This is an action to remove a cloud from title by canceling and setting aside the deed executed by J. M. Smith, sheriff of Richmond, to W. K. Strickland, 19 January, 1900, in pursuance of a sale of land therein described, for taxes. The lands in controversy were listed for taxation by Peter L. Pate in 1897 and were sold by J. M. Smith, sheriff of Richmond, on 4 July, 1898, to satisfy unpaid taxes thereon; no purchaser bid for the lands, which were thereupon bought in by the county. Thereafter W. K. Strickland purchased the certificate of sale from the county, and the sheriff thereupon executed a deed to him. The plaintiff introduced deeds showing that Peter L. Pate owned the land at the time the lands were listed for 1897, and indeed showing a complete paper title back to a grant from the State, unless the same was divested by the tax deed referred to. It was also in proof that the plaintiff D. L. Gore has since succeeded to the title of Pate.
The statute authorizing the sale of land for taxes for the year (480) 1897 and the execution of a deed therefor required, as now, the purchaser at such sale to serve notices upon the owner of the land and the parties in possession and make affidavit that such notice and acts required by the statute had been complied with before he was *Page 386 entitled to a deed, and such affidavit must be registered and given in evidence along with the tax deed in order to vest title in such purchaser. No affidavit was made in this case, and the tax deed was therefore invalid.Mathews v. Fry, 141 N.C. 582; King v. Cooper, 128 N.C. 347.
The statute in force at the time this tax sale was made and the deed executed did not permit a county to become the absolute purchaser of land at a tax sale. But the county could only foreclose the certificate of purchase or foreclose the deed if such deed had been made, instead of issuing a certificate, and the assignee of such county is in no better state than the county. Hence the deed from Smith to Strickland was not a conveyance of the land but at most the assignment of an equity under which to institute proceedings for foreclosure, which was not done. Wilcox v.Leach, 123 N.C. 74; Collins v. Bryan, 124 N.C. 738; Whitman v. Dickey,ib., 741; Collins v. Pettitt, ib., 726; Huss v. Craig, ib., 743; Kerner v.Cottage Co., 126 N.C. 356; Smith v. Smith, 150 N.C. 84.
In Collins v. Pettitt, 124 N.C. 727, there was a dissenting opinion on this last point, and the next Legislature amended the statute (Laws 1901, ch. 558, sec. 18) by requiring the sheriff to execute a deed to the county or its assignee, without foreclosure. This section is now Revisal, 2905. But this sale took place under the statute in force prior to that time.
The plaintiffs tendered the amount of taxes due on the lands before suit brought. Moore v. Byrd, 118 N.C. 688; McMillan v. Hogan, 129 N.C. 314. The deed could, however, be executed by the sheriff after his term expired.
The statute of limitations cannot avail the defendant, since the action is brought to cancel the tax deed in order to remove a cloud from the title of the plaintiffs, who are in possession. Cauley v. Sutton, 150 N.C. 330;Beck v. Merony, 135 N.C. 532.
There was no evidence contradictory to the facts above (481) recited, and the court therefore properly charged the jury that if they believed the evidence they should answer the issues as set out in the record, which are in favor of the plaintiffs. The recitals in the tax deed are evidence, either conclusive or presumptive, under the terms of the statute. But this does not apply when the tax deed itself is attacked for noncompliance with the prerequisites as to giving notice to the owner and parties in possession before the execution of the deed by the sheriff (Revisal, 2884), and when the evidence is uncontradicted that the lands were bought in by the county and assigned to Strickland, who thereby acquired only an equity to foreclose, but not the right to a deed from the sheriff, under the law then in force. *Page 387
The decree therefore properly adjudged upon the issues found that the deed from Smith to Strickland should be canceled upon payment by the plaintiff to the defendant of the taxes due on the land on 6 June, 1898, with 20 per cent per annum interest thereon in accordance with the statute.
No error.
Cited: Lumber Co. v. Pearce, 166 N.C. 592; Kivett v. Gardner,169 N.C. 80; Jordan v. Simmons, ib., 142.