Rutherford County NcArchives Court.....T. J. Withrow Et Al, J. C. Cowan V. 1892 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Connie Ardrey n/a December 20, 2011, 7:33 pm Source: N C Reports Written: 1892 J. C. Cowan v. T. J. Withrow et al Notice - Unregistered Deed - Docketed Judgment - Principal and Agent - Acts of 1885 1. Notice to an agent of matters coming within the scope of his employment is notice to his principal, and actual notice to the agent of an unregistered deed is "actual notice" to the principal, under section 1, chapter 147, Acts of 1885; it is not necessary that such notice be personal. 2. The proviso in section 1, chapter 147, Acts of 1885, declaring the act shall not apply to "one who purchases with actual or constructive notice of an unregistered deed" extends to purchasers at Sheriff's sales, and applies as against the lien of a docketed judgment. This was a Civil Action for the recovery of land, tried by Bynum, J., at the Spring Term, 1892, of the Superior Court of Rutherford County. On the trial the plaintiff put in evidence a deed from the Sheriff of Rutherford County, purporting to convey the title and interest of the husband defendant, T. J. Withrow, in the land. This deed was dated on the 3d day of December, 1888, and registered on the 11th day of the same month. The plaintiff further put in evidence execution authorizing a sale of the land by The Sheriff, founded upon judgments docketed in Rutherford County before the registration of the deed under which the feme defendant claims title. The defendant P. J. Withrow put in evidence a deed from her husband, T. J. Withrow, to her, for the land, dated August 5, 1882, and registered November 27, 1889. For the purpose of repelling fraud, and to show that the alleged sale of the land to her by her husband was bona fide, the feme defendant introduced in evidence a deed from her father, Housen Harrell, to her, dated March 8, 1878, and also a deed from her to her husband, dated August 5, 1882, (this deed neither registered nor probated)). These two deeds covered the same land. P. J. Withrow then testified in her own behalf that she had bought this land from her husband on August 5, 1882; that she had given him for it the land conveyed to her by her father on the 8th of March, 1878, and in addition thereto $100 in money, which the father of her husband had made her a present of; that, at that time, August 5, 1882, she and her husband were living together as man and wife, and had been since their marriage, and still were. That she was in possession of the land in controversy; that she authorized her husband to manage the land for her; that the subscribing witness to the deed from her husband to her was their son, who, at the time, August 5, 1882, was about seventeen or eighteen years old. There was also evidence tending to show that the plaintiff had actual notice of the deed of the feme defendant before the purchase at Sheriff's sale. J. C. Erwin, a witness for the defendant, testified that the plaintiff asked him to buy this land for him at the Sheriff's sale; that the plaintiff was not present at the sale. The defendant T. J. Withrow came up and forbade the sale in the name of his wife, and said his wife had a deed for it; that witness laid off the land for plaintiff after this notice was given by Withrow; that he did not go to tell Cowan of the notice given by Withrow; that after he had bid off the land for Cowan, and before Cowan paid for it, he told Cowan what Withrow had said. There was evidence introduced by the plaintiff tending to show the deed from T. J. Withrow to his wife was fraudulent, and that there were judgments docketed in this county against him (T. J. Withrow) before the date of the deed, August 5, 1882. There was evidence tending to show that the deed was dated back, and also that at that date, August 5, 1882, the said T. J. Withrow was in debt and did not have property sufficient to pay his debts. The Court instructed the jury fully on the question of fraud, and instructed them that if they found the deed fraudulent, that ended the matter, and they would answer the first issue in favor of the plaintiff. The instruction is not given, as there was no exception to it. The Court further instructed the jury - 1. That if they found the deed from T. J. Withrow to P. J. Withrow, under which she claimed title to the land, was unregistered at the date of the Sheriff's sale at which the plaintiff purchased, the plaintiff would be entitled to recover under chapter 147, Acts 1885, unless they found that the plaintiff had notice of the deed. That the notice must be an actual notice to him of the existence of the deed. That notice to his agent to purchase was not sufficient. 2. That if they found the facts to be that at the sale of the Sheriff, J. C. Erwin was the agent of the plaintiff to purchase for him; that T. J. Withrow, as the agent of his wife, forbade the sale, stating that his wife had a deed for it; Erwin did not notify the plaintiff of this, bid off the land for him, this notice to Erwin would not be sufficient. 3. That is they found the facts to be that Cowan had been notified, before the sale, that P. J. Withrow had a deed, and they found that deed a good one, that is not fraudulent, then the plaintiff was not entitled to recover. 4. That if they found the facts to be that after the land was bid off by Erwin for Cowan and before Cowan paid the purchase money to the Sheriff, that Cowan was notified of the deed of P. J. Withrow, the notice would not be sufficient. To the instructions numbered 1, 2, and 4, the defendants excepted. There was a verdict for the plaintiff and judgment, from which judgment defendants prayed and appeal. Messr. Justice & Justice (by brief) for plaintiff J. A. Forney (by brief) for defendant NC Supreme Court Justice Shepherd, C. J. - New trial (see court case for judge's full findings) Additional Comments: In the NC Supreme Court September Term 1892 File at: http://files.usgwarchives.net/nc/rutherford/court/tjwithro2156gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 6.4 Kb