Wolfenden v. Board of Com'rs of Beaufort County
| Decision Date | 09 March 1910 |
| Citation | 67 S.E. 319,152 N.C. 83 |
| Parties | WOLFENDEN v. BOARD OF COM'RS OF BEAUFORT COUNTY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Beaufort County; Ward, Judge.
Action by Fred Wolfenden against the Board of Commissioners of Beaufort County. From a judgment for defendant, plaintiff appeals. Reversed.
This was a civil action tried before Ward, J., at December term 1909, of the superior court of Beaufort county, upon appeal from the judgment of a justice of the peace of said county. The action was determined by his honor upon the following statement of agreed facts:
(1) That prior to the 1st day of June, 1907, the plaintiff was the owner of a certain tract of land lying in Beaufort county, N. C., and on the 11th day of December, 1906, the said plaintiff sold said tract of land to one N.C. Hughes Jr., in consideration of the sum of $25,000, and executed a deed to the said Hughes therefor. On the 14th day of December, 1906, the said N.C. Hughes, Jr., executed notes or bonds unto the plaintiff, under seal, aggregating the sum of $25,000, representing the purchase money for said land, and said notes were secured by mortgage upon said land, which said mortgage was duly registered in the register of deeds' office in Beaufort county.
(2) In the month of June, 1907, the plaintiff listed his taxes with a list taker, who had theretofore been duly appointed to receive the tax list for Chocowinity township, in which township plaintiff resided. That on said list the plaintiff returned the aforesaid notes or bonds of the said N.C Hughes, Jr., which was secured by mortgage upon the aforesaid tract of land, as being worth $25,000.
(3) The said list taker duly returned his list to the county commissioners of Beaufort county or the register of deeds and the same were placed with register of deeds of said county of Beaufort, in order that the tax list for the county of Beaufort for the year 1907 might be made up from said tax list. After the said tax list had been returned to the register of deeds of the county of Beaufort, and before the register of deeds had made up the tax books for the year 1907, the plaintiff, who was then a member of the board of county commissioners of Beaufort county, instructed the register of deeds of Beaufort county, who was the clerk of said board, and who made up the tax books for said county not to value said notes at $25,000, but to leave the matter open for the commissioners as to their value. The county commissioners at a regular meeting ordered that said notes be listed by plaintiff for the year 1907 at $12,500, and the register of deeds of said county, being clerk of said board, entered said notes upon the tax books of the said county of Beaufort for the year 1907, at the valuation of $12,500, being the valuation fixed by the board of county commissioners. On June 1, 1907, plaintiff was not indebted to any one.
(4) The plaintiff paid the taxes assessed against said notes for the year 1907, based on the valuation of $12,500, being the sum at which they were entered upon the tax books of the county of Beaufort, by the register of deeds, clerk of the board of county commissioners, under the instruction of the board of county commissioners, instead of at the sum of $25,000, for which the same had been listed with the list taker.
(5) On the 1st day of June, 1908, plaintiff was the owner of the said notes, given by the said N.C. Hughes, Jr., as aforesaid, and secured by mortgage, as aforesaid, but had borrowed the sum of $3,000 and had given the said notes as collateral security for said loan of $3,000. He owed no other debts on June 1, 1908.
(6) The plaintiff, during the month of June, 1908, listed the said notes for taxation with the list taker for Chocowinity township, who had been duly appointed to take the tax list for said township. In listing said notes for taxation, the plaintiff returned the same as being worth the sum of $11,000, and deducted from the said $11,000, the amount of his indebtedness on the said notes, to wit, the amount of $3,000, leaving a net balance of $8,000, as the amount upon which the plaintiff was to pay taxes for the year 1908 by reason of the ownership of the said notes of the face value of $25,000 subject to a lien of $3,000 for money borrowed.
(7) On the second Monday in July, 1908, the members of the board of county commissioners for the county of Beaufort met, according to law, as the board of equalization for the county of Beaufort, for the purpose of equalizing the tax valuation throughout the county of Beaufort.
