79 S.E. 512 | N.C. | 1913
This was a motion before the clerk, in the case of Williams v. Williams, to set aside a sale of land made under an execution. The motion was based upon affidavits filed, and the sale was set aside by him. Plaintiff appealed to the Superior Court, where the action was dismissed, this Court reversing the decision, At the August Term, 1912, of that court, the judgment of the clerk was affirmed, and an order of reference was made for an accounting between the parties. The report of the referee was confirmed at the June Term, 1913, all of which will appear more fully hereafter.
The case was before us at Spring Term, 1912, upon a question of jurisdiction, and is reported in
The defendant in the judgment and execution, John W. Williams, alleges that the sale by the sheriff is voidable by him because there was no legal advertisement or notice of the sale; that the execution was *171 issued within forty days of the court to which it was returnable (Revisal, sec. 624); that the land, consisting of three lots, was sold en masse and not in separate parcels, and that Charles F. Dunn, the real plaintiff, as assignee of the original plaintiff, did by fraudulent representations and conduct obtain the land, as purchaser, at an (212) under-value, the price he paid being grossly inadequate.
The law requires a sheriff to advertise a sale under execution and to serve a copy of the advertisement upon the defendant ten days before the sale. Revisal, secs. 641, 642. A failure to comply with this provision of the statute, which is directory, will not render the sale void as against a stranger without notice of the irregularity, nor can it be assailed collaterally, but in such a case the defendant may, on motion, or by direct proceeding, have the sale vacated.
In Burton v. Spiers,
In the Dula case, Chief Justice Smith said: "The sheriff acts (213) under the law that prescribes his duties, with a proper responsibility to those affected by what he does. If he sells under execution without advertising, as required by law, and the purchaser has no notice of this dereliction of duty, he acquires title; but it would be *172
otherwise if the sale was at a time or place not warranted by law, because the purchaser is charged with knowledge of this legal requirement, and does not buy in good faith. S. v. Rives,
Our case is a good illustration of the justness of the rule. For some reason, and none other than the omission to duly advertise the sale can be fairly assigned, there were no bidders present, and there was, consequently, no competition. In this way the purchaser bid in the land at about one-eighth of its real value, and land worth $800 to $1,000 was sold to pay a debt of less than $45. "This is calculated to cause surprise and to make one exclaim, Why, he got it for nothing! There must have been some fraud or connivance about it." Worthy v. Caddell,
Apart from the irregularities in respect to the execution and sale, of which the purchaser, who had by assignment from Jesse E. Williams become the real plaintiff, had notice, it appears by the finding of the clerk that the sheriff sold three distinct lots en masse, when if sold separately any one of them would have brought a price far more than sufficient to pay the total of debt, interest and costs, and five times as much as required for that purpose, if the lot thus sold had brought anything like its market value.
The counsel of John W. Williams, the debtor, contends that the fact of selling the three lots as one entire parcel is of itself sufficient to vitiate the sale, and there is strong authority to be found in the decisions of other jurisdictions to sustain this position. Rorer on Judicial Sales, sec. 730, and cases cited; Tiernan v. Wilson, 6 Johns. Ch. (N. Y.), 415. But our decisions have not, up to this time, gone quite so far, as we will presently see.
(214) It is generally agreed that it is the duty of the officer to sell in the exercise of a fair discretion, and to the best advantage, so as to make the debt and costs to be levied by the execution without unnecessary sacrifice of the debtor's property. "The proposition is not to be disputed," said Chancellor Kent in Tiernan v. Wilson, supra, "that a sheriff ought not to sell, at one time, more of the defendant's property than a sound judgment would dictate to be sufficient to satisfy the demand of the writ, provided the part selected can be conveniently and reasonably detached from the residue and sold separately. The justice of this rule is self-evident. As long ago as Wordye v. Baily (Noy., 59), Gawdy, J., said, and the rest of the Court agreed with him, that if the sheriff, upon afi. fa. for 40 shillings, takes five oxen, each of the value of 5 pounds, and sells them all, the defendant may have an action of trespass *173 against him. In addition to what has been repeatedly said in our own courts (8 Johns. 333; 18 Johns. 362; 1 Johns. Ch., 502), I would refer to Stead v. Course, (4 Cranch, 403), in which the Supreme Court of the United States held, that if the collector sell a whole tract of land, when a small parcel of it would be sufficient, for taxes, he exceeds his authority, and a plea by the purchaser to a bill to set aside the sale was not to be sustained. It was the case of a sale in Georgia, under a law directing the collector to sell only so much land as was necessary to pay the taxes in arrear. The rule must be the same, without any positive law for the purpose. It rests on principle of obvious policy and universal justice." The learned Chancellor again says: "Any 10 acres taken from any corner of either of these lots would probably have raised the amount of the execution. The very circumstances of advertising and selling the whole supposed interest of the plaintiff, in both lots together, and for so small a demand, was calculated to excite distruct as to the title, and to destroy the value of the sale. It was a perversion of the spirit and policy of the power with which the sheriff was intrusted. It is difficult to define precisely the extent of property that a sheriff may sell together, in mass. There must be a sound discretion exercised by the officer, and each case will furnish a rule applicable to it, under all its circumstances. It is sufficient to say that here is a case (215) in which the abuse of discretion is too flagrant to be endured, and that the law will adjudge such a sale, in such a case, fraudulent. No person can hesitate for a moment to say that the sheriff ought not to have sold more than the interest of the plaintiff in one lot, at one time, and in one parcel; and I believe every one will be ready to conclude that the sale of one lot would have raised the $10 with equal facility as the sale together of both lots. I shall, accordingly, set aside the sale as fraudulent and void in law."
