Town of Asheboro v. Morris
| Decision Date | 03 November 1937 |
| Docket Number | 398. |
| Citation | 193 S.E. 424,212 N.C. 331 |
| Parties | TOWN OF ASHEBORO v. MORRIS et al. MORRIS v. TOWN OF ASHEBORO et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Randolph County; J. A. Rousseau, Judge.
Action to foreclose lien of a street assessment by the Town of Asheboro against Clifford Morris and others, wherein R. G Morris, Jr., intervened, and instituted action to enjoin the sale. Restraining order was entered and the two cases were consolidated and heard together. From a judgment for plaintiff, the Town of Asheboro, defendant R. G. Morris, Jr. excepted and appealed.
No error.
This is an action originally instituted by the Town of Asheboro against Clifford Morris et al. May 31, 1932, to foreclose the lien of a street assessment. The street assessment was confirmed on August 31, 1925, and was payable in ten equal annual installments, the first of which matured October 1 1926. No part of the original assessment has been paid. E. G Morris, Jr., intervened as the then owner of the equity in said property and entered a plea of the statute of limitations as set out in the opinion.
The original defendants filed no answer.
An interlocutory order of sale having been made prior to the time E. G. Morris, Jr., intervened, this defendant instituted an action to enjoin the sale. The two cases were consolidated and heard at the July term, 1937, Randolph county superior court. The court submitted one issue as follows: "Is the plaintiff's cause of action for the foreclosure of its street and sidewalk assessment lien against the property described in the complaint, barred by the Ten-Year Statute of Limitations?" Under the instructions of the court the jury answered the issue "No." Judgment was rendered thereon dissolving the restraining order and directing the sale of the property to satisfy the lien. The defendant E. G. Morris, Jr., excepted and appealed.
J. A. Spence and J. G. Prevette, both of Asheboro, for appellant.
L. T. Hammond and H. M. Robins, both of Asheboro, for appellee.
No evidence offered at the trial is included in the record. It does not appear whether the cause was submitted to the jury upon evidence offered or upon the admissions contained in the pleadings. It therefore does not appear just why the quoted issue was submitted to the jury. There is no plea of the ten-year statute of limitations made by the defendant. Be that as it may, the record presents questions of law which are determinative of the rights of the parties hereto. The case might well be considered as one in which judgment was rendered upon the pleadings, which is apparently the ultimate effect of the proceedings below.
The defendant makes two contentions, to wit: (1) "That more than three years have elapsed from the time of the coming due of said street assessments to the beginning of this action, and also to the sale of said land for assessments, and the same is pleaded in bar of plaintiff's recovery"; and (2) "that more than eighteen months elapsed from the date of certificate of sale of the property described in the complaint to the beginning of this action, and the same is pleaded in bar of plaintiff's recovery."
1. The plaintiff was not required to institute its action within three years after the maturity of the street assessment installments. C. S.§ 441, subd. 10, relates to individuals and not to the sovereign power. C. S. § 7987 provides that the lien on realty for taxes levied "shall continue...
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