#### E. L. McCORMICK and J. G. McCORMICK v. D. A. PATTERSON et al.

(Filed 14 September, 1927.)

1. Partition — Sales—Report of Commissioners — Objections and Excei)-tions — Statutes.

In proceedings for partition of lands under the provisions of C. S., 3243, 3230, requiring the commissioners appointed for tbe sale of the lands to file their report of the sale, and that if no exception thereto is filed within twenty days the same shall be confirmed, there is no' discretion in the court for the judge to order a resale for mistake of facts when the sale has been made in accordance with law, unless the exceptions of the purchaser have been substantially made within the twenty days prescribed.

*2172. Same — Resale—Courts—Discretion.

C. S., 3243, 3230, by tbe use of tbe word “shall” makes it a prerequisite to tbe power of tbe court to order a resale that exceptions in a recognized legal way be made to tbe confirmation of tbe report of tbe commissioners appointed to sell lands in partition proceedings witbin tbe twenty days prescribed therein.

3. Same — Substantial Compliance.

Where three commissioners for tbe sale of lands in partition proceedings for a division have regularly sold the locus in quo as provided by law, and two of them have filed tbe report of sale, and tbe other protests against its confirmation upon tbe ground of a mistake in fact and appears before the clerk and gives his reason therefor witbin tbe statutory time, bis conduct may amount to a substantial compliance with the statute leaving the matter witbin the power of tbe court to order a resale.

4. Same — Appeal and Error — Record—Remand.

Where it does not appear of record in tbe Supreme Court on appeal whether exceptions have been duly made to the report of the commissioners appointed for the sale of land for partition within the twenty days prescribed by statute, or whether the trial judge has considered the conduct of the purchaser as a substantial compliance with the statutes as to taking exceptions to the report, and the court has ordered a resale of the lands, the case will be remanded to the end that such further facts therein be found as will sufficiently present the case for the determination of the Supreme Court.

Civil action, before Finley, J., at November Term, 1926, of Scotland.

At tbe June Term, 1925, of tbe Superior Court of Scotland County, Bryson, J., in a partition proceeding, entered a judgment decreeing a sale for partition of 190 38/100 acres of land and appointing E. C. Lawrence, Henry A. McKinnon and Dickson McLean as commissioners of court to make tbe sale, in front of tbe postoffice in tbe town of Max-ton. Pursuant to said judgment tbe said commissioners exposed said land to public sale, as required therein, on 2 November, 1925. Tbe report of tbe sale was bled tbe 24th day of December, 1925, and signed by only two of tbe commissioners, to wit, Henry A. McKinnon and Dickson McLean, tbe other commissioner failing to sign said report. “Shortly after tbe other two commissioners filed their report” tbe third commissioner “advised tbe clerk of bis desire to be beard in opposition to tbe confirmation of tbe report” filed by tbe other commissioners. On 23 April, 1926, after notice a motion was made before tbe clerk to “confirm said report.” At this time tbe third commissioner appeared in opposition to tbe confirmation of tbe report. It appearing that tbe clerk was related to some of tbe parties to tbe controversy, a consent *218order was entered, transferring tbe matter to be beard before tbe judge. Tbe cause came on regularly to be beard by T. B. Finley, judge presiding, at tbe November Term, 1926, of Scotland Superior Court. At tbis bearing one of tbe parties in interest caused tbe report of tbe two commissioners to be read and moved tbe court to require tbe third commissioner to file a report. Tbe commissioner thereupon asked to be beard, and stated that tbe bid of tbe purchasers bad been induced by a material mistake of fact, in that tbe purchasers who were acting together, bad bid $115 per acre for tbe land, when, in truth, they were raising their own bid, due to a mistake of fact, and that tbis mistake bad not been discovered until after tbe sale bad closed. After the'statement of tbe commissioner a motion was made that be be required to file a report as commissioner, but tbe court stated that it would treat tbe evidence in lieu of a written report. Thereupon motion was made for a confirmation of tbe report filed by tbe other two commissioners. Tbis motion was overruled and tbe court adjudged: “And it appearing to tbe court that tbe last bid put upon tbe property was induced by a mistake of fact, and tbe court in tbe exercise of its discretion being of tbe opinion that tbe report should not be confirmed, but that tbe land should be resold, it is thereupon considered and adjudged that tbe written report so filed by the two commissioners aforesaid be not confirmed; but tbe commissioner shall proceed to hereafter sell tbe lands, to be sold in tbe same way and manner as though it bad never been sold,” etc.

From tbe foregoing judgment tbe plaintiff appealed.

J. Bayard Clark for plaintiffs.

James B. Proctor for defendants.

Bbogdeh, J.

Tbe question of law is tbis: In a sale of land for partition, can tbe court, in its discretion, refuse to confirm tbe report of commissioners, when such report has been filed more than twenty days and no objection is made thereto until after a motion for confirmation is lodged?

C. S., 3243, requires commissioners in partition sales to file reports of sales and provides that “if no exception thereto is filed within twenty days tbe same shall be confirmed.” C. S., 3230, with respect to exceptions to reports of actual partition contains tbe same provision.

