Bagwell v. Town of Brevard

148 S.E.2d 635 (1966)

267 N.C. 604

L. E. BAGWELL, Jr. v. TOWN OF BREVARD, an Incorporated Municipality.

No. 29.

Supreme Court of North Carolina.

June 16, 1966.

*637 Hamlin, Ramsey & Monday, Brevard, and Williams, Williams & Morris, Asheville, for plaintiff appellant.

Potts & Hudson, Brevard, for defendant appellee.

SHARP, Justice:

If the sale which the attorney for the Town of Brevard purported to conduct on August 21, 1965, was properly advertised, the action of the Board of Aldermen on August 23rd amounted to an approval and affirmation of it, and plaintiff will be entitled to a deed to the property. The question presented by this appeal, therefore, is: Was the purported sale of August 21st held in conformity with G.S. § 160-59? This statute, in pertinent part, provides:

"The governing body of any city or town shall have power at all times to sell at public outcry, after thirty days' notice, to the highest bidder, any property, real or personal, belonging to any such town, and apply the proceeds as they may think best * * *."

Plaintiff, of course, cannot contend that 30 days elapsed between July 29th and August 21st, the date of the sale at which he became the last and highest bidder. His contention is that the time should be counted from July 22nd, the date on which the land was first advertised for sale. This contention, however, is untenable. The first advertisement gave notice of a sale to be held on August 16thnot August 21st. Furthermore, the four later notices announcing the sale of this property, together with the additional lot, on August 21st, described the property in terms of four separate tracts which would be sold individually and in gross.

Only two cases in this jurisdiction have been called to our attention in which a sale of municipal real estate was attempted without the statutory notice of 30 days. In Carstarphen v. Town of Plymouth, 180 N.C. 26, 103 S.E. 899, on one night, the mayor and councilmen passed a resolution looking to the sale of the town's one building, which contained its "lock-up," market, and city hall; on the next night, they attempted to sell this property at a public meeting attended by 75 people. Before the sale was consummated, a restraining order was issued and made permanent. On appeal, this court affirmed on the double basis that the councilmen were without authority to sell real estate devoted to governmental purposes and that "said sale or attempted sale, was not made after 30 days' public notice, as required by Rev. § 2978 (now G.S. 160-59)."

In City of Asheville v. Herbert, 190 N.C. 732, 130 S.E. 861, the mayor and commissioners attempted to sell 90 acres of the City's land, the "Ryerson property," to defendants *638 at a private sale. When they refused to accept the deed, the City brought suit to compel specific performance of their contract. The trial court held that the tendered deed was valid, and ordered defendants to pay the purchase price in accordance with their contract. On appeal, this Court reversed, saying:

"(T)he `Ryerson property' is such as can be sold by the plaintiff, provided the method of sale required by law is followed. * * * "(W)e are minded to conclude that both the plaintiff's charter and the general law grant the power to sell the land in controversy, and that C.S. § 2688 (now G.S. § 160-59), must be complied with by plaintiff in order to make a valid sale thereof." Id. at 734, 736, 130 S.E. at 863-864.

It seems clear, therefore, that compliance with G.S. § 160-59 is required before the Town of Brevard can make a valid sale of its Country Club property. This is also the rule elsewhere. "If the publication of notice fails to comply in substance with the law, especially as to the time of publication, a purchaser does not acquire a marketable title." 10 McQuillin, Municipal Corporations § 28.45 (3rd Ed. 1950). While it now appears that plaintiff will suffer, and that the Town will profit, from a number of inadvertencies on the part of one or more of its employees, yet the statute specifies the terms upon which cities and towns are empowered to sell their property. "All acts beyond the scope of the powers granted to a municipality are void." City of Asheville v. Herbert, supra at 735, 130 S.E. at 863.

The judgment of the court below is in all respects

Affirmed.

MOORE, J., not sitting.