Craven County v. . Parker

Adaks, J. It is made tbe duty • of tbe board of commissioners or other governing body of a county to foreclose certificates held by tbe *564 county for the sale of real estate for taxes. Q. S., 8037. For this purpose the plaintiff brought suit against the defendant Parker, owner and mortgagor of the land, and the defendant, Rasberry, who is mortgagee. The only answer filed is that of Rasberry. He attacks the judgment on the ground that the sheriff failed to serve on the delinquent taxpayer a copy of the advertisement of sale as provided by C. S., 8013, and cites Matthews v. Fry, 141 N. C., 582, as authority for this position. That was an action for the recovery of land in which the defendant relied upon title alleged to have been acquired at á sale for the nonpayment of taxes. The decision turned on the construction of certain sections of chapter 159, Public Laws 1897. Section 51 provided that before any real estate should be sold for taxes the sheriff or tax collector should personally serve a written or printed notice of such sale on the delinquent taxpayer or his agent at least thirty days before the sale if the delinquent resided in the county. It was held that the defendant had acquired no title because the sheriff had failed to serve the notice. It was made to appear in addition that the sheriff had not given any notice of the sale by publication. Section 51 seems to have been construed as a condition precedent. But a material change has been made and the statute now reads, “Before any real estate shall be sold for taxes the sheriff shall give public notice of the time, place and cause of such sale by advertisement,” etc. C. S., 8014. Other notice to the delinquent is provided for in the preceding section: “In addition to this advertisement the sheriff shall, at least twenty days before a sale of real estate for taxes, serve upon each delinquent taxpayer whose real estate is advertised for sale ... a copy of so much of the advertisement as relates to him and his real estate.” In King v. Cooper, 128 N. C., 347, cited in Matthews v. Fry, supra, it was said: “We think the notices and publication presumed under section 69(7) (Laws 1897, ch. 169) to have been given are those required of the sheriff by section 51 of the act, but the notices required with so much particularity to be given by the purchaser under the new sections, 64 and 65 (C. S., 8028, 8029), must be proved by him.” Section 8029 provides that the purchaser shall make affidavit that he has complied with the preceding section; but the affidavit is not required when the county is the purchaser. It would seem to follow that in a suit to foreclose the certificate, the decision in Sanders v. Earp, 118 N. C., 275, and Geer v. Brown, 126 N. C., 238, is controlling, and that the officer’s failure to serve a copy of the advertisement on the delinquent should not be construed as fatal to the action. The appellant contends that the sale was invalid because the sheriff did not first levy upon and sell the delinquent’s personal property. *565 Tbe statute provides tbat tbe personal property of tbe taxpayer shall be sold before resort can be bad to bis real estate, and tbat upon service of notice tbat bis real estate is to be sold for taxes, it shall be incumbent upon him to point out tbe personal property out of which tbe taxes should be made. O. S., 8006. It is admitted tbat tbe notice was not given. It is argued tbat it was therefore not required of tbe defendant Parker to direct tbe officer to bis personal property. Tbe statute just cited was enacted primarily for tbe benefit of tbe taxpayer and not in detriment of tbe purchaser’s title. Accordingly, it has been held tbat although tbe sheriff may be liable to tbe tax debtor if be sells real estate for taxes before resorting to personal property, still such failure will not affect tbe title conveyed by tbe sheriff’s deed. Stanley v. Baird, 118 N. C., 75; Geer v. Brown, supra; Cherokee v. McClelland, 179 N. C., 127, 132. Moreover, tbe Machinery Act provides “tbat where actual sales of real estate are made for taxes under tbe general laws of tbe State tbe taxpayer whose real estate has been sold for taxes shall be precluded thereafter from attacking such sale on tbe ground tbat tbe tax could have been procured from personal property.” P. L. 1925, cb. 102, sees. 99, 111. Tbe land was advertised under this description: “Richard Parker, 250 acres, Washington Road, No. One Township.” Tbat this description was indefinite is another ground upon which it is contended tbat tbe tax sale was not valid. It is admitted tbat this is tbe only land owned by Richard Parker in Craven County. Tbe description given evidently embraces 250 acres, situated on Washington Road in Number One Township, owned by Richard Parker; and tbe description is sufficiently definite to sustain tbe certificate which tbe plaintiff seeks to foreclose. Proctor v. Pool, 15 N. C., 370; Ritter v. Barrett, 20 N. C., 266; Kitchen v. Herring, 42 N. C., 190; Moses v. Peak, 48 N. C., 520; Farmer v. Batts, 83 N. C., 389; Blow v. Vaughan, 105 N. C., 199; Norton v. Smith, 179 N. C., 553. Tbe case of Bryson v. McCoy is distinguishable. There tbe notice of sale was “Beaverdam Township. T. D. Bryson heirs, acres 400, amount $10.00”; but T. D. Bryson’s interest was a one-half interest in 70 acres, 200 acres, and 331 acres, according to tbe grants. In tbe case before us there is no such discrepancy in description, tbe only point being whether tbe land in question can be identified. Tbe appellant finally contends tbat tbe plaintiff in any event can recover nothing more than tbe taxes due and interest thereon at 6 per cent. “In every action brought under this section, whether by a private individual or by tbe county or other municipal corporation, or any other corporation, tbe plaintiff shall, except in cases otherwise provided by *566 law, be entitled to recover interest at tbe rate of 20 per centum per annum on all amounts paid out by bim, or those under wbom be claims, and evidenced by certificates of tax sale, deed under tax sale, and tax receipts. Sucb interest shall be computed from date of each payment up to tbe time of redemption or final judgment, and shall be added to tbe principal of tbe final judgment, which judgment shall bear interest as in other cases.” The amendment prohibits the board of county commissioners from remitting any of the penalties prescribed in the section after action is brought for foreclosure. P. L. 1925, ch. 109. Judgment Affirmed.