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North Carolina Reports: Cases Argued before the State Supreme Court



Execution and Judicial Sales—Statutes—Terms of Court


1. A sale of real property under execution or by order of the Courts must be made at the times and places prescribed by the statute, (The Code. §§ 454-472,) and if not so made they are void, unless the debtor in good faith, at the time of the sale, waives a compliance with the statutory requirements in these respects.
2. Where there are several statutes relating to the same subject, as here, regulating the terms of the Superior Courts, they will be so interpreted, if possible, as to secure harmony in their operation and effectuate the general purpose of the legislation.

This is a Civil Action to recover land, and was tried before Shipp, J., at Fall Term. 1887, of Vance Superior Court.
Issues of fact having been raised by the pleadings, putting directly in question the plaintiff's title, he put in evidence and relied upon a deed of conveyance executed to him by the Sheriff of the County of Vance, dated July 2d, 1883, purporting to convey to him the land in question in pursuance of a sale thereof made by that Sheriff under and by virtue of au execution issuing from the Superior Court of the County named, commanding a sale of the land. The defendant objected to the admission of this deed in evidence, upon the alleged ground, among others, that it was void, " because the sale at which plaintiff purchased, and under which the deed was executed, was made on the first Monday in June, 1883, and that a regular term of the Superior Court of Vance County was held during that month, to-wit: on the second Monday, and that the sale could only be made during the first three days of the term."
The Court overruled the objection, and this is assigned as error. There was a verdict and judgment for the plaintiff, and the defendant appealed to this Court.


Messrs. W. H. Check, J. B. Batchelor and John Devereux, Jr., for the plaintiff.
Mr. T. M. Pittman, for the defendants.


Merrimon, J., (after stating the case). It is the just purpose of the statute (The Code, §§ 454-472,) 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. A principal object is to secure as far as practicable a fair, open, public sale, and thus multiply and encourage bidders and promote the interests of those persons interested in having the property sell for a fair price. There are other minor details prescribed by the statute, intended to promote the same end that are mainly directory to the Sheriff, which he omits to observe at his peril, 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 to the purchaser, 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. The language of the statute (§ 454) is mandatory, and any interpretation of it other than that we have given would destroy its efficiency and defeat in large measure the salutory ends intended to be accomplished by it. Mayers v. Carter, 87 N. C, 146, and numerous cases there cited.

Hence our opinion in the case before us is, that the supposed sale under the execution mentioned, and the deed executed in pursuance of it by the Sheriff to the plaintiff, by virtue of which the latter derives title to the land in question, are inoperative and void.
The statute (Acts 1876-77, Ch. 216, §2,) regulating such sales, in force at the time of the sale in question, provided "That Sheriffs and other public officers selling real estate under execution shall sell the same at the court house of the county in which the property or some part thereof is situate, on the first Monday in every month, except the month in which the Superior court is held therein; then the sales shall be made during the first three days of the Court. "The sale in question was made at the court house on the first Monday in June, 1883. But that was not a sale day for such sales in that month as prescribed by the statutory provision just cited, because " the Superior Court is (was) held " in that, Vance County, the second Monday in that month, and the sale should have been made on that Monday, or "during the first three days of the Court." The sale was, therefore, unlawful and void.

The counsel of the appellee contended on the argument here, that the Superior Court of Vance County could not properly and lawfully be held on the second Monday of June, 1883, but it should lawfully have been held on the first Monday of that month, and nothing appearing in the record to the contrary it must be taken that it was then held, because the statute (Acts 1879, Ch. 58, §1,) then in force, provided that " Rockingham (Superior Court should be held on the) twelfth Monday after the first Monday of March and September," and the statute (Acts 1881, Ch. 113, § 7,) creating Vance County, provided that "the Judge of the Superior Court in and for the Fifth Judicial District shall hold the Superior Court for said (Vance) county, for one week, commencing the Mondays after the termination of the Spring and Fall Terms of said Court in Rockingham County in each and every year," &c. The contention is, that the terms of the Superior Court of Rockingham County under the statute continued but one, and not two weeks, and therefore, the Superior Court of Vance County could be lawfully held only on the first and not the second Monday of June, 1883, thus giving effect to the sale and deed in question.

