Town of Apex v. Templeton

DeNNy, J. The appealing defendants except and assign as error the refusal of his Honor to submit to the jury the issues of fact arising on the pleadings. His Honor was apparently under the impression that the order entered by Judge Thompson struck out the entire answer or that the answer interposed no defense other than the counterclaim, which was properly stricken out. Commissioners v. Hall, 177 N. C., 490, 99 S. E., 372; Graded School v. McDowell, 157 N. C., 316, 72 S. E., 1083; Gatling v. Commissioners of Carteret, 92 N. C., 536. We think the order entered by Judge Thompson had the effect only of striking the counterclaim from the answer, and that the other defenses were unaffected thereby. The issues raised by the pleadings should have been submitted to the jury. Burton v. Rosemary Mfg. Co., 132 N. C., 17, 43 S. E., 480. There is another exception on the record worthy of consideration, which challenges the judgment, in that it was rendered against the appealing defendants personally. Section 1719, ch. 310, Public Laws of 1939, N. C. Code of 1939 (Michie), section 7971 (228), which provides for the foreclosure of tax liens, reads, in part, as follows: “(d) The foreclosure action shall be an action in superior court, in the county in which the land is situated, in the nature of an action to foreclose a mortgage. , “(m) Any judgment in favor of the plaintiff or any defendant taxing unit in an action brought under this section shall order the sale of the property, or so much thereof as may be necessary for the satisfaction of: (1) taxes adjudged to be liens in favor of the plaintiff, other than taxes the amount of which has not been definitely determined, together with interest, penalties and costs thereon; and (2) taxes adjudged to be liens in favor of other taxing units, . . .” A tax list in the hands of a tax collector is equivalent to an execution and the tax collector, in lieu of selling real estate for the collection of taxes due thereon, may seize personal property belonging to the taxpayer and sell same or so much thereof as may be necessary for the satisfaction of all taxes due by the taxpayer. Sec. 1713, eh. 310, Public *647 Laws 1939, N. C. Code of 1939 (Michie), sec. 7971 (222); Charlotte v. Kavanaugh, 221 N. C., 259, 20 S. E. (2d.), 97; Cherokee County v. McClelland, 179 N. C., 127, 101 S. E., 492; Peebles v. Taylor, 121 N. C., 38, 27 S. E., 999; Davie v. Blackburn, 117 N. C., 383, 23 S. E., 321; Wilmington v. Sprunt, 114 N. C., 310, 19 S. E., 348. But in an action to foreclose a lien for delinquent taxes or special assessments, tbe judgment obtained in said action constitutes a lien in rem and tbe owner of tbe property is not personally liable for tbe payment thereof. C. S. 7990; Wilkinson v. Boomer, 217 N. C., 217, 7 S. E. (2d.), 491; Wadesboro v. Coxe, 215 N. C., 708, 2 S. E. (2d), 876; Orange County v. Jenkins, 200 N. C., 202, 156 S. E., 774; Pate v. Banks, 178 N. C., 139, 100 S. E., 251; Drainage District v. Huffstetler, 173 N. C., 523, 92 S. E., 368; 61 C. J., Taxation, sec. 1552, p. 1143. It is therefore erroneous to render a personal judgment against tbe owner or owners of land in an action to foreclose a lien for delinquent taxes. The remaining exceptions are without merit. To the end that the issues of fact arising on the pleadings may be submitted to a jury, the defendants are granted a New trial.