{ "id": 8550884, "name": "WESLEY S. FLEMING v. FLORA O. MANN, REGISTER OF DEEDS OF GRANVILLE COUNTY, NORTH CAROLINA, AND MARY G. CHACE", "name_abbreviation": "Fleming v. Mann", "decision_date": "1974-11-06", "docket_number": "No. 749SC692", "first_page": "418", "last_page": "423", "citations": [ { "type": "official", "cite": "23 N.C. App. 418" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "47 S.E. 2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "229 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12164637 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/229/0062-01" ] }, { "cite": "185 S.E. 2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569879 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0089-01" ] } ], "analysis": { "cardinality": 600, "char_count": 13089, "ocr_confidence": 0.596, "pagerank": { "raw": 1.0309246706934123e-07, "percentile": 0.5480431484615512 }, "sha256": "ae55633db9dc164959a49905c9da6c7cf8d8739fc877ff9d785a4dbc92fa5b21", "simhash": "1:f3a6c0ebe0dfdb3e", "word_count": 2143 }, "last_updated": "2023-07-14T21:32:39.683180+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Vaughn concur." ], "parties": [ "WESLEY S. FLEMING v. FLORA O. MANN, REGISTER OF DEEDS OF GRANVILLE COUNTY, NORTH CAROLINA, AND MARY G. CHACE" ], "opinions": [ { "text": "PARKER, Judge.\nPlaintiff has prayed for no especial relief against defendant Chace, and the only relief prayed for against defendant Register of Deeds is for a writ of mandamus requiring her to expunge from the records in her office certain instruments recorded ther\u00e9in. The statutory authority for the special remedy of mandamus by civil action, formerly found in G.S. 1-511 et seq., was repealed effective 1 January 1970, the effective date of our new Rules of Civil Procedure. Sec. 4, Ch. 954, 1967 Session Laws. \u201cHowever, in this State, where the court exercises both legal and equitable jurisdiction, in a suit against a public official or board there is no practical difference in the results to be obtained by' the common-law remedy of mandamus and the equitable remedy of mandatory injunction.\u201d Sutton v. Figgatt, 280 N.C. 89, 185 S.E. 2d 97 (1971). Therefore, the .remedy formerly provided by the writ of mandamus is still available, albeit the terminology may have changed, and the substantive grounds for granting the remedy as developed under our former practice still control. 2 McIntosh, N. C. Practice and Procedure, 2d Ed., \u00a7 2445 (Phillips, 1970 Pocket Parts).\n\u201cThe writ of mandamus is an order from a court1 of competent jurisdiction to a board, corporation, inferior court, officer or person commanding the performance of a specified official duty imposed by law.\u201d Sutton v. Figgatt, supra. \u201cIt will lie only against a party under present legal obligation to perform the act sought to be enforced, and only at the instance of' a party having a clear legal right to demand performance, and then only when there is no other adequate remedy available.\u201d '5 Strong, N. C. Index 2d, Mandamus, \u00a7 1, p. 291. Applying these principles to the case now before us, we find clear statutory duty imposed upon the Register of Deeds to record instruments properly presented to him for recording, but we find no similar duty imposed by statute to expunge any instrument from the records in his office. Plaintiff contends that such a duty must be found in the present case because, so plaintiff argues, the documents here in question were not such as the law authorized to be recorded and therefore the Register of Deeds was duty bound to expunge them. We do not agree.\nThe principal duties of the Register of Deeds are set forth in G.S. Chap. 161, Art. 2. Section 161-14 (a) of that Article contains; the clear mandate that \u201c[t]he register of deeds shall immediately register all written instruments presented to him for registration,\u201d and there is little in other pertinent statutes to limit the all-inclusive scope of the words \u201call written instruments.\u201d G.S. 161-22 refers to \u201cinstruments of writing required or authorized to be registered\u201d and G.S. 47-14 (a) refers to \u201cany instrument, required or permitted by law to be registered,\u201d but neither statute lists what instruments these may be. The Connor Act, G.S: 47-18, and the statute relating to deeds of gift, G.S. 47-26, provide that the instruments to which they apply must be registered in order to be fully valid. In that sens\u00e9 such instruments are \u201crequired\u201d by law to be registered. Since any instrument required by law to be registered must' of necessity be included in' the category of instruments \u201cauthorized\u201d or \u201cpermitted\u201d by law to be registered, \u2022 the latter' category is much broader. G.S. 47-1, which deals with acknowledgment and probate, provides an extensive list of documents t\u00f3 which that section applies, iheluding \u201caffidavits concerning land titl\u00e9s or family history, any instruments pertaining to real property, and any and all instruments and writings of whatever nature and kind which are required or allowed by law to be registered in the office of the register of deeds.