concurring in result only:
Although I concur in the ultimate judgment of the Court, I write separately to express my concern over the wisdom of adopting a bright-line rule of 5:00 p.m. on the day of the foreclosure sale for deposits to be made, in the absence of any specific provisions in the order or notice of sale. In my view, this Court has neither the authority nor legal support to establish such a rule.
Initially, because the requirements for a judicial sale are governed primarily by statute and Rule 71, SCRCP, and no provision sets forth a precise time for the payment of bid deposits, I believe the establishment of a five o’clock deadline is wholly within the province of our Legislature. See Henderson v. Evans, 268 S.C. 127, 130, 232 S.E.2d 331, 333 (1977) (“[I]t is not the province of [a court] to perform legislative functions.”).
Moreover, our case law is clear that the rules regarding such matters are discretionary with the selling authority, subject only to a requirement of reasonableness. See Ex parte Keller, 185 S.C. 283, 289, 296, 194 S.E. 15, 21 (1937) (interpreting the phrase “immediately after the sale” in a judicial sale order referencing a required 3% good faith deposit to mean either “immediately following [the] bid, or within a reasonable time thereafter on that day”) (emphasis added); Harrington v. Blackston, 311 S.C. 459, 464-65, 429 S.E.2d 826, 830 (Ct.App.1993) (“Except to the extent controlled by statute, the terms of a judicial sale are within the discretion of the court ordering the sale.”).
Reasonableness, in turn, depends on the circumstances of each sale. See Ex parte Floyd, 145 S.C. 364, 367, 142 S.E. 805, 807 (1928) (holding that even where the terms of a judicial *297sale order specified $500 be deposited on the bid “before 4 o’clock p.m. on the day of [the] sale,” the time for paying the deposit could be extended in the master’s discretion where warranted by the facts and circumstances, including the parties’ waiver of any time requirement); Brown v. Barnwell Mfg. Co., 46 S.C. 415, 422, 424-26, 24 S.E. 191, 193-95 (1896) (in holding that “[u]nder all the circumstances ... the sheriff should have, at least, allowed the purchaser all the time possible before the expiration of the legal hours of sale, on the day when the property was sold, for complying with his bid ...the supreme court, regarding appellant’s exception (7), wherein it was claimed the trial court erred in “holding and concluding as a matter of law that the [purchaser] had until the expiration of the legal hours of sale within which time to comply with the bid,” stated: “A careful consideration of the decree of the circuit judge satisfies us that the seventh [and other] exceptions were taken under a misapprehension of said decree. The language of the circuit court was intended merely to illustrate the spirit of our statute relating to resales by sheriffs.”) (emphasis added); Yates v. Gridley, 16 S.C. 496, 497, 504 (1882) (affirming sale to purchaser who failed to comply with exact terms of judicial sale, i.e., “cash sufficient to pay costs and disbursements of suit,” by paying such not on the day of sale in December but sometime in January; supreme court held the fact that the terms of the sale were not immediately complied with when they were met “within so short a time afterwards” was insufficient to annul purchaser’s deed).
In addition, I think the decision to craft such a rule would conflict with S.C.Code Ann. § 15-39-690 (1977), which states: “The hours of [a judicial] sale shall be between eleven and five o’clock.” If, under the terms of the statute a judicial sale can occur as late as 5:00 p.m. on the date of sale, then, under the proposed rule, a purchaser would have no time to make the required deposit.
Finally, I believe an absolute five o’clock deadline would not comport with standard principles of equity governing judicial sales. Accordingly, because the statutory scheme governing foreclosure sales is silent and our cases in the past have imposed a reasonableness requirement but not an absolute deadline, I would decline to do so now.