Middleton v. Wilmington, Brunswick & Southern Railroad

*311 DeNNY, J. Tbe appellant contends tbat tbe court, notwithstanding tbe provisions of G. S., 105-403; C. S., 1976, should not bave allowed tbat portion of tbe respective claims for taxes filed by tbe county of Brunswick and tbe town of Southport which consisted of penalties and interest accrued on taxes assessed prior to receivership and which accumulated during tbe period when tbe property so assessed was in tbe custody of tbe court". Upon tbe threshold of this appeal we are confronted with motions, interposed in this Court on behalf of tbe county of Brunswick and tbe town of Southport, to dismiss tbe appeal, on tbe ground tbat tbe question purported to be presented to tbe court is moot. Tbe motions are based upon tbe following, which appears in tbe agreed statement of tbe case on appeal: “Immediately after tbe rendition (of tbe order) of Burney, J., dated 22nd October, 1943, tbe appellant paid to Brunswick County and tbe City of Southport their entire claims for taxes, interest and penalties and tbe costs of this action.” It does not appear of record tbat tbe taxes, penalties and interest, involved herein, were paid under protest or tbat tbe appellant has complied with tbe provisions of tbe statute, G. S., 105-406; O. S., 7979, which is a prerequisite to a right of action for tbe recovery of taxes or any part thereof. Hunt v. Cooper, 194 N. C., 265, 139 S. E., 446; Blackwell v. Gastonia, 181 N. C., 378, 107 S. E., 218; Teeter v. Wallace, 138 N. C., 264, 50 S. E., 701; R. R. v. Reidsville, 109 N. C., 494, 13 S. E., 865. Taxes paid voluntarily and without objection or compulsion cannot be recovered, even though tbe tax be levied unlawfully. Maxwell, Comr. of Revenue, v. Hans Rees’ Sons, 199 N. C., 42, 153 S. E., 850. In view of tbe disclosure in tbe record to tbe effect tbat tbe appellant has paid tbe taxes, penalties and interest involved herein, in tbe absence of a showing tbat tbe appellant has preserved its right to maintain actions for tbe recovery of tbe portion of tbe taxes to which it might be entitled, in tbe event of a favorable determination of tbe question presented, tbe motions to dismiss must be allowed. Appeal dismissed.