\u201d From that section, it is clear that \u201caffidavits concerning land titles or family history\u2019\u2019 and \u201cany instruments pertaining to real property\u201d are included among the documents \u201callowed by law to be registered.\u201d It m\u00e1y be legitimately argued that all of the documents involved in the present case are \u201cinstruments pertaining to real property\u201d and as such are included among those documents which are \u201callowed\u201d or \u201cauthorized\u201d or \u201cpermitted\u201d by law to be registered. However that may be, it is certain that they were not so clearly excluded from \u2022 that category that, once registered, the plaintiff had a clear legal right to require the Register of Deeds to expunge them. Absent such a clear legal right, plaintiff\u2019s action for writ of mandamus cannot be sustained.\nMoreover, we point out that it is not the function of the Register of Deeds to inquire into the substance or the legal efficacy of the documents presented to him for recording. If they are properly acknowledged and probated and if the appropriate fee is tendered, it is his duty promptly to record and index them. The purposes of our recording statutes would be ill served if it were otherwise. Should it turn out in some case that the Register of Deeds recorded a document not \u201crequired or authorized\u201d to be registered, that should be no concern of his. An unauthorized recorded document simply gives no constructive notice of its contents. Chandler v. Cameron, 229 N.C. 62, 47 S.E. 2d 528 (1948).\nSince mandamus will not lie, it remains for us to examine whether plaintiff\u2019s complaint can be sustained on any other basis. As previously noted, the only relief which plaintiff prayed for was issuance of the writ of mandamus. However, except in case of judgment entered by default, \u201cevery final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.\u201d G.S. 1A-1, Rule 54(c). Therefore, if the allegations in plaintiff\u2019s complaint are sufficient to show that he may be entitled to any relief in this action, even though not that which he requested, defendants\u2019 motion to dismiss should not have been granted. We have carefully examined plaintiff\u2019s complaint and find no grounds for granting relief. Although plaintiff alleged in his complaint that the three \u201cletters\u201d which defendant Chace had written and filed for recording had \u201ccreated a cloud on the title of the plaintiff\u2019s said lands,\u201d none of the instruments of which planitiff complains question the validity of or impose any encumbrances on his title. At most they-express defendant Chace\u2019s question as to the correct location of the boundary line and express her desire to have the matter settled by a survey. If plaintiff obtained the full relief which he seeks, nothing would be settled thereby, as the correct location of the boundary line would remain in dispute. Plaintiff\u2019s remedy is by special proceeding under G.S., Chap. 38, not by civil action to quiet title or to expunge recorded instruments from the records.\n\u2022 Plaintiff\u2019s contention that Judge Bailey lacked authority to. grant defendants\u2019 Rule 12(b) (6) motion to dismiss because Judge McLelland had previously denied the same motion is without merit. Following Judge McLelland\u2019s ruling, additional documents were recorded and plaintiff\u2019s complaint was supplemented. Judge Bailey was not passing upon the precise question which had previously been presented to Judge McLelland.\nFinally, plaintiff contends that appellee Mann\u2019s oral motion to dismiss should have been disallowed because of her failure to state the number of the Rule of Civil Procedure under which she was moving. Both Chace and Mann were represented at the hearing on the motion by the same attorney. The name of Mann was omitted from the written motion filed 4 March 1974 to dismiss under Rule 12(b) (6). Judge Bailey found that this omission was inadvertent and allowed on oral motion Mann\u2019s name to be included in the motion to dismiss. This procedure was within the discretionary power of the trial court.\nThe judgment appealed from is\nAffirmed.\nJudges Campbell and Vaughn concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Hugh M. Currin and James E. Cross, Jr. for plaintiff appellant.", "Watkins, Edmundson & Wilkinson by William T. Watkins and C. W. Wilkinson, Jr. for defendant appellee Flora O. Mann.", "Edwards & Manson by Daniel K. Edwards for defendant appellee Mary G. Chace." ], "corrections": "", "head_matter": "WESLEY S. FLEMING v. FLORA O. MANN, REGISTER OF DEEDS OF GRANVILLE COUNTY, NORTH CAROLINA, AND MARY G. CHACE\nNo. 749SC692\n(Filed 6 November 1974)\n1. Mandamus \u00a7 1 \u2014 mandamus statutes repealed \u2014 mandatory injunction\nAlthough' the statutory authority for the special remedy of mandamus by civil action, formerly G.S. 1-511 et seq., has been repealed, the remedy formerly provided by the writ of mandamus is still available through the equitable remedy of mandatory injunction.