
    No. 2595.
    Tyer v. Charleston Rice Milling Company.
    November Term, 1889.
    Pending an action for foreclosure given to plaintiffs as executors, the owners of the property advertised it for sale at auction, whereupon an order was passed directing such sale to proceed, and declaring how the proceeds should be applied, and further directing “that in case the purchaser or purchasers shall not comply with the terms of their purchase within thirty days from the date of said sale, that the plaintiffs, or any of the parties to this action, shall have leave to apply during court, or at chambers, for an order of resale of the premises.” All parties to the cause consented to this order, and at the sale Russell, one of the parties so consenting, became the purchaser, who failed to comply. Thereupon, after notice to such purchaser, an order of resale was granted by Judge Kershaw, in which he directed one-third to be paid in cash before the biddings were closed. And it being brought to the attention of the court that Charles Whitney, who was not a party to the cause, held a mortgage on a portion of the property senior to plaintiff’s mortgage, but junior to a mortgage held by one of the defendants, he refused a motion directing Whitney to be made a party, but ordered “that the sale herein ordered be without prejudice to any rights which may be established by the estate of Charles Whitney in the mortgaged premises.”
    On appeal by the defaulting purchaser, held—
    1. That appellant could not object that there was no reference, no report on sales, and no rule served on him to show cause.
    2. There is nothing in Rule 53 of the Circuit Court Rules prohibiting a cash payment at the time of the sale.
    3. Whitney was not a necessary party, and, besides, his rights are protected. His claim is not such a cloud on the title as the court will regard.
    4. Plaintiffs, who were foreign executors, could sue on the bond and mortgage executed to them without obtaining letters testamentary in this State.
    March 26, 1890.
    
      W. M. Thomas, for appellant.
    
      Brawley §■ Barnwell, contra.
    Judgment affirmed.
   Opinion by

Mr. Chief Justice Simpson,  