County of Buncombe v. Arbogast

Stacy, 0. J. This case in all of its essential features is controlled by the decision in Harnett County v. Reardon, 203 N. C., 267, 165 S. E., 701. Indeed, the judgment might well be affirmed on authority *748 of the Harnett County case, without more, but there are other considerations appearing on the present record which tend to support the judgment of vacation: 1. In the first place, it should be observed that no deed has been executed by the commissioner for said property, as was the case, e. g., in Orange County v. Wilson, 202 N. C., 424, 163 S. E., 113, and it does not appear that the price bid at the sale has ever been paid or tendered by the alleged purchaser. 2. The order of confirmation, dated 27 April, 1932, recites that D. C. Lentz, agent, became the last and highest bidder at said sale, and directs that deed be made to said purchaser, but D. C. Lentz says he was not the purchaser and does not want the transaction to appear in his name as agent or otherwise. 3. It nowhere appears on the records of the Superior Court that the Auburn-Asheville Company has been adjudged the purchaser at said sale. 4. The commissioner filed two reports, but “neither of said reports of sale indicates the lands and premises intended to be covered thereby.” C. S., 8025. 5. The reports are dated 9 April, 1932, but do not show that they were ever filed in the clerk’s office. The order of confirmation was entered before the expiration of twenty days from the date of said alleged reports. C. S., 763 and 3243; Thompson v. Rospigliosi, 162 N. C., 145, 77 S. E., 113; Perry v. Perry, 179 N. C., 445, 102 S. E., 772; Dixon v. Osborne, 204 N. C., 480; loc. cit., 487. 6. The equities of the case are with the movant. Harnett County v. Reardon, supra. A corporation controlled by the son of the original owners of the land is undertaking to recover a valuable piece of property by means of a tax sale foreclosure, and thus cut off the rights of the mortgagee and the present owner. It is not infrequently the case, that in such an enterprise, due to haste or anxiety perhaps, some vital matter is overlooked, which frustrates the purpose and gives the race not to the swift but to the deserving, demonstrating again that equity pursues the right, abhors the wrong, and enjoins upon all persons “to live honestly, to harm nobody, to render to every man his due.” Justinian. We are not unmindful of the fact that this is a tax sale foreclosure suit under C. S., 8037, as amended, a statute intended to facilitate the collection of taxes and to assure purchasers at tax sales that there is such a thing as “a good tax deed.” Price v. Slagle, 189 N. C., 757, 128 S. E., 161; Logan v. Griffith, ante, 580; Street v. Hildebrand, ante, 208, 171 S. E., 58; Guy v. Harmon, 204 N. C., 226, 167 S. E., 796; Street v. McCabe, 203 N. C., 80, 164 S. E., 329; Orange County v. Wilson, supra. Nor have wé overlooked the right of the owner to redeem, either under *749 C. S., 8038, or by motion in tbe cause for irregularities in tbe foreclosure proceeding. Harnett County v. Reardon, sufra. Tbe jurisdiction of tbe court to deal with tbe matter at term is not questioned. C. S., 637; In re Brown, 185 N. C., 398, 117 S. E., 291; Smith v. Gudger, 133 N. C., 627, 45 S. E., 955. Af&rmed.