King v. . McRackan

Allen-, J. The deed from Sarah E. Wooten to Jessie D. Wooten was considered in Council v. Pridgen, 153 N. C., 444, and it was then held that it was not a valid conveyance, on account of the failure of the husband of the grantor to join in its execution and because the private examination of the grantor, a married woman, had not been taken, and'as this deed is a necessary link in the plaintiff’s title, he must rely on adverse possession under color. The defendant objected to .the introduction of this deed upon the ground that it was neither valid as a conveyance nor as color of title, and to the deeds from Jessie L>. Wooten to .Clark, and from Clark to Lennon, because they were not registered until after the conveyance to Council, contending that they could not be relied on as color of title until Registered. The deed of a married woman without private examination, if' otherwise sufficient, is color of title (Norwood v. Totten, 166 N. C., 648), but the rule prevails as to all deeds that if they are placed upon the registry upon a defective probate they are to be dealt with and treated as if unregistered. DeCourcy v. Barr, 45 N. C., 181; Todd v. Outlaw, 79 N. C., 235; Johnson v. Lumber Co., 147 N. C., 250; Smith v. Fuller, 152 N. C., 13. We must, therefore, treat the deeds upon which the plaintiff relies as color of title as unregistered. *624 Prior to the Connor Act of 1885 an unregistered deed was in all cases color of title if sufficient in form (Hunter v. Kelly, 92 N. C., 285), but after tbe passage of that act it was held in Austin v. Staten, 126 N. C., 783, that an unregistered deed was not color pf title. The question was again considered in Collins v. Davis, 132 N. C., 106, and the ruling in the case of Austin v. Staton was modified so that-it only applied in favor of the holder of a subsequent deed executed upon a valuable consideration, and the Court has since then consistently adhered to the latter decision. Janney v. Robbins, 141 N. C., 400; Burwell v. Chapman, 159 N. C., 211; Core v. McPherson, 161 N. C., 644. In the Collins case Justice Connor, the author of the Connor Act, says : “The learned counsel for the plaintiff, in an able and interesting argument, asks us to reverse the decision in Austin v. Staten, supra. It is not clear that the Legislature intended or contemplated this radical change of the law in this respect. The Court recognizes the fact that the question presented was 'new and important.’ We would not be disposed to give to that decision any other or further effect than was necessary in that and other cases coming clearly within the same principle. The proposition as stated by the Chief Justice may be broader than was necessary to the disposition of that case, and while we are not disposed to disturb it in so far as we have suggested, we think it well to restate that principle as confined to its application to the case before us.- “We therefore hold that where one makes a deed for land for a valuable consideration and the grantee fails to register it, but enters into possession thereunder and remains therein for more than seven years, such deed does not constitute color of title and bar the entry of a grantee in a subsequent deed for a valuable consideration who has duly registered his deed. We use the term 'purchaser for a valuable consideration’ in the sense in which it is defined by this Court in Fullenwider v. Roberts, 20 N. C., 278, A fair and reasonable price according to the common mode of dealing between buyers and sellers,’ or, as said by Pearson, C. in Worthy v. Caddell, 76 N. C., 82, The party assuming to be a purchaser for valuable consideration must prove a fair consideration, not up to the full price, but a price paid which would not cause surprise or make any one exclaim, “He got the land for nothing! there must.have been some fraud or contrivance about it.” ’ “Except in cases coming within this rule, the rights acquired by adverse possession for seven years under color of title are not disturbed or affected by the act of 1885.” In other words, the Connor Act has substantially the same legal effect upon deeds that the act of 1819 had upon mortgages and deeds in trust (Robinson v. Willoughby, 70 N. C., 362), leaving them, although unregistered, valid as between the parties and as to all others except purchasers for value, and creditors. *625 It follows, therefore, that tbe unregistered deeds — and in this class we include the deed of Jessie D. Wooten — were properly admitted in evidence, and could be relied on as color of title, unless it was made to appear that Council, under whom the defendant claims, was a purchaser for value. We find in the record no allegation that he was a purchaser for value, nor was there any evidence tending to establish this fact, and there» was no request for instruction predicated upon the idea that he was such purchaser. It is true that the deed to Council recites a consideration of $400, but this is only evidence of payment'as between the parties, and would not be competent as to the plaintiff. Tredwell v. Graham, 88 N. C., 208, in which the Court, speaking of the recital of a consideration as paid, said: “The deed itself, though evidence conclusive as to all matters between the parties, furnishes no evidence of the matters contained in its recitals, as against strangers; for as to them it is strictly res inter alios acta." There are also facts appearing upon the face of the record which indicate very clearly that Council was not a purchaser for value. It appears that Jessie D. Wooten intermarried with Council after she had executed her deed to Clark, and that thereafter Shade Wooten and wife conveyed the land to Council, presumably for the purpose of avoiding the doctrine of feeding an estoppel, which might have arisen if the conveyance had been executed to the daughter. The consideration recited in the deed is only $400, which is less than the consideration recited in any other deed appearing in the record, and there is no evidence that that amount has been paid. It also appears that within five years after Council received his deed reciting a consideration of $400 the defendant McRackan sold the land conveyed therein for $8,000, and this discrepancy in value would lead to the conclusion that Council got the land for nothing, and that the payment of the purchase price recited would not have made him a purchaser for value. It follows that the deeds were properly admitted in evidence, and that they constitute color of title against the defendants, and for the same reason the possession of Clark and Lennon can be added to the possession of Jessie D. Wooten to make up the period of seven years, and this period was complete before the defendant McRackan acquired his title. The charge of his Honor as to the estoppel is sustained by the authorities, as the plaintiff King was not a party to the former action. Falls v. Gamble, 66 N. C., 455; LeRoy v. Steamboat Co., 165 N. C., 109. The order of his Honor in permitting an amendment of the complaint so that the description of the land might be made to conform to the deeds *626 is not reviewable, as we find no abuse of tbe discretion vested in bim by law, nor do we think the remarks made by the presiding judge constitute prejudicial error. There was evidence of an adverse possession for seven years under the deeds, which we have held to be color. We have considered all of the exceptions raised upon the record, but have not thought it necessary to discuss them seriatim, as they are all involved in the questions we have decided. We find No error.