In Re Dickerson

From this order J. N. and W. R. Bell appealed. It is contended by the counsel for the appellant that the order of sale made (on the ex parte petition of the guardian) by the clerk and approved by the judge 23 December, 1882, was a final decree, and that there was no need for a confirmation of the sale, it being admitted upon the argument, though it does not so appear in the case or in the record, that the interest of the petitioner brought $130 at the sale, this sum being more than the sum named in the petition as a fair price, and in the order as the lowest bid which should be received.

If this contention were correct — if by a proper construction of the order of sale directing a deed to be made "to the purchaser for said land, upon the payment of the purchase money by said purchaser," we were required to hold that the price was fixed at any sum not less than $125, and the sale confirmed in advance at such price, we could do no otherwise than hold the decree to be final and the parties bound. But impressed as we are by the extreme looseness of the whole proceeding, it is a relief to us to be able, upon examination of the order and of its approval, to hold it evident that the judge who approved it intended that there should be a public sale and that no bid should be entertained for a less sum than $125, and that it should take the regular course in such proceeding that it might be ascertained whether the land sold for a fair price, before the judgment should be made confirming the sale. We may with profit reproduce as applicable to the present case, the remarks of the venerable Chief Justice Ruffin in Harrison v. Bradley,40 N.C. 136: "The Court cannot forbear expressing a decided disapprobation of the loose and mischievous practice adopted in this case of decreeing the sale of an infant's land upon ex parte affidavits offered to the Court, without any reference to ascertain the necessity and propriety of the sale and the value of the property, so as to compare the price with it. The Court ought not act on mere opinions of the guardian or witnesses, but the material facts ought to be ascertained and put upon the record, either by the report of the master or (114) the finding of an issue; and after a sale it ought to appear in like manner to be for the benefit of the infant to confirm it, otherwise there is great danger of imposition on the Court and much injury to infants."

As was said by Justice Merrimon, delivering the opinion in Morris v.Gentry, 89 N.C. 248, "It is the duty of courts to have special regard for infants, their rights and interest when they come within their cognizance." And in the exercise of this duty, nothing but clear internal evidence of a confirmation of this sale should induce us so to construe the order.

The sale then not having been confirmed, the commissioner's deed has not yet divested the title out of the petitioner; the proceeding is still pending, the petitioner is still an infant, and she has a right to be heard upon the report of sale and the motion for confirmation, and to move to set aside the sale for inadequacy of the sum bid for the land. Foushee v.Durham, 84 N.C. 56.

While a formal direction to make title is not always necessary, a confirmation of the sale cannot be dispensed with. Mebane v. Mebane,80 N.C. 34; Latta v. Vickers, 82 N.C. 501; Brown v. Coble,76 N.C. 391; England v. Garner, 90 N.C. 197.

We concur in the view of his Honor upon his finding of fact that said sale had not been made for a fair price, that a resale should be ordered, provided it shall be made to appear as required in section 1602 of The Code, "that the interest of the ward would be materially promoted by a sale of her interest in said land, and that report of sale be made to the court." Dula v. Seagle, 98 N.C. 458. As it was admitted that the purchaser, S. S. Willis, paid the purchase money and took a deed for said land from the guardian, and that said Willis conveyed the land for value to R. W. Bell, who is now dead and whose interest in said land is now vested in W. R. and J. N. Bell, the (115) appellants, it will be proper that an account be taken of the amount paid to the guardian by said Willis, and of the rents and profits of said land since said attempted sale and the possession of said Willis and those claiming under him, and that the balance of the sum so paid, after deducting the sum ascertained to be due for rents and profits, be a charge upon the fund arising from the sale now ordered in favor of the appellants.

MODIFIED AND AFFIRMED.

Cited: Vanderbilt v. Brown, 128 N.C. 500; Joyner v. Futrell,136 N.C. 304; Patillo v. Lytle, 158 N.C. 97.