Triplett v. Witherspoon, 74 N.C. 475 (1876)

Jan. 1876 · Supreme Court of North Carolina

74 N.C. 475

L. D. TRIPLETT and wife v. W. P. WITHERSPOON and others.

A deed cannot be used to support a title until the same is proved and' registered; and if a deed be lost, which has never been proved- and registered, no legal title vests in the grantee.

Equity will not interfere to enforce a contract founded in fraud; cer* tainly not against a purchaser for value, but will leave the parties to, their legal rights.

{Hiatt v. Wade, 8 Ired. 340; Triplett v. Wiihenpoon, 70 N. C. Rep. 589 j Wi'son v. Sparlcs, 13 N. C. Rep. 208; and Hogan v. Strayhorn, 65 N. C. Rep. 279, cited and approved.)

Civil Action-, in the nature of Ljcctment, tried before Furohes, J., at Fall Term, 1875, of the Superior Court of Caldwell county.

The case was before this court at January, 1874, and the-facts are fully reported in 70 N. C. Rep., 589.

There was a verdict and judgment in favor of the plaintiffs, ■and the defendants appealed.

O. N. Folk., for the appellants.

li. F. Armfield and Johnstone Jones, contra.

Reade, J.

If the plaintiffs’ deed had not been lost, and had been registered, their title would have been perfect; for although their deed was fraudulent, as against creditors, and although Witherspoon, the defendants’ intestate, was a purchaser for value, yet, as he purchased with knowledge of the fraudulent conveyance to the plaintiffs, he is bound by it. And this is under our statute of 1840, altering 27th Elizabeth. Hiatt v. Wade, 8 Ired., 340; Triplett v. Witherspoon, 70 N. C. Rep., 589.

But as the plaintiffs’ deed is lost, and has not been registered, the legal title has not vested in them. Bat. Rev., chap. 35, sec. 1. Wilson v. Sparks, 72 N. C. Rep., 208; Hogan v. Strayhorn. 65 N. C. Rep., 279.

One of two things is necessary to be done before the legal title' can vest in the plaintiffs: set up the lost deed and register a copy, or declare the defendants trustees for them, and compel a conveyance of the legal title. This involves the aid ■ of a Court of Equity. Equity will not interfere to set up any transaction founded in fraud ; certainly not against a purchaser for value, but will leave the parties to their legal rights..

There is error. This will be certified.

Pee CueiaM. Judgment accordingly.