Miller v. . McConnell

Winborne, J. Appellants in their joint brief say tbat these cases binge upon tbe question as to whether tbe plaintiff, at tbe time of the institution of these actions on 5 February, 1942, could legally avail himself of tbe provisions and protection of G. S., 105-414. We are of opinion and bold tbat be could do so. While in this State taxes are payable in existing national currency, any tax collector may, in bis discretion and at bis own risk, accept *34 checks in payment of taxes, and thereupon issue tax receipts. And in any such case, if the check be thereafter returned unpaid, without negligence on the part of the tax collector in presenting it for payment, the taxes for which the check was given shall be deemed unpaid, and the collector shall immediately correct his records and shall proceed to collect the taxes either by civil action on the check, or “by the use of any remedy allowed for the collection of taxes.” G. S., 105-382. See Miller v. Neal, 222 N. C., 540, 23 S. E. (2d), 852. The scope of the statute is all-inclusive, and, under the conditions stated, any existent remedy would be available to him. One of the remedies then, and now prescribed for the collection of taxes is provided in G. S., 105-414, formerly C. S., 7990. This remedy is an action in the nature of an action to foreclose a mortgage to enforce the tax lien upon real estate by sale thereof under order of court. The present actions are instituted under this statute. But defendants plead the eighteen months, the twenty-four months and the three-year statute of limitation. However, the first two of these statutes pertained to the foreclosure of certificates of tax sales of real estate, O. S., 8037, as amended by Public Laws 1927, chapter 221, section 4, and by other acts of subsequent sessions of the General Assembly, which section as so amended was repealed by Public Laws 1939, chapter 310, section 1725. And the three-year statute, C. S., 441, was referred to in the case of Miller v. Neal, supra, in reference to actions on the unpaid checks. The present actions are not for the purpose of recovering on the checks but are brought specifically under the provisions of G. S., 105-414, as aforesaid. And in this statute no limitation of action is prescribed. However, in view of the fact that this statute contains no such limitation, decisions of this Court have held that the maxim, nullum tempus occurrit regi, that time does not bar the sovereign, still subsists as the law, in this State, at least in respect to collection of taxes. R. R. v. Comrs., 82 N. C., 259; Jones v. Arrington, 94 N. C., 541; Wilmington v. Cronly, 122 N. C., 383, 30 S. E., 9; S. c., 122 N. C., 388, 30 S. E., 9; Wilmington v. McDonald, 133 N. C., 548, 45 S. E., 864; New Hanover County v. Whiteman, 190 N. C., 332, 129 S. E., 808; Shale Products Co. v. Cement Co., 200 N. C., 226, 156 S. E., 777; Wilkes County v. Forester, 204 N. C., 163, 167 S. E., 691; Logan v. Griffith, 205 N. C., 580, 172 S. E., 348; Asheboro v. Morris, 212 N. C., 331, 193 S. E., 424; Charlotte v. Kavanaugh, 221 N. C., 259, 20 S. E. (2d), 97. We do not intimate, however, that a private individual, such as the plaintiff, who is privileged to resort to the provisions of G. S., 105-414, may invoke protection in the maxim nullum tempus occurrit regi. But *35 as the statutes of limitation pleaded are inapplicable, further discussion of the applicability of other statutes of limitation would be dictum. Defendants further assign as error the refusal of the court to submit issues tendered by them. In this connection the issues submitted by the court are sufficient when they present to the jury proper inquiries as to all determinative facts in dispute, and afford the parties opportunity to introduce all pertinent evidence and to apply it fairly. Hill v. Young, 217 N. C., 114, 6 S. E. (2d), 830, and cases cited. See also Lister v. Lister, 222 N. C., 555, 24 S. E. (2d), 342. When tested by these principles, the issues submitted appear to be sufficient. When sufficient issues are submitted, there is no ground for exception to the refusal to submit others. Bailey v. Hassell, 184 N. C., 450, 115 S. E., 166. Defendants also assign as error certain instructions pertaining to answers to the third and fourth issues. In view of the inapplicability of the three years statute of limitation, the third issue was inappropriate.. And as to the fourth issue, an action to foreclose a lien for delinquent taxes is in rem, and a personal judgment may not be obtained against the owner of the property for the amount of the taxes. See Apex v. Templeton, 223 N. C., 645, 27 S. E. (2d), 721, and cases cited. Therefore, the fourth issue was also inappropriate. Hence, if there be error in the instruction of the court, as to either issue, it will be deemed harmless. Defendants also except to the judgments as signed. In this connection, when compared therewith, it appears that these judgments go beyond the scope of the allegations of the complaint. In each action the complaint describes certain real estate against which order of sale for foreclosure of the tax lien is sought. The order of foreclosure is restricted to these particular parcels of real estate. And so much of the judgments as authorize the sale of other lands is in excess of the jurisdiction of the court as to the subject of the action. To this extent the judgments below are modified. Other exceptions have been considered and found to be without merit. Modified and affirmed.