Town of Zebulon v. Dawson

• Decision Date: 22 November 1939
• Docket Number: 450.
• Citation: 5 S.E.2d 535,216 N.C. 520
• Parties: TOWN OF ZEBULON v. DAWSON et al.
• Court: North Carolina Supreme Court

5 S.E.2d 535

216 N.C. 520

TOWN OF ZEBULON v. DAWSON et al.

No. 450.

Supreme Court of North Carolina

November 22, 1939

This is a civil action to foreclose a paving assessment lien on property now owned by the defendants.

The plaintiff having heretofore, to-wit, on or about March 1 1926, duly assessed two certain lots within its corporate limits their proportionate part of the costs of paving, now holds said lien upon which no payment has been made since April 30, 1928.It is admitted that there is now due thereon on the first tract, $311.57 with 6% interest from April 30 1928, and on the second tract, $338.35 with 6% interest from April 30, 1928.

The defendants purchased the said two tracts of land in March 1936, subject to said street paving assessments Thereafter, in March, 1938, the defendants purchased, for $600, a water bond of the plaintiff in the sum of $1,000 payable May 1, 1937.The bond issue of which this bond is a part has been refunded by the town, new bonds bearing 3% interest having been issued for the old bonds.The defendants in their answer plead this bond by way of set-off and counterclaim.

When the cause came on for hearing the parties waived trial by jury and agreed that the Judge Presiding should hear the evidence, find the facts and render judgment thereon.At the same time, the defendants admitted the legality of the assessments and the correctness of the amount claimed by the town.After hearing the evidence the Court found the facts, made certain conclusions of law, and adjudged and decreed:

"(1) That the defendantMrs. Emma R. Dawson is justly indebted to the plaintiffTown of Zebulon in the sum of $1001.83, together with interest thereon at the rate of 3% per annum from May 1, 1937, until paid, which indebtedness is hereby declared to be a lien on the property described in the complaint and described in this Judgment, but is in no wise a personal Judgment or a lien on any other property owned by said defendant.

"(2) That the defendantMrs. Emma R. Dawson is hereby ordered to deposit with the Clerk of the Superior Court of Wake County the new bond issued by the Town of Zebulon in lieu of the old bond herein described as collateral security to the paving assessment lien hereinabove described.That the Clerk of the Superior Court of Wake County, North Carolina, will hold said bond until said paving assessment lien is fully discharged, and will then deliver the same to the defendantMrs. Emma R. Dawson.

"(3) It is further ordered, adjudged and decreed that the paving assessment, to-wit, $1060.00, be divided into ten equal payments or installments, and that the defendantMrs. Emma R. Dawson be allowed to pay said assessment in ten equal annual installments of $105.00 each, together with interest at the rate of 3% per annum, payable annually; the first payment or installment to be made January 1, 1940, and the last payment on January 1, 1949.

"(4) It is further ordered and adjudged that the costs of this action be taxed equally against the plaintiff and the defendants."

The plaintiff excepted and appealed.

A. R. House and J. G. Mills, both of Raleigh, for plaintiff-appellant.

Thomas W. Ruffin, of Raleigh, for defendant-appellee.

BARNHILL Justice.

Equity supplements the law.Its office is to supply defects in the law where, by reason of its universality, it is deficient, to the end that rights may be protected and justice may be done as between litigants.

Its character as the complement merely of legal jurisdiction rests in the fact that it seeks to reach and do complete justice where courts of law, through the inflexibility of their rules and want of power to adapt their judgments to the special...