Moore v. . Sugg

Supreme Court of North Carolina

Moore v. . Sugg

17 S.E. 72, 112 N.C. 233

CourtSupreme Court of North Carolina

DecidedFebruary 5, 1893

StatusPublished

Cited by1 cases

This text of 17 S.E. 72 (Moore v. . Sugg) 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.

Bluebook

Moore v. . Sugg, 17 S.E. 72, 112 N.C. 233 (N.C. 1893).

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Opinion

Avery, J.:

The prohibition embodied in the general act against granting injunctions to prevent the collection of taxes is applicable by its terms only to such as are levied by that particular statute. The law passed at the same session (Acts of 1891, ch. 391) to enable .the sureties of a former Sheriff to protect themselves by the collection of taxes in arrears for the years from 1881 to 1886, both inclusive, contains neither the provision restricting the power of the Courts to grant restraining orders nor the clause usually inserted in such acts forbidding the collection, where the taxpayer shall make affidavit that he has paid the tax; but by a saving clause added to the first section purchasers, without notice, are relieved from the encumbrance of a lien for taxes upon land bought by them.

The plaintiff alleges in his complaint, used as an affidavit on the hearing, that he liad “ no notice, either actual or constructive,” that the propeiTy was encumbered by a claim *235 for unpaid taxes, wliile tlie defendant, in his answer, avers that he had actual notice. Without adverting, therefore, to the many other questions discussed by counsel, it appears that there is a serious dispute in reference to a veiy material fact, and, as under our practice, the answer, however frank, full and fair a denial it may contain, is no longer conclusive as to the right to extraordinary relief, the injunction was very properly continued till the hearing. Blackwell v. McElwee, 94 N. C., 425; Durham v. Railroad, 104 N. C., 261; Caldwell v. Stirewalt, 100 N. C., 201; Whitaker v. Hill, 96 N. C., 2. We do not think that the law, commonly known as the Machinery Act, was intended to apply where the right to collect taxes in' arrears lias been revived by statute, and in the absence of statutory restrictions applicable to his particular case any tax-payer may, therefore, in his own behalf only or on behalf of all others similarly situated, bring an action to enjoin the collection, if they are illegally levied. Sudderth v. Britain, 76 N. C., 458; London v. City of Wilmington, 78 N. C., 109.

It is not necessary now to pass upon the question, whether the filing of the affidavit by .John Murphy on a former occasion was in the nature of an adjudication that the taxes were not due, nor to determine whether the Legislature has the power, by reviving a lien, to defeat intervening rights acquired while it was dormant. Railroad v. Commissioners, 82 N. C., 259. The facts upon which all such questions depend will be fully developed' and the law applicable explained on the trial of the cause. It may be that, after a fuller investigation before the jury, some of the matters about which conflicting affidavits have given rise to dispute will be eliminated from the controversy. There is

No Error.

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Avery, J.:

The prohibition embodied in the general act against granting injunctions to prevent the collection of taxes is applicable by its terms only to such as are levied by that particular statute. The law passed at the same session (Acts of 1891, ch. 391) to enable .the sureties of a former Sheriff to protect themselves by the collection of taxes in arrears for the years from 1881 to 1886, both inclusive, contains neither the provision restricting the power of the Courts to grant restraining orders nor the clause usually inserted in such acts forbidding the collection, where the taxpayer shall make affidavit that he has paid the tax; but by a saving clause added to the first section purchasers, without notice, are relieved from the encumbrance of a lien for taxes upon land bought by them.

The plaintiff alleges in his complaint, used as an affidavit on the hearing, that he liad “ no notice, either actual or constructive,” that the propeiTy was encumbered by a claim *235 for unpaid taxes, wliile tlie defendant, in his answer, avers that he had actual notice. Without adverting, therefore, to the many other questions discussed by counsel, it appears that there is a serious dispute in reference to a veiy material fact, and, as under our practice, the answer, however frank, full and fair a denial it may contain, is no longer conclusive as to the right to extraordinary relief, the injunction was very properly continued till the hearing. Blackwell v. McElwee, 94 N. C., 425; Durham v. Railroad, 104 N. C., 261; Caldwell v. Stirewalt, 100 N. C., 201; Whitaker v. Hill, 96 N. C., 2. We do not think that the law, commonly known as the Machinery Act, was intended to apply where the right to collect taxes in' arrears lias been revived by statute, and in the absence of statutory restrictions applicable to his particular case any tax-payer may, therefore, in his own behalf only or on behalf of all others similarly situated, bring an action to enjoin the collection, if they are illegally levied. Sudderth v. Britain, 76 N. C., 458; London v. City of Wilmington, 78 N. C., 109.

It is not necessary now to pass upon the question, whether the filing of the affidavit by .John Murphy on a former occasion was in the nature of an adjudication that the taxes were not due, nor to determine whether the Legislature has the power, by reviving a lien, to defeat intervening rights acquired while it was dormant. Railroad v. Commissioners, 82 N. C., 259. The facts upon which all such questions depend will be fully developed' and the law applicable explained on the trial of the cause. It may be that, after a fuller investigation before the jury, some of the matters about which conflicting affidavits have given rise to dispute will be eliminated from the controversy. There is

No Error.

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Bluebook (online)

17 S.E. 72, 112 N.C. 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-sugg-nc-1893.

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