Marsh v. . Nimocks , 122 N.C. 478 ( 1898 )

The plaintiff, under an order of court, sold several lots of land for assets to several parties, and reported the sale. The defendants, in apt time, offered to raise the bid 10 per cent on certain lots and 11 per cent on other lots. The clerk ordered the lots to be resold, except the Magnolia building, at which the defendant failed to attend, and the lots were sold to other persons, and the sale was confirmed. The difference between the price bid at the second sale and the price at the first sale, plus the increased bid offered by the defendants, was $186.65, and to recover this difference this action was instituted.

This action must be dismissed. In a proceeding to sell land for assets the court of equity has all the powers necessary to accomplish its purpose, and when relief can be given in the pending action it must be done by a motion in the cause and not by an independent action. The latter is allowed only where the matter has been closed by a final judgment. If the purchaser fails to comply with his bid, the remedy is by motion in the cause to show cause, etc., and if this mode be not pursued, and a new action is brought, the court ex mero motu will dismiss it. This course is adopted to avoid the multiplicity of suits, avoid delay, and save costs.Hudson v. Coble, 97 N.C. 260; Pettillo, ex parte, 80 N.C. 50; Mason v.Miles, 63 N.C. 564, and numerous cases cited in them.

The offer, then, was a standing bid at the second sale. We have adopted the English rule of practice in such matters. At the second sale the plaintiff should have started the bidding at the amount of the price bid at the first sale with the percentage offered by the defendants added, and if no other bid was made, he should have declared the defendants as the best bidders and purchasers, subject to confirmation, and made his report to the court accordingly. (480)

On failure of the defendants to comply with such bid, the practice is by motion in the pending action, upon notice to the defendants to show cause why judgment should not be entered as the court may deem proper, when the defendants have an opportunity to excuse their noncompliance, if they are able to do so. Pritchard v. Askew, 80 N.C. 86; Attorney-General v.Navigation Co., 86 N.C. 408. Many of the decisions regulating judicial sales will be found collected in Trull v. Rice, 92 N.C. 572; Vaughan v.Gooch, ibid., 524.

Action dismissed.

Cited: Wooten v. Cunningham, 171 N.C. 126.