County Sav. Bank of Abbeville, S. C. v. Tolbert

• Citation: 133 S.E. 558,192 N.C. 126
• Decision Date: 09 June 1926
• Docket Number: 581.
• Parties: COUNTY SAV. BANK OF ABBEVILLE, S. C., v. TOLBERT et al.
• Court: United States State Supreme Court of North Carolina

133 S.E. 558

192 N.C. 126

COUNTY SAV. BANK OF ABBEVILLE, S. C., v. TOLBERT et al.

No. 581.

Supreme Court of North Carolina

June 9, 1926

Appeal from Superior Court, Jackson County; Bryson, Judge.

Action by the County Savings Bank of Abbeville, S. C, against T. P Tolbert and others. Judgment for plaintiff, and defendants appeal. Reversed. Action for possession of land. Plaintiff and defendant both claim title to the land in controversy from R. R. Tolbert Jr., as the common source of their respective titles. The land is located in Jackson county, N. C.

Plaintiff claims immediately under deed from R. E. Cox and wife, dated April 4, 1924, and duly recorded on said date. On June 4 1923, N. L. Sutton, sheriff of Jackson county, sold the land under an execution in his hands issued upon a judgment of the superior court of Jackson county, rendered in an action therein pending, instituted by County Savings Bank of Abbeville, S. C., as plaintiff, against R. R. Tolbert, Jr., as defendant; the summons in said action, dated October 30, 1922, was served by publication upon said defendant, who was a nonresident of the state of North Carolina, but who had property in North Carolina; a warrant of attachment issued in said action was levied upon the land in controversy as the property of R. R. Tolbert, Jr. It was adjudged in said action that plaintiff recover of defendant the sum of $5,556.91, interest, and costs, and that said judgment was a specific lien upon the land in controversy by virtue of the attachment levied thereon. Under the execution issued on said judgment, the sheriff of Jackson county sold the said land, and by deed dated and recorded on June 4, 1923, conveyed the same to R. E. Cox, the purchaser, at said execution sale.

Plaintiff contends that by virtue of said deeds, to wit, the deed of the sheriff to R. E. Cox and of R. E. Cox and wife to plaintiff, plaintiff is now the owner of all the right, title, and estate of R. R. Tolbert, Jr., in and to said land owned by him on October 30, 1922, the date on which the attachment was levied therein in the action entitled, "County Savings Bank v. R. R. Tolbert, Jr."

Defendant claims immediately under deed from Walter E. Moore, commissioner, dated November 26, 1923, and duly recorded on said date. This deed was executed by the said commissioner by virtue of a decree made by the superior court of Jackson county in an action entitled, "T. P. Tolbert v. R. R. Tolbert, Jr.," confirming the sale of said land made on November 5, 1923, at which defendant was the purchaser. This action was begun on June 28, 1923, for the purpose of foreclosing a mortgage executed by R. R. Tolbert, Jr., to T. P. Tolbert, dated June 13, 1922. The execution of said mortgage was probated by a notary public of South Carolina on June 13, 1922. The certificate of said notary public was adjudged by the clerk of the superior court of Jackson county to be correct and according to law; the mortgage, with the certificates of the notary public and of the clerk of the superior court of Jackson county were recorded in the office of the register of deeds of said county on September 19, 1922, in Book 87 at page 474.

Defendant contends that by virtue of said mortgage, recorded on September 19, 1922-prior to the date on which the attachment under which plaintiff claims was levied upon said land, to wit, October 30, 1922-and by virtue of the judgment and decrees in the action, entitled "T. P. Tolbert v. R. R. Tolbert, Jr.," and of the deed of the commissioner conveying the land to him, his title to said land is prior to the title of plaintiff, and that therefore plaintiff is not entitled to recover of him possession of said land.

It is admitted, upon the record, that the mortgage under which defendant claims was executed in Asheville, N. C.; that its execution was proven by a subscribing witness thereto before a notary public of South Carolina in said city; that the certificate of said notary public was attached thereto in said city; and that the said mortgage was ordered to registration and registered in Jackson county, upon the certificate of said notary public. Plaintiff contends that for this reason the registration of the said mortgage was void and of no effect as to it, an attaching creditor, and subsequent purchaser for value.

The note secured by the said mortgage and the mortgage purport, each on its face, to have been executed in South Carolina; the certificate of the notary public of South Carolina shows, upon its face, that it was signed by said notary public in said state. There is nothing on the face of the note, the mortgage, or the certificate as to its probate, which shows that it was executed or probated in North Carolina.

Upon the foregoing facts, established by the undisputed evidence offered at the trial, the court was of the opinion that only questions of law were presented to the court for its decision, in order that a judgment might be rendered herein, determining the rights of the parties with respect to the possession of the land described in the complaint; that, as there was no controversy as to the facts, it was not necessary that issues be submitted to the jury. Counsel for both plaintiff and defendant concurred in this opinion. Thereupon, in accordance with the opinion of the court as to the law applicable to the admitted facts, judgment was rendered that plaintiff recover of defendant possession of the land described in the complaint. It was ordered that the action be retained on the docket that issues as to damages sustained by plaintiff on account of the wrongful possession of the land by defendant might hereafter be submitted to the jury.

From this judgment defendant appealed.

Brooks, Parker & Smith, of Greensboro, Walter E. Moore, of Sylva, and Mays & Featherstone, of Greenwood, S. C., for appellants.

J. M. Nickles, of Abbeville, S. C., and Morgan & Ward and Alley & Alley, all of Waynesville, for appellee.

CONNOR J.

Defendant, by his appeal, presents two questions:

(1) Were the affidavits upon which the orders were made for the publication of summons, and for the issuance of the warrant of attachment, in the action entitled "County Savings Bank v. R. R. Tolbert, Jr.," sufficient to support said orders? We find no error in the holding of the court that the affidavits were sufficient, and that therefore, by virtue of the deeds under which it claims title to said land, plaintiff is the owner of all the right, title, and estate of R. R. Tolbert, Jr., in and to said land at the date of the levying of the attachment, to wit, October 30 1922. It was not alleged specifically in said affidavits that "the superior court of Jackson county has jurisdiction of the subject of the action." There is no requirement in C. S. § 484, or in C. S. § 799, that such allegation shall be made specifically in the affidavit. In this case the jurisdiction of the court as to the subject of the action appeared from the facts...