Bryant Mfg. Co. v. Hester

• Decision Date: 02 April 1919
• Docket Number: 284.
• Citation: 98 S.E. 721,177 N.C. 609
• Parties: BRYANT MFG. CO. v. HESTER ET AL.
• Court: North Carolina Supreme Court

98 S.E. 721

177 N.C. 609

BRYANT MFG. CO. v. HESTER ET AL.

No. 284.

Supreme Court of North Carolina

April 2, 1919

Appeal from Superior Court, Bladen County; Calvert, Judge.

Action by the State, on the relation of the Bryant Manufacturing Company, against R. J. Hester and others. Judgment for plaintiff, and defendants appeal. New trial.

The action is against the register of deeds of Bladen county and the surety on his official bond to recover damages alleged to have been caused by the register's negligence in failing to properly index and cross-index a prior mortgage, whereby the relator of plaintiff, holding a record mortgage and contract, suffered substantial damage. The court ruled that liability on the part of defendant was admitted in the pleadings, and the issue was only on the question of damages. The cause was then submitted to the jury on the following issues, defendant excepting "(1) Did the plaintiff advance money to Moore & Moore upon the execution of the mortgage by Moore & Moore to the plaintiff to secure the same, and, if so, what amount?

(2) Were Moore & Moore entitled to any credits on the amount so advanced by the plaintiff, and, if so, what was the amount of such credit?

(3) What amount is the plaintiff entitled to recover?"

The court then charged the jury, if they found the facts to be as testified to by the witnesses, they would answer the first issue, Yes; $2,000; second issue, Yes; $758.85; third issue $1,241.15, with $15 accrued interest.

Judgment for plaintiff, and defendant excepted and appealed.

Bayard Clark, E. F. McCulloch, Jr., and R. S. White, all of Elizabethtown, for appellants.

McClammy & Burgwin, of Wilmington, for appellee.

HOKE J.

It may be well to note that the recent decisions to the contrary Ely v. Norman, 175 N.C. 298, 95 S.E. 543, and Fowle & Son v. O'Ham, 176 N.C. 12, 96 S.E. 639 being prospective in operation and the rights of these parties having been acquired and held under our registry laws as they were construed and applied in Davis v Whitaker, 114 N.C. 279, 19 S.E. 699, 41 Am. St. Rep. 793, to the effect that indexing and cross-indexing were not essential to a valid registration, notwithstanding the defects alleged in this instance, the prior incumbrance was properly registered, and constituted a valid lien on the property. And, again, that this is not a case where the title to the timber is directly involved, and in which case no notice, however full and formal, will supply the place of a valid registration (Robertson v. Willoughby, 70 N.C. 358; Todd v. Outlaw, 79 N.C. 235), but the suit is an action to recover damages for the negligent breach of duty on the part of the register of deeds in failing to index and cross-index an instrument by means of which plaintiff suffered pecuniary loss. Considering the record in view of these positions and on the question whether liability was admitted in the pleadings, it is alleged in the complaint, in effect, that, in 1914, Moore & Moore, as owners of certain timber on a designated tract of land in Bladen county, contracted with relator of plaintiff to cut the timber on said land and deliver the same to relator in rafts at their landing within bounds of the property, at the rate of $7 per thousand feet and at the rate of not less than 60,000 feet per week till same was all cut and delivered, and relator, the Bryant Manufacturing Company, hereafter spoken of as plaintiff, was to retain as much as $2 per thousand feet to reimburse plaintiff on advancements to be made under the contract, to the amount of $2,000, to enable Moore & Moore to begin operations; that these advancements were to be made in case title was ascertained to be good by plaintiff's attorney, and before same was made Moore & Moore were to give a mortgage on the timber to secure repayment to plaintiff of sums advanced; that, plaintiff's attorney having informed plaintiff that there were no incumbrances on the property, the mortgage was given, recorded, and plaintiff advanced the $2,000 to Moore & Moore as agreed upon; that Moore & Moore entered on the work of cutting and rafting the timber, and, having delivered sufficient timber to make a repayment thereof of $758.85, this from the $2 per thousand, authorized to be retained, and having failed to deliver further, on inquiry, told plaintiff they could not go on without more pecuniary help; that plaintiff declined to advance more except under its own supervision; and himself entered on the work, when he was stopped by court injunction, in a suit by N.H. Carter and B. F. Keith, who held a prior mortgage on the timber, duly registered and executed to them by Blackburn and Jackson, from whom Moore & Moore had bought the same, said mortgage purporting to secure Carter & Keith, the original owners of the timber, in the sum of $6,000, the original purchase price; that plaintiff had frequently endeavored to obtain repayment of the balance due on the advancements from Moore & Moore, to wit, the $1,241.15, with said accrued interest, and had failed to do so. The defendants, alleging that the register had duly recorded the prior mortgage and indexed the same, showing the names of the grantees, admitted that the same had not been fully indexed and cross-indexed as the statute required. The answer then, having put in issue the other allegations of the complaint tending to fix liability, made further averments, to the effect that the condition and records appearing in the register's office were such as to put the plaintiff on full notice of the existence of the prior mortgage; that it was referred to and fully described in the bill of sale by which Blackburn and Jackson conveyed the timber to Moore & Moore; that the paper containing such recital was on record, and was read by counsel for plaintiff when making an examination of the title and a copy thereof taken, and for this the index and cross-index would have fully disclosed the page and book, etc., showing the...