Sawyer v. . Northan

16 S.E. 1023, 112 N.C. 261

• Court: Supreme Court of North Carolina
• Decided: February 5, 1893
• Status: Published

Opinion

Clark, J.:

The transaction, in the light most favorable to the plaintiff, and leaving out of view all circumstances tending to prove fraud, is that Thomas H Credle, intending to act as agent for his son, Thomas F. Credle, Jr., bought the lands of 0. C. Farrar with an agreement to mortgage the same for the purchase-money; that his son was a minor, twelve years of age, and hence incapable of appointing an agent: that the minority of the»son was not made known to Farrar, who supposed, indeed, that he was conveying to Thomas F. Credle, from whom he had originally bought the land; that said Thomas F. Credle, after receiving.the deed in which he caused the abbreviation “Jr.” to be written after the name of Thomas F. Credle, as the grantee named therein, did execute a mortgage on the land covered by the deed and mortgage notes, for the full amount of the purchase-money, all of which he signed in his own name.

The jury find that the purchase and the mortgage back were contemporaneous acts and, of course, parts of the same transaction. The mortgage could have no validity because executed by one to whom the land had not been conveyed. But the deed was equally invalid and conveyed no title because it was merely a part of a transaction, which whole transaction was of no effectymice Thomas F. Gredle (assuming his good faith) had no authority, and could have none, to enter into such contract as agent for a minor.

It is true land can be conveyed to a minor, but when an alleged contract of purchase is made by a minor (whose infancy is undisclosed) under an agreement to mortgage the land'back to secure the purchase-money, the whole transaction is a nullity since he cannot execute the mortgage and there is no contract. One attempting to act as agent for him is in no better condition,¿or the minor could neither appoint an agent nor empower him to make a mort-gagmwhicli ho could not make himself The conveyance is also a nullity, because the conveyance back by the grantee by way of mortgage which was a part of the contract, and the basis upon which it was made, was never executed. If the deed by Farrar had conveyed any title, there being a failure by the grantee to give a valid mortgage as agreed, Farrar retained the equitable title, or real title, since he could call for a reconveyance.

In Bunting v. Jones, 78 N. C., 242, where there was a conveyance of land and a contemporaneous agreement for a mortgage back to secure the purchase-money, but the purchaser’s wife refused to join in the mortgage, it was held that no title -vested in the grantee, and his wife acquired no dower or homestead rights. In this case, as in that, it might well be said, “it was not intended to give the land to the party, and he has not given anything for it.” That case lias been cited and 'approved in Moring v. Dickerson, 85 N. C., 466, and Burns v. McGreggor, 90 N. C., 222.

If here a valid mortgage back bad been executed, the subsequent sale thereunder and the conveyance to the purchaser would have divested all rights of the plaintiff, who claims under the minor. As the mortgage was not executed as agreed, the contract was not carried out, what purports to be a deed to the minor conveyed no title, and the whole transaction was a nullity ab initio. No question of the rights of third parties can arise, as the plaintiff and all under whom he claims are fixed with knowledge of the facts. Certainly, as between the parties, the title was not divested from O. C. Farrar by such attempted conveyances; and if the subsequent conveyance from Farrar to the defendant has validity, it is because the title still remained in him, and not because he attempted to convey as mortgagee under a power of sale in an invalid mortgage.

The Court should simply have given judgment against the plaintiff and in favor of the defendant for the land and for costs. This disposes of both appeals. The defendant will recover costs in both appeals in this Court.

Error.