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176 N.C. 202

Sutton v. Dunn

Supreme Court of North Carolina

Decided October 9, 1918

Supreme Court of North Carolina · decided 1918-10-09

<p>1. Deeds and Conveyances — Cancellation of Instruments — Fraud — Evidence — Tax Deeds.</p> <p>Evidence tending to show that the defendant bought plaintiff’s land at a tax sale, for the amount of taxes due, while the latter was confined at home with sickness, and, before the time for redemption had passed, received from him a payment thereon, with assurances that he would protect the plaintiff’s interest, and, with continued assurances, received several payments upon the taxes due, until he had.greatly overpaid himself; that he had obtained the tax deed, and imposed upon the defendant by giving him, an illiterate man, receipts as for rent, are reasonable and permissible inferences of the defendant’s design to wrongfully secure the land at a nominal sum, and sufficient to be submitted to the jury in a suit to-cancel the tax deed for fraud in its procurement.</p> <p>2. Judgments — Justices’ Courts — Appeal—Estoppel.</p> <p>Judgment in proceedings in summary ejectment, brought before a justice of the' peace, wherein the plaintiff has set up a tax deed to the defendant’s land to show title in himself, will not operate as an estoppel against the defendant’s right to maintain a suit in the Superior Court to remove the tax deed as a cloud upon his title, when the proceedings in ejectment are still pending in the Superior Court on appeal, the trial in the latter-court being de novo and the justice’s judgment not a final one.</p>

Decided 1918-10-09

AlleN, J.

¶1It was admitted by tbe defendant tbat tbe tax receipt be beld was for $12.10, with $1.05 costs, and tbat tbe plaintiff bad paid bim $26.50, for wbicb be gave tbe plaintiff a receipt for $4 on taxes, and receipts for $22.50 purporting to be for rents.

¶2Tbe plaintiff testified tbat all of bis payments were on tbe taxes and were accepted as sucb by tbe defendant; tbat be went to tbe defendant before tbe tax deed was executed, and wben be bad tbe right to redeem, and told bim be wished to pay tbe taxes, but could not pay all at one time, and tbe defendant told bim be would take it any way be could pay it; tbat be continued making bis payments on tbe taxes, and tbat the defendant, in violation of bis agreement, procured tbe execution of tbe tax deed.

¶3It is a permissible and reasonable inference from tbis evidence tbat tbe defendant bad conceived tbe plan of securing for himself for twelve or thirteen dollars tbe lot of tbe plaintiff, and tbat in order to carry bis plan into execution and prevent a redemption until tbe time bad passed, be told the plaintiff be would take tbe taxes any way be could pay them, and tbat to cover up bis conduct and further strengthen bis claim, be continued to accept payments after be received bis deed, and gave tbe plaintiff, who could not read, fraudulent receipts, showing on their face they weré for rent'; and tbis is, in our opinion, sufficient to justify submitting tbe question of fraud to tbe jury.

¶4Tbe proceeding in summary ejectment before tbe justice was not competent as an estoppel upon tbe plaintiff, for wbicb purpose it was offered, because, as stated in tbe answer of tbe defendant, it is still pending in tbe Superior Court on appeal, where it will be tried de- novo, and none of tbe rights of tbe parties have been finally determined.

¶5We find no error in tbe trial.

¶6No error.

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