Town of Asheboro v. Morris, 212 N.C. 331 (1937)

Nov. 3, 1937 · Supreme Court of North Carolina

212 N.C. 331

TOWN OF ASHEBORO v. CLIFFORD MORRIS and DOROTHY MORRIS, His Wife; GEORGE T. MURDOCK, Trustee, and E. G. MORRIS, JR., and E. G. MORRIS, JR., v. THE TOWN OF ASHEBORO and L. T. HAMMOND, Commissioner.

(Filed 3 November, 1937.)

1. Municipal Corporations § 34: Limitation of Actions § 1—

An action to enforce a lien against property for paving assessments is not barred in three years from maturity of tbe installments, since C. S., 441 (10), relates to individuals and not to tbe sovereign power.

S. Limitation of Actions § 1—

Statutes of limitation never apply to tbe sovereign unless expressly named therein.

3. Municipal Corporations § 34: Limitation of Actions § 2f—

An action by a municipality to foreclose a certificate of sale of land for paving assessments is not barred until after twenty-four months from tbe date of tbe certificate, C. S., 8037, and where the action is instituted within that time, and kept alive by the issuance of alias summons, the plea of the statute is bad.

4. Municipal Corporations § 34: Limitation of Actions § 1—

Where a municipality elects to enforce a lien against land for paving assessments by action under C. S., 7990, no statute of limitations is applicable, and the pleadings in this action áre held sufficient to bring the action within the procedure under this statute.

Appeal by defendant E. Gr. Morris, Jr., from Rousseau, J., at July Term, 1937, óf Eandolph. No error.

This is an action originally instituted by tbe town of Asbeboro against Clifford Morris et dl., 31 May, 1932, to foreclose tbe lien of a street assessment. Tbe street assessment was confirmed on 31 August, 1925, and was payable in ten equal annual installments, tbe first of wbicb matured 1 October, 1926. No part of tbe original assessment bas been paid. E. C. Morris, Jr., intervened as tbe then owner of tbe equity in said property and entered a plea of tbe statute of limitations as set out in tbe opinion.

Tbe original defendants filed no answer.

An interlocutory order of sale having been made prior to tbe time E. Gr. Morris, Jr., intervened, tbis defendant instituted an action to enjoin tbe sale. Tbe two cases were consolidated and beard at tbe July Term, 1937, Eandolpb County Superior Court. Tbe court submitted one issue as follows:

“Is tbe plaintiff’s cause of action for tbe foreclosure of its street and sidewalk assessment lien against tbe property described in tbe complaint barred by tbe ten-year statute of limitations ?” Under tbe instructions of tbe court tbe jury answered tbe issue “No.” Judgment was rendered tbereon, dissolving tbe restraining order and directing tbe sale of tbe property to satisfy tbe lien. Tbe defendant E. G. Morris, Jr., excepted and appealed.

L. T. Hammond and H. M. Robins for plaintiff, appellee.

J. A. Spence and J. G. Prevette for defendant, appellant.

BaeNHIll, J.

No evidence offered at tbe trial is included in tbe record. It does not appear whether tbe cause was submitted to tbe jury upon evidence offered or upon tbe admissions contained in tbe pleadings. It, therefore, does not appear just why tbe quoted issue was submitted to tbe jury. There is no plea of tbe ten-year statute of limitations made by tbe defendant. Be that as it may, tbe record presents questions of law wbicb are determinative of tbe rights of tbe parties hereto. Tbe case might well be considered as one in wbicb judgment was rendered upon tbe pleadings, wbicb is apparently tbe ultimate effect of tbe proceedings below.

Tbe defendant makes two contentions, to wit:

(1) “That more than three years have elapsed from tbe time of tbe coming due of said street assessments to tbe beginning of tbis action, and also to tbe sale of said land for assessments, and tbe same is pleaded in bar of plaintiff’s recovery”; and (2) “that more than eighteen months elapsed from tbe date of certificate of sale of tbe property described in the complaint to the beginning of this action, and the same is pleaded in bar of plaintiff’s recovery.”

1. The plaintiff was not required to institute its action within three years after the maturity of the street assessment installments. C. S., 441 (10), relates to individuals and not to the sovereign power. C. S., 7987, provides that the lien on realty for taxes levied “shall continue until such taxes, with any penalty and costs which shall accrue thereon, shall be paid.” Carstarphen v. Plymouth, 186 N. C., 90; Vaughan v. Lacy, 188 N. C., 123; New Hanover County v. Whiteman, 190 N. C., 332. Statutes of limitations never apply to the sovereign, unless expressly named therein. New Hanover County v. Whiteman, supra.

2. Considering the action instituted by the town of Asheboro as an action to foreclose the tax sale certificate defendant’s second plea is without merit. The record shows that the sale was had 2 June, 1930. This action was instituted 31 May, 1932, and was kept alive by alias summons. C. S., 8037, provides that cities, towns and counties shall institute an action to foreclose certificates of sale within twenty-four months from the date of the certificate and the action was instituted within the time prescribed by this statute.

But in no event are the pleas entered by the defendant well founded. An examination of the record discloses that the plaintiff proceeded under the terms of C. S., 7990. It is true that the complaint makes reference to the sale by the tax collector and the issuance of the tax sale certificate, but the defendant’s answer to this section constitutes a denial. The plaintiff further alleges: “(7) There is now outstanding due the plaintiff, by virtue of the aforesaid assessment and lien, and unpaid, the sum" of $1,270.47, with interest thereon from 31 August, 1925, until paid, etc., and the samé was and is a first lien against said property”; and in its prayer for relief it demands judgment that the said amount be declared a first lien on the aforesaid real estate, that said lien be foreclosed and said property sold and the proceeds applied, so far as the same will go, or may be required, in discharge of said assessment and lien, with interest and costs. Where the sovereign elects or chooses to proceed under C. S., 7990, no statute of limitations is applicable. Logan v. Griffith, 205 N. C., 580; New Hanover County v. Whiteman, supra.

The defendant has no just cause for complaint. The property now owned by him has received the benefits arising from the improvements made, and he purchased the property subject to the lien. Equity and good conscience require that the property shall be liable for its just portion of the cost. There was no error in the refusal of the court below to submit the issues tendered by the defendant, nor in its instructions to the jury. The facts admitted in the pleadings would entitle the plaintiff to the' judgment entered.

No error.