Franklin County v. Jones

• Decision Date: 11 January 1957
• Docket Number: No. 396,396
• Citation: 95 S.E.2d 863,245 N.C. 272
• Court: North Carolina Supreme Court
• Parties: COUNTY OF FRANKLIN, v. Mrs. C. A. JONES and husband, C. A. Jones; Mrs. Laura Jones Wilkes and husband, Jimmie Wilkes; Mrs. Hettie Jones Denton and husband, Buster Denton; Mrs. Hattie Jones Jeanes and husband, E. L. Jeanes; Mrs. Mattie Jones Perry and husband, Elbert Perry; Zollie Jones and wife, Mrs. Margaret P. Jones; Mrs. Mary Jones Denton and husband, Creamey Denton; Davis Jones and wife, Mrs. Audrey C. Jones; Martha Jones, unmarried, and Blonie Jones, unmarried, and James E. Malone, Jr., Guardian ad litem of Jimmie Wilkes, non compos mentis, and the unborn children or heirs in posse of Mrs. Emma Jane Jones; and James E. Malone, Jr., Guardian ad litem of Davis Jones, Martha Jones and Blonie Jones.

Page 863

95 S.E.2d 863

245 N.C. 272

COUNTY OF FRANKLIN, v. Mrs. C. A. JONES and husband, C. A. Jones; Mrs. Laura Jones Wilkes and husband, Jimmie Wilkes; Mrs. Hettie Jones Denton and husband, Buster Denton; Mrs. Hattie Jones Jeanes and husband, E. L. Jeanes; Mrs. Mattie Jones Perry and husband Elbert Perry; Zollie Jones and wife, Mrs. Margaret P. Jones Mrs. Mary Jones Denton and husband, Creamey Denton; Davis Jones and wife, Mrs. Audrey C. Jones; Martha Jones unmarried, and Blonie Jones, unmarried, and James E. Malone Jr., Guardian ad litem of Jimmie Wilkes, non compos mentis, and the unborn children or heirs in posse of Mrs. Emma Jane Jones; and James E. Malone, Jr., Guardian ad litem of Davis Jones, Martha Jones and Blonie Jones.

No. 396

Supreme Court of North Carolina.

Jan. 11, 1957

G. M. Beam, Louisburg, for movant appellees.

John F. Matthews, Louisburg, for H. E. Stallings and wife.

Edward F. Yarborough and B. H. Cooke, Louisburg, for Franklin County.

RODMAN, Justice.

If any of the four pillars on which the judgment rests suffice to support it, the judgment must be affirmed. This necessitates an examination of each of the reasons given.

Was the jurisdiction of the Superior Court to determine the liability of the land for taxes defeated by a finding that the owners--defendants in the action--had not listed the property for taxes?

The answer is no. The court was invested by statute with the power to determine the tax liability and to foreclose any tax lien. G.S. § 105-391. The owners of the property were before the court by the service of process. Whether the land was properly listed and the amount of taxes for which the land was liable were factual matters to be made the subject of an issue upon proper traverse of the allegations of the complaint. An admission of liability of the land for the amount of the taxes asserted to be due, either by answer or by default, does not divest the court of jurisdiction if it subsequently develops that the admission was not correct. A judgment appropriately rendered on such an admission is conclusive. Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E.2d 909; Stelges v. Simmons, 170 N.C. 42, 86 S.E. 801; Turnage v. Joyner, 145 N.C. 81, 58 S.E. 757.

Movants cite in support of the assertion that the court was without jurisdiction because of the failure to properly list the land for taxes, Rexford v. Phillips, 159 N.C. 213, 74 S.E. 337; Stone v. Phillips, 176 N.C. 457, 97 S.E. 375; Phillips v. Kerr, 198 N.C. 252, 151 S.E. 259; and Wake County v. Faison, 204 N.C. 55, 167 S.E. 391. The cases cited and relied upon are not authority for the position taken. The first three cases were under the old statute where the holder of a sheriff's certificate of sale could obtain a tax deed without invoking judicial process and without an opportunity to the owner to have the tax liability judicially determined. C.S. § 8030. All then necessary was that the certificate holder should serve notice on the person in whose name the land was listed. A compliance with that statute was no notice to the true owner where the land was improperly listed. The philosophy of those cases is indicated by the following quotation from Rexford v. Phillips, supra [159 N.C. 213, 74 S.E. 338]: 'The Legislature has never provided that a person without authority in law or in fact may enter on the lists an indefinitely described number of acres in a township containing many thousand acres, not in the name of the owner but of some one else, and thereby confer authority to sell lands thus listed, and by the sheriff's deed pass the title to the lands of another person whose name does not appear in the list, and whose lands are not described therein, and who has never authorized the listing of his land by another, and whose land has not been listed by the chairman of the county commissioners, as required by law in case of the owner's default. * * * The provisions of the law are adequate for the proper listing of property and the collection of taxes, and the Legislature did not intend that it should be confiscated without notice.' (Emphasis added.) It was the taking without notice and an opportunity to be heard which formed the basis of decision in those cases.

