ClabksoN, J.
The record discloses that on 1 May, 1928, Frank Coxe owned two tracts of land totalling 170 acres in Madison County, North Carolina, which was deeded to him on 5 May, 1926, by Tony Ball and wife, Harriet S. Ball. The deed was duly recorded in the register of deeds office for Madison County, N. C. At the time of the purchase of said property Coxe executed and delivered to George M. Pritchard, trustee, a deed of trust on said land to secure certain promissory notes for balance purchase money, aggregating $12,072. The deed of trust was duly recorded in the register of deeds office for Madison County, North Carolina. Sallie Potter Coxe is the owner in due course of five of said notes of $503 each, totalling $2,515 which are unpaid and owing. The land was duly listed for tax for the year 1927 by the agent of Frank Coxe and the tax paid. Thereafter the agent died. The record discloses: “Copied from 1927 tax list: Questions not applicable to taxpayer need not be answered. Blank for listing real estate and personal property. 1 May, 1928. (1) Name, Coxe, Frank E. (N. R.). (2) Post-office address, Asheville. (3) Township No. 1, Ward 1. (4) Age, if male, for poll tax. (5) Race: White (X); Indian .; Negro. (1) Real estate outside cities. (4) Real estate inside cities. No. acres 170 description, value, $4,260, No. lots, name of street, value.” The original tax list sheet is not signed by anyone.
The land was sold for the tax for the year 1928 amounting to $98.20 and bought by Madison County and the alleged tax sale certificate was foreclosed. A motion to set aside the judgment, accompanied by a petition setting forth certain facts was filed in the cause before the clerk of the Superior Court of Madison County, North Carolina, on
24 March, 1932, by George M. Pritchard, trustee, Sallie Potter Coxe, Frank Coxe and Julia Lord Coxe.
The court below found the facts and there was sufficient competent evidence on the record to sustain same. The plaintiff did not demand a jury trial if there were disputed facts to be passed on by a jury, nor did the plaintiff consent to the findings of fact. The plaintiff did make many exceptions and assignments of error to the facts as found. We think they cannot be sustained from the view we take of this case. The findings of fact support the judgment and there being sufficient competent evidence to sustain them this is conclusive in this Court.
Holmes Electric Co. v. Power Co.,
197 N. C., 766.
Colvard v. Dicus,
198 N. C., 270;
Morris v. Y. & B. Corporation,
198 N. C., at p. 708;
Chandler v. Conabeer,
198 N. C., at p. 758;
Roebuck v. Surety Co.,
200 N. C., at p. 199.
We think that on the entire record in this case on the undisputed facts plaintiff is not entitled to recover. The case was properly in the Superior Court.
In
Sneed v. Highway Company,
194 N. C., at pp. 47, 48, is the following: “The judge of the Superior Court, in the exercise of his supervisory power, may require the clerk to send up the appeal, or transfer the case to the civil-issue docket for trial, which seems to have been done in the instant proceeding.
Hicks v. Wooten,
175 N. C., 597;
R. R. v. King,
125 N. C., 454.” C. S., 636;
Howard v. Hinson,
191 N. C., 366;
Light Company v. Reeves,
198 N. C., 404.
The court below found the following facts: “That on .... March, 1932, Frank Coxe and wife, Julia Lord Coxe, George M. Pritchard, trustee, and Sallie Potter Coxe, filed a petition in the cause, before the clerk of the Superior Court of Madison County, and moved to set aside the interlocutory decree and judgment of confirmation in the above cause and dismiss the action, which matter was duly heard before the clerk of the Superior Court, and petitioners’ motion denied, and an appeal was duly taken to this Court; that the petitioners herein had no notice of the institution of said action or the entering of said judgments and decrees and orders until some time during the latter part of November or the first of December, 1931.
“That on 1 May, 1928, Frank Coxe was the owner of the property described in the complaint in this cause, and said property was not listed for taxes for the year 1928 by the said Frank Coxe, or by his agent duly authorized or with his knowledge, consent or procurement, or by the board of county commissioners, as prescribed by statute, the only listing of said property being as shown by a copy of said list sheet hereto attached and made a part of this finding of fact.”