(8) At the session of the said board of equalization the following resolution was passed: The plaintiff was a member of the board of commissioners of Beaufort county, and a member of the board of equalization when said resolutions were passed. No other action was taken in regard to said matter at said meeting.
(9) On the first Monday in March, 1909, plaintiff, after due advertisement, according to the terms of his said mortgage, sold the lands described in said mortgage, securing the notes, at public auction at the courthouse door in the county of Beaufort, at which sale S. R. Fowle became the last and highest bidder for said land in the sum of $22,500. The plaintiff, as mortgagee, duly executed to the said S. R. Fowle a deed for said land. S. R. Fowle is solvent, and was solvent at said time.
(10) At the time of the sale of said land, under the said mortgage or deed of trust, as aforesaid, the plaintiff had not then paid the taxes which were assessed against him for the year 1908.
(11) On the first Monday in March, 1909, the board of county commissioners of Beaufort county, without notice to the plaintiff, raised the valuation of said notes as listed by said Fred Wolfenden, of which he was the owner, on the first day of June, 1908, to the sum of $22,500, being the sum of $11,500 in excess in valuation which plaintiff had put upon said notes in the year 1908, in returning the same to the list taker, and $14,500 in excess of valuation placed on tax books.
(12) The plaintiff, by his attorney, appeared before the board of county commissioners of Beaufort county, at the March meeting in 1909, on the day after the valuation was raised, and protested against the action of the board of county commissioners, and upon the request of plaintiff, through his attorney, the board of county commissioners of Beaufort county continued the action on the matter of raising the taxes on the said tax list until the meeting of the said board of county commissioners could be held in April, 1909.
(13) At the meeting of the board of county commissioners of Beaufort county, and upon the request of plaintiff, the plaintiff and his attorney appeared before the said board, and after inquiry the said board of commissioners, over the plaintiff's protest, adopted the following resolution: "It appearing to the satisfaction of the board that Fred Wolfenden's solvent credits were listed for the year 1908 at $8,000, and it appearing upon further investigation that the actual value was $22,500, it is now, therefore, ordered, adjudged and decreed that he be charged for the difference, which is $14,500; amount of tax $116."
(14) On the 4th day of June, 1909, the plaintiff paid to George E. Ricks, sheriff of Beaufort county and tax collector, the sum of $116, being tax on $14,500, under protest in writing that the assessment of said tax was contrary to law. After the first Monday in March, 1909, and before the 4th day of June, 1909, plaintiff had paid to George E. Ricks, sheriff and tax collector of Beaufort county, the taxes which had been assessed against him on the said notes, which had been listed by him for the sum of $8,000, net, that is, $11,000, from which was deducted the $3,000 due and owing plaintiff, that is the plaintiff paid the taxes assessed on the said $8,000 as the value of said notes.
(15) On the 10th day of June, 1909, plaintiff demanded of J. F. Taylor, treasurer of Beaufort county, a return of said sum of $116. The said amount has not been returned, and defendant still refuses to return the same, except the sum of $24, being the taxes on $3,000, the amount of the indebtedness of plaintiff on June 1, 1908, and for which the said notes had been duly pledged as aforesaid, as collateral security. This sum of $24 defendant has offered to return and has tendered to the plaintiff, defendant admitting that said sum of $24 should not have been collected by the sheriff, by reason of the fact that plaintiff was entitled to have deducted from the actual value of said notes the amount of his indebtedness, to wit, $3,000. Plaintiff has refused to accept same. On the 4th day of May, 1909, plaintiff issued a summons against Geo. E. Ricks, sheriff of Beaufort county, and issued a suit against said Ricks, and said suit proceeded to judgment. A copy of the record in said cause is hereto attached and made a part of this case agreed and is marked "A."
(16) It is agreed that if the court is of the opinion that the commissioners of Beaufort county, at its meeting in March and April, had no power and authority to increase the value of said notes as listed, and are bound by the return made by plaintiff of his taxes to the list taker in June, 1908, and if the court is of the opinion that defendant cannot lawfully collect the tax, upon the differences in value of said notes, between the amount for which said notes were listed and the amount for which...
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