Logan v. Griffith, 205 N.C. 580 (1934)

Jan. 10, 1934 · Supreme Court of North Carolina

205 N.C. 580

J. M. LOGAN, Receiver of FIRST NATIONAL BANK OF CHARLOTTE, N. C., and JOHN D. SHAW, Trustee, v. E. C. GRIFFITH and Wife, FRANCES GRIFFITH; THAD L. TATE, and F. O. CLARKSON, Trustee.

(Filed 10 January, 1934.)

1. Taxation H 1) — N. O. Code, 8028, provides exclusive remedy of individual on tax certificate and limitation therein prescribed applies.

N. O. Code of 1931, see. 8028, provides an exclusive remedy of an individual on a tax sale certificate, and the limitation therein prescribed for bringing action thereon applies, and an individual bringing action based on a tax sale certificate may not avail himself of the fact'that no limitation is prescribed in C. S., 7990, by alleging that the tax certificate was assigned him by the county and that the action was brought under section 7990:

2. Same: Limitation of Actions E c—

Limitation on foreclosure of tax sale certificate cannot be taken advantage of by demurrer. C. S., 405.

Civil actioN, before Cowper, Special Judge, at January Term, 1933, of MECKLENBURG.

It was alleged that Mr. L. W. Humphrey returned for taxation his land in Mecklenburg County for the year 1928, and that having failed to pay the taxes the land was duly sold in June, 1929, at which sale Mecklenburg County became the highest bidder at said sale for the amount of taxes and penalties then due by the said L. W. Humphrey for his 1928 taxes in the sum of $440.27. That thereafter on 13 November, 1930, the First National Bank paid to the county of Mecklen-burg the sum of $507.78, and in consideration therefor the county of Mecklenburg duly assigned the tax sale certificate describing the tract of land to John D. Shaw, trustee for the First National Bank of Charlotte, N. C., and the “said First National Bank thereby acquired the lien of the county of Mecklenburg for 1928 taxes of L. W. Humphrey.” It was further alleged that subsequently E. C. Griffith bought the land subject to taxes due or which might be a lien thereon, and that on 23 September, 1923, Griffith and wife borrowed from his codefendant, Thad L. Tate, the sum of $5,350, and as security executed and delivered to the defendant, F. 0. Clarkson, trustee, a deed of trust upon the property. It is further alleged that the amount of said taxes “is a lien upon the real estate hereinafter described, having precedence over the deed of trust of F. 0. Clarkson, trustee.” The twelfth allegation of the complaint is substantially as follows: “That this action is brought under the provisions of section 7990 of the Consolidated Statutes of North Carolina, in the nature of an action to foreclose a mortgage for the purpose of foreclosing the lien of the said taxes upon the real estate hereinbefore described, and that the plaintiffs are informed and believe that the defendants herein are all parties having any interest in said real estate, other than the lien of said taxes which is owned and held by the plaintiffs.”

The prayer for relief is as follows: “Wherefore, the plaintiffs pray for a judgment of foreclosure of the tax lien, and the enforcement thereof, in accordance with said section 7990 of the Consolidated Statutes, for the appointment of a commission of the court to sell the real estate hereinbefore described for the payment of said tax lien, for the costs of this action, and for such other and further relief as the plaintiffs may be entitled to in the premises.”

The defendants filed a demurrer. The grounds of the demurrer arc as follows: 1. “It appears upon the face of said complaint that the cause of action therein set forth is based upon the provisions of section 7990 of the Consolidated Statutes of North Carolina, being' an action to foreclose a lien for taxes in the nature of an action to foreclose a mortgage, when as a matter of fact the remedy sought to be enforced under said section is no longer available to plaintiffs, said remedy having been either repealed or merged into the remedy to foreclose tax sale certificate, as set forth in North Carolina Code of 1931, section 8028, et seq."

2. “That section 8028 of the North Carolina Code of 1931, now constitutes the sole right and only remedy for foreclosing a tax sale certificate, and that it appears upon the face of the complaint that the time had expired upon the date of the commencement of this action for the bringing of said suit according to the provisions of said section 8028,” etc.

3. “That C. S., 7990, reserved a remedy for governmental subdivisions and not for individuals.”

The trial judge sustained the demurrer and the plaintiffs appealed.

J ohn M. Robinson and Hunter M. J ones for plaintiffs.

Taliaferro & Clarkson for defendant.

Brogden, J.

Can tbe owner of a tax sale certificate maintain an action of foreclosure after tbe lapse of eighteen months from tbe date of tbe certificate?

Tbe applicable statutes create a lien for purchasers at tax sales, and also prescribe tbe procedure for enforcing said lien. “Foreclosure” is tbe process provided for turning tbe lien into money. Whether such lien be a plain lien arising from tbe bare purchase at tbe sale or payment of taxes or such as may be evidenced by a certificate of sale executed by tbe proper officers, tbe sovereign may proceed under C. S., 7990, to foreclose tbe lien, in which event no statute of limitations is applicable. But even if tbe sovereign elects or chooses to foreclose tbe sale certificate, C. S., 8037, sets tbe time clock on eighteen months from tbe date of tbe certificate, and after tbe lapse of that period, tbe remedy is ineffective. New Hanover County v. Whiteman, 190 N. C., 332, 129 S. E., 808; Shale Products Co. v. Cement Co., 200 N. C., 226, 156 S. E., 777; Wilkes County v. Forester, 204 N. C., 163.

It appears from tbe complaint that tbe First National Bank of Charlotte purchased tbe tax sale certificate from tbe county of Mecklenburg, and that thereafter tbe bank failed and tbe plaintiff as receiver thereof instituted an action to sell tbe land of tbe defendant upon tbe theory that tbe tax sale certificate constituted a prior lien upon tbe premises. In paragraph twelve of tbe complaint tbe plaintiff declares that tbe action is brought in accordance with C. S., 7990, but in paragraph eight it is alleged that tbe plaintiff bank duly took an assignment of a tax sale certificate for tbe property “and tbe First National Bank thereby acquired tbe lien of tbe county of Mecklenburg for 1928 taxes of L. W. Humphrey upon tbe real estate.” Consequently, interpreting tbe complaint as a whole, it appears that tbe tax sale certificate is in fact tbe basis of tbe cause of action. Tbe North Carolina Code, 1931, section 8028, declares in plain English that a bolder of a tax sale certificate “shall have tbe right of foreclosure of said certificate of sale by civil action, and this shall constitute tbe sole right and only remedy to foreclose tbe same.”

It appears from tbe complaint that tbe sale was made in June, 1929, and that tbe plaintiffs acquired tbe certificate in November, 1930, and that tbe action was brought on 28 January, 1932. Hence, tbe sole remedy available to plaintiff • upon bis certificate was barred at tbe time tbe action was instituted.

Notwithstanding, tbe judgment must be reversed, because tbe defendant cannot take advantage of the bar of tbe statute of limitations by demurrer. C. S., 405.

Reversed.