#### JOHN L. ROPER LUMBER COMPANY v. SAM HUDSON, E. T. BENDER et al.

(Filed 29 September, 1910.)

1. Foreign Wills — Registration—Certificates—Sufficiency.

In this case the record and certification by the Orphan’s Court, of Baltimore, having jurisdiction to admit wills and testaments to probate, is sufficient under Revisal, 3135, and it will be admitted to probate and registration in this State, though the pages of the manuscript exemplified copy are not orderly arranged.

2. Mortgagor and Mortgagee — Cancellation of Record — Estoppel.

A mortgage deed passes the title to the lands mortgaged which is defeasible by the subsequent performance of the conditions of the mortgage, and the entry of satisfaction on the margin of the page of its registration, by the proper person, is conclusive of the fact of the discharge of the mortgage and its satisfaction as to strangers to the mortgage.

3. Same — Estoppel by Deed — Heirs at Law — Evidence.

In an action of trespass the plaintiff and defendant claimed title through one I-I., the plaintiff through mesne conveyances, and the defendants as widow, and son and heir at law. The plaintiff introduced a mortgage deed from one R. to said H. reciting that it was of a tract of land deeded by said H. to him, the mortgagor; and evidence that thereafter, for several years R. was in actual possession and then conveyed it to D., in plaintiff’s chain of title, and a few days thereafter I-I. made an entry on the margin of the page whereon the mortgage was recorded reciting the cancellation of the mortgage by the mortgagor’s giving a deed to said D., and that thereafter I-I. recognized the title *97of D. Held, evidence as tending to show that H. had sold and conveyed the locus in quo to B., received a mortgage to secure the purchase price, which he had cancelled on the margin of the registration book upon satisfaction from the proceeds of the sale by B. to D., the entry of satisfaction of record being conclusive on defendants claiming as widow and heir-at-law of H.

Appeal from Peebles, J., at tbe Spring Term, 1910, of JoNes..

Tbe issues, witb tbe responses of tbe jury, were as follows:

1. Is tbe plaintiff tbe owner of tbe lands described in the-complaint ? Ans. Yes.

2. Did tbe defendant, E. T. Bender, trespass on said lands? Ans. Yes.

3. What damages is plaintiff entitled to recover'of tbe defendant, E. T. Bender? Ans. $23.53%.

Tbe defendant, Sam Hudson, died pending tbe action and before trial, and bis widow and son, bis only beir-at-law, were made parties. It was admitted tbat tbe trespasses charged, against Bender were committed by bim as agent of Sam Hudson. In deraigning title, tbe plaintiff offered a paper purporting to be tbe last will and testament of W. T. Dixon, wbo died • domiciled in Baltimore, Md., where bis will was admitted to probate by tbe decree of tbe Orphan’s Court of tbat city; it was-attested by three witnesses, and tbe proof of “its execution was taken by tbe register of wills of tbat court, in a form substantially similar to tbe method prescribed by tbe statutes of this State. An exemplied copy of tbe will and probate was offered for probate in Jones County, but it was improperly done. Tbe will was probated in Baltimore on 25 August, 1904, and filed in tbe clerk’s office of Jones County 18 November, 1908. When this will, as recorded in Book of Wills of Jones County, was offered in evidence, upon objection by defendants, bis Honor permitted tbe clerk nunc pro.tunc to order its probate in proper form, and it was received over defendant’s objection. Tbe plaintiff also offered a mortgage deed duly recorded in Jones County, dated 4 October, 1883, by Eandolf Harris and wife to Samuel Hudson, conveying tbe land in controversy to secure an indebtedness evidenced by notes aggregating seven hupdred dollars. After *98describing the land, the mortgage contained this language: “It being all of the Thomas Hall tract of land deeded to me in a deed made to me this day by S. Hudson.” The plaintiff proved and offered the following writing on the margin of the book of registration of the mortgage: “This mortgage is discharged by the mortgagor giving a deed to W. T. Dixon & Bro., the present owners of the mortgage and notes described therein. 6 May, 1889. Samuel Hudson. Witness, J. A. Smith, Eeg.”

The deed from Eandolf Harris to W. T. Dixon & Bro. was offered in evidence, dated 19 April, 1889, and was registered on 21 May, 1889. The plaintiff offered declarations of Samuel Hudson, tending to show a recognition of Dixon’s title, which were admitted over defendant’s objection. No deed from Samuel Hudson was offered in evidence. The defendants offered evidence of deeds antedating any of the deeds offered by plaintiff, placing the title in Samuel Hudson, the last one dated 19 March, 1871. The plaintiff offered evidence tending to show possession by Harris from the date of his purchase to his sale to Dixon, and then by tenants of Dixon to his death, and by other mesne holders of the title to the plaintiff and its possession up to the bringing of this action. The acts constituting the alleged trespass were admitted. The defendant offered evidence to show that Hudson was indebted to Dixon and transferred notes sufficient to secure his indebtedness, and that the indebtedness was paid by the proceeds of the sale of lumber cut from the land. The evidence was excluded, and defendants excepted.. Judgment was rendered upon the verdict for plaintiff, but the right of dower of the widow of Samuel Hudson was preserved. The defendants excepted and appealed.

Moore <& Dunn and Lofkin, Parser & Dawson for plaintiff.

Simmons, Ward & Allen, Thos. D. Whrren and P. M. Pear-sall for defendant.

