48 S.E. 767 | N.C. | 1904
This is an action for the recovery of land. Both parties claimed under John Cox. Plaintiff introduced a deed from said Cox and wife to Jane Simpson, bearing date 1 March, 1883, registered 13 August, 1901; deed from Nathan Simpson and wife, Jane, bearing date 3 August, 1901, registered 10 August, 1901.
The defendants introduced a deed in trust from Cox to A. C. Freeman, bearing date 21 January, 1884, recorded 17 March, 1891. Deed from A. C. Freeman, trustee, to E. J. Freeman, bearing date 17 October, 1891, registered same day. Deed from E. J. Freeman and wife to A. C. Freeman, bearing date 17 October, 1891, registered 19 October, 1891. Deed from the widow and heirs at law of A. C. Freeman to defendants, duly registered. Record in case of A. C. Freeman v. John Cox and Nathan Simpson, Fall Term, 1891, STANLY, complaint averring title to locus in quo in plaintiff, that defendants were in possession, etc. Judgment by default for plaintiff. This record was admitted after objection by plaintiff. Exception. The plaintiff introduced Nathan Simpson and proposed to show that Jane Simpson and plaintiff claiming under her have been in the open, notorious, adverse and actual possession of (378) the land described in the complaint under a deed from John Cox to her as color of title ever since the date of said deed in 1883 to some time in the summer of 1900 under well-known metes and bounds. The defendant objected. Objection sustained. Plaintiff excepted. Upon the intimation of the court that plaintiff could not recover, he submitted to a nonsuit and appealed.
The testimony should have been received, not for the purpose suggested, but to show, if believed by the jury, that the plaintiff's case came within the proviso in chapter 147, Laws 1885. After declaring that no deed, etc., should be effectual to pass title as against purchasers and creditors, except from the registration thereof, is the following language: "Provided that no purchase from any such donor, bargainor or lessor shall avail or pass title as against any unregistered deed executed prior to 1 December, 1885, when the person or persons holding or claiming under such unregistered deed shall be in the actual possession and enjoyment, either in person or by his, her or their tenants of such land * * * at the time of the execution of such second deed," etc. The deed to Jane Simpson having been executed 1 March, 1884, comes strictly within the proviso if it is shown that she was in possession under said deed at the time of the execution of the mortgage deed of 21 January, 1884. The history of the registration laws of the State shows that frequent efforts were made to place deeds in respect to registration as affecting purchasers and creditors on the same footing with (379) mortgages and deeds in trust. As the State became an inviting field for the investment of capital in the development of its resources in mines, lumber, water-power and agriculture, the laxity of our registration laws were found to be an obstacle to progress. The General Assembly at each session having passed acts extending the time for the registration of deeds, section 1245 of The Code requiring registration within two years after the date of deeds was not only abrogated but was misleading. This Court uniformly held that the grantee holding an unregistered deed had either an incomplete, or, as was sometimes said, an equitable title, which became perfect when the deed was registered and related back to its delivery; that the title when perfected by registration was paramount to title acquired by a purchaser for value without notice from the grantor although registered before the deed of prior date. The question is discussed with his usual ability, and the authorities reviewed by RUFFIN, J., in Phifer v. Barnhart,
New trial.
(381)
