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."
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...
