DULIN
v.
WILLIAMS et al.
No. 668.
Supreme Court of North Carolina.
December 16, 1953.*217 Howerton & Howerton, Greensboro, for defendants J. E. Williams and wife, Desmonia Williams, appellants.
Claude Hicks, Mockville, for the plaintiff-appellee.
ERVIN, Justice.
The legal sufficiency of the complaint is not challenged by any of the parties. We nevertheless confront this reality at the threshold of the appeal: When the pleadings of the plaintiff are reduced to their factual averments, they do not state facts sufficient to constitute a cause of action in favor of the plaintiff against any of the defendants.
The plaintiff undertakes to plead for relief in the alternative. He prays primarily for a judgment against the male defendant and his wife establishing the validity of his claim to the timber standing on the 25 acres described in his timber deed. He prays in the alternative for a judgment against all of the defendants for money damages for a supposed breach of contract allegedly committed by the feme defendant with the concurrence of the other defendants.
When the factual allegations of the complaint and its amendment are taken at face value, they affirmatively disclose the invalidity of the plaintiff's claim to the timber. This is true for the reasons set forth below.
The Connor Act provides 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 lies". G.S. § 47-18.
The decisions applying the Connor Act establish these propositions:
1. The registration of a deed to an interest in land is essential to its validity as against a purchaser for a valuable consideration from the grantor. Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316; Eller v. Arnold, 230 N.C. 418, 53 S.E.2d 266, 267; City of Durham v. Pollard, 219 N.C. 750, 14 S.E.2d 818; Gray v. Worthington, 209 N.C. 582, 183 S.E. 731; Virginia-Carolina Joint Stock Land Bank v. Mitchell, 203 N.C. 339, 166 S.E. 69; Proffitt v. State Mutual Fire Insurance Co., 176 N.C. 680, 97 S.E. 635; Warren v. Williford, 148 N.C. 474, 62 S.E. 697.
2. Standing timber is an interest in land. Chandler v. Cameron, 229 N.C. 62, 47 S.E.2d 528, 3 A.L.R.2d 571; Winston v. Williams & McKeithan Lumber Co., 227 N.C. 339, 42 S.E.2d 218.
3. As between two purchasers for value of the same interest in land, the one whose deed is first registered acquires title. Combes v. Adams, 150 N.C. 64, 66, 63 S.E. 186.
4. Actual knowledge on the part of the grantee in a registered deed of the existence of a prior unregistered deed will not defeat his title as a purchaser for value. Eller v. Arnold, supra; Chandler v. Cameron, supra; Grimes v. Guion, 220 N.C. 676, 18 S.E.2d 170; Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197; Dorman v. Goodman, 213 N.C. 406, 196 S.E. 352; Smith v. Turnage-Winslow Co., 212 N.C. 310, 193 S.E. 685; Knowles v. Wallace, 210 N.C. 603, 188 S.E. 195; Eaton v. Doub, 190 N.C. 14, 128 S.E. 494, 40 A.L.R. 273; Moore v. Johnson, 162 N.C. 266, 78 S.E. 158; Wood v. Lewey, 153 N.C. 401, 69 S.E. 268; Smith v. Fuller, 152 N.C. 7, 67 S.E. 48; Wood v. Tinsley, 138 N.C. 507, 51 S.E. 59; Collins v. Davis, 132 N.C. 106, 43 S.E. 579; Maddox v. Arp, 114 N.C. 585, 19 S.E. 665.
*218 When the pleadings of the plaintiff are read in the light of these decisions, they show that under the Connor Act, the title to the timber standing on the 25 acres is in the male defendant and his wife, whose subsequent deed was registered before their grantor's prior deed to the plaintiff, even though the male defendant and his wife took their subsequent deed with actual knowledge of the prior deed to the plaintiff. Lanier v. John L. Roper Lumber Co., 177 N.C. 200, 98 S.E. 593.
The presiding judge evidently came to a similar conclusion on this phase of the case. A reading of his charge shows that he forsook the allegations of the complaint and its amendment, and permitted the plaintiff to prevail over the male defendant and his wife with respect to the timber standing on the 25 acres solely upon the basis of a supposed estoppel, which is pleaded nowhere save in the portion of the answer of the feme defendant designated as her second further defense and cross-action. The presiding judge utilized the second issue as a mere vehicle for the conveyance of his legal opinion that an affirmative answer to the first issue would entitle the plaintiff to the benefit of the standing timber claimed by him. For this reason, the answer of the jury to the second issue has no independent factual significance.
In permitting the plaintiff to prevail over the male defendant and his wife with respect to the standing timber in dispute upon the basis of averments appearing in the answer of the feme defendant, the presiding judge misapprehended and misapplied the doctrine that a pleading may be aided by the allegations of the adverse party. The doctrine of aider has no relevancy to this phase of the case for the very simple reason that the allegations relating to the supposed estoppel are incorporated in the answer of the feme defendant and not in the answer of the male defendant and his wife. "An affirmative allegation in the answer of one of two or more defendants of a necessary fact not alleged in the complaint or petition does not cure the omission as to the other defendants". 71 C.J.S., Pleading, § 590. See, also, in this connection this illuminating decision: Missouri, K. & T. Ry. Co. of Texas v. Kennon, Tex. Civ.App., 164 S.W. 867.
