Wilkinson v. Wallace

• Citation: 134 S.E. 401,192 N.C. 156
• Decision Date: 15 September 1926
• Docket Number: 18.
• Parties: WILKINSON et al. v. WALLACE.
• Court: United States State Supreme Court of North Carolina

134 S.E. 401

192 N.C. 156

WILKINSON et al. v. WALLACE.

No. 18.

Supreme Court of North Carolina

September 15, 1926

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

Action by J. A. Wilkinson and others against T. G. Wallace, to determine an adverse claim to land and to quiet title submitted on an agreed statement of facts. From a judgment for plaintiffs, defendant appeals. Affirmed.

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

Small MacLean & Rodman, of Washington, N. C., for appellees.

ADAMS J.

This action was brought to determine an adverse claim to the plaintiffs' land and to quiet their title, and the controversy was submitted upon an agreed statement of facts. C. S. §§ 626, 1743. On March 16, 1852, the state issued a grant for this land to R. W. Harrison, and the plaintiffs have exhibited an unbroken chain of mesne conveyances which are sufficient in form to transfer to themselves the title in fee simple. William H. Davis, one of the mesne grantees, died intestate, leaving a widow, who after her second marriage was Josephine E. Wright, and one child, whose name was Lillie G Davis. On August 15, 1887, Josephine E. Wright, who was then a widow, and Lillie G. Davis, the only heir at law, conveyed the land in controversy to W. J. Bullock by a deed which was recorded September 8, 1887. The only index of this deed pointed to a conveyance from "Josephine E. Wright et al. to W. J. Bullock." There was no index or cross-index of any conveyance of the land by Lillie G. Davis. Bullock conveyed the land to J. A. and W. S. Wilkinson, February 19, 1906, and on January 28, 1914, these grantees conveyed it to the Pungo Deep Soil Development Company, one of the plaintiffs. Thereafter-that is, on June 7, 1924-Lillie G. Davis executed a deed to Thos. G. Wallace, the defendant, purporting to convey the same land. This deed was registered June 14, 1924, and the defendant claims to be the owner in fee, on the ground that the conveyance from Josephine E. Wright and Lillie G. Davis to W. J. Bullock was defectively indexed by the register of deeds. Upon the facts set out in the record the trial court adjudged that the plaintiffs are the owners of the land in question, and that the defendant's possession is wrongful and unlawful. The defendant excepted and appealed.

At the session of 1876-77 the General Assembly enacted a statute requiring the register of deeds to keep full and complete alphabetical indexes of deeds and other instruments, and afterwards made his failure to do so a misdemeanor. Code, § 3664; Laws 1899, c. 501; Rev. §§ 2665, 3600; C. S. § 3561. In 1894 the provision in reference to indexing the instruments referred to was construed to mean that the filing of a deed for registration was in itself constructive notice, and that the register's failure to make a proper index of the conveyance did not impair its efficacy. Davis v. Whitaker, 114 N.C. 279, 19 S.E. 699, 41 Am. St. Rep. 793. Approximately 25 years afterwards this decision was overruled, and it was held that the indexing of deeds is an essential part of the registration. Fowle v. Ham, 176 N.C. 12, 96 S.E. 639; Ely v. Norman, 175 N.C. 294, 95 S.E. 543. The appeal presents the question whether these latter decisions are prospective or retroactive, and, if prospective, whether the decision in Davis v. Whitaker upholds and safeguards the plaintiffs' title.

As a rule, a decision of a court of supreme jurisdiction, overruling a former decision, is no doubt retrospective-"not that the overruled decision was bad law, but that it never was the law." To this rule there is a recognized and approved exception. It is this:

"Where a constitutional or statute law has received a given construction by the courts of last resort, and contracts have been made and rights acquired under and in accordance with such construction, such contracts may not be invalidated, nor vested rights acquired under them impaired, by a change of construction made by a subsequent decision." Bryant Mfg. Co. v. Hester, 177 N.C. 609, 98 S.E. 721; Fowle v. Ham, 176 N.C. 12, 96 S.E. 639; Ely v. Norman, 175 N.C. 294, 95 S.E. 543; Jones v. Williams, 155 N.C. 179, 190, 71 S.E. 222,

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