Opinion

Cherokee County v. McClelland

  • 179 N.C. 127
  • 101 S.E. 492
  • 1919 N.C. LEXIS 24
Court
Supreme Court of North Carolina
Filed
Dec 20, 1919
Status
Published
Author
Brown
On the bench
Hoke, Brown
Cited by
6 cases
Authority
More cited than 11.6%

The opinion

Brown, J.,

dissenting: It is admitted that defendant failed to pay bis taxes for the years 1914-15. His real estate in the town of Murphy was sold by the sheriff, and, for want of bidders, under the statute, was knocked off to the county of Cherokee. It is admitted that notice of the sale was not served upon the defendant as required by Rev., 2889. It must be admitted that in the absence of any such notice the title to the property did not pass by virtue of the sale. The sheriff’s deed is only presumptive evidence of the service of the notice which is completely rebutted in this case by the finding that the notice was never served. It follows, therefore, that the plaintiff has acquired no title to the property by the sale, as the sheriff failed to serve the notice. In Matthews v. Fry, 141 N. C., 582 , this point is expressly decided, and the reason and necessity for such notice are fully stated and sustained by the citation of authorities. In that case Mr. Justice Walker says: “The publication of notice to taxpayers required by tax laws is an indispensible preliminary to the legality of a tax sale, and it must be in strict accordance with the statutory requirements.”

It must be borne in mind that the defendant is not seeking to redeem bis property from one who bad acquired a good title to it at a legal tax sale. If that was the case, the defendant would have to pay the taxes and 20 per cent interest thereon. The plaintiff county, doubtless knowing *133 that it has acquired no title to the property, is not seeking to recover it. The plaintiff seeks only to enforce a lien for the taxes. The defendant has tendered the taxes and six per cent interest, and I am of opinion that the plaintiff is not entitled to recover anything more. The 20 per cent interest is a penalty imposed upon one whose property has been legally sold for taxes, and who is seeking to redeem it from the purchaser. This defendant is not seeking to redeem bis property, for the sale is void. He only asks to pay the taxes, together with the legal 6 per cent interest, and I think he has that right.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.