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FINCH v. STRICKLAND.
acres, but obtained an order for the sale of all the realty, and a consent order was made by which 65 acres were set apart to the widow in lieu of dower, and all the realty subject to this reservation was sold and purchased by the plaintiff, and the sale was confirmed.
The plaintiff began this action 14 May, 1900, to recover of A. S. Strickland 992 acres specifically described by metes and bounds, which was the tract devised to him by the will of Allison Strickland. Said A. S. Strickland then moved in the original proceeding, in which the land had been sold, to invalidate and set aside the decree which was the foundation of the plaintiff's title. That proceeding came before us, Strickland v. Strickland, 129 N. C., 84, when this court held that the original proceeding was irregular and that the judgment should be set aside in toto. Pending that appeal, the plaintiff obtained leave to amend his complaint and make the widow a party to this action, and the defendant excepted. At November term, 1901, of the court below, judgment was entered in the original cause that the plaintiff surrender possession of all the lands to Mary J. Strickland the life tenant. The appeal of the plaintiff from that judgment was dismissed for insufficiency of transcript on appeal caused by disobedience of the directions and order of the judge who had settled the case on appeal. Finch v. Strickland, 130 N. C., 44.
At August term, 1901, of the court below, the plaintiff again obtained leave to amend the complaint and summons by which all the devisees and heirs at law of Allison Strickland were made parties, and relief was asked to subject all the lands of the testator to the payment of the court costs, lawyers and commissioners' fees incurred in the above proceedings, including allowances to the guardian ad litem, payments to auctioneers and taxes, aggregating about $600.00, and, in addition for betterments placed on the property by
FINCH V. STRICKLAND.
the plaintiff. The defendants excepted and appealed, and this presents the sole question before us.
A simple action of ejectment against one person for 99 and 1% acres cannot thus be expanded into an equitable proceeding against 21 persons to decree a lien on 426 acres, as above set forth. This is such a complete and radical alteration in the whole scope and nature of the action that the utmost liberality of amendment, which is recognized by The Code of Civil Procedure, cannot be stretched to cover it. Mizzell v. Ruffin, 118 N. C., 69, and other cases cited in Clark's Code (3 Ed.) at pp. 300, 301.
Besides, as to betterments they are only allowed by The Code, Sec. 473, to defendants against whom judgment has been rendered in an action of ejectment. At the utmost, the plaintiff would only be entitled, when sued for rents and profits, to set up such betterments as an equitable counterclaim upon showing that he was in possession under a title which he believed to be good. Thurber v. LaRoque, 105 N. C., 301. There is no equity to charge betterments as a lien on the land in such a case as this, for the law does not imply any contract on the part of the defendants to pay for improvements put upon land sold under an invalid decree, obtained and procured by the purchaser. If by reason of the above transactions, the plaintiff's original debt against Allison be not barred by limitation, it is still open to him to subject the testator's realty to payment thereof.
If the only error was that the above amendments were improperly granted, the case might go back that they might be struck out, but as it affirmatively appears in the record that the plaintiff's original basis of action to recover the 9912 acre tract has been taken away by the decree of November term, 1901, below, let it be entered here.
COLLINS v. DAVIS.
COLLINS v. DAVIS.
(Filed March 10, 1903.)
The transfer of a note and mortgage by a mortgagee does not divest him of the legal title.
2. DEEDS Mortgages—Registration-Acts 1885, Ch. 147-The Code, Secs. 1254 and 1245.
The proviso in Acts 1885, Ch. 147. Sec. 1, making actual possession notice to subsequent purchasers, applies only to deeds executed prior to Dec. 1, 1885.
3. DEEDS Registration-Notice-Mortgages.
No notice, however full or formal, will supply the want of registration of a deed.
4. COLOR OF TITLE-Deeds-Registration.
An unregistered deed is not color of title.
5. MORTGAGES-Notice-Vendor and Purchaser.
A person who purchases land with notice of an uncancelled mortgage thereon is charged with notice of all rights of the mortgagee and those claiming under him.
