#### E. A. SMITH v. C. H. MILLER et al.

(Filed 23 December, 1911.)

1. Commissioner to Sell Lands — Taxes—Liens—Order of Court— Parties in Interest.

An order of court tbat a commissioner, appointed to sell lands, pay taxes and assessments against the property, constituting a lien thereon, is valid and proper, being necessary for the protection of the interests of the parties.

2. Same.

Parties interested in lands which have been ordered by the court to be sold by its commissioner cannot avail themselves of the benefit of an order that the commissioner pay the taxes and assessments constituting a lien on the land, and then be heard to complain of its validity.

3. Same — Future Taxes.

An order of court that a commissioner of the court appointed to sell the lands in controversy pay “all such taxes and assessments as are and have been levied” is sufficiently comprehensive in its terms to include the past, present, and future taxes and assessments.

*994. Same — Title.

An order of court that its commissioner appointed to sell the land in controversy pay off such future taxes and assessments as may constitute a lien on the lands is valid, when it is made in the interest of the parties -and in protection of then-title.

5. Estates — Life Tenant — Taxes—Payment by Remainderman — Interpretation of Statute.

If the life tenant should fail or refuse to pay taxes and assessments on the lands: Semble, the remainderman may pay them and maintain an action for damages therein sustained by him, either at common law or under Eevisal, sec. 2859.

6. Same.

When it appears that the life tenant in lands has failed or refused to pay the taxes and assessments levied upon the lands, it is not required that the remainderman wait until there is a sale and accumulation of costs and expenses before he exercises the right of paying the taxes and assessments, it being otherwise inevitable that the lands will be sold, and, under such circumstances, he may intervene and pay the taxes before the land is exposed to sale.

7. Same — Commissioner io Sell — Purchaser—Clear Title — Interpretation of Statutes.

When a commissioner is appointed by the court to sell lands, in which there is an estate in remainder after a life estate, an order directing him to pay “all such taxes and assessments as are and have been levied” thereon is valid, and will be allowed out of the proceeds of the sale of the lands, the object of the law being to pass a clear title to the purchaser. Eevisal, secs. 2857, 2858.

8. Commissioner to Sell Lands — Order of Court — Commissions Allowed — Appeal and Error.

An order of court allowing a certain sum to a commissioner for the sale of lands in dispute, not excepted to, will be presumed, on appeal, to have been made by the lower court upon a full consideration of all the facts and circumstances, and will therefore be upheld. The question in this case, as to the power of another judge subsequently holding court in the county to review such an order, was stated by the court, but not determined, it not being deemed necessary to pass upon it.

*1009. Commission to Sell Lands — Void Sales — Personal .Dealings — Judgment — Credits—Disposition of Proceeds of Sale — Appeal and Error.

A commissioner appointed by the court disbursed a large sum in' the manufacture of concrete blocks for use in the construction of a building on the land. The court below found as a fact that the blocks were manufactured by the commissioner in his individual capacity, and was not the property of the estate, as he, personally, could not make a valid sale to himself as commissioner, and ordered the blocks to be sold and the proceeds applied as a credit on a judgment rendered against the commissioner: Sekl, the sale of the blocks under the order was void,” and the commissioner in his individual capacity is entitled to have the value of the blocks, or at least the proceeds of the sale, paid to him.

Appeal by defendant from Lane, J., at November Term, 1911, of RUWCOMBE.

George Á-. Shuford, Marie W. Brown, and Weaver & Stepp for plaintiff.

A. S. Barnard for defendant.

"WalKER, J.

Tbis case has been before us for adjudication of one question or another several times, and is reported in 151 N. C., 620; 152 N. C., 314; 155 N. C., 242, and 155 N. C., 247. The defendant C. H. Miller, who was the commissioner appointed by the court to sell certain realty, has brought the case here by appeal from the final judgment, he having excepted to rulings of the court during the several stages of the proceedings in the court below, which was the proper method of procedure, as we held in Smith v. Miller, 152 N. C., 314, and 155 N. C., 242. He relies upon the following exceptions taken to the rulings of Judge Peebles:

1. Miller, as commissioner, was allowed certain items in his account, and to this ruling of the judge there was no exception, so that they must stand. Rut he was denied credit for other items, and to this ruling he has excepted. Among them is a claim he now makes for taxes and local assessments levied upon the property which he sold under orders of the court. It appears that at December Term, 1904, Judge Shaw made an order directing or authorizing Miller, as commissioner, “to pay all such *101taxes and street assessments as are and Lave been laid against any of tbe property described in tbe petition (for a sale of tbe land) in tbis cause, same to be paid by bim out of funds in bis bands.” No exception was taken to tbis order by any of tbe parties. Tbe commissioner paid taxes and assessments since bis qualification, to tbe amount of $2,018.76, some before tbe order was made and some afterwards, but not included in tbe amount presently to be mentioned. He also paid taxes and assessments tben in tbe bands of tbe sheriff and city tax collector for collection, amounting to $3,131.78, tbe total amount of taxes and assessments thus paid being $5,735.44. Tbe appellees contend that be is not entitled to credit for tbis payment of taxes and assessments: first, because, as Judge Peebles ruled, Judge Shaw bad no power to make sucb an order; second, because tbe amount paid oyer and aboye tbe sum of $3,131.78, wbicb was tben due and collectible, was not embraced by tbe terms of tbe order; and, third, because tbe life tenant, Mrs. Elizabeth A. Smith, was liable for tbe taxes and assessments and they were not properly and legally chargeable upon tbe fund in tbe bands of Miller as commissioner.

