Bolick v. Cole , 49 N.C. App. 322 ( 1980 )

CLARK, Judge.

The sole issue in this case is whether the guardian’s letter of 28 September 1979 constituted a Report of Sale within the meaning of G.S. 1-339.35. That letter is set out below:

“Clerk of Superior Court

Buncombe County

Asheville, N.C.

Dear Sir:

This is to notify you that I have this day entered into agreements to sell the property of Edith Bolch Masters, located at 540 Old Haw Creek Road, as recorded in the Register of Deeds Office in Deed Book 752, Page 9, to Lillian M. Maney for the sum of twelve thousand, five hundred and no/100 dollars ($12,500.00), and to sell the Vagabond trailer to Mark Evans for teh [sic] sum of two thousand, seven hundred and fifty and no/100 dollars ($2750.00).

Very truly yours,

Eleanor B. Cole, Guardian

s/ ELEANOR B. COLE

Eleanor B. Cole, Guardian

95 Pinecroft Road

Asheville, N.C. 28804”

The pertinent statute provides:

“§ 1-339.35. Private sale; report of sale. — (a) The person holding a private sale shall, within five days after the date of the sale, file a report with the clerk of the superior court of the county where the proceeding for the sale is pending.

(b) The report shall be signed and shall show

(1) The title of the action or proceeding;

(2) The authority under which the person making the sale acted;

(3) A description of real property sold, by reference or otherwise, sufficient to identify it, and, if sold in parts, a description of each part so sold;

(4) A description of personal property sold, sufficient to indicate the nature and quantity of the property sold to each purchaser;

(5) The name or names of the person or persons to whom the property was sold;

(6) The price at which the property, or each part thereof, was sold, and the terms of the sale; and

(7) The date of the report.”

Petitioner claims that the letter failed to satisfy requirements (b)(1) and (b)(6) of the above quoted statute by failing to set out the title of the action and failing to specify the terms of the sale. The letter apparently does lack these two requirements.

Repondents claim that failure to include the title of the case is not important since the nature of the proceeding could be ascertained from the body of the letter. Respondents contend as well that sufficient terms were included. An examination of the letter, however, reveals no terms of sale other than price; yet a listing of the price is separately required by the statute. The legislature must have meant by “terms of sale” something more than price alone. Any other reading would render superfluous the language requiring “terms of sale.”

Respondents assert that the sale was a cash sale and that the only reasonable conclusion that third parties could draw from the evidence of terms in the letter was that the sale was for cash. Respondents cite no North Carolina authority for this proposition. We do not accept the proposition. Were we examining a written contract between Cole and Maney, we might infer from silence as to terms that the parties intended the sale to be for cash; but here we are not looking at a written agreement between them. We are looking at a statutorily required Report of Sale designed to give notice to third parties of, among other things, the terms of the sale. It is of primary importance that a potential upset bidder recognize the paper writing filed with the court as the Report of Sale and not a mere statement of intent to bid. Such bidder should not have to infer cash terms or other provisions specifically required by G.S. 1-339.35. That guardian respondent’s attorney recognized the necessity of including the terms in the Report of Sale is made manifest by their inclusion in the properly captioned Report of Sale filed 11 October 1979.

Judge Burroughs also recognized these deficiencies and noted at the hearing on 30 October 1979 that the letter was “not in technical compliance with the statute.” He nonetheless held the letter to be in substantial compliance with the statute and treated it as a Report of Sale.

Respondent in arguing that substantial compliance is the appropriate standard in this case states in her brief:

‘“Substantial compliance’ with statutory requirement is normally sufficient and occurs when as a practical matter, it is reasonable to conclude that partial compliance has fully attained objective of statute ‘In other words, th,ere has been such compliance with essential requirements of statutory provisions as may be sufficient for accomplishment of purpose’ Houman v. Mayer, 382 A. 2d 413, 474; 155 N.J. Super. 129; 40 Words and Phrases, 112 and 113 (1978-1979 Pocket Part) (Substantial Compliance with Statute).”

