Coble v. Dick

• Court: North Carolina Supreme Court
• Writing for the Court: CLARKSON, J.
• Citation: Coble v. Dick, 194 N.C. 732, 140 S.E. 745 (N.C. 1927)
• Decision Date: 21 December 1927
• Docket Number: 336-B.
• Parties: COBLE v. DICK.

140 S.E. 745

194 N.C. 732

COBLE v. DICK.

No. 336-B.

Supreme Court of North Carolina

December 21, 1927

Appeal from Superior Court, Alamance County; Barnhill, Judge.

Action by John M. Coble against J. T. Dick. Judgment for plaintiff and defendant appeals. Affirmed.

The following is agreed statement of facts:

"First. That the plaintiff, John M. Coble, purchased from the defendant, J. T. Dick, a building lot in the town of Mebane, N. C., on the 31st day of March, 1924, and the defendant executed to the said John M. Coble deed for a consideration, said deed containing full covenants and warranties against all incumbrances whatsoever.

Second. That prior to the execution of the aforesaid deed, street and sidewalk assessments had been legally and regularly levied against the property conveyed in said deed. That annual installments for a 10-year period had been authorized by the city of Mebane. That said installments were $23.46 each, plus interest computed annually.

Third. That the installment of January 15, 1924, was paid by the defendant, and since that time the plaintiff has paid the sum of $67.34, and this action is brought for the recovery of the sum of $67.34, the amount plaintiff has already paid on said assessment. That plaintiff's cause of action is based upon the warranties contained in said deed against all incumbrances.

Fourth. That the assessment roll went into effect on the 15th day of July, 1922, and that all annual installments accruing prior to the date of said conveyance had been paid by the defendant, J. T. Dick.

Fifth. That the assessment was made by the town of Mebane, N. C under the act of the Legislature of North Carolina, known as 'Local Improvement Statutes' and under municipal finance acts as set forth in chapter 56 of the Consolidated Statutes of North Carolina, and was regularly and properly made.

Sixth. It is agreed that the entire question is whether such assessment is an incumbrance as contemplated or included in the warranty."

The judgment, in part, is as follows:

"The court being of the opinion that the street assessment lien set out in said agreed statement of facts constitutes an incumbrance within the meaning of the warranty clause in said deed from the defendant to the plaintiff, it is ordered, considered, and adjudged that the plaintiff recover of the defendant, J. T. Dick, the sum of $67.34 together with interest," etc.

Thos. C. Carter, of Mebane, for appellant.

John J. Henderson, of Graham, for appellee.

CLARKSON J.

C. S. § 2713, in part, is as follows:

"Whenever the governing body shall confirm an assessment for a local improvement, the clerk of the municipality shall enter on the minutes of the governing body the date, hour, and minute of such confirmation, and from the time of such confirmation the assessments embraced in the assessment roll shall be a lien on the real property against which the same are assessed, superior to all other liens and incumbrances." (Italics ours.)

C. S. § 2716, provides that payment of assessment can be in cash or by installments.

C. S. §...