Cherokee County v. McClelland , 179 N.C. 127 ( 1919 )

Hoke, J.

The laws of this State make comprehensive provision for the collection of the public revenues, affording to the officers charged with the duty adequate remedies for the purpose, both by action and by summary process. City of Wilmington v. Moore, 170 N. C., 52; State and Guilford County v. Georgia Co., 112 N. C., 34. True, in Berry v. Davis, 158 N. C., 170, it was held that a sheriff or other executive officer charged with the duty of collecting the taxes, having the tax list in his possession, was not authorized to bring claim and delivery for personal property before levy made, but as pointed out in Wilmington v. Moore, supra, that ruling was approved because no lien for taxes is given by the statute on personal property before actual levy made. As to realty, however, the taxes are declared the lien on all realty of the owner from a given date, enforceable by action as well as by levy and sale; and the tax list, when placed in the collector’s hands, with the fiat of the register, as clerk of the board of commissioners, endorsed thereon, are declared to have the force and effect of a “judgment and execution against the real and personal property of the person charged in such list.”

In Rev., 2866, it is provided that the tax lien on realty for taxes and assessments due thereon may be enforced by action in the nature of an action to foreclose a mortgage, and judgment may be declared for the enforcement of sucb lien, “together with interest, penalties, and costs allowed by law and costs of action,” and when such lien is in favor of the State and county the action shall be prosecuted in the name of the county. Again, in section 2912 it is provided that the bolder of every certificate of purchase at a tax sale may institute this action in the nature of an action to foreclose the mortgage to enforce collection of the amounts due, on giving to the owner or occupant of the real estate 10 days written notice of bis purpose to bring the suit, and the statute declares that inability to find such owner or occupant in the county shall excuse a failure to give such notice.

This section further declares that every county or other municipal corporation shall have the right to foreclose for taxes under its provisions, and it is made the duty of sucb corporations to diligently prosecute said suits, etc., and further, that in every action brought under its provisions, whether by private individuals or by the county or by other municipal corporation, the plaintiff shall, except in eases otherwise provided by law, recover interest at the rate of 20 per cent on all amounts paid out by him or those under whom be claims, and evidenced by certificates of tax sales, deeds thereunder, or tax receipts, etc.

The property was regularly listed for taxation, the taxes thereon duly assessed, the purchase made at a tax sale after public notice given, of which the owner was fully aware, and the 10 days written notice served on him of plaintiff’s purpose to bring the present suit, and on these facts we are of opinion that the 20 per cent is collectible by the express terms of the statute. And the authorities cited do not uphold the defense contended for. In Rexford v. Phillips, 159 N. C., 213, the tax deed was avoided because the land bad never been put on the tax list by any one having proper authority for the purpose, and it was held, therefore, that there was no tax lawfully due from the owner, justifying a sale, a principle again affirmed by this Court in Stone v. Phillips, 176 N. C., 457. And in Matthews v. Fry, 141 N. C., 582, not only was there failure on the part of the sheriff to give proper public notice of the sale, as well as serving notice on the owner personally, but the purchaser bad also failed to serve the personal notice required by the statute as a prerequisite to obtaining bis deed. Apart from this, both of these authorities were decisions in reference to the title, and the validity of the tax deed, and the failure to give the notice referred to having been declared an irregularity, the deeds were avoided as between the purchaser and the owner. In neither ease was the question presented of the right to recover the 20 per cent interest allowed by the statute in an action to foreclose the lien. This is imposed by way of penalty for the personal default of the owner in not meeting bis share of the public burdens. Any apparent hardship that may at times arise from lack of personal notice is generally removed by the requirement that 10 days personal notice must be given the owner of the purpose to bring the suit, thus affording him another opportunity to pay bis taxes and avoid the penalties and costs. In the present instance the facts show that the defendant knew all about the taxes being due, and of the time and place of sale, and knowing this, be failed for two successive years to pay bis taxes, and we find no reason in law or fact for relieving him of the penalty.

In regard to defendant’s having personal property available from which the tax should have been first made, it has been held by us that this fact will not of itself suffer to avoid a sale of realty. Stanly v. Baird, 118 N. C., 75. And it may be noted that our last two Machinery Acts, Laws 1917, cb. 234, and Laws 1919, ch. 92, both close with the express provision that a sale of real estate for taxes shall not be assailed on the ground that the tax could have been procured by sale of personal property.

There is error, and this will be certified that judgment be entered for the tax, and interest thereon at 20 per cent and costs.

Reversed.