Coble v. . Dick

140 S.E. 745, 194 N.C. 732, 1927 N.C. LEXIS 195

• Court: Supreme Court of North Carolina
• Decided: December 21, 1927
• Status: Published

Opinion

Olakksou, J.

C. S., 2713, in part, is as follows: “Whenever tbe governing body shall confirm an assessment for a local improvement, tbe clerk of tbe municipality shall enter on tbe minutes of tbe governing-body tbe date, hour and minute of such confirmation, and from the time of such confirmation the assessments embraced in the assessment roll shall be a lien on the read property against which the same are assessed, superior to all other liens and encumbrances.” (Italics ours.)

C. S., 2716, provides tbat payment of assessments can be in cash or by installments.

C. S., 2717, provides bow tbe payment can be enforced.

In Kinston v. R. R., 183 N. C., p. 14, it is termed a “statutory mortgage.” Ba nk v. Watson, 187 N. C., p. 107.

In Hahn v. Fletcher, 189 N. C., at p. 732, it is said: “From tbe facts found tbe covenant in plaintiff’s deed was ‘against encumbrances.’ When defendant delivered tbe deed to plaintiff, this covenant was broken with tbe street assessment — a lien or a statutory mortgage on tbe land. Plaintiff could have at once sued for tbe breach.” In Farrow v. Ins. Co., 192 N. C., p. 148, this encumbrance was held not such as to defeat insurance policy under sole ownership clause. It will be noted in tbe Hahn case, supra, tbe action was tried out on tbe theory tbat tbe justice of tbe peace court bad no jurisdiction. It was so .held — technical but legal. See Comrs. v. Sparks, 179 N. C., p. 581.

In tbe present action tbe agreed statement of fact sets forth, “It is agreed tbat tbe entire question is whether such assessment is an encumbrance as contemplated or included in tbe warranty.” We are not disposed ex mero motu to dismiss tbe action for want of jurisdiction.

Upon tbe facts agreed upon in this case tbe street assessment lien is an encumbrance witbin tbe meaning of tbe warranty clause in tbe deed from defendant to plaintiff. Tbe judgment of tbe court below is

Affirmed.