Williams v. . Kerr, 18 S.E. 501

Williams v. . Kerr

18 S.E. 501

N.C.

1893

Check Treatment

Clabk, J.:

It is true that if the mortgage was acknowledged before a Justice of the Peaсe not of the proper county \_The Code, §§1245,1246 (1)], the registration would be invalid. DeCourcy v. Bair, 45 N. C., 181; Todd v. Outlaw, 79 N. C., *310 235; Duke v. Markham, 105 N. C., 131, and cases cited; Devlin on Deeds, §§487, 488. It is alsо true, as contended, that the acts validating such irregular acknowledgments and рrobates (Acts 1891, chs. 12 and 102; Acts 1893, ch. 293), while good, probably, as between the parties, and as to third parties from the passage of the acts, would not validate such acknowledgments and probates as to third parties whose rights had already bеen acquired prior to the validating statutes. Gordon v. Collett, 107 N. C., 362. But here the probate recites that the Justice of the Peace taking the same was a Justice of the Peace of Sampson County, where the land lay, and the presumption ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is that he was a Justice of the Peace of said county and that he took the acknowlеdgment within the same, subject to proof of the contrary. Kidd v. Venable, 111 N. C., 535; Darden v. Steamboat Co., 107 N. C., 437; Devereux v. McMahon, 102 N. C., 284.

Exception —It was not necessary that the lost -record should be supplied by an independent action. Upon satisfactory proof of loss, secondary evidence is admissible. Mobley v. Watts, 98 N. C., 284; Hopper v. Justice, 111 N. C., 418.

Exception 3. — The proof оf loss was sufficient to justify the admission of secondary evidence of the lost records.

Exception —This goes upon the ground that the defendant was not a party to the proceedings in foreclosure. The defendant’s title was derived by conveyance frоm Newkirk, the assignee of the mortgagor, and the plaintiff had purchased at the fоreclosure sale made under proceedings in which the mortgagee and the mortgagor were the parties. The foreclosure action was commеnced on the 19th ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍day of September, 1889, and the sale by the commissioner under the decree "rendered therein was on the 4th day of January, 1890. The records are lost, and it wall be presumed that the decree was rendered upon a complaint regularly filed, setting out the facts. The deed from the mortgagor (Boone) to Nеwkirk, though dated August, 1883, was not registered until the 2d *311 day of January, 1890, and the deed from Newkirk to the dеfendant Kerr, though dated 15th October, 1889, was not registered before April 2, 1890. In Collingwood v. Brown, 106 N. C., 366, the Court say: “If, at the time it (the deed) is so filed for record, there is a pending suit, the holder of such а deed, previously withheld from the record, is a 'pendente lite purchaser.” And in that case it is held thаt such a purchaser ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is as effectually bound as if a party to the action.

It would be strange, indeed, if a party could take a deed pending litigation, and could hold the deed in his pocket, setting up no claim, and, after the litigation closes, could say he ought to have been made a party.

The defendants Kerr and Newkirk were not made parties because the records did not show that either had title or claim of title. Besides, subsequent incumbrancers are proper parties in a foreclosure proceeding, but not' necessary parties. Kornegay v. Steamboat Co., 107 N. C., 115.

Excеptions 5 and 6 are, it seems to us, simply exceptions ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍out of “abundance of caution,” and are without merit.

. Exception 7. — If there was a payment on the mortgage bond within ten years before suit brought, the debt not being out of date, the purchaser at the forеclosure sale was not barred. The Code, § 152 (3); Ely v. Bush, 89 N. C., 358.

Exception 8. — The Court correctly charged the jury that “ a mоrtgagor in possession of land held under his mortgage, as did also a purchaser from such -mortgagor, provided he had notice of the mortgage, and if the mortgagе was registered at the time of the purchase, that was a notice to the рurchaser, and a seven-years holding by such mortgagor or purchaser would not givе title.” Parker v. Banks, 79 N. C., 480.

Exception 9. — The Court correctly stated the law in charging that “ if the purchaser bought the land with actual knowledge of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the mortgage, agreeing to assume the mortgage dеbt, he would be in possession under the mortgage, and the defend>■ ant having bought the land from the aforesaid purchaser *312 within less than a year before the suit was originally brought (this suit having begun within one year after a nonsuit taken in such original suit), the defendant would not have had possession of the land long enough to makе his title good against the mortgagee, even if his possession were adverse and without notice.” Parker v. Banks, supra.

No Error.