John L. Roper Lumber Co. v. Hudson
68 S.E. 1065
N.C.
1910
Check Treatment
Manning, J.,

after stating the case. One of the exceptions seriously argued before us was to the admission in evidence of the will of W. T. Dixon. We have carefully examined the record and certification of its probate in the Orphan’s Court of Baltimore, the court having jurisdiction to admit wills and test *99 aments to probate, and tbongb tbe pages of tbe manuscript exemplified copy are not orderly arranged, yet an examination discloses every fact required by sec. 3133, Eevisal, to entitle tbe will to be admitted to probate and record in tbis State. Roscoe v. Lumber Co., 124 N. C., 42. Tbe older decisions, as Drake v. Merrill, 47 N. C., 368, do not apply, for tbe reason tbat tbe statutes are not tbe same. Tbe will was executed according to tbe laws of tbis State, and tbe probate substantially made according to our form, and tbat fact appears.in tbe certified probate or exemplification of the will. We cannot sustain tbis exception. Tbe plaintiff, admitting tbe title to have been in Samuel Hudson and producing no deed from him, offered evidence which it contends amounts to an estoppel upon bis beirs-at-law and bis agent, who claim title under Samuel Hudson. Tbe other defendant is tbe widow of Hudson, who claims no title to tbe fee in tbe land, but who is entitled to her dower therein. Tbe question presented by these exceptions is, do tbe facts proven, taken together or singly, amount to an estoppel. These facts are tbat Samuel Hudson took a mortgage from Eandolf Harris, in which was tbe recital: “It being all of tbe Thomas Hall tract of land deeded to me in a deed made to me tbis day by S. Hudson;” and tbat thereafter, for several years, said Harris was in tbe actual possession of said land; tbat be conveyed tbe land to Dixon for tbe consideration of $700, on 19 April, 1889, and in a few days thereafter — on 6 May, 1889 — the said Samuel Hudson made tbe following entry on tbe record of tbe registration of tbe mortgage : “Tbis mortgage is discharged by tbe mortgagor giving a deed to W. T. Dixon & Bro. tbe present owners of tbe mortgage and notes described therein;” and after tbat time tbe evidence tended to show tbat Hudson recognized tbe title to be in Dixon. Tbe mortgage by Harris to Hudson was a conveyance to him of tbe legal title. “In some of tbe States a mortgage is held by statutory regulation or judicial construction to be simply a lien, leaving tbe legal estate in tbe mortgagor. In North Carolina and many other States, tbe common law prevails, and tbe mortgage deed passes tbe legal title at once, defeasible by subsequent performance of its conditions.” Hinson v. Smith, 118 N. C., 503; Williams v. Teachey, 85 N. C., 402; Modlin v. Ins. Co., 151 *100 N. C., 35, and cases cited. And this is true notwithstanding the statute bas prescribed simple methods of acknowledgment of satisfaction which restores the legal title in the mortgagor, other than by deeds of defeasance. In Smith v. Fuller, 152 N. C., 9, it is held by this Court that the entry of satisfaction on the margin of its registration, by the proper person, is conclusive of the fact of the discharge of the mortgage and its satisfaction as to strangers to the mortgage. In Fort v. Allen, 110 N. C., 183, this Court, in discussing estoppels by recitals in deeds, quotes with approval the following language of Henderson, C. J., in Brinegar v. Chaffin, 14 N. C., 108: “Recitals in a deed are estop-pels when they are the essence of the contract; that is, where, unless the facts recited exist, the contract, it is presumed, would not have been made.” It is inconceivable, unless it were true, that Hudson would have accepted a deed from Harris for land claimed by him, Hudson, containing a recital that he, Hudson, had conveyed the same land on the same day to Harris, and accepted it as security for $700 — evidently the whole or a part of the purchase price. It is evident that the conveyance from Hudson to Harris was the basis of the contract, and without such a conveyance, it is fair to assume the mortgage deed would not have been made. “Such, we think, is the necessary inference to be drawn from the recital in the deed.” This inference is made conclusive by the fair interpretation of the entry of satisfaction of the mortgage deed. From that, it is evident that Hudson had previously assigned the notes secured by the mortgage to Dixon, and recognized the discharge of those notes and the satisfaction of the condition of the mortgage by the deed of conveyance from Harris to Dixon. Harris settled the notes by making a deed to the land, and Hudson was satisfied. Raby v. Reeves, 112 N. C., 688, 2 Herman on Estoppel and Res Adjudicata, secs. 636, 917. In 2 Herman on Estoppel, sec. 926, the principle is thus stated: “Where a person takes from another a mortgage of lands, the record title, which is in himself at the time such mortgage is executed, and in good faith assigns such mortgage, and it is foreclosed, neither such mortgagee nor his representatives or privies can set up such prior title in him to defeat the mortgage.” Rogers v. Cross, 3 Chand., 34; Carver v. Jackson, *101 4 Pet., 1 (pp. 83-88). In tbis action, Samuel Hudson was the original defendant; he died pending the suit and his widow and only heir-at-law were made parties, they claim as privies to the title of Samuel Hudson — not by any adverse or paramount title. And we think it is clear, from the authorities cited, they are estopped — as Samuel Hudson was estopped — by the recitals in the deed, by the entry on the record of satisfaction of the mortgage deed as a recognition of Harris’ title and his conveyance to Dixon & Bro. of the land. The right of the widow of Samuel Hudson to dower is preserved to her in the judgment of his Honor. Having carefully examined the other exceptions taken at the trial, we do not think they can be sustained. Finding no reversible error, the judgment is affirmed.

No error.