dissenting: The opinion of the Court rests upon the single position that the plaintiff is “claiming under an unrecorded deed,” and as I do not think this statement finds any support in the record, I cannot agree to the judgment.
Neither the plaintiff nor the defendant alleges in the pleadings that the plaintiff ever had a deed for any part of the land, registered or unregistered, nor is there any finding by judge or jury to that effect, and, on the contrary, the plaintiff alleges and seeks to enforce a parol trust, and this was the question tried in the Superior Court.
The only part of the record which gives color to the statement in the opinion is that Johnson, who was a witness for the plaintiff, testified on cross-examination by the defendant that he signed, sealed, and probated a deed conveying one-half of the land to the plaintiff, and inclosed this deed in a return envelope, duly stamped, addressed to the plaintiff, and that he deposited this letter in the postoffice; and the plaintiff testified that he never received the letter or the deed.
Has, then, the plaintiff, on this evidence, ever held an unrecorded deed, and can this Court so declare?
He has not unless a deed was delivered to him, because “A delivery is essential to the validity of a deed. It is the final act which con*623summates tbe deed, is as necessary as tbe seal or signature of tbe grantor, and without it all other formalities are ineffectual and tbe deed is void ab initio, being at most a mere proposition to convey, which may be withdrawn at any time before acceptance by the other party. Delivery has been called the life of a deed. Certainly no title passes in its absence, even though the intent to deliver is clear and the failure to deliver due to accident.” . 8 Ruling Case Law, 973.
Has there been a delivery of a deed to the plaintiff? And note here the difference between delivery, ascertained as a fact, and evidence of delivery; and herein, I think, consists the error of the Court, in assuming as a fact that there has been a delivery, when there is only evidence of delivery, and when this was rebutted by the evidence of the plaintiff that he never received the deed.
The first objection to ordering a nonsuit upon the ground that the deed was delivered to the plaintiff is that the jury, and the jury alone, have the right to pass on the credibility of the witness Johnson when he testified that he mailed the letter. This Court has no such power, and no one will claim on this record that the plaintiff ever had an unrecorded deed unless Johnson mailed the letter.
Neither the judge nor the jury in the Superior Court has passed on the question, and I respectfully submit this Court cannot.
It is true that 'a party cannot impeach his own witness, but “it is always open to a litigant to show that the facts are otherwise than as testified to by his witness” (Smith v. R. R., 147 N. C., 608), and when new matter is brought out on cross-examination, not touched on in the examination in chief, the witness becomes as to that matter the witness of the party cross-examining him. 40 Cyc., 2562.
If, however, we assume that the letter, inclosing the deed, was mailed, does this establish a delivery to the plaintiff? And here we must bear in mind that there- is no evidence that the plaintiff requested the defendant to send a deed by mail, and that the defendant selected the agency for sending the deed.
Clearly the evidence of Johnson could do no more than raise a presumption of delivery, and the evidence of the plaintiff that he never received the deed, if believed, rebutted the presumption.
“When a letter is properly addressed and mailed, with postage prepaid, there is a rebuttable presumption of fact that it was received by the addressee as soon as it would be transmitted to him in the usual course of the mails. In some States the presumption is recognized by express provision of statute. The rule is founded upon the presumption that officers and employees of the Postoffice Department will do their duty, and the regularity and certainty with which, according to common experience, the mail is carried. The real reason is the second. The presumption of due receipt of a letter may be rebutted *624by evidence that it was not in fact .received, or not received in tlie ordinary course of the mails.” 16 Oyc., 1070.
The same rule is stated in Bragaw v. Supreme Lodge, 124 N. C., 160, as follows: “When a letter is duly mailed, it is presumed that it reaches its destination and is received by the party to whom it is addressed. This is a presumption of fact, and may be rebutted by evidence, to he considered by the jury.. This presumption is an inference of fact, founded on the probability that the Government officials will do their duty, and the usual course of business,” approved in Bennett v. Tel. Co., 168 N. C., 498.