Regardless of the label used, we agree the proper legal test to apply to the letter before us is whether its partial compliance has fully attained the objective of the statute. We begin this determination by examining the purpose or objective of G.S. 1-339.35.

We believe the legislature intended the Report of Sale under G.S. 1-339.35 to accomplish one major objective:

“Proceedings outlined by statute for the holding of judicial sales ... 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.’” [Citations omitted, emphasis added].

Wadsworth v. Wadsworth, 260 N.C. 702, 708, 133 S.E. 2d 681, 686 (1963). The Report of Sale was thus intended not just to give record notice of the fact of the sale but, more importantly, to operate along with G.S. 1-339.36 and 1-339.25 to ensure “that the price received shall be greater” by facilitating the practice of upset bidding by providing a clear-cut starting point for the time period during which upset bids could be filed.

In determining whether the 28 September letter accomplishes these purposes, we note that G.S. 1-339.25 requires that upset bids be deposited “with the clerk of the superior court, with whom the report of the sale was filed, within ten days after the filing of such report.” This provision applies to private sales. G.S. l-339.36(b). Thus the time for filing an upset bid is determined from the date of the Report of Sale and to accomplish the purpose of the legislature a writing filed with the clerk must not only put third parties on notice that the Commissioner has an offer which he wishes the court to accept, but also that this writing is the statutorily required Report of Sale which begins the running of the ten days in which upset bids may be filed. The letter of 28 September in this case, by failing to set out the title of the case or to style itself a Report of Sale, left reasonable doubt as to its status. We believe the upset bidding procedure can work properly only when there is certainty as to what constitutes a Report of Sale so that the potential upset bidder can know with certainty by what date he must deposit his upset bid with the Clerk of Court. We note that the potential upset bidder in this case did not have the benefit of the j udicial determination that the letter was a Report of Sale until it was already too late to file an upset bid.

We believe, moreover, that partial compliance with the statutory language is no compliance at all, where, as here, it fails to achieve the legislature’s objective of facilitating the practice of upset bidding by ensuring certainty on the part of potential upset bidders as to when their upset bids must be deposited with the clerk. To effectuate the legislative purpose of the statute we must ensure that a potential upset bidder can look at a writing filed with the clerk and know whether it is a Report of Sale.

This result seems to us particularly just in the case sub judice in light of the party who will benefit from our holding, the incompetent. “There is no principle more universally recognized in the law than this: Those who by reason of legal disability are unable to preserve for themselves their legal rights are deserving of having those rights assiduously protected by the courts including courts of last resort.” In re Lancaster, 290 N.C. 410, 423, 226 S.E. 2d 371, 379 (1976). The device of the upset bid was to have protected the incompetent, Ms. Masters, by assuring that her property bring the best price possible. We will not allow this protective device to be circumvented, however inadvertently.

The portion of the order of 30 October 1979 which amended the prior confirmations of the clerk and judge to reflect the date of the Report of Sale as 28 September 1979, is vacated. The confirmations thus read as originally filed, i.e., in the case of the clerk’s confirmation: “sale was reported on the 11th day of October, 1979, as appears of record. •... [RJeport of such sale has remained on file for ten (10) days .... THIS, the 11th day of October, 1979”; and in the case of the judge’s confirmation: “sale was reported on the 11th day of October, 1979, as appears of record .... [Rjeport of such sale has remained on file for ten (10) days .... THIS, the 19th day of October, 1979.” The irregularities on the faces of these confirmations establish their invalidity in that the clerk and judge acted without statutory authority when they confirmed the sale prior to the expiration of the statutorily required ten-day period for the deposit of upset bids. G.S. 1-339.37. Mr. Bolick’s upset bid of 22 October 1979 was thus timely filed. See G.S. 1-339.36 and 1-339.25.

The order of 30 October 1979 is vacated and the cause is remanded for proceedings consistent with this opinion.

Vacated and Remanded.

Judges Martin (Harry C.) and Hill concur.