Council v. . Rivers , 65 N.C. 54 ( 1871 )

"It is a well settled principle of equity, that when a person can have adequate relief by an order in a cause pending in the same Court, he shall not be allowed to seek his remedy by a separate suit." Mason v. Miles, 63 N.C. 564.

"These cases assert the power of the Court of Equity upon (55) petition for the sale of lands for the benefit of infants to compel the purchaser by orders made in the cause, to perform specifically his contract, etc. With such plenary power over the subject, we cannot doubt that the Court of Equity for Alamance, can by proper orders to be made in the suit, now pending there, compel the purchaser of the land to pay the full amount of his bids, or such other sum as the Court under the circumstances may deem right and proper. If this be so, the present bill is unnecessary, was improperly filed, and being objected to by demurrer must be dismissed." Rogers v. Holt, 62 N.C. 108.

These two cases are decisive of our case. Indeed the opinion in the latter, with a change of names and substituting "action" for "bill in equity," might be filed as the opinion in this case. Here is a judicial sale of land for the benefit of infants. The proceeding is still pending, the purchase money not being paid, and the order to make title not having passed.

So, the Court where the proceeding is pending has plenary power by an order in the cause to compel the purchaser to pay such a sum as the Court under the circumstances may deem right and proper. It follows, this action must be dismissed.

This objection is not assigned, as one of the grounds of demurrer. But an objection of this nature may be taken ore tenus or may be taken by the Court mero motu in furtherance of the administration of justice, in order to prevent the Court from being incumbered and the useless accumulation of cost, by having two actions, when the latter is unnecessary and its purpose can be effected better, by a motion in the first. As the objection was not taken in the Court below, the action will be dismissed without allowing cost.

Cited: Mann v. Blount, 65 N.C. 101; Lord v. Beard, 79 N.C. 10; Hoff v.Crafton, 79 N.C. 595; Murrill v. Murrill, 84 N.C. 183; Grant v. Moore,88 N.C. 78; Hudson v. Coble, 97 N.C. 263; Lackey v. Pearson, 101 N.C. 654;Holmes v. Davis, 122 N.C. 269; In re Propst, 144 N.C. 566; Lyman v. CoalCo., 183 N.C. 586.

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