Latta v. Jenkins

• Court: North Carolina Supreme Court
• Writing for the Court: CONNOR, J.
• Citation: Latta v. Jenkins, 200 N.C. 255, 156 S.E. 857 (N.C. 1931)
• Decision Date: 27 January 1931
• Docket Number: 609.
• Parties: LATTA v. JENKINS, County Treasurer.

156 S.E. 857

200 N.C. 255

LATTA v. JENKINS, County Treasurer.

No. 609.

Supreme Court of North Carolina

January 27, 1931

Appeal from Superior Court, Buncombe County; MacRae, Special Judge.

Action by E. D. Latta, Jr., executor and trustee under the will of E. D. Latta, deceased, against L. L. Jenkins, treasurer, and another. From a judgment in favor of defendants, plaintiff appeals.

Affirmed.

This is an action to recover of defendants a sum of money paid by plaintiff, under protest, as taxes levied on property located in the city of Asheville, and assessed for taxation by Buncombe county for the year 1928. Prior to the commencement of the action, the plaintiff had fully complied with the provisions of section 464, chapter 80, Public Laws of North Carolina 1927 (Code 1927 § 7880 (189).

Plaintiff contends that the property on which the taxes were levied by Buncombe county for the year 1928 was exempt from taxation under the provisions of section 69, chapter 71, Public Laws of North Carolina 1927 (Code 1927, § 7971 (67), and that for this reason the sum of money paid by him to the defendants under protest, should be refunded to him. Defendants contend to the contrary.

The action was heard on a statement of facts agreed. The court was of opinion that on these facts the property on which the taxes were levied by Buncombe county for the year 1928 was not exempt from taxation, and that plaintiff is not entitled to recover of the defendants in this action.

From judgment that plaintiff recover nothing in this action plaintiff appealed to the Supreme Court.

Cansler & Cansler, of Charlotte, and Merrimon, Adams & Adams, of Asheville, for appellant.

Don Young, George Pennell, and Ward & Allen, all of Asheville for appellee.

CONNOR J.

Plaintiff as trustee named in the will of his father, E. D. Latta, deceased, is the owner of certain property located in the city of Asheville, Buncombe county, N. C., and used for business purposes, which unless exempted by the provisions of section 69, c. 71, Pub. Laws 1927 of this state, was subject to taxation by Buncombe county for the year 1928. By virtue of the provisions of the will of E. D. Latta, deceased, which has been duly probated and recorded in Buncombe county, and of a judgment and decree in an action pending in the superior court of Mecklenberg county, at December term, 1927, plaintiff holds title to said property in trust to sell the same at any time within five years from the date of the judgment and decree, and to pay the net proceeds of said sale, as follows: 45 per cent. of said net proceeds to the daughter of E. D. Latta, deceased, who is the beneficiary of a trust established by his will; and 55 per cent. of said net proceeds to the trustees of the General Assembly of the Presbyterian Church in the United States and the Presbyterian Foundation, Inc., the Asheville Mission Hospital, and the North Carolina Orthopedic Hospital, who are also beneficiaries of certain trusts established by the will of E. D. Latta, deceased. When their proportions of the proceeds of the sale of said property shall have been paid to them by the plaintiff, in accordance with the provisions of said judgment and decree, these last named beneficiaries will hold and use the same exclusively for religious, charitable and educational purposes, in accordance with the will of E. D. Latta, deceased, and the judgment and decree of the superior court of Mecklenberg county.

Prior to the year 1928, the plaintiff listed all the property owned by him as trustee under the will of his father, E. D. Latta deceased, who died in 1925, for taxation, and paid the taxes levied on said property by Buncombe county. After the rendition of the judgment and decree in the action pending in the superior court of Mecklenberg county, at December term, 1927, upon the advice of counsel, plaintiff listed for taxation for the year 1928 only 45 per cent. of the assessed value of said property, and declined to list 55 per cent. of the said assessed value, contending that said 55 per cent. was exempt from taxation under the provisions of section 69, chapter 71, Public Laws 1927 of this state, for that said 55 per cent. of the assessed value of said property was held by him in trust exclusively for religious, charitable, and educational purposes. Thereafter, the board of commissioners of Buncombe county caused the said 55 per cent. of the assessed value of the property located in the city of Asheville, and owned by the plaintiff as trustee, to be listed for taxation for the year 1928. Upon demand of said board of commissioners, and after protest, the plaintiff paid to the tax collector of Buncombe county the amount levied as taxes on said 55 per cent. of the assessed value of said property, and thereafter instituted this action to recover said amount. On the statement of facts agreed, filed in the action when the same was called for trial, the only question presented for decision was whether the said 55 per cent. of the assessed value of the property owned by plaintiff and held by him as trustee under the will of E. D. Latta, deceased, and under the judgment and decree of the superior court of Mecklenberg county, was exempt from taxation by Buncombe county for the year 1928. The answer to this question involves the construction of section 69,...