ARTICLE 1. Probate.

Sec.

§ 47-1. Officials of State authorized to take probate.

The execution of all deeds of conveyance, contracts to buy, sell or convey lands, mortgages, deeds of trust, instruments modifying or extending the terms of mortgages or deeds of trust, assignments, powers of attorney, covenants to stand seized to the use of another, leases for more than three years, releases, affidavits concerning land titles or family history, any instruments pertaining to real property, and any and all instruments and writings of whatever nature and kind which are required or allowed by law to be registered in the office of the register of deeds or which may hereafter be required or allowed by law to be so registered, may be proved or acknowledged before any one of the following officials of this State: The justices, judges, magistrates, clerks, assistant clerks, and deputy clerks of the General Court of Justice, and notaries public.

History

(Code, s. 1246; 1895, c. 161, ss. 1, 3; 1897, c. 87; 1899, c. 235; Rev., s. 989; C.S., s. 3293; 1951, c. 772; 1969, c. 44, s. 52; 1971, c. 1185, s. 9.)

Cross References. - As to probate where clerk is a party, see G.S. 47-7.

Legal Periodicals. - For article, "Toward Greater Marketability of Land Titles - Remedying the Defective Acknowledgment Syndrome," see 46 N.C.L. Rev. 56 (1967).

CASE NOTES

Taking Acknowledgment as Judicial Act. - Taking of an acknowledgment of the execution of a deed by a notary public is a judicial or quasi-judicial act by a public official for which he may not be held liable absent a showing that his act was corrupt. Nelson v. Comer, 21 N.C. App. 636, 205 S.E.2d 537 (1974).

A woman is qualified to act as a notary public in North Carolina. Preston v. Roberts, 183 N.C. 62, 110 S.E. 586 (1922).

Effect of Disqualification. - If the disqualification of either the probating or acknowledging officer appears upon the face of the record, the registration is a nullity as to subsequent purchasers and encumbrancers. Quinnerly v. Quinnerly, 114 N.C. 145, 19 S.E. 99 (1894).

When the incapacity of the acknowledging or probating officer is latent, i.e., does not appear upon the record, one who takes under the grantee in such instrument gets a good title, unless the party claiming the benefit of the defected acknowledgment or probate is cognizant of the fact. Richmond Guano Co. v. Walston, 187 N.C. 667, 122 S.E. 663 (1924); County Sav. Bank v. Tolbert, 192 N.C. 126, 133 S.E. 558 (1926).

Registration of improperly acknowledged or defectively probated deed imports no constructive notice and the deed will be treated as if unregistered. New Home Bldg. Supply Co. v. Nations, 259 N.C. 681, 131 S.E.2d 425 (1963).

A timber deed in regular form, having a valid assignment of the timber rights by the grantee in the deed endorsed on its back, was duly registered, and the endorsement was transcribed on the records with the deed. It was held that even though the endorsement was sufficient as a conveyance of the timber rights, the endorsement was not acknowledged, and therefore there was no registration of the endorsement so as to defeat the rights of the creditors of the grantee in the deed. New Home Bldg. Supply Co. v. Nations, 259 N.C. 681, 131 S.E.2d 425 (1963).

A contract to sell and convey timber, in order to be enforceable against creditors and purchasers for value, must be probated and registered as provided by this Chapter. Winston v. Williams & McKeithan Lumber Co., 227 N.C. 339, 42 S.E.2d 218 (1947).

Applied in Clark v. Butts, 240 N.C. 709, 83 S.E.2d 885 (1954); Baker v. Murphrey, 254 N.C. 506, 119 S.E.2d 398 (1961).

Cited in McClure v. Crow, 196 N.C. 657, 146 S.E. 713 (1929); Beck v. Voncannon, 237 N.C. 707, 75 S.E.2d 895 (1953); Phillips v. Gilbert, 248 N.C. 183, 102 S.E.2d 771 (1958); Baker v. Murphrey, 250 N.C. 346, 108 S.E.2d 644 (1959).


§ 47-2. Officials of the United States, foreign countries, and sister states.

The execution of all such instruments and writings as are permitted or required by law to be registered may be proved or acknowledged before any one of the following officials of the United States, of the District of Columbia, of the several states and territories of the United States, of countries under the dominion of the United States and of foreign countries: Any judge of a court of record, any clerk of a court of record, any notary public, any commissioner of deeds, any commissioner of oaths, any mayor or chief magistrate of an incorporated town or city, any ambassador, minister, consul, vice-consul, consul general, vice-consul general, associate consul, or any other person authorized by federal law to acknowledge documents as consular officers, or commercial agent of the United States, any justice of the peace of any state or territory of the United States, any officer of the United States Army or Air Force or United States Marine Corps having the rank of warrant officer or higher, any officer of the United States Navy or Coast Guard having the rank of warrant officer, or higher, or any officer of the United States Merchant Marine having the rank of warrant officer, or higher. No official seal shall be required of a military or merchant marine officer, but the officer shall sign the officer's name, designate the officer's rank, and give the name of the officer's ship or military organization and the date, and for the purpose of certifying the acknowledgment, the officer shall use a form in substance as follows:

On this the ________ day of ________, ________, before me ________, the undersigned officer, personally appeared ______________, known to me (or satisfactorily proven) to be accompanying or serving in or with the Armed Forces of the United States (or to be the spouse of a person accompanying or serving in or with the Armed Forces of the United States) and to be the person whose name is subscribed to the within instruments and acknowledged that ________ the person ________ executed the same for the purposes therein contained. And the undersigned does further certify that the undersigned is at the date of this certificate a commissioned officer of the rank stated below and is in the active service of the Armed Forces of the United States. ______________________________________________________________________ Signature of Officer _________________________________________________________________________ Rank of Officer and command to which attached.

If the proof or acknowledgment of the execution of an instrument is had before a justice of the peace of any state of the United States other than this State or of any territory of the United States, the certificate of the justice of the peace shall be accompanied by a certificate of the clerk of some court of record of the county in which the justice of the peace resides, which certificate of the clerk shall be under the clerk's hand and official seal, to the effect that the justice of the peace was at the time the certificate of the justice bears date an acting justice of the peace of the county and state or territory and that the genuine signature of the justice of the peace is set to the certificate.

History

(1899, c. 235, s. 5; 1905, c. 451; Rev., s. 990; 1913, c. 39, s. 1; Ex. Sess. 1913, c. 72, s. 1; C.S., s. 3294; 1943, c. 159, s. 1; c. 471, s. 1; 1945, c. 6, s. 1; 1955, c. 658, s. 1; 1957, c. 1084, s. 1; 1967, c. 949; 1999-456, s. 59; 2004-199, s. 16; 2011-183, s. 30.)

Cross References. - As to power of notaries public, see G.S. 10A-9.

As to form of certificate required upon acknowledgment by nonresident official, see G.S. 47-44 and 47-45.

Editor's Note. - Session Laws 1955, c. 658, s. 2, validated any instrument or writing required by law to be proved or acknowledged which, prior to April 21, 1955, was proved or acknowledged before an officer of the United States Army, United States Air Force or United States Marine Corps having the rank of warrant officer or higher, or any officer of the United States Navy, United States Coast Guard, or United States Merchant Marine, having the rank of warrant officer or higher.

Session Laws 1957, c. 1084, s. 2, validated any instrument or writing required by law to be proved or acknowledged which, prior to June 5, 1957, was proved or acknowledged before an officer of the Air Force of the United States.

Effect of Amendments. - Session Laws 2004-199, s. 16, effective August 17, 2004, inserted "associate consul, or any other person authorized by federal law to acknowledge documents as consular officers" near the middle of the first paragraph.

Session Laws 2011-183, s. 30, effective June 20, 2011, throughout the section, substituted "Armed Forces" for "armed forces" and made minor stylistic changes; and in the first paragraph, substituted "United States Army or Air Force" for "army or air force of the United States," "Marine Corps" for "marine corps," "Navy or Coast Guard" for "navy or coast guard," "Merchant Marine" for "merchant marine," and "a military or merchant marine officer" for "said military, naval or merchant marine official."

Legal Periodicals. - For comment on the 1943 amendments, see 21 N.C.L. Rev. 323 (1943).

CASE NOTES

Compliance Essential. - This section, prescribing how deeds may be proved and acknowledgments taken in other states as well as in foreign countries, must be followed, or they and the registration thereon will be declared void. New Hanover Shingle Mills v. Roper Lumber Co., 171 N.C. 410, 88 S.E. 633 (1916).

Commissioner of Deeds of Another State. - Prior to the 1913 amendment, a probate before a commissioner of deeds of another state was held ineffectual in this State. Wood v. Lewey, 153 N.C. 401, 69 S.E. 268 (1910); New Hanover Shingle Mills v. Roper Lumber Co., 171 N.C. 410, 88 S.E. 633 (1916).

Notary Public of Another State - Proof in That State. - A deed regularly proved before a notary public in South Carolina by authority of this section is effectual to pass title as against creditors. County Sav. Bank v. Tolbert, 192 N.C. 126, 133 S.E. 558 (1926).

Notary Public of Another State - Proof in This State. - The probate of an instrument taken in this State by a notary public of another state is defective. County Sav. Bank v. Tolbert, 192 N.C. 126, 133 S.E. 558 (1926).

Rights of Purchaser Where Record Is Clear. - While a probate of a mortgage taken in this State by a notary public of another state is defective, the purchaser at the mortgage sale will acquire the title by his deed as against a subsequent judgment creditor, when the probate appears of record, in the office of the register of deeds in the county wherein the land is situate here, to have been regularly taken in such other state, and there is no evidence that such purchaser had knowledge of the defect at or before the time he acquired his deed. County Sav. Bank v. Tolbert, 192 N.C. 126, 133 S.E. 558 (1926).

Assumption that Notary Was Rightfully Appointed. - Where it appears from the probate of a deed that it was probated before a woman notary public in another state, it would be assumed that the notary was rightfully appointed and her act would be recognized as valid here. Nicholson v. Eureka Lumber Co., 160 N.C. 33, 75 S.E. 730 (1912).

Cited in DeJaager v. DeJaager, 47 N.C. App. 452, 267 S.E.2d 399 (1980).


§ 47-2.1. Validation of instruments proved before officers of certain ranks.

Any instrument or writing, required by law to be proved or acknowledged before an officer, which prior to the ratification of this section was proved or acknowledged before an officer of the United States Army or Marine Corps having the rank of second lieutenant or higher, or any officer of the United States Navy, or United States Coast Guard, or United States Merchant Marine, having the rank of ensign or higher, is hereby validated and declared sufficient for all purposes.

History

(1945, c. 6, s. 2; 2011-183, s. 31.)

Effect of Amendments. - Session Laws 2011-183, s. 31, effective June 20, 2011, substituted "Army or Marine Corps" for "army or United States marine corps," "Navy" for "navy," "Coast Guard" for "coast guard," and "Merchant Marine" for "merchant marine."

§ 47-2.2. Notary public of sister state; lack of seal or stamp or expiration date of commission.

  1. If the proof or acknowledgment of any instrument is had before a notary public of any state other than North Carolina and the instrument does not (i) show the seal or stamp of the notary public, (ii) provide evidence pursuant to subsection (b) of this section that a seal or stamp is not required and the expiration date of the commission of the notary public, or (iii) state, as part of the proof or acknowledgement or as part of the notary's seal, that the notary's commission does not expire or is a lifetime appointment, then the certificate of proof or acknowledgment made by the notary public shall be accompanied by the certificate of the county official before whom the notary qualifies for office or of a state officer authorized to issue certificates regarding notary commission status, stating that the notary public was at the time the certificate bears date an acting notary public of that state, and that the notary's genuine signature is set to the certificate. The certificate of the official shall be under the official's hand and official seal.
  2. A proof or acknowledgement that does not require a seal or stamp of the notary to be effective in the jurisdiction issuing the notary's commission shall include either (i) a statement by the notary within the proof or acknowledgement area of the instrument that the notary is not required to utilize a seal or stamp or (ii) a reference that purports to be the statute of the commissioning state which provides that no seal or stamp is required together with a statement that the notary is not required to utilize a seal or stamp. The register of deeds may rely upon this statement and is not responsible for confirming its validity or the authority of the person making it. A register of deeds shall not refuse to accept a record for registration because a notarial seal or stamp is omitted from the proof or acknowledgement if this subsection has been complied with in the proof or acknowledgement. The acceptance of a record for registration under this subsection gives rise to a presumption that the seal or stamp was not required to be affixed by the notary. This presumption is rebuttable and applies to all instruments whenever recorded. However, a court order finding the lack of a valid seal does not affect the rights of a person that (i) records an interest in the real property described in the instrument before the finding of a lack of a valid seal and (ii) would otherwise have an enforceable interest in the real property.

History

(1973, c. 1016; 2013-204, s. 1.12; 2021-91, s. 6.)

Effect of Amendments. - Session Laws 2013-204, s. 1.12, effectiveJune 26, 2013, designated the existing paragraph as subsection (a); in subsection (a), added "(i)," "(ii) provide evidence pursuant to subsection (b) of this section that a seal or stamp is not required," "or (iii) state that the notary's commission does not expire or is a lifetime appointment," and "or of a state officer authorized to issue certificates regarding notary commission status"; and added subsection (b).

Session Laws 2021-91, s. 6, effective October 1, 2021, rewrote the section.

§ 47-3: Repealed by Session Laws 1987, c. 620, s. 3.

§ 47-4: Repealed by Session Laws 1971, c. 1185, s. 10.

§ 47-5. When seal of officer necessary to probate.

When proof or acknowledgment of the execution of any instrument by any maker of such instrument, whether a person or corporation, is had before any official authorized by law to take such proof and acknowledgment, and such official has an official seal, he shall set his official seal to his certificate. If the official before whom the instrument is proved or acknowledged has no official seal he shall certify under his hand, and his private seal shall not be essential. When the instrument is proved or acknowledged before the register of deeds of the county in which the instrument is to be registered, the official seal shall not be necessary.

History

(1899, c. 235, s. 8; Rev., s. 993; C.S., s. 3297; 1969, c. 664, s. 3; 1977, c. 375, s. 12.)

Cross References. - As to attestation of official acts of notaries public, see G.S. 10A-9(b).

As to validation of certain acknowledgments of deeds, etc., before a notary public where seal was omitted, see G.S. 47-52, 47-53.1 and 47-102.

As to validation of certain acknowledgments before officers with seal where seal does not appear of record, see G.S. 47-53.

CASE NOTES

Name of Notary on Notarial Seal. - The statute does not require that the notary's name or any name should be used on the notarial seal, though customarily the name of the notary does appear thereon. The seal appended by the notary to his certificate is presumably his, in the absence of evidence to the contrary. This is not rebutted by the mere fact that the notary signs his name "Geo. Theo. Sommer" and the seal has on it the name of "Theo. Sommer," when the fact of the execution of the deed is adjudged to have been proved by such seal and certificate of the notary. Deans v. Pate, 114 N.C. 194, 19 S.E. 146 (1894).

Effect of Omission of Seal. - The failure of a justice of the peace to attach his seal to a certificate of the proof of execution of a deed and privy examination of the wife did not invalidate his action, otherwise regular. Lineberger v. Tidwell, 104 N.C. 506, 10 S.E. 758 (1889).

Presumption as to Seal. - When a copy of the certificate of the commissioner of affidavits concludes, "Given under my hand and seal," the presumption is that the seal was affixed to the original, though not appearing in the copy. Johnson v. Eversole Lumber Co., 147 N.C. 249, 60 S.E. 1129 (1908).

The certificate of probate to a deed need not have a seal if not required by statute at the date of the execution. Westfelt v. Adams, 131 N.C. 379, 42 S.E. 823 (1902).


§ 47-6. Officials may act although land or maker's residence elsewhere.

The execution of all instruments required or permitted by law to be registered may be proved or acknowledged before any of the officials authorized by law to take probates, regardless of the county in this State in which the subject matter of the instrument may be situated and regardless of the domicile, residence or citizenship of the person who executes such instrument, or of the domicile, residence or citizenship of the person to whom or for whose benefit such instrument may be made.

History

(1899, c. 235, s. 13; Rev., s. 994; C.S., s. 3298.)

§ 47-7: Repealed by Session Laws 1987, c. 620, s. 3.

§ 47-8: Repealed by Session Laws 1991, c. 543, s. 1.

§ 47-8.1. Certain documents verified by attorneys validated.

Final judgments otherwise proper, entered in actions or proceedings in which the complaints or any other documents were verified in violation of G.S. 47-8 prior to its repeal shall not be void or voidable.

History

(1991, c. 543, s. 2.)

Editor's Note. - G.S. 47-8, referred to in this section, was repealed by Session Laws 1991, c. 543, s. 1, effective July 4, 1991.

§ 47-9. Probates before stockholders in building and loan associations.

No acknowledgment or proof of execution of any mortgage or deed of trust executed to secure the payment of any indebtedness to any building and loan association shall hereafter be held invalid by reason of the fact that the officer taking such acknowledgment or proof is a stockholder in said building and loan association. This section does not authorize any officer or director of a building and loan association to take acknowledgments or proofs. The provisions of this section shall apply to federal savings and loan associations having their principal offices in this State. Acknowledgments and proofs of execution, including private examinations of any married woman taken before March 20, 1939, by an officer who is or was a stockholder in any federal savings and loan association, are hereby validated.

History

(1913, c. 110, ss. 1, 3; C.S., s. 3301; 1939, c. 136; 1977, c. 375, s. 12.)

§ 47-10. Probate before stockholders or directors in banking corporations.

No acknowledgment or proof of execution, including privy examination of married women, of any mortgage, or deed of trust executed to secure the payment of any indebtedness to any banking corporation, taken prior to the first day of January, 1929, shall be held invalid by reason of the fact that the officer taking such acknowledgment, proof or privy examination, was a stockholder or director in such banking corporation.

History

(1929, c. 302, s. 1.)

CASE NOTES

Acknowledgment Before Bank Official. - Where a mortgage is executed on the equity in lands in order to secure endorsers on a note against loss, and the note is discounted at a bank, the contract to secure the endorsers against loss is a collateral agreement between the makers and endorsers to which the bank is not a party, and the acknowledgment to the mortgage taken by an official of the bank is valid. Watkins v. Simonds, 202 N.C. 746, 164 S.E. 363 (1932).


§ 47-11. Subpoenas to maker and subscribing witnesses.

The grantee or other party to an instrument required or allowed by law to be registered may at his own expense obtain from the clerk of the superior court of the county in which the instrument is required to be registered a subpoena for any or all of the makers of or subscribing witnesses to such instrument, commanding such maker or subscribing witness to appear before such clerk at his office at a certain time to give evidence concerning the execution of the instrument. The subpoena shall be directed to the sheriff of the county in which the person upon whom it is to be served resides. If any person refuses to obey such subpoena he is liable to a fine of forty dollars ($40.00) or to be attached for contempt by the clerk, upon its being made to appear to the satisfaction of the clerk that such disobedience was intentional, under the same rules of law as are prescribed in the cases of other defaulting witnesses.

History

(Code, s. 1268; 1897, c. 28; 1899, c. 235, s. 16; Rev., s. 996; C.S., s. 3302.)

§ 47-12. Proof of attested instrument by subscribing witness.

Except as provided by G.S. 47-12.2, the execution of any instrument required or permitted by law to be registered, which has been witnessed by one or more subscribing witnesses, may be proved for registration before any official authorized by law to take proof of such an instrument, by a statement under oath of any such subscribing witness that the maker either signed the instrument in his presence or acknowledged to him the execution thereof. Nothing in this section in anywise affects any of the requirements set out in G.S. 52-10 or 52-10.1.

History

(1899, c. 235, s. 12; Rev., s. 997; C.S., s. 3303; 1935, c. 168; 1937, c. 7; 1945, c. 73, s. 11; 1947, c. 991, s. 1; 1949, c. 815, ss. 1, 2; 1951, c. 379, s. 1; 1953, c. 1078, s. 1; 1977, c. 375, s. 12.)

Legal Periodicals. - As to early amendatory acts, see 15 N.C.L. Rev. 337 (1937) and 25 N.C.L. Rev. 406 (1947).

For brief comment on the 1951 amendment, see 29 N.C.L. Rev. 411 (1951).

CASE NOTES

Registration of improperly acknowledged or defectively probated deed imports no constructive notice, and the deed will be treated as if unregistered. New Home Bldg. Supply Co. v. Nations, 259 N.C. 681, 131 S.E.2d 425 (1963).

Applied in Clark v. Butts, 240 N.C. 709, 83 S.E.2d 885 (1954); Nelson v. Comer, 21 N.C. App. 636, 205 S.E.2d 537 (1974).


§ 47-12.1. Proof of attested instrument by proof of handwriting.

  1. If all subscribing witnesses have died or have left the State or have become of unsound mind or otherwise incompetent or unavailable, the execution of such instrument, except as provided by G.S. 47-12.2, may be proved for registration, before any official authorized by law to take proof of such an instrument, by a statement under oath that the affiant knows the handwriting of the maker and that the purported signature of the maker is in the handwriting of the maker, or by a statement under oath that the affiant knows the handwriting of a particular subscribing witness and that the purported signature of such subscribing witness is in the handwriting of such subscribing witness.
  2. Nothing in this section in anywise affects any of the requirements set out in G.S. 52-10 or 52-10.1.

History

(1899, c. 235, s. 12; Rev., s. 997; C.S., s. 3303; 1935, c. 168; 1937, c. 7; 1945, c. 73, s. 11; 1947, c. 991, s. 1; 1949, c. 815, ss. 1, 2; 1951, c. 379, s. 1; 1977, c. 375, s. 12.)

§ 47-12.2. Subscribing witness incompetent when grantee or beneficiary.

The execution of an instrument may not be proved for registration by a subscribing witness who, at the time of the execution of the instrument by the subscribing witness, is the grantee or beneficiary therein nor by proof of his signature as such subscribing witness. Nothing in this section invalidates the registration of any instrument registered prior to April 9, 1935.

History

(1899, c. 235, s. 12; Rev., s. 997; C.S., s. 3303; 1935, c. 168; 1937, c. 7; 1945, c. 73, s. 11; 1947, c. 991, s. 1; 1949, c. 815, ss. 1, 2; 1951, c. 379, s. 1; 2013-204, s. 1.13.)

Effect of Amendments. - Session Laws 2013-204, s. 1.13, effective June 26, 2013, added "at the time of the execution of the instrument by the subscribing witness" in the first sentence.

§ 47-13. Proof of unattested writing.

If an instrument required or permitted by law to be registered has no subscribing witness, the execution of the same may be proven before any official authorized to take the proof and acknowledgment of such instrument by proof of the handwriting of the maker and this shall likewise apply to proof of execution of instruments by married persons.

History

(1899, c. 235, s. 11; Rev., s. 998; C.S., s. 3304; 1945, c. 73, s. 12; 1977, c. 375, s. 12.)

CASE NOTES

Admission to Probate by Proof of Handwriting. - A deed having no subscribing witness may be admitted to probate and registration upon proof of the handwriting of the maker, or, if the subscribing witness is dead, upon proof of his handwriting. Black v. Justice, 86 N.C. 504 (1882).

Proof of Writing of Nonresident by Resident Party. - Where the parties to an instrument requiring registration are nonresidents, except one, the instrument may be probated by proving the handwriting of the nonresident by the resident party. LeRoy v. Jacobosky, 136 N.C. 443, 48 S.E. 796 (1904).

Registration of improperly acknowledged or defectively probated deed imports no constructive notice and the deed will be treated as if unregistered. New Home Bldg. Supply Co. v. Nations, 259 N.C. 681, 131 S.E.2d 425 (1963).


§ 47-13.1. Certificate of officer taking proof of instrument.

The person taking proof of an instrument pursuant to G.S. 47-12, 47-12.1 or 47-13 shall execute a certificate on or attached to the instrument being proved, certifying to the fact of proof substantially as provided in the certificate forms set out in G.S. 47-43.2, 47-43.3 and 47-43.4, and such certificate shall be prima facie evidence of the facts therein certified.

History

(1951, c. 379, s. 2; 1953, c. 1078, s. 2.)

§ 47-14. Register of deeds to verify the presence of proof or acknowledgement and register instruments and electronic documents; order by judge; instruments to which register of deeds is a party.

  1. Verification of Instruments. - The register of deeds shall not accept for registration any instrument that requires proof or acknowledgement unless the execution of the instrument by one or more signers appears to have been proved or acknowledged before an officer with the apparent authority to take proofs or acknowledgements, and the proof or acknowledgement includes the officer's signature, commission expiration date, and official seal, if required. The register of deeds shall accept an instrument for registration that does not require proof or acknowledgement if the instrument otherwise satisfies the requirements of G.S. 161-14. Any instrument previously recorded or any certified copy of any instrument previously recorded may be rerecorded provided the instrument is conspicuously marked on the first page as a rerecording. The register of deeds may rely on the marking and the appearance of the original recording office's recording information to determine that an instrument is being presented as it was previously recorded. The register of deeds is not required to further verify the proof or acknowledgement of or determine whether any changes or alterations have been made after the original recording to an instrument presented for rerecording. The register of deeds is not required to verify or make inquiry concerning any of the following:
    1. The legal sufficiency of any proof or acknowledgement.
    2. The authority of any officer who took a proof or acknowledgement.
    3. The legal sufficiency of any document presented for registration.
  2. Verification of Electronic Documents. - The requirements of subsection (a) of this section for verification of the execution of an instrument are satisfied with respect to an electronic document if all of the conditions in this subsection are met. For purposes of this subsection, the term "electronic document" is as defined in G.S. 47-16.2(3). The conditions are:
    1. The register of deeds has authorized the submitter to electronically register the electronic document.
    2. The document is submitted by a United States federal or state governmental unit or instrumentality or a trusted submitter. For purposes of this subsection, "a trusted submitter" means a person or entity that has entered into a memorandum of understanding regarding electronic recording with the register of deeds in the county in which the electronic document is to be submitted.
    3. The execution of the instrument by one or more signers appears to have been proved or acknowledged before an officer with the apparent authority to take proofs or acknowledgements, and the proof or acknowledgment includes the officer's signature, commission expiration date, and official seal, if required, based on the appearance of these elements on the digitized image of the document as it will appear on the public record.
    4. Evidence of other required governmental certification or annotation appears on the digitized image of the document as it will appear on the public record.
    5. With respect to a document submitted by a trusted submitter, the digitized image of the document as it will appear on the public record contains the submitter's name in the following completed statement on the first page of the document image: "Submitted electronically by ______ (submitter's name) in compliance with North Carolina statutes governing recordable documents and the terms of the submitter agreement with the ______ (insert county name) County Register of Deeds."
    6. Except as otherwise provided in this subsection, the digitized image of the electronic document conforms to all other applicable laws and rules that prescribe recordation.
  3. Verification of Officer's Signature. - Submission to a register of deeds of an electronic document requiring proof or acknowledgement is a representation by the submitter that, prior to submission, the submitter verified the officer's signature required under subdivision (a1)(3) of this section to be one of the types of signatures listed in this subsection. The register of deeds may rely on this representation for purposes of determining compliance with the signature requirements of this section. The electronic registration of a document with a register of deeds prior to the effective date of this statute is not invalid based on whether the register verified the officer's signature in accordance with this subsection. The types of signatures are:
    1. A signature in ink by hand.
    2. An electronic signature as defined in G.S. 10B-101(7).
  4. Order by Judge. - If a register of deeds denies registration pursuant to subsection (a), the person offering the instrument for registration may apply to any judge of the district court in the district, including the county in which the instrument is to be registered, for an order for registration. Upon finding all of the requirements in this subsection, the judge shall order the instrument to be registered, together with the certificates, and the register of deeds shall register them accordingly. The requirements are:
    1. If the instrument requires proof or acknowledgement, that the signature of one or more signers has been proved or acknowledged before an officer authorized to take proofs and acknowledgements.
    2. That the proof or acknowledgement includes the officer's signature and commission expiration date and official seal, if required.
  5. Repealed by Session Laws 2008-194, s. 7(a), effective October 1, 2008.
  6. Scope. - Registration of an instrument pursuant to this section is not effective with regard to parties who have not executed the instrument or whose execution thereof has not been duly proved or acknowledged.
  7. Register of Deeds as Party. - Any instrument required or permitted by law to be registered in which the register of deeds of the county of registration is a party may be proved or acknowledged before any magistrate or any notary public.
  8. Presumption of Notarial Seal. - The acceptance of a record for registration by the register of deeds shall give rise to a presumption that, at the time the record was presented for registration, a clear and legible image of the notary's official seal was affixed or embossed on the record near the notary's official signature. This presumption applies regardless of whether the image is legible or photographically reproduced in the records maintained by the register of deeds and applies to all instruments filed in the records maintained by the register of deeds regardless of when the instrument was presented for registration. A register of deeds may not refuse to accept a record for registration because a notarial seal does not satisfy the requirements of G.S. 10B-37. The presumption under this subsection is rebuttable and shall apply to all instruments whenever recorded. However, a court order finding the lack of a valid seal shall not affect the rights of a person who (i) records an interest in the real property described in the instrument before the finding of a lack of a valid seal and (ii) would otherwise have an enforceable interest in the real property.

