71 S.E. 462 | N.C. | 1911
We think there was error in the instruction of the court. In the first place, there was no sufficient evidence for the jury that Warwick surrendered possession of the land to Gregory. On the contrary, he demanded the possession of S. A. Herring, and upon his refusal to give it up, he brought suit against him to recover it, thereby continually asserting his right to the possession acquired by his purchase from J.T. Gregory, the mortgagee, and the deed the latter made to him, which was duly and promptly registered. Even had Warwick torn up or otherwise destroyed his deed, it would not have had the legal effect of revesting the title in Gregory. InLinker v. Long, 64, N.C. 296, it appeared that a deed for land had been executed by W. F. Taylor to Isaac Linker 6 November, 1852, and on 11 May, 1853, it was redelivered by Linker to Taylor, with the following endorsement upon it: "I transfer the within deed to (349) W. F. Taylor again." Taylor kept the possession of the land during his life, and his heirs retained possession to the time of bringing the suit. The lower court refused permission to read the deed in evidence. This Court held that ruling to be erroneous, and with reference thereto, said: "This ruling is based upon the deed that it had been redelivered by the bargainee to the bargainor, the legal effect of this writing on the back was to nullify the deed, and make it as if it had never been executed. By force of the deed, and the operation of the statute, 27 Hen. VIII, an estate of freehold of inheritance was vested in Linker on 6 November, 1852. The question is, Has that estate been divested by any conveyance, or means, known to the law. Suppose that deed, upon 11 May, 1853, had been canceled, torn up or burnt, by consent of both parties, the estate would not have been thereby revested in Taylor, for by the common law a freehold estate in land can only pass by delivery of seizin — under the Statute of Enrollments by `deed of *285
bargain and sale indented and enrolled' — and under the act of 1715, by `deed duly registered'; so, the freehold having passed to Linker, could only be passed from him either to a third person or to Taylor by some kind of conveyance known to the law. A will, being ambulatory, may be revoked by cancellation; a covenant or agreement, being in fieri, a thing to be done by cancellation or by deed of defeasance, which may be executed after the covenant. But a conveyance of a freehold estate of inheritance, being a thing done, can not be undone by cancellation, or in any other mode, and the estate can only be revested by another conveyance, unless a condition or deed of defeasance executed at the same time
and as a part of the conveyance, be annexed to the estate, giving to it a qualification by which it may be defeated. For illustration, a mortgage is a conveyance on condition. If the money be paid at the time fixed the estate is revested in the mortgagor, but if the condition be not performed by payment at the day, the estate becomes absolute, and although the money be paid and accepted afterwards, the estate can only be revested by another conveyance." The Chief Justice is referring, in the last clause, to a strict foreclosure and not to the right or equity of redemption. He is illustrating the point by giving an example of a deed upon condition and applying the strict rule of the (350) common law to the relation of the parties without regard to the equitable right of the mortgagor, and the illustration is an apt one. This decision has been approved in several cases, and among others we may cite Wharton v. Moore,
New trial.
Cited: S.c.,
(352)