Edgecombe County v. Walston

• Decision Date: 19 September 1917
• Docket Number: (No. 63.)
• Citation: 93 S.E. 460
• Court: North Carolina Supreme Court
• Parties: EDGECOMBE COUNTY et al. v. WALSTON et al.

93 S.E. 460

(174 N.C. 55)

EDGECOMBE COUNTY et al.

v.WALSTON et al.

(No. 63.)

Supreme Court of North Carolina.

Sept. 19, 1917.

Appeal from Superior Court, Edgecombe County; Whedbee, Judge.

Action by Edgecombe County and another against A. T. Walston, trustee, and others, for the amount of taxes assessed upon a certain fund. From a judgment dismissing the action, plaintiffs appeal. Reversed, and judgment directed, for plaintiffs.

By consent the court found the facts as set out in the answer to be true, and that those not found in the answer, but set forth in the complaint, are also true. The purpose of the action is to determine whether certain moneys listed for taxation by the clerk of the superior court May 1, 1915, are liable to taxation. His honor rendered judgment against plaintiffs, dismissing the action. Plaintiffs appealed.

Allsbrook & Phillips, of Tarboro, for appellants.

G. M. T. Fountain & Son, of Tarboro, for appellees.

BROWN, J. From the pleadings we gather that these are the admitted facts. The property of the Tarboro Cotton Factory, a corporation, was sold by decree of the superior court by the receivers under foreclosure of a second mortgage for $60,000, subject to a first mortgage for $100,000. The property, subject to said first lien, was sold for $29,000, the sale confirmed, and the money paid to the receivers, who made the sale. By interlocutory decree this money was paid to the clerk of superior court (after deducting certain allowances), to await the subsequent determination of the court as to the rights of the various creditors; the fund being insufficient to pay them all in full. Under the decree of June term, 1914, the receivers paid to the clerk $18,700. No further decree having been made in the cause since June, 1914, the clerk of the superior court duly listed said fund for taxation on May 1, 1915. Subsequently, at June term, 1915, a decree was entered in the cause, directing the clerk to pay over to the codefendants Staton, Cobb, and Zoeller (who own all the second mortgage notes) all of said fund except $2,275, retained to await the disposition of certain contested claims supposed to have priority over the second mortgage.

It is contended that the money on deposit with the clerk was not taxable on May 1, 1915. It is true that at common law property in custodia legis was not subject to taxation (Cyc. 797); but the subject of taxation is one now regulated exclusively by Statute, subject to constitutional provisions, and the law-making power has the right to tax property in the custody of the courts and judicial officers, as well as any other property.

The statutes of this state require that taxes shall be listed as of May 1st each year, and every person owning property is required to list all the real and personal property, money, credits, etc., in his possession or under his control on the 1st day of May, either as owner or holder thereof, or as parent, guardian, trustee, executor, executrix, admin-istrator, administratrix, receiver, accounting officer, partner,...