Craven County v. Parker, 194 N.C. 561 (1927)

Nov. 16, 1927 · Supreme Court of North Carolina

194 N.C. 561

CRAVEN COUNTY v. RICHARD PARKER and J. C. RASBERRY.

(Filed 16 November, 1927.)

1. Taxation — Counties—Foreclosure—Sales—Notice—Statutes.

In an action by the county to foreclose upon the lands of a delinquent taxpayer for the nonpayment of his taxes, C. S., 8037, due for 1920', and since, the notice required by chapter 159, section 51, Public Laws of 1897, construed as a condition precedent to the sale, is superceded by C. S., 8014, requiring the sheriff before making such sale to give public notice of the time, place and cause thereof, with such other notiqe required by the preceding section, 8013, that the sheriff serve upon the delinquent at least twenty days before the sale of his real property, a copy of so much of the advertisement as relates to. him.

2. Same — Purchase—Title.

In an action by a county to foreclose upon the real property of a delinquent taxpayer, it is not required for the plaintiff to show that the sheriff had served a copy of the advertisement on the delinquent as provided by O. S'., 8013, and his failure in this respect is not regarded as fatal to the maintenance of the county’s action to foreclose, O. S., 8028, 8029; and, held, further, the county, when the purchaser, is not required to make affidavit of the fact of notice given under the section 8029.

3. Same — Personal Property — Lands—Real Property.

C. S., 8006, providing ior the sale of the personal property of the delinquent taxpayer before that of his realty, is for the benefit of the taxpayer, and the failure of the sheriff to comply therewith does not affect the title of the purchaser at the sale under foreclosure of the realty for taxes.

4. Same — Description of Lands — Parol Evidence.

The description of the real property advertised to be sold by the sheriff of the county for nonpayment of the taxes of a delinquent giving his name and the number of acres “Washington Road, No. One Township,” is not too vague for or uncertain to admit of parol testimony of identification, when the designated owner has but one tract of real estate in the county advertising the sale in its proceedings to foreclose.-

5. Same — Penalties—Interest—Judgments.

In an action by the county to foreclose on the real property of a delinquent taxpayer, the statutory penalty applies, and the defendant cannot successfully maintain that before final judgment only straight interest is recoverable.

Appeal by defendants from Harris, J., at September Term, 1927, of CRAVEN.

Action to foreclose certificates of sale of real estate for taxes beard and determined upon tbe following facts:

1. Tbe plaintiff is a municipal corporation of tbe State of North Carolina, with tbe power of levying taxes upon property situate therein.

2. That during tbe years 1920, 1921, 1922, 1923, and 1924, Eichard Parker, tbe defendant, was tbe owner of said land, and J. 0. Easberry, tbe defendant, bad a mortgage given for tbe -purchase price upon tbe same. That the taxes for tbe year 1920 was $161.40; for 1921, $121.26; for 1922, $128.72; for 1923, $166.26, and for 1924, $164.30.

3. In 1920, tbe said Eichard Parker listed personal property for $858.00; in 1921, for $740.00; for 1922, $680.00; in 1923 for $370.00, and in 1924 for $288.00.

4. On 1 October, 1921, Eichard Parker, in whose name tbe land was assessed for taxes, owned personal property in excess of tbe sum of $161.40; that in August, 1922, Eichard Parker owned personal property in excess of $121.26; that in October, 1923, tbe said Eichard Parker owned personal property in excess of $128.72; and in October, 1924, Eichard Parker owned personal property in excess of $166.20; and in December, 1925, Eichard Parker owned personal property in excess of $164.30, and that tbe taxes now sought to be collected against tbe land include taxes assessed against tbe j>ersonal property for each year.

