Armstrong v. Jonas

• Decision Date: 08 February 1933
• Docket Number: No. 517.,517.
• Citation: 167 S.E. 562,204 N.C. 153
• Court: North Carolina Supreme Court
• Parties: ARMSTRONG. v. JONAS et al.

167 S.E. 562

204 N.C. 153

ARMSTRONG.

v.JONAS et al.

No. 517.

Supreme Court of North Carolina.

Feb. 8, 1933.

Appeal from Superior Court, Special Term, Lincoln County; Harris, Judge.

Action by J. S. Armstrong against Charles A. Jonas, trustee, and others. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

On July 1, 1927, Kenneth Grigg and wife executed a deed of trust to Charles A. Jonas, trustee, and the Commercial Bank & Trust Company, cestui que trust, to secure a note for $10,000, payable to said bank. The property described in the deed of trust was sit uated on Main street in the town of Lincoln-ton. The deed of trust contains the following stipulation: "It is agreed that W. E. Grigg is the owner of a life estate in the property herein conveyed, said property having been willed to him by B. F. Grigg during the lifetime of said W. E. Grigg." The Seth Lumber Company purchased the note and deed of trust above described for valuable consideration on or about June 18, 1931. and is now the owner and holder of said deed of trust. On September 16, 1929, J. S. Armstrong, plaintiff, secured a judgment against Kenneth Grigg and W. E. Grigg, amounting to $2,735, with interest and cost. Thereafter an execution was issued, and the land duly sold thereunder by the sheriff on July 20, 1931. At said execution sale the plaintiff Armstrong became the purchaser of said land, and on August 22, 1931, instituted the present action to cancel the deed of trust, dated July 1, 1927, and recorded In Book of Mortgages 154, at page 438. as a cloud upon his title, upon the proof that the acknowledgment of said deed of trust was taken by W. E. Grigg, notary public, who at the time owned a life estate in the land. At the conclusion of the evidence there was judgment of nonsuit, and the plaintiff appealed.

W. H. Childs and W. A. Dennis, both of Lincolnton, for appellant.

Ryburn & Hoey, of Shelby, for appellee Lumber Co.

Kemp B. Nixon, of Lincolnton, for appellees Charles A. Jonas and Liquidating Agent of Commercial Bank.

BROGDEN, J.

If a notary public owns a life estate in a parcel of land, is he qualified to take the acknowledgment of the grantor and his wife to the execution of a deed of trust upon the remainder in fee?

It has been generally held that, if a notary public is a party, trustee, or cestui que trust, in a conveyance of land, he is disqualified to probate the instrument or to take the acknowledgment of its execution. Blanton v. Bostic, 126 N. C. 418, 35 S. E. 1035; ...