Dew v. Pyke

• Decision Date: 30 October 1907
• Citation: 59 S.E. 76,145 N.C. 300
• Parties: DEW et al. v. PYKE et al.
• Court: North Carolina Supreme Court

59 S.E. 76

145 N.C. 300

DEW et al. v. PYKE et al.

Supreme Court of North Carolina

October 30, 1907

Appeal from Superior Court, Brunswick County; Webb, Judge.

Action by John A. Dew and others against W. H. Pyke and others for the possession of land. From a judgment of nonsuit plaintiffs appeal. Affirmed.

Under Rev.Code, c. 42, § 22 (Code 1883, § 2779; Revisal 1905, § 1729), requiring a grant to be registered in the county where the land lies within two years after the grant is perfected failure to so register does not render the grant void, since the statute does not include a provision to that effect, as it does in relation to deeds and some other instruments, and while registry of a grant is necessary to make it evidence of the title, it does not constitute an essential part of the title itself.

A state grant issued in 1852 was not registered until 1888, at which time there was no law permitting it to be registered. Another grant to the same land had been issued in 1880, which was registered in 1881; but during that time the first grant could have been registered under extending acts then in force. An act was subsequently passed (Acts 1893, p. 52, c 40), legalizing the registry of grants theretofore registered, but providing that nothing therein should have the effect to devest any rights, title, or equities in the land covered by such grant. Held, that the second grant was invalid, because the state had no title at the time it was made, and especially since the first grant could have been registered at the time of the issue and registry of the second grant and during the intervening time, and hence there was no vested title or equity to be affected by the act of 1893.

An entry on public lands gives an equity or inchoate right to call for a grant, which may be devested by a subsequent entry laid and grant issued thereon before the grant based on the first entry is taken out, if the senior grantee had no notice of the first entry; but where the grant issues upon the first entry the title passes out of the state, and the land is no longer subject to entry.

C. Ed. Taylor and Lewis & Schulken, for appellants.

E. K. Bryan and Cranmer & Davis, for appellees.

WALKER J.

This is an action for the possession of land. The court intimated an opinion against the plaintiffs, who thereupon submitted to a nonsuit and appealed.

The state granted the land to Lewis Jones October 25, 1852. This grant was not registered until 1888, at a time when there was no law permitting the registration of it. On December 17, 1880, a grant for the same land was issued to Alexander Cox and legally registered January 28, 1881. The plaintiffs assert title to the land under the grant to Cox, and the defendants under the Jones grant, so that the question is: Which of these two grants should prevail? By Acts 1893, p. 52, c. 40, it was provided that grants which had theretofore been issued, but had not been registered within the time required by law, might be registered at any time within two years after January 1, 1894, "notwithstanding the fact that such specified time had already expired, and all such grants heretofore registered after the expiration of such specified time shall be taken as if they had been registered within such specified time: provided, that nothing herein contained shall be held or have the effect to divest any rights, titles or equities in or to the land covered by such grants, or any of them, acquired by any person or persons from the state of North Carolina, by or through any entry or entries, grant or grants, made or issued since such grants were respectively issued, or of those claiming through or under such subsequent entry or entries, grant or grants." This case is governed by Janney v. Blackwell, 138 N.C. 437, 50 S.E. 857. In both cases the junior grants were registered within the prescribed time, for while in the Janney Case the junior grant was registered more than two years after it was issued, Acts 1876-77, p. 68, c. 23, extended the time of registration, and it was registered within the extended period. In this case the junior grant was registered within two years from the date it was issued.

There is, though, this one difference between the two cases, which is that the senior grant in the Janney Case was registered at a time when its registration was authorized-that is, by the act of 1893 to which we have already referred, it having been registered April 5, 1895-while in this case the senior grant, which was issued to Jones, was registered in 1888, or at a time when there was no law authorizing its registration; the Legislature having failed from 1885 to 1903 to pass any act extending the time for the registration of grants. But that very act of 1893 validated the registration of all grants which had been registered after the time for registration had expired, except as to "rights, titles or equities" acquired in the land from the state since the issuing of the senior grant, or, in other words, any intervening "rights, titles or equities." While the two cases, therefore, differ in the respect indicated, they do not differ in principle, because it is clearly and distinctly held in Janney v. Blackwell that the junior grantee had acquired no such "right, title or equity" as was intended by the act of 1893 to have the effect of defeating the title of the senior grantee, and, indeed, no "right, title or equity" at all, as at the time the junior grant was issued the land was not the subject of entry; the state having by the senior grant parted with all the title she had originally in the land. The language of the court in that case, as used by Justice Connor in this connection, is significant, and completely overthrows the plaintiff's contention in the case at bar. "It is not to be doubted," says he for the court, "that the Legislature had the power to impose upon the persons registering their grants after the time provided therefor had expired the condition that they should do so subject to junior grants which had been registered. The registration of a grant is not necessary to give it validity for the purpose of passing title"-citing 24 Am. & Eng. Enc. of Law (2d Ed.) p. 116, which fully sustains the proposition, if it required any authority to sustain it.

The distinction between deeds and grants in this respect is obvious, when we carefully read the statutes applying to them, respectively. In the case of a deed, it is provided that it shall not be valid, unless registered, as against creditors or purchasers for a valuable consideration from the bargainor, and then only from the registration thereof (Acts 1885, p. 233, c. 147; Code 1883, § 1245; Revisal 1905, § 980), while in the case of a grant it is simply required that the grantee shall cause it to be registered in the proper county within two years after it is issued (Rev. Code, c. 42 § 22; Code 1883, § 2779; Revisal 1905, § 1729). Why this radical difference in the phraseology of the two statutes, if it was intended that there should be no distinction between the two kinds of instruments with reference to the effect of registration upon their validity? It is perfectly evident that the two enactments were expressed in different words designedly, and with the purpose that they should have separate and distinct meanings and receive different constructions. If it was the purpose to provide that grants should be void if not registered within two years after they are issued, why not declare that intention in unmistakable language, as was done in the case of deeds? We also find that in the case of contracts to convey land and leases of land for more than three years (Revisal 1905, § 980), mortgages and deeds of trust (Revisal 1905, § 982), marriage settlements (Revisal 1905, § 985), and some other instruments, the intention that they shall be void if not duly registered is clearly expressed, and in the case of deeds of gift the difference is striking, and demonstrates to a certainty, we think, what was meant by the different phraseology. It is provided that a deed of gift shall be proved and registered within two years after its execution. So far the statute is like that in the case of grants. But the Legislature did not think this language sufficient to invalidate the deed of gift, if the provision as to registration was not complied with by...