#### TOWN OF DUNN v. JOHN J. TEW and Wife, FANNIE G. TEW; LENA SMITH, Administratrix of C. J. SMITH, Trustee, Deceased; COMMERCIAL BANK OF DUNN, N. C., and COUNTY OF HARNETT.

(Filed 19 March, 1941.)

1. Pleadings § 28—

Where the answer admits the material allegations of the complaint and alleges new matter not relating to a counterclaim, the new matter is deemed denied, Michie’s Code, 543, but when such new matter does not raise issues of fact but presents only questions of law, the court may render judgment on the pleadings, there being no controyerted issues of fact for the determination of the jury. Michie’s Code, 554, 556.

2. Taxation § 38b — Where taxpayers’ answer in action to foreclose tax certificate presents questions of law only, court may render judgment on the pleadings.

This was an action by a municipality to foreclose a tax lien. Defendants admitted the amount of the tax levied, the locus in quo, the amount due on the tax sale certificate and that payment had been demanded, that default was made in payment of said taxes, that plaintiff is the owner of the tax sale certificate, and that the period for payment of the certificate at the foreclosure had expired, hut denied the right of the municipality to levy and collect the taxes. Held: The answer presents questions of law only, and the court may render judgment on the pleadings without submitting an issue to the jury.

3. Municipal Corporations § 42 — Municipality may levy and collect taxes within territory annexed without regard to public improvements and notwithstanding that taxes may be used to pay prior indebtedness of city.

Where the corporate limits of a municipality have been extended by legislative act (chapters 82, 201, Private Laws of 1925), the municipality has jurisdiction over the territory annexed and may levy and collect taxes on the property embraced therein, notwithstanding that the taxes so collected may be used to pay municipal indebtedness incurred prior to the time of the annexation and, notwithstanding that streets and public improvements comparable to those enjoyed by the other residents of the municipality had not been afforded to those within the territory annexed, the making of improvements within the territory annexed being within the sound discretion of the municipality.

4. Municipal Corporations §§ 3, 5—

Municipal corporations are creatures of the legislative will and are subject to its control, and the Legislature, in its discretion, may provide for the annexation of new territory and enlarge the municipal jurisdiction to the new boundaries, and prescribe the terms and circumstances under which the annexation may be had and the manner in which it may be made, in the absence of constitutional restriction.

Appeal by defendants John J. Tew and Fannie Gr. Tew, from Williams, J., at October Term, 1940, of Habitett.

Affirmed.

*287This was a civil action instituted in November, 1935, and wbicb came on for bearing before Williams, Judge, and a jury, at tbe October Term, 1940, of tbe Civil Term of Superior Court of Harnett County. After tbe jury was selected and impaneled, tbe court of its own volition and without submitting issues to tbe jury, rendered tbe judgment hereinafter set out, from wbicb judgment tbe defendants John J. Tew and Fannie G. Tew, and each of them, excepted, assigned errors' and appealed to tbe Supreme Court of North Carolina.

Tbe judgment of tbe court below was as follows:

“This cause coming on to be beard, and being beard, upon motion for judgment on tbe pleadings before tbe undersigned Judge bolding tbe Court of tbe October Term for tbe trial of civil cases in Harnett Superior Court, no evidence being submitted by tbe defendant John J. Tew and wife; and tbe Court finding that all parties defendant were duly served with summons and copy of complaint by tbe Sheriff of Harnett County; and that all parties in interest named as parties defendant herein are properly before tbe Court, and that all defendants having failed to answer except tbe County of Harnett and John J. Tew and wife, Fannie G. Tew, and that these answering defendants offered no evidence, and that time for filing answer or demurring on tbe part of tbe other parties defendant having expired; and it further appearing to tbe Court and tbe Court finding that defendants John J. Tew and wife, Fannie G. Tew, are indebted to tbe plaintiff for taxes duly and properly assessed and levied for tbe years sued on' (1932) in tbe amount of $15.93, together with costs, interests, and penalties as alleged by law; and that tbe said defendants John J. Tew and wife are also indebted to tbe County of Harnett in tbe sum of $12.19 for taxes duly and properly assessed and levied by it for tbe year as set out in tbe answer filed herein, together with tbe costs, interest, and penalties as allowed by law; and that tbe aforementioned amounts of money due tbe Town of Dunn, Plaintiff, and tbe County of Harnett, as above set forth, should be declared specific liens against tbe lands described in tbe complaint filed herein, and that tbe said lands should be condemned and foreclosed to satisfy tbe said liens; and that tbe proceeds of such sale should be applied in ratio in satisfaction of tbe said specific liens, after paying costs and expenses of sale to satisfaction of said liens, wbicb said liens are found to be superior liens of equal dignity and preferred to all other liens on said lands :

