Smith v. Turnage-Winslow Co., Inc.
| Decision Date | 03 November 1937 |
| Docket Number | 319. |
| Citation | 193 S.E. 685,212 N.C. 310 |
| Parties | SMITH et ux. v. TURNAGE-WINSLOW CO., Inc. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pitt County; E. H. Cranmer, Judge.
Action by E. C. Smith and his wife, Mamie J. Smith, against the Turnage-Winslow Company, Inc., now J. E. Winslow Company Inc. From a judgment in favor of the plaintiffs, the defendant appeals.
Judgment reversed and action remanded. This is an action to enjoin the sale of a tract of land described in the complaint under the power of sale contained in a mortgage from Mary Paramore and her husband, W. B Paramore, to the defendant, dated February 12, 1929, and duly recorded in the office of the register of deeds of Pitt county, on February 13, 1929, in Book B-17, at page 243.
The plaintiffs allege in their complaint that they are the owners in fee and in possession of the tract of land described in the complaint and that they claim title to said tract of land under and through deeds and conveyances as follows:
1. Deed from G. W. Haddock and his wife Bessie Haddock to W B. Paramore, dated October 21, 1922, and conveying the tract of land described in the complaint.
This deed is not recorded in the office of the register of deeds of Pitt county; there is, however, a deed dated October 21, 1922, from G. W. Haddock and his wife, Bessie Haddock, to Mary Paramore, wife of W. B. Paramore, recorded in said office, on February 9, 1929, in Book E-17, at page 422.
2. Deed of trust from W. B. Paramore to A. W. Bailey, trustee, dated October 21, 1922, and duly recorded in the office of the register of deeds of Pitt county, on October 24, 1922, in Book P-14, at page 293. The said tract of land is the same as that described in the complaint and in the deed from G. W. Haddock and his wife, Bessie Haddock, to Mary Paramore, wife of W. B. Paramore, dated October 21, 1922, and recorded in the office of the register of deeds of Pitt county, on February 9, 1929, in Book E-17, at page 422.
An indorsement as follows appears on the margin of the page on which the said deed of trust is recorded:
"This deed of trust has been foreclosed. The land described therein was purchased by G. W. Haddock. This 12 December, 1930.
A. W. Bailey, Trustee.
Pitt County Registry."
3. Deed from A. W. Bailey, trustee, to G. W. Haddock, dated December 12, 1930, and duly recorded in the office of the register of deeds of Pitt county, on December 12, 1930, in Book U-18, at page 145. The tract of land conveyed by this deed is the same as that described in the complaint.
4. Deed from G. W. Haddock and his wife, Bessie Haddock, to J. S. Paramore, dated December 21, 1934, and duly recorded in the office of the register of deeds of Pitt county, on December 21, 1934, in Book U-18, at page 38. The tract of land conveyed by this deed is the same as that described in the complaint.
5. Deed from J. S. Paramore and his wife, Myrtle Paramore, to E. C. Smith and his wife, Mamie J. Smith, dated October 24, 1935, and duly recorded in the office of the register of deeds of Pitt county, on October 24, 1935, in Book F-16, at page 14. The tract of land conveyed by this deed is the same as that described in the complaint.
The defendant in its answer denies that plaintiffs are the owners in fee of the tract of land described in the complaint, and alleges that W. B. Paramore, under whom the plaintiffs claim title to said tract of land, never had title to the same, and that for that reason his deed of trust to A. W.
Bailey, trustee, conveyed no title to said tract of land.
The plaintiffs further allege in their complaint that at the date of the execution of the deed from G. W. Haddock and his wife, Bessie Haddock, and at the date of the execution of the deed of trust from W. B. Paramore to A. W. Bailey, trustee, to wit, October 21, 1922, the grantee named in said deed was W. B. Paramore; that after the delivery of said deed to W. B. Paramore, and after the registration of said deed of trust from W. B. Paramore to A. W. Bailey, trustee, and before the registration of the deed from G. W. Haddock and his wife, Bessie Haddock, on February 9, 1929, W. B. Paramore caused his name to be stricken from said deed as the grantee named therein, and the name of his wife, Mary Paramore, to be written therein as the grantee; and that after the said change in the name of the grantee in said deed, the said deed was recorded in the office of the register of deeds of Pitt county, on February 9, 1929, in Book E-17, at page 422, with the result that the name of Mary Paramore appears in the said deed as grantee, whereas the name of W. B. Paramore should appear in said deed as grantee.
The defendant in its answer denied this allegation in the complaint, and alleges that, if the change in the name of the grantee in said deed was made as alleged in the complaint, the defendant at or before the date of its mortgage from Mary Paramore and her husband, W. B. Paramore, to wit, February 12, 1929, the defendant had no notice of such change, and that it took said mortgage as security for the indebtedness of the said Mary Paramore and her husband, W. B. Paramore, to the defendant, relying upon the records in the office of the register of deeds of Pitt county.
The plaintiffs further allege in their complaint that on February 12, 1929, W. B. Paramore and his wife, Mary Paramore executed a mortgage by which they conveyed to the defendant the tract of land described in the complaint, together with other property, real and personal, for the purpose of securing the payment of their indebtedness to the defendant as recited in said mortgage; that said mortgage was duly recorded in the office of the register of deeds of Pitt county, on February 13, 1929, in Book S-17 at page 293; and that said mortgage contains a clause in words as follows: "The parties of the first part further represent that they...
To continue reading
Request your trial