State Board of Educ. v. Remick
| Decision Date | 04 December 1912 |
| Citation | 76 S.E. 627,160 N.C. 562 |
| Parties | STATE BOARD OF EDUCATION v. REMICK. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pender County; Carter, Judge.
Action by the State Board of Education against R. C. Remick. From judgment for plaintiff, defendant appeals. Affirmed.
Rountree & Carr, of Wilmington, for appellant.
The Attorney General, for appellee.
On January 22, 1795, a grant was issued to Daniel Wheaton for 44,160 acres of land lying in New Hanover county, now Pender that is commonly known as "swamp lands." On December 18, 1799, William Nutt, sheriff of New Hanover executed a tax deed to Benjamin Williams, Governor, for the said property, and the title remained in the Governor and his successors until it was vested in the Literary Fund by Laws 1825, c. 1268, § 1, which transferred to said fund for the support of common schools, together with other property "all of the vacant and unappropriated swamp lands in the state"; and Revised Statutes 1837, c. 67, § 3, provides: "All the swamp lands in this state not heretofore duly entered and granted to individuals shall be vested in said corporation and successors in trust as a public fund for education and establishment of common schools." Laws 1842, c. 36, § 2, also provides: "All the swamp lands to which this state is now entitled, or to0 which this state shall afterwards become entitled under the provisions of this act, or otherwise, shall be and are hereby vested in the present directors of the Literary Fund of North Carolina and their successors in trust as a public fund for education and the establishment of common schools." On March 22, 1849, a grant was issued to Ezekiel Chadwick for 62 acres of land, lying within the boundaries of this 44,160-acre tract. But there is no evidence tending to show that he or those claiming under him were ever in possession, and it is admitted that they have not been.
On September 1, 1912, the State Board of Education agreed to sell to R. C. Remick, and he agreed to buy, the 62 acres at $3 per acre, "provided the State Board of Education could convey a good and indefeasible title in fee to said land, which sale was to be closed by September 10, 1912. Remick, the defendant, refused to pay the purchase price and accept the deed for said land on the ground that the State Board of Education did not have title to the property and cannot make him a good deed. The question involved in this proceeding is whether or not the State Board of Education has title to the 44,160 acres embraced in the grant to Daniel Wheaton, which are the same lands as are described in the deed from William Nutt, sheriff, to the Governor. On the "agreed state of facts" Judge Carter entered judgment for plaintiff, and the defendant appealed.
The first assignment of error is that the tax deed from William Nutt, sheriff, to Benjamin Williams, Governor, was invalid because the recitals in the deed, if true, are insufficient to justify the levy and sale of the land for taxes, and the said deed is therefore inoperative and void. The recitals in the deed are as follows: That no person listed the land for taxes or offered to pay the taxes. The land was advertised in the newspapers agreeable to law, and was sold pursuant to such advertisement. A fair offer was made to any person to pay the taxes, but no one offered to do so, and the same was struck off to the Governor and his successors in office. In these recitals every fact necessary as the basis for a proper and legal sale of the property is set out in the deed, and, if taken as true, there can be no doubt that they are sufficient. 37 Cyc. 1439, says: "The tax deed is required to show by distinct recitals that the land was in fact sold for the nonpayment of taxes, by what officer the sale was made, to whom it was made, and the manner of the sale, as that it was at public auction, to the highest bidder, or to the bidder who would take the least quantity of land, for the taxes, etc., at least so far as to show that no provision of the statute was violated in the conduct of the sale."
It is contended, however, that the plaintiff has not shown (and after the lapse of 113 years certainly will be unable to show) that the recitals in the deed are true, and hence that the deed is void, unless the truth of those recitals are proven, though no one has claimed the land or paid taxes on it for more than a century. Prior to chapter 137, § 74, Laws of 1887, now Revisal, § 2909, it was held in Land Co. v. Board of Education, 101 N.C. 39, 7 S.E. 573, that there must be evidence dehors the deed that the recitals in the sheriff's tax deed are true. It was also held in Fox v. Stafford, 90 N.C. 298, that the recitals in a tax deed were not evidence against the owners of property, or prima facie evidence that the law had been complied with, and the burden of proving these things was on the purchaser. The result of the above decisions was that up to 1889 no tax deed had ever been held valid on appeal to the Supreme Court, and the state was a heavy loser, besides the taxation, which should have been borne by tax defaulters, was thrown upon those who had already borne the burden of their own taxes. To remedy this evil a tax commission was appointed to examine into the provisions for the sale of land for taxes in other states, and on their report chapter 137, § 74, Laws of 1887 (now, with some modification, Revisal, § 2909), was adopted, which made certain recitals in a tax deed presumptive evidence and certain others conclusive evidence. The effect of that act was to change the burden of proof, and the power of the Legislature so to enact was sustained in Moore v. Byrd, 118 N.C. 688, 23 S.E. 968, and in many cases since, quoting that decision.
Indeed, it seems to be established beyond controversy that it is competent for the Legislature at any time to change the rules of evidence applicable to existing contracts, including deeds. Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204; Brannon, Fourteenth Amendment, 292. It has also been frequently held that the Legislature may make the recitals in a tax deed prima facie evidence of their truth. In addition to the decisions in our own court above referred to are Reitler v. Harris, 223 U.S. 437, 32 S.Ct. 248, 56 L.Ed. 497; 2 Wigmore Ev. § 1354 (3), pp. 1670, 1671. It is useless to cite further authorities for a principle so well sustained.
It is further objected, however, that said deed of William Nutt, sheriff, does not state that the land had become "liable to be sold for taxes." But it does recite that "the land was not given in by any person or persons whatever for the payment of taxes thereof," and this certainly made the land liable to taxation under the act of 1782. Iredells Statutes, p. 430, c. 7, § 6.
But it is further contended that...
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