Bladen County v. . Breece

"WinbobNE, J. This appeal presents these determinative questions: (1) Is a judicial sale of real property ordered to be held “on any day except Sunday” and not held on Monday or on one of the first three days of a term of Superior Court of the county, void as a matter of law ? (2) If so, are purchasers at such sale and subsequent grantees charged with notice thereof ? An affirmative answer to each is firmly established in the law in this State. Statutes, relating to and specifying dates and places of sales of real property under execution and under order of court, varying from time to time through more than a hundred years, culminate in the reenactment of C. S., 690, by Public Laws 1931, ch. 23, which is so far as pertinent to case in hand, reads: “All sales of real property sold under order of court shall be sold at the courthouse in the county in which all or any part of the property is situate on any Monday in any month or during the first three days of any term of the Superior Court of said county, unless in the order directing such sale some other place and time are designated and then it shall be sold as directed in such order on any day except Sunday, after advertising as required by law.” These statutes have been the subject of a long line of decisions of this Court. These are to the effect that a sale of real property under execution or under order of court on a day and at a place other than one prescribed by the statute is void; and that deed founded thereon is inoperative and void. McIntosh, N. C. Prac. & Proc., page 848, sec. 730. *547 Mordecai v. Speight, 14 N. C., 428; Avery v. Ross, 15 N. C., 554; S. v. Rives, 27 N. C., 297; Brooks v. Ratcliff, 33 N. C., 321; Briggs v. Brickell, 68 N. C., 239; Wade v. Saunders, 70 N. C., 270; Mayers v. Carter, 87 N. C., 146; Dula v. Seagle, 98 N. C., 458, 4 S. E., 549; Wortham v. Basket, 99 N. C., 70, 5 S. E., 401; Loudermilk v. Corpening, 101 N. C., 649, 8 S. E., 177; Johnston County v. Smith, 203 N. C., 255, 165 S. E., 707. In Wortham v. Basket, supra, Merrimon, J., said: “It is the just purpose of the statute . . . regulating sales of real property under execution or by order of court, that they shall be made at prescribed times and places so that all persons may know when and where to attend to purchase such property to be sold. The time and place of such sales are fixed by law and everyone takes notice of this. . . . There are other minor details prescribed by the statute, . . . but the time and place are established by it, and a due observance of them is essential to the validity of the sale, and, also, the deed executed by the sheriff to the purchaser in pursuance of it. So that such a sale made at a place or time, not prescribed by law, and a deed of the sheriff executed in pursuance thereof are inoperative and void, unless in possible cases when the execution debtor by his assent in good faith at the time of sale waives the statutory requirements.” In Loudermilk v. Corpening, supra, considering a sheriff’s deed, the Court stated: “We are of opinion that it was inoperative and void on the ground that the sale of the sheriff upon which it was founded was not a lawful one, it having been made on a day other than a day prescribed by the statute prevailing at the time it was made on which the sale of real estate under execution might be made. . . . It is settled that a sale of real estate made on any day other than as prescribed by the statute in a case like this is absolutely void.” In Johnston County v. Smith, supra, an action to foreclose tax sale certificate, wherein there was order of resale after advertising “as provided by statute,” the Court held that a sale on Wednesday, 15 June, 1932, which was not “during the first three days of any term of the Superior Court of said county” when there was no order designating some other time, is void. The opinion therein written by Clarkson, J., concludes that “under facts and circumstances of this cáse, we think the purchaser must take cognizance of the statute, and the pretended sale was ineffectual to pass title for the reasons given.” The statute there considered is the statute applicable here. In the absence of fraud or the knowledge of fraud, one who purchases at a judicial sale, or who purchased from one who purchased at such sale is required to look to the proceeding to see if the court had jurisdiction of the parties and of the subject matter of the proceeding, and that the *548 judgment on its face authorizes the sale. Graham v. Floyd, ante, 77, 197 S. E., 873, and cases cited, including Millsaps v. Estes, 137 N. C., 536, 50 S. E., 227; 70 L. R. A., 170, 107 Amer. St. Rep., 496. In the instant case the defect appears upon the face of the record. The order discloses direction that “said sale may be bad on any day except Sunday” without designating a day. It is, therefore, no authority to sell on any day other than those specified in the statute. The report of sale shows that it was held on 25 June, 1936. That day was Thursday — a day not named in the statute. With notice of these facts the purchaser, and those claiming title under him, are chargeable. It is not here necessary to consider the validating provisions of C. S., 690, as contained in Public Laws 1931, ch. 23, and as contained in Public Laws 1937, ch. 26. The former relates to sales theretofore made. The latter does not affect then pending litigation. This action was then pending. The judgment below is Affirmed.