Gardner v. . Building and Loan Association

162 S.E. 923, 202 N.C. 827, 1932 N.C. LEXIS 247

• Court: Supreme Court of North Carolina
• Decided: February 17, 1932
• Status: Published

Opinion

Civil action to remove cloud from title.

The facts are these:

1. On 28 July, 1926, R. F. Gardner and wife conveyed to the plaintiffs, by warranty deed, a lot of land situate in the town of Burnsville, N.C. This deed was not registered until 25 May, 1927.

2. Thereafter, on 12 April, 1927, R. F. Gardner and wife gave the Yancey Building and Loan Association a deed of trust on a tract of land situate in the town of Burnsville, which included the lot previously sold to the plaintiffs. This deed of trust was duly registered 20 April, 1927.

3. Plaintiffs allege that the inclusion of their lot in the defendant's deed of trust was the result of inadvertence or mistake on the part of the grantors therein.

From a judgment of nonsuit entered at the close of plaintiffs' evidence, they appeal, assigning error. In the absence of an allegation of fraud or mutual mistake, it would seem that the case is controlled by the decision in Eaton v. Doub,190 N.C. 14, 128 S.E. 494, upon which the judgment was entered, rather than on the principles announced in Sills v. Ford, 171 N.C. 733,88 S.E. 636, cited by the plaintiffs.

Affirmed.