Charles S. Riley & Co. v. Carter , 165 N.C. 334 ( 1914 )

As to assignments of error 1 and 9, the Peregoy Company was a lumber plant operating much machinery, and under article 23 of the deed of trust the plant was required to be maintained and kept in operation. On foreclosure under article 4, a sale being made, all the estate of the company was to vest in the purchaser, "whether said trustee be in possession thereof or not, and whether the same be now owned or shall be hereafter acquired." Article 9 vests in the trustee all the legal and equitable rights to all property then owned by the company, "and all property and rights of any kind whatever acquired or owned during a period of three years" from its date. The deed, therefore, should be construed to convey all the property that was owned then or acquired within three years.

As to the second assignment of error, while certified copies of records are admitted in evidence, the originals are not thereby made incompetent. Iron Co. v. Abernathy, 94 N.C. 545; S. v. Voight, 90 N.C. 741;S. v. Hunter, ib., 829. These papers were not offered in evidence for the purpose of establishing a link in plaintiffs' title, but to show Bryan's authority, as commissioner, to make the deed and the knowledge which he possessed of this conveyance to Stewart when later seeking to acquire for himself this same property.

Assignment 2: The deed from Ricaud, receiver, to Grady, though void and conveying no title, was competent to show the source of defendants' claim of title and to create an estoppel by connecting both parties with a common source. Bond v. Beverly, 152 N.C. 56. A void deed is color of title for the purpose of creating an estoppel. 1 Cyc., 1085; McNeil v.Fuller, 121 N.C. 212; Williams v. Council, 49 N.C. 207; Wilson v. LandCo., 77 N.C. 459; 16 Cyc., 688, sec. 18; Bigelow Estoppel, 356.

Exception 5: The admission of the record and proceedings (337) may not have been necessary, but was harmless. The plaintiffs' claim was to the timber and not to the land.

Exception 6: This is to the refusal of a nonsuit, and cannot be sustained. The plaintiff had introduced evidence to show title from a common source by estoppel. Revisal, 808, provides that when there is "abona fide contention on both sides upon evidence constituting a prima facie title, no order shall be made pending such action permitting either party to cut said timber trees, except by consent, until the title to said land or timber trees shall be finally determined in such action," with a proviso that "the time within which such timber or trees may be cut or removed by the party claiming the same, and all other rights required in connection therewith, shall not be affected or abridged, but the running of the term shall be suspended during the pendency of such action."

In Moore v. Fowle, 139 N.C. 52, it was held that where the court finds that the plaintiffs' claim is bona fide, the injunction should not be dissolved, but continued to the hearing. Here the suit was brought 9 September, 1907, and the deed for the timber right made 16 December, 1895, was for 15 years, and would have expired, therefore, 16 December, 1910. The injunction did not interfere with any vested right, but merely prevented either party from taking any advantage of the other pending the litigation, and the statute extended the time for cutting the timber for the period that the injunction lasted.

The court having held that the decree giving leave to sell the timber was void (Bank v. Peregoy, 147 N.C. 294), the deed made under it was void.

Exception 8: There being no conflict of testimony, and the facts being virtually admitted, the court could direct a verdict or instruct the jury as it did. Purifoy v. R. R., 108 N.C. 100.

Exception 10: The conveyances containing recitals of the decrees were registered. These recitals being in conveyances made by an officer of the court, are prima facie evidence of such decrees, though the decrees themselves were not registered. McKee v. Lineberger, 87 N.C. (338) 181; Iron Co. v. Abernathy, 94 N.C. 545. It is not always necessary to register the decrees. Skinner v. Terry,134 N.C. 306.

The purpose of the act of Congress as to docketing judgment when obtained in the Federal Court, and of our statute, Revisal, 576, is to place such judgments on the same footing as those obtained in the State courts and to make them a lien from the date of docketing. A judgment in the Federal Court on a money demand would not be a lien on real property until docketed in the county where the land is situated. Alsop v. Mosely,104 N.C. 60; Bernhardt v. Brown, 122 N.C. 593. There is, however, a distinction between judgments which create liens and decrees enforcing liens already existing. In this case the lien was not created by the decree, but by the deed of trust, and the judgment merely directed the sale of the property to satisfy the mortgage lien.

No error.

Cited: Blalock v. Whisnant, 213 N.C. 420 (2g); Cox v. Wright,218 N.C. 348 (2g); Dunn v. Tew, 219 N.C. 290 (6g).