“It is, Therefore, Considered, Ordered, Adjudged and Decreed upon motion of plaintiff’s counsel that tbe Town of Dunn has a specific lien for taxes duly and properly assessed and levied, and as above recited, against tbe lands hereinafter described of said defendants John J. Tew and' wife in tbe sum of $15.93, tbe said sum being tbe amount of said *288taxes together with penalties thereon in the sum of $9.29, together with interest at the rate of 6% per annum from October 9, 1940, and the cost of this action; and that the County of Harnett has a specific lien against the lands hereinafter described in the sum of $12.19, said sum being the amount of said taxes found to be due the County of Harnett with such penalties due thereon in the sum of $ ., with interest on said taxes at the rate of six per cent per annum from October 9, 1940, until paid; and that the aforementioned sums be and they are hereby declared first and prior liens of equal dignity upon the lands and premises described in the complaint filed herein, to-wit: (land described).

“And it is Further Decreed that the said lands and premises be, and the same are hereby condemned and Ordered sold for cash at public auction at the Courthouse door of Harnett County on the 25th day of November, 1940, after publishing notice of said sale for once a week for four consecutive weeks in the Dunn Dispatch, a newspaper published in Harnett County, and by posting notice of said sale at the Court House door of Harnett County, and otherwise as prescribed by law; and to that end J. Shepard Bryan is appointed Commissioner of the Court with full power to conduct said sale and upon confirmation thereof by the court to execute and deliver deed to the purchaser conveying title to the lands in fee simple and thereupon all the rights, title, interest and estate of the defendants in and to the said lands shall be forever thereafter barred. That the plaintiff and other interested parties hereto be, and they are hereby permitted to bid at said sale. That the Commissioner herein appointed to make said sale shall immediately file his report with the Court and upon confirmation thereof, the receipt of the purchase price, execution and delivery of the deed to the purchaser, shall pay into Court the amount received by him to be disbursed by the Court as follows : (a) to the payment of the costs and expenses of sale including a reasonable allowance to the Commissioner for his services in the matter (b) to the discharge in ratio of the specific liens herein declared (c) to subsequent lienholders according to priority (d) to those legally entitled.

“And this cause is retained for further order of the Court. This the 10th day of October, 1940. Clawson L. Williams, Judge Presiding.”

The other material facts will be set forth in the opinion.

J. Shepard Bryan for plaintiff.

J. R. Young for appealing defendants.

OlakksoN, J.

The defendants’ exceptions and assignments of error are as follows: “1. For that the Court erred in signing the judgment without submitting issues to the jury, the burden being on the plaintiff to prove its case, and as appears in the record over the objections of the *289defendants. 2. For tbat the Court erred over the objection of the defendants in signing judgment in favor of the plaintiff.” These exceptions and assignments of error cannot be sustained on the record.

The complaint alleges: (1) that plaintiff is a municipal corporation and under the law has the power to levy and collect taxes on real and personal property in the town and assessments for street and sidewalk improvements. This is admitted by defendants, but they allege it is inoperative as to defendants’ property.

(2) That the appealing defendants, owners of the land in controversy, listed them for the year 1932. This is admitted in defendants’ answer.

(3) That the amount of tax assessed for the year 1932 by the town of Dunn was $15.93. This is admitted in defendants’ answer.

(4) That default was made in the payment of the above taxes and the land sold by the tax collector and purchased by plaintiff. This is admitted in defendants’ answer, but defendants allege that the tax collector had no authority to sell the land.

The appealing defendants, for a further defense, allege: That the plaintiff, the town of Dunn, is without legal authority to levy against or collect any taxes whatsoever against the property of these defendants, for the following reasons:

(1) That the Act of the General Assembly of North Carolina, extending or attempting to extend the corporate limits of the plaintiff municipal corporation is unconstitutional and is therefore void, in that no general election was had or vote had on the matter and these defendants or other residents did not have an opportunity to say whether they should be incorporated.

(2) That the rate is in excess of that allowed by law.

(3) That the levy included a rate to take care of certain outstanding bonded indebtedness prior to the time of the extension.

(4) That the bonded indebtedness was incurred and expended for the sole purpose and benefit of the residents of the town of Dunn, and property owners, and that these defendants have not received anything in the way of improvements, any streets, no sidewalks, any sewer or water facilities for which indebtedness was incurred.

(5) That the plaintiff had furnished the appealing defendants no improvements although requested so to do, such as streets, sidewalks, sewer, water, fire protection, etc. That they have been denied the same privileges and conveniences that the other citizens and residents have been accorded by the reason of the improvements heretofore made by the said town of Dunn, for which said taxes have been levied.

(6) That the appealing defendants have been damaged in more than the taxes levied, by not being furnished the above improvements. These defendants pray that the action be dismissed as to these defendants, and *290each of them, and that they be permitted to go Pence without day until the said town of Dunn has furnished to these defendants the necessary improvements and protection that the other residents are enjoying.

The first question presented: Does the court below have the right to render judgment for the plaintiff on the pleadings, on plaintiff’s motion, when the pleadings present no controverted issues of fact? We think so.

