HENDERSON COUNTY, NC - COURT - Rufus Edney v. Thomas A. Edney, Jan 1879
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RUFUS EDNEY, Administrator [of the estate of Balis M. Edney], 
v. THOMAS A. EDNEY and others. Practice -- Judicial Sale.
North Carolina State Supreme Court, January Term, 1879; 80 NC 82:

Rufus Edney is Samuel Rufus Edney, son of the Reverend Samuel Edney, Jr., as
are "Thomas A. Edney -- and others" -- , all of whom are brothers of the
deceased, Baylus M. Edney

One who, as commissioner of the Court, sells the real estate of a decedent for
assets, is understood to offer an absolute and indefeasible title; and the
purchaser will not be compelled to pay his money and take a title
substantially defective, unless the sale be made of an estate or interest
short of the entire title, and so mentioned in the decree, or clearly implied
from the nature of the sale. Petition filed before the Clerk and tried, upon
issues joined, at Fall Term, 1878, of Henderson County, before Avery, J.

This was a petition filed by Rufus Edney, administrator of Baylus M. Edney,
for a license to sell the real estate of his intestate, including a tract
called the "Myers Farm" and was begun by summons returnable in the office of
the Clerk of the Superior Court of Henderson County, and after all the heirs
at law of the intestate were regularly made parties and issues of fact joined
in the pleadings, the cause was transferred to the docket of the Superior
Court for trial of the issues at term. At Fall Term, 1871, of the Superior
Court of Henderson, by consent of all parties, it was referred to R.B. Vance
to state and report to Court an account of the administration of the estate by
the plaintiff, and the account was taken and reported to Court as ordered. it
appearing from the said account that there was a necessity to sell the real
estate of the intestate, it was decreed at Fall Term, 1875, that the plaintiff
have license to sell the same, and amongst the sales made he reported to the
Court a sale of the Myers farm in four parcels -- two to W.G. Rice at $1,920,
and two to O.H. Moss at #1,375, of which sums 20 per cent was paid down in
money on the day of the sale and the residue secured by the bonds of the
purchasers respectively, with good surety, payable at twelve months, and on
report of sales filed, an order of confirmation was regularly made by consent
of all parties. At the maturity of the bonds given by W.G. Rice and O.H. Moss,
as above set forth, the plaintiff, as commissioner, put the same in a course
of collection by instituting actions thereon, and after the pleadings were
filed and issues joined by consent of parties the two actions were
incorporated into the cause in which the license to sell was obtained, upon
the agreement that they were to be taken and treated as motions in that cause,
and the result of the motion in one to be accepted as the result in the other.

On the hearing of the motion the purchasers resisted judgment against them on
the ground of a defect of title in the heirs of B.M. Edney, and on the further
ground of false representations by the plaintiff as to the quantity of
interest in the Myers farm owned by his intestate, made at the time of the
sale, and inducing them to become bidders. It was admitted at the hearing of
the motion that B.M. Edney, the intestate, owned at his death only one-
fifteenth of the land in question, in fee, three out of five life-estates
therein, and there being a conflict of evidence touching the alleged false
representations made by the plaintiff at the time of the sale, his Honor made
and submitted certain issues to a jury as to that matter, who found that the
plaintiff represented at the sale that his intestate owned and he was then
selling two undivided thirds of the Myers farm; and on this response of the
jury his Honor adjudged that the order of confirmation theretofore made be
vacated, and the sales to Rice and Moss be set aside and the bonds sued on the
cancelled and returned to the purchasers. He further adjudged that plaintiff
pay back to said Rice and Moss the amounts paid by them as a cash payment on
the day of the sale, with interest thereon; and from this judgment the appeal
is taken.

J.H. Merrimon for plaintiff.  M.E. Carter for defendants.

