Hooper v. Tallassee Power Co.

AlleN, J. The State issued grants to J. J. Colvardj covering the land in controversy, under whom both plaintiff and defendant claim. Colvard, described in one part of the record as treasurer of Graham County, and in another as tax collector, executed a mortgage to the clerk of the Superior Court in lieu of an official bond, as is allowed under Rev., 265, and it is under this mortgage the plaintiff claims. Thereafter the said Colvard conveyed the land to J. W. Adams, who is admitted to be a purchaser for full value, by deed which was duly registered, and it is further admitted that the defendant has a connected chain of title from Adams. The mortgage was copied in the official bond book kept in the office of the register ’of deeds, and there was no other registration until after the purchase by Adams from Colvard, nor was the mortgage indexed in the general index of deeds and mortgages, or in the bond book. The question therefore presented on this phase of the title is whether copying in the official bond book is a legal registration, because if it is the plaintiff has the older and better title from Colvard, while if the mortgage was not registered according to law, the title is in the defendant through the deed to Adams, as it is “Settled beyond controversy that as against purchasers for value an unrecorded mortgage has no validity, either by way of passing the title or creating a lien, equitable or otherwise.” Wood v. Tinsley, 138 N. C., 510. *652 Tbe statute (Rev., 265) permits tbe execution of a mortgage or deed in trust in lieu of an official bond, but tbe “Statute is exceptional in its provisions, and must be strictly observed” (Eshon v. Comrs., 95 N. C., 76), and tbe instrument wben so executed is still a mortgage or trust deed and not a bond, and must be legally registered before it can prevail against tbe registered deed of a subsequent purchaser. Tbe purpose of tbe registration laws “Is to give notoriety as to tbe existence and extent of mortgages and deeds of trust” (DeCourcy v. Barr, 45 N. C., 187); no notice, however clear, will supply tbe place of registration (Hinton v. Leigh, 102 N. C., 31), and registration means more than copying on a book in tbe register’s office, as is shown by numerous cases bolding that a mortgage transcribed on a book kept for that purpose was not registered so as to affect a subsequent purchaser, if tbe probate was defective, tbe Court bolding “that what was not done in due form was not done at all in contemplation of law.” Todd v. Outlaw, 79 N. C., 239, and citations. In some States where registration is required in a particular book, it is held that copying in tbe wrong book is no registration, and in a Yermont case that, “Tbe record of a mortgage will not impart notice to subsequent purchasers or creditors, where it has been made by tbe officer intrusted with tbe duty of recording deeds, on tbe back leaf of a book which bad been filled by tbe records of prior deeds, for twelve years past, and bad since that time ceased to be used for recording purposes, and where moreover tbe names of tbe parties to tbe mortgage were not entered in tbe index to tbe records.” 19 R. C. L., 426. These authorities and others proceed upon tbe idea that as tbe law fixes a subsequent purchaser with notice of all incumbrances properly on tbe registration books, although be may overlook them after diligent investigation, it is but fair and just, for tbe protection of tbe purchaser, that tbe incumbrance should be legally on a boob kept for tbe registration of instruments. Tbe purchasers should not be required, in addition to examining indexes, to search every book in tbe office of tbe register of deeds, although bearing labels having no relation to deeds and mortgages. Tbe register is required to keep a record of “vital statistics,” and be is tbe custodian of tbe minutes of tbe commissioners, which are preserved in regularly bound volumes. Must tbe purchaser look through these records, and if be fails to do so and tbe register has by mistake copied a mortgage on one of them, is tbe purchaser bound as by a duly registered mortgage? We think not, and tbe same reasoning would make it unnecessary to examine a bond book, in which it could not be reasonably expected that a mortgage would be found. *653 Ely v. Norman, 175 N. C., 294, on which, the plaintiff relies, instead of being an authority against this position, strongly supports it. In that case the defendant executed a lien on crops to secure advances, and in the same instrument conveyed a tract of land as security for the debt. The instrument was registered in a book for agricultural liens, but it was indexed and cross indexed so that it could be easily found, and ■the Court held that it was legally registered. It is pointed out in the opinion that our statutes do not require registration “in any special book or one of any particular kind of description,” but the Court adds, “Undoubtedly they should put in a book recognized and .used in the office for recording instruments,” which is substantially a decision of the present question, because the mortgage under which the plaintiff claims was not “in a book recognized and used in the office for recording instruments.” We are therefore of opinion the mortgage under which the plaintiff claims was not registered according to law, and that the plaintiff’s title must fail. We do not put our decision on failure to index and cross index, recognizing the correctness of the principles announced in Fowle v. Ham, 176 N. C., 12. There are other irregularities in the title, which we need not consider, as the one decided settles the controversy. Affirmed.