Merchants & Farmers Bank v. Harrington

137 S.E. 712, 193 N.C. 625, 1927 N.C. LEXIS 418

• Court: Supreme Court of North Carolina
• Decided: April 27, 1927
• Status: Published

Opinion

Per Curiam.

The question involved is thus stated in plaintiff’s brief:

“Was the indexing and cross-indexing of a real estate mortgage, which on its face was a combination real estate and chattel mortgage, on the general cross-index of chattel mortgages and not on the general cross-index to real estate conveyances sufficient to give constructive notice to subsequent purchasers for value, when there is kept in the register’s office a separate record and set of books for the registration and indexing of chattel mortgages and real estate conveyances, and when only real estate is conveyed by the instrument in controversy, said mortgage being dated 30 March, 1921, and filed for '-registration 13 April, 1921?”

The importance of the question to the profession and to the registers of deeds throughout the State is obvious. If the recording of a land mortgage in a chattel mortgage book and the indexing thereof upon the cross-index of a chattel mortgage book is sufficient to create a lien upon real estate, then, every attorney in the State, in examining a title to land, must-search and examine every sort of index in the office of the register of deeds for every character of instrument that is recorded or required to be recorded.

Upon the other hand, ought the holder of a lien to be deprived of the benefit thereof when he delivers it to the register of deeds for recording and it is indexed and cross-indexed in one of the general indexes kept in his office?

The statutes bearing upon the subject are C. S., 3560 and 3561.. The decisions of this Court, dealing with the indexing and cross-indexing of instruments are Fowle v. Ham, 176 N. C., 12; Ely v. Norman, 175 N. C., 294; Wilkinson v. Wallace, 192 N. C., 156.

However, Adams, J., did not sit and took no part in the decision of this case, and the Court, being evenly divided in opinion, under the law the judgment of the lower court must be affirmed without becoming a precedent.

Affirmed.

Adams, J., not sitting.