Newton v. Chason

• Decision Date: 23 May 1945
• Docket Number: No. 599.,599.
• Citation: 225 N.C. 204,34 S.E.2d 70
• Parties: NEWTON et al. v. CHASON, Tax Collector.
• Court: North Carolina Supreme Court

34 S.E.2d 70

225 N.C. 204

NEWTON et al.

v.CHASON, Tax Collector.

No. 599.

Supreme Court of North Carolina.

May 23, 1945.

Appeal from Superior Court, Pender County; Henry L. Stevens, Jr., Judge.

Action by Daniel H. Newton and another against H. M. Chason, Tax Collector of Bladen County, for an order restraining defendant from selling plaintiffs' land. From an adverse judgment, plaintiffs appeal.

Affirmed.

The defendant, H. M. Chason, Tax Collector of Bladen County, had been ordered and directed by mandamus in the case of Ruth Smith by her General guardian, T. F. Wood, and R. F. McClammy v. Lyon Swamp Drainage and Levee District, to make sale of the plaintiffs' land in Bladen County, and had advertised such sale, and was served with a temporary restraining order in this action, enjoining the sale as advertised; and upon hearing upon the temporary order the same was continued till the final hearing; and when the matter came on for trial the defendant demurred ore tenus to the complaint, which demurrer was sustained and the action dismissed.

The complaint alleged that the plaintiffs are "the owners in fee simple and as tenants in common are in possession of those tracts of lands containing in the aggregate 386 acres, situated in Frenches Creek Township, Bladen County, North Carolina, and more particularly described in a deed from I. M. Newton and others to plaintiffs dated 6 April, 1939, and recorded on May 18, 1939, in Book 102, page 202, of the Registry of Bladen County, a part of said lands being shown as lots Nos. 1 and 23 on a map which is recorded in the Registry of Bladen County and purports to be a map of a supposed drainage district and known as Lyon Swamp Drainage and Levee District, said map having been recorded on August 11, 1942, in Map Book 4, page 11, of the Registry of Bladen County"; that the defendant, H. M. Chason, is the Tax Collector of Bladen County, and as such officer has advertised in the "Bladen County Journal" the sale for alleged nonpayment of drainage assessments, together with others, the said lands of the plaintiffs, being described as Lots 1 and 23; and that pursuant to said advertisement the defendant proposed to sell the said lands of the plaintiffs and thereby create, enforce and impose a lien upon said lands and to divest the plaintiffs of the title thereof or place a cloud upon said title; that the defendant is without authority to make a valid sale of said lands for the reason that the purported drainage assessments against the same "is defective on its face and is as a matter of fact and law invalid, illegal, irregular and void, and was unlawfully levied and assessed for an illegal and unauthorized purpose"; that the defendant tax collector should be restrained and enjoined from selling the aforedescribed lands of the plaintiffs as he proposes to do under the aforesaid notice, for that said sale, while it would be void, would place a cloud upon the title of the plaintiffs, and would place a lien upon the public records that would be vexatious and burdensome to the plaintiffs; and prays that an order permanently restraining and enjoining. the defendant tax collector from selling the aforesaid lands of the plaintiffs as he proposes to do under the aforesaid notice.

The defendant first filed answer to the complaint of the plaintiffs, and the case came on for hearing upon these pleading's, at the October Term, 1944, of Pender County, when and where the defendant demurred ore tenus to the complaint "on the grounds that the plaintiffs were not entitled to the equitable relief sought in this action and could not attack the validity of a final, valid and subsisting judgment of the Superior Court by the independent action"; and the Court sustained the demurrer and dismissed the action. To this ruling of the Court the plaintiff preserved ex-ception and appealed to the Supreme Court, assigning errors.

Moore & Corbett, of Burgaw, for plaintiffs, appellants.

Louis Goodman and Clayton C. Holmes, both of Wilmington, and W. E. Blake, of Burgaw, for defendant, appellee.

SCHENCK, Justice.

This appeal poses the single determinative question: Does the complaint state facts sufficient to constitute a cause of action? If the answer be in the negative the ruling and judgment of the trial judge was correct; while if the answer be in the affirmative the ruling and judgment of the trial judge was erroneous. We are constrained to hold that the answer is in the negative.

A demurrer admits only relevant facts well pleaded and relevant inferences of fact readily deducible therefrom, but does not admit the conclusions of law or inferences of law contained in the complaint. Whitehead v. Telephone Co, 190 N.C. 197, 129 S.E. 602, and cases there cited.

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