Opinion
(Filed 2 May, 1934.)
Execution G a — Under facts found by clerk in this case it was not error for him to refuse to confirm execution sale and to order resale.
Where upon a motion to confirm an execution sale the clerk finds that the announcement of the auctioneer at the sale that the sale would stand open for twenty days chilled the bidding and that the sale was not conducted in a prudent and just manner, and that the price bid was grossly inadequate, it is not error for the clerk to decline to confirm the sale and to order a resale.
APPEAL by P. M. Dillon from Harding, J., at March Term, 1934, of IREDELL.
No counsel appearing for plaintiff.
A. B. Raymer for movant, Dillon.
J. G. Lewis for sheriff, Kimball.
Zeb. V. Turlington for defendant.
Motion by P. M. Dillon to confirm execution sale and to require sheriff to turn over to movant all personal property of the defendant offered at said sale on 2 December, 1933.
The facts found by the clerk are these:
1. The sheriff of Iredell County, under order of execution, levied upon the stock of goods belonging to the defendant and advertised the same for sale on 2 December, 1933.
2. The sheriff's representative announced at the sale that the same would stand open twenty days for a 10 per cent advance bid.
3. This announcement chilled the bidding.
4. The property offered for sale had a cash value of $3,000. It was knocked down to P. M. Dillon for $700. An increased bid of $1,000 was filed with the sheriff within ten days. The debts of the defendant are in excess of $3,300.
5. The bid of P. M. Dillon was grossly inadequate and the sheriff did not conduct the sale in a prudent and just manner, so as to realize a fair price for the property offered for sale.
Whereupon the clerk declined to confirm the sale and ordered a resale of the property. This order was approved by the judge of the Superior Court, and the movant appeals, assigning error.
The case is distinguishable from Weir v. Weir, 196 N.C. 268, 145 S.E. 281, cited and relied upon by movant, in that, it is found by the clerk: (1) that the announcement of the auctioneer chilled the bidding; (2) that the sale was not conducted in a prudent and just manner; (3) that the price bid was grossly inadequate.
Under the findings made by the clerk, there was no error in declining to confirm the sale. The rights and remedies of the parties are fully discussed in annotation: 69 L.R.A., 33.
Affirmed.