Cuthrell v. Camden County

Annotate this Case

118 S.E.2d 601 (1961)

254 N.C. 181

B. C. CUTHRELL and J. W. Jennette, Trustee, v. CAMDEN COUNTY.

No. 20.

Supreme Court of North Carolina.

March 1, 1961.

*602 J. W. Jennette and LeRoy, Goodwin & Wells, Elizabeth City, for plaintiffs.

E. Ray Etheridge, Elizabeth City, for defendant.

MOORE, Justice.

Both the deed of trust and the old age assistance lien are by law required to be recorded. G.S. § 161-22; G.S. § 108-30.1. It is conceded by all parties that "priority" in this case means priority of recordation. "* * * (N)o instrument shall be deemed to be properly registered until the same has been properly indexed * * *." G.S. § 161-22. Indexing of deeds is an essential part of registration, and the indexing of judgments is an essential part of docketing. Johnson Cotton Co. v. Hobgood, 243 N.C. 227, 90 S.E.2d 541; Story v. Slade, 199 N.C. 596, 155 S.E. 256; Fowle & Son v. Ham, 176 N.C. 12, 96 S.E. 639; Eley v. Norman, 175 N.C. 294, 95 S.E. 543.

The deed of trust held by plaintiffs was not properly indexed, and therefore not properly recorded, until 5 January 1960. Mollie Cuthrell was the owner of the land and executed the deed of trust, but it was not indexed in her name. Her children, though they had no title to the land, also signed the deed of trust. One of the grantors therein was R. G. Cuthrell. It is assumed that he was one of the children. The grantors were listed in the "grantor" side of the general index to deeds as "R. G. Cuthrell et al." In a case in which there were several grantors in a deed of trust, it was held that the indexing and cross-indexing of the instrument in the full name of one of the grantors, the other grantors being referred to solely by the expression "et al.," was sufficient notice only as to the grantor fully named in the index. Woodley v. Gregory, 205 N.C. 280, 171 S.E. 65. We think this holding correct where the sole owner of the property, as in the instant case, is not named in the index, but is one of those referred to by the abbreviation "et al." The deed of trust was properly recorded on 5 January 1960 when the proper indexing was supplied.

The old age assistance lien was filed and transcribed in the lien book on 12 January *603 1952. The original indexing has not been changed. The decisive question on this appeal is whether or not the indexing of the lien was legally sufficient to give notice to subsequent purchasers and lienholders and establish priority over subsequently recorded conveyances and liens.

The legislative authority for the establishment of old age assistance liens is contained in G.S. § 108-30.1. With reference to recording and indexing, this section provides that "The statement (lien) shall be filed in the regular lien docket and shall be cross-indexed, showing the name of the county filing said statement as claimant and the name of the recipient as owner." This provision was rewritten by S.L.1953, c. 260, as follows: "The statement shall be filed in the regular lien docket, showing the name of the county filing said statement as claimant, or lienor, and the name of the recipient as owner, or lienee, and same shall be indexed in the name of the lienee in the defendants', or reverse alphabetical, side of the cross-index to civil judgments; in said index the county shall appear as plaintiff, or lienor; no cross-index in the name of the county, or lienor, shall be required." These recording and indexing requirements are less specific than those relating to deeds and judgments. They should be construed in pari materia with the recording and indexing provisions of G.S. § 161-22 and G.S. § 2-42. It is necessarily inferred that old age assistance liens should be indexed in the names of the lienees alphabetically and the indexing should refer to books and pages.

The Cuthrell lien was transcribed in Lien Book 1, at page 117, and bears certificate number 120. "* * * (I)n the index to judgments and liens * * * on the defendant's side, Mollie Cuthrell's name appears showing a lien filed against her in Lien Book 1, at page 120." The only error in indexing is the page reference. The index correctly refers to Lien Book 1, but erroneously refers to page 120. The lien record is on page 117.

In order for a recordation to be effective as notice there must be a substantial compliance with the indexing statutes. The general rule to be applied in determining the sufficiency of an irregular indexing has been stated by this Court in these terms: "* * * (T)he primary purpose of the law requiring the registration and indexing of conveyances is to give notice, and it has been repeatedly stated by those writing on this subject that an index will hold a subsequent purchaser or encumbrancer to notice if enough is disclosed by the index to put a careful and prudent examiner upon inquiry, and if upon such inquiry the instrument would be found. * * * The cardinal purpose of the registration and indexing laws is to provide records that shall of themselves be sufficient, under careful and proper inquiry, to disclose the true state of the title to real estate." Dorman v. Goodman, 213 N.C. 406, 412, 196 S.E. 352, 355.

