Miller v. . Church

Supreme Court of North Carolina

Miller v. . Church

17 S.E. 437, 112 N.C. 626

DecidedFebruary 5, 1893

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This text of 17 S.E. 437 (Miller v. . Church) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. . Church, 17 S.E. 437, 112 N.C. 626 (N.C. 1893).

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Opinion

*628 SnupirniiD, O. J.:

The unregistered deed from Cleveland Eggers to Elizabeth Farthing, his daughter, vested in the latter an equitable freehold estate, and such equitable interest can ordinarily be extinguished by a return of the consideration and a surrender of the deed. Ray v. Wilcoxon, 107 N. C., 514; Davis v. Inscoe, 84 N. C., 396. In the case, however, of a married woman a different principle applies as to the extinction of her equitable estate in realty. In Ray v. Wilcoxon, supra, the Court said: “ If the unregistered deed conferred upon her an estate in the land, either legal or equitable, it is plain that there is but one way by which she can convey it, and that is by deed and privy examination with the joinder of the husband. It is a well-recognized principle that the law will not allow that to be done indirectly which it has forbidden to be done directly, and if a married woman can, by the simple redelivery of her unregistered deed, practically convey her equitable estate in realty, the very disability which the law has imposed will to a great extent be removed, and the safeguards which it has carefully thrown around her be broken down and abrogated.” This authority is decisive of the present case, and renders it unnecessary to discuss the question presented in the brief of the learned counsel as to whether a court of equity should decree a reconveyance of the legal title, the equities being equal, etc. The defendants, who claim under Elizabeth, are not seeking such relief, but defend their possession under the equitable title acquired from her, and this title is all that is necessary for their purpose in this action.

Besides, it may be observed that the plaintiff is, according to his own testimony, a purchaser without value, and with full knowledge of all of the circumstances constituting the defence. It may also be remarked that the execution *629 of the deed was admitted and that there was no consideration for its surrender.

Wo concur with his Honor that, admitting to be true all that the plaintiff attempted to prove, he is not entitled to recover. Affirmed.

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*628 SnupirniiD, O. J.:

The unregistered deed from Cleveland Eggers to Elizabeth Farthing, his daughter, vested in the latter an equitable freehold estate, and such equitable interest can ordinarily be extinguished by a return of the consideration and a surrender of the deed. Ray v. Wilcoxon, 107 N. C., 514; Davis v. Inscoe, 84 N. C., 396. In the case, however, of a married woman a different principle applies as to the extinction of her equitable estate in realty. In Ray v. Wilcoxon, supra, the Court said: “ If the unregistered deed conferred upon her an estate in the land, either legal or equitable, it is plain that there is but one way by which she can convey it, and that is by deed and privy examination with the joinder of the husband. It is a well-recognized principle that the law will not allow that to be done indirectly which it has forbidden to be done directly, and if a married woman can, by the simple redelivery of her unregistered deed, practically convey her equitable estate in realty, the very disability which the law has imposed will to a great extent be removed, and the safeguards which it has carefully thrown around her be broken down and abrogated.” This authority is decisive of the present case, and renders it unnecessary to discuss the question presented in the brief of the learned counsel as to whether a court of equity should decree a reconveyance of the legal title, the equities being equal, etc. The defendants, who claim under Elizabeth, are not seeking such relief, but defend their possession under the equitable title acquired from her, and this title is all that is necessary for their purpose in this action.

Besides, it may be observed that the plaintiff is, according to his own testimony, a purchaser without value, and with full knowledge of all of the circumstances constituting the defence. It may also be remarked that the execution *629 of the deed was admitted and that there was no consideration for its surrender.

Wo concur with his Honor that, admitting to be true all that the plaintiff attempted to prove, he is not entitled to recover. Affirmed.

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17 S.E. 437, 112 N.C. 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-church-nc-1893.

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