Twitty v. . Cochran

BarNhill, J. There was sufficient evidence to sustain the answer of the jury to the first issue. The assignments of error directed to the admission of evidence on this issue, and to the charge of the court relating thereto, are without substantial merit. The jury having failed to answer the other issues, the remaining exceptions become immaterial and do not require consideration. The deed to plaintiff being a voluntary one made for a fraudulent purpose, the Connor Act, now C. S., 3309, has no application here. This act protects only creditors or purchasers for a valuable consideration against unrecorded deeds, mortgages, leases and other paper writings affecting the title to the lands conveyed. Tyner v. Barnes, 142 N. C., 110, 54 S. E., 1008; Harris v. Lumber Co., 147 N. C., 631, 61 S. E., 604; Spence v. Pottery Co., 185 N. C., 218, 117 S. E., 32; Eaton v. Doub, 190 N. C., 14, 128 S. E., 494; Gosney v. McCullers, 202 N. C., 326, 162 S. E., 746. In the last cited case, Stacy, O. J., speaking for the Court, says: “And by the express terms of the Connor Act, chapter 147, Laws 1885, now C. S., 3309, only creditors of the donor, bargainor or lessor, and purchasers for value are protected against an unregistered conveyance of land, contract to convey, or lease of land for more than three years.” It follows, therefore, that the plaintiff through her deed from R. M. Twitty acquired no rights in the locus superior to the rights of the defendant under the paper writing signed by plaintiff’s grantor even though the paper writing held by the defendant was not of record at the time plaintiff received and filed her deed for recordation. On the contrary, her rights in the land are subordinate to the rights of the defendant, who has been in possession of said premises under said paper writing since about 1928. But this does not invalidate the deed of plaintiff. It is good as between the parties thereto. The verdict of the jury did not warrant a judgment invalidating the deed and directing its cancellation of record. Likewise, an adjudication of the force and effect of the paper writing held by the defendant and the rights of the defendant thereunder cannot be predicated upon the verdict rendered. The judgment of the court below exceeds the bounds authorized by the verdict. On the present record the defendant is entitled to a judgment that the plaintiff is not entitled to the possession of the locus in quo as against the defendant and is not entitled to recover rents therefor; that the rights acquired by the plaintiff under her deed are subject or subordinate *269 to the rights of the defendant under the paper writing executed by her grantor to the defendant and her husband; and that the action be dismissed at the cost of plaintiff. The verdict warrants no other or further relief. The judgment below must be modified to accord with this opinion. Modified and affirmed.