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.