Phillips v. . Hodges

*250 Davis, J. after stating the case as above, proceeded: The foregoing is the full statement of the case on appeal, from which it will be seen, at a glance, that there is not a shadow of merit or equity in the plaintiff’s claim to the land in controversy, and we shall see upon an examination of the law upon which he relies that it is equally without foundation. It will be conceded, as insisted for the plaintiff, that by the deed of April 2d, 1852, from W. B. Surles to N. L. Phillips and Patience W. Phillips his wife, the husband and wife took the land per my et per tout, and the act of 1784 (The Code, § 1326) abolishing survivorship in joint tenancies does not apply to conveyances to husband and wife, for the reason assigned by GastoN, Judge, in Motley v. Whitemore, 2 D. & B., 537, that “being in law but one person they have each the whole estate as one person; and on the death of either of them the whole estate continues in the survivor.” Long v. Barnes, 87 N. C., 329, and cases cited. It will be conceded, too, that the subsequent re-conveyance by N. L. Phillips alone to W. B. Surles could not deprive the wife, Patience W. Phillips, of the right of survivorship. Simonton v. Cornelius, 98 N. C., 433, and cases cited. It is insisted for the defendant that the conduct of N. L. Phillips and his wife at the sale was a fraud upon the purchaser for value and without notice, and that they are thereby estopped from asserting title to the land. That is true as to N. L. Phillips, but the wife, by jeason of her presence at the sale with her husband, and her silence when he stated publicly in her hearing that the “title was perfectly good,” was not by that alone estopped. While the reason for this may not be entirely satisfactory, it is well settled by authority, though, speaking for myself and yielding to settled judicial precedent, I am unable to seé why it was not as much a fraud in the wife, who, it appears, had sufficient interest to attend the sale, to stand by and hear the husband make the statement that estopped him as a fraud upon an -innocent *251 purchaser, as it was in him to make the statement. It is not easy to conceive of any honest purpose in withholding from registration and publicity for more than thirty^- years the deed to N. L Phillips and wife through whom the plaintiff claims. The statute of presumptions had commenced to run more than a quarter of a century before this action was instituted; and though unlike the statute of limitations, which is a complete bar as to all persons not under disabilities, it is so emphatically a statute of repose that no saving is made in it of the rights of infants femes covert or persons non compos mentis. Headen v. Womack, 88 N. C., 468, and eases cited. But the learned counsel for the defendant was content, as he might well be, to rely upon the act of 1885, cb. 147, which made the deed of no avail against creditors or innocent purchasers for value unless registered prior to January 1st, 1886, whereas it was registered after that time. The unregistered deed did not pass the legal title, but only an equitable title, to be perfected by registration. Davis v. Inscoe, 84 N. C., 396, and cases cited. Counsel, in his brief, says: “Would it not have been prudent for a purchaser to have enquired as to how N. L. Phillips acquired his title? Such inquiry would have disclosed the fact that he held only a joint estate with his wife,” etc., which would bring the case within the proviso of the act of 1885. This contention might, perhaps, be made with some force, but for the fact that the purchaser had no source of information to which he could more reasonably resort than to N. L. Phillips, who, in the presence of his wife, with the deed under which they claimed in his possession, gave the fraudulent assurance that the title was perfect. . The counsel for the plaintiff'says the'deed,'when registered, related back to. its execution,-' and ' “the Act of 1885 would be unconstitutional if the effect of it would be to divest from P. W. Phillips, in 1885, an estate which yested in her by deed in 1852.” The error of counsel is in overlooking *252 the fact that but for the Act of 1885, and the various successive Acts after two years from April, 1852, extending the time for registration, the deed to Phillips and wife would have conveyed no legal title unless registered within two years from April 2d, 1852. Registration is required for the protection of innocent purchasers for value and creditors, and to prevent frauds, and the legislature did not think it wise to extend the time for registration after January 1st, 1886, so as to give legal validity to deeds, as against innocent purchasers and creditors, and the case before us illustrates the wisdom of the lawmakers There is no error, and the judgment is affirmed. Affirmed.