From the foregoing judgment the plaintiff appealed.
BROGDEN, J.
The question of law is this: In a sale of land for partition, can the court, in its discretion, refuse to confirm the report of commissioners, when such report has been filed more than twenty days and no objection is made thereto until after a motion for confirmation is lodged?
C. S., 3243, requires commissioners in partition sales to file reports of sales and provides that "if no exception thereto is filed within twenty days the same shall be confirmed." C. S., 3230, with respect to exceptions to reports of actual partition contains the same provision.
In Floyd v. Rook, 128 N.C. 10, an actual partition of lands had been made. The commissioners filed a report. After a lapse of about sixty days exceptions were filed to the report of commissioners and a motion made to set aside the sale. The trial judge refused to hear the exceptions to the report on the ground that they had not been filed within twenty days after the filing of the report of the commissioners, because in such case the court had no power in law to hear the exceptions. This Court held that the language of The Code, sec. 1896, now C. S., 3230, "is peremptory and cannot be explained or altered by judicial decree. . . . That requirement of The Code is a rule of law and exceptions filed after twenty days have passed from the filing of the report of the commissioners are too late to be considered, and it makes no difference whether the report has been confirmed or not when the exceptions are filed, if they are filed after the time allowed by law." The Floyd case, supra, has been cited in two other decisions of this Court, to wit, McDevitt v. McDevitt, 150 N.C. 644, and Upchurch v. Upchurch, 173 N.C. 88. Hoke, J., in the Upchurch case, referring to the exceptions in the Floyd case, said: "Doubtless they were for some irregularities in the proceedings or because of some inequitable adjustment. In either case they were known to the parties at the time the partition was made or when the report was filed, and such objections come more nearly within the express terms and purpose of the statute." In other words, the Upchurch case holds that exceptions as to irregularities or inequitable adjustment "come more nearly within the express terms and purpose of the statute" and do not "impair the power of the court as to confirmation of judicial sales for inadequacy of price, evidenced by an increased and sufficient bid made before the proposed purchaser has appeared and moved for an acceptance of his bid." So that, an increased bid may be accepted by the court and a resale ordered after twenty days, provided the proposed purchaser has not theretofore moved for an acceptance of his bid. But if a motion is made for a confirmation of sale before the increased bid is offered, then the court is without discretion in the matter and must confirm the sale. As we understand it, this is the principle declared in Ex parte Garrett, 174 N.C. 343. In that case the Court said: "It may also be noted that in all special proceedings, except for partition, in which a report is to be filed, the statute (Rev., sec. 723, now C. S., 763), provides that if no exception is filed to the report within twenty days the court may confirm the same, on motion of any party, while in the statute before us (Rev., sec. 2513, now C. S., 3243), referring to partition, the word used is shall, thus indicating a purpose to distinguish between the two, and in one case resting a discretion in the court, and in the other making it obligatory to act." Under these decisions, therefore, the law is that, under C. S., 3243, exceptions must be filed or an increased bid placed upon the purchase price within twenty days or before a motion to confirm the sale is made.
In the case before us the trial judge ordered a resale in the discretion of the court. The correctness of this ruling depends upon the sole question as to whether or not exceptions have been filed within twenty days or before the motion for confirmation of the sale was made. In contemplation of C. S., 3243 an exception is an objection to the regularity of the proceedings or sale or because of "inequitable adjustment." Were exceptions or objections made to this sale within twenty days or prior to the time of the motion for confirmation? The record in the cause states: "No exceptions have ever been filed to said report." However, it further appears in the record that "shortly after the other two commissioners filed their report, the purchasers advised the clerk of a desire to be heard in opposition to the confirmation of the report." It further appears that thereafter on 23 April, 1926, a motion to confirm the report was made for the first time, and the purchasers appeared in opposition to the confirmation of said report. When the cause came on for hearing before the trial judge the purchasers were still present, resisting the confirmation of the sale.
The law does not require strict formality in the filing of exceptions. For instance, in McDevitt v. McDevitt, 150 N.C. 644, the defendant went to the clerk before the expiration of twenty days and notified him that he desired to file exceptions to the report. Thereupon the clerk entered the following memorandum upon the record: "George McDevitt, the defendant, comes into court and objects to the report of the commissioners in this cause and asks that the same be not confirmed." Later on, amended exceptions were filed. Upon the hearing, the clerk confirmed the report upon the ground that no exception had been filed within twenty days from the filing of the report. This judgment was reversed.
In the present case it appears that the purchaser notified the clerk of objection to the confirmation of the sale and thereafter, without objection, in open court, made an extended statement of the reasons why said sale should not be confirmed. It does not appear whether or not the first objection made to the clerk was within the twenty days and before the first motion of confirmation was made. Neither does it clearly appear whether or not the trial judge considered the oral statement of the purchasers as exceptions or objections to the report of the commissioners. If no notice of objection to the report was given to the clerk within twenty days or prior to the first motion for confirmation, and if the notice given and the subsequent oral statements in open court did not amount to objections or exceptions, then the trial judge was without discretion in setting aside the sale and ordering a resale. Upon the other hand, if the notice to the clerk was given before the expiration of twenty days or before the first motion for confirmation was made, and the trial judge permitted the oral statements as an amendment to the exceptions as pointed out in the McDevitt case, then the court had discretion to find the facts and order a resale.
The cause is remanded to the Superior Court of Scotland County for further findings of fact in accordance with this opinion.
Remanded.