Brown v. Hutchison
| Decision Date | 11 May 1911 |
| Citation | 71 S.E. 302,155 N.C. 205 |
| Parties | BROWN v. HUTCHISON et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wilkes County; Long, Judge.
Action by A. B. Brown against J. F. Hutchison and others. From a judgment for defendants, plaintiff appeals. Error.
An order by the clerk for the registration of a deed is a continuous order, and it is the duty of the register to act at any time until the deed shall have been fully recorded.
Finley & Hendren and W. W. Barber, for appellant.
F. D Hackett, Hayes & Jones, and Hackett & Gilreath, for appellees.
This was an action brought originally before the clerk under the processioning act (Revisal 1905, § 326), to establish a boundary line. The issue of title being raised by the answer the cause was properly transferred for trial to the superior court at term. Smith v. Johnson, 137 N.C. 43, 49 S.E. 62; Stanaland v. Rabon, 140 N.C. 202, 52 S.E 417; Davis v. Wall, 142 N.C. 452, 55 S.E. 350; Woody v. Fountain, 143 N.C. 69, 55 S.E. 425; Green v. Williams, 144 N.C. 63, 56 S.E. 549.
The first exception is that the judge refused to permit the plaintiff to introduce in evidence a deed from Absher to Brown, executed in December 1859, as a part of the plaintiff's chain of title, on the ground that it was not recorded till after the commencement of the action. The exception is well taken.
While it is unquestionably true that the plaintiff must have title at the commencement of the action, as well as at the time of the trial (Burnett v. Lyman, 141 N.C. 501, 54 S.E 412, 115 Am. St. Rep. 691), it is not indispensable that the deed should be recorded at the commencement of the action. The delivery of the deed conveys the title which will be perfected by registration.
It is well settled that the plaintiff in ejectment may recover upon an equitable title, though it was otherwise on the law side of the docket under the former system of procedure. Condry v. Cheshire, 88 N.C. 375, and numerous cases approving that case cited in the annotated edition, among them Taylor v. Eatman, 92 N.C. 610; Geer v. Geer, 109 N.C. 682, 14 S.E. 297; Arrington v. Arrington, 114 N.C. 118, 19 S.E. 278. In Respass v. Jones, 102 N.C. 11, 8 S.E. 770, the court says (citing Condry v. Cheshire, supra): --adding that, though "the legal estate is not perfected till registration, when registered it relates back to its date of execution," citing McMillan v. Edwards, 75 N.C. 81, and other cases. See, also, Phillips v. Hodges, 109 N.C. 251, 13 S.E. 769.
Chapter 147, Laws 1885, now Revisal, § 980, contains no limitation as to the time when a deed shall be registered. It simply provides that it shall not be valid against purchasers or creditors, except from the registration thereof. Cozad v. McAden, 148 N.C. 11, 61 S.E. 633; Hallyburton v. Slagle, 130 N.C. 484, 41 S.E. 877.
It is true that the instrument must be probated and registered to be competent as evidence of title. Jennings v. Reeves, 101 N.C. 450, 7 S.E. 897, which quotes with approval Phifer v. Barnhardt, 88 N.C. 333, and Walker v. Coltraine, 41 N.C. 79, that The doctrine laid down in Phifer v. Barnhardt, supra, is affected by the act of 1885, c. 147, now Revisal, § 980, to this extent only, that a junior registered deed is valid from its registration in priority to a senior deed which is registered later.
His honor's action was based upon the ruling in Morehead v. Hall, 132 N.C. 122, 43 S.E. 542, which is not in point. In that case, when the action was begun, the grant from the state, issued in 1765, through which the plaintiff claimed, not only had not been registered, but could not have been legally registered at that time. Therefore the plaintiff could have had no title when he began his action. A subsequent act authorized the registration of the grant which at the time of the trial had been registered, but the court held that the registration could not relate back prior to the passage of the act, and validate a cause of action which did not exist when summons issued. Here the deed from Absher to Brown was valid as between them without registration, and could have been recorded at the time the action was begun. When it was registered, it related back to the delivery of the deed. The only exception to the effect of such relation back would be as to purchasers claiming under the same chain of title, or creditors.
It has been not uncommon practice, as the profession knows, that when a deed offered in a chain of title has not been registered, and therefore cannot be admitted in proof, for the parties to probate it then, and have it registered during the trial. Among many cases in which this has been recognized are Cawfield v. Owens, 129 N.C. 286, 40 S.E. 62; Cook v. Pittman, 144 N.C. 531, 57 S.E. 219, 119 Am. St. Rep. 985. This is sometimes done during a recess of the court, and there have been instances where the presiding judge, to prevent a defect of justice, in his discretion, has granted the parties time to go down to the clerk's office to probate the deed and have it registered that it may be offered in evidence.
In this case the plaintiff had already introduced a grant from the state to Eli Brown, dated October, 1846, and duly registered. He could therefore have shown seven years possession under color. Gilchrist v. Middleton, 107 N.C. 663, 12 S.E. 85.
The deeds from Eli Brown to Absher in 1855 and of Absher to Elijah Brown in 1859, and the deed from the latter's executors in 1862, recorded in 1885, were competent to show color of title. In Janney v. Robbins, 141 N.C. 400, 53 S.E. 863, it is held that the principle under our present registration law of 1885, c. 147, now Revisal, § 980, that an unregistered deed does not constitute color of title, does not extend to a claim by adverse possession, held for the requisite time under a deed foreign to the title, under which the opposite party claims. It is true that the plaintiff did not offer proof of possession; but he was excluded from offering the above deeds and from showing that they covered the locus in quo.
The plaintiff offered to introduce in evidence a deed from the executors of Elijah Brown to himself for the locus in quo, executed in 1862 and registered in 1885. The court refused to admit the same, because the record of the certificate of the justice of the peace had omitted the signature of the justice. The certificate as recorded was as follows:
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