177 N.C. 261 | 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 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., 151 N. C., 345; Brewer v. Wynne, 154 N. C., 467; Kendall v. Highway Commission, 165 N. C., 600. The defendant cannot be forced to accept payment of the taxes, and his refusal is a waiver of further tender, and dispenses with the necessity of it. Beck v. Meroney, 135 N. C., 532 (a tax sale case). This is also the usual rule as to a tender. Abrams v. Suttles, 44 N. C., 99; Bateman v. Hopkins, 157 N. C., 470; Gallimore v. Grubbs, 156 N. C., 575; Blalock v. Clark, 133 N. C., 306, and Gaylord v. McCoy, 161 N. C., 685, where this Court said: It is a general rule that when the tender of performance of an act is necessary to the establishment of any right against another party, this tender or offer to perform is waived or becomes unnecessary when it is reasonably certain that the offer will be refused— that payment or performance will not be accepted. And,this was also held in Mobley v. Fossett, 20 N. C., 93 (bot, p. 94); Martin v. Bank, 131 N. C., 121; Terrell v. Walker, 65 N. C., 91. In Mobley v. Fossett, supra, it was held that when a party is bound by his agreement to make a tender of an article at a particular place, and the other party apprises him that he will not receive the article at all, it dispenses with the necessity of making the tender, citing 2 Starkie on Evidence, p. 778. But while this is so, if the plaintiff finally prevails in this action, the court will require, as a condition of entering a judgment upon the verdict, that plaintiffs pay into the court the amount of the taxes for the use of the party entitled thereto, or to him directly, with any other amount due by way of penalty or interest. Brunswick County and the City of Southport, it is presumed, already have received their taxes, and the defendant Philip Allen may have paid them, so that no other payment is now necessary, but inquiry will be made as to this matter and the facts found, so that the proper judgment may be rendered and the amount of
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, 118 N. C., 165; Moore v. Byrd, supra; Eames v. Armstrong, 146 N. C., 1, and in the recent case of Stone v. Phillips, 176 N. C., 457, in which attention is called to Revisal of 1905, sec. 2894, which reads as follows: “That no sale of real estate shall be void because such real estate was charged in the name of any other than the rightful owner if such real estate be in other respects sufficiently described. But no sale of real property so listed in the name of the wrong person shall be held- valid when the rightful one has listed the same and paid the taxes thereon.” Stone v. Phillips, supra, cites Taylor v. Hunt, 118 N. C., 168, as approving the principle embodied in the statute, and distinguishes Rexford v. Phillips, 159 N. C., 213, in which case it appeared that there had not been any listing of the property as the law required, but the placing on the books of an indefinitely described part of a large body of land by a person having no semblance of authority, in law or in fact, for doing so. To have permitted such a false and unauthorized listing and description to bind and conclude the owner would have been a plain act of injustice, which is not warranted by any reasonable construction of the statute, and is directly contrary to its expressly declared purpose. The Stone case holds, in a well-considered opinion by Justice Iloke, that the listing of property in the name of a person other than the true owner will not invalidate a sale of it for the taxes, which is otherwise free from fatal defects, and this opinion we again approve. Counsel who argued the present case before us (Mr. Robert Ruark) correctly understood and stated in his argument and in his brief the palpable distinction between Rexford v. Phillips, 159 N. C., 213, and the cases holding that the mere listing in the wrong name, when the property is sufficiently described, will not invalidate a sale for taxes.
