Eley v. Norman

• Decision Date: 03 April 1918
• Docket Number: 99.
• Citation: 95 S.E. 543,175 N.C. 294
• Parties: ELEY v. NORMAN.
• Court: North Carolina Supreme Court

95 S.E. 543

175 N.C. 294

ELEY v. NORMAN.

No. 99.

Supreme Court of North Carolina

April 3, 1918

Appeal from Superior Court, Hertford County; Whidbee, Judge.

Action by J. A. Eley against Isaac Norman. Judgment for plaintiff and defendant appeals. Affirmed.

Indexing deeds and mortgages is an essential part of their registration.

The purpose of the action was to declare a certain paper writing hereinafter set forth, a mortgage on the lands of defendant described therein, to secure a debt of $75, with interest due from defendant to plaintiff and for the further purpose of foreclosing the same under the decrees of the court. It was admitted that, on April 23, 1914, to secure advances to enable him to cultivate his crop for said year, to the amount of $75, defendant executed a lien on certain crops for said year therein described, and contained also the following provision:

It is further agreed that in case said I. Norman does not make sufficient crops to pay this amount of $75.00 that said paper is to be considered a mortgage on Isaac Norman lands in Winton township, Hertford county, and bounded as follows: On north by the main road from Cofield to Harrellsville; on east by George Keen tract; on west by I. Jernigan; on south by Lilly Hicks and Mac Hall. And if by the first of November 1914, said Isaac Norman should fail to pay said indebtedness then said J. A. Eley may foreclose this lien as provided in section two thousand and fifty-four, Revisal 1905, or otherwise, and may sell said crops and other property, after ten days' notice, posted at the courthouse door and three other public places in said county, and apply the proceeds to the payment of said indebtedness and all costs and expenses of executing this conveyance and to pay the surplus to said ______. And the said Isaac Norman hereby represents that said crops and other property are the absolute property of Isaac Norman and free from incumbrance with the exception of $100 lien--held by S.E. Harrell & Co., of Cofield, N. C.

Witness my hand and seal this the 23d day of April, 1914.

[Signed] Isaac Norman."

It was admitted, further, that the crops referred to in said instrument were all required to pay S.E. Harrell & Co. whose claim was constituted a preferred debt therein, and plaintiff alleged, further, that said paper writing was duly proved and registered and the amount advanced, no part of which had been paid. Defendant denied that the paper writing was in any sense a mortgage on realty, or that he owed for advancements to the amount claimed, and by way of further defense alleged that there had been a breach of warranty by plaintiff in the sale of a horse, advanced under the contract, and to defendant's damage. Defendant claimed further that there had been no proper registration of plaintiff's paper, in that same had been recorded only in the book used and labeled for liens and chattel mortgages. It was urged by defendant appellant that this became material in view of the fact that a subsequent mortgagee had been made party defendant by order of court. There was verdict for plaintiff that there had been no warranty of a horse or breach thereof on plaintiff's part; that the amount of advancements due and unpaid was $75. Upon the verdict, the court, being of opinion that the paper writing constituted a valid mortgage on defendant's realty described therein, and that same was properly registered, gave judgment of foreclosure and distribution of proceeds according to the liens presented and established in the suit, and defendant excepted and appealed.

R. C. Bridger, of Winton, and S. Brown Shepherd, of Fuquay Springs, for appellant.

W. D. Boone, of Winton, for appellee.

HOKE J.

Under our decisions, the instrument in question contains a sufficient description of the property (Patton v. Sluder, 167 N.C. 500, 83 S.E. 818), and, on the facts presented, the same creates a lien thereon in plaintiff's favor for the amount found to be due and unpaid, enforceable by judgment of foreclosure, the relief awarded to plaintiff on the record. Whether the paper writing is an equitable or legal mortgage is not now of the substance, though under many recent cases with us, upholding the principle that a deed should, as a general rule, be interpreted so as to effect the clear intent of the parties as expressed in the entire instrument, this would seem to constitute a regular legal mortgage, as it is declared to be in his honor's judgment. Jones & Philips v. McCormick, 174 N.C. 82, 93 S.E. 449; Williamson v. Bitting, 159 N.C. 321, 74 S.E. 808; Triplett v. Williams, 149 N.C. 394, 63 S.E. 79, 24 L. R. A. (N. S.) 514; Harris v. Jones, 83 N.C. 318.

It is chiefly objected for appellant that, although the instrument should be properly considered as a mortgage on realty, there is a defect of registration, in that the same is recorded in the book labeled and used for agricultural liens and chattel mortgages. Inasmuch as the only litigated questions thus far presented in the record or in the case on appeal are between the alleged mortgagee, plaintiff, and mortgagor, the original defendant, the case might very well be disposed of by the position that, as between these parties, the matter of a correct registration is not essential, this being now required only in reference to the rights and claims of creditors and subsequent purchasers. Revisal, §§ 980-982. But, as a subsequent mortgagee, admitted by defendant to hold a valid claim and lien on the property, has been made party defendant, it is well, and perhaps required, that the exception be directly disposed of that a proper distribution of the fund may be had.

An examination of this question will disclose that there are few subjects presented for consideration about which there is greater contrariety of decision than on the construction and application of the registration laws as affecting the validity of deeds and written instruments. In some of the states it is held that, when the holder of the title...