Kelly v. Kelly

Annotate this Case

97 S.E.2d 872 (1957)

246 N.C. 174

Peter KELLY v. John KELLY and wife, Betty G. Kelly (Original Parties Defendant), and Franklin County (Additional Party Defendant).

No. 378.

Supreme Court of North Carolina.

May 1, 1957.

*875 John F. Matthews, Louisburg, for plaintiff appellant.

Gaither M. Beam, Edward F. Yarborough, Louisburg, for defendants appellees.

WINBORNE, Chief Justice.

Plaintiff, appellant, assigns as error the ruling of the trial court in allowing motion for judgment as of nonsuit, and the entry of judgment dismissing the action. It is pointed out that the description of the subject matter of suit to foreclose tax sale certificate, as shown upon the face of the judgment roll therein, is insufficient, and fails to meet the requirement of the statute prescribing procedure in such cases.

In this connection the statute, C.S. § 8037, as re-written in Section 4 of Chapter 221, Public Laws 1927, in effect when the tax foreclosure suit here involved was pending, required that the person in whose name the real estate shall be listed for taxation, together with the wife or husband, if married, shall be made defendants in said action and shall be served with process as in civil actions. Moreover, the statute requires that notice by posting at the courthouse door shall be given to all persons claiming any interest in the subject matter of the action to appear, present and defend their claims; and that "the court shall require a description which is in fact and in law sufficient description of the real estate to be set out in the published notice." Board of Commissioners of Beaufort County v. Rowland, 220 N.C. 24, 16 S.E.2d 401.

Sufficient description of the land must be such as is certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the notice refers.

Indeed, this Court has uniformly recognized the principle that a deed conveying land, or a contract to sell and convey land, or a memorandum thereof, within the meaning of the statute of frauds G.S. § 22-2, must contain a description of the land, the subject matter thereof, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the deed, contract or memorandum refers. The principle has been the subject of these recent decisions in which earlier decisions are cited and assembled. Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593; North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889; Hodges v. Stewart, 218 N.C. 290, 10 S.E.2d 723; Board of Commissioners of Beaufort County v. Rowland, supra; Stewart v. Cary, 220 N.C. 214, 17 S.E.2d 29, 144 A.L.R. 1287; Duckett v. Lyda, 223 N.C. 356, 26 S.E.2d 918; Peel v. Calais, 224 N.C. 421, 31 S.E.2d 440; Plemmons v. Cutshall, 234 N.C. 506, 67 S.E.2d 501; Linder v. Horne, 237 N.C. 129, 74 S.E.2d 227; Cherry v. Roanoke Tobacco Warehouse Co., 237 N.C. 362, 75 S.E.2d 124; Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759; Holloman v. Davis, 238 N.C. 386, 78 S.E.2d 143; Deans v. Deans, 241 N.C. 1, 84 S.E.2d 321; Haith v. Roper, 242 N.C. 489, 88 S.E.2d 142; Baldwin v. Hinton, 243 N.C. 113, 90 S.E.2d 316; Brown v. Hurley, 243 N.C. 138, 90 S.E.2d 324; Wachovia Bank & Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E.2d 246. Compare Johnston County v. Stewart, 217 N.C. 334, 7 S.E.2d 708.

*876 In the light of these requirements of the statute C.S. § 8037 as so re-written, neither the order of publication of notice pursuant to Section 2 of Chapter 334, Public Laws 1929, nor the notice pursuant to order of publication of notice of summons for Sam Kelly, Jr., and his wife contains a description which is in fact and in law sufficient description to identify the land involved in the tax foreclosure,and to inform those to whom the notices were directed what lands were involved.

Hence the Court is constrained to hold that there is fatal defect in the tax foreclosure proceeding, and, therefore, plaintiff's record title from the common source is superior to that of defendant. Nevertheless defendant pleads that he has ripened title to the lands involved by adverse possession. This raises an issue or issues in that respect which must be submitted to a jury under proper charge of the court.

For reasons stated the judgment from which appeal is taken is