5. No levy was made for tbe taxes for 1920, 1921, 1922, 1923, or 1924, on tbe personal property of tbe said Eichard Parker for tbe taxes then due by said Eichard Parkeri

6. No notice was ever served upon Eiebard Parker or tbe defendant, J. C. Easberry, in regard to tbe taxes for 1920, 1921, 1922, 1928 and 1924, except tbe usual newspaper notice of tbe sale of land by tbe sheriff for taxes. Tbe reference to wbicb land in said advertisement was as follows: “Eiebard Parker, 250 acres, Washington Eoad, No. One Township,” and no other description was given or notice made, and this notice was published in a newspaper published in New Bern, N. 0., Craven County; that said 250 acres was tbe only land owned by Eiebard Parker in Craven County.

7. Tbe defendant, J. C. Easberry, then lived and now lives in Lenoir County at Kinston, N. C., and tbe defendant Eiebard Parker lived at Yanceboro, Township No. 1, Craven County, and neither tbe defendant Easberry nor Parker was a subscriber to said paper, and tbe first notice that tbe defendant, J. 0. Easberry, bad of any claim for taxes by tbe plaintiff was tbe issuance of tbe summons in 'this action, but repeated notices bad been mailed to Parker, and one left at bis home by tbe sheriff before tbe commencement of this suit.

8. Tbe only description of tbe land in tbe certificate issued by tbe county following said sale was “250 acres, Washington Eoad,” listed to Eiebard Parker.

9. Tbe defendant, Easberry, during tbe years in wbicb this land was sold for taxes, and for wbicb suit is brought, held a mortgage upon said land, and tbe amount due under said mortgage for wbicb tbe land is the only security does not exceed tbe amount claimed by tbe plaintiff for taxes with tbe interest thereon.

10. Tbe defendant, J. C. Easberry, has tendered to tbe plaintiff tbe full amount of taxes due on said land in accordance with tbe record of tbe taxes assessed during tbe years and each year thereof, and in addition thereto has tendered to tbe plaintiff tbe amount of tbe aforesaid taxes, together with six per cent interest on tbe taxes from tbe date of sale thereof, and tbe plaintiff has declined and refused to accept such tender.

Tbe court gave judgment in favor of tbe plaintiff for tbe taxes, cost of sale, interest and penalties due by tbe defendant Parker, owner and mortgagor, and appointed a commissioner to sell tbe land if not redeemed within tbe time specified. Tbe exceptions are noted in tbe opinion.

B. F. Whitehurst for plaintiff.

Moore & Dunn and F. F. Wallace for defendants.

Adaks, J.

It is made tbe duty • of tbe board of commissioners or other governing body of a county to foreclose certificates held by tbe county for the sale of real estate for taxes. Q. S., 8037. For this purpose the plaintiff brought suit against the defendant Parker, owner and mortgagor of the land, and the defendant, Rasberry, who is mortgagee. The only answer filed is that of Rasberry. He attacks the judgment on the ground that the sheriff failed to serve on the delinquent taxpayer a copy of the advertisement of sale as provided by C. S., 8013, and cites Matthews v. Fry, 141 N. C., 582, as authority for this position. That was an action for the recovery of land in which the defendant relied upon title alleged to have been acquired at á sale for the nonpayment of taxes. The decision turned on the construction of certain sections of chapter 159, Public Laws 1897. Section 51 provided that before any real estate should be sold for taxes the sheriff or tax collector should personally serve a written or printed notice of such sale on the delinquent taxpayer or his agent at least thirty days before the sale if the delinquent resided in the county. It was held that the defendant had acquired no title because the sheriff had failed to serve the notice. It was made to appear in addition that the sheriff had not given any notice of the sale by publication. Section 51 seems to have been construed as a condition precedent. But a material change has been made and the statute now reads, “Before any real estate shall be sold for taxes the sheriff shall give public notice of the time, place and cause of such sale by advertisement,” etc. C. S., 8014. Other notice to the delinquent is provided for in the preceding section: “In addition to this advertisement the sheriff shall, at least twenty days before a sale of real estate for taxes, serve upon each delinquent taxpayer whose real estate is advertised for sale ... a copy of so much of the advertisement as relates to him and his real estate.” In King v. Cooper, 128 N. C., 347, cited in Matthews v. Fry, supra, it was said: “We think the notices and publication presumed under section 69(7) (Laws 1897, ch. 169) to have been given are those required of the sheriff by section 51 of the act, but the notices required with so much particularity to be given by the purchaser under the new sections, 64 and 65 (C. S., 8028, 8029), must be proved by him.” Section 8029 provides that the purchaser shall make affidavit that he has complied with the preceding section; but the affidavit is not required when the county is the purchaser. It would seem to follow that in a suit to foreclose the certificate, the decision in Sanders v. Earp, 118 N. C., 275, and Geer v. Brown, 126 N. C., 238, is controlling, and that the officer’s failure to serve a copy of the advertisement on the delinquent should not be construed as fatal to the action.