We have referred to this case at some length, as its facts so clearly resemble those to be found in this record, and yet our case more strongly appeals to the conscience of the Court for equitable relief to the debtor, who has so greatly suffered by the manner in which this sale was conducted at the instance of the plaintiff, who was the purchaser. The difference between the cases which makes in favor of this debtor is, that here there were three separate and distinct tracts, each having its own valuable improvements, while on the Tiernan case the tract was an entire one, and the Court held that a reasonably sufficient portion should have been cut off and sold, if the land was susceptible of such a division and the whole was not required to satisfy the writ. See, also, Kinney v. Knaebel,
Perhaps by no means can we procure a more correct and just view of the duties of the sheriff or other officer in the proceedings which he is authorized to take, after levying upon property for the purpose of producing a satisfaction of the plaintiff's demand, than by conceding that such officer is the agent of both parties, and as such is charged with duties which are not wholly compatible, and which must, nevertheless, be reconciled. It is true that the officer owes to the plaintiff the duty of making the money at or before the return day of the writ, and (216) may be considered as the agent of the plaintiff, charged with the duty of producing a satisfaction of the writ. On the other hand, he is equally the agent of the defendant, charged with the duty of so disposing of his property that the writ against him shall be satisfied with no needless injury or sacrifice. Hence, as the duty of selling the property is modified by the duty of not needlessly sacrificing it, the officer has a discretion with respect to the time and mode of sale. A reasonable discretion, however, is allowed to be exercised in order that the object of the writ may be accomplished, not frustrated, and that the property of the debtor be not causelessly sacrificed. There is no iron rule in regard to this matter, but it may be said that the officer should exercise a sound discretion, honestly and impartially, as between the parties, remembering that he is the sworn minister of the law and not the servant or emissary of either, commissioned to advance, in a covetous manner, the interests of his employer. As is the duty of the just and impartial judge, he should hold the scales evenly balanced.
Judge Freeman, speaking to this very question, said: "Where several distinct parcels of real estate, or several articles of personal property, are to be sold, what is called a `lumping sale' can rarely be justified. Such a sale when objected to in due time, will not be upheld, unless special circumstances can be shown from which it must be inferred that such sale was either necessary or advantageous. It is sometimes said that such a sale will not be vacated until it is shown to have injured some one. The command of the law that distinct parcels of land shall be offered for sale separately is founded on the assumption that, by so offering them, the best price will probably be secured and the sale not result in the taking from the defendant of any more property than is necessary to satisfy the writ." Freeman on Executions, sec. 296, p. 1703.
Some of the courts have expressed themselves strongly in emphatic condemnation with regard to sales in mass of property divided into separate parts or lots, going to the length of saying that, "Sales in a *175 lump of real estate held in parcels are not to be countenanced or (217) tolerated." Rorer Jud. Sales (2 Ed.), sec. 730, and the numerous cases in note 6.
But we have not referred to the authorities above for the purpose of approving all that is therein said, as this Court has formulated a rule of its own upon the subject, which we will follow in this case, as it fully sustains the judgment below, and it is not necessary that we should go beyond it, as the facts are now presented to us.
In Wilson v. Twitty,
In Jones v. Lewis,
The question arose in McCanless v. Flinchum,
In McLeod v. Pearce,
In Bevan v. Byrd,
We have reviewed a few of the cases somewhat at length, on account of the great importance of the question and for the further reason that very little has been said about it by this Court in recent years. It may serve to stimulate officers to a just performance of their important and delicate duty, and to advise them in some manner as to how it should be performed.
One clear result to be deduced from the foregoing authorities is, that if property is sold en masse, or in bulk, when it could reasonably be sold in parcels without prejudice to the parties, creditor or debtor, and there is any fraud or oppression, or even unfairness, whereby it is sold at a disadvantage to the debtor, the sale will be voidable by him in a direct proceeding to set it aside.
The facts in this case are so plainly against the fairness of the purchaser's conduct, he being also the plaintiff in the writ, that, as said by Justice Reade in a somewhat similar case (Andrews v. Pritchett,
The land brought a grossly inadequate price, which is a badge of fraud. Charles F. Dunn knew the land, and took advantage of his superior knowledge to deceive and mislead the debtor's attorney as to its real value, and at a time when investigation by the latter could not well be made before the sale. This was fraudulent conduct, as it accomplished its purpose. Machine Co. v. Bullock,
This is not all, but it is surely enough for the purpose of deciding this case. These facts show palpably that the plaintiff in the execution was coveting the land, and not merely seeking, in a fair and legitimate way, the recovery of his debt. The process of the law should not be perverted to such an avaricious and fraudulent object. It will compel the debtor to pay, but will not tolerate unfairness and oppression.
The facts clearly bring this sale within the condemnation of the law, without deciding whether, under our decisions, a much weaker showing would be sufficient to avoid it. The sale en masse, with the attendant circumstances of fraud and irregularity, render the sale void as to the debtor. This affirms the judgment.
It is just to the sheriff to say that no wrong can fairly be imputed to him. It was all due to the fault of the purchaser, who, under cover and the supposed protection of the court's process and with special and peculiar knowledge of the facts, sought to use it for the evidence purpose of deriving an unfair advantage, and thereby bought the property at a grossly inadequate price to the great sacrifice and damage of his debtor. We have no idea that the sheriff was cognizant of any such inequitable conduct on the part of the purchaser; the debtor makes no charge against him of complicity, and we, therefore, fully acquit him of all blame. The acts of the creditor are alone sufficient to annul the sale.
No error.
(223)