Miller v. McConnell
| Decision Date | 31 January 1946 |
| Docket Number | 737 |
| Citation | 36 S.E.2d 722,226 N.C. 28 |
| Parties | SILLER v. McCONNELL SAME v. McNEILL et ux. |
| Court | North Carolina Supreme Court |
Two civil actions to declare and to foreclose tax liens under G.S. s 105-414, formerly C.S. 7990, by virtue of authority granted under provisions of G.S. s 105-382 formerly Section 1710 of Chapter 310 of Public Laws 1939 consolidated for purpose of trial.
Allegations substantially these are admitted in the pleadings--which are offered in evidence.
1. During the period from December 1, 1930, to December 1, 1936 the plaintiff in these actions was, and acted as sheriff and tax collector of Ashe County, a body politic and corporate duly created, organized and existing under and by virtue of the laws of the State of North Carolina, with the usual powers prescribed by statute.
2. On April 1, 1931 and 1932, respectively, Mrs. Laura McConnell, defendant in the first action was the owner in fee simple and in possession of a certain parcel of land in the town of Jefferson, Jefferson Township, Ashe County, and popularly known as the Mountain Inn or Martin Hardin Hotel property, which in said years was lawfully listed by her and in her name, and assessed for taxation in said county, the taxes amounting to $86.94 for the year 1931, and $105.30 for 1932--a total of $192.24.
3. On April 1, 1931 to 1934, inclusive, W. E. McNeill and his wife, Astoria McNeill, 'or either of them', defendants in the second action were, and now are the owners in fee simple and possessed of four lots in the Town of Jefferson and 130 acres of land in Jefferson Township, listed in said years for taxation in Ashe County by W. E. McNeill, and of the municipal waterworks system for the Town of Jefferson, more specifically described by reference to title deeds to W. E. McNeill and wife, Astoria, of record in office of register of deeds of Ashe County, and which were lawfully assessed for taxation by the county of Ashe for each of the years 1931 to 1934, inclusive.
Plaintiff further alleges in the complaints in the two actions, respectively, and, on trial below, offered evidence tending to show: (1) That (a) the taxes so assessed by Ashe County to which the first action relates, to wit, the total sum of $192.24, became due and payable on the first Monday in October 1931 and 1932, respectively, the years for which same were levied and assessed, and (b) the taxes so assessed by Ashe County to which the second action relates, to wit, the total sum of $595.43, less $192.24, that is, $403.19 became due and payable on the first Monday in October of the years 1931 to 1934, inclusive,--the years for which same were levied and assessed. (2) That as to the taxes (a) to which the first action relates, W. E. McNeill, son in law of defendant therein, Mrs. Laura McConnell, executed and delivered to H. M. Miller, Tax Collector, on November 9, 1932, and November 7, 1933, his checks for the taxes sued upon therein, and in this manner undertook to pay said taxes for said defendant, and (b) to which the second action relates, W. E. McNeill executed and delivered to H. M. Miller, Tax Collector, checks aggregating $595.43 in payment of taxes to which same relates, including therein $192.24 in payment of taxes due by Laura McConnell, recovery of which is sought in the first action and not in the second action. Whereupon (as to both actions) the said H. M. Miller, Tax Collector, detached from the tax books the original tax receipts for said taxes and delivered them to W. E. McNeill, and duly presented said checks to the bank, on which they were drawn, for payment, and same were dishonored by the bank for lack of funds to pay same. (3) That plaintiff H. M. Miller, in his official tax settlements with the Board of Commissioners for Ashe County, was compelled to account for, and did account for and pay to said county the amount of taxes of defendants to which the respective actions relate as hereinabove set forth and specified.
Plaintiff further alleges (A) that the said taxes to which both actions relate, together with such penalty, interest and costs as are allowed by law, are now due and owing to plaintiff 'on the property above described' after demand, 'as will hereinafter more fully appear'; and that the lien of the taxes so levied, respectively, attached to the said real estate described in the respective actions, and continues until said taxes, with penalties, interest and costs, that shall have accrued thereon, shall be paid. (B) That plaintiff, as he is informed and alleges, by said payment, was subrogated to all the rights of the county of Ashe against the respective defendants for the collection of said taxes, and 'is expressly authorized' by statute (now G.S. s 105-382) to maintain these actions, respectively, for the collection of same, for which purpose these actions are instituted under and by virtue of old C.S. s 7990 (now G.S. s 105-414). And (C) that plaintiff requests that judgments and liens for the taxes whereof recovery is sought be declared to be inferior to the rights of purchasers for value, if any, and of any persons acquiring for value and in good faith, liens of record with respect to the properties, and without knowledge that the checks referred to in these foreclosure 'suits' had not been collected, or the taxes, for which same were given, not paid.
Defendants, in their respective answers, deny all of the said allegations of the plaintiff, and (1) by way of further answer: In the first action, defendant therein avers (a) that she has no knowledge or information as to the checks alleged to have been executed by W. E. McNeill, on the date stated, in payment of taxes for the years designated, but if same were executed, they were not signed by her, and she had no knowledge that they were unpaid; and (b) that she has sold her property in the Town of Jefferson, known as the Mountain Inn or Martin Hardin Hotel property listed in her name for taxation in 1931 and 1932, and did not own same at the time this action was instituted and now has no interest in same; and (2) by way of further answer in the second action, the defendants therein aver that on November 9, 1932, and November 7, 1933, defendant W. E. McNeill executed and delivered to plaintiff his checks for the taxes sued on therein,--whereupon plaintiff detached the original tax receipts for the taxes represented by said checks and delivered them to him, and that at the time he executed said checks he told plaintiff that he did not have sufficient funds in the bank to pay them.
And, defendants in their respective answers, aver and plead in bar of plaintiff's right to recover in each action the eighteen months, the twenty four months and the thirty six months statutes of limitation.
And upon the trial below plaintiff offered evidence tending to show these facts: That W. E. McNeill, who is son in law of Mrs. Laura McConnell, gave plaintiff some checks for taxes of himself and Mrs. McConnell for years 1931 to 1933, one dated 12-22-33 for $110, one dated 11-9-33 for $179.79 and another dated November 7, 1933, for $304.94, a total of $595.43, each signed by W. E. McNeill, and the deputy surrendered the tax receipts to him; that plaintiff took checks to the bank several times and there were no funds and the checks have not been paid; that when plaintiff settled with the county of Ashe, he accounted for those tax receipts; that when the checks were returned unpaid, plaintiff marked 'Not paid' upon the duplicate receipts in the original tax book with respect to taxes of defendants for the years; and that plaintiff did not bring any civil action against Mrs. McConnell until the first action here was instituted February 5, 1942.
And the parties in the second action entered into a stipulation, in pertinent part, that the taxes on the real estate therein on which plaintiff seeks to obtain a lien amounts to $403.19; that the real estate has not been advertised and sold for said taxes; that plaintiff is not the owner of any certificate of tax sale, or the holder of any deed under any tax sale; that the checks, covering said taxes, executed by defendant to plaintiff were dated December 22, 1933, November 9, 1932, and November 7, 1933; and that plaintiff failed and neglected to take any action to collect said taxes until the institution of this, second action here, on February 5, 1942.
Defendants on the other hand, offered evidence tending to show that plaintiff had failed to make proper entry of non-payment upon tax books when checks were not paid. And defendant McConnell offered in evidence deed dated September 3, 1938 and...
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