Sutton v. Dunn

• Decision Date: 09 October 1918
• Docket Number: 227.
• Citation: 96 S.E. 947,176 N.C. 202
• Parties: SUTTON v. DUNN.
• Court: North Carolina Supreme Court

96 S.E. 947

176 N.C. 202

SUTTON v. DUNN.

No. 227.

Supreme Court of North Carolina

October 9, 1918

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

Action by Jake Sutton against Charles F. Dunn. Judgment for plaintiff, and defendant appeals. Affirmed.

Evidence in action to cancel tax deed as obtained by fraud and misrepresentations to prevent redemption before time had expired held sufficient to justify submission of question of fraud to jury.

This is an action to cancel a tax deed upon the ground that the defendant obtained it by fraud and misrepresentations. The evidence tended to prove that the plaintiff owned a lot of land in the city of Kinston on which is situated a dwelling house in which the plaintiff has been residing for about 12 years. The value of the property is about $1,000. In January February, March, April, and May of the year 1915, the plaintiff was sick with pneumonia, and was confined to his home practically all of the months mentioned. At the regular sale by the city of Kinston of real estate for the nonpayment of taxes for the year 1914 on the 4th day of May, 1915, the locus in quo was sold by the city tax collector, and was purchased by one J. G. Banton, to whom a certificate was issued, and then transferred to the defendant herein. The property was sold for $12.10, which was sufficient to cover the taxes due the city.

As soon as the plaintiff sufficiently regained strength from his sickness, he went to the defendant to repay the taxes and redeem the certificate, issued to said Banton and then held by the defendant, and paid the defendant $4 upon said taxes. This was prior to the first Monday in May, 1916. Thereafter the plaintiff was again confined to his home by reason of continued illness, and on the first Monday in May, 1916 which was the first day when a tax deed was obtainable under the sale for taxes for the year 1914, the defendant obtained the tax deed mentioned. The notice served upon the plaintiff in order to obtain the tax deed was served prior to the day in April on which the plaintiff went to the defendant and paid $4 on his taxes, and the defendant then assured the plaintiff that the matter was all right, and that he would see that no harm came to him by reason of the existing condition.

Thereafter the defendant obtained the deed mentioned, dated May 4, 1916 and as the plaintiff would continue to make payments to him upon the taxes as shown by the plaintiff's evidence, the defendant would issue receipts for each payment, and marked thereon "Rents" in lieu of taxes, though the first receipt had been issued for taxes. For some months the plaintiff continued to make payments, which were each time received by the defendant with assurances to the plaintiff that the matter was all right for him, and he need have no fears, as he would carefully protect him. When the first payment of $4 was made and a receipt for taxes issued, the plaintiff's evidence tends to show that there was an agreement then made between the plaintiff and the defendant that the plaintiff would make payments in this way and that they would be accepted in the redemption of the tax certificate, all of which was prior to the execution of the deed, and that, notwithstanding the deed was later obtained without further knowledge of the plaintiff, and he continued to make payments as he thought upon his taxes, he was defrauded by...