Williams v. North Carolina State Bd. of Ed.

• Decision Date: 01 February 1974
• Docket Number: No. 77,77
• Citation: 284 N.C. 588,201 S.E.2d 889
• Parties: Carl R. WILLIAMS et al. v. NORTH CAROLINA STATE BOARD OF EDUCATION et al.
• Court: North Carolina Supreme Court

Page 889

201 S.E.2d 889

284 N.C. 588

Carl R. WILLIAMS et al. v. NORTH CAROLINA STATE BOARD OF EDUCATION et al.

No. 77.

Supreme Court of North Carolina.

Feb. 1, 1974.

Moore & Biberstein by R. V. Biberstein, Jr., Wells, Blossom & Burrows by W. C. Blossom, Wallace, Burgaw, Rountree, Clark, Rountree & Newton by George Rountree, Jr., Wilmington, for plaintiff appellants.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for defendant appellees.

MOORE, Justice.

Both plaintiffs and defendants agree that since this case involves the application of North Carolina law to deeds made And recorded prior to 1885, North Carolina's present recordation statute--the Connor Act--is not controlling. See 1885 Laws of North Carolina, chapter 147, now codified as G.S. § 47--18.

The trial court in its judgment found that the deed from Allison to Baker under which defendants claim through mesne conveyances was dated 17 April 1797, was delivered no later than 17 July 1797, but was not recorded until 19 November, 1798. Plaintiffs first contend that even if the Baker deed was executed and delivered prior to the Bond deed under which plaintiffs claim, nevertheless the Baker deed was not recorded within twelve months of its date or delivery and is therefore void. In support of this position plaintiffs rely on North Carolina's first registration law, the Act of 1715, chapter 7, § 1 (Laws of North Carolina, Potter (1821)), which provided:

'That no conveyance or bill of sale for lands, (other than mortgage,) in what manner or form soever drawn, shall be good and available in law, unless the same shall be acknowledged by the vendor, or proved by one or more evidence, upon oath, either before the chief justice for the time being, or in the court of the precinct where the land lieth, and registered by the public register of the precinct where the land lieth, within Twelve months after the date of the said deed, and that all deeds so done and executed, shall be valid, and pass estates in land, or right to other estate, without livery of seizen, atturnment, or other ceremony in the law whatsoever.' (Emphasis added.)

However, at a later session of the General Assembly, commencing on 12 December 1754 and continuing until 13 September 1756, the time for registering a deed after its execution and delivery was extended from twelve months to two years. This was done by the Act of 1756, chapter 58, § 2 (Laws of North Carolina, Potter (1821)), which provided in part:

'. . . (A)ll deeds and mesne conveyances of lands, tenements, and hereditaments, hereafter to be made, shall and may, at any time, within Two years from the respective dates thereof, be acknowledged, or proved in manner aforesaid, and delivered to the registers of the counties wherein they are respectively situated.' (Emphasis added.)

This two-year period within which a deed could be registered after its execution and delivery remained in effect until the passage of the Connor Act in 1885. See Code, chapter 27, § 1245 (1883); Bat.Rev., chapter 35, § 1 (1873); Rev.Code, chapter 37, § 1 (1854); Rev.Stat., chapter 37, § 1 (1837). Baker registered his deed within two years after its execution and delivery. Plaintiffs' assertion that the applicable law required registration within one year is erroneous. In view of the Act of 1756, it is unnecessary to consider the effect of the various acts passed prior to the Connor Act extending the time for registration of deeds. For a discussion of these acts, see II Mordecai's Law Lectures 1010--1011 (2d Ed. 1916).

Plaintiffs next contend that regardless of which deed was first executed and delivered, since the Bond deed was registered prior to the Baker deed, the Bond deed is superior as a matter of law. A similar contention was also raised in Phifer v. Barnhart, 88 N.C. 333 (1883), a leading North Carolina case discussing the pre-Connor Act rules with respect to priority of deeds, and there Justice Ruffin said:

'. . . (T)he bargainee in an unregistered deed . . . (cannot) be displaced, or defeated, by the mere act of the bargainor in making another conveyance to a third party without notice, and whose deed may be registered. . . .

'In Morris v. Ford, 2 Dev.Eq. 412 (17 N.C. 412 (1833)), it is said, that such a bargainee, after the execution of his deed and before its registration, has not a mere equity in the land: he has an equity and an incomplete legal title, which will become A perfect legal title from the time of the execution of the deed, whenever the registration shall take effect. . . .

'Again, in Walker v. Coltraine, 6 Ired.Eq. 79 (41 N.C. 79 (1849)), it was declared to be an error to say that an unregistered deed confers only an equity; that it is a legal conveyance, which, although it cannot be given in evidence until registered and therefore is not a perfect legal title, yet has an operation as a deed from its delivery; and it was emphatically said, that the ignorance of such a title in one, who might afterwards buy the land, could not impair it.