Mr. Chamberlayne says, in his work on Modern Evidence, vol. 2, sec. 1057: “Within, the more settled portions of the civilized world the regularity of the mail service is a matter established by experience. It will, therefore, be inferred that in a particular instance of transportation by mail the same regularity of transmission was applied. When certain necessary conditions are complied with, the mailing of a letter or other postal matter gives rise to an inference that it arrived at its destination in due course of mail. The presumption or inference is one of fact. In other words, the fact of mailing, under certain conditions, is relevant to or probative of the fact of receipt of the addressee of the letter”; and in see. 1062: “Evidence rebutting the inference of receipt from mailing may be of several kinds. The person to whom the mail matter is addressed may testify that he did not, in point of fact, receive it at all, or if he did receive it, that it was delivered to him later than it should have been.”
In the note to the last section he cites, in support of the text, many authorities, and among them, Sherrod v. Ins. Assn., 139 N. C., 167. In the Sherrod case the question involved Was as to giving notice of an assessment, and the defendant introduced evidence tending to prove that the notice was duly mailed, and the plaintiff testified that he never received the notice.
The court instructed the jury that proof of the mailing of the notice, “properly addressed and postpaid, raised a presumption that the notice was received by the plaintiff; but this is only a presumption of fact, and could be rebutted, and that it was for the jury to find whether such notice was in fact properly addressed and mailed; if so, then the presumption was that plaintiff received it; and unless he rebuts this presumption by showing that he did not receive the notice, the plaintiff could not recover”; and this Court said: “The instructions of the court to which the defendant excepts are correct and are fully sustained by the authorities. If the insurer sends the notice by mail properly addressed and stamped, the law presumes the addressee received it. The presumption may be rebutted, as appears to have been done in this case. Rosenthal v. Walker, 111 U. S., 185; Lawson on *625Presumptive Ev., 69; Am. and Eng. Enc. (1 Ed.), pp. 80-81, and eases cited.”
This ease recognizes the principle that the evidence of the addressee that he has not received the letter, if believed, rebuts the presumption.
The question was again considered in Mill Co. v. Webb, 164 N. C., 89, involving the delivery of a draft and bill of lading transmitted by mail, and Walicer, J., then speaking for the Court, says: “The City National Rank, it appears, mailed the letter with the draft and bill of lading to the defendant bank. This was evidence of its receipt by the latter, and raised a rebuttable presumption of the fact to be submitted to the jury, along with any evidence in the case tending to show that it was or was not in fact received. This is said to be founded upon another presumption, that officers of the Postoffice Department will dp their duty, or upon the better reason, the regularity and certainty with which, according to common experience, the mail is carried. It is, at least, evidence from which the jury may reasonably infer the fact that the mail matter was received in due course of transmission and delivery. . . . It is not conclusive. The contrary may be shown or may be inferred from all the testimony, but it is some evidence of the fact. ‘The burden of proving its receipt remains throughout upon the party who asserts it.’ Huntley v. Whittier, supra."
The sending of a deed by mail, when there has been no previous request, is in the nature of an offer, which is not binding as an offer until receipt, and does not become a contract until accepted. It is otherwise as to the letter accepting the offer, which makes the contract complete from the time of mailing.
The author draws the distinction in 9 Cyc., 294-5, where he says: “Where a person uses the post to make an offer, the postoffiee becomes his agent to carry the offer. The offer is not made when the letter is posted, but when it is received, and the offerer must suffer the consequence arising from delay or mistake on the part of the postoffice. . Where a person makes an offer and requires or authorizes the offeree, either expressly or impliedly, to send his answer by post or telegraph, and the answer is duly posted or telegraphed, the acceptance is communicated and the contract is complete from the moment the letter is mailed or the telegram sent.”
It is also evident that the defendant did not think that the delivery of the deed to the plaintiff was established upon the record, as otherwise he would not have asked his Honor to submit the issue to the jury which he tendered: “Did O. R. Johnson, after the purchase of said land and prior to May, 1914, execute and deliver to the plaintiff a deed for one-half interest in said land?”
