Opinion
(Decided 24 May, 1898.)
Action to Remove Cloud on Title — Tax Deed — Description — Trial.
1. In the trial of an action to remove a cloud upon title cast by a tax deed inadvertently given for a tract different from the one advertised and sold for taxes, it is not necessary for the person whose land has been so inadvertently conveyed to do more than to show a deed or a will to the property antedating the sale or such adverse possession as would give title in fee.
2. A notice of tax sale described the land as situated on a river, adjoining the lands of F. on the north and R. on the east. The land conveyed by the sheriff was, in fact, a mile and a quarter from the river and adjoined the lands of R. on the north and did not touch the lands of F. at all. Held, that the deed was inoperative, the description not being such as might be cured under the statute relating to tax deeds but a description which did not fit the land that was advertised and sold by the sheriff.
ACTION, tried at August Term, 1897, of BUNCOMBE, before Norwood, J., and a jury. The action was brought by the plaintiff (under ch. 6, Laws 1893) as the owner, by purchase under foreclosure of a mortgage, of certain lands for which the defendant held a deed from the tax collector. The facts sufficiently appear in the opinion. There was a verdict for the plaintiff on the issues submitted and from the judgment thereon the defendant appealed.
W. B. Gwyn and Merrimon Merrimon for plaintiffs.
F. A. Sondley and R. O. Burton for defendant.
This action was brought by the plaintiff, who is in possession of the tract of land described in the complaint, under (742) ch. 6, Laws 1893 — to have an adverse claim of defendant to the land determined. The defendant in his answer set up a deed made to him, by a tax collector, to the land and prays to be put in possession of the same. The defendant contends that, under sub-section 3, section 66, ch. 297, Laws 1893, under the head of "conclusive evidence of facts," the plaintiff, as a matter preliminary, must first show that he or the person under whom he claims title had title to the land at the time of the sale, and that all taxes due upon the land have been paid by the plaintiff or the person under whom he claims title, and the defendant further insists that the decision of this Court in the case of Moore v. Byrd, 118 N.C. 688, changes the burden of proof even where the purchaser at the tax sale brings the suit to recover the land and makes the tax deed prima facie title. We are of opinion that, in this action, the plaintiff had complied with the requirements of the statute and with the spirit of the decision in the case of Moore v. Byrd, supra, as to proof of title in the person from whom he claims. We think that it is not necessary, in suits involving title to land claimed by one of the parties through a tax title, for the person whose land has been sold for taxes to do more than to show a deed or a will to the property antedating the day of sale, or such adverse possession as would give title in fee. The ordinary rules of proving titles in actions between parties for the possession of land ought not to prevail in suits of this nature where the sheriff's deed for taxes is the chain through which both of the parties claim. Without any additions on either side the title to the land is out of the State because, by a sale of the land for taxes, the State by authority of the sale admits title out of itself and to be in the person whose land is sold for taxes at the time of sale. And, besides, (743) both the claimant under the tax sale and the former owner are claiming under the same title. The plaintiff, having met this difficulty as we think, according to the proper construction of the statute, insists that there has been an entire omission to sell the property and that such omission is fatal to the defendant's deed; that the law would only raise from the deed, if it conveyed the land at all, a presumption that the land was sold for the taxes, and that the testimony shows that the tract of land claimed by the plaintiff was not in point of fact sold by the collector. And we are of the opinion that the view of the law taken by the plaintiff is the correct one; and that the testimony, if believed by the jury (and they did believe it, from their verdict) was such as to render inoperative the deed under which the defendant claims because of its utter failure to convey the land which was actually sold by the collector, and that his Honor was right in instructing the jury to answer the first issue "Yes" if they believed the testimony. The publication of the notice and the report of sale by the tax collector showed that the land which was conveyed in his deed to the defendant was not the land which he sold for taxes. The description of the land in that deed was not a defective description which might be cured under the statute, but it was a description which did not fit the land which was advertised and sold by the collector. That deed did not describe the land which was sold by the collector in any respect but did, with some degree of certainty, describe another tract. The description in the advertisement was "Beaver Dam — Vance, R. B. and Z. F., two-third interest in 156 acres of land on east margin French Broad River, adjoining lands of W. T. Reynold on east and M. J. Fagg on the north," and the description in the sale book is east margin French Broad River adjoining lands of W. T. Reynolds on the east and M. J. Fagg on the north. The testimony showed (the defendant introduced no testimony) that the (744) tract of land described in the complaint did not adjoin the lands of Fagg at all, and only adjoined slightly on the north the lands of Reynolds, and was at its nearest point to the French Broad River from one-quarter to three-eights of a mile away. That part of the description in the defendant's deed from the collector, which is definite and by metes and bounds, is precisely the description given to the land, in which the plaintiffs claim, and the description is that of an entirely different tract of land from the land which the collector sold for taxes. The recent decisions of this Court in the matter of contests over title to land sold for taxes show that the Court is maintaining the act of the Legislature on that subject almost to the letter and in its integrity, but we cannot go to the extent insisted on by the counsel of the defendant in this case. It has been shown by the evidence undisputed that the tract of land which was advertised and sold by the sheriff was not the tract of land conveyed in his deed to the defendant.
Affirmed.