203 F. 733 | E.D.N.C. | 1913
Plaintiff alleges: That he is the owner in fee of 11/j2b undivided interest in a tract of land lying and being situate in the. county of Perquimans in the Eastern district of North Carolina, described by metes and bounds. That defendant Leonard Vyne claims to be the owner of said tract of land, and that said claim is based upon a grant issued to him by the state of North Carolina, bearing date February 7, 1906. That defendant Kramer Bros. & Co., a corporation, claims an interest in the timber standing upon said land by virtue of a contract made by said corporation with said Vyne. II e asks the court to declare the grant to be a cloud upon his title, and to make a decree removing same and quieting his title. Defendants deny that plaintiff is the owner of, or owns any interest in, said land. They admit that defendant Vyne claims title thereto under the grant from the state, and allege that he acquired from the state a good and indefeasible title thereto.
Plaintiff deraigns his title as follows: (1) A grant from the state of North Carolina to John Hamilton, bearing date December 27, 1792. (2) A deed from Hamilton to John McKinney, hearing date October 20, 1794. (3) A deed from John McKinney to William Cathcart and Francis Johnson, bearing date March 2, 1795. (4) A deed from Francis Johnson and wife to Alexander W. Johnson for an undivided interest, bearing date February 5, 1806. (5) Descent from A. W. Johnson, deceased.
Defendants rely upon the grant set out in the complaint and answer,
The grant to John Hamilton describes a large boundary, recited, in the grant, to be situate in Pasquotank county, but conceded to include land situate in both Pasquotank and Perquimans counties, containing 26,000 acres. It is denied that the locus in quo is within the boundaries of said grant. It is apparent, however, that the plaintiff’s contention in that respect is correct. The land is within the calls of the grant, and is in that portion of it situate in Perquimans county, which is one of the oldest counties in the state. On its records is found the first deed of which there is any record in the state, executed by the king of the Yeopim (Indians) to George Durant, bearing date March 1, 1662. 1 CoL Records. Pasquotank county was set apart in 1729. The fact that the entry was made and the grant issued for lands in both counties, although described as in only one, brings it within the curative provisions of Acts 1807, c. 727 (1 Rev. Stat. c. 42, §29).
The evidence from both plaintiff and defendants is amply sufficient to show that the land granted to defendant Vyne February 7, 1906, is within the boundaries of the Hamilton grant of December 27, 1792, and is conceded to be in Perquimans county. It is so described in his grant. The question presented, therefore, is whether plaintiff has such title or interest in the land as’entitles him to ask the court to remove a cloud from his title, and whether the Vyne grant, by statute declared to be void, constitutes a cloud upon his title.
Defendants, for the purpose of showing that McKinney acquired no title under the deed from Hamilton, introduced the record of a deed, over plaintiff’s objection, from Hamilton to Dindsey and Myers, conveying the same land described in his deed, of same date as the de.ed to McKinney. Defendant contends that, in this condition of the title, two dfeeds of same date for the same land to different grantees, it is impossible for the court to find, as a fact, which was -delivered first.
“The delivery of a deed is essential to the transfer of the title. It is the final act, without which all other formalities are ineffectual. To constitute • such delivery the grantor must part with the possession of the deed, or the right to retain it. Its registry by him is entitled to great'consideration upon this point, and might perhaps justify, in the absence of opposing evidence, a presumption of delivery.”
The question remains open, however, which was first delivered. In the absence of any evidence, other than such as may be gathered from the date of acknowledgment, as to the date of delivery, the question is presented whther any presumption arises as to the date of delivery as between two deeds bearing thq same date. In Crabtree v. Crabtree, 136 Iowa, 430, 113 N. W. 923, 15 Ann. Cas. 149, it is held that:
"Where a deed bears an earlier date than the certificate of its acknowledgment, the deed is, In the absence of other evidence, presumed to have been delivered on the date of its acknowledgment.”
'Weaver, C. J., concedes that many courts, probably the majority, hold that the presumption, in such cases, is that the delivery is of the day of its date. It is held by the Supreme Court of the United States, in United States v. Le Baron, 19 How. 73, 15 L. Ed. 525, that:
“The delivery of a deed is presumed to have been made on the day of its date. But. this presumption maj he removed by evidence that it was delivered on some subsequent day.”
In an exhaustive note to the case of Crabtree v. Crabtree, supra, the cases holding the two views are collected. In Guaranty Trust Co. v. Galveston City R. Co., 107 Fed. 311, 46 C. C. A. 305 (C. C. A. Fifth Cir.) it is held that, in the absence of any evidence of the date of delivery of a mortgage, the presumption will be indulged that it was delivered on the day of its acknowledgment. Among the cases holding this view are Fitzpatrick v. Brigman, 130 Ala. 450, 30 South. 500, and Loomis v. Pingree, 43 Me. 299.