*626Suppose tbis issue bad been submitted to tbe jury, wbat would bave been tbe charge of bis Honor?
He would, in tbe first place, bave told tbe jury tbat if tbey did not believe tbe evidence of Johnson tbat be mailed tbe deed, tbey would answer tbe issue “No”; but if tbey did believe tbis evidence, and found from tbe evidence tbat tbe deed was mailed, tbat tbis would raise a presumption tbat it was received by tbe plaintiff, and tbat upon tbis presumption, if not rebutted, tbey would answer tbe issue “Yes.”
And be would bave further charged tbe jury tbat if tbey believed tbe evidence of tbe plaintiff tbat be did not receive tbe deed, tbis would rebut tbe presumption, and if tbey so found tbey would answer tbe issue “No.”
Cases like Fortune v. Hunt, 149 N. C., 359-and there are many in ou.r Reports announcing tbe same doctrine — that there is a delivery when tbe grantor parts with tbe possession and control of tbe deed, do not, in my opinion, bave any bearing on tbe question, because in all of them tbe grantee was claiming under tbe deed, and tbe only fact in controversy was whether tbe grantor bad parted with tbe control of tbe deed.
Tbey do not present tbe question of delivery, where tbe grantee has neither received tbe deed nor claimed under it, which is now before us, nor do tbey controvert tbe proposition tbat acceptance by tbe grantee is necessary to complete tbe delivery and transfer of tbe title.
“An estate cannot be thrust upon a person against bis will” (8 Rul. Case L., 975), or, as said by Justice Ventris in Thompson v. Leach, 2 Vent., 198, a man “cannot bave an estate put into him in spite of bis teeth.”
In tbe note to Emmons v. Harding, 1 A. and E. Anno. Cases, 868, decisions from tbe Supreme Court of tbe United States and from tbe highest courts of twenty-two States and of England are cited in support of tbe principle tbat “In order to effect a valid transfer of tbe title there must be an acceptance of tbe conveyance by tbe grantee.”
When tbe deed is beneficial to tbe grantee and be claims under it, there is a presumption of acceptance, but “there is no actual acceptance of tbe title until tbe grantee has elected to claim under tbe deed.” 8 Rul. Case L., 1001.
Perhaps tbe best statement tbat can be found of tbe rule tbat acceptance by tbe grantee is essential to j)ass tbe title, and tbat it will not be presumed unless tbe grantee has received tbe deed and is claiming under it, is in -Hibberd v. Smith, 56 A. R., 735, in which tbe principles to be deduced from tbe decided cases are summed up as follows:
“1. In every deed there must necessarily be a grantor, a grantee, and, a thing granted (4 Crews, 12); tbat delivery by tbe grantor and acceptance by tbe grantee are essential to tbe validity of a deed; tbat *627a deed takes effect -only from its delivery, and there can be no delivery without acceptance, either expressed or implied, delivery and acceptance being necessarily simultaneous and correlative acts. Richard v. Jackson, 6 Cow., 617; Church v. Gillam, 15 Wend., 658; s. c., 30 Am. Dec., 82. Other authorities cited post.
“2. Delivery may be made, first, to the party himself, or any other by his appointment, or to any one authorized to receive it; or, second, to a stranger for and in behalf and to the use of him to whom it is made without authority, under certain circumstances. 2 Roll., 24 L., 48; Touchstone, 75. See post.
“3. In cases of delivery to a stranger’, without authority from the grantee to accept, the acceptance of the grantee at the time of delivery will be presumed, under the following concurring circumstances, viz.: (1) that the deed be upon its face beneficial to the grantee; (2) that the grantor part entirely with all control over the deed; (3) that the grantor (except in case of an escrow) accompany delivery by a declaration, intention, or intimation that the deed is delivered for and in behalf and to the use of the grantee; (4) that the grantee has eventually accepted the deed and claimed under it. 4 Crews, 34; Touchstone, 57, and other authorities post; 4 Gilm., 175, 176.”
It would seem to follow that this Court cannot declare as matter of law the deed from Johnson to the plaintiff was delivered, when the plaintiff swears he never received it, and when he has not claimed under it.
