#### WACHOVIA BANK AND TRUST COMPANY, Administrator of Martin C. Freeman, v. EMMA MATTHEWS FREEMAN et al.

(Filed 23 November, 1927.)

Executors and Administrators — Sales—Deeds and Conveyances — Tender —Time Not tlie Essence — Change in Value of Hands.

Where upon the petition of an administrator the court appoints a commissioner to sell the lands of the intestate, encumbered by mortgage, and convey title upon receiving part cash and the balance in certain deferred payments, it is required that the commissioner tender proper deeds to the purchaser, with satisfaction slip, or cancellation of the mortgage, and while time may not be regarded as of the essence of the contract, the purchaser will not be required to accept the deeds if by a prolonged delay the values of the lands purchased have changed.

Appeal from Oglesby, J., at July Term, 1927, of Richmond.

The plaintiff filed a petition before tbe clerk to sell for assets certain real estate of which, its intestate had died seized: (1) The home place in Hamlet; (2) a lot on Spring Street; (3) four lots on Hamlet Avenue; (4) about 50 lots near the cemetery. A supplemental petition was filed in which the plaintiff alleged that the following offers for the purchase of the property had been made: for the home place $5,450, by Mrs. J. 0. Hedgepeth; for the lot on Spring Street $905, by S. P. Peele; for the lots on Hamlet Avenue $1,920, by J. S. Braswell; for the other lots $4,000, by H. B. Ingram, Vernon Allen, and J. S. Braswell. The clerk adjudged that the offers should be approved and that the terms of sale should be not less than one-third cash and the remainder in two equal annual installments, to be evidenced by notes bearing interest and to be secured by first mortgages on the property conveyed; and further, that a commissioner be appointed to execute deeds therefor to the respective purchasers upon payment in part, and the execution of notes and deeds of trust to secure them. A commissioner was appointed to make the sale and conveyance to the purchasers, and he filed a report to the effect that he had tendered deeds to the respective parties and that they had declined to accept them. An order to show cause was then issued and served upon J. S. Braswell individually and upon J. S. Braswell, H. B. Ingram, and Vernon Allen as joint bidders, and they filed answers alleging outstanding and unpaid mortgages on all the property. The controversy thus raised was referred by consent to R. C. Lawrence to determine and report all matters of fact and law. He made a report setting forth his findings of fact (to which there was no exception) and his conclusions of law, which are as follows:

1. The purchasers should not be relieved of their bids on account of any delay of the commissioner in tendering the deeds, because such delay *614was primarily due to the fact that the attorneys for the purchasers had not completed the examination of the title, and also because time is not of the essence of such a contract. Davis v. Martin> 146 N. 0., 281; Crawford v. Allen, 189 N. C., 434, and other cases.

2. As it was incumbent upon the sellers to tender a good and perfect title to the purchasers before the purchasers could be required to comply with the terms of their bids, it was incumbent upon the sellers to tender a proper satisfaction slip or cancellation of the mortgage held by W. R. Land, as well as a deed in proper form executed by the commissioner, and as there was no tender of such cancellation or satisfaction slip, executed by W. R. Land, the mortgagee, the purchasers could not be required to comply with the terms of their bids.

3. As a matter of technical law, the conclusion reached in the last above paragraph is true, notwithstanding the facts found by the referee in paragraph seventeen of the findings of fact.

4. As time is not of the essence of the contract, a good and sufficient tender might yet be made were it not for the change in value which has taken place since the contract with respect to the lands which are the subject of this action.

5. The referee therefore concludes that plaintiff is not entitled to enforce the bids of J. S. Braswell, and J. S. Braswell and others, and that the respondents are entitled to go without day.

The plaintiff excepted to the second, third, and fifth conclusions; also because the referee failed to conclude as a matter of law that the plaintiff was entitled to the relief demanded.

The judge overruled the exceptions and gave judgment for the defendants. The plaintiff excepted and appealed.

Biggs & Broughton for plaintiffs.

Gibbons & LeGrand and Bynum & Henry for defendants.

Pee. Cubiam.

In its petition to sell the intestate’s real property for assets the plaintiff alleged that mortgages in the aggregate amount of $12,000 were outstanding against all the property. When notice to show cause why they should not comply with their offer of purchase was served on J. S. Braswell individually and on Braswell, Ingram and Allen as joint bidders, they set up the lien of the mortgages and alleged that they had notified the commissioner that “the said mortgage liens would have to be paid and canceled of record as agreed upon on the date of said sale before the respondents would accept title to the same and pay the purchase price agreed upon.” The referee found as facts that the plaintiff had made an arrangement with one of the mortgagees whereby he was to accept the cash and notes of the purchasers and *615cancel bis mortgage, and tbat it was announced at tbe sale tbat tbis arrangement would be carried out; but tbat wben tbe commissioner tendered bis deed tbe mortgagee was not present and tbat no cancellation or release of bis mortgage bad been tendered tbe purchasers. Thereupon tbe referee held as a conclusion of law tbat it was incumbent upon tbe seller to tender a good and perfect title before tbe purchasers should be required to comply with their bids and tbat tbe plaintiff under tbe circumstances could not enforce tbe purchasers to accept tbe commissioner’s deeds and to comply with tbe remaining terms of their offer of purchase. Tbe presiding judge confirmed tbe referee’s report and held tbat tbe plaintiff could not enforce tbe bids. We find no error in tbis ruling and accordingly affirm tbe judgment.

Affirmed.