In Nichols v. Palmer, 4 N. C. 319, it was held that” where a deed bears a date different from the date of its attestation, and there is no evidence of the date of its delivery, it will be presumed to have been delivered on the date of its attestation. Court of Conference, Cameron, J.
“No conveyance, or bill of sale for land (other than mortgages), in what manner or form soever drawn, shall be good and available in law, unless the same shall be acknowledged by the vendor or grantor or proved by one or more evidences upon oath, either before * * * or in the county court, and registered by the public register of the county where the land lieth within two years after the date of said deed; and that all deeds so done and executed shall be valid' and pass estates in land or right or other estate, without livery' of. seisin, attornment, or other ceremony in law whatsoever.”
It is held in North Carolina that, by virtue of the language of the statute, the registration of a deed gives it the force and effect of a feoffment with livery of seisin. Hogan v. Strayhorn, 65 N. C. 279; Ivey v. Granberry, 66 N. C. 223; Bryan v. Eason, 147 N. C. 289, 61 S. E. 71.
“Memorandum. 3 March, 3795. The above deed was this day delivered up to John Hamilton by John McKinney, and a new conveyance of the 20th October, 1701, was made by John Hamilton to said McKinney, for the nominal consideration of thirteen thousand Spanish mill dollars.
“[Signed] John McKinney.
“Isaac Sexton.
“Camden County, 28th October, 1794. Then received of Moses Myers and ■William Lindsey, by the hands of Tsaae Sexton, the within sum of two thousand Spanish mill dollars in full of the within premises.
“J. Hamilton.”
“Memorandum. 3 March, 1795. Nixonton.
“Borrowed, and received from Hamilton, the patent within mentioned, dated 27 December, 1782, for 2(i,000 acres of land, which patent, being the title of the said Hamilton, I hereby promise to return him when demanded.
“John McKinney.”
“State of No. Carolina, Pasquotank County.
“September Term, 1797.
“Present: The worshipful justices.
“This may certify that the within deed of bargain and sale of land from John Hamilton to Lindsey and Myers was exhibited, and acknowledged in open court, and ordered to be registered. At the same time a memorandum on the said deed, signed by John McKinney and witnessed by Isaac Sexton, who is since dead, was proved by the oath of Benjamin Jones, and also ordered to be registered.
“Test: Will T. Muse, Clk.
“Registered the 19th of 7th Mo. July, 1798.
“By Thomas Jordan, P. Regr.”
The deed from Hamilton to McKinney, of October 20, 1794, contains the following recital:
“Witnesseth, that the said John Hamilton, for and in consideration of the sum of thirteen thousand Spanish milled dollars to Mm in hand paid by William Liudsev and Moses Myers for the aforesaid John McKinney, the receipt whereof the said John Hamilton doth hereby acknowledge, and doth discharge and exonerate the said McKinney from any further demand whatsoever on that account.”
John Brownrigg and Isaac Sexton are the attesting witnesses to this deed. McKinney’s deed to Cathcart and Johnston of March 2, 1795, acknowledged and registered March 4, 1795, recites a consideration of “twenty-six thousand Prendí crowns.” Isaac Sexton and William Kane are the attesting witnesses thereto.
It will be noted that Isaac Sexton, the witness to the several deeds, who, it seems, was the person through whom the money was paid to Hamilton, was dead September, 1797, at the time the Kindsey and Myers deed was acknowledged. It is impossible to explain, with entire satisfaction, the unusual course pursued by the parties to these deeds. It will be observed that Mr. Hamilton was an attorney, and it may he presumed that lie was familiar with the statute regarding tiie execution of deeds — their probate and registration. The inference which I think.may reasonably be drawn from the indorsements found on the deed, whicli are competent, not as affecting or controlling the terms of the deeds, but as explaining the ambiguous conduct of
' The fact that McKinney had the Lindsey and Myers deed, before acknowledgment and registration, in his possession, and surrendered it to Hamilton, who, on the same day, executed the deed to McKinney, is explained by the indorsements found on it. It is also signifir cant that Lindsey and Myers, so far as the record discloses, made no 'conveyance of the land, and no one.asserts any title or claim under it. This would seem to lead to the conclusion that the deed to McKinney of October 20, 1794, was signed and delivered on March 3, 1795, and that the Lindsey and Myers deed was, at that time, surrendered to Hamilton. The effect of this arrangement was to vest the title in McKinney, and, by his deed, in Cathcart and Johnston. Why, tyro years thereafter, Hamilton acknowledged and put to registration the Lindsey and Myers deed, is difficult to understand; but whatever his purpose' may have been, his act did not affect the title of McKinney and those claiming under him. By virtue of the statute his act, in acknowledging and registering the deed on March 4, 1795, was valid to pass the estate in the land to McKinney. That McKinney accepted .the deed is manifested, both by his declaration, indorsed on the Lindsey and Myers deed, and his conveyance of the land, on the same day, to Cathcart and Johnston.
