Williams v. Kerr

• Decision Date: 28 November 1893
• Citation: 18 S.E. 501,113 N.C. 306
• Parties: WILLIAMS v. KERR.
• Court: North Carolina Supreme Court

18 S.E. 501

113 N.C. 306

WILLIAMS v. KERR.

Supreme Court of North Carolina

November 28, 1893

Appeal from superior court, Sampson county; Winston, Judge.

Action by C. H. Williams against John D. Kerr to recover land. From a judgment for plaintiff, defendant appeals. Affirmed.

Both plaintiff and defendant claim title to the land in suit from one James S. Boone. The plaintiff offered a deed of mortgage dated September 20, 1876, duly registered, from said Boone and wife to M. E. Parker, wife of J. P. Parker. Defendant objected to introduction of said deed because it did not appear from the clerk's commission that the person authorized to take the same was a justice of the peace or a resident of the county, or that he took the acknowledgment in said county. The objection was overruled, and an exception taken. The plaintiff next offered a deed dated July 21, 1879 from J. P. Parker and wife, aforesaid, to Edward Williams. The plaintiff next proposed to show by the clerk and other witnesses that the foreclosure papers in the case of Edward Williams against J. S. Boone and wife had been lost, and could not be found. Defendant objected, because said lost records could not be supplied in this way, and could only be supplied by an independent action to restore the same. The objection was overruled, and exception taken. Plaintiff next offered Bizzell, the clerk, and M. C. Richardson, the commissioner who sold the land and executed the deed to plaintiff, and also the attorney in said case, and the defendant, Kerr, as witnesses, each of whom swore that they had made diligent search for the lost papers in their respective law offices, and also in the clerk's office and had been unable to find them, and that they were lost that they had searched repeatedly. The court held that secondary evidence was now admissible, after objection and exception. Plaintiff next offered the records in the foreclosure case. Defendant objected to these records because it appeared that suit was brought September 19, 1889, and prior to that date the defendant had taken a deed from the mortgagor, and was in possession of the land, and also because he was not a party to the said suit. This objection was overruled, and exception taken. A deed from M. C. Richardson, commissioner, to plaintiff, dated January 4,1890, and duly registered, was next read and put in evidence, over objection and exception. It was proven that the defendant was in possession of the land in dispute. J. S. Boone, being put on the stand as a witness for plaintiff, stated that he made the last payment on the land and mortgage to M. E. Parker in December, 1879, the payment being $75 or $80. The bond was $400 at first. Credit was entered on the back of note. That he was in possession of the land until he sold it to Newkirk, in 1883. Sold land to Newkirk, with the understanding that he was to assume the Parker debt. J. D. Kerr is now in possession, and has claimed it ever since C. H. Williams bought it. M. C. Richardson sold the land. Kerr was present at the sale, and forbad the sale in presence of the plaintiff, who bought it. Defendant offered a deed from Boone to Newkirk, dated August 14, 1883, registered January 2, 1890; also a deed from said Newkirk to defendant, dated April 2, 1890, covering the land in dispute. Plaintiff offered the answer to estop the defendant, and read the same as evidence. It appeared in evidence that on April 12, 1890, a suit was brought by plaintiff against defendant to recover the same land, but at October term, 1891, a nonsuit was taken, and this action was begun within a year. Upon the issue of the statute of limitations, the court charged the jury that if they believed that in December, 1879, Boone, the mortgagor, paid $75 on the bond, and that in September, 1889, within 10 years, an action was begun to foreclose said mortgage, the cause of action was not at said time barred by the 10-year statute of limitation; that the purchaser at such foreclosure sale was not at that time barred, if the debt was not out of date. Defendant excepted. The court also charged the jury that a mortgagor in possession of land held under his mortgage, as did also a purchaser from such mortgagor, provided he had notice of the mortgage, and that, if the mortgage was registered at the time of the purchase, that was notice to the purchaser. That a seven years' holding by such mortgagor or purchaser would not give title. Defendant excepted. That if Newkirk had actual knowledge of the mortgage when he bought the land of Boone, and agreed to assume the Parker debt, and purchased with this understanding, he would be in possession under the mortgage. That the defendant, having bought of Newkirk in 1890, had not had possession of the land a sufficient length of time to make his title good against the mortgagee, even if it were adverse and without notice. Defendant excepts to this portion of the charge.

In an action by the purchaser of land at a foreclosure sale, to recover the same from the grantee of a purchaser from the mortgagor, it is not error to charge that if defendant's grantee bought with actual knowledge of the mortgage, agreeing to assume the mortgage debt, he was in possession under the mortgage, and defendant, having bought the land from such purchaser within less than a year before suit to foreclose, did not have possession long enough to make his title good against the mortgagee, even if his possession was adverse and without notice.

J. D. Kerr, for appellant.

Allen & Dortch, for appellee.

CLARK J.

It is true that, if the mortgage was acknowledged before a justice of the peace not of the proper county, (Code, § 1246, subd 1.) the registration would be invalid, (De Courcy v. Barr, 45 N.C. 181; Todd v. Outlaw, 79 N.C. 235; Duke v. Markham, 105 N.C. 137, 10 S.E. 1017, and ca...