Boone v. Sparrow

• Decision Date: 16 April 1952
• Docket Number: No. 387,387
• Citation: 70 S.E.2d 204,235 N.C. 396
• Court: North Carolina Supreme Court
• Parties: BOONE et ux. v. SPARROW et al.

Page 204

70 S.E.2d 204

235 N.C. 396

BOONE et ux. v. SPARROW et al.

No. 387

Supreme Court of North Carolina.

April 16, 1952

Jones, Reed & Griffin, Kinston, for plaintiff appellants.

H. Frank Owens, Kinston, and J. Harvey Turner, Pink Hill, for defendant appellees.

BARNHILL, Justice.

The sheriff of a county must report delinquent taxpayers on the first Monday in April next after the year in which the tax was assessed, and he must sell the land of the delinquent taxpayers to satisfy the taxes due on the first Monday of the following May. The requirement is the same as to cities and towns except that the report is to be made on the second Monday in April and the sale had on the second Monday in May. G.S. § 105-387.

Upon making sale of the land of a delinquent taxpayer, the sheriff is required to issue to the purchaser a tax sale certificate. G.S. § 105-388. However, if the taxing unit becomes the purchaser, the certificate is issued only at its election.

There are two distinct alternate methods provided by statute for the foreclosure of a tax sale certificate or the lien evidenced thereby.

1. After the land has been sold by the sheriff and a certificate of sale has been issued, the purchaser may institute an action to foreclose the lien evidenced by the certificate. G.S. § 105-391. This section of the Code provides the regulations and procedure respecting an action instituted pursuant to this method. Among these are the requirements (a) that any other taxing unit having tax or assessment liens must be made party defendant unless such other taxing unit joins as a party plaintiff, and (b) if the claim of the plaintiff is satisfied while the action is pending, the defendant taxing unit may continue the action to final judgment for the satisfaction of its own lien alleged in its answer.

2. Under G.S. § 105-392 the taxing unit may file in the office of the clerk of the Superior Court a sheriff's certificate of sale of land to satisfy taxes. Thereupon, the clerk must docket the certificate upon his judgment docket. It then has the full force and effect of a judgment, and execution may issue thereon against the property of the tax debtor.

These two sections of the Code are parts of General Statutes, ch. 105, art. 27; and G.S. §§ 105-393, 394, and 395 relate to both methods.

General Statutes, ch. 105, art. 32, provides still another method or proceeding for the foreclosure of the lien created by the assessment of a tax which is not dependent upon a sale by the sheriff and is not bottomed on a tax sale certificate. This method, which is the oldest now in existence, is expressly preserved as an alternate method for the foreclosing of tax liens in G.S. § 105-395, with the proviso, however, that the provisions of subsections (f) to (v) inclusive of G.S. § 105-391 shall apply in any such foreclosure action brought under G.S. § 105-414.

G.S. § 105-414 (formerly C.S. 7990) is a part of General Statutes, ch. 105, art. 32, and provides that any taxing unit may institute an action to foreclose its tax lien. This action is founded on the original tax lien and not upon a tax certificate of sale as in the other two alternate methods. When the action is instituted under this provision of the statute, it must be conducted as in case of a foreclosure of a mortgage.

G.S. § 105-408 provides that in all judicial sales had to satisfy tax liens, the judgment shall provide for the payment, out of the proceeds of sale, of all taxes then assessed upon the property and remaining unpaid and for the payment of such sums as may be required to redeem the property if it has been sold for taxes and such redemption can be had. New Hanover County v. Whiteman, 190 N.C. 332, 129 S.E. 808. Thus while the action is to foreclose a specific lien, the object is to assure the payment of all tax liens on the property in one action, so that the purchaser will obtain title free of any lien for taxes assessed at any time before final judgment.

The complaint in this action makes no reference to a sale by the sheriff or to a tax sale certificate. It is an action to foreclose the original lien under the provisions of G.S. § 105-414, and shall be conducted as in case of a foreclosure of a mortgage, as modified by G.S. § 105-395.

The plaintiffs, who were the tax debtor defendants in the foreclosure action assert that the foreclosure judgment entered in the action is void for the reason the purported summons was not signed by the clerk of the Superior Court; did not issue out of his office; and service thereof did not subject them to the jurisdiction of the court.

