Johnston County v. Stewart

• Decision Date: 27 March 1940
• Docket Number: No. 245.,245.
• Citation: Johnston County v. Stewart, 217 N.C. 334, 7 S.E.2d 708 (N.C. 1940)
• Parties: JOHNSTON COUNTY. v. STEWART et al.
• Court: North Carolina Supreme Court

217 N.C. 334

7 S.E.2d 708

JOHNSTON COUNTY.

v.STEWART et al.

No. 245.

Supreme Court of North Carolina.

March 27, 1940.

Appeal from Superior Court, Johnston County; H. A. Grady, Emergency Judge.

Action by Johnston County against Mrs. D. J. Stewart and another to foreclose lien of tax sale certificate, wherein foreclosure decree was entered and property was sold, and subsequently Mrs. Alice Moore and others were made additional parties defendant. From a judgment overruling demurrer of additional defendants to the complaint, additional defendants Ezra Parker and another appeal.

Reversed.

Action was instituted by the County of Johnston against Mrs. D. J. Stewart and her husband, in 1930, to foreclose the lien evidenced by tax sale certificate, pursuant to sale for nonpayment of taxes for the year 1927, on land listed in the name of Mrs. D. J. Stewart, and described in the complaint as "4 town lots lying and being in Banner Township, Johnston County." Decree of foreclosure was entered, and the property sold by a commissioner, and purchased by the Town of Benson for $360. The money was paid and deed made by commissioner to the Town of Benson in February, 1932. In 1939, the Town of Benson offered the property for sale, and the purchaser, upon tender of deed, declined to pay the purchase price, on the ground that at the time of the foreclosure suit instituted by the County of Johnston there were outstanding liens on the property and the lienors were not made parties to the suit. Thereupon motion was made in the original action in the name of the County of Johnston that certain lien-holders and other persons interested in the property be made parties, including appellants. Summons was accordingly served, and the appellants demurred to the complaint on the ground that it did not state a cause of action, in that the description of the property set out in the complaint was void for indefiniteness, and that no proper judgment affecting title to land could be predicated upon a void description. Other defenses were set up by the demurrer relating to matters not alleged in the complaint.

The court below overruled the demurrer, and defendants Ezra Parker and Lovie D. Parker appealed.

Parker & Lee and E. A. Parker, all of Smithfield, for appellants.

L. L. Levinson, of Benson, and J. R. Pool, of Smithfield, for appellee.

DEVIN, Justice.

The power of the court to order additional parties made even after judgment was recognized in Daniel v. Bethell, 167 N.C. 218, 83 S.E. 307.

Judgments in tax foreclosure suits to which the real owners of the property or those holding registered liens thereon are not made parties are not binding upon such owners and lienors, and they are not barred thereby from asserting their rights in the property or from setting up defenses to the action. Beaufort County v. Mayo, 207 N.C. 211, 176 S.E. 753; Buncombe County v. Penland, 206 N.C. 299, 173 S.E. 609; Hill v. Street, 215 N.C. 312, 1 S.E.2d 850. When the appellants were brought into the case by the service of summons, it was their first opportunity to be heard, and they had the right to set up any defect of which they were advised in the original...