State Board of Education v. Remick

ClaRK, C. J. On 22 January, 1795, a grant was issued to Daniel "Wheaton for 44,160 acres of land lying in New Hanover County, now Pender, tbat is commonly known as “swamp lands.” — 565 — On 18 December,' 1799, William Nutt, sheriff of New Hanover, executed a tax deed to Benjamin Williams, Governor, for the said property, and the title remained in the Governor and Ms successors until it was vested in the Literary Eund by Laws 1825, ch. 1268, sec. 1, which transferred to said fund for the support of common schools, together with other property, “all of the vacant and unappropriated swamp lands in the State,” and Eevised Statutes 1837, ch. 67, sec. 3, provides: “All the swamp lands in this State not heretofore duly entered and granted to individuals shall be vested in said corporation and successors in trust as a public fund for education and establishment of common schools.” Laws 1842, ch. 36, sec. 2, also provides : “All the swamp lands to which this State is now entitled, or to which this State shall afterwards become entitled under the provisions of this act, or otherwise, shall be and are hereby vested in the present directors of the Literary Eund of North Carolina and their successors, in trust as a public fund for education and the establishment of common schools.” On 22 March, 1849, a grant was issued to Ezekiel Chadwick for 62 acres of land, lying within the boundaries of this 44,160-acre tract. But there is no evidence tending to show that he or those claiming under him were ever in possession, and it is admitted that they have not been. On 1 September, 1912, the State Board of Education agreed to sell to E. C. Eemick and he agreed to buy the 62 acres at $3 per acre, “provided the State Board of Education could convey a good and indefeasible title in fee to said land,” which sale was to be closed by 10 September, 1912.' Eemick, the defendant, refused to pay the purchase price and accept the deed for said land, on the ground that the State Board of Education did not have title to the property and cannot make him a good deed. The question involved in this proceeding is whether or not the State Board of Education has title to the 44,160 acres embraced in the grant to Daniel Wheaton, which are the same lands as are described in the deed from William Nutt, sheriff, to the Governor. On the “agreed state of facts,” Judge Garter entered judgment for plaintiff, and the defendant appealed. — 566 — Tbe first assignment of error is tbat tbe tax deed from William Nutt, sheriff, to Benjamin Williams, Governor, was invalid because tbe recitals in tbe deed, if true, are insufficient to justify tbe levy and sale of tbe land for taxes, and tbe said deed is therefore inoperative and void. Tbe recitals in tbe deed are as follows: Tbat no person listed tbe land for taxes or offered to pay tbe taxes; tbe land was advertised in tbe newspapers agreeable to law and was sold pursuant to such advertisement; a fair offer was made to any person to pay tbe taxes, but no one offered to do so and tbe same was struck off to tbe Governor and bis successors in office. In these recitals every fact necessary as tbe basis for a proper and legal sale of tbe property is set out in tbe deed, and if taken as true there can be no doubt tbat they are sufficient. 37 Oyc., 1439, says: “Tbe tax deed is required to show by distinct recitals tbat tbe land was in fact sold for tbe nonpayment of taxes, by what officer tbe sale was made, to whom it was made, and tbe manner of tbe sale, as tbat it was at public auction, to tbe highest bidder or to tbe bidder who would take tbe least quantity of land, for tbe taxes, etc., at least so far as to show tbat no ^provision of tbe statute was violated in tbe conduct of tbe sale.” It is contended, however, tbat tbe plaintiff has not shown (and after tbe lapse of 113 years certainly will be unable to show) tbat tbe recitals in tbe deed are true, and hence tbat tbe deed is void unless tbe truth of those recitals are proven, though no one has claimed tbe land or paid taxes on it for more than a century. Prior to chapter 137, Laws 1887, now Revisal, 2909, it was held in Land Co. v. Board of Education, 101 N. C., 39, tbat there must be evidence dehors tbe deed tbat tbe recitals in tbe sheriff’s tax deed are true. It was also held in Fox v. Stafford, 90 N. C., 298, tbat tbe recitals in a tax deed were not evidence against tbe owners of property or prima facie evidence tbat tbe law bad been complied with, and tbe burden of proving these things was