The plaintiff would not have bettered his claim to the timber standing on the 25 acres a single whit had he pleaded in his own behalf the supposed estoppel asserted in the feme defendant's second further defense and cross-action.
The allegations relating to the supposed estoppel are based solely upon the following statement appearing in the opinion of this court in State Trust Co. v. Braznell, 227 N.C. 211, 41 S.E.2d 744, 747: "When a grantee accepts the conveyance of real property subject to an outstanding claim or interest evidenced by an unrecorded instrument executed by his grantor, he takes the estate burdened by such claim or interest. By his acceptance of the deed he ratifies the unrecorded instrument, agrees to stand seized subject thereto and estops himself from asserting its invalidity."
The language of a judicial opinion must be read in the light of the circumstances under which it is used. Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 17 S.E. 2d 10; Styers v. Forsyth County, 212 N.C. 558, 194 S.E. 305; Osmond Barringer Co. v. Standard Fire Ins. Co., 188 N.C. 117, 123 S.E. 305. The Braznell case involved the construction of a registered deed containing an express recital that the grantee took the property conveyed subject to a prior lease executed to the plaintiff by the grantor. The lease happened to be unrecorded. When the language of the opinion in the Braznell case is read in the light of these crucial circumstances, it says this and nothing more: The grantee in a registered deed is estopped to deny the validity of an outstanding interest evidenced by an unrecorded instrument executed by his grantor if the registered deed contains an express recital making the conveyance to the grantee subject to the outstanding interest.
This sound exposition of a sound principle of the law of estoppel by deed has no possible application to the instant case, *219 where the registered deed does not refer in any way to the unrecorded instrument.
When the conclusion of the pleader and the prayer for relief in the alternative are laid aside, it is manifest that the complaint does not contain a single factual averment to the effect that the feme defendant bound herself by contract with the plaintiff to incorporate in her subsequent deed of conveyance a recital that the male defendant and his wife took the farm subject to the plaintiff's timber deed. In truth, the factual allegations of the complaint show that the feme defendant fully performed her contract with the plaintiff by executing the timber deed to him. 55 Am. Jur., Vendor and Purchaser, Section 415. These things being true, the complaint does not state a cause of action against the feme defendant for breach of contract.
Moreover, the factual averments of the complaint do not make out a case entitling the plaintiff to money damages from the male defendant and his wife on the theory that they wrongfully interfered with contractual relations between the plaintiff and the feme defendant by purchasing the farm from the latter. The plaintiff could have protected his rights under his timber deed against all persons by having that instrument recorded in the office of the register of deeds. Since the plaintiff did not have his timber deed registered, the male defendant and his wife, as third persons, had the legal right under the Connor Act to purchase from the feme defendant the property embraced by the unregistered timber deed with the same freedom as if that instrument did not exist. They did not incur liability to the plaintiff by exercising their legal right. Eller v. Arnold, supra; Bruton v. Smith, 225 N.C. 584, 36 S.E.2d 9.
We note at this point that the plaintiff does not charge the feme defendant with possessing knowledge of the unregistered state of his timber deed at the time of the execution of the subsequent conveyance. See: Hilligas v. Kuns, 86 Neb. 68, 124 N.W. 925, 26 L.R.A.,N.S., 284, 20 Ann.Cas. 1124; 66 C.J., Vendor and Purchaser, Section 1655.
The failure of a complaint to state a cause of action is a self-asserting defect, which appears upon the face of the record proper. Where a complaint fails to state a cause of action, and the defendant appeals from an adverse judgment of the Superior Court without objecting to the complaint on that ground, the Supreme Court should take notice of the defective state of the complaint and dismiss the action of its own accord, unless it deems the defective state of the complaint readily remediable by amendment in the Superior Court. Lassiter v. Adams, 196 N.C. 711, 146 S.E. 808; Snipes v. Monds, 190 N.C. 190, 129 S.E. 413; Elizabeth City Water & Power Co. v. Elizabeth City, 188 N.C. 278, 124 S.E. 611; Garrison v. Williams, 150 N.C. 674, 64 S.E. 783; Cressler v. Asheville, 138 N.C. 482, 51 S.E. 53; Norris v. McLam, 104 N. C. 159, 10 S.E. 140; 71 C.J.S., Pleading, § 551.
The defective state of the complaint in the instant case is not readily remediable by amendment in the Superior Court. Consequently the action must be dismissed. Elizabeth City Water & Power Co. v. Elizabeth City, supra; Norris v. McLam, supra; McIntosh: North Carolina Practice and Procedure in Civil Cases, Section 448.
Action dismissed.