The statute, G.S. § 1-89, provides for the issuance of a summons in a civil action. One of its specific requirements is that the summons shall be signed by the clerk. Is his failure to do so a fatal defect which renders the service thereof ineffectual and a judgment entered in the cause void and of no effect? On this question we have two distinct lines of decisions.

In Hooker v. Forbes, 202 N.C. 364, 162 S.E. 903, we held that the failure of the clerk to comply with the requirement that a summons must be signed by him, G.S. § 1-89, is a defect which may be waived by a general appearance and may therefore be remedied by amendment under G.S. § 1-163. Henderson v. Graham, 84 N.C. 496; Piercy v. Watson, 118 N.C. 976, 24 S.E. 659, and North Carolina Joint Stock Land Bank v. Aycock, 223 N.C. 837, 28 S.E.2d 494, are to like effect.

On the other hand, in Redmond v. Mullenax, 113 N.C. 505, 18 S.E. 708, this Court held that the failure of the clerk to sign the summons in that case was fatal and the judgment entered in the case was void. See also Anno. 30 A.L.R. 717; 42 A.J. 12, sec. 10.

Even so, a careful consideration of these decisions discloses that there is no real conflict or inconsistency. The Court, in a well-considered opinion in the Redmond case, discusses the question and states the controlling rule which has been consistently followed by this Court. It may be briefly summarized as follows:

If the clerk fails to sign a summons, the defect may be cured by amendment if there is evidence upon the face of the summons itself that it emanated from the proper office and was intended to bring the defendant into court to answer a complaint of the plaintiff. That is, if the paper bears internal evidence of its official origin and of the purpose for which it was issued, it comes within the definition of original process and may be amended by permitting the clerk to sign nunc pro tunc as provided by G.S. § 1-163. This rule is subject to the limitation that such alteration of the record must not disturb or impair any intervening rights of third parties.

If, however, there is nothing upon the face of the paper which stamps upon it unmistakably an official character, it is not a defective summons but no summons at all--'no more than one of the usual printed blanks kept by the clerks of the courts.' The curative power of amendment may not be invoked when there is nothing upon the face of the paper to give assurance that it received the sanction of the clerk before it was delivered to the sheriff to be served. This rule is cited with approval in North Carolina Joint Stock Land Bank v. Aycock, supra. and Piercy v. Watson, supra.

Thus, when the paper bears the seal of the clerk and there is evidence it actually emanated from the clerk's office, North Carolina Joint Stock Land Bank v. Aycock, supra; Henderson v. Graham, supra, or the jurat of the clerk and his signature appear below the cost bond, Hooker v. Forbes, supra, the paper bears internal evidence of its official character and the defect may be cured by amendment. When it does not bear some such evidence, it is void and not subject to amendment. Redmond v. Mullenax, supra.

Incidentally, in appraising the rule, we must bear in mind that we are not here dealing with a case in which the defendant voluntarily appeared, for voluntary appearance dispenses with the necessity of summons. Williams v. Cooper, 222 N.C. 589, 24 S.E.2d 484. This is the underlying philosophy of some of our decisions wherein amendment of process was allowed.

Applying the rule as approved in these decisions, we might well hold that there was no summons issued in this cause and the judge was without authority to permit the clerk to sign the paper which purports to be a summons nunc pro tunc. Be that as it may, we prefer to rest decision on other grounds, to wit:

(1)The clerk was without authority to sign a default judgment in favor of the defendant City of Kinston on its cross action; and

(2)Said judgment was signed and the property foreclosed without legal notice to its codefendants, the plaintiffs herein.

If a counterclaim is pleaded against a plaintiff and no copy of the answer containing such counterclaim shall be served upon the plaintiff or his attorney of record, such counterclaim shall be deemed to be denied as surely as if plaintiff had filed a reply denying the same. G.S. § 1-140; Williams-Fulghum Lumber Company v. Welch, 197 N.C. 249, 148 S.E. 250; Miller v. Grimsley, 220 N.C. 514, 17 S.E.2d 642; McIntosh, P & P, 715, sec. 637. While this statute uses the word 'plaintiff', its purpose and intent is to withhold from a defendant any right to a judgment by default on any counterclaim until and unless he gives the alleged debtor legal notice of his claim. We may concede that the defendant City of Kinston had...