The plaintiffs claimed the land known as the Riverside Park, in Asheville, by purchase and deed from C. E. Graham, trustee of Natt Atkinson and P. F. Patton, at sale made 10 August, 1895. The defendants claimed under tax deed of J. H. Weaver, tax collector of Buncombe County, dated 17 April, 1895. The tax sale was for the taxes of 1892 and was made by D. L. Reynolds, tax collector, on 22 May, 1893, and the land was bid off by the county. On 12 March, 1895, Graham, the trustee, paid Weaver, the tax collector, the taxes in full, due upon the land for 1892, and Weaver entered the fact of redemption upon his "Redemption Book." *Page 301
On 1 April, 1895, the county commissioners passed this order:
"Ordered, that J. H. Weaver, tax collector, be instructed to transfer to A. H. C. E. Lyman all the tax sales for 1892 and 1893, making deeds for 1892 sales and certificates for 1893; the certificates to be paid for now; the deeds to be paid for by 1 June, 1895."
It was in pursuance of this order that Weaver made the deed (435) to the defendants of 17 April, 1895. There was considerable contention and evidence pro and con whether this deed had a seal to it at the time of execution. In response to an issue, the jury found it was affixed in the fall of 1896. The case, however, turned upon the effect of the tardy payment of the taxes of 1892 by Graham, trustee, in 1895. The defendants contended that such payment was made without authority on the part of Weaver, then tax collector, to receive the taxes, interest and costs, in redemption of the property.
The fifth issue was, "Are plaintiffs owners of land sued for and described in the complaint?" His Honor instructed the jury that if they believed all the evidence, to answer this issue "Yes," which they did.
Defendants excepted. Judgment for plaintiffs. Appeal by defendants. This action was brought for the recovery of the possession of certain real estate situated in the city of Asheville, N.C. the right of the plaintiffs to recover being resisted by the defendants, who claim the property under a certain deed executed by J. H. Weaver, once a tax collector of Buncombe County, the deed bearing date 17 April, 1895.
In making out their title to the property the plaintiffs introduced as one of the evidences a deed of trust, dated 30 May, 1892, from Natt Atkinson and wife and P. E. Patton and wife to C. E. Graham. One of the exceptions of the defendants is to the ruling of his Honor in receiving this deed in evidence. The exception is, that the (436) deed was not properly registered, because the probate failed to direct its registration. A copy of the deed is not in the case on appeal, nor is the language of the probate set out so that we can see whether the same embraced an order for registration in sufficient form. The exception is not in such shape as that we can take notice of it. However, there is no reference to the exception in the brief of the defendant, and it may be presumed that it was abandoned. The deed was, in fact, registered, and there is nothing before us upon which we could say that it *Page 302 was registered improperly. That was the only objection made to the plaintiff's evidences of title; and unless the deed from the tax collector to the defendants is such a one as to convey the property to the defendants, the plaintiffs have made out their title and are entitled to the possession of the property.
It appeared in the case that the property was sold by D. L. Reynolds in 1893, and bid off by the county commissioners of Buncombe; that some time after the time in which the law allows redemption of real estate which has been sold for taxes, by the owners, the commissioners ordered Weaver to make a deed for the property, and that the same was done, the deed bearing date 17 April, 1895. The jury, however, found, in response to the fourth issue, that the property had been redeemed at the time the defendant took his deed for the same.
The defendants contended that the instructions of his Honor upon the fourth issue were erroneous, alleging that there was no evidence tending to show that Weaver, the tax collector, had any authority from the commissioners to receive from the plaintiffs the taxes, interest and costs in redemption of the property. The evidence was not as direct and as clear as it might have been on the point, but we are of the (437) opinion that it was sufficient to be submitted to the jury. Weaver himself testified that he did not have the tax books for 1892 in his hands when he received from the plaintiffs the taxes of 1892, but he said he received the redemption money, and throughout his testimony he constantly referred to the redemption book and to his receiving money upon it.
The property having been redeemed by the plaintiffs before the order of the county commissioners was made directing the tax collector, Weaver, to make a deed to the property to the defendants (even if the order was of any validity), the deed was of no effect, and his Honor's instruction to the jury to answer the fifth issue — "Are the plaintiffs owners of the land sued for and described in the complaint?" — "Yes," if they believed all the evidence, was correct.
NO ERROR.
Cited: S.C., 126 N.C. 542. *Page 303