County of Wake v. Johnson, 206 N.C. 478 (1934)

May 2, 1934 · Supreme Court of North Carolina

206 N.C. 478

COUNTY OF WAKE v. A. P. JOHNSON and His Wife, ANNIE JOHNSON.

(Filed 2 May, 1934.)

Taxation H c — Title of purchaser at tax foreclosure sale may not he attacked upon hearing of its motion for writ of assistance.

The title of the purchaser at a tax foreclosure sale may not be challenged by the listed owner upon the purchaser’s motion for a writ of assistance. In the instant case the land was bought by a municipality and it does not appear of record that the purchase of the land was ultra vires, a municipality having the power to purchase land for certain purposes. C. S., 2623(3).

Appeal by defendants from Harris, J., at' October Term, 1933, of Wake.

Affirmed.

This is an action to foreclose a tax certificate owned by the plaintiff. Under a decree rendered in the action, the land listed by the defendants for taxation by the county of Wake, and described in the tax certificate, was sold and conveyed by a commissioner appointed by the court for that purpose to the town of Wake Forest, a municipal corporation of this State.

The action was heard on a motion by the town of Wake Forest, the purchaser at the foreclosure sale, for a writ of assistance to be directed to the sheriff of Wake County, commanding the said sheriff to remove the defendants from and to put the said purchaser in possession of the land conveyed to the said purchaser by its deed. The defendants resisted the said motion on the ground that the town of Wake Forest had no power or authority to purchase the land described in its deed, and for that reason acquired no title to said land by the said deed.

From an order that the clerk of the Superior Court of Wake County issue the writ in accordance with the motion, the defendants appealed to the Supreme Court.

Wilson & Green for town of Waite Forest.

Gulley & Gulley for defendants.

CONNOR, J.

Tbe title of tbe purcbaser at a foreclosure sale, to whom tbe laud described in tbe complaint bas been conveyed by tbe commissioner appointed by tbe court for that purpose, cannot be challenged by a party to tbe action in wbicb tbe decree of foreclosure was rendered, upon tbe application of tbe purcbaser for a writ of assistance. Tbe decree and all proceedings pursuant thereto are binding and conclusive on tbe parties to tbe action, and on their privies. See Bank v. Leverette, 187 N. C., 743, 123 S. E., 268; Exum v. Baker, 115 N. C., 242, 20 S. E., 448.

In tbe instant case, tbe deed of tbe commissioner to tbe town of Wake Forest is not void. A municipal corporation bas tbe power to purchase land for certain purposes. 0. S., 2623(3). It does not appear from tbe record in this case that tbe purchase of tbe land described in its deed by tbe town of Wake Forest was ultra vires.

Tbe order that tbe clerk of tbe Superior Court issue tbe writ of assistance in accordance with tbe motion of tbe town of Wake Forest is

Affirmed.