In Floyd v. Rook, 128 N. C., 10, an actual partition of lands bad been made. Tbe commissioners filed a report. After a lapse of about sixty days exceptions were filed to tbe report of commissioners and a motion made to set aside tbe sale. Tbe trial judge refused to bear tbe exceptions to tbe report on tbe ground that they bad not been filed *219within twenty days after tbe filing of the report of the commissioners, because in such case the court had no power in law to hear the exceptions. This Court held that the language of The Code, sec. 1896, now 0. S., 3230, “is peremptory and cannot be explained or altered by judicial decree. . . . That requirement of The Code is a rule of law and exceptions filed after twenty days have passed from the filing of the report of the commissioners are too late to be considered, and it makes no difference whether the report has been confirmed or not when the exceptions are filed, if they are filed after the time allowed by law.” The Floyd case, supra, has been cited in two other decisions of this Court, to wit, McDevitt v. McDeviit, 150 N. C., 644, and Upchurch v. Upchurch, 173 N. C., 88. HoTce, J., in the Upchurch case, referring to the exceptions in the Floyd case, said: “Doubtless they were for some irregularities in the proceedings or because of some inequitable adjustment. In either case they were known to the parties at the time the partition was made or when the report was filed, and such objections come more nearly within the express terms and purpose of the statute.” In other words, the Upchurch case holds that exceptions as to irregularities or inequitable adjustment “come more nearly within the express terms and purpose of the statute” and do not “impair the power of the court as to confirmation of judicial sales for inadequacy of price, evidenced by an increased and sufficient bid made before the proposed purchaser has appeared and moved for an acceptance of his bid.” So that, an increased bid may be accepted by the court and a resale ordered after twenty days, provided the proposed purchaser has not theretofore moved for an acceptance of his bid. But if a motion is made for a confirmation of sale before the increased bid is offered, then the court is without discretion in the matter and must confirm the sale. As we understand it, this is the principle declared in Ex parte Garrett, 174 N. C., 343. In that case the Court said: “It may also be noted that in all special proceedings, except for partition, in which a report is to be filed, the'statute (Rev., sec. 723, now C. S., 763), provides that if no exception is filed to the report within twenty days the court may confirm the same, on motion of any party, while in the statute before us (Rev., sec. 2513, now C. S., 3243), referring to partition, the word used is shall, thus indicating a purpose to distinguish between the two, and in one case resting a discretion in the court, and in the other making it obligatory to act.” Under these decisions, therefore, the law is that, under C. S., 3243, exceptions must be filed or an increased bid placed upon the purchase price within twenty days or before a motion to confirm the sale is made.

*220In tbe case before ns tbe trial judge ordered a resale in tbe discretion of tbe court. Tbe correctness of tbis ruling depends upon tbe sole question as to whether or not exceptions have been filed within twenty days or before tbe motion for confirmation of tbe sale was made. In contemplation of C. S., 3243 an exception is an objection to tbe regularity of tbe proceedings or sale or because of “inequitable adjustment.” Were exceptions or objections made to tbis sale within twenty days or prior to tbe time of tbe motion for confirmation? Tbe record in tbe cause states: “No exceptions have ever been filed to said report.” However, it further appears in tbe record that “shortly after tbe other two commissioners filed their report, tbe purchasers advised tbe clerk of a desire to be beard in opposition to tbe confirmation of tbe report.” It further appears that thereafter on 23 April, 1926, a motion to confirm tbe report was made for tbe first time, and tbe purchasers appeared in opposition to tbe confirmation of said report. When tbe cause came on for bearing before tbe trial judge tbe purchasers were still present, resisting tbe confirmation of tbe sale.

Tbe law does not require strict formality in tbe filing of exceptions. For instance, in McDevitt v. McDevitt, 150 N. C., 644, tbe defendant went to tbe clerk before tbe expiration of twenty days and notified him that be desired to file exceptions to tbe report. Thereupon tbe clerk entered tbe following memorandum upon tbe record: “George McDevitt, tbe defendant, comes into court and objects to tbe report of tbe commissioners in tbis cause and asks that tbe same be not confirmed.” Later on, amended exceptions were filed. Upon tbe bearing, tbe clerk confirmed tbe report upon tbe ground that no exception bad been filed within twenty days from tbe filing of tbe report. Tbis judgment was reversed.

In tbe present case'it appears that tbe purchaser notified tbe clerk of objection to tbe confirmation of tbe sale and thereafter, without objection, in open court, made an extended statement of tbe reasons why said sale should not be confirmed. It does not appear whether or not tbe first objection made to tbe clerk was within tbe twenty days and before the first motion of confirmation was made. Neither does it clearly appear whether or not tbe trial judge considered tbe oral statement of tbe purchasers as exceptions or objections to tbe report of tbe commissioners. If no notice of objection to tbe report was given to tbe clerk within twenty days or prior to tbe first motion for confirmation, and if tbe notice given and tbe subsequent oral statements in open court did not amount to objections or exceptions, then tbe trial judge was.without discretion in setting aside tbe sale and ordering a resale. Upon tbe other band, if tbe notice to tbe clerk was given before tbe *221expiration of twenty days or before tbe first motion for confirmation was made, and tbe trial judge permitted tbe oral statements as an amendment to tbe exceptions as pointed out in tbe McDevitt case, tben tbe court bad discretion to find tbe facts and order a resale.

Tbe cause is remanded to tbe Superior Court of Scotland County for further findings of fact in accordance witb tbis opinion.

Remanded.