Phillips v. . Kerr , 198 N.C. 252 ( 1930 )

Action to recover land claimed by the feme defendant under a purported sale for the nonpayment of taxes. In 1923 W. T. Wallace owned the land, described as lots 16 and 18 of the B. L. Herring subdivision, but he did not list it that year for taxes. The list-taker for the township listed it in the name of W. T. Wallace, signed the owner's name, and returned the tax scroll for 1923 with the following entry: "W. T. Wallace, Wallace, N.C. Two lots, White Lake, $600. Signed W. T. Wallace." This was done without the owner's permission, consent or knowledge. Wallace did not pay the taxes for 1923, and on 5 May, 1924, the sheriff sold the lots for the unpaid taxes. On 19 May, 1925, he executed a deed to the county of Bladen for "two lots, Nos. 16 and 18 of the B. L. Herring subdivision, lying and being in Colly Township, listed in the name of W. T. Wallace for taxation for the year 1923." On 11 June, 1925, the county of Bladen executed a deed for the lots under the same description to the feme defendant, and this deed was registered on 2 July, 1925. W. T. Wallace and wife conveyed the lots to E. G. Wells, and Wells and wife thereafter conveyed them to the plaintiff Phillips, who secured the purchase price of $300 by a note and mortgage on the property.

In reference to the issue — "Is the plaintiff L. F. Phillips the owner in fee of the lands described in the complaint?" — his Honor directed an affirmative finding if the jury should find the facts to be as testified by the witnesses. The verdict was against the defendants and to the judgment given thereon they excepted and appealed. In 1923 W. T. Wallace had title to the land in suit, but he neither listed it for taxation nor authorized any one to list it for him. The township list-taker entered the property upon the tax sheet in the name of W. T. Wallace without the latter's direction, knowledge or consent; signed Wallace's name, and made a return of the tax sheet as if the property had been listed by the owner. The plaintiff's contend that the list-taker acted in this particular without authority of law, that in legal contemplation the property was not listed for taxation; that the sale for the nonpayment of taxes was void, and that the sheriff's deed conveyed no title. To support this position they rely upon Rexford v. Phillips, 159 N.C. 213, and subsequent cases in which it is cited and approved. In that case it was held that under the statute authorizing the sale of land for taxes it was necessary to show that the land had been listed for taxes in the manner prescribed by law; that there was no provision in the law for the listing of land by a township list-taker, and that the purported listing there attacked was void. The Court adhered to this principle in Stone v.Phillips, 176 N.C. 457, 460: "We consider it not improper to state further that we have held in Rexford v. Phillips, 159 N.C. 213, that land is not properly listed for taxation, rendering it subject to sale, unless it has been done according to the provisions of law — that is, by the owner or by his duly accredited agent in cases where listing by an agent is permissible. Revisal, secs. 5217-5218. And where neither has acted, the chairman of the board of county commissioners is authorized to list the same under section 5233, etc." The last two cases are approved in Headmanv. Commissioners, 177 N.C. 261, in which the Court points out the distinction between a failure to list property for taxes and a mere listing in the wrong name when the property is sufficiently described. Rexford'scase was again sustained in Cherokee County v. McClelland, 179, N.C. 127.Justice Hoke there said: "In Rexford v. Phillips, 159 N.C. 213, the tax deed was avoided because the land had never been put on the tax list by any one having proper authority for the purpose."

These cases are controlling unless there has been a material change in the statutes prescribing the method of listing property for taxation. As we construe the statutes, no radical change has been made affecting the point under discussion.

The question is to be determined by the law which was in force in 1923 and 1924. Public Laws 1923, ch. 12. This act contains the sections upon which rests the decision in Rexford v. Phillips, supra. Sections 5217, 5222, 5227 of the Revisal, cited in the opinion, are brought forward in the act of 1923 as sections 23, 30, 27. They provide that the owner in person shall make a return of his property under oath, or in certain cases by an agent. Revisal 5218, act 1923, sec. 24. If the owner fails to make such return the chairman of the board of commissioners shall list the description and valuation of the property not given in for taxation. Revisal, 5233, act 1923, sec. 75. And if such property is omitted from the list the board of commissioners by the chairman shall add to the simple taxes of the current year all taxes due for preceding years with 25 per centum in addition to the tax with which the owner would otherwise be chargeable. Revisal 5232, act 1923, sec. 75.

The defendants say, however, that the list-taker has authority to list the property of a delinquent owner by virtue of the act of 1917. Public Laws 1917, ch. 234, sec. 25, act 1923, sec. 25, C. S., 7925. This statute makes it the duty of the county commissioners and the several list-takers "to be constantly looking out for property which has not been listed for taxation." Such property when discovered shall be duly placed upon the assessment list and property assessed for taxation. By whom? By the chairman of the board of commissioners. He alone is charged with the duty of entering upon the tax list property not given in by the owner or his agent. Act 1923, sec. 75; Rexford v. Phillips, supra. He must not only list the property; he must impose the prescribed penalty. To this end the list-taker should upon discovery return to the commissioners any property not listed for taxation. Whether his discovery is before or after the tax list has been turned over to the sheriff he must return the unlisted property to the clerk of the board of commissioners. Sec. 75. The unavoidable conclusion, we think, is this: that the lots in controversy had not been legally listed when the purported sale was made, and that the sheriff's deed conveyed no title.

A tax deed, it is true, is conclusive proof that the manner of listing the property complied with the law, but it is only presumptive proof that the property had been listed. C. S., 8034. Here the undisputed evidence rebuts the presumption. The question was considered in Rexford v. Phillips,supra, and decided adversely to the defendant's contention. Revisal, 2909.

The defendants finally turn to the following clause in section 8034: "No person shall be permitted to question the title acquired by a sheriff's deed made, pursuant to this chapter without first showing that he or the person under whom he claims title had title to the property at the time of the sale, and that all taxes due upon the property have been paid by such person or the persons under whom he claims title."

The party under whom the plaintiff claims had title when the sale was made, and the plaintiff was not required to show that he had paid all the taxes due at the time of the sale. The feme defendant's deed was not made pursuant to or in conformity with the statutes applicable, and in such case the paragraph above quoted does not apply. It applies, not when the deed is void, but when the conveyance passes the title. The provision in reference to the authoritative listing of property is a basic requirement of the law. This conclusion is reached and upheld in Rexford v.Phillips, supra, and in Price v. Slagle, 189 N.C. 757. We find

No error.