No. 240.

75 S.E.2d 402 (1953)

237 N.C. 449

WASHINGTON et al. v. McLAWHORN et al.

Supreme Court of North Carolina.

April 8, 1953.

Attorney(s) appearing for the Case

George E. Hood and N. D. White, Goldsboro, for the plaintiffs, appellants.

Herbert B. Hulse and George R. Britt, Goldsboro, for the defendants, appellees.

PARKER, Justice.

The plaintiffs allege that on 30 November 1929 Wayne County instituted a suit against all the heirs at law of Georgina Sasser Washington, who died on 21 August 1918, and the guardian of her husband, for past due taxes on the land described in the complaint, and as a result of the action E. A. Humphrey, Commissioner, on 15 February 1933 conveyed the said lot of land to Wayne County by deed registered in Book 223, p. 46 in the Register of Deeds Office of the County. The plaintiffs further alleged that the County of Wayne, though it had a deed for the land, never claimed the ownership thereof. That about the same time the County instituted numerous tax suits and secured tax deeds, but in all these suits has never claimed the lands, permitting the former owners to pay the taxes and reconveying the land or cancelling the deeds of record. That on 11 February 1937 the City of Goldsboro instituted an action to sell this land for taxes; that the defendants were the County of Wayne and Georgina S. Washington and husband, both of whom at the time were dead. The complaint further alleges that in its answer the County made no claim to own the land conveyed to it by Humphrey, Commissioner, but asserted that the same taxes due to it on this land in 1929 was still due it, and that Wayne County is estopped either from claiming the land or asserting the validity of its tax deed from Humphrey, Commissioner.

The complaint further alleges a search of the records fails to disclose a sale of said land in the City's suit, but that the City and County advertised the land for sale; that J. G. McLawhorn bid it in, and the City and County executed and delivered to him a deed for the land on 7 July 1947, which is properly recorded. On 30 October 1945 J. G. McLawhorn and wife conveyed by deed, properly recorded, a portion of said land to Jessie Mitchell and wife. According to the complaint the deed from McLawhorn to Mitchell antedated by nearly two years the deed from the City and County to McLawhorn.

The complaint alleges that since the County of Wayne received a deed for said lot from Humphrey, Commissioner, on 15 February 1933, the plaintiffs and the defendants have been in the adverse possession of said land. In the prayer for relief in the complaint a like statement appears.

Construing the complaint and amended complaint liberally there are no factual averments and no relevant inferences to be deduced that the orders and judgment in the suit brought by the County of Wayne, and the deed of Humphrey, Commissioner, to the County of Wayne on 15 February 1933, or any of them, are void, so that the judgment may be collaterally attacked. The complaint alleges that all the heirs at law of Georgina Washington and the guardian of her husband were made parties. That gave the Court jurisdiction. A void judgment is no judgment, and may always be treated as a nullity. Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283; Holden v. Totten, 224 N.C. 547, 31 S.E.2d 635. If the judgment in this suit by the County is irregular, it can only be assailed by a motion for the purpose in that suit. Moore v. Packer, supra; Harrell v. Welstead, supra. It cannot be collaterally attacked as an irregular judgment.

Therefore, according to the allegations of the plaintiffs' pleadings the deed of Humphiey, Commissioner, conveyed to Wayne County a valid legal title to the lot of land, and the heirs at law of Georgina Washington were divested of all title and interest in said land. However, the complaint alleges that the County is estopped to assert the validity of its deed from Humphrey, Commissioner. The plaintiffs do not allege any estoppel against J. G. McLawhorn, or his heirs at law, nor any estoppel against Jessie Mitchell and his wife, who bought a part of the land from McLawhorn. The County of Wayne is not a party to this action.

"Equitable estoppel is defined as `the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right either of contract or of remedy.'" American Exchange Nat. Bank v. Winder, 198 N.C. 18, 150 S.E. 489, 491. See also Colonial Oil Co. v. Jenkins, 212 N.C. 140, 193 S.E. 33; North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889.

