Guilford County v. Boyan

49 N.C. App. 430 | N.C. Ct. App. | 1980

WEBB, Judge.

The plaintiff City of High Point brings forward three assignments of error. It first contends the court erred by not ruling on its motion for summary judgment. We do not believe this assignment of error presents any question for review. The case was tried. This eliminated the need for a hearing on the motion for summary judgment.

The plaintiffs second assignment of error is to the judgment dismissing the action. An action to enforce a lien for an assessment is an action in rem. A personal judgment cannot be had against the landowner. Charlotte v. Kavanaugh, 221 N.C. 259, 20 S.E. 2d 97 (1942); Webster, Real Estate Law in North Carolina, § 372, p. 501 (1971). If any judgment may be had it must be against the property. The question posed by this assignment of error is whether the City of High Point may enforce a lien for an assessment against a lot when the City has previously brought an action to enforce a lien based on the identical assessment, the previous action has been terminated by the City’s taking a voluntary dismissal with prejudice and a third party has purchased the lot before the dismissal was amended to show it was without prejudice. We hold that the City may not enforce such a lien. Jimmy D. Ridge had a right to rely on the entry of a dismissal with prejudice at the time he purchased the property, and he may use this dismissal to support a plea of res judicata as to the enforcement of a lien against his property. Since an action to enforce a lien for an assessment is an in rem action, the court properly dismissed the action against the Boyan defendants who no longer had an interest in the property.

The plaintiff excepted and assigned error to the court’s finding that Jimmy D. Ridge was a bona fide purchaser for value. Clarence C. Boyan testified that he sold the property to Jimmy D. Ridge. This evidence supports a finding that Jimmy D. Ridge gave value for the property. The fact that the public record showed the previous action had been dismissed with prejudice supports the finding that Jimmy D. Ridge was a bona fide purchaser.

Plaintiff contends that Seattle v. Kelleher, 195 U.S. 351, 25 S. Ct. 44, 49 L.Ed. 232 (1904) is precedent for a holding that Jimmy D. Ridge cannot be a bona fide purchaser for value. In Kelleher there had been no action to enforce the assessment which was terminated with a final judgment. That distinguishes it from the case sub judice.

The plaintiffs last assignment of error is to the court’s failure to allow a reasonable attorney’s fee. G.S. 105-374(i) gives the court the power in its discretion to allow a reasonable attorney’s fee to be taxed as a part of the costs in actions to foreclose tax liens. In this action the costs were taxed against the plaintiff. We hold the court did not abuse its discretion by not allowing an attorney’s fee to be taxed as part of the costs.

Affirmed.

Judges Clark and Whichard concur.