Action
by the County of Buncombe against J. A. Penland and wife, in
which A. P. Grice, trustee, and R. M. Wendell entered an
appearance and made motions. From an adverse judgment
movants appeal.
Reversed.
This is
an action brought by plaintiff against defendants to
foreclose a certificate of tax sale of a certain lot in
Buncombe county, N. C., "listed as the property of J. A
Penland," for $317.50. The record discloses affidavit of
publication which contains "due search made and the
defendants, J. A. Penland and wife, Addie Penland, cannot be
found in Buncombe County." Publication is ordered and
notice of publication is set forth. Judgment appointing a
commissioner and ordering sale and notice of publication set
forth. Report of sale, confirmation and decree "County
of Buncombe, who became the highest bidder for cash thereof
for the sum of $413.13." Assignment of bid to
Auburn-Asheville Company for $413.13 and request to
commissioner to make deed, A. P. Grice, trustee, and R. M
Wendell entered a special appearance and made motion
"Now come A. P. Grice, Trustee, and R. M. Wendell, and
enter a special appearance in this action for the sole
purpose of moving the Court for an appropriate order and
decree (a) setting aside, cancelling and striking from the
records that certain purported deed from Lamar Galloway,
Commissioner, to Auburn-Asheville Company, dated the -----
day of May, 1932, and recorded in the office of the Register
of Deeds of Buncombe County, North Carolina, in Deed Book
454, page 28, as constituting a cloud on the legal and
equitable titles to the land and premises hereinafter
described, (b) vacating and setting aside the interlocutory
judgment and the purported confirmation of the attempted
foreclosure sale herein, (c) striking out the purported and
attempted affidavit and order of publication, (d) striking
out the sheriff's return on the summons, and (e)
dismissing the action for want of jurisdiction of the court;
and the said moving parties expressly save and reserve all of
their rights in this behalf. For the purpose hereof, the
moving parties respectfully show the Court:
"That
A. P. Grice, Trustee, is a citizen and resident of the City
of Norfolk, Virginia, and is the owner and holder of the
legal title to the land and premises hereinafter described,
under and by virtue of a conveyance of the same by J. H.
Morris and Ruth H. Morris, his wife, by a certain deed in
trust, dated the 15th day of April, 1928, and duly recorded
in said Register's office in Book of Mortgages and Deeds
in Trust No. 285, page 339, and that R. M. Wendell is a
citizen and resident of Buncombe County, N. C., and is the
lawful owner and holder of the equitable title to said land
and premises under and by virtue of a conveyance thereof, by
J. H. Morris and Ruth H. Morris, his wife, by a certain deed
dated September 8, 1928, and duly recorded in said
Register's office in Deed Book 396. page 262, which said
deed in trust and deed, and the records thereof, are hereby
specifically referred to and made parts hereof. *** That said
lands and premises have a present actual market value of at
least $12,000.00, as nearly as the moving parties can
ascertain the same. That the moving parties had no knowledge
of the pendency of this action prior to the 29th day of
August, 1932, on which date it was discovered that a
purported corporation, known as Auburn Asheville Company,
had, on August 24, 1932, recorded an alleged deed to said
land and premises in pursuance of this action, and that
subsequently, on the 10th day of September, 1932, the moving
parties brought a civil action in this Court against the said
Auburn Asheville Company for the purpose of removing its
claim under the said alleged deed as a cloud on the legal and
equitable titles of the moving parties to said land and
premises."
The
moving parties pray that the court make "appropriate
order and decree" on the grounds: "That the 1928
tax list upon which this action was predicated is erroneous,
irregular and utterly false, for that it purports to show
that the defendant, J. A. Penland, was the owner of said land
and premises on the 1st day of May, 1928, whereas neither the
said defendant nor his wife and co-defendant, Addie Penland,
ever owned the said land and premises or any right, title,
interest, estate or equity therein or thereto, the said tax
list having been made and signed in the name of J. A.
Penland, but without his knowledge or consent, by one J. H.
Morris, who at that time was the true owner of said land and
premises, and who should have listed the same in his own
name."
Various
other grounds are set forth and that the whole foreclosure
procedure is irregular, illegal, and void. In the record is
also the following: "And movants further move the court
that the said Auburn-Asheville Company be made a party to
this proceeding for the purpose hereof."
