Cowen v. . Withrow ( 1895 )

We are now considering this case for the fifth time, and propose to treat it on a different line from that heretofore pursued, with the hope it may not return to trouble us again.

This is an action of ejectment in which plaintiff alleges title in himself, and this is denied by defendants. This allegation of plaintiff and denial of defendants makes an issue of title, and plaintiff must recover, if he recovers at all, upon the strength of his title and not on the weakness of defendants' title. It is not necessary that defendants should do anything until plaintiff has shown that he is the owner of the land. If he fails to do this he must fail to recover.

But this is not the case with defendants. They need not show any title in them to defeat plaintiff's recovery. It is sufficient for them to show that plaintiff has no title to the land in controversy.

Plaintiff, recognizing the fact that the burden was on him, undertook to show that he was the owner; and to do this, introduced in evidence a deed from the sheriff of Rutherford County, dated 3 December, 1888, for the lands in dispute, showing that they were sold as the lands of T. J. Withrow. He then placed in evidence three executions against T. J. Withrow based upon docketed judgments in Rutherford County. One of these judgments was docketed 10 September, 1885, and the other two after that time. Possession of defendants being admitted, plaintiff closed his case and defendants undertook their (773) defence.

The defendant P. J. Withrow offered in evidence a deed from T. J. Withrow to her for the lands in controversy, dated 5 August, 1882, and registered 26 November, 1889. This deed was objected to by plaintiff, objection sustained by the court, deed ruled out and defendants excepted.

The defendant P. J. Withrow then introduced as a witness her husband T. J. Withrow, and offered to prove by him that before the plaintiff bought the land in controversy, he, witness, told the plaintiff that the land was not his, that he had sold it to P. J. Withrow, that she had paid him for it and he had made her a deed to the same. She also proposed to prove by this witness that on the day of sale he gave public notice of the fact that he had sold the land to P. J. Withrow, that she had paid him for the same and that he had made her a deed therefor. And that he informed J. C. Erwin, the agent of the plaintiff, who bid off the land for the plaintiff, before he bid off said land, of the facts above stated. But all this evidence was objected to by plaintiff and excluded by the court, and the defendants excepted.

Was there error in the court excluding this evidence? If there was, the defendants are entitled to a new trial. If there was not, the judgment should be affirmed.

The case on appeal does not state the grounds upon which the court held that the deed of T. J. Withrow to the defendant P. J. Withrow was incompetent. It was registered, and there is no objection made to the sufficiency of the probate or to the form of the certificate.

It was for the very land then in controversy, and why it was not competent evidence we are unable to see. As to what effect (774) it should have upon the issues then before the court, and being tried, was a different thing, and one proper for the instructions or rulings of the court, according to its understanding of the law. We can conceive of no reason for excluding this deed, unless we hold that a deed executed in 1882 could not be probated and registered in 1889. Indeed this was the ground upon which plaintiff's counsel undertook to sustain the ruling of the court, in rejecting this evidence, in his argument before us, — that it was executed before December, 1885, and was not registered before December, 1885, and could not be registered after that time.

This Court is not prepared to give its sanction to this proposition. We can see no law to sustain such proposition, and we are glad we do not, as such a ruling at this time would unsettle the title to thousands of tracts of land in North Carolina that are considered settled. Then was there error in ruling out the testimony of T. J. Withrow? We have stated that plaintiff must recover, if he recover at all, upon the strength of his own title, and not for the want of a title in defendants. And this evidence, as we understand, was offered by defendants for the purpose of showing that plaintiff's deed was invalid. And if it would do this, or tend to do so, then it was competent and should have been received, and it was error to exclude it. We might stop here.

But the law as contained in chapter 147, Laws 1885, p. 233, is that after 1 December, 1885, where a party purchases land, with the knowledge that another has purchased the same land and has a deed therefor dated prior to 1 December, 1885, which has not been registered, the second purchaser shall acquire no title as against the prior unregistered deed. Then if this be the law, and the evidence of T. J. Withrow would have proved or tended to prove that plaintiff had knowledge (775) of the prior unregistered deed of the defendants, the evidence was competent and should have been admitted. Indeed, it was not only competent, but bore directly upon the main issue in the case.

The defendant's deed being put in evidence, it seems to us there was but one issue left for the jury, and that was whether the plaintiff bought with knowledge of the defendant's deed, made in 1882.

This Court decided, when this case was here before, that notice to the agent Erwin was notice to the plaintiff. Cowen v. Withrow, 111 N.C. 306, but defendants here proposed to prove actual personal notice. It was also contended by plaintiff that the Act of 1885 did not apply to plaintiff. That as he purchased at a sheriff's sale, he was not such after-purchaser as was prevented from purchasing with knowledge of a former deed. But this Court has held otherwise, and we have no disposition to overrule that opinion, Cowen v. Withrow, 114 N.C. 558.

