Booth v. Hairston, (No. 382.)

• Docket Nº: (No. 382.)
• Citation: 136 S.E. 879
• Case Date: February 23, 1927
• Court: United States State Supreme Court of North Carolina

136 S.E. 879
(193 N.C. 278)

BOOTH et al.
v.
HAIRSTON.

(No. 382.)

Supreme Court of North Carolina.

Feb. 23, 1927.)

[136 S.E. 880]

Stacy, C. J., and Adams, J., dissenting.

Appeal from Superior Court, Guilford County; Shaw, Judge.

Suit by C. L. Booth, trustee of Elizabeth L. James, and others against Samuel Hairston. Judgment for plaintiffs, and defendant appeals. No error.

Brooks, Parker & Smith and Andrew Joyner, Jr., all of Greensboro, and Malcolm K. Harris, Danville, Ill., for appellant.

Meade & Meade, of Danville, Va., and King, Sapp & King, of Greensboro, for appellees.

CLARKSON, J. This action was brought by plaintiffs against the defendant to set aside a deed made by Mrs. A. E. George to her son, Samuel Hairston, defendant, to certain land in the city of Greensboro. Mrs. George's first husband was George Hairston, father of defendant. The deed in controversy bears the date of February 21, 1921, and purports to convey to the defendant, Samuel Hairston, the land in litigation in fee simple. The deed was acknowledged before J. L. Bagby, commissioner of deeds of North Carolina, in Richmond, Va., on the above date, and was filed for registration in the office of the register of deeds of Guilford county on the 15th day of January, 1924.

It was alleged in the complaint: That the deed was without consideration, void and of no effect, and a cloud on plaintiffs' title, and prayer that it be canceled of record. The defendant, in regard to the circumstances of the execution of the deed to him, in his answer says: "At the same time she produced a deed to this defendant, which paper she had and which had never been seen by this defendant before, and as to-which this defendant had no sort of knowledge of any kind or character, and Mrs. A. E. George then stated: That, as he (the defendant) knew, she had always intended to give to him a fair proportion of her estate. That she greatly appreciated his lifelong consideration of her and her feelings. That she had had this deed prepared for the purpose of carrying out her desire that he should have this property in Greensboro." That the "same was legal, valid, and effectual for every purpose and was then and there delivered by Mrs. A. E. George to this defendant, * * * and the transaction was simply one of mother desiring to give to her son certain property she owned and executed deed therefor in due course. * * » That after receiving this deed, this defendant saw no reason for hurrying in having it recorded, and deposited same in his safety deposit box in the First National Bank with the intention of allowing it to remain until convenient opportunity should arise in a short time to forward it to Guilford county to be placed on record." That for the reason of illness and not having any occasion to do so, he did not go to Greensboro until the 15th day of January, 1924, to attend a business meeting, when he took the deed and had it recorded on that date. The answer shows that the deed was one of gift.

In the court below it was tried out on an issue found by the jury against the defendant. The defendant assigned numerous errors in the trial below and appealed to this court. The plaintiffs, appellees in this court, filed a supplemental brief, and contend that the deed was one of gift, and void because not registered within two years, and cites C. S. 3315, which is as follows:

"All deeds of gift of any estate of any nature shall within two years after the making thereof be proved in due form and registered, or otherwise shall be void, and shall be good against creditors and purchasers for value only from the time of registration."

The deed which plaintiffs are attacking bears date and was signed on February 21, 1921, and was recorded on January 15, 1924— 2 years, 10 months, and 25 days after the record evidence discloses that it was signed, and 10 months and 25 days after the time allowed by the statute for recording.

It is contended by plaintiffs, therefore, that it had been void under the foregoing statute 10 months and 25 days at the time it was put on record. Plaintiffs further contend that if the deed under which defendant is claiming title had been a valid and bona fide deed or gift, as contended by defendant, and even if it were not absolutely void by reason of the way it was obtained, as contended by plaintiffs in the court below, then the deed became void by the very terms of the statute in consequence of the defendant keeping it in his lock box for more than 2 years after its delivery without placing it on record; that it was necessary in order for the defendant to obtain title under this deed of gift to place it Upon record. The statute made that a condition precedent, and title to the property did not vest in him until it was recorded in accordance with the terms of the statute, and plaintiffs insist that by reason of defendant's failure to comply with the statute aforesaid the deed under which he claims is absolutely void, and no title to the land ever vested in the defendant. The statute itself declares that it shall be void.