History

(1899, c. 235, s. 7; 1905, c. 414; Rev., s. 999; C.S., s. 3305; 1921, c. 91; 1939, c. 210, s. 2; 1967, c. 639, s. 1; 1969, c. 664, s. 2; 1973, c. 60; 2005-123, s. 2; 2006-59, s. 26; 2006-259, s. 52(a)-(b); 2006-264, s. 40(c); 2008-194, s. 7(a); 2012-18, s. 1.4; 2013-204, s. 1.14.)

Cross References. - As to cure of obvious description errors in recorded instruments, see G.S. 47-36.2.

As to form of adjudication and order of registration, see G.S. 47-37.

Effect of Amendments. - Session Laws 2005-123, s. 2, effective October 1, 2005, rewrote the heading and text of subsections (a) to (c).

Session Laws 2006-59, s. 26, effective October 1, 2006, and except as otherwise set forth in this act, applicable to notarial acts performed on or after that date, added subsection (f).

Session Laws 2006-264, s. 40(c), as amended by Session Laws 2006-259, s. 52(a), effective October 1, 2005, in subsection (a), inserted "it has been changed or altered, or" in the third sentence and added item (iv) at the end.

Session Laws 2008-194, s. 7(a), effective October 1, 2008, inserted "and electronic documents" following "instruments" in the section heading; and rewrote the section.

Session Laws 2012-18, s. 1.4, effective July 1, 2012, deleted the last two sentences in subsection (e).

Session Laws 2013-204, s. 1.14, effective June 26, 2013, in subsection (f), added "and applies to all instruments filed in the records maintained by the register of deeds regardless of when the instrument was presented for registration" in the second sentence, and added the fourth and fifth sentences.

Legal Periodicals. - For article, "North Carolina's Real Estate Recording Laws: The Ghost of 1885," see 28 N.C. Cent. L.J. 199 (2006).

CASE NOTES

Elements of Adjudication. - If the certificate is not found in due form, the instrument is rejected. If the certificate is adjudged in due form, then the clerk (now the register of deeds) admits to probate, i.e., probates it, passes upon the certificate as furnishing proof of execution, and adjudges as to the genuineness of the certificate, the authority of the officer, and whether the justice or officer certifying is such, and the sufficiency of proof as certified. White v. Connelly, 105 N.C. 65, 11 S.E. 177 (1890).

Adjudication Is Mandatory - Generally. - The requirement of this section that the clerk or deputy clerk (now the register of deeds) shall pass upon the sufficiency of the probate of a deed is mandatory and not directory. Woodlief v. Woodlief, 192 N.C. 634, 135 S.E. 612 (1926).

Failure to adjudicate upon the probate to a deed for lands situated here will invalidate the conveyance as against the rights of purchasers and creditors. Champion Fibre Co. v. Cozad, 183 N.C. 600, 112 S.E. 810 (1922), distinguishing two lines of decisions, one holding this section directory, the other holding it mandatory.

Adjudication Is Mandatory - Qualification of the Rule. - While it is held that such act of adjudication and order of registration are directory upon the clerk of the superior court (now the register of deeds) of the county wherein the land is situated, it is so only where the fiat or order of registration has been properly made by the clerk (now the register of deeds) of another county upon which such power has been conferred by the statute, and in the absence of any proper fiat or order for registration, the conveyance will be ineffectual against the rights of purchasers and creditors of the grantor. Champion Fibre Co. v. Cozad, 183 N.C. 600, 112 S.E. 810 (1922).

Adjudication Is Mandatory - Lines of Cases Distinguished. - For line of cases holding that where the clerk of the court of any county in this State took the acknowledgment of a deed and ordered it to registration, it was not absolutely necessary that the certificate of this clerk be passed upon by the clerk of the court of the county in which the land was situated, see Holmes v. Marshall, 72 N.C. 37 (1875); Young v. Jackson, 92 N.C. 144 (1885); Darden v. Neuse & Trent River Steamboat Co., 107 N.C. 437, 12 S.E. 46 (1890); and Heath v. Lane, 176 N.C. 119, 96 S.E. 889 (1918), distinguished in Champion Fibre Co. v. Cozad, 183 N.C. 600, 112 S.E. 810 (1922).

For line of cases holding this section to be mandatory, in which probate was taken before some officer other than the clerk of court, judges of the superior court, or justices of the Supreme Court, see Simmons v. Gholson, 50 N.C. 401 (1858); Evans v. Etheridge, 99 N.C. 43, 5 S.E. 386 (1888); White v. Connelly, 105 N.C. 65, 11 S.E. 177 (1890); and Cozad v. McAden, 148 N.C. 10, 61 S.E. 633 (1908), rev'd on rehearing, 150 N.C. 206, 63 S.E. 944 (1909), distinguished in Champion Fibre Co. v. Cozad, 183 N.C. 600, 112 S.E. 810 (1922).

For case which apparently limited the doctrine that the statute was directory to cases in which deeds had been acknowledged before other clerks, judges, or justices of the Supreme Court, see Darden v. Neuse & Trent River Steamboat Co., 107 N.C. 437, 12 S.E. 46 (1890).

Adjudication Is Mandatory - Where Probate Taken by Foreign Commissioner of Deeds. - The probate to a mortgage of lands situated in North Carolina, taken by the commissioner of deeds in another state, registered without the fiat or order for registration by a clerk of the superior court (now the register of deeds) within the State, and clothed with authority to do so by statute, is ineffectual as against purchasers or creditors to pass title to the purchaser at the foreclosure sale, or those claiming under him. Champion Fibre Co. v. Cozad, 183 N.C. 600, 112 S.E. 810 (1922).

Substantial Compliance Sufficient. - A substantial compliance with this section and G.S. 47-37 is all that is necessary to be observed by the clerk of the superior court (now the register of deeds) of the county wherein the land lay, in passing upon the certificate to a deed thereto made and executed in another state; and when objection to the validity of registration is made on that ground, and it appears of record on appeal that the certificate made in such other state is in fact sufficient, the validity of the registration will be declared and upheld by the Supreme Court. Kleybolte & Co. v. Black Mt. Timber Co., 151 N.C. 635, 66 S.E. 663 (1910).

Use of Words "In Due Form" Not Essential to Adjudication. - The adjudication by the clerk of the superior court (now the register of deeds) that "the foregoing instrument has been duly proved, as appears from the foregoing seal and certificate," does not follow the very words of the statute in that it does not adjudge that said probate is "in due form." But it is intelligible and means substantially the same thing and will be upheld without regard to mere form. Devereux v. McMahon, 102 N.C. 284, 9 S.E. 635 (1889).

Where the acknowledgment was before an officer authorized to take it and the probate was in fact in due form, the omission of the clerk (now the register of deeds) to adjudge in just so many words that the probate was "in due form," when in substance he did so adjudge, did not constitute sufficient grounds to exclude the deed. Deans v. Pate, 114 N.C. 194, 19 S.E. 146 (1894).

Registration No Evidence of Adjudication Without Signed Certificate of Clerk. - Where the acknowledgment of the grantor and his wife to a deed to lands has been properly taken and the clerk of the court (now the register of deeds) has failed or omitted to sign his name to the certificate for registration, the registration of the instrument is no evidence of compliance with the provisions of this section. The curative statutes, G.S. 47-49, 47-86, 47-87, 47-88, and 47-89, have no application. Woodlief v. Woodlief, 192 N.C. 634, 135 S.E. 612 (1926).

Parol Evidence. - The statutes of this State require, as the method of authentication and warrant to the register to record a deed, that a certificate complying substantially with the terms of the statute shall be attached to or endorsed upon the deed, even though probate is had before the clerk of the superior court (now the register of deeds), and where no sufficient certificate was attached to or endorsed upon an instrument, it could not be shown by parol that proper proof was made before the clerk. National Bank v. Hill, 226 F. 102 (E.D.N.C. 1915).

To What Clerk Must Certify. - It is only required for a valid probate that the clerk (now the register of deeds) should certify to the proof of a deed taken before him. It is only when he passes upon a probate taken before some other officer that he is required to certify to the correctness of the probate and certificate. Table Rock Lumber Co. v. Branch, 158 N.C. 251, 73 S.E. 164 (1911).

Adjudication of Instrument Probated in Another State. - When a deed in trust made and executed beyond the borders of this State conveying lands herein has been there acknowledged and probated before a notary public, and (unnecessarily) the clerk of the Supreme Court, in compliance with a statute there, has certified the official character of the notary and his authority as such, it is a sufficient compliance with this section and G.S. 47-37 for the clerk of the superior court (now the register of deeds) of the county wherein the land lay to certify that "the foregoing and annexed certificate of (naming the clerk), a clerk of the Supreme Court, etc., duly authenticated by his official seal, is adjudged to be correct, in due form and according to law, and the foregoing and annexed deed of trust is adjudged to be duly proved, etc." Kleybolte & Co. v. Black Mt. Timber Co., 151 N.C. 635, 66 S.E. 663 (1910).

Certificate Not Required for Registration of Grant by State. - The certificate of the clerk of the court (now the register of deeds), required as a prerequisite to the registration of instruments named therein, is not essential to the validity of the registration of a grant, the great seal of the State being sufficient authority for such registration. Ray v. Stewart, 105 N.C. 472, 11 S.E. 182 (1890).

Presumption of Regularity from Certificate. - Where it appears that the clerk (now the register of deeds) appended his certificate to a lease offered for registration, it would be presumed, nothing to the contrary appearing, that it was in due form. Darden v. Neuse & Trent River Steamboat Co., 107 N.C. 437, 12 S.E. 46 (1890).

Defective Corporate Deed of Trust Invalid Notwithstanding Adjudication. - A corporate deed of trust was executed by the trustee, as well as the corporation, and bore a notary's certificate of proof of the trustee's execution, and a certificate as required by this section that the instrument had been duly proved, "as appears from the foregoing seals and certificate, which are adjudged to be in due form and according to law," but no certificate as to the proof of execution by the corporation was attached. It was held, under this section, that the certificate was invalid, and did not entitle the deed to registration. National Bank v. Hill, 226 F. 102 (E.D.N.C. 1915).

Ancient Document Rule. - Plaintiffs claimed the locus in quo under 7 years adverse possession under color and under 20 years adverse possession. Defendants objected to certain deeds in plaintiffs' chain of color of title on the ground that they were improperly registered and did not comply with this section and G.S. 47-17. It was held that the deeds, having been on record for some 30 years, were competent under the ancient document rule to be submitted to the jury on the claim of adverse possession for 20 years, and error, if any, in admitting the deeds as color of title was not prejudicial under the facts. Owens v. Blackwood Lumber Co., 212 N.C. 133, 193 S.E. 219 (1937).

Adjudication as Exercise of Judicial Function. - When the clerk of the superior court (now the register of deeds), upon the certificate of the acknowledgment of a grantor in a conveyance or of proof of its execution before him, adjudges such certificate to be in due form, admits the instrument to probate, and orders its registration, this is the exercise of a judicial function. White v. Connelly, 105 N.C. 65, 11 S.E. 177 (1890).

Cited in Hi-Fort, Inc. v. Burnette, 42 N.C. App. 428, 257 S.E.2d 85 (1979).

Opinions of Attorney General

Fee. - The register of deeds should charge only one fee under G.S. 161-10 for probate of the instrument to be registered, regardless of the number of notary acknowledgments appearing thereon. See opinion of Attorney General to Miss Frances H. Burwell, Stokes County Register of Deeds, 40 N.C.A.G. 611 (1969).

To Be Probated, Instrument's Notarization Must Show Expiration Date of Notary's Commission. - See opinion of Attorney General to Mr. Alex T. Wood, Register of Deeds, Franklin County, 41 N.C.A.G. 225 (1971).

§ 47-14.1. Repeal of laws requiring private examination of married women.

All deeds, contracts, conveyances, leaseholds or other instruments executed from and after February 7, 1945, shall be valid for all purposes without the separate, privy, or private examination of married woman where she is a party to or a grantor in such deed, contract, conveyance, leasehold or other instrument, and it shall not be necessary nor required that the separate or privy examination of such married woman be taken by the certifying officer. From and after February 7, 1945, all laws and clauses of laws contained in any section of the General Statutes requiring the privy or private examination of a married woman are hereby repealed.

History

(1945, c. 73, s. 21; 1951, c. 893, s. 1.)

Legal Periodicals. - For comment on the constitutionality of the privy examination under former G.S. 52-6(a) and its relation to this section, see 12 Wake Forest L. Rev. 1007 (1977).

CASE NOTES

This Section Did Not Repeal Former G.S. 52-6. - This section, which formerly appeared as G.S. 47-116, did not repeal former G.S. 52-6. Honeycutt v. Citizens Nat'l Bank, 242 N.C. 734, 89 S.E.2d 598 (1955).

Cited in North Carolina Baptist Hosps. v. Harris, 319 N.C. 347, 354 S.E.2d 471 (1987).


§ 47-15: Repealed by Session Laws 1985, c. 589, s. 26.

§ 47-16. Probate of corporate deeds, where corporation has ceased to exist.

It is competent for the clerk of the superior court in any county in this State, on proof before him upon the oath and examination of the subscribing witness to any contract or instrument required to be registered under the laws of this State, to adjudge and order that such contract or instrument be registered as by law provided, when such contract or instrument is signed by any corporation in its corporate name by its president, and when such corporation has been out of existence for more than 10 years when the said contract or instrument is offered for probate and registration, and when the grantee and those claiming under any such grantee have been in the uninterrupted possession of the property described in said contract or instrument since the date of its execution; and said contract or instrument so probated and registered shall be as effective to all intents and purposes as if signed, sealed, and acknowledged, or proven, as provided under the existing laws of this State.

History

(1911, c. 44, s. 1; C.S., s. 3307.)

Cross References. - As to forms of probate for deeds and other conveyances by corporations, see G.S. 47-41.

ARTICLE 1A. Uniform Real Property Electronic Recording Act.

Sec.

§ 47-16.1. Short title.

This Article may be cited as the Uniform Real Property Electronic Recording Act.

History

(2005-391, s. 1.)

OFFICIAL COMMENT

This act applies to the recording of documents in the land records office maintained by a recorder. It applies both to the filing of, and the searching for, documents in the recorder's office by whatever term or terms those functions and offices are known locally.

NORTH CAROLINA COMMENT

This article results from a study the General Statutes Commission was directed to perform by S.L. 2004-161, s. 6.1. The Commission filed its report with the General Assembly on January 26, 2005, and a supplement to that report on March 8, 2005. The Uniform Act's term "recorder" was replaced throughout with the term used in this State, "register of deeds."

Editor's Note. - Session Laws 2005-391, s. 2, provides: "The Revisor of Statutes shall cause to be printed along with this act all relevant portions of the official comments to the Uniform Real Property Electronic Recording Act and all explanatory comments of the drafters of this act as the Revisor deems appropriate."

Official Comments, copyright 2005, are reprinted in this Article with the permission of the National Conference of Commissioners on Uniform State Laws. It is believed that the Official Comments will prove of value to the practitioner in understanding and applying the text of this Article.

The Official Comments appearing under individual sections in this Article have been printed by the publisher as received, without editorial change, and relate to the Chapter as originally enacted. However, not all sections in this Article may carry Official Comments. Furthermore, Official Comments may or may not have been received or updated in conjunction with subsequent amendments to this Article and, therefore, may not reflect all changes to the sections under which they appear.

Where they appear in this Article, "Amended Comment" usually means that an error in the original comment has been corrected by a subsequent amendment, and "Supplemental Comment" pertains to a later development, such as an amendment to the statute text. North Carolina Comments explain where the General Assembly has enacted variations to the text of the Uniform Act.

§ 47-16.2. Definitions.

In this Article:

  1. "Document" means information that is:
    1. Inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; and
    2. Eligible to be recorded in the land records maintained by the register of deeds.
  2. "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
  3. "Electronic document" means a document that is received by the register of deeds in an electronic form.
  4. "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document.
  5. "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

History

(2005-391, s. 1.)

OFFICIAL COMMENT

  1. "Document." A document consists of information stored on a medium, whether the medium be tangible or electronic, provided that the information is retrievable in a perceivable form. The traditional tangible medium has been paper on which information is inscribed by writing, typing, printing or similar means. It is perceivable by reading it directly from the paper on which it is inscribed. An electronic medium may be one on which information is stored magnetically and from which it may be retrieved and read indirectly on a computer monitor or a paper printout.
  2. "Electronic." The term "electronic" refers to the use of electrical, digital, magnetic, wireless, optical, electromagnetic and similar technologies. It is a descriptive term meant to include all technologies involving electronic processes. The listing of specific technologies is not intended to be a limiting one. For example, biometric identification technologies would be included if they affect communication and storage of information by electronic means. As electronic technologies expand and include other competencies, those competencies should also be included under this definition.
  3. "Electronic document." An "electronic document" is a "document" that is in an "electronic" form. Both of these terms are previously defined. However, this definition adds an additional requirement not specifically stated in the individual definitions. In order to be an "electronic document" the document must be received by the recorder in an "electronic" form. The character of a document as "electronic" or "paper" will be determined at the moment it is received by the recorder.
  4. "Electronic signature." The term "electronic signature" is based on the definition of that term in UETA § 2(8). However, this definition uses the word "document" instead of "record" to identify the instrument being signed. (See generally paragraph 1, above, for a discussion of the reasons).
  5. "Person." The definition of a "person" is the standard definition for that term used in acts adopted by the National Conference of Commissioners on Uniform State Laws. It includes individuals, associations of individuals, and corporate and governmental entities.

While a document recorded in a land records office will usually contain information affecting real property, it need not necessarily be so limited. It applies to any document that is recorded in the land records office maintained by the recorder. Deeds, grants of easements, and mortgages are documents subject to this act. Similarly, certificates and affidavits not directly affecting real property may be documents under this act if state law provides these documents are to be recorded in the land records office.

The definition of a document in this act is derived from the definition of the term "record" as contained in the Uniform Electronic Transactions Act (UETA) § 2(13). In the terms of that act, a document is a record that is eligible to be recorded in the land records maintained by the recorder. In selecting the defined term "document" for use throughout this act, an explicit decision was made not to use "record" as a defined term. The term "record" has a different meaning in real estate recording law and practice than it has in UETA. If the term "record" were used generally in this act, it might lead to confusion and misinterpretation.

In UETA, the term "record" refers to information on a tangible or electronic medium as does the term "document" in this act. In this act, however, depending on syntax, the term "record" and its variations can have several meanings, all of which deal with document storage and not the information itself. For example, this act deals with the recording process through which a person can record a document. The government officer who oversees the land records office is the recorder . These terms are so ingrained in the lexicon of real estate recording law and practice that it would not be productive to attempt to change them by this act.

The definition of the term "electronic" in this act has the same meaning as it has in UETA § 2(5).

Even though a document may have an existence in an "electronic" form prior or subsequent to being received by the recorder it might not be an "electronic document" under this act. For example, the document may have been created by an electronic process or have existed in an electronic form before being converted to, and received by the recorder in, a paper form. Thus, a document prepared on a computer by means of a word processing program may have been created electronically and may still exist electronically. If, however, the document is printed and submitted to the recorder on paper, the submitted document is not an electronic document. Similarly, after arriving in the recorder's office in a paper form, the document may be converted to an electronic form prior to, or as part of, the recording process. The paper document does not become an electronic document because of the post-receipt conversion. (For a definition of the term "paper document," see § 4(a).)

By comparison, a document received by the recorder in an electronic form, but subsequently converted to a paper form, will be considered to be an electronic document. For example, if a document is received electronically and then printed in a paper form in the recorder's office prior to storage, it is, nonetheless, an electronic document. Thus, a document received by the process commonly known as a facsimile or a FAX, is an electronic document. Issues common to electronic documents, such as security and integrity, also relate to a facsimile or FAX document.

In many cases a document may have originally been executed in a paper form with "wet signatures" and subsequently imaged and converted into an electronic format. This act provides that, if such a converted document is received by the recorder in an electronic format, it will be considered to be an electronic document and may be recorded. ( See § 3(a).)

This act does not state or limit the type of electronic documents that may be accepted by the recorder. Nor does it state the type of electronic signatures that are permissible. Those matters are subject to the standards adopted by the state Electronic Recording Commission or state agency pursuant to § 5.

This act applies only to documents that are received by the recorder in an electronic form and enables those documents to be recorded. The recordability of documents not received by the recorder in an electronic form continues to depend on other state law.

. . . .

NORTH CAROLINA COMMENT

The General Statutes Commission deleted the definition of "State" as unnecessary. See G.S. 12-3.

§ 47-16.3. Validity of electronic documents.

  1. If a law requires, as a condition for recording, that a document be an original, be on paper or another tangible medium, or be in writing, the requirement is satisfied by an electronic document satisfying this Article.
  2. If a law requires, as a condition for recording, that a document be signed, the requirement is satisfied by an electronic signature.
  3. A requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied if the electronic signature of the person authorized to notarize, acknowledge, verify, witness, or administer the oath, and all other information required to be included, is attached to or logically associated with the document or signature. A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature. Nothing in this act shall prohibit the North Carolina Board of Examiners for Engineers and Surveyors from requiring that the image of a seal accompany any plat or map that is presented electronically for recording.

History

(2005-391, s. 1.)

OFFICIAL COMMENT

  1. Subsection (a) states the basic principle of this act - if a document would be recordable in a paper format, an electronic document with the same content and meeting the requirements of this act is also recordable. Any reference in a statute, regulation, or standard to a document as being on paper or a similar tangible medium in order to be recorded is superseded by this act. Similarly any statute, regulation, or standard that specifies that a document must be in writing in order to be recorded is also overruled by this act. Furthermore, since any paper-specific requirement such as the size of the paper or the color of the ink used for the document is inapplicable to an electronic document, those requirements do not prohibit or limit the recording of electronic documents.
  2. Subsection (b) provides that any statute, regulation, or standard requiring that a document be signed in order to be recorded is satisfied by an electronic signature attached to an electronic document. The provisions of UETA and the federal Electronic Signatures in Global and National Commerce Act (E-Sign) provide that an electronic signature is not an impediment to the enforceability of an electronic document between the parties to the transaction. Similarly, this section provides that an electronic signature is not an impediment to the recording of the document.
  3. This section provides that any statute, regulation, or standard requiring that a notarization, acknowledgement, verification, witnessing, or taking of an oath be done on paper or similar tangible medium, that it be done in writing, or that it be signed, is satisfied by an electronic signature that is attached to, or logically associated with, the electronic document. It permits a notary public or other authorized person to act electronically without the need to do so on paper.

This subsection also provides that any stipulation of state law requiring that a document be an original document is satisfied by an electronic document meeting the requirements of this act. For example, this section acknowledges that one form of electronic document is created by making an electronic duplicate of an original paper document. The duplicate is an electronic "picture" of the original document with all of its signatures and verifications. Under some existing state laws, the electronic duplicate may be considered to be a copy of the original paper document and not the original itself. The laws of the state may also provide that a copy of a document may not be recorded. This act corrects that circumstance and allows the electronic document containing the "picture" of the original document to be recorded. Of course, in order to be valid, the original paper document must be executed in accordance with law, including a signature and verification.

It also provides that any statute, regulation, or standard that requires a personal or corporate stamp, impression, or seal is satisfied by an electronic signature. These physical indicia are inapplicable to a fully electronic document. Thus, the notarial stamp or impression that is required under the laws of some states is not required for an electronic notarization under this act. Nor is there a need for a corporate stamp or impression as would otherwise be required under the laws of some states to verify the action of a corporate officer. Nevertheless, this act requires that the information that would otherwise be contained in the stamp, impression, or seal must be attached to, or logically associated with, the document or signature in an electronic fashion.

NORTH CAROLINA COMMENT

In subsection (c), in the first sentence, the General Statutes Commission deleted the Uniform Act's phrase, "person authorized to perform that act" and replaced it with a restated list of acts in order to clarify that, with respect to a document required to be made under oath, the "person" is someone authorized to administer an oath.

The last sentence of subsection (c) was added in the Senate.

§ 47-16.4. Recording of documents.

  1. In this section, "paper document" means a document that is received by the register of deeds in a form that is not electronic.
  2. A register of deeds:
    1. Who implements any of the functions listed in this section shall do so in compliance with standards adopted by the Secretary of State.
    2. May receive, index, store, archive, and transmit electronic documents.
    3. May provide for access to, and for search and retrieval of, documents and information by electronic means.
    4. Who accepts electronic documents for recording shall continue to accept paper documents as authorized by law and shall place entries for both types of documents in the same index.
    5. May convert paper documents accepted for recording into electronic form.
    6. May convert into electronic form information recorded before the register of deeds began to record electronic documents.
    7. May accept electronically any fee or tax that the register of deeds is authorized to collect.
    8. May agree with other officials of this State or a political subdivision thereof on procedures or processes to facilitate the electronic satisfaction of conditions to recording and the electronic payment of fees and taxes.

History

(2005-391, s. 1.)

OFFICIAL COMMENT

  1. A "paper document" is one that is received by the recorder in a form that is not "electronic." Despite the use of the word "paper," this document form is not limited to documents on a paper medium; the use of the word "paper" is merely a convenience. It applies to any non-electronic document that the recorder is authorized to accept.
  2. Subsection (b) sets forth specific required or elective functions that apply to the recording of documents.
    1. With the exception of paragraphs (1) and (4), implementation of any functions described in subsection (b) is optional and a decision to implement one or more of them is to be made by the recorder. The act does not require that a recorder implement any or all of those functions. It merely allows each recorder to implement them when and if the recorder decides to proceed with electronic recording.
    2. Paragraph (2) provides that the recorder may choose to implement electronic recording functions. Recording functions are varied and deal with obtaining and storing of documents in a recording system. Under this paragraph, the recorder may elect to receive electronic documents. The recorder may store those electronic documents, or the information contained in them, and create an index of the documents or information. The recorder may also transmit electronic documents and communications to the recording party or to other parties. Finally, the recorder may archive the electronic documents or the information in them as well as the index in order to preserve and protect them. This is an election to be made by the recorder that is separate from the decision to provide electronic searching, as described in paragraph (3).
    3. Paragraph (3) provides that the recorder may choose to implement electronic search and retrieval functions. Searching and retrieval functions include any process by which a title searcher obtains information from the land records system. The paragraph allows a recorder to authorize persons to access documents or their information, including index information, electronically. In so doing, the recorder may allow the accessing party to search the index and the stored documents or information electronically and to retrieve them in an electronic format. This is an election to be made by the recorder that is separate from the decision to record electronic documents, as described in paragraph (2). A recorder who operates a "Torrens" title registration system also may choose to implement the functions of accessing, searching, and retrieving documents or information in the title registration system.
    4. This act does not require that persons engaging in real estate transactions use electronic documents in order to have their documents recorded. It merely permits the recorder to accept electronic documents if they are presented electronically. Economics, availability of technology, and human nature suggest that not everyone will begin to use electronic real estate documents immediately. It will likely be some time before the use of electronic documents becomes dominant and perhaps well beyond that before paper documents disappear altogether from the conveyancing process. In recognition of that fact, paragraph (4) requires the recorder to continue to accept paper documents even after establishing an electronic recording system. This is a mandatory and not an elective provision.
    5. Paragraphs (5) and (6) relate to the conversion and storage of the text or information contained in paper documents in an electronic form. It does not concern the index information that is derived from those paper documents. The treatment of index information is described in the paragraph (4).
    6. Paragraph (6) relates to the conversion of information from "old" paper documents recorded prior to the implementation of an electronic recording system. As with newly-received paper documents, the act does not require the recorder to convert previously-recorded information into an electronic form. Such a conversion is, however, permitted under the act.
    7. Paragraph (7) provides that any fee or tax that is collected by the recorder may be collected through an electronic payment system. Without a means of paying the applicable fees and taxes electronically, the achievement of a speedy and efficient electronic recording system would not be possible. Although the document could be submitted electronically, the fee would have to be paid by traditional means. The effective completion of the recording would be delayed until that payment is received by the recorder.
    8. Commonly, before a recorder may accept a document for recording it must be approved by one or more other offices in order to assure compliance with the other office's requirements. The person submitting the document may also be required to pay fees or taxes to the other office or offices. If the prior approval and the fee or tax paying processes are not conjoined with the electronic recording process, it will not be possible to effectuate the speedy electronic recording envisioned by this act.

Just as with the definition of an "electronic document" in section 2 of this act, the moment at which the character of the document will be determined is the moment it is received by the recorder. If a document is received by the recorder in a non-electronic form, it is a "paper" document regardless of whether it has a prior or subsequent existence as an electronic document.

However, under paragraph (1) if a recorder does elect to implement any of the functions described in this section, the recorder must do so in accordance with the standards established by the Electronic Recording Commission or the state agency. All aspects of the functions described in this subsection are subject to the standards of the Commission or agency.

Since this act also applies to "Torrens" title registration systems, a recorder who operates a title registration system may choose to implement the functions of receiving, indexing, storing, archiving, and transmitting electronic documents for the title registration system.

