Long Creek Drainage District v. Huffstetler

J. The questions raised by this appeal are settled against the defendant by Canal Co. v. Whitley, 172 N. C., 100, in which it was held that a statute in its essential features like the one before us was constitutional, and that the right to appeal to the Superior Court from the assessment levied constituted “due process.” The same case also decided that the assessment “is not a debt and does not arise ex contractu. It is not a x>ersonal liability of the landowner to be 'collected by execution, as against which he would be entitled to a homestead. It is a statutory charge upon the land, and must be collected by proceedings in rem in a court having equitable jurisdiction, unless some other method is provided by the statute. If the land benefited is insufficient in value to pay the assessment in full, the remainder cannot be collected out of the other estate of the landowner.” The assessment roll when made up and not appealed from is in effect a judgment, which is declared by the statute “to be a lien as for *525 special tax upon tlie land of tbe landowner,” and tbe action is one upon a judgment to foreclose a lien, analogous to tbe remedy given for tbe collection of taxes. Revisal, see. 2866. • If so, tbe action is not barred, as it falls witbin tbe statute of limitations barring actions upon judgments witbin ten years, and tbe statute providing tbat an action on a liability created by statute shall be brought witbin three years has 'no application. It was, however, erroneous to render a personal judgment against the defendant, as tbe land is tbe debtor, and tbe judgment will be modified by striking out tbe judgment against the defendant and by directing tbat tbe land be sold to pay tbe assessment, with interest thereon, and costs. The costs of this Court will be paid equally by tbe plaintiff and the defendant. Modified and affirmed.