Wilcox v. Leach

• Decision Date: 25 October 1898
• Citation: 31 S.E. 374,123 N.C. 74
• Parties: WILCOX . v. LEACH.
• Court: North Carolina Supreme Court

31 S.E. 374

123 N.C. 74

WILCOX .

v.LEACH.

Supreme Court of North Carolina.

Oct. 25, 1898.

Tax Sales—Rights of Purchasers—Assignees.

1. In an action to recover possession of land upon title based on a tax deed, although the grantee in the deed, where no attempt is made to rebut the presumption, is, under Laws 1895, c. 119, § 66, deemed conclusively to be the purchaser at the sale or his assignee, he may be shown to be the assignee of the purchaser, although the deed does not set forth the assignment.

2. Where a county purchased land at a tax sale, under Laws 1895, c. 119, § 90, it only acquired a right to foreclose the certificate of sale by proceedings similar to the foreclosure of a mortgage, and it acquired no fee-simple interest therein until the land was purchased by it at the foreclosure sale.

3. The assignee of a tax certificate of sale issued to a county acquired no greater interest therein than the county had, and could only acquire a fee-simple title by foreclosure of the certificate, as provided by Laws 1895, c. 119, § 90.

Appeal from superior court, Halifax county; Norwood, Judge.

Action by Willis W. Wilcox against M. T. Leach for the possession of land. From a judgment for plaintiff, defendant appeals. Reversed.

Thos. N. Hill and W. A. Dunn, for appellant.

R. O. Burton and E. L. Travis, for appellee.

MONTGOMERY, J. This case differs in one material respect from the other cases which have been before this court involving the title to land sold for taxes since the act of 1887 and those subsequent on that subject In his complaint the plaintiff simply makes the general allegation that he is the owner of the land, and entitled to its possession, without setting out specifically the sources of his title. The defendant, in his answer, sets up various defenses, legal and equitable, most, if not all, of which have been already frequently passed upon by this court adversely to the defendant, from Sanders v. Earp, 24 S. E. 8, to Peebles v. Taylor, 27 S. E. 999. The plaintiff in this action introduced the tax deed executed by the tax collector to the plaintiff, and also evidence going to show the alleged authority of the maker to execute it, and also evidence of the sale of the certificate, which the tax collector had issued to the county, to the plaintiff, by the county authorities. The defendant introduced evidence of a similar character. It is stated In the record that "the plaintiff in apt time objected to the admission of any evidence for the defendant, or the consideration of any defense set up by him, on the ground that he had not brought himself within the provisions of sec-tion 66, c. 119, Laws 1895, In that he failed to show that all taxes due upon the land in controversy have been paid by him or those under whom he claims. The plaintiff did not waive any of the presumptions and conclusions arising from his tax deed, under chapter 119, Id., and other laws of this state, but claimed and asserted them in apt time." The court, after refusing to give each and all of the special instructions prayed by the defendant, told the jury that, upon the evidence, the plaintiff was entitled to recover, and to respond "Yes" to the issue, "Is the plaintiff the owner of the land described in the complaint?" That instruction was given, doubtless, because of the opinion of his honor that the defendant had not put himself in position, under section 66, c. 119, Acts 1805, to defeat the title of the plaintiff. The defendant had made no effort to rebut the presumptions of the law set out in section 66 of the revenue act, and that section made...