Allen v. . Stainback

*77 OlaeK, C. J. Tbe deed of trust from Henry Allen to J. C. Kittrell is a valid and first lien on tbe 42% acres. Tbe deed and a mortgage securing tbe purchase' price constituted one act, and sucb mortgage, executed and registered at tbe same time witb tbe deed, bas priority. Trust Co. v. Sterchie, 169 N. C., 23; Hinton v. Hicks, 156 N. C., 24; Bunting v. Jones, 78 N. C., 242. Tbis being so, an omission in one instrument will be supplied by’a statement in tbe other; and in tbe case now before tbe Court tbe stated consideration of tbe amount of tbe purchase money of tbe 42% acres, which appears in tbe deed, at least designates a limit beyond which tbe purchase price, as referred to in tbe deed of trust, could not possibly go. Tbe reference in a mortgage to a note secured by it, without specifying its contents, is sufficient to put subsequent purchasers upon inquiry, and fixes them witb notice. In Harper v. Edwards, 115 N. C., 246, where tbe defendants objected that tbe mortgage was void for uncertainty in tbe amount of tbe debt intended to be secured thereby, tbe condition in tbe deed which recited that tbe “parties of tbe first part have executed to tbe parties of tbe second part certain promissory notes bearing even date witb these presents, due’and payable 1 January, 1887, and which tbis mortgage is given to secure, it was held that tbe mortgage was valid, and its registration was sufficient to put subsequent persons upon inquiry and fix them witb notice.” To tbe same purport, In re Hawkes, 204 Fed., 319, and Cutler v. Flynn 46 Ark., 70. Also to tbe same purport there is a very clear statement in Fetes v. O’Lauglilin, 62 Iowa, 532, witb tbe citation of numerous authorities, and including tbe following statement: “Tbe record of tbe mortgage imparted notice of tbe amount of tbe debt for which it was given as security, and is a lien prior to tbe mortgage under which tbe defendant claims title to tbe land.” In that case, as -in tbis, tbe amount of tbe promissory note secured thereby was left blank, but its date and tbe land upon which it was secured was sufficiently given, as in tbe present case. In tbe present instance there was nothing misleading in tbe deed of trust from Henry Allen to J. 0. Kittrell, trustee, and tbe plaintiffs in tbe present case could not have been misled. Tbe plaintiffs (in tbis case) were directed by said deed of trust to tbe record for correct information, and they got that information and wrote into it their mortgage, so that all who held under them should have notice of tbe fact that they held their mortgage on said tract of land (42% acres) themselves as a second lien. Tbe said deed of trust to J. C. Kittrell, trustee, bad been on record almost a year when tbe deed of trust to E. T. Hicks was executed, and tbe deed of trust to Hicks shows that Henry Allen intended to convey *78 to E. T. Hicks,. trustee, said 42% acres, for it recites that it was “subject to a prior mortgage to Mrs. Stainbaek.” In Hinton v. Leigh, 102 N. C., 28, it was held that suck an express second mortgage would be subject to the first mortgage, even though registered first. This case was not overruled by Blacknall v. Hancock, 182 N. C., 369, but was cited with approval therein to the statement of the ground why it did not apply. In the case now before the Court the second deed of trust not only recognized the first deed of trust, but the first deed of trust was actually registered more than eleven months before the second deed of trust was written. As to the contention that the deed of trust of J. C. Kittrell, trustee, was registered on an insufficient probate and is therefore a nullity, the record shows that it was registered 21 December, 1918, and its admission to registration raises a presumption that the probate was by a proper officer and regular. Moore v. Quickle, 159 N. C., 129. No proof was offered to the contrary. The plaintiff admitted the deed of trust to Kittrell, together with the notice in the lower court, without objection as to the evidence. If there was any question of the probate of this deed of trust, it is sufficient to call attention to C. S., 3331, which provides that “Where deeds, etc., which prior to 1 January, 1919, have been ordered registered by the clerk of the Superior Court . . . and actually put upon the books in the office of the Register of Deeds as if properly proven and ordered to be registered, all such probates are hereby validated and made as good and sufficient as though such instruments had been in all respects properly proven and recorded.” The judgment of the court below is Affirmed.