Where a court of equity is resorted to, for the sale of land, after the sale is ordered to be confirmed (by which the bid becomes accepted, if the master informs the court that the bidder refuses to comply with the terms of the sale, no order prejudicing the rights of the bidder can be made until he is made a party to the proceedings by the service of a rule upon him to show cause.
PEARSON, C. J.
When the case was here before (ante 212) we pointed out the "orderly mode of proceeding," where the agency of a Court of Equity is resorted to in order to sell land.
On the coming in of the master's report, if the Court is satisfied that the interest of the petitioner, for whom the Court is acting, has been attended to, the first order is to confirm the sale. The (308) effect of which is to accept the bid of the purchaser, which is necessary, in order to "bind the bargain," so far as the petitioner is concerned. The purchaser is not a party to this order. He is not, then, before the Court, and of course his rights are not in any way prejudiced by the order of the confirmation.
Whereupon, the Court being informed by the Master that the purchaser declines to comply with the terms of the sale, a rule is taken on him to show cause; which may be returned instanter if the purchaser is present. The object of the rule is to bring the purchaser before the Court, and upon its return both parties are then heard, and the Court adopts one of the three orders set out in our former opinion.
His Honor erred in making any further order until the return of the rule; and indeed, the order which is made assumes that the purchaser will not be able to show any good cause, and proceeds to direct what shall be done in that event.
We presume his Honor was misled by the orders made in Harding v. Yarbrough, ante 215, which the reporter appends as a note to this case on former hearing. In that case, the purchaser made no difficulty, because of a defect in the title, or any irregularity in the mode of conducting the sale, or otherwise. The sole difficulty grew out of an inability to give the security. So in Harding v. Harding, 18 Eng. Ch. 514, from which the order in Harding v. Yarbrough was taken, there had been a reference, as to the title (which is always done in England, on account of the very complicated condition of title in that country), and the only object was to compel the purchaser to comply with the terms of sale. In our case the purchaser had a right to be heard in reference to his objections to the manner of making the sale, or to the title, or any other ground of objection, and the object of the rule was to give him a day in Court, and an opportunity of being heard. So the entry in Harding v. Yarbrough had no application.
This opinion will be certified that further proceedings may be taken in the Court below; the orders in that Court being reversed, except (309) so much as confirms the sale, and directs a rule on the purchaser to show cause at the next term.
PER CURIAM. Reversed.
Cited: Edney v. Edney, 80 N.C. 84; Capel v. Peebles, Id., 93; Farmer v. Daniel, 82 N.C. 157; Burgin v. Burgin, Id., 199; White, Ex parte, Id., 380; Harrell v. Blythe, 140 N.C. 416.