Woodley v. . Gregory , 205 N.C. 280 ( 1933 )

ClakksoN, J.

Does a prior deed of trust indexed and cross-indexed on tbe direct and reverse indexes of land conveyances in tbe full name of one of tbe grantors therein, with tbe abbreviations as to tbe other grantors "et al./J constitute sufficient notice to a purchaser at a sale under a subsequent deed of trust properly indexed and cross-indexed as to all tbe grantors? We think not, but would be to tbe grantor properly indexed.

On account of tbe importance of tbe controversy, we quote tbe statute, N. 0. Code, 1931 (Micbie), section 3561, in full: “Tbe register of deeds shall provide and keep in his office full and complete alphabetic indexes of the names of tbe parties to all liens, grants, deeds, mortgages, bonds and other instruments of writing required or authorized to be registered; such indexes to be kept in well bound books, and shall state in full tbe names of 'all parties, whether grantors, grantees, vendors, vendees, obligors or obligees, and shall be indexed and cross-indexed, within twenty-four hours after registering any instrument, so as to show tbe name of each party under tbe appropriate letter of tbe alphabet; and wherever tbe 'Family’ index-system shall be in use, to also show tbe name of each party under tbe appropriate family name and tbe initials of said party under tbe appropriate alphabetical arrangement of said index; and all instruments shall be indexed according to tbe particular system in use in tbe respective office in which tbe instrument is filed for record. Reference shall be made, opposite each name to the page, title or number of the book in which is registered any instrument; provided, .that where the ‘Family’ system hereinbefore referred to has not been installed, but there has been installed an indexing system having subdivisions of the several letters of the alphabet, a registered instrument shall be deemed to be properly indexed only when the same shall have been indexed under the correct subdivision of the appropriate letter of the alphabet. Provided further, that no instrument shall be deemed to be properly registered until the same has been properly indexed as herein provided. Provided further, that in all counties where a separate system is kept for chattel mortgages or other instruments concerning personal property, no instrument affecting the title to real estate shall be deemed to be properly registered until the same has been properly registered and indexed in the books and index system kept for real estate conveyances; Provided further, that it shall be the duty of the register of deeds of each county, in which there is a separate index for conveyances of personal property and for those of real estate, to double index every such conveyance, provided that such conveyance shall contain both species of property. A violation of this section shall constitute a misdemeanor.” See chapter 327, Public Laws, 1929, where former sections C. S., 3560 and 35611 are amended.

In Heaton v. Heaton, 196 N. C., 475, it is held: The proper indexing of a mortgage upon lands is an essential part of its registration, and where the husband and wife make a mortgage on her lands which is only indexed by the register of deeds ini the name of the husband, it is not good as against a subsequent purchaser for value by deed from the husband and wife that had been properly indexed and registered. C. S., 3561. Pruitt v. Parker, 201 N. C., 697; Watkins v. Simonds, 202 N. C., 746.

It will be noted that the statute is mandatory "Provided further, that no instrument shall be deemed to be properly registered until the same has been properly indexed as herein provided.” It is also provided that the register of deeds shall in indexing “state in full the names of all parties, whether grantors, grantees, vendors, vendees, obligors or obligees, and shall be indexed and cross-indexed;” etc.

In West v. Jackson, 198 N. C., 693, where the husband and wife mortgaged their lands held by the entireties and the mortgage is indexed and cross-indexed under “J. II. and wife,” the name of the wife not appearing on the index although it appeared on the mortgage deed, this Court held was a sufficient registration.

In Insurance Co. v. Forbes, 203 N. C., 252, 254, the plaintiff contended “That the deed of trust under which it purchased the land, being the second deed of trust upon the land, constitutes a first lien, for that the Forbes deed of trust was not properly cross-indexed; that is to say the cross-indexing ‘Tucker, S. D. et ux. to F. J. Forbes, trustee/ was not a proper indexing of the instrument.” In that case, the Court said: “The merit of the controversy is determined by the principles of law declared in West v. Jackson, 198 N. C., 693, 153 S. E., 257. The Court said: ‘It must be conceded that the indexing and cross-indexing of the deed of trust in the case at bar is not a strict compliance with the statute, and the registers of deeds throughout the State should doubtless set out on the index and cross-index the name of the wife. There are perhaps hundreds of deeds of trust in the State indexed and cross-indexed in the same manner employed in the present case, and we are not inclined to strike down these instruments as a matter of law, particularly when there was sufficient information upon the index and cross-index to create the duty of making inquiry.’ ”

From the clear and mandatory language of the statute, we do not think the principle laid down in the West and Insurance Co. cases, supra, should be extended further as in this case to the index that only showed et cits.” The learned and careful judge in the court below relied on the West case, supra, which does not go as far as the case at bar, but we construe and not make the law. We are bound by the statute as written. For the reasons given, the judgment of the court below is

Eeversed.