Marsh v. . Nimocks

Citations

• 29 S.E. 840
• 122 N.C. 478
• 1898 N.C. LEXIS 289

Syllabus

<p>Action Against Bidder at Judicial Sale — Judicial Sale —Raising Bids — Default of Purchaser — Deficiency.</p> <p>1. The Court ordering a judicial sale of lands has all the powers necessary to accomplish its purpose, and when relief can be had in the pending action it must be sought by a motion in the cause, and not by an independent action.</p> <p>2. An independent action will not lie against a defaulting bidder at a judicial sale for the amount of his bid, or against one who has raised the bid at a sale for the deficiency between the original bid and the price bid and approved on a resale, unless the action in which the sale was made has been closed by final judgment. The remedy against the defaulting bidder is by motion in the cause.</p> <p>3. Where a judicial sale has been set aside and a resale ordered, on an offer of 10 per cent, advance on the amount bid, the commissioner should start the resale at the advanced bid, and, in default of other bids, should declare the person making the advanced bid to be the purchaser at such price and, on the latter’s failure to comply with the purchase, a motion should be made, on notice, in the pending action, for him to show cause why judgment should not be rendered against him.</p>