Mintz v. Russ Et Ux

• Decision Date: 02 April 1913
• Citation: 77 S.E. 851,161 N.C. 538
• Court: North Carolina Supreme Court
• Parties: MINTZ. v. RUSS et ux.

77 S.E. 851

161 N.C. 538

MINTZ.

v.RUSS et ux.

Supreme Court of North Carolina.

April 2, 1913.

1. Vendor and Purchaser (§ 233^*)—Effect of Failure to Record.

Where an owner of land executed a deed in 1876 which was registered in 1910, and thereafter executed another deed covering part of the same land which was registered in 1908, the holder of the second deed had the superior legal claim under Revisal 1905, § 980, providing that no conveyance of land shall be valid to pass any property as against creditors or purchasers for a valuable consideration from the donor or bargainor, but from the registration thereof.

[Ed. Note.—For other cases, see Vendor & Purchaser, Cent. Dig. §§ 563-566; Dec. Dig. § 233.*]

2. Adverse Possession (§ 103*)—Extent of

Possession.

A grantee did not acquire title by adverse possession to land covered by his deed as against a subsequent grantee whose deed was first registered, where the grantor and the subsequent grantee had actual possession; since, while ordinarily possession under a deed having definite lines and boundaries extends to the outside boundaries of the deed, this is not true as to land in another's adverse possession.

[Ed. Note.—For other cases, see Adverse Possession, Cent.Dig. §§ 590-594; Dec.Dig. § 103.*]

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

Ejectment by Joel K. Mintz against J. E. Russ and wife. From a judgment of nonsuit at the close of plaintiff's evidence, he appeals. Affirmed.

C. Ed. Taylor, of Southport, for appellant

Crammer & Davis, of Southport, for appellees.

HOKE, J. [1, 2] Plaintiff introduced a deed from McDowell Russ to Dexter Russ, dated January 17, 1876, registered March, 1910, and a deed or binding contract covering same land from Dexter Russ to plaintiff, dated in 1880, registered October, 1907. Plaintiff further introduced deed from McDowell Russ to defendant, dated January, 1905, registered February, 1908, and, as we understand the record, the evidence on the part of plaintiff tends to show that the locus in quo lies on the east of the fork and Starboard road, and same is included within the lines of plaintiff's deed; that plaintiff's house is on this land, but west of said road, and plaintiff has lived there or occupied it by his tenants continuously from or about the time of the date of the deed in 1877, under which plaintiff claims, but that he has never at any time occupied or "exercised any possession" of the portion of his boundary lying east of the said road; that defendant had entered on the land east of the road, being the locus in quo, about 25 acres, and had built his house and occupied same since his entry in 1890, and in January, 1905, his father, McDowell Russ, made defendant a deed, and same was duly registered in February, 1908; that prior to defendant's entry his father, McDowell, had exercised possession and control of the land, asserting ownership of the land lying east of the road, and his widow's home house being also on that side. Upon this, the evidence...