Busbee v. Lewis

• Citation: 85 N.C. 332
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 October 1881
• Parties: F. H. BUSBEE v. JULIUS LEWIS and others.

85 N.C. 332

F. H. BUSBEE

v.JULIUS LEWIS and others.

Supreme Court of North Carolina.

October Term, 1881.

*1 CONTROVERSY without action under the Code, section 315, heard at Fall Term, 1881, of WAKE Superior Court, before Gilmer, J.

The plaintiff appealed from the judgment of the court below.

Messrs. Reade, Busbee & Busbee, for plaintiff .

No counsel for defendants.

RUFFIN, J.

The object of this action is to have declared void a tax title to certain real property situated in the city of Raleigh, acquired by the city, and which the plaintiff contends is operating as a cloud upon his better title.

The case was put into the shape of a controversy without action, and the following are the facts upon which it is said to depend:

In 1863 one H. Fendt, then owning the land which is the subject of controversy, conveyed the same to one Ellen in trust for the sole and separate use of Mrs. C. A. Fendt and her children, and in the event of her death, in the lifetime of her husband (the said H. Fendt) then in trust for him.

The land consisted of two parcels (parts of lot No. 115, and of lot No. 116) and was listed for taxes due the city, for the years 1877, 1878 and 1879, in the name of Mrs. C. A. Fendt, and in August, 1880, the taxes being unpaid, the collector sold one of the parcels for the taxes due on both, when the city became the purchaser. In 1881, the other parcel was sold for the unpaid taxes of 1880, and the city was again the purchaser--notice of both sales being served in writing upon Mrs. Fendt and her husband.

Mrs. Fendt died in April, 1881, leaving her husband surviving, and in May following, the trustee conveyed the land to him in fee, and since then it has been sold under execution against him, and the plaintiff became the purchaser. He has sold the land to the defendants, Lewis and West, who decline to pay the purchase money on account of the outstanding deed held by the city. The plaintiff insists that the collector's sale of the first lot was void, because it included the taxes assessed against both the lots, whereas each should have borne its own burden; and further, that inasmuch as Mrs. Fendt had but a life estate in the land, a sale for taxes, assessed in her name, could not affect the interests of those in remainder.

For these reasons principally, though other irregularities in the sale are suggested, the plaintiff asks that the sale to the city may be declared void, and the deed decreed to be cancelled, so that it may no longer throw a cloud upon his title, and prevent his being paid the purchase money agreed to be given him for the land.

There seems to us to be two sufficient reasons why the plaintiff cannot have the relief he demands in the present controversy.

In the first place, a court of equity will never interpose its jurisdiction in the way of a mere protective relief, when the party has an adequate and effectual remedy at law, and is so circumstanced as to be able to assert it, but will rather leave him to seek his redress in that forum, except in some states where they have statutes expressly permitting it to be done. There can be found no instance, we confidently believe, in which a court has ever entertained a bill to remove a cloud from the title of a person, who was himself out of possession, or in a condition to contest the question as to the superiority of title in a court of law. The disability to sue, and the danger and inconvenience...