Johnston County v. . Stewart

Supreme Court of North Carolina

Johnston County v. . Stewart

7 S.E.2d 708, 217 N.C. 334, 1940 N.C. LEXIS 234

CourtSupreme Court of North Carolina

DecidedMarch 27, 1940

StatusPublished

Cited by16 cases

This text of 7 S.E.2d 708 (Johnston County v. . Stewart) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Johnston County v. . Stewart, 7 S.E.2d 708, 217 N.C. 334, 1940 N.C. LEXIS 234 (N.C. 1940).

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Opinion

Devin, J.

The power of the court to order additional parties made even after judgment was recognized in Daniel v. Bethell, 167 N. C., 218, 83 S. E., 307.

Judgments in tax foreclosure suits to which the real owners of the property or those holding registered liens thereon are not made parties are not binding upon such owners and lienors, and they are not barred thereby from asserting their rights in the property or from setting up defenses to the action. Beaufort County v. Mayo, 207 N. C., 211, 176 S. E., 753; Buncombe County v. Penland, 206 N. C., 299, 173 S. E., 609; Hill v. Street, 215 N. C., 312, 1 S. E. (2d), 850. When the appellants were brought into the case by the service of summons, it was their first opportunity to be heard, and they had the right to set up any defect of *336 which they were advised in the original proceeding. This they have done by demurring to the complaint on the ground that the description of the property therein contained was too vague and indefinite to constitute the basis for a valid judgment. The only description of the property in the complaint is that “there was listed in the name of Mrs. D. J. Stewart the following described land: “4 lots lying and being in Banner Township, Johnston County.” It is apparent that the description is neither sufficient in itself, nor capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers. Harris v. Woodard, 130 N. C., 580, 41 S. E., 790; Rexford v. Phillips, 159 N. C. 213, 74 S. E., 337; Speed v. Perry, 167 N. C., 122, 83 S. E., 176; Higdon v. Howell, 167 N. C., 455, 83 S. E., 807; Bissette v. Strickland, 191 N. C., 260, 131 S. E., 655; Bryson v. McCoy, 194 N. C., 91, 138 S. E., 420; Katz v. Daughtrey, 198 N. C., 393, 151 S. E., 879; Self Help Corp. v. Brinkley, 215 N. C., 615, 2 S. E. (2d), 889; C. S., 992.

The demurrer should have been sustained, with right to the plaintiff to move for leave to amend in accordance with the provisions of C. S. 515. Cody v. Hovey, 216 N. C., 391; Scott v. Harrison, ante, 319.

The judgment overruling the demurrer in the respect herein pointed out is

Beversed.

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Devin, J.

The power of the court to order additional parties made even after judgment was recognized in Daniel v. Bethell, 167 N. C., 218, 83 S. E., 307.

Judgments in tax foreclosure suits to which the real owners of the property or those holding registered liens thereon are not made parties are not binding upon such owners and lienors, and they are not barred thereby from asserting their rights in the property or from setting up defenses to the action. Beaufort County v. Mayo, 207 N. C., 211, 176 S. E., 753; Buncombe County v. Penland, 206 N. C., 299, 173 S. E., 609; Hill v. Street, 215 N. C., 312, 1 S. E. (2d), 850. When the appellants were brought into the case by the service of summons, it was their first opportunity to be heard, and they had the right to set up any defect of *336 which they were advised in the original proceeding. This they have done by demurring to the complaint on the ground that the description of the property therein contained was too vague and indefinite to constitute the basis for a valid judgment. The only description of the property in the complaint is that “there was listed in the name of Mrs. D. J. Stewart the following described land: “4 lots lying and being in Banner Township, Johnston County.” It is apparent that the description is neither sufficient in itself, nor capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers. Harris v. Woodard, 130 N. C., 580, 41 S. E., 790; Rexford v. Phillips, 159 N. C. 213, 74 S. E., 337; Speed v. Perry, 167 N. C., 122, 83 S. E., 176; Higdon v. Howell, 167 N. C., 455, 83 S. E., 807; Bissette v. Strickland, 191 N. C., 260, 131 S. E., 655; Bryson v. McCoy, 194 N. C., 91, 138 S. E., 420; Katz v. Daughtrey, 198 N. C., 393, 151 S. E., 879; Self Help Corp. v. Brinkley, 215 N. C., 615, 2 S. E. (2d), 889; C. S., 992.

The demurrer should have been sustained, with right to the plaintiff to move for leave to amend in accordance with the provisions of C. S. 515. Cody v. Hovey, 216 N. C., 391; Scott v. Harrison, ante, 319.

The judgment overruling the demurrer in the respect herein pointed out is

Beversed.

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7 S.E.2d 708, 217 N.C. 334, 1940 N.C. LEXIS 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-county-v-stewart-nc-1940.

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