City of Charlotte v. Little-McMahan Properties, Inc.

WELLS, Judge. Little-McMahan (defendant) asserts three basic aspects of error in the trial court’s order: one, that the trial court erred in concluding that the assignment of the tax liens did not give defendant the right to enforce those liens against the entire 46.78 acre tract; two, that it was error for the trial court to conclude that the 9.1 acre tract owned by defendant free of the deed of trust was primarily liable for enforcement of the tax liens against the entire 46.78 acre tract; three, that flowing from the first two erroneous conclusions, it was error to hold defendant personally liable for the payment of the tax liens on the entire property. First, we note that either on a motion to dismiss or a motion for summary judgment, it is not necessary or required for the trial court to enter conclusions of law, and that if such are entered, they are disregarded on appeal. Mosley v. Finance Co., 36 N.C. App. 109, 111, 243 S.E. 2d 145, 147, disc. rev. denied, 295 N.C. 467, 246 S.E. 2d 9 (1978). The facts in the case sub judice are not in dispute, and our opinion will deal only with the questions of law presented by the ordering portions of the trial court’s judgment. Defendant argues that by paying the tax liens and having the liens assigned to it, defendant may thereby pass on the tax obligation to the property itself, and hence, in this case, pass the tax obligation on to the mortgagee under the deed of trust. This argument implies that under North Carolina law it is the proper [470] ty itself which accrues the ad valorem tax obligation, as those taxes are assessed from year to year. Such argument is without merit. It is the property owner who has the obligation to pay the taxes assessed against his property. The property itself serves but two purposes in the scheme of ad valorem taxation under the laws of North Carolina: one, its value forms the basis for the assessment; and two, the property itself stands as security for the collection of taxes not paid by the owner, who by statutory definition, is the “taxpayer”.1 We, therefore, hold that when the owner pays the taxes he owes on his property, the tax lien is thereby discharged. Defendant’s argument that G.S. 105-372 makes specific provision for the assignment of a tax lien to the “taxpayer” is also without merit. We find similar lack of merit in defendant’s alternate argument that at the time it paid the taxes due on the subject property, it was no longer the “taxpayer” because as to the portion of the property still subject to the deed of trust (46.78 acres, less the 9.1 acres released), its equity of redemption had previously been “foreclosed”. Defendant also argues that the effect of the trial court’s order is to make defendant “personally” liable for the unpaid taxes, a result which it argues is erroneous because a tax foreclosure is an in rem proceeding which cannot form the basis for a personal judgment against the taxpayer, citing Apex v. Templeton, 223 N.C. 645, 646-47, 27 S.E. 2d 617, 618 (1943), quoted in pertinent part as follows: [A] tax collector . . . 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. [Citations omitted.] But in an action to foreclosure a lien for delinquent taxes or special assessments, the judgment obtained in said action constitutes a lien in rem and the owner of the property is not personally liable for the payment thereof. [Citations omitted.] It is therefore erroneous to [471] render a personal judgment against the owner or owners of land in an action to foreclose a lien for delinquent taxes. Recognizing Apex as sound law, and recognizing defendant’s argument as being totally ingenious, we must nevertheless reject it as being totally without merit. While the taxing authorities could not have obtained a personal judgment against defendant for failure to pay the taxes due against the property subject to the deed of trust, this in no way excused defendant’s obligation to pay the taxes as they were assessed from year to year, nor can this limitation on remedies available to the taxing authority be used by defendant as a backdoor method of transferring its obligation to pay the taxes to the mortgagee. The deed of trust entered into between Johnston Southern Corporation and the Johnstons, to secure the indebtedness of defendant to the Johnstons, included a provision that “[o]wner shall pay all taxes, charges, or assessments which may become a lien on the property conveyed herein.” Aside from and in addition to their rights under the deed of trust to look to defendant to pay the taxes due on the property, the Johnstons, as the lien holders under the deed of trust had a statutory remedy which, upon payment by them of the taxes on the property, would have entitled them to proceed in personam against defendant for the monies so paid.2 It thus becomes clear that under the facts of this case, defendant has, by paying the taxes due, done only that which it could have, by other proceedings, been required to do. Defendant also argues that under the provisions of the note evidencing its indebtedness to the Johnstons, the sole remedy available to the Johnstons was foreclosure against the property, thus denying the Johnstons the right to seek payment from defendant of any unpaid taxes. The notes contain the following pertinent language: [472] Provided, however, in the event Borrower shall default in