61 S.E. 68 | N.C. | 1908
This is a motion to set aside an order made by the judge of the Judicial District at Kinston, N.C. on 30 May, 1907, directing A. G. Ricaud, receiver, to Sell to R. G. Grady certain timber, the title to which is now in controversy, and also to set aside the deed of the receiver to the purchaser. The motion was made in an action which was originally brought under the statute in the Superior Court of New Hanover County to settle the affairs of the corporation known as the "Peregoy-Jenkins Company," and A. G. Ricaud was appointed receiver to take posse' of its assets and administer the same for the benefit of the creditors brought the suit. A mortgage was executed by the Peregoy-Jenkins Company and a sale made thereunder, and by a deed to the purchaser and certain mesne conveyances the timber in controversy is allege have been acquired by Charles S. Reilly Co., but it is not necessary to set out the chain of title in detail. The order permitting the receiver, A. G. Ricaud, to sell the land at private sale to R. G. Grady was made at chambers in Kinston, N.C. without notice to the parties to the action, and at a time when the Superior Court of New Hanover County, JudgeLong presiding, was actually in session, but the application for the order was made before the court had convened. The motion to set aside order allowing the receiver to sell the land to R. G. Grady was mad Mr. John D. Bellamy as attorney in behalf of Charles S. R (295) Co., and also in behalf of the Peregoy-Jenkins Lumber Company, he being attorney of record for the last named company Mr. Bellamy has not been specially requested by his client, the Peregoy-Jenkins Lumber Company, to make this motion, and has not heard from them in regard to it. At the time the motion to set aside the order allowing the receiver to sell was made, an order was issued restraining R. G. Grady from disposing of the property in controversy. At the hearing before the judge he refused to set aside the order allowing the receiver *219
to sell the timber to R. G. Grady and dissolved the restraining order. The parties who made the motion excepted and appealed.
It cannot be material in this case that the motion is made by Mr. Bellamy as attorney in behalf of Charles S. Reilly Co., if in making the motion he is also representing his client, the Peregoy-Jenkins Lumber Company, which is a party to the record. His right to move in the cause is derived from the original authority which was given by the defendant, the Peregoy-Jenkins Lumber Company, to appear for it generally in the proceeding, and this authority was not terminated by the order of sale which the court made. If the Peregoy-Jenkins Lumber Company could move to set aside the order allowing the receiver to sell the timber to R. G. Grady, because it was voied [void], it would seem to follow that its attorney of record, acting in its behalf, could do the same thing, unless his authority had been revoked, and there is no finding of fact in this case to the effect that it had been. So far as appears, therefore, he still had the authority to make the motion.Rogers v. McKensie,
Our decision is that the judge had no power to order the sale to be made, and there was consequently error in the refusal to vacate the order and to set aside the deed made to the purchaser. It must be understood that we are reversing the order of the court solely upon the ground the original order, which was made outside the county of New Hanover, where the case was then pending, disposed of a part of the assets in possession of the receiver. In such case the order is final as to property disposed of, the title to which passes thereby, and a (298) order should therefore be made in the county and at the term of court. It is otherwise as to orders to advertise property for a *221 which are mere directions from the court to the receiver in the management of the property and which may be made by the judge anywhere in the district. The advertisement, the public sale, and the requirement that the final order confirming the sale (with opportunity of raising the bid) must be made at term and in the county, safeguard the rights of all parties. Besides, an order to advertise for sale can be modified or set aside, on motion, before the sale takes place, for good cause shown.
Reversed.
Cited: Clark v. Machine Co.,