Rut let us assume there is nothing in this position; that acceptance by the grantee is not essential, and that the controlling fact to make good a delivery is that the grantor shall have parted with the possession and control of the deed: still a delivery cannot be declared by this Court as a legal conclusion, because there is evidence that the grantor only parted with the possession of the deed temporarily, and that he retained control of it, as Johnson, the grantor, testified that he mailed the deed in a return envelope.
In other words, Johnson selected his agent, and said to him, “If you see Lynch, give him this deed, and if not, bring it back to me,” and this would at least raise a question for the jury as to the intent of the grantor at the time the letter was mailed.
■ If these positions are not sound and the opinion of the Court states the law correctly, it to my mind introduces new and startling propositions.
It says, after quoting the evidence of Johnson that he mailed the deed: “This was a delivery to the addressee and completed the execution of the instrument,” and it was necessary to say this in order to sustain the position that the plaintiff had an unrecorded deed. This proposition involves, first, the power of this Court to pass on the ques*628tion of the credibility of Johnson and to find as a fact that be mailed the deed, in tbe face of the evidence of the plaintiff that be did not receive' it; second, that this Court may order a nonsuit upon the statement of a fact, adverse to the plaintiff, on the cross-examination of one of his witnesses; third, that mailing a letter inclosing a deed, without previous request and without the knowledge of the grantee, is a delivery of the deed to the grantee; and, fourth, that a deed may be delivered without acceptance by the grantee.
The last two will be of peculiar interest to those who have lands for sale, as hereafter, instead of hunting a purchaser, they may select one able to pay, and sign probate and mail a deed to him, and draw for the purchase money.
I therefore think the appeal cannot be dealt with upon the assumption that the plaintiff is “claiming under an unrecorded deed,” and that the real question involved is the right of the plaintiff to establish and enforce a parol trust against the defendant, a purchaser of the land in controversy, who bought with notice of the equity, at a sale by a trustee in bankruptcy.
The jury returned the following verdict:
1. Did the defendant O. R. Johnson, at the time of the execution of the deed from W. E. Shallington and wife to said 0. R. Johnson, dated 1 August, 1895, recorded in book 41, page 498, of .the register of deeds of Tyrrell County, agree with the plaintiff to take said land and hold the same in trust for the plaintiff and himself, as alleged in the complaint? Answer: “Yes.”
2. Did the plaintiff pay one-half the purchase price for said land, as alleged? Answer: “Yes.”
3. Did the Juniper Corporation have actual notice of the claim to said land at the time the same was sold by Davis, trustee in bankruptcy of 0. R. Johnson? Answer: “Yes.”
4. What was the value of said land on the day the same was bid off by the said Juniper Corporation? Answer: “$4,000.”
5. What amount did said Juniper Corporation pay for said land at said sale ? Answer: “$1,000.”
6. Is the plaintiff the equitable owner of an undivided one-half interest in and to the 500-acre tract described in the complaint? Answer: “Yes.”
This verdict established the following facts: That the plaintiff and the bankrupt, Johnson, bought the land in controversy, each paying one-half of the purchase price; that the land was conveyed to Johnson, he agreeing at the time that he would hold the title in trust for himself and the plaintiff; that thereafter Johnson became a bankrupt and the land was sold by the trustee in bankruptcy and bought by the defendant; that at the time of the purchase the defendant had notice of the *629equity of the plaintiff, and that it paid only $1,000 for land that was worth $4,000.
This, according to all the decisions in this State, creates a trust in favor of the plaintiff against Johnson (Anderson v. Harrington, 163 N. C., 142), and prior to the amendment of the Bankruptcy Act of 1910 and independent of the Connor Act, it is clear from all the authorities that the plaintiff could have the defendant, who purchased from the trustee of Johnson, declared a trustee for him and could compel a conveyance of one-half interest in the land. Thompson v. Fairbanks, 196 U. S., 516; New York Mfg. Co. v. Cassell, 201 U. S., 344; Hinton v. Williams, 170 N. C., 115.
