Son v. O'ham

• Decision Date: 11 September 1918
• Docket Number: (No. 11.)
• Citation: 96 S.E. 639
• Court: North Carolina Supreme Court
• Parties: S. R. FOWLE & SON. v. O'HAM.

96 S.E. 639

S. R. FOWLE & SON.

v.O'HAM.

(No. 11.)

Supreme Court of North Carolina.

Sept. 11, 1918.

Hoke, J., dissenting in part.

Appeal from Superior Court, Beaufort County; Connor, Judge.

Action by S. R. Fowle & Son against J.

B. O'Ham. From denial of a restraining order, plaintiffs appeal. Error.

Ward & Grimes, of Washington, N. C, for appellants.

E. A. Daniel, of Washington, N. C, for appellee.

BROWN, J. [1] The admitted facts are that plaintiffs bought the land in controversy from Weston, who owned it. The deed was duly recorded, but never cross-indexed; that is, the name of the grantor was entirely omitted from the index. Weston afterwards conveyed 20 acres of the land to one Cox, whose deed was duly recorded and indexed. There was nothing to show in the grantor index that Weston had ever conveyed the land to plaintiffs, and so far as the record discloses Cox, who conveyed the land to defendant, himself, had no knowledge when they purchased, of the existence of the deed from Weston to Fowle. In Eley v. Norman, 175 N. C. 299, 95 S. E. 543, it is held by a majority of this court that the indexing of deeds is an essential part of the registration, as much as the indexing of judgments is a part of the docketing. We deemed it essential, for the reasons given in the concurring opinion, to render such decision and to overrule Davis v. Whitaker, 114 N. C. 279, 19 S. E. 099, 41 Am. St. Rep. 793.

If that was the only point in the record we would stop here. But plaintiffs contend that their deed was recorded in 1913, and that the decision in Davis v. Whitaker was rendered in 1894 and had become a rule of property, upon which they had a right to rely, and that according to that decision they were not required to index their deed, for, while indexing is a convenience, it was not regarded as a legal essential, up to Eley v. Norman. We think the point is well taken. It has long been held that, when solemn decisions have settled precise cases, so as to have become a rule of property and acted upon as such, they should be followed, and when overruled by a subsequent case the latter should not be given a retroactive effect. This just and salutary principle has been clearly expressed by Lord Mansfield in Wyndham v. Chetwood, 1 Burrows, 419. The law is very clearly stated by the West Virginia court as follows:

"An overruled decision is regarded as not law, as never having been the law; but the law as given in the later case is regarded as having been the law even at the date of the erroneous decision. To this rule there is one exception, that where there is a statute, and a decision giving it a certain construction, * * * the latter decision does not retroact, so as to invalidate such contract." Falconer v. Simmons, 51 W. Va. 172, 41 S. E. 193.

The subject is very fully discussed, and all the authorities collected, in the opinion of Justice Walker in Hill v. R. R., 143 N. C. 579, 55 S. E. 854, 9 L. R. A. (N. S.) 606. In this view the deed from Weston to Fowle must have priority. The plaintiffs are entitled to the injunction.

Error.

HOKE, J. (concurring). I cannot assent to the position that the laws of North Carolina controlling the question either make or were intended to make the indexing an essential part of a valid registration. Thecases in other...