American Agr. Chemical Co. v. Brock

• Decision Date: 19 February 1930
• Docket Number: 13.
• Citation: 151 S.E. 869,198 N.C. 342
• Parties: AMERICAN AGR. CHEMICAL CO. v. BROCK.
• Court: North Carolina Supreme Court

151 S.E. 869

198 N.C. 342

AMERICAN AGR. CHEMICAL CO. v. BROCK.

No. 13.

Supreme Court of North Carolina

February 19, 1930

Appeal from Superior Cour Pasquotank County; Sinclair, Judge.

Proceedings by the American Agricultural Chemical Company against W. A Brock. From an adverse judgment, the defendant appeals.

Affirmed.

Special proceeding instituted under C. S. § 2593, to determine the question of the plaintiff's right to a fund paid into the office of the clerk as the surplus remaining after payment of the amount due on a deed of trust executed by W. H. Jennette and L. B. Jennette and their wives to the Southern Trust Company to secure an indebtedness of $12,000. The plaintiff claims that it is etitled to the fund in question by virtue of a judgment recovered against the makers of the deed of trust and docketed after its registration. A jury trial was waived, and by consent of parties the trial judge found the following to be the facts: There is now in the hands of the clerk of the superior court of Pasquotank county the sum of $1,456.91, representing the surplus formerly held by the trustee from the sale of the warehouse under the deed of trust described in the petition herein, which deed of trust was recorded in said county on the 2d day of July, 1923. After several raises in the bid under foreclosure proceedings, a final resale was held, and said property was struck off and sold to defendant and three other parties, as set out in the answer herein, on the 19th day of May, 1928 An order of confirmation of said sale was entered by the clerk of the superior court of said county on June 2, 1928 and the trustee was therein directed to make title for said property to the purchasers. A deed dated June 9, 1928 acknowledged July 2, 1928, was delivered to the defendant by the trustee on July 3, 1928; the defendant having become the assignee of the bid of the other three purchasers on June 19, 1928. The county commissioners of Pasquotank county at a special meeting held on the 28th day of July, 1928, determined the tax rate for Pasquotank county for the tax year 1928-29, and levied upon all the taxable property of Pasquotank county. The board of aldermen of Elizabeth City, it being the proper agency so to do, on the 23d day of July, 1929, determined the tax rate for Elizabeth City for the tax year 1928-29, and levied upon all taxable property within said town.

At the time of the sale referred to above, confirmation thereof, and delivery of the deed to defendant, no tax rate had been determined by the said county or city authorities for said year, 1928. On the 3d day of October, 1927, a judgment was duly rendered in the superior court of Pasquotank county in favor of the plaintiff herein and against the said W. H. and L. B. Jennette for the sum of $1,499.46 and costs; said judgment being properly cross-indexed and docketed on the same day as rendered, in the office of the clerk of the superior court of said county. Said judgment has not been either wholly or partially paid or satisfied, and is now, and was at the times hereinbefore mentioned, a validly existing lien on all of the real estate of the said W. H. and L. B. Jennette; the lien of said judgment being immediately subsequent to the lien of said deed of trust, except in so far as the lien for city and county taxes for the tax years 1927-28, 1928-29, and certain paving assessments hereinafter referred to, intervene. The amount of said county and city taxes due on said property for the year 1928-29 is $522.43. Neither of said judgment debtors has ever had a homestead allotted to him, and both are, and were at all times referred to herein, residents of North Carolina. Neither of said judgment debtors claims any interest in said fund, but neither of said judgment debtors has ever conveyed or assigned any interest he might have in said funds.

It was agreed by the parties that the city and county taxes for 1927 ($617.22) and the paving assessments ($93.16) should be paid out of the fund in the hands of the clerk. It was thereupon adjudged that at the time of the sale and confirmation, and of the delivery of the deed to the defendant, no taxes for the city or county had been assessed for the tax year 1928-29; that no levy of said tax had been made by the authorities of the city or county; that the plaintiff's petition ought to be allowed; that the taxes for 1928 are not a proper charge against the fund in the hands of the clerk; and that this fund be applied as a payment on the plaintiff's judgment. The defendant excepted and appealed.

Ehringhaus & Hall, of Elizabeth City, for appellant.

McMullan & Le Roy, of Elizabeth City, for appellee.

ADAMS J.

The deed of trust was executed on July 1, 1923, and was duly registered the next day. The plaintiff's judgment was recovered and docketed on October 3, 1927. The property described in the deed of trust was first exposed to sale in February, 1928, but was finally sold on May 19, 1928. On June 2, 1928, the clerk issued an order requiring the trustee to make title to the purchaser; the trustee executed his deed on June 9, 1928, acknowledged it on July 2,...