Herring v. . Warwick , 155 N.C. 345 ( 1911 )

We think there was error in the instruction of the court. In the first place, there was no sufficient evidence for the jury that Warwick surrendered possession of the land to Gregory. On the contrary, he demanded the possession of S. A. Herring, and upon his refusal to give it up, he brought suit against him to recover it, thereby continually asserting his right to the possession acquired by his purchase from J.T. Gregory, the mortgagee, and the deed the latter made to him, which was duly and promptly registered. Even had Warwick torn up or otherwise destroyed his deed, it would not have had the legal effect of revesting the title in Gregory. InLinker v. Long, 64, N.C. 296, it appeared that a deed for land had been executed by W. F. Taylor to Isaac Linker 6 November, 1852, and on 11 May, 1853, it was redelivered by Linker to Taylor, with the following endorsement upon it: "I transfer the within deed to (349) W. F. Taylor again." Taylor kept the possession of the land during his life, and his heirs retained possession to the time of bringing the suit. The lower court refused permission to read the deed in evidence. This Court held that ruling to be erroneous, and with reference thereto, said: "This ruling is based upon the deed that it had been redelivered by the bargainee to the bargainor, the legal effect of this writing on the back was to nullify the deed, and make it as if it had never been executed. By force of the deed, and the operation of the statute, 27 Hen. VIII, an estate of freehold of inheritance was vested in Linker on 6 November, 1852. The question is, Has that estate been divested by any conveyance, or means, known to the law. Suppose that deed, upon 11 May, 1853, had been canceled, torn up or burnt, by consent of both parties, the estate would not have been thereby revested in Taylor, for by the common law a freehold estate in land can only pass by delivery of seizin — under the Statute of Enrollments by ``deed of bargain and sale indented and enrolled' — and under the act of 1715, by ``deed duly registered'; so, the freehold having passed to Linker, could only be passed from him either to a third person or to Taylor by some kind of conveyance known to the law. A will, being ambulatory, may be revoked by cancellation; a covenant or agreement, being in fieri, a thing to be done by cancellation or by deed of defeasance, which may be executed after the covenant. But a conveyance of a freehold estate of inheritance, being a thing done, can not be undone by cancellation, or in any other mode, and the estate can only be revested by another conveyance, unless a condition or deed of defeasance executed at the same time and as a part of the conveyance, be annexed to the estate, giving to it a qualification by which it may be defeated. For illustration, a mortgage is a conveyance on condition. If the money be paid at the time fixed the estate is revested in the mortgagor, but if the condition be not performed by payment at the day, the estate becomes absolute, and although the money be paid and accepted afterwards, the estate can only be revested by another conveyance." The Chief Justice is referring, in the last clause, to a strict foreclosure and not to the right or equity of redemption. He is illustrating the point by giving an example of a deed upon condition and applying the strict rule of the (350) common law to the relation of the parties without regard to the equitable right of the mortgagor, and the illustration is an apt one. This decision has been approved in several cases, and among others we may cite Wharton v. Moore, 84 N.C. 479; Hare v. Jernigan, 76 N.C. 471;Browne v. Davis (opinion by Justice Shepard,) 109 N.C. 23; Tunstallv. Cobb (opinion by present Chief Justice,) 109 N.C. 316; Hodges v.Wilkinson, 111 N.C. 56. The law, as declared in Linker v. Long, has been recognized and acted upon to the present time. If the facts, as they appeared in that case, did not have the effect of revesting the title in the grantor, who remained in the possession of the land after the endorsement was made on the deed and the latter was redelivered to him, how can it be said, as a matter of law, that the acts and conduct of Warwick divested the title which he had acquired by his purchase and the deed from the mortgagee, which was registered? J. T. Gregory paid the purchase money back to him for the reason that Herring had possession of the land and refused to surrender it. This was not an abandonment of his title or of the right he had acquired under the sale and deed. On the contrary, he almost immediately asserted his right to the possession and by suit attempted to enforce his claim as against one of the mortgagors. It was not necessary to the vesting of the title in Warwick that Gregory should have given him the possession of the land. The title vested by the deed and its registration, the latter taking the place of livery of seizin. The verdict upon the first and second issues resulted from an erroneous instruction of the judge to the jury. The question as to the legal effect of the proceedings and judgment in the case ofWarwick v. Herring, upon the rights of the parties to this litigation, was not considered by the court and, therefore, did not enter into the verdict or in any way affect it. We can not, therefore, consider that question. The parties have had no opportunity to be heard in regard to it, and apart from the fact that it was offered as evidence, it has played no part in the decision of the case. The defendant has had no chance to except to any ruling upon it, and it would not be right or in accordance with correct procedure, to pass upon it at this time. (351) We will do so if it ever comes before us directly for our decision, but it is not now presented in any tangible form. It involves the application of an important principle of law and is not at all free from difficulty. The plaintiff offered in evidence the proceedings, verdict and judgment in that case, and relied upon them to show that Warwick was seized only of a life estate and was, therefore, liable to plaintiff, as reversioner for waste committed upon the premises, as it is alleged that his act produced lasting damage to the inheritance. The judgment professes to sell the entire estate in the land, and not only the life interest, or to be more accurate, its operation is not, in terms, restricted to the life estate, though there is one expression in the decree of confirmation which indicates that such may have been the intention of the court. Did it operate upon the estate in reversion, and, if so, are plaintiffs bound by it, not having been made parties to the suit? Does it bind them by reason of the fact that they introduced it and rely upon it? Are they still required, notwithstanding the judgment and independently of it, to prove that the sale of the land by Gregory, under the power contained in the mortgage from Herring to him, is not valid as to them, or, in law, does the judgment establish this fact, although they were not parties to it? These are questions, and perhaps there are others, which may attract the attention of counsel in the further progress and development of the case, and upon which they will enlighten us if the matter again comes before us. All we can now say is that the verdict, in an essential particular, was rendered under the influence solely of an erroneous instruction, and it should, therefore, be set aside.

New trial.

Cited: S.c., 158 N.C. 593.

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