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,
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., 174 N. C., 556, 559: “The appellant contends that Revisal, 2912, requires the purchaser at a tax sale to bring an action to foreclose upon his tax certificate, and that this is his only remedy. In this he is in error, for section 2912 gives this as an additional remedy, and uses the following language: ‘The holder of a deed for real estate sold for taxes shall be entitled to the remedy provided in this section (2912) if he elect to proceed thereunder/ or he may proceed to acquire a deed from the sheriff as otherwise pointed out in sections 2899 to 2907 of the Revisal. Every individual purchaser has two remedies, one to proceed under the statute to require a deed, and the other to foreclose by action in court under section 2912. Formerly if the county was purchaser it had only the right to foreclose (Wilcox v. Leach, 123 N. C., 74), but this was changed by Laws' 1901, ch. 558, sec. 18 (now Pell’s Revisal, 2905), which xorovides that the sheriff can execute a deed upon the demand of the county commissioners or the governing board of a municipal corporation in the same manner as in cases where individuals have purchased.” And Justice Hoke said in Lumber Co. v. Lumber Co., 169 N. C., 80: “It may be well to note that, under the present law (Revisal, sec. 2905), a county purchasing land for taxes may take a deed therefor without resorting to foreclosure (McNair v. Boyd, 163 N. C., 478), and this case holds, too, that it is only when the owner has been in possession that
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., 147 N. C., 537, which was approved in Chambers v. R. R., 172 N. C., 555, citing numerous decisions of this. Court in support of the rule. There is a full discussion of the point in the latter case, but it may be well to quote the language of the present Chief Justice in Shelby v. R. R., supra, where it is said, at p. 537 r “The defendant pleaded in its answer two separate and distinct defenses. The plaintiff demurred to one of them, as he had a right to do. Re-visal, see. 435. The demurrer was overruled, and the plaintiff appealed.. This is obnoxious to the rule forbidding fragmentary appeals. An appeal from a ruling upon one of several issues will be dismissed. Hines v. Hines, 84 N. C., 122; Arrington v. Arrington, 91 N. C., 301. The-plaintiff should have noted his exception, and the judge should have-proceeded with the trial upon both issues. If both issues, or only the-issue as to this defense, were found with the plaintiff, he would not need to review the order overruling the demurrer as to this; but should he desire to do so, the overruling the demurrer as to this issue can be as-well reviewed on appeal from the final judgment. It is true that the plaintiff will have to try this issue, but, aside from the presumption that the judge ruled rightly, it is better practice that the issue raised by the second defense should be tried, even unnecessarily, than that an action should thus be cut in two and hung up in the courts till it is-determined, after much delay, on appeal, whether two issues or one should be tried. It is better to try both, and, after final verdict and judgment, pass upon the validity of the defense demurred to, if the result is such as to make the plaintiff still desirous to review it, which he will not be if he gain’ the case, nor if he lose on the other issue, without ground of exception thereto.” And again, at page 558: “Hence fragmentary appeals like this, and premature appeals and appeals from interlocutory judgments, usually are not tolerated. It can prejudice neither party to have the issue as to' the second defense found by the jury (plaintiff’s exception being noted) at the same time the issue as
It may well be said bere, in illustration of tbe rule and as showing its practical working to be in favor of a reasonable expedition of trials and bow it is preventive of unnecessary delay, that if we should consider tbe question as to notice, and sustain tbe demurrer, we would be compelled to remand tbe case for tbe trial of tbe issue as to tbe 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 tbe question raised by him until tbe final bearing. He may even then take advantage of tbe alleged defect in plaintiff’s case by a simple request for an instruction covering tbe point. If tbe jury, as remarked by tbe present Chief Justice in Shelby v. B. B., should answer tbe issue as to tbe fraud in favor of tbe plaintiff, tbe other' question will never arise again. There will be no necessity for deciding it. Besides tbe delay, therefore, there will be a waste of .labor and an idle consumption of time in passing upon a question wbicb may become entirely immaterial. Not longer than tbe last term of this Court it was said by Justice Brown in Yates v. Dixie Fire Ins. Co., 176 N. C., 401: “We suggest to tbe judges of tbe Superior Court that fragmentary and premature appeals be not permitted. It is best that all tbe issues be determined and a final judgment rendered before a case is brought to this Court.”
It, therefore, becomes unnecessary to consider what effect tbe want of notice from tbe parties, or tbe sheriff, of tbe sale and tbe intention to make a deed to tbe purchaser will have upon tbe case. Tbe jury may find that there was an unlawful combination or conspiracy to defraud tbe plaintiffs, or that tbe notice was given, wbicb would render vain and useless any decision upon tbe question just stated. The case of Matthews v. Fry, 141 N. C., 582, wbicb was referred to by counsel on both sides, was decided under tbe Public Laws of 1897, cb. 169, and it has since been approved in several cases. S. c., 143 N. C., 384; Eames v. Armstrong, 146 N. C., 6; Warren v. Williford, 148 N. C., 479; Rexford v. Phillips, 159 N. C., 213; Board of Education v. Remick, 160
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 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.