concurring: I concur in the result, because the Judge has found.as a fact, and there is evidence to support it, that by reason of “the actual expenditure by Mosely and the enhanced value of the land, due to bis energy and diligence, the bid by bim is a more desirable disposition of the property” than the increased amount in the enhanced bid offered by the appellant.
There are many authorities that tbe maker, of an advance bid is entitled to appeal, if it is refused (Attorney-General v. Navigation Co., 86 N. C., 408), where tbe Court entertained such an appeal and affirmed tbe order of tbe Judge reopening tbe bids. “A bidder at a marshal’s sale is sufficiently a party to tbe proceeding to be entitled to appeal.” Kneeland v. Loan & Trust Co., 136 U. S., 93; Blossom v. R. R., 1 Wall., 662; Butterfield v. Usher, 91 U. S., 248; Hinkley v. R. R., 94 U. S., 468; Williams v. Morgan, 111 U. S., 698, and many others.
Tbe Court will not open tbe bids after confirmation, except in cases of fraud, but tbe settled practice in our Courts (though tbe practice is different in some of tbe other States) is to set aside a sale upon an offer of an advance of 10 per cent, if made before confirmation. Vass v. Arrington, 89 N. C., 13; Blue v. Blue, 79 N. C., 69; Wood v. Parker, 63 N. C., 379; In re Bost, 56 N. C., 482; Daniel Ch. Pr., 1465.
In Dula v. Seagle, 98 N. C., 458, 460, it is said: “It is well settled that an advance bid of 10 per cent is sufficient grounds for reopening tbe bidding wben tbe performance of tbe offer is properly secured.” To same effect, Clement v. Ireland, 129 N. C., 220, and White ex parte, 82 N. C., 377; Hinson v. Adrian, 92 N. C., 121; Childress v. Hart, 32 Tenn., 487; Wilson v. Shields, 62 Tenn., 65; Reese v. Copeland, 74 Tenn., 190; Dupuy v. Gorman, 77 Tenn., 144; Todd v. Mfg. Co., 84 Va., 586; Moore v. Triplett, 96 Va., 603; Bank v. Jarvis, 24 W. Va., 805.
This is evidently the legislative construction in this State, for chapter 146, Laws 1915, requires a reopening of tbe bids upon an advance of 10 per cent where tbe price does not exceed $500, and 5 per cent where it does exceed that amount, in all cases of a public sale of real estate by an executor or by any one under power of sale in a will or in tbe foreclosures of mortgages and deeds in trust on real estate, thus extending *278tbe protection of reopening tbe sale upon an advance bid even where there is default upon a contract between tbe parties, as in a mortgage or deed of trust. This practice of reopening bidding upon an advance bid has always been followed in our State, and has proved a very great protection to those who are “in tbe bands of the court.”
In a late case (Harrell v. Blythe, 140 N. C., 415) Walker, J., held, citing many authorities, that tbe Court could, even when there is no ' advance bid, refuse to affirm and order a ‘new salé, in its discretion, if it deemed tbe bid inadequate. An advance bid is plenary evidence that tbe first bid was inadequate.