In the following circumstances the indexing was held insufficient for notice and not in substantial compliance with statutory requirements: J. Frank Crowell was grantor in a deed; it was indexed "J. L. Crowell"there was a J. L. Crowell and his name appeared in the grantor index more than a hundred times. Dorman v. Goodman, supra. Wife owned land; she and her husband executed a mortgage; it was indexed and cross-indexed only in the name of the husband. Heaton v. Heaton, 196 N.C. 475, 146 S.E. 146. An instrument creating a lien on real estate was indexed and crossindexed only in the chattel mortgage index. Merchants' & Farmers' Bank v. Harrington, 193 N.C. 625, 137 S.E. 712 (Court equally dividedno precedent). Judgment in favor of J. A. Currie cross-indexed in the name of J. A. Quick. Jones (Page Trust Co.) v. Currie, 190 N.C. 260, 129 S.E. 605. Public officer gave mortgage in lieu of official bond; it was indexed only in the Bond Book. Hooper v. Tallassee Power Co., 180 N.C. 651, 105 S.E. 327.

In the following instances indexing was declared sufficient: Corporate trustee executed a deed; it was indexed in the name *604 of the corporation, but the index did not indicate the capacity of the corporation as trustee. Tocci v. Nowfall, 220 N.C. 550, 18 S.E.2d 225. Wife owned land; she and husband executed a deed of trust; it was indexed in the name of the husband "et ux." Prudential Insurance Co. of America v. Forbes, 203 N.C. 252, 165 S.E. 699. Jesse Hinton and wife owned land by the entirety and executed a deed of trust which was indexed "Jesse Hinton and wife." West v. Jackson, 198 N.C. 693, 153 S.E. 257. Index book had alphabetical subdivision of each letter; a deed of trust executed by one Harrison was indexed in the subdivision "`Haa' to `Hap'" instead of the subdivision "`Har' to `Haz'." Clement v. Harrison, 193 N.C. 825, 138 S.E. 308, 309.

Johnson Cotton Co. v. Hobgood, supra, is an indexing case involving an incorrect reference to book and page. A chattel mortgage and crop lien was filed in the office of the Register of Deeds of Moore County on 23 May 1952 and transcribed in Chattel Mortgage Book 115, at page 70. The names of the parties were properly indexed and cross-indexed, but in both instances the reference was to Chattel Mortgage Book 102, page 493. Book 102 contained no such numbered page. The cross-index was corrected in May 1952 and the grantor index on 26 November 1954, after institution of the action. Crops covered by the chattel mortgage were sold at defendants' warehouse in the Fall of 1952. The trial court held that the chattel mortgage was not recorded as required by law. This Court reviewed many former decisions and concluded: "In light of our decisions, we hold that the indexing was sufficient to put a careful and prudent examiner upon inquiry. Moreover, from and after 1 June, 1952, the instrument was cross-indexed properly and accurately as required by statute. We cannot conceive of a careful examiner failing to examine the cross-index when he found the instrument was not recorded in the book and on the page referred to in the direct index." We think this compelling authority for defendant's position in the instant case. The irregularity was much greater in the Cotton Company case.

Barney v. Little, 15 Iowa 527, is practically identical with the case sub judice. There, a mortgage was entered of record in Book 3, at page 546. The index entry referred to Book 3, page 596. There, as here, the only material irregularity was the page reference. In holding the recordation sufficient, the court said: "It is a purchaser's duty to examine the record. The law places the means at his disposal. It requires all matters affecting titles to appear of record. If he omits to examine, he is to impute the loss, if any, to his own indolence or folly. * * * Assuming the instrument to be one which may properly be registered, the law charges him with a knowledge of all facts which an ordinarily careful examiner of the records would have made him cognizant of. Having thus settled the rule which is to be applied, the Court cannot avoid the conclusion, that if the appellants, in the case under consideration, had made an ordinarily diligent, skillful and careful examination of the records, the mortgage in question would have been discovered to them."

"* * * (I)t is a universally accepted principle that `constructive notice from the possession of the means of knowledge, will have that effect of [notice], although the party were actually ignorant * * * merely because he would not investigate. It is well settled that, if anything appears to a party calculated to attract attention or stimulate inquiry, the person is affected with knowledge of all the inquiry would have disclosed.'" West v. Jackson, supra [198 N.C. 693, 153 S.E. 258].

Applying the rule laid down in the Dorman case, it is our opinion, and we so hold, that defendant's lien was indexed in substantial compliance with statutory requirements and has priority over plaintiffs' deed of trust. Enough is disclosed by the index to put a careful and prudent examiner on inquiry. It plainly shows that there is a lien against Mollie Sawyer Cuthrell in favor *605 of Camden County recorded in Lien Book 1. By a careful examination of the indicated Book the record of the lien would be found.

The judgment below is