Hines v. Williams, 198 N.C. 420 (1930)

March 5, 1930 · Supreme Court of North Carolina

198 N.C. 420

A. J. HINES v. W. A. WILLIAMS et al.

(Filed 5 March, 1930.)

Taxation H a — Where contingent interests oí children living and unborn are represented by guardian ad litem they are hound by foreclosure proceedings of tax certificate.

Under the provisions of chapter 334, Public Laws of 1929, amending the procedure for the sale of lands for taxes as theretofore provided by statute (O. S., 8038, Art. 14, amended by Public Laws of 1927, etc.), requiring that the deed shall convey the real estate in fee to the purchaser at the foreclosure sale for taxes free from any claims of the taxpayer, his wife, the husband or any other person whether or not such person’s claims are disclosed by the record, it is held: that where the lands so sold are subject to a life estate with contingent remaindermen over, involving the contingent interests of children living and unborn, and all interests are properly before the court either in person or by guardian ad litem, and have been legally represented, the judgment is binding upon all of the parties, and the purchaser gets good title to the property thereunder in fee simple absolute as against all parties having a vested or contingent interest. O. S., 452, 1744, 1745.

Appeal by tbe purchaser of real estate under a tax sale certificate to determine tbe validity of a deed tendered to him by tbe commissioner appointed to make tbe sale. Heard by Devin, J., at December Term, 1929, of Wilsojst.

Affirmed.

N. W. Williams died leaving a will containing tbe following devise: “I give and devise to my daughter' Sug Allen, tbe wife of L. A. Allen, . . . a certain tract or parcel of land (describing it). To have and to bold tbe above-described . . . tract of land to ber, tbe said Sug Allen, for and during tbe term of ber natural life and no longer, and after ber death to ber issue in fee, if any, and in tbe event she dies without issue, thence to Plummer Williams, Wiley Williams, and tbe son of Bug Williams, now deceased, and tbeir issue. But in tbe event either should die without issue bis share is to pass and vest in tbe survivor, or tbeir issue, share and share alike.” Sug Allen died without issue, and tbe title then vested in Plummer Williams, Wiley Williams (who is W. A. Williams), and Willard Williams, son of Bug Williams, subject to tbe condition subsequent. These three filed a petition before tbe clerk of tbe Superior Court for partition of tbe land described in tbe foregoing devise. Lot No. 2 was allotted to Wiley Williams, and be listed tbe land in bis own name for tbe taxes in 1926. Tbe tax on tbe land was not paid, and on 8 June, 1927, tbe sheriff of Wilson County sold tbe land for nonpayment of tbe taxes, and A. J. Hines became tbe purchaser. Thereupon tbe sheriff issued to him a tax sale certificate as prescribed by law. More than twelve months elapsed and tbe land was not redeemed; it was sold on 4 June, 1928, for tbe taxes of 1927, and tbe county of Wilson became tbe purchaser. Tbe plaintiff brought suit to foreclose tbe tax sale certificate; a guardian ad litem was appointed for tbe children of Wiley Williams, all of whom are minors; and the guardian filed an answer admitting tbe allegations of tbe complaint. All parties known to have any interest in tbe land, either rested or contingent, were made parties defendant in pursuance of chapter 221 of tbe Public Laws of 1927; tbe clerk made an order -that notiee be given to all persons claiming an interest to appear in tbe action and set up their defense. Tbe notice was accordingly issued and a guardian ad litem was appointed for tbe unborn children and unborn claimants and he filed an answer admitting tbe allegations of tbe complaint. Tbe clerk adjudged that tbe plaintiff held a certificate of sale executed by the sheriff on 6 June, 1927; that as purchaser be bad a lien on the property in tbe amount set out in tbe judgment; and that a commissioner sell tbe land on Monday, 30 September, 1929, and make a report of tbe sale. Tbe commissioner sold tbe land, and made bis report; and the clerk confirmed tbe sale and directed the commissioner to make a deed in fee to tbe purchaser. Tbe commissioner tendered a deed conveying tbe property in fee simple and tbe purchaser declined to accept tbe deed and pay tbe purchase price. A rule was served upon him to show cause why be should not -accept tbe deed, and be answered that tbe commissioner could not convey an indefeasible fee for tbe reason that certain minors have vested and contingent interests in said property which tbe commissioner was not authorized to convey. Tbe clerk held that tbe deed conveyed a good and indefeasible title in fee. The purchaser excepted and appealed to tbe Superior Court and tbe judgment of tbe clerk was affirmed. Tbe purchaser excepted and appealed to tbe Supreme Court.

David Isear for plaintiff, appellant.

