McNeill v. . Allen , 146 N.C. 283 ( 1907 )

Judgment for plaintiff. Defendants excepted and appealed.

The facts sufficiently appear in the opinion. On 11 January, 1873, Phineas Horton delivered to the father of the defendants a bond to make title, under which he entered into possession, which he and they have held continuously ever since. Phineas Horton died in 1886. A commissioner, appointed by the court, made sale of his hands in 1898. At this sale the plaintiff became purchaser of this tract, and the commissioners executed (284) to him, 26 August, 1898, a deed therefor, which was registered 8 September, 1898. On 18 October, 1899, the bond to make title, executed to defendants' father in 1873, was registered. The defendants' evidence tended to prove that the amount named in the bond for title had been paid in full. This was controverted by the evidence for the plaintiff.

The court charged the jury, if they believed the evidence, to answer the issue "Yes" — that is, that the plaintiff was the owner of the land. The defendants excepted, and this is the only exception relied on.

In giving this charge, the court held that bonds for title were not in the purview of the second proviso of section 1, chapter 147, Laws 1885 (now Revisal, sec. 980). This proviso excludes from the operation of the act any "unregistered deed" executed prior to 1 December, 1885, when the person holding or claiming thereunder shall be in the actual possession and enjoyment of the land at the time of the execution of the second deed. The defendants contended that, while the proviso mentions only "unregistered deed," this refers to and is as broad as the words in the first part of the section, "conveyance, contract to convey, or lease of land," and is broad enough to include any kind of sealed instrument sufficient in form and terms to transfer from one person to another either the legal or equitable title to land.

2 Blackstone Com., 295, defines a deed as "a writing sealed and delivered by the parties." Anderson's Law Dictionary adopts the above definition, and says: "This comprehensive meaning includes any writing under seal, as a bond, lease, mortgage, agreement to convey realty," etc. Coke Litt., 35b, 171b, cited 4 Kent Com., 450, 452, defines a deed as a "writing sealed and delivered by the parties."

The point raised is now presented for the first time. But, considering the evil to be remedied and the evident intent that there (285) should be exempted from the provisions of the new act titles based on instruments executed prior to 1 December, 1885, we think that the words "unregistered deed," in the second proviso to Revisal, sec. 980, are used in their broad generic sense and have reference to and the same scope as the words "conveyance of land, or contract to convey, or lease of land," used in the first part of the section.

The instruction of his Honor was, therefore, erroneous. Revisal, sec. 980, does not apply where the sealed instrument was executed prior to 1 December, 1885. The rights of the parties will be determined by the law as it stood prior to the enactment of chapter 147, Laws 1885. Whether the purchase money secured by the bond for title has been paid, in whole or in part, and if in part, what part, are matters for determination by the jury.

Error.