Powell v. County of Haywood , 15 N.C. App. 109 ( 1972 )

189 S.E.2d 785 (1972)

J. T. POWELL and wife, Essie Powell
v.
COUNTY OF HAYWOOD.

No. 7230SC263.

Court of Appeals of North Carolina.

June 28, 1972.

Roberts & Cogburn, by Max O. Cogburn, Asheville, for plaintiffs.

Morgan, Ward & Brown, by David J. Haynes, Waynesville, for defendant.

BROCK, Judge.

The facts in this case are so nearly identical to those in Powell v. Town of Canton 189 S.E.2d 784 that the same principles of law are applicable to both cases. The Town of Canton case was argued jointly with this case and an opinion therein, reaching the same result, is being filed contemporaneously with the filing of this opinion.

Plaintiffs contend that the trial judge erred in ruling that the complaint failed to state a claim upon which relief can be granted. A complaint may be dismissed on motion filed under Rule 12(b) (6) where it pleads facts which will necessarily defeat the claim. Hodges v. Wellons, 9 N.C.App. 152, 175 S.E.2d 690.

The tax assessment involved in this case was for the year 1970; therefore, the applicable statutes are those in existence prior to the extensive revision of Chapter 105 by the 1971 General Assembly. Each of the statutes hereinafter referred to are as numbered and worded prior to the 1971 revision. The disposition of this appeal is largely determined by the provisions of former Chapter 105, Subchapter II, entitled "Assessment, Listing and Collection of Taxes," particularly G.S. § 105-301(b), G. S. § 105-302(d), G.S. § 105-340(a), and G.S. § 105-376(a).

"For purposes of tax listing and assessing, the owner of the equity of redemption in any property which is subject to a mortgage or deed of trust shall be considered the owner of such real estate." G.S. § 105-301(b).

". . . [T]angible personal property shall be listed in the township in which such property is situated . . . if the owner . . . occupies a. . . place for the sale of property. . . therein for use in connection with such property." G.S. § 105-302(d).

"The lien of taxes levied on property and polls listed pursuant to this subchapter shall attach to all real property of the taxpayer in the taxing unit as of the day as of which property is listed.. . ." G.S. § 105-340(a).

"The lien of taxes shall attach to real property at the time hereinbefore in this subchapter prescribed." G.S. § 105-376(a) (1).

"The liens of taxes of all taxing units shall be of equal dignity and shall be superior to all other assessments, charges, rights, liens, and claims of any and every kind in and to said property, regardless of by whom claimed and regardless of whether acquired prior or subsequent to the attachment of said lien for taxes:. . . ." G.S. § 105-376(a) (2).

"The priority of the lien shall not be affected by transfer of title to the real property after the lien has attached,. . . ." G.S. § 105-376(a) (3).

The wording of the foregoing quoted sections are now substantially contained in G.S. § 105-302(c) (1), G.S. § 105-304, G.S. § 105-355(a), and G.S. § 105-356.

Plaintiffs argue that their position is different from that of a purchaser at a foreclosure sale of real estate mortgaged by the owner thereof to secure a loan. It is plaintiffs' argument that they sold the two-thirds interest in the property to Murphy Chevrolet, Inc., and took a note secured by deed of trust to secure the purchase price. They argue that this was a purchase money mortgage and that seizen in Murphy Chevrolet, Inc., was only instantaneous. Therefore, they argue that Murphy Chevrolet, Inc., was never the owner of the property so as to allow a lien for taxes on its personal property to attach.

Undoubtedly the doctrine of "instantaneous seizen" under a purchase money mortgage is firmly rooted in North Carolina law. It was recently recognized in Childers v. Parker's, Inc., 274 N.C. 256, 162 S.E.2d 481, and in Pegram-West, Inc. v. Hiatt Homes, Inc., 12 N.C.App. 519, 184 S.E.2d 65. However, the doctrine does not serve to override a clear statutory provision that the owner of the equity of redemption is considered the owner of the real estate for the purpose of assessing taxes. G.S. § 105-301(b), prior to 1971. Words of equal import are contained in G.S. § 105-302(c) (1) as it currently appears.

We hold that, by statute, the lien for taxes on the personal property of Murphy Chevrolet, Inc., attached to the real estate of which Murphy Chevrolet, Inc., was the owner of the equity of redemption under a purchase money deed of trust. The plaintiff, as purchaser of the said real estate at the foreclosure sale, purchased the same subject to the lien for the said personal property taxes.

In view of what has been said, it is clear that the complaint alleged facts which necessarily defeated the claim. Therefore, the trial judge was correct in dismissing the action for failure to state a claim upon which relief can be granted.

Affirmed.

HEDRICK and VAUGHN, JJ., concur.