138 S.E. 403 | N.C. | 1927
On 26 September, 1918, Berry W. Brown and Alice E. Brown, his wife, executed a written instrument, evidently intended as a deed of trust but designated on its face as a second mortgage, purporting to convey title to a lot in the city of Raleigh described as lot No. 9 on Shaffer's map, to secure the payment at maturity of three bonds, each in the sum of $500, held by L.B. Capehart and afterwards assigned to the Mechanics and Farmers Bank. The parties named are the makers, L.B. Capehart and Allen J. Barwick, trustee. In the premises of the instrument and in the habendum Capehart is named as the grantee. Following the habendum is this clause: "If the said parties of the first part shall fail or neglect to pay interest on said bonds as the same may hereafter become due, or both principal and interest at the maturity of the bonds, or any part of either, then, on application of said L.B. Capehart, or any assignee, or any other person who may be entitled to the moneys due thereon, it shall be lawful for and the duty of the said Allen J. Barwick, trustee, to advertise," etc. On 7 July, 1924, Barwick, as trustee, sold the lot by public auction to R. W. Winston, Jr., and thereafter, in pursuance of an order confirming the sale and directing a conveyance, executed and delivered to the purchaser a deed conveying the property described in the instrument designated "a second mortgage." The purchaser at once entered into possession and subsequently by warranty deed conveyed the lot to T. W. Johnson, under whom through mesne deeds with covenants of warranty the plaintiffs claim title. The plaintiffs have contracted to sell the lot to the defendant, who refuses to accept their deed on the ground that the deed of trust vested in Capehart the legal title, which was not divested by the trustee's deed to the purchaser. On 27 April, 1927, L.B. Capehart and his wife executed and delivered to Allen J. Barwick, trustee, a deed conveying all their right, title and interest in and to the lot in question and reciting, not only satisfaction of the secured debt, but ratification of the trustee's sale.
It is elementary learning that as to his grantee the maker of a deed will not be heard to contradict it, or to deny its legal effect by any evidence of inferior solemnity, or to say that when the deed was made he had no title. As against his grantee he is estopped to assert any right or title in derogation of his deed. Bigelow on Estoppel (5 ed.), 332; Huttonv. Cook,
At common law a covenant of warranty was necessary to preclude the grantor from asserting an after-acquired title; but there is authority for the position that if a deed shows that the grantor intended to convey and the grantee expected to acquire the particular estate the deed may found an estoppel, although it contains no technical covenants. 21 C. J., 1080, sec. 46; French v. Spencer, 21 How., 228,
The principle is stated with like clearness by Brown, J., in Weeks v.Wilkins,
The conveyance executed by the trustee to the purchaser at the sale made under the deed of trust is a deed of bargain and sale which has been duly registered. The seizin is deemed to have passed because the maker is estopped, and the registration puts the deed on the footing of a feoffment. In our opinion the judgment is free from error and should be affirmed.
Judgment affirmed. *19