Skinner v. Terry.

CoNNOR, J. The exception to the instructions given in response to the- plaintiff’s prayer presents the questions raised by the defendant’s prayers. The defendant says that the plaintiff cannot maintain this action for a trespass committed upon that portion of the “Great Parle Estate” lying in Per-quimans County, for that the decree in the case of John E. Davis against Timothy Ely and others was not recorded in said county until January Y, 1902; whereas, his deed from the Marshal was recorded October 10,, 1900. This contention is based upon the theory that the judgment of the Superior Cburt of Pasquotank County of January, 1894, operated as a deed from Ely to Davis, and came within the provisions of chapter 14Y of Acts of 1885 regarding registration of deeds. The act provided that “no conveyance of land, nor contract to convey, or lease of land for more than three years, shall be valid to pass any property as against creditors or purchasers for a valuable consideration.” * * * This language does not include a decree or judgment of the Cburt which declares the- rights of the parties and adjudges that, by virtue of the facts found by the Court, the prevailing party is the owner of the land. The effect of the decree was to declare Davis the equitable owner of the land and leave in Ely the naked legal title. It was not necessary to a complete adjudication of Ely’s rights that the further provision in regard to the operation of the decree, as a deed, should have been added. This Court in Farmer v. Daniel, 82 N. C., 152, through Dillard, J., says: “In this case it appears as a fact in the case agreed that the purchaser specifically performed the contract on his part by paying into the office of the Clerk and Master the purchase-money, and thereupon *309 the right arose to have performance on the part of the heirs acting through the agency of the Court. And the Court of Equity, on report of full payment by the Master, in recognition of this right ordered that the title of the heirs be conveyed by the Master to the purchaser.” It was further held in that case that the decree vested in the purchaser a perfect equitable title upon which he. could defend against one holding the naked lega! title. That the. owner of the perfect equitable title may maintain ejectment or other possessory action under our system of procedure may be regarded as settled beyond controversy. Taylor v. Eatman, 92 N. C., 601; Condry v. Cheshire, 88 N. C., 375. If, as we have seen, the effect of the decree was to vest a perfect equitable title in D'avis, and that the defendant Terry was bound by said decree, it is immaterial whether the provision that it should operate as a deed, as provided by section 426 of The Code, be complied with. It will be observed that the provision of that section is that after the Court shall have declared the rights of the parties, “it shall have power also, to be used in its discretion, to declare in the order then made, or in any made in the progress of the cause, that the effect thereof shall be to transfer to the party to whom the conveyance is directed to be made the legal title of the said property.” * * * We think that the failure to insert this clause or to comply with the directions that the decree be recorded, in no manner affects the equitable title which the plaintiff D’avis acquired by the decree declaring him to be the equitable owner in fee. We would not feel authorized to extend the language of chapter 147, Acts 1885, to include a decree of the character before us in this record. But that point is not before us. The effect of this decree is to vest all of the equitable title in Davis which was outstanding in Ely or in the defendant Terry. Certainly the rights of Davis could not be affected *310 by deed' execrated thereafter by Ely to Terry, or, as in this case, by the Marshal undertaking to sell the naked legal title outstanding in Ely to his co-defendant Terry. Taken in the strongest light for the defendant, the decree of January, 1894, declared the equitable title in Davis, leaving a. naked legal title outstanding in Ely. Terry could acquire no other or better title than was in Ely at the time of his purchase, and, as we have seen, Davis could have- maintained an action against Ely for possession of the land or for trespass thereon; so, the plaintiff who has succeeded to his title may maintain an action against Terry for injury to> his possession. Stith v. Lookabill, 76 N. C., 465. Whether we place the plaintiff’s right to maintain the action upon the theory of an estoppel against Terry or upon the view above suggested that Ely had but a naked legal title, and that the purchaser under such sale took subject to all outstanding equities, we would be brought to the same result. In either aspect of the case his Honor’s charge to the jury was correct, and the judgment must be Affirmed.