majority"> *582 Brogden, J.

Can tbe owner of a tax sale certificate maintain an action of foreclosure after tbe lapse of eighteen months from tbe date of tbe certificate?

Tbe applicable statutes create a lien for purchasers at tax sales, and also prescribe tbe procedure for enforcing said lien. “Foreclosure” is tbe process provided for turning tbe lien into money. Whether such lien be a plain lien arising from tbe bare purchase at tbe sale or payment of taxes or such as may be evidenced by a certificate of sale executed by tbe proper officers, tbe sovereign may proceed under C. S., 7990, to foreclose tbe lien, in which event no statute of limitations is applicable. But even if tbe sovereign elects or chooses to foreclose tbe sale certificate, C. S., 8037, sets tbe time clock on eighteen months from tbe date of tbe certificate, and after tbe lapse of that period, tbe remedy is ineffective. New Hanover County v. Whiteman, 190 N. C., 332, 129 S. E., 808; Shale Products Co. v. Cement Co., 200 N. C., 226, 156 S. E., 777; Wilkes County v. Forester, 204 N. C., 163.

It appears from tbe complaint that tbe First National Bank of Charlotte purchased tbe tax sale certificate from tbe county of Mecklenburg, and that thereafter tbe bank failed and tbe plaintiff as receiver thereof instituted an action to sell tbe land of tbe defendant upon tbe theory that tbe tax sale certificate constituted a prior lien upon tbe premises. In paragraph twelve of tbe complaint tbe plaintiff declares that tbe action is brought in accordance with C. S., 7990, but in paragraph eight it is alleged that tbe plaintiff bank duly took an assignment of a tax sale certificate for tbe property “and tbe First National Bank thereby acquired tbe lien of tbe county of Mecklenburg for 1928 taxes of L. W. Humphrey upon tbe real estate.” Consequently, interpreting tbe complaint as a whole, it appears that tbe tax sale certificate is in fact tbe basis of tbe cause of action. Tbe North Carolina Code, 1931, section 8028, declares in plain English that a bolder of a tax sale certificate “shall have tbe right of foreclosure of said certificate of sale by civil action, and this shall constitute tbe sole right and only remedy to foreclose tbe same.”

It appears from tbe complaint that tbe sale was made in June, 1929, and that tbe plaintiffs acquired tbe certificate in November, 1930, and that tbe action was brought on 28 January, 1932. Hence, tbe sole remedy available to plaintiff • upon bis certificate was barred at tbe time tbe action was instituted.

Notwithstanding, tbe judgment must be reversed, because tbe defendant cannot take advantage of the bar of tbe statute of limitations by demurrer. C. S., 405.

Reversed.

Citation profile

How this case has been treated — in progress