Story v. . Slade

155 S.E. 256, 199 N.C. 596, 1930 N.C. LEXIS 190

• Court: Supreme Court of North Carolina
• Decided: October 22, 1930
• Status: Published

Opinion

Stacy, C. J.,

after stating the case: Is a mortgage duly filed for registration and spread upon the registry, but not indexed or cross-indexed as required by C. S., 3561, superior to the lien of a duly registered “second mortgage” on the same property? We think not.

The indexing and cross-indexing of instruments required to be registered is an essential part of their registration. West v. Jackson, 198 N. C., 693; Heaton v. Heaton, 196 N. C., 475, 146 S. E., 146; Whitehurst v. Garrett, 196 N. C., 154, 144 S. E., 835; Clement v. Harrison, 193 N. C., 825, 138 S. E., 308; Bank v. Harrington, 193 N. C., 625, 137 S. E., 712; Wilkinson v. Wallace, 192 N. C., 156, 134 S. E., 401; Hooper v. Power Co., 180 N. C., 651, 105 S. E., 327; Mfg. Co. v. Hester, 177 N. C., 609, 98 S. E., 721; Fowle v. Ham, 176 N. C., 12, 96 S. E., 639; Ely v. Norman, 175 N. C., 294, 95 S. E., 543.

The bare appellation “second mortgage,” appearing in the Slade-Ker-nodle mortgage, falls short of the requirements laid down in Hardy v. Fryer, 194 N. C., 420, 139 S. E., 833, for making it subject to the un-indexed Slade-Story mortgage. No reference is made to the supposed first mortgage, nor is its holder identified, nor is the amount of it stated, all of which appeared in Bank v. Smith, 186 N. C., 635, 120 S. E., 215, and Bank v. Vass, 130 N. C., 590, 41 S. E., 791, cases strongly relied upon by plaintiff. The present case, therefore, comes squarely within the decisions in Hardy v. Abdallah, 192 N. C., 45; 133 S. E., 195, and Piano Co. v. Spruill, 150 N. C.,. 168, 63 S. E., 723, in which similar references were held to be insufficient to take the place of proper registration of alleged prior encumbrances. See, also, Blacknall v. Hancock, 182 N. C., 369, 109 S. E., 72.

Nor can notice aliunde to the holder of the “second mortgage” of the existence of a prior encumbrance avail the holder of the unregistered “first mortgage.” C. S., 3311, in effect provides that no deed of trust or mortgage shall be valid ás against creditors or purchasers for value but from the proper registration thereof, and we have insistently held that no notice, however full or formal, will suffice to defeat a prior registration. Ellington v. Supply Co., 196 N. C., 784, 147 S. E., 307; Quinnerly v. Quinnerly, 114 N. C., 145,19 S. E., 99.

The case of Williams v. Lewis, 158 N. C., 571, 74 S. E., 17, cited by plaintiff, is not at variance with our present position. That decision was controlled hy other principles.

It would seem that appellant was entitled to have the jury instructed, as requested, to answer in the negative the issue submitted.

New trial.