on tbe purchaser. Tbe result of tbe above decisions was tbat up to 1889 no tax deed bad ever been held valid on appeal to tbe Supreme Court, and tbe State was a heavy loser; besides, tbe taxation which — 567 — should have been borne by tax defaulters was thrown upon those who had already borne the burden of their own taxes. To remedy this evil, a Tax Commission was appointed to examine into the provisions for the sale of land for taxes in other States, and on their report, chapter 137, Laws 1887 (now, with some modification, Revisal, 2909), was adopted which made certain recitals in a tax deed presumptive evidence and certain others conclusive evidence. The effect of that act was to change the burden of proof, and the power of the Legislature so to enact was sustained in Moore v. Byrd, 118 N. C., 688, and in many cases since, quoting that decision. Indeed, it seems to be established beyond controversy that it is competent for the Legislature at any time to change the rules of evidence applicable to existing contracts, including deeds. Thompson v. Missouri, 171 U. S., 380; Brannon XIV Amendment, 292. It has also been frequently held that the Legislature may make the recitals in a' tax deed prima facie evidence of their truth. In addition to the decisions in our own Court above referred to, are Rietler v. Harris, 223 U. S., 437; 2 Wigmore Ev., sec. 1354 (3), pp. 1670, 1671. It is useless to cite further authorities for a principle so well sustained. It is further objected, however, that said deed of William Nutt, sheriff, does not state that the land had become “liable to be sold for taxes.” But it does recite that “the land was not given in by any person or persons whatever for the payment qf taxes thereof,” and this certainly made the land liable to taxation under the act of 1782; Iredell’s Statutes, ch. YII, sec. 6, p. 430. But it is further contended that there is no recital in the deed that the assessors did so value and appraise his property. Revisal, 4047, however, expressly names among the presumptions raised as to the tax deeds for swamp lands that “The manner in which the listing, assessment, levy, and sale was conducted was in all respects as the law directed; that all the prerequisites of the law were duly complied with by all officers or persons who had, or whose duty it was to hatee, any part or action in any transaction relating to or affecting the title conveyed or purporting to be conveyed by the deed from the listing and valu — 568 — ation of the property up to the execution, of the deed, both inclusive, and that all things whatsoever required by law to make a good and valid sale and vest the title in the purchaser was done and that all recitals in such deed contained are true as to each and every of the matters so recited.” This is made presumptive evidence, and the burden is shifted upon any one claiming the lands by reason of the alleged invalidity of the deed to show that the presumption is incorrect. Besides, it is provided in Revisal, 2909, that in order to defeat the title which such deed purports to convey, it must have shown that either such property was not subject to taxation for the year or years named in the deed, or that the taxes had been paid before the sale, or that the property had been redeemed from the sale. None of these things have been done in the present case. Under Revisal, 4047, the presumption, therefore, is not only that the land had not been listed for taxation and the tax not paid as provided, among other things, in Revisal, 2909, but the deed itself carried a further presumption, that on failure to list property for taxation the proper officers had valued it and placed it on the tax list as required by the statute then in force. - The owner of land has notice that he must pay taxes, and that if it is not paid the land will be sold. It is true, this Court in Parrish v. Cedar Co., 133 N. C., 478, and since in Lumber Co. v. Lumber Co., 135 N. C., 743; s. c., 137 N. C., 444, held unconstitutional a provision that where the owner of swamp land had failed to pay all arrearages of taxes levied and assessed thereon, or which ought to lime been levied thereon before a certain date, the land ipso facto should be forfeited and vested in the State without any judicial proceedings. In King v. Mullins, 200 U. S., 420, the point was thoroughly discussed, and contrary to the decision of our Court above cited, such a statute was held constitutional. However, such provision has been struck out of our statute, and Revisal, 4047, contains no such