Powell v. Town of Canton ( 1972 )

HEDRICK, Judge.

Plaintiffs contend the Court erred in allowing defendant’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. “If the complaint discloses an unconditional affirmative defense which defeats the claim asserted or pleads facts which deny the right to any relief on the alleged claim it will be dismissed.” Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970).

Our decision rests on G.S. 105-302 (c) (1), formerly G.S. 105-301 (b), which provides:

“For purposes of this Subchapter: . . . The owner of the equity of redemption in real property subject to a mortgage or deed of trust shall be considered the owner of the property, and such real property shall be listed in the name of the owner of the equity of redemption.”

The allegations in plaintiffs’ complaint establish that when the lien for personal property taxes for 1970 owed by Murphy Chevrolet, Inc., attached, Murphy Chevrolet was the owner of the equity of redemption in the real property subject to the deed of trust given by Murphy Chevrolet, Inc., to secure its indebtedness to plaintiffs.

Thus, we think plaintiffs in their complaint have alleged facts which deny their right to the relief claimed, and the able trial judge properly allowed the defendant’s motion to dismiss.

Affirmed.

Judge Vaughn concurs. Judge Brock concurs in the result.