The Supreme Court of the United States said in the Fairbanks case, “Under the present Bankrupt Act the trustee takes the property of the bankrupt, in cases unaffected by fraud, in the same plight and condition that the bankrupt himself held it, and subject to all the equities impressed upon it in the hands of the bankrupt, except in cases where there has been a conveyance or an encumbrance of the property which is void as against the trustee by some positive provision of the act”; and in the Gassell case, “The trustee stands simply in the shoes of the bankrupt, and, as between them, he has no greater right than the bankrupt.” This is held in Hewit v. Berlin Mach. Works, 194 U. S., 296. The same view' was taken in Thompson v. Fairbanks, 196 U. S., 516.
It was there stated, under the present Bankrupt Act the trustees take the property of the bankrupt, in eases unaffected by fraud, in the same plight and condition that the bankrupt himself held it, and subject to all the equities impressed upon it in the hands of the bankrupt. See Yeatman v. New Orleans Sav. Inst., 95 U. S., 764; Stewart v. Platt, 101 U. S., 731; Hauselt v. Harrison, 105 U. S., 401. The same doctrine was reaffirmed in Humphrey v. Tatman, 198 U. S., 91; and in the Hinton case the language from the Gassell case was quoted and approved.
The decision of the question, therefore, depends upon whether the amendment to the Bankruptcy Act of 1910- changes the rule that the trustee in bankruptcy takes the title of the bankrupt subject to prior equities, and whether the Connor Act has the effect of destroying equities as against purchasers, who take with notice of the equity.
I will first consider the amendment of 1910, which provides: “And such trustees as to all property in the custody or coming into the custody of the Bankruptcy Court shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon; and also, as to all property not in the custody of the Bankruptcy Court, shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied,” ch. 412, par. 8, 36 Stat. at L., 840; *630U. S. Com. St. 1913, par. 9631, which was declared in Bernard v. Carr, 167 N. C., 482, to vest in the trustee “all the rights of a judgment creditor upon whose judgment execution has been issued and returned unsatisfied.”
What, then, are the rights of a judgment creditor? It is well settled in this State that he may issue his execution and sell the property of the debtor, but that the purchaser takes subject to equities. Freeman v. Hill, 21 N. C., 389; Dudley v. Cole, 21 N. C., 435; Williams v. Lewis, 158 N. C., 576.
In the first of these cases the Court said: “A sale under a fieH facias is a prescribed mode in which the law carries into effect its seizure of property of a debtor, for the satisfaction of the demand of his creditors. The mandate gives no authority to the officer to seize any other estate than the estate of the debtor; and the vendee under execution acquired no other estate than the law directed to be seized for this purpose. The vendee represents the judgment creditor, but is not regarded a purchaser from the proprietor. The well-known doctrine of equity, which refuses to enforce a trust against a purchaser for valuable consideration and without notice, applies only in cases of sales between parties, not to vendees under execution,” and in the last, quoting from Ruffin, C. J.: “Upon the argument, the counsel for the defendant placed not much stress on the defenses brought forward in the answer; and we think very properly, as they are clearly insufficient. In the first place, the sheriff’s sale is no bar, even if a legal title had been the subject of it, as the purchaser only succeeds to the defendant in the execution, and is affected by all the equities against him. Freeman v. Hill, 21 N. C., 389. ... If the purchase be of the legal title, but with notice of an equity in another, or if it be only an assignment of an equity, with or without notice of a prior equity in another person, in either ease the estate must, in the hands of the purchaser, answer all the claims to which it must have been subject in the hands of the vendor.”
It would seem, therefore, to be clear that as the Act of 1910 only confers the right of a judgment creditor upon the trustee, and as a purchaser at a sale by a judgment creditor takes his title subject to the equities of the defendant, that a purchaser at a sale by a trustee in bankruptcy would also take subject to equities, and that the rule still exists, stated by Connor, J., in Supply Co. v. Machin, 150 N. C., 746, “that every person buying at a bankrupt sale, as at one. made by the sheriff, must take notice that nothing is proposed to be sold except the interest of the bankrupt or the defendant in the execution,” and in Steadman v. Taylor, 77 N. C., 134, “That a purchaser at a sale by an as-signee in bankruptcy stands on the same footing with the purchaser at execution sale.”
