Board of Com'rs for Washington County v. Gaines

• Decision Date: 20 May 1942
• Docket Number: 110.
• Citation: 20 S.E.2d 377,221 N.C. 324
• Parties: BOARD OF COM'RS FOR WASHINGTON COUNTY v. GAINES et al.
• Court: North Carolina Supreme Court

20 S.E.2d 377

221 N.C. 324

BOARD OF COM'RS FOR WASHINGTON COUNTY v. GAINES et al.

No. 110.

Supreme Court of North Carolina

May 20, 1942

Controversy without action submitted upon agreed facts, which in so far as pertinent to decision on this appeal, are substantially these:

1. By written contract dated March 16, 1942, "in consideration of sum of Five Hundred Dollars, and of the covenants and agreements hereinafter contained" plaintiff, as party of the first part, agreed to sell, and defendants, as parties of the second part, agreed to purchase, "if free and clear from all liens and encumbrances, by good and sufficient deed without warranty", all those tracts of land in Lees Mill and Plymouth Townships in Washington County, North Carolina described in two certain recorded deeds, dated July 18, 1941 from Z. V. Norman, Commissioner, to Washington County "subject to a timber deed now held by defendants, for the sum of seven thousand dollars, cash, upon tender by the party of the first part of a good and proper deed for said land, or upon tender by the parties of the second part of the remaining unpaid portion of the purchase price to the party of the first part, on or before the 1st day of June, 1942". The agreement specifies that it is subject to a certain lease to the North Carolina Department of Agriculture, and further provides that (lettering interposed for convenience), "It is understood and agreed (a) that a part of said lands lies in Beaufort County Drainage District No. 5 (Albemarle Drainage District) and a part *** in Washington County Drainage District No. 5, and that heretofore said lands have been subject to drainage assessments of said districts, but the owners of said land, having defaulted in the payment of the taxes levied by Washington County, the tax liens of said county were foreclosed by suit in the Superior Court of Washington County, and Washington County became the purchaser. (b) That if the lien of the drainage assessments imposed by the drainage districts, existing July 18, 1941, were extinguished by foreclosure of the county tax liens and the said drainage districts are without authority to re-assess said lands for the debts of the said drainage districts existing and outstanding at the time of the foreclosure sale and conveyances pursuant thereto, the parties of the second part are bound by these presents to accept deed for said lands and pay the purchase price. (c) But if the said foreclosure sale for county taxes did not extinguish the lien of the said drainage districts for the drainage assessments existing as aforesaid, or if the said drainage districts may hereafter re-assess the said lands for the indebtedness and obligations of the said drainage district existing as aforesaid, then the parties of the second part shall be released from their obligation to purchase said lands. (d) In such event Washington County agrees to refund to the parties of the second part the sum of Five Hundred Dollars, which has been paid for this contract. (e) But the parties of the second part may, at their option, waive the right to require said refund and require conveyance by Washington County of the said lands, subject to such drainage assessments as may exist against the same, and subject further to any further assessments as may thereafter be made against said lands for debts of said districts existing as aforesaid".

2. That the lands in question are in the main embraced within certain legally constituted drainage districts which have caused assessments to be levied for the payment of bonds issued by the districts for the purpose of excavating and constructing drainage canals therein; that "the last drainage assessment" in one district "was due the first Monday in September 1937", and in another "was due on first Monday in September, 1939" (the dates of levy of assessments and of issuance of bonds not being stated in agreed case); and that "a substantial amount of the drainage assessments *** particularly against the lands embraced in this controversy, for the payment of said bonded debt, has not been paid, and that likewise a substantial amount of the bonded debt of each district is still unpaid."

3. Plaintiffs have tendered to defendants "a deed or transfer covering said lands and has demanded the purchase price, but defendants have declined to accept said deed and pay the purchase price", assigning as reasons therefor: (a) That plaintiff does not have title to said lands, free and clear from all liens and encumbrances; (b) that said lands are subject to the liens of the deeds of trust set out in the complaints and to the drainage assessments levied thereon by the respective districts in which they lie; and (c) that same are subject to be re-assessed by the respective drainage district in which they lie, on account of the indebtedness and obligations of said drainage districts existing and outstanding at the time of the foreclosure sale and conveyances pursuant thereto.

4. That the two deeds from Z. V. Norman, Commissioner, to Washington County, were executed pursuant to judgments in two civil actions, Nos. 52 and 54, instituted by said county under provisions of C.S. § 7990, against Norfolk Southern Land Company, and others, to enforce lien of taxes levied for years 1930 to 1938, both inclusive, then delinquent, and for years 1939 and 1940, upon approximately 35,000 acres of land listed in the name of Norfolk Southern Land Company, which judgments direct that the...