This paragraph also provides that the recorder must index the paper documents together with electronic documents as part of a single indexing system. This will enable a title examiner to make a single search of one index for the purpose of ascertaining all relevant instruments that were recorded after the initiation of electronic recording. It avoids the inefficient and costly process of maintaining and searching two separate indexing systems - one for electronic documents and one for paper documents.

Efficiency also suggests that the unified index would be an electronic one. It would be more efficient to store the index information from paper documents in an electronic index than to convert and store the index information from electronic documents in a paper index system. Electronic index information can be sorted and managed more easily and efficiently than paper index information. In addition, an electronic index can be searched more quickly and without the searcher's physical presence in the recorder's office. However, the act does not require the index chosen by the recorder to be an electronic one.

Paragraph (5) relates to the conversion of "new" paper documents received by the recorder after the implementation of an electronic recording system. It does not require that such newly-received paper documents be converted and stored in an electronic form. It does, however, permit the recorder to make a conversion of those paper documents into an electronic form and store them with electronic documents received by the recorder. If the paper documents are not converted into an electronic form, the recorder must continue to store them and, as public documents, the recorder must continue to provide a process for accessing them.

If the recorder does not convert "new" paper documents into an electronic form, the usefulness and efficiency of the electronic recording system may be limited. A title examiner will have to obtain physical access to the paper document information in traditional ways. Since electronic documents are stored electronically, the examiner will have to access two different storage systems - one for paper documents and one for electronic documents.

Dealing with "old" document information is more challenging than dealing with "new" documents simply because of the potentially large expenditure of time and money needed to convert a significant volume of paper information extending over many past years into an electronic form. The time period over which a fully-effective conversion would extend probably spans a period of forty to sixty or more years, depending on the customary period of search in the jurisdiction. Without the conversion, the usefulness and efficiency of the electronic recording system is limited, at least until the passage of a period after the adoption of the act that is equal to the customary period of search.

The nature and operation of the electronic payment system is not specified. The selection is subject to standards set by the Electronic Recording Commission or state agency and the choice of the recorder. Among others, the alternatives might include a subscription service with a regular billing system, a prepayment system with recording and access charges applied against a deposited amount, or a payment per individual service system.

For example, a document may first need to be submitted to the county assessor or treasurer to determine whether prior real estate taxes have been paid or whether current ones are due. Under current practice that submission and approval might have to be accomplished in a physical process independent of the electronic recording process. If a tax or fee is due, that sum might also have to be paid by check or other non-electronic process to the treasurer. Procedures such as these will delay the electronic recording process and will limit the achievement of a speedy, efficient electronic recording system.

Paragraph (8) permits and encourages the recorder to enter into agreements with other county and state offices for the purpose of implementing processes that will allow the simultaneous satisfaction of all conditions precedent to recording and the payment of all fees and taxes in a single transaction. Any fees and taxes paid by the recording party will be allocated among the recorder and the other offices in accordance with their agreements.

NORTH CAROLINA COMMENT

In subsection (b), the General Statutes Commission amended subdivision (b)(8) by replacing the phrase "other officials of a state or a political subdivision thereof, or of the United States," with "other officials of this State or a political subdivision thereof." The Commission also made three stylistic changes to the wording of the Uniform Act. In subdivision (b)(1), "standards established by" was changed to "standards adopted by." In subdivision (b)(4), the phrase "state law" was changed to "law." In subdivision (b)(8), the phrase "prior approvals and conditions precedent" was changed to "conditions."

Legal Periodicals. - For article, "Torrens Title in North Carolina-Maybe a Hundred Years Is Long Enough," see 39 Campbell L. Rev. 271 (2017).

§ 47-16.5. Administration and standards.

  1. Standard-Setting Agency. - The Secretary of State shall adopt standards to implement this Article upon recommendation of the Electronic Recording Council. The Secretary of State may direct the Council to revise any portion of the recommended standards the Secretary deems inadequate or inappropriate. Technological standards and specifications adopted by the Secretary of State to implement this Article are engineering standards for the purposes of G.S. 150B-2(8a)h.
  2. Electronic Recording Council Created. - The Electronic Recording Council is created in the Department of the Secretary of State to advise and assist the Secretary of State in the adoption of standards to implement this Article. The Council shall review the functions listed in G.S. 47-16.4 and shall formulate and recommend to the Secretary standards for recording electronic documents and implementing the other functions listed in G.S. 47-16.4. The Council shall report its findings and recommendations to the Secretary of State at least once each calendar year. The Council shall advise the Secretary of State on a continuing basis of the need to adopt, amend, revise, or repeal standards. The Council may advise the Secretary of State on any other matter the Secretary refers to the Council.
  3. Council Membership, Terms, and Vacancies. - The Council shall consist of 13 members as follows:
    1. Seven members appointed by the North Carolina Association of Registers of Deeds. It is the intent of the General Assembly that the North Carolina Association of Registers of Deeds shall appoint as members a representative selection of registers of deeds from large, medium, and small counties, urban and rural counties, and the different geographic areas of this State.
    2. One member appointed by the North Carolina Bar Association.
    3. One member appointed by the North Carolina Society of Land Surveyors.
    4. One member appointed by the North Carolina Bankers Association.
    5. One member appointed by the North Carolina Land Title Association.
    6. One member appointed by the North Carolina Association of Assessing Officers.
    7. The Secretary of Natural and Cultural Resources or the Secretary's designee.
  4. Council Meetings and Officers. - The Secretary of State shall call the first meeting of the Council. At the first meeting and biennially thereafter, the Council shall elect from its membership a chair and a vice-chair to serve two-year terms. Meetings may be called by the chair, the vice-chair, or the Secretary of State. Meetings shall be held as often as necessary, but at least once a year.
  5. Council Compensation. - None of the members of the Council shall receive compensation for serving on the Council, but Council members shall receive per diem, subsistence, and travel expenses in accordance with G.S. 138-5 and G.S. 138-6, as applicable.
  6. Staff and Other Assistance. - As soon as practicable and as needed thereafter, the Council shall identify the information technology expertise it needs and report its needs to the Secretary of State. The Council shall also report any other expertise needed to fulfill its responsibilities. The Secretary of State shall provide professional and clerical staff and other services and supplies, including meeting space, as needed for the Council to carry out its duties in an effective manner. The Secretary of State may appoint additional committees to advise and assist the Council in its work.
  7. Uniformity of Standards. - To keep the standards and practices of registers of deeds in this State in harmony with the standards and practices of recording offices in other jurisdictions that enact substantially this Article and to keep the technology used by registers of deeds in this State compatible with technology used by recording offices in other jurisdictions that enact substantially this Article, the Secretary of State and the Council shall consider all of the following in carrying out their responsibilities under this Article, so far as is consistent with its purposes, policies, and provisions:
    1. Standards and practices of other jurisdictions.
    2. The most recent standards adopted by national standard-setting bodies, such as the Property Records Industry Association.
    3. The views of interested persons and other governmental officials and entities.
    4. The needs of counties of varying size, population, and resources.
    5. Standards requiring adequate information security protection to ensure that electronic documents are accurate, authentic, adequately preserved, and resistant to tampering.

In making appointments to the Council, each appointing authority shall select appointees with the ability and commitment to fulfill the purposes of the Council.

Appointed members shall serve four-year terms, except that the initial appointments by the North Carolina Bar Association, the North Carolina Bankers Association, the North Carolina Association of Assessing Officers, and three of the initial appointments by the North Carolina Association of Registers of Deeds shall be for two years. All initial terms shall commence on the effective date of this Article. Members shall serve until their successors are appointed. An appointing authority may reappoint a member for successive terms. A vacancy on the Council shall be filled in the same manner in which the original appointment was made, and the term shall be for the balance of the unexpired term.

The Council shall consult with the North Carolina Local Government Information Systems Association, and may consult with any other person the Council deems appropriate, to advise and assist the Council in its work.

History

(2005-391, s. 1; 2015-241, s. 14.30(t).)

OFFICIAL COMMENT

  1. This section provides two alternatives for designating the entity that will adopt standards to implement this act.
  2. The Electronic Recording Commission or state agency is directed to adopt standards to implement the provisions of this act. As provided in section 4, recorders implementing any of the functions of this act must comply with those standards.
    1. the standards and practices of other states adopting this uniform act or a substantially similar one. In many situations, Electronic Recording Commissions or state agencies of other states may have already considered the same issue. Their research and subsequent experiences may prove very helpful to the commission or state agency in making its decision.
    2. the most recent standards promulgated by national standard-setting bodies, such as the Property Records Industry Association (PRIA). National standard-setting organizations such as PRIA will likely have considered the issue that is now before the commission or agency and have developed a protocol or standard to deal with it. Furthermore, since these bodies are national in scope, they will likely already have considered the needs of recording districts of varying size, population and resources when promulgating their standards.
    3. the views of interested parties. Among others, these persons should include county recorders and potential users of the electronic recording system such as real estate attorneys, mortgage lenders, representatives from the title and escrow industries, real estate brokers, and notaries public. It must also consider the views of governmental offices that may interact with the recording offices, such as clerks of court, taxing authorities, and the office of the Secretary of State. Also included might be potential suppliers of hardware, software and services for electronic recording systems.
    4. the needs of counties of varying size, population and resources. Because most states are quite diverse in the size, population and resources of their recording venues, it is important that the Electronic Recording Commission or state agency consider all of their needs. Standards that are designed only for large, populous and well-funded recording districts may not promote the development of electronic recording in smaller, less-populous and not-as-well funded recording districts. This subsection recognizes that the standards should promote the overall good of the entire state and not just the good of certain types of recording venues. Thus, the commission is advised to consider the needs of the entire spectrum of recording districts.
    5. information security for electronic documents. When considering the adoption of standards, the commission or state agency is directed to consider a number of security concerns.

Alternative A creates a state Electronic Recording Commission and provides for its general composition. The exact size of the board is to be determined by the legislature. The appointment of the commissioners is to be made by the governor or another state official or governmental body determined by the legislature.

Under Alternative A, the majority of the members of the commission must be recorders. Recorders, by the fact that the standards adopted by the Electronic Recording Commission will affect the operation of their offices, have a professional interest in generating efficient, functional standards. If the recorders are appointed from sufficiently diverse recording venues, they can also provide valuable input as to the needs of recording districts of varying size, population and resources, as described further in subsection (b).

Alternative B delegates the duty to adopt standards to implement this act to an existing state agency. In some states this oversight of the recording process, and in some cases the electronic recording process, has already been delegated to an existing state agency. In like fashion, some state legislatures may wish to delegate these duties to an existing state agency instead of creating a new commission as is directed in Alternative A.

If the state agency has oversight of many diverse functions, it might prove useful for the agency to establish a subdivision to implement and adopt standards for this act. The agency or subdivision might also wish to establish a regular process to obtain advice from persons with expertise in the area of recordings, particularly in electronic recordings.

One of the objectives of this act is to facilitate the efficient use of electronic recording within the state and among the various adopting states. This subsection directs the Electronic Recording Commission or state agency to seek to keep the standards and practices of the recording offices in states using electronic recording in harmony and uniformity with each other. Ease of user access and interoperability and the promotion of interstate commerce depend highly on a similarity of standards and operating processes among the various recording offices. However, differences in operating processes and their governing standards may be justified based on legitimate differences that exist from venue to venue. The commission is not required to adopt the same standards and practices that exist in other states, but must give them serious consideration.

When adopting, amending or repealing standards the commission or agency must consider the following factors:

The authenticity of documents stored in any recording system is of utmost importance. If forged or invalid documents are accepted for recording, landowners and those depending on their titles can be seriously affected. Thus, the commission or state agency is directed to consider standards that would protect an electronic recording system from accepting and recording documents that are not authentic and genuine. Furthermore, even if an electronic document is authentic in its origin, it may be possible to intercept it in transmission and change its content. Such a change could cause problems equally problematic as those caused by an originally forged document. Thus, the commission or state agency is directed to consider standards that would protect documents from tampering and inaccuracies caused during transmission.

The subsection also directs the commission or state agency to consider standards for the proper preservation of electronic documents once they are in the electronic recording system. If an unauthorized person were to be able to "hack" or enter the electronic recording system, that person could cause considerable damage and injury to the records and persons having an interest in the affected land. Thus, the commission or state agency is directed to consider standards protecting the electronic land records system from unauthorized intrusion and tampering. Finally, the subsection directs the commission or state agency to consider adequate standards for the preservation of electronic documents. If there should only be one copy of the electronic land records and it is destroyed by an electronic or physical catastrophe, the security of the land records system would be seriously impaired. Thus, the commission or state agency should consider the means and methodology of preserving and replicating the electronic land records so that the recorder can recover from such a catastrophe with no loss of information.

NORTH CAROLINA COMMENT

This section blends the Uniform Act's alternatives for a standard-setting body and adds other provisions in order to produce a regulatory structure similar to the current regulatory structure in this State for setting standards for paper documents filed with a register of deeds. Subsections (a) through (f) replace subsection (a) of the Uniform Act. Subsection (g) is substantially the same as subsection (b) of the Uniform Act with conforming changes to reflect the different regulatory structure. See G.S. 147-54.3. In subdivision (g)(2), the Senate replaced the word "promulgated" with the word "adopted."

Effect of Amendments. - Session Laws 2015-241, s. 14.30(t), effective July 1, 2015, substituted "Secretary of Natural and Cultural Resources" for "Secretary of Cultural Resources" in subdivision (c)(7).

§ 47-16.6. Uniformity of application and construction.

In applying and construing this Article, consideration shall be given to promoting uniformity of interpretation of the Uniform Real Property Electronic Recording Act among states that enact it.

History

(2005-391, s. 1.)

OFFICIAL COMMENT

This section recites the importance of uniformity among the adopting states when applying and construing the act. It is more general than the uniformity stated in section 5 for the Electronic Recording Commission or state agency when implementing or adopting standards. This section seeks uniformity in all situations when the application or interpretation of the act itself is considered or under review.

NORTH CAROLINA COMMENT

The General Statutes Commission made stylistic changes to the Uniform Act's language in this section that are not intended to alter the meaning. The Senate replaced the word "must" with the word "shall."

§ 47-16.7. Relation to Electronic Signatures in Global and National Commerce Act.

This Article modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001, et seq.) but does not modify, limit, or supersede section 101(c) of that act (15 U.S.C. § 7001(c)) or authorize electronic delivery of any of the notices described in section 103(b) of that act (15 U.S.C. § 7003(b)).

History

(2005-391, s. 1.)

OFFICIAL COMMENT

This section responds to the specific language of the Electronic Signatures in Global and National Commerce Act and is designed to avoid preemption of state law under that federal legislation.

ARTICLE 2. Registration.

Sec.

§ 47-17. Probate and registration sufficient without livery of seizin, etc.

All deeds, contracts or leases, before registration, except those executed prior to January 1, 1870, shall be acknowledged by the grantor, lessor or the person executing the same, or their signature proven on oath by one or more witnesses in the manner prescribed by law, and all deeds executed and registered according to law shall be valid, and pass title and estates without livery of seizin, attornment or other ceremony.

History

(29, Ch. II, c. 3; 1715, c. 7; 1756, c. 58, s. 3; 1838-9, c. 33; R.C., c. 37, s. 1; Code, s. 1245; 1885, c. 147, s. 3; 1905, c. 277; Rev., s. 979; C.S., s. 3308.)

Cross References. - As to filing a false lien or encumbrance, see G.S. 14-118.6.

As to cure of obvious description errors in recorded instruments, see G.S. 47-36.2.

Local Modification. - (As to Article 2) Mitchell: 1987, c. 537.

Legal Periodicals. - For article, "Estoppel and Rebutter in North Carolina," see 1 N.C.L. Rev. 153, 155 (1923).

For article, "North Carolina's Real Estate Recording Laws: The Ghost of 1885," see 28 N.C. Cent. L.J. 199 (2006).

CASE NOTES

Applicability. - The North Carolina courts have extended the construction of this section so as to bring all deeds of conveyance within the purview of the statute. Ivey v. Granberry, 66 N.C. 223 (1872); Love v. Harbin, 87 N.C. 249 (1882); Jones v. Jones, 164 N.C. 320, 80 S.E. 430 (1913). See Bryan v. Eason, 147 N.C. 284, 61 S.E. 71 (1908).

For case construing this section to apply only to such deeds as operated at common law by livery of seizin, see Hogan v. Strayhorn, 65 N.C. 279 (1871).

Registration has the effect of livery of seizin. Hinton v. Moore, 139 N.C. 44, 51 S.E. 787 (1905); Jones v. Jones, 164 N.C. 320, 80 S.E. 430 (1913).

Formal Deed Regarded as Feoffment in Enforcing Parol Trust. - In properly constituted cases indicating the propriety of equitable relief in declaring and enforcing a parol trust, the formal deed by which the legal title is held is regarded as a feoffment not inconsistent with the trust sought to be established. Thompson v. Davis, 223 N.C. 792, 28 S.E.2d 556 (1944).

Where it appears from the face of a corporate deed that the corporate seal has not been affixed, an order admitting it to probate as a conveyance is unauthorized and registration thereon is invalid; for it is well settled that registration had upon an unauthorized probate is invalid and ineffectual to pass title against creditors and purchasers. However, the order of probate is sufficient to authorize its registration as a contract to convey under G.S. 47-18. Haas v. Rendleman, 62 F.2d 701 (4th Cir. 1933), cert. denied, 289 U.S. 750, 53 S. Ct. 695, 77 L. Ed. 1495 (1933).

Enforcing Defectively Framed Conditional Contract. - Called upon to choose between enforcing a defectively framed yet recognizable conditional contract, or treating it as a nullity for security purposes, the former is the choice indicated, there being no specific statutory requirement to use a precise formula of words. Mickel-Hopkins, Inc. v. Frassinetti, 278 F.2d 301 (4th Cir. 1960).

Evidence Supporting Judgment for Recovery of Land. - Evidence showing good record title in plaintiff, without any record evidence of title in defendant, was held to support judgment for plaintiff for recovery of land. Knowles v. Wallace, 210 N.C. 603, 188 S.E. 195 (1936).

Improperly Acknowledged Deed Held Invalid. - Where a deed was not properly acknowledged, in that the grantors did not actually appear before the notary public as recited on the face of the deed, the deed was invalid and not admissible in evidence to prove an essential link in the record chain. Hi-Fort, Inc. v. Burnette, 42 N.C. App. 428, 257 S.E.2d 85 (1979).

Applied in Clark v. Butts, 240 N.C. 709, 83 S.E.2d 885 (1954).

Cited in GMAC v. United States, 23 F.2d 799 (4th Cir. 1928); McClure v. Crow, 196 N.C. 657, 146 S.E. 713 (1929); Owens v. Blackwood Lumber Co., 212 N.C. 133, 193 S.E. 219 (1937); Freeman v. Morrison, 214 N.C. 240, 199 S.E. 12 (1938).


§ 47-17.1. Documents registered or ordered to be registered in certain counties to designate draftsman; exceptions.

The register of deeds of any county in North Carolina shall not accept for registration, nor shall any judge order registration pursuant to G.S. 47-14, of any deeds or deeds of trust, executed after January 1, 1980, unless the first page of the deeds or deeds of trust bears an entry showing the name of the drafter of the deed or deed of trust. The register of deeds shall not be required to verify or make inquiry concerning the capacity or authority of the person or entity shown as the drafter on the instrument.

History

(1953, c. 1160; 1955, cc. 54, 59, 87, 88, 264, 280, 410, 628, 655; 1957, cc. 431, 469, 932, 982, 1119, 1290; 1959, cc. 266, 312, 548, 589; 1961, cc. 789, 1167; 1965, cc. 160, 597, 830; 1967, cc. 42, 139; c. 639, s. 2; c. 658; 1969, c. 10; 1971, c. 46; 1973, cc. 65, 283, 342; 1979, c. 703; 1981, c. 362, ss. 1, 2; 2011-351, s. 3; 2018-80, s. 2.1; 2020-50, s. 3(a), (b); 2020-69, s. 6(a), (b).)

Local Modification. - Alamance: 1957, c. 1290; Onslow: 1959, c. 783.

Editor's Note. - For similar act applicable to Caldwell, Camden, Chowan, Currituck, Pasquotank, Rutherford and Vance Counties, see Session Laws 1955, c. 273, as amended by Session Laws 1955, c. 575, and Session Laws 1967, c. 742.

Session Laws 2011-351, s. 3, which deleted "except that papers or documents prepared in other states may be registered or ordered to be registered without having the name of either the person or law firm who drafted the instrument designated thereon" from the end of the section, was applicable to all memoranda of contracts to purchase real estate recorded prior to and on or after June 27, 2011.

Session Laws 2018-80, s. 4.1, as amended by Session Laws 2020-50, s. 3(a), and as amended by Session Laws 2020-69, s. 6(a), provides: "The remainder of this act is effective when this act becomes law [June 25, 2018] and applies to mortgages and deeds of trust entered into before, on, or after that date, and to other instruments under G.S. 47-18.3 executed before, on, or after August 1, 2020."

Effect of Amendments. - Session Laws 2011-351, s. 3, effective June 27, 2011, and applicable to all memoranda of contracts to purchase real estate recorded prior to and on or after that date, deleted "except that papers or documents prepared in other states may be registered or ordered to be registered without having the name of either the person or law firm who drafted the instrument designated thereon" from the end.

Session Laws 2018-80, s. 2.1, effective June 25, 2018, added the last two sentences.

Session Laws 2020-50, s. 3(b), effective August 1, 2020, rewrote the section.

Session Laws 2020-69, s. 6(b), effective August 1, 2020, rewrote the section.

§ 47-17.2. Assignments of mortgages, deeds of trust, or other agreements pledging real property as security.

It shall not be necessary in order to effect a valid assignment of a note and deed of trust, mortgage, or other agreement pledging real property or an interest in real property as security for an obligation, to record a written assignment in the office of the register of deeds in the county in which the real property is located. A transfer of the promissory note or other instrument secured by the deed of trust, mortgage, or other security interest that constitutes an effective assignment under the law of this State shall be an effective assignment of the deed of trust, mortgage, or other security instrument. The assignee of the note shall have the right to enforce all obligations contained in the promissory note or other agreement, and all the rights of the assignor in the deed of trust, mortgage, or other security instrument, including the right to substitute the trustee named in any deed of trust, and to exercise any power of sale contained in the instrument without restriction. The provisions of this section do not preclude the recordation of a written assignment of a deed of trust, mortgage, or other security instrument, with or without the promissory note or other instrument that it secures, provided that the assignment complies with applicable law.

History

(1993, c. 288, s. 4.)

CASE NOTES

Standing to Seek Reformation. - Mortgagee had standing to seek reformation of a deed of trust because the mortgagee was a real party in interest due to holding the note secured by the deed of trust. Nationstar Mortg., LLC v. Dean, 261 N.C. App. 375, 820 S.E.2d 854 (2018).

Assignment of Deed of Trust. - Transfer of a promissory note or other instrument secured by a deed of trust shall be an effective assignment of the deed of trust. In re Dispute over the Sum of $375,757.47, 240 N.C. App. 505, 771 S.E.2d 800 (2015).


§ 47-18. Conveyances, contracts to convey, options, and leases of land.

  1. No (i) conveyance of land, (ii) contract to convey, (iii) option to purchase or convey, (iv) lease of land for more than three years, (v) right of first refusal, or (vi) right of first offer is valid to pass any property interest as against lien creditors or purchasers for a valuable consideration from the donor, bargainor, or lessor but from the time of its registration in the county where the land lies, or if the land is located in more than one county, then in each county where any portion of the land lies to be effective as to the land in that county. Unless otherwise stated either on the registered instrument or on a separate registered instrument duly executed by the party whose priority interest is adversely affected, (i) instruments registered in the office of the register of deeds have priority based on the order of registration as determined by the time of registration, and (ii) if instruments are registered simultaneously, then the instruments are presumed to have priority determined as follows:
    1. The earliest document number set forth on the registered instrument.
    2. The sequential book and page number set forth on the registered instrument if no document number is set forth on the registered instrument.
  2. This section shall not apply to contracts, leases or deeds executed prior to March 1, 1885, until January 1, 1886; and no purchase from any such donor, bargainor or lessor shall avail or pass title as against any unregistered deed executed prior to December 1, 1885, when the person holding or claiming under such unregistered deed shall be in actual possession and enjoyment of such land, either in person or by his tenant, at the time of the execution of such second deed, or when the person claiming under or taking such second deed had at the time of taking or purchasing under such deed actual or constructive notice of such unregistered deed, or the claim of the person holding or claiming thereunder.

The presumption created by this subsection is rebuttable.

History

(Code, s. 1245; 1885, c. 147, s. 1; Rev., s. 980; C.S., s. 3309; 1959, c. 90; 1975, c. 507; 2003-219, s. 2; 2005-212, s. 2; 2021-91, s. 10.)

Cross References. - For statute of frauds with reference to contracts for sale of land, leases, etc., see G.S. 22-2.

Editor's Note. - Session Laws 2018-61, s. 2, provides: "On and after July 1, 2018, all papers, documents, and instruments required or permitted to be filed or registered involving residents and property in areas affected by the 2008 survey that previously may have been recorded in the adjoining counties shall be recorded in the county in which the property is situated as shown by the 2008 survey."

Effect of Amendments. - Session Laws 2005-212, s. 2, effective July 20, 2005, rewrote subsection (a).

Session Laws 2021-91, s. 10, effective October 1, 2021, rewrote the section.

Legal Periodicals. - As to priority by recordation and effect of recordation on title by estoppel, see 27 N.C.L. Rev. 376 (1949).

For note on rights of lessees under oral leases, see 31 N.C.L. Rev. 498 (1953).

For article concerning the quest for clear land titles in North Carolina, see 44 N.C.L. Rev. 89 (1965).

For caselaw survey as to recordation, see 44 N.C.L. Rev. 1032 (1966).

For article, "Transferring North Carolina Real Estate Part I: How the Present System Functions," see 49 N.C.L. Rev. 413 (1971).

For survey of 1976 case law on commercial law, see 55 N.C.L. Rev. 943 (1977).

For article, "Future Advances and Title Insurance Coverage," see 15 Wake Forest L. Rev. 329 (1979).

For survey of 1981 property law, see 60 N.C.L. Rev. 1420 (1982).

For article, "Drafting, Interpreting, and Enforcing Commercial and Shopping Center Leases," see 14 Campbell L. Rev. 275 (1993).

For essay, "Russell v. Hill (N.C. 1899) Misunderstood Lessons," see 73 N.C.L. Rev. 2031 (1995).

For article, "North Carolina's Real Estate Recording Laws: The Ghost of 1885," see 28 N.C. Cent. L.J. 199 (2006).

For article, "Torrens Title in North Carolina-Maybe a Hundred Years Is Long Enough," see 39 Campbell L. Rev. 271 (2017).

CASE NOTES

I. IN GENERAL.

This section and G.S. 47-20 as originally enacted may be construed interchangeably in view of the similarity of their terminology. Cowen v. Withrow, 112 N.C. 736, 17 S.E. 575 (1893).

The recording statute for deeds of trust, G.S. 47-20, is virtually identical to this section, governing outright conveyances, and the two are construed alike. These statutes provide in essence that the party winning "the race to the courthouse" will have priority in title disputes. Schuman v. Roger Baker & Assocs., 70 N.C. App. 313, 319 S.E.2d 308 (1984); Schiller v. Scott, 82 N.C. App. 90, 345 S.E.2d 444 (1986).

Comparison with G.S. 47-20. - The Connor Act, the 1885 amendment to this section, has substantially the same legal effect upon deeds that the Act of 1829, codified as G.S. 47-20, had upon mortgages and deeds in trust, leaving them, although unregistered, valid as between the parties and as to all others except purchasers for value and creditors. King v. McRackan, 168 N.C. 621, 84 S.E. 1027 (1915), rehearing denied, 171 N.C. 752, 88 S.E. 226 (1916). See also, Robinson v. Willoughby, 70 N.C. 358 (1874).

This section and G.S. 47-20 are not mere notice statutes for the protection of third parties. To the contrary, recordation is vital to the acquisition of ownership. Westchase I Assocs. v. Lincoln Nat'l Life Ins. Co., 126 Bankr. 692 (W.D.N.C. 1991).

This section and G.S. 47-20 as originally enacted were intended to uproot all secret liens, trusts, unregistered mortgages, etc., and it has been held that no notice, however full and formal, will supply the place of registration. Hooker v. Nichols, 116 N.C. 157, 21 S.E. 207 (1895). See also, Robinson v. Willoughby, 70 N.C. 358 (1874).

Transformation into Pure Race State. - The Connor Act of 1885, currently codified as this section, transformed North Carolina into a "pure race" state for the recording of deeds, contracts to convey, and other instruments affecting interests in land; under its terms, no such instrument is effective as against either lien creditors, or purchasers for value, until the time of its registration. Love v. United States, 889 F. Supp. 1548 (E.D.N.C. 1994).

This section is intended to remedy the evil of uncertainty of title to real estate caused by persons withholding deeds, contracts, etc., based upon a valuable consideration, from the public records. Bell v. Couch, 132 N.C. 346, 43 S.E. 911 (1903).

