Matter of Green , 27 N.C. App. 555 ( 1975 )

219 S.E.2d 552 (1975) 27 N.C. App. 555

In the Matter of Mary G. GREEN, Incompetent.

No. 757SC477.

Court of Appeals of North Carolina.

November 19, 1975. Certiorari Denied and Appeal Dismissed January 6, 1976.

Fields, Cooper & Henderson by Leon Henderson, Jr., Rocky Mount, for Dew and Strickland, appellants.

Howard A. Knox, Jr., and Robert D. Kornegay, Jr., Rocky Mount, for Julian H. Jackson, appellee.

Certiorari Denied and Appeal Dismissed by Supreme Court January 6, 1976.

HEDRICK, Judge.

In the order appealed from, Judge Webb concluded "as a matter of law that any right of A. W. Strickland and Larry Dew had not been vested in the property at the time the upset bid was filed to the extent that the Court could not accept an upset bid."

Appellants argue that the quoted conclusion is erroneous simply because their interest in the land vested when the Clerk signed the order confirming the sale on 17 April, pursuant to G.S. 1-339.28, and the resident Superior Court Judge approved the sale and the order of confirmation that same day pursuant to G.S. 1-339.14. Appellee, on the other hand, argues that the order of confirmation and approval on 17 April was not sufficiently final to vest in appellants the equitable title to the property, since the order had not been filed in the office of the Clerk of Superior Court at the time his bid was tendered and accepted by the Clerk. He contends that the filing of the order of confirmation in the office of the Clerk of Superior Court is a "necessary procedural detail" which the judge or clerk has authority to fix pursuant to G.S. 1-339.3(c), which is as follows:

"The judge or clerk of court having jurisdiction has authority to fix and determine all necessary procedural details with respect to sales in all instances in which this Article fails to make definite provisions as to such procedure."

It has long been the rule in North Carolina that after confirmation of a judicial sale, the purchaser becomes the equitable owner of the property, and the sale then may be set aside only for "mistake, fraud, or collusion". Becker County Sand and Gravel Co. v. Taylor, 269 N.C. 617, 153 S.E.2d 19 (1967); Perry v. Jolly, 259 N.C. 305, 130 S.E.2d 654 (1963); Upchurch v. Upchurch, 173 N.C. 88, 91 S.E. 702 (1917). Before confirmation, the prospective purchaser has no vested interest in the property. His bid is but an offer subject to the approval of the court. Page v. Miller, 252 N.C. 23, 113 S.E.2d 52 (1960). The court in exercising its sound discretion may reject the bid at any time before confirmation. Harrell v. Blythe, 140 N.C. 415, 53 S.E. 232 (1906). But, upon confirmation the sale becomes final (McLaurin v. McLaurin, 106 N.C. 331, 10 S.E. 1056 (1890); Smith v. Gray, 116 N.C. 311, 21 S.E. 200 (1895)) and the vested interest of the purchaser is not lightly to be put aside. Page v. Miller, supra.

Under the circumstances here presented, the Clerk was not authorized under G.S. 1-339.3(c) or any other statute to refuse to file and maintain in her records a valid order of confirmation. After the time provided by G.S. 1-339.25 for the placing of upset bids had expired and after the order of confirmation had been signed by the Clerk and approved by the Judge, the Clerk had no authority to accept an upset bid. In the absence of allegations, proof, or findings of fraud, mistake, or collusion, Judge Webb had no authority to set aside the order of confirmation dated 17 April 1975, which was regular on its face.

For the reasons stated, the order appealed from is vacated and the cause is remanded to the Superior Court for the entry of an order directing the Clerk to accept for filing the order of confirmation dated 17 April and to refund the deposit accepted by her on the proposed upset bid of Jackson.

Vacated and remanded.

MORRIS and ARNOLD, JJ., concur.