Lawrence v. Shaw

• Court: North Carolina Supreme Court
• Writing for the Court: CONNOR, Justice.
• Citation: Lawrence v. Shaw, 210 N.C. 352, 186 S.E. 504 (N.C. 1936)
• Decision Date: 30 June 1936
• Docket Number: 172.
• Parties: LAWRENCE v. SHAW et al.

186 S.E. 504

210 N.C. 352

LAWRENCE v. SHAW et al.

No. 172.

Supreme Court of North Carolina

June 30, 1936

Appeal from Superior Court, Hertford County; Cranmer, Judge.

Controversy without action by L. J. Lawrence, guardian of Harry Newsome incompetent, against John A. Shaw and others, members of and constituting the board of commissioners of Hertford county and another. Judgment for defendants, and plaintiff appeals.

Affirmed. This is a controversy without action. C. S. § 626.

It is agreed: "1. That the plaintiff was duly appointed by and qualified before the Clerk of the Superior Court of Hertford County, on or about 16 May, 1929, as guardian of Harry Newsome, incompetent veteran of the World War, and has ever since been and is now the duly appointed and acting guardian of said veteran.

2. That John A. Shaw, W. C. Ferguson, C. T. Whitley, B. N. Sykes, J M. Eley and T. W. Sears are members of and constitute the Board of Commissioners of Hertford County, North Carolina.

3. That John A. Northcott is the duly appointed, elected and acting County Accountant and fiscal agent of Hertford County, and is charged by law, by virtue of his office, with the duties of setting up and keeping records of all tax levies made by said Board of Commissioners, of all obligations due to and by said County, keeping books and records of all receipts and disbursements of public monies of said county, and of receiving, accounting for and paying out, upon orders of said Board, all tax and public monies belonging to said Hertford County; and that the said John A. Northcott is also Register of Deeds of Hertford County and ex officio Clerk to the defendant Board of Commissioners, and was such Register and Clerk at the times hereinafter mentioned.

4. That at the time of the appointment and qualification of the plaintiff as guardian aforesaid, the said Harry Newsome incompetent veteran as aforesaid, owned no property or estate, other than claims against the United States Government for unpaid compensation and insurance due said veteran for services rendered said Government.

5. That on the first day of April, 1931, the plaintiff had to his credit, as deposits in banks, the amount of $5,787.72, in his name as guardian aforesaid; all of which represented, and in fact were the proceeds of collections made from deposits by said guardian of the original warrants or checks issued by said Government in payment to said veteran of compensation and insurance due the said veteran by the said Government; and on the said first day of April, 1931, said guardian also was in possession of certain interest bearing notes and bonds, payable to said guardian and containing definite dates of maturity and re-payment, not exceeding twelve months from the date of the execution of each respective note or bond, secured by conveyances of real estate, in trust, for the purposes aforesaid, in the aggregate amount of $13,390.28; the whole of which notes, bonds and conveyances were executed by the makers thereof as evidences of and security for loans made by the said guardian from proceeds collected as aforesaid from said United States Government in payment of compensation and insurance due said veteran.

6. That on the first day of April, 1932, the said guardian had to his credit, as deposits in banks, the amount of $3,868.42, in his name as guardian aforesaid; all of which represented and in fact were the proceeds of collections from deposits made by said guardian of the original warrants or checks issued by the said Government in payment to said veteran or compensation and insurance due the said veteran by the said Government; and on the said first day of April, 1932, said guardian was also in possession of certain interest bearing notes and bonds, payable to said guardian, containing definite and fixed dates of maturity and re-payment, as stated in paragraph 5 hereof, which were secured by conveyances of real estate, in trust for the purposes aforesaid, in the aggregate amount of $17,157.58; the whole of which notes and bonds and conveyances were executed by the makers thereof as evidences of and security for loans made by the said guardian from proceeds collected from said U.S. Government in payment of compensation and insurance due the said veteran.