The purpose of this section is to enable purchasers to rely with safety upon examination of the records, and act upon the assurance that, as against all persons claiming under the "donor, bargainor, or lessor," what did not appear did not exist. Grimes v. Guion, 220 N.C. 676, 18 S.E.2d 170 (1942); Stephenson v. Jones, 69 N.C. App. 116, 316 S.E.2d 626 (1984).

Purpose of this section is to enable intending purchasers and encumbrancers to rely with safety on the public record concerning the status of land titles. Hill v. Pinelawn Mem. Park, 304 N.C. 159, 282 S.E.2d 779 (1981).

The purpose of North Carolina's recording statute is to enable intending purchasers and encumbrancers to rely with safety on the public record concerning the status of land titles. However, the recording statute only protects innocent purchasers for value. Chrysler Credit Corp. v. Burton, 599 F. Supp. 1313 (M.D.N.C. 1984).

Section Provides a Method for Determining Nature of Title. - This section was enacted for the purpose of providing a plan and a method by which an intending purchaser or encumbrancer can safely determine just what kind of a title he is in fact obtaining. Chandler v. Cameron, 229 N.C. 62, 47 S.E.2d 528 (1948).

Section Determining Conflicting Claims and Priorities. - The primary purpose and intent of the legislature, in the passage of the Connor Act of 1885 (this section) was to establish a known and ready method for the settlement of conflicting claims and priorities arising from registrations. Spence v. Foster Pottery Co., 185 N.C. 218, 117 S.E. 32 (1923).

Our recording statutes are intended to provide a single reliable means for purchasers to determine the state of the title to real estate. Stegall v. Robinson, 81 N.C. App. 617, 344 S.E.2d 803 (1986).

The purpose of this section is to point out to prospective purchasers the one place where they must go to find the condition of land titles - the public registry. Hayes v. Ricard, 245 N.C. 687, 97 S.E.2d 105 (1957).

Title Examiner Must Read Prior Conveyances. - In title examination when checking the grantor's out conveyances, it is not enough to merely insure that the subject property was not conveyed out previously. The title examiner must read the prior conveyances to determine that they do not contain restrictions applicable to the use of the subject property. Stegall v. Robinson, 81 N.C. App. 617, 344 S.E.2d 803 (1986).

This section does not favor persons withholding from the public record deeds or contracts to convey or reconvey lands, particularly when third parties have given valuable consideration for same. Stephenson v. Jones, 69 N.C. App. 116, 316 S.E.2d 626 (1984).

Secret trusts and hidden encumbrances, all unregistered, and for all of which there is a failure of proof of notice, must not be allowed to defeat a bona fide purchaser for value. Stephenson v. Jones, 69 N.C. App. 116, 316 S.E.2d 626 (1984).

The object of registration in the county where the land lies is to give notice to creditors and purchasers for value or others whose rights might otherwise be seriously and unjustly impaired by the deed. Warren v. Williford, 148 N.C. 474, 62 S.E. 697 (1908); Weston v. Roper Lumber Co., 160 N.C. 263, 75 S.E. 800 (1912); Massachusetts Bonding & Ins. Co. v. Knox, 220 N.C. 725, 18 S.E.2d 436 (1942); Clark v. Butts, 240 N.C. 709, 83 S.E.2d 885 (1954).

Records as Notice. - The purpose of the registration laws is to give notice, and where the index is sufficient to put a careful and prudent examiner upon inquiry, the records are notice of all matters which would be discovered by reasonable inquiry; but the records are intended to be self-sufficient, and a person examining a title is not required to go out upon the premises and ascertain who is in possession and under what claim, the proviso of this section being applicable only to deeds executed prior to December 1, 1885. Dorman v. Goodman, 213 N.C. 406, 196 S.E. 352 (1938).

Bank was not entitled to relief from a bankruptcy court order cancelling its deed of trust where, inter alia, its two year delay in seeking relief was not reasonable, and it would create significant unfair prejudice to an innocent bona fide purchaser who gave fair value for clear title. That order unambiguously cancelled the bank's deed of trust, and a certified copy of the order was recorded in the register of deeds in compliance with North Carolina's race recording statute, the purpose of which was to enable purchasers to rely with safety upon an examination of records. Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295 (4th Cir. 2017).

Date of Registration Controls Title. - Under this section, a grantee in a deed acquires title thereto, as against subsequent purchasers for value, from the date of the registration of the instrument. Sills v. Ford, 171 N.C. 733, 88 S.E. 636 (1916); Clark v. Butts, 240 N.C. 709, 83 S.E.2d 885 (1954); Hayes v. Ricard, 245 N.C. 687, 97 S.E.2d 105 (1957).

First Registration Prevails. - Among two or more contracts to sell land, the one first registered will confer the superior right. Combes v. Adams, 150 N.C. 64, 63 S.E. 186 (1908); Dulin v. Williams, 239 N.C. 33, 79 S.E.2d 213 (1953); Clark v. Butts, 240 N.C. 709, 83 S.E.2d 885 (1954); Hayes v. Ricard, 245 N.C. 687, 97 S.E.2d 105 (1957).

As between two purchasers for value of the same interest in land, the one whose deed is first registered acquires title. Bourne v. Lay & Co., 264 N.C. 33, 140 S.E.2d 769 (1965).

An unregistered deed does not convey complete title and is ineffectual as against subsequent grantees under registered deeds and creditors of the grantor. Glass v. Lynchburg Shoe Co., 212 N.C. 70, 192 S.E. 899 (1937).

Effect of Reference in Registered Deed to Unregistered Encumbrance. - A reference in a registered deed to an unregistered encumbrance, if made with sufficient certainty, creates a trust or agreement that the property is held subject thereto. Bourne v. Lay & Co., 264 N.C. 33, 140 S.E.2d 769 (1965).

Principles applicable to sufficiency of references necessary to impart vitality to a prior unregistered encumbrance may be stated as follows: (1) The creditor holding the prior unregistered encumbrance must be named and identified with certainty; (2) The property must be conveyed "subject to" or in subordination to such prior encumbrance; (3) The amount of such prior encumbrance must be definitely stated; and (4) The reference to the prior unregistered encumbrance must amount to a ratification and adoption thereof. Bourne v. Lay & Co., 264 N.C. 33, 140 S.E.2d 769 (1965), holding a reference to a lease in a deed not sufficient to make the registered deed subordinate to the unregistered lease; Terry v. Brothers Inv. Co., 77 N.C. App. 1, 334 S.E.2d 469 (1985).

Quitclaim Deed. - A subsequently dated but prior recorded deed, including a quitclaim deed supported by consideration, takes precedence over a prior dated but subsequently recorded fee simple deed. Hayes v. Ricard, 245 N.C. 687, 97 S.E.2d 105 (1957).

Rents Already Accrued and Rents Accruing in Future. - North Carolina recognizes a difference between rents which have already accrued and rents which will be accruing in the future. Already accrued rents are personalty (choses in action) while rents accruing in the future are incorporeal hereditaments - interests in real property. Thus the recordation of the deed of trust was necessary to perfect the security interest in rents accruing in the future. Westchase I Assocs. v. Lincoln Nat'l Life Ins. Co., 126 Bankr. 692 (W.D.N.C. 1991).

Necessity for Recording Condemnation Judgment in Favor of United States. - A careful consideration of the Conformity Act, G.S. 1-237, in relation to docketing judgments of federal courts, and of this section, does not sustain the position that a condemnation judgment in favor of the United States must be recorded in the county where the land lies and cross-indexed in order to protect the United States' ownership in land that it has acquired. The government stands in a position quite different from an individual, and if the statute normally applies to an individual, it may not be applicable against the United States. United States v. Norman Lumber Co., 127 F. Supp. 518 (M.D.N.C. 1955), aff'd, 223 F.2d 868 (4th Cir.), cert. denied, 350 U.S. 902, 76 S. Ct. 181, 100 L. Ed. 792 (1955).

Lis Pendens. - Lis pendens and registration each have the purpose of giving constructive notice by record, and this section and G.S. 1-117 must be construed in pari materia. While the lis pendens statutes do not affect the registration laws, the converse is not true. Massachusetts Bonding & Ins. Co. v. Knox, 220 N.C. 725, 18 S.E.2d 436 (1942).

Recordation Raises Rebuttable Presumption That Deed was Duly Executed and Delivered. - When a deed is duly recorded as required by law, the public record thereof is admissible in evidence and raises a rebuttable presumption that the original was duly executed and delivered. Williams v. North Carolina State Bd. of Educ., 284 N.C. 588, 201 S.E.2d 889 (1974).

Registration Does Not Cure Lack of Mental Capacity. - Where a deed, void for mental incapacity of the grantor to make it, is registered prior to one theretofore made by the same grantor, for a valuable consideration, when the grantor had sufficient mental capacity, the registration under this section can give no effect to the invalid deed, and the valid deed, though subsequently registered, will be effective. Thompson v. Thomas, 163 N.C. 500, 79 S.E. 896 (1913).

Where plaintiff's deed was executed fraudulently, in which fraud plaintiff participated, for the purpose of depriving defendant of her life estate in the land, theretofore created by paper-writing executed by plaintiff's grantor, this section did not apply, and defendant's rights were superior to those of plaintiff under the registered deed, even though the paper-writing giving defendant a life estate was not registered, since the protection of this section extends only to creditors and purchasers for value. Twitty v. Cochran, 214 N.C. 265, 199 S.E. 29 (1938).

In a sale of lands in proceedings for partition, the conversion from realty to personalty does not take place until the land is sold and the sale is confirmed by the court. Therefore, an unregistered deed made by some of the cotenants of their interest in the lands held in common is not good as against a subsequently made and registered deed by the same grantors of the same interest, to another, after the decree of sale for partition, but before the sale was confirmed. McLean v. Leitch, 152 N.C. 266, 67 S.E. 490 (1910).

Registered Deed Good Although Deed to Grantor Was Unregistered. - Upon registration, the deed is good even as against creditors and purchasers for value, even though the deed by which the grantor acquired title is unregistered. Durham v. Pollard, 219 N.C. 750, 14 S.E.2d 818 (1941).

Right to Easement. - Under this section, where a grantor conveys land by registered deed creating an easement in land reserved by the grantor, his grantee is entitled to the easement unaffected by an unregistered contract to convey the reserved land executed prior to the deed. Walker v. Phelps, 202 N.C. 344, 162 S.E. 727 (1932).

Where a deed provides that it is subject to a written lease previously executed by the grantor, the grantee takes the premises subject to the lease, even though the lease is for more than three years and is not recorded. Hildebrand Mach. Co. v. Post, 204 N.C. 744, 169 S.E. 629 (1933).

Allegation that third persons conspired to deprive plaintiff of his rights under an unregistered option does not state a cause of action against such third persons, since in the absence of registration third persons have a legal right to deal with the property as if there were no option and an agreement to do a lawful act cannot constitute a wrongful conspiracy. Eller v. Arnold, 230 N.C. 418, 53 S.E.2d 266 (1949).

Priorities Between Unregistered Deed and Execution of Judgment. - A sale of land under the execution of a judgment in the due course and practice of the court, and conveyance to the purchaser at the sale, regular in form and sufficiently describing the land, conveys title superior to that of an unregistered deed from the judgment debtor to another, previously made, as no notice, however formal, is sufficient to supply that required by registration, even though a mortgage for the balance of the purchase price had been given by the grantee of the debtor and duly registered before the docketing of the judgment under the execution of which the conveyance had been made to the purchaser at the sale. Wimes v. Hufham, 185 N.C. 178, 116 S.E. 402 (1923).

Extent of Right of Judgment Creditor or Purchaser at Execution Sale. - A judgment creditor or purchaser at an execution sale can acquire no greater lien or interest in the property of the judgment debtor than such debtor had at the time the judgment lien became effective. Bristol v. Hallyburton, 93 N.C. 384 (1885); Spence v. Foster Pottery Co., 185 N.C. 218, 117 S.E. 32 (1923).

Rights of Creditor Whose Judgment Was Docketed Between Execution and Registration of Prior Deed. - The grantee, in a deed executed by the grantor and deposited with the holder of a mortgage under an agreement between the latter and the grantee that it should not be registered until the payment of the purchase price, took subject to the lien of a judgment creditor of the grantor, whose judgment was rendered and docketed between execution and registration of the deed. Board of Comm'rs v. Micks, 118 N.C. 162, 24 S.E. 729 (1896).

Priority of Judgment Obtained Before Registration of Prior Deed - In General. - Where a judgment is obtained against a grantor of land subsequent to the execution of the conveyance, but prior to the time of its registration, the lien of the judgment has priority over the title of the grantee, and the lands conveyed are subject to execution under the judgment. Maxton Realty Co. v. Carter, 170 N.C. 5, 86 S.E. 714 (1915).

The lien of a regularly docketed judgment is superior to a claim under an unrecorded deed from the judgment debtor. Eaton v. Doub, 190 N.C. 14, 128 S.E. 494 (1925).

Priority of Judgment Obtained Before Registration of Prior Deed - Agreement Between Parties as to Registration. - Under the provisions of this section, the holder of a subsequently registered conveyance takes subject to the lien of a judgment creditor of the grantor where the judgment was rendered and docketed before the registration of the deed, even though there was an agreement between the grantor and the grantee that such deed should not be registered till the payment of the purchase money. Francis v. Herren, 101 N.C. 497, 8 S.E. 353 (1888); Bostic v. Young, 116 N.C. 766, 21 S.E. 552 (1895); Board of Comm'rs v. Micks, 118 N.C. 162, 24 S.E. 729 (1896); Colonial Trust Co. v. Sterchie Bros., 169 N.C. 21, 85 S.E. 40 (1915).

Priority of Judgment Obtained Before Registration of Prior Deed - Judgment Against Grantee. - Where a judgment has been obtained and docketed against the grantee, the lien thereof immediately attaches upon the registration of his deed, and cannot be defeated by a deed in trust subsequently registered carrying out the agreement theretofore resting only in parol; and the consideration recited in the grantee's deed is immaterial. Colonial Trust Co. v. Sterchie Bros., 169 N.C. 21, 85 S.E. 40 (1915).

When a grantee accepts a conveyance subject to an outstanding claim or interest evidenced by an unrecorded instrument executed by his grantor, he takes the property burdened by that claim or interest; by accepting such a deed he ratifies the unrecorded instrument and agrees to take the property subject to it and is estopped to deny the unrecorded instrument's validity. This principle derives from the theory that reference to the unrecorded encumbrance, if made with sufficient certainty, creates a trust or agreement that the property is held subject to the encumbrance. Terry v. Brothers Inv. Co., 77 N.C. App. 1, 334 S.E.2d 469 (1985).

Collateral Attack by Creditors for Want of Registration. - The want of registration does not invalidate an instrument so that creditors, merely as such, may treat it as a nullity in a collateral proceeding; but it is void against proceedings instituted by them and prosecuted to a sale of the property or acquisition of a lien, as against all who derive title thereunder. Brem v. Lockhart, 93 N.C. 191 (1885); Boyd v. Turpin, 94 N.C. 137 (1886); Francis v. Herren, 101 N.C. 497, 8 S.E. 353 (1888).

Liberal Construction of Subsection (b). - The words of what is now subsection (b) of this section should receive a liberal construction so as to give full force and effect to the spirit and intention of the section. Cowen v. Withrow, 112 N.C. 736, 17 S.E. 575 (1893).

Under this section a conveyance of land made prior to the 1885 amendment, known as the Connor Act, is not valid against creditors or bona fide purchasers, unless registered before January 1, 1886. Phillips v. Hodges, 109 N.C. 248, 13 S.E. 769 (1891).

The use of the words "unregistered deed" in subsection (b) of this section is in their broad generic sense and has reference to the same scope as the words "conveyance of land, or contract to convey, or lease of land" as used in subsection (a) of this section. McNeill v. Allen, 146 N.C. 283, 59 S.E. 689 (1907).

Execution Purchaser with Notice Prior to 1885 Subordinate to Prior Unregistered Deed. - The provision of subsection (b) of this section that no purchase of land from a donor, bargainor or lessor shall avail or pass title as against any unregistered deed executed prior to December 1, 1885, where there is constructive or actual notice, applies as well to a purchaser of land at an execution sale with actual notice as to a purchaser from the "bargainor or lessor." Cowen v. Withrow, 112 N.C. 736, 17 S.E. 575 (1893).

A deed executed prior to the act of 1885, but not registered until after the registration of a mortgage from the same grantor, is competent evidence to show title in the grantee, he being in possession before the passage of the said act. Laton v. Crowell, 136 N.C. 377, 48 S.E. 767 (1904).

As to deeds executed prior to December 1, 1885, see also Lanier v. Roper Lumber Co., 177 N.C. 200, 98 S.E. 593 (1919). See Collins v. Davis, 132 N.C. 106, 43 S.E. 579 (1903).

Statute Inapplicable Because of Superior Federal Tax Lien. - Because a buyer's claim to a parcel based upon a quitclaim deed given by a village following a foreclosure sale was subordinate to a claim based upon a superior federal tax lien, North Carolina's recordation statute did not apply. Winning the race to the courthouse did not upset the rules of lien priority established by state and federal law, including federal preemption when those laws conflicted. Henkel v. Triangle Homes, Inc., 249 N.C. App. 478, 790 S.E.2d 602 (2016).

Applied in Fidelity & Cas. Co. v. Massachusetts Mut. Life Ins. Co., 74 F.2d 881 (4th Cir. 1935); McCollum v. Smith, 233 N.C. 10, 62 S.E.2d 483 (1950); Henry v. Shore, 18 N.C. App. 463, 197 S.E.2d 270 (1973); Cities Serv. Oil Co. v. Pochna, 30 N.C. App. 360, 226 S.E.2d 884 (1976); Hill v. Pinelawn Mem. Park, 50 N.C. App. 231, 275 S.E.2d 838 (1981); Smith v. Watson, 71 N.C. App. 351, 322 S.E.2d 588 (1984); Johnson v. Brown, 71 N.C. App. 660, 323 S.E.2d 389 (1984).

Cited in Johnson v. Fry, 195 N.C. 832, 143 S.E. 857 (1928); Threlkeld v. Malcragson Land Co., 198 N.C. 186, 151 S.E. 99 (1930); Jones v. Rhea, 198 N.C. 190, 151 S.E. 255 (1930); Tucker v. Almond, 209 N.C. 333, 183 S.E. 407 (1936); Tocci v. Nowfall, 220 N.C. 550, 18 S.E.2d 225 (1942); Ricks v. Batchelor, 225 N.C. 8, 33 S.E.2d 68 (1945); Carolina Power & Light Co. v. Bowman, 228 N.C. 319, 45 S.E.2d 531 (1947); Pearce v. Hewitt, 261 N.C. 408, 134 S.E.2d 662 (1964); Jenkins v. Coombs, 21 N.C. App. 683, 205 S.E.2d 728 (1974); Coleman v. Coleman, 74 N.C. App. 494, 328 S.E.2d 871 (1985); Hornets Nest Girl Scout Council, Inc. v. Cannon Found., Inc., 79 N.C. App. 187, 339 S.E.2d 26 (1986); VEPCO v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188 (1986); In re Raleigh/Spring Forest Apts. Assocs., 118 Bankr. 42 (Bankr. E.D.N.C. 1990); In re Westchase I Assocs., 119 Bankr. 521 (Bankr. W.D.N.C. 1990); National Adv. Co. v. North Carolina DOT, 124 N.C. App. 620, 478 S.E.2d 248 (1996); Haw River Land & Timber v. Lawyers Title Ins., 152 F.3d 275 (4th Cir. 1998); Falk v. Mae, 225 N.C. App. 685, 738 S.E.2d 404 (2013), rev'd, 367 N.C. 594, 766 S.E.2d 271, 2014 N.C. LEXIS 948 (2014); Falk v. Fannie Mae, 367 N.C. 594, 766 S.E.2d 271 (2014).

II. REGISTRATION AS BETWEEN PARTIES.

A deed is good and valid between the parties thereto without registration, and may be proved on the trial as at common law. Hinton v. Moore, 139 N.C. 44, 51 S.E. 787 (1905); Warren v. Williford, 148 N.C. 474, 62 S.E. 697 (1908); Weston v. Roper Lumber Co., 160 N.C. 263, 75 S.E. 800 (1912); Glass v. Lynchburg Shoe Co., 212 N.C. 70, 192 S.E. 899 (1937).

An unregistered deed is good as between the parties thereto, and the fact that it is not registered does not affect the equities between the parties, the sole purpose of the statute being to determine and make certain the question of title. Patterson v. Bryant, 216 N.C. 550, 5 S.E.2d 849 (1939).

Contracts to Convey. - Contracts to convey land, as between the parties thereto, may be read in evidence without being registered. Hargrove v. Adcock, 111 N.C. 166, 16 S.E. 16 (1892).

The manifest purpose of this section is to protect purchasers for value and creditors, and leave the parties to contracts for the sale of lands inter se to litigate their rights under the rules of evidence in force. Hargrove v. Adcock, 111 N.C. 166, 16 S.E. 16 (1892).

Contract Specifically Enforceable Between Parties. - A written contract to convey standing timber is specifically enforceable as between the parties without registration, and after registration is specifically enforceable even against subsequent purchasers for value. Chandler v. Cameron, 229 N.C. 62, 47 S.E.2d 528, 3 A.L.R.2d 571 (1948).

The junior lienholder's intervening deed of trust gained priority over all subsequently recorded deeds of trust, including the deed of trust given by transferees when the bank marked the senior deed of trust satisfied as the result of the transfer of the property. First Union Nat'l Bank v. Lindley Labs., Inc., 132 N.C. App. 129, 510 S.E.2d 187 (1999).

Formerly registration was necessary even as between the parties. This was the rule prior to the 1885 amendment, known as the Connor Act. White v. Holly, 91 N.C. 67 (1884); Hargrove v. Adcock, 111 N.C. 166, 16 S.E. 16 (1892).

Registration After Commencement of Action. - As between the parties, there being no question of title arising from prior registration of junior deeds, a deed registered after the commencement of an action is admissible in evidence. Hudson v. Jordan, 108 N.C. 10, 12 S.E. 1029 (1891), rehearing denied, 110 N.C. 250, 14 S.E. 741 (1892).

The registration laws are not for the protection of the grantor, and therefore laches on the part of his first grantee in failing to promptly record his deed is not available as an equitable defense in such grantee's action for damages for failure of title by reason of the execution by the grantor of a second deed to the same property which is first recorded. Patterson v. Bryant, 216 N.C. 550, 5 S.E.2d 849 (1939).

Priority of Interests Determined Based on Order in Which Interests Recorded. - Under G.S. 47-18 and G.S. 47-20 (Recording Acts), because condominium unit purchasers' and a creditor's alleged interests in a debtor's project arose, respectively, from purchase contracts and a deed of trust, the priority of those interests was determined under the Recording Acts based on the order in which those interests were recorded. Cooper v. BB Syndication Servs. (In re 222 S. Caldwell St., Ltd. P'ship), 409 B.R. 770 (Bankr. W.D.N.C. 2009).

III. WHAT INSTRUMENTS AFFECTED.

.

Under subsection (a), conveyances, contracts to convey, and leases for more than three years are not valid to pass title against a purchaser for a valuable consideration unless and until registered in the county where the land lies. Lawing v. Jaynes, 285 N.C. 418, 206 S.E.2d 162 (1974).

This section is restricted to written instruments capable of registration. Spence v. Foster Pottery Co., 185 N.C. 218, 117 S.E. 32 (1923); Eaton v. Doub, 190 N.C. 14, 128 S.E. 494 (1925); Sansom v. Warren, 215 N.C. 432, 2 S.E.2d 459 (1939).

This section, in terms, applies only to conveyances of land, contracts to convey, and leases of land for more than three years. Such instruments deal with estates that lie in grant, and are required to be in writing. Spence v. Foster Pottery Co., 185 N.C. 218, 117 S.E. 32 (1923).

Parol and Implied Trusts Are Not Affected. - Parol trusts, and those created by operation of law, such as are recognized in this jurisdiction, do not come within the meaning and purview of this section. Wood v. Tinsley, 138 N.C. 507, 51 S.E. 59 (1905); Sills v. Ford, 171 N.C. 733, 88 S.E. 636 (1916); Pritchard v. Williams, 175 N.C. 319, 95 S.E. 570 (1918); Roberts v. Massey, 185 N.C. 164, 116 S.E. 407 (1923); Spence v. Foster Pottery Co., 185 N.C. 218, 117 S.E. 32 (1923); Eaton v. Doub, 190 N.C. 14, 128 S.E. 494 (1925); Sansom v. Warren, 215 N.C. 432, 2 S.E.2d 459 (1939).

When the plaintiff seeks to engraft a parol trust in his favor against the holder of the legal title to lands, only a bona fide purchaser for value without notice is protected, and this under the broad principles of equity, and creditors expressly referred to in this section are not included. Spence v. Foster Pottery Co., 185 N.C. 218, 117 S.E. 32 (1923).

Parol trusts, and those created by operation of law, such as are recognized in this jurisdiction, do not come within the meaning and purview of the registration statutes. Arnette v. Morgan, 88 N.C. App. 458, 363 S.E.2d 678 (1988).

Where the parties intended deed to pass entire property, but through a mutual mistake of the parties, it failed to do so, defendant grantor held, as a constructive trustee for grantee, that portion of the land which the parties intended to be conveyed. Therefore, the case fell outside the registration act. Arnette v. Morgan, 88 N.C. App. 458, 363 S.E.2d 678 (1988).

A declaration of trust is not required to be registered as against creditors, by virtue of the provisions of this section. Crossett v. McQueen, 205 N.C. 48, 169 S.E. 829 (1933).

A building restriction, being an easement which must be created by a grant, is within this section. Davis v. Robinson, 189 N.C. 589, 127 S.E. 697 (1925).

Contract to Convey Land. - This section protects purchasers for value against an unregistered contract to convey land, that is, where an owner of land contracts to convey land, such contract, until registered in the county where the land lies, is ineffective as against any who purchases for value from him. Eller v. Arnold, 230 N.C. 418, 53 S.E.2d 266 (1949).

An unrecorded contract to convey land is not valid as against a subsequent purchaser for value, or those holding under such a purchaser, even though he acquired title with actual notice of the contract. Beasley v. Wilson, 267 N.C. 95, 147 S.E.2d 577 (1966).

An unrecorded contract to convey land is not valid as against a subsequent purchaser for value even though he acquired title with actual notice of the contract. Stephenson v. Jones, 69 N.C. App. 116, 316 S.E.2d 626 (1984).

Novation of Contract to Convey Land. - Where debtors obtained a mortgage loan after they executed a 2003 land sales contract with plaintiff but before the execution of a 2004 land sales contract with plaintiff, the lender failed on a summary judgment motion in plaintiff's quiet title action to establish undisputed facts supporting its contention that the 2004 contract was a novation of the 2003 contract. In re Ortiz v. Smedley (In re Smedley), - Bankr. - (Bankr. E.D.N.C. Jan. 5, 2018).

A contract to convey standing timber constitutes a contract to convey land within the meaning of this section. Winston v. Williams & McKeithan Lumber Co., 227 N.C. 339, 42 S.E.2d 218 (1947); Chandler v. Cameron, 229 N.C. 62, 47 S.E.2d 528, 3 A.L.R.2d 571 (1948); Dulin v. Williams, 239 N.C. 33, 79 S.E.2d 213 (1953).

Option to Purchase Land. - Under subsection (a) of this section as it stood before the 1975 amendment, registration of an option to purchase land was not essential to its validity as against lien creditors or purchasers for a valuable consideration from the optionor. Lawing v. Jaynes, 285 N.C. 418, 206 S.E.2d 162 (1974).

Exercise of Option to Renew Lease. - In a suit to quiet title brought by a lessor, the trial court properly held that lessees had a leasehold interest in a tract through 2011, provided that they continued to tender rent; it was not necessary under G.S. 47-18 to record the exercise of an option to renew a lease, and by accepting rent for over 30 years, the lessor and its predecessors had waived the requirement of notice to extend the lease. Spruce Pine Indus. Park, Inc. v. Explosives Supply Co., 179 N.C. App. 524, 634 S.E.2d 264 (2006), review denied, 361 N.C. 222, 642 S.E.2d 450 (2007).

Agreement for Division of Proceeds of Sale. - An instrument which is neither a conveyance of land, nor a contract to convey, nor a lease of land, but only an agreement for a division of the proceeds of sales thereafter to be made of land, and authority to one to take entire control and management of sales of land for the parties, is not required to be registered. Lenoir v. Valley River Mining Co., 113 N.C. 513, 18 S.E. 73 (1893).

Assignment of Rents. - Rents accrued are choses in action and an assignment thereof need not be recorded. Rents accruing are incorporeal hereditaments and, if for a period of more than three years, must be registered to pass any property as against purchasers for valuable consideration. First & Citizens Nat'l Bank v. Sawyer, 218 N.C. 142, 10 S.E.2d 656 (1940).

