Town of Zebulon v. Dawson

5 S.E.2d 535, 216 N.C. 520, 1939 N.C. LEXIS 32

• Court: Supreme Court of North Carolina
• Decided: November 22, 1939
• Status: Published

Opinion

Barnhill, J.

Equity supplements tbe law. Its office is to supply defects in tbe law where, by reason of its universality, it is deficient, to tbe end tbat rights may be protected and justice may be done as between litigants.

Its character as tbe complement merely of legal jurisdiction rests in tbe fact tbat it seeks to reach and do complete justice where courts of law, through tbe inflexibility of their rules and want of power to adapt their judgments to tbe special circumstances of tbe case, are incompetent so to do. It was never intended tbat it should, and it will never be permitted to, override or set at naught a positive statutory provision. It is an instrument of remedial justice witbin and not in opposition to the law. Equitas sequiter legem.

Tbe statute fixes a rate of interest on street assessments payable in installments. 0. S., 2716 and 2717; Public Laws 1929, ch. 331, sec. 1. The court below was without authority at law or in equity to prescribe a rate of interest less than that fixed by the statute.

Taxes are not subject to set-off or counterclaim. To so hold “would be utterly subversive of the power of the government and destructive of the very end of taxation.” Cooley on Taxation; Gatlin v. Comrs., 92 N. C., 540; Comrs. v. Hall, 177 N. C., 490, 99 S. E., 372; Graded School v. McDowell, 157 N. C., 316, 72 S. E., 1083. We apprehend that the same law applies with equal force to a street assessment due a municipality. By purchasing at a discount a past-due bond of the plaintiff for the purpose of treating the same as an offset or counterclaim to the street assessment due the plaintiff the' defendants created no equity in their behalf. The Court below was in error in taking into consideration the ownership of said bond in attempting to work out alleged equities between the parties.

In actions to foreclose mortgages and other liens upon real property it has long been the practice, when judgment of foreclosure is entered, to provide that the debtor may have a reasonable time within which to redeem, before sale. Ordinarily, a period of 60 days to 4 months is allowed so that the debtor may have an opportunity to refinance the debt without foreclosure. The street assessment at issue was payable in ten equal installments. Nothing has been paid thereon for more than ten years. The plaintiff, as a matter of right, is entitled to its money. There is no principle of equity which would justify a further delay in its payment other than such reasonable time as may be necessary to give defendants an opportunity to attempt to refinance the obligation. The grant of ten years within which to pay the assessment in equal annual installments was unwarranted.

The costs follow the result of the final judgment. Except where otherwise provided by statute, the party cast in the suit is the one upon whom the costs must fall. Ritchie v. Ritchie, 192 N. C., 538, 135 S. E., 458; Kincaid v. Graham, 92 N. C., 154; Williams v. Hughes, 139 N. C., 17, 51 S. E., 790; Smith v. R. R., 148 N. C., 334; Cotton Mills v. Hosiery Mills, 154 N. C., 462, 70 S. E., 910. It was error to tax any part of the costs against the plaintiff.

To the end that a proper judgment may be entered in accord with this opinion this cause is remanded.

Error and remanded.