Lee v. Barefoot , 55 N.C. App. 242 ( 1981 )

MARTIN (Robert M.), Judge.

The trial court found as fact that the sale of the land to the defendant was confirmed and then approved by Superior Court Judge Hall on 12 June 1962. The court further found that the defendant never legally tendered to the commissioner or to any other person the sum due for the land. The defendant excepts to this finding of fact. It is well-settled in North Carolina that the court on appeal is bound by the findings of fact made by the trial court where there is some evidence to support those findings, even if there is evidence to the contrary that would support a different finding. Williams v. Insurance Co., 288 N.C. 338, 218 S.E. 2d 368 (1975). In this case, there was evidence, including Mr. McLeod’s testimony, to support the trial court’s finding of no tender. Thus defendant’s assignment of error is without merit and is overruled.

Because we accept the trial court’s finding that the defendant did not tender the purchase price of the property, we must further conclude that the defendant does not have any claim to the property in dispute. This case is governed by Tayloe v. Carrow, 156 N.C. 6, 9, 72 S.E. 76, 78 (1911) which held as follows:

No title vested until the decree of confirmation upon the final report of the commissioners. Until the decree of confirmation the proceedings are not final, but interlocutory, and rest in the discretion of the court, even though the purchase money has been paid and the purchaser taken possession of the premises. Knapp on Partition, 335. On the other hand, even when there has been a decree of confirmation, title will not be executed until the purchase money has been paid. Burgin v. Burgin, 82 N.C., 197; White, ex parte, ib., 378. (Emphasis added.)

Consequently although the sale was confirmed, because the defendant never paid the purchase price, no title ever passed to him. Accord, Crocker v. Vann, 192 N.C. 422, 135 S.E. 127 (1926). The trial court correctly concluded that the plaintiffs were the fee simple owners of the land and that the defendant had no valid claim to the property in dispute.

Because defendant’s other assignments of error are not determinative of the outcome of this case, we do not discuss them in this opinion.

For the foregoing reasons, the judgment of the trial court is

Affirmed.

Chief Judge Morris and Judge Hedrick concur.