Perry v. Morgan

• Citation: 14 S.E.2d 46,219 N.C. 377
• Decision Date: 09 April 1941
• Docket Number: 309.
• Parties: PERRY et al. v. MORGAN et al.
• Court: North Carolina Supreme Court

14 S.E.2d 46

219 N.C. 377

PERRY et al. v. MORGAN et al.

No. 309.

Supreme Court of North Carolina

April 9, 1941

The petitioners, Frank D. Perry and Julian H. Rumley, filed a petition in the Superior Court of Carteret County to have the title to certain lands claimed by them registered and brought under the operation and provisions of Chapter 90 of the Public Laws of 1913, as amended, which is now Chapter 47 N.C.Code, 1939 (Michie), § 2377 et seq., Chapter designated "Land Registrations". The respondents Howe and Davis filed separate answers.

The petitioners plaintiffs claimed title by reason of two grants to them by the State of North Carolina, one dated May 6 1937, and the other dated July 19, 1937.

The respondents claim title to the same land under grant issued by the State of North Carolina to Joel H. Davis and Joe P Roberson, dated October 25, 1853, and recorded in Book AA, at page 223, office of the Register of Deeds for Carteret County.

The matter was referred to Hon. R. A. Nunn, as Examiner of Title and was heard by him. At the hearing of the matter, evidence was submitted by both petitioners and respondents in support of their claims and the respondents especially claimed the petitioners had no title to the land for the reason that the lands claimed by them under their grants were the same lands as were granted to Joel H. Davis and Joe P. Roberson by grant dated October 25, 1853.

The report of the Examiner of Title was duly filed decreeing the petitioners owned the land and were entitled to have title registered. To this report the respondents, Howe and Davis, filed their exceptions, as provided by Section 2387, subsection 3, North Carolina Code, 1939, and requested the Court to submit the following issue to the jury: "Are the petitioners the owners and entitled to have title to the lands described in the petition registered, as provided by law?"

N.C.Code, supra, Chap. 47, § 2387, subsec. 3, is as follows: "Exceptions to Report.-- Any of the parties to the proceeding may, within twenty days after such report is filed, file exceptions, either to the conclusions of law or fact. Whereupon the clerk shall transmit the record to the judge of the superior court for his determination thereof; such judge may on his own motion certify any issue of fact arising upon any such exceptions to the superior court of the county in which the proceeding is pending for a trial of such issue by jury, and he shall so certify such issue of fact for trial by jury upon the demand of any party to the proceeding. If, upon consideration of such record, or the record and verdict of issues to be certified and tried by jury, the title be found in the petitioner, the judge shall enter a decree to that effect, ascertaining all limitations, liens, etc., declaring the land entitled to registration accordingly, and the same, together with the record, shall be docketed by the clerk of the court as in other cases, and a copy of the decree certified to the register of deeds of the county for registration as hereinafter provided. Any of the parties may appeal from such judgment to the supreme court, as in other special proceedings."

The Court refused to submit the issue of fact properly requested, and dismissed the exceptions of the respondents and signed judgment, confirming and approving the Examiner of Title's report, his finding of facts and conclusions of law; to which the respondents excepted, assigned error and appealed to this Court. The material exceptions and assignments of error will be set forth, with the necessary facts, in the opinion.

J.F. Duncan, of Beaufort, and W. B. R. Guion, R. E. Whitehurst, and John A. Guion, all of New Bern, for plaintiffs.

D. M. Clark, of Greenville, and C. R. Wheatly, of Beaufort, for defendants.

CLARKSON Justice.

The proceeding resorted to by plaintiffs, petitioners, is known generally as the Torren's Law. The principle of the "Torren's System" is conveyance by registration and certificate instead of by deed, and assimilates the transfer of land to the transfer of stocks in corporations. This statute is not in derogation of common right, but is of a remedial character, and should be liberally construed according to its intent. Cape Lookout Co. v. Gold, 167 N.C. 63, 83 S.E. 3; Empire Mfg. Co. v. Spruill, 169 N.C. 618, 86 S.E. 522; Dillon v. Broeker, 178 N.C. 65, 100 S.E. 191.

The Court below rendered judgment and decree of registration for plaintiffs. In the judgment is the following: "The above entitled cause coming on to be heard at the November Term, 1940, of Carteret County Superior Court, upon the pleadings and the report of Hon. R. A. Nunn, Examiner of Titles, and upon the exceptions thereto filed by the respondents C. K. Howe and Joel H. Davis, and the Court having heard the evidence and the findings of fact and conclusions of law and examined the Exhibits introduced in evidence and having heard full argument by counsel for petitioners and respondents and thereupon being of the opinion upon the evidence that no issue of fact arises and that it would be improper to submit any issue to the jury; and upon such full consideration of the record the Court finding the title to the land described in the petition to be in the petitioners and finding that said petitioners are entitled upon the record to a decree of registration of their title to said land; It Is Thereupon Ordered and Adjudged," etc.

The plaintiffs, petitioners, present the following questions for our determination: Was there any evidence warranting submission of an issue as to the location of a grant of October 25, 1853, issued by David S. Reid, Governor, under which appellants claim. We think so.

The defendants, respondents Howe and Davis, excepted to the Examiner's finding of facts on the ground that sufficient and competent evidence was presented at the hearing to the fact that the land upon which the U. S. Government deposited the material as dredged from the channel was an addition to the island of marsh already existing and within the boundary lines of the grant by the State of North Carolina to Joel H Davis and Joe P. Roberson, dated October 25, 1853, and recorded in Book AA, at page 223, office of the Register of Deeds for Carteret County. That the grants to Perry and Rumley, dated May 6 and July 19, 1937, by Clyde R. Hoey, Governor, was the land within the boundaries of the grant to Davis and Roberson in the year of 1853. The respondents, Howe and Davis, excepted to the Examiner's conclusions of law for the reason that they were erroneous and not in accordance with the evidence. The lands set forth in the petition had been granted by the State of North Carolina to Joel H. Davis and Joe F. Roberson on October 25th, 1853, and therefore could not be granted to the petitioners in 1937. That the State is without power to make...