Lost and Unlost Deeds. - This section applies both to lost and unlost deeds executed after December 1, 1885; and there was no error in rejecting parol evidence to show that the plaintiff's grantor deeded the land in controversy to W in 1891, and that the said deed had been lost before registration, where the plaintiff was purchaser for value of said title under registered conveyances. Hinton v. Moore, 139 N.C. 44, 51 S.E. 787 (1905).

Where the corporate seal has not been affixed to a corporate deed, an order admitting it to probate as a conveyance is unauthorized but is sufficient to authorize its registration as a contract to convey. Haas v. Rendleman, 62 F.2d 701 (4th Cir. 1933), cert. denied, 289 U.S. 750, 53 S. Ct. 695, 77 L. Ed. 1495 (1933).

Exclusive Right to Sell Given to Broker. - Where an exclusive right to sell property given by the owner to a real estate broker is not registered as required by this section, third parties may deal with the locus as if there were no contract, since no notice, however full and formal, will take the place of registration. Eller v. Arnold, 230 N.C. 418, 53 S.E.2d 266 (1949).

Plaintiff broker alleged that he had been given an exclusive contract to sell certain property, that he had secured a prospect, and that thereafter the prospect and another real estate broker entered into an agreement under which the prospect, after expiration of plaintiff's option, purchased the property through the other broker upon such other broker's agreement to split his commission. It was held that in view of the absence of an allegation that plaintiff's option was registered, the complaint failed to state a cause of action. Eller v. Arnold, 230 N.C. 418, 53 S.E.2d 266 (1949).

Grants. - This section does not apply to grants, the registration of which is regulated by G.S. 146-47 and G.S. 146-48. Wyman v. Taylor, 124 N.C. 426, 32 S.E. 740 (1899).

Lease in Writing. - In order to affect with notice and bind a purchaser of lands to a contract of lease for more than three years made by a tenant with a former owner, it is necessary that the lease be registered in the proper county, and consequently, the lease must be in writing. Mauney v. Norvell, 179 N.C. 628, 103 S.E. 372 (1920), overruled on other grounds, Kent v. Humphries, 303 N.C. 675, 281 S.E.2d 43 (1981).

A lease for more than three years, to be enforceable, must be in writing, and to protect it against creditors or subsequent purchasers for value, the lease must be recorded. Bourne v. Lay & Co., 264 N.C. 33, 140 S.E.2d 769 (1965).

Short-Term Parol Leases. - The fact that parol leases for not more than three years are excepted from the operation of this section is not to be interpreted as meaning that a lessee under such lease is protected at all hazards or that his rights are superior to those of a bona fide purchaser for value from the lessor. These short-term parol tenancies are merely exempted from the operation of this section. This being so, one must look for guidance to the law as it stood prior to the passage of this section and as it now stands where the section has no application. Perkins v. Langdon, 237 N.C. 159, 74 S.E.2d 634 (1953).

Assignment of Lease for More Than Three Years. - Though not mentioned in either G.S. 22-2 or this section, an assignment of a lease for more than three years must, to be enforceable, be in writing, and to protect against creditors or subsequent purchasers, must be recorded. Herring v. Volume Merchandise, Inc., 249 N.C. 221, 106 S.E.2d 197 (1958).

Mere Personal Contract. - This section requires recordation of all deeds, contracts to convey, and leases for more than three years affecting the title to real property. But it neither requires nor authorizes the registration of a mere personal contract. Chandler v. Cameron, 229 N.C. 62, 47 S.E.2d 528 (1948).

Mortgage. - A mortgage has been held to come within the term "conveyance" as used in this section. First Nat'l Bank v. Sauls, 183 N.C. 165, 110 S.E. 865 (1922). See G.S. 47-20 and notes thereunder.

Agreement to Release Mortgage. - An unexecuted verbal agreement, made by a mortgagee for a valuable consideration, to release a real estate mortgage does not come within the statute of frauds, and it logically follows, if such an agreement is not required to be in writing to be enforceable as between the parties, that certainly it is not required to be recorded to be enforceable as between the parties. Nye v. University Dev. Co., 10 N.C. App. 676, 179 S.E.2d 795 (1971).

A tobacco acreage allotment is not within the purview of this section. Hart v. Hassell, 250 F. Supp. 893 (E.D.N.C. 1966).

Wills. - This section has no application to wills. Cooley v. Lee, 170 N.C. 18, 86 S.E. 720 (1915); Barnhardt v. Morrison, 178 N.C. 563, 101 S.E. 218 (1919).

Conveyance. - The general term "conveyance," as used in this section, cannot be construed to include wills. Bell v. Couch, 132 N.C. 346, 43 S.E. 911 (1903).

It is not necessary to examine the book of wills to see if the grantor of lands has devised them, or a part thereof, to another, and actual notice thereof will not affect the title conveyed by a registered deed. Harris v. Dudley Lumber Co., 147 N.C. 631, 61 S.E. 604 (1908).

Purchaser from Devisee Prevails Against Unregistered Deed. - This section, requiring conveyances of land, contracts to convey, and leases to be recorded, applies when the grantee in a deed fails to record his deed until after the probate of a will of the grantor devising the same land, and after the registration of a deed for the same land from the devisee to a purchaser for value. Bell v. Couch, 132 N.C. 346, 43 S.E. 911 (1903).

IV. PERSONS PROTECTED AND RIGHTS THEREOF.

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Who Are Protected, Generally. - By virtue of this section, only creditors of the donor, bargainor, or lessor, and purchasers for value are protected against an unregistered deed, contract to convey, or lease of land for more than three years. Warren v. Williford, 148 N.C. 474, 62 S.E. 697 (1908); Gosney v. McCullers, 202 N.C. 326, 162 S.E. 746 (1932); Virginia-Carolina Joint Stock Land Bank v. Mitchell, 203 N.C. 339, 166 S.E. 69 (1932); Case v. Arnold, 215 N.C. 593, 2 S.E.2d 694 (1939); Durham v. Pollard, 219 N.C. 750, 14 S.E.2d 818 (1941).

Creditors and purchasers for value are entitled to rely on the record of the instrument as written and recorded, under this section and G.S. 47-20, and as to them the mortgagee is not entitled to reformation. Lowery v. Wilson, 214 N.C. 800, 200 S.E. 861 (1939).

Because a real estate installment sales contract was recorded before a later transferee's deed to the same property was recorded, and because the buyers under the contract paid all money due under the contract, the buyers had valid title to the property and, pursuant to G.S. 47-18, were protected against the transferee, a subsequent purchaser for value. Watson v. Millers Creek Lumber Co., 178 N.C. App. 552, 631 S.E.2d 839 (2006).

The recording of a deed is essential to its validity only as against creditors and purchasers for a valuable consideration. Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316 (1949); Dulin v. Williams, 239 N.C. 33, 79 S.E.2d 213 (1953).

The registration of a deed conveying an interest in land is essential to its validity as against a purchaser for a valuable consideration from the grantor. Bourne v. Lay & Co., 264 N.C. 33, 140 S.E.2d 769 (1965).

This section does not protect all purchasers, but only innocent purchasers for value. Hill v. Pinelawn Mem. Park, 304 N.C. 159, 282 S.E.2d 779 (1981).

Status of Innocent Purchaser for Value Precluded by Actual Notice of Pending Litigation. - While actual notice of another unrecorded conveyance does not preclude the status of an innocent purchaser for value, actual notice of pending litigation affecting title to the property does preclude such status. Hill v. Pinelawn Mem. Park, 304 N.C. 159, 282 S.E.2d 779 (1981).

State's Title Superior Where Intervenor's Interest Derived from Deed Recorded After Filing of Lis Pendens. - Since the State's title to property derived from a Racketeer Influenced and Corrupt Organizations Act forfeiture proceeding related back to the date of the institution of the action when the notice of lis pendens was filed pursuant to G.S. 75D-5, the State's title was superior to the interest of an intervenor which derived from a deed from her husband recorded after the institution of the RICO action, and after the filing of the notice of lis pendens. State ex rel. Thornburg v. Tavern & Other Bldgs. & Lots at 1907 N. Main St., 96 N.C. App. 84, 384 S.E.2d 585 (1989).

Purchaser Obtaining and Recording Deed After Service of Summons Not Protected. - A purchaser of real property who obtains and records a deed thereto after being served with a summons in an action by a prior purchaser demanding conveyance of that property is not protected as a purchaser for value under the recordation statute. Hill v. Pinelawn Mem. Park, 304 N.C. 159, 282 S.E.2d 779 (1981).

Heir Not Protected. - The recording act protects only creditors of the grantor, bargainor, or lessor and purchaser for value against an unregistered conveyance of land. The same reasoning which prevents a party from introducing into evidence against a lien creditor or purchaser for value a deed invalidly registered does not apply to exclude an invalidly registered deed introduced against a party claiming an interest in the land by descent. An heir is not a purchaser for value entitled to the protection of the recording act. Hi-Fort, Inc. v. Burnette, 42 N.C. App. 428, 257 S.E.2d 85 (1979).

Burden on Purchaser. - Where a purchaser claims protection under the registration laws, he has the burden of proving, by a preponderance of the evidence, that he is an innocent purchaser for value, i.e., that he paid valuable consideration and had no actual notice, or constructive notice by reason of lis pendens, of pending litigation affecting title to the property. Hill v. Pinelawn Mem. Park, 304 N.C. 159, 282 S.E.2d 779 (1981); Stephenson v. Jones, 69 N.C. App. 116, 316 S.E.2d 626 (1984).

Alleged innocent purchaser for value of mortgaged real property on which the mortgage was assigned to a mortgagee was not entitled to judgment on the pleadings in the mortgagee's suit to restore lien priority because nothing showed the mortgagee or the mortgagee's assignor were responsible for the mortgage's release, were neglectful, misplaced confidence, received actual satisfaction, or benefitted from a transaction resulting in the release, so the mortgagee was entitled to the equitable exception to pure race priority for an unauthorized discharge, despite having bought the note and deed of trust while priority was being litigated. Wilmington Sav. Fund Soc'y, FSB v. Mortgage Elec. Registration Sys., - N.C. App. - , 829 S.E.2d 235 (2019).

Creditors Put Upon Same Plane as Purchasers. - No distinction is made in the statute or in the opinions of the court construing and applying the statute between creditors and purchasers for value. No conveyance of land is valid to pass any property from the donor or grantor, against either creditors or purchasers for value, but from the registration thereof. As to a purchaser for value who has recorded his deed, it has been held that a prior deed from the same grantor, unregistered, does not exist, as a conveyance or as color of title. The same is true as against the creditors. Eaton v. Doub, 190 N.C. 14, 128 S.E. 494 (1925).

Under the recording statutes, there is no distinction between creditors and purchasers for value: no conveyance of land is valid to pass any property as to either but from the registration of the conveyance. Arnette v. Morgan, 88 N.C. App. 458, 363 S.E.2d 678 (1988).

Volunteers and Donees Not Protected. - For lack of timely registration, this section only postpones or subordinates a deed older in date to creditors and purchasers for value. As against volunteers or donees, the older deed, though not registered, will, as a rule, prevail. Tyner v. Barnes, 142 N.C. 110, 54 S.E. 1008 (1906).

While the cancellation of a preexisting debt may be sufficient consideration to constitute the grantee in a registered deed from the debtor a purchaser for value within the protection of the Connor Act (this section), so as to take free from the claim of the grantee in a prior unregistered deed from the debtor, where the debtor transfers the property without consideration to a third person, who in turn transfers the property to the creditor without any consideration moving from the creditor to such third person, the creditor cannot maintain that the cancellation of the debt constitutes him a purchaser for value so as to be protected under the Connor Act, since his deed from the third person is not supported by any consideration, and it is required that the creditor be a "purchaser for value from the donor, bargainor, or lessor" in order to be protected. Sansom v. Warren, 215 N.C. 432, 2 S.E.2d 459 (1939).

The trustee in bankruptcy is regarded as a purchaser for value under the amendment to the National Bankruptcy Act, and acquires a valid title as against the holder of the unregistered deed under this section. Lynch v. Johnson, 171 N.C. 611, 89 S.E. 61 (1916).

Widow. - For case holding that where a man executed and delivered a deed to a tract of land prior to his marriage and remained on the land up to his death, and the deed was not recorded until after his death, his widow was not entitled to dower, and that she was not a purchaser, see Haire v. Haire, 141 N.C. 88, 53 S.E. 340 (1906).

Possessor Under Unregistered Contract to Convey. - One who goes into possession of land under a parol contract to convey, paying the purchase money and making improvements thereon, cannot assert the right to remain in possession until he is repaid the amount expended for purchase money and improvements as against a purchaser for value from the vendor under a duly registered deed. Wood v. Tinsley, 138 N.C. 507, 51 S.E. 59 (1905); Haas v. Smith, 235 N.C. 341, 69 S.E.2d 714 (1952).

As to a purchaser for value from the common grantor, the rule applies to one in possession, under an unregistered deed, who has enhanced the value of the land by improvements, even though such improvements were made in good faith. Eaton v. Doub, 190 N.C. 14, 128 S.E. 494 (1925). See also, Wood v. Tinsley, 138 N.C. 507, 51 S.E. 59 (1905), correcting expressions in Kelly v. Johnson, 135 N.C. 647, 47 S.E. 674 (1904), conflicting with these views.

Tort-Feasor Neither a Purchaser Nor a Creditor. - A tort-feasor whose negligence has damaged a chattel in the rightful possession of the mortgagor is neither a purchaser nor a creditor within the contemplation of our registration laws; an action may be maintained against him for the consequent damage either by the mortgagor or mortgagee, and a settlement with one will preclude a recovery by the other. Harris v. Seaboard Air Line Ry., 190 N.C. 480, 130 S.E. 319 (1925).

Trustee or Mortgagee as Purchaser. - A trustee or mortgagee, whether for old or new debts, is a purchaser for valuable consideration. Brem v. Lockhart, 93 N.C. 191 (1885).

Purchaser Under Execution Sale. - The purchaser at an execution sale who registers his deed prior to a deed from the defendant in execution to his wife which was executed before the sale acquires the title to the land; and the wife in possession of the land conjointly with her husband at the time of the sale and of the execution of the sheriff's deed to the plaintiff is not within the saving clause of the act, as the plaintiff does not take as purchaser from the "donor, bargainor or lessor," as against a donee in possession under an unregistered deed, but from the sheriff, who is the agent of the law. Cowen v. Withrow, 109 N.C. 636, 13 S.E. 1022 (1891).

Unrecorded Deed Held Valid as Between Debtors and Creditor, But Ineffective Against Rest of World. - A 1997 deed, which was secured by the related deed of trust, was the only deed of record on the petition date. Therefore, it followed that while the unrecorded 2003 deed may have been valid as between the debtors and the creditor, it was ineffective against the rest of the world. In re Carpenter, - Bankr. - (Bankr. E.D.N.C. Mar. 2, 2010).

Unrecorded Lease. - Lessee's claims against a purchaser were properly dismissed under the Connor Act, G.S. 47-18(a), because: (1) the initial lease was for more than three years and was never recorded; (2) the purchaser recorded its option to purchase the property before the lease with its right of first refusal was recorded; (3) the allegedly fraudulent actions of false representations that the lease had expired, failure to comply with the registration requirement in the first amended lease, and shell transfers of the property, were done by the sellers, not the purchasers, and did not constitute fraud under the Connor Act. New Bar P'ship v. Martin, 221 N.C. App. 302, 729 S.E.2d 675 (2012).

Trial court did not err in ruling that the right of first refusal (ROFR) agreement in a lessee's benefit was enforceable and that purchasers were not entitled to specific performance of an option agreement to buy the property from the lessor because they were not innocent purchasers for value; the fact that the ROFR agreement was not recorded did not protect the subsequent option agreement because under the statute, a right of first refusal did not have to be recorded in order to be valid. Anderson v. Walker, 260 N.C. App. 129, 818 S.E.2d 144 (2018).

Transferee in Installment Land Contract. - Bankruptcy trustee's action under 11 U.S.C.S. § 548(a)(1) to set aside a debtor's fraudulent transfer of property failed because although the debtor had given the transferee a warranty deed three months before he filed for bankruptcy, the parties had entered into an installment land contract in 2008, more than two years before the bankruptcy, and the transferee had recorded the contract in 2011. Crampton v. Immediato (In re Persinger), - F. Supp. 2d - (E.D.N.C. Aug. 3, 2016).

V. NOTICE.

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This section serves to provide constructive notice of claims to real property. Hill v. Pinelawn Mem. Park, 304 N.C. 159, 282 S.E.2d 779 (1981).

G.S. 1-116, G.S. 1-118 and this section serve to provide record notice, upon the absence of which a prospective innocent purchaser may rely. Hill v. Pinelawn Mem. Park, 304 N.C. 159, 282 S.E.2d 779 (1981).

Pursuant to G.S. 1-116, 1-1118, and 47-18, the fact that a pre-petition lis pendens had been filed against property purportedly owned by a Chapter 7 debtor was sufficient to give the Chapter 7 trustee constructive notice that there was a possible cloud on the title to the property and to preserve the superior lien of a mortgagee's nominee, once the nominee perfected its lien by judgment and levy. In re Suggs, 355 B.R. 525 (Bankr. M.D.N.C. 2006).

A purchaser has constructive notice of all duly recorded documents that a proper examination of the title should reveal. Stegall v. Robinson, 81 N.C. App. 617, 344 S.E.2d 803 (1986).

Only actual prior recordation of an interest in land will put bona fide purchaser for value or lien creditor on notice of an intervening interest or encumbrance on real property. Simmons v. Quick-Stop Food Mart, Inc., 307 N.C. 33, 296 S.E.2d 275 (1982).

No notice, however full or formal, will supply the want of registration of a deed. Collins v. Davis, 132 N.C. 106, 43 S.E. 579 (1903). See McClure v. Crow, 196 N.C. 657, 146 S.E. 713 (1929); Knowles v. Wallace, 210 N.C. 603, 188 S.E. 195 (1936); Smith v. Turnage-Winslow Co., 212 N.C. 310, 193 S.E. 685 (1937); Case v. Arnold, 215 N.C. 593, 2 S.E.2d 694 (1939); Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197 (1942); Grimes v. Guion, 220 N.C. 676, 18 S.E.2d 170 (1942); State Trust Co. v. Braznell, 227 N.C. 211, 41 S.E.2d 744 (1947); Chandler v. Cameron, 229 N.C. 62, 47 S.E.2d 528 (1948); Eller v. Arnold, 230 N.C. 418, 53 S.E.2d 266 (1949); Dulin v. Williams, 239 N.C. 33, 79 S.E.2d 213 (1953); Dula v. Parsons, 243 N.C. 32, 89 S.E.2d 797 (1955); Hayes v. Ricard, 245 N.C. 687, 97 S.E.2d 105 (1957); New Home Bldg. Supply Co. v. Nations, 259 N.C. 681, 131 S.E.2d 425 (1963); Lawing v. Jaynes, 285 N.C. 418, 206 S.E.2d 162 (1974).

The equitable doctrine of estoppel has no application to an innocent purchaser of lands for a valuable consideration, where the party setting up the estoppel under his deed has not had the latter recorded; for no notice, however full or formal, will, under this section, supply the place of registration. Sexton v. Elizabeth City, 169 N.C. 385, 86 S.E. 344 (1915).

Where defendant alleged that she went into possession of land, paid taxes and made improvements, under a parol agreement with the owner that if the owner should fail to return and repay the taxes and pay for the improvements defendant should have the land in fee, and that plaintiff, seeking to recover possession of the land by virtue of a duly registered deed from the heirs of the vendor, took with knowledge of the terms of the agreement and knowledge that defendant was in possession thereunder, it was held that the parol agreement was ineffectual as against plaintiff notwithstanding his knowledge, since no notice, however full and formal, will supply notice by registration as required by this section. Grimes v. Guion, 220 N.C. 676, 18 S.E.2d 170 (1942).

Absent Fraud or Estoppel. - Actual knowledge, however full and formal, of a grantee in a registered deed of a prior unregistered deed or lease will not defeat his title as a purchaser for value in the absence of fraud or matters creating estoppel. Bourne v. Lay & Co., 264 N.C. 33, 140 S.E.2d 769 (1965).

Rights to Property Determined by Registration. - This section provides, for reasons of public policy, that the rights of successive grantees of the same property shall be determined by registration, and that even actual knowledge on the part of the grantee in a registered instrument of the execution of a prior unregistered deed will not defeat his title as purchaser for a valuable consideration in the absence of fraud or matters creating an estoppel. Patterson v. Bryant, 216 N.C. 550, 5 S.E.2d 849 (1939).

Record of Nonrecordable Instrument Does Not Constitute Notice. - The record of an instrument does not constitute constructive notice if it is not of a class which is authorized or required by law to be recorded. Chandler v. Cameron, 229 N.C. 62, 47 S.E.2d 528 (1948).

The registration of an instrument operates as constructive notice only when the statute authorizes its registration, and then only to the extent of those provisions which are within the registration statutes. Chandler v. Cameron, 229 N.C. 62, 47 S.E.2d 528 (1948).

The registration of a deed or other instrument not entitled or required to be recorded is not constructive notice to subsequent purchasers. Lawing v. Jaynes, 285 N.C. 418, 206 S.E.2d 162 (1974).

Registration is constructive notice as to all instruments authorized to be registered, but is not constructive notice of provisions not coming within the registration laws, even if they are embodied in an instrument required to be recorded. Lawing v. Jaynes, 285 N.C. 418, 206 S.E.2d 162 (1974).

Actual Knowledge Not Sufficient Notice of Restrictive Covenant. - It is well settled in the state that a restrictive covenant is not enforceable, either at law or in equity, against a subsequent purchaser of property burdened by the covenant unless notice of the covenant is contained in an instrument in his chain of title. Unlike in many states, actual knowledge, no matter how full and formal, is not sufficient to bind a purchaser in the state with notice of the existence of a restrictive covenant. Runyon v. Paley, 331 N.C. 293, 416 S.E.2d 177 (1992).

Notice of Restrictive Covenants Recorded with First Conveyance of Subdivision Lots. - Defendants had record notice of restrictive covenants governing a subdivision, where the covenants were not recorded as part of the subdivision plat, but were recorded with the first conveyance out of lots in the subdivision. Stegall v. Robinson, 81 N.C. App. 617, 344 S.E.2d 803 (1986).

Option Agreement as Notice of Its Exercise. - Under this section as it stood before the 1975 amendment, a recorded option agreement did not constitute constructive notice to defendants that plaintiffs had exercised their option and had instituted an action to compel specific performance, since prior to the 1975 amendment this section did not apply to options. Lawing v. Jaynes, 285 N.C. 418, 206 S.E.2d 162 (1974).

Registration Is Not Notice as to After-Acquired Interest. - A written contract executed by a tenant in common without the knowledge or authorization of his cotenants to sell the timber on the entire tract was recorded. The tenant in common later acquired an additional interest in the land. It was held that registration was constructive notice to all subsequent purchasers as to the tenant's original interest, but the vendee's right to demand conveyance of the timber as to the after-acquired interest rested upon the personal contract of the vendor, which was not required to be recorded by this section, and therefore registration was not notice to subsequent purchasers as to such after-acquired title. Chandler v. Cameron, 229 N.C. 62, 47 S.E.2d 528 (1948).

The mere possession of the locus in quo under an unregistered 99-year lease or any other circumstances is not sufficient notice to the owner of the fee under a valid paper chain of title. Dye v. Morrison, 181 N.C. 309, 107 S.E. 138 (1921).

Constructive Notice Found. - Trial court erred in declaring the defendants to be the owners of boat slip - the more desirable slip - because the parties were entitled to the boat slip that the developers deeded to them, and the defendants were on constructive notice of the covenants that were recorded by the developers days prior to their closing and deed recording. Benson v. Prevost, - N.C. App. - , - S.E.2d - (May 18, 2021).

VI. EFFECT OF DEFECTIVE REGISTRATION.

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Registration of Defectively Probated Deed Ineffective. - The registration of a deed upon an unauthorized probate is invalid, and it cannot be introduced in evidence for the purpose of showing an essential link in the chain of title. Allen v. Burch, 142 N.C. 524, 55 S.E. 354 (1906).

In order for a registered deed to give constructive notice to creditors or purchasers for value, the probate must not be defective upon its face as to a material requirement, and where the probate is taken upon the examination of an attesting witness it must actually or constructively appear upon the face of the probate that the certificate was made upon evidence taken of the subscribing witness under oath, and if not so appearing the registration of the deed is insufficient to give the statutory notice. McClure v. Crow, 196 N.C. 657, 146 S.E. 713 (1929).

Lenders that sought to be subrogated to the rights of prior lenders who held recorded deeds of trust on the properties stated a claim for equitable subrogation, as interpreted under the North Carolina pure race recording statute, G.S. 47-18. Commonwealth Land Title Ins. Co. v. Miller (In re Project Homestead, Inc.), 374 B.R. 193 (Bankr. M.D.N.C. 2007).

When Probate Appears in Conformity with Law. - While a probate of a deed to lands defective upon its face is ineffectual to pass title as against creditors, etc., it is otherwise when the probate appears to have been in conformity with law, regularly taken by a notary public in some other state, and there is no evidence that the grantee in the commissioner's deed under the foreclosure of a mortgage had actual notice of the defect. County Sav. Bank v. Tolbert, 192 N.C. 126, 133 S.E. 558 (1926).

VII. UNREGISTERED DEED AS COLOR OF TITLE.

.

In General. - Formerly an unregistered deed was in all cases color of title if sufficient in form. Hunter v. Kelly, 92 N.C. 285 (1885). After the passage of the Connor Act in 1885 it was held that an unregistered deed was not color of title. Austin v. Staten, 126 N.C. 783, 36 S.E. 338 (1900).

The question was again considered in Collins v. Davis, 132 N.C. 106, 43 S.E. 579 (1903), and the ruling in Austin v. Staten was modified so that it only applied in favor of the holder of a subsequent deed executed upon a valuable consideration, and the court has since then consistently adhered to the latter decision. Janney v. Robbins, 141 N.C. 400, 53 S.E. 863 (1906); Burwell v. Chapman, 159 N.C. 209, 74 S.E. 635 (1912); Gore v. McPherson, 161 N.C. 638, 77 S.E. 835 (1913); King v. McRackan, 168 N.C. 621, 84 S.E. 1027 (1915), rehearing denied, 171 N.C. 752, 88 S.E. 226 (1916).

Where one makes a deed for land, for a valuable consideration, and the grantee fails to register it, but enters into possession thereunder, and remains therein for more than 7 years, such deed does not constitute color of title and bar the entry of a grantee, in a subsequent deed for a valuable consideration, who has duly registered his deed. Collins v. Davis, 132 N.C. 106, 43 S.E. 579 (1903).

Except in cases coming within this rule, the rights acquired by adverse possession for 7 years under color of title are not disturbed or affected by this section. Roberts v. Massey, 185 N.C. 164, 116 S.E. 407 (1923); Eaton v. Doub, 190 N.C. 14, 128 S.E. 494 (1925).

Adverse Possession Under Deeds Foreign to True Title. - The principle that under this section an unregistered deed does not constitute color of title does not extend to a claim by adverse possession held continuously for the requisite time under deeds "foreign" to the true title or entirely independent of the title under which the plaintiff makes his claim. Janney v. Robbins, 141 N.C. 400, 53 S.E. 863 (1906).

As Against Subsequent Deed Duly Registered. - Where one makes a deed for land for a valuable consideration and the grantee fails to register it, but enters into possession thereunder and remains therein for more than seven years, such deed does not constitute color of title and bar the entry of a grantee in a subsequent deed for a valuable consideration who has duly registered his deed. King v. McRackan, 168 N.C. 621, 84 S.E. 1027 (1915), rehearing denied, 171 N.C. 752, 88 S.E. 226 (1916).

As Against Judgment Creditors. - The possession of a grantee under an unregistered deed of lands is not under color of title as against subsequent judgment creditors of his grantor, who have thus obtained their liens on the locus in quo, the source of title being a common one, nor can the grantee establish his rights to betterments. Eaton v. Doub, 190 N.C. 14, 128 S.E. 494 (1925).

Registration as Affecting Commencement of Limitations. - The statute of limitations does not begin to run in favor of the lessee in possession under a 99-year lease of lands until the registration of the lease, as against the owner of the fee under a paper chain of title from a common source. Dye v. Morrison, 181 N.C. 309, 107 S.E. 138 (1921).


§ 47-18.1. Registration of certificate of corporate merger, consolidation, or conversion.

  1. If title to real property in this State is vested by operation of law in another entity upon the merger, consolidation, or conversion of an entity, such vesting is effective against lien creditors or purchasers for a valuable consideration from the entity formerly owning the property, only from the time of registration of a certificate thereof as provided in this section, in the county where the land lies, or if the land is located in more than one county, then in each county where any portion of the land lies to be effective as to the land in that county.
  2. The Secretary of State shall adopt uniform certificates of merger, consolidation, or conversion, to be furnished for registration, and shall adopt such fees as are necessary for the expense of such certification. If the entity involved is not a domestic entity, a similar certificate by any competent authority in the jurisdiction of incorporation or organization may be registered in accordance with this section.
  3. A certificate of the Secretary of State prepared in accordance with this section shall be registered by the register of deeds in the same manner as deeds, and for the same fees, but no formalities as to acknowledgment, probate, or approval by any other officer shall be required. The name of the entity formerly owning the property shall appear in the "Grantor" index, and the name of the entity owning the property by virtue of the merger, consolidation, or conversion shall appear in the "Grantee" index.