As pointed out in Travis v. Johnston, 244 N.C. 713, 95 S.E.2d 94, Wake County v. Faison, supra, must be interpreted in the light of the facts of that case. When so viewed, it is no authority for the proposition that one served with process and a complaint in which it is alleged that the land he owns is liable for taxes and should be sold to satisfy the tax lien can ignore the court and years later say that the court was without authority to determine the question of tax liability. The presence of the defendants, owners of the property, and the authority of the court to inquire as to the liability of the land for the taxes suffices to permit a valid adjudication of that question. The judgment is not viod because of a mistake as to a fact which might have been put in issue.

Did the continuance of the sale from 13 October to 19 October render the sale void and deprive the court of the power to act on the bid then made?

The statutes in effect in October 1945 permitted the sale of real property under judicial decree on any day except Sunday, C.S. § 690. Statutory authority was given by which the commissioner might 'postpone the sale from day to day, but not for more than six days in all * * *.' C.S. § 692. The sale was not in fact continued from day to day. The continuance was for a period of six days. The assertion that the failure to postpone each day for the six-day period rendered the sale absolutely void and deprived the court of any power to act on the bid made cannot be sustained. The failure to follow the letter of the statute was, at most, an irregularity which could not affect the purchaser. The language of Ruffin, J. (later C. J. p) in Mordecai v. Speight, 14 N.C. 428, is appropriate: 'It would be dangerous to purchasers, and ruinous to defendants in execution, to require bidders to see that the sheriff had complied with all his duties. It is said, however, that this will allow sales to be made at other places besides the courthouse, as the same section fixes both the place and the day. The difference is this: a purchaser knows, and is bound to take notice, that the sheriff cannot sell but at the courthouse, and that a sale elsewhere must be void. But the sheriff may sell on Monday, or in certain cases, and under certain regulations, he may also sell the next day. Now, a bidder can no more know whether those provisions have been complied with than whether the sale has been duly advertised.' Williams v. Charles F. Dunn & Sons Co., 163 N.C. 206, 79 S.E. 512; Wade v. Saunders, 70 N.C. 270; Brooks v. Ratcliff, 33 N.C. 321.

An irregularity in conducting a judicial sale does not render the sale void. It is, of course, voidable. Confirmation by the court with knowledge of the irregularity and with jurisdiction of the subject matter and of the interested party ends the right to complain of the defect. The confirmation is an adjudication that what was done conforms to the directions of the court. Upchurch v. Upchurch, 173 N.C. 88, 91 S.E. 702; Voorhees v. Jackson, 10 Pet. 449, 9 L.Ed. 490; judicial Sales, 31 Am. Jur. 470; 50 C.J.S., Judicial Sales, § 29, p. 622; 1 A.L.R. 1446.

Was the judgment decreeing the foreclosure void because of the minority of three of the defendants? It is difficult to perceive how the minority of three of the defendants could serve as a shield for the adult defendants or excuse their neglect to defend. Each cotenant had a right to pay that part of the tax liability constituting a lien on his share of the land, G.S. § 105-411. A judgment rendered by a court against a person under disability who is not properly represented is an irregular judgment. When courts are informed of the disability of a party, they properly make provision for appropriate representation of the party under disability. When this action was instituted, there was nothing to show that any of the movants were under disability. Process regularly issued for and was served on each defendant. They were properly before the court. When the court acquired knowledge of the disability of some of the parties, it was proper for the court to appoint some competent and discreet person to act for those under disability. Hoke, J.,...