Pate v. Banks

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK, C.J.
• Citation: Pate v. Banks, 178 N. C. 139, 100 S. E. 251 (N.C. 1919)
• Decision Date: 01 October 1919
• Docket Number: 223.
• Parties: PATE v. BANKS.

100 S.E. 251

178 N.C. 139

PATE v. BANKS.

No. 223.

Supreme Court of North Carolina

October 1, 1919

Appeal from Superior Court, Lenoir County; Guion, Judge.

Action by George B. Pate against Florence K. Banks. From judgment dissolving a restraining order, plaintiff appeals. Affirmed.

Drainage assessments against land in the district sold by a nonresident, both seller and buyer being fixed with legal notice by the statutory proceedings for the formation of the district, held "public charges" on or against the land, and not "incumbrances," as contemplated by the seller's covenant against incumbrances.

The Moseley Creek drainage district, which lies partly in Craven and partly in Lenoir, was established under chapter 442, Laws 1909, amended by chapter 67, Laws 1911, by proceedings taken out in Craven, but embraced certain lands in Lenoir, among which is part of the tract conveyed by the defendant to the plaintiff August 30, 1913, with covenants of warranty against "incumbrances." The regularity of the drainage proceedings as to this land has been upheld in Banks v Lane, 170 N.C. 14, 86 S.E. 713, which was affirmed on rehearing, 171 N.C. 505, 88 S.E. 754, and certain other questions connected with it were passed upon in Taylor v Com'rs, 176 N.C. 217, 96 S.E. 1027. The drainage district and the amount of the assessments were confirmed on April 17, 1911. These assessments became due and collectible in 10 annual installments, the first of these maturing in 1914, about one year after the conveyance to the plaintiff by the defendant.

The plaintiff executed to the defendant a mortgage for $4,000 to secure the balance of purchase money. After the opinion in Taylor v. Com'rs, supra, was rendered, the defendant demanded payment of $2,300, balance due on purchase money and began advertisement of foreclosure under the mortgage. This action was instituted to restrain such foreclosure. Upon the hearing, the court dissolved the restraining order holding that on August 30, 1913, no part of said assessments were incumbrances in the scope of the warranty in the deed. The plaintiff appealed.

Rouse & Rouse and Y. T. Ormond, all of Kinston, for appellant.

Dawson, Manning & Wallace, of Kinston, for appellee.

CLARK C.J.

The only question presented is "whether the drainage assessments against the land which was conveyed to the plaintiff by the defendant on August 30, 1913, none of which were due and payable at the time of the conveyance, constitute an incumbrance against said land on that date which was contemplated by the covenant against incumbrances."

In Taylor v. Com'rs, 176 N.C. 224, 96 S.E. 1030, the court, while holding that the point was not absolutely necessary to a decision of that case, said:

"But as the case is before us, we think it proper to say that the view of the clerk is correct that the land is liable to the drainage assessments, just as it is liable for other taxes as they fall due from time to time. As owner of the land, he does not have to consent to the assessment of either the drainage tax or county or state taxation. The drainage tax becomes a lien, just as the benefits accrue, i. e., annually. The decree in the drainage district is not a personal liability of Mrs. Banks, nor is it a personal liability of George B. Pate. It is a lien in rem, accruing annually and resting upon the land into whosoever hands it may be at that time. Pate, as purchaser, entered into possession of the land nearly 2 1/2 years after the final decree establishing the drainage district, .and necessarily with physical knowledge of the drainage district. While such lien was decreed by the final judgment April 17, 1911, the assessments were not liens then, but only became such as they subsequently accrued, respectively. They were not actual liens and collectible till each fell due, in turn, in the years 1914 to 1921, and therefore not incumbrances within the meaning of the warranty clause of the deed, any more than taxes falling due in each future year. We do not see that Mrs. Banks has any cause to restrain the collection of the assessment for drainage, upon the allegation that she would be liable on her warranty. The future benefits are adjudged to be more than 'the charge."' Neither the plaintiff nor the defendant, it appears, had actual notice of the drainage district at the time of the conveyance, and the defendant was then a resident of South Carolina. But they were fixed with legal notice by the proceedings which were conducted in the manner, and with the publication of notices, prescribed by statute, and we so held. Banks v. Lane, 170 N.C. 14, 86 S.E. 713, affirmed on rehearing, 171 N.C. 505, 88 S.E. 754, and in Taylor v. Com'rs, 176 N.C. 217, 96 S.E. 1027. The system of drainage districts was created by the Legislature as a matter of public policy, and, the notices required being a sufficient compliance with constitutional requirements, as we have repeatedly held in numerous cases, the fact that a vendor happens to be a nonresident, or the vendee fails to go upon the land for

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