The several statutory provisions bearing upon this contention are not very clear as to their meaning, but we think, fairly interpreted, they imply with sufficient certainty that the terms of the Superior Courts of Rockingham County embraced two weeks, and that the terms of the Superior Court of Vance County began on the second Monday after the like terms began in Rockingham County.
The first statutory provision (Bat. Rev., ch. 17, § 11,) applicable, is a general one of the Code of Civil Procedure, regulating the times of holding the Superior Courts of the State. Subsequent enactments, presently to be referred to, repealed it in some respects, modified it in others, and left it operative as to others. It provided that " The terms of the several Superior Courts of tins State shall begin in each year, at the times herein stated, and shall continue to be held for two weeks (Sundays and legal holidays excepted), unless the business be sooner disposed of." The times of holding the Courts of each circuit was then so arranged as to give each in succession a term of two weeks.

Afterwards a general statute (Acts 1876-77, ch. 255,) on the same subject was enacted, and, among other things, it provided that  "the Superior Courts in the several counties shall be opened and held at the times hereinafter expressed, and each Court shall continue in session one week, or two weeks, as the case may require, and this act will allow, unless the business thereof be sooner disposed of," &c. The regulation as to time was then so arranged as to allow some counties one week and others two weeks' terms; and the Courts of Rockingham County were arranged to be the last of the Fifth Judicial District, so that the statute would allow the terms of this Court to continue for two weeks as provided by the statute (Bat. Rev., ch. 17, § 11,) above cited. This statute was not expressly repealed—it was repealed in some respects, modified in others, and left operative in others by implication arising from provisions inconsistent with it to some extent in statutes subsequently enacted. Indeed, it seems that the purpose of the legislature in subsequent legislation on the subject was to leave it operative, unless repealed by subsequent inconsistent enactments. Hence the provision, " each Court shall continue in session one week, or two weeks, as the case may require, and this act will allow." Otherwise, the time of holding many of the Courts must have been left in doubt, uncertainty and confusion. It is not to be presumed that the Legislature intended such unreasonable and injurious results to come about, nor can several statutes on the same subject be so construed as to allow of such results, when a different construction can reasonably be given that serves the general purpose of the legislation. In such case, the several statutes must be construed together, and their various parts and provisions so interpreted, if this can reasonably be done, as to produce consistency and effectuate the intent appearing. The first of the two last mentioned statutes gave the County of Rockingham a two weeks' term of the Superior Court; the second one did not in terms abridge that term, nor do we think it did by reasonable implication—it did not necessarily, nor does any purpose to have it do so appear. The terms of the Courts of some counties, in the arrangement as to time, were cut down to one week, but nothing appears in terms or by implication to show such purpose as to Rockingham County. The reasonable inference is, there was no such purpose.
Another subsequent statute (Acts 1879, ch. 58,) was enacted, changing the times for holding the Courts of the Fifth Judicial District, but it contains no provision inconsistent with the interpretation of the statutes we have already given, and we need not advert to it further here.

The appellant is entitled to a new trial.



THOMAS BOWEN v. EMMA FOX, Ex'r of William Fox.

Appeal— Certiorari—Negligence.

1. It seems that the proper way to obtain relief against a judgment of the Supreme Court dismissing an appeal, where the dismissal turned upon a question of law, is by a petition to rehear and not by a motion to reinstate.
2. A motion to reinstate an appeal will not be allowed, nor will a certiorari be granted where it appears that the appellant has lost his appeal by negligently failing to give the necessary undertaking within the prescribed time.

A memorandum of the Clerk, evidently not made by the order of the Court, appearing in the record proper, will not be allowed to prevail over a distinct statement of fact in the case on appeal.
(Davis, J., dissenting.)
This was a Motion To Reinstate An Appeal and for the writ of certiorari made at this .term. The case is stated in the opinion.
Mr. Geo. H. Snow, for the plaintiff.
Messrs. J. B. Batchelor and John Devereux, Jr., for the defendant.

