Clark v. Butts

83 S.E.2d 885 (1954)

240 N.C. 709

Annie CLARK v. Johnnie BUTTS and Mary Trafton Butts.

No. 19.

Supreme Court of North Carolina.

October 13, 1954.

*888 M. B. Simpson, Jr., Elizabeth City, for plaintiff-appellee.

J. W. Jennette, Elizabeth City, for defendants-appellants.

WINBORNE, Justice.

The assignments of error, determinative of this appeal, as brought forward and discussed together in brief of attorney for defendants appellants, are based upon exceptions Numbers 1 and 2 to denial of their motions for judgment as of nonsuit aptly made, and upon exception Number 6 to the refusal of the court to give peremptory instruction for negative answer to third issue.

In this connection, taking the evidence offered upon trial in Superior Court in the light most favorable to plaintiff, and giving to her the benefit of every reasonable *889 intendment thereon, and every reasonable inference to be drawn therefrom, there appears to be sufficient evidence, in the light of applicable principles of law, to support the verdict of the jury upon each and all of the issues submitted, and decisions of this Court support the judgment on the verdict.

The principle of law enunciated in East v. Dolihite, 72 N.C. 562, by Rodman, J., that "No doubt a person may make a binding contract to devise his lands in a particular way, and a court of equity in a proper case will enforce in effect a specific performance of the contract" has been repeated and applied by this Court in numerous cases. See Price v. Price, 133 N.C. 494, 45 S.E. 855; Stockard v. Warren, 175 N.C. 283, 95 S.E. 579; Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331; Chambers v. Byers, 214 N.C. 373, 199 S.E. 398; Bohannon v. Trotman, 214 N.C. 706, 200 S.E. 852.

In Stockard v. Warren, supra [175 N.C. 283, 95 S.E. 580], Clark, C. J., writing for the Court reiterates the above quotation from the East case and continues with this quoted language: "`It is settled by a line of authorities which are practically uniform that while a court of chancery is without power to compel the execution of a will, and therefore the specific execution of an agreement to make a will cannot be enforced, yet if the contract is sufficiently proved and appears to have been binding on the decedent, and the usual conditions relating to specific performance have been complied with, then equity will specifically enforce it, by seizing the property which is the subject-matter of the agreement and fastening a trust on it in favor of the person to whom the decedent agreed to give it by his will.' Naylor v. Shelton, 102 Ark. 30, 143 S.W. 117, Ann.Cas.1914A, 394."

And in Chambers v. Byers, supra [214 N.C. 373, 199 S.E. 401], in opinion by Clarkson, J., it is declared: "Persons sui juris have a right to contract if it is not contrary to law or public policy." There as here the agreement was in writing and did not come within the ban of the statute of frauds. C.S. § 988, now G.S. § 22-2.

Indeed, the contract here involved is "in writing and signed by the party to be charged therewith", and it is proven, probated and registered, all in conformity with statutory requirements. G.S. §§ 47-1, 47-12, 47-17, 47-18 and 47-37. And a contract to convey land for more than three years, so proven, probated and registered, is valid to pass the land, as against creditors or purchasers for a valuable consideration, from the donor, bargainor, or lessor, from the registration thereof within the county where the land lies. G.S. § 47-18. The object of such registration is to give notice to creditors and purchasers for value, or others whose rights might otherwise be seriously and unjustly impaired by the deed. See Massachusetts Bonding & Ins. Co. v. Knox, 220 N.C. 725, 18 S.E.2d 436, 138 A.L.R. 1438.

Under this Section G.S. 47-18, a grantee in a deed acquires title to the land there conveyed as against subsequent purchasers for value from the date of the registration of the instrument. Sills v. Ford, 171 N.C. 733, 88 S.E. 636. And among two or more contracts to sell land, the first one registered will confer the superior right.

The contract in the case in hand was registered nearly three years before the deed from Askew to defendants was executed. The registration of it was constructive notice to them. And admittedly they had actual notice of it. So whatever rights they acquired by the deed from Askew to them were subservient to the rights of the plaintiff under her prior registered contract, which was binding on Askew. Therefore Askew could convey to defendants no greater right than he had.

Defendants contend, however, that if Askew breached the contract with plaintiff he did so at the time he made the deed to them, and that she has delayed too long in bringing this action. The position, in any event, is not tenable. Askew agreed to leave the land to her "should she be the *890 longest liver". Therefore her right of action did not accrue until the date of his death. And she brought suit within six months thereafter.

Defendants, as disclosed by the record on this appeal, make other assignments of error but these are not brought up and discussed in their brief. Hence they are deemed to be abandoned. Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 544, at pages 562-563.

For reasons stated, in the judgment below we find

No error.