City Of Wilmington v. Merrick

• Decision Date: 14 December 1949
• Docket Number: No. 602.,602.
• Citation: 231 N.C. 297,56 S.E.2d 643
• Court: North Carolina Supreme Court
• Parties: CITY OF WILMINGTON et al. v. MERRICK et al.

56 S.E.2d 643

231 N.C. 297

CITY OF WILMINGTON et al.

v.MERRICK et al.

No. 602.

Supreme Court of North Carolina.

Dec. 14, 1949.

Action by City of Wilmington, New Hanover County, and C. R. Morse, City-County Tax Collector, against Lizzie Wright Merrick and others, to foreclose tax liens on real property wherein there was a judgment entered and a writ of possession was issued after judgment.

Luberta Merrick Williams and Isabella Merrick Womack thereafter moved that the judgment be vacated and that the writ of possession be recalled. The Superior Court, New Hanover County, W. C. Harris, J., granted such motion, and the plaintiffs appealed.

The Supreme Court, Barnhill, J, held that the action of the trial court was proper since the movants had never been made parties to the proceeding, and affirmed the judgment.

Civil action under G.S. § 105-414 to foreclose tax liens on real property, heard on motion by certain cotenants to vacate the judgment entered and the writ of possession issued after judgment.

Titus Wright died prior to 1891, seized and possessed of a certain lot in the City of Wilmington. He left surviving two daughters, Lizzie Wright Merrick and Lilly Wright. The movants, Luberta Merrick Williams and Isabella Merrick Womack are daughters of Lizzie Wright Merrick, deceased. Lilly Wright also died prior to the institution of this action, leaving a son, Willie Wright, surviving. The relationship of Ida Wright and Edward Wright is not disclosed by the record. The said Luberta Merrick Williams, Isabella Merrick Womack, Willie Wright, and other children of the two deceased daughters were, at the time of the institution of this action, the owners of said lot as tenants in common. The complaint alleges that the property "was duly listed and returned for taxation at the time, or times, hereinafter set forth * * *", but the person or persons in whose name or names the property was listed is not disclosed. Taxes assessed by plaintiffs against the premises for a number of years prior to 1946 being unpaid, this action was instituted, captioned as above, to foreclose the lien thereof.

J. H. Ferguson, having been appointed guardian ad litem of "any infants, incompetent insane or of unsound mind * * * and all parties who may be in the Armed Forces of the United States * * * who have or may have, an interest in the property involved in this action", filed answer admitting all the allegations in the complaint. No other answer was filed. The land as sold and judgment of confirmation was entered.

The purchaser, R. L. Lewis, petitioned the court for a writ of possession. Notice of the motion was served on Ida Wright, Isabella Merrick Womack, and Luberta Merrick Williams, the parties in actual possession of at least a part of the premises. On the return day of the notice, no answer having been filed, a writ of possession was issued.

Thereafter, Isabella Merrick Womack and Luberta Merrick Williams appeared and moved the court to vacate the judgment of foreclosure and the deed executed thereunder and to recall the writ of possession for the reason that they were never made parties to this action and no process has ever issued against them; that no cause of action is stated in the complaint as against them; that two of the three named defendants were not living at the time of the institution of this action; that part of the land sold is listed in the name of James McMillan who is not a party defendant; and for other causes stated.

Copies of the original summons and complaint were delivered to the movants. One half of the property sold is listed in the name of James McMillan. This is admitted by plaintiffs.

When the motion came on to be heard, the court found as a fact that the movants were never made parties to this action and that no process was ever served on them, making them parties, and adjudged that the foreclosure judgment and the deed executed by authority thereof are null and void as to the movants and recalling the writ of possession as to them. Plaintiffs excepted and appealed.

G. C. Mclntire, Wilmington, for plaintiffs-appellants.

J. H. Ferguson, Wilmington, for R. L. Lewis, purchaser at foreclosure sale.

Hogue & Hogue, Wilmington, for defendants-appellees.

BARNHILL, Justice.

The many alleged defects in the proceeding appearing on the face of this record invite much writing which in the end would serve no useful purpose. In the final analysis the appeal presents two questions: (1) Were the movants made parties defendant herein so that they are bound by the judgment entered, and, if not, (2) Did they, by their general appearance and motion to vacate the judgment, waive the defect? We are constrained to answer each question in the negative.

It must be noted in the beginning that this is an action instituted under the provisions of C.S. 7990, now G.S. § 105-414. It is so alleged in the complaint. This is understandable. Had plaintiffs pursued the alternative method provided by G.S. § 105-391, the collection of a large proportion of the amounts claimed might be barred.

The action is in the nature of an action to foreclose a mortgage. G.S. § 105-414; Board of Com'rs for County of Washington v. Gaines, 221 N.C. 324, 20 S. E.2d 377. Its very purpose is to foreclose the interest of the owners, sell all the right and title of the taxpayer, and enable the purchaser at the sale to ascertain what title it is that he buys. The owners of the property, subject to the asserted lien, must be made parties to the action. Jones v. Williams, 155 N.C. 179, 71 S.E. 222, 36 L.R.A., N.S., 426; 37 A.J. 44. The decisions in this State are uniform in holding that all persons having an interest in the equity of redemption should be parties to a proceeding for foreclosure. Riddick v. Davis, 220 N.C. 120, 16 S.E.2d 662, and cases cited; Board of Com'rs for County of Washington v. Gaines, supra. "A decree of foreclosure is a nullity as to the owner of the equity of redemption not made ...