McMillan v. . Edwards , 75 N.C. 81 ( 1876 )

If the allegations of the complaint are true, and the deed from the sheriff had been registered, the plaintiff would be entitled to recover in this action. The title to land does not pass until the registration of the deed. Bat. Rev., chap. 35, sec. 1; Wilsonv. Sparks, 72 N.C. 208; Hogan v. Strayhorn, 65 N.C. 279; Triplettv. Witherspoon, 74 N.C. 475. It was the duty of the sheriff not only to execute the deed, but such a deed as would be effectual to pass all the interest of the defendant subject to sale and that was (83) sold under the execution. If by loss of the deed before registration, it failed to pass the title, it would seem clearly to be the duty of the sheriff to execute another and still another, until by registration, the sheriff, who is an officer of the law charged with the duty, had made a deed effectual to convey the interest sold under the execution. This generally, he would be compelled to do.

If the action here had been ejectment under the old system, the plaintiff, to recover, must have shown a legal title existing at the commencement of the action. But now both legal and equitable rights are administered in the same action, and no sufficient reason can be assigned why the plaintiff may not, at the same time and in the same action, ask for the execution of another deed, to be made effectual by registration and also for the possession of the land. It is true the deed must be executed before the title to the land can be tried, but this makes it necessary only to stay the trial for the land until the deed is established. It is competent for the plaintiff to set up the lost deed by proving the loss and establishing a copy, but here the sheriff, who is a party to the action, offers to execute another deed, to which there seems no valid objection.

The objection made here that two distinct and independent causes of action are joined, is not raised by answer or demurrer, as required by the Code, and therefore need not be considered. But there is no gound [ground] for the objection under this section of the Code: "The plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, when they arise out of the same transaction or transactions connected with the same subject of action." This action falls within the provision.

So in regard to parties defendant; the sheriff had executed the lost deed to the plaintiff, and whether his purpose was to set up a copy, or to call for the execution of another deed in place of the lost one, it was equally competent, if not necessary, to join the sheriff as (84) a party defendant.

It was error in his Honor to direct a nonsuit. The judgment is reversed, but the trial for the land will be stayed until the sheriff shall execute another deed for it.

PER CURIAM. Venire de novo.

Cited: Beaman v. Simmons, 76 N.C. 44; Hare v. Jernigan, ib., 474;England v. Garner, 86 N.C. 370; Southerland v. Hunter, 93 N.C. 312; Elyv. Early, 94 N.C. 6; Jennings v. Reeves, 101 N.C. 450; Respass v.Jones, 102 N.C. 12; McMillan v. Baxley, 112 N.C. 588; Outland v.Outland, 113 N.C. 75; Kiger v. Harmon, ib., 408; Teague v. Collins,134 N.C. 64; Brown v. Hutchinson, 155 N.C. 208; Chemical Co. v. Floyd,158 N.C. 462.