Craven County v. Parker

• Decision Date: 16 November 1927
• Docket Number: 163.
• Citation: 140 S.E. 155,194 N.C. 561
• Parties: CRAVEN COUNTY v. PARKER et al.
• Court: North Carolina Supreme Court

140 S.E. 155

194 N.C. 561

CRAVEN COUNTY v. PARKER et al.

No. 163.

Supreme Court of North Carolina

November 16, 1927

Appeal from Superior Court, Craven County; Harris, Judge.

Action by Craven County against Richard Parker and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Action to foreclose certificates of sale of real estate for taxes heard and determined upon the following facts:

(1) The plaintiff is a municipal corporation of the state of North Carolina, with the power of levying taxes upon property situate therein.

(2) During the years 1920, 1921, 1922, 1923, and 1924 Richard Parker, the defendant, was the owner of said land, and J. C Rasberry, the defendant, had a mortgage given for the purchase price upon the same. That the taxes for the year 1920 were $161.40; for 1921, $121.26; for 1922, $128.72; for 1923, $166.26; and for 1924, $164.30.

(3) In 1920 the said Richard Parker listed personal property for $858; in 1921 for $740; for 1922, $680; in 1923 for $370; and in 1924 for $288.

(4) On October 1, 1921, Richard Parker, in whose name the land was assessed for taxes, owned personal property in excess of the sum of $161.40; that in August, 1922, Richard Parker owned personal property in excess of $121.26; that in October 1923, the said Richard Parker owned personal property in excess of $128.72, and in October, 1924, Richard Parker owned personal property in excess of $166.20, and in December, 1925, Richard Parker owned personal property in excess of $164.30; and that the taxes now sought to be collected against the land include taxes assessed against the personal property for each year.

(5) No levy was made for the taxes for 1920, 1921, 1922, 1923, or 1924, on the personal property of the said Richard Parker for the taxes then due by said Richard Parker.

(6) No notice was ever served upon Richard Parker or the defendant J. C. Rasberry in regard to the taxes for 1920, 1921, 1922, 1923, and 1924, except the usual newspaper notice of the sale of land by the sheriff for taxes. The reference to which land in said advertisement was as follows: "Richard Parker, 250 acres, Washington road, No. 1 township," and no other description was given or notice made, and this notice was published in a newspaper published in Newbern, Craven county, N. C.; that said 250 acres was the only land owned by Richard Parker in Craven county.

(7) The defendant J. C. Rasberry then lived, and now lives, in Lenoir county at Kinston, N. C., and the defendant Richard Parker lived at Vanceboro, township No. 1, Craven county, and neither the defendant Rasberry or Parker was subscriber to said paper, and the first notice that the defendant J. C. Rasberry had of any claim for taxes by the plaintiff was the issuance of the summons in this action, but repeated notices had been mailed to Parker, and one left at his home by the sheriff before the commencement of this suit.

(8) The only description of the land in the certificate issued by the county following said sale was "250 acres, Washington road," listed to Richard Parker.

(9) The defendant Rasberry, during the years in which this land was sold for taxes, and for which suit is brought, held a mortgage upon said land, and the amount due under said mortgage for which the land is the only security does not exceed the amount claimed by the plaintiff for taxes with the interest thereon.

(10) The defendant J. C. Rasberry has tendered to the plaintiff the full amount of taxes due on said land, in accordance with the record of the taxes assessed during the years and each year thereof, and, in addition thereto, has tendered to the plaintiff the amount of the aforesaid taxes, together with 6 per cent. interest on the taxes from the date of sale thereof, and the plaintiff has declined and refused to accept such tender.

The court gave judgment in favor of the plaintiff for the taxes, cost of sale, interest, and penalties due by the defendant Parker, owner and mortgagor, and appointed a commissioner to sell the land, if not redeemed within the time specified. The exceptions are noted in the opinion.

Moore & Dunn, of Newbern, and F. E. Wallace, of Kinston, for appellants.

R. E. Whitehurst, of Newbern, for appellee.

ADAMS J.

It is made the duty of the board of commissioners or other governing body of a county to foreclose certificates held by the county for the sale of real estate for taxes. C. S. § 8037. For this purpose the plaintiff brought suit against the defendant Parker, owner and mortgagor of the land, and the defendant Rasberry, who is mortgagee. The only answer filed is that of Rasberry. He attacks the judgment on the ground that the sheriff failed to serve on the delinquent taxpayer a copy of the advertisement of sale, as provided by C. S. § 8013, and cites Matthews v. Fry, 141 N.C. 582, 54 S.E. 379, as authority for this position. That was an action for the recovery of land in which the defendant relied upon title alleged to have been acquired at sale for the nonpayment of taxes. The decision turned on the construction of certain sections of chapter 169, Public Laws 1897. Section 51 provided that, before any real estate should be sold for taxes, the sheriff or tax collector should personally serve a written or printed notice of such sale on the delinquent taxpayer or his agent at least 30 days before the sale, if the delinquent resided in the county. It was held that the defendant had acquired no title, because the sheriff had failed to serve the notice. It was made to appear, in addition, that the sheriff had not given any notice of the sale by publication. Section 51 seems to have been construed as a condition precedent. But a material change has been made, and the statute now reads:

"Before any real estate shall be sold for taxes the sheriff shall give public notice of the time, place, and cause of such sale by advertisement," etc. C. S. § 8014.

Other notice to the delinquent is provided for in the preceding section:

"In addition to the advertisement *** the sheriff shall, at least twenty days before a sale of real estate for taxes, serve upon each delinquent taxpayer whose real estate is advertised for sale *** a copy of so much of such advertisement *** as relates to him and his real estate."

In King v. Cooper, 128 N.C. 347, 38 S.E. 924, cited in Matthews v. Fry, supra, it was said:

"We

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