Collins v. . Bryan , 124 N.C. 738 ( 1899 )

This action was brought to recover the possession of the lands described in the complaint. The lands were sold by a tax collector of Halifax County in 1896 for taxes due upon the same. They were bid off at the sale for the county of Halifax, and certificates of the sale were afterwards issued by the tax collector to the county. The certificates of sale were assigned by the board of commissioners of the county to John A. Collins, and by him assigned to his wife, Mary W. Collins, the plaintiff in this action.

Afterwards, on 11 March, 1897, redemption not having been made by the owners of the lands, the tax collector made a deed in fee simple, conveying the same to the plaintiff, Mary W. Collins. Under (740) this deed the plaintiffs claim title to the land.

The defendants requested the court to instruct the jury "That as purchaser of said lands the county of Halifax was not entitled to a deed therefor, but was only entitled to foreclose the certificates of sale as in case of mortgage; that the plaintiffs, as assignees of the county, acquired no greater rights, and were not entitled to deeds for said lands." His Honor refused to give the instruction, and told the jury to answer the issue "Yes."

The instruction ought to have been given. We will not enter upon a discussion of the matter here, but simply make reference to the case ofWilcox v. Leach, 123 N.C. 74, for the reasoning upon which this case is decided.

We are of the opinion, however, that as it does not appear from the pleadings that the defendants have offered to pay to the plaintiffs the amount of the tax, interest and penalty, the defendants should be allowed a reasonable time within which to pay the same; and in default of such payment the plaintiffs should be allowed in this action to proceed to foreclose the lien which they obtained by the purchase of the certificate from the county; and the plaintiffs ought to be allowed their costs of action in the court below, but not their costs of appeal. There was error in the matter pointed out for which there must be a

NEW TRIAL.

CLARK, J., dissented on grounds stated ante, 727.

Cited: McNair v. Boyd, 163 N.C. 480.

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