Hinton v. Hicks, 156 N.C. 24 (1911)

Sept. 13, 1911 · Supreme Court of North Carolina

156 N.C. 24

C. L. HINTON v. G. W. HICKS and J. G. ETHERIDGE.

(Filed 13 September, 1911.)

Mortgages — Deeds and Conveyances — Purchase Money — Registration — Priority.

A deed made to lands by a vendor and contemporaneously executed with a mortgage back to secure the purchase price are regarded in law as concurrent acts, or tbe same act, tbe title vesting only a moment in the vendee and passing simultaneously into tbe purchase-money mortgagee. Hence, when the deed and mortgage are executed at tbe same time, and the vendee attempts to mortgage the land to a third person,- who has his. deed registered first, no priority can thereby be obtained over the purchase-money mortgagee.

Appeal from Justice, J., at tbe March Term, 1911, of OamdeN.

At conclusion of tbe evidence motion to nonsuit was sustained. Plaintiff excepted and appealed.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

W. A. Worth for plaintiff.

W. A. Halstead for defendants.

BeowN, J.

Tbe plaintiff’s evidence tends to prove these facts: In November, 1907, D. E. Williams and W. T. Stafford agreed to sell to G-. W. Hicks tbe tract of land described in tbe pleadings; a deed was prepared by Williams and Stafford for tbe purpose of conveying to Hicks the said lands, and tbe mortgage to secure tbe purchase price was also- prepared. Both instruments were dated 8 November, 1907. Tbe evidence shows that Stafford was out of tbe State at tbe time tbe contract to sell was made, and Williams held tbe deed until Stafford’s return, when on 2 December, 1907, they both signed and acknowledged tbe deed, and Hicks, baying previously acknowledged tbe mortgage for tbe purchase money, delivered tbe mortgage and note to Williams, wbo, on tbe same day of acknowledgment, to wit, 2 December, 1907, placed tbe deed and mortgage in an envelope and mailed tbem together to tbe register of deeds for registration. Tbe mortgage given by Hicks was for tbe purpose of securing tbe purchase money of tbe lands.

On 19 November, 1907, Gr. W. Hicks executed and delivered to Willie Hicks a mortgage wherein be attempted to convey tbe lands contracted to be conveyed to him by Williams and Stafford, to secure tbe payment of $300 alleged to be due Willie Hicks. This latter mortgage was recorded on 23 November, 1907, before Gr. W. Hicks bad acquired any title whatever in tbe lands.

Hicks failing to pay tbe note-given to Williams and Stafford to secure tbe purchase price, these mortgagees made sale and conveyed tbe property to tbe plaintiff in this action. Willie Hicks also foreclosed under bis mortgage because of tbe nonpayment of tbe indebtedness therein mentioned, and made deed, as mortgagee, to tbe defendant Etheridge.

Under this evidence bis Honor ruled that plaintiff could not recover, presumably on tbe ground that tbe mortgage to Williams and Stafford to secure tbe purchase money was recorded after tbe mortgage given by Gr. W. Hicks to Willie Hicks, and that therefore tbe latter took precedence.

In this there is error. Tbe question appears to be well* settled by adjudications of this Court.

Tbe execution and registration of tbe 'deed to the purchaser and of tbe mortgage for tbe purchase money were not only intended to be, but in law were, concurrent acts, and concurrent acts are one act.' Tbe title was not in Gr. W. Hicks when tbe mortgage to Willie Hicks was registered.

It vested in G. W. Hicks but for a moment, possibly, when tbe vendor’s deed was filed for registration, but passed simultaneously into tbe purchase-money mortgagees, as that mortgage was filed at tbe same moment. As said by Justice Reade in Bunting v. Jones, 78 N. C., 243 (a similar case) : “Tbe title did vest, but it did not rest in Jones; but like tbe borealis’ race, that flits ere you can point its place.”

See, also, Moring v. Dickerson, 85 N. C., 466; Belvin v. Paper Co., 123 N. C., 138.

New trial.