Respess v. Jones

• Decision Date: 18 February 1889
• Citation: 102 N.C. 5,8 S.E. 770
• Court: North Carolina Supreme Court
• Parties: Respess v. Jones.

8 S.E. 770

(102 N.C. 5)

Respess

v.Jones.

Supreme Court of North Carolina

February 18, 1889

1. Alteration of Instruments—Change in Deed—Registration.

The grantee in a deed, thinking to put the property out of the reach of his creditors, erased his own name wherever it occurred in the deed, and inserted that of his wife, without the knowledge of the grantor, and as thus altered had the deed registered. Held that, inasmuch as change of legal title is not perfected in North Carolina until registration, the deed as registered was inoperative, and the title remained in the grantor.

2. Same—Fraudulent Intent—Equitable Relief.

The alteration having been made with a fraudulent purpose, equity will not lend the grantee any assistance to restore the title to him.

3. Trusts—Conveyance to Children—Resulting Trusts.

After registering the altered deed, the grantee, fearing that his wife's children by former marriage might assert some claim to the property, procured a deed of it from the same grantor to his own children, which was duly registered. Held, that it passed a perfect legal title, and he was not in a condition to invoke the doctrine of resulting trusts.

W. B. Rodman & Son, for appellant. Batchelor & Devereux, for appellee.

Davis, J. Civil action for the recovery of land, tried before Montgomery, J., at February term, 1888, of the superior court of Beaufort county. The plaintiff claims title to two-thirds of the land in controversy by virtue of two deeds, —one from Alice Jordan, dated September 5, 1883; and the other from Emma Beacham, dated August 3, 1883, conveying their respective interests in said land. The defendant claims title—First. Under a deed executed to him on the 21st day of March, 1867, and which was afterwards changed by erasing the name of the defendant wherever it occurred, and substituting that of his wife, Ann M. Jones, and which change, he says, was made "ignorantly, without any design or intent of defeating said deed, or of injuring any one; " and he asks that this deed "be restored to its original form as a deed to the defendant. " This deed was registered November 26, 1878. Second. In an amended answer he claims title by virtue of a deed executed by W. O. Respess, conveying the land in question to his daughters, Laura, Alice, and Emma, the consideration for which was the land conveyed by him to said Respess; and he insists that this deed to Laura, Alice, and Emma was never delivered to them, but was intended "to place the title in the said land in the said children, to hold in trust for himself; " and he asks that the plaintiff "be decreed to convey to him all such interest as plaintiff may have acquired from said Alice and Emma Jones. " This deed was registered February 25, 1882. By agreement a jury trial was waived, and the facts were found by the court. The following is so much of the case on appeal as is necessary for a proper understanding of the questions presented for our adjudication: On the 21st day of March, 1867, W. O. Respess was the owner of the land in dispute, and the defendant, Jones, was the owner of a tract of land in Beaufort county. It was at that time agreed between W. O. Respess and the defendant to exchange lands, and in pursuance of that agreement the defendant executed a deed to said Respess, and the said Respess executed a deed to the defendant, Jones. The defendant, Jones, afterwards altered the deed made to him by erasing his own name wherever it appeared, and inserting that of A. M. Jones, his wife, and, in this altered form, the deed was proved and registered. Ann M. Jones, the wife of the defendant, died intestate in 1880, leaving as her heirs at law James T. Respess, Isaiah Respess, Joseph J. Respess, and Martha E. Respess, by her first husband, and Henry J. B. Adams and J. F. Adams by a second husband, and Alice, Laura, and Emma by her last husband. The defendant owned no other land in 1867 orsince, and but little property besides. The plaintiff offered in evidence— First. A deed from W. O. Respess, conveying the land in question to Emma, Alice, and Laura Jones, children of the defendant. This deed was dated March 21, 1867, but was in fact executed about 1875, and was delivered to the defendant and acknowledged by the grantor and registered February 25, 1882. Second. A deed from Alice (who had intermarried with one Jordan) to the plaintiff, dated September 5, 1883, conveying to him her interest in the land in dispute. Third. A deed from Emma (who had intermarried with one Beacham) to the plaintiff, dated August 3, 1883, conveying to him her interest in said land. Fourth. A deed from Laura (who had intermarried with one Topping) to the defendant, Jones, conveying to him her interest in said land. The defendant offered in evidence a note from plaintiff to Emma Beacham for the payment of $100 for the purchase of the land mentioned in the deed of August 3, 1883, with an indorsement in the handwriting of J. T. Respess, as follows: "The within note is to be paid, provided a good title is perfected for the same land; otherwise this note is to be returned to J. T. Respess, and is not to be collected. " There was no evidence other than that contained in the defendant's examination (presently referred to) that he owed any debts in 1867. There was no evidence of an actual delivery of the deed from W. O. Respess to Laura, Alice, and Emma Jones, or that it was ever in their possession. The defendant offered in evidence his own examination, taken by the clerk under an order in the cause, in which he testified, so far as is material, that the two deeds, —one made to the defendant, and altered by substituting the name of his wife for his own; and the other to Alice, Laura, and Emma Jones, —both dated March 21, 1867, conveyed the same land; that the latter was executed and delivered six or eight years after the former; that it was delivered to the defendant, and not to his children; and that he had it proved and registered. In answer to the question: "If both of the deeds from W. 0. Respess, dated March 21, 1867, convey the same land, what reason or motive had you for procuring the execution and delivery of the last deed?" he said: "As the land which I gave W. 0. Respess in exchange for this land was in my own name, and the deed from W. O. Respess had been made to me and changed to my wife, and believing that a transfer from me to her without a valuable consideration might be attacked by some old creditor, I had a deed made from W. O. Respess to my children. " In answer to the question: "Was it your intention in having the latter deed executed to your own children to preclude the children by former marriage?" he said, "It was. " He also testified that the alterations in the deed made to him by erasing his own name and inserting that of his wife, was to "put it [the land] out of the reach of my [his] creditors. " The altered deed was not seen by W. 0. Respess till after it was registered, and it was altered, proved, and registered without his knowledge; but after the registration he assented to it, and said "it made no difference to him how many times it had been changed. " This was after the registration of the deed to the children. The consideration of the deed to Ann M. Jones was the exchange of the land with W. O. Respess, and the children had no interest in that land.

The defendant further testified, in answer to questions in regard to the execution of the deed to his children: "I thought the title would be in W. O. Respess, supposing the deed to Ann M. Jones had been destroyed, or never appeared. At the time the second deed was executed I had not made up my mind which one to place on record. " That he had no intention of destroying the first deed. And in answer to the question why he had both deeds recorded, said that,...