Madison County v. Coxe

• Citation: 167 S.E. 486,204 N.C. 58
• Decision Date: 25 January 1933
• Docket Number: 600.
• Parties: MADISON COUNTY v. COXE et al.
• Court: United States State Supreme Court of North Carolina

167 S.E. 486

204 N.C. 58

MADISON COUNTY v. COXE et al.

No. 600.

Supreme Court of North Carolina

January 25, 1933

Appeal from Superior Court, Madison County; Sink, Judge.

Action by Madison County against Frank E. Coxe and others. From judgment for defendants, plaintiff appeals.

Affirmed.

The record discloses that "it is agreed by all parties, and the Court finds as a fact that Frank Coxe and Frank E. Coxe is one and the same person." "Middle names and middle initials are immaterial." State v Hester, 122 N.C. at page 1050, 29 S.E. 380, 381.

This is a suit brought in the superior court of Madison county September 8, 1930, by Madison County v. Frank Coxe and wife Mrs. Frank Coxe, C. R. Bishop and wife, Pauline Bishop, to foreclose a tax sale certificate for the delinquent taxes of the defendant Frank Coxe, for the year 1928, held by the county of Madison. The records of Madison county showed that Frank Coxe and wife, Julia Lord Coxe, had conveyed the land in controversy on October 1, 1929, to C. R. and Pauline Bishop on March 18, 1930. They reconveyed the land to Frank Coxe. There was no legal necessity to have made the Bishops party defendants.

The court below found the following facts and rendered judgment as follows:

"This cause coming on to be heard before his Honor, H. Hoyle Sink, judge holding the regular May, 1932, Term of the Superior Court of Madison County, on an appeal in the above cause from an order of the Clerk of the Superior Court, and being heard, and after hearing the evidence and argument of counsel, the court finds the following facts:

"1. That on or about the 8th day of September, 1930, the plaintiff Madison County instituted an action in the Superior Court of Madison County to foreclose a tax certificate in which complaint it is alleged that taxes on the property belonging to the defendant Frank Coxe on the 1st day of May, 1928, amounting to the sum of ninety-eight and 20/100 ($98.20) dollars had not been paid.

"That a copy of the said tax certificate is attached to the plaintiff's complaint in the above cause, and is made a part of this finding of fact.

"3. That summons was issued in the above cause against Frank E. Coxe and wife, Mrs. Frank E. Coxe, C. R. Bishop and wife, Pauline Bishop, on the 8th day of September, 1930, directed to the sheriff of Buncombe County, and received by said sheriff on the 8th day of September, 1930, upon which is the following return: 'Due search made and Frank E. Coxe and Mrs. Frank E. Coxe not found in Buncombe County, and C. R. Bishop and Pauline Bishop not found in Buncombe County. J. J. Bailey, Sheriff Buncombe County, by D. M. Snelson, Deputy Sheriff.'

"4. Upon the return of the summons aforesaid to the Clerk of the Superior Court of Madison County, an affidavit for an order of publication was made on the 15th day of September, 1930, by C.J. Wild, chairman of the Board of County Commissioners, which affidavit is made a part of this finding of fact, and upon which affidavit the said order of publication was made.

"5. That the defendants and petitioners, George M. Pritchard, trustee, and Sallie Potter Coxe, were residents of the city of Asheville, county of Buncombe, and State of North Carolina, at the time said action was commenced in the Superior Court of Madison County, and were not made parties to said proceeding.

"6. That on the -- day of March, 1932, Frank Coxe and wife, Julia Lord Coxe, George M. Pritchard, trustee, and Sallie Potter Coxe, filed a petition in the cause, before the Clerk of the Superior Court of Madison County, and moved to set aside the interlocutory decree and judgment of confirmation in the above cause and dismiss the action, which matter was duly heard before the clerk of the Superior Court, and petitioners' motion denied, and an appeal was duly taken to this court; that the petitioners herein had no notice of the institution of said action or the entering of said judgments and decrees and orders until some time during the latter part of November or the first of December, 1931.

"7. That on the 1st day of May, 1928, Frank Coxe was the owner of the property described in the complaint in this cause, and said property was not listed for taxes for the year 1928 by the said Frank Coxe, or by his agent duly authorized or with his knowledge, consent or procurement, or by the Board of County Commissioners, as prescribed by statute, the only listing of said property being as shown by a copy of said list sheet hereto attached and made a part of this finding of fact.

