98 S.E. 776 | N.C. | 1919
The plaintiffs alleged in their complaint that a deed under a tax sale of their land had been fraudulently obtained, and that the notice required by the law, before such a deed is executed, (263) was not given, and that plaintiff's only remedy was by foreclosure, and that the land was in the hands of a receiver, and was improperly listed in the name of the Southport Land Company, and by reason of the defects in the sale and deed a cloud has been put upon their title which they ask to be removed.
The defendants demurred to the complaint, assigning the following grounds of demurrer, which will be stated and considered in their proper order:
1. That plaintiffs had not paid the taxes due for the years 1914 and 1915, for which the land was sold. The plaintiffs alleged that they were willing and ready to pay the taxes and tendered them to the defendant entitled to receive them, and that he will not receive them. This, of course, is admitted by the demurrer, or rather to be considered as admitted, for the purpose of deciding the legal questions raised by it.Balfour Quarry Co. v. Am. Stone Co.,
2. That listing the land in the name of some one other than the true owner did not invalidate the sale of the land for the taxes, as alleged by the plaintiff. We have so held in several well-considered cases. Peebles v.Taylor,
It can make no difference, as to the validity of a tax sale, that the property was in the custody of a receiver, appointed by the court, while the taxes were due. Revisal of 1905, sec. 2879, provides fully for such a case, and section 2862 requires a receiver and other fiduciaries named therein to pay the taxes assessed against the trust property, and makes him liable personally to the sheriff, by an action against him, and in damages to the owner of the property, who suffers loss by his default, for the failure to pay the taxes out of the trust fund in his (265) hands. But we do not think this section deprived the owner of the right to protect his property, although held in trust by a receiver, by making a tender of the taxes to save it from a sale and the consequent loss of it by him. Such was not the intent and meaning of this section, which was to give an easy remedy to the sheriff against the trustee or receiver, which was cumulative to that against the owner, and it could not have been intended that the owner should be made to see his property sacrificed by the neglect of a receiver, and not be able to save it by paying the taxes, and such an injustice would be aggravated and more apparent when the received really had no funds with which to pay them, as may happen to be the case in some instances. It would be proper, at least, to make the receiver a party to this action, as he has an interest in it. The court by which he was appointed would, upon proper application, direct him to make himself a party, as the fund in his hand is involved, and will be lost in the event the sale eventually is held to be valid.
3. The plaintiff further alleges that the only remedy of the county and city was by foreclosure. This was so at one time, but the statute has been changed, and each case must be decided under the law existing at the time of the particular transaction. With reference to this question, the Chief Justice said, in Townsend v. Drainage Comrs.,
4. We have so far considered only those grounds of objection which, if sustained, would dismiss the action. In other words, they cover the entire case, and may finally dispose of it. But the next allegation of the plaintiff, as to the failure of the purchaser to give notice before the deed was made by the sheriff, which also was demurred to, embraces only a part of the cause of action, and if sustained will not dismiss it, as there is another ground left upon which the plaintiff may recover. When this is the case we do not review the overruling of the demurrer, but allow defendant to except and leave a decision upon the question to the final hearing. An appeal from the ruling is premature and fragmentary. We so held in Shelby v. R. R.,
It may well be said here, in illustration of the rule and as showing its practical working to be in favor of a reasonable expedition of trials and how it is preventive of unnecessary delay, that if we should consider the question as to notice, and sustain the demurrer, we would be compelled to remand the case for the trial of the issue as to the fraud, and a demurrer may yet be filed to that cause of action and appeal taken, multiplying costs and causing vexatious delay, when defendant will lose nothing by excepting and reserving the question raised by him until the final hearing. He may even then taken advantage of the alleged defect in plaintiff's case by a simple request for an instruction covering the point. If the jury, as remarked by the present Chief Justice in Shelby v. R. R., should answer the issue as to the fraud in favor of the plaintiff, the other question will never arise again. There will be no necessity for deciding it. Besides the delay, therefore, there will be a waste of labor and an idle consumption of time in passing upon a question which may become entirely immaterial. Not longer than the last *284
term of this Court it was said by Justice Brown in Yates v. Dixie Fire Ins.Co.,
It, therefore, becomes unnecessary to consider what effect the want of notice from the parties, or the sheriff, of the sale and the intention to make a deed to the purchaser will have upon the case. The jury may find that there was an unlawful combination or conspiracy to defraud the plaintiffs, or that the notice was given, which would render vain and useless any decision upon the question just stated. The case ofMatthews v. Fry,
We have carefully considered the case, and have been at much pains to state the contentions fully and to decide all questions within the compass of the appeal, as the whole matter and every detail of it came *285 under elaborate discussion in this Court, and the questions were ably argued by counsel.
As we have sustained some of the grounds of demurrer and overruled others, we direct, in the exercise of our discretion, that the costs of this Court be equally divided between the parties, one half thereof to be taxed against the plaintiffs and the other half against the defendants.
The judgment is modified as above indicated.
Modified.
Cited: Cement Co. v. Phillips,