*631Tbis construction of tbe amendment of 1910 is in accordance witb tbe language of tbe Bankruptcy Act, wbicb only Tests in tbe trustee tbe “title of tbe bankrupt” (sec. 70a), and witb its spirit, wbicb is designed to give tbe creditor all tbe bankrupt owns and no more.
It is suggested tbat tbis makes very little change in tbe law as it existed prior to 1910, and tbat tbe amendment confers no special benefit upon tbe trustee; but tbe answer is tbat it gives to tbe trustee tbe lien of a judgment creditor and operates to give bim priority over unregistered deeds and mortgages, required by tbe law of tbe State to be registered, as is illustrated by tbe case of Hinton v. Williams, supra.
Does tbe Connor Act bave tbe effect of destroying equities against a purchaser who buys witb notice of tbe equity? Tbe question was discussed, but not decided, in Wood v. Tinsley, 138 N. C., 507, wbicb bolds tbat one in possession under a parol contract to buy has no fen-forcible equity, in wbicb Connor, J., says: “It is true tbat when one takes witb notice of an equity, be takes subject to such equity. To permit bim to take free from an equity attaching to tbe title in tbe bands of bis grantor, witb notice thereof, would be to permit bim to participate in a fraud and profit thereby.”
He who takes witb notice of an equity takes subject to tbe equity (Derr v. Dellinger, 75 N. C., 300), and Mr. Pomeroy says, vol. 2, sec. 753, Pom. Eq. Jur.: “Tbe rule is universal and elementary, tbat if a purchaser in any form receives notice of prior adverse rights in and to tbe same subject-matter, before be has completely acquired or perfected bis own interest under tbe purchase, bis position as bona fide purchaser is thereby destroyed, even though be may bave paid a valuable consideration.”
Has tbis rule, which gives to tbe purchaser all he has bought and wbicb prevents bim from repudiating an equity of which be has notice, been abrogated by force of tbe legislative act?
Tbe statute (Eevisal, sec. 980) does not refer to equities, and there is no word in it wbicb by any rule of construction can be held to include equities, and it must be kept in mind tbat we are not dealing witb tbe wisdom of tbe legislation, but witb tbe meaning of tbe statute as it is written.
It speaks only of “conveyances,” “contracts to convey,” and a “lease for more than three years.”
It says: “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 tbe donor, bargainor, or lessor, but from tbe registration thereof within the county where tbe land lieth.”
Tbe conveyance must be in writing, and by section 976 of the Ee-visal all contracts to convey and all leases for more than three years are declared to be void unless “put in writing.”
*632It would seem to follow that as conveyances must be in writing and as contracts to convey and leases for more than three years are required by section 976 to be in writing, that when the same words are used in a subsequent section of the Revisal, dealing with the same subject-matter, they should be given the same construction, and that therefore the Connor Act only deals with titles and rights evidenced by writing, which can be put on the registry, and not to equitable rights resting in parol, which cannot be registered.
The language in the statute, “but from the registration thereof,” necessarily implies a writing — something that can be registered, and excludes the idea that trusts, which are in parol and cannot be registered, are covered by the statute.
In Bell v. Couch, 132 N. C., 346, it was held that wills are not within the operation of the act, and Connor, J., says: “The evil which it was intended to remedy was the uncertainty of titles to real estate caused by persons withholding deeds, contracts, etc., based upon a valuable consideration, from the public records”; and the same judge, in Skinner v. Terry, 134 N. C., 309, referring to a decree directing a title to be made in an action for specific performance: “We would not feel authorized to extend the language of chapter 147, Laws of 1885, to include a decree of the character before us in the record.”
I submit that there is more reason to enlarge the language of the act to include wills and equitable decrees, which can be placed on record, than to equities in parol.
