7 S.E. 897 | N.C. | 1888
The complaint alleges, in substance, that in 1860 the defendant, Daniel Jennings, made and executed a deed, conveying the lands mentioned in the complaint to his son, D. S. Jennings, in fee simple; that D. S. Jennings, the grantee, died in the year 1863, intestate, and the plaintiff is his only child and heir-at-law; that after the death of D. S. Jennings, the defendant, Daniel Jennings, procured said deed without the knowledge or consent of the plaintiff, who was then an infant of tender age, and caused the same to be destroyed, and that said deed had never been proved and registered; and demands judgment that the plaintiff be declared the owner of the land, for possession and general relief.
The material allegations of the complaint were denied.
Upon the trial the plaintiff offered to prove the execution and destruction of said deed by oral testimony, and defendant objected to this evidence upon the ground that plaintiff could not set up a lost and unregistered deed in an action of ejectment; that if plaintiff (448) had the deed, it would not be competent evidence, the same never having been proved and registered. The court overruled the objection, and the defendant excepted, and the testimony was admitted.
After the plaintiff had closed his evidence, the defendant J. M. Reeves offered in evidence a deed from the defendant Daniel Jennings to James G. Absher for twenty-five acres of the land mentioned in plaintiff's complaint, dated 26 February, 1873, and thence by a succession ofmesne conveyances in fee, derived title to himself, dated 4 August, 1883; a deed from Daniel Jennings to W. B. Segrist, dated 27 August, 1875, and deeds thence to defendants Brown and Long, dated, respectively, in 1875, and 1881, which cover and convey the other twenty-five acres of the lands in dispute in fee simple, were also introduced.
The defendants asked the court to charge the jury that if plaintiff was allowed to set up the deed to D. S. Jennings, the grantee of the defendant Daniel, by parol, that plaintiff could not recover under the act of 1885, which provided that deeds should only take effect and pass title from and after registration. The court remarked that he would submit the facts to the jury, reserving the question of law, and thereupon submitted, with assent of both parties, to the jury the following issue, to wit: *361
Did the defendant Daniel Jennings, about 1860, execute to his son, D. S. Jennings, a deed in fee simple to the lands described in the complaint?
Answer: "Yes."
The court charged the jury, among other things, that if they were satisfied by a preponderance of the evidence that about 1860 the alleged deed was executed by defendant Daniel Jennings to his said son, and after the death of son, defendant Daniel Jennings got possession of the deed and destroyed it, to respond "Yes" to the issue, otherwise to answer "No."
To the issue submitted the jury responded "Yes," and the court, after considering the question of law reserved, gave (449) judgment for the plaintiff, and the defendant appealed. The record presents two exceptions, the first to the parol evidence offered to prove the execution and destruction of the deed from Daniel Jennings to D. S. Jennings, and the second to the refusal of the court to charge as requested.
As to the first exception: From the very nature of the allegation, if proved at all, it must be by parol evidence; but it is said this cannot be done in an action of ejectment, and the deed, before it can be offered in evidence, must first be established in a direct proceeding for that purpose and registered. It has been frequently held otherwise, and decrees for possession and for title have been made upon parol proof, both in Courts of Equity under the old practice and in actions for the possession of land under the present law. Love v. Belk, 1 Ired. Eq., 163; Plummer v. Baskerville, ibid., 252; McCain v. Hill, 2 Ired. Eq., 176; McMillan v. Edwards,
In Triplett v. Witherspoon,
It is quite clear that under the section 267 of The Code the plaintiff can unite, in the same action, a demand for the execution of a deed and for possession of the land, while under the old system the lost or destroyed deed could only be established in a Court of Equity, where a decree for title and such other relief as might be proper could be made and enforced according to the practice of that court.
In regard to the exception to the charge of the court, the same reasons for admitting parol testimony to establish a lost or destroyed deed apply. If the plaintiff had a deed which could be registered, and (451) failed to have it registered, undoubtedly the registration act of 1885 would apply, and the objection would avail the defendants, but the allegation, is that the deed was destroyed, and the relief sought being equitable, the statute does not apply.
In Phifer v. Barnhart, supra, quoting Walker v. Coltraine, 6 Ired. Eq., 79, Ruffin, J., says: "It was declared to be an error to say that an unregistered deed conveys only an equity, that it is a legal conveyance which, although it cannot be given in evidence until registered, and is therefore not a perfect legal title, yet has an operation as a deed from its delivery, and it was emphatically said the ignorance of such a title in one who might afterwards buy the land could not impair it," and it was held that such a deed could be set up in equity.
It has been held in Cowles v. Hardin,
There is no error. Affirmed.
Cited: Arrington v. Arrington,
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