Summary
holding liens on real property create a vested right
Summary of this case from McKinney v. GoinsOpinion
June Term, 1824.
A bill of sale not registered within twelve months from the time of execution, if registered afterwards by virtue of an act giving further time for registration, shall not have relation back to defeat a levy made after the execution of the bill of sale, but a period when the law giving further time had not been enacted. Such registration, however, would be good as to all future transactions.
TRESPASS for taking a quantity of tobacco. Patterson was indebted, and, to secure his creditors, on the 2 September, 1819, executed an instrument by which he conveyed to the plaintiff the property in question, in trust to sell the same, satisfy the creditors, and (19) deliver up the sum remaining to him (Patterson). This instrument was proved and registered at November Term, 1821, of Rockingham County court.
The defendant justified as a constable under two executions issuing on judgments obtained after the date of the deed of trust, and contended below that the paper, not having been registered within fifty days, under the act of 1715, ch. 38, was void as against creditors.
The jury was instructed that this instrument was not a mortgage, so as to require registration under the act of 1715.
Verdict for plaintiff; new trial refused; judgment, and appeal.
The instrument under which the plaintiff claims title is a bill of sale, to the validity of which registration within twelve months is made essential by the act of 1715. The time had, therefore, expired on 2 September, 1820; but the act of 1821 allows a further time of two years, and, supposing that allowance had been availed of, the deed would have related back to its date. But in the meantime the lien of the executions had attached upon the property, and although the doctrine of relation as between the parties may be adopted for the advancement of justice, yet it shall not do a wrong to strangers, and cannot, in this case, overreach the levies. The defendant, therefore, is entitled to a new trial.
If the deed given by Patterson to Scales does not fall within the laws regulating the registration of mortgage deeds, it falls within the operation of another equally fatal to it. It bears date 2 September, 1819, and by the act of 1789, ch. 315, sec. 2, it ought to have been registered within twelve months after its execution; otherwise the (20) act declares it to be void and of no force whatsoever. It was not registered until November, 1821, and at that time there was no law giving further time in cases where the time had elapsed within which deeds ought to have been registered. The last law which had passed was in 1818, ch. 967. That law gave a further time of two years, but its provisions were inoperative when the deed in question was registered. The deed must, therefore, on that account give way to executions.
It is true that an act afterwards passed, in the year 1821, chapter 10, giving a further time of two years for the registration of all grants, deeds, bills of sale, etc. It is also true, I think, that that act comprehended and validated the registration of the deed in question as to all future transactions; yet I do not think, that it divested rights under the execution which had vested before that time. I therefore think the rule for a new trial should be made absolute.
And of this opniion [opinion] was Judge HENDERSON.
Cited: Jones v. Sasser, 14 N.C. 379; Hill v. Jackson, 31 N.C. 336; Tooley v. Lucas, 48 N.C. 148; Isler v. Foy, 66 N.C. 551; McCall v. Wilson, 101, 601; Spivey v. Rose, 120 N.C. 165; Dew v. Pyke, 145 N.C. 307.
(21)