Banks v. Lane

Claek, O. J.

This is a petition to rehear this case, 170 N. C., 14. Tbe action was brought by R. C. Banks and wife, tbe feme plaintiff being tbe mortgagee of a tract of land embraced in tbe “Mosely Creek Drainage District,” against George B. Lane, tbe sheriff of Craven County, and George B. Pate, tbe mortgagor and owner of said tract of land, who was in possession, and the Mosely Creek Drainage District.

Tbe feme plaintiff set out her chain of title down to August, 1913, when she conveyed to George B. Pate and took from him a mortgage back to secure tbe purchase money. Her complaint averred that she and those under whom she claims bad no notice served on her personally of tbe proceedings for tbe assessment made in said drainage district; that said George B. Pate was insolvent, and asked a restraining order against fhe collection of said assessment.

It is very evident that by tbe expression, “those under whom she claims,” tbe feme plaintiff refers to the grantors in tbe deeds set out in her chain of title, and not to George B. Pate. Tbe answer does not deny, but asserts, that tbe latter, who is in possession, has been served with summons in tbe cause. In our former decision we called attention to tbe fact that tbe statute did not require that mortgagees and lien-holders by.judgment or otherwise should be served with summons; that to require them to be parties would greatly increase tbe difficulty of creating these drainage districts, and they would have no interest to serve in tbe creation thereof. As was said in Drainage Comrs. v. Farm Assn., 165 N. C., 701, where tbe point was presented, mortgagees and lien-holders are not required to be served with notice personally, because “A mortgage is subject to the authority to form these drainage districts for the betterment of the lands embraced therein. The statute is based upon the idea that such drainage districts will enhance the value of the lands embraced therein to a greater extent than the burden incurred by the issuing of the bonds, and the mortgagee accepted the mortgage knowing that this was the declared public policy of the State.”

In our former opinion we held that it'was no more necessary that mortgagees and other lien-holders should be consulted in the formation of such districts .than to permit a mortgagee or lien-holder, in the like absence of statutory provision, to enjoin an assessment for the pavement of sidewalks or streets or other improvements of property. We said that the proceeding was in rem, and that the decree for the formation of the district could not be made until a majority of the' original landowners, and the owners of three-fifths of all the land which will be affected, have signed the petition, and until all other landowners in the district are notified, and that the decree creating the district must be presumed to have been regularly granted and advertisement of notice for other persons interested in the land has been made as required by secs. 5 and 15, chapter 442, Laws 1909, and sec. 1, chapter 61, Laws 1911. The complaint does not aver that the plaintiff is the owner of the land, but, on the contrary, that George B. Pate is the owner and in possession, and does not negative that notice by publication was duly made as to all others in interest, but merely avers that the feme plaintiff was not served personally — which is not necessary.

The Drainage Act has been held constitutional, and the validity of the district laid off under it cannot be attacked collaterally. Newby v. Drainage District, 163 N. C., 24.

The district has been formed, the assessment made without objection from landowners, and Laws 1909, chapter 442, sec. 37, provides that the collection of assessments shall not be defeated, where the proper notices have been given, by reason of any defects occurring prior to the order confirming the final report, but that such report shall be conclusive that all prior proceedings were regular, unless appealed from. This is absolutely necessary if the public are to be protected in their purchase of the bonds put upon the market. It is to be presumed that when the Court has rendered such final judgment and the bonds are issued there will be no interference with the collection of the assessments to pay the bondholders, but that all controversies were thrashed out and settled before such final judgment.

Though the proceeding to create the drainage district was instituted before the plaintiff executed her deed to Pate in August, 1913, yet it may well be tbat tbe summons, as tbe answer avers, was served on bim after tbat date and before tbe final judgment making tbe assessments and directing tbe issue of tbe bonds. Tbis is another reason wby tbe motion should be made in tbat cause where tbe facts in regard to tbe proceedings are of record.

