Court: Court of Appeals of North Carolina; September 6, 1983; North Carolina; State Appellate Court
Plaintiff Alice McMillan Brown seeks to invalidate a public sale and the associated deed concerning property jointly owned with her ex-husband, following a partition initiated due to their divorce. The defendants, co-commissioners of the sale, were accused of fraud and irregularities during the process. The trial court dismissed her action for failure to state a claim under G.S. 1A-1, Rule 12(b).
The appeal centers on whether this dismissal was appropriate. The sale occurred on April 28, 1978, where Brown was the highest bidder but later defaulted on payment after her ex-husband filed an upset bid. The property was ultimately sold to a third party on November 10, 1978, and a deed was recorded on December 19, 1978. Brown filed her action on April 19, 1982.
The court determined that the trial judge correctly dismissed the case, citing that the complaint revealed affirmative defenses obstructing any potential relief. Brown's attempt to challenge the sale collaterally was improper; instead, she should have used a direct approach through a motion in the original case or an appeal. Relevant statutes and precedents support that the appropriate remedy for alleged irregularities in judicial sales is not through collateral attack but rather through a motion in the original cause.
G.S. 1-339.28(a) mandates that no public sale of real property is final until confirmed by the clerk of court, who holds original jurisdiction over such sales. In cases of alleged fraud in special proceedings, plaintiffs must bring a motion to the clerk, who has exclusive jurisdiction. The plaintiff has the right to appeal the clerk's judgment within ten days per G.S. 1-272, which the plaintiff failed to do following the confirmation of the sale on December 12, 1978, instead waiting over three years to contest the sale on April 19, 1982.
The plaintiff's amended complaint references G.S. 46-19, claiming entitlement to impeach the clerk's confirmation. However, G.S. 46-19 requires a petition in the cause for impeachment, contingent upon the absence of an innocent purchaser for value. The plaintiff did not file such a petition and failed to establish that the buyer, Walter Jack Davis, was not an innocent purchaser. Additionally, G.S. 46-19 does not apply to partition sales, which are governed by judicial sale statutes.
Judicial sales can only be contested post-confirmation for mistake, fraud, or collusion. The plaintiff's request to declare the sale void is impeded by the rights of the bona fide purchaser, who becomes the equitable owner after confirmation. To set aside a judicial sale, claims of mistake, fraud, or collusion must be formally filed, adhering to procedural rules, including Rule 60(b)(3) of the Rules of Civil Procedure.
The plaintiff's action is dismissed because she failed to join Walter Jack Davis, a necessary party under G.S. 1A-1, Rule 19, whose presence is essential for the court to declare the deed null and void. Davis, as the equitable owner, must be included for a complete determination of the claim, as his absence prevents the court from granting the relief sought. Additionally, the plaintiff's other claims for relief, including the return of deposits from prior property sales totaling $1,025, are also dismissed due to the statute of limitations. The claims are based on fraud, which must be filed within three years of discovering the fraud, as stipulated by G.S. 1-52(9). The complaint indicates the plaintiff was aware of the relevant facts by November 10, 1978, but she did not file her action until April 19, 1982, exceeding the time limit. Consequently, the trial judge's dismissal of the case is upheld due to the absence of a viable claim for relief. The ruling is affirmed.
