Johnson v. Fry

• Decision Date: 23 June 1928
• Docket Number: 436.
• Parties: JOHNSON et ux. v. FRY, Sheriff, et al.
• Court: North Carolina Supreme Court

143 S.E. 857

195 N.C. 832

JOHNSON et ux. v. FRY, Sheriff, et al.

No. 436.

Supreme Court of North Carolina

June 23, 1928

Appeal from Superior Court, Moore County; Oglesby, Judge.

Controversy without action between William Johnson and wife and R. G Fry, Sheriff of Moore County, and another. Judgment for defendants, and plaintiffs appeal. Reversed.

This is a controversy without action. C. S. § 626. The agreed statement of facts is as follows:

"(1) That K. R. Hoyle recovered judgment against one Alex Evans for $200, with interest from September 22, 1920, before Jesse Fry, justice of the peace, which was duly transcribed and was duly docketed and indexed in the office of the clerk of the superior court of Moore county, as judgment No. 12534, on October 22, 1920.

(2) That the said Alex Evans appealed therefrom to the superior court, and upon a hearing in the superior court thereon the judgment of the justice of peace was affirmed and judgment rendered in favor of K. R. Hoyle for the sum of $200, with interest from September 22, 1920, together with the further costs of said appeal and the trial; the same having been docketed and indexed on December 12, 1921, as judgment No 13002.

(3) That Evander McIver, in 1886, entered into possession of the lands hereinafter described under one Ben Hicks, who was then the owner thereof, but did not receive a deed therefor from him, and the said Hicks conveyed said land to one Alex Evans subsequent to 1886, and prior to 1892, and said deed to Alex Evans was duly recorded in 1892. That there was admitted to probate and registered in Book 93, at page 65, on November 30, 1923, a warranty deed from Alex Evans to Evander McIver for the following described land: Adjoining the land of Easter Richardson, Cooley Cameron, and others, in the town of Southern Pines, on the west side of McDeed's creek, beginning at a stake the corner lots 4 and 5, running thence north 37 1/2, 100 feet, to a stake corner lots 4 and 5, Eaglesfield's line; thence with the line of the Eaglefield lot north 33 east 119 feet to a stake; thence south 60 east 95 feet to a stake the east corner of lots 4 and 5; thence south 33 west 150 feet to the beginning. That said deed recited a consideration of $75, and bore date of May 14, 1892, and was executed and delivered on May 14, 1892; the grantee named therein having already entered said lands 6 years prior to said date and having remained in possession thereof, and he and those claiming under him have continuously since the date of the deed in 1892, occupied and used the same, claiming thereunder to be the owners thereof.

(4) That there was admitted to probate and registered in Book 92, at page 28, on November 30, 1923, a warranty deed from Evander McIver and Amy McIver, his wife, to Elicia A. Blue, for the following lands: In McNeill's township, adjoining the lands of Easter Richardson and others in West Southern Pines, Moore county, N. C., beginning at a stake in James Torrence's line and running thence north 37 1/2 west 133 feet to a stake in the old Eaglesfield line; thence with the Eaglesfield line north 33 east 30 feet to a stake; thence 60 east 133 feet to a stake in Torrence's line; thence with said Torrence's line south 33 west 50 feet to the beginning. That said deed recites a consideration of $10 and love and affection, and bearing date of the 10th of May, 1907, and the said Elicia A. Blue immediately entered into possession of the same, and occupied and claimed the same thereunder as her own until the execution of the deed described in the next paragraph; the northern portion thereof, measuring approximately 50 by 100 feet, adjoining the Eaglesfield line, being embraced in the deed from Ben Hicks to Alex Evans and from Alex Evans to Evander McIver, described in next preceding paragraph.

(5) That on December 10, 1919, Elicia A. Blue, by deed recorded December 19, 1919, conveyed to plaintiffs, W. M. Johnson and wife, the same land conveyed to her, and that plaintiffs have occupied, used, and claimed the same thereunder since said date.

(6) That Evander McIver has conveyed to persons other than plaintiff all the balance of the lands conveyed to him by Alex Evans.

(7) That by the judgments docketed prior to the judgment of K. R. Hoyle, and also prior to the docketing thereof, the homestead of Alex Evans was allotted and the excess sold (the lands described in the deed from Alex Evans to Evander McIver not having been levied on under said execution, and not having been sold thereunder, or included in the homestead of Alex Evans).

