{
  "id": 8651227,
  "name": "J. C. COWEN v. T. J. WITHROW et al.",
  "name_abbreviation": "Cowen v. Withrow",
  "decision_date": "1891-09",
  "docket_number": "",
  "first_page": "636",
  "last_page": "640",
  "citations": [
    {
      "type": "official",
      "cite": "109 N.C. 636"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 365,
    "char_count": 9193,
    "ocr_confidence": 0.539,
    "pagerank": {
      "raw": 2.0218111451671132e-07,
      "percentile": 0.7455170166291548
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    "sha256": "087a5b21eabb5f0989ac79c68cd55f4766e6a4010f6757a8a3aa66085719f1b2",
    "simhash": "1:224b2451517a5af7",
    "word_count": 1591
  },
  "last_updated": "2023-07-14T20:47:39.876308+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "J. C. COWEN v. T. J. WITHROW et al."
    ],
    "opinions": [
      {
        "text": "MekrimoN, C. J.:\nWe are of opinion that the Court erred in refusing to give the jury the special instructions above set forth, as requested by the plaintiff, or the substance of them. The purpose of the statute (Acts 1885, ch. 147) is to require all conveyances of land to be registered as therein prescribed, and to render the same ineffectual without registration.' The first clause thereof, material here, provides: \u201cNo conveyance of land, or contract to convey or lease of land for more than three years, shall be valid to pass any property as against creditors or purchasers for a valuable consideration from the donor, bargainor or lessor; but from -the registration thereof in the county where the land lieth.\u201d It seems to us'clear that this case comes directly within the letter and purpose of .this provision, unless it comes within the meaning of the proviso presently to be considered. The plaintiff was a purchaser of the land for a valuable consideration, and his deed was registered long before that under which the defendant claims. \u2022 The title of the defendant husband had passed to the plaintiff before the feme defendant\u2019s deed became operative and effectual as against creditors or purchasers for value.\nThe statute cited, however, contains a proviso as to the clause above recited, which provides as follows: \u201cProvided further, that no purchase from any such donor, bargainor or lessor shall avail -to pass title as against any unregistered deed executed prior to December ], 1885, when the person or persons claiming or holding under such unregistered deed shall be in the actual possession and enjoyment of such land,\u201d etc.\nIt is insisted that the feme defendant\u2019s deed comes within the saving purpose of this proviso. We do not think so. The saving extends only to cases where the purchase is \u201c from any donor, bargainor or lessor.\u201d The plaintiff did not purchase from a donor, bargainor or lessor in the sense of this proviso. He purchased at the Sheriff\u2019s sale made under and in pursuance of executions to enforce and satisfy docketed judgments against the husband defendant, which were liens upon the land. The Sheriff was not a donor or bargainor or lessor, he was the agent of the law to sell the property and pass the title of the defendant in the executions to the purchaser.\nThere is a substantial reason why the saving does not extend to purchasers at Sheriff\u2019s sale. It is founded upon the \u201c actual possession and enjoyment of such land \u201d by the person claiming under the unregistered deed, \u201c either in person or by his, her or their tenants at the time of the execution of such second deed, or when the person or persons claiming under or taking such second deed, had at the time of taking or purchasing under such deed, actual or constructive notice of such unregistered deed, or the claim of the person or persons holding or claiming thereunder.\u201d Such actual possession and enjoyment of the land is treated as notice to a donee, bargainee or lessee. It is supposed that such persons will take notice of the land and have opportunity and be interested and disposed to see and make inquiries of those in possession as to the nature of their possession, their claim and title. But at the Sheriff\u2019s sale, made not on the land but at the court-house, a place perhaps distant from it, the purchaser has no opportunity, on the day of sale, to see it and learn who is in possession and the nature of his claim and title. Here the plaintiff purchased the land at the Sheriff\u2019s sale. He may have purchased without notice, he may have purchased suddenly and without opportunity to see who was in possession thereof. It would tend to discourage such sales if purchasers at them were charged by the statute with such notice. Uninformed persons would not buy, or they would bid only nominal prices. The purpose of the law is not to discourage, but to encourage bidding at such sales. The saving clause in question does not contain this and like cases in terms, nor for the reasons stated does it do so by implication. Moreover, persons so claiming under an unregistered deed are charged with notice of docketed judgments against the donor, bargainor or lessor under whom they claim; they have constructive notice of the Sheriff\u2019s sale of land, and it is their own laches if they fail to give notice at the sale of their claim and unregistered deed. They could not, might not, ordinarily have such opportunity or information as would enable them to give notice of their deed to subsequent donees, bargainees and lessees of the same land. It is not probable that a bargainor would give notice to the holder of the unregistered deed that he had sold the land a second time to another person.\nThe defendant\u2019s deed does not, therefore, come within the saving provision of the proviso, but does come within the clause of the statute first above recited.\nError.",
        "type": "majority",
        "author": "MekrimoN, C. J.:"
      }
    ],
    "attorneys": [
      "Messrs. Justice & Justice (by brief), for plaintiff.",
      "Mr. J. A. Forney, for defendants."
