Wilkes County v. Forester

• Decision Date: 08 February 1933
• Docket Number: 560.
• Citation: Wilkes County v. Forester, 204 N.C. 163, 167 S.E. 691 (N.C. 1933)
• Parties: WILKES COUNTY v. FORESTER et ux.
• Court: North Carolina Supreme Court

167 S.E. 691

204 N.C. 163

WILKES COUNTY v. FORESTER et ux.

No. 560.

Supreme Court of North Carolina

February 8, 1933

Appeal from Superior Court, Wilkes County; Walter E. Moore, Judge.

Action by Wilkes County against C. A. Forester and wife. From a judgment of nonsuit, the plaintiff appeals.

Affirmed.

This was a civil action instituted by plaintiff against defendants in the superior court of Wilkes county, under C. S. § 8037 and amendments, in which action the plaintiff is seeking to foreclose certain certificates of tax sales on the property described in the complaint for taxes for the years 1924 and 1925. The summons was issued May 16, 1930. One of the certificates of tax sale was for the tax for 1924, and dated November 20, 1928, but sold on November 5, 1928; and the other was for tax of 1925, and dated November 27, 1928, but sold November 8, 1928. The above is accurate, the further answer of defendant is incomplete, but the plea is sufficient.

The complaint, among other things, alleges that: "'3. The premises have not been redeemed from the sales mentioned and there is now due and owing plaintiff the sums mentioned in the preceding paragraph, which are a first lien on the premises, which sums or certificates of sale shall bear interest at the rate provided by law on the entire amount of taxes and sheriff's costs as prescribed by chapter 221 Public Laws of North Carolina, Session 1927, as amended by chapter 204, Public Laws of North Carolina, Session 1929, and as amended by Acts of General Assembly, Session 1931, c. 260 under the provisions of which this action is required to be brought against the defendants who have or claim to have an interest or estate in the premises.' Wherefore, plaintiff asks the Court to render judgment as follows: (a) Declaring a first lien on the premises for the amounts mentioned in the second paragraph above and interest claimed in the third paragraph hereof.

(b) Foreclosure of said liens on the premises and the appointment of a commissioner to make sale according to the usage and practice of the Courts and agreeable to the statute. (c) An order of publication as provided in chapter 221, Public Laws of North Carolina, Session 1927, as amended by chapter 204 Public Laws of North Carolina, Session 1929, and as amended by Acts of General Assembly, Session 1931. (d) For costs of action and for such other and further relief as plaintiff may be entitled to under the provisions of the above mentioned statute and amendments thereto and other applicable provisions of law."

The defendants, in their answer, say: "Answering allegations contained in paragraph 2, the defendants admit that the property was listed and assessed for taxes, but they deny the remainder of said paragraph and aver the truth to be, that the taxes described in said paragraph have been fully paid, and if said property was sold that the same was an illegal sale, as these defendants are informed, believe and allege, and that the taxes have been paid at the time of the sale and all other allegations in said paragraph are denied. That allegations contained in paragraph 3 of the complaint are not true and the same are denied. These defendants, further answering the complaint, and for further defense, say: That they are advised, informed and believe under the statute, section 8037, Consolidated Statutes, that the plaintiff was required to bring its action within 18 months from the date of the certificate of sale and that the certificate of sale as alleged in the complaint should have been issued on the day of the sale as the bidder was entitled to the certificate on the date of said sale and that the sale in this action was on the 5th day of November, 1928, and that the action was not instituted until the 16th day of May, 1930, and more than 18 months elapsed from the date of the sale before said action was instituted and that the plaintiff's action is barred by said statute, and that said statute of limitation is hereby pleaded as a bar to the plaintiff's right to recover in this action. Wherefore, these defendants, having fully answered the complaint of the plaintiff, pray that this action against them be dismissed; that any tax receipts or certificates which are now held by the county be cancelled of record and surrendered to these defendants; that these defendants recover their cost expended and for any other and further relief that they may be entitled to recover."

A. H. Casey, of North Wilkesboro, for appellant.

Trivette & Holshouser, of Boone, for appellees.

CLARKSON J.