The defendant, in answer to the position taken by plaintiffs in their supplemental brief, contends that the plaintiffs cannot for the first time upon appeal raise the question as to the application of C. S. 3315, supra. The

[136 S.E. 881]

fact that there Is no allegation made by the plaintiffs in their complaint to the effect that the deed in question is void under the statute, or that the statute is relied upon by the plaintiffs, and therefore the statute has never become an issue in this case.

It is said in Shipp v. Stage Lines, 192 N. C. 478, 135 S. E. 340:

"A party is not permitted to try his case in the superior court on one theory and then ask the Supreme Court to hear it on another and different theory. Warren v. Susman, 108 N. C. 457 [84 S. E. 700]."

This position is sound and wise, but has no application to the facts in the present action. The pleadings, both complaint and answer, show that the deed in controversy was one of gift. The plaintiffs allege it was without consideration, void, and of no effect If it was one of gift and under the statute void, as contended by plaintiffs, why consider defendant's assignments of error in the court below on the issue there tried out? Cui bono? If error should be found and a new trial granted, how would it profit the defendant? On the entire record the facts are admitted, and a question of law alone arises. If a new trial was awarded, no different result could follow. By analogy, where a charge of the trial court is erroneous, but the entire testimony relevant to the inquiry was before the court, it being perfectly apparent that in no aspect of it is there any defense available, our decisions are to the effect that a new trial should not be granted. Our system of appeals is founded on public policy, and appellate courts will not encourage litigation by granting a new trial which could not benefit the litigant and the result changed upon a new trial, and the nongranting was not prejudicial to his rights. Bateman v. Lumber Co., 154 N. C. at page 253, 70 S. E. 474, 34 L. R. A. (N. S.) 615; Rierson v. Iron Co., 184 N. C. 363, 114 S. E. 467; Davis v. Storage Co., 186 N. C. 676, 120 S. E. 462. "They will only interfere, therefore, where there is a prospect of ultimate benefit." Cauble v. Exp. Co., 182 N. C. at page 451, 109 S. E. 268.

The defendant further contends that the statute, Public Laws Extra Sess. 1924, c. 20, ratified August 20, 1924, extends the time ot registration and cures the defect, "that the time is hereby extended until September first, one thousand nine hundred and twenty-six, for the proving and registering of all deeds of gift, grants from the state, " etc. It further provides:

"All such instruments which have heretofore been or may be probated and registered before the expiration of the period herein limited shall be held and deemed, from and after the date of such registration, to have been probated and registered in due time, if proved in due form, and registration thereof be in other respects valid."

Plaintiffs say the deed, having become void under the statute, cannot be validated by the act of 1924; * * * that in order for the defendant to acquire title under the deed it must have been recorded within two years, otherwise it is void; that it was void before the act of 1924 was passed, and the act cannot constitutionally validate a void deed and thus disturb vested rights. When this enabling or curative act was passed, Mrs. A. E. George had willed the property in controversy to plaintiffs, on April 24, 1923, after the two years for registration had expired. Of course the will speaks at her death. C. S. 4165. She died on January 1, 1925, and her will was duly probated. Plaintiffs claim title under the will in this action, and the same land is claimed by deed of gift by defendant that was willed to plaintiffs.

Before and after the deed of gift was executed, and until her death, the rents of the property were paid each month to Mrs. A. E. George. The insurance on the building was in her name. The property was on the tax books listed in her name. Thus, after the deed was made, and up to her death, Mrs. George exercised dominion over the property —all with the knowledge and adverse' to defendant. For example:

"Checks of Armour & Co., payable to Mrs. Ann E. George, the first of said checks being in words and figures as follows, to wit: " 'Auditor's No. 203834. Treasurer's No. 73009.

" 'Chicago, Ill. Dec. 23, 1920. " 'Pay to the order of Mrs. Ann E. George 5150.00, one hundred and fifty and 00/100 Dollars.

"'(H.W.) Armour & Co.

" 'Cummings.

" 'To Continental & Comm'l Nat. Bank, " 'Payable at Chicago, Ill.

" 'Messrs. Kountz Bros. Bankers. Indorsed: "Mrs. Ann E. George." Also indorsed by the Federal Reserve Bank of Chicago, and "Commercial Bank of Danville, Va., C. L. Booth, Cashier."

The last check, "dated Chicago, Ill., Nov. 21, 1924, Armour & Co. to Mrs. Ann E. George,...