Martin v. Vanlaningham

• Decision Date: 13 May 1925
• Docket Number: (No. 23.)
• Citation: Martin v. Vanlaningham, 127 S.E. 695 (N.C. 1925)
• Parties: MARTIN et al. v. VANLANINGHAM et al.
• Court: North Carolina Supreme Court

127 S.E. 695

(189 N.C. 656)

MARTIN et al.

v.VANLANINGHAM et al.

(No. 23.)

Supreme Court of North Carolina.

May 13, 1925.

Appeal from Superior Court, Hyde County; Bond, Judge.

Controversy without action by Van B. Martin and others against O. L. Vanlaningham and others heard upon an agreed statement of facts. From judgment for plaintiffs, defendants appeal. Affirmed.

Thompson & Wilson, of Elizabeth City, for appellants.

P. W. McMullan, of Elizabeth City, for appellees.

STACY, C. J. The defendants have agreed to buy from the plaintiffs, receivers of the North Carolina Farms Company, the property belonging to said corporation, provided they can acquire a free and unincumbered title to said property. It is agreed that all things necessary have been done and that the facts presented properly bring the case under C. S. § 1214, as amended by chapter 13, Public Laws, Extra Session, 1924, which authorizes a sale, under certain conditions, free and clear of any and all incumbrances, by the receivers of an insolvent corporation, of the property of such corporation. But it is debated between the parties here as to whether the amendment to this section can apply to the present proceeding the same having been instituted before the passage of the amendment. The trial court held the whole statute, as amended, applicable, and by consent, confirmed, in chambers, an order directing a conveyance of the property free and clear of all incumbrances. The correctness of this ruling is challenged by the appeal.

C. S. § 1214, provides:

"When the property of an insolvent corporation is at the time of the appointment of a receiver incumbered with mortgages or other liens, the legality of which is brought in question, and the property is of a character materially to deteriorate in value pending the litigation, the court may order the receiver to sell the same, clear of incumbrance, at public or private sale, for the best price that can be obtained, and pay the money into the court, there to remain subject to the same liens and equities of all parties in interest as was the property before sale, to be disposed of as the court directs."

The amendment of August 20, 1924, adds the following at the end of said section:

"And the receiver or receivers making such sale is hereby authorized and directed to report to the resident judge of the district or to the judge holding the courts of the district in which the property is sold, the said sale for confirmation, the said report to be made to the said judge in any county in which he may be at the time; but before acting upon said report, the said receiver or receivers shall publish in some newspaper published in the county or in some newspaper of general circulation in the county, where there is no newspaper published in the county, a notice directed to all creditors and persons interested in said property, that the said receiver will make application to the judge (naming him) at a certain place and time for the confirmation of his said report, which said notice shall be published at least ten days before the time fixed therein for the said hearing. And the said judge is authorized to act upon said report, either confirming it or rejecting the sale; and if he rejects the sale it shall be competent for him to order a new sale and the said order shall have the same force and effect as if made at a regular term of the Superior Court of the county in which the property is situated."

Paragraph 19 of the agreed statement of facts in the case at bar is as follows:

"That on...