Orange County v. Atkinson

ClaRKSON, J.

From the agreed statement of facts and C. M. Cates’ verified motion, the record shows the following: “C. M. Cates has been *596 duly made a party defendant for tbe purpose of making a motion to set aside tbe sale of tbe property on tbe grounds tbat tbe same is irregular, and should therefore be declared void.” From tbe view we take of this case, we think it immaterial on which day tbe sale was held. Tbe sale was void as to O. M. Cates. Tbe judgment in tbe court below recites tbat tbe decision was based on whether tbe sale was made on a proper day under tbe statutes, and held tbat it was. C. M. Oates excepted and assigned error tbat “tbe court signed tbe judgment as appears in tbe record,” and appealed to tbe Supreme Court.

In Wilson v. Charlotte, 206 N. C., 856 (858), it is said: “Tbe only assignment of error in tbe case at bar is to tbe 'signing of tbe judgment, . . . having duly excepted to tbe signing of said judgment.’ If said assignment merely refers to tbe act of signing tbe judgment, it presents no question of law for review. But, upon tbe other band, if it be treated 'as an exception to tbe judgment, it presents tbe single question whether tbe facts found or admitted are sufficient to support tbe judgment.’

Mfg. Co. v. Lumber Co., 178 N. C., 571 .”

On tbe face of tbe record, there was irregularity in tbe judgment as to C. M. Oates, it was void. Tbe facts found and admitted are not sufficient to support tbe judgment.

Dixon v. Osborne, 201 N. C., 489 .

It is found in tbe agreed statement of facts: “(6) Tbat C. M. Cates, at tbe time of tbe institution of this action, was and is tbe bolder and owner of a deed of trust on said land, and tbe same is a subsisting lien thereon, as set forth in bis verified motion filed herein.”

Tbe defendant George D. Atkinson owned a certain tract of land in Orange County, N. C. For tbe year 1928 taxes were assessed against tbe land in tbe name of Atkinson in tbe sum of $15.70. Tbe land was foreclosed and sale confirmed for tbe nonpayment of tbe tax. Tbe land was purchased by J.

W.

Bennett and J. F. Thompson for tbe sum of $135.00. They assigned their bid to Myron Perry Lloyd and Mae Holmes Lloyd, and deed was duly made to- them by tbe commissioner.

Tbe land was encumbered with a deed of trust to J. A. Giles, trustee for C. M. Cates, for purchase price of $2,250.00 for tbe land. Tbe deed of trust was dated 19 January, 1924, and duly recorded in Book of Mortgages No. 70, page 17, register of deeds’ office for said county. In tbe foreclosure proceeding neither O. M. Cates nor J. A. Giles, trustee, were made parties to tbe action.

Tbe question involved: Can tbe purchasers obtain, in tbe foreclosure action for tbe 1928 tax of $15.70, a title free and clear of tbe lien of $2,250 without making O. M. Cates, or tbe trusteee, J. A. Giles, a party to tbe foreclosure action, and without notice and opportunity given them or either of them to be beard?

We think not.

Beaufort County v. *597 Mayo, ante, 211.

In tbe Beaufort County case tbis matter was given careful and thorough consideration. A petition to rebear was filed and dismissed on 10 January, 1935. In tbe petition and motion of C. M. Cates to be made a party and opportunity given him to be beard is tbe following: “Tbat tbe said C. M. Cates stands ready, able, and willing to pay tbe said taxes for 1928, and all taxes rightly due and owing on tbe said lands, and hereby tenders said taxes.”

In accordance with tbe above, all tbe taxes for 1928 and subsequently rightly due and owing on tbe land to Orange County must be paid. Tbe Beaufort County case, supra, was not decided until 31 October, 1934, after tbe present ease was beard in tbe court below.

For tbe reasons given, tbe judgment of tbe court below is Reversed.