Opinion
June Term, 1853.
As between the parties, a mortgage is valid without registration.
THIS was an action of ejectment, upon several demises of Benjamin Leggett and Lembury James, tried before his Honor, Judge Bailey, at MARTIN, on the last Spring Circuit.
Biggs for lessor of plaintiff.
No counsel for defendant in this Court.
It was admitted that, on 30 April, 1849, the premises in the declaration mentioned, belonged to one William Bullock; and it was in evidence that on that day, he was indebted to Gambril and Williams to the amount of fifty-six dollars, and Lembury James became his surety for the debt; and to secure the payment thereof, took from him a deed of mortgage of the said premises. The said deed was not registered; and it was in evidence that it was lost; but the plaintiff produced and read a deed, duly proved and registered, which the subscribing witness (to both deeds) stated was substantially a copy of the deed delivered 30 April, 1849. The latter deed was executed and delivered 17 February, 1852, and was given in the stead and place of the former lost one.
The plaintiff then read a deed from William Bullock and (284) Lembury James to Benjamin Leggett, dated and delivered 10 May, 1850. It was further in evidence that the defendant went into possession of the premises prior to 30 April, 1849, as the tenant at will of William Bullock, his son; that on 8 January, 1850, William Bullock executed and delivered to the defendant a deed of gift for the said premises, and in pursuance of an agreement, made 10 May, 1849, the defendant claimed adversely under said deed. After 10 May, 1850, and before the bringing of this action, the lessor of the plaintiff, Leggett, demanded from the defendant the possession of the premises, which was refused. The date of the demise in the declaration is 21 September, 1851. Upon this state of facts, his Honor, the presiding judge, was of opinion that the plaintiff could not recover, and in submission thereto, the plaintiff submitted to a nonsuit, and from the judgment rendered accordingly, appealed to the Supreme Court.
In 1849, William Bullock executed a mortgage to James, one of the lessors, for the land in controversy. This deed was never registered, and is lost. In 1850, Bullock executed a deed for the same land to the defendant, his father, without valuable consideration, which deed was duly registered. The plaintiff read in evidence a deed executed by William Bullock to the lessor, James, in 1852, which purports to be a substitute for the mortgage of 1849, and the subscribing witness swore that it was substantially a copy.
His Honor was of opinion that the plaintiff could not recover, we suppose, on the ground that the mortgage was inoperative for want of registration; and for that reason secondary evidence of its contents was not admissible, and could not, if admissible, have the effect of showing title in the lessor.
The defendant being a volunteer, stands in the place of his donor; so the only question is, does the law require a mortgage to be registered as between the parties? This depends upon the construction of the 1st, 23d, and 24th sections of 37th chapter, Revised Statutes. (285)
The act of 1715, chapter 7, section 1, provides: "No conveyance or bill of sale for land (other than mortgages) shall be" valid, unless proven and registered in twelve months after date. Section 7 provides: "Every mortgage of lands which shall be first registered, shall be deemed the first mortgage, and shall be valid, notwithstanding any former mortgage, unless such prior mortgage shall be registered within fifty days after date."
The act of 1820 provides: "No mortgage or deed of trust for any estate, whether real or personal, shall be good and available in law against creditors and purchasers for valuable consideration, unless the same shall have been proved and registered in the manner prescribed by law in the case of deeds (other than mortgages) within six months after its execution. But all mortgages, not so proved and registered within the time aforesaid, shall be taken, as against such creditors and purchasers, as utterly null and void."
The act of 1829 provides: "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."
Many statutes have been passed, giving further time for registering grants, deeds, etc.; but all have an express exception in reference to mortgages and deeds of trust.
The Revised Statutes, chapter 37, by the 1st section, reenacts the 1st section of the act of 1715; by the 23d section, the act of 1820; and by the 24th section, the act of 1829 — the 7th section of the act of 1715 being superseded by those two last sections in regard to mortgages.
What is there in this statute that makes it necessary to register a mortgage or deed of trust, as between the parties? The 1st section expressly excludes them from its operation; and the 23d and 24th expressly require registration only as against creditors and purchasers.
That registration of mortgages and deeds of trust was not required, as between the parties by the act of 1715, is settled. Pike v. Armstead, 16 N.C. 110. Taylor, J., says: "The first question arises on (286) the act of 1715 relative to mortgages. A mortgage is valid between the parties, although no registration be had, as well from the words of the act, as the uniform construction of it." This construction is certainly not changed by the acts of 1820 and 1829, the operation of which, as has been seen, is restricted to creditors and purchasers.
Again: If, as between the parties, a mortgage must be registered, within what time? The only time with reference to mortgages and deeds of trust is six months from the execution. If this time is fixed on as between the parties, inasmuch as the several statutes extending the time for the registration of deeds exclude mortgages, the consequence is, that as between the parties, mortgages and deeds of trust must be registered in the very same time, as is required as against creditors and purchasers. This would be a strange result, considering the extreme pains taken in the 23d section to confine the effect of a want of registration to creditors and purchasers, by first providing that no mortgage, unless registered, shall be good as to them, and repeating "all mortgages, not so registered, shall be utterly null and void as to creditors and purchasers."
It was supposed by the makers of the act of 1715, that the provision of the 7th section, by which prior mortgages, unless registered in fifty days, are postponed to subsequent mortgages first registered, would cause all mortgagees to use due diligence. But after it was decided that equity would prevent a mortgagee who had registered, from taking advantage of that fact against a prior mortgagee who had not registered, upon proof of notice, this section was found not to answer the purpose. As a remedy, the act of 1820 was passed. That changes the time from fifty days to six months, and provides, that a mortgage, not registered within time, shall not be good and available, but shall be null and void as against creditors and purchasers. It was found that mortgagees still would not register at once, but would hold back until nearly the end of the six months, in order to favor the debtor. As a remedy, the act of 1829 was passed, which provides that no mortgage shall be valid, as against creditors and purchasers, but from the time of registration. The result of this is, that no mortgage has any effect, even if registered in six months, except from the time of registration. This produced the requisite degree of diligence, and makes any provision requiring the registration of mortgages, as between the parties, a matter (287) of supererogation; for the mortgagee is now sure to have it registered in due time. This is proven by the fact that while there have been many cases before this Court to decide which mortgage was registered first, the present is the only case in which it has become necessary to decide what is the effect of the mortgage not being registered at all, as between the parties; and even this case is the result of accident, the loss of the deed.
PER CURIAM. Nonsuit set aside, and venire de novo awarded.
Cited: Robinson v. Willoughby. 70 N.C. 364; Moore v. Ragland, 74 N.C. 347; Blevins v. Barker, 75 N.C. 438; Todd v. Outlaw. 79 N.C. 238; Parker v. Banks, ibid., 483; Brem v. Lockhart, 93 N.C. 191; Ijames v. Gaither, ibid., 358; Williams v. Jones, 95 N.C. 506; Quinnerly v. Quinnerly, 114 N.C. 148; Hooker v. Nichols, 116 N.C. 160; Bostic v. Young, ibid., 770; Barrett v. Barrett, 120 N.C. 130; Piano Co. v. Spruill, 150 N.C. 169; McBrayer v. Harrill, 152 N.C. 713; Weathersbee v. Goodwin, 175 N.C. 238; Motor Co. v. Jackson, 184 N.C. 331; Boyd v. Typewriter Co., 190 N.C. 799; Whitehurst v. Garrett, 196 N.C. 157.