provision. It merely' provides that the deeds for land to the State Board of Education under a sale for taxes shall be presumptive evidence of the facts recited in that section, and throws the burden of proof upon the party contesting the title to prove that the taxes have been paid or other defect in any of the steps which would make the deed invalid. — 569 — This, as we have seen, is within the authority of the lawmaking body. The presumption, therefore, is that the proper officers, upon the failure of Wheaton to list the land for taxes, assessed the said property -and placed it on the tax list. This is what the statute then, and now, requires to be done before the sheriff is authorized to sell, and the Legislature is as fully competent to provide that such presumptions arose as that the recital in the deed is a presumption that the land was not listed by the owner and the taxes were not paid. The deed recites that the advertisement was made in the newspapers agreeable to law and that the land was sold pursuant thereto. There was further objection that the seal of William Nutt was not affixed to said deed. This is cured by Pell’s Eevisal, see. 949 (®), as to all deeds executed prior to 1 January, 1895. Besides, the parties have filed an agreement amending the record, showing that as a matter of fact the seal or scroll was affixed. Further, the court could from the recitals in the deed have decreed that the seal should be placed thereon now. Moore v. Quince, 109 N. C., 85. It is further objected that the description in the deed from Sheriff Nutt was not sufficient to convey the 44,160 acres of land set out in the grant to Daniel Wheaton which he purports to convey. The deed from Nutt to the Governor describes the land as follows: “A certain parcel of land entered by Daniel Wheaton, on the east side of the northeast branch of the Cape Fear Biver, including part of the Holly Shelter Pocosin, beginning at a large cypress and water oak on the edge of Holly Shelter Creek, on the south side thereof, about one-quarter of a mile above James Howard’s line, containing 44,160 acres.” ■ By comparing the above description with the grant to Daniel Wheaton, for a like acreage with like beginning, it will be seen that the same land is referred to and can be identified as a matter of law. This would be made more definite by reference to the entry and plat. But if the same description in the grant from the State to Daniel Wheaton was too indefinite, then the State has never granted the land. Besides, the land could be identified by parol evidence. Blow v. Vaughan, 105 N. C., 198; Euliss v. McAdams, 108 N. C., 507. — 570 — It is further assigned as error that the land was not vacant and unappropriated land. Iredell’s Collected Statutes, Laws 1788, p. 115, provides: “That it shall be the duty of any sheriff, before he settles his account with the Comptroller, to deposit said deed or deeds in the office of the Secretary of State, who shall record and keep the same in his office for the benefit of the State; and the said land so conveyed shall be deemed vacant land and liable to entry.” We have already set out above the acts of 1825, 1837, and 1842, by which the State transferred all its vacant and unappropriated swamp lands to the Literary Fund. It follows, then, that the grant of 62 acres to E. Chadwick, in March, 1848, within the boundaries of this tract, was without the authority of law and void. It is admitted that Chadwick has not been in possession. Eevisal, 4047, is an admirably drawn and most necessary statute. It applies only to actions concerning Swamp lands and to which the State Board of Education is a party. "Without it, this tract of land, which has paid none of the burdens of government for 113 years, would be a derelict as to which nothing could be done. The State after the lapse of all these years could not show that the land had been listed by the assessors nor that the other acts required by the statute had been complied with. It is entirely proper and competent for the State to provide that the presumption that public officials have done their duty should apply, and throw upon any adverse claimant the burden of proving the contrary. This decision does not, in any way, conflict with the cases of King v. Cooper, 128 N. C., 347; Warren v. Williford, 148 N. C., 474; Matthews v. Fry, 141 N. C., 582, and Rexford v. Phillips, 159 N. C., 213, the facts in those cases and this one being very different. Upon full consideration of the exceptions, the judgment below must be Affirmed.