35 S.E. 590 | N.C. | 1900
The land had been sold by a receiver heretofore appointed in the cause, but the purchaser declined to pay his bid, because of an outstanding tax title in one William Palmer. It turns out that Palmer was not an original purchaser at the tax sale; that the land was bid in for the county, and that Palmer became assignee of the certificate, and obtained the sheriff's deed.
His Honor provided in the judgment, that the amount paid by Palmer as taxes, costs, and interest due on the land at the time of the sale and purchase, be declared a lien, and as the amount had been deposited with the clerk the lien, for taxes was discharged.
Defendant Palmer excepted and appealed. Some time in 1894 an action was commenced (357) by Kerner, administrator, against the defendants and others, for the recovery of a debt against the defendants, for the appointment of a receiver, and for a sale of the lands of the defendant to pay its debts. The receiver sold the lands to A. H. Eller, who declined to pay for the same, alleging that William Palmer was claiming the lands under a tax title.
Upon motion in the cause an action was docketed and complaint and answer filed, the object of which was to have the cloud produced by Palmer's tax deed removed from the title. An issue was submitted to the jury, "Had the Boston Cottage Company paid all taxes due on the property in dispute before the sale thereof in May, 1895?" It seems that the taxes were paid by Eller by his promissory note given to the sheriff for the amount. His Honor instructed the jury that "if the sheriff accepted Mr. Eller's note in settlement of taxes for the year 1894, *218
that this was payment." The defendant Palmer excepted, and appealed to this Court. This Court held the instruction of his Honor to be erroneous, and ordered a new trial. Kerner v. Cottage Co.,
Affirmed.
Cited: McNair v. Boyd,
(359)