Herring v. . Warwick

Walker, J., after stating the ease. We think there was error in the instruction of the court. In the first place, there was no sufficient evidence for the jury that Warwick surrendered possession of the land to Gregory. On the contrary, he demanded the possession of S. A. Herring, and upon his refusal to give it up, he brought suit aginst him to recover it, thereby continually asserting his right to the possession acquired by his purchase from J. T. Gregory, the mortgagee, - and the deed the latter made to him, which was duly and promptly registered. Even had Warwick torn up or otherwise destroyed his deed, it would not have had the legal effect of revesting the title in Gregory. In Linker v. Long, 64 N. C., 296, it appeared that a deed for land had been executed by W. F. Taylor to Isaac Linker 6 November, 1852, and on 11 May, 1853, it was redelivered by Linker to Taylor, with the following endorsement upon it: “I transfer *349 the within deed to W. F. Taylor again.” Taylor kept the possession of the land during his life, and his heirs retained possession to the time of bringing the suit. The lower court refused permission to read the deed in evidence. This Court held that ruling to be erroneous, and with reference thereto, said: “This ruling is based upon the deed that it had been redelivered by the bargainee to the bargainor, the legal effect of this writing on the back was to nullify the deed, and make it as if it had never been executed. By force of the deed, and the operation of the statute, 27 Hen. VIII, an estate of freehold of inheritance was vested in Linker on 6 November, 1852. The question is, has that estate been divested by any conveyance, or means, known to the law. Suppose that deed, upon 11 May, 1853, had been cancelled, torn up or burnt, by consent of both parties, the estate would not have been thereby revested in Taylor, for by the common law a freehold estate in land can only pass by delivery of seizin — under the Statute of Enrollments by 'deed of bargain and sale indented and enrolled’ — and under the act of 1715, by 'deed duly registered’; so, the freehold having passed to Linker, could only be passed from him either to a third person or to Taylor by some kind of conveyance known to the law. A will, being ambulatory, may be revoked by cancellation; a covenant or agreement, being in fieri, a thing to be done — by. cancellation or by deed of defeasance, which may be executed after the covenant. But a conveyance of a freehold estate of inheritance, being a thing done, cannot be undone by cancellation, or in any other mode, and the estate can only be revested by another conveyance, unless a condition or deed of defeasance executed at the same time and as a part of the conveyance, be annexed to the estate, giving to it a qualification by which it may be defeated. For illustration, a mortgage is a conveyance on condition. If the money be paid at the time fixed the estate is revested in the mortgagor, but if the condition be not performed by payment at the day, the estate becomes absolute, and although the money be paid and accepted afterwards, the estate can only be revested by another conveyance.” The Chief Justice is referring, in the last clause, to a strict foreclosure and not to the right or equity of redemption. He is illustrating the point by giving an exam- *350 pie of a deed upon condition and applying the strict rule of the common law to the relation of the parties without regard to the equitable right of the mortgagor, and the illustration is an apt one. This decision has been approved in several cases, and among others we may cite Wharton v. Moore, 84 N. C.. 479; Hare v. Jernigan, 76 N. C., 471; Browne v. Davis (opinion by Justice Shepard), 109 N. C., 23; Tunstall v. Cobb (opinion by present Chief Justice), 109 N. C., 316; Hodges v. Wilkinson, 111 N. C., 56. The law, as declared in Linker v. Long, has been recognized and acted upon to the present time. If the facts, as they appeared in that case, did not have the effect of revesting the title in the grantor, who remained in the possession of the land after the endorsement was made on the deed and the latter was re-delivered to him, how can it be said, as a matter of law, that the acts and conduct of Warwick divested the title which he had acquired by his purchase and the deed from the mortgagee, which was registered ? J. T. Gregory paid the purchase money back to him for the reason that Herring had possession of the land and refused to surrender it. This was not an abandonment of his title or of the right he had acquired under the sale and deed. On the contrary, he almost immediately asserted his right to the possession and by suit attempted to enforce his claim as against one of the mortgagors. It was not necessary to the vesting of the title in Warwick that Gregory should have given him the possession of the land. The title vested by the deed and its registration, the latter taking the place of lively of seizin. The verdict upon the first and second issues resulted from an erroneous instruction of the judge to the jury. The question as to the legal effect of the proceedings and judgment in the case of Warwick v. Herring, upon the rights of the parties to this litigation, was not considered by the Court and, therefore, did not enter into the verdict or in any way affect it. We cannot, therefore, consider that question. The parties have had no opportunity to be heard in regard to it, and apart from the fact that it was offered as evidence, it has played no part in the decision of the case. The defendant has had no chance to except to any ruling upon it, and it would not be right or in accordance with correct procedure, to pass upon it at this time. We will *351 do so if it ever comes before us directly for our decision, but it is not now presented in any tangible form. It involves tbe application of an important principle of law and is not at all free from difficulty. Tbe plaintiff offered in evidence tbe proceedings, verdict and judgment in tbat case, and relied upon them to sbow tbat Warwick was seized only of a life estate and was, therefore, liable to plaintiff, as reversioners, for waste committed upon tbe premises, as it is alleged tbat bis act produced lasting damage to tbe inheritance. Tbe judgment professes to sell tbe entire estate in tbe land, and not only tbe life interest, or to be more accurate, its operation is not, in terms, restricted to tbe life estate, though there is one expression in tbe decree of confirmation which indicates tbat such may have been tbe intention of tbe court. Did it operate upon tbe estate in reversion, and, if so, are plaintiffs bound by it, not having been made parties to tbe suit ? Does it bind them by reason of tbe fact tbat they introduced it and rely upon it? Are they still required, notwithstanding tbe judgment and independently of it, to prove tbat tbe sale of tbe land by Gregory, under tbe power contained in tbe mortgage from Herrings to him, is not valid as to them, or, in law, does tbe judgment establish this fact, although they were not parties to it? These are questions, and perhaps there are others, which may attract tbe attention of counsel in tbe further progress and development of tbe case, and upon which they will enlighten us if tbe matter again comes before us. All we can now say is tbat tbe verdict, in an essential particular, was rendered under tbe influence solely of an erroneous instruction, and it should, therefore, be set aside. New trial.