DEEDS AND CONVEYANCES-Continued.
ties and their heirs, in the absence of intervening rights of
creditors or purchasers. The same principle applies to an
unregistered assignment of a mortgage. Ibid.
4. Deed of Administrator-Fraud on Heirs-Purchaser With No-
tice.-Equity will set aside a conveyance of lands made under
the power of sale in a mortgage, procured through collusion
with an administrator in fraud of the rights of the heirs at
law of his intestate, in the absence of intervening rights of
creditors or purchasers. Ibid.
5. Statute of Limitations-Principal.-The statute of limitations
does not begin to run against the principal of a mortgage of
lands until it is due, and the power of sale contained in the
mortgage may be exercised within ten years after the ma-
turity of the principal. Scott v. Lumber Co., 44.
6. Statute of Limitations-Power of Sale Optional Upon Default
of Interest. The statute of limitations does not begin to run
upon default in payment of annual interest upon the prin-
cipal, when the power of sale contained in the mortgage is
optional with the mortgagee upon default of either interest
or principal of the debt. Ibid.
7. Executors-Sale Under Mortgage Contract-Designated by the
Will.-When a power of sale in a mortgage is given to the
mortgagee, "his executors," etc., upon default, and the mort-
gagee dies leaving a will under which his executors qualify,
the power of sale vests in the executors by virtue of the
statute and the contract in the mortgage. Ibid.
8. Foreign Executors-Attempted Conveyance—Assignment of
Debt.-A deed to real property made by foreign executors
by virtue of authority in the will is void in North Carolina
unless the executors qualify here, and operates only as an
assignment of the debt and security, and not as a conveyance
of the land. Ibid.
9. Foreign Executors-Deed—Subsequent Qualification.-A deed
made by foreign executors to purchasers at a sale under the
power of sale in a mortgage is an execution of the contract
in the mortgage, and the subsequent probate of the will in
the county wherein the lands lie relates back to the time of
and validates such deed, when there are no intervening rights
of third persons. Ibid.
10. Probate Officer an Employee.-A proper officer to take acknowl-
edgment of grantors and privy examination of married wo-
men to conveyances of land is not disqualified to act therein
when he is an employee of the grantee, without any interest
in the land conveyed. Smith v. Lumber Co., 47.
DEEDS AND CONVEYANCES-Continued.
11. Sufficient Registration-Notice.-The registration of a deed
showing the probate, including the separate examination of
the wife, and the order of registration, and the names of the
grantors, but omitting a copy of their signatures at the end
of the instrument, is sufficient notice under section 980, Re-
visal 1905. Ibid.
12. Registration-Notice-Duty of Grantors.-When the Register
of Deeds receives from the grantors a deed for registration,
the filing for registration is sufficient notice under section
980, Revisal 1905, and the duty of the grantors respecting
such registration is at an end. Ibid.
13. Quit-claim Deed-Interest Passed.—Giving a quit-claim deed is
no assertion of title, but a conveyance only of such interest
as the maker has in the subject-matter. Lumber Co. v.
Price, 50.
14. Quit-claim Deed—Estoppel in Pais.—A quit-claim deed for land
reciting an invalid tax deed as the source of title, made by
the attorney of plaintiff to the defendant, the plaintiff receiv-
ing the consideration, is not an equitable estoppel in pais,
and the plaintiff may assert its rights under a registered deed
therefor to the timber growing upon the land. Ibid.
15. Standing Trees-Description—Sufficiency.-Standing trees are
a part of the realty, and a conveyance of title thereto has
to be sufficient to convey realty; and a contract for cutting
timber, without the proper words of conveyance and a suffi-
ciently definite description of the land upon which the same
is standing, is void against purchasers for value under a
sufficient deed subsequently registered. Tremaine v. Wil-
16. Registration - Possession
value under a sufficient and registered deed are not affected
with notice by the possession of those under a prior deed if
invalid or registered upon an invalid probate. No notice,
however full or formal, can supply the notice by registration
required by the statute. Ibid.
17. Admission of Title-Contract with Grantor-Personal Cove-
nant.-An admission by the defendant in his answer that the
title to the timber passed to the plaintiff estops the defend-
ant from asserting the right to cut it under a contract pre-
viously made by him with the grantor, such being a personal
covenant, and not one running with the land. Ibid.
18. Covenant-Abandonment-Possession-Continuity-Transfer of
Right. When the continuity of possession has been pre-
served, to transfer a right is no abandonment of the property:
DEEDS AND CONVEYANCES-Continued.
Therefore, when a conveyance of land demands certain re-
quirements after setting forth the covenant, with provision
that the land shall revert if abandoned, the grantee may
convey subject to the requirements, when there is no pro-
vision of forfeiture and the intention of the original grantors
is preserved; and such requirements, in the nature of cove-
nants, are enforcible in a court of equity against subsequent
purchasers with notice, though, technically, they do not run
with the land. Church v. Bragaw, 126.
19. Covenant-Condition Subsequent-Forfeiture Avoided.-When
a conveyance of land leaves in doubt whether a certain clause
is intended as a covenant or a condition subsequent, under
the policy of the law to avoid a forfeiture, it will be construed
as a covenant, when possible. Ibid.
20. Estoppel by Deed.-Plaintiff claiming the inheritance of the
land by the right of survivorship of her ancestor under the
terms of the will cannot deny the fee-simple title of her
grantee under a deed thereto made by her for a valuable
consideration. Walker v. Taylor, 175.
