Hooker v. . Nichols

The lappage of lots Nos. 37 and 38 in the schedule of William Whitehead is the land in controversy, it being admitted that Whitehead's title was good, who was the judgment debtor. On 1 December, 1890, the sheriff under executions against Whitehead, sold lot No. 37 and the plaintiff purchased, and immediately on the same day he sold lot No. 38 and the defendant purchased. Each purchaser paid the amount of his bid and the sheriff subsequently executed to each a deed for the lot purchased by him. The defendant's deed was registered 13 December, 1890, and plaintiff's deed was registered March, 1891. After the sale and before the defendant paid the sheriff, he, the defendant, was duly notified by plaintiff that lot No. 37, bought by plaintiff, covered lot No. 38, "and that he could not hold." It does not appear that the sheriff or either of the parties to this action had knowledge of the lappage at the sale. Upon these facts found by the court, by consent, his Honor held that plaintiff could not recover and he took a nonsuit and appealed.

So we have a clear-cut case of two innocent purchasers of the same land on the same day, for value, and without any notice, at the sale, of any defect of title or otherwise, with the second purchaser's deed first probated and registered. At common law and until recent legislation, the first purchaser at a sheriff's sale acquired the title, and his deed when registered related to the day of sale, and the priority of liens among the creditors did not affect his title. Woodley v. Gilliam, 67 N.C. 237;Ricks v. Blount, 15 N.C. 128. The proceeds of the sale were applied according to the creditor's right. Coughlan v. White, 66 N.C. 102. At an early day in our State history, registration laws in many (160) respects became necessary, and in Leggett v. Bullock, 44 N.C. 283, will be found a brief recital of all such acts, until recently. Laws 1829, ch. 20, provided that "No mortgage or deed of trust shall be valid at law to pass any property as against creditors and purchasers for valuable consideration but from the registration of such mortgage or deed of trust." The words "at law" in said act do not mean in a court of law only, but in all courts. "At law" is an expression in a statute which does not mean merely a legal tribunal as distinguished from an equitable jurisdiction, but, generally, our system of jurisprudence, whether legal or equitable.

This act of 1829 has been now in force more than sixty years, and has been well understood by lawyers and laymen, and was intended to uproot all secret liens, trusts, unregistered mortgages, etc., and under its force it has been held that no notice, however full and formal, will supply the place of registration. Robinson v. Willoughby, 70 N.C. 358; see Code, sec. 1254, and the numerous cases there cited.

The present case turns on the construction of Laws 1885, ch. 147, which says, after repealing The Code, sec. 1245, that: "No conveyance of land, nor contract to convey, or lease of land for more than three years, shall be valid to pass any property, as against creditors or purchasers for a valuable consideration from the donor, bargainor or lessor, but from the registration thereof within the county where the land lieth," etc. It will be noted that the effective words of this act are identical in substance with section 1254 of The Code, and we are driven to the conclusion that the Legislature, with full knowledge of the meaning and effect of the said act of 1829, intended to apply the same rule to all conveyances of land, as declared in the late Act of 1885, ch. 147, and we must give the same effect to it. (161)

This view has been held and recognized by this Court inMaddox v. Arp, 114 N.C. 585; Quinnerly v. Quinnerly, 114 N.C. 145;Allen v. Bolen, ib., 560; and in Barber v. Wadsworth, 115 N.C. 29. In support of the above conclusions is the rule that when the equities are equal, the legal title controls. His Honor's intimation that the plaintiff could not recover was agreeable to law.

No error.

Cited: Patterson v. Mills, 121 N.C. 267; Collins v. Davis, 132 N.C. 109;Woods v. Tinsley, 138 N.C. 510; Piano Co. v. Spruill, 150 N.C. 169;Sills v. Ford, 171 N.C. 741.