But it is contended by plaintiff that the judgment creditors of T. J. Withrow acquired liens on this land, attaching at the date of docketing their judgments, and that plaintiff by becoming the purchaser at execution sale stands in the shoes of, and has the benefit of said liens. We admit this proposition of law. But plaintiff got no more than T. J. Withrow had (granting that his deed is valid to pass title, and this is only admitted for this argument) and this was but the naked legal title, the equitable estate being in P. J. Withrow. And when her deed was registered in 1889 it became a perfect legal and equitable title, and related back to the date of her deed (Phifer v. Barnhart, 88 N.C. 333) and wiped out all estate that T. J. Withrow had in said land, and also the interest plaintiff had acquired under his deed.

And while we understand it to be admitted that this would ordinarily be the case, yet it is claimed that this case is an exception to this general rule. It is contended that when the judgment of (776) the S. v. Withrow was docketed in 1885, the defendant, P. J. Withrow, could not have registered her deed. And this being so, the judgment liens attached and thereby took a priority. And this brings us to a consideration of Laws 1885, ch. 147. This act was ratified on 27 February, 1885, and provides in the fifth paragraph that it shall be in force from and after 1 December, 1885. And it is further contended that section 1245 of The Code expired by limitation, upon the adjournment of the Legislature in 1885, and that there was no law authorizing the registration of any deed, or other paper required to be registered, from the adjournment of the Legislature of 1885 until January, 1886, and that deeds dated prior to December, 1885, cannot be registered. This is an important question, not to say a startling one to us, and if true will probably unsettle the title to ten thousand tracts of land in North Carolina. It would be most remarkable, if this is true, that we have lived for ten years without discovering so important a matter as this.

We are not prepared to yield our assent to this proposition. The Act of 1885 certainly contemplated that the registration of deeds should go on. In the first section it provides that the provisions of this act shall not apply to deeds, etc., until 1 January, 1886. Why and what reason was there for postponing the application of this act, which was to place deeds on the same footing as mortgages and to make them invalid against an after-purchaser, who gets his deed registered first, if the owner of the deed had no right to have his "prior deeds" registered? Would it not be adding insult to injury to notify the citizen that we will not apply the mortgage law to you until 1 (777) January, 1886, but in the meantime we will not let you register your deeds and perfect your titles?

But again. The second proviso of the same section (Laws 1885) provides that if any person shall purchase any land from any prior donor or lessor, it "shall avail or pass no title as against any unregistered deed executed prior to 1 December, 1885, when the person or persons, claiming under such unregistered deed, shall be in the actual possession and enjoyment of such land, either in person or by his or their tenants, at the time of the execution of such prior deed, or when the person or persons, claiming under or taking such second deed, had at the time of taking or purchasing under such deed actual or constructive notice of such unregistered deed or the claim of the person or persons holding or claiming thereunder."

Can it be possible that the Legislature would have made such a provision as this, without intending to provide a means by which such prior deeds might be registered? Or did the Legislature intend to say to the holder of such deed that you cannot register it, but you had better be on the lookout, or some fellow will get your land? But again, the second section of this act provides that persons holding unregistered deeds, executed prior to the first of January, 1856, may have them recorded without proving their execution, but "upon the affidavit of the holder, and that such deeds and affidavits shall be entitled the registration in the same manner and with the same effect as if proved in the manner prescribed by law for other deeds." Why should the Legislature say this if there was no means by which they could be registered? And the Legislature is so anxious that everybody should have his deeds registered before the mortgage law applied that the fourth section reduces the fees of the clerks and registers on such deeds. And the fifth section provides that the Secretary of State shall cause this act to be published in at least three newspapers in each judicial district (778) and shall send copies thereof to the clerks and registers to be posted in their offices. And the registers of each county shall cause the same to be posted in as many as four public places in each township in his county, for at least sixty days before this Act of 1885 goes into effect. Then why do all this, if no one could have any deed or contract registered?

We know as a matter of fact there never was such a harvest for clerks and registers. Almost everybody was rushing forward to get his deeds registered before the new act took effect. And we have no doubt that more deeds were registered in the year 1885 than had been registered in any other ten years in the history of the State.

It must be manifest that the Act of February, 1885, regarded section 1245 of The Code as continuing in force and effect until repealed by that act. The first sentence in the Act of February, 1885, is to repeal section 1245 of The Code. This act is to go into effect on 1 January, 1886. Why then should the Act of February, 1885, which does not go into effect until January, 1886, by express terms, repeal section 1245, if this section had expired at the adjournment of the Legislature, in March, 1885, as contended by the plaintiff? We are not willing to cast that imputation upon the Legislature, and upon the learned gentleman said to be the author of the Act of 1885, as it would do to say that this act was passed in express terms, for the purpose of repealing an act that would expire and be lifeless with the adjournment of the Legislature, and make the act repealing it take effect eight or nine months after the act they were repealing was dead.

Our opinion is that by clear implication the Act of February, 1885, continued in force section 1245 of The Code, until it went into effect on 1 January, 1886, and that there has been no time since 5 August, 1882, when defendant might not have registered her deed. There is error and the defendant is entitled to a new trial.

New Trial. (779)