Respass v. . Jones

Davis, J. (after stating the case as above). In addition to the fact that the defendant Jones was in possession of the land when the deeds from Alice and Emma to the plaintiff were executed, which fixed him with notice of any equity which the defendant might have, it appears from the endorsement on the note for $100, given by him to Emma, that he had actual knowledge of an adverse claim to the land, and that even the sum of $100, which appears to have been much less than the value of the land, was not to be paid if he failed to get a good title, and if his claim rested solely upon its merits he would, perhaps, not be entitled to recover; yet, if the legal title is in him, the defendant, if *11 guilty of any fraud, cannot recover, upon the well settled principle, that the Courts will not give aid in such cases, and the legal title must prevail. We can hardly conceive of a more forcible illustration of the unyielding nature of this rule, than is to be found in the decision which the Court felt “ compelled ” to make in York v. Merritt, 80 N. C., 285. Conceding it to be settled in this State that a recovery of land may be had upon an equitable title (Condry v. Cheshire, 88 N. C., 375) let us ascertain, first, whether the legal title is in the plaintiff; and if so, second, whether the defendant, who is asking the equitable assistance of the Court, has so soiled his own hands that equity will not touch them, to aid. In determining the first question, we are to consider the effect of the deed from W. 0. Respass to the defendant, and of its alteration, for if, as altered and registered, it passed a good title to Ann M. Jones, the defendant would, at least, be entitled as tenant by the curtesy to hold during his life, and the plaintiff could not in the present action recover the interest acquired from his vendors, as two of the heirs-at-law of the said Ann M. Jones. After the execution and delivery of a deed the estate passes out of the grantor and vests in the grantee, to be legally perfected by registration. If, before registration, the deed is lost or destroyed, such loss or destruction does not restore the estate to the grantor. Dugger v. McKesson, 100 N. C., 1. As between the grantor and grantee the contract has been executed, and if the loss or destruction has been the result-of accident, or without any fraudulent or illegal act or intent on the part of the grantee, the Court will aid in perfecting his title by one of two modes, as was said in Triplett v. Witherspoon, 74 N. C., 475: either by setting up the lost deed and registering a copy, or by declaring the grantor a trustee and compelling a conveyance of the legal title; but the legal title is not perfected till registration, though when registered it *12 relates back to the date of its execution. McMillan v. Edwards, 75 N. C., 81; Morris v Ford, 2 Dev. Eq., 412; Walker v. Coltraine, 6 Ired. Eq., 79; Phifer v. Barnhart, 88 N. C., 333. We take it as settled that while, by execution and delivery of the deed, the vendor parts with all power and control over the land conveyed, yet before probate and registration and before any intervening rights, legal or equitable, have accrued, as between the grantor and grantee, the deed may be surrendered to the grantor or cancelled or changed in any way that may be agreed upon by them. Davis v. Inscoe, 84 N. C., 396, and cases there cited. This being so, the deed from W. 0. Respass to the defendant, though passing an inchoate title which was never perfected by registration, and which, by reason of the alterations made by the defendant, could not be registered in the form as executed and delivered, never became operative, and when, at the instance of the defendant, and by his request, the deed was executed by W. 0. Respass to Alice, Emma and Laura Jones, and proved and registered, it passed a perfect legal title. Hare v. Jernigan, 76 N. C., 471, and cases cited. The deed first executed to the defendant having been altered by him, as found by the Court, for the purpose of putting the land beyond the reach of his creditors, he could not now invoke the equitable aid of the Court to have it restored to its original form and registered Davis v. Davis, 6 Ired. Eq., 418; York v. Merritt, supra. The counsel for the defendant, in his well considered and elaborate brief, contends “that the alteration by Jones was neither in fact, nor in the view of the law, fraudulent; that it was essen tially, and in equity must be regarded as, an accident, and must be relieved against, as any other accident would be, according to admitted principles of courts of equity.” He insists, in support of this view, that “ it is in evidence that in fact he (the defendant) owed nothing,” and that it’is *13 not made to appear that there were any creditors to be defrauded. So far from its appearing from any evidence that the defendant owed nothing, it clearly appears from his own evidence that he had the deed altered to put the land beyond the reach of his creditors, and his own statement sustains the finding of the Court. He further insists that the deed could not be fraudulent as to creditors, because “ the land whs worth only the value of a homestead, and the defendant had a right to convejr his homestead even against his creditors.” It does not appear when the alteration in the deed was made; but it was executed March 21, 1867, anterior to the homestead, and if the alteration was made with a fraudulent intent, he cannot get relief against the, legal consequences of his own act. Having for a fraudulent purpose lost the legal title, the Court will not aid in its restoration, and the-authorities cited do not apply. But it is insisted, that when the purchase money for a tract of land is paid by one, and a deed therefor is taken in the name of another, a resulting trust arises in favor of him who paid the purchase money, and, therefore, if the Court will not decree a restoration of the deed made to the defendant, as it was before the alteration, yet, inasmuch as the consideration for the land was paid by the defendant, he should be allowed to show that the land was conveyed to his children, not as an.ad vancement, but to be held in trust for him. ■The general ruléis as insisted upon by counsel for the defendant, but his misfortune is that the fraudulent device by which he lost the legal title pervades his whole case. Having rendered the original deed to himself inoperative by erasing his own name and inserting that of his wife, with a purpose to put the property “ out of the reach of his creditors,” he afterwards procures a deed to be made to his own children, as he himself testifies, for the purpose of precluding the other children of his wife by former marriages from participating as heirs-at-law in the inheritance from her; and *14 the arguments in the able and learned brief of counsel are rendered nugatory by the fatal facts which come from the defendant himself. Affirmed.