B. L. Brinkley and Connor & Hill for appellee.

Attorney-General Brummitt and Assistant Attorney-General Nash as Amici Curice.

Adams, J.

Tbe appeal presents tbe question whether tbe commissioner’s deed conveys a good title to the purchaser.

It was formerly provided by statute that tbe land of a minor should in no case be liable to sale for taxes, but that bis guardian should pay tbe tax when due; also that in'case of tbe guardian’s default tbe tax list in tbe hands of tbe sheriff should be an execution to be satisfied out of his individual property or out of tbe personal property of bis ward. Laws 1872-73, cb. 115, see. 28(4); Laws 1876-77, cb. 155, sec. 29; The Code, sec. 3691. In 1887 the General Assembly modified the law by appending the following proviso to the section conferring the right to redeem land sold for taxes: "Provided> that infants, idiots and insane persons may redeem any land belonging to them,from such sale within one year after the expiration of such disability, on like terms as if redemption had been made within one year from the date of said sale and from the date of each subsequent payment of taxes thereon at the rate of twenty per centum per annum on the several amounts so paid by the purchaser until redemption.” Laws 1887, ch. 137, sec. 65. Sections 91-93 gave the owner of a certificate of tax sale the right at his election to foreclose it by a civil action at any time before the expiration of two years from the date of the certificate.

This proviso is the last clause in section 8038, Article 14, of the Consolidated Statutes. In several material respects Article 14 was amended by the act of 1927. Sections 8028-8037 were repealed and others were substituted. In the latter the holder of a certificate of sale is given the right of foreclosure by a civil action; the purchaser is given a lien as in case of a mortgage on the real estate sold for the amount paid and interest, penalties, costs, and charges; those claiming an interest disclosed by the records must be parties to the action; notice must be given to all other persons claiming an interest in the subject-matter; and a judgment of foreclosure may be rendered. In 1929 statutes were enacted affecting the procedure and providing that the deed shall convey the real estate in fee to the purchaser, free from any claims of the taxpayer, the wife, the husband, or any other person whether or not such claims are disclosed by the records. Laws 1929, ch. 204, ratified on 16 March, 1929, and ch. 334, ratified 19 March, 1929, as of 9 March, 1927.

It is not the policy of the law indefinitely to suspend the payment of taxes. The statutes which formerly prohibited the sale of an infant’s land for taxes provided for the enforcement by other means of timely payment. It was a general rule of the common law that an infant should lose nothing by nonclaim or neglect of demanding his right and that his disabilities should be deemed privileges securing him from the harmful consequences of his improvident acts; but when sued he was protected by a guardian who was to defend him from all attacks. Courts of equitable jurisdiction exercised their general power and duty as parens patrice for his protection; and an infant when represented by a guardian, subjected to the jurisdiction of the court, and taken, under the protection of the law, was as a rule bound by the judgment or decree.

It is contended that the last clause of section' 8038 should be interpreted as applying only to cases in which the purchaser, instead of foreclosing his certificate, demands and receives from the officer a deed under section 8024 et seq., and tbat tbe clause in tbe act of 1927, cb. 221, sec. 4, declaring foreclosure to be tbe purchaser’s “sole right and only remedy” debars tbe purchaser from calling for a deed under tbe sections referred to and by implication repeals the minor’s right of redemption after bis disability expires. This question does not necessarily arise on tbe record. Tbe plaintiff is not an infant attempting to redeem land sold for taxes, but a purchaser under proceedings to foreclose a tax sale certificate. Tbe last clause of section 8038 evidently has no application to cases in which tbe certificate is foreclosed and tbe infants are properly before tbe court and protected by its judgment. In tbe present case tbe certificate was duly foreclosed; a guardian ad litem was appointed for tbe infant defendants, and, after due service of process, be filed an answer for them; another guardian.ad litem appointed to represent tbe unborn children of Wiley Williams, Plummer Williams and Willard Williams and all other persons who have or may have any interest in tbe land, after due service of process, likewise filed an answer. Tbe clerk, after adjudging a foreclosure of tbe certificate, appointed a commissioner to sell tbe land, confirmed bis report of tbe sale, and directed him to execute a deed to tbe purchaser. It appears tbat tbe infant defendants and all persons having a vested or contingent interest in tbe land have bad their day in court. We must therefore bold tbat they are bound by tbe judgment and tbat tbe deed conveys title in fee to tbe purchaser. Lumber Co. v. Herrington, 183 N. C., 85; Bank v. Alexander, 188 N. C., 667, 671; Matthews v. Joyce, 85 N. C., 258; Glisson v. Glisson, 153 N. C., 185; Rawls v. Henries, 172 N. C., 218; C. S., 452, 1744, 1745.

Judgment afiirmed.