Headman v. Board of Com'rs of Brunswick

Decision Date02 April 1919
Docket Number282.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Brunswick County; Stacy, Judge.

Action by Frank C. Headman, executor, and others against the Board of Commissioners of Brunswick and the City of Southport and another. From the judgment rendered, defendants appeal. Modified.

Though refusal of taxes tendered was a waiver of further tender, the court will require, as a condition of entry of judgment in favor of plaintiffs in action to remove tax deed as cloud upon title, that amount of taxes, together with any other amount due by way of penalty or interest, be paid by plaintiffs.

C. Ed Taylor, of Southport, for appellant Brunswick Co.

Cranmer & Davis, of Southport, for appellant City of Southport.

Russell W. Richmond, of Providence, R. I., and Joseph W. Ruark and Robert Ruark, both of Southport, for appellant Allen.

E. K Bryan, of Wilmington, for appellees.


The plaintiffs alleged in their complaint that a deed under a tax sale of their land had been fraudulently obtained, and that the notice required by the law, before such a deed is executed, was not given, and that plaintiffs' only remedy was by foreclosure; and that the land was in the hands of a receiver, and was improperly listed in the name of the Southport Land Company, and by reason of the defects in the sale and deed a cloud has been put upon their title, which they ask to be removed.

The defendants demurred to the complaint, assigning the following grounds of demurrer, which will be stated and considered in their proper order:

First. That plaintiffs had not paid the taxes due for the years 1914 and 1915, for which the land was sold. The plaintiffs alleged that they were willing and ready to pay the taxes, and tendered them to the defendant entitled to receive them, and that he will not receive them. This, of course, is admitted by the demurrer, or rather to be considered as admitted, for the purpose of deciding the legal questions raised by it. Balfour Quarry Co. v. West Const. Co., 151 N.C. 345 66 S.E. 217; Brewer v. Wynne, 154 N.C. 467, 70 S.E 947; Kendall v. Highway Commission, 165 N.C. 600, 81 S.E. 995.

The defendant cannot be forced to accept payment of the taxes, and his refusal is a waiver of further tender, and dispenses with the necessity of it. Beck v. Meroney, 135 N.C. 532, 47 S.E. 613 (a tax sale case). This is also the usual rule as to a tender. Abrams v. Suttles, 44 N.C. 99; Bateman v. Hopkins, 157 N.C. 470, 73 S.E. 133, Ann. Cas. 1913C, 642; Gallimore v. Grubb, 156 N.C. 575, 72 S.E. 628; Blalock v. Clark, 133 N.C. 306, 45 S.E. 642; and Gaylord v. McCoy, 161 N.C. 685, 77 S.E. 959, where this court said:

"It is a general rule that when the tender of performance of an act is necessary to the establishment of any right against another party, this tender or offer to perform is waived or becomes unnecessary when it is reasonably certain that the offer will be refused; that payment or performance will not be accepted." And this was also held in Mobley v. Fossett, 20 N.C. 96, bottom page 78; Martin v. Bank, 131 N.C. 121, 42 S.E. 558; Terrell v. Walker, 65 N.C. 91.

In Mobley v. Fossett, supra, it was held that, when a party is bound by his agreement to make a tender of an article at a particular place, and the other party apprises him that he will not receive the article at all, it dispenses with the necessity of making the tender, citing 2 Starkie on Evidence, p. 778. But while this is so, if the plaintiff finally prevails in this action, the court will require as a condition of entering a judgment upon the verdict that plaintiffs pay into the court the amount of the taxes, for the use of the party entitled there to, or to him directly, with any other amount due by way of penalty or interest. Brunswick county and the city of Southport, it is presumed, already have received their taxes, and the defendant Philip Allen may have paid them, so that no other payment is now necessary, but inquiry will be made as to this matter and the facts found, so that the proper judgment may be rendered and the amount of taxes, and other amounts due may be paid. McLaurin v. Williams, 175 N.C. 290, 95 S.E. 559. The county and city, or their assignee, must have all taxes and charges due to them, or to those claiming under them, before any decree is entered, on the verdict, if the plaintiff finally gets one. The payment of taxes is only required to be shown, not pleaded. Beck v. Meroney, 135 N.C. 532, 47 S.E. 613; Moore v. Byrd, 118 N.C. 688, 23 S.E. 968.

