Wortham v. . Basket

5 S.E. 401, 99 N.C. 70

Opinion

Mekrimon, 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 every one 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 daj^s 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, Yance 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 Vanee 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 Mondaj- 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 this 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 Rocking-ham 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, uor 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.

Error..