McMillan v. Hogan

• Decision Date: 10 December 1901
• Citation: 40 S.E. 63,129 N.C. 314
• Parties: McMILLAN v. HOGAN et al.
• Court: North Carolina Supreme Court

40 S.E. 63

129 N.C. 314

McMILLAN v. HOGAN et al.

Supreme Court of North Carolina

December 10, 1901

Appeal from superior court, Cumberland county; Moore, Judge.

Suit by R. McMillan against Sallie Hogan and others. Judgment for plaintiff, and defendants appeal. Affirmed.

As a condition precedent to contesting title to land purchased at a tax sale, the claimants must, as required by statute, pay the taxes due thereon.

Action to recover land sold by the sheriff for nonpayment of taxes and bought by the plaintiff. There was evidence offered by plaintiff, to support his sheriff's deed, tending to show substantial compliance with the terms of the revenue act. Defendants offered deed to their ancestor covering the land but did not tender to plaintiff the taxes or the money paid for tax certificate and deed by him. They contended that the land, having descended to them when minors, was not the subject of sale, and that plaintiff's action was premature, and moved to dismiss. Motion overruled, and defendants excepted. The court, on motion of plaintiff charged the jury that, if they believed the evidence, they would answer the first issue, "Is plaintiff the owner and entitled to possession of the land?" "Yes." The jury so responded, and judgment was rendered for the plaintiff, and defendants excepted and appealed.

Geo. M Rose, for appellants.

S. H. MacRae, for appellee.

CLARK J.

The land was bought by plaintiff at a sale thereof for taxes. The defendants have neither paid the taxes, nor tendered the plaintiff the money paid by him for the purchase money and the costs. The land was sold for taxes due by Dennis Hogan May 11, 1896. He died thereafter, on March 15, 1897, without having redeemed the land; and on May 17, 1897, the sheriff executed title to the plaintiff. The defendants are the widow and heirs at law of Dennis Hogan, and the sole defense relied on is an averment that the deed was void because, when made, said Dennis was dead, and his heirs at law minors. The state cannot exist without the collection of taxes, and, when any taxpayer or any property defaults in the payment of his or its fair share of contribution to the public burdens, it throws upon those who pay their pro rata the burden also of paying the taxes of those who default. The share due by defaulters can only be coerced by sale of their property. Buyers at such sale are a necessity, and, to encourage them, a new law was reported by a tax commission appointed by the legislature of 1885, and was adopted by force of public necessity in 1887. With slight modification, it has been in force ever since. What indulgence shall be extended to those who fail to discharge the dues levied on their property by the lawmaking power, and what steps shall be taken to enforce collection, are matters peculiarly within the province of the general assembly, and the courts can intervene only when the legislative provision conflicts with some clause of the constitution. The sale of decedent's land made in May, 1896, seems to have been in all respects regular. Such is the presumption raised by the statute, and no evidence has been adduced to the contrary. The defendants have not paid the taxes then due, which the law requires as a condition precedent to contesting the title carried by the deed executed to plaintiff by authority of the state. Moore v. Byrd, 118 N.C. 688, 23 S.E. 968. By virtue of the sale, and payment of the purchase money, the title passed to the plaintiff, subject to be defeated if the sum, with interest and costs, was reimbursed to the purchaser within one year. This was a grace given to the tax defaulter, and if it is not accepted, for any cause, at the end of the year of grace, the purchaser at the tax sale becomes entitled to an absolute deed. The general dislike to becoming purchasers of land at tax sales, and the insecurity of such purchases, notwithstanding the new statute, are already such that if, in addition, a purchaser should be subjected to losing both his money and his purchase when the tax defaulter shall die within the year, leaving minor children, the state would get few purchasers, and the enforced collection of taxes become well-nigh impossible. Still, the legislature could so enact, but...