Gower v. Town Of Clayton

• Decision Date: 19 October 1938
• Docket Number: No. 242.,242.
• Citation: 214 N.C. 309,199 S.E. 77
• Court: North Carolina Supreme Court
• Parties: GOWER et al. v. TOWN OF CLAYTON et al.

199 S.E. 77

214 N.C. 309

GOWER et al.

v.TOWN OF CLAYTON et al.

No. 242.

Supreme Court of North Carolina.

Oct. 19, 1938.

Appeal from Superior Court, Johnston County; W. C. Harris, Judge.

Action by Mrs. Bertie T. Gower and husband against the Town of Clayton and another, to restrain execution of a writ of assistance. From an adverse judgment, plaintiffs appeal.

Reversed.

Civil action to restrain execution of writ of assistance.

The uncontroverted facts are substantially these:

The Town of Clayton, on 30 September, 1935, instituted an action in the Superior Court of Johnston County for the foreclo-sure of real estate tax sales certificates for taxes listed in the name of Ashley Horne estate for the years 1928 to 1932, both inclusive.

At that time the heirs at law of Ashley Horne were Chas. W. Horne, Mrs. W. M. Priddy and Mrs. E. H. McCullers. Chas. W. Horne was then in bankruptcy and C. A. Gosney was the Trustee in charge of the bankrupt's estate. Dr. E. H. McCullers, Melba Misenhcimer and I. W. Farmer, Receiver, had acquired the interest of Mrs. McCullers. C. A. Gosney, as Trustee, Mrs. W. M. Priddy, Dr. E. H. McCullers, Melba Misenheimer and I. W. Farmer, Receiver were named defendants. In due time summons was served upon all of them except Mrs. Priddy, who was not served until 14 February, 1938. In the meantime no alias or pluries summons had issued for her. Interlocutory judgment was entered on 21 March, 1938. Sale was had on 20 April, 1938. The Town of Clayton became the purchaser and the sale was confirmed and deed executed and delivered to the Town and filed for registration on 2 May, 1938, and registered the next day.

On 13 November, 1936, C. A. Gosney as Trustee in bankruptcy of Chas. W. Horne, sold and conveyed the interest of Chas. W. Horne in the real estate in question to the plaintiff therein, Mrs. Bertie T. Gower, who then went into, and has since continued in actual possession of the real estate.

On 28 January, 1938, Jas. D. Parker and Norman C. Shepard, Commissioners, under a judgment of the Superior Court of Johnston County in a special proceeding entitled, "Swannanoa H. Priddy, et al., vs. C. A. Gosney, et al.", sold and conveyed to Mrs. Bertie T. Gower all of the interest of the heirs in and to the real estate in question, deed for which was filed for registration on 30 April, 1938, and registered on 2 May, 1938.

The plaintiff, Mrs. Bertie T. Gower, was not a party to the tax foreclosure suit hereinabove described.

Writ of assistance issued on 12 May, 1938.

Thereupon temporary injunction was obtained against the execution of the writ. From judgment dissolving the injunction to the end that the writ be executed, plaintiffs appealed to the Supreme Court, and assign error.

J. M. Broughton, of Raleigh, J. A. Nar-ron, of Smithfield, and Wm. H. Yarbor-ough, Jr., of Raleigh, for appellants.

Abell &.Shepard and Ed. F. Ward, all of Smithfield, for appellees.

WINBORNE, Justice.

On this record writ of assistance will not issue.

"The writ of assistance, in its ordinary acceptation, is one issuing from a court having general equitable jurisdiction for the enforcement of decrees or orders conferring a right to the present possession or enjoyment of property. It usually issues on motion after notice...