N. C. Code, 1939 (Michie), sec. 554, is as follows: “A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.”

Sec. 556 : “An issue of law must be tried by the judge or court, unless it is referred. An issue of fact must he tried by a jury, unless a trial by jury is waived or a reference ordered. Every other issue is triable by the court, or judge, who, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury, or may refer it.” (Italics ours.)

The admissions by defendants in the answer raised no issue of fact to be submitted to a jury. There was no fact that the jury had to pass on. The court below was careful to note that the answer filed admitted the amount of the tax levied; admitted the locus in quoj admitted the amount due on tax sale certificate; and that payment of said sum had been demanded; admitted that default was made in payment of said taxes; admitted that plaintiff is owner of tax sale certificate; and admitted that period of payment of certificate without foreclosure, as provided by statute, has expired — but that it denied that the town of Dunn had any authority to levy and collect said taxes or to sell the property assessed for any purported taxes that had been levied. This denial presents questions of law only.

In Miller v. Miller, 89 N. C., 209, it is held: “Only such issues as arise upon the pleadings should be submitted to the jury, and it is the duty of the court to determine what they are.”

In Riley v. Carter, 165 N. C., 334 (337), it is said: “There being no conflict of testimony, and the facts being virtually admitted, the court could direct a verdict or instruct the jury as it did. Purifoy v. R. R., 108 N. C., 101.”

In Jeffreys v. Ins. Co., 202 N. C., 368 (372) : “Only issues of fact which arose on the pleadings, and are detez’minative of the rights of the parties to the action, must be submitted to the jury.”

Under the statute, supra, “An issue of fact must be tried by a jury.” In the present action there is no issue of fact. As said in Bank v. Stone, 213 N. C., 598 (602) : “The jury only may find controverted issues of fact.”

N. 0. Code, supra, sec. 543, is as follows: “Every material allegation of the complaint not controverted by the answer, and every material *291allegation of new matter in tbe answer, constituting a counterclaim, not controverted by tbe reply is, for tbe purposes of tbe action, taken as true. But tbe allegation of new matter in tbe answer, not relating to a counterclaim, or of new matter in reply, is to be deemed controverted by tbe adverse party as upon a direct denial or avoidance, as tbe case requires.”

Tbe second question presented: Do tbe pleadings raise only questions of law? We tbink so.

Conceding tbat tbe town of Dunn taxes levied on defendants’ property were partly used to retire bonded indebtedness or pay interest on same incurred prior to annexation of defendants’ land witbin tbe corporate limits of tbe town, as tbe defendants set forth in answer, did tbe town of Dunn bave legal authority to levy and collect by foreclosure tbe taxes against tbe defendants, as alleged in tbe complaint? We tbink so.

Tbe corporate limits of tbe town of Dunn were extended by act of tbe General Assembly, as appellant admits. (See chapters 82 and 201, Private Laws of North Carolina, 1925.) Tbe legal authority of tbe town of Dunn to exercise corporate jurisdiction, over territory annexed by Act of General Assembly, is clearly set forth in many cases in this jurisdiction.

In Lutterloh v. Fayetteville, 149 N. C., 65 (69), it is said: “We bave held, in common with all tbe courts of this country, tbat municipal corporations, in tbe absence of constitutional restrictions, are tbe creatures of tbe legislative will, and are subject to its control; tbe sole object being tbe common good, and tbat rests in legislative discretion. Manly v. Raleigh, 57 N. C., 370; Dorsey v. Henderson, 148 N. C., 423; Perry v. Commissioners, 148 N. C., 521. Consequently, it follows tbat tbe enlargement of tbe municipal boundaries by tbe annexation of new territory, and tbe consequent extension of their corporate jurisdiction, including tbat of levying taxes, are legitimate subjects of legislation. In tbe absence of constitutional restriction tbe extent to which such legislation shall be enacted, both with respect to tbe terms and circumstances under which tbe annexation may be had, and tbe manner in which it may be made, rests entirely in tbe discretion of tbe Legislature. With its wisdom, propriety, or justice, we have naught to do. It has therefore been held tbat an act of annexation is valid which authorized tbe annexation of territory without tbe consent of its inhabitants, to a municipal corporation, having a large unprovided-for indebtedness, for tbe payment of which tbe property included witbin tbe territory annexed became subject to taxation.” Holmes v. Fayetteville, 197 N. C., 740; Penland v. Bryson City, 199 N. C., 140; .Chimney Rock Co. v. Lake Lure, 200 N. C., 171; Highlands v. Hickory, 202 N. C., 167.

Other matters complained of by defendants as to improvements in tbe *292section, were in tbe sound discretion of plaintiff, the municipality. We see no prejudice to defendants in the other matters complained of in defendants’ brief.

From a careful reading of the record and briefs, we think the judgment of the court below must be

Affirmed.