We think the case of
Phillips v. Kerr,
198 N. C., at pp. 254 and 255, decisive of this case: “The question is to he determined by the law which was in force in 1923 and 1924. Public Laws, 1923, chap. 12. This act contains the sections upon which rests the decision in
Rexford v. Phillips, supra
(159 N. C., 213). Sections 5217, 5222, 5227 of the Revisal, cited in the opinion, are brought forward in the act of 1923 as sections 23, 30, 27. They provided that the owner in person shall make a return of his property under oath, or in certain cases by an agent. Revisal, 5218, act 1923, sec. 24. If the owner fails to make such return the chairman of the hoard of commissioners shall list the description and valuation of the property not given in for taxation. Revisal, 5233, act 1923, see. 75. And if such property is omitted from the list the board of commissioners by the chairman shall add to the simple taxes of the current year all taxes due for preceding years with 25 per centum in addition to the tax with which the owner would otherwise he chargeable. Revisal, 5232, act 1923, sec. 75. The defendants say, however, that the list taker has authority to list the property of a delinquent owner by virtue of the act of 1917. Public Laws, 1917, chap. 234, sec. 25, act 1923, sec. 25, C. S., 7925. This statute makes it the duty of the county commissioners and the several list takers
‘to
be constantly looking out for property which has not been listed for taxation.’ Such property when discovered shall be duly placed upon the assessment list and properly assessed for taxation. By whom? By the chairman of the board of commissioners. He alone is charged with the duty of entering upon the tax list property not given in by the owner or his agent. Act 1923, sec. 75;
Rexford v. Phillips, supra.
He must not only list the property; he must impose the prescribed penalty. To this end the list taker should upon discovery return to the commissioners any property not listed for taxation. Whether his discovery is before or after the tax list has been turned over to the sheriff he must return the unlisted property to the clerk of the hoard of commissioners. Section 75. The unavoidable conclusion, we think, is this: that the lots in controversy had not been legally listed when the purported sale was made, and that the sheriff’s deed conveyed no title.”
The question in this case is to he determined by the law in force at the time for listing the property for taxes. Public Laws, 1927, chap. 71. On examination we find that the law is practically the same as the Revisal, secs. 5217, 5218, 5222, 5227, 5232, 5233. Revisal of 1905, Yol. 2.
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ClabksoN, J.
The record discloses that on 1 May, 1928, Frank Coxe owned two tracts of land totalling 170 acres in Madison County, North Carolina, which was deeded to him on 5 May, 1926, by Tony Ball and wife, Harriet S. Ball. The deed was duly recorded in the register of deeds office for Madison County, N. C. At the time of the purchase of said property Coxe executed and delivered to George M. Pritchard, trustee, a deed of trust on said land to secure certain promissory notes for balance purchase money, aggregating $12,072. The deed of trust was duly recorded in the register of deeds office for Madison County, North Carolina. Sallie Potter Coxe is the owner in due course of five of said notes of $503 each, totalling $2,515 which are unpaid and owing. The land was duly listed for tax for the year 1927 by the agent of Frank Coxe and the tax paid. Thereafter the agent died. The record discloses: “Copied from 1927 tax list: Questions not applicable to taxpayer need not be answered. Blank for listing real estate and personal property. 1 May, 1928. (1) Name, Coxe, Frank E. (N. R.). (2) Post-office address, Asheville. (3) Township No. 1, Ward 1. (4) Age, if male, for poll tax. (5) Race: White (X); Indian .; Negro. (1) Real estate outside cities. (4) Real estate inside cities. No. acres 170 description, value, $4,260, No. lots, name of street, value.” The original tax list sheet is not signed by anyone.
The land was sold for the tax for the year 1928 amounting to $98.20 and bought by Madison County and the alleged tax sale certificate was foreclosed. A motion to set aside the judgment, accompanied by a petition setting forth certain facts was filed in the cause before the clerk of the Superior Court of Madison County, North Carolina, on
24 March, 1932, by George M. Pritchard, trustee, Sallie Potter Coxe, Frank Coxe and Julia Lord Coxe.
The court below found the facts and there was sufficient competent evidence on the record to sustain same. The plaintiff did not demand a jury trial if there were disputed facts to be passed on by a jury, nor did the plaintiff consent to the findings of fact. The plaintiff did make many exceptions and assignments of error to the facts as found. We think they cannot be sustained from the view we take of this case. The findings of fact support the judgment and there being sufficient competent evidence to sustain them this is conclusive in this Court.
