Hayes v. Ricard

97 S.E.2d 105 (1957)

245 N.C. 687

Virginia Lamm HAYES and husband, J. F. Hayes, Bessie H. Lamm, Zelma Lamm Poythress and husband, T. M. Poythress, and Temple Ann Hayes, an Infant appearing herein by her Next Friend, J. W. Harrison, v. Eunice Williamson Decker RICARD and Free Will Baptist Orphanage, Incorporated.

No. 237.

Supreme Court of North Carolina.

March 27, 1957.

*107 Lamb, Lamb & Daughtridge, by Vernon F. Daughtridge, Jr., Wilson, Cooley & May, by Hubert E. May, Nashville, for plaintiffs, appellants.

Gardner, Connor & Lee, by Cyrus F. Lee, Wilson, for defendant Eunice Williamson Decker Ricard, appellee.

HIGGINS, Justice.

The record in this case presents for decision the question whether the evidence is sufficient to entitle the plaintiffs to go to the jury on the issues of (1) their ownership, (2) their right to possession of the lands described in Exhibit "A" attached to the complaint.

As in all actions in the nature of ejectment, the plaintiffs, in order to prevail, must show ownership and right to possession. *108 If, in addition, they seek to recover a monetary judgment, they must show wrongful possession and the amount of damages resulting therefrom. The law recognizes a number of ways in which a plaintiff may show title. Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142; Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673; Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759; Norman v. Williams, 241 N.C. 732, 86 S.E.2d 593.

In this case the plaintiffs sought to establish their better title from R. A. Stampera common source. They introduced a deed by which R. A. Stamper and wife, for $10 and other valuable consideration purported to convey a fee simple estate to Grover T. Lamm. This deed bears date April 30, 1945. It was filed for registration at 3:00 p. m. December 23, 1952. The plaintiffs also introduced for the purpose of attack Stamper and wife's quitclaim deed, stipulated to be an instrument of conveyance, dated September 7, 1946, for One Dollar and other valuable consideration. This deed was filed for registration at 10:15 a. m. December 23, 1952.

After introducing the Ricard deed "for the purpose of attack" the plaintiffs offer nothing by way of attack. They contend the deed on its face, regardless of the time of registration, is insufficient to defeat the plaintiffs' title.

Thus squarely presented, is the question whether the prior dated but subsequently recorded fee simple deed takes precedence over the subsequently dated but prior recorded "conveyance" to the defendant Ricard. If it does, the court committed error and the case should go back for a jury trial. If it does not, the plaintiffs prove themselves out of court by showing a superior title in the defendant Ricard from the common source, and the judgment should be affirmed.

The plaintiffs contend that the defendant Ricard received a quitclaim deed which is in itself notice that it may not convey anything. Nevertheless, the deed, by its terms, is for a valuable consideration, and no evidence has been introduced to the contrary. By its terms Stamper and wife "have bargained and sold and do hereby bargain, sell, quitclaim and convey * * all right, title and interest" to the described lands. It must be admitted that she took what right, title, and interest Stamper and wife had power to convey at the time of the execution and delivery of the conveyance. "The title to realty may be as effectually transferred by quitclaim deed as by any other form of conveyance and such a deed will convey whatever title or interest the grantor may have at the time it is given." 26 C.J.S., Deeds, § 118, p. 946, citing cases from 31 states under footnotes 97 and 98. A release to any right, title, and interest she may have "is not only sufficient to release her indebtedness against the land described * * * but also to convey all right, title and interest she had in the premises." Peel v. Calais, 224 N.C. 421, 31 S.E.2d 440, 444.

The plaintiffs further contend that the defendant who claims under a conveyance of later execution but of prior registration "has a burden of proving she is a bona fide purchaser for value and, therefore, entitled to the protection of the registration laws." However, the plainiffs introduced the deed from the Stampers to Ricard, showing its prior registration. In so doing they do not leave to the defendant Ricard the burden of showing she has the superior title from Stamper which she acquired for value, but they carry the burden for her by introducing her deed which shows on its face that it was executed for value and that it was of prior registration. Introduced for the purpose of attack, it remains as evidence in the case, put there by the plaintiffs and unimpeached by them. True, the plaintiffs alleged the quitclaim deed was without consideration and was never delivered. On all matters relating to invalidity the plaintiffs rest on allegation without proof. The deed shows consideration. The registration *109 raises the presumption both of execution and delivery. Merchants & Farmers Bank of Landis v. Sherrill, 231 N.C. 731, 58 S.E.2d 741.

