Cutts v. McGhee, 221 N.C. 465 (1942)

June 5, 1942 · Supreme Court of North Carolina

221 N.C. 465

ZULA McGHEE CUTTS and T. W. CUTTS, Her Husband, v. EMMA P. McGHEE and VIOLET H. McGHEE.

(Filed 5 June, 1942.)

1. Deeds § 6—

The owner of lands executed a deed of gift thereto and delivered same to the grantee. Some three and a half years thereafter he acknowledged the deed and filed same for registration. Beld: The acknowledgment of the execution was not a re-execution of the deed, and the deed of gift not having been registered within two years of its execution is void, C. S., 3315, and may not be revived by curative act of the Legislature.

2. Statutes § 5e—

Curative acts of the Legislature cannot revive void instruments.

Appeal by plaintiffs from Stevens, J., at February Term, 1942, of GRANVILLE.

Civil action to assert title to certain real estate.

Tbe facts pertinent to tbis appeal, and set forth in an agreed statement of facts, are substantially as follows: On 28 July, 1900, Marion J. McGbee executed a deed of gift, conveying to bis wife, Emma P. McGbee, and ber beirs, certain lands to be beld by ber during ber marriage to bim and as long as sbe remained a widow. Upon tbe death or marriage of tbe said Emma P. McGbee, said lands should go to ber children. Tbis deed was delivered to tbe grantee and beld by ber until 12 January, 1904, on which date, at tbe request of tbe grantor, tbe deed was delivered to bim and be acknowledged tbe execution thereof before . J. T. Britt, C. S. C., of Granville County, N. C., and filed tbe same for registration. After tbe deed was duly recorded, it was returned to Emma P. McGbee.

On 6 September, 1938, Marion J. McGbee and wife, Emma P. Mc-Gbee, executed a warranty deed to Yiolet H. McGbee, in ber own right and as trustee. Tbe grantors specifically reserved a life estate for and during tbe term of their joint lives and for tbe term of tbe natural life of tbe survivor. A two-tbirds interest in tbe lands involved was conveyed to Yiolet H. McGbee in fee simple and one-third to ber in trust for tbe benefit of Zula McGbee Cutts, née Zula Elizabeth McGbee. Tbe deed recites tbe fact that tbe former deed was without consideration and not recorded until nearly four years after its execution. The latter deed was duly acknowledged and filed for registration on 9 September, 193S, in the office of the register of deeds for Granville County, N. C.

Jury trial was waived and his Honor, upon the facts submitted, was requested to render judgment. His Honor held that the deed dated 28 July, 1900, filed for registration 12 January, 1904, is a deed of gift and void because the same was not recorded within two years after the making thereof. His Honor further held that the deed dated 6 September, 1938, from Marion J. McGhee and wife, Emma P. McGhee, to Yiolet H. McGhee, filed for registration as above set out, vests in Yiolet H. McGhee such title in the lands described in said deed as said deed purports and undertakes to convey. Judgment was entered accordingly. Plaintiffs except to the judgment and appeal to the Supreme Court and assign error.

Parham, & Taylor for plaintiffs.

Royster <& Royster for defendants.

DeNNY, J.

The deed of gift executed 28 July, 1900, was not registered within two years from its execution, as required by Consolidated Statutes of North Carolina, sec. 3315, and was void at the time of its registration, 12 January, 1904. Curative acts of the Legislature do not revive void instruments. Booth v. Hairston, 193 N. C., 278, 136 S. E., 879; S. c., 195 N. C., 8, 141 S. E., 480; Reeves v. Miller, 209 N. C., 362, 183 S. E., 294; Allen v. Allen, 209 N. C., 744, 184 S. E., 485.

Acknowledgment of the execution of an instrument is not a re-execution of it.

His Honor’s ruling in the court below was correct, and the judgment is

Affirmed.