Lictie v. . Chappell , 111 N.C. 347 ( 1892 )

At September Term, 1890, the cause was referred to B.R. (351) Moore to find the facts and report his conclusions of law.

Referee Moore found, as a conclusion of law, that defendant's motion to be allowed to pay the debts of the estate, and that the lands thereof be not sold, was in apt time, and also found other facts. Plaintiff and E. Porter filed exceptions to referee's report, which were heard and overruled by Winston, J., at March Term, 1892, of PENDER. Plaintiff and E. Porter appealed.

The other facts appear in the opinion. This case has become much confused and greatly protracted, but it seems at last to have reached its proper determination in the judgment which now comes to us upon appeal.

The contention of the purchaser is that there was a final judgment of confirmation of the sale made by the clerk and affirmed by the judgment of his Honor Judge Clark, and that the same cannot be attacked by motion in the cause, but if there is any ground for setting aside the sale, it must be made to appear to the Court by an independent action. But the record does not bear out this contention; it appears that on 14 March, 1881, the clerk granted license to the administratrix to sell the lands for assets; and that defendants appealed to the Superior Court, and while this appeal was pending before the judge, the administratrix proceeded to sell, and the clerk made another order confirming the sale and directing title to be made to the purchaser. This order the clerk had no right to make, as the case for the time being had passed beyond his jurisdiction. The order of his Honor Judge Grave, while not clear in its terms, was evidently a reversal of the order of the clerk (352) granting license to sell the land, and referring the matter to a referee to ascertain and report the facts. To this order there was no exception, and we must take it as a waiver of the trial of issues of fact by a jury.

The next order, that made by his Honor Judge McKoy, passes upon the report of the referee; directs that the sale be suspended until further hearing, and refers the matter to the same referee. And to this order there was no exception.

The order made by Gilmer, J., at March Term, 1886, simply institutes another referee, the clerk of the court, instead of the former referee.

The report of the referee is filed, and exceptions thereto, and the order of his Honor Judge Clark, at September Term, 1886, overrules the exceptions and affirms the order of sale, but not the order of confirmation. And no exception is made to this order.

Next follows the motion of defendants to be allowed to pay the debts owing by the estate of intestate, to vacate the order of sale, and the sale made pending the appeal. This motion was made before the clerk and allowed, and plaintiff appealed; and, while the dates are confusing, it appears that his Honor Judge Connor, at May Term, 1887, affirmed the judgment of the clerk, and remanded the case to him for the purpose of giving notice to the purchaser to show cause why the sale should not be set aside.

The report of the clerk shows that notice to the purchaser was given, and that he appeared by counsel and filed his objections to setting aside the sale; and thereupon the clerk ordered that the sale and order of confirmation be set aside, and the purchaser appealed.

At May Term, 1888, it was referred by consent, by the order of his Honor Judge Shepherd, to a referee to find the facts, and by successive orders other referees were appointed, and finally his Honor Judge Armfield, at September Term, 1890, appointed B.R. Moore, Esq., referee, who filed his report of facts and findings of law, to which (353) the purchaser, E. Porter, filed numerous exceptions.

His Honor Judge Winston, at the hearing, March Term, 1892, overruled all the exceptions, affirmed the judgment of the clerk setting aside the sale and authorizing the defendants to pay the debts of the estate in exoneration of the lands. From this judgment the plaintiff and E. Porter appealed to this Court.

There are no specific exceptions to the final judgment, but we have examined the exceptions passed upon by his Honor, and concur with him in his conclusions.

Under Laws 1887, ch. 276 (Clark's Code, sec. 255), the judge now has final jurisdiction to determine the whole matter in controversy. The purchaser has had his day in court; it is nowhere suggested that he paid any purchase money for the land at the sale which has been set aside, or it might have been proper to order that the same be refunded. Indeed, there is no report of sale or of the price at which the land was bid off; the record, while full in some respects, is lacking in others. We have found no error.

AFFIRMED.

Cited: Ledbetter v. Pinner, 120 N.C. 458; Faison v. Williams,121 N.C. 153; Roseman v. Roseman, 127 N.C. 497; Love v. Love,139 N.C. 365; Batts v. Pridgen, 147 N.C. 135.