28 S.E. 368 | N.C. | 1897
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.,
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,
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 *215 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,
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,
Affirmed.
Cited: Willis v. R. R.,