#### EILEEN GALER v. AUBURN-ASHEVILLE COMPANY.

(Filed 14 June, 1933.)

1. Judgments K f: Taxation H c — Procedure to set aside judgment in tax foreclosure suit is by motion in, the cause.

Tlie proper procedure to set aside a judgment entered in favor of the county in an action against the owner for taxes is by motion in the original cause, and where such judgment has been set aside upon motion after notice to the parties, the owner, in an action to remove cloud upon title, is entitled to judgment canceling the tax deed, C. S., 1743, the judgment for the taxes having been set aside and the owner having paid into court the amount of the taxes plus interest.

2. Taxation H c — Assignee of hid at tax foreclosure sale may be made a party upon motion to set aside the judgment in the proceedings.

Where a county has bid in certain property at a tax foreclosure sale and has assigned its bid to a third party, the assignee may be made a party to the action upon a motion in the cause by the owner to set aside the judgment for the taxes.

Appeal by defendant from McElroy, J., at December Term, 1932, of Euncombe.

Affirmed.

*684The case was heard in the General County Court and judgment tendered as follows:

“This cause coming on to be heard before the undersigned Guy Weaver, judge of the General County Court of Buncombe County and without the intervention of a jury, the court finds the following facts:

1. That prior to 4 September, 1928, Katherine B. Williamson was the owner of the lot of land described in the complaint in this action, same being Lot No. 2, in Block O-B, as shown on Plat Book 198, at page 101 of Plat Records of Buncombe County, N. C., and on said date the said lot was sold and transferred to Alice Morris free from encumbrances except the taxes for the year 1928.

2. That on 29 September, 1928, Alice Morris conveyed said lot to plaintiff in this case free from all encumbrances and was to pay the taxes of 1928, and that J. H. Morris, agent of Alice Morris, informed E. K. Gardner, agent of plaintiff, who resides in Washington, D. C., that he would pay the taxes as soon as the records were complete, and after said records were complete J. II. Morris assured F. K. Gardner that he had paid the taxes oh said lot.

3. That plaintiff, after-the purchase of said lot, expended some $10,000 on same in erecting a residence thereon.

4. That on 17 November, 1930, a suit was instituted by the county of Buncombe entitled, ‘County of Buncombe v. Katherine B. Williamson and husband.Williamson,’ for 1928 taxes which remained unpaid, and summons was placed in the hands of the sheriff and a return was made thereon, with a rubber stamp, as follows: ‘Due search made, defendant not to be found in my county,’ and thereupon affidavit for service of summons by publication was made and order granted and notice published in a newspaper for the statutory time.

5. That Katherine B. Williamson was at the time present in the city of Asheville and in Buncombe County, and has been in said county and city continuously since said date of said summons.

6. That after publication of summons for the required time, a judgment was entered against Katherine B. Williamson for the taxes of 1928, in the sum of $21.81, which included taxes and cost to that date; and thereafter a commissioner was appointed to sell the lot in question and same was sold for the sum of said taxes and cost, and the property was bid in by Buncombe County, and the bid of said county was thereafter assigned to the defendant, Auburn-Asheville Company, for the sum of $21.91, and a deed was made by the commissioner to said defendant for the property, on 12 May, 1932, which deed has been placed of record.

1. That plaintiff, through her agent, E. K. Gardner, was notified that defendant held a deed for the property about 12 May, 1932, and a *685tender of tbe amount of taxes and costs was made to tbe defendant on tbat date and tbe same was refused.

8. Tbat thereafter notice was given to defendant to sbow cause why tbe judgment entered in favor of Buncombe County and against Katherine B. Williamson for tbe taxes of 1928, should not be set aside, and said motion was held 5 July, 1932, and same was set aside by tbe clerk of tbe Superior Court of Buncombe County who bad rendered said judgment, .and notice of appeal was given by defendant from tbe order of the clerk setting aside tbe judgment.

