{
  "id": 8522001,
  "name": "BART L. CLEARY and wife, CINDY CLEARY v. GORDON F. LEDEN and wife, BARBARA S. LEDEN and T. S. ROYSTER, JR.",
  "name_abbreviation": "Cleary v. Leden",
  "decision_date": "1988-03-15",
  "docket_number": "No. 879SC659",
  "first_page": "338",
  "last_page": "341",
  "citations": [
    {
      "type": "official",
      "cite": "89 N.C. App. 338"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "84 S.E. 2d 764",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1915,
      "opinion_index": 0
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    {
      "cite": "168 N.C. 466",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8660693
      ],
      "year": 1915,
      "opinion_index": 0,
      "case_paths": [
        "/nc/168/0466-01"
      ]
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    {
      "cite": "132 S.E. 2d 483",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1963,
      "opinion_index": 0
    },
    {
      "cite": "260 N.C. 239",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8574070
      ],
      "year": 1963,
      "opinion_index": 0,
      "case_paths": [
        "/nc/260/0239-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 303,
    "char_count": 5660,
    "ocr_confidence": 0.85,
    "pagerank": {
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      "percentile": 0.34063375895660325
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    "sha256": "19837003ab4a7e9b25d5a4e73f30a506f7f43b5eb8f521f156338007a09be942",
    "simhash": "1:3caa6622d59c1be0",
    "word_count": 891
  },
  "last_updated": "2023-07-14T22:39:00.818604+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Wells and Smith concur."
    ],
    "parties": [
      "BART L. CLEARY and wife, CINDY CLEARY v. GORDON F. LEDEN and wife, BARBARA S. LEDEN and T. S. ROYSTER, JR."
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nPetitioners make three assignments of error, all of which essentially contend that the trial court erred in making adjustments reflecting the respective parties\u2019 indebtedness in order to determine the net distribution of sale proceeds. We are not persuaded by petitioners\u2019 arguments.\nProceedings for partition are equitable in nature. Roberts v. Barlowe, 260 N.C. 239, 132 S.E. 2d 483 (1963). A sale for partition may be ordered and the rights of the parties adjusted from the proceeds of the sale. Id.\nThe method used by the trial court to determine the net distribution of sale proceeds was as follows:\nBid Price $138,000.00\nSold Subject to following Debts:\nLedens 14,871.11\nClearys 60,167.12\nGross Sale Price 213,038.23\nLess Expenses 7,776.20\nGross for Distribution 205,262.03\n73 Gross to Ledens 68,420.68\nLess Ledens\u2019 Debt 14,871.11\nNet Distribution 53,549.57\n2k Gross to Clearys 136,841.35\nLess Clearys\u2019 Debt 60,167.12\nNet Distribution 76,674.23\nPetitioners urge that the following method be used to determine the net distribution of sale proceeds because the sale was a \u201csubject to\u201d sale:\nBid Price $138,000.00\nLess Expenses 7,776.20\nGross for Distribution 130,223.80\n73 Gross to Ledens \u2014Net Distribution 43,407.93\n2k Gross to Clearys \u2014Net Distribution 86,815.87\nWe first note that a \u201csubject to\u201d sale means that the purchaser takes the property along with the existing liens and encumbrances against it. See Jordan v. Faulkner, 168 N.C. 466, 84 S.E. 2d 764 (1915). This fact, however, is irrelevant to the distribution of sale proceeds between the sellers in the present case.\nUnder petitioners\u2019 method, they would receive $10,141.64 more than they received under the trial court\u2019s method. Petitioners\u2019 proposed method fails to take into account the disparity of debt percentage between the parties. It also provides petitioners with a windfall at the expense of respondents.\nThe method used by the trial court took into account the variation between the percentage of ownership and the percentage of total indebtedness of the parties. The actual net distribution correctly reflects both parties\u2019 share of equity in the property. The trial court properly and equitably distributed the sale proceeds.\nThe judgment of the trial court is\nAffirmed.\nJudges Wells and Smith concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "John H. Pike for petitioner appellants.",
      "Royster, Royster & Cross, by James E. Cross, Jr., for respondent appellees."
    ],
    "corrections": "",
    "head_matter": "BART L. CLEARY and wife, CINDY CLEARY v. GORDON F. LEDEN and wife, BARBARA S. LEDEN and T. S. ROYSTER, JR.\nNo. 879SC659\n(Filed 15 March 1988)\nPartition \u00a7 9\u2014 distribution of proceeds \u2014consideration of parties\u2019 debts \u2014 distribution proper\nThe trial court properly and equitably distributed partition sale proceeds where its method of distribution \u2014adding the parties\u2019 debts to the bid price, subtracting expenses, dividing the proceeds into the proportions owned by the parties, and subtracting the parties\u2019 debts \u2014took into account the variation between the percentage of ownership and the percentage of total indebtedness of the parties, and the actual net distribution correctly reflected both parties\u2019 net share of equity in the property.\nAPPEAL by petitioners from Herring, Judge. Judgment entered 2 May 1987 in Superior Court, GRANVILLE County. Heard in the Court of Appeals 4 January 1988.\nOn 18 July 1986, petitioners Bart and Cindy Cleary filed a Petition for Sale for Partition to sell an office building in Oxford, North Carolina. Petitioners owned a two-thirds undivided interest in the building for which they owed $60,167.12 on a purchase money deed of trust. Petitioners owned their two-thirds interest as tenants in common with respondents Gordon and Barbara Led-en. Respondents owned a one-third undivided interest in the building and owed $14,871.11 on their interest. T. S. Royster, Jr. was joined in the proceeding as trustee under the separate deeds of trust of the individual parties.\nOn 12 August 1986, the Clerk of Superior Court of Granville County appointed John H. Pike and James E. Cross, Jr. as commissioners to sell the building at auction to the highest bidder after advertising the sale as provided by law. The commissioners published a Notice of Sale which provided that the sale was subject to all liens and encumbrances of record. The building was first auctioned on 12 September 1986 and commissioner Cross announced that the sale was subject to existing liens and encumbrances. Petitioners bid $80,000.00 but their bid was upset by respondent Gordon Leden and an Order of Resale was issued.\nOn 3 October 1986, Gordon Leden was the last and highest bidder for the property, bidding the sum of $138,000.00. On 20 October 1986, the Clerk of Superior Court signed an Order of Confirmation approving and confirming the sale. On 5 December 1986, the Clerk of Superior Court entered an Order which adjusted each of the parties\u2019 indebtedness in order to determine the net distribution of the sale proceeds. Under the Order, petitioners\u2019 net distribution was $76,674.23 and respondents\u2019 net distribution was $53,549.57. Petitioners owned a two-thirds (66.67%) interest in the building but held 80.18% of the total debt. Thus, their percentage of indebtedness exceeded their proportionate share in the building. The adjustment took into account the fact that petitioners\u2019 share of debt was 13.51% more than their proportionate share of ownership in the building.\nPetitioners appealed the Order and the case was heard before Judge Herring on 13 April 1987. On 2 May 1987, the trial court entered judgment which confirmed and ratified the Clerk\u2019s 5 December Order. From the judgment of the trial court, petitioners appeal.\nJohn H. Pike for petitioner appellants.\nRoyster, Royster & Cross, by James E. Cross, Jr., for respondent appellees."
  },
  "file_name": "0338-01",
  "first_page_order": 366,
  "last_page_order": 369
}