Brown v. . Coble , 76 N.C. 391 ( 1877 )

It is argued for the plaintiffs that Goley who purchased at the sale by the Master on 13th December, 1862, acquired no title, because the Court of Equity never ordered the purchase money to be collected and never ordered a deed to be made to the purchaser.

1. When a Court orders a sale on a certain credit, as of twelve months in this case, and a sale is so made and the bond of the purchaser is taken payable at the end of the credit given, and the sale is confirmed, the Master is authorized by a necessary implication to receive the money when it falls due; for it is the right of every debtor to pay at that time. It is not his right to pay before. The creditor, however, may waive his right and consent to receive payment before maturity. A Clerk and Master may do this without an order of the Court; or at least if he does it, he and the sureties to his bond become liable for the sum received. This was decided in Broughton v. Haywood, Phil. 380.

In this case as the full amount of the note was paid without discount the prepayment did not damage the plaintiffs.

No question has been made as to the effect of the payment having been made in Confederate currency and therefore no observations are necessary on it.

There is no allegation that the payment was fraudulently made as inDockery v. French, 73 N.C. 420.

2. An order that the Master make a deed to the purchaser is not necessary after the payment of the purchase money and a deed made without such order passes the title. The withholding of the title can have no other object after the sale has been confirmed, than to secure the purchase money and when that is paid, the purchaser, in the absence of special circumstances, has an absolute right to a conveyance of the legal estate. Such an order is both usual and proper. But ordinarily when the money has been paid and there is no special reason making it unfit, it is an order of course. Its advantage is that it is an adjudication of the Court that it is in all respects a fit case for such an order, binding the parties to the action and protecting the Master and the purchaser.

Without such an order the Master and the purchaser take on themselves the risk of determining that the case is one in which such an order would be fit and proper.

If the case be really such, then the order being of course will be presumed to have been made and its actual entry of record is unnecessary.

In the present case no fact is stated and no reason is assigned why the order would not have been of course, at any time since the payment of the money, and why it should not be so now.

3. The plaintiffs further contend that the deed to Goley did not convey any title to him, because the description of the land in the petition for partition was too indefinite. That part of the petition which describes the land is as follows; "That said John Brown (the ancestor of the petitioners) died seized and possessed of a tract of land in said County of Guilford, on the waters of ``Stinking Quarter,' adjoining the lands of _____." The order of sale only describes it as "the said land." The description in the deed from the Master is by metes and bounds, and the deed recites that the sale was made on the premises. The description in the petition is not so defective that it may not be possible to identify with certainty the land meant. It is in a certain County, on a certain stream and is that piece of land of which John Brown died seized and possessed. Appropriate evidence either of written title in John Brown or of actual possession by him would be competent to ascertain the land. If indeed by mistake or otherwise the deed from the Master covered land of the plaintiffs, not described in the petition or order of sale, no doubt they would have a remedy.

But the case states that the land sued for is that which was sold under the proceedings for partition.

4. Without considering that one or two of the plaintiffs are alleged to have compromised and released their rights, we are of the opinion upon the reasons above, that the plaintiffs are not entitled to recover the land from the defendant Coble now in possession.

5. The plaintiffs in their complaint demand that if they shall be adjudged not entitled to the land, they may have judgment against the administrator of the deceased Clerk and Master for the purchase money.

We cannot consider in this action what their rights in this respect may be, because we think it clear that a claim to the land cannot be joined with a claim against the Master for the purchase money.

In the first demand, the representative of the Master has no interest, and in the second the other defendants have none.

Judgment affirmed and action dismissed without prejudice to any rights of the plaintiffs or of any of them against the representative of the deceased Clerk and Master, or against the sureties to his official bond.

PER CURIAM. Judgment affirmed.