Bryan v. . Craven County

Adams, J. The lot on which the late James A. Bryan had his residence in the city of New Bern was formerly listed for taxation as “Lot No. 152 Middle Street.” Subsequently Charles S. Bryan acquired the title in fee to this property, subject to the life estate of Mrs. Alice II. Bryan. Lot 152 was composed of four city lots numbered 280, 281, 282, 283. On 20 May, 1931, the owners executed and delivered to the United States a written option of purchase, for a post-office site at a fixed price, the lot fronting on Middle and New streets, and at the same time agreed to dedicate and convey to the city of New Bern a strip of land twenty feet in width extending along New Street from the lot described in the option to Hancock Street. The lot on which the option was given and the 20-foot strip are a part of lot 152. The plaintiffs conveyed title to the post-office site on 29 July, 1932, and received the purchase money on 14 April, 1933, but they have not tendered to the city a deed for the 20-foot strip for widening the street. On 2 November, 1931, the sheriff of Craven County sold lot 152 Middle Street for the delinquent taxes of 1930, and again on 3 October, 1932, for the delinquent taxes of 1931, and on these respective dates issued certificates of sale to the county of Craven. On 2 November, 1931, the same land was sold for the city taxes of 1930, and on 7 November, 1932, for the city taxes of 1931, and certificates of sale were issued *733 by tbe municipal tax collector to tbe city of New Bern. For tbe taxes of 1932 no sale bas been made. Tbe appellants’ assignments of error present tbe question whether tbe trial court committed error in bolding that tbe lot sold to tbe United States for a post-office site and tbe 20-foot strip dedicated to tbe city of New Bern can be segregated from tbe remainder of tbe property and released from tbe lien of taxes for tbe years 1930, 1931, and 1932, upon payment of tbe respective sums found to be their “equitable and just” burden of taxation under tbe proposed apportionment. In reference to real property it is provided that tbe lien of tbe State,, county, and municipal taxes levied for any and all purposes in each year shall attach to all real estate of tbe taxpayer situated within tbe county or other municipality by which tbe tax list is placed in tbe sheriff’s bands, on tbe first day of June, annually, and shall continue until such taxes, with any penalty and costs which shall accrue thereon, shall be paid. C. S., 7987. Tbe General Assembly amended this statute in 1929 by providing' that tbe tax lien should be preferred to any other lien upon tbe real estate of tbe taxpayer within tbe county and to tbe inchoate right- of dower or tbe curtesy initiate. Public Laws, 1929, chap. 306. In 1931 this was followed by other amendments. Public Laws, 1931, chap. 83. Tbe second proviso of tbe latter act is in these words: “In all cases where tracts of land have been subdivided into lots, but have been returned, charged, and assessed as a whole tract, tbe sheriff or other tax collecting officer, together with tbe auditor, county accountant or other agency performing tbe duties of such auditor or accountant, shall, upon application of any person interested, make an investigation and determine tbe pro rata part of said assessment justly applicable to any lot or lots, and shall thereupon, upon payment of tbe tax fairly ascertained to be due against such lot or lots, together with a ratable share of tbe tax charged against tbe personal property of tbe party in whose name the land is charged and assessed at any time prior to tbe commencement of tbe advertisement of such property for sale for taxes prior to tbe sale of said property for taxes, release tbe said lot from tbe tax lien. However, tbe tax collector or sheriff shall require tbe owner, upon bis application for a release, to pay all of bis personal property tax charged on tbe return.” As tbe whole amount assessed against tbe personal property bas been paid, tbe ultimate question is whether tbe tax can be apportioned as contended by tbe plaintiffs. Tbe defendants suggest two obstacles in tbe way of tbe apportionment. They say that tbe land must have been subdivided into lots but returned, charged, and assessed for taxation as “a whole tract.” We do not regard *734 this as a fatal objection. It is admitted in the appellants’ brief that lot 152, although listed and assessed as one lot, was composed of the four city lots heretofore described. The statute applies to cases in which the subdivision has been made and the lot has been assessed as an entity; the date of the subdivision, whether before or after the adoption of the amendment, is immaterial. It is furthermore contended that the apportionment cannot be made after the land has been sold and the certificates of sale have been issued to the purchasers. The statute, though somewhat obscure, seems to indicate that the “application of any person interested” must be made prior to the time the property is advertised for sale. The plaintiffs argue that this clause is directory and that the application may be made at any time before the certificates are foreclosed. A regulation affecting a method is frequently regarded as directory, but a procedure may not be treated as directory when it contravenes a positive and essential legislative requirement. Land Co. v. Smith, 151 N. C., 70. According to the appellants’ contentions the question is, not whether the plaintiffs can enforce the apportionment, but whether the defendants have a legal right to make it — the two interrogatories submitted to the court being whether the 20-foot strip of land is subject to the taxes of 1932 and whether it is lawful for the defendants to apportion the taxes that are due and uncollected. To each the court gave an affirmative answer, and we concur in the judgment. The valuation fixed by the county authorities is, of course, binding on the city. R. R. v. Comrs., 188 N. C., 265; Guano Co. v. New Bern, 172 N. C., 258. Judgment Affirmed.