Herbert v. Union Development Co.

170 N.C. 622

• Court: Supreme Court of North Carolina
• Decided: January 12, 1916
• Status: Published

Opinion

AlleN, J.

Tbe copies of tbe papers relied on by tbe plaintiff as grants from tbe State, duly certified by tbe present Secretary of State, áre not objected to upon tbe ground tbat tbey bave not been registered, and tbe rule generally prevails in appellate courts tbat tbe ground of objection cannot be enlarged upon appeal. 3 Corpus Juris, 747.

Confining ourselves, therefore, to tbe objection as stated, tbe question bas been fully considered and decided against tbe defendants, at tbis term, in Howell v. Hurley, ante, 401.

We are inclined to tbe opinion tbat tbe record from tbe office of tbe register of deeds, made on tbe authority of tbe certificate of Menninger, Secretary of State, was properly excluded, but it is not necessary to decide tbis question, as a new trial must be ordered for error already pointed out, and if tbe papers bave not since been registered on tbe new certificate tbis can be done before another trial is bad.

Tbe case of Morehead v. Hall, 132 N. C., 122, bas created tbe impression tbat a plaintiff cannot register bis title after tbe commencement of tbe action and use it upon tbe trial; but tbat ease is founded upon tbe fact tbat tbe grant offered in evidence could not be registered under the laws in force at the commencement of the action.

In tbe subsequent case of Brown v. Hutchinson, 155 N. C., 208, it was held tbat a plaintiff may register bis title after tbe commencement of the action, and tbe case of Morehead v. Hall is there commented on and distinguished.

Tbe judgment of nonsuit is set aside and a new trial ordered.

New trial.