Manning, J.,

after stating the case. One of the exceptions seriously argued before us was to the admission in evidence of the will of W. T. Dixon. We have carefully examined the record and certification of its probate in the Orphan’s Court of Baltimore, the court having jurisdiction to admit wills and test*99aments to probate, and tbongb tbe pages of tbe manuscript exemplified copy are not orderly arranged, yet an examination discloses every fact required by sec. 3133, Eevisal, to entitle tbe will to be admitted to probate and record in tbis State. Roscoe v. Lumber Co., 124 N. C., 42. Tbe older decisions, as Drake v. Merrill, 47 N. C., 368, do not apply, for tbe reason tbat tbe statutes are not tbe same. Tbe will was executed according to tbe laws of tbis State, and tbe probate substantially made according to our form, and tbat fact appears.in tbe certified probate or exemplification of the will. We cannot sustain tbis exception. Tbe plaintiff, admitting tbe title to have been in Samuel Hudson and producing no deed from him, offered evidence which it contends amounts to an estoppel upon bis beirs-at-law and bis agent, who claim title under Samuel Hudson. Tbe other defendant is tbe widow of Hudson, who claims no title to tbe fee in tbe land, but who is entitled to her dower therein. Tbe question presented by these exceptions is, do tbe facts proven, taken together or singly, amount to an estoppel. These facts are tbat Samuel Hudson took a mortgage from Eandolf Harris, in which was tbe recital: “It being all of tbe Thomas Hall tract of land deeded to me in a deed made to me tbis day by S. Hudson;” and tbat thereafter, for several years, said Harris was in tbe actual possession of said land; tbat be conveyed tbe land to Dixon for tbe consideration of $700, on 19 April, 1889, and in a few days thereafter — on 6 May, 1889 — the said Samuel Hudson made tbe following entry on tbe record of tbe registration of tbe mortgage : “Tbis mortgage is discharged by tbe mortgagor giving a deed to W. T. Dixon & Bro. tbe present owners of tbe mortgage and notes described therein;” and after tbat time tbe evidence tended to show tbat Hudson recognized tbe title to be in Dixon. Tbe mortgage by Harris to Hudson was a conveyance to him of tbe legal title. “In some of tbe States a mortgage is held by statutory regulation or judicial construction to be simply a lien, leaving tbe legal estate in tbe mortgagor. In North Carolina and many other States, tbe common law prevails, and tbe mortgage deed passes tbe legal title at once, defeasible by subsequent performance of its conditions.” Hinson v. Smith, 118 N. C., 503; Williams v. Teachey, 85 N. C., 402; Modlin v. Ins. Co., 151 *100 N. C., 35, and cases cited. And this is true notwithstanding the statute bas prescribed simple methods of acknowledgment of satisfaction which restores the legal title in the mortgagor, other than by deeds of defeasance. In Smith v. Fuller, 152 N. C., 9, it is held by this Court that the entry of satisfaction on the margin of its registration, by the proper person, is conclusive of the fact of the discharge of the mortgage and its satisfaction as to strangers to the mortgage. In Fort v. Allen, 110 N. C., 183, this Court, in discussing estoppels by recitals in deeds, quotes with approval the following language of Henderson, C. J., in Brinegar v. Chaffin, 14 N. C., 108: “Recitals in a deed are estop-pels when they are the essence of the contract; that is, where, unless the facts recited exist, the contract, it is presumed, would not have been made.” It is inconceivable, unless it were true, that Hudson would have accepted a deed from Harris for land claimed by him, Hudson, containing a recital that he, Hudson, had conveyed the same land on the same day to Harris, and accepted it as security for $700 — evidently the whole or a part of the purchase price. It is evident that the conveyance from Hudson to Harris was the basis of the contract, and without such a conveyance, it is fair to assume the mortgage deed would not have been made. “Such, we think, is the necessary inference to be drawn from the recital in the deed.” This inference is made conclusive by the fair interpretation of the entry of satisfaction of the mortgage deed. From that, it is evident that Hudson had previously assigned the notes secured by the mortgage to Dixon, and recognized the discharge of those notes and the satisfaction of the condition of the mortgage by the deed of conveyance from Harris to Dixon. Harris settled the notes by making a deed to the land, and Hudson was satisfied. Raby v. Reeves, 112 N. C., 688, 2 Herman on Estoppel and Res Adjudicata, secs. 636, 917. In 2 Herman on Estoppel, sec. 926, the principle is thus stated: “Where a person takes from another a mortgage of lands, the record title, which is in himself at the time such mortgage is executed, and in good faith assigns such mortgage, and it is foreclosed, neither such mortgagee nor his representatives or privies can set up such prior title in him to defeat the mortgage.” Rogers v. Cross, 3 Chand., 34; Carver v. Jackson, *101 4 Pet., 1 (pp. 83-88). In tbis action, Samuel Hudson was the original defendant; he died pending the suit and his widow and only heir-at-law were made parties, they claim as privies to the title of Samuel Hudson — not by any adverse or paramount title. And we think it is clear, from the authorities cited, they are estopped — as Samuel Hudson was estopped — by the recitals in the deed, by the entry on the record of satisfaction of the mortgage deed as a recognition of Harris’ title and his conveyance to Dixon & Bro. of the land. The right of the widow of Samuel Hudson to dower is preserved to her in the judgment of his Honor. Having carefully examined the other exceptions taken at the trial, we do not think they can be sustained. Finding no reversible error, the judgment is affirmed.

No error.