King v. . Portis , 77 N.C. 25 ( 1877 )

On 16 April, 1866, one Thomas K. Thomas executed a fee-simple deed to a corporation known as the Portis Gold Mining Company, conveying a tract of land and describing it by metes and bounds, and as situated in the county of Franklin. The defendants loaned to said company a considerable sum, and to secure the payment thereof the company executed a mortgage conveying said land to the defendants. In an action to foreclose this mortgage a commissioner was appointed to sell the land, and on 7 November, 1870, did sell the same, at Louisburg, and L. G. Sturgis, one of the defendants, became the purchaser. The purchase money was paid and a deed made to the purchaser, describing the land as aforesaid. The defendants also claimed title as purchasers at execution sale. At the same term of the court, when the above proceeding was had, the plaintiff obtained judgment against said company, and Thomas K. Thomas, who was director of the company, and its manager. He (26) (Thomas), knowing that a part of said tract was situated in Nash County, and acting for and under the authority of the plaintiff, procured a transcript of the plaintiff's judgment to be docketed in Nash County, without any notice to the defendants. Execution issued thereon, and the sheriff of Nash sold that part of the land lying in his county, and said Thomas became the purchaser, and assigned his bid to the plaintiff, who obtained a deed from the sheriff. By a survey it was found that 775 acres of this tract were in Franklin and 125 acres in Nash. This action was brought to recover the portion lying in Nash, but his Honor being of opinion with the defendants, gave judgment accordingly, and the plaintiff appealed. Both parties claim the land in controversy under the Portis Gold Mining Company, and it is conceded that the plaintiff has a good title unless the defendant acquired title by prior purchases.

The first question is whether a mortgage of one tract of land described by metes and bounds and registered in one county only — both mortgagor and mortgagee believed the whole tract to be situated in such county — is valid against creditors and purchasers, when in fact a part of said tract is situated in an adjoining county, about which the controversy arises. And this question turns upon the construction of our registration act, Bat. Rev., ch. 35.

At common law the most ancient and public mode of conveying land was by feoffment, and this was effectual to pass freehold estates only by livery of seizin. The object of this ceremony was to give notice of the transfer to the neighboring freeholders of the county, and the feoffment and livery of one parcel in the name of all the other parcels in the same county of which the feoffor was possessed were sufficient, because (27) the freeholders who might be summoned on the jury in the event of a dispute about title had the same notice in regard to the several parcels. If, however, the lands be in different counties, it was necessary to make as many liveries as there was counties, for the season that if controversies should arise, there must be as many trials as there were counties, and a jury in one county were no judges of the notoriety of a fact in another. Co. Litt., 50a.

And so it was in the case of a disseizin. If the disseizee should resort to his writ and the lands lie in different counties, there must be several actions, and consequently several entries, which would not be necessary if the several parcels were in the same county. Co. Litt., 252b.

At a later period the enrollment and registration acts were passed as a more convenient method of giving notoriety to transfers of real property. Deeds and mortgages are valid inter partes without registration. But our act, section 12, expressly declares that no mortgage deed shall be valid to pass any property as against creditors or purchasers for a valuable consideration, but from the registration thereof "in the county where the land lieth." It is plain, therefore, that the mortgage was inoperative beyond the limits of the county in which it was registered as against the plaintiff.

The defendant also claims title as purchaser at a sheriff's sale, made in the same county in which the mortgage was registered, under a fi. fa. issued upon a judgment docketed in the same county. We do not see how this gave him title to land in the adjoining county. Under our former system, he could not have obtained title or a lien upon such land without an actual levy, and a docketed judgment "shall be a lien on real property in the county where the same is docketed." C. C. P., sec. 254.

We are, therefore, of opinion that neither the mortgage nor the judgment was of any affect as against the plaintiff beyond the county in which they were recorded, and we do not see how the sheriff of (28) one county can sell land in another except in special cases provided for by statute. The fact that the land in dispute is a part of the same tract as that purchased by the defendant and described by the same instrument by metes and bounds can make no difference. The lien acquired is limited as above stated.

We are unable to enter judgment for the plaintiff in this Court, because we have no description of the land sued for, nor any means of identifying the same, which probably results from the fact that there is no copy of the complaint filed with the record.

PER CURIAM. Reversed.

Cited: Allen v. R. R., 171 N.C. 341.