Merrimon, J. The plaintiff obtained judgment against the defendant in the Superior Court of the County of Vance at May Term, 1887, from which the defendant appealed to this Court. By consent of counsel, the defendant had until the first day of July following to give the necessary undertaking on appeal, but such undertaking was not given until the 22d day of August next thereafter.
At the Fall Term of 1887 of this Court, the appeal having been docketed here, the plaintiff moved to dismiss the same upon the ground that the undertaking on appeal had not been given within the time allowed by law as extended by the parties, and the motion was allowed. Bowen v. Fox, Ex., 98 N. C, 396.
At the present term the defendant moved to reinstate the appeal on the docket, and have the same heard and determined, suggesting that it had been improvidently dismissed, and the Court's attention was directed to an entry on the record in respect to the appeal in these words: "It is allowed upon his giving bond according to law in the sum of $50, with A. C. Zollicoffer as surety, said bond is duly executed, and is herewith sent." But it likewise appears in the case stated on appeal that " by consent of plaintiff's counsel defendant is given until the first day of July next to file said undertaking."
And it was conceded on the argument of the motion to dismiss the appeal, that the undertaking was not given until the 22d day of August, 1887; it is so stated in the defendant's petition for the writ of certiorari, presently to be considered, and it so appears from the affidavits filed with this petition. There is no question that the undertaking was in fact not given until the day last mentioned. But it is earnestly contended that the Court is bound by the recital in the record first above recited—that the record is conclusive.
There might be more plausibility in this contention if the recital affirmatively appeared to be that of the Court, or that the entry was made by its order; but it is manifest that the material part of it was simply a memorandum of the Clerk, whose duty it was to take the undertaking. He made the minute, no doubt, on the day the undertaking was given, without entering the date of the same. The last sentence of it could have no consistency with any pertinent order of the Court. Indeed, it did not need to have been put on the record at all. It noted nothing to be done by the Court and nothing to be attributed to it, unless it appeared in some affirmative way to be of it. The case stated on appeal states the facts, no doubt, and it is not inconsistent with the record proper, or the facts of the matter apart from the record.
As it is not the duty of the Court to receive the undertaking, if it does, as it may, this must appear—not by implication—but affirmatively. State v. Wagner, 91 N. C, 521. So that the motion to reinstate the appeal upon the docket cannot be allowed.
It may be questioned whether a motion to reinstate on the docket an appeal dismissed, is a proper remedy, where the dismissal turned upon a question of law raised. It would seem that in such case the proper remedy would be an application to re-hear the motion to dismiss.
The case of Wiley v. Logan, 94 N. C, 664, was not like this one. The appeal in that case was dismissed upon the ground that the record had not been printed—simply the requirement of a rule of Court had not been complied with—and a motion to reinstate the appeal was considered and allowed at the term next after the dismissal. It referred to neglect of counsel in this Court in respect to matters that ordinarily do not come within the sphere of professional duty.
The defendant also filed her petition praying that the writ of certiorari be allowed in her favor as a substitute for her appeal so lost. We are constrained to deny this application. It is not suggested that the appeal was lost or that the petitioner suffered prejudice in respect thereto by anything said or done by the plaintiff or his counsel. The defendant made her counsel her agent to give the necessary undertaking, and she must be bound by his laches. She and he resided in the town of Henderson, near the office of the Clerk whose duty it was to take it. It might have been given in ten minutes. The time to give it was extended by consent of plaintiff more than a month, yet it was not given until after the lapse of more than two months. The excuse given for such delay is, that the agent was absent in a distant city attending his wife who was ill, and there for medical treatment until after the lapse of the time allowed. It does not appear that his absence was really necessary or continuous. But on the contrary, it appears that he was not there continuously; that he was at his place of business, and "attended to considerable legal business in his law office" during that time. Moreover, it appears that he had a clerk in his office and several associate counsel—one of them residing in the same town, and the others within easy reach of it. He might easily, if he found it inconvenient for any cause to give his personal attention to the matter of the undertaking, have requested one of them to give it prompt attention. It does not appear that he did. To tile the undertaking required but a few minutes, but it was important—emergent— to file it within the time allowed. The failure to do so was not constrained ; there was manifest neglect in contemplation of law, whether it was occasioned by inadvertence or forgetfulness, and as a consequence important rights of the plaintiff supervened that are not within our control. We are not at liberty to overlook such neglect of the defendant, while the plaintiff insists upon his rights growing out of it. The authorities cited and relied upon by the counsel of the plaintiff are strongly in point. Winborn v. Byrd, 92 X. C, 7; Churchill v. Insurance Company, Id., 485 ; Turner v. Quinn, Id., 501.
The motion to reinstate the appeal must be denied, and the petition dismissed.
Davis, J., (dissenting . I cannot concur in the refusal to grant the writ of certiorari. Accepting the construction placed by this Court upon chapter 121 of the Acts of 1887 as settled by the decision in this case at the last term, and without questioning that decision, I think the affidavits and the record made a part of the affidavit of the defendant disclose facts which entitle the defendant to the writ.



(Decided May 24, 1898.)