'In Wilson v. Sparks, 72 N.C. 208 (1875), Mr. Justice Reade, speaking for the court, says, that although a deed cannot be used to support a title until it is registered, still when registered it relates, and passes the title, as of the time of its execution. . . .'

See also Janney v. Blackwell, 138 N.C. 437, 50 S.E. 857 (1905); Ray v. Wilcoxon, 107 N.C. 514, 12 S.E. 443 (1890); Edwards v. Dickinson, 102 N.C. 519, 9 S.E. 456 (1889); Austin v. King, 91 N.C. 286 (1884); United States v. Hiawassee Lumber Co., 238 U.S. 553, 568--569, 35 S.Ct. 851, 858, 59 L.Ed. 1453, 1461 (1915).

Therefore, the applicable North Carolina law at the time of the Baker and Bond deeds was that although registration was required to make a deed good and val- id with respect to subsequent purchasers, once a deed was validly registered within the permissible statutory period, For purposes of priority it related back to the time of execution and delivery of the deed. Consequently, prior registration of the Bond deed did not necessarily make the Bond deed superior to the subsequently registered Baker deed. Both deeds, when registered, related back to the date of execution and delivery and thus the date of execution and delivery would control and determine priority as between the two deeds. Delivery of the deeds is discussed more fully later in the opinion.

The deed from Allison to Bond, as recorded, does not show that it was under seal. Defendants contends, therefore, that the deed is void and of no effect.

In North Carolina the word 'deed' ordinarily denotes an instrument in writing, signed, sealed, and delivered by the grantor whereby an interest in realty is transferred from the grantor to the grantee. Supply Co. v. Nations, 259 N.C. 681, 131 S.E.2d 425 (1963); Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316 (1949). A seal is necessary to the due execution of a deed. Dunn v. Dunn, 242 N.C. 234, 87 S.E.2d 308 (1955); 3 Strong, N.C. Index 2d, Deeds § 6 (1967). This Court, however, has held that the recital of the seal in the instrument raises a presumption that a seal was affixed to the original deed even though such does not appear on the face of the registered deed. In Hopkins v. Lumber Co., 162 N.C. 533, 78 S.E. 286 (1913), the plaintiff in showing his chain of title introduced a copy from the registration books of a deed dated 1861. There was no seal after the grantor's name, but the instrument concluded with the phrase: 'In testimony whereof I have hereunto subscribed my name and affixed my seal this the first day of March, 1861.' The Court in that case said:

'In case of an ancient deed, which is not produced, but is proved from the record, which fails to indicate in any way that the deed was sealed, there is a presumption that the deed was sealed, arising from a recital in the instrument itself that it is sealed. Jones on Real Property, §§ 1073--1075; Aycock v. R.R., 89 N.C. 321; Heath v. Cotton Mills, 115 N.C. 202, 20 S.E. 369; Strain v. Fitzgerald, 130 N.C. 600, 41 S.E. 872; Smith v. Lumber Co., 144 N.C. 47, 56 S.E. 555; Edwards v. Supply Co., 150 N.C. 173, 63 S.E. 740; Beardsly v. Day, 52 Minn. 451, 55 N.W. 46; Smith v. Dall, 13 Cal. 510.'

In Jones v. Coleman, 188 N.C. 631, 125 S.E. 406 (1924), the trial court instructed the jury as follows:

'It appears from the evidence that the deed from Mollie L. Jones to her husband, W. A. Jones, has been burned and the original of it is not in evidence. The record of it is in evidence and there is no scroll or seal after Mrs. Jones' name on the record, but the record recites, 'In testimony whereof the said Mollie L. Jones has hereunto set her hand and seal.'

'I charge you that the recital of these words raises a presumption that there was a seal affixed by Mollie L. Jones to her signature on the original deed.

'I further charge you that no evidence has been offered or introduced in this case to rebut that presumption, and therefore your are directed to answer the second issue 'Yes."

This Court, on the authority of Hopkins, overruled plaintiff's exception to this instruction. See also Peel v. Corey, 196 N.C. 79, 144 S.E. 559 (1928); Roberts v. Saunders, 192 N.C. 191, 134 S.E. 451 (1926).

In the present case the original deed from Allison to Bond was not in evidence, but the record of this deed recites that the 'parties have interchangeable set their hands and seal dated the day and year first above written.' Further, the attestation clause signed by three witnesses recites that the instrument was 'sealed and delivered' in their presence, and the acknowledgment by the mayor of Philadelphia recites that David Allison appeared before him and 'acknowledged the said Indenture as his Act and Deed by him freely and voluntarily signed sealed and delivered. . . .'

We hold that the recital of these words in the record of the deed raises a presumption that there was a seal affixed by Allison to his signature on the original deed. In the absence...