"8. That there was no order or minutes of the Board of Commissioners authorizing or directing the listing of this property for taxes for the year 1928, the only order appearing of record with respect to the listing of taxes for the year 1928 being as follows 'List of tax listers and assessors appointed by county commissioners for the various townships and wards of the county, Monday, April 2, 1928: J. Will Roberts, Supervisor. No. 1 Township, Ward 1, Wayne Fisher, Marshall, N. C., Route 3,' and then follows the names of tax listers appointed for the various townships in Madison County.

"9. That the property was duly listed by Frank Coxe through his duly appointed agent, W. B. Ramsey, for the year 1927, at which time the real property of Madison County was re-assessed for taxation by the commissioners appointed for that purpose.

"10. That the sale of said property under the interlocutory decree entered in the above cause was made by John A. Hendricks, commissioner, pursuant to the notices appearing in the record, on the 5th day of June, 1931, at twelve o'clock noon, at the courthouse door, and report of said sale duly filed by said commissioner on the 5th day of June, 1931, that S. B. Roberts and Roy L. Gudger became the last and highest bidders therefor in the sum of three hundred sixty-seven and 99/100 ($367.99) dollars. It further appears from the evidence in said cause asking for confirmation of said sale, and that the commissioners be directed to make and deliver a deed for same in which motion it appears that the bid was two hundred sixty and 44/100 ($260.44) dollars. The court finds as a fact that no further sale of said property was ordered by the court or further advertisement other than appears in the record. The court further finds as a fact that taxes for the years 1929 and 1930 were paid out of the funds received at said commissioners' sale in this proceeding, and after the payment of said taxes and the costs no surplus was left.

"11. That on and prior to the 1st day of May, 1928, Frank Coxe was the owner of two tracts of land in Madison County, described in a deed from Tony Ball and wife, Harriet S. Ball, to Frank Coxe, dated the 5th day of May, 1926, and recorded in the office of the Register of Deeds for Madison County, North Carolina, in Book 46, p. 546, and that at the time of the purchase of said property from Tony Ball aforesaid, Frank Coxe executed and delivered his certain promissory notes aggregating the sum of twelve thousand seventy-two ($12,072) dollars, and to secure the payment of the same, executed and delivered to George M. Pritchard, trustee, a deed of trust, which deed of trust is duly recorded in the office of the Register of Deeds for Madison County, North Carolina, in book 27, p. 17, and that Sallie Potter Coxe is now the owner, in due course and for a valuable consideration, of five of said notes in the sum of five hundred three ($503) dollars each, totalling the sum of twenty-five hundred fifteen ($2,515) dollars; that said notes are unpaid and are a valid and subsisting lien on the real property described therein.

"12. It is agreed by all parties and the court finds as a fact that Frank Coxe and Franke E. Coxe is one and the same person.

"13. The court further finds as a fact that the orders, judgments and decrees entered in the above cause are void and of no effect and that the sale of said property made by the commissioner and the deed made in pursuance of said sale, is invalid, void and of no effect, and that the title and rights of the defendants in and to said property is not foreclosed by said proceeding.

"14. The court finds as a fact that the property referred to in the pleadings is shown on the face of the tax records, other than the list sheet of Madison County in the same form as other property and except the listing, was regularly set up in and upon said record.

"15. The court finds as a fact that the attorney of record for Sallie Potter Coxe, at the hearing and in open court, offered to pay taxes to Madison County for the years 1928, 1929 and 1930, and which offer was not accepted by said county.

"16. The court finds, and it is agreed, that the land described in the pleadings was the only land owned by Frank Coxe in Madison County in 1928, and that the same consisted of two adjoining tracts.

"Upon the foregoing finding of facts it is ordered and adjudged by the court that the judgments and decrees entered in the above cause are invalid and void, and of no effect, and that the sale of said property by said commissioners is invalid and void, and the deed of said commissioners to the said S. B. Roberts and Roy L. Gudger is invalid and void and passes no title, to be canceled of record.

"It is further ordered by the court that the motion of petitioners filed in this cause be and the same is hereby granted, and the cause, and the same is hereby dismissed, and that the defendants recover their cost."

To the judgment as signed, and also to the finding of certain facts, the plaintiff excepted, assigned error, and appealed to the Supreme Court.

John A. Hendricks and John H. McElroy, both of Marshall, for appellant.

Ford, Coxe & Carter, of Asheville, for appellees.

CLARKSON J.

The...