Dunn v. Jones, 192 N.C. 251 (1926)

Oct. 6, 1926 · Supreme Court of North Carolina
192 N.C. 251


(Filed 6 October, 1926.)

Deeds and Conveyances — Tax Deeds — Mortgages—Statutes.

In order to the validity of a tax deed as against one who has since acquired title to the lands by foreclosure sale under the power in a mortgage, existing at the time, the notice required by C. S., 8028 must have been given the mortgagee, the land must be sufficiently described in the. tax collector’s certificate, and in the plaintiff’s affidavit, and the statutory notice properly shown to have been given the defendant.

Civil actioN before Bond, J., at June Term, 1926, of Lenoir.

Plaintiff brought suit against the defendant for possession of a lot of land in the city of Kinston, claiming to be the owner of the land by virtue of a tax deed made by W. B. Coleman, city tax clerk and tax collector for the city of Kinston. The defendant resisted the claim of the plaintiff on the ground that the tax deed was not executed in compliance with the statute. On 16 June, 1914, F. I. Jones and wife executed a mortgage on the land in dispute to J. Gr. Banton, cashier, Holloway, Murphy & Co., bankers of the county of Lenoir. The land was sold for taxes'by the city of Kinston on 6 June, 1922, and purchased by J. G. Banton, cashier of said bank. Thereafter, on 22 January, 1923, Banton *252transferred tbe note and mortgage to tbe defendant, Yictoria Jones. Thereafter, on 28 February, 1923, Banton sold tbe tax certificate to tbe plaintiff.

Tbe affidavit of tbe plaintiff described tbe land as “land of Fred I. Jones, deceased.” Tbe certificate from Coleman, tax collector, described tbe land as follows: “One lot of land listed by E. I. Jones.” Tbe transfer of tbe mortgage from Banton, mortgagee, to tbe defendant was as follows: “For value received, tbis mortgage and note transferred to Victoria Jones. J. G. Banton, casbier, Peoples Bank, 1/22/23.”

At tbe conclusion of all tbe evidence tbe trial judge dismissed tbe action and tbe plaintiff appealed.

Charles F. Dunn, in ‘propria persona.

Shaw, J ones & J ones for defendant.

Per Oueiam.

Tbe plaintiff in bis brief says: “When tbe rich young ruler went to Christ and asked what be should do to inherit eternal life, tbe Great Teacher told him bow be could do so, and tbe young ruler told Christ that be bad done all of tbe things enumerated, and asked tbe Master, 'What lacketb I now?’ and tbe Great Teacher told him what be should do in addition to what be bad done. I m',ost respectfully contend that I have done what is laid down in tbe statutes in cases of tbis kind, and I most respectfully ask tbis Court, ‘What lacketb I now V

In tbe first place, tbe plaintiff “lacks” an accurate reference to tbe rich young ruler as will appear from an examination of tbe record. Mark, 10 :17-23; Luke, 18:18-23. Tbe Biblical record discloses that tbe rich young ruler lacked only one thing; while, on the other band, the title of plaintiff lacks several essentials to a valid tax title.

1st. There is no notice to tbe mortgagee Banton or Holloway, Murphy & Co. as required by statute. Tbe assignment of tbe mortgage, not purporting to act upon tbe land, does not pass tbe estate of tbe mortgagee in tbe land. C. S., 8028; Williams v. Teachey, 85 N. C., 402; Weil v. Davis, 168 N. C., 298; Banks v. Sauls, 183 N. C., 165; Trust Co. v. White, 189 N. C., 281; Collins v. Dunn, 191 N. C., 429; Price v. Slagle, 189 N. C., 757.

2nd. Tbe certificate of tbe city tax collector contained no sufficient description of tbe land as required by statute. Collins v. Dunn, 191 N. C., 429.

3rd. Tbe affidavit of tbe plaintiff does not sufficiently describe tbe land as required by law, tbe only description of tbe land in tbe affidavit being “land of Fred I. Jones.” Collins v. Dunn, 191 N. C., 429; Price v. Slagle, 189 N. C., 757.

*2534tb. There is’ no evidence of proper statutory notice to the defendant, Victoria Jones. The receipt of a registered package alone, and without evidence that the package contained the alleged notice, is insufficient. Collins v. Dunn, 191 N. C., 429.

The Biblical record in Luke, 18:18-23, states that when the rich young ruler heard the words of the Master “he was very sorrowful; for he was very rich.” In the case under consideration, if the plaintiff is sorrowful, by reason of this decision, it is because he has failed to observe and strictly comply with the statutes determining the validity of tax titles.