Bernhardt v. Brown

• Decision Date: 19 April 1898
• Citation: 29 S.E. 884,122 N.C. 587
• Parties: BERNHARDT et al. v. BROWN et al.
• Court: North Carolina Supreme Court

29 S.E. 884

122 N.C. 587

BERNHARDT et al. v. BROWN et al.

Supreme Court of North Carolina

April 19, 1898

Appeal from superior court, Burke county; Robinson, Judge.

Action by J. M. Bernhardt and others against G. W. Brown and others to try title to land. Judgment for plaintiffs. Defendants appeal. Affirmed.

A deed absolute on its face, which is a mere security for a debt, is void as against creditors of the grantor.

S. J Ervin and Avery & Avery, for appellants.

J. T Perkins and Edmund Jones, for appellees.

CLARK J.

Upon the complaint and answer it appears that both sides claim under the North Carolina Estate Company, Limited. The eighth prayer for instruction by the defendants is that, ordinarily when it is shown that both parties hold through a title from a common source, it is not necessary to go beyond the common title, unless a superior title be shown by one of the parties with which he connects himself by a chain of title; but in this case, the title of the defendants derived from the common source having been adjudged void (upon the former appeal in this case), the defendants are not estopped from showing a better outstanding title in any person other than the common source of title. There is not a scintilla of evidence connecting the defendants with any outstanding title, and, upon their pleadings, they are estopped to deny the common source of title. The fact that their assertion of having that title in themselves has been adjudged invalid in this action does not set them free now to assert a superior title in some one else with whom they do not connect themselves. But, if it did, it would not avail the defendants, as the holders of the alleged outstanding title, if such were shown, would be merely tenants in common with the plaintiffs, who can therefore recover as against these defendants. Moody v. Johnson, 112 N.C. 804, 17 S.E. 579; Gilchrist v. Middleton, 107 N.C. 663, 12 S.E. 85. Therefore it is unnecessary to consider any of the exceptions in this case as to matters prior to the common source of title. The title was shown to be out of the state.

The defendants except because, "5,000 acres being excepted from the grant of 1795 under which the plaintiffs claim, the burden is on the plaintiffs to show that the land sued for is not the excepted part." The law is well settled otherwise. "The locus in quo being within the boundary of plaintiff's deed, and defendant claiming under exceptions in said deed, it is clear that it is incumbent on him to bring himself within the exceptions by proofs." Iron Co. v. Edwards, 110 N.C. 353, 14 S.E. 861; Gudger v. Hensley, 82 N.C. 482. Besides, the complaint is to recover "the lands remaining unsold, and not excepted from the boundaries of the grant"; and the answer says the defendants "are in possession of the land sued for and in controversy." Payment of taxes is some evidence of title (Austin v. King, 97 N.C. 339; Ruffin v. Overby, 105 N.C. 78, 11 S.E. 251); but, if it was offered to be shown here by competent proof, its exclusion was harmless error; for, it having already been adjudged in this case (118 N.C. 700, 24 S.E. 527, 715) that the defendants did not have the title of the North Carolina Estate Company, Limited, which they set up in their answer, and not having connected themselves with any outstanding title, nor shown possession for seven years under color of title, proof of payment of taxes for two or three years before action brought could have availed them nothing. Even evidence of adverse possession for a period less than the prescribed time is not a circumstance to go to the jury. King v. Wells, 94 N.C. 344; Melvin v. Waddell, 75 N.C. 366.

The jury found, on competent evidence and proper instruction, that the conveyance to Hatter by and Clarkson, though absolute on its face, was a mere security for debt. It was therefore void as to the creditors of the North Carolina Estate Company, Limited, and to the plaintiffs, who held under a judgment and execution sale in favor of one of such creditors. Gregory v. Perkins, 15 N.C. 50; Gulley v. Macey, 84 N.C. 434. The unregistered deed of defeasance and bonds secured thereby, produced by the defendants in response to an order of the court (under Code, §§ 578, 1373), were competent to submit to the jury as evidence tending to show the nature of the transaction, without proof of their execution. Being in possession of the defendants, and the facts peculiarly within their knowledge, it devolved upon them to negative any inference arising from the existence of such papers. But this conveyance, even if it was an absolute deed, was not proved by the officers of the corporation, but by the individual acknowledgment of Matthew Robins and Walter Mullens, and the probate was fatally defective. Clark v. Hodge, 116 N.C. 765, 21 S.E. 562; Plemmons v. Improvement Co., 108 N.C. 614, 13 S.E. 188; Duke v. Markham, 105 N.C. 131, 10 S.E. 1017; Bason v. Mining Co., 90 N.C. 419. Its registration was therefore a nullity. Quinnerly v. Quinnerly, 114 N.C. 145, 19 S.E. 99; Long v. Crews, 113 N.C. 256, 18 S.E. 499; Duke v. Markham, supra; Todd v. Outlaw, 79 N.C. 235; De Courcy v. Barr, 45 N.C. 181. The subsequent re-probate and registration, in 1897, since the plaintiffs' title accrued, and since this action was brought, can have no effect. Acts 1885, c. 147; Waters v. Crabtree, 105 N.C. 394, 11 S.E. 240.

This brings us to the point most earnestly debated in this case i. e. whether the plaintiffs have acquired the title of the North Carolina Estate Company, Limited, under the execution sale. At January term, 1890, of Catawba superior court, John Paalzo obtained judgment against the North Carolina Estate Company, Limited. On March 8, 1890, a transcript of the judgment was sent to the superior court of Burke county, and was entered on the docket there, on March 10, 1890. An execution on this judgment, under seal of the court, which states on its face that it was issued from Catawba on March 8, 1890, was sent to the sheriff of Burke county, who indorsed thereon its receipt by him, May 31st; and, after due advertisement, the land in question, the property of the defendant in the execution, was sold, on the 8th of July of the same year, at which sale the plaintiff in the execution bought and received the sheriff's deed for the land, and in 1892 duly conveyed the same to the plaintiffs in this action. The defendants contend that said sale was void because on March 8, 1890, when the execution purports to have been issued to the sheriff of Burke county, the transcript of the judgment had not then been docketed in the latter county. From...