There are no allegations in the complaint that the plaintiffs have been led in any way by the County to change their position for the worse; no allegation that they offered to pay the taxes and the County put them off, nor that they were led to believe the County would waive the taxes. The allegations liberally construed fail to allege an estoppel.

Counties are subdivisions of the State, established for the more convenient administration of justice and to assure a large measure of local self-government. Southern R. Co. v. Mecklenburg County, 231 N.C. 148, 56 S.E.2d 438. A county is not subject to an estoppel to the same extent as an individual or a private corporation. Otherwise, it might be rendered helpless to assert its powers in government. However, an estoppel may arise against a county out of a transaction in which it acted in a governmental capacity, if an estoppel is necessary to prevent loss to another, and if such an estoppel will not impair the exercise of the governmental powers of the county. 19 Am.Jur., Estoppel, pp. 818 and 819. In Henderson v. Gill, Com'r of Revenue, 229 N.C. 313, 49 S.E.2d 754, 756, the facts were these. The plaintiffs, who were florists, grew flowers upon their own lands and sold these flowers and also flowers purchased from wholesalers. The sale of flowers grown by them on their own land was not exempt from the North Carolina sales tax. A collector of the Department of Revenue advised the plaintiffs that sales of flowers grown on their own land were not subject to the North Carolina sales tax. Subsequently, the Department of Revenue forced payment of sales tax on such sales and plaintiffs entered suit to recover the tax paid under protest. Plaintiffs were unable to collect sales tax from the purchasers of the flowers grown on their lands on these past transactions. The plaintiffs contended that the defendant was estopped to collect this tax. The Court said: "These facts, however potent in creating an estoppel in ordinary transactions between individuals, do not estop the State in the exercise of a governmental or sovereign right."

In City of Raleigh v. Fisher, 232 N.C. 629, 61 S.E.2d 897, 902, the Court said: "a municipality can not be estopped to enforce a zoning ordinance against a violator by the conduct of its officials in encouraging or permitting such violator to violate such ordinance in times past." (Citing numerous authorities.)

The collection of taxes by a county is the exercise of a governmental right, and in the collection of taxes the County of Wayne cannot be estopped under the facts alleged in this action to assert the validity of the title it received to this land by virtue of the deed of Humphrey, Commissioner. A contrary decision would lead to chaos and endless disputes in the collection of county taxes.

The plaintiffs further allege that they and the defendants have been in the adverse possession of this land "under color of title for more than 18 years, and this precludes the county from claiming any ownership thereof."

According to the allegations of the complaint the plaintiff Walter T. Washington on the—day of June 1951, received a deed from his living brothers and sisters purporting to convey to him their interest in said land. That is the only color of title he has, and it takes 7 years adverse possession under color of title to make such possession a perpetual bar against all persons not under disability. G.S. § 1-38. According to the complaint Pauline Chavis has no color of title. There is no allegation in the complaint of adverse possession for 20 years by the plaintiffs under G.S. § 1-39 and G.S. §1-40.

A demurrer does not admit any legal inferences or conclusions of law asserted by the pleader. McKinney v. City of High Point, 237 N.C. 66, 74 S.E.2d 440.

Construing liberally the complaint and amended complaint as a whole, it appears and we so hold that the plaintiffs have no title, right or interest in the parcel of land, and the complaint and amended complaint do not state facts sufficient to constitute a cause of action. On that ground the demurrer must be sustained.

When the City of Goldsboro on 11 February 1937 instituted suit for unpaid taxes on the parcel of land, the heirs at law of Georgina S. Washington had no title or interest in the land, and there was no need to make them parties. We are not required to pass on the validity of that proceeding.

The allegation in the complaint that since 15 February 1937 the plaintiffs and the defendants have been in the adverse possession of this land, without further averment, is unusual.



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