The substitution of one note and mortgage for another will not constitute payment of the original note and mortgage unless they are surrendered to the mortgagor.
ACTION by Mariah Collins, administratrix of J. T. Collins, against John C. Davis and others, heard by Judge M. H. Justice and a jury, at January Term, 1902, of the Superior Court of Franklin county. From a judgment for the plaintiff the defendant Davis appealed.
Battle & Mordecai, for the plaintiff.
F. S. Spruill, and W. II. Yarborough, Jr., for the defend
CONNOR, J. This is an action brought by the plaintiff, administratrix cum testamento annexo of J. T. Collins, deceased, for the purpose of foreclosing a mortgage executed
COLLINS v. DAVIS.
by defendant Davis to her intestate. For the purpose of adjusting the rights and equities of all parties in interest, B. H. Tyson is joined as a party plaintiff and D. S. Leonard and D. T. Hollingsworth as parties defendant. terial facts as gathered from the pleadings and findings of the jury, upon issues submitted to them, are as follows:
D. S. Leonard being the owner of a share of a tract of land situated in Franklin county, for the purpose of securing the payment of a note of $217.50, executed to the plaintiff B. H. Tyson a mortgage on the same bearing date March 1, 1881. The note was due and payable Nov. 1, 1881. The mortgage was duly recorded. On January 1, 1888 the said Tyson, for value, transferred and assigned the note and mortgage to J. T. Collins. On March 3, 1891, there was due on said note the sum of $321.15 and on said day the said Leonard, Davis and Collins entered into an agreement, whereby the said Davis assumed the payment of said note, and the said Leonard executed a deed to him for a portion of said land, containing 56 acres. Davis executing to Collins a note for $321.15 and
a mortgage on said land to secure its payment. Said deed was never recorded. The said mortgage was duly recorded. Collins did not cancel the Tyson mortgage on the record, nor does it appear that he actually surrendered the note for $217.15. Davis entered into possession of said land after the execution of said deed and has remained thereon until the date of the summons herein. On November 7, 1900, Leonard executed a deed to the defendant, D. T. Hollingsworth for the said 56 acres of land, for and in consideration of $420, and said deed was duly recorded. J. T. Collins died during the month of February, 1899, leaving a last will but naming no executor, and the plaintiff Mariah Collins was duly appointed administratrix cum testamento annexo. The plaintiff alleged that after said agreement, Davis made several payments on said note, the last being made on May 8, 1894.
COLLINS v. DAVIS.
The defendant Davis admitted the payments. The defendants, Leonard and Hollingsworth, averred that they had not sufficient knowledge or information to enable them to form a belief as to the said alleged payments.
The foregoing facts were found by the jury upon issues submitted to them, either by consent or under the instructions of the court.
There was no evidence that Hollingsworth had any other notice of the mortgages and deeds above set forth, except such as was afforded by the records. His Honor held that Hollingsworth was a purchaser "for value but with notice."
The sixth issue submitted to the jury was as follows: "Is the plaintiff's cause of action as to Hollingsworth, barred by the Statute of Limitations? Answered under the instruction of the court, no." To this instruction the defendant Hollingsworth excepted. The defendant Hollingsworth, upon the verdict as found, moved for a judgment of non-suit against the plaintiff. The motion was denied and the defendant excepted. The court rendered judgment for the plaintiff directing a sale of the land, etc., and Hollingsworth appealed.
The legal title to the land was conveyed to and continued in B. H. Tyson by virtue of the mortgage of February 15, 1881. The transfer of the note and mortgage to Collins did not divest him of the title. Williams v. Teachey, 85 N. C., 402; Dameron v. Eskridge, 104 N. C., 621. He held the legal title in trust to secure the payment of the note in the hands of Collins, with the equity of redemption in Leonard. The effect of the agreement between Davis, Leonard and Collins, and the execution of the deed to Davis, was, as between the parties, to transfer or convey the equity of redemption to Davis, who assumed the payment of the Tyson note. It is admitted that the Tyson mortgage has not been cancelled, and there is no evidence that the note was in fact