Wadsworth v. Wadsworth

133 S.E.2d 681 (1963)

260 N.C. 702

Dollie M. WADSWORTH (Widow), v. Walter B. WADSWORTH, Jr. (Minor), and L. Austin Stevens, Guardian Ad Litem for Walter B. Wadsworth, Jr. (Minor).

No. 521.

Supreme Court of North Carolina.

December 19, 1963.

L. Austin Stevens, Smithfield, guardian ad litem for Walter B. Wadsworth, Jr.

E. V. Wilkins, Smithfield, for appellants.

Albert A. Corbett, Smithfield, for appellee, Stimson Lumber Co., Inc.

MOORE, Justice.

Appellee contends, and the court below concluded, that the purported sale of the timber to appellee at the price of $23,821.22 is void for failure of the clerk to make orders of resale vesting the commissioner with authority therefor.

There are certain absolute prerequisites of a valid judicial sale. "* * * (I)t is necessary, in order that a judicial sale may be validly made, that the court by which it was ordered shall have the general power to decree a sale, and that in a particular case the jurisdiction of the court over the subject matter and parties shall have been acquired in a proper manner." 50 C.J.S. Judicial Sales § 2, p. 579. "There can be no valid judicial sale without an order or decree directing it * * *." ibid, 50 C.J.S. Judicial Sales § 8, p. 582. Accord: Cherry v. Woolard, 244 N.C. 603, 94 S.E.2d 562; Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26; McIver Park, Inc. v. Brinn, 223 N.C. 502, 27 S.E.2d 548.

"Confirmation cannot supply the lack of original authority to make the sale, as where * * * the officer selling acted without authority, for a sale without authority is a mere nullity and cannot be given legal validity by the recognition and ratification which confirmation supplies." 30A Am.Jur., Judicial Sales, s. 143, p. 985.

The clerk of superior court, without question, has general jurisdiction of special proceedings, and in the instant case had jurisdiction of the subject matter and parties, and made an order, initially, decreeing a sale of the timber, appointing a commissioner to make the sale, and authorizing and directing a private sale thereof. The narrow question presented is whether under the circumstances of this case an order of resale, or orders of resale, was or were mandatory.

As a general proposition, in appropriate circumstances "[a]n order for resale is always proper and generally necessary in order to charge a defaulting purchaser." 50 C.J.S. Judicial Sales § 70, p. 695.

Under our former statute, the court having jurisdiction might, in the exercise of its discretion, order a sale of land where minors were interested and represented by guardian ad litem, either at public or private sale. Ryder v. Oates, 173 N.C. 569, 92 S.E. 508. The court likewise has this discretion under the 1949 act, G.S., Ch. 1, Art. 29A. This act does not specify the conditions under which a private sale may be ordered and it is therefore a discretionary matter for the court in a particular case. The number of persons interested in the purchase of large bodies of standing timber is much more limited than in the purchase of such real estate as farms, homes and small parcels of land. In the sale of such timber a commissioner, if permitted to sell privately, has freedom to canvass prospective buyers, give time for viewing and estimating the timber, and negotiate directly with prospects, without being restricted by the formal requirements of a public sale.

Every private sale of real property is subject to an upset bid. G.S. § 1-339.36(a). Such upset bid shall be submitted to the court within 10 days after the filing of the report of sale, and shall be in an amount specified by statute. G.S. § 1-339.25. "When an upset bid is made for property sold at private sale, subsequent procedure with respect thereto shall be the *686 same as for the public sale of real property for which an upset bid has been submitted * * *." G.S. § 1-339.36(b). Thus, when an upset bid is submitted in a private sale, G.S. § 1-339.27 applies and to all intents and purposes the sale thereafter becomes a public sale. When the upset bid is submitted to the court, a resale shall be ordered, a notice of the resale shall be posted at the courthouse door for 15 days immediately preceding the sale and published in a newspaper once a week for two successive weeks. G.S. § 1-339.27.

The order of sale entered by the clerk on 6 June 1962 authorized the commissioner to sell the timber "at a private sale for cash to the highest bidder, said private sale to be conducted according to the law regulating said private sales," and ordered the commissioner to "report said sale to the court for confirmation." It will be observed that the court did not order a sale to Ward for $15,000, such sale to stand for confirmation in default of an upset bid. The order was to sell "to the highest bidder." that is, to the bidder who offered the highest price. There is nothing in the statute which restricts the court in laying down guide lines and giving directions for the making of a private sale in the first instance. Indeed, it is the duty of the court to give directions to the commissioner. "Except to the extent that they are not controlled by statute, the terms of a judicial sale are within the discretion of the court." 50 C.J.S. Judicial Sales § 13, p. 596.

There were ten bids, but in our opinion only one sale, and that to the highest bidder as the court had ordered. It is true that the commissioner reported the bids as if they were sales, and followed the provisions of G.S. § 1-339.25 in the acceptance of bids. Even if he proceeded under a misapprehension of his duty and a misunderstanding of the order under which he acted, the substance of what he did was a sale at the highest bid received by him. That he kept the court advised of his progress, bid by bid, by making what purported to be reports of sales, does not alter the fact that the sale to the highest bidder was in compliance with, and within the terms of, the order of sale. If he had only reported the last bid received by him, appellee's contention would never have arisen. The excessive reports are mere irregularities. The presumption is in favor of the validity of judicial proceedings. Johnson v. Sink, 217 N.C. 702, 9 S.E.2d 371. There was only one sale and no necessity for an order of resale.

One who seeks relief by reason of irregularities in the proceedings must show that he has been prejudiced thereby. Franklin County v. Jones, 245 N.C. 272, 95 S.E.2d 863; Harris v. Brown, 123 N.C. 419, 31 S.E. 877; Stancill v. Gay, 92 N.C. 455; Hervey & Co. v. Edmunds, 68 N.C. 243; 50 C.J.S. Judicial Sales § 62, p. 685. A decree of confirmation entered by a court of competent jurisdiction may not be set aside as to the purchaser, when the proceedings are merely irregular except for mistake, fraud or collusion. Franklin County v. Jones, supra. There is nothing in the record which indicates that the purchaser, Stimson, has been prejudiced by the irregularities indicated. So far as the record discloses it was dealing at arm's length, it made an offer of $23,821.22, the offer was accepted and it is bound by its contract.

Proceedings outlined by statute for the holding of judicial sales (exclusive of the absolute prerequisites referred to in the outset of this opinion) and giving notice thereof are "merely methods of administration and disposition of property by fiduciary officers, their purpose being that the price received shall be greater, and not that the title given shall be better." 50 C.J.S. Judicial Sales, § 16, p. 601; Putnam & Norman v. Conner, 144 La. 231, 80 So. 265.

The judgment below is

Reversed.