Carstarphen v. Town of Plymouth

• Citation: 118 S.E. 905,186 N.C. 90
• Decision Date: 19 September 1923
• Docket Number: 72.
• Parties: CARSTARPHEN ET AL. v. TOWN OF PLYMOUTH ET AL.
• Court: United States State Supreme Court of North Carolina

118 S.E. 905

186 N.C. 90

CARSTARPHEN ET AL. v. TOWN OF PLYMOUTH ET AL.

No. 72.

Supreme Court of North Carolina

September 19, 1923

Appeal from Superior Court, Washington County; Kerr, Judge.

Action by W. D. Carstarphen and another against the Town of Plymouth and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

The essential facts are set forth in the case agreed between the parties, and are as follows:

"(1) That on the 9th day of May, 1922, and prior thereto, Mrs M. W. Cahoon was the owner of a stock of merchandise and certain store fixtures in the town of Plymouth, N. Car and conducted a retail mercantile business.

(2) That on the 19th day of May, 1922, in consideration of the sum of $12,000, Mrs. M. W. Cahoon conveyed said stock of merchandise and fixtures to W. D. Carstarphen and T. L Smith. That a copy of her conveyance is hereto attached and marked Exhibit A.

(3) That on June 7, 1922, the list taker of Plymouth township, Washington county, listed said stock of merchandise for taxation, the same not having been listed by either the plaintiffs or the defendant, Mrs. M. W. Cahoon.

(4) That on the 13th day of February, 1923, said E. W. Chesson, tax collector of the town of Plymouth, demanded payment of the taxes assessed against the said stock of merchandise, said taxes amounting to $141.60, and threatened to levy upon said property immediately if same were not paid, and that said amount was paid by said Carstarphen and Smith under their protest in writing in proper form to said tax collector.

(5) That on or about the 19th day of February, 1923, the plaintiffs, Carstarphen and Smith, caused to be served upon the said E. W. Chesson, tax collector, and the surety upon the official bond of said officer and the town of Plymouth, notice in due and proper form demanding a refund of the said sum of $141.60, same being taxes on said stock of goods paid by them under protest.

(6) That plaintiffs, Carstarphen and Smith, have also made demand upon Mrs. M. W. Cahoon for the sum of $141.60, alleging that said amount was due said Carstarphen and Smith by virtue of the clause of warranty contained in her bill of sale.

(7) That neither Mrs. M. W. Cahoon nor said E. W. Chesson, tax collector, has refunded the said sum of $141.60, and refuse so to refund the same."

Exhibit A.

"North Carolina, Washington County.

Know all men by these presents: That I, Mrs. M. W. Cahoon, of the state and county aforesaid, for and in consideration of the sum of $12,000, to me this day secured by W. D. Carstarphen and Thomas L. Smith, of said county and state, do hereby sell, assign, transfer, and set over to the said W. D. Carstarphen and Thomas L. Smith, their heirs and assigns forever, all of the following described personal property:

All of that certain stock of dry goods, merchandise and wares now in the store building in the town of Plymouth owned by Mrs. L. M. Hampton and formerly used by Cahoon's Quality Shop as a place of business, said business being owned by me in my own right, together with all furniture and store fixtures, including counters, showcases, chairs and all other fixtures now in said place of business and formerly used in connection therewith.

To have and to hold the same unto said W. D. Carstarphen and Thomas L. Smith, their heirs and assigns forever.

And the said Mrs. M. W. Cahoon, for herself, her heirs and assigns, covenant with and represent to the said W. D. Carstarphen and Thomas L. Smith, their heirs and assigns, that the said property is hers, absolutely, and that the same is free and clear of all liens and incumbrances and that she will forever warrant and defend the title to the same against all lawful claims and demands.

Said W. D. Carstarphen and Thomas L.

Smith accept the said property in the condition that the same is now, and agree that in the future purchase of stock and other property for said business they will purchase the same in their own names and apprise any creditors that they are sole owners of said business and will do nor permit nothing to be done which will entail further liability or responsibility on the part of the said Mrs. M. W. Cahoon in their operation of the same.

In witness whereof, the said Mrs. M. W. Cahoon has hereunto set her hand and seal, this the 9th day of May, 1922.

Mrs. M. W. Cahoon. [ Seal.]"

"Witness: A. L. Ownes."

The court below rendered the following judgment:

"This cause coming on now to be heard at this term of the court before his honor, J. H. Kerr, judge presiding, upon the agreed statement of facts and being heard. It is therefore ordered, adjudged, and decreed by the court that the plaintiffs are not liable for the taxes collected from them, under protest, by the defendant tax collector, and that they took the said property free and discharged of any lien for said taxes upon the same, and to that end it is adjudged that they have and recover of the defendant tax collector and the town of Plymouth the sum of $141.60 paid by them under protest as set forth in the agreed statement of facts, together with all costs of this action to be taxed by the clerk. It is further adjudged that plaintiffs are entitled to interest on said sum from the 13th day of February, 1923, being the date upon which same was paid, until paid. It is further adjudged that, inasmuch as the defendant, Mrs. M. W. Cahoon, owned said personal property in question on the 1st day of May, 1922, that the taxes aforesaid should have been listed by her, and that she is liable for the same and this judgment, is without prejudice to the rights of the tax collector to proceed to make said taxes out of other property of the said Mrs. M. W. Cahoon, it being found as a fact by the court that she owns and possesses other property out of which said taxes can be made."

To this judgment defendants excepted and appealed.

Zeb Vance Norman, of Plymouth, for appellants.

W. L. Whitley, of Plymouth, for appellees.

CLARKSON J.

"Every person owning property is required to list, and shall make out, sign, and deliver to the list taker a statement, verified by his oath, of all the real and personal property, moneys, credits, investments in bonds, joint-stock companies, annuities, or otherwise, and the value of improvements on real estate since same was assessed, in his possession or under his control on the first day of May [italics ours], either as owner or holder thereof, or as parent, guardian, trustee, executor, executrix, administrator, administratrix, receiver, accounting officer, partner, agent, factor, or otherwise." The provisos of this section are not material for the decision of this case. Public Laws N.C. 1921, c. 38, § 30; Edgecomb County v. Walston, 174 N.C. 55, 93 S.E. 460; 37 Cyc. p. 788.

Section 33 of the act supra provides where personal property shall be listed. Section 38 of the act supra provides that the taxpayer shall take an oath that the property listed--

"is a full, true, and complete list of all and each kind of property owned by me * * * and that I have not neglected to list for taxation for the year all of each and every kind of property of which I am the owner," etc.

"If any...