Overstreet v. City of Raleigh

330 S.E.2d 643 (1985)

Rufus W. OVERSTREET and Gracie L. Overstreet v. The CITY OF RALEIGH.

No. 8410SC1036.

Court of Appeals of North Carolina.

June 18, 1985.

*644 Moore, Van Allen, Allen & Thigpen by C. Steven Mason and William D. Dannelly, Raleigh, for plaintiffs-appellants.

Thomas A. McCormick, Jr., Raleigh, for defendant-appellee.

EAGLES, Judge.

The issue on appeal is whether the trial court properly granted summary judgment, barring plaintiffs' action to quiet title as a matter of law. We find no error.

Summary judgment is proper when there is no genuine issue as to any material fact. G.S. 1A-1, Rule 56(c). It is a drastic remedy, not to be granted "unless it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law." Dendy v. Watkins, 288 N.C. 447, 452, 219 S.E.2d 214, 217 (1975). The burden is on the moving party to establish the lack of any triable issue of fact. The papers of the moving party are carefully scrutinized, while "those of the opposing party are on the whole indulgently regarded." Id. Summary judgment should be denied "[i]f different material conclusions can be drawn from the evidence." Credit Union v. Smith, 45 N.C.App. 432, 437, 263 S.E.2d 319, 322 (1980).

The procedure to foreclose a tax lien on real property is contained in G.S. 105-374, et seq. Our examination of the record reveals that the procedures thereunder were fully complied with by defendant and that *645 plaintiffs' action contesting the validity of the tax foreclosure title was not timely filed pursuant to G.S. 105-377.

Although a matter of first impression in this jurisdiction, we hold that the effect of a judgment foreclosing a tax lien on real property is to extinguish all rights, title and interests in the real property subject to foreclosure, including a claim based on adverse possession. The interest in the disputed property acquired by purchasers at a tax foreclosure sale is fee simple and the purchaser's title defeats claims of ownership based on adverse possession. G.S. 105-374(k), 105-375(i); see, Leciejewski v. Sedlak, 116 Wis.2d 629, 342 N.W.2d 734 (1984).

Concerning the propriety of the notice of the foreclosure sale, we hold that defendant complied with all notice requirements of G.S. 105-374(c). Where defendant gave personal notice to all record owners of the property in question and notice by publication as provided in G.S. 1A-1, Rule 4 to all others having an interest in the disputed property who could not with due diligence be located, defendant was not required to give personal notice to a purported adverse possessor of land whose purported interest was not recorded. Leciejewski v. Sedlak, supra. To hold otherwise would require that every taxing authority in this State seeking to sell land pursuant to a tax foreclosure, conduct an on-site inspection of the land subject to foreclosure in order to determine whether a claim of adverse possession might lie. Such a requirement is not required by the statutes, is unworkable, and would unnecessarily complicate, delay and cloud tax foreclosure sales.

Where the record shows title in defendant pursuant to G.S. 105-374 and where plaintiffs brought their action to quiet title beyond the one year statute of limitation contained in G.S. 105-377, nothing else appearing there are no genuine issues of material fact. Accordingly defendant was entitled to summary judgment as a matter of law.

Affirmed.

WELLS and BECTON, JJ., concur.