Summary
In Heaton v. Heaton, 196 N.C. 475, 146 S.E. 146, where the wife was the owner of the land and the mortgage by herself and husband was indexed and cross-indexed in name of the husband only, it was held the mortgage was not properly registered and not good against a subsequent deed duly recorded.
Summary of this case from Dorman v. GoodmanOpinion
(Filed 9 January, 1929.)
Mortgages — Registration and Indexing — Lien and Priority — Subsequent Purchasers.
The proper indexing of a mortgage upon lands is an essential part of its registration, and where the husband and wife make a mortgage on her lands which is only indexed by the register of deeds in the name of the husband, it is not good as against a subsequent purchaser for value by deed from the husband and wife that had been properly indexed and registered. C. S., 3561.
CIVIL action, before Moore, J., at November Term, 1928, of CHEROKEE.
D. L. Tillett and Moody Moody for plaintiff.
D. Witherspoon for Mattie A. Taylor.
Maude K. Heaton was the owner of the land in controversy. On 19 January, 1924, Maude K. Heaton and her husband, L. L. Heaton, executed and delivered a mortgage to the plaintiffs upon said land to secure a note in the sum of $1,000, executed by L. L. Heaton to the Bank of Murphy, which said note had been endorsed by plaintiffs as accommodation endorser. The instrument was registered on 23 April, 1924, but was indexed and cross-indexed in the name of L. L. Heaton only. The name of Maude K. Heaton, the owner of said property, did not appear in the index or cross-index. Thereafter, on 26 September, 1924, L. L. Heaton and Maude K. Heaton, his wife, conveyed the land to the defendant, Mattie A. Taylor, for full consideration. The deed to Mattie A. Taylor was duly recorded on 27 September, 1924. The plaintiffs, having been compelled to pay the note, brought this suit against L. L. Heaton and his wife, Maude K. Heaton, and Mattie A. Taylor for the purpose of selling the land and applying the proceeds to the payment of said note.
A jury trial having been waived, the trial judge, upon the foregoing facts, decreed that the plaintiffs had no lien on said property, and that the defendant, Mattie A. Taylor, was the owner thereof, freed from the alleged claim of defendant.
The indexing and the cross-indexing of deeds, mortgages and deeds of trust is an essential part of the registration thereof. Therefore a deed, mortgage, or deed of trust not properly indexed and cross-indexed is not properly registered, and registration is necessary to defeat the rights of subsequent purchasers for value. N.C. Code 1927, sec. 3561, requires that "the names of the parties to all liens, etc.," shall be shown on the index. The indexing of the instrument in controversy did not comply with the statute; hence the ruling of the trial judge was correct. Clement v. Harrison, 193 N.C. 825, 138 S.E. 308.
Affirmed.