    ],
    "corrections": "",
    "head_matter": "J. C. COWEN v. T. J. WITHROW et al.\nDeed \u2014 Priority from Registration under Act of 1885.\nUnder the Act of 1885, ch. 147, providing that no deed shall be effective to pass title as against subsequent purchasers but from the registration thereof, the purchaser at execution sale who registers his deed prior to a deed from the defendant in execution to his wife, which was executed before the sale, acquires the title to the land; and the wife in possession of the land conjointly with her husband at the time of sale and of execution of the Sheriff\u2019s deed to the plaintiff, is not within the saving clause of the act, as the plaintiff does not taire as purchaser from the \u201cdonor, bargainor or lessor,\u201d as against a donee in possession under an. unregistered deed, but from the Sheriff, who is the agent of the law.\nCivil action for the recovery of laud, tried before Merri-mon, J., at Pall Term, 1891, of Rutherford Superior Court.\nThe pleadings raised issues of fact that put iu question the sufficiency of the plaintiff\u2019s title. On the trial he put in evidence a deed from the Sheriff of Rutherford County to him, purporting to convey the interest and title of the husband defendant in the land. This deed was dated the 3d of December, 1888, and registered on the eleventh day of the same month. The plaintiff further putin evidence executions authorizing a sale of the land by the Sheriff founded upon judgments docketed in that county before registration of the deed under which the defendant wife claims title.\nThe defendant wife put in evidence a deed from her said husband, dated August 5th, 1882, purporting to convey the same land to her, which deed -was registered on the 25th of November, 1889. She also produced evidence tending to show that she was in possession of the land, living with her husband.\nThe plaintiff\u2019s counsel hsked the Court to charge the jury that, under the Act of 1885, ch. 147, p. 233, providing that no conveyance of land, or contract to convey or lease of land, for .more than three years, shall be valid to pass any property as against creditors or purchasers for a valuable consideration from the donor, bargainor or lessor; but from the registration thereof within the county where the land lieth,\u201d the plaintiff was entitled to recover the land mentioned in the pleadings.\nThe Court refused to charge the jury as prayed, and the plaintiff excepted.\nThe plaintiff\u2019s counsel asked the Court to charge the jury that the second saving clause of the Act of 1885, chapter 147, providing \u201cthat no purchase from any such donor, bargainor or lessor, shall avail to pass title as against any unregistered deed executed prior to the 1st day of December, 1885, when the person or persons holding or claiming under such unregistered deed shall be in the actual possession and enjoyment of such land, either in person, or by his, her or their tenants at the time of the execution of such second deed,\u201d etc., did not apply to judgment creditors, and those claiming under the Sheriff\u2019s deed; but only to purchasers from the bargainor, grantor or lessor.\nHis Honor refused to give the instruction, and the plaintiff excepted.\nThe plaintiff asked the Court to charge the jury, that if they believed P. J. Withrow was in possession of the land in December, 1888, and was living with her husband, and had been living with him prior to and at the time of the execution of the deed in 1882, that this was not the kind of possession contemplated in the second saving clause of \u00a7 1, ch. 147, Act 1885; and further, that the possession of' the wife was the possession of the husband, and as the defendant\" P. J. Withrow claims title by deed from defendant T. J. Withrow, registered on November 27th, 1889, andtheplain-tiff claims title by Sheriff\u2019s deed for the interest of T. J. Withrow in said land, registered on ihe 11th day of December, 1888, the plaintiff is entitled to recover.\nThe Court refused to give this instruction, and the plaintiff excepted.\nThere was evidence tending to show the actual possession of the land by the feme defendant, but there was no exception to the instructions of the Court as to her possession. After verdict and judgment for the defendant, the plaintiff appealed to this Court.\nMessrs. Justice & Justice (by brief), for plaintiff.\nMr. J. A. Forney, for defendants."
  },
  "file_name": "0636-01",
  "first_page_order": 670,
  "last_page_order": 674
}