61 S.E.2d 717 (N.C. 1950), 388, Eason v. Spence

Docket Nº:388
Citation:61 S.E.2d 717, 232 N.C. 579
Party Name:EASON et al. v. SPENCE et al.
Case Date:November 08, 1950
Court:Supreme Court of North Carolina

Page 717

61 S.E.2d 717 (N.C. 1950)

232 N.C. 579

EASON et al.


SPENCE et al.

No. 388

Supreme Court of North Carolina.

November 8, 1950

Page 718

[Copyrighted Material Omitted]

Page 719

[Copyrighted Material Omitted]

Page 720

[Copyrighted Material Omitted]

Page 721

Wallace & Wallace, Kinston, and J. Faison Thomson, Goldsboro, for plaintiffs, appellees.

Whitaker & Jeffress and George B. Greene, all of Kinston, for defendants, appellants.

ERVIN, Justice.

Under Article I, Section 17, of the State Constitution, no person can be deprived of his property except by his own consent or the law of the land. The law of the land and due process of law are interchangeable terms. State v. Ballance, 229 N.C. 764, 51 S.E.2d 731, 7 A.L.R.2d[232 N.C. 584] 407. The significance of the law of the land in its procedural aspect is laid bare by a famous phrase used by Daniel Webster in his argument in the Dartmouth College case. 'By the law of the land is most clearly intended the general law, a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.' Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 4 L.Ed. 629. 'Its essential elements are notice and opportunity to be heard or defend, before a competent tribunal, in an orderly proceeding adapted to the nature of the case, which is uniform and regular, and in accord with established rules which do not violate fundamental rights.' 16 C.J.S., Constitutional Law, § 569; National Surety Corp. v. Sharpe, 232 N.C. 98, 59 S.E.2d 593.

This question arises at the threshold of the appeal: Were the remaindermen brought before the court in the proceeding to foreclose the tax sale certificate?

In any judicial proceeding to sell property for unpaid taxes, the court 'must have that authority of law for the purpose, which is called jurisdiction. This consists in, first, authority over the subject matter, and, second, authority over the parties concerned. The first comes from the statutory law, which designates the particular proceeding as one of which the court may take cognizance when the parties are properly before it; the second comes from the proper institution of proceedings, and the service of process upon the parties concerned, or something which is by the statute made equivalent to such service. Concerning jurisdiction of the subject-matter, it is only necessary to observe that it must come wholly from the constitution or statutes of the State; the common law giving to the courts no authority in such cases. Moreover, that which is conferred is a special and limited jurisdiction. The importance of this fact appears in that familiar principle that nothing is taken by intendment in favor of a court of special and limited jurisdiction, but it must appear, by the recitals of the record itself, that the facts existed which authorized the court to act, and that in acting the court has kept within the limits of its lawful authority. This principle is applicable to the case of a court of general jurisdiction, which in the particular case is exercising this peculiar special and limited authority, as well as to the case of special courts created for such special and limited authority only.' Cooley on The Law of Taxation (4th Ed.), section 1401. See, also, in this connection: Harshaw v. Taylor, 48 N.C. 513; Jennings v. Stafford, 23 N.C. 404.

Although the remaindermen were residents of North Carolina and their interest in the land was disclosed by the public records of Lenoir County at the time of the proceeding to foreclose the tax sale certificate, they were not named as parties in such proceeding. Furthermore, it [232 N.C. 585] must be held that they were not notified of the proceeding by summons, for the only recital of the record in the proceeding relating to the service of summons is 'that summons herein was duly served * * * upon the defendants,' that is to say, the life tenant, Victoria Eason, and her husband, A. M. Eason.

Since they were not made parties to the proceeding or served with summons in it, the remaindermen cannot be said to have been before the court in the proceeding.

This observation is sound even if we accept as valid the contention of the defendants that the case agreed establishes this two-fold proposition: (1) That the foreclosure proceeding was brought under

Page 722

Chapter 260 of the Public Laws of 1931 rather than under Chapter 221 of the Public Laws of 1927 or Chapter 334 of the Public Laws of 1929; and (2) that notice was posted at the courthouse door and published in a general advertisement in some newspaper in Lenoir...

To continue reading