#### GUILFORD COUNTY v. ESTATES ADMINISTRATION, INC., Administrator of Estate of G. A. GRIMSLEY, Deceased; HARRY B. GRIMSLEY and Wife, LUCY ESTES GRIMSLEY; CORRINNE JUSTICE GRIMSLEY (Widow), W. HENRY HUNTER, Guardian Ad Litem of CYNTHIA GRIMSLEY, WM. T. GRIMSLEY, JR., ROBERT J. GRIMSLEY and CORRINNE GRIMSLEY, Minors; H. W. SCHIFFMAN.

(Filed 15 June, 1938.)

1. Taxation § 33 — Lien for taxes has priority over other liens.

The lien upon real estate for taxes is preferred to all other liens upon such real estate, and continues until paid with interest, penalties and costs, C. S., 7987, which lien is continued in favor of the holder of the certificate of sale by subrogation, C. S.,, 8036, 8037.

2. Taxation § 40b—

The purchaser of a tax sale certificate is subrogated to the lien for taxes, and may foreclose same by civil action in the nature of an action to foreclose a mortgage. C. S., 8037.

3. Taxation §§ 33, 40b: Executors and Administrators § 16 — County purchasing certificate for taxes assessed prior to death of insolvent acquires first lien, which it may foreclose by civil action.

After the death of insolvent intestate, certain land of the estate was sold for taxes assessed prior to the death of intestate, and the county became the purchaser for want of other bidder, C. S., 8015, and received certificate of sale, C. S., 8024. Held: The county acquired a first lien on the land, C. S., 7980, 7987, 8030, prior to the claims of the administrator, widow, heirs at law, and judgment creditor of intestate, which lien the county may foreclose by civil action in the nature of an action to foreclose a mortgage, G. S., 8037, and the provisions of G. S., 93, that taxes should be paid by the personal representative in the third class of priority has no application to the statutory action to foreclose the tax sale certificate.

4. Executors and Administrators § 20: Taxation § 40b — Tax sale certificate may be foreclosed pending administration.

The right of the personal representative to sell lands of the estate subject to such liens, statutory and otherwise, as exist at the time, in order to make assets to pay debts when the personalty is insufficient, does not prevent the holder of a tax sale certificate against lands of the estate for taxes assessed prior to the death of insolvent intestate from foreclosing same in a civil action, in the nature of an action to foreclose a mortgage, during the pendency of the administration.

Appeal by defendant “Estates Administration, Incorporated,” administrator of Geo. A. Grimsley, from Bivens, J., at 21 March, 1938, Term, of Guilford.

Civil action to foreclose tax sale certificate.

*764The parties waived jury trial and submitted an agreed statement of fact with agreement that the court might find such additional facts as are required for a determination of the issues arising on the pleadings.

The pertinent facts so found by the court are: In the year 1934, county taxes in the sum of $16.61 were duly assessed upon certain lands in Guilford County, North Carolina, owned by and regularly listed in the name of Geo. A. Grimsley, who died intestate and insolvent on 28 March, 1935, resident of Forsyth County, North Carolina. Defendant Estates Administration, Incorporated, was duly appointed administrator of the estate of said intestate, in the latter county.

On 3 June, 1935, at a sale of real estate for the nonpayment of county taxes for the year 1934, the plaintiff became the purchaser of the said Grimsley lands, and received from the tax collector of Guilford County, and now holds, a certificate of sale therefor.

This action was instituted within the time limited by statute. Defendants are the administrator, widow, heirs at law and judgment creditor, respectively, of the said Grimsley. Summons and complaint have been duly served upon all defendants. Notice of action has been published as required by law. Complaint is filed setting forth essential allegations. Only the defendant administrator has answered. If the taxes be paid in full, payments to creditors will be reduced. In consequence, the clerk of Superior Court of Forsyth County refuses to permit administrator to pay 1934 taxes in full. Payment thereof has not been made, but the 1935 taxes, which were assessed after the death of intestate, have been paid.

From judgment declaring that the tax, interest and cost constitute a first lien upon the lands, superior to any claim or interest of the defendants, ordering sale and appointing commissioner to sell, with directions as to application of proceeds of sale, defendant administrator appealed to the Supreme Court and assigns error.

D. Newton Farnell, Jr., and B. L. Fentress for plaintiff, appellee.

Vaughan <& Graham and Winfield Blackwell for defendants, appellants.

Winborne, J.

Where, at a sale of real estate for nonpayment of county taxes, duly assessed prior to the death of an insolvent taxpayer, and after his death the county becomes purchaser for want of other bidder (C. S., 8015), and receives certificate of sale (C. S., 8024), does the county thereby acquire a first lien on such land (O. S., 8036) ? If so, can the county maintain a civil action to foreclose on such certificate (O. S., 8037) ?

Each question is answered in the affirmative. The authorities, statutory and judicial, support this decision.

