Ijames v. Gaither

• Citation: 93 N.C. 358
• Court: North Carolina Supreme Court
• Decision Date: 31 October 1885
• Parties: DENTON IJAMES v. E. L. GAITHER et als.

93 N.C. 358

DENTON IJAMES

v.E. L. GAITHER et als.

Supreme Court of North Carolina.

October Term, 1885.

CIVIL ACTION tried, on a case agreed, by Graves, Judge, at Fall Term, 1885, of the Superior Court of DAVIE county.

The following facts were agreed upon between the parties to the action:

That on the 7th day of April, 1874, the defendant W. B. Jones borrowed of the plaintiff the sum of one hundred dollars, and executed to him his promissory note for the payment of the same, with the defendant R. M. Austin as surety thereon, which is hereto attached, marked “A.”

That on the same day, but after the said R. M. Austin had become surety, he being at the time solvent, Jones executed to Austin a deed of mortgage, dated on the 7th day of April, 1874, and duly recorded in the registry of Davie county, on the 23d day of December, 1874, conveying to said Austin the lot of land situated in the town of Mocksville, in said county, and which is described in the pleadings in this action, and is as follows, to-wit:

“Know all men by these presents that I, W. B. Jones, of Davie county, North Carolina, for and in consideration of the fact that R. M. Austin has this day signed my note to Denton Ijames, agent, for the sum of one hundred dollars ($100) as surety, and to secure him in the same, bargain and sell to the said Austin all my right, title and interest in and to a certain lot in the town of Mocksville, and adjoining the lot now occupied by me, and known as the “Dr. Jesse Carter office,” to have and to hold to him, the said Austin, and his heirs forever. The condition of this deed is, that if I pay off and discharge the said note held by the said Ijames, agent, on demand, the said deed to be void and of no effect, and if I do not, and said Austin should have the same to pay, then to be in full force and effect.

Dated this 7th of April, 1874.

W. B. JONES, [Seal].

Witness: C. Price.”

That thereafter, on the 19th day of July, 1876, the said Jones borrowed of the defendant J. M. Clement, who had no actual notice of the mortgage from Jones to Austin, the sum of $288, and executed to him a deed of mortgage conveying to him the same lot of land as security for the repayment thereof.

That Clement advertised and sold the land under his mortgage at the court house in Mocksville, on the 19th day of May, 1884, at which sale the defendant E. L. Gaither became the purchaser at the price of $201, upon the payment of which, Clement executed to him a deed for the land; that plaintiff was present at the sale, and publicly forbade the same.

That the defendant Gaither is in the possession of the land, and has been since his purchase thereof, and has made permanent valuable improvements thereon.

That R. M. Austin has never paid anything on the note to Ijames, and now refuses to pay anything, and nothing can be made out of him, by reason of his insolvency.

This action was begun by issuing the summons the 22d day of August, 1884.

That plaintiff seeks in this action to be subrogated to the rights and benefits of the security taken by defendant Austin, as surety on said promissory note from Jones as the principal therein, and it is submitted to the Court to say upon the facts agreed whether the plaintiff is entitled to the relief.

The Court upon the above facts rendered judgment as follows:

“This cause coming on to be heard upon the pleadings, and a case agreed, before his Honor, J. F. Graves, Judge presiding, it is now, on motion of counsel for the plaintiff, ordered, adjudged and decreed, that the plaintiff recover of the defendant W. B. Jones, the sum of ...... dollars, of which sum ...... dollars is principal and ...... dollars interest and costs. That said claim is barred by the statute of limitation as to the defendant R. M. Austin; and it is further considered that the plaintiff has an equitable right to have the said sum declared a lien upon the real estate described in the complaint; and it is therefore further adjudged, that in case the said sum above named, is not paid on or before the 1st day of January next, then and in that case the sheriff of Davie county shall, after duly advertising the time and place of sale, in the same manner as sales under execution are required by law to be made, shall sell the real estate described in the pleadings, and of the proceeds of such sale, pay said debt and the cost of this suit, and pay any surplus over to the defendant E. L. Gaither.

The plaintiff is not entitled to recover any personal judgment against J. M. Clement.”

From the judgment, the defendant E. L. Gaither appealed.

Messrs. Coke & Williamson, for the plaintiff .

Messrs. Watson & Buxton, for the defendant .

ASHE, J., (after stating the case).

Formerly it was held by our Courts of Equity that notice of a prior unregistered mortgage or deed in trust might be given by parol, and would give relief against a subsequent deed first registered. The consequence was, that many deeds were withheld from the registry, and were only used when the parties wished to do so.

It was found that many abuses and ills arose from this practice, and to obviate them, the Legislature passed the act of 1820, requiring all mortgages and deeds of trust to be registered within six months from their execution. But it was ascertained that the act only partially relieved the evil, and the...