the full and punctual payment of any installment of principal and interest hereof when and as the same is due and payable hereunder, the holder hereof shall have the right to proceed against the security for this Note described above for the collection in full of all such principal and interest and any other interest, charges, fees and expenses permitted by law; provided, however, in any suit upon this Note, or in any foreclosure or other action against such security or substituted security, the recovery of such holder shall be limited to such security, no deficiency judgment shall be entered and Borrower shall have no personal or additional liability hereunder whatsoever. Defendant argues that since the foreclosure by the Johnstons was “subject to taxes”, the foreclosure cut off the Johnstons’ right to recover the unpaid taxes from defendant. We cannot agree. Where a third party purchases at a foreclosure sale subject to taxes due, it may be assumed that the third party’s bid was made at a level to allow for the payment of taxes due as a part of his bargain, i.e., he expects to pay the taxes due as a part of the purchase price, in addition to his bid price. The situation is quite different, of course, where the purchaser at foreclosure is the lien holder, because under the provisions of G.S. 105-386, had the Johnstons paid the taxes, they would have gained a statutory lien for those sums, giving them, as we noted above, a separate remedy from that available under the terms of the note.3 The trial [473] court correctly concluded that when defendant paid the taxes, this argument was rendered moot. Accord, Redic v. Bank, 241 N.C. 152, 84 S.E. 2d 542 (1954). Defendant argues that the decisions of our Supreme Court in Orange County v. Wilson, 202 N.C. 424, 427-28, 163 S.E. 113, 115 (1932), Exum v. Baker, 115 N.C. 242, 243, 20 S.E. 448, 449 (1894), and Wooten v. Sugg, 114 N.C. 295, 19 S.E. 148 (1894) do not stop at recognizing the right of a mortgagee to pay taxes due and thereby acquire a lien, but also require the mortgagee to take such action in order to preserve his right. Those cases all involve the question of priority of lien between unpaid taxes and an unsatisfied mortgage, holding that the tax lien has priority; and those cases must be distinguished from the case sub judice because in this case, defendant paid the taxes, thereby making it unnecessary for the Johnstons to take the action allowed under the provisions of G.S. 105-386. We hold that the payment by defendant of the tax liens disputed in this case discharged those liens, that the purported assignments of those liens to defendant following payment are nullities, and that the judgment of the trial court is hereby affirmed. Defendant additionally argues that the conclusions of law numbered 3 and 6 in the trial court’s order are erroneous. We need not reach those questions, as the challenged conclusions are not necessary to support the judgment of the trial court, and are disregarded on appeal. Mosley v. Finance Co., supra. The test here is whether on the 'pleadings or other materials before the trial court, either judgment is justified. We have found that the judgment of the trial court was correct and should be affirmed. Affirmed. Judges HEDRICK and MARTIN (Harry C.) concur. Footnotes [1] G.S. 105-273(17) “Taxpayer” means any person whose property is subject to ad valorem property taxation by any county or municipality and any person who, under the terms of this Sub-chapter, has a duty to list property for taxation. G.S. 105-302(c)(l) provides that the owner of the equity of redemption in real property subject to a deed of trust shall be considered the owner and that the property shall be listed in the name of the owner of the equity of redemption. [2] G.S. 105-386. Tax paid by holder of lien; remedy. —If any person having a lien or encumbrance of any kind upon real property shall pay the taxes that constitute a lien upon the real property: (1) He shall thereby acquire a lien upon the real property from the time of payment, which lien shall be superior to all other liens and which may be enforced by an action in the appropriate division of the General Court of Justice of the county in which the real property is situated. (2) He may, by an action for moneys paid to the use of the owner of the real property at the time of payment, recover the amount paid. [3] The following statement appears in King v. Lewis, 221 N.C. 315, 318, 20 S.E. 2d 305, 306-307 (1942), in support of which the Court cites Consolidated Code, sec. 3706, which was the predecessor to G.S. 105-409, which was replaced by present G.S. 105-386 by enactment of Ch. 806 of the 1971 Session Laws: The taxes assessed were a lien upon the land, and when the mortgagee bought at the sheriffs sale he purchased only an encumbrance, the cost of which he is entitled to have added to the debt secured by the mortgage, and it is therefore an additional lien upon the land. The mortgagee could have paid the taxes and acquired a lien upon the land to the extent of the amount so paid by him. The Code, sec. 3706 (Revisal, sec. 2858). . . . “It is very generally conceded that the holder of a mortgage is entitled for the protection of his interest to pay taxes assessed against the mortgaged premises in the event of failure by the mortgagor to discharge them, and that he has a right to add the sums so paid to the mortgage debt . . . ."