If tbe plaintiff wishes to allege collusion between the owner of tbe land, Pate, and tbe other members of tbe drainage district, which she lias not done, she ought to be allowed a day in court to do tbis. But she cannot do it in tbis collateral way under a restraining order against tbe sheriff of tbe county, who has no interest, but was obeying a legal mandate of tbe court, for tbe statute puts these assessments upon tbe same basis as tbe levy of taxes. She must seek her remedy by a motion in tbe cause in which the judgments were entered creating tbe district and confirming the assessment and directing tbe issue of bonds. In tbat proceeding are the records which will show whether-the publication was made of notices required as to others than tbe owners of tbe land (which last alone were required to be served with summons), and whether there was any fraud or collusion to her detriment.

On such motion being made before tbe clerk in tbat cause, the' plaintiff can, if so advised, at once apply to tbe judge to issue a restraining order therein until her motion shall be passed upon, and if an issue of fact is raised, tbis issue can be transferred to tbe court at term for trial by a jury.

Tbe counsel for tbe plaintiff seem to be aware tbat tbe records in-tbat case were necessary, for they have applied on tbis rehearing for a certiorari to send up tbe records in tbat ease. Tbis motion we have-refused because tbat proceeding was no part of tbis case, and, indeed, tbe records therein were not before us on bearing tbe appeal whose decision it is now sought to rehear. Tbe authorities are numerous-tbat an injunction will not lie against an execution by an independent action, but tbat tbe remedy is always by motion in the cause whose decrees it is sought to impeach (except where fraud is alleged), and by a restraining order in tbat cause, if necessary. Parker v. Bledsoe, 87 N. C., 221, and cases there cited, and cases since, citing tbat case. Tbe records to be passed upon are in tbat cause, and should not be brought into another case for examination collaterally.

Tbe plaintiff, therefore, has a remedy by proceeding regularly under a motion in that cause and by a restraining order therein if necessary. Tbis will entail no disadvantage or delay upon her, for tbe present injunction will bold until tbis opinion is certified down to tbe court below, which will then dismiss tbis action. In tbe meantime, tbe plaintiff can make her motion and application for a restraining order in. tbat cause.

Besides, tbis proceeding would be an attempt to take “two bites at a cherry,” for if tbe restraining order were made permanent in tbis case tbe plaintiff must proceed in tbe original cause to bave tbe assessment reallotted if there bas been any action taken wbicb makes it illegal or excessive. Sucb reassessment could not be made in tbis proceeding, and certainly tbe tract of land is not entitled in any event to be exempt from all assessments. Tbe parties chiefly interested are tbe other members of tbe drainage district, who will bave notice of any motion in that cause, and bave opportunity to defend. Whatever reduction, if any, is made in that proceeding in tbe assessment on tbis tract will necessarily be made up by raising tbe assessment on tbe owners of tbe other lands in that district, and they should.bave opportunity to be heard.

Tbis denies tbe plaintiff no right if she bas be'en wronged, and will cause her no delay. We send her to tbe proper tribunal to move in tbe action in* wbicb tbe assessment bas been made of wbicb she bas complained, and she can there be fully beard to vindicate her rights, if any, to a reduction in tbe assessment. Indeed, that proceeding "was brought in Craven County, where tbe records therein are to be found, while tbis collateral proceeding to question tbe regularity of proceedings therein is brought in Lenoir.

Tbe mere fact, so strongly insisted on by plaintiff’s counsel, that while this assessment is only $445, all tbe assessments on tbis tract aggregate $2,200 on a tract of land wbicb brought before it was drained $4,000 is a matter that was doubtless considered before tbe decree making tbe assessment and directing tbe issue of bonds was entered. Tbe presumption is that tbe land was benefited far more than tbe amount of these assessments, or objection would bave been made by Pate, tbe landowner, or by tbe plaintiff, as to whom notice by publication is, by tbe statute, presumed to bave been given. But if there bas been any wrong done, it is in that cause that tbe assessment should be reconsidered and upon proper proof reduced or reaffirmed.

Petition denied.