9. Tbat this present action was instituted about 6 July, 1932, to set aside and cancel tbe deed made to tbe defendant which bad been placed on record, plaintiff contending tbat same constitutes a cloud on her title.

10. Tbat at tbe trial of said cause, plaintiff again tendered into court for tbe use and benefit of tbe defendant, tbe amount of said tax and cost and accrued interest, and said tender was again refused in open court.

From tbe foregoing findings of fact by tbe court, based upon tbe evidence offered by tbe respective parties to tbe action, tbe court orders and adjudges:

Tbat tbe deed made by tbe commissioner, J. C. Joyner, to tbe defendant, Auburn-Asheville Company, on 12 May, 1932, and registered in Deed Book' No. 449, at pages 419 and 420, for tbe property of tbe plaintiff as set out and described in said deed and in tbe deed made to tbe plaintiff, is and constitutes a cloud upon tbe title of tbe plaintiff in this action.

It is therefore ordered and adjudged tbat tbe said deed be and tbe same is hereby declared null and void and tbat this judgment be recorded in tbe office of tbe register of deeds for Buncombe County.

It is further ordered and adjudged tbat tbe register of deeds of Buncombe County, N. C., be and be is hereby authorized and directed by this decree to make tbe proper entry of cancellation upon tbe pages of deed book where said deed is registered, as above set forth, and upon tbe cross-index of said deed records of said county.

It is further ordered tbat plaintiff pay into tbe office of tbe clerk of this court tbe sum of $22.50, being tbe amount of taxes, interest and costs in connection with tbe sale of said property for tbe unpaid taxes of 1928, for tbe use and benefit of tbe defendant in this action.

It is further ordered and adjudged tbat tbe defendant pay all tbe costs of this action. This 19 September, A.D. 1932.”

Upon appeal by defendant to tbe Superior Court, exceptions and assignments of error were duly made. Tbe court below rendered tbe following judgment:

*686“This* cause coming on to be beard at this term of the court before the undersigned, P. A. McElroy, judge, holding the courts of the 19!:li Judicial District of North Carolina, upon an appeal taken by the defendant from a judgment rendered by the judge of the. General County Court of Buncombe County, N. 0., and upon exceptions taken and made by the defendant during the trial of said cause before said General County Court. And the said cause, on appeal, having been heard upon the record and the exceptions noted and taken thereto by the defendant from a judgment rendered by said judge of said General County Court in favor of the plaintiff, and after hearing the matter and the exceptions set out in the record and the argument of counsel for both plaintiff and defendant, it is adjudged by the court that there is no error in the judgment of the General County Court rendered in favor of the plaintiff and against the defendant, and said judgment is in all respects affirmed, and the cost of said action together with the cost of the appeal to this court be taxed against the defendant, and the terms of the judgment of the General County Court will be carried out as therein set forth. P. A. McEleot, Judge Presiding."

The defendant excepted and assigned error to the judgment as signed, and appealed to the Supreme Court.

Welch Galloway for plaintiff.

Reed Kitchin for defendant.

Claexson, J.

The findings of the General County Court on appeal by defendant and approved by the court below, has this in it: “That thereafter notice was given to defendant to show cause why the judgment entered in favor of Buncombe County and against Katherine B. Williamson for the taxes of 1928, should not be set aside, and said motion was held 5 July, 1932, and same was set aside by the clerk of the Superior Court of Buncombe County who had rendered said judgment, and notice of appeal was given by defendant from the order of the clerk setting aside the judgment.”

This was the proper procedure. Davis v. Brigman, ante, 680. So far as it appears of record notice of appeal was given by defendant from the order of the clerk setting aside the judgment, but it does not appear that the appeal has been perfected. The defendant was not made a party in the procedure before the clerk, as he could have been. Davis case, supra.

This present action is to remove the cloud upon the title of the land (C. S., 1743), which defendant claims title to. The judgment against Katherine B. Williamson having been set aside and a nullity, we think the judgment of the court below is correct. The judgment is

Affirmed.