Orange County v. . Jenkins

Adams, J. Tbe judgment recites an admission by all tbe parties that tbe sale of tbe land in controversy was conducted in compliance *206 with law and that everything was done which the statutes require in order to convey to the purchaser an indefeasible title. The only question for decision is whether the statutes under which the sale was conducted are in conflict with the State or Federal Constitution. This question the trial court resolved against the appellant. It is contended that these statutes violate Article I, sec. 17, of the Constitution of North Carolina, and Article XIY, sec. 1, of the Constitution of the United States. The specific objections are (1) that the taxpayer is deprived of his property without due process of law; (2) that the law does not apply with uniformity to all persons or property, and (3) that it does not provide adequate notice to lienholders or other persons having an interest in the property. Under section 8037, Michie’s Supplement of 1929 (Laws 1927, ch. 221, sec. 4; 1929, chs. 204 and 334) the county of Orange instituted a proceeding to foreclose two sheriff’s certificates of sale for taxes. As the holder of these certificates the county had a lien on the land as in case of a mortgage, and the right of foreclosure was its only remedy. N. C. Code of 1927, sec. 8028; Laws 1927, ch. 221, see. 4; Supplement of 1929, see. 8037. Relief could be had “only in an action in the nature of an action to foreclose a mortgage.” It is provided that the person in whose name the land was listed for taxation and the wife or husband of such person shall be made defendants and shall be served with process as in civil actions. A summons was issued for Andrew Jenkins and his wife and was returned without service because they “were not to be found in Orange County.” Thereafter they were duly and regularly served by publication. By filing a written answer to the plaintiff’s motion Hinshaw submitted himself to the jurisdiction of the court. The “due-process” clause of the Federal Constitution requires service of process, which may be made by actual service, or by publication in proceedings in rem, or by publication in proceedings quasi in rem. In proceedings in rem instituted, for example, to enforce a lien upon property, it is not necessary, as in proceedings quasi in rem, to acquire jurisdiction by attachment or actual seizure of the property. Bernhardt v. Brown, 118 N. C., 700; Armstrong v. Kinsell, 164 N. C., 125; Heidritter v. Oil Cloth Co., 112 U. S., 294, 28 L. Ed., 729. In Pennoyer v. Neff, 95 U. S., 714, 24 L. Ed., 565, Mr. Justice Field set forth the principle in these words: “Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the theory that the seizure will inform him, not *207 only that it is taken into custody of the court, but that he must look to any proceedings authorized by law upon such seizure for the condemnation and sale. Such sendee may also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or where the public is a party to condemn and appropriate it for a public purpose.” Such service is not subversive of the due-process clause. Bynum v. Bynum, 179 N. C., 14; Foster v. Allison Corporation, 191 N. C., 166. The principle just stated applies to that part of section 8037 which provides for an advertisement “giving notice to all other persons claiming any interest in the subject-matter of the action to appear, present, and defend their respective claims, and to set them up within six months from the date of the notice” or be forever barred and foreclosed of any interest or claim in the property or the proceeds received from its sale. Service of notice by publication on interested parties in a proceeding in rem, when authorized by statute, is no less effective for the purpose intended than substituted service of process on the defendant in the action. As remarked by Cooley, “The right of the Legislature to prescribe such notice, and to give it effect as process, rests upon the necessity of the case, and has long been recognized and acted upon.” Constitutional Limitations, 605. If the person on whom a summons is to be served cannot after due diligence be found in the State, that fact must appear by affidavit to the satisfaction of the court (C. S., 484) ; but if a proceeding is instituted to foreclose a tax lien on property, unknown persons who claim an interest in the subject-matter may be notified by publication to appear and assert their interest. The “necessity of the case” is found in the fact that the plaintiff does not know whether there are outstanding claims and, if so, whether the claimants reside within or without the State. The expressed purpose of the statute is to convey the land in fee simple free from all claims whether disclosed by the records or not. The principle was discussed and applied in Leigh v. Green, 193 U. S., 79, 48 L. Ed., 623, in which it is said: “The State has a right to adopt its own method of collecting its taxes, which can only be interfered with by Federal authority when necessary for the protection of rights guaranteed by the Federal Constitution. In authorizing the proceedings to enforce the payment of taxes upon lands sold to a purchaser at a tax sale, the State is in the exercise of its sovereign power to raise revenue essential to carry on the affairs of state and the due administration of the laws. This fact should not be overlooked in determining the nature and extent of the powers to be exercised. ‘The process of taxation does not require the same kind of notice as is re *208 quired in a suit at law, or even in proceedings for taking private property under the power of eminent domain. It involves no violation of due process of law when it is executed according to customary forms and established usages, or in subordination to the principles which underlie them.’ ” Mr. Justice Bay concludes the opinion in these words: “The principles applicable which may be deduced from the authorities we think lead to this result: Where the State seeks directly or by authorization to others to sell land for taxes upon proceedings to enforce a lien for the payment thereof, it may proceed directly against the land within the jurisdiction of the court, and a notice which permits all interested, who are “so minded,” to ascertain that it is to be subjected to sale to answer for taxes, and to appear and be heard, whether to be found within the jurisdiction or not, is due process of law within the Fourteenth Amendment to the Constitution.” The other questions discussed in the briefs do not affect the constitutional validity of the statutes under consideration, and the judgment appealed from declares their alleged invalidity is the only defense interposed at the hearing. Judgment Affirmed.