Plаintiff Andrews (appellant) contends the trial court erred in denying his motion for dismissal at the close of defendants’ evidence as that evidence fails to rebut the presumption of regularity which attaches to official acts of public offiсers. He further contends that defendants’ evidence, even if sufficient to overcome the presumption, is inadequate as a matter of law to sustain the burden of proving that notice of the sale was not duly mailed by the sheriff’s office.
The Court оf Appeals affirmed the trial court’s order setting aside the sale, holding that the presumption of regularity does not apply to tax sales of realty and that the burden of prov *116 ing the validity of the tax sale is on the purchaser at the sale. Whilе we agree with the Court of Appeals that the order appealed from should be affirmed, we cannot agree with the rationale upon which its decision is based.
We accept appellant’s contention that the presumрtion of regularity is applicable to this case but we do not agree with him that movant Osteen’s evidence was so inadequate as to require dismissal as a matter of law. It is well settled that the trial court, except in the clearest of cаses, should decline to rule on a motion to dismiss under G.S. 1A-1, Rule 41(b), until the close of all the evidence.
Whitaker v. Earnhardt,
The presumption of regularity of official acts is applicable to tax proceedings in this state.
In Re Appeal of Amp, Inc.,
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In
Henderson County v. Johnson, supra,
movant Johnson sought to have a tax certificate foreclosure set aside for insufficient service of process. The presumption of regularity was employed in favor of plaintiff to provide additional support for the court’s finding that defendant had been adequately apprised of the sale proceeding. The court said that “[i]n addition to the facts found by the Judge . . . the regularity of the proceeding is further supported by the principle
omnia rite acta
praesumuntur.”
Presumption is a term which is often loosely used. It encompasses the modern concept of an inference where the basic fact (in this case, the regular performance of official duties) is said to be
prima facie
evidence of the fact to be inferred (that notice was duly mailed). It also encompаsses the modern concept of a
true presumption
where the presumed fact must be found to exist unless sufficient evidence of the nonexistence of the basic fact is produced or unless the presumed fact is itself disproven. 2 Stansbury’s N.C. Evidence § 215 (Brandis Rev. 1973). “Thе presumption has a technical force of weight, and the jury, in the absence of sufficient proof to overcome it, should find according to the presumption; but in the case of a mere inference there is no technical force attached to it. The jury, in the case of an inference, are at liberty to find the ultimate fact one way or the other as they may be impressed by the testimony. In the one case the law draws a conclusion from the state of the plеadings and evidence and in the other case the jury draws it. An inference is nothing more than a permissible deduction from the evidence, while a presumption is compulsory and cannot be disregarded by the jury.”
Cogdell v. R.R.,
*118
In the majority of cases in which this court has invoked the presumption of regularity, we have treated it as a true presumption rather than an inferential one.
See, e.g., Guthrie v. Ray,
We do not believe that the nature of the official act in this case, the mailing of a constitutionally-required notice of a tax foreclosure sale, demands that the treatment customarily afforded the presumption of regularity be altered. While strict compliance with the notice provisions of G.S. 105-392 (now G.S. 105-375) is essential to a valid sale, the purchaser at a sale under the statute is entitled to rely on the presumption that official duties in connection with the sale were regularly and properly performed until a party challenging the validity of the sale has produced ample evidence to the contrary. To decide otherwise would expose tax foreclosure sales to groundless attacks. The remedy of sale would ultimately become worthless, and the means for ensuring that the taxes due are collected would be weakened. When the law imposes the burden of producing evidence on the party claiming that a рublic official has failed to do his job, it strikes a reasonable balance between the public’s interest in discouraging frivolous litigation over meritless claims and the individual’s right to procedural regularity.
We also accept appellаnt’s contention that the burden of proof is on the party attacking the validity of a tax foreclosure sale. Again, however, we are unable to agree with him that mov-ant Osteen’s evidence was so inadequate as to require dismissal as a mаtter of law.
*119
The Machinery Act, G.S. 105-271 — G.S. 105-398 (now G.S. 105-271 — G.S. 105-395), does not explictly allocate the burden of proof. Prior to the adoption of the Act, the burden of proof had at various times been placed on both parties to a tax sale. Before 1887, the common law rule that placed the burden of proof on the purchaser was given effect. By Chapter 137 of the Session Laws of 1887, however, the legislature modified the common law rule and imposed the burden of proof on the party attacking the sale.
Moore v. Byrd,
Our decision that the burden of proof is on the party attacking the validity of the tax foreclosure sale is consistent with the allocation of the burden of proof in other types of official sales.
Wadsworth v. Wadsworth,
Walston,
supra,
involved an execution sale where the plaintiff who had the burden of proof as to the sale’s invalidity challenged
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the sufficiency of the notice given by the sheriff concerning the sale. The court, ruling оn defendant’s motion for nonsuit, said: “Mrs. Walston, one of the plaintiffs, testified that the Sheriff of Wayne County did not serve on .her a copy of so much of the advertisement as related to the real property of the plaintiffs herein, and that she did not rеceive a copy of such advertisement through the mail before the purported execution sale on 1 June 1931, as required by G.S. 1-330 (now G.S. 1-339.54). This evidence is admissible and sufficient to carry the case to the jury on the question of notice.”
In the casе before us an analogous sale is involved, and the evidence offered by the party with the burden of proof is similar to, if not stronger, than the evidence offered in
Walston.
Defendant administrator and his brother testified that both of them had carefully examinеd the papers of their dead brother, the taxpayer, and that neither of them could find any notices from the sheriff’s office concerning the sale. Defendant administrator further testified that he informed the post office of his brother’s death and asked that mail be forwarded to him. Thereafter, a tax notice concerning some other property of the decedent was received. Finally, it was stipulated that no record of any mailing of the notice could be found in the Hendеrson County Sheriff’s Office. As we said in the former appeal, this evidence would support, but does not compel, a finding that the notice was not mailed.
Henderson County v. Osteen,
We also uphold the trial court’s finding that the sheriff’s office had failed to mail the notice of tax foreclosure required by G.S. 105-392(c) (now G.S. 105-375(i)) and the entry of judgment based on said finding of fact.
The well-established rule is that findings of fact made by the court in a non-jury trial have the force and effect of a jury verdict and are conclusive on appeal if there is evidence to support them, although the evidence might have supported findings to the contrary. Williams
v. Pilot Life Ins. Co.,
For the reasons stated, the decision of the Court of Appeals is
Affirmed.