Scales v. . Fewell

10 N.C. 18

• Court: Supreme Court of North Carolina
• Decided: June 5, 1824
• Status: Published

Opinions

The defendant justified as a constable under two executions issuing on judgments obtained after the date of the deed of trust, and contended below that the paper, not having been registered within fifty days, under the act of 1715, ch. 38, was void as against creditors.

The jury was instructed that this instrument was not a mortgage, so as to require registration under the act of 1715.

Verdict for plaintiff; new trial refused; judgment, and appeal. The instrument under which the plaintiff claims title is a bill of sale, to the validity of which registration within twelve months is made essential by the act of 1715. The time had, therefore, expired on 2 September, 1820; but the act of 1821 allows a further time of two years, and, supposing that allowance had been availed of, the deed would have related back to its date. But in the meantime the lien of the executions had attached upon the property, and although the doctrine of relation as between the parties may be adopted for the advancement of justice, yet it shall not do a wrong to strangers, and cannot, in this case, overreach the levies. The defendant, therefore, is entitled to a new trial.