*765Tbe lien of State, county and municipal taxes in eacb year attaches to all real estate of tbe taxpayer situated witbin tbe county or municipality in wbicb tbe tax list is made and placed in bands of proper officer for collection. Tbis lien is preferred to all other liens upon such real estate, and continues until such taxes, interest, penalties and costs shall be paid. C. S., 7987. Public Laws 1929, ch. 306. New Hanover County v. Whiteman, 190 N. C., 332, 129 S. E., 808; Shale Products Co. v. Cement Co., 200 N. C., 226, 156 S. E., 777. Tbe bolder of a certificate of sale is subrogated to tbe right of tbe State, county or other municipality for tbe taxes for wbicb tbe real estate was sold, and has “tbe right of lien against tbe real estate described in tbe certificate as in case of mortgage.” Tbe bolder is entitled to a judgment for tbe sale of such real estate for tbe satisfaction of whatever sum there may be due upon such certificate. Tbe relief on tbe certificate may be afforded “only in an action in tbe nature of an action to foreclose a mortgage.” C. S., 8037. New Hanover County v. Whiteman, supra; Shale Products Co. v. Cement Co., supra. Tbe right of foreclosure by civil action “is tbe sole right and only remedy to foreclose tbe same.” Orange County v. Wilson, 202 N. C., 424, 163 S. E., 113; Wilkes County v. Forester, 204 N. C., 163, 167 S. E., 691; Logan v. Griffith, 205 N. C., 580, 172 S. E., 348; Rigsbee v. Brogden, 209 N. C., 510, 184 S. E., 24. In Logan v. Griffith, supra, Brogden, J., said: “Tbe applicable statutes create a lien for purchasers at tax sales, and also prescribe tbe procedure for enforcing said lien. ‘Foreclosure’ is tbe process provided for turning tbe lien into money.”

Tbe statutes are plain, explicit and understandable and need no interpretation. Under these statutes and decisions of tbis Court tbe taxes levied by Guilford County became a lien upon tbe lands in question superior to all other liens theretofore or thereafter created upon said lands, except as to taxes, if any, due to State or municipality. Through tbe certificate of sale tbis lien is continued in tbe county by way of subrogation. Tbe county has tbe right of foreclosure, and that right is tbe only right tbe county has to enforce tbe lien of tbe certificate of sale, for tbe collection of tbe tax. Tbe county may pursue tbis course at its election. Rigsbee v. Brogden, supra.

Defendant administrator contends that in tbe present case, tbe estate being insolvent, “tbe taxes assessed on tbe estate of deceased previous to bis death” are relegated to tbe third class by tbe statute providing for payments of tbe debts of tbe estate. C. S., 93. With tbis we do not agree. In Rigsbee v. Brogden, supra, tbe Court held that taxes on a life estate assessed previous to tbe death of tbe taxpayer are entitled to preferential payment out of tbe personalty left by him, but that tbe tax sales certificate itself is not provable as a preferred claim against tbe estate of tbe deceased. Tbe court added, however, that “Foreclosure and redemption are tbe pertinent remedies of tbe individual bolder of tbe certificate and tbe owner of tbe land.”

*766If defendants’ contention should be accepted, then, upon the death of a taxpayer, C. S., 93 would strike down numerous statutes which are applicable to the taxpayer while living. C. S., 93 would run counter not only to the tax lien created under C. S., 7987, the lien of tax sale certificate provided under C. S., 8036, and the subrogation and right of foreclosure as in case of a mortgage as'prescribed in 8037, but to C. S., 7980. This last statute requires that in judicial proceeding for the sale of land the judgment shall provide for payment of taxes, and in sales under powers granted taxes shall be paid out of the proceeds. It further provides that a failure to pay the tax shall not vacate or affect this lien, but that such lien shall be discharged only to the extent that payment is actually made.

Under defendants’ contention, on the death of the taxpayer, a transition takes place,' and the lien of the mortgage goes into first place, and that of the taxes into third place. Manifestly, the Legislature did not so intend. C. S., 93 deals with the administration of personal estates. “. . . The personal property of any deceased person shall be liable in the hands of any executor or administrator for any tax due by any testator or intestate. . . .” C. S., 8008. C. S., 93 provides the order for payment of debts out of the personal property. Upon the death of the taxpayer the personal estate vests in the administrator or executor, and the lands descend to his heirs or vest in the devisees, subject to be sold, if necessary, to make assets to pay debts. Price v. Askins, 212 N. C., 583, 194 S. E., 284; Linker v. Linker, ante, 351, 196 S. E., 329. If the personal estate be insufficient to pay debts of the estate, the administrator, by appropriate proceeding, may resort to the sale of the land, burdened, however, with such liens, statutory or otherwise, as exist at the time. But this right does not prevent the holder of the tax sale certificate from foreclosing in civil action in the nature of an-action to foreclose a mortgage during the pendency of the administration of the estate. Nothing said in Rierson v. Hanson, 211 N. C., 203, 189 S. E., 502, militates against this position.

Defendant relies upon the case of Fertilizer Co. v. Bourne, 205 N. C., 337, 171 S. E., 368. As was said in the case of R. R. v. Reid, 187 N. C., 320, 121 S. E., 534, “If we apply the statement of Ghief Justice Marshall that ‘every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered’ ” (U. S. v. Burr, 25 Fed. Cases, 165), we must conclude that there is nothing in Fertilizer Co. v. Bourne, supra, that militates against our present position. The lien of a certificate of tax sale and the right to enforce such lien by foreclosure were not there involved.

The judgment below is

Affirmed.