We do not see why Judge Shaw could not make sucb an order. It was within tbe power and jurisdiction of tbe court to sell tbe land for partition, and in order to give a clear title it was certainly necessary that tbe taxes, wbicb constitute liens upon tbe land, should be paid. What would be tbe use of dividing tbe 'lands if they could be sold for taxes and tbe estate of tbe parties therein be forfeited or lost? Tbis proceeding would, in such a ease, be a vain and useless one. Tbe commissioner may not have been under any obligation to pay tbe taxes and assessment without an order, but it seems to us, at least, that tbe order was not only a proper and legal one, but absolutely necessary for tbe protection of tbe interests of tbe parties. It was clearly 'to their advantage, and having profited by it, they will not now be beard 'to' complain. He who is willing to reap tbe benefit 'sbould.be made to take it with tbe burden wbicb naturally and equitably goes witb.it. We think tbe court bad tbe jurisdiction and tbe order was a just and lawful exercise of bis power. Our opinion also is that tbe order of Judge Shaw embraces, and was *102intended to include, if we are to construe it by tbe words employed, not only taxes and assessments then due and in tbe bands of tbe officers for collection, but all sucb as thereafter accrued, as well as those theretofore paid by Miller himself, while commissioner, for the estate. The language is, “all such taxes and assessments as are and have leen levied.”. It would seem that these words are sufficient to take in the past, present, and future taxes and assessments. This meaning is not only apparent on the face of the order, but it would be hard to conclude that the court intended that only a part 'Should be paid. If any of the taxes or assessments had been left unpaid, the property could just as well have been sold for that part as for the whole thereof. It is true, the statute provides for the payment of the taxes by the life tenant. But suppose she failed to pay them, either purposely or because she had no funds with which to pay them, must the property be sacrificed for this reason, and should we heed such an argument from the remain-dermen, who are now enjoying the benefit which they derived solely from the payment? If the life tenant failed to pay, they may, perhaps, have an action against her, either at common law or under the statute, Revisal, sec. 2859, which reads as follows: “Every person shall be liable for the taxes assessed or charged upon the property or estate, real or personal, of which he is tenant for life. If any tenant for life of real estate shall suffer the same to be sold for taxes by reason of his neglect or refusal to pay the taxes thereon, and shall fail to redeem the same within one year after such sale, he shall thereby forfeit his life estate to the remainderman or reversioner. The' remainderman or reversioner may redeem such lands, in the same manner that is provided for the redemption of other lands. Moreover, such remainderman or reversioner shall have the right to recover of such tenant for life all damages sustained by reason of. such neglect or refusal on the part of such tenant for life. If any tenant for life of personal property suffer the same to be sold for taxes by reason of any default of his, he shall be liable in damages to the remainderman or reversioner.” By this piro-vision of the law the remainderman or reversioner may redeem from a tax sale; but must he wait until there is a sale and the *103accumulation of costs and expenses, before be exercises the right ? If it is inevitable that the laud will be sold for tbe tax, why should he wait ? ' The law evidently means, that if the life tenant does not pay, and thereby exposes the land to sale, he may intervene and prevent a sale by paying the tax, and for the same reason that he can redeem from a tax sale already made. It may be that he could do so without the aid of the statute. Eevisal, sec. 2851, provides for the payment of all taxes assessed upon real property ordered to be sold in judicial proceedings and remaining unpaid, and also for the payment of such as may be required to redeem the same, if it has been sold for taxes, and it then provides that payment of the taxes shall be made out of the proceeds of sale. Sections 2857 and 2858 provide also for the payment of taxes assessed upon real estate by trustees, mortgagees, and lienors. The object of the law seems to be, not only to preserve the property for the benefit of all interested parties, but to pass a clear title to the purchaser when it is sold. This exception is sustained, and Miller will be allowed the full amount of taxes and assessments paid by him.

2. "We also think that Miller, as' commissioner, should be allowed commissions at least to the amount that they were ordered to be retained by him, which appears to be $1,400. There was no exception to this order at the time, and Judge Slum is presumed to have made it upon full consideration of all the facts and circumstances, and while we do not decide that the order was not reviewable by Judge Peebles, as it is not necessary to do so, we do not see why it should not stand as it was made. The learned judge, in overruling it, may have been influenced, at least to some extent, by the erroneous view taken of some of the questions we are now considering. This exception to the ruling disallowing commissions of $1,400 is sustained.

3. Miller, commissioner, disbursed a large sum in the manufacture of concrete blocks for use in the construction of the new hotel building in Asheville. Judge Peebles refused to allow’ him any credit for this expenditure, and ordered his successor,. Mr. Whitson, to sell the blocks and apply the net proceeds as a credit on the judgment against Miller in this ease, after finding as a fact that the blocks were manufactured by Miller “in his *104business and are not tbe property of tbe Smith estate, but tbe property of Miller, as be could not sell them to bimself as commissioner. He is not credited with them, but they are ordered to be sold.” If they did not belong to tbe “Smith estate,” but to Miller, it follows that tbe court bad no right to order a sale of them. They bad not been levied upon or seized in execution for any debt due by Miller to tbe “Smith estate.” It is clear to us that tbe sale of them was not only irregular, but.void, and Miller is entitled to have, at least, tbe proceeds or tbe amount thereof paid to him. This was said in tbe argument to be $600. He is also entitled, at least, to tbe proceeds of any other property of bis which has been sold in like manner.

None of tbe exceptions we have considered are covered by our first ruling in tbe case, that tbe court did not have jurisdiction to authorize, tbe building of tbe hotel. They relate entirely to other matters clearly within tbe cognizance of the' court. The other exceptions of defendant are overruled.

It may be that some of tbe amounts are not correctly stated, and if they are not, tbe court below may refer tbe matter for a finding as to tbe true amounts, unless tbe parties can agree as to them.

Tbe judgment of tbe Superior Court will be modified in accordance with this opinion.

Error.