City of Wilmington v. Merrick , 234 N.C. 46 ( 1951 )

65 S.E.2d 373 (1951) 234 N.C. 46

CITY OF WILMINGTON et al.
v.
MERRICK et al.

No. 596.

Supreme Court of North Carolina.

June 7, 1951.

G. C. McIntire, Wilmington, for plaintiffs, appellants.

Thomas W. Davis, Wilmington, for R. L. Lewis, movant, appellee.

JOHNSON, Justice.

The principle of caveat emptor applies with all its rigor to the purchase of real estate at a tax sale. Ordinarily, the holder of a tax deed executed pursuant to an invalid commissioner's sale in a tax foreclosure suit may not obtain reimbursement from the taxing authorities.

The fundamental fairness and soundness of this rule is apparent. One who purchases at a tax sale does so without warranty,—and usually with the expectation of substantial profit. He is chargeable with knowledge that a commissioner's deed is no more than a quitclaim deed. There "are no implied covenants with respect to title, quantity, or incumbrance, in the sale of real estate." Guy v. First Carolinas Joint Stock Land Bank, 205 N.C. 357, 171 S.E. 341, 342. The tax records, as well as the court papers in a foreclosure suit, are open to inspection by prospective purchasers. It is the duty of one who would purchase a tax title to investigate, or cause to be investigated, all sources of title, "and if he fail to do so, it is his folly, against which the law, that encourages no negligence, will give him no relief," Foy v. Haughton, 85 N.C. 168, 169. Besides, it would seem to be unsound public policy to require local taxing units to underwrite the validity of these tax titles. Any such requirement would tend to render uncertain, if not to imperil, public finances.

Therefore, in the instant case, the plaintiffs may not be required to make reimbursement. Our decision here is in accord with the principles applied in Turpin v. Jackson County, 225 N.C. 389, 35 S.E.2d 180 and cases there cited. Decision is also in harmony with the decided weight of authority in other jurisdictions. See Annotations: 77 A.L.R. 824; 116 A.L.R. 1408.

The authorities cited by appellee are not controlling here. Most of them deal with rights and remedies of an innocent purchaser at an irregular sale and relate to questions of title. These questions were resolved against the movant Lewis on the first appeal. 231 N.C. 297, 56 S.E.2d 643.

The status of movant's title is not revealed by the record. However, it is indicated that he may have acquired the outstanding interest of at least one of the heirs of Titus Wright, deceased. In any event, since the purchase money has been applied in exoneration of the land, whatever enforceable tax liens the plaintiffs may have had against the land would seem to have passed by subrogation to the movant Lewis, and any such liens may be fully enforced by him as equitable assignee of the plaintiff taxing units. Perry v. Adams, 98 N.C. 167, 3 S.E. 729; Lanier v. Heilig, 149 N.C. 384, 63 S.E. 69; Annotation: 73 A.L.R. 612, p. 630 et seq. See also G.S. § 105-414.

There is no merit in the suggestion made in the court below that the movant Lewis was entitled pro confesso to the reimbursement demanded because his petition in the cause was not answered within thirty days after it was filed. It is enough to say that the petition and notice of motion were not served upon either the plaintiffs or their attorney, State ex rel. Utilities Commission v. Martel Mills Corporation, 232 N.C. 690, 62 S.E.2d 80, and it appears that the plaintiffs filed answer before the return date designated in the notice. Therefore, we do not reach for decision the effect of failure to answer a petition in the cause duly served upon the adversary parties.

Reversed.