Holmes Electric Co. v. Power Co.,
197 N. C., 766.
Colvard v. Dicus,
198 N. C., 270;
Morris v. Y. & B. Corporation,
198 N. C., at p. 708;
Chandler v. Conabeer,
198 N. C., at p. 758;
Roebuck v. Surety Co.,
200 N. C., at p. 199.
We think that on the entire record in this case on the undisputed facts plaintiff is not entitled to recover. The case was properly in the Superior Court.
In
Sneed v. Highway Company,
194 N. C., at pp. 47, 48, is the following: “The judge of the Superior Court, in the exercise of his supervisory power, may require the clerk to send up the appeal, or transfer the case to the civil-issue docket for trial, which seems to have been done in the instant proceeding.
Hicks v. Wooten,
175 N. C., 597;
R. R. v. King,
125 N. C., 454.” C. S., 636;
Howard v. Hinson,
191 N. C., 366;
Light Company v. Reeves,
198 N. C., 404.
The court below found the following facts: “That on .... March, 1932, Frank Coxe and wife, Julia Lord Coxe, George M. Pritchard, trustee, and Sallie Potter Coxe, filed a petition in the cause, before the clerk of the Superior Court of Madison County, and moved to set aside the interlocutory decree and judgment of confirmation in the above cause and dismiss the action, which matter was duly heard before the clerk of the Superior Court, and petitioners’ motion denied, and an appeal was duly taken to this Court; that the petitioners herein had no notice of the institution of said action or the entering of said judgments and decrees and orders until some time during the latter part of November or the first of December, 1931.
“That on 1 May, 1928, Frank Coxe was the owner of the property described in the complaint in this cause, and said property was not listed for taxes for the year 1928 by the said Frank Coxe, or by his agent duly authorized or with his knowledge, consent or procurement, or by the board of county commissioners, as prescribed by statute, the only listing of said property being as shown by a copy of said list sheet hereto attached and made a part of this finding of fact.”
We think the case of
Phillips v. Kerr,
198 N. C., at pp. 254 and 255, decisive of this case: “The question is to he determined by the law which was in force in 1923 and 1924. Public Laws, 1923, chap. 12. This act contains the sections upon which rests the decision in
Rexford v. Phillips, supra
(159 N. C., 213). Sections 5217, 5222, 5227 of the Revisal, cited in the opinion, are brought forward in the act of 1923 as sections 23, 30, 27. They provided that the owner in person shall make a return of his property under oath, or in certain cases by an agent. Revisal, 5218, act 1923, sec. 24. If the owner fails to make such return the chairman of the hoard of commissioners shall list the description and valuation of the property not given in for taxation. Revisal, 5233, act 1923, see. 75. And if such property is omitted from the list the board of commissioners by the chairman shall add to the simple taxes of the current year all taxes due for preceding years with 25 per centum in addition to the tax with which the owner would otherwise he chargeable. Revisal, 5232, act 1923, sec. 75. The defendants say, however, that the list taker has authority to list the property of a delinquent owner by virtue of the act of 1917. Public Laws, 1917, chap. 234, sec. 25, act 1923, sec. 25, C. S., 7925. This statute makes it the duty of the county commissioners and the several list takers
‘to
be constantly looking out for property which has not been listed for taxation.’ Such property when discovered shall be duly placed upon the assessment list and properly assessed for taxation. By whom? By the chairman of the board of commissioners. He alone is charged with the duty of entering upon the tax list property not given in by the owner or his agent. Act 1923, sec. 75;
Rexford v. Phillips, supra.
He must not only list the property; he must impose the prescribed penalty. To this end the list taker should upon discovery return to the commissioners any property not listed for taxation. Whether his discovery is before or after the tax list has been turned over to the sheriff he must return the unlisted property to the clerk of the hoard of commissioners. Section 75. The unavoidable conclusion, we think, is this: that the lots in controversy had not been legally listed when the purported sale was made, and that the sheriff’s deed conveyed no title.”
