Harden v. Marshall

WEBB, Judge. The first question posed by this appeal is whether the lot on which the house is constructed was sold by the Sheriff on 19 November 1973. We hold that it was not. The orders, notices, and Sheriff s deed described a lot by metes and bounds and by reference to a map recorded in the Register of Deeds’ Office which does not include the lot upon which the house is constructed. If there was not a sufficient description in the proceedings, we might look to the tax map for help but this is not the case. The description is sufficient and it does not include the lot on which the house is located. The plaintiff, relying on G.S. 105-375(b), argues that the statute requires that when the Tax Collector files a certificate for back taxes with the Clerk of Superior Court that it contain a “description of the property sufficient to permit its identification by parol testimony.” She says this permits parol testimony to permit identification of the property. If the description were ambiguous, parol testimony might be appropriate. We do not believe the description is ambiguous. The plaintiff also argues that the defendant was not prejudiced by the description used. She contends that the defendant has not paid any taxes on the property since 1967, that she was told by the Tax Collector that her house and lot would be sold, and it brought a price within the range of its appraised value. We do not believe prejudice to the defendant is the test. The test is whether the papers filed in the proceedings conveyed the lot on which the house was constructed and we hold they do not. The plaintiff contends further that G.S. 105-394 is applicable to this case which provides in part: “Immaterial irregularities in the listing, appraisal, or assessment of property for taxation or in the levy or collection of the property tax or in any other proceeding or requirement of this Subchapter shall not invalidate the tax imposed upon any property or any process of listing, ap [493] praisal, assessment, levy, collection, or any other proceeding under this Subchapter: The following are examples of immaterial irregularities: (5) Any defect in the description upon any abstract, tax receipt, tax record, notice, advertisement, or other document, of real or personal property, if the description be sufficient to enable the tax collector or any person interested to determine what property is meant by the description. (In such cases the tax supervisor or tax collector may correct the description on the documents bearing the defective description, and the correct description shall be used in any documents later issued in tax foreclosure proceedings authorized by this Subchapter.)” The plaintiff contends that under this section the description used was an immaterial irregularity which may be corrected. We do not believe the sale of a sufficiently described lot in a foreclosure proceeding is an immaterial irregularity which may be corrected by holding another lot was sold under the proceedings. The plaintiff relies on Kaperonis v. Highway Commission, 260 N.C. 587, 133 S.E. 2d 464 (1963) for the proposition that a map or plat referred to in a deed becomes a part of the deed whether or not the map is registered. That case dealt with a deed which referred to a map of the Highway Commission and said “ ‘(s)o much of said property as lies within the bounds of the right of way of Wilkinson Boulevard is subject thereto.’ ” Id. at 598, 133 S.E. 2d at 465. The Court said this was notice to the grantees that the Highway Commission claimed the land as shown on the map as a right-of-way. We do not believe this case is precedent for holding that in proceedings which describe a lot by metes and bounds and by reference to a recorded plat that a reference to a tax map changes the description. The plaintiff also relies on Crews v. Crews, 210 N.C. 217, 186 S.E. 156 (1936) and Ferguson v. Fibre Co., 182 N.C. 731, 110 S.E. 220 (1921). Crews deals with the reformation of a deed of trust and a deed on the ground of a mistake by the draftsman. We do not believe this has any application to a judicial proceeding. Ferguson deals with the interpretation of a [494] description in a deed. There is no reference in that case to anything outside the deed. The plaintiff argues that the Sheriffs deed of 19 November 1973 conveyed both lots because it referred to a deed recorded in Book 244, page 440 which deed conveyed the lot upon which the house is located. We have held that the Sheriff was ordered to convey the vacant lot. He could not under that order convey a separate lot. Nevertheless, we do not believe the Sheriffs deed purported to convey the lot upon which the house is located. It contains a description which without ambiguity describes the vacant lot. This description cannot be changed by reference to another deed. We do not believe any of the cases cited by the plaintiff, Carroll v. Industries, Inc., 37 N.C. App. 10, 245 S.E. 2d 204, aff’d, 296 N.C. 205, 250 S.E. 2d 60 (1978); Lee v. McDonald, 230 N.C. 517, 53 S.E. 2d 845 (1949); Hudson v. Underwood, 229 N.C. 273, 49 S.E. 2d 508 (1948); Chatham v. Chevrolet Co., 215 N.C. 88, 1 S.E. 2d 117 (1939); Mitchell v. Heckstall, 194 N.C. 269, 139 S.E. 438 (1927); Berry v. Cedar Works, 184 N.C. 187, 113 S.E. 772 (1922); or Gudger v. White, 141 N.C. 507, 54 S.E. 386 (1906), are inconsistent with this principle. The plaintiff pleads the statute of limitations and contends the defendant is barred from contesting the tax sale. The defendant is not contesting the tax sale. Her contention is that the tax sale did not convey the lot in question. We hold she is correct in this contention. The plaintiff next contends that the Sheriffs Deed of Correction of 7 October 1982 conveyed the title to the lot upon which a house is located. We have held that the Sheriff was ordered to convey the vacant lot. He had no power to convey the lot with the house upon it. Lastly, the plaintiff contends the defendant is estopped to assert her ownership of the house and lot. She says that the defendant knew her land was being sold and even told the Tax Collector to sell the land. Relying on Sherrill v. Sherrill, 73 N.C. 8 (1875), she says that an owner of property who stands by and sees a third person sell it under claim of title without asserting her own title or giving the purchaser any notice thereof, is estopped against such purchaser from afterwards asserting title. In Sherrill the person whose heirs were estopped induced the plaintiff to [495] take a tract of land by deed from a third party. In this case the defendant did nothing to mislead the purchasers. We do not believe the plaintiff or her husband were induced to do anything by the actions of the defendant. Estoppel does not apply. We hold it was error not to enter judgment for the defendant. The decision of this case should not affect any claim the plaintiff may have for unjust enrichment. Reversed and remanded. Judges Johnson and Phillips concur.