There are two cases in our Reports which seem to put the matter at rest and to establish the principle that under the law as it stands today a purchaser who takes with notice of an equity takes subject to the equity.
The Connor Act is modeled after and is in almost the same language as the act requiring the registration of mortgages and deeds of trust (Wood v. Tinsley, 138 N. C., 509), and it was held in Wittkowsky v. Gidney, 124 N. C., 441, that an equity to correct a deed could be enforced as against one holding a registered mortgage.
It has also been held in Sills v. Ford, post, 733, that this equity for correction may be enforced against a purchaser claiming under a registered deed who bought with notice of the equity.
I cannot see any distinction in principle between these two cases and the one before us.
It is true that in this case it is an effort to enforce a parol trust, while in the two cases cited the relief demanded was the correction of a deed, but in all of them the aid of the Court is invoked to enforce an equity resting in parol and against purchasers with notice.
I have found nothing in our Reports in conflict with this view except the obiter dicta in Quinnerly v. Quinnerly, 114 N. C., 145, which *633bas been repeated several times, and last in Trust Co. v. Sterchie, 169 N. C., 22, to the effect that “all secret trusts, latent liens, and hidden encumbrances are and were intended to be cut up by the roots by force of our registration laws.”
There was no secret trust or latent lien in Quinnerly v. Quinnerly or in the subsequent case, the question in the first being the priority of a registered deed to one unregistered, and in the last the priority of the lien of a judgment duly docketed as against the holder of an unregistered deed.
The history of these cases is that the statement in Quinnerly v. Quinnerly is taken from Blevins v. Barker, 15 N. C., 436, which involved the right of a vendor to a lien for the purchase money, and that in turn rests on the authority of Womble v. Battle, 38 N. C., 190, in which the language used is “secret deeds of trust and mortgages,” and not “all secret trusts and latent liens.”
The right which the plaintiff seeks to enforce is not a stale claim, and his failure to assert it for nineteen years will not affect his right to relief, as the defendant does not plead the statute of limitations or laches, and for the reason that there has been no denial of his right until shortly before suit brought.
This is explained by the evidence of Johnson, who testified: “We were buying lands together. The plaintiff was buying lands in other counties, and it was agreed I should .own a half interest in those lands. I went into bankruptcy in 1911. Lynch paid one-half of the purchase money. He made the contract of purchase with W. E. Shalling-ton according to the agreement between him and myself. I have always recognized the right to a one-half of the lands. I have always recognized his right to one-half. When he sold the timber on this land to Fleetwood and Jackson, one-half of the money was paid to Lynch and one-half to me, and the deferred payments were evidenced by notes, one-half of which were paid to Lynch and one-half to me. In my petition in bankruptcy, in the schedule, the property was only listed (one-half of the land, that is) 250 acres. It was put down in the schedule as 250 acres. There are 500 in the whole tract.”
I am therefore of opinion that the plaintiff is entitled to enforce the trust found in his favor upon the verdict as it now stands, but I also think the defendant is entitled to a new trial on account of the refusal of his Honor to submit an issue as to the delivery of the deed to the plaintiff by Johnson in execution of the trust.
There is evidence of an actual delivery of the deed, and if the plaintiff received the deed the Connor Act would be operative, as it applies to lost and unregistered deeds. Hinton v. Moore, 139 N. C., 44.
If this presents an incongruity in that a parol trust may be enforced against a purchaser with notice, notwithstanding the Connor Act, and *634the rights under an unregistered deed cannot be, the remedy is with the General Assembly, which has to this time deemed it wise to restrict the operation of the act to “conveyances,” “contracts to convey,” and “leases for more than three years.” It is enough for us that the law is so written.
If my view should prevail, the defendant would be deprived of nothing it has bought. It would still get all the land listed by the bankrupt, 250 acres, worth $2,000, for $1,000; but if the opinion of the Court stands the defendant will have 500 acres, worth $4,000, for which it paid $1,000, and be freed from an equity of which it had notice.
In my opinion, both the law and justice are with the plaintiff.