History

(1967, c. 950, s. 3; 1991, c. 645, s. 2(b); 1999-369, s. 5.1.)

§ 47-18.2. Registration of Inheritance and Estate Tax Waiver.

An Inheritance and Estate Tax Waiver or other consent to transfer issued by the Secretary of Revenue bearing the signature of the Secretary of Revenue or the official facsimile signature of the Secretary of Revenue may be registered by the Register of Deeds in the county or counties where the real estate described in the Inheritance and Estate Tax Waiver or consent to transfer is located in the same manner as deeds, and for the same fees, but no formalities as to acknowledgement, probate, or approval by an officer shall be required. The name of the decedent owning the real property at death shall appear in the "Grantor" index. Nothing herein shall require a personal representative or other person interested in the decedent's estate to register Inheritance and Estate Tax Waivers or consents to transfer.

History

(1987, c. 548, s. 3.)

§ 47-18.3. Execution of corporate instruments; authority and proof.

  1. Notwithstanding anything to the contrary in the bylaws or articles of incorporation or the operating agreement or articles of organization, when it appears on the face of an instrument registered in the office of the register of deeds that the instrument was signed in the ordinary course of business on behalf of a domestic or foreign corporation or a domestic or foreign limited liability company by its chairman, president, chief executive officer, a vice-president, assistant vice-president, treasurer, chief financial officer, chief operations officer, general counsel, deputy or assistant general counsel, manager, member, director, or other fiduciary duly authorized by the applicable business entity's statutes or governing documents, such an instrument shall be as valid with respect to the rights of innocent third parties as if executed pursuant to authorization from the board of directors, unless the instrument reveals on its face a potential breach of fiduciary obligation. The subsection shall not apply to parties who had actual knowledge of lack of authority or of a breach of fiduciary obligation.
  2. Any instrument registered in the office of the register of deeds, appearing on its face to be executed by a corporation or limited liability company, foreign or domestic, and bearing a seal which purports to be the corporate seal, setting forth the name of the corporation engraved, lithographed, printed, stamped, impressed upon, or otherwise affixed to the instrument, is prima facie evidence that the seal is the duly adopted corporate seal of the corporation, that it has been affixed as such by an individual duly authorized so to do, that the instrument was duly executed and signed by individuals who were officers or agents of the corporation acting by authority duly given by the board of directors, and that any such instrument is the act of the corporation, and shall be admissible in evidence without further proof of execution.
  3. Nothing in this section shall be deemed to exclude the power of any corporate or limited liability company representatives to bind the corporation or limited liability company pursuant to express, implied, inherent or apparent authority, ratification, estoppel, or otherwise.
  4. Nothing in this section shall relieve corporate or limited liability company officers from liability to the corporation or limited liability company or from any other liability that they may have incurred from any violation of their actual authority.
  5. Any corporation or limited liability company may convey an interest in real property which is transferable by instrument which is duly executed by either an officer, manager, member, or agent of said corporation or limited liability company and has attached thereto a signed and attested resolution of the board of directors of said corporation or the managers or members of the limited liability company authorizing the said officer, manager, member, or agent to execute, sign, seal, and attest deeds, conveyances, or other instruments. This section shall be deemed to have been complied with if an attested resolution is recorded separately in the office of the register of deeds in the county where the land lies, which said resolution shall be applicable to all deeds executed subsequently thereto and pursuant to its authority. Notwithstanding the foregoing, this section shall not require a signed and attested resolution of the board of directors of the corporation or the managers or members of the limited liability company to be attached to an instrument or separately recorded in the case of an instrument duly executed by the corporation's or limited liability company's chairman, president, chief executive officer, a vice-president, assistant vice-president, treasurer, chief financial officer, chief operations officer, general counsel, deputy or assistant general counsel, manager, member, director, or other fiduciary duly authorized by the applicable business entity's statutes or governing documents. All deeds, conveyances, or other instruments which have been heretofore or shall be hereafter so executed shall, if otherwise sufficient, be valid and shall have the effect to pass the title to the real or personal property described therein.

History

(1991, c. 647, s. 2; 1999-221, s. 4; 2018-80, s. 2.2; 2020-50, s. 3(a); 2020-69, s. 6(a).)

Editor's Note. - Session Laws 2018-80, s. 4.1, as amended by Session Laws 2020-50, s. 3(a), and as amended by Session Laws 2020-69, s. 6(a), provides: "The remainder of this act is effective when this act becomes law [June 25, 2018] and applies to mortgages and deeds of trust entered into before, on, or after that date, and to other instruments under G.S. 47-18.3 executed before, on, or after August 1, 2020."

Effect of Amendments. - Session Laws 2018-80, s. 2.2, effective June 25, 2018, added "or limited liability company" throughout the section; rewrote subsection (a) and subsection (e); and made stylistic changes in subsection (b).

CASE NOTES

Deed Ineffective. - Grantor signatures on the deed were those of individuals, not that of a limited liability company; the fact that the parties entered a stipulation as to the validity of the deed did not change that the deed on the public record said what it said and was ineffective to convey title. Sparkman v. Coley (In re Coley), 608 B.R. 625 (Bankr. E.D.N.C. 2019).

§ 47-19. Unregistered deeds prior to January, 1920, registered on affidavit.

Any person holding any unregistered deed or claiming title thereunder, executed prior to the first day of January, 1920, may have the same registered without proof of the execution thereof by making an affidavit, before the officer having jurisdiction to take probate of such deed, that the grantor, bargainor or maker of such deed, and the witnesses thereto, are dead or cannot be found, that he cannot make proof of their handwriting, and that affiant believes such deed to be a bona fide deed and executed by the grantor therein named. Said affidavit shall be written upon or attached to such deed, and the same, together with such deed, shall be entitled to registration in the same manner and with the same effect as if proved in the manner prescribed by law for other deeds.

History

(1885, c. 147, s. 2; 1905, c. 277; Rev., s. 981; 1913, c. 116; 1915, cc. 13, 90; C.S., s. 3310; Ex. Sess., 1924, c. 56; 1951, c. 771.)

CASE NOTES

Affidavit in Case of Corporation. - Where a corporation is the holder of such a deed, the affidavit under this section may properly be made by its president. Richmond Cedar Works v. Pinnix, 208 F. 785 (E.D.N.C. 1913).

Affirmation of Belief That Deed Is Bona Fide. - The probate of a deed dated in 1845 upon an affidavit that the affiant claimed title under the said deed and that the maker of said deed and the witnesses thereto were dead, and that he could not make proof of their handwriting, was defective, in that it did not appear by the affidavit that the affiant believed such a deed to be a bona fide deed and executed by the grantor therein named. Allen v. Burch, 142 N.C. 524, 55 S.E. 354 (1906).


§ 47-20. Deeds of trust, mortgages, conditional sales contracts, assignments of leases and rents; effect of registration.

  1. No deed of trust or mortgage of real or personal property, or of a leasehold interest or other chattel real, or conditional sales contract of personal property in which the title is retained by the vendor, shall be valid to pass any property as against lien creditors or purchasers for a valuable consideration from the grantor, mortgagor or conditional sales vendee, but from the time of registration thereof as provided in this Article; provided however that any transaction subject to the provisions of the Uniform Commercial Code (Chapter 25 of the General Statutes) is controlled by the provisions of that act and not by this section. Unless otherwise stated either on the registered instrument or on a separate registered instrument duly executed by the party whose priority interest is adversely affected, (i) instruments registered in the office of the register of deeds shall have priority based on the order of registration as determined by the time of  registration, and (ii) if instruments are registered simultaneously, then the instruments shall be presumed  to have priority as determined by:
    1. The earliest document number set forth on the  registered instrument.
    2. The sequential book and page number set forth on the registered instrument if no document number is set forth on the registered instrument.
  2. For purposes of this section and G.S. 47-20.1, the following definitions apply:
    1. "Rents, issues, or profits" means all amounts payable by or on behalf of any lessee, tenant, or other person having a possessory interest in real estate on account of or pursuant to any written or oral lease or other instrument evidencing a possessory interest in real property or pursuant to any form of tenancy implied by law, and all amounts payable by or on behalf of any licensee or permittee or other person occupying or using real property under license or permission from the owner or person entitled to possession. The term shall not include farm products as defined in G.S. 25-9-102(34), timber, the proceeds from the sale of farm products or timber, or the proceeds from the recovery or severance of any mineral deposits located on or under real property.
    2. "Assignment of leases, rents, issues, or profits" means every document assigning, transferring, pledging, mortgaging, or conveying an interest in leases, licenses to real property, and rents, issues, or profits arising from real property, whether set forth in a separate instrument or contained in a mortgage, deed of trust, conditional sales contract, or other deed or instrument of conveyance.
    3. "Collateral assignment" means any assignment of leases, rents, issues, or profits made and delivered in connection with the grant of any mortgage, or the execution of any conditional sales contract or deed of trust or in connection with any extension of credit made against the security of any interest in real property, where the assignor retains the right to collect or to apply such lease revenues, rents, issues, or profits after assignment and prior to default.
  3. The recording of a written document in accordance with G.S. 47-20.1 containing an assignment of leases, rents, issues, or profits arising from real property shall be valid and enforceable from the time of recording to pass the interest granted, pledged, assigned, or transferred as against the assignor, and shall be perfected from the time of recording against subsequent assignees, lien creditors, and purchasers for a valuable consideration from the assignor.
  4. Where an assignment of leases, rents, issues, or profits is a collateral assignment, after a default under the mortgage, deed of trust, conditional sales contract, or evidence of indebtedness which such assignment secures, the assignee shall thereafter be entitled, but not required, to collect and receive any accrued and unpaid or subsequently accruing lease revenues, rents, issues, or profits subject to the assignment, without need for the appointment of a receiver, any act to take possession of the property, or any further demand on the assignor. Unless otherwise agreed, after default the assignee shall be entitled to notify the tenant or other obligor to make payment to him and shall also be entitled to take control of any proceeds to which he may be entitled. The assignee must proceed in a commercially reasonable manner and may deduct his reasonable expenses of realization from the collections.
  5. This section shall not exclude other methods of creating, perfecting, collecting, sequestering, or enforcing a security interest in rents, issues, or profits provided by the law of this State.

The presumption created by this subsection is rebuttable.

History

(1829, c. 20; R.C., c. 37, s. 22; Code, s. 1254; Rev., s. 982; 1909, c. 874, s. 1; C.S., s. 3311; 1953, c. 1190, s. 1; 1959, c. 1026, s. 2; 1965, c. 700, s. 8; 1967, c. 562, s. 5; 1991, c. 234, s. 1; 2000-169, s. 35; 2003-219, s. 3; 2005-212, s. 3.)

Cross References. - As to security interests in motor vehicles, see G.S. 20-58 et seq.

As to perfection of security interests under the Uniform Commercial Code, see G.S. 25-9-301 et seq.

As to filing of security interests under the Uniform Commercial Code, see G.S. 25-9-401 et seq.

As to discharge of record of mortgagees and deeds of trust, see G.S. 45-37.

As to registration of conveyances, contracts to convey, options and leases of land, see G.S. 47-18.

As to insurance policies for benefit of mortgagees, see G.S. 58-43-15.

Effect of Amendments. - Session Laws 2005-212, s. 3, effective July 20, 2005, rewrote subsection (a).

Legal Periodicals. - As to notice and registration, see 15 N.C.L. Rev. 166 (1937).

For comment on persons protected by this section, see 28 N.C.L. Rev. 305 (1950).

For comment on the 1953 amendatory act, see 31 N.C.L. Rev. 429 (1953).

For article, "Transferring North Carolina Real Estate Part I: How the Present System Functions," see 49 N.C.L. Rev. 413 (1971).

For article, "Future Advances and Title Insurance Coverage," see 15 Wake Forest L. Rev. 329 (1979).

For article, "North Carolina's Real Estate Recording Laws: The Ghost of 1885," see 28 N.C. Cent. L.J. 199 (2006).

CASE NOTES

I. IN GENERAL.

The object of this section is to prevent fraud, and to that end it requires the registration of encumbrances so that purchasers and creditors may have notice of their existence and nature, and all persons may see for what the encumbrances were created. When the registration is made, creditors of the mortgagor are able to avail themselves of their legal remedy against the equity of redemption in the land. This publicity affords the creditors all the benefit they can reasonably ask or that the law intended. Starke v. Etheridge, 71 N.C. 240 (1874).

The purpose of North Carolina's recording statute is to enable intending purchasers and encumbrancers to rely with safety on the public record concerning the status of land titles. However, the recording statute only protects innocent purchasers for value. Chrysler Credit Corp. v. Burton, 599 F. Supp. 1313 (M.D.N.C. 1984).

The purpose of this section is to prevent fraud, and liens registered under this Article are still subject to the common law of North Carolina for determination of their validity. The statute merely adds an additional requirement that a mortgagee must meet before successfully asserting an interest in rents and profits of a mortgaged property against third parties. It is designed to protect third parties. In re Westchase I Assocs., 119 Bankr. 521 (Bankr. W.D.N.C. 1990).

This section and G.S. 47-18 were intended to uproot all secret liens, trusts, unregistered mortgages, etc. Hooker v. Nichols, 116 N.C. 157, 21 S.E. 207 (1895). See also, Robinson v. Willoughby, 70 N.C. 358 (1874).

This section is designed to protect creditors and purchasers for value against any adverse claim founded on an unrecorded lien. M. & J. Fin. Corp. v. Hodges, 230 N.C. 580, 55 S.E.2d 201 (1949).

Section Intended Primarily to Protect Creditors and Purchasers. - This section was intended primarily to protect creditors and purchasers, and not to attach to the instrument additional efficacy as between the mortgagor and the mortgagee. South Ga. Motor Co. v. Jackson, 184 N.C. 328, 114 S.E. 478 (1922).

The General Assembly, by enacting the recording statutes, clearly intended that prospective purchasers should be able to safely rely on the public records. Schuman v. Roger Baker & Assocs., 70 N.C. App. 313, 319 S.E.2d 308 (1984).

This section is merely a recording statute that serves to protect third parties by giving record notice of a purported interest. Recordation does not serve to add to the substantive rights of a purported lien holder. In re Westchase I Assocs., 119 Bankr. 521 (Bankr. W.D.N.C. 1990).

Bank was not entitled to relief from a bankruptcy court order cancelling its deed of trust where, inter alia, its two year delay in seeking relief was not reasonable, and it would create significant unfair prejudice to an innocent bona fide purchaser who gave fair value for clear title. That order unambiguously cancelled the bank's deed of trust, and a certified copy of the order was recorded in the register of deeds in compliance with North Carolina's race recording statute, the purpose of which was to enable purchasers to rely with safety upon an examination of records. Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295 (4th Cir. 2017).

No distinction is made in the statute between creditors and purchasers for value. Lowery v. Wilson, 214 N.C. 800, 200 S.E. 861 (1939).

Under the recording statutes, there is no distinction between creditors and purchasers for value: no conveyance of land is valid to pass any property as to either but from the registration of the conveyance. Arnette v. Morgan, 88 N.C. App. 458, 363 S.E.2d 678 (1988).

This section is liberally construed. GMAC v. Mayberry, 195 N.C. 508, 142 S.E. 767 (1928).

Construction of This Section and G.S. 47-18 Identical. - In view of the practical identity of the terminology of this section and G.S. 47-18, the construction put upon them will be identical. Francis v. Herren, 101 N.C. 497, 8 S.E. 353 (1888); Cowan v. Withrow, 112 N.C. 736, 17 S.E. 575 (1893).

This section, the recording statute for deeds of trust, is virtually identical to the statute governing outright conveyances, G.S. 47-18, and the two are construed alike. These statutes provide in essence that the party winning "the race to the courthouse" will have priority in title disputes. Schuman v. Roger Baker & Assocs., 70 N.C. App. 313, 319 S.E.2d 308 (1984); Schiller v. Scott, 82 N.C. App. 90, 345 S.E.2d 444 (1986).

This section regulates priority as between written instruments affecting the title to property and other legal claims. M. & J. Fin. Corp. v. Hodges, 230 N.C. 580, 55 S.E.2d 201 (1949).

Compliance Required. - The probate and registration of deeds and mortgages are entirely statutory, and creditors and purchasers are entitled to rely upon at least a substantial compliance with the statute. National Bank v. Hill, 226 F. 102 (E.D.N.C. 1915).

Anyone at any time can register papers in compliance with this section, but such recordation does not create a perfected security interest. In re Westchase I Assocs., 119 Bankr. 521 (Bankr. W.D.N.C. 1990).

In its interpretation of the North Carolina recording statutes, the North Carolina Supreme Court has insisted on strict compliance. McKnight v. M. & J. Fin. Corp., 247 F.2d 112 (4th Cir. 1957).

Instrument Effective from Time of Registration. - A mortgage deed, not registered within time, when registered operates from the time of registration only, and has no relation back to its date. Davison v. Beard, 9 N.C. 520 (1823).

Priority is given to the mortgage first recorded, by virtue of this section. Wayne Nat'l Bank v. National Bank, 197 N.C. 68, 147 S.E. 691 (1929).

Determination of Priorities Between Mortgages by Time of Filing. - The priorities between two mortgages or deeds of trust on land, appearing upon the index of the register of deeds to have been registered on the same month, exact date not given, nothing else appearing, may be determined by the time of filing for registration, and their relative position on the index. Blacknall v. Hancock, 182 N.C. 369, 109 S.E. 72 (1921).

Want of Registration at Any Particular Time Does Not Avoid Instruments. - This section does not avoid a deed of trust for want of registration at any particular time, but declares that it shall not operate "but from" the registration, and that is deemed to be done on the day of its delivery to the register, as noted by him on the deed. McKinnon v. McLean, 19 N.C. 79 (1836).

Execution Lien Superior to Unrecorded Mortgage. - Where the assignee of a note and mortgage failed to record the mortgage before an execution was issued in order to satisfy a judgment secured by a creditor, the lien of execution is superior to the assignee's mortgage. M. & J. Fin. Corp. v. Hodges, 230 N.C. 580, 55 S.E.2d 201 (1949).

Mortgagees in unregistered mortgage had no priority as against assets of corporate mortgagor in receivership. This is so for the reason that by adjudication of insolvency and the appointment of the receiver, the creditors at large of the corporation, represented by the receiver, became in legal contemplation creditors for a valuable consideration within the meaning of this section, and therefore, the deed of trust as to the receiver was void. Eno Inv. Co. v. Protective Chems. Lab., 233 N.C. 294, 63 S.E.2d 637 (1951).

Effect of Defective Registration. - A defective registration is no registration and is void, and hence it does not prevent the rights of subsequent purchasers for value from attaching upon the property. Cowan v. Dale, 189 N.C. 684, 128 S.E. 155 (1925).

In a case in which a trial court granted summary judgment in favor of a bank, which declared that a deed of trust filed by the bank had priority over and was superior to any interest created by the deed of trust filed by a mortgage company, even though the mortgage company recorded its deed of trust before the bank filed its deed of trust, the mortgage company's deed of trust failed to name a trustee and failed to contain a proper description of the real property to be conveyed to the trustee. The mortgage company could not reform the deed of trust because the general rule was that reformation would not be granted if the rights of an innocent bona fide purchaser would thereby be prejudiced. Fifth Third Mortg. Co. v. Miller, 202 N.C. App. 757, 690 S.E.2d 7 (2010).

Because a bona fide purchaser of the parcel would not have been charged with notice of the bank's lien based on an examination of the parcel identifier number index when the bankruptcy petition was filed (the deed of trust, while recorded as to a different contiguous parcel, was not so recorded as to the parcel at issue), even if the purchaser had knowledge of the lien, the trustee likewise was not imputed with such knowledge; therefore, the trustee was properly allowed to avoid the lien under 11 U.S.C.S. § 544(a)(3). SunTrust Bank, N.A. v. Macky (In re McCormick), 669 F.3d 177 (4th Cir. 2012).

Mortgage Incorrectly Stating Amount Secured. - Through mistake a mortgage was executed to secure $15.00 instead of $1,500.00, and was so recorded. Later, creditors of the mortgagor obtained judgments against him which were duly recorded. It was held that creditors and purchasers for value are entitled to rely on the record of the instrument as written and recorded, and as to them the mortgage was not entitled to reformation. Lowery v. Wilson, 214 N.C. 800, 200 S.E. 861 (1939).

Grantor's Name Misspelled. - Evidence that one letter of a Chapter 13 debtor's first name was omitted when a deed of trust the debtor gave a creditor was recorded pursuant to G.S. 47-20 did not show that the deed of trust was invalid, such that the debtor could treat the creditor's claim as wholly unsecured; the creditor substantially complied with the notice requirement of G.S. 161-22 when it recorded the deed of trust, even though it misspelled the debtor's name. Gause v. Citifinancial Sevs. (In re Gause), 525 B.R. 35 (Bankr. M.D.N.C. 2014).

As to registration of chattel mortgages and conditional sales prior to Uniform Commercial Code, see Dukes v. Jones, 51 N.C. 14 (1858); Butts v. Screws, 95 N.C. 215 (1886); Chemical Co. v. Johnson, 98 N.C. 123, 3 S.E. 723 (1887); Weaver v. Chunn, 99 N.C. 431, 6 S.E. 370 (1888); Harris v. Allen, 104 N.C. 86, 10 S.E. 127 (1889); In re Southern Textile Co., 174 F. 523 (2d Cir. 1909); Bank of Colerain v. Cox, 171 N.C. 76, 87 S.E. 967 (1916); Rogers v. Booker, 184 N.C. 183, 113 S.E. 671 (1922); South Georgia Motor Co. v. Jackson, 184 N.C. 328, 114 S.E. 478 (1922); Cowan v. Dale, 189 N.C. 684, 128 S.E. 155 (1925); Whitehurst v. Garrett, 196 N.C. 154, 144 S.E. 835 (1928); Bundy v. Commercial Credit Co., 202 N.C. 604, 163 S.E. 676 (1931); Carolina Coach Co. v. Begnell, 203 N.C. 656, 166 S.E. 903 (1932); Industrial Disct. Corp. v. Radecky, 205 N.C. 163, 170 S.E. 640 (1933); Weil v. Herring, 207 N.C. 6, 175 S.E. 836 (1934); Hartford Accident & Indem. Co. v. Coggin, 78 F.2d 471 (4th Cir.), cert. denied, 296 U.S. 620, 56 S. Ct. 141, 80 L. Ed. 440, rehearing denied, 296 U.S. 663, 56 S. Ct. 169, 80 L. Ed. 472 (1935); Coggin v. Hartford Accident & Indem. Co., 9 F. Supp. 785 (M.D.N.C.), rev'd on other grounds, 78 F.2d 471 (4th Cir. 1935), cert. denied, 296 U.S. 620, 56 S. Ct. 141, 80 L. Ed. 440, rehearing denied, 296 U.S. 663, 56 S. Ct. 169, 80 L. Ed. 472 (1935); Universal C.I.T. Credit Corp. v. Walters, 230 N.C. 443, 53 S.E.2d 520 (1949); M. & J. Fin. Corp. v. Hodges, 230 N.C. 580, 55 S.E.2d 201 (1949); Associates Disct. Corp. v. McKinney, 230 N.C. 727, 55 S.E.2d 513 (1949); Montague Bros. v. Shepherd Co., 231 N.C. 551, 58 S.E.2d 118 (1950); Sheffield v. Walker, 231 N.C. 556, 58 S.E.2d 356 (1950); Friendly Fin. Corp. v. Quinn, 232 N.C. 407, 61 S.E.2d 192 (1950); National Sur. Corp. v. Sharpe, 236 N.C. 35, 72 S.E.2d 109 (1952); Coastal Sales Co. v. Weston, 245 N.C. 621, 97 S.E.2d 267 (1957); McKnight v. M. & J. Fin. Corp., 247 F.2d 112 (4th Cir. 1957); McCreary Tire & Rubber Co. v. Crawford, 253 N.C. 100, 116 S.E.2d 491 (1960); Southern Auto. Fin. Co. v. Pittman, 253 N.C. 550, 117 S.E.2d 423 (1960); Mickel-Hopkins, Inc. v. Frassinetti, 278 F.2d 301 (4th Cir. 1960); Wachovia Bank & Trust Co. v. Wayne Fin. Co., 262 N.C. 711, 138 S.E.2d 481 (1964); Gordon Johnson Co. v. Dawes, 338 F.2d 628 (4th Cir. 1964); National Bank v. Sprinkle, 3 N.C. App. 242, 164 S.E.2d 611 (1968).

This section does not apply to the application of the equitable subrogation of lien in favor of one advancing money to pay off existing mortgage liens upon lands. Wallace v. Benner, 200 N.C. 124, 156 S.E. 795 (1931).

Agreement Giving Holders of Preferred Stock a Lien. - Where preferred stockholders of a corporation are given a priority over creditors by an agreement in its charter and certificates of stock giving the holders thereof a lien on its realty, even if the agreement is construed as a mortgage, it is inoperative as to creditors without compliance with this section requiring registration. Ellington v. Raleigh Bldg. Supply Co., 196 N.C. 784, 147 S.E. 307 (1929).

Recordation Necessary to Perfect Security Interest in Rents Accruing in Future. - North Carolina recognizes a difference between rents which have already accrued and rents which will be accruing in the future. Already accrued rents are personalty (choses in action) while rents accruing in the future are incorporeal hereditaments - interests in real property. Thus the recordation of the deed of trust was necessary to perfect the security interest in rents accruing in the future. Westchase I Assocs. v. Lincoln Nat'l Life Ins. Co., 126 Bankr. 692 (W.D.N.C. 1991).

Purchase-Money Deed of Trust Executed by Husband and Registered Prior to Deed to Wife. - Where the owner of lands deeded them to wife, according to the language of the registered instrument, and husband alone executed a purchase-money deed of trust on the lands, which was registered prior to the registration of the deed in fee to the wife, the records were insufficient to show that the husband had any interest in the land, and the purchase-money deed of trust was ineffective as against creditors or subsequent purchasers for value from the wife, and where the husband and wife thereafter executed a mortgage, which was duly registered, the mortgagee was entitled to foreclose same upon default as against those claiming title by foreclosure under the purchase-money deed of trust, and this result was not affected by the fact that the mortgage, in the clause warranting title, referred to the purchase-money deed of trust by page number of the registry book, since such reference did not constitute even constructive notice in that the records would not have shown that the husband had any interest in the land, and since no notice, however full and formal, will supply want of registration. Smith v. Turnage-Winslo, 212 N.C. 310, 193 S.E. 685 (1937).

Applied in Ward v. Southern Sand & Gravel Co., 33 F.2d 773 (M.D.N.C. 1929); First Nat'l Bank v. Raleigh Sav. Bank & Trust Co., 37 F.2d 301 (4th Cir. 1930); King v. Premo & King, Inc., 258 N.C. 701, 129 S.E.2d 493 (1963); In re Blanks, 64 Bankr. 467 (Bankr. E.D.N.C. 1986).

Cited in Hooker v. Nicholas, 116 N.C. 157, 21 S.E. 207 (1895); John Hetherington & Sons v. Rudisill, 28 F.2d 713 (4th Cir. 1928); Andrews Music Store v. Boone, 197 N.C. 174, 148 S.E. 39 (1929); Threlkeld v. Malcragson Land Co., 198 N.C. 186, 151 S.E. 99 (1930); Jordan v. Wetmur, 202 N.C. 279, 162 S.E. 610 (1932); In re Wallace, 212 N.C. 490, 193 S.E. 819 (1937); Freeman v. Morrison, 214 N.C. 240, 199 S.E. 12 (1938); Massachusetts Bonding & Ins. Co. v. Knox, 220 N.C. 725, 18 S.E.2d 436 (1942); Universal Fin. Co. v. Clary, 227 N.C. 247, 41 S.E.2d 760 (1947); General Fin. & Thrift Corp. v. Guthrie, 227 N.C. 431, 42 S.E.2d 601 (1947); Home Fin. Co. v. O'Daniel, 237 N.C. 286, 74 S.E.2d 717 (1953); Handley Motor Co. v. Wood, 237 N.C. 318, 75 S.E.2d 312 (1953); In re Steele, 122 F. Supp. 948 (E.D.N.C. 1954); Haworth v. GMAC, 238 F.2d 203 (4th Cir. 1956); Franklin Nat'l Bank v. Ramsey, 252 N.C. 339, 113 S.E.2d 723 (1960); In re Raleigh/Spring Forest Apts. Assocs., 118 Bankr. 42 (Bankr. E.D.N.C. 1990); Haw River Land & Timber v. Lawyers Title Ins., 152 F.3d 275 (4th Cir. 1998); Falk v. Mae, 225 N.C. App. 685, 738 S.E.2d 404 (2013), rev'd, 367 N.C. 594, 766 S.E.2d 271, 2014 N.C. LEXIS 948 (2014); Falk v. Fannie Mae, 367 N.C. 594, 766 S.E.2d 271 (2014).

