Patterson v. Galliher

• Citation: 29 S.E. 773,122 N.C. 511
• Court: United States State Supreme Court of North Carolina
• Decision Date: 05 April 1898
• Parties: PATTERSON . v. GALLIHER.

29 S.E. 773

122 N.C. 511

PATTERSON .

v.GALLIHER.

Supreme Court of North Carolina.

April 5, 1898.

Tax Deeds — Validity — Seal—Ejectment— Equity—Pleading—Harmless Error.

1. Act Assem. 1895, c. 119, § 65, requiring the attestation clause of a sheriff's deed to land sold for taxes to be in the form as follows:

"Given under my had and seal this— day of—, Anno Domini, 18—, Sheriff, " —does not dispense with the common-law necessity of a seal.

2. The want of a seal to a sheriff's deed to land sold for taxes is not an irregularity merely, curable by Act Assem. 1895, c. 119, § 74.

3. In ejectment, defendant cannot prove an equitable interest for the amount bid for the land at a tax sale as evidenced by a sheriff's deed invalid for want of a seal, where he did not set up the equity in his answer.

4. A defendant in ejectment claiming under a void deed could not be harmed by a refusal to admit it in evidence.

Appeal from superior court, Iredell county; Coble, Judge.

Ejectment by J. M. Patterson against R. A. Galliher. Judgment for plaintiff, and defendant appeals. Affirmed.

Long & Long and H. Burke, for appellant.

Armfield & Turner, for appellee.

MONTGOMERY, J. It was admitted on the trial that both the plaintiff and the defendant claimed the land, which is the subject of the action, mediately under the title of J. A. Galliher. The plaintiff offered in evidence a deed to himself from T. L. Patterson, mortgagee of J. A. Galliher, registered on the 5th of August, 1897, and then the mortgage deed itself from J. A. Galliher and wife to Patterson, registered on the 20th February, 1890. It was admitted that, both deeds covered the land in controversy, and that the mortgagee had advertised and sold the land, and made the deed to the plaintiff according to the terms of the mortgage. The defendant offered in evidence a deed executed by J. H. Wycoff, exsheriff of Iredell county, to Thomas J. Conger, registered on the 8th May, 1896. The sheriff's deed was made for taxes due upon the land for the year 1894. Upon objection by the plaintiff to the introduction of the sheriff's deedJiecause it was not executed under seal, it was not received, and the defendant excepted to the ruling of the court excluding it. The defendant next offered in evidence a deed by Conger, grantee in the excluded deed, to the defendant, R. A. Galliher, registered on the 15th May, 1897. These deeds covered the land in dispute. The documentary evidence was all that was offered. His honor instructed the jury that, if they believed the evidence, they should answer in the affirmative both issues: (1) "Is the plaintiff the owner and entitled to the possession of the land described in the complaint?" (2) "Is the defendant in the wrongful possession of the same?" The real question for decision is whether a sheriff's deed to land sold for taxes Is valid when It Is signed, but not sealed, by the maker. It is conceded by the defendant that it is inoperative as a deed unless the form of deed prescribed by the act of assembly of 1895 (c. 119, § 65) for sheriff's deeds to land sold for taxes dispenses with the common-law necessity for a seal. The attestation clause of the conveyance prescribed by statute is in these words: "Given under my hand and seal this —day of —, Anno Domini 18—.—Sheriff." It Is not to be doubted that the general assembly could, if it chose to do so, prescribe a form of deed dispensing with a seal; but, has it done so, is the question? Under the common law, and always in North Carolina, except for the two years between the 7th of March, 1879, and 5th of March, 1881, a seal has been held to be absolutely indispensible to the validity of deeds in which is conveyed a greater estate in lands than a three-year lease. The conveyance prescribed by statute for sheriff's deeds for taxes is called a deed in the statute as well as in the body of the instrument, and, as we have said, the attestation clause reads as If a seal was to be affixed. There are no express words used in the statute which alter the general law requiring the affixing of seals to deeds for land, and we cannot arrive at the conclusion that a change so important can be made by implication. The conveyance being called a deed in the statute, and no reference being made in the statute to the dispensing with the necessity of a seal, the word "deed" must be construed to mean a deed under our general law, and our general law requires a seal to all deeds to land, except as to the modification pointed out. In Kitchen v. Ty-Bon, 7 N. C. 314, the court said: "Now, it is a rule that, where a statute makes use of a word the meaning of which was well ascertained at common law, the word shall be understood in the same sense it was at common law." The same principle of interpretation is adopted in Adams v. Turrentine, 30 N. C. 147. The counsel of the defendant...