#### LILLIE COOKE PEARCE et al. v. N. C. ROWLAND, JR.

(Filed 5 June, 1947.)

Taxation § 42: Tenants in Common § 7—

Respondent, a tenant in. common in expectancy in possession of the land, redeemed it from the county after tax foreclosure. There was conflict in the evidence as to whether respondent had promised petitioner, his co-tenant, to pay the taxes. Petitioner had knowledge of the tax foreclosure proceedings. This- proceeding for partition was instituted some thirteen years after the redemption from tax foreclosure. *Held:*Whether respondent’s redemption of the land was for the benefit of petitioner depends upon whether respondent was under any legal or moral obligation to pay the taxes, and this question together with the plea of laches should have been submitted to the jury, and a directed verdict for petitioner must be held for error.

Appeal by respondent from *Thompson, J.,*at September Term, 1948, Of FRANKLIN.

Petition for partition. Plea of sole seizin and laches by respondent.

The *locus in quo*is the Nannie Cooke 34-acre tract of land in Franklin County which her mother devised to her subject to her father’s life estate. In 1929 the life tenant, W. A. Parrish, conveyed his interest in the property to his son, who kept it for two years, or until the spring of 1931, and “turned it loose” or surrendered it to all who had an interest in it,

Nannie Cooke died intestate leaving her surviving four children, the *feme*petitioner herein and three others. The three conveyed their interests to the respondent during August and September of 1930 for very nominal amounts. Many efforts were made by the respondent to purchase the *feme*petitioner’s share, but without avail. After the grantee of the life estate had surrendered his interest, the respondent told the petitioner that a foreclosure proceeding had been brought to sell the land for taxes. Whereupon, the petitioner said to the respondent that as “he was using the land, to go ahead and pay the taxes and use it, and if anything remains, see me.” This ivas the last conversation the *feme*petitioner had with the defendant.

The *feme*petitioner further testified that she received summons “concerning the sale of the land for taxes; that she did not file any answer, because Mr. Rowland promised to pay the taxes.”

There was a sale of the land to the county in the tax foreclosure suit. Opportunity was then extended to those interested to redeem the land upon payment of the taxes. This was accepted by respondent on the first Monday in April, 1933, being April 3rd. At that time, “he made a $10.00 deposit on the taxes, thinking Mrs. Pearce would come and pay her part.” He did not remember whether he went to see the *feme*peti*591tioner after making tbe deposit, but be says, “I gave ber a good showing in my estimation to come and protect ber land if sbe wanted to.”

Tbe respondent finally paid tbe taxes in full on 4 November, 1933, and received a deed from tbe county. Tbe deed bears date 19 April. It was registered 4 November.

From directed verdict for petitioners, tbe respondent appeals, assigning errors.

*G.*ill. *Beam and Yarborough & Yarborough for petitioners, appellees.*

*John F. Matthews for respondent, appellant.*

Stacy, C. J.

It is admitted tbat prior to tbe sale of tbe land for taxes in 1933, tbe *feme*petitioner and respondent were vested remainder-men (tenants in common in expectancy) deriving tbeir title and interests —one-fourtb and tbree-fourtbs respectively — from a common source. *Priddy & Co. v. Sanderford,*221 N. C., 422, 20 S. E. (2d), 341; 14 Am. Jur., 124. There is some evidence tbat respondent was in possession of tbe land when tbe tax lien was foreclosed.

After sale to Franklin County in tbe tax foreclosure proceeding, tbe county extended to tbe parties in interest an opportunity to redeem tbe land upon payment of tbe taxes then due and in arrears. This offer was accepted by tbe respondent on tbe first Monday in April, 1933, at which time he “made a $10.00 deposit on tbe taxes, thinking Mrs. Pearce-would come and pay ber part.” He is not certain whether be went to see her after making tbe deposit, but be says, “I gave ber a good showing in my estimation to come and protect ber land if sbe wanted to.” Tbe respondent finally paid tbe taxes in full on 4 November, 1933, and received a deed from tbe county, which bad theretofore been prepared on 19 April. It is this deed which be says forecloses tbe *feme*petitioner’s interest in tbe land and gives him sole seizin and exclusive title thereto.

There is a dispute as to whether 'the respondent was under promise to pay *feme*petitioner’s part of the taxes and account to her- in rents *(Bailey v. Howell,*209 N. C., 712, 184 S. E., 476) before tbe institution of the tax foreclosure proceeding. Sbe testifies that sbe did not file answer in tbe proceeding, “because Mr. Rowland promised to pay the taxes.”

Tbe respondent felt under some obligation to tbe *feme*petitioner even after bis agreement with tbe county to redeem the land upon payment of tbe taxes. *Stell v. Trust Co.,*223 N. C., 550, 27 S. E. (2d), 524, and cases there cited. He was very grateful to tbe County Attorney, “thanked him six or seven times, for getting him straightened out so be could get title to it.”

Tbe respondent says be has owned tbe whole of tbe land in question since 1933, “having purchased tbree-fourtbs from tbe heirs of *W.*A. *592Parrish, and one-fourth from the county.” Was the purchase of the one-fourth from the county made for the benefit of the *feme*petitioner ? The answer depends upon whether the respondent was under any legal or moral obligation to pay the taxes. *Smith v. Smith,*150 N. C., 81, 63 S. E., 177. The *feme*petitioner says he was. The respondent says he was not, or that, if he were, he discharged his duty in this respect. The evidence is such as to require the aid of a jury, free to render a verdict in keeping with the facts as it may find them to be under proper instructions from the court.

The plea of laches is also a matter to be considered on the further hearing. *Stell v. Trust Co., supra.*

There was error in directing a verdict for the petitioners.

New trial.