NICHOLAS A. WALKER v. CARL O. STORY, 262 N.C. 707

Bobbitt, J. Plaintiff undertakes to prove his title to the subject lands by connecting defendant with a common source of title and by showing in himself a better title from that source. Mobley v. Griffin, 104 N.C. 112, 115, 10 S.E. 142; Vance v. Pritchard, 213 N.C. 552, 555, 197 S.E. 182. Plaintiff, during trial, disclaimed ownership of the portion of the subject lands lying within the corporate limits of the Town of Columbus. He does not attack on any ground the proceedings in the Town of Columbus case.

Plaintiff’s present contention is that the sale and conveyance of the subject lands by Arledge, Commissioner, to Polk County, were made pursuant to authority conferred in the Town of Columbus case; and that the commissioner’s deed is void as to the portion of the subject lands lying outside the corporate limits of the Town of Columbus. Admittedly, the Town of Columbus had no tax lien on lands outside its corporate limits.

However, the record does not support plaintiff’s contention that the commissioner had authority to sell and convey only the portion of the subject lands lying within the corporate limits of the Town of Columbus. There was no separate judgment in the Town of Columbus case.

The only judgment, which was entered Monday, December 11, 1939, (1) consolidated the two actions for judgment; (2) established the amount of unpaid taxes due each plaintiff; and (3) authorized and directed the commissioner to advertise and sell “the lands described in the Complaint.” The descriptions in the complaints, in the commissioner’s notice of sale, in the judgment confirming the sale, in the commissioner’s deed, and in the complaint in this action, are identical.

Plaintiff stresses the fact that the commissioner’s notice of sale, his report of sale and his report of receipts and disbursements bear the caption of the Town of Columbus case. The notice of sale and report of sale refer to the order and judgment entered Monday, December 11, 1939, “in the above captioned cause” or “in the captioned matter.” The fact that these papers did not carry the captions of both actions is immaterial. The function of the commissioner’s notice of sale was to give notice to prospective purchasers.

There was only one judgment and reference thereto disclosed the two tax foreclosure actions had been consolidated for judgment and one joint judgment entered therein. In this connection, see North Carolina Code of 1939 (Michie), § 7971-(228) (j); G.S. 105-391 (j). The commissioner’s report of receipts and disbursements discloses plainly that Polk County had purchased the subject lands for the benefit of itself and of the Town of Columbus. See North Carolina Code of 1939 (Michie), § 7971(228) (u); G.S. 105-391 (u).

The sufficiency of the service of summons by publication is not challenged. “From the time of service of the summons, in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all subsequent proceedings.” C.S. 488; G.S. 1-101. The defendants in each tax foreclosure action were charged with notice of all proceedings therein.

Contrary to plaintiff’s contention, the record discloses that the joint judgment of December 11, 1939, and the judgment of confirmation of February 12, 1940, (both of which bear the captions of both actions) authorized and directed the commissioner to sell and convey all the lands on which Polk County had a lien including, but not limited to, the portion thereof on which the Town of Columbus also had a lien.

Plaintiff, conditionally, contends: The judgment, with reference to the portion of the subject lands lying outside of the corporate limits of the Town of Columbus, is defective because the complaint in the Polk County suit was not verified. In this connection, the record shows the (verification) affidavit was signed by W. C. Hague, Tax Collector and Treasurer of Polk County, but does not show it was sworn to or subscribed before the clerk as contemplated by the blank form provided for the clerk’s signature.

G.S. 1-211, subsection 1, on which plaintiff relies, applies to a cause of action for the breach of an express or implied contract to pay a sum of money fixed by the terms of the contract. “. . . a judgment by default final in that kind of suit, on an unverified complaint, is irregular and will be set aside on motion made in apt time and on a proper show of merits.” (Our italics). McNair v. Yarboro, 186 N.C. 111, 112, 118 S.E. 913, and cases cited. Motion in the cause is the proper course to pursue to obtain relief from an irregular judgment. Pruitt v. Taylor, 247 N.C. 380, 382, 100 S.E. 2d 841, and cases cited.

It is noted that the complaint herein, if it were treated as a motion in the Polk County case, see Beck v. Voncannon, 237 N.C. 707, 713, 75 S.E. 2d 895, does not show plaintiff-or those under whom he claims acted with due diligence or had a meritorious defense to Polk County’s tax foreclosure action.

It is noted that the judgment of December 11, 1939, contains the following: “Pursuant to the statutory mandate requiring proof to be made of the demand mentioned in the Complaint in actions where the service of summons was by publication, the plaintiffs have been required to submit proof of the demand mentioned in the complaint as required by law and after the submission of such proof, the Court finds as a matter of fact that the plaintiffs are entitled to a judgment against the property for the sums hereinafter stated.” (Our italics). See G.S. 1-211, subsection 3.

In view of the foregoing, it is unnecessary to consider whether (with reference to the undivided one-half interest owned by Edward Mickler prior to the tax foreclosure actions) plaintiff’s evidence is sufficient to connect his title with the title of Edward Mickler. In this connection, see McDonald v. McCrummen, 235 N.C. 550, 70 S.E. 2d 703. Plaintiff has failed to prove title to the subject lands. Indeed, upon the present record, it appears defendant has the better title thereto. Hence, the judgment of involuntary nonsuit is affirmed. Affirmed.