14. QUIETING TITLE (§ 7*)—"CLOUD ON TITLE."

A "cloud on title" is in itself a title or incumbrance apparently valid, but in fact invalid; something which, nothing else being shown, constitutes an incumbrance on or defect in title; something which shows prima facie the right of a third person, either to the whole or some interest in the title, or to a lien thereon.

[Ed. Note.-For other cases, see Quieting Title, Cent. Dig. §§ 14-33; Dec. Dig. § 7.*

For other definitions, see Words and Phrases, vol. 2, pp. 1233-1235.] 15. QUIETING TITLE ( 7*)—EQUITY JURISDICTION-Grounds.

Equity has jurisdiction to remove a cloud on title, when the illegality or defect does not appear on the face of the record, but must be shown by evidence aliunde, so that the record would make out a prima facie right in one who would become a purchaser, and the evidence to rebut the case may be lost, or become unavailable from the death of witnesses, or when a tax deed would be presumptive evidence of a good title in the purchaser, who might rely thereon for recovery of the land until irregularities were shown.

[Ed. Note. For other cases, see Quieting Title, Cent. Dig. §§ 14-33; Dec. Dig. § 7.*]

In Equity. Suit by Tilghman Johnston against Kramer Bros. & Co. and another, to remove a cloud on title. Decree for complainant. Winston & Biggs, of Raleigh, N. C., for plaintiff.

E. F. Aydlett, of Elizabeth City, N. C., for defendants.

CONNOR, District Judge. Plaintiff alleges: That he is the owner in fee of 11/126 undivided interest in a tract of land lying and being situate in the county of Perquimans in the Eastern district of North Carolina, described by metes and bounds. That defendant Leonard Vyne claims to be the owner of said tract of land, and that said claim is based upon grant issued to him by the state of North Carolina, bearing date February 7, 1906. That defendant Kramer Bros. & Co., a corporation, claims an interest in the timber standing upon said land by virtue of a contract made by said corporation with said Vyne. He asks the court to declare the grant to be a cloud upon his title, and to make a decree removing same and quieting his title. Defendants deny that plaintiff is the owner of, or owns any interest in, said land. They admit that defendant Vyne claims title thereto under the grant from the state, and allege that he acquired from the state a good and indefeasible title thereto.

Plaintiff deraigns his title as follows: (1) A grant from the state of North Carolina to John Hamilton, bearing date December 27, 1792. (2) A deed from Hamilton to John McKinney, bearing date October 20, 1794. (3) A deed from John McKinney to William Cathcart and Francis Johnson, bearing date March 2, 1795. (4) A deed from Francis Johnson and wife to Alexander W. Johnson for an undivided interest, bearing date February 5, 1806. (5) Descent from A. W. Johnson, deceased.

Defendants rely upon the grant set out in the complaint and answer, *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

averring that, by reason of the facts hereinafter set out, no title passed by the deed from Hamilton to McKinney; that, if title did pass, it has been divested by certain sheriff's deeds introduced by defendants.

The grant to John Hamilton describes a large boundary, recited, in the grant, to be situate in Pasquotank county, but conceded to include land situate in both Pasquotank and Perquimans counties, containing 26,000 acres. It is denied that the locus in quo is within the boundaries of said grant. It is apparent, however, that the plaintiff's contention in that respect is correct. The land is within the calls of the grant, and is in that portion of it situate in Perquimans county, which is one of the oldest counties in the state. On its records is found the first deed of which there is any record in the state, executed by the king of the Yeopim (Indians) to George Durant, bearing date March 1, 1662. 1 Col. Records. Pasquotank county was set apart in 1729. The fact that the entry was made and the grant issued for lands in both counties, although described as in only one, brings it within the curative provisions of Acts 1807, c. 727 (1 Rev. Stat. c. 42, § 29).

The evidence from both plaintiff and defendants is amply sufficient to show that the land granted to defendant Vyne February 7, 1906, is within the boundaries of the Hamilton grant of December 27, 1792, and is conceded to be in Perquimans county. It is so described in his grant. The question presented, therefore, is whether plaintiff has such title or interest in the land as entitles him to ask the court to remove a cloud from his title, and whether the Vyne grant, by statute declared to be void, constitutes a cloud upon his title.

