This
was a civil action instituted in November, 1935, and which
came on for hearing before Williams, Judge, and a jury, at
the October Term, 1940, of the Civil Term of Superior Court
of Harnett County. After the jury was selected and impaneled
the Court of its own volition and without submitting issues
to the jury, rendered the judgment hereinafter set out, from
which judgment the defendants John J. Tew and Fannie G. Tew
and each of them, excepted, assigned errors and appealed to
the Supreme Court of North Carolina.
The
judgment of the Court below was as follows:
"This
cause coming on to be heard, and being heard, upon motion for
judgment on the pleadings before the undersigned Judge
holding the Court of the October Term for the trial of civil
cases in Harnett Superior Court, no evidence being submitted
by the defendant John J. Tew and wife; and the Court finding
that all parties defendant were duly served with summons and
copy of complaint by the Sheriff of Harnett County; and that
all parties in interest named as parties defendant herein are
properly before the Court, and that all defendants having
failed to answer except the County of Harnett and John J. Tew
and wife Fannie G. Tew, and that these answering defendants
offered no evidence, and that time for filing answer or
demurring on the part of the other parties defendant having
expired; and it further appearing to the Court and the Court
finding that defendants John J. Tew and wife Fannie G. Tew
are indebted to the plaintiff for taxes duly and properly
assessed and levied for the years sued on (1932) in the
amount of $15.93, together with costs, interests, and
penalties as alleged by law; and that the said defendants
John J. Tew and wife are also indebted to the County of
Harnett in the sum of $12.19 for taxes duly and properly
assessed and levied by it for the year as set out in the
answer filed herein, together with the costs, interest, and
penalties as allowed by law; and that the aforementioned
amounts of money due the Town of Dunn, Plaintiff, and the
County of Harnett, as above set forth, should be declared
specific liens against the lands described in the complaint
filed herein, and that the said lands should be condemned and
foreclosed to satisfy the said liens; and that the proceeds
of such sale should be applied in ratio in satisfaction of
the said specific liens, after paying costs and expenses of
sale to satisfaction of said liens, which said liens are
found to be superior liens of equal dignity and preferred to
all other liens on said lands:
"It
is, Therefore, Considered, Ordered, Adjudged and Decreed upon
motion of plaintiff's counsel that the Town of Dunn has a
specific lien for taxes duly and properly assessed and
levied, and as above recited, against the lands hereinafter
described of said defendants John J. Tew and wife in the sum
of $15.93, the said sum being the amount of said taxes
together with penalties thereon in the sum of $9.29, together
with interest at the rate of 6% per annum from October 9
1940, and the cost of this action; and that the County of
Harnett has a specific lien against the lands hereinafter
described in the sum of $12.19, said sum being the amount of
said taxes found to be due the County of Harnett with such
penalties due thereon in the sum of $--, with interest on
said taxes at the rate of six per cent per annum from October
9, 1940, until paid; and that the aforementioned sums be and
they are hereby declared first and prior liens of equal
dignity upon the lands and premises described in the
complaint filed herein, to-wit: (land described).
"And
it is Further Decreed that the said lands and premises be,
and the same are hereby condemned and Ordered sold for cash
at public auction at the Courthouse door of Harnett County on
the 25th day of November, 1940, after publishing notice of
said sale for once a week for four consecutive weeks in the
Dunn Dispatch, a newspaper published in Harnett County, and
by posting notice of said sale at the Court House door of
Harnett County, and otherwise as prescribed by law; and to
that end J. Shepard Bryan is appointed Commissioner of the
Court with full power to conduct said sale and upon
confirmation thereof by the court to execute and deliver deed
to the purchaser conveying title to the lands in fee simple
and thereupon all the rights, title, interest and estate of
the defendants in and to the said lands shall be forever
thereafter barred. That the plaintiff and other interested
parties hereto be, and they are hereby permitted to bid at
said sale. That the Commissioner herein appointed to make
said sale shall immediately file his report with the Court
and upon confirmation thereof, the receipt of the purchase
price, execution and delivery of the deed to the purchaser,
shall pay into Court the amount received by him to be
disbursed by the Court as follows: (a) to the payment of the
costs and expenses of sale including a reasonable allowance
to the Commissioner for his services in the matter (b) to the
discharge in ratio of the specific liens herein declared (c)
to subsequent lienholders according to priority (d) to those
legally entitled.
"And
this cause is retained for further order of the Court. This
the 10th day of October, 1940. Clawson L. Williams, Judge
Presiding."
The other material facts will be set forth
in the opinion.
J.
Shepard Bryan, of Dunn, for plaintiff.
J.
R. Young, of Dunn, for appealing defendants.
CLARKSON
Justice.
The
defendants' exceptions and assignments of error are as
follows: "1. For that the Court erred in signing the
judgment without submitting issues to the jury, the burden
being on the plaintiff to prove its case, and as appears in
the record over the objections of the defendants. 2. For that
the Court erred over the objection of the defendants in
signing judgment in favor of the plaintiff." These
exceptions and assignments of error cannot be sustained on
the record.
The
complaint alleges: (1) that plaintiff is a municipal
corporation and under the law has the power to levy and
collect taxes on real and personal property in the town and
assessments for street and sidewalk improvements. This is
admitted by defendants, but they allege it is inoperative as
to defendants' property.
(2)
That the appealing defendants, owners of the land in
controversy, listed them for the year 1932. This is admitted
in defendants' answer.
(3)
That the amount of tax assessed for the year 1932 by the Town
of Dunn was $15.93. This is admitted in defendants'
answer.
(4)
That default was made in the payment of the above taxes and
the land sold by the tax collector and purchased by
plaintiff. This is admitted in defendants' answer, but
defendants allege that the tax collector had no authority to
sell the land.
The
appealing defendants, for a further defense, allege that the
plaintiff, the Town of Dunn, is without legal authority to
levy against or collect any taxes whatsoever against the
property of these defendants, for the following reasons:
(1)
That the Act of the General Assembly of North Carolina
extending or attempting to extend the corporate limits of the...
