Edwards v. . Dickinson

Smith, C. J. The probate and registration of a deed conveying land as a substitute, dispensing with the old form of livery of seizin (The Code, § 1245), have been so far deemed necessary to its efficacy in transferring the estate, that, if before such registration, it be surrendered and cancelled, the title will remain undisturbed in the maker, when no intervening rights of others have been acquired to be affected thereby. This is held in Hare v. Jernigan, 76 N C., 471, and many other caseá cited in the argument of counsel, down to that of Southerland v. Hunter, 93 N. C., 310. In-the latter case, it is said that registration is now held to be “ an inseparable incident to the efficacy of the deed itself.” Yet an unregistered deed is not -wholly inoperative as a conveyance of real property, possessing only the force of an executory contract to convey. It is more than an equity. It is an incomplete conveyance of the land, lacking registra *523 tion only to make it perfect; and, when registered, relating back to the time of execution and passing the estate from that period. It is recognized as so far an executed instrument, acting upon the title, that when delivered, if lost before registration, it will be set up in equity and another conveyance decreed, whether it was made upon a valuable consideration or not, against the vendor or his devisees or heirs-at-law. Hodges v. Hodges, 2 D. & B. Eq., 72; Plummer v. Baskerville, 1 Ired. Eq., 252. And this in behalf of a purchaser from the vendee. McCain v. Hill, 2 Ired. Eq., 176. It may be sold under execution independently of the act subjecting trust estates to levy and sale. Morris v. Ford, 2 Dev. Eq., 412. A conveyance made before, but registered after, death defeats the wife’s claim to dower under the former law, in which she only was entitled to claim it in such lands as the intestate owned at his death. Norwood v. Marrow, 4 D & B., 442. The surviving wife may have a lost or fraudulently destroyed deed set up, to the end she may have dower in the legal estate assigned her therein. Tyson v. Harrington, 6 Ired. Eq., 329. These, and other adjudications in the same line, show that an unregistered deed transmits, not a mere equitable right to have it registered, if existing, or restored in order thereto, by a decree for the execution of another, or in itself accomplishing the same result, but an inchoate legal estate, deficient only in the want of registration under the statqtory requirement. Phifer v. Barnhart, 88 N. C., 333. “An unregistered deed for land passes,” in the language of MekrimoN, J., “ an inchoate legal as well as the equitable title, to become complete and absolutely operative for all proper *524 purposes, according to its true intent, as soon as it shall be registered. Austin v. King, 91 N. C., 286. While such is the operation of a deed for land from its •delivery, the conveyance may be defeated by its voluntary cancellation by all the parties thereto, and, as between them, the estate left undisturbed iirthe grantor. Hare v. Jernigam, ante; Beaman v. Simmons, 76 N. C., 43; Davis v. Inscoe, 84 N. C., 396; Fortune v. Watkins, 94 N. C., 304. “ But such cancellation,” quoting from the opinion in Austin v. King, ante, “can be made only by agreement of the parties to it, or those claiming under them, and it cannot be made fraudulently and to the prejudice of third parlies.” There was no consent given by the plaintiff, according to his own allegation, to the destruction of the deed with reference to the making of another, or for other purpose of benefit to him; but the act was a betrayal of trust, an act of spoliation of a muniment of title, not impairing it or the plaintiff’s estate in the land. It was done, not only in disregard of fiduciary obligation, but for the wrongful purpose — a purpose not allowed by law — of vesting the estate in the daughter, for which an ample remedy is afforded in the right to demand another commensurate in'its operation with the former, and putting the estate in the plaintiff, after registration, in the plight and condition it would have been had the first been kept and registered, as decided in Hodges v. Spicer, 79 N. C., 223. The cancellation, being made with a fraudulent intent, is a tort¡ the quality of which, as such, is not changed, though the right of action for the tort may be surrendered by the party wronged, by the subsequent submission of the plaintiff to it, with a view to seeking a remedy which might be founded upon a consent originally given upon or without some anticipated advantage to arise out of the cancellation. Regarding the complaint as waiving the tort, the plaintiff is left without redress; for as there is no positive promise,so *525 none can be implied in law, to restore the purchase money, or. the unpaid part of it, and it is not a ease of the failure of consideration, admitting the recovery of the money paid. If the waiver be permitted, it would leave the plaintiff remediless, because it constitutes no consideration upon which to base an implied, in the absence of a positive, promise to return the money in whole or in part. This results from, the fact that no promise can be inferred from an act, itself tortious, because of an assent that takes away its quality as such. But the spoliation is itself a wrong, for which an action will lie and some redress be given by the law, not commensurate with the value of "the premises, because the plaintiff can regain them, and his loss will be measured by costs and expenses incurred in securing the restoration of the deed.. The judgment overruling the demurrer must, therefore, be affirmed. No error. ' Affirmed.