21. Executors-Power to Sell-Option of Purchase.-A power un-
der a will to executors to sell land is valid, but does not
include the power to give an option to purchase. Trogden v.
Williams, 192.
22. Option of Purchase-Delivery of Deed-Condition Precedent-
Tender of Price.-A provision in an option that those to
whom it was given should make partial payment for the
land and secure the balance of the purchase-price by mort-
gage thereon within the time specified is binding only upon
an unconditional acceptance of and a compliance with the
terms, and the delivery of the deed is not a condition prece-
dent to the tender of the price in the absence of a definite
agreement to that effect. Ibid.
23. Same-Two Executors-Joint Powers-Waiver.-One of two
executors may not waive the condition of time of an option
given for the purchase of lands of his testator and fix no
time limit for payment, in the absence of express power; and
where there are two executors clothed with the power to sell
land, such power must be exercised by them jointly; and a
waiver by one, otherwise having the power, does not bind
the other. This also applies to sale of lands by executors
under section 82, Revisal. Ibid.
24. Same-Intervening Rights - Waiver - Time the Essence.-
Where one of two executors who have given an option for
the sale of lands of their testator waives the conditions
DEEDS AND CONVEYANCES—Continued.
thereof, and the other, after notice of election by those hav-
ing the right to take the lands embraced in the option, writes
that he is willing to make the deed, but could not comply
with further demands not therein contained, and afterwards
said he would make the deed with his co-executor; the letter
is not a waiver; and such waiver would be inoperative to
revive the extinct option and affect intervening rights, time
being of the essence of the contract. Ibid.
25. Recorded Option-Notice-Cloud upon Title.—A recorded op-
tion on lands given by executors having the power under the
will is notice of its terms only, and the time within which
it should be exercised; and an unregistered waiver of the
time limit by the executors in consenting to execute the deed
thereafter is inoperative against a purchaser for value under
a sufficient and subsequent registered conveyance, made by
those who had the right of election to take the lands em-
braced in the option, and a court of equity will not place a
cloud upon the title by making a decree requiring the execu-
tors to convey such title as they may have; and the execu-
tors are not liable in damages upon refusing to make such
conveyance.
Ibid.
26. Note Under Seal-Registration-Purchase-price-Subsequent
Mortgage. A note under seal, reciting that it was given for
the balance of the purchase-price of certain land, executed
and registered, does not attach to the legal title a trust for
its payment or constitute a lien thereon. A judgment on
the note, rendered after the execution and registration of a
second mortgage by the same person to secure a different
debt, cannot constitute a lien prior to that of the second
mortgage. Carpenter v. Duke, 291.
27. Tax Deed-Maker-Ex-Sheriff.-A tax deed, signed and exe-
cuted by one who was the Sheriff of the county at the time
of the sale of land for taxes, after the expiration of his term
of office, as "ex-sheriff," is authorized by Revisal 1905, sec.
950, and is to that extent valid. Manufacturing Co. v. Rosey,
370.
28. Same-Made After Two Years From Sale Day-Statute-Void.
Under the Laws of 1901, ch. 588, and the Revisal 1905, sec.
2905, a tax deed made by a sheriff more than "two years from
the day of sale of the real estate for taxes," etc., is void, the
authority of the Sheriff to make the deed being solely de-
rived from the statute; the statute being capable of a strict
construction only, the time limitation must be observed.
DEEDS AND CONVEYANCES-Continued.
29. Same—Purchaser—Money Paid—Lien.—A purchaser of land at
a tax sale under the statute, subsequently acquiring an in-
valid title by reason of insufficient description, or void for
not having been made within the statutory time, is entitled
to have the amount he has paid therefor declared a lien on
the land in his favor. Ibid.
30. Parol Trust-Definite Terms-Judgment in Personam.-A gift
of land by deed to the children of a son upon his parol prom-
ise to pay the daughter of the donor a certain sum of
money is not sufficiently definite in its terms to attach to the
legal title a trust for its payment, but is a valid considera-
tion to support the promise upon which a judgment in per-
sonam can be rendered. Faust v. Faust, 383.
31. Consideration-Evidence-Prima Facie.-The consideration ex-
pressed in a deed is prima facie evidence of the actual con-
sideration, and not conclusive. Ibid.
32. Lease-Renewal—Covenants—Form.—In a lease of land con-
taining an agreement, or covenant, giving privilege of re-
newal to lessee upon notice given, the covenant expressed by
the agreement is not required to be in a technical form;
upon the required notice being given within the proper time,
the covenant, when sufficiently definite, and in the absence
of any restraining stipulations, will be enforced as incident
to the lease, conferring an assignable right and constituting
a part of the tenant's interest in the land. Barbee v. Green-
berg, 430.
Partnerships Retiring Parnter — Assignee.--Where
there was a lease of a business lot for partnership purposes,
containing a covenant of renewal, and one of the partners
retired, having sold and transferred his entire interest in the
business to his associate, the lease passed by the transfer as
a partnership asset, and the right of renewal passed as inci-
dental to the lease, conferring upon the assignee and his suc-
cessors the privilege of its covenant. Ibid.
34. Lease-Covenants-Renewal-Assignee.-The assignee of a
lease, with the right to demand a renewal of the lease for
his own benefit, can make such right available as a defense
in an action to recover the possession, though the same be
instituted before a justice of the peace. Ibid.
35. Cancellation-Mental Capacity-Burden of Proof.—When in an
action to set aside and cancel a deed for the want of sufli-
cient mental capacity, there was evidence tending to show
that prior and subsequent to the time of its execution the
grantor was subject to attacks during which she was men-
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