Defendants, for the purpose of showing that McKinney acquired no title under the deed from Hamilton, introduced the record of a deed, over plaintiff's objection, from Hamilton to Lindsey and Myers, conveying the same land described in his deed, of same date as the deed to McKinney. Defendant contends that, in this condition of the title, two deeds of same date for the same land to different grantees, it is impossible for the court to find, as a fact, which was delivered first. [1] It is elementary that delivery is essential to the execution of a deed; that, although signed and sealed, no title passes from the grantor, or vests in the grantee, until it is delivered. The deed takes effect from the delivery. Goodson v. Whitfield, 40 N. C. 163; Vaughan v. Parker, 112 N. C. 96, 16 S. E. 908; Fortune v. Hunt, 149 N. C. 358, 63 S. E. 82. What constitutes delivery is a mixed question of law and fact. Smith v. Moore, 149 N. C. 185, 62 S. E. 892. It is held in North Carolina that the certificate of a probate court that the due execution of a deed has been acknowledged or proven includes the finding that it was delivered. In Younge v. Guilbeau, 3 Wall. 636, 18 L. Ed. 262, Mr. Justice Field says:

"The delivery of a deed is essential to the transfer of the title. It is the final act, without which all other formalities are ineffectual. To constitute such delivery the grantor must part with the possession of the deed, or the right to retain it. Its registry by him is entitled to great consideration upon this point, and might perhaps justify, in the absence of opposing evidence, a presumption of delivery."

[2] That the grantor, in open court, for the purpose of bringing it to registration, acknowledges the execution of a deed, is certainly sufficient, in the absence of any evidence to the contrary, to sustain a finding that it has theretofore been, or was at that time, delivered, subject to be overcome by evidence showing that there had not been in truth a delivery. Neither party produces the original deed, nor is there any evidence that either of the grantees went into possession under the deeds. It does appear, however, that McKinney, on the same day upon which the deed was acknowledged by Hamilton and registered, executed a deed for the land to Cathcart and Johnston, which was acknowledged by him, and on the same day admitted to registration. It is also worthy of note, in our quest for an explanation of this singular transaction, that Isaac Sexton is the attesting witness to both deeds-and a memorandum on one of them. It sufficiently appears, from the certified copies of both deeds introduced, that their execution was acknowledged "in open court," before the court of pleas and quarter sessions of Pasquotank county, and "ordered to be registered." That court had jurisdiction in the premises. The question remains open, however, which was first delivered. In the absence of any evidence, other than such as may be gathered from the date of acknowledgment, as to the date of delivery, the question is presented whther any presumption arises as to the date of delivery as between two deeds bearing the same date. In Crabtree v. Crabtree, 136 Iowa, 430, 113 N. W. 923, 15 Ann. Cas. 149, it is held that:

"Where a deed bears an earlier date than the certificate of its acknowledgment, the deed is, in the absence of other evidence, presumed to have been delivered on the date of its acknowledgment."

Weaver, C. J., concedes that many courts, probably the majority, hold that the presumption, in such cases, is that the delivery is of the day of its date. It is held by the Supreme Court of the United States, in United States v. Le Baron, 19 How. 73, 15 L. Ed. 525, that:

"The delivery of a deed is presumed to have been made on the day of its date. But this presumption may be removed by evidence that it was delivered on some subsequent day."

In an exhaustive note to the case of Crabtree v. Crabtree, supra, the cases holding the two views are collected. In Guaranty Trust Co. v. Galveston City R. Co., 107 Fed. 311, 46 C. C. A. 305 (C. C. A. Fifth Cir.) it is held that, in the absence of any evidence of the date of delivery of a mortgage, the presumption will be indulged that it was delivered on the day of its acknowledgment. Among the cases. holding this view are Fitzpatrick v. Brigman, 130 Ala. 450, 30 South. 500, and Loomis v. Pingree, 43 Me. 299.

In Nichols v. Palmer, 4 N. C. 319, it was held that where a deed bears a date different from the date of its attestation, and there is no evidence of the date of its delivery, it will be presumed to have been delivered on the date of its attestation. Court of Conference, Cameron, J.

[3] In several of the cases it is said that a deed is not complete until acknowledged. At the date of the execution of both deeds from 203 F.-47

Hamilton, the statute in force in North Carolina (Laws 1715, c. 7, 1) provided that:

*

"No conveyance, or bill of sale for land (other than mortgages) in what manner or form soever drawn, shall be good and available in law, unless the same shall be acknowledged by the vendor or grantor or proved by one or more evidences upon oath, either before * or in the county court, and registered by the public register of the county where the land lieth within two years after the date of said deed; and that all deeds so done and executed shall be valid and pass estates in land or right or other estate, without livery of seisin, attornment, or other ceremony in law whatsoever."

It is held in North Carolina that, by virtue of the language of the statute, the registration of a deed gives it the force and effect of a feoffment with livery of seisin. Hogan v. Strayhorn, 65 N. C. 279; Ivey v. Granberry, 66 N. C. 223; Bryan v. Eason, 147 N. C. 289, 61 S. E. 71.

