Hood, Comr. of Banks v. . Landreth

BbogdeN, J. Two mortgage deeds are delivered to and received by tbe register of deeds and marked “filed for registration” at tbe same instant .of time. Both instruments appear on tbe temporary index on tbe same day, although one appears ahead of tbe other on such index. Tbe question of law is: Which mortgage deed has priority ? Tbe answer is neither. Both stand upon tbe same level and constitute a first lien upon tbe premises for tbe reason tbat both have parity of registration. Certain issues were submitted to tbe jury, but tbe record discloses that tbe facts with reference to tbe registration of tbe instruments were not controverted. Tbe plaintiffs contend tbat while it has been formerly held tbat filing for registration determined priority, nevertheless such decisions have been overruled by reason of tbe fact tbat tbe Court has interpreted C. S., 3561, as requiring indexing as an essential part of tbe act of registration. Tbe authorities relating to indexing are assembled in Story v. Slade, 199 N. C., 596, 155 S. E., 256. See, also, Woodley v. Gregory, 205 N. C., 280, 171 S. E., 65. In tbe case at bar tbe register of deeds kept a temporary index, and while tbe mortgage deed of Lowdermilk appears first on such record, there is nothing to indicate tbat all tbe papers were not indexed at tbe same time. Obviously two entries could not occupy tbe same space at tbe same time on tbe records, and consequently it is necessarily apparent tbat in tbe act of entering a list of names on a record tbat one name bad to come first. In tbe final analysis two deeds of trust were filed at tbe same instant of time, and so far as tbe record discloses, were indexed at tbe same instant of time. Therefore, tbe Court is of tbe opinion tbat both mortgage deeds constitute a first lien upon tbe land. Beversed.