The plaintiffs have proceeded on the assumption that the quitclaim deed conveyed nothing because the grantor had nothing left after having executed the warranty deed to Lamm. The assumption overlooks the registration statutes. Without doubt a second warranty deed first registered takes precedence over a prior executed but subsequently registered warranty deed. The form of the second conveyance has no bearing on what the grantor has left to convey. In Glass v. Lynchburg Shoe Co., 212 N.C. 70, 192 S.E. 899, 901, this Court said: "We therefore hold that, where one makes a deed for a valuable consideration, and the grantee fails to register it, * * * such deed does not * * * bar the entry of a grantee in a subsequent deed for valuable consideration who has duly registered his deed." G.S. § 47-18 provides: "No conveyance of land * * * shall be valid to pass any property, as against creditors or purchasers for a valuable consideration * * * but from the registration thereof within the county where the land lies." The purpose of the statute is to point out to prospective purchasers the one place where they must go to find the condition of land titlesthe public registry. "Notice, however full and formal, cannot take the place of registered documents." Hege v. Sellers, 241 N.C. 240, 84 S.E.2d 892, 898; Eller v. Arnold, 230 N.C. 418, 53 S.E.2d 266; Winston v. Williams & McKeithan Lumber Co., 227 N.C. 339, 42 S.E.2d 218; Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197; Hinton v. Williams, 170 N.C. 115, 86 S.E. 994; Austin v. Staten, 126 N.C. 783, 36 S.E. 338. "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." Clark v. Butts, 240 N.C. 709, 83 S.E.2d 885, 889.

The defendant Ricard's deed, though styled a quitclaim deed, goes somewhat beyond the original purpose and concept of such a deed. Originally the purpose, as the name implies, was to release or abandon a previously asserted claim to some interest in land. The operative words were usually to release, remise and quitclaim. The defendant Ricard's deed recites that Stamper and wife "have bargained and sold, and do hereby bargain and sell, quitclaim and convey * * * all right, title and interest in the lands involved, * * * to have and to hold all of the right, title and interest * * * unto Eunice Williamson Decker (now Ricard), her heirs and assigns in fee simple forever." While the deed purports to convey only such right, title, and interest as the Stampers had, the public registry, upon which the grantee had a right to rely, showed the Stampers had a fee simple title. "Where A conveys * * * to B and later conveys to C, with C recording first, our court has uniformly held that C has the better title, saying, `* * * one first registered will confer the superior right.' * * * Thus under the recordation acts the grantor retains a power to defeat his earlier conveyance, if not recorded, by a subsequent conveyance to a second grantee. This encourages a prompt recordation. In North Carolina, even though C has actual notice of the prior conveyance he will prevail." N.C. Law Review, Vol. 27, p. 377; Combes v. Adams, 150 N.C. 64, 63 S.E. 186; Eaton v. Doub, 190 N.C. 14, 128 S.E. 494, 40 A. L.R. 273; Patterson v. Bryant, 216 N.C. 550, 5 S.E.2d 849. Until the contract or conveyance is recorded, third parties may deal with the property as if no contract or conveyance existed. Grimes v. Guion, 220 N.C. 676, 18 S.E.2d 170; Case v. Arnold, 215 N.C. 593, 2 S.E.2d 694; Smith *110 v. Turnage-Winslow Co., 212 N.C. 310, 193 S.E. 685.

In an action for the recovery of real property the plaintiffs must make out a prima facie title; otherwise nonsuit is proper. Allgood v. Wilmington Savings & Trust Co., 242 N.C. 506, 88 S.E.2d 825; Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E.2d 909; Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248; McDonald v. McGrummen, 235 N.C. 550, 70 S.E.2d 703.

The plaintiffs failed to make out a case in that they failed to show a superior title from R. A. Stamper. The judgment of nonsuit was properly entered, and the judgment of the Superior Court of Wilson County is

Affirmed.