The appellant contends that the sale was invalid because the sheriff did not first levy upon and sell the delinquent’s personal property.

Tbe statute provides tbat tbe personal property of tbe taxpayer shall be sold before resort can be bad to bis real estate, and tbat upon service of notice tbat bis real estate is to be sold for taxes, it shall be incumbent upon him to point out tbe personal property out of which tbe taxes should be made. O. S., 8006. It is admitted tbat tbe notice was not given. It is argued tbat it was therefore not required of tbe defendant Parker to direct tbe officer to bis personal property. Tbe statute just cited was enacted primarily for tbe benefit of tbe taxpayer and not in detriment of tbe purchaser’s title. Accordingly, it has been held tbat although tbe sheriff may be liable to tbe tax debtor if be sells real estate for taxes before resorting to personal property, still such failure will not affect tbe title conveyed by tbe sheriff’s deed. Stanley v. Baird, 118 N. C., 75; Geer v. Brown, supra; Cherokee v. McClelland, 179 N. C., 127, 132. Moreover, tbe Machinery Act provides “tbat where actual sales of real estate are made for taxes under tbe general laws of tbe State tbe taxpayer whose real estate has been sold for taxes shall be precluded thereafter from attacking such sale on tbe ground tbat tbe tax could have been procured from personal property.” P. L. 1925, cb. 102, sees. 99, 111.

Tbe land was advertised under this description: “Richard Parker, 250 acres, Washington Road, No. One Township.” Tbat this description was indefinite is another ground upon which it is contended tbat tbe tax sale was not valid. It is admitted tbat this is tbe only land owned by Richard Parker in Craven County. Tbe description given evidently embraces 250 acres, situated on Washington Road in Number One Township, owned by Richard Parker; and tbe description is sufficiently definite to sustain tbe certificate which tbe plaintiff seeks to foreclose. Proctor v. Pool, 15 N. C., 370; Ritter v. Barrett, 20 N. C., 266; Kitchen v. Herring, 42 N. C., 190; Moses v. Peak, 48 N. C., 520; Farmer v. Batts, 83 N. C., 389; Blow v. Vaughan, 105 N. C., 199; Norton v. Smith, 179 N. C., 553. Tbe case of Bryson v. McCoy is distinguishable. There tbe notice of sale was “Beaverdam Township. T. D. Bryson heirs, acres 400, amount $10.00”; but T. D. Bryson’s interest was a one-half interest in 70 acres, 200 acres, and 331 acres, according to tbe grants. In tbe case before us there is no such discrepancy in description, tbe only point being whether tbe land in question can be identified.

Tbe appellant finally contends tbat tbe plaintiff in any event can recover nothing more than tbe taxes due and interest thereon at 6 per cent. “In every action brought under this section, whether by a private individual or by tbe county or other municipal corporation, or any other corporation, tbe plaintiff shall, except in cases otherwise provided by law, be entitled to recover interest at tbe rate of 20 per centum per annum on all amounts paid out by bim, or those under wbom be claims, and evidenced by certificates of tax sale, deed under tax sale, and tax receipts. Sucb interest shall be computed from date of each payment up to tbe time of redemption or final judgment, and shall be added to tbe principal of tbe final judgment, which judgment shall bear interest as in other cases.”

The amendment prohibits the board of county commissioners from remitting any of the penalties prescribed in the section after action is brought for foreclosure. P. L. 1925, ch. 109. Judgment

Affirmed.