Jones v. Shull
| Decision Date | 30 November 1910 |
| Citation | 69 S.E. 498,153 N.C. 517 |
| Parties | JONES et al. v. SHULL et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Watauga County; Webb, Judge.
Action by W. L. Jones and others against James M. Shull and others. From a judgment for plaintiffs, certain of the defendants appeal. Reversed and new trial ordered.
This action was brought to try the title to certain lands described in the complaint and in the possession of the defendants, Shull and Gragg. During the trial a voluntary nonsuit was taken as to all the defendants except the two above mentioned. The plaintiffs, after making the usual allegations of title and right of possession in them as the heirs at law of W. C. Jones, whom it is alleged died in 1894 seised and possessed of the land, further allege that the defendants claim title under a tax deed executed to them by the sheriff of Watauga county and allege that the said deed is invalid (1) because the land was not listed for taxes and was not assessed for the year for which it was sold; (2) that no notice of sale was served upon plaintiffs or upon any one representing them; (3) that no advertisement of said land was made; (4) that no notice to redeem was given or served upon the plaintiffs or any one in their behalf; (5) that several years elapsed between the date of the sale and the date of the deed; (6) that the sheriff making the sale was not the sheriff at the time the deed was made; (7) that the plaintiffs, heirs at law of W. C. Jones, were at the time of the sale and the date of the sheriff's deed femmes covert or minors. The defendants denied the allegations of title in the plaintiffs and averred the regularity and validity of the sheriff's deed to the defendant Shull; the other defendant claiming under him. The plaintiffs offered a grant from the state dated August 10, 1883, to W. C. Jones and Robert Munday covering the land in controversy; a deed from Munday to Jones for his share in the land; the death in 1894 of Jones, and that the femme plaintiffs were his heirs at law. The defendants offered the deed from D. F. Baird, ex-sheriff of Watauga county, to J. M. Shull, dated March 10, 1899; this deed recited the assessment of taxes on the land, describing it; the nonpayment of the taxes assessed; the levy on the land for unpaid taxes; the return of the list of levies to the clerk of the superior court; the advertisement and notice of sale as required by law; the sale at the courthouse door on April 6, 1896, and the purchase by Shull, the payment of the amount by him, and the failure to redeem. The minutes of the board of commissioners of Watauga county at their regular meeting on October 7, 1893, were offered, showing that the property of a number of persons, including the land in controversy, was listed and double taxes assessed against it for failure of the owners to list, and order passed directing the sheriff to collect the double taxes; also a similar order made October 5, 1894, which his honor excluded, and defendant excepted. The defendants offered D. F. Baird, ex-sheriff, who testified, among other things, that the order of the commissioners was delivered to him by the register of deeds that he advertised and sold the land as recited in his deed to Shull, having pursued the legal requirements; that certificate of sale was dated April 6, 1896, and was offered in evidence; that he notified the husband of one of the plaintiffs, in whose name for all of them the land was assessed, of the nonpayment of taxes, that the land had been sold and that unless it was redeemed he would make the deed to Shull. The defendant Shull testified that he wrote one of the heirs at law that the land had been sold for taxes and he had bought it. At the conclusion of the evidence, his honor stated that he would hold as a matter of law that the deed from D. F. Baird, ex-sheriff, was invalid and did not divest the title of plaintiffs, and accordingly instructed the jury that if they believed the evidence, to answer the issue of title in favor of the plaintiffs. The defendants excepted, and from the judgment rendered appealed to this court.
L. D. Lowe and F. A. Linney, for appellants.
We think the ruling of his honor was erroneous. It was competent to show that the land in controversy had not been listed by the owners for the tax years 1893 and 1894, and that the chairman of the board of commissioners had inserted in the list such property as had not been listed by the owners, with the names of the persons supposed to be liable, and to charge against such property double the tax with which it would otherwise be chargeable. The orders of the board of commissioners, entered on the first Mondays of October, 1893 and 1894, were, therefore, competent, and it became the duty of the sheriff to collect the taxes assessed against the land in controversy--the legal tax embracing the double charge for failure to list. Section 28, c. 296, Pub. Laws 1893. It was error to exclude this evidence. It appears that two of the plaintiffs were minors at the death of their father, W. C Jones, in 1894, and that they were still minors at the date of the sale and deed by the sheriff. Section 60, c. 119, Acts 1895, the act in force at the time the sale for taxes was made, provides: "Infants, idiots and insane persons may redeem any land belonging to them from such sale within one year (after the expiration of such disability on like terms as if the redemption had been made within one year) from the date of said sale," etc. But it appears from the evidence that these two minors did not avail themselves of this provision in their favor, for no offer to redeem was made within the year...
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