The plaintiff claimed title to the land described, by virtue of a sale for taxes by J. H. Whitehead, tax collector for Seaboard Township, in May, 1891, for taxes alleged to be due thereon for the year 1890 by Etheridge Brooks, and introduced the tax collector's deed, dated 5 October, 1892, which was admitted under objection.
The defendant offered deed from Etheridge Brooks to J. T. Griffin and others, trustees, dated 25 October, 1889; then a deed from J. T. Griffin and others, trustees, to R. C. Marshall, trustee, for himself and others, dated 6 September, 1890, and filed for registration and registered 13 April, 1894, thirty-one days after this action was commenced. It was admitted that both of said deeds covered the locus in quo.
(42) Verdict for plaintiff, and from the judgment thereon the defendants appealed. This is an action for the possession of a tract of land, the plaintiff claiming title under a certain deed, executed to him on 4 May, 1891, by the tax collector of Seaboard Township. The sale under which the deed was made was for taxes alleged to have been assessed and due upon the land for the year 1890.
When the first appeal was heard by this Court, at it February Term, 1896, the only question presented for our decision was, whether a sheriff's or a tax collector's deed, made under sale of land for taxes where the land was listed in the name of a person not its owner, was prima facie evidence of title. As the case was then constituted, it appeared that the property had been actually listed on the tax list in the names of Etheridge Brooks, persons not the owners. On the first trial his Honor held that the tax collector's deed passed no title to the purchaser, and the jury were instructed to answer the issue as to whether the plaintiff was the owner of the land and entitled to possession, "No." This was held to be error, and the case was sent back for a new trial.
After the decision of the Court, the answer was amended, and it was then averred by the defendants that the tract of land described in the complaint had never been listed for taxation in 1890, and that at the time the sale was made the tax list did not contain the land nor show that it had been listed, either by these defendants or any (43) other person. On the last trial it appeared from the testimony of the officer who made the sale that the copy of the tax list for 1890 given to him by the clerk of the board of county commissioners, and under which he proceeded to make the sale, did not contain the tract of land, and that it was not listed for taxation on the tax list by any person in that year. It was admitted in the argument here by plaintiff's counsel that the tract of land was not actually listed for taxation on the lists of 1890; but it was insisted that the officer, nevertheless, was empowered to sell the land by virtue of an instruction given him by the commissioners to list it and to collect same amounts which he had collected in preceding years, and also by virtue of an order made by the county commissioners at their January meeting, 1891, which is in the following words: "It is ordered by the board, that Mrs. ___________ be allowed to list 195 acres of land, valued at $1,000; also that Etheridge Brooks be allowed to list 350 acres of land, valued at $2,000." It was also argued here that the tax collector was authorized and empowered to make the sale of the land, even though it had not been listed, under the provisions of section 33 of the act, which declares "That the taxes assessed on real property shall be a lien thereon from and including the first day of June in the year in which they are levied, until the same are paid."
The last position is clearly untenable. The lien created by section 33 of the act must be enforced according to law, and nowhere is the tax *Page 66 collector authorized to enforce the lien of his own motion. The authority of the sheriff or tax collector to collect the taxes is given to him in a precise and particular manner in section 32 of the act, in the following words: "The clerk shall indorse on the copies (of the tax list) given to the sheriff an order to collect the taxes therein mentioned, and (44) such order shall have the force and effect of a judgment and execution against the property of the person charged in such list." It is then the tax list, with the order of the clerk to the sheriff to collect indorsed thereon, which is the sheriff's authority to collect, by distraint or otherwise. S. v. McIntosh, 31 N.C. 307; S. v. Woodside,30 N.C. 104. If it should be conceded (which we do not) that, since the decisions in the last-named cases, the law has been changed, so as to raise a presumption that the clerk had done his duty and had indorsed on the tax list the order for collection when he delivered the list to the sheriff, yet still the lists themselves must be in the hands of the sheriff before he can collect the taxes by compulsion or sale.
His Honor, when he instructed the jury to find the issues "Yes," if they believed the testimony, must have had reference to the testimony of the tax collector himself in reference to the verbal instructions which he had received from the commissioners, and to the order of the commissioners at their January meeting, 1891, in which Etheridge Brooks were allowed to list the land. His Honor must have considered these facts, if believed by the jury, to constitute in law a listing and assessment of the property. In this there was error. It is true that, under section 72 of the act, deeds made by the sheriff in cases of the sale of land for taxes are presumptive evidence in suits in relation to the purchase at such sales, that the property had been listed and assessed; but we do not wish to make any ruling by inference of law in the construction of this statute. We take these words, "listed and assessed," in their natural sense and meaning — that is, that they require the property sold to actually appear on the tax list, and that the taxes shall be assessed upon such listing by the competent legal authorities. The tax collector can sell or distrain for taxes due only in cases where the (45) property actually appears on the tax list and has been duly assessed.
In this very case it is almost certain that there was a mistake about the entry permitting Etheridge Brooks to list the property, for they did not list it; and it appears from the proof that they had conveyed the same by deed of 25 October, 1889, to Griffin, Olds Jenkins. But this is an immaterial point and is only meant to point out the danger in the way if the court should receive such entries and such testimony as any evidence whatever of the actual listing and assessment of the property. His Honor should have instructed the jury that, if they believed the testimony, they should find the issues, (1) Is plaintiff the *Page 67 owner of the land described in the complaint? "No"; and (2) Do defendants unlawfully detain said land from plaintiff? "No"; for if the evidence was true, the property had not been listed and assessed, and that the presumption in favor of the deed had been rebutted. The defendants had already introduced competent testimony going to show that, at the time of the sale, the title to the property was either in themselves or in Griffin, Olds, Jenkins, under whom they claim by deed, made 6 September, 1890, and registered 1 April, 1894, a few days after the commencement of this suit; that all the taxes accruing since the sale had been paid by the defendants, and that those for the year 1890 (which the defendants paid during the trial to the county treasurer) the defendants had theretofore, in 1891, offered to pay to the plaintiff, with all costs and the interest required by law in such cases, which the plaintiff refused to receive.
Error.
Cited: Wilcox v. Leach, 123 N.C. 76.
(46)