Chappell v. Stallings

• Decision Date: 25 February 1953
• Docket Number: No. 18,18
• Citation: 74 S.E.2d 624,237 N.C. 213
• Parties: CHAPPELL, v. STALLING et al.
• Court: North Carolina Supreme Court

Page 624

74 S.E.2d 624

237 N.C. 213

CHAPPELL, v. STALLING et al.

No. 18

Supreme Court of North Carolina.

Feb. 25, 1953

Walter G. Edwards, Hertford, for plaintiff, appellant.

No counsel contra.

ERVIN, Justice.

It is well settled that the owner has the right to redeem his land from the lien of unpaid taxes by paying the taxes with accrued interest, penalties and costs, and the court costs at any time before the entry of a valid judgment in a tax foreclosure action confirming the judicial sale of the land for the satisfaction of the lien. McIver Park, Inc., v. Brinn, 223 N.C. 502, 27 S.E.2d 548; Beaufort County v. Bishop, 216 N.C. 211, 4 S.E.2d 525. His right of redemption is recognized in express terms three times in the statute now codified as G.S. § 105-391, which authorizes and governs tax foreclosure actions, and affords the sole remedy available to private holders of unredeemed certificates of sale.

The plaintiff does not deny that an owner of land ordinarily possesses the right to redeem his property from the lien of unpaid taxes. He merely asserts that Alice Knight Butler, Susie Knight, and Ida Whidbee do not have any right of redemption in the case at bar, and that Judge Burgwyn's decision to the contrary constitutes reversible error.

The plaintiff advances two arguments to sustain his position. He asserts initially that the order made by Judge Williams at Elizabeth City on February 11, 1951, was tantamount to an adjudication that Alice Knight Butler, Susie Knight, and Ida Whidbee are not entitled to redeem the land involved in this cause; that this adjudication was at most a mere erroneous judgment, correctable only by an appeal from the order to the Supreme Court; that Alice Knight Butler, Susie Knight and Ida Whidbee forfeited their right to have the erroneous judgment of Judge Williams corrected by failing to take such appeal; and that Judge Burgwyn's judgment permitting Alice Knight Butler, Susie Knight, and Ida Whidbee to redeem contravenes the rule that one superior court judge can not undo what another superior court judge has done, even though it may have been erroneous. Twitty v. Logan, 86 N.C. 712.

This argument is not maintainable. It is bottomed on a misconception as to both the legal effect and the verbal scope of the order.

We know judicially that Elizabeth City is the county seat of Pasquotank County. Judge Williams was precluded from passing on the merits of the motion in the cause at Elizabeth City under the procedural rule that except by consent or in those cases specially permitted by statute, the judge can make no orders in a cause outside of the county in which the action is pending. Bisanar v. Settlemyre, 193 N.C. 711, 138 S.E. 1; Parker v. McPhail, 112 N.C. 502, 16 S.E. 848; Gatewood v. Leak, 99 N.C. 363, 6 S.E. 706; McNeill v. Hodges, 99 N.C. 248, 6 S.E. 127; Bynum v. Powe, 97 N.C. 374, 2 S.E. 170. The motion in the cause was never before Judge Williams. When he conducted a hearing in Elizabeth City on the return day of the Show-cause order issued by Judge Frizzelle, the motion in the cause was pending in contemplation of law before the Clerk of the Superior Court of Perquimans County, who was required to pass upon it in the first instance by this statutory provision: 'The clerk may hear and pass upon motions to set aside judgments rendered by him, whether for irregularity or under this section, and an appeal from his order on such motion shall lie to the judge at the next term, who shall hear and pass upon such motion de novo'. G.S. § 1-220. The only question presented to Judge Williams for decision at Elizabeth City was whether or not the restraining order should be continued in force until the Clerk of the Superior Court of Perquimans County passed on the motion in the cause, and the only adjudication made by Judge Williams at Elizabeth City was that the restraining order should not be continued in force until the Clerk of the Superior Court of Perquimans County passed on the motion in the cause. Branch v. Board of Education, 230 N.C. 505, 53 S.E.2d 455; Grantham v. Nunn, 188 N.C. 239, 124 S.E. 309; Owen v. Board of Education, 184 N.C. 267, 114 S.E. 390; Sutton v. Sutton, 183 N.C. 128, 110 S.E. 777. When the order under present scrutiny is read aright, it is obvious that Judge Williams did not undertake to make any other adjudication. His declaration that 'the commissioner * * * is hereby authorized and permitted to proceed to the sale of the said land upon the upset bid after due advertisement of said sale in the manner prescribed by law' was simply a judicial effort to elucidate the legal truth that the temporary restraining order had ceased to exist and in consequence no longer forbade the commissioner to carry out the prior order of the clerk. It had no bearing whatever on the question whether Alice Knight Butler, Susie Knight and Ida Whidbee have the right to redeem the land in suit.

The plaintiff asserts secondarily that he became the highest bidder at the fifth sale held on February 28, 1952; that the commissioner reported such sale to the clerk of the superior court on the same day; that no exception or increased bid was filed by Alice Knight Butler, Susie Knight, or Ida Whidbee within the ten days next succeeding the filing of the report of the sale; that after the expiration of such ten days, to-wit, on March 13, 1952, the clerk of the superior court entered an order confirming the sale of February 28, 1952, and directing the commissioner to convey the land to the plaintiff upon the payment of the sale price; that Alice Knight Butler, Susie Knight, and Ida Whidbee did not appeal from the order of confirmation to the judge; and that the order of confirmation terminated the right of Alice Knight Butler, Susie Knight, and Ida Whidbee to redeem the land.

The plaintiff bases this argument on subsections (p), (q) and (r) of G.S. § 105-391, which are couched in this language: 'Within three days following said sale the commissioner shall report said sale to the court, giving full particulars thereof. * * At any time within ten days after the filing of said report * * * any person having an interest in the property may file exceptions to said report, and at any time within said period an increased bid may be filed in the amount specified by and subject to the provisions (other than provisions in conflict herewith) of § 45-28, or to the provisions (other than provisions in conflict herewith) of any law enacted in substitution for said section. * * * At any time...