The question in this case is to he determined by the law in force at the time for listing the property for taxes. Public Laws, 1927, chap. 71. On examination we find that the law is practically the same as the Revisal, secs. 5217, 5218, 5222, 5227, 5232, 5233. Revisal of 1905, Yol. 2. Section 5232 is as follows: “In all cases where the board of commissioners shall have omitted, or in any future year shall omit to enter upon the duplicate of their county any land or town lots situated within their county subject to taxation, it shall he their duty when they enter
the same to duplicate the next succeeding year to add to the taxes o£ the current year the simple taxes of each and every preceding year in which such land or town lots shall so have escaped taxation, with twenty-five per centum in addition thereto, so far back as the said lands have escaped taxation,” etc. Public Laws, 1921, chap. II, sec. 12.
Revisal,
supra,,
sec. 5233: “The chairman of the board of commissioners shall examine the tax list from each township for the previous year and insert in said list the description and valuation of all property not given in, and shall charge all such persons with double the tax with which they would otherwise be chargeable unless satisfactory excuse therefor be rendered to the board of commissioners,” etc.
Public Laws, 1927, chap. 71, sec. 73: “The chairman of the board of commissioners shall examine the tax list from each township for the previous year,
and insert in said list the description and valuation of all properly not given in,
and shall charge all such persons
with twenly-five per centum
in addition to the tax with which they would otherwise be chargeable, unless satisfactory excuse therefor be rendered to the board of commissioners on or before the first Monday in October. ... It shall be the duty of the commissioners of each county to employ a competent man whose duty it shall be to spend such time as the commissioners may deem necessary to make diligent search for property not listed for taxes, and to put such property on the tax books,” etc.
Section 73, chap. 71 of Public Laws of 1927, must be construed as a whole, not piecemeal.
“To put such property on the tax boolcs.”
The record discloses a competent man was employed, but he was to find the delinquent, and it was the duty of the chairman of the board of commissioners to administer on the jiarty for his omission in accordance with the statute. This was not done. This duty cannot be delegated to another. The alleged listing never had life.
In the present case the plaintiff contends that the
Phillips case, supra,
is not applicable as it “did not originate from a foreclosure procedure, but on a tax deed made by the tax collector to the purchaser of the land, at a sale of land by the tax collector for delinquent taxes.” The
Phillips case, supra
(198 N. 0.), is bottomed on the sound principle, which is set forth at p. 256: “The provision in reference to the authoritative listing of property is a basic requirement of the law. This conclusion is reached and upheld in
Rexford v. Phillips, supra,
and in
Price v. Slagle,
189 N. C., 757.”
Plaintiff cites
Orange Co. v. Wilson,
202 N. C., 424, at p. 427, it is clearly stated: “Besides, the trustees of the petitioners were parties defendant and were served with process.”
Gammon v. Johnson,
126 N. C., 64;
Jones v. Williams,
155 N. C., 179.
Frank Coxe, the owner of the land in controversy, made certain purchase money notes aggregating $12,072, secured by deed in trust to Geo. M. Pritchard, trustee. The deed in trust was duly recorded in Madison County, North Carolina. Sallie Potter Coxe was the owner of five of the notes totalling $2,515. The land was regularly listed on 1 May, 1927, for the 1927 tax for $4,260, by Frank Coxe’s agent, who thereafter died. For that listing Frank Coxe’s postoffice address was shown as Asheville. The plaintiff, Madison County, sold the land without complying with the law as to listing the property for tax for the year 1928. The tax amounted to $98.20, and was bought in by Madison County and it foreclosed the tax sale certificate without giving Frank Coxe, the owner, or George M. Pritchard, trustee, notice, though they lived in the adjoining county, or the
cestui que
trust, Sallie Potter Coxe.
At the hearing Sallie Potter Coxe offered to pay the taxes and plaintiff would not accept same. These facts, other than the fact that the land was not legally listed for tax for the year 1928, does not appeal to a court of conscience. This is a foreclosure proceeding in a court of equity. The taxes are a lien on the land and will have to be paid to the plaintiff, Madison County, and it must make restitution to the purchasers.
Harnett County v. Reardon,
203 N. C., at p. 272.
Shale Products Co. v. Cement Co.,
200 N. C., 226, at p. 229. For the reasons given the judgment of the court below is
Affirmed.