Iredell County v. Crawford

138 S.E.2d 539 (1964) 262 N.C. 720

IREDELL COUNTY and City of Statesville, N. C.
v.
Adolph CRAWFORD, Administrator of the Estate of Adolph Crawford, Mrs. Martha Crawford, Lucille Thompson, James Crawford, Mae Hancock, Rosa Lee Roseboro, Bessie Gray and James R. Walker, Jr.

No. 399.

Supreme Court of North Carolina.

November 4, 1964.

The appellant, James R. Walker, Jr., appeals, assigning error.

Collier, Harris & Collier, and Marvin V. Bondurant, Statesville, for plaintiff appellees.

Samuel S. Mitchell, Raleigh, T. H. Wyche, Charles V. Bell, Charlotte, James R. Walker, Jr., Weldon, for defendant appellant.

DENNY, Chief Justice.

The appellant seeks to challenge the validity of the exemption contained in G.S. § 105-422 on the ground that the exemption of Iredell and thirty-four other counties from the provision of the statute makes the exemption unconstitutional. He contends; that such exemption violates Article II, Section 29 of the Constitution of North Carolina, which prohibits the General Assembly from passing "any local, private, or special act * * * extending the time for the assessment or collection of taxes * * *."

G.S. § 105-422, in pertinent part, reads as follows: "No action shall be maintained by any county or municipality to enforce any remedy provided by law for the collection of taxes or the enforcement of any tax liens held by counties and municipalities, whether such taxes or tax liens are evidenced by the original tax books or tax sales certificates or otherwise, unless such action shall be instituted within ten years from the time such taxes became due: Provided, that as to tax foreclosure actions which under existing laws are not and will not be barred prior to December 31st, 1948, foreclosure actions may be instituted thereon at any time prior to December 31st, 1948: Provided, further, that this section shall not be construed as applying to the liens for street and/or sidewalk improvements; and provided further, that this section shall not be applicable to any pending tax foreclosure actions." (Iredell and thirty-four other counties were originally exempted from the provisions of the Act.)

Chapter 885 of the Session Laws of North Carolina, 1961, removed Iredell County from the exemption provision of the above statute and provided that it should be subject thereto from and after 1 July 1962.

The appellant contends that all taxes levied on the appellant's property prior to 29 June 1952 are barred by the ten-year statute of limitations on the ground that the exemption in G.S. § 105-422, purporting to exempt Iredell and thirty-four other counties from the ten-year statute of limitations provision therein, is void and unconstitutional.

Ordinarily, we do not pass upon constitutional questions unless they are squarely presented. Here, the appellant has not pleaded the ten-year statute of limitations, nor has he attacked the constitutionality of G.S. § 105-422, nor any of its provisions in his answer.

It does appear, however, in the findings by Walker, S. J., in his judgment entered below, that appellant filed an answer in apt time, that he filed a motion to bar action, a supplemental motion to bar action, and a motion to amend further answer, all of which were denied, and that the appellant entered an exception to each denial. However, the record does not set out the purpose or content of any proposed amendment to the further answer. Furthermore, the exception to such denial has not been preserved by bringing it forward and assigning it as error. This Court has repeatedly said that the statute of limitations cannot be taken advantage of by demurrer but only by answer. G.S. § 1-15; Elliott v. Goss, 250 N.C. 185, 108 S.E.2d 475; Reid v. Holden, 242 N.C. 408, 88 S.E.2d 125; Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320; Moody v. Wike, 170 N.C. 541, 87 S.E. 350; Oldham v. Rieger, 145 N.C. 254, 58 S.E. 1091; King v. Powell, 127 N.C. 10, 37 S.E. 62; Albertson v. Terry, 109 N.C. 8, 13 S.E. 713; Randolph v. Randolph, 107 N.C. 506, 12 S.E. 374; Guthrie v. Bacon, 107 N.C. 337, 12 S.E. 204; Bacon v. Berry, 85 N.C. 124; Long v. Bank, 81 N.C. 41; Green v. N. C. Railroad Co., 73 N.C. 524.

A statute of limitations is not available as a defense or bar to an action unless pleaded, nor can it be raised, ordinarily, by motion to dismiss. Reid v. Holden, supra; Oldham v. Rieger, supra.

In view of the failure of the appellant to plead the ten-year statute of limitations in his answer, or to attack in his answer the provisions of G.S. § 105-422, the statute he seeks to have declared unconstitutional, we hold the constitutional question has not been properly presented. Moreover, any decision we might render with respect to the validity of the statute complained of, could have no bearing on the judgment entered below.

The judgment of the court below is

Affirmed.