20 S.E. 448 | N.C. | 1894
It is found as a fact by the court below, upon petition (243) for a writ of assistance and the answer thereto with exhibits, that the defendant Jasper Baker bought the tract of land in controversy on 5 December, 1894, when sold for taxes due for the year 1886 by Sugg, tax collector, acting under the Law of 1891, chapter 391, and that on failure of the owner of redeem, he took title for said land from said tax collector on 6 December, 1893, "entered and acquired possession under the same, and has lived thereon ever since." The question of the surrender of possession by the defendant Bryant Baker, of his eviction, is no longer an open one. It appears as a fact that there was a change of possession from Bryant to Jasper Baker. How it was effected we do not know, and therefore the fact that Bryant Baker has continued to live with the new occupant is not material, nor is it material what relation the two sustain to each other.
The controversy hinges upon the question whether the defendant Jasper is in privity with the original mortgagees of Bryant Baker, Dail Bros., or the assignee, the plaintiff Exum, or holds adversely to Exum.
The lien of the tax on the land, if it be a lien at all, as against a person without notice, is generally superior to the right of either mortgagor or mortgagee. Wooten v. Sugg,
A writ of assistance is only granted (as was said in effect by the Court in Knight v. Houghtalling,
It seems to be established by the weight of authority in the courts of this country, first, that the writ of assistance can be issued only against parties or persons in privity with parties who have been concluded by the decree, and yet refused, after notice, to let purchasers at a judicial sale under such decree into possession. Terrell v. Allison, 21 Wall, 291; Howardv. Bond,
It is perhaps sufficient to determine that the writ of assistance (245) was erroneously issued in this case against a stranger to the judgment heretofore rendered in the cause in which it is issued. But looking solely to the construction of the Act of 1891, under which the sale for tax was made, and its effect upon the right of the parties, we must note a marked discrepancy in the facts in this case and in that ofMoore v. Sugg,
The prayer for the writ of assistance should have been denied.
Error.
Cited: Powell v. Sikes,
(246)