II. REGISTRATION AS BETWEEN PARTIES.

Validity Without Registration. - As between the parties, a mortgage is valid without registration. Leggett v. Bullock, 44 N.C. 283 (1853); Ellington v. Raleigh Bldg. Supply Co., 196 N.C. 784, 147 S.E. 307 (1929); In re Finley, 6 F. Supp. 105 (M.D.N.C. 1933).

The decisions of the Supreme Court of North Carolina interpreting this statute, which are binding upon federal courts in this respect, clearly hold that an unrecorded mortgage or deed of trust is valid under this section as between the parties and as against general creditors, unless the claims of the general creditors have become fastened upon the property, as by insolvency or bankruptcy proceedings, before the recording takes place. In re Cunningham, 64 F.2d 296 (4th Cir. 1933), citing National Bank v. Hill, 226 F. 102 (E.D.N.C. 1915); Hinton v. Williams, 170 N.C. 115, 86 S.E. 994 (1915); Observer Co. v. Little, 175 N.C. 42, 94 S.E. 526 (1917).

An unregistered instrument is valid as between the parties. Coastal Sales Co. v. Weston, 245 N.C. 621, 97 S.E.2d 267 (1957).

Personal Representative Occupies Intestate's Position. - As between the original parties, the lien of an unregistered mortgage holds priority. Leggett v. Bullock, 44 N.C. 283 (1853); Deal v. Palmer, 72 N.C. 582 (1875); Wallace v. Cohen, 111 N.C. 103, 15 S.E. 892 (1892).

The personal representative of a deceased mortgagor stands in the shoes of the latter. Hence plaintiff, holding an unregistered second mortgage on the lands of the defendant's intestate, was entitled to his lien upon the funds derived from the sale in excess of the first mortgage, in preference to other creditors of the deceased. McBrayer v. Harrill, 152 N.C. 712, 68 S.E. 204 (1910).

The personal representative takes only that title which the deceased had in the property at the time of his death, and an unrecorded mortgage lien has the same status as against the personal representative that it had against the deceased, regardless of whether the estate is solvent or insolvent. Coastal Sales Co. v. Weston, 245 N.C. 621, 97 S.E.2d 267 (1957).

Defendant was not a "party" to deed of trust for purposes of the rule that as between parties the instrument first executed, rather than the one first registered, has lien priority, where she signed the instrument merely to release her marital interest and did not incur any liability thereon as a grantor to plaintiff as a grantee. Schiller v. Scott, 82 N.C. App. 90, 345 S.E.2d 444 (1986).

Inapplicability of Registration Statutes to Parol and Constructive Trusts. - Parol trusts, and those created by operation of law, such as are recognized in this jurisdiction, do not come within the meaning and purview of the registration statutes. Arnette v. Morgan, 88 N.C. App. 458, 363 S.E.2d 678 (1988).

Where the parties intended deed to pass entire property, but through a mutual mistake of the parties, it failed to do so, defendant grantor held, as a constructive trustee for grantee, that portion of the land which the parties intended to be conveyed. Therefore, the case fell outside the registration act. Arnette v. Morgan, 88 N.C. App. 458, 363 S.E.2d 678 (1988).

Under G.S. 47-18 and G.S. 47-20 (Recording Acts), because condominium unit purchasers' and a creditor's alleged interests in a debtor's project arose, respectively, from purchase contracts and a deed of trust, the priority of those interests was determined under the Recording Acts based on the order in which those interests were recorded. Cooper v. BB Syndication Servs. (In re 222 S. Caldwell St., Ltd. P'ship), 409 B.R. 770 (Bankr. W.D.N.C. 2009).

Lien Waivers Not Effective as Against Another Creditor in Bankruptcy Proceeding. - Lien waivers executed by a general contractor, who made a prima facie showing that his lien had priority under G.S. 44A-10, 44A-12(b), and 44A-13(a), did not give a bank priority because the general contractor expressly did not waive lien rights for work that had not been paid and for retainage, and the retainage for which the lien rights were not waived accrued before the bank began its lending relationship with the debtor. Thus, the general contractor's lien rights, which related back to the first furnishing of materials under G.S. 44A-10, had priority over the bank pursuant to G.S. 47-20. Lee F. Cowper, Inc. v. Watermark Marina of Wilmington, LLC (In re Watermark Marina of Wilmington, LLC), - Bankr. - (Bankr. E.D.N.C. Nov. 24, 2009).

III. PERSONS PROTECTED.

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The common-law rule that the title of the mortgagee is good as against any person in possession has been altered by this section only to the extent of protecting as against an unregistered lien, creditors and those purchasers who deraign title from the mortgagor. Friendly Fin. Corp. v. Quinn, 232 N.C. 407, 61 S.E.2d 192 (1950).

Purchaser's Burden of Proof. - Where a purchaser claims protection under the registration laws, he has the burden of proving by a preponderance of the evidence that he is an innocent purchaser for value, i.e., that he paid valuable consideration and that he had no actual notice, or constructive notice by reason of lis pendens, of pending litigation affecting title to the property. Stephenson v. Jones, 69 N.C. App. 116, 316 S.E.2d 626 (1984).

The word "creditors," as used in this section, means those who have acquired a lien by judicial process or other means. Community Credit Co. v. Norwood, 257 N.C. 87, 125 S.E.2d 369 (1962).

The word "creditor," as used in this section, does not mean a general creditor; it means a lien creditor, i.e., one who has a recorded mortgage. Wachovia Bank & Trust Co. v. Wayne Fin. Co., 262 N.C. 711, 138 S.E.2d 481 (1964).

Unregistered mortgages are of no validity whatsoever as against creditors and purchasers for value. And they take effect as against such interested third parties from and after registration just as if they had been executed then and there. M. & J. Fin. Corp. v. Hodges, 230 N.C. 580, 55 S.E.2d 201 (1949).

Section does not protect every creditor against unrecorded mortgages. It protects only purchasers for a valuable consideration from the mortgagor, and creditors who have first fastened a lien upon the property in some manner sanctioned by law. Coastal Sales Co. v. Weston, 245 N.C. 621, 97 S.E.2d 267 (1957).

General Creditors Are Not Protected. - It is well settled by the decisions in this State that unless a general creditor has secured a specific lien on the property of the mortgagor or grantor before the registration of the deed or mortgage, the deed or mortgage is valid as against general creditors from its registration. National Bank v. Hill, 226 F. 102 (E.D.N.C. 1915). See also, In re Cunningham, 64 F.2d 296 (4th Cir. 1933); In re Finley, 6 F. Supp. 105 (M.D.N.C. 1933).

A general creditor must yield to the lien of a chattel mortgage from the moment of its registration, unless the lien can be successfully assailed as a fraudulent conveyance. Coggin v. Hartford Accident & Indem. Co., 9 F. Supp. 785 (M.D.N.C.), rev'd on other grounds, 78 F.2d 471 (4th Cir.), cert. denied, 296 U.S. 620, 56 S. Ct. 141, 80 L. Ed. 440, rehearing denied, 296 U.S. 663, 56 S. Ct. 169, 80 L. Ed. 472 (1935).

Creditor Must Acquire Lien. - In order for a creditor to avail himself of this section, it is very generally understood that he must by some judicial process or method take steps to fasten his claim upon the property. In one or more of the decisions on the subject, it is said that he should be "armed with legal process" for the purpose. Observer Co. v. Little, 175 N.C. 42, 94 S.E. 526 (1917).

Before a creditor can defeat the lien of a mortgage that is properly registered, he must acquire a prior lien by way of judgment, as against land, and by levying an execution against personal property. Coggin v. Hartford Accident & Indem. Co., 9 F. Supp. 785 (M.D.N.C.), rev'd on other grounds, 78 F.2d 471 (4th Cir.), cert. denied, 296 U.S. 620, 56 S. Ct. 441, 80 L. Ed. 440, rehearing denied, 296 U.S. 663, 56 S. Ct. 169, 80 L. Ed. 472 (1935).

Trustee in Bankruptcy. - A trustee in bankruptcy stands in the shoes of a "purchaser for a valuable consideration" from the period of 4 months prior to the time of the filing of the petition in bankruptcy. In re Dail, 257 F. Supp. 326 (E.D.N.C. 1966). See also, Holt v. Crucible Steel Co., 224 U.S. 262, 32 S. Ct. 414, 56 L. Ed. 756 (1912); National Bank v. Hill, 226 F. 102 (E.D.N.C. 1915).

A mortgagee who failed to register his mortgage has no rights to the property mortgaged as against the trustee in bankruptcy of a corporation to which the mortgagor subsequently conveyed the property in consideration of stock in such corporation. Holt v. Albert Pick & Co., 25 F.2d 378 (4th Cir. 1928), cert. denied, 278 U.S. 602, 49 S. Ct. 9, 73 L. Ed. 530 (1928).

Bankruptcy trustee properly and rightfully asserted his claim for equitable subrogation such that he obtained a first priority deed of trust on debtors' real property where creditor was not a bona fide purchaser when it made its loan to the debtors in exchange for a second mortgage and did not change its position in reliance on the fact that another creditor, successor to a priority deed, filed its deed of trust in the wrong county; if the debtors had not filed bankruptcy, as between the two creditors, the latter still could have filed its deed of trust in the proper county and sought equitable subrogation to the first priority deed of trust. In re Kline, 242 Bankr. 306 (W.D.N.C. 1999).

Before a creditor can claim a lien given by a state statute on property of a bankrupt, he must perfect same, as required by such statute. In re Franklin, 151 F. 642 (E.D.N.C. 1907), aff'd sub nom. Mills v. Virginia-Carolina Lumber Co., 164 F. 168 (4th Cir. 1908).

For cases construing this section in connection with the provisions of the former Bankruptcy Act relating to preferences, see Brigman v. Covington, 219 F. 500 (4th Cir. 1915); Commercial Cas. Ins. Co. v. Williams, 37 F.2d 326 (4th Cir.), cert. denied, 281 U.S. 757, 50 S. Ct. 409, 74 L. Ed. 1167 (1930); In re Cunningham, 64 F.2d 296 (4th Cir. 1933); In re Finley, 6 F. Supp. 105 (M.D.N.C. 1933); Hartford Accident & Indem. Co. v. Coggin, 78 F.2d 471 (4th Cir.), cert. denied, 296 U.S. 620, 56 L. Ed. 441, 80 L. Ed. 440, rehearing denied, 296 U.S. 663, 56 S. Ct. 169, 80 L. Ed. 472 (1935).

Trustee Under Deed of Assignment for Benefit of Creditors. - The trustee under a deed of assignment for the benefit of creditors is a purchaser for a valuable consideration within the meaning of this section, and upon adjudication of insolvency and the appointment of a receiver, the unsecured creditors, then represented by the receiver, are deemed to have fastened a lien on the insolvent's property. Coastal Sales Co. v. Weston, 245 N.C. 621, 97 S.E.2d 267 (1957), citing M. & J. Fin. Corp. v. Hodges, 230 N.C. 580, 55 S.E.2d 201 (1949), and Eno Inv. Co. v. Protective Chems. Laboratory, Inc., 233 N.C. 294, 63 S.E.2d 637 (1951).

Judgment Creditor. - Under this section, a deed of trust is of no validity whatever as against a judgment creditor unless it is registered. Bostic v. Young, 116 N.C. 766, 21 S.E. 552 (1895).

Attachment Creditor. - The registration of a mortgage prior to attachments issued by a creditor makes it superior to the creditor's lien, but only on property situated in the county where the mortgage was registered. Williamson v. Bitting, 159 N.C. 321, 74 S.E. 808 (1912).

Section Protects Creditors of Mortgagor, Not Those of Mortgagee. - An unregistered mortgage or deed of trust is void as against creditors of the mortgagor, and not of the mortgagee. Chemical Co. v. Johnson, 98 N.C. 123, 3 S.E. 723 (1887).

Creditors of Mortgagor's Estate. - The rights of secured and unsecured creditors alike are fixed at the instant of the debtor's death, and the circumstance of death cannot have the effect of fastening a lien upon property of the estate in favor of unsecured creditors. Thus, the mortgagee under an unrecorded mortgage has a lien on the property as against the administratrix of the mortgagor's estate superior to the claim of general creditors of the estate who had not fastened a lien upon the property at the time of intestate's death. Coastal Sales Co. v. Weston, 245 N.C. 621, 97 S.E.2d 267 (1957).

Preexisting Debt as Valuable Consideration to Creditor. - As to liens coming within the purview of this section, a preexisting debt is a valuable consideration and is sufficient to support the claim of a creditor who has fastened his lien upon the property of his debtor. M. & J. Fin. Corp. v. Hodges, 230 N.C. 580, 55 S.E.2d 201 (1949).

Intervening Deed of Trust. - The junior lienholder's intervening deed of trust gained priority over all subsequently recorded deeds of trust, including the deed of trust given by transferees when the bank marked the senior deed of trust satisfied as the result of the transfer of the property. First Union Nat'l Bank v. Lindley Labs., Inc., 132 N.C. App. 129, 510 S.E.2d 187 (1999).

Collateral Attack by Creditors. - The want of registration does not invalidate an instrument so that creditors, merely as such, may treat it as a nullity in a collateral proceeding; but it is void against proceedings instituted by them and prosecuted to a sale of the property or acquirement of a lien, as against all who derive title thereunder. Brem v. Lockhart, 93 N.C. 191 (1885); Boyd v. Turpin, 94 N.C. 137 (1886); Francis v. Herren, 101 N.C. 497, 8 S.E. 353 (1888).

Trustee or Mortgagee as Purchaser for Value. - A trustee or mortgagee, whether for old or new debts, is a purchaser for a valuable consideration. Brem v. Lockhart, 93 N.C. 191 (1885).

Mortgagee for Future and Contingent Debts. - A debtor may lawfully mortgage his property to secure future and contingent debts, and that he does so is not of itself proof of a fraudulent intent. The mortgagee in such case is deemed a purchaser for value, and his rights are not affected by a prior unregistered mortgage. Moore v. Ragland, 74 N.C. 343 (1876).

Subsequent Purchasers Whose Deeds Are Registered. - A mortgage not registered in time is ineffectual against purchasers subsequent to the mortgage whose conveyances are registered before the mortgage. Cowan v. Green, 9 N.C. 384 (1823).

Priority Between Mortgage Filed and Judgment Rendered at Same Term. - Where an individual executed a mortgage upon his land, and the mortgage was filed for registration during a term of the superior court, at a subsequent day of which a judgement was rendered against him and duly docketed, it was held that the lien of the judgment was prior to that of the mortgage. Fleming v. Graham, 110 N.C. 374, 14 S.E. 922 (1892).

Mortgagee for Purchase Price. - A mortgage executed and registered contemporaneously with a deed by the same parties to the same land, to secure the balance of the purchase price, is one act, giving the mortgagee a lien on the land described superior to that of a later executed and registered mortgage thereon. Allen v. Stainback, 186 N.C. 75, 118 S.E. 903 (1923).

Where mortgagee of automobile permits mortgagor to keep it on display for sale with others, and the mortgage sufficiently describes the property, giving the serial and motor numbers, and is duly registered under this section, the mortgagee does not lose his right of lien as against a subsequent purchaser from the mortgagor. Whitehurst v. Garrett, 196 N.C. 154, 144 S.E. 835 (1928).

As to tort-feasor as a purchaser or creditor, see Harris v. Seaboard Air Line Ry., 190 N.C. 480, 130 S.E. 319 (1925).

Mechanic's Lien for Work Done to Bring Property into Compliance with Restrictive Covenants. - Where it was undisputed that plaintiff first furnished labor or materials at lot for the purpose of bringing the property into compliance with the terms of applicable protective covenants on June 8, 1987, over a year after defendant's deed of trust on the property was recorded, plaintiff did not have priority over defendant and defendant was entitled to judgment as a matter of law. K & K Dev. Corp. v. Columbia Banking Fed. Sav. & Loan Ass'n, 96 N.C. App. 474, 386 S.E.2d 226 (1989).

Rents Were Property of Debtors' Estate. - Chapter 11 debtors were allowed to use cash collateral pursuant to 11 U.S.C.S. § 363 because an assignment of rents executed in connection with deeds of trust and security agreements did not constitute an absolute assignment under state law such that the rents were the property of a creditor before the debtors' petition was filed; rather, the assignment was additional security for the payment of a debt. The assignment was a collateral assignment within the meaning of G.S. 47-20(b)(3), and the rents, being property of the estate and also subject to the creditor's security interest, constituted cash collateral of the estate. In re Murray, - Bankr. - (Bankr. E.D.N.C. May 24, 2011).

Assignment of rents from a bankruptcy debtor's real properties to creditors did not extend to all profits of the debtor's corporation which operated gas stations on the properties since the profits were too attenuated to amount to rents, and only rents constituted the creditors' cash collateral. In re Eng, - Bankr. - (Bankr. E.D.N.C. Oct. 29, 2013).

IV. NOTICE.

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Constructive Notice to All the World. - Under this section, deeds of trust and mortgages, when properly probated and registered, are constructive notice to all the world. Whitehurst v. Garrett, 196 N.C. 154, 144 S.E. 835 (1928).

Sections Not Mere Notice Statutes for Protection of Third Parties. - G.S. 47-18 and this section are not mere notice statutes for the protection of third parties. To the contrary, recordation is vital to the acquisition of ownership. Westchase I Assocs. v. Lincoln Nat'l Life Ins. Co., 126 Bankr. 692 (W.D.N.C. 1991).

Putting Third Persons upon Inquiry. - Record of an unsatisfied mortgage is sufficient notice to put a third person upon inquiry, and whatever puts a person upon inquiry is in equity notice to him of all the facts which such inquiry would have disclosed. Collins v. Davis, 132 N.C. 106, 43 S.E. 579 (1903).

Registration upon a defective probate does not effect actual or constructive notice of the existence of a mortgage deed, so as to affect a subsequent purchaser for value. Todd, Schenck & Co. v. Outlaw, 79 N.C. 235 (1878).

Where the execution of a corporate deed of trust was not proved as the statute required, its registration was without warrant or authority of law, and as against creditors and purchasers for value it was not registered until subsequently probated in proper form and again registered. National Bank v. Hill, 226 F. 102 (E.D.N.C. 1915).

No Mere Notice Will Supply Registration. - No notice, however full and formal, will supply the place of registration required by this section. Robinson v. Willoughby, 70 N.C. 358 (1874); Hooker v. Nichols, 116 N.C. 157, 21 S.E. 207 (1895); Blacknall v. Hancock, 182 N.C. 369, 109 S.E. 72 (1921); Avery County Bank v. Smith, 186 N.C. 635, 120 S.E. 215 (1923); Whitehurst v. Garrett, 196 N.C. 154, 144 S.E. 835 (1928); Mills v. Kemp, 196 N.C. 309, 145 S.E. 557 (1928); Salassa v. Western Carolina Title & Mtg. Co., 196 N.C. 501, 146 S.E. 83 (1929); Weeks v. Adams, 196 N.C. 512, 146 S.E. 130 (1929); Ellington v. Raleigh Bldg. Supply Co., 196 N.C. 784, 147 S.E. 307 (1929); Duncan v. Gulley, 199 N.C. 552, 155 S.E. 244 (1930); Lawson v. Key, 199 N.C. 664, 155 S.E. 570 (1930); New Home Bldg. Supply Co. v. Nations, 259 N.C. 681, 131 S.E.2d 425 (1963); Schuman v. Roger Baker & Assocs., 70 N.C. App. 313, 319 S.E.2d 308 (1984).

The "witness" exception to the recordation requirement is not applicable in this jurisdiction. Schiller v. Scott, 82 N.C. App. 90, 345 S.E.2d 444 (1986).

Instrument First Registered Prevails. - A mortgage given for the purchase money of land is not entitled to priority over a second mortgage which is filed first, though the second mortgagee has notice thereof. Quinnerly v. Quinnerly, 114 N.C. 145, 19 S.E. 99 (1894).

Where a mortgage on lands is executed and delivered, but is not registered until after the registration of a later executed mortgage, the prior registered mortgage is a first lien on the land, and it is not sufficient to change this result that the prior registered mortgage was marked upon its face "second mortgage." Nor can notice aliunde advantage the holder of the mortgage first executed. Story v. Slade, 199 N.C. 596, 155 S.E. 256 (1930), distinguishing Williams v. Lewis, 158 N.C. 571, 74 S.E. 17 (1912).

A registered mortgage on lands constitutes a first lien on the mortgaged lands as against prior mortgages or equities which the registration books in the county in which the land lies does not disclose. Duncan v. Gulley, 199 N.C. 552, 155 S.E. 244 (1930).

Where Fraud Is Used. - Where one who knows of a prior unregistered deed of trust or mortgage procures a mortgage for his own benefit on the same property, which is registered first, he gets the first lien on the property, unless he used fraud to prevent the registration of the mortgage which is first in date. Traders Nat'l Bank v. Lawrence Mfg. Co., 96 N.C. 298, 3 S.E. 363 (1887).

When Subsequent Mortgage Recites Prior Encumbrance. - Where a trust deed is given to secure purchase money for land, and later a mortgage is given on the same land, which refers to the trust deed as a prior lien for purchase money, and the mortgage is registered before the trust deed, the debt secured by the trust deed must be paid by the mortgagee from the proceeds of the sale of the land, but the mortgagee is entitled to the possession of the land. Bank v. Vass, 130 N.C. 590, 41 S.E. 791 (1902).

Where the subsequent mortgage of the same property recites that it is made subject to a prior mortgage, such recitation is more than a mere notice of the prior encumbrance; it establishes a trust in equity in favor of the prior encumbrancer, even though the prior mortgage is not registered. Avery County Bank v. Smith, 186 N.C. 635, 120 S.E. 215 (1923), citing Blacknall v. Hancock, 182 N.C. 369, 109 S.E. 72 (1921), and distinguishing North State Piano Co. v. Spruill & Brother, 150 N.C. 168, 63 S.E. 723 (1909).

Where a second mortgage is executed and delivered, but is not registered until after the registration of a third mortgage, the mortgage third in execution is prior to the mortgage secondly executed and subsequently registered, and this result is not changed by the fact that the mortgage third in execution contained a reference to a first and second deed of trust, and contained a warranty against encumbrances "except as above stated," the references being insufficient to show that the parties intended to recognize the prior instruments as superior liens. Lawson v. Key, 199 N.C. 664, 155 S.E. 570 (1930).

Recording and indexing a mortgage executed by one not the owner of the property mentioned therein will not give constructive notice binding upon third parties dealing with the true owner. It is, at least as to third parties, as though no mortgage had been made. McKnight v. M. & J. Fin. Corp., 247 F.2d 112 (4th Cir. 1957).

Failure to Adequately Describe or Identify Promissory Note. - Deed of trust was invalid under North Carolina law because it failed to sufficiently describe or identify promissory note, which was obligation secured. Warren v. Abreu (In re Skumpija), 494 B.R. 822 (Bankr. E.D.N.C. 2013).

Although bank which held a deed of trust had actual notice of a prior deed of trust, the doctrine of estoppel by deed did not operate to estop the bank from denying the earlier deed, where the earlier deed of trust lay outside of the chain of title of the grantor of the deed of trust. Schuman v. Roger Baker & Assocs., 70 N.C. App. 313, 319 S.E.2d 308 (1984).

Deed of Trust Avoidable Where Not Properly Indexed. - Where the erstwhile holder of a first deed of trust failed to have its recording properly indexed in the official real property PIN index, the recorded deed of trust was not compliant with former G.S. 161-22, and was avoidable under G.S. 47-20 and 11 U.S.C.S. § 544(a). Northern v. SunTrust Bank, N.A. (In re McCormick), 417 B.R. 362 (Bankr. M.D.N.C. 2009).

Where the Chapter 7 debtors owned adjoining tracts of land then conveyed both tracts to themselves in order to merge the separate properties, in an action to determine what portion of debtors' real property was encumbered by a bank's deed of trust, the outcome was dictated by G.S. 47-20(a), not whether or not there was any ambiguity in the deed of trust; at the time of the execution of the deed of trust to the bank, a title search would have shown nothing beyond the debtors' acquisition and ownership of a deed for tract one, and therefore the conveyance of the deed of trust to the bank did not operate as a lien on the adjoining tract, which was conveyed to the debtors at a later date. Angell v. First South Bank (In re Despaigne), - Bankr. - (Bankr. E.D.N.C. Mar. 25, 2011).

Deed of Trust Was Defective and Invalid. - Although debtor signed the documents on behalf of a corporation, as president of the corporation and as guarantor of the note, he did not execute the deed of trust as "grantor" in his individual capacity as the record owner of the property; thus, the deed of trust conveying a security interest in the property to the bank was defective and invalid, as it was not in the property's record chain of title and did not import constructive notice of the encumbrance. As a hypothetical lien creditor under 11 U.S.C.S. § 544(a)(1), the debtor-in-possession was entitled to invalidate the bank's defective deed of trust; reformation of the deed was not appropriate. Mercer v. Bank of Currituck (In re Mercer), - Bankr. - (Bankr. E.D.N.C. July 23, 2010).

§ 47-20.1. Place of registration; real property.

To be validly registered pursuant to G.S. 47-20, a deed of trust or mortgage of real property must be registered in the county where the land lies, or if the land is located in more than one county, then the deed of trust or mortgage must be registered in each county where any portion of the land lies in order to be effective as to the land in that county.

History

(1953, c. 1190, s. 2.)

Editor's Note. - Session Laws 2018-61, s. 2, provides: "On and after July 1, 2018, all papers, documents, and instruments required or permitted to be filed or registered involving residents and property in areas affected by the 2008 survey that previously may have been recorded in the adjoining counties shall be recorded in the county in which the property is situated as shown by the 2008 survey."

CASE NOTES

A mortgage must be registered in the county where the land lies. King v. Portis, 77 N.C. 25 (1877).

Land Lying in Two or More Counties. - A mortgage of a tract of land described by metes and bounds and registered in one county only, both mortgagor and mortgagee believing the whole tract to be situated in such county, when in fact a part of said tract is situated in an adjoining county, is inoperative as against creditors and purchasers for value beyond the limits of the county in which it was registered. King v. Portis, 77 N.C. 25 (1877).

Applied in In re Kline, 242 Bankr. 306 (W.D.N.C. 1999).

Cited in Schuman v. Roger Baker & Assocs., 70 N.C. App. 313, 319 S.E.2d 308 (1984).


§ 47-20.2. Place of registration; personal property.

  1. As used in this section:
    1. "Mortgage" includes a deed of trust and a conditional sales contract; unless subject to the filing requirements of Article 9 of the Uniform Commercial Code (Chapter 25) and duly filed pursuant thereto;
    2. "Mortgagor" includes a grantor in a deed of trust and a conditional sales vendee.
  2. To be validly registered pursuant to G.S. 47-20, a mortgage of personal property must be registered as follows:
    1. If the mortgagor is an individual:
      1. Who resides in this State, the mortgage must be registered in the county where the mortgagor resides when the mortgage is executed.
      2. Who resides outside this State, the mortgage must be registered in each county in this State where any of the tangible mortgaged property is located at the time the mortgage is executed, in order to be effective as to such property; and if any of the mortgaged property consists of a chose in action which arises out of the business transacted at a place of business operated by the mortgagor in this State, then the mortgage must be registered in the county where such place of business is located.
    2. If the mortgagor is a partnership, either limited or unlimited:
      1. Which has a principal place of business in this State, the mortgage must be registered in the county where such place of business is located at the time the mortgage is executed.
      2. Which does not have a principal place of business in this State but has any place of business in this State, the mortgage must be registered in every county in this State where any such place of business is located at the time the mortgage is executed. Where such mortgage is registered in one or more of such counties but is not registered in every county required under this subsection, it shall, nevertheless, be effective as to the property in every county in which it is registered.
      3. Which has no place of business in the State, the mortgage must be registered in every county in this State where a partner resides at the time the mortgage is executed. Where such mortgage is registered in one or more of such counties but is not registered in every county required under this subsection, it shall, nevertheless, be effective as to the property in every county in which it is registered.
      4. Which has no place of business in this State, and no partner residing in this State, the mortgage must be registered in each county in this State where any of the mortgaged property is located when the mortgage is executed, in order to be effective as to the property in such county.
    3. If the mortgagor is a domestic corporation:
      1. Which has a registered office in this State, the mortgage must be registered in the county where such registered office is located when the mortgage is executed.
      2. Which having been formed prior to July 1, 1957, has no such registered office but does have a principal office in this State as shown by its certificate of incorporation, or amendment thereto, or legislative charter, the mortgage must be registered in the county where the principal office is said to be located by such certificate of incorporation, or amendment thereto, or legislative charter when the mortgage is executed.
    4. If the mortgagor is a foreign corporation:
      1. Which has a registered office in this State, the mortgage must be registered in the county where such registered office is located when the mortgage is executed.
      2. Which, having been domesticated prior to July 1, 1957, has no such registered office in this State, but does have a principal office in this State, the mortgage must be registered in the county where the principal office is said to be located by the statement filed with the Secretary of State in its application for permission to do business in this State or other document filed with the Secretary of State showing the location of such principal office in this State when the mortgage is executed.
      3. Which has not been domesticated in this State, the mortgage must be registered in the same county or counties as a mortgage executed by a nonresident individual.
    5. If the personal property concerned is a vehicle required to be registered under the motor vehicle laws of the State of North Carolina, then the provisions of this section shall not apply but the security interest arising from the deed of trust, mortgage, conditional sales contract, or lease intended as security of such vehicle may be perfected by recordation in accordance with the provisions of G.S. 20-58 through 20-58.10.

