Cooper v. North Carolina Bank & Trust Co.

Bkogden, J. Is a purchaser of real estate affected with' notice upon the registration, indexing and cross-indexing of deeds and deeds of trust executed by the grantor and recorded, indexed and cross-indexed prior to the registration, indexing and cross-indexing of the deed under which the grantor holds title? *726 An examination of the agreed facts discloses that the Eeal Estate Investment Company received a deed for property, dated 12 March, 1921, but not recorded until 17 May, 1922. Before recording its deed it sold the land to Lewey by deed duly recorded, and Lewey executed a deed of trust to Piedmont Trust Company to secure notes for $14,500, which deed of trust was duly recorded, and thereafter Lewey reconveyed to the Eeal Estate Investment Company by deed recorded 27 March, 1922. Subsequently the Eeal Estate Investment Company duly executed a deed of trust to Alamance Insurance and Eeal Estate Company, trustee, to secure notes aggregating $10,000. This deed of trust was recorded 23 October, 1924. Therefore, when the Alamance Insurance and Eeal Estate Company, trustee, prepared to take a deed of trust to secure notes for $10,000 on the property the records- would have disclosed that the mortgagor, Eeal Estate Investment Company, had acquired the property on 17 May, 1922, because that was the date of registration of its deed. The question is, was the Alamance Insurance and Eeal Estate Company, trustee, affected with notice of the prior deed of trust upon the land to Piedmont Trust Company, trustee, securing notes for $14,500, which was recorded prior to the recording of the deed of its grantor ? Upon the facts presented, the plaintiff contends that when the Eeal Estate Investment Company recorded its deed on 17 May, 1922, the principle of -estoppel applied so as to vitalize the recording of all instruments affecting the title prior to 17 May, 1922. The defendant contends that the Alamance Insurance and Eeal Estate Company was not required to examine recorded instruments, affecting the -title, prior to the time of the recording of the deed of its grantor, to wit, on 17 May, 1922. The contentions so made are discussed in Door Co. v. Joyner, 182 N. C., 518; 25 A. L. R., 83, and Whitehurst v. Garrett, 196 N. C., 154. See, also, West v. Jackson, 198 N. C., 693. The question presented is important, but a decision thereof upon the present condition of the record would not terminate the litigation or adjudicate the rights of all parties concerned for the reason that all parties having an interest in the subject-matter of the litigation are not before the court. Wherefore, the cause is remanded to the Superior Court of Alamance County to the end that all persons having an interest in the controversy may he made parties; and in order that all parties may be heard upon the merits, the judgment is vacated without prejudice. Eemanded.