Second. That listing the land in the name of some one other than the true owner did not invalidate the sale of the land for the taxes, as alleged by the plaintiff. We have so held in several well-considered cases. Peebles v. Taylor, 118 N.C. 165, 24 S.E. 797; Moore v. Byrd, supra; Eames v. Armstrong, 146 N.C. 1, 59 S.E. 165, 125 Am. St. Rep. 436; and the recent case of Stone v. Phillips, 176 N.C. 457, 97 S.E. 375, in which attention is called to Revisal 1905, § 2894, which reads, as follows:

"That no sale of real estate shall be void because such real estate was charged in the name of any other person than the rightful owner, if such real estate be in other respects sufficiently described. But no sale of property so listed in the name of the wrong person shall be held valid where the rightful one has listed the same and paid the taxes thereon."

Stone v. Phillips, supra, cites Taylor v. Hunt, 118 N.C. 168, 24 S.E. 359, as approving the principle embodied in the statute, and distinguishes Rexford v. Phillips, 159 N.C. 213, 74 S.E. 337, in which case it appeared that there had not been any listing of the property as the law required, but the placing on the books of an indefinitely described part of a large body of land by a person having no semblance of authority, in law or in fact for doing so. To have permitted such a false and unauthorized listing and description to bind and conclude the owner would have been a plain act of injustice, which is not warranted by any reasonable construction of the statute, and is directly contrary to its expressly declared purpose. The Stone Case holds, in a well-considered opinion by Justice Hoke, that the listing of property in the name of a person other than the true owner will not invalidate a sale of it for the taxes, which is otherwise free from fatal defects, and this opinion we again approve. Counsel who argued the present case before us (Mr. Robert Ruark) correctly understood and stated in his argument, and in his brief, the palpable distinction between Rexford v. Phillips, 159 N.C. 213, 74 S.E. 337, and the cases holding that the mere listing in the wrong name, when the property is sufficiently described, will not invalidate a sale for taxes.

It can make no difference, as to the validity of a tax sale, that the property was in the custody of a receiver, appointed by the court, while the taxes were due. Revisal 1905, § 2879, provides fully for such a case, and section 2862 requires a receiver and other fiduciaries named therein to pay the taxes assessed against the trust property, and makes him liable personally to the sheriff, by an action against him, and in damages to the owner of the property, who suffers loss by his default, for the failure to pay the taxes out of the trust fund in his hands. But we do not think this section deprived the owner of the right to protect his property, although held in trust by a receiver, by making a tender of the taxes to save it from a sale and the consequent loss of it by him. Such was not the intent and meaning of this section, which was to give an easy remedy to the sheriff, against the trustee or receiver, which was cumulative to that against the owner, and it could not have been intended that the owner should be made to see his property sacrificed by the neglect of a receiver, and not be able to save it by paying the taxes, and such an injustice would be aggravated and more apparent when the receiver really had no funds with which to pay them, as may happen to be the case in some instances. It would be proper, at least, to make the receiver a party to this action, as he has an interest in it. The court, by which he was appointed, would, upon proper application, direct him to make himself a party, as the fund in his hand is involved, and will be lost in the event the sale eventually is held to be valid.

Third. The plaintiff further alleges that the only remedy of the county and city was by foreclosure. This was so at one time, but the statute has been changed, and each case must be decided under the law existing at the time of the particular transaction.

With reference to this question, the Chief Justice said, in Townsend v. Drainage Commissioners, 174 N.C. 556, 559, 94 S.E. 104, 106:

"The appellant contends that Revisal, § 2912, requires the purchaser at a tax sale to bring an action to foreclose upon his tax certificate, and that this is his only remedy. In this he is in error, for section 2912 gives this as an additional remedy and uses the following language: 'The holder of a deed for real estate sold for taxes shall be entitled to the remedy provided in this section [2912] if he elect to proceed thereunder,' or he may proceed to acquire a deed from the sheriff as otherwise pointed out in sections 2899 to 2907 of the Revisal. Every individual purchaser has two remedies, one to proceed under the statute to require a deed, and the other to foreclose by action in court under section 2912. Formerly, if the county was purchaser it had only the right to foreclose ( Wilcox v. Leach, 123 N.C. 74 ), but this was changed by Laws 1901, c. 558, § 18 (now Pell's Revisal, § 2905), which provides that the

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