This proceeding is to foreclose a mortgage which was executed and recorded in 1884. Sarah Mills is brought in as a defendant because she claims under a deed dated in 1878, but which remained unregistered till July, 1896, after this action was begun. There is nothing in her exception that one of the heirs at law of her deceased sister, who was named as grantee with her in the unregistered deed, is not made a party. Sarah Mills is not interested in that in any way, as her rights cannot be affected thereby.
Every phase of the defendants' contention could have been and was presented on the issue as settled by the Court, and when this is so, we will not find error as to the mere form or number of the issues submitted.Rittenhouse v. R. R., 120 N.C. 544; Humphrey v. Church, 109 N.C. 132;Denmark v. R. R., 107 N.C. 185. Besides, the issue submitted was the only pertinent one raised by the pleadings. Issues upon mere evidential matters should not be submitted. Grant v. Bell, 87 N.C. 34; Patton v. R. R.,96 N.C. 455.
Had the unregistered deed been executed since chapter 147, Laws 1885, known commonly as "Connor's Act," no notice to a subsequent purchaser or mortgagee, however full and formal, would supply (267) the registration of the prior conveyance. Maddox v. Arp,114 N.C. 585; Quinnerly v. Quinnerly, ib., 145; Barber v. Wadsworth,115 N.C. 29; Hooker v. Nichols, 116 N.C. 157. The unregistered deed, however, is alleged to have been made prior to the act of 1885, and Sarah Mills contends that she comes within the exception therein, that no purchase shall avail as against any unregistered deed executed prior
to 1 December, 1885, when the person holding under such unregistered deed is in the actual possession of the land, or the purchaser has actual or constructive notice of such unregistered deed. The court instructed the jury, at defendant's request, that if the mortgagee, when he took the mortgage, had information of the rights of Sarah Mills and her sister, he took with notice. The finding of the jury settles that there was no actual notice, and his Honor properly held that there was no constructive notice. The evidence was that the mortgaged land had no house or fence on it; that the mortgagors, G. F. and J. W. Mills, two brothers, owned the premises and cultivated them; that after the date of the deed made to Sarah and Mary Mills, their sisters, the said G. F. and J. W. Mills continued to cultivate and exercise the same ownership thereover as before, and have continually ever since listed the same for taxes in their own names, but they allege that they paid their sisters rent ($50 per annum) and were furnished money by said sisters to pay the taxes. All four were unmarried and lived together in a house on an adjoining tract. There was no actual notice, and herein this case differs from Cowan v. Withrow,111 N.C. 306; s. c., 112 N.C. 736; s. c., 114 N.C. 558, and s. c.,116 N.C. 771. Constructive notice is a legal inference from established facts, and arises when "the presumption of notice is so violent that the court will not allow it to be contradicted." Bost v. Setzer, 87 (268) N.C. 187, and cases cited; Story Eq. Jur., 399; 16 Am. Eng. Enc., 791. Possession, to constitute constructive notice, must be "open, notorious, exclusive and existing at the time of the purchase" (Edwards v. Thompson, 71 N.C. 177; Bost v. Setzer, supra), and it is not such notice when the grantor remains in possession after the conveyance, or if the possession is equivocal. 16 Am. Eng. Enc., 803. Here the alleged grantors exercised the same acts of dominion and ownership as before, cultivating the land and paying the taxes in their own names and living with their sisters on an adjoining farm. From this, there were no acts inconsistent with the paper title, nor showing "exclusive, open and notorious possession" in the two sisters, nor of actual possession by them, even if the evidence of a promise to pay or payment of rent to them was made. Allen v. Bolen, 114 N.C. 560. In all the cases in our courts of constructive notice from possession the actual possession was in some one else than the vendor. Johnson v. Hauser, 88 N.C. 388; Bost v. Setzer,supra; Webber v. Taylor, 55 N.C. 9.
The second prayer for instruction was properly refused. Sarah Mills had no equity in the note sued on, and the plaintiff's taking it after maturity in nowise affects her.
The court properly charged that the burden was upon the defendant Sarah Mills to show that the mortgagee had actual or constructive notice of the unregistered deed, so as to entitle her to come within the proviso
in the act of 1885. There was no error in instructing the jury that it was immaterial whether or not the plaintiff received actual notice of the unregistered deed in 1886, which was two years after the mortgage in suit was executed.
The recital in the defendants' exception (4a), as to what the judge charged, is not sustained by what the judge says was his charge, and goes for naught. As was said in Merrell v. Whitmire, 110 N.C. 367, citingWalker v. Scott, 106 N.C. 56, "We cannot assume that an assignment of error is a correct statement of facts therein recited, when such facts do not appear in the case stated by the court."
The second exception, which was for failure to give a certain (269) instruction which was not prayed for, cannot be sustained — first, because the possession of Sarah Mills was not shown to be "open, notorious and exclusive," and for the further reason that the omission to charge upon a particular point is not error. If the party desires a specific instruction thereon, it is his duty to ask for it. Boon v. Murphy,108 N.C. 187; S. v. Varner, 115 N.C. 744; S. v. Ussery, 118 N.C. 1177;Nelson v. Ins. Co., 120 N.C. 302; S. v. Pritchett, 106 N.C. 667; Betheav. R. R., ib., 279; S. v. Bailey, 100 N.C. 528; King v. Blackwell,96 N.C. 322; Willey v. R. R., ib., 408; Morgan v. Lewis, 95 N.C. 296, and numerous other cases cited in Clark's Code (2 Ed.), pp. 382, 394 and 399.
Affirmed.
Cited: Willis v. R. R., 122 N.C. 907; Pretzfelder v. Ins. Co.,123 N.C. 165; McCord v. R. R., 130 N.C. 493; Ratliff v. Ratliff,131 N.C. 426; S. v. Dixon, ib., 813; Ray v. Long, 132 N.C. 893; Gwaltneyv. Assurance Soc., ib., 930; Moore v. Palmer, ib., 976; Hart v. Cannon,133 N.C. 14; Kerr v. Hicks, ib., 176; Hatcher v. Dabbs, ib., 241; CoalCo. v. Ice Co., 134 N.C. 577; Yow v. Hamilton, 136 N.C. 362;Jackson v. Tel. Co., 139 N.C. 357; Gaither v. Carpenter, 143 N.C. 242;S. v. Turner, ib., 642; Baker v. R. R., 144 N.C. 41; Nelson v. TobaccoCo., ib., 420; Lance v. Rumbough, 150 N.C. 25; Piano Co. v. Spruill, ib., 169; Busbee v. Land Co., 151 N.C. 515; Smith v. Fuller, 152 N.C. 12; Inre Herring, ib., 259; Jones v. High Point, 153 N.C. 372; Wood v. Lewey, ib., 403; Burwell v. Chapman, 159 N.C. 212; Buchanan v. Clark, 164 N.C. 71; S.v. McKenzie, 166 N.C. 296; Smith v. Tel. Co., 167 N.C. 256; S. v. Freeze,170 N.C. 711.