Albemarle Realty & Mortgage Co. v. Peoples Bank of Virginia Beach

CLARK, Judge.

Defendants first assign as error the trial judge’s interpretation of G.S. 45-21.17 (1966 replacement). The statute reads in pertinent part:

“(a) When the instrument pursuant to which a sale of real property is to be held contains provisions with respect to posting or publishing notice of sale of the real property, such provisions shall be complied with, and compliance therewith is sufficient notice.

(b) When the instrument pursuant to which a sale of real property is to be held contains no provision with respect to posting or publishing notice of the sale of real property, the notice shall —

(1) Be posted, at the courthouse door in the county in which the property is situated, for thirty days immediately preceding the sale.

(2) And in addition thereto,

a. If a newspaper qualified for legal advertising is published in the county, the notice shall be published in such a newspaper once a week for at least four successive weeks; . . .”

Defendants argue that this should be interpreted so as to demand notice both by publication and by posting only when the deed of trust or other instrument makes no provision either for posting or publication. In other words, if the instrument provides either for posting or publication notice per the instrument’s provision is sufficient. The double requirement of subsection (b) is not, in such case, reached. As the deed of trust in the instant case specified notice by publication and as defendants unarguably fulfilled that provision, defendants contend that additional notice by posting was not required. Defendants rely on Huggins v. Dement, 13 N.C. App. 673, 187 S.E. 2d 412 (1972), for the proposition that G.S. 45-21.17(b) applies when the parties make no provision for notice in the instrument.

The trial court adopted plaintiffs’ interpretation that G.S. 45-21.17 read as a whole requires both publishing and posting for full notice and that, as the instrument did not specify posting, subsection (b) came into play and required posting. In other words, subsection (b) is triggered when either posting or publication is omitted from the instrument. Defendants’ interpretation violates the accepted construction rule that corresponding sections of a statute be construed together and reconciled with each other when reasonably possible. Board of Agriculture v. Drainage District, 177 N.C. 222, 98 S.E. 597 (1919). Huggins, supra, is not controlling as the proposition defendants rely on is dicta. Huggins dealt with an instrument that contained provisions for both posting and publishing. Finally, both the statutory provision for notice on resale, G.S. 45-21.29 current at the time of the contested statute, and the current G.S. 45-21.17, as amended in 1975, require both posting and publication. Minimum due process is the central concern in all the statutory provisions, and the legislature obviously intended to meet the due process requirement by demanding both forms of notice.

However, although we agree with the trial court that plaintiffs’ interpretation of the statutory notice requirement was correct as a matter of law, we find that the court erred in granting summary judgment for the plaintiffs. Rule 56 precludes summary judgment if there is presented a genuine issue of material fact. The defendants presented an affidavit of Lennie Hughes which tended to show that the notice defendants posted on the courthouse door, although dated 27 March, was actually posted six days earlier, thus meeting the statutory requirement of posting 30 days prior to sale.

Plaintiffs argue that the date on the face of the notice must control as a matter of law and rely on Strickland v. Contractors, Inc., 22 N.C. App. 729, 207 S.E. 2d 399 (1974), which refused to permit a plaintiff to bring in proof that would change the date of “last furnishing” in the claim of lien filed so as to come within the statutory filing period of 120 days. See also Builders, Inc. v. Bank, 28 N.C. App. 80, 220 S.E. 2d 414 (1975). However, the statutory lien requirement, and the judicial decisions interpreting them, make clear their particular concern with preserving reliance on the public record. Indeed, G.S. 44A-12(d) precludes any amendment of a claim of lien. Such concern plays no part in the statutory or judicial dealings with the notice requirements in a foreclosure sale. As long as minimum due process is met, there is no reason to preclude proof that the date on the face of the notice was not the actual date of posting. It is clear that the time of sale in the posted notice is inviolate. Ricks v. Brooks, 179 N.C. 204, 102 S.E. 207 (1920). But technical defects that have not been shown to “chill” the sale have been held curable by affidavit or other proof. Britt v. Britt, 26 N.C. App. 132, 215 S.E. 2d 172, cert. den. 288 N.C. 238, 217 S.E. 2d 678 (1975), held that a foreclosure sale was not invalid because the notice of publication filed in the office of the clerk was invalid. Defendants were permitted to support their motion opposing plaintiffs’ attempt to set aside the sale on summary judgment with the affidavit of a newspaper publisher that notice had actually been published.

The Hughes affidavit tended to show that the date (27 March 1975) on the posted notice must have been a clerical error, and that in fact the notice was posted six days before, on 21 March 1975. The purpose of the posting requirement is to give adequate notice. Plaintiffs’ presence at the sale in the case sub judice is uncontested. The material issue of fact is whether the notice of sale was posted at the courthouse door for 30 days immediately preceding the sale as required by the then current G.S. 45-21.17. We find that summary judgment for plaintiffs was improvidently entered.

Reversed and remanded.

Judge MORRIS concurs. Judge VAUGHN concurs in the result.