7. That on the first day of April 1933, the said guardian had to his credit, as deposits in banks, the amount of $3,704.76, in his name as guardian aforesaid; all of which represented, and in fact were the proceeds of collections made from deposits by said guardian of the original warrants or checks issued by said Government in payment to said veteran of compensation and insurance due the said veteran by the said Government; and on the said first day of April, 1933, said guardian was also in possession of certain interest bearing notes and bonds, payable to said guardian and containing fixed and definite dates of maturity and re-payment, as aforesaid, secured by conveyances of real estate, in trust, for the purposes aforesaid, in the aggregate amount of $18,528.24; the whole of which notes and bonds and conveyances were executed by the makers thereof as evidences of and seecurity for loans made by said guardian from the proceeds collected from said U.S. Government in payment of compensation and insurance due the said veteran.

8. That on the first day of April, 1934, the said guardian had to his credit, as deposits in banks, the amount of $987.48, in his name as guardian aforesaid; all of which represented and in fact were the proceeds of collections from deposits made by said guardian of the original warrants or checks issued by said Government in payment to said veteran of compensation and insurance due the said veteran by the said Government; and on the said first day of April 1934, said guardian was also in possession of certain interest bearing notes and bonds, payable to said guardian, containing definite and fixed dates of maturity and re-payment, as aforesaid, which were secured by conveyances of real estate, in trust, for the purposes aforesaid, in the aggregate amount of $18,217.52; the whole of which notes, bonds and conveyances were executed by the makers thereof as evidences of and security for loans made by the said guardian from proceeds collected from said U.S. Government in payment of compensation and insurance due the said veteran.

9. That on the first day of April 1935, the said guardian had to his credit, as deposits in banks, the amount of $2,730.93, in his name as guardian aforesaid; all of which represented and in fact were the proceeds of collections from deposits made by said guardian of the original warrants or checks issued by said Government in payment to said veteran of compensation and insurance due the said veteran by the said Government; and on the said first day of April, 1935, said guardian was also in possession of certain interest bearing notes and bonds, payable to said guardian, containing definite and fixed dates of maturity and repayment, as aforesaid, and secured by conveyances of real estate, in trust, for the purposes aforesaid, in the aggregate amount of $13,637.07; the whole of which notes, bonds and conveyances were executed by the makers thereof as evidences of and security for loans made by said guardian from proceeds collected from said U.S. Government in payment of compensation and insurance due the said veteran.

10. That on the said first days of April, 1931, 1932, 1933, 1934 and 1935, neither the said veteran nor the plaintiff, as guardian aforesaid, owned any real estate in Hertford County.

11. That prior thereto, to-wit: during the year 1930, the said veteran became the owner of an automobile, and certain other personal property, the whole of which has been regularly and yearly listed for taxation, and that the taxes due thereon have been duly and regularly paid.

12. That in the said year 1930, the said guardian listed for taxation in said Hertford County the total property in his possession as guardian aforesaid owned by his said ward, in the aggregate amount of $20,380.92, made up of and including money in banks, solvent credits, and loans secured by real estate conveyances as aforesaid, and in said year paid the taxes thereon.

13. That thereafter, and during the year 1931, the plaintiff being informed that a ruling had been made and an opinion given by the Attorney General of North Carolina, that funds received by a guardian of a World War veteran as payments of adjusted compensation or insurance from the Federal Government and invested by the guardian in either a home or in real estate notes, were not subject to taxation, appeared before the defendant Board of Commissioners and made known to said defendant the ruling and opinion aforesaid, and requested the said Board to reimburse and refund to the plaintiff the full amount of said 1930 taxes, and to relieve and discharge the plaintiff from the whole of said taxes.

14. That said Board of Commissioners, pursuant to said information and request, made an order at the time aforesaid, directing repayment and refund to the plaintiff of the whole of said taxes, and thereafter paid to the plaintiff the whole thereof.

15. That in consequence of the opinion and ruling aforesaid, and in consequence of the order made by the said Board of Commissioners, the plaintiff in neither of the years 1931, 1932, 1933, 1934 nor 1935, further listed any property of said veteran in possession of the plaintiff for taxation in said Hertford County and has for neither of said years, except as hereinafter set out, paid to said Hertford County any taxes thereon.

16. That during the year 1935, to-wit, on or about - day of October of said year, the defendant Board of County Commissioners acting by and through its County Accountant under...