Glass v. Lynchburg Shoe Co.
| Decision Date | 22 September 1937 |
| Docket Number | 33. |
| Citation | 192 S.E. 899,212 N.C. 70 |
| Parties | GLASS et al. v. LYNCHBURG SHOE CO. et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rockingham County; I. J. Ervin, Jr. Special Judge.
Action by Leila M. Glass and others against the Lynchburg Shoe Company and others. From a judgment in favor of the plaintiffs, the defendants appeal.
Affirmed.
An action brought by the plaintiffs to restrain the sale under execution of the lands described in the complaint and to remove as cloud upon title the judgments under which the execution issued.
The parties waived jury trial and agreed that the court should find the facts without a jury, and on hearing all the facts were admitted of record.
R. L Borland, widower, who had title in fee simple, conveyed the land in question to W. B. Wray by deed dated June 14, 1912. W. B. Wray entered into possession immediately but did not register his deed. He claimed only under it. Wray conveyed to J. D. Glass by deed dated July 27, 1912, registered August 22, 1912. J. D. Glass and wife, Leila M. Glass, executed deed of trust to W. R. Dalton, trustee, to secure indebtedness to a third party. This deed of trust was dated September 25 1912, registered October 5, 1912. W. R. Dalton, trustee foreclosed under the deed of trust and conveyed to Leila M. Glass by deed dated October 20, 1917, registered October 31, 1917. J. D. Glass having died March 11, 1917, Leila M. Glass, widow, conveyed a portion of the land to Thos. A. Mitchell and wife, Mary L. Mitchell, by deed dated February 22, 1924, registered February 23, 1924.
Plaintiffs claim title by adverse possession under the registered deeds as color of title.
The deed from W. B. Wray to J. D. Glass, the deed of trust from J. D. Glass and wife to W. R. Dalton, trustee, the deed from W. R. Dalton, trustee, to Leila M. Glass, and the deed from Leila M. Glass to Thos. A. Mitchell and wife were based upon valuable consideration, were duly executed, delivered, and registered, were sufficient in form to convey, and purported to convey, the land in fee simple by specific description.
Immediately upon obtaining deed from W. B. Wray, July 27, 1912, J. D. Glass entered actual possession of the land under said deed "claiming the same as his own," and he and the plaintiffs, claiming under him and under said subsequent conveyances, continued such actual, open, and notorious possession under known and visible lines and boundaries, and were in such possession on November 16, 1925.
Defendant Lynchburg Shoe Company obtained judgments against R. L. Borland which were duly docketed as provided by law on November 16, 1925. In January and February, 1935, executions were issued to defendant L. M. Sheffield, as Sheriff, who, under authority thereof, levied upon and advertised for sale all the land in controversy, both that claimed by plaintiff Leila M. Glass and that by Thos. A. Mitchell and wife, in the manner and in accordance with law. The sale was enjoined in this action. R. L. Borland is insolvent and without property sufficient to satisfy the execution.
Upon these facts the court below concluded as matters of law in substance the following: (1) The deed from R. L. Borland to W. B. Wray not having been registered in compliance with the Connor Act, C. S. § 3309, that plaintiffs do not derive any title under said R. L. Borland; (2) that the deed from W. B. Wray to J. D. Glass, the deed of trust from J. D. Glass and wife to W. R. Dalton, trustee, the deed from W. R. Dalton, trustee, to Leila M. Glass, constitute color of title to the land claimed by Leila M. Glass, and that the said deed, the deed of trust, and the deed from Leila M. Glass to Thos. A. Mitchell and wife constitute color of title to the land claimed by Thos. A. Mitchell and wife; (3) that the acts of Leila M. Glass and of J. D. Glass, in possessing the land claimed by Leila M. Glass, and the acts of Thos. A. Mitchell and wife, Leila M. Glass, and J. D. Glass in possessing the portion of the land claimed by Thos. A. Mitchell and wife, under the said deeds, from September 25, 1912, to November 16, 1925, as to each portion of land, constituted in law adverse possession for more than seven years, to wit, for a period of thirteen years; (4) that title had been ripened in Leila M. Glass and in Thos. A. Mitchell and wife, respectively, to the land claimed by each by such adverse possession under color of title prior to the docketing of the judgments of defendant Lynchburg Shoe Company against R. L. Borland, November 16, 1925, and hence R. L. Borland had no title to said lands upon which the liens of said judgments could attach.
From an adverse judgment in accordance with such rulings the defendants appealed to the Supreme Court and assigned error.
That deed, which was not registered in compliance with statute, appeared in chain of title of grantees of realty, did not prevent subsequent deeds in chain, which were duly registered, from being "color of title" under which title would ripen by adverse possession of more than seven years, as against creditors and purchasers for value of grantor of unregistered deed.
Until deed was registered in compliance with statute, grantee did not acquire complete title (C.S. § 3309).
W. R. Dalton and P. W. Glidewell, both of Reidsville, for appellants.
Allen H. Gwyn, of Reidsville, for appellees.
The court below was correct in holding: (1) That plaintiffs derived no title from R. L. Borland; and (2) that the unregistered deed appearing in the chain of title to the property in question did not prevent subsequent deeds in the chain, which are duly registered, being color of title under which title may be ripened by adverse possession as against creditors and purchasers for value of the grantor in such unregistered deed. This conclusion is not in conflict with the Connor Act, C.S. § 3309, and gives effect to the statute relating to adverse possession under color of title, C.S. § 428.
Considering these two statutes together and giving effect to each, as applied to the fact situation in the present case, title remained in R. L. Borland until he was either divested of it by the registration of his deed to W. B. Wray or divested of it by adverse possession for seven years under color of title, C.S. § 428.
The unregistered deed from R. L. Borland to W. B. Wray was good as be-between them (Warren v. Williford, 148 N.C 474, 62 S.E. 697; Weston v. Lumber Co., 160 N.C. 263-266, 75 S.E. 800); but until it was registered W. B. Wray did not acquire a completed title-the real title (C.S. § 3309). Hence, the deed from W. B. Wray to J. D. Glass purported to...
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