(8) That the plaintiffs claim to be the owners in fee simple of the lands described in the statements of facts, free and clear of any lien by reason of the judgment of the defendant K. R. Hoyle, and the right to have K. R. Hoyle's claim removed as a cloud on title and to an injunction, and that the said defendant K. R. Hoyle claims an interest therein and a lien on the portion derived from Alex Evans by virtue of the docketing of the judgment against Alex Evans hereinbefore described, and has caused execution to issue thereon, and has placed the same in the hands of R. G. Fry, his codefendant, who is the duly elected and acting sheriff of Moore county, and who will, unless restrained therefrom, sell the same to satisfy said execution.

(9) That the judgment of K. R. Hoyle against Alex Evans is unpaid."

The judgment of the court below, after reciting certain facts, is as follows:

"The court being of the opinion and so holding that by the failure of the parties to record the deed from Alex Evans to Evander McIver, and from Evander McIver to Elicia A. Blue until after the docketing of said judgment against Alex Evans, the said judgment became a lien upon said lands, and that the possession of the grantees under said deeds was not adverse, but was subordinate to that of Alex Evans until the registration of said deed, it is decreed, ordered, and adjudged that the judgment of the defendant K. R. Hoyle is a valid lien upon the lands of the plaintiff, that the motion of the plaintiff for a restraining order against the defendant be and the same hereby is denied, and the defendant R. G. Fry, sheriff, is directed to proceed in said execution or an alias execution on such judgment, to make sale of the lands claimed by plaintiffs and embraced in the deed from Alex Evans to Evander McIver."

Johnson & Johnson, of Aberdeen, for appellants.

Hoyle & Hoyle, of Carthage, for appellees.

CLARKSON J.

This is an action brought by plaintiffs against defendants to remove cloud from plaintiffs' title (C. S. § 1743), and restrain a sale under execution.

"Walker, J., in [Christman] v. Hilliard, 167 N.C. 4 , speaking of this statute, says: 'The beneficial purpose of this statute is to free the land of the cloud resting upon it and make its title clear and indisputable so that it may enter the channels of commerce and trade unfettered and without the handicap of suspicion."' Plotkin v. Bank, 188 N.C. at page 715, 125 S.E. 543.

The record discloses from the agreed facts that:

(1) Ben Hicks owned a certain piece of land in Moore county, N.C. Evander McIver went into possession of the land in 1886 under him, but received no deed from said Hicks.

(2) Ben Hicks, subsequent to 1886 and prior to 1892, conveyed said land to Alex Evans, which deed was duly recorded in 1892.

(3) Alex Evans, on May 14, 1892, executed and delivered a warranty deed to said land to Evander McIver. The deed recited a consideration of $75; the said McIver "having already entered said lands 6 years prior to said date and having remained in possession thereof, and he and those claiming under him have continuously since the date of the deed in 1892 occupied and used the same, claiming thereunder to be the owners thereof."

(4) Evander McIver and Amy McIver, his wife, on May 10, 1907, made a warranty deed to Elicia A. Blue, consideration $10 and love and affection, for a part of said land deeded Evander McIver by Alex Evans. She "immediately entered into possession of the same, and occupied and claimed the same thereunder as her own until" she, on December 10, 1919, by deed duly recorded on December 19, 1919, conveyed the same land to plaintiffs, and they "have occupied, used and claimed the same thereunder since said date."

(5) That Evander McIver has conveyed to persons other than plaintiffs all the balance of the lands conveyed to him by Alex Evans.

(6) K. R. Hoyle, the defendant, has a judgment duly docketed and indexed on the judgment docket in the superior court of Moore county, on December 12, 1921, against Alex Evans for $200 and interest from September 22, 1920, and costs, which constitutes a lien, on any land owned by Alex Evans at the time or thereafter acquired, for 10 years. See C. S. § 614.

(7) The warranty deed, made, executed, and delivered by Alex Evans on May 14, 1892, to Evander McIver, was not registered until November 30, 1923, and the deed from Evander McIver and wife, Amy McIver, to Elicia A. Blue, was not registered until November 30, 1923.

The present action was commenced June 20, 1927.

Evander McIver, and those to whom the land in controversy has since been deeded, have occupied and used said land, claiming thereunder to be the owners thereof, since May 14, 1892. The judgment of K. R. Hoyle was docketed December 12, 1921, some 28 years after the deed was made from Alex Evans to Evander McIver, which was not recorded until November 30, 1923, after the Hoyle judgment was docketed December 12, 1921.

Is the K. R. Hoyle judgment a valid lien on the land superior to plaintiffs' title? We cannot so hold. To solve the question, we must construe the following statutes:

C. S. § 426, is as follows:

"In all actions involving the title to real...