Notice
of the special appearance and motion was duly served on the
county of Buncombe, J. A. Penland, Addie Penland, and the
Auburn-Asheville Company. The county of Buncombe answered
admitting and denying certain of the allegations made by the
movants. It admitted: "That no personal service was had
on the defendants, but the plaintiff alleges that service was
made by publication as is provided by law. *** The plaintiff
expressly alleging that each and every part of the
foreclosure proceeding in question was carried out in
accordance with the provisions of the statutes of North
Carolina. *** Wherefore, the plaintiff prays the Court that
the special appearance and motion of the said A. P. Grice,
Trustee, and R. M. Wendell, be dismissed."
The
court below made the following order and decree: "This
cause coming on to be heard before His Honor, P. A. McElroy,
Judge Presiding and holding the Courts of the 19th Judicial
District, at this the September, 1933, Term, on the special
appearance and motion of A. P. Grice, Trustee, and R. M.
Wendell, lodged in said cause for the purpose of securing an
appropriate order and decree by the Court setting aside and
cancelling a certain deed from Lamar Galloway, Commissioner,
to Auburn-Asheville Company, dated the ----- day of May,
1932, and recorded in the office of the Register of Deeds of
Buncombe County, North Carolina, in Deed Book 454, at page
28, and for other purposes specifically set out in said
special appearance and motion, and being heard upon the
arguments of counsel for the said movants, and for said
Auburn-Asheville Company, and it appearing from the record
herein that said A. P. Grice, Trustee, and R. M. Wendell,
have never been made parties to this cause, and that said
Auburn-Asheville Company has never been made a party hereto,
by reason whereof the Court is of the opinion that the said
movants are not entitled at the present time, under the
existing state of the record, to have their said motion heard
upon the merits thereof. It is now, therefore, upon motion,
considered, ordered, adjudged and decreed that said special
appearance and motion be and the same is hereby dismissed at
the cost of said movants, to be taxed by the Clerk."
The
movants, A. P. Grice, trustee, and R. M. Wendell, excepted
and assigned error to the judgment as signed, and appealed to
the Supreme Court.
Carter & Carter, of Asheville, for appellants A. P. Grice and R. M.
Wendell.
CLARKSON
Justice.
The
question involved: Where land is sold in an action to
foreclose certificate of tax sale under N.C. Code 1931
(Michie) § 8037, and the owners are not named as parties
defendant, but appear specially, does the court have the
power and authority to hear and determine their motion to set
aside and vacate the proceedings, on the ground that the same
is void for want of jurisdiction and make additional party?
We think so under the facts and circumstances of this case,
as the appearance was general and the motion could be made.
This action is brought to foreclose a certificate of tax sale
on a certain lot in Buncombe county, N.C. In N.C. Code of
1931 (Michie) § 8037, is the following: "Such relief
shall be afforded only in an action in the nature of an
action to foreclose a mortgage," et cetera.
N.C. Code of
1931 (Michie), part section 593, the clerk, under a
foreclosure proceeding, "May issue writs of assistance
and possession upon ten days notice to parties in
possession."
The
movants contend that they have the legal and equitable title
to the lot in controversy. If the real owner is in
possession, the purchaser at the foreclosure sale could seek
a "Writ of assistance" and dispossess him. Further,
it is contended that the attempted foreclosure proceeding is
a cloud on movants' title.
N.C.
Practice and Procedure in Civil cases (McIntosh), speaking to
foreclosure proceedings at page 217, we find: "As to
prior and subsequent incumbrancers, it is generally held
that, if the purpose of the proceeding is to get a sale of
the property discharged of all liens so that a purchaser will
be protected, it is necessary that they should be made
parties. The prior mortgagee has the first right and if the
land is sold at the suit of
a subsequent mortgagee, the purchaser will take it subject to
the lien of the prior mortgage. If subsequent mortgagees are
not made parties, it was formerly held that the sale of the
land would discharge their liens, which would be transferred
to the fund received; but it is now held that subsequent
mortgagees or lienholders are not bound by the action unless
they are made parties, and that they would still have the
right to redeem."
Jones v. Williams. 155 N.C. 179, 71 S.E. 222, 36 L.
R. A. (N. S.) 426; Madison County...