\n2. Registers of Deeds; Registration \u00a7 1\u2014 letters and affidavit pertaining to real property \u2014 registration\nLetters addressed to plaintiff pertaining to a boundary dispute and an affidavit outlining the boundary dispute were not clearly excluded from the category of \u201cinstruments pertaining to real property\u201d which are allowed to be recorded by the register of deeds; therefore, plaintiff was not entitled to a writ of mandamus requiring 1 the register of deeds to expunge them from her records. G.S. 47-1.\n3. Registers , of Deeds\u2014 no duty to inquire into substance of documents\nIt is not the function of the register of deeds to inquire into the substance or the legal efficacy of the documents presented to him for recording; if they are properly acknowledged and probated and if the appropriate fee is tendered, it is his duty promptly to record and index them.\n4. Registration \u00a7 3\u2014 unauthorized recorded document \u2014 no constructive : notice\n; \u25a0 An unauthorized recorded document simply gives no constructive . notice of its contents.\n5. Courts \u00a7 9\u2014 dismissal denied by one judge \u2014 allowance by another judge\nIn an action for mandamus to require the register of deeds to expunge certain documents from her records, a superior court judge had authority to grant defendants\u2019 Rule 12(b)(6) motion to dismiss although another judge had denied the same motion where additional documents were recorded and plaintiff\u2019s complaint was supplemented following the initial ruling.\n.6. Rules of Civil Procedure \u00a7 12\u2014 motion to dismiss \u2014 inadvertent omission of one defendant\u2019s name \u2014 oral motion to include name\nWhere the trial court found that the name of one defendant was inadvertently omitted from a written Rule 12(b)(6) motion to dismiss, the court had the discretion to allow an oral motion that such defendant\u2019s name be included in the motion to dismiss.\nAppeal by plaintiff from Bailey, Judge, 16 April 1974 Session of Superior Court held in Granville County.\nPlaintiff and defendant Mary G. Chace share a common boundary between their respective tracts in Granville County. This action stems from a dispute over the location of that line.\nOn 26 October 1972 and 5 January 1973 Chace acknowledged and presented for recordation to the Register of Deeds of Granville County two \u201cletters,\u201d dated respectively 26 October 1972 and 2 January 1973, addressed to plaintiff. The purported purpose of the first of these was \u201cto notify\u201d plaintiff of the boundary line dispute. The second \u201cletter\u201d included Chace\u2019s interpretation of the recent history of the title to the land forming the boundary and contains a statement that it was being filed \u201cto avoid any complications or difficulties with innocent third parties.\u201d Both \u201cletters\u201d were recorded by defendant Flora 0. Mann, Register of Deeds of Granville County. A third \u201cletter,\u201d dated 18 June 1973, purportedly \u201ccancelling\u201d the 2 January 1973 letter, was also recorded.\nPlaintiff instituted this action 7 September 1973 seeking a writ of mandamus ordering Mann to expunge these documents from the records in her office. Both defendants moved to dismiss pursuant to Rule 12(b) (6). These motions were denied 3 December 1973 by Judge D. M. McLelland.\nOn 8 January 1974 two additional writings signed and acknowledged by Chace were recorded by Mann. The first purported to \u201crevoke and cancel\u201d the 26 October 1972 letter, arid the second, which was entitled \u201cAffidavit of Mary Green Chace Regarding Title Dispute Between the B. E. Green Heirs and Wesley S. Fleming as to Lines Between Their Adjoining Pieces of Real Property in Granville County,\u201d outlined a history of the boundary dispute with plaintiff. On 31 January 1974 plaintiff moved under Rule 15(d) and received permission of court to supplement his original complaint to ask for a writ of mandamus ordering Mann also to expunge these additional documents from the records.\nOn 4 March 1974 attorneys for defendant Chace filed a new motion to dismiss pursuant to Rule 12(b) (6) and subsequently the court allowed defendant Mann\u2019s oral motion to be included as a movant in this new motion to dismiss. On 4 April 1974 plaintiff moved for summary judgment pursuant to Rule 56(a).\nPlaintiff\u2019s motion for summary judgment and defendants\u2019 motion to dismiss were heard by Judge James H. Pou Bailey. Judge Bailey denied plaintiff\u2019s motion, allowed defendants\u2019 motion, and by judgment dated 16 April 1974 dismissed plaintiff\u2019s action. From this judgment, plaintiff appealed.\nHugh M. Currin and James E. Cross, Jr. for plaintiff appellant.\nWatkins, Edmundson & Wilkinson by William T. Watkins and C. W. Wilkinson, Jr. for defendant appellee Flora O. Mann.\nEdwards & Manson by Daniel K. Edwards for defendant appellee Mary G. Chace." }, "file_name": "0418-01", "first_page_order": 446, "last_page_order": 451 }