At the close of plaintiff's evidence, the defendants made a motion in the court below for judgment as in case of nonsuit. C. S. 567. We see no error in the court below granting the nonsuit. This is an action brought to foreclose certificates of tax sales for the years 1924 and 1925 under C. S. § 8037, and amendments.

The statute of limitations having been pleaded by defendants, the burden was on plaintiff to show that its suit was brought within eighteen months from the time of the accrual of the cause of action, or otherwise it was not barred. This has been the prevailing rule with us as to the burden of proof, where the statute of limitation is properly pleaded. Marks v. McLeod, 203 N.C. at pages 258, 259, 165 S.E. 693.

Public Laws 1927, c. 221, at page 582, § 4. C. S. § 8028, as substituted, is as follows: "Remedy of holder of certificates of sale. Every county, person, firm or corporation, private or municipal, who has purchased any lands or interest in the same at any tax sale, as evidenced by sheriff's certificate of sale, or becomes a holder of any sheriff's certificate of sale referred to in section 8024, Consolidated Statutes, shall have the right of foreclosure of said certificate of sale by civil action and this shall constitute his sole right and only remedy to foreclose the same."

C. S. § 8037, as substituted (Public Laws 1927, c. 221, at page 584), is as follows: "Every county, or political subdivision of the State which is now, or may hereafter become, the holder by purchase at sheriff's sale of land for taxes of any certificate of sale, shall bring action to foreclose the same within eighteen months from the date of the certificate."

Public Laws 1929, c. 204, § 4, at page 261, is as follows: "Any certificate of sale in the hands of any person, corporation, firm, county or municipality on which an action to foreclose has not been brought, which according to the terms of chapter two hundred and twenty-one of the Public Laws of one thousand nine hundred and twenty-seven should have been brought, shall have until December first, one thousand nine hundred and twenty-nine to institute such action. This action and extension shall and does include all such certificates whether the same were issued for the sale of one thousand nine hundred and twenty-seven taxes and any and all certificates sold or issued prior thereto. This section does not in any way or manner repeal so much of said section eight thousand and thirty-seven in said chapter which provides that such action to foreclose shall be brought within eighteen months from the date of the certificate beginning with certificates purchased and issued during the year one thousand nine hundred and twenty-eight." See Public Laws 1929, c. 334.

Public Laws 1931, c. 260, § 3, is as follows: "That chapter two hundred and four of the Public Laws of one thousand nine hundred twenty-nine be and the same is hereby amended by striking out all of section four and inserting in lieu thereof the following: 'Section 4. Any person, corporation or firm, or the board of commissioners of any county or the governing body of any municipality holding a certificate of sale on which an action to foreclose has not been brought but according to the terms of chapter two hundred twenty-one of the Public Laws of one thousand nine hundred and twenty-seven as amended should have been brought, shall have until the first day of December, one thousand nine hundred thirty-one, to institute such action. This section and extension shall include all certificates executed for the sales prior to and including sales for the tax levy of the year one thousand nine hundred twenty-eight. The board of commissioners or the governing body of any county or municipality holding any certificate upon which action has been brought, but upon which final judgment of confirmation has not been rendered, may, by recorded resolution, cause such action to be held in abeyance until the first day of December, one thousand nine hundred thirty-one, and the court shall abide by such resolution: Provided, however, that where any action to foreclose has heretofore been instituted or brought for the collection of any tax certificate, prior to the ratification of this act, under the then existing laws, nothing herein shall prevent or prohibit the continuance and suing to completion any of said suit or suits under the laws existing at the time oil institution of said action." (Italics ours in all the foregoing statutes.)

The record, undisputed, discloses: (1) The certificates of tax sales now owned by plaintiff county were purchased by it on November 5, 1928, and on November 8, 1928. (2) The summons in this action was issued May 16, 1930, over eighteen months after the purchase of the certificates of tax sales.

1. The first question involved: Is plaintiff barred by the eighteen months' statute of limitations, which is properly pleaded, where it attempted to foreclose certain certificates of tax sales? We think so. It so elected.

There are two methods of tax foreclosures provided by the statutes. C. S. § 7987, is as follows: "The lien of the state county, and municipal taxes levied for any and all purposes in each year shall attach to all real estate...