Stanley v. Baird

Furches, J.: From the great difficulty in collecting taxes and in sustaining tax titles for land, under the law as it existed prior to 1887, it was necessary that there should be legislation on the subject. But, in providing for an admitted defect in the law, it may well b.e considered whether the legislative pendulum did not swing too far the other way, and whether the time for redemption should not be extended, and the purchaser be required, 82 at least six months before the expiration of the time at which he will be entitled to demand a deed, to give the owner of the land notice of his purchase, the amount paid, and the time when he will be entitled to demand a deed, personally, if the party resides in the State and is known, and by publication, if he' does not reside in the State, or is not known to the purchaser. But this is a matter for the Legislature to determine, and not for us. It is our duty to declare the law as we find it, and not to make the law. And this being so, we find no error in the judgment appealed from. Before 1887 the theory was that the sheriff or tax collector acted under a simple legislative’power which had to be strictly pursued to convey title to land, and the burden of showing this was upon the purchaser. There wore no presumptions in his favor. Avery v. Rose, 4 Dev., 549; Hays v. Hunt, 85 N. C., 303. But the Legislature entirely reversed this theory in 1887, and every Legislature since 1887 has substantially re-enacted the legislation of that year. By this legislation everything is presumed in favor of purchasers — some of these are conclusively presumed, while others .are not. See. 66, ch. 119, acts 1895. But those that are not conclusive, with a few exceptions, are declared to be but irregularities, and not to affect the validity of the tax title. Sec. 74, ch. 119, acts 1895. The only ground of defense, left by this act, is to be found in the last paragraph of section 66, ch. 119, on page 15§ of the laws of 1895. And neither of the defendants’ exceptions is included in the grounds of defense as there laid down. We will not here enumerate these grounds, as none of them covers the defendant’s exceptions. But one of them is fraud on the part of the officer, or on the part of the purchaser, to defeat the claim of the owiier. If this is established it will defeat the tax title. Fraud is not 83 alleged in this case, but it is to be noted that the parties all lived in the same town; that plaintiff’s land was sold for another man’s debt; that the owner was not notified of the sale, and that the man who owed the debt (Richardson) owned and had in the town of Newbern, more than five times as much ¡personal property as would have paid this tax, when, the act (section 51, ch. 119, supra) expressly provides that “no land shall be sold for taxes, unless the taxpayer has not sufficient personal property to pay the same situated in the county where the .tax is due.” It seems that plaintiff has lost his land by the sheriff’s failing to discharge his duty. But it does not follow that he has lost its value. Holdman v. Miller, 103 N. C., 118; Young v. Connelly, 112 N. C., 646; Thomas v. Connelly, 104 N. C., 342. It is suggested whether a sheriff, lor such neglect of a public duty, is not liable to the plaintiff in damages, and also to an indictment. State v. Hatch, 116 N. C., 1003. There is no error and the judgment must be affirmed. • Affirmed.