Defendant further insists that the evidence shows that the grantees in those deeds conveyed portions of the land to other persons, and that by successive conveyances, set out in the evidence, the title to such portions is in persons who are strangers to plaintiffs title. Conceding this to be true, and conceding that, in an action of ejectment, defendants could defeat a recovery by plaintiff by showing an outstanding title in a stranger, it is evident that no adverse possession of the locus in quo is shown. The defendant’s entire contention in regard to the land claimed by them, and the only contention upon which the grant to Vyne can be sustained, is that the land covered by it was, prior to the date of his grant, vacant and unappropriated laud. It is uncleared, and its chief value consists of the standing and growing timber thereon. It is a part of the Dismal Swamp — low, flat land. The evidence tends to show that it is not included in the boundaries contained in the deeds under which the persons living upon other portions of the Hamilton grant claim title. I am of the opinion that there is no evidence of an ouster, followed by adverse possession, sufficient to take title out of the plaintiff.
“Every entry made, and every grant issued for lands not authorized by this chapter to be entered or granted shall be void, and every grant of land made since the sixth day of March, one thousand eight hundred and ninety three, in pursuance of the statutes regulating entries and grants, shall if such land or any portion thereof has been heretofore granted by this state, so far as relates to any land heretofore granted, be absolutely void for all purposes whatever, shall confer no rights whatever, upon the grantee or grantees therein, or those claiming under such grantee or grantees, and shall in no case, and under no circumstances constitute color of title whatsoever to any person whomsoever.” Laws 1893, c. 490; Pell’s Rev. § 1699.
If, therefore, the land in controversy is included within the boundaries of the Hamilton grant, as it manifestly is, the grant to Vyne is absolutely void for all purposes. If the plaintiff is the owner of an undivided interest in the land, it would seem that he is entitled, to the extent of such interest, to have the relief for which he prays in his bill.
“Equity interferes to remove clouds upon title, because they embarrass the owner of the property clouded, and tend to impede his free sale and disposition of it. A cloud upon title is, in itself, a title or incumbrance, apparently valid, but in fact invalid. It is something which, nothing else being shown, constitutes an incumbrance upon or a defect in it; something which shows' prima facie the right of a third party, either to the whole or some interest in it, or a lien upon it. The doctrine relating to cloud upon title is founded upon true principles of equity jurisprudence, which is not merely remedial, but is also preventive of injustice. If an instrument ought not to be used or enforced, it is against conscience for the party holding the same to retain it, since he can only do so with some sinister or wrongful design. * * * If it is a deed purporting to convey lands, which creates an apparent incumbrance, its existence in an uncaneeled state necessarily is calculated to throw a cloud over the title.” Note to Busbee v. Macy, 85 N. C. 329, in Remedies by Selected Cases, Mordecai, 184; Rich v. Braxton, 158 U. S. 375, 15 Sup. Ct. 1006, 39 L. Ed. 1022.
“One branch of equity jurisdiction is the removal of apparent clouds upon the title, which may diminish the market value of the land and possibly threaten the loss of it to the owner. * * * When the illegality or fatal defect does not appear on the face of the record, but must be shown by evidence aliunde, so that the record would make out a prima facie right in one who should become a purchaser, arid the evidence to rebut this case may be lost, or become unavailable from death of witnesses, or when the deed given on a sale of the land for the tax would be presumptive evidence of a good title in the purchaser, so that the purchaser might rely upon the deed for a recovery of the land until the irregularities were shown, courts of equity regard the ease as coming within their jurisdiction, and have extended relief on the ground that a cloud on the title existed or was imminent.” Acord v. West Poc. Corp. [C. C.] 156 Fed. 989.
The case made upon this record comes clearly within the principle announced. The grant to Vyne is regular, and, upon its face, valid'
It appears that, prior to filing the bill, plaintiff took actual possession of the land, so far as it is capable of being occupied. The evidence tends to show that defendant Leonard Vyne has never been in the actual possession; that he entered into some contract, the exact terms of which are not shown, with defendant Kramer Bros. & Co., a corporation, for the sale of the timber on the land. It is manifest that its chief value consists in the timber. The defendants will be enjoined from setting up said grant, or asserting title thereunder to the land described in the said grant, from the state to Leonard Vyne of February 7, 1906, No. 16,788, as against the plaintiff, and from cutting or removing any timber from said land. Plaintiff will recover his cost.