Bd. Op Com'rs Of Buncombe County v. Scales

• Decision Date: 24 May 1916
• Docket Number: (No. 539.)
• Citation: 88 S.E. 868
• Court: North Carolina Supreme Court
• Parties: BOARD OP COM'RS OF BUNCOMBE COUNTY. v. SCALES et al.

88 S.E. 868

BOARD OP COM'RS OF BUNCOMBE COUNTY.

v.SCALES et al.

(No. 539.)

Supreme Court of North Carolina.

May 24, 1916.

Appeal from Superior Court, Buncombe County; Long, Judge.

Action by the Board of Commissioners of Buncombe County against Walter Scales, James J. Bailey, and others. From a judgment restating a judgment for plaintiff, defendant Bailey appeals. Modified and remanded.

The action was brought by the plaintiff to foreclose a tax lien. Upon the complaint filed and verified the court entered a judgment at February term, 1912, in favor of plaintiff as follows:

"That the plaintiff recover of the defendants J. J. Bailey estate, Walter Scales, Mary Scales, heirs of Pink Lattimore, deceased, names unknown, Chas. Bailey, heirs of James Bailey, deceased, names unknown, being the heirs of James Bailey and Rebecca Bailey, his wife, also deceased, the sum of $-, together with the costs of this action and interest at 20 per cent. per annum upon said sum of $—, find that said principal, interest, and cost are hereby declared a first lien upon the' property described in the complaint, as provided by law for the nonpayment of taxes under the laws of this state."

The court then, in the judgment, ordered a sale of the property and appointed a commissioner for that purpose, who was directed to sell the land and to execute a deed to the purchaser. On June 20, 1912, James J. Bailey moved the court to set. aside the judgment entered at February term, 1912, and to dismiss the action for want of proper service, and proposed to enter a special appearance for the purpose. The motion was based on an affidavit setting forth the fact that he had not been served with process, that he had paid all his taxes, and that the land was insufficiently described in the tax proceedings. The commissioner made the sale and reported the same to July term, 1912, C. D. Jus-tice being the purchaser, and the sale was confirmed by the court at the same term, and a deed was made to the purchaser. Affidavits were filed by the respective parties, and at November term, 1912, on motion of James J. Bailey, based upon affidavits filed by him, the court, Judge Foushee presiding, set aside the sale of the lands and the deed of the commissioner to C. D. Justice, the purchaser, and directed that notice be issued to C. D. Justice so that he may be made a party to the action, and that James J. Bailey be allowed 40 days to answer. In the judgment the court found, as facts, that James J. Bailey was 53 years old, and had resided in Buncombe county all his life, and that no summons in this action was ever formally served upon him, nor had any written notice been given to him or any of his tenants of the sale of the land for taxes. It was further stated in the judgment that James J. Bailey, through his attorney, had come into court and made himself a party to the action. At November term, 1913, the plaintiff moved that the judgment rendered at November term, 1912, bo set aside, upon the ground that James J. Bailey had not filed his answer within the 40 days allowed him for the purpose, and C. D. Justice moved for the same relief upon the same ground, and for the additional reason that the sale and deed to him had been set aside without any notice to him. Both parties asked for a reinstatement of the sale and deed. At fall term, 1915, the court referred the case to J. B. Cain to find the facts, and he reported certain findings to the same term, whereupon the court set. aside the judgment rendered by Judge Foushee at November term, 1912, because James J. Bailey had not filed his answer, and that notice had not issued to C. D. Justice and he was never made a party to the suit, and, lastly, that C. D. Justice was an innocent purchaser of the lands at the sale ordered by the court to be made. It was further ordered that the judgment of February term, 1912, and the judgment confirming the sale entered at July term, 1912, be reinstated, together with the deed of the commissioner to C. D. Justice, and that James J. Bailey be taxed with the costs. The defendant James J. Bailey excepted and appealed.

J. Scroop Styles and Mark W. Brown, both of Asheville, for appellant.

J. Frazier Glenn and A. Hall Johnston, both of Asheville, for appellee.

WALKER, J. (after stating the facts as above). [1] There was a motion to dismiss the appeal, as no case on appeal had been served by the appellant, but we do not think a case was required, as there is only one exception to the judgment, and that was taken at the trial. There are assignments of error, but they all turn upon the one question whether the last judgment was a proper one. No case was necessary to present this ques tion, as it is done by the exception, and, even without it, by the appeal from the judgment. Brooks v. Austin, 94 N. C. 220; Wilson v. Lumber Co., 131 N. C. 103, 42 S. E. 565; and especially Clark v. Peebles, 120 N. C. 31, 26 S. E. 924, and cases collected in Pell's Re-visal, vol. 1, § 591, at bottom of page 317 and top of page 318, and Clark's Code (3d Ed.) § 550, p. 770.

It appears that James J. Bailey has become a party to the action on his own motion, and has also asked for relief upon the merits by his motions. He has therefore waived any defect of jurisdiction as to his person. Scott v. Life Association, 137 N. C. 516, 50 S. E. 221; Dell School v. Peirce, 163...