[4] It is true that the courts of this state held that, notwithstanding the language of this statute, which remained in force until 1885, the deed, when registered, had the effect of passing title by relation, at the delivery of the deed. We are now dealing with the question whether the deed to McKinney, by reason of its acknowledgment and registration March 3, 1795, vested title paramount to the deed to Lindsey and Myers, acknowledged in September, 1797, and registered July 19, 1798. If it were shown by evidence, aliunde the deed, that the Lindsey and Myers deed was delivered prior to March 3, 1795, although acknowledged subsequently, it must be conceded that it would have vested title paramount to the McKinney deed. It was to remove this uncertainty in regard to title that Acts 1885,.c. 147 (Rev. 1905, § 980), was enacted.

[5] In endeavoring to find some explanation of the peculiar conduct of the parties to the two deeds, bearing even date, consistent with their intention, so far as, after more than 100 years has elapsed, it is possible to do so, we may indulge the presumption that the grantor intended to vest the title in the land conveyed in the grantees named in one of the deeds. He received a valuable consideration for the land and intended to convey it. He did not intend that one deed should be so played off against the other as to leave the title in so much uncertainty that neither of his grantees could hold the land. It is a more reasonable presumption that he completed the execution of the deed in the manner prescribed by the law.

[6] All of the decided cases hold that either presumption as to the date of delivery is one of fact, and may be rebutted by competent evidence showing the true date upon which it was delivered to the grantee. Whether the date of acknowledgment must be given the probative weight of a rebuttable presumption, it is clear that, taken in connection with other facts and circumstances, it is competent evidence to be considered by the trier of the fact.

[7] An examination of the certified copies of the deeds, with memoranda thereon, discloses the following conditions: On October 20, 1794, John Hamilton signed a deed containing language sufficient to convey the land covered by his grant to William Lindsey and Moses Myers, of Norfolk, Virginia (merchants); the consideration recited

being "two thousand Spanish mill dollars." The attesting witnesses are Isaac Sexton and Peter Mercer. The following indorsement is found on this deed:

"Memorandum. 3 March, 1795. The above deed was this day delivered up to John Hamilton by John McKinney, and a new conveyance of the 20th October, 1794, was made by John Hamilton to said McKinney, for the nominal consideration of thirteen thousand Spanish mill dollars.

"[Signed] John McKinney. "Isaac Sexton.

"Camden County, 28th October, 1794. Then received of Moses Myers and William Lindsey, by the hands of Isaac Sexton, the within sum of two thousand Spanish mill dollars in full of the within premises.

"J. Hamilton."

"Memorandum. 3 March, 1795. Nixonton. "Borrowed, and received from Hamilton, the patent within mentioned, dated 27 December, 1792, for 26,000 acres of land, which patent, being the title of the said Hamilton, I hereby promise to return him when demanded. "John McKinney."

"State of No. Carolina, Pasquotank County.

"September Term, 1797.

"Present: The worshipful justices.

"This may certify that the within deed of bargain and sale of land from John Hamilton to Lindsey and Myers was exhibited, and acknowledged in open court, and ordered to be registered. At the same time a memorandum on the said deed, signed by John McKinney and witnessed by Isaac Sexton, who is since dead, was proved by the oath of Benjamin Jones, and also ordered to be registered.

"Test: Will T. Muse, Clk.

"Registered the 19th of 7th Mo. July, 1798.

"By Thomas Jordan, P. Regr."

The deed from Hamilton to McKinney, of October 20, 1794, contains the following recital:

"Witnesseth, that the said John Hamilton, for and in consideration of the sum of thirteen thousand Spanish milled dollars to him in hand paid by William Lindsey and Moses Myers for the aforesaid John McKinney, the receipt whereof the said John Hamilton doth hereby acknowledge, and doth discharge and exonerate the said McKinney from any further demand whatsoever on that account."

John Brownrigg and Isaac Sexton are the attesting' witnesses to this deed. McKinney's deed to Cathcart and Johnston of March 2, 1795, acknowledged and registered March 4, 1795, recites a consideration of "twenty-six thousand French crowns." Isaac Sexton and William Lane are the attesting witnesses thereto.

It will be noted that Isaac Sexton, the witness to the several deeds, who, it seems, was the person through whom the money was paid to Hamilton, was dead September, 1797, at the time the Lindsey and Myers deed was acknowledged. It is impossible to explain, with entire satisfaction, the unusual course pursued by the parties to these deeds. It will be observed that Mr. Hamilton was an attorney, and it may be presumed that he was familiar with the statute regarding the execution of deeds-their probate and registration. The inference which I think may reasonably be drawn from the indorsements found on the deed, which are competent, not as affecting or controlling the terms of the deeds, but as explaining the ambiguous conduct of