Justice Dillard wrote the majority decision:

We concur in the judgment of his Honor. In sales under a decree of the Court,
a sale made by a commissioner appointed for that purpose ascertains a proposer
merely on the terms specified in the decree, and on compliance with the terms
of sale he acquires the right to be reported to Court on his proposal, and
when the report is made and a confirmation is adjudged by the Court the
bargain is struck and each party then occupies the status to be entitled to
have a specific execution of the contract as against the other, that is to
say, the vendors, or holders of the title, making the sale through the agency
of the Court, by the order of confirmation have the right to call on the
purchasers to pay the money and take the title, and the purchaser has the
reciprocal right to call on the vendors to accept the money and execute title
to him. On confirmation of the sale the orderly proceeding in equity was a
rule on the purchaser to show cause against specific performance of the
contract, and under our present system it is a motion in the cause for
judgment on the bonds for the purchase-money. Under either system the
purchaser is thus brought in and connected with the cause and has an
opportunity to show cause, if any he have, against an order for specific
performance under the equity system, or against the rendition of judgment on
his bond for the purchase-money under our North Carolina system. In accordance
with this practice, the two suits irregularly brought against W.G. Rice and O
.H. Moss, after being put at issue, were by consent to be treated as motions
in the cause still pending, in which the decree for the sale of the lands had
been made.

The purchasers being thus for the first time brought into Court, and having
opportunity to show cause against the confirmation of the sale and its
specific enforcement, had the liberty to defeat the motions for judgment by
any matter or facts which on a regular bill in equity would induce a
chancellor, in the exercise of a legal discretion, to decline to decrease
specific performance against a vendee. Being brought into court in defense of
the motion for judgment, the purchasers were found by the jury, on an issue
submitted to them, to have purchased the Myers farm upon the representation by
the plaintiff, the administrator of B.M. Edney, and the instrument of the
Court, that his intestate was the owner of two undivided thirds of that farm.
This fact, with the admission before the Judge that the intestate in truth and
reality owned but one-fifteenth in fee, and three shares out of five for life
in the land constituted the cause shown against the rendition of judgment. And
the question is, How ought his Honor to have held these facts?

A court of equity will not enforce specific performance of a contract where
mutuality of performance cannot be had. And here, whilst the purchasers are
proceeded against as able to pay for two-thirds of the Myers farm, it is
admitted that the heirs of B.M. Edney own only one-fifteenth, in fee, and
three shares out of five for life, and therefore they cannot be compelled to
perform on their part. Again, specific performance will not be decreed if
there has been willful misrepresentations by a party intreated and conducting
the sale, reasonable relied on by the purchaser and constituting a material
inducement to the contract. And here we have a false representation made by
the plaintiff, who, from his access to the papers of is intestate, may be
taken to know the extent of his title, and who, therefore may be reasonably
relied on by the purchaser when he represents the quantity of interest to be
two-thirds; and, under this state of things, it would be against good
conscience to hold the purchaser to pay for the land.

Besides these grounds influencing the discretion of a chancellor against a
decree for the specific performance of the contract, it is settled in this
State that in judicial sales a good title is to be deemed as offered, and the
purchaser will not be compelled to pay his money and take a title
substantially defective unless the sale be made of an estate or interest short
of the entire title, and so expressly mentioned on the face of a decree or
clearly implied from the nature of the sale. To this rule we fully assent as
material to establish a confidence in sales made by authority of the Court and
as conducing to beget fair competition of bidders. And we agree that the
doctrine of "caveat emptor" should not apply to such sales, unless there is
something in the face of the decree indicating a sale of some estate or
interest defective, or less than a whole title, and thereby putting the
purchaser on his guard and at his own risk. Tested by these principles, in
this case it will appear that in the petition and decree a description is
given of the land to be sold in language broad enough to impress the
purchasers, if they were notified thereof, that the sale was of the whole
title and not a fragment, and thereby they would be drawn in to bid upon the
confidence that a court of equity would not take their money unless the thing
bought could be effectually conveyed.

We conclude, therefore, that upon the general doctrines of a court of equity
above enunciated and upon the authority of the case of Shields v. Allen, the
purchasers should have been released from their contract and put in status
quo, as was decreed by his Honor, and that the lands should be sold again on
terms indicating the situation and extent of the title proposed to be sold.

No error. Affirmed.