Appeal
from Superior Court, Caldwell County; Stack, Judge.
Action
by Florence E. Boyd against the Bristol Typewriter Company.
From an order dissolving an order restraining defendant from
selling certain property, plaintiff appeals. Reversed.
Purchaser
under circumstances, entitled to have property free from
judgment lien against grantor, though docketed before
recordation of conveyance.
The
parties agreed that the court below should find the facts
which are as follows:
"That
on October 12, 1918, W. S. Whiting and wife executed a deed
of trust to G. M. Sudderth, trustee, to secure B. B
Dougherty and five others against any loss which they might
sustain as accommodation indorsers on five promissory notes
of $5,000, each bearing even date with the deed of trust,
and being due and payable February 12, 1919, said deed of
trust being on two tracts of land, first tract containing
764 acres, and second tract containing 1,002 acres, and
that the average value of said land was $25 per acre. That
said deed of trust was filed for registration November 13,
1918, and is recorded in Watauga county in record of
Mortgages, marked W, on pages 115 to 119, inclusive. That
said deed of trust contains the following clause:
'Provided, that as said land is sold from time to time,
with approval of said trustee, the proceeds shall be
applied pro rata to the payment of said notes and the
accrued interest thereon.' That none of the indorsers
secured by said deed of trust ever paid out anything by
reason of their said indorsement, and that the said
indebtedness has been fully paid and satisfied. That the
plaintiff, Florence E. Boyd, purchased a portion of the
lands described in said deed of trust from W. S. Whiting
and wife, a deed calling for 260 1/3 acres, at the price of
$25 per acre. And W. S. Whiting and wife, Caroline L.
Whiting, on September 13, 1919, executed a deed to the
plaintiff for said land, which was placed in escrow with G.
M. Sudderth, trustee, to be delivered when the purchase
price was paid, but she did not file the same for
registration in Watauga county until the 22d day of
November, 1922, at which time it was filed for
registration, and was registered in book 30, page 261, and
said deed was also filed for registration in Caldwell
county on the 12th day of July,
1923, and is recorded in book 103, page 524. G. M. Sudderth
did not join in said deed, and the same was not sold by him
under the power contained in the deed of trust, but the
money paid to Sudderth, trustee, by Miss Boyd was paid over
by Sudderth on the notes secured by the deed in trust to
him. That the defendant, Bristol Typewriter Company,
obtained a judgment against W. S. Whiting, which was
docketed November 13, 1922, in the office of the clerk of
the superior court of Watauga county, in judgment docket
No. 3, page 47, the judgment being for the sum of $328.85,
and with interest thereon from September 1, 1921, and the
costs. That the land covered by plaintiff's deed is
located in Watauga county. That the plaintiff paid $1,000
cash, and paid $2,000 more, making a total of $3,000 on
said purchase price before the registration of her deed and
before the said judgment of defendant was docketed in the
superior court of Watauga county, and she has paid the
remaining $3,833.33 since the registration of her deed and
since the docketing of the said judgment of the defendant
against W. S. Whiting in Watauga county. That this
plaintiff issued a summons in Caldwell superior court on
July 28, 1923, against W. S. Whiting and wife, Caroline
Whiting, and G. M. Sudderth and Watauga County Bank, in
which action there were two judgments rendered, one at
August term, 1923, and the other at November term, 1923, as
said judgments appear of record, which should be included
in these findings of fact, but the defendant, Bristol
Typewriter Company, was no party to said action. That W. S.
Whiting was adjudged a bankrupt in the year 1924."
"Upon
the foregoing facts I conclude that the plaintiff is not
entitled to restrain the defendant from proceeding to sell
the property embraced in her deed, and that said judgment
constitutes a valid lien against her land. It is therefore
ordered and adjudged that the restraining order heretofore
granted be dissolved; that the plaintiff is not entitled to
recover, and is not entitled to have the defendant's
judgment canceled as a cloud upon the plaintiff's title;
that said judgment is a valid lien against the property
described in the deed from W. S. Whiting and wife to the
plaintiff, and the sheriff is directed to proceed with the
sale thereof for the purpose of satisfying the
defendant's execution, and the plaintiff is adjudged to
pay the cost of this action to be taxed by the clerk."
The
attorneys, after the findings of Judge Stack, agreed as
follows:
"In
this cause it is stipulated and agreed: (1) The deed of
trust of Whiting and wife to Sudderth, trustee, dated
October 12, 1918, referred to in the pleadings and findings
of the court, was at the date of the institution of this
action and now is uncanceled of record. (2) The sale of
lands to plaintiff by Whiting and wife was with the
approval of George M. Sudderth, trustee."
The
plaintiff excepted, made the following assignments of error,
and appealed to the Supreme Court:
"(1)
The error of the court in the conclusion that the plaintiff
is not entitled to restrain the defendant from proceeding
to sell the property embraced in her deed, and that said
judgment constitutes a valid lien against her land.
(2)
The error in adjudging that the restraining order
theretofore granted be dissolved.
(3)
The error in adjudging that the plaintiff is not entitled
to recover, and is not entitled to have the defendant's
judgment canceled as a cloud upon plaintiff's title.
(4)
The error in adjudging that the said judgment is a valid
lien against the property described in the deed from W. S.
Whiting and wife to the plaintiff, and the sheriff is
directed to proceed with the sale thereof for the purpose
of satisfying the defendant's execution, and the
plaintiff is adjudged to pay the cost of this action to be
taxed by the clerk.
(5)
The judgment rendered by the court."
CLARKSON
J.
One of
the most important acts ever enacted to quiet titles is known
as the "Connor Act," passed in 1885 (chapter 147).
C. S. § 3309, in part, is as follows:
"No
conveyance of land, or contract to convey, or lease of land
for more than three years shall be valid to pass any
property, as against creditors or purchasers for a valuable
consideration, from the donor, bargainor, or lessor, but
from the registration thereof within the county where the
land lies," etc.
C. S. §
3311, is as follows:
"No
deed of trust or mortgage for real or personal estate shall
be valid at law to pass any property as against creditors
or purchasers for a valuable consideration from the donor,
bargainor or mortgagor, but from the registration of such
deed of trust or mortgage in the county where the land
lies; or in case of personal estate, where the donor,
bargainor or mortgagor resides; or in case the donor,
bargainor or mortgagor resides out of the state, then in
the county where the said personal estate, or some part of
the same, is situated; or in case of choses in action,
where the donee, bargainee, or mortgagee resides. For the
purposes mentioned in this section the principal place of
business of a domestic corporation is its residence."
C. S. §
614, in part, is as follows:
"Upon
filing a judgment roll upon a judgment affecting the title
of real property, or directing in whole or in part the
payment of money, it shall be docketed on the judgment
docket of the superior court of the county where the
judgment roll was filed, and may be docketed on the
judgment docket of the superior court of any other county
upon the filing with the clerk thereof a transcript of the
original docket, and is a lien on the real property in the
county where the same is docketed of every person against
whom any such judgment is rendered, and which he has at the
time of the docketing thereof in the county in which such
real property is situated, or which he acquires at any time
thereafter, for ten years from the date of the rendition of
the judgment," etc.
The
statutes quoted are the ones that concern us in this...
