Nesbit v. Kafer

• Decision Date: 30 September 1942
• Docket Number: 25.
• Citation: 21 S.E.2d 903,222 N.C. 48
• Parties: NESBIT v. KAFER et ux.
• Court: North Carolina Supreme Court

21 S.E.2d 903

222 N.C. 48

NESBIT v. KAFER et ux.

No. 25.

Supreme Court of North Carolina

September 30, 1942

[Copyrighted Material Omitted]

Civil action in nature of action to foreclose a mortgage, C.S. § 7990, for collection of drainage assessments for the years 1923 to 1940, both inclusive, on certain lands described in the complaint, designated as tract No. 139 shown on the map and within the boundary of Beaufort County Drainage District No. 10, under provisions of C.S. § 7990.

The case on appeal shows that by judgment of Superior Court of Beaufort County W. O. Nesbit was appointed Receiver of Little Swift Creek Drainage District, located partly in Beaufort County, and partly in Craven County, North Carolina, and authorized thereby, as well as by act of the General Assembly of North Carolina, Pub.Loc.Laws 1941, Chapter 315, to collect all Drainage assessments "owing by lands situate in either county".

By written stipulation plaintiff and defendants agreed upon the following facts for the trial of this cause only:

"1. Little Swift Creek Drainage District was duly organized and created in accordance with the laws of the State of North Carolina pertaining to Drainage District, and that all acts and things necessary to the creation of said District were done at the time of its creation, including the filing of an assessment roll, showing the assessments placed against each tract of land in said District for the payment of bonds issued by said District. Said assessment roll was filed in Beaufort County, the County in which said District was organized, and in Craven County in which a large part of the lands in said District are situated. Said assessment rolls provide for assessments against the lands in said District to be paid in twenty-four annual installments, the last assessment to be due September 1, 1946.

"2. That the original assessment roll, which was filed in Craven County, was removed therefrom during the year 1934, or prior thereto and since such time there has been no assessment roll on file in Craven County, North Carolina, showing that any lands located in said Drainage District were liable for assessment in said District and no other record in file in Craven County relating to said Drainage District except a map which shows the boundaries of the several tracts of land located in said District which lie in Craven County.

"3. That never since the organization of said Drainage District has the Clerk of the Superior Court of Beaufort County prepared annually during the month of August, or any other time, a form of tax bills or receipts, with appropriate stubs attached, covering all the lands in the district located in Craven County together with an order to the Sheriff or Tax collector in Craven County, to collect the same, as required by Section 5365 of the North Carolina Code.

"4. That Craven County foreclosed its tax lien against the lands described in the complaint in this cause for the non-payment of taxes due it and sold said land at public auction as required by law and, in the absence of other bidders, became the purchaser thereof. On August 15th, 1938, the defendant in this action purchased said land from Craven County. At the time he purchased the same he had his attorney to look up the title thereto and he and his attorney together went to the office of the Clerk of the Superior Court of Craven County to the office of the Sheriff of Craven County, and to the office of the Auditor and Tax Collector of Craven County and made diligent search to find out if there were any unpaid drainage assessments against the same and ascertained that there were no assessments against said land on file in Craven County."

Upon these facts, the court, being of "opinion that the assessments attempted to be levied by the Little Swift Creek Drainage District against the lands of the defendants described in the complaint do not constitute liens thereon", adjudged "that such assessments, being twenty-four (24) in number, the last assessment to be due September 1, 1942 (?), do not constitute liens against the lands of the defendants and that the plaintiff is not entitled to foreclose the same",--and dismissed the action. Plaintiff appeals therefrom to Supreme Court, and assigns error.

E. A. Daniel, of Washington, for appellant.

Carter & Carter, of Washington, for appellees.

WINBORNE Justice.

These questions are presented as decisive of this appeal:

1. Where in a proceeding instituted in Beaufort County a drainage district, comprising lands lying in both Beaufort and Craven Counties, is duly created and organized in accordance with the drainage act, subchapter III, chapter 94 of the Consolidated Statutes of 1919-1924, Sections 5312, et seq., as amended, and the assessment rolls showing the assessments placed against each tract of land in the district for payment of bonds issued by the district, have been made and filed in each county, are such assessments, as they become due, liens upon the land within the district to which same relate?

2. If so, where the assessment rolls which were filed in Craven County have been removed therefrom, and there is left in that county no other record relating to the drainage district except a map on which are shown the boundaries of the several tracts of land within the district, in Craven County, is such map sufficient in itself to put a subsequent purchaser of such land in Craven County on notice of the proceedings, including the assessment rolls filed in Beaufort County?

The drainage act read as a whole furnishes an affirmative answer to each question.

1. Section 5361 of the Consolidated Statutes provides that drainage "assessments shall constitute first and paramount lien, second only to state and county taxes, upon the lands assessed for the payment of the bonds and interest thereon as they become due, and shall be collected in the manner and by the same officers as the state and county taxes are collected", that the assessments shall become due and payable on the first Monday in September each year, and that "if the same shall not be paid in full by the thirty-first of December following, it shall be the duty of the sheriff or tax collector to sell the lands so delinquent". See Taylor v. Com'rs, 176 N.C. 217, 96 S.E. 1027; Pate v. Banks, 178 N.C. 139, 100 S.E. 251.

In the light of these provisions, it is proper to inquire as to when "assessments" come into existence. After prescribing in preceding sections of the statute procedural requirements for the establishment of drainage districts comprising lands in one or more counties, the preparation and filing of drainage maps "showing *** the boundary *** of the lands owned by each individual landowner within the district", the classification of the lands in the district, the calculation of the ratio of assessment of the different classes of land, the ascertainment of the cost of construction of the improvement to be undertaken, and the determination of the amount of bonds necessary to be issued and the issuance and sale thereof to defray the costs, it is provided in Section 5360 of Consolidated Statutes that "the board of drainage commissioners shall immediately prepare the assessment rolls or drainage tax list, giving thereon the names of the owners of land in the district and a brief description of the several tracts of land assessed and the amount of assessment against each tract of land ***" to provide funds each year sufficient to pay principal of and interest on bonds and certain other expenses,...