of resale made by tbe clerk of tbe Superior Court of Carteret County in tbe instant case, under tbe provisions of N. C. Code of 1931, section 2591, vacated tbe sale made by tbe commissioners on 14 November, 1932. Pringle v. Loa¡n Association, 182 N. C., 316, 108 S. E., 914. E. R. Davis, who was tbe last and highest bidder at said sale, and who as such complied with tbe order of Judge Moore, was released from all liability by reason of bis bid, by the order of resale. Trust Co. v. Powell, 189 N. C., 372, 127 S. E., 242. When tbe resale was ordered by tbe clerk, be was entitled to tbe return of bis deposit. There was no error in tbe order of Judge Harris that tbe commissioners return to him tbe amount of bis deposit. Tbe order is

Affirmed.