Wooten v. . Sugg

Bukavell, -J.: What has been said in Moore v. Sugg, at this Term, disposes of the defendant’s first exception. In the view we take of the matter involved in this appeal that exception is not important here. There was error in overruling his second exception. The tax which the defendant insists is a burden on the land now owned by the plaintiff was assessed against that property for the year 1884, while the mortgage under foreclosure of which he claims title was made to him in 1893. And while it was undoubtedly the duty of the mortgagor in possession to list the land for taxation and to pay to the proper officer the tax levied on it for each year, it was also incumbent on the mortgagee, the owner of the legal title, to see to it that this was done. It was his property, and the statute (The Code, §3700) had provided how he might pay *298 such taxes without loss to himself. Without such a provision it was his privilege aw mortgagee to pay the tax and attach the sum so paid to his mortgage debt. Jones on Mortgages, section 1080. The lien of the tax of 1884 on the land was superior to the right either of this mortgagee or mortgagor. And the title of the plaintiff from the commissioner, relating back as it does to the date of the mortgage, cannot relieve the property of this burden of unpaid taxes. The plaintiff when a mortgagee held cum onere; aw purchaser at the foreclosure sale he holds the land in like plight. This case is clearly distinguishable from Moore v. Sugg, supra. The constitutionality of the act authorizing the collection of arrears of taxes, such as that under the provisions of which the defendant is proceeding, has been decided. Jones v. Arrington, 21 N. C., 125. Upon the facts found it should have been adjudged that the injunction be dissolved. Reversed.