Braswell v. . Richmond County

182 S.E. 148, 208 N.C. 649, 1935 N.C. LEXIS 87

• Court: Supreme Court of North Carolina
• Decided: November 1, 1935
• Status: Published

Opinions

CLARKSON, J., dissenting. This action was heard at September Term, 1933, of the Superior Court of Richmond County, on defendant's demurrer to the complaint on the ground that the facts stated therein as constituting each of the four causes of action on which the plaintiff demands judgment are not sufficient to constitute such cause of action. The demurrer was overruled and defendant excepted and appealed to the Supreme Court.

The defendant's appeal was heard at the Spring Term, 1934, of the Supreme Court. The judgment of the Superior Court overruling the demurrer and allowing defendant time to file its answer to the complaint was affirmed. See Braswell v. Richmond County, 206 N.C. 74, 173 S.E. 41.

A petition for a rehearing of the appeal was filed by the defendant in the Supreme Court on 7 April, 1934, in accordance with Rule 44, Rules of Practice in the Supreme Court, 200 N.C. 811. The petition was duly considered and allowed on 11 July, 1934.

The appeal has been reheard on briefs filed by both the plaintiff and the defendant, and on oral arguments ordered by the Supreme Court. The facts alleged in the complaint and admitted by the demurrer in this action are substantially as follows:

The tax books of Richmond County for the years 1927, 1928, 1929, and 1930, showing the total amount of the taxes levied upon the taxpayers of said county for each of said years, were duly delivered to the plaintiff, as sheriff of said county. It was the duty of the plaintiff to collect all the taxes due the defendant for each of said years, and to account for the same, as required by statute.

The plaintiff, as sheriff of Richmond County, made the settlement for said taxes, during each of said years, as required by statute. In each settlement, plaintiff was charged with the total amount of the taxes due for said year. He was credited with the amount collected by him, in money, and duly paid to the treasurer of Richmond County; he was also credited with the amount allowed by the board of commissioners of Richmond County as due by insolvent taxpayers, and with the aggregate amount of the certificates issued by the plaintiff to the defendant as the purchaser at tax sales made by the plaintiff as required by statute. At the date of each annual settlement, the plaintiff turned over and delivered to the auditor of Richmond County the certificates which had been credited to him in said settlement. The said auditor, since the dates of the said annual settlements, has collected from the taxpayers whose lands had been sold by the plaintiff the amounts shown by the said certificates as due for taxes, interest, penalties, and costs.

The defendant has paid to the plaintiff all the commissions allowed by statute for collection of taxes made by the plaintiff in money for the years 1927, 1928, 1929, and 1930, and has declined to pay to the plaintiff any commissions on the amounts collected by the auditor of Richmond County on the certificates which had been duly credited to plaintiff in his settlements for said years.

In this action the plaintiff demands judgment that he recover of the defendant commissions on the amounts which the auditor of Richmond County has collected on the tax sale certificates delivered to said auditor by the plaintiff.

After further consideration of the statutes pertinent to a decision of the question presented by this appeal, we are of the opinion that the plaintiff is not entitled to recover of the defendant on the facts alleged in his complaint, and that there is error in the judgment overruling the defendant's demurrer to the complaint. For that reason, the judgment is reversed.

Under the provisions of chapter 107, Public-Local Laws of North Carolina, Extra Session 1924, the sheriff of Richmond County is entitled to the commissions allowed by said statute only on the amounts collected by him, as taxes, in money. In his settlement with the treasurer of Richmond County, the said sheriff is entitled to credit for the aggregate amount of the tax sale certificates which he has issued to Richmond County, as the purchaser at tax sales made by him as required by statute. C. S., 8049. After the certificates issued by the said sheriff to said county have been duly allowed to him as credits in his settlement, and have been delivered by him to the auditor of said county, C. S., 8037, the said sheriff has no further liability on account of said certificates, nor has he any right to commissions on amounts thereafter collected by the county auditor, or by any other county official duly authorized to collect or receive money for the county on account of said certificates.

The judgment of this Court on the former appeal in this action is overruled.

Petition allowed.