Morehead v. . Bennett

*749 BarNhill, J. Plaintiff asserts tbat no abandonment of tbe property subject to assessment was ever effected by tbe execution of any instrument of conveyance or release and tbat tbe city of Durham, on 19 August, 1940, executed a disclaimer, renouncing all claim to said property, but reserving its tax and assessment liens. Hence, be'argues, title to all of tbe property of tbe insolvent corporation vested in bim. Plaintiff’s title is not dependent upon wbat tbe city did or did not receive. Nor is tbe effectiveness of tbe order directing an abandonment material. He acquired title to only so much of tbe property as was sold by tbe receiver and conveyed in bis deed. Tbe receiver bad no authority to sell tbe real estate of tbe corporation except upon tbe order of tbe court and be could sell only such as tbe court directed. 23 R. C. L., 98. Upon sale being made, it was tbe duty of tbe purchaser to see tbat such receiver was authorized by tbe court to make sale; tbat tbe sale was made under such authority; tbat tbe sale was confirmed; and tbat tbe deed accurately described tbe land which tbe receiver was directed to sell. 23 R. O. L., 101. There can be no judicial sale except upon a preexisting order of sale. Freeman, Void Jud. Sales, 3rd, p. 1. If a sale be void because it included property not described in tbe decree or order of sale, an order confirming it is necessarily inoperative. Freeman, etc., p. 73. Tbe order directing the sale and tbe order confirming it give vitality to tbe purchase. Freeman, etc., 74. Both are essential. Neither, alone, is sufficient. Hence, to ascertain tbe receiver’s authority and to determine wbat land was conveyed to plaintiff tbe order of sale, tbe report of sale and tbe decree of confirmation must be considered together as one instrument. This property was expressly excepted from tbe order of sale. Tbe property sold was duly advertised and the sale was bad “pursuant to tbe order of sale.” It was so reported to tbe court and tbe decree of confirmation so recited. It is, therefore, apparent tbat tbe receiver did not convey or attempt to convey any of tbe property which be was directed to abandon to tbe city. This conclusion is confirmed by tbe deed itself. Express reference is made to tbe order of sale and tbe sale thereunder, and tbat part of tbe decree which excepted tbe property to be released to tbe city is quoted verbatim. Tbe report by tbe receiver tbat be bad sold tbe property of tbe corporation, incorporating a description which, standing alone, is sufficient to include all tbe property owned by tbe corporation at tbe time of tbe appointment of tbe receiver, as confirmed by tbe court, is not sufficient to pass title to tbe land directed to be released and abandoned to tbe city. Tbe record as a whole discloses tbat it was not so intended. *750 Likewise, tbe suggestion that tbe judge confirmed tbe sale of land not included in but expressly excepted from tbe original order and tbus validated tbe sale of tbe locus in quo is without merit and cannot be sustained. Tbe plaintiff, under tbe deed to bim from tbe receiver, bas no just claim to tbe lot in controversy and tbe other land “directed to be abandoned.” To whom tbe property belongs since tbe city bas disclaimed title thereto is not at present our concern. That is another matter. Tbe judgment below is Affirmed. DeviN, J., not sitting.