Scales v. Fewell, 10 N.C. 17, 3 Hawks 17 (1824)

June 1824 · Supreme Court of North Carolina

10 N.C. 17, 3 Hawks 17

Scales, v. Fewell.

1 > From Rockingham.

. V 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 2d of September, 1819, executed an instrument, by which he conveyed to the Plaintiff the property in ques-íion, in trust, to sell the same, satisfy the creditors, and 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.

Tayxor, Chief-Justice.

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 2d 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 mean time, 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.

Hall, Judge.

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 the second day of September, 1819, and by the act of 1789, ch. 315, sec. 2, it ought to have been registered within twelve months after its execution 3 otherwise the 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 j.jje ^jme jja[| e]apsed, 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 tiiat account, give way to the executions.

It is true, that an act afterwards passed, in the year 1821, ch. 10, giving a further time of two years for the registration of all grants, deeds, bills of sale, &c. 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 opinion was Judge Henbebson.