Rand v. Wilson County , 243 N.C. 43 ( 1955 )

89 S.E.2d 779 (1955) 243 N.C. 43

Oliver G. RAND and Wade A. Gardner, Commissioners,
v.
WILSON COUNTY; J. T. Boyette, Tax Collector of Wilson County; and K. J. Herring, Auditor and Treasurer of Wilson County.

No. 239.

Supreme Court of North Carolina.

November 2, 1955.

Lucas, Rand & Rose and Gardner, Connor & Lee, Cyrus F. Lee, Wilson, for plaintiff appellants.

Luke Lamb, Wilson, for Wilson County, defendant appellee.

BARNHILL, Chief Justice.

The complaint does not allege specifically that the judgment entered in the action to try title to the lands described in the complaint was in effect a judgment by consent. Reference is made thereto as such in the briefs filed in this Court, and it was admitted during the oral argument that said judgment was in fact a consent judgment. Therefore, the motion entered by the plaintiffs in this Court for permission to amend the complaint to allege that said judgment was a consent judgment is allowed.

It is alleged in the complaint that the property described therein was listed for the years 1931 through 1949 in the name of "M. S. Hutchinson Estate." This was a void listing. Hence we must discuss the question here presented as if the property had not been listed for taxation for the period in question. Morrison v. McLauchlin, 88 N.C. 251; Wake County v. Faison, 204 N.C. 55, 167 S.E. 391; G.S. § 105-301(3).

The tax listing authorities of Wilson County were authorized to list property the property for taxation for the five years next preceding the date the tender of taxes due was made, G.S. § 105-331(3), Lawrence v. Shaw, 210 N.C. 352, 186 S.E. 504, so that when the plaintiffs tendered to the County or offered to pay the taxes "lawfully due" on the property, there were then legally due and collectible taxes for the preceding five years. The question here presented is this: Did the plaintiffs have the right to pay the taxes demanded by the County and then maintain an action for the recovery of all taxes paid in excess of the amount "lawfully due?"

A consent judgment is the contract of the parties entered upon the records with the approval and sanction of the court. It is to be construed in the same way as if the parties had entered into the contract by writing duly signed and delivered. Bunn v. Braswell, 139 N.C. 135, 51 S.E. 927; Spruill v. Nixon, 238 N.C. 523, 78 S.E.2d 323; McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27; Houghton v. Harris, 243 N.C. 92, 89 S.E.2d 860.

While the contract of the parties in the solemn form of a judgment refers to plaintiffs as commissioners, they were and are in fact trustees of an express trust within the meaning of G.S. § 1-63. By the judgment they were directed, and it was their duty, (1) to sell and convey the land, (2) to collect the proceeds, (3) to pay the taxes lawfully due, and (4) to distribute the balance, after the payment of taxes, as directed in the judgment.

It is argued that plaintiffs were authorized to pay only taxes lawfully due. But under our statute they had no alternative other than to proceed as they did. They could not tender the taxes lawfully due for the five years next preceding the tender. They were compelled to pay the amount demanded by the County and then to sue for the recovery of so much of the amount paid as was not lawfully due. G.S. § 105-267.

Aside from the express provisions of the judgment, upon the sale of the property it became their duty to pay the taxes assessed or assessable against the property sold. Holt v. May, 235 N.C. 46, 68 S.E.2d 775; G.S. § 105-408.

We conclude, therefore, that the plaintiffs, being trustees of an express trust, are authorized by G.S. § 1-63 to maintain this action without the joinder of the beneficial owners of the property.

The demurrer cannot be sustained for the misjoinder of causes of action. The subject matter of the suit is the amount paid in excess of taxes for five years next preceding the payment. It is this excess payment that plaintiffs seek to recover. That it represents the accumulation of taxes over a number of years is immaterial.

The other grounds for demurrer set forth in the demurrer filed are without substance.

The judgment entered in the court below is Reversed.