Collins v. Dunn, 191 N.C. 429 (1926)

March 17, 1926 · Supreme Court of North Carolina

191 N.C. 429

PLATO COLLINS et al. v. CHARLES F. DUNN et al.

(Filed 17 March, 1926.)

Taxation — Deeds and Conveyances — Sales—Mortgages—Notice.

The claimant of land under a deed for nonpayment of taxes must show the prior notice of the sale as required hy statute, with sufficient description to identify the lands, as against a purchaser at a foreclosure sale under the power contained in a mortgage registered at the time.

Appeal by defendant, Charles F. Dunn, from Barnhill, J., at November Term, 1925, of LeNOIe. No error.

Action to remove cloud upon title to land, situate in tbe city of Kinston, N. 0. Frank Murrill, as owner of tbe land described in tbe complaint, listed tbe same for taxation for tbe year 1921. At tbe time tbe land was so listed, it was subject to a deed of trust, executed by Frank Murrill, conveying tbe same tó Jobn G. Dawson, trustee, to secure notes executed by Frank Murrill, payable to Plato Collins. These notes were endorsed and assigned by Plato Collins to tbe First National Bank of Kinston as collateral security for bis note to said bank. Neither Collins' note to tbe bank, nor tbe collateral notes have been paid. Tbe deed of trust was duly recorded. •

Tbe land was sold on 6 June, 1922, by tbe city tax collector of tbe city of Kinston for tbe collection of taxes assessed thereon as due tbe said city. Defendant, Charles F. Dunn, now claims title to said land under deed dated.day of June, 1923, executed by said city tax collector, purporting to convey same to him. This deed has been duly recorded in tbe office of tbe register of deeds of Lenoir County, in Book 76, at page 330.

Plaintiffs seek by this action to have said deed declared void and canceled as a cloud upon their title, under tbe deed of trust from Frank Murrill to John G. Dawson, trustee. Issues submitted to tbe jury, without objection, were answered in accordance with contentions of plaintiffs. From judgment upon tbe verdict, defendant, Charles F. Dunn, appealed.

F. F. Wallace for plaintiffs.

Charles F. Durm in propria persona.

Per Curiam.

Tbe evidence offered by plaintiffs was sufficient to sustain tbe allegations of their complaint. There was no error in tbe refusal of tbe court to allow tbe motion of defendant for judgment of nonsuit, at tbe close of tbe evidence. Tbe legal title to tbe land was in John G. Dawson, trustee, for tbe bolder of tbe notes secured therein; there was no evidence that tbe notes bad been paid or discharged. Tbe demurrer ore tenus for misjoinder of parties and because the complaint did not state a cause of action cannot be sustained.

Evidence offered by defendant, Dunn, to sustain his contentions that he is the owner of the land by virtue of a deed executed by the city tax collector of the city of Kinston was not of sufficient probative force to show compliance by him, as purchaser at the tax sale, with the provisions of the statute, relative to notice. C. S., 8028. There was no evidence of notice to John Gr. Dawson, trustee, who held the legal title to the land, or to Plato Collins, the payee named in the notes secured in the deed of trust. There is no contention that notice was served on the trustee; he testified that no notice was given to him by Dunn or by any one else that the land had been sold for taxes. The receipt for a registered package, signed in the name of Mr. Collins, by his wife, conceding that it is evidence that Mr. Collins received the package, proves nothing more; defendant offered no evidence as to the contents of the package. Mr. Collins testified that he had no notice of the sale of the land for taxes. The receipted bill for the publication of a notice in the Kinston Free Press, at most, is evidence only that some notice published in said paper, was paid for by Dunn; there was no evidence as to what the notice was. The affidavit offered by defendant,’ was to the effect that he had purchased “the land of Prank Murrill at a sale” made by the city tax collector on 6 June, 1923; this was not a sufficient description of the land, nor is the description of the land in the certificate of the city tax collector, to wit: ‘1 lot of land listed by Frank. Murrill,’ ” sufficient. Defendant offered no evidence in aid of the description in the certificate or in the affidavit.

There is no error in the charge of the court; assignments of error based upon exceptions to portions of the charge as indicated are not sustained. The judgment must be

Affirmed.