Townsend v. Board of Drainage Com'rs of Back Swamp

• Decision Date: 14 November 1917
• Docket Number: 303.
• Parties: TOWNSEND ET AL. v. BOARD OF DRAINAGE COM'RS OF BACK SWAMP ET AL.
• Court: North Carolina Supreme Court

94 S.E. 104

174 N.C. 556

TOWNSEND ET AL. v. BOARD OF DRAINAGE COM'RS OF BACK SWAMP ET AL.

No. 303.

Supreme Court of North Carolina

November 14, 1917

Appeal from Superior Court, Robeson County; Connor, Judge.

Action by J. H. Townsend and B. W. Townsend against the Board of Drainage Commissioners of Back Swamp and Jacob Swamp Drainage District, Sheriff R. E. Lewis, and A. G. Calhoun. From the judgment R. C. Townsend appeals. Affirmed.

This action was begun by J. H. and B. W. Townsend as owners of 1,512 acres, being tract No. 71 in the drainage swamp, which land in February, 1916, was sold by the sheriff for default in payment of the annual installment of the assessment thereon of $1,392.18.

At said sale, A. G. Calhoun became the purchaser at the price of $11,000, which he duly paid to the sheriff. Calhoun agreed with the plaintiffs, prior to his payment of the purchase price for said lands, that if arrangements could be effected with the drainage district and the sheriff whereby Calhoun would be relieved of the payment of the purchase price, and that his agreement with the lumber company (who owned the timber thereon), that this purchase should not affect their rights, and that the timber should be protected against future assessments, if any, he would relinquish his claim as purchaser in favor of the plaintiffs. The drainage commissioners and the sheriff refused to concur in this arrangement, owing to the opposition of the bondholders, and thereupon this action was instituted and a temporary injunction issued, restraining the sheriff from executing to Calhoun his deed or certificate and from collecting and receiving from him the $11,000. At October term, 1916, of Robeson, the plaintiffs had an agreement with the drainage commissioners, whereby a nonsuit was taken, and the judge signed a judgment, directing the sheriff to collect the purchase price from Calhoun. It appearing that this judgment was taken without notice to Calhoun, at February term, 1917 the judgment was set aside as between the plaintiffs and Calhoun. At that time Calhoun had already paid the $11,000 and the sheriff had issued the deed or certificate to him and it was adjudged that the plaintiffs J. H. and B. W. Townsend had no further right to redeem, since they had been given the opportunity and had refused to do so. It was then suggested that the appellant R. C. Townsend claimed an interest in the land, which is lot No. 71 of the drainage district and notice issued to him to show cause at May term, 1917, why he should not be foreclosed if he failed to set up any claim in said land. At May term, 1917, judgment was rendered, Calhoun consenting, that the appellant R. C. Townsend should have 90 days from May 15, 1917 (the date of the hearing, and not the date of service of summons on him, which was prior thereto), in which he could redeem the land by paying the purchase price of $11,000 and interest allowed in such cases, together with whatever other taxes Calhoun had paid on the land in the meantime, and decreeing that, should said R. C. Townsend fail to redeem within said time, he should be foreclosed of any right to redeem, and the sheriff should execute a deed to Calhoun for said land. The court found further facts as follows:

"The court finds that said tax sale was in all respects regular, as set out in said tax certificate, and that the defendant A. G. Calhoun became the purchaser of the lands therein described, and that throughout the establishment of the said drainage district the land described in said certificate was owned and listed in the name of S. R. Townsend, who died after the establishment of said drainage district, and executed his last will and testament under which the defendant R. C. Townsend claims through the plaintiffs in this action by virtue of an unrecorded deed."

A written agreement between the parties is filed in this court that the deed from B. W. Townsend and J. H. Townsend, executors of S. R. Townsend, to D. W. Townsend for the lands in controversy was executed April 26, 1916, and duly registered the next day, and that the deed for the lands by D. W. Townsend to R. C. Townsend is dated August 16, 1916, and registered November 5, 1917, since the docketing of the appeal in this court. R. C. Townsend claims title to the land under the will of S. R. Townsend, which was executed and probated since the establishment of the drainage district and also under the deed from the executors of S. R. Townsend to D. W. Townsend and the conveyance by him as above set out. The court found that the tax sale by the sheriff was in all respects regular, and there is no exception to this finding, and no request appears in the record that the court should find other facts. From the judgment at May term, 1917, R. C. Townsend appealed.

T. A. McNeill, Jr., of Lumberton, and Sinclair, Dye & Ray, of Fayetteville, for appellant.

McLean, Varser & McLean, of Lumberton, for appellee Calhoun.

CLARK C.J.

From the above statement of facts found by the judge and the admissions it is clear that at the time of the tax sale in February, 1916, at which A. G. Calhoun bought, the lands in controversy were still a part of the estate of S. R. Townsend and subject to the assessments against said lands in favor of said drainage district under which it was sold at a sale in all respects regular as set out in the tax certificate and found by the judge.

At May term, 1917, Calhoun consented that the paper executed to him by the sheriff when he paid the purchase price should be treated as a tax certificate, and this concession by him eliminates all controversy as to whether it was a deed for the land or not. There is no controversy now before the court whether R. C. Townsend had notice, because the record shows that he was served with such notice and appeared at May term 1917, and was given 90 days after that hearing to pay for and redeem the lands; and it was decreed that, upon his failure to do this, Calhoun would be entitled to a deed from the sheriff which would operate as a complete conveyance of R. C. Townsend's interest. A. G. Calhoun bought at the sale in ...