Attachment—Intervenor—Act ion on Indemnifying Bond —Estoppel—Practice

1. When; property was seized and sold by a sheriff as the property of Intervenor
under attachment proceedings and, upon the intervention of A, the latter was adjudged to be true owner and entitled to receive the proceeds of sale paid into court by the sheriff, less his costs and expenses, Held that A was not estopped thereby from recovering in a separate action against the sheriff and his sureties the value of such property, less the amount so received by her as intervenor in the attachment suit.
2. A sheriff, who in attachment proceedings wrongfully seizes and sells property which is subsequently adjudged to belong to an intervenor, cannot retain the costs and expenses of the seizure and sale.
3. One, who intervened in attachment proceeding and, upon being adjudged owner of the property seized, brought an act ion against the sheriff and the makers of an indemnifying bond to recover the property or its value, is not entitled to recover, in such action, the per diem and mileage of a witness, in her behalf, in the suit in which she intervened. Such costs should have been taxed in the suit in which she intervened.
4. Under the present procedure it is not necessary for the owner of property wrongfully seized and sold by a sheriff to first obtain a judgment against the sheriff and then institute another action on his indemnifying bond; on the contrary, the rights of all the parties can be adjudged in a single action against the sheriff and the maker of the indemnifying bond.
Civil Action to recover damages for the unlawful and wrongful conversion of a stock of goods belonging to plaintiff, brought by the latter against the defendant Cozart, as sheriff, and the other defendants, as makers of an indemnifying bond, and tried before Adams, J., and a jury at November Term, 1897, of Granville Superior Court. The facts appear in the opinion. There was a verdict for the plaintiff, and from the judgment thereon the defendants appealed.

Messrs. Hicks & Minor and T. T. Hicks for plaintiff. Messrs. Shaw & Share for defendants (appellants).
Clark. J.: The plaintiff's goods were taken by defendant, Cozart, as sheriff of Granville county, on certain attachments issued at the instance of defendants, Baker, Ginsberg and others, in an action begun by them in Vance county against I. Stein. The defendant Cozart. being informed that the plaintiff here (Annie Stein) claimed to own the goods, refused to attach them till an indemnifying bond was given by The Fidelity and Deposit Co. of Maryland as surety (who is a defendant herein). The plaintiff intervened in said action and was adjudged the owner of the goods and, they having been sold penden te lite, by order of the Court, recovered judgment for the proceeds of said sale and the costs. The defendant Cozart paid into Court, in Vance, the net sum of $236.53, being the proceeds of the sale by him, $295.00. less $52.47 expended for the expenses of the seizure and sale. Of this $236.53 the plaintiff was paid $229.43 by the clerk of Vance Superior Court.

This action is for the wrongful seizure of goods by the defendant Cozart. The plaintiff is entitled to recover the value of the goods (less the sum of $236.53 paid into the office of Vance Superior Court by Cozart) and the costs of this action. The Court properly held that, as against the plaintiff, the true owner of the goods, the defendant Cozart could not retain the $52.47, which he had deducted out of the proceeds for expenses of seizure and sale, but erred in permitting the plaintiff to recover $9.95 for per diem and mileage of a witness in her behalf in the Vance county case. This seems to have been allowed on the ground that though taxed in that case it had not been collected, but the costs of intervening and proving her title in the suit in Vance was not the direct and necessary consequences of the wrongful seizure of the plaintiff's goods by the defendant Cozart. The plaintiff might have relied solely upon this action for her redress. Davis v. Garrett, 25 N. C, 459. She chose also to intervene and assert her title to the goods in the Vance county case, but she must look to the judgment in that case and to the defendants therein who resisted her recovery for the costs of that trial. Such costs cannot be taxed against Cozart, who did not resist her recovery of judgment in that case and who is in no-wise responsible for the costs she incurred therein. He is only responsible for the value of the goods less the sum he paid in and the costs of the present action.

The plaintiff, by accepting in that case the net sum paid into Court from the sale, is not estopped from proceeding in this action to recover the actual value of the goods wrongfully seized, less so much of the proceeds of the sale as were paid over to her, and the judgment in the case where she intervened awarding the net proceeds of the sale to her is not res judicata of her cause of action in this case, and, in fact, the judgment in that case, out of abundant caution, expressly reserves and excepts her right to bring this action for damages in the wrongful taking of the goods. The sheriff not being a party to the former action she is not estopped to proceed against him for the actual value of the property taken and he is only entitled to a deduction for the value of the property returned, or the nett proceeds thereof paid over into the Court for her.

The defendant, The Fidelity and Deposit Co., being surety to the indemnifying bond executed to Cozart, sheriff, to seize the plaintiff's goods, she is entitled to judgment against them in this action. It is not necessary under the present procedure to obtain judgment against the sheriff, and then institute another proceeding to obtain the benefit of the bond he took for his own indemnity, but the rights of all the parties will be adjudged in this action.

The error in instructing the jury, if they believe the evidence, to include the sum of $9.95 disbursed for plaintiff's witness in the other suit can be corrected by eliminating that sum from the judgment. There being no other error, the judgment will be thus

Modified and affirmed.
(from North Carolina Reports)

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