History

(1953, c. 1190, s. 2; 1957, c. 979, ss. 1, 2; 1961, c. 835, s. 12; 1965, c. 700, s. 8.)

Cross References. - As to perfection of security interests in vehicles requiring certificates of title, see G.S. 20-58 et seq.

As to filing of security interests in personal property under the Uniform Commercial Code, see G.S. 25-9-401.

Legal Periodicals. - For comment on this section, see 31 N.C.L. Rev. 429 (1953).

For 1984 survey, "The Application of the North Carolina Motor Vehicle Act and the Uniform Commercial Code to the Sale of Motor Vehicles by Consignment," see 63 N.C.L. Rev. 1105 (1985).

CASE NOTES

Registration of Mortgage or Other Lien on Vehicles. - It is no longer necessary to record the mortgage or other lien on vehicles required to be registered under the State motor vehicle laws in the county where the debtor resides. Ferguson v. Morgan, 282 N.C. 83, 191 S.E.2d 817 (1972).

As to nonapplicability of U.C.C. provisions as to filing of financing statements to vehicles, see Ferguson v. Morgan, 282 N.C. 83, 191 S.E.2d 817 (1972).

Location of Principal Office of Corporation. - Under this section prior to the 1957 amendment, the actual location of the principal office of a corporation rather than the location set out in the certificate of incorporation was held to govern the place of registration. Haworth v. GMAC, 238 F.2d 203 (4th Cir. 1956).

Applied in National Bank v. Greensboro Motor Co., 264 N.C. 568, 142 S.E.2d 166 (1965); In re Dail, 257 F. Supp. 326 (E.D.N.C. 1966).


§ 47-20.3. Place of registration; instruments covering both personal property and real property.

To be validly registered pursuant to G.S. 47-20, a mortgage, deed of trust or conditional sales contract, or any combination of these, of both personal property and real property must be registered pursuant to the provisions of G.S. 47-20.1 for the real property covered by the instrument and pursuant to the provisions of G.S. 47-20.2 for the personal property covered by the instrument, and in each case the registration must be indexed in the records designated for the particular type of property involved.

History

(1953, c. 1190, s. 2.)

Cross References. - As to filing of security interests under the Uniform Commercial Code, see G.S. 25-9-401.

§ 47-20.4. Place of registration; chattel real.

To be validly registered pursuant to G.S. 47-20, a deed of trust or mortgage of a leasehold interest or other chattel real must be registered in the county where the land involved lies, or if the land involved is located in more than one county, then the deed of trust or mortgage must be registered in each county where any portion of the land involved lies in order to be effective as to the land in that county.

History

(1959, c. 1026, s. 1.)

§ 47-20.5. Real property; effectiveness of after-acquired property clause.

  1. As used in this section, "after-acquired property clause" means any provision or provisions in an instrument which create a security interest in real property acquired by the grantor of the instrument subsequent to its execution.
  2. As used in this section, "after-acquired property," and "property subsequently acquired" mean any real property which the grantor of a security instrument containing an after-acquired property clause acquires subsequent to the execution of such instrument, and in which the terms of the after-acquired property clause would create a security interest.
  3. An after-acquired property clause is effective to pass after-acquired property as between the parties to the instrument containing such clause, but shall not be effective to pass title to after-acquired property as against lien creditors or purchasers for a valuable consideration from the grantor of the instrument unless and until such instrument has been registered or reregistered at or subsequent to the time such after-acquired property is acquired by such grantor and the deed to the grantor of the after-acquired property is registered.
  4. In lieu of reregistering the instrument containing the after-acquired property clause as specified in subsection (c), such instrument may be made effective to pass title to after-acquired property as against lien creditors and purchasers for a valuable consideration from the grantor of the instrument by registering a notice of extension as specified in subsection (e) at or subsequent to the time of acquisition of the after-acquired property by the grantor.
  5. The notice of extension shall
    1. Show that effective registration of the after-acquired property clause is extended,
    2. Include the names of the parties to the instrument containing the after-acquired property clause,
    3. Refer to the book and page where the instrument containing the after-acquired property clause is registered, and
    4. Be signed by the grantee or the person secured by the instrument containing the after-acquired property clause or his successor in interest.
  6. The register of deeds shall index the notice of extension in the same manner as the instrument containing the after-acquired property clause.
  7. Except as provided in subsection (h) of this section, no instrument which has been heretofore executed or registered and which contains an after-acquired property clause shall be effective to pass title to after-acquired property as against lien creditors or purchasers for a valuable consideration from the grantor of such instrument unless and until such instrument or a notice of extension thereof has been registered or reregistered as herein provided.
  8. Notwithstanding the provisions of this section with respect to registration, reregistration and registration of notice of extension, an after-acquired property clause in an instrument which creates a security interest made by a public utility as defined in G.S. 62-3(23) or a natural gas company as defined in section 2(6) of the Natural Gas Act, 15 U.S.C.A. 717a(6), or by an electric or telephone membership corporation incorporated or domesticated in North Carolina shall be effective to pass after-acquired property as against lien creditors or purchasers for a valuable consideration from the grantor of the instrument from the time of original registration of such instrument.

History

(1967, c. 861, s. 1; 1969, c. 813, ss. 1-3; 1997-386, s. 1.)

Legal Periodicals. - For note on the effectiveness of after-acquired property clauses in this State, see 6 Wake Forest Intra. L. Rev. 378 (1970).

CASE NOTES

Legislative Intent. - The adoption of this section, which requires that after-acquired property clauses in security agreements be extended or re-recorded after each subsequent purchase of real property, indicates a legislative insistence that due recordation in the chain of title must remain the only effective means of protecting title. Schuman v. Roger Baker & Assocs., 70 N.C. App. 313, 319 S.E.2d 308 (1984).


§ 47-20.6. Affidavit for permanent attachment of titled manufactured home to real property.

  1. If the owner of real property or the owner of the manufactured home who has entered into a lease with a primary term of at least 20 years for the real property on which the manufactured home is affixed has surrendered the title to a manufactured home that is placed on the real property and the title has been cancelled by the Division of Motor Vehicles under G.S. 20-109.2, the owner, or the secured party having the first security interest in the manufactured home at time of surrender, shall record the affidavit described in G.S. 20-109.2 with the office of the register of deeds of the county where the real property is located. Upon recordation, the affidavit shall be indexed on the grantor index in the name of the owner of the manufactured home and on the grantee index in the name of the secured party or lienholder, if any.
  2. After the affidavit is recorded, the manufactured home becomes an improvement to real property. Any lien on the manufactured home shall be perfected and given priority in the manner provided for a lien on real property.
  3. Following recordation of the affidavit, all existing liens on the real property are considered to include the manufactured home. Thereafter, no conveyance of any interest, lien, or encumbrance shall attach to the manufactured home, unless the interest, lien, or encumbrance is applicable to the real property on which the home is located and is recorded in the office of the register of deeds of the county where the real property is located in accordance with the applicable sections of this Chapter.
  4. The provisions of this section control over the provisions of G.S. 25-9-334 relating to the priority of a security interest in fixtures, as applied to manufactured homes.

History

(2001-506, s. 3; 2003-400, s. 2.)

§ 47-20.7. Declaration of intent to affix manufactured home; transfer of real property with manufactured home attached.

  1. A person who owns real property on which a manufactured home has been or will be placed or the owner of a manufactured home who has entered into a lease with a primary term of at least 20 years for the real property on which the manufactured home has been or will be placed, as defined in G.S. 105-273(13), and either where the manufactured home has never been titled by the Division of Motor Vehicles or where the title to the manufactured home has been surrendered and cancelled by the Division prior to January 1, 2002, may record in the office of the register of deeds of the county where the real property is located a declaration of intent to affix the manufactured home to the property and may convey or encumber the real property, including the manufactured home, by a deed, deed of trust, or other instrument recorded in the office of the register of deeds.
  2. The declaration of intent, deed, deed of trust, or other instrument shall contain a description of the manufactured home, including the name of the manufacturer, the model name, if applicable, the serial number, and a statement of the owner's intention that the manufactured home be treated as property.
  3. On or after the filing of the instrument with the office of the register of deeds pursuant to subsection (a) of this section, the manufactured home placed, or to be placed, on the property becomes an improvement to real property. Any lien on the manufactured home shall be perfected and have priority in the manner provided for a lien on real property.
  4. The provisions of this section control over the provisions of G.S. 25-9-334 relating to the priority of a security interest in fixtures, as applied to manufactured homes.

History

(2001-506, s. 3; 2003-400, s. 3.)

§ 47-21. Blank or master forms of mortgages, etc.; embodiment by reference in instruments later filed.

It shall be lawful for any person, firm or corporation to have a blank or master form of mortgage, deed of trust, or other instrument conveying an interest in, or creating a lien on, real and/or personal property, filed, indexed and recorded in the office of the register of deeds. When any such blank or master form is filed, the register of deeds shall record it and shall index it in the manner now provided by law for the indexing of instruments recorded in the office of the register of deeds, except that the name of the person, firm or corporation whose name appears on such blank or master form shall be inserted in the indices as grantor and also as grantee. The fee for filing, recording and indexing such blank or master form shall be that for recording instruments in general, as provided in G.S. 161-10(a)(1).

When any deed, mortgage, deed of trust, or other instrument conveying an interest in, or creating a lien on, real and/or personal property, refers to the provisions, terms, covenants, conditions, obligations, or powers set forth in any such blank or master form recorded as herein authorized, and states the office of recordation of such blank or master form, book and page where same is recorded such reference shall be equivalent to setting forth in extenso in such deed, mortgage, deed of trust, or other instrument conveying an interest in, or creating a lien on, real and/or personal property, the provisions, terms, covenants, conditions, obligations and powers set forth in such blank or master form. Provided this section shall not apply to Alleghany, Ashe, Avery, Beaufort, Bladen, Camden, Carteret, Chowan, Cleveland, Columbus, Dare, Gates, Granville, Guilford, Halifax, Iredell, Jackson, Martin, Moore, Perquimans, Sampson, Stanly, Swain, Transylvania, Vance, Washington and Watauga Counties.

History

(1935, c. 153; 1971, c. 156; 2001-390, s. 4.)

Legal Periodicals. - For a discussion of this section, see 13 N.C.L. Rev. 395 (1935).

For an article on rules, ethics and reform in connection with transferring North Carolina real estate, see 49 N.C.L. Rev. 593 (1971).

§ 47-22. Counties may provide for photographic or photostatic registration.

The board of county commissioners of any county is hereby authorized and empowered to provide for photographic or photostatic recording of all instruments filed in the office of the register of deeds and in other offices of such county where said board may deem such recording feasible. The board of county commissioners may also provide for filing such copies of said instruments in loose-leaf binders.

History

(1941, c. 286; 1971, c. 1185, s. 12.)

§ 47-23: Repealed by Session Laws 1953, c. 1190, s. 3.

§ 47-24. Conditional sales or leases of railroad property.

When any railroad equipment and rolling stock is sold, leased or loaned on the condition that the title to the same, notwithstanding the possession and use of the same by the vendee, lessee, or bailee, shall remain in the vendor, lessor or bailor until the terms of the contract, as to the payment of the installments, amounts or rentals payable, or the performance of other obligations thereunder, shall have been fully complied with, such contract shall be invalid as to any subsequent judgment creditor, or any subsequent purchaser for a valuable consideration without notice, unless -

  1. The same is evidenced by writing duly acknowledged before some person authorized to take acknowledgments of deeds.
  2. Such writing is registered as mortgages are registered, in the office of the register of deeds in at least one county in which such vendee, lessee or bailee does business.
  3. Each locomotive or car so sold, leased or loaned has the name of the vendor, lessor, or bailor, or the assignee of such vendor, lessor or bailor plainly marked upon both sides thereof, followed by the word owner, lessor, bailor or assignee as the case may be.

This section shall not apply to or invalidate any contract made before the twelfth day of March, 1883.

History

(1883, c. 416; Code, s. 2006; Rev., s. 984; 1907, c. 150, s. 1; C.S., s. 3313.)

§ 47-25. Marriage settlements.

All marriage settlements and other marriage contracts, whereby any money or other estate is secured to the wife or husband, shall be proved or acknowledged and registered in the same manner as deeds for lands, and shall be valid against creditors and purchasers for value only from registration.

History

(1785, c. 238; R.C., c. 37, ss. 24, 25; 1871-2, c. 193, s. 12; Code, ss. 1269, 1270, 1281; 1885, c. 147; Rev., s. 985; C.S., s. 3314.)

CASE NOTES

Registration in Another State. - An antenuptial contract entered into between a husband whose domicile was in North Carolina and a wife whose domicile was in New York, which was duly registered in New York but not in North Carolina, was good against the creditors of the husband, even though the property was removed to North Carolina and changed from what it originally was when the contract was signed. Hicks v. Skinner, 71 N.C. 539 (1874), appeal dismissed, 72 N.C. 1 (1875).

Law at Time of Execution Governs. - Where a marriage took place and a deed was made between husband and wife prior to 1868, it was governed by the law as it then existed and was not affected by the changes in marital relations brought about by the Constitution of 1868 and the statutes passed in pursuance thereof, even though the deed was not registered until 1884. Walton v. Parish, 95 N.C. 259 (1886).

Deed of Dual Character. - A deed combining the two characters of a deed of trust to secure creditors and a deed of settlement in trust for a wife and children may operate and have effect in both characters, provided it has been duly proved and registered. Johnston v. Malcom, 59 N.C. 120 (1860).

A deed of settlement in trust for a wife and children, proved and registered three years after the date of its execution, was held to be valid as against creditors whose debts were contracted after such registration. Johnston v. Malcom, 59 N.C. 120 (1860).

Agreement Not a Marriage Settlement. - An agreement by which husband consented that wife could convert one tract of land, which was in no wise subject to the claims of his creditors, into another tract of land, and in which, in order to enable her to make the conversion, he stipulated to allow her to hold as her separate property the price of her land until it could be reinvested in another tract of land, was not a marriage settlement falling within this section. Teague v. Downs, 69 N.C. 280 (1873).


§ 47-26. Deeds of gift.

All deeds of gift of any estate of any nature shall within two years after the making thereof be proved in due form and registered, or otherwise shall be void, and shall be good against creditors and purchasers for value only from the time of registration.

History

(1789, c. 315, s. 2; R.C., c. 37, s. 18; Code, s. 1252; 1885, c. 147; Rev., s. 986; C.S., s. 3315.)

Legal Periodicals. - For article discussing the doctrine of color of title in North Carolina, see 13 N.C. Cent. L.J. 123 (1982).

CASE NOTES

"Making," as used in this section, means execution. The execution of a deed is not complete until the instrument is signed, sealed and delivered. Turlington v. Neighbors, 222 N.C. 694, 24 S.E.2d 648 (1943); Muse v. Muse, 236 N.C. 182, 72 S.E.2d 431 (1952).

A deed of gift is absolutely void when not registered within two years after its making. Booth v. Hairston, 195 N.C. 8, 141 S.E. 480 (1928); Ferguson v. Ferguson, 225 N.C. 375, 35 S.E.2d 231 (1945).

Where a deed appearing on its face to be a deed of gift is not registered in two years from its execution as required by this section, it is void, and may be set aside in an action by creditors of the grantor, regardless of whether it was executed in fraud of creditors. Reeves v. Miller, 209 N.C. 362, 183 S.E. 294 (1936).

A deed of gift is void if it is not recorded within two years of its execution. Chicago Title Ins. Co. v. Wetherington, 127 N.C. App. 457, 490 S.E.2d 593 (1997), cert. denied, 347 N.C. 574, 498 S.E.2d 380 (1998).

After two years the legislature is without power to bring a deed of gift to life again by the enactment of a statute lengthening the period in which it may be registered. Booth v. Hairston, 195 N.C. 8, 141 S.E. 480 (1928). See also, Cutts v. McGhee, 221 N.C. 465, 20 S.E.2d 376 (1942).

The time of the registration of deeds of gift under this section was not affected by G.S. 146-57, which extended the time in which certain instruments could be registered until September 1, 1926. Booth v. Hairston, 193 N.C. 278, 136 S.E. 879 (1927), petition for rehearing dismissed, 195 N.C. 8, 141 S.E. 480 (1928).

Revesting of Title in Grantor. - Between the parties thereto a deed of gift, not registered, is good during the two years after the making of it, but upon failure to register it within such time, it becomes void ab initio and title vests in the grantor. Winstead v. Woolard, 223 N.C. 814, 28 S.E.2d 507 (1944); Kirkpatrick v. Sanders, 261 F.2d 480 (4th Cir. 1958), cert. denied, 359 U.S. 1000, 79 S. Ct. 1138, 3 L. Ed. 2d 1029 (1959).

Acknowledgment after Lapse of Two Years Not Re-execution. - Where the owner of lands executed a deed of gift thereto and delivered same to the grantee, and some three and a half years thereafter he acknowledged the deed and filed same for registration, the acknowledgment was not a re-execution of the deed, and the deed of gift, not having been registered within two years of its execution, was void, and could not be revived by curative act of the legislature. Cutts v. McGhee, 221 N.C. 465, 20 S.E.2d 376 (1942).

A deed deposited in escrow with a third party, to be recorded after the death of the grantors, which was not recorded until over two years after its execution, was void. Harris v. Briley, 244 N.C. 526, 94 S.E.2d 476 (1956).

Deeds Back to Grantor Held Void. - Individual who conveyed 297 acres to her two sons some 18 years before her death did not own the land involved at the time of her death despite the execution of deeds back to her from her sons, as these deeds were void, because they were deeds of gift and were not recorded within two years after their execution, as this section requires; and the fact that the two deeds in question recited a consideration and were under seal did not preclude a finding that they were deeds of gift. Patterson v. Wachovia Bank & Trust Co., 68 N.C. App. 609, 315 S.E.2d 781 (1984).

Registration as Notice. - Registration of a prior voluntary deed is notice to a subsequent purchaser. Taylor v. Eatman, 92 N.C. 601 (1885).

Recorded Deed of Gift Is Valid Without Consideration. - A deed of gift, duly signed and delivered, is an executed contract. If recorded within the time prescribed by this section it is valid, as between the parties and their heirs, without good or valuable consideration. Edwards v. Batts, 245 N.C. 693, 97 S.E.2d 101 (1957).

A recital of consideration in deeds conveying land is presumed to be correct. Pelaez v. Pelaez, 16 N.C. App. 604, 192 S.E.2d 651 (1972), cert. denied, 282 N.C. 582, 193 S.E.2d 745 (1973).

Right-of-way deed which, besides reciting consideration as "One Dollar and other valuable consideration," contained a statement that the consideration for the conveyance was the obligation imposed upon grantees to maintain an all-weather driveway across the right-of-way, usable by all parties, was not without consideration, and the fact that the driveway was not maintained did not convert the deed, supported by consideration, into a deed of gift. Higdon v. Davis, 315 N.C. 208, 337 S.E.2d 543 (1985).

Evidence held to show instrument executed for valuable consideration and therefore not void under this section. Cannon v. Blair, 229 N.C. 606, 50 S.E.2d 732 (1948).

Consideration Held Insufficient to Remove Deed from Operation of Section. - The agreement by a wife to perform ordinary marital duties is not sufficient consideration to remove a deed made to her from the operation of this section. Sprinkle v. Ponder, 233 N.C. 312, 64 S.E.2d 171 (1951).

Applied in Allen v. Allen, 209 N.C. 744, 184 S.E. 485 (1936); Batchelor v. Mitchell, 238 N.C. 351, 78 S.E.2d 240 (1953); Penninger v. Barrier, 29 N.C. App. 312, 224 S.E.2d 245 (1976); High v. Parks, 42 N.C. App. 707, 257 S.E.2d 661 (1979); Higdon v. Davis, 71 N.C. App. 640, 324 S.E.2d 5 (1984).

Cited in Blades v. Wilmington Trust Co., 207 N.C. 771, 178 S.E. 565 (1935); Young v. Young, 43 N.C. App. 419, 259 S.E.2d 348 (1979); Hayes v. Turner, 98 N.C. App. 451, 391 S.E.2d 513 (1990); Fulcher v. Golden, 147 N.C. App. 161, 554 S.E.2d 410 (2001); THZ Holdings, LLC v. McCrea, 231 N.C. App. 482, 753 S.E.2d 344 (2013).


§ 47-27. Deeds of easements.

All persons, firms, or corporations now owning or hereafter acquiring any deed or agreement for rights-of-way and easements of any character whatsoever shall record such deeds and agreements in the office of the register of deeds of the county where the land affected is situated. Where such deeds and agreements may have been acquired, but no use has been made thereof, the person, firm, or corporation holding such instrument, or any assignment thereof, shall not be required to record them until within 90 days after the beginning of the use of the easements granted thereby. If after 90 days from the beginning of the easement granted by such deeds and agreements the person, firm, or corporation holding such deeds or agreements has not recorded the same in the office of the register of deeds of the county where the land affected is situated, then the grantor in the said deed or agreement may, after 10 days' notice in writing served and returned by the sheriff or other officer of the county upon the said person, firm, or corporation holding such lease or agreement, file a copy of the said lease or agreement for registration in the office of the register of deeds of the county where the original should have been recorded, but such copy of the lease or agreement shall have attached thereto the written notice above referred to, showing the service and return of the sheriff or other officer. The registration of such copy shall have the same force and effect as the original would have had if recorded: Provided, said copy shall be duly probated before being registered.

Nothing in this section shall require the registration of the following classes of instruments or conveyances, to wit:

  1. It shall not apply to any deed or instrument executed prior to January 1, 1910.
  2. It shall not apply to any deed or instrument so defectively executed or witnessed that it cannot by law be admitted to probate or registration, provided that such deed or instrument was executed prior to the ratification of this section.
  3. It shall not apply to decrees of a competent court awarding condemnation or confirming reports of commissioners, when such decrees are on record in such courts.
  4. It shall not apply to local telephone companies, operating exclusively within the State, or to agreements about alleyways.

The failure of electric companies or power companies operating exclusively within this State or electric membership corporations, organized pursuant to Chapter 291 of the Public Laws of 1935 [G.S. 117-6 through 117-27], to record any deeds or agreements for rights-of-way acquired subsequent to 1935, shall not constitute any violation of any criminal law of the State of North Carolina.

No deed, agreement for right-of-way, or easement of any character shall be valid as against any creditor or purchaser for a valuable consideration but from the registration thereof within the county where the land affected thereby lies.

From and after July 1, 1959, the provisions of this section shall apply to require the Department of Transportation to record as herein provided any deeds of easement, or any other agreements granting or conveying an interest in land which are executed on or after July 1, 1959, in the same manner and to the same extent that individuals, firms or corporations are required to record such easements.

History

(1917, c. 148; 1919, c. 107; C.S., s. 3316; 1943, c. 750; 1959, c. 1244; 1973, c. 507, s. 5; 1977, c. 464, s. 34.)

Local Modification. - Alleghany: C.S. 3316; Halifax: 1939, c. 45; Harnett and Lee: C.S. 3316; Martin: 1939, c. 45; Surry and Wilkes: C.S. 3316.

Editor's Note. - G.S. 117-27, referred to in this section, was repealed by Session Laws 1965, c. 287, s. 15.

Legal Periodicals. - For article, "North Carolina's Real Estate Recording Laws: The Ghost of 1885," see 28 N.C. Cent. L.J. 199 (2006).

CASE NOTES

The effect of the 1943 amendment was to require that any deed, agreement for right of way, or easement of any character be registered before it could be valid against a bona fide purchaser for value. DOT v. Humphries, 347 N.C. 649, 496 S.E.2d 563 (1998).

Prior to the 1959 amendment unrecorded right-of-way agreements were required to be recorded in order to prevail over a bona fide purchaser for value. DOT v. Humphries, 347 N.C. 649, 496 S.E.2d 563 (1998).

The provision of this section exempting decrees of condemnation from the requirement of registration was not repealed by the 1919 and 1943 amendments, and an easement created by judgment in condemnation proceedings is good as against creditors and purchasers for value from the owner of the servient tenement, notwithstanding the absence of registration. Carolina Power & Light Co. v. Bowman, 228 N.C. 319, 45 S.E.2d 531 (1947).

The provision of this section exempting decrees of courts of competent jurisdiction in condemnation proceedings from the requirement as to registration supersedes the provisions of G.S. 40-19 that a copy of the judgment in eminent domain proceedings be registered in the county where the land lies, and the provision of G.S. 1-228 that judgments in which transfers of title are declared shall be registered under the same rules as are prescribed for deeds. Carolina Power & Light Co. v. Bowman, 228 N.C. 319, 45 S.E.2d 531 (1947).

Applicability to Board of Transportation. - This section is expressly applicable to the Highway Commission (Board of Transportation). North Carolina State Hwy. Comm'n v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967); DOT v. Auten, 106 N.C. App. 489, 417 S.E.2d 299 (1992), overruled in part, DOT v. Humphries, 347 N.C. 649, 496 S.E.2d 563 (1998).

An easement obtained by the Highway Commission (now Board of Transportation) prior to June 1, 1959, did not have to be recorded. Kaperonis v. North Carolina State Hwy. Comm'n, 260 N.C. 587, 133 S.E.2d 464 (1963).

Applicability to Department of Transportation. - This section, which governs deeds for rights-of-way and easements, provides that the Department of Transportation does not have to record such interests in land which were acquired prior to July 1, 1959. DOT v. Wolfe, 116 N.C. App. 655, 449 S.E.2d 11 (1994).

If the General Assembly had intended for DOT to be exempt from filing, it could have included it in the exclusions listed in the statute. DOT v. Humphries, 347 N.C. 649, 496 S.E.2d 563 (1998).

Inapplicable to Enforcement of Easement Between Signatory Parties. - Settlement agreement providing that a resort was permitted during a lease period to maintain certain signs on specified areas of property owned by a property owners association created an enforceable easement because the parties intended to create an easement, and there was no evidence suggesting that recordation was necessary to render the easement enforceable between the signatory parties; the provisions of G.S. 47-27 were inapplicable because neither innocent purchasers for value nor foreign parties were affected. Fairfield Resorts, Inc. v. Fairfield Mts. Prop. Owners Ass'n, - F. Supp. 2d - (W.D.N.C. July 18, 2007).

Invalidity of Deeds of Easements Prior to Recordation. - This section makes deeds and conveyances of easements and rights-of-way invalid as to creditors and purchasers for value prior to recordation. North Carolina State Hwy. Comm'n v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967).

Priority of Duly Recorded Easement. - Where the owner of land conveys a portion thereof, together with an easement, over his remaining lands by deed duly recorded, grantees of the servient tenement, directly or by mesne conveyances, take title subject to the duly recorded easement, notwithstanding that no deed in their chain of title refers to such easement. Waldrop v. Brevard, 233 N.C. 26, 62 S.E.2d 512 (1950).

Where a property interest spans more than one county, it is only effective against other claimants in the counties in which it has been recorded. Rowe v. Walker, 114 N.C. App. 36, 441 S.E.2d 156 (1994), aff'd, 340 N.C. 107, 455 S.E.2d 160 (1995).

Facts Constituting Notice. - If the facts disclosed in an instrument appearing in a purchaser's chain of title would naturally lead an honest and prudent person to make inquiry concerning the rights of others, these facts constituted notice of everything which such inquiry, pursued in good faith and with reasonable diligence, would have disclosed. North Carolina State Hwy. Comm'n v. Wortman, 4 N.C. App. 546, 167 S.E.2d 462 (1969).

Race to the Courthouse. - As North Carolina is a pure race jurisdiction, where defendants failed to register their grant of easement in Person County before plaintiffs registered their deed there, plaintiffs won the "race to the courthouse," and their interest superseded the later-recorded interest claimed by defendants. Rowe v. Walker, 114 N.C. App. 36, 441 S.E.2d 156 (1994), aff'd, 340 N.C. 107, 455 S.E.2d 160 (1995).

As a pure race state, North Carolina focuses on recordation, above and beyond anything else. DOT v. Humphries, 347 N.C. 649, 496 S.E.2d 563 (1998).

The General Assembly intended this section to operate under the same theory as the Connor Act, as a pure race statute. DOT v. Humphries, 347 N.C. 649, 496 S.E.2d 563 (1998).

Purchaser for Value. - North Carolina does not require that a purchaser for valuable consideration be an "innocent purchaser." A "purchaser for value" or a "purchaser for valuable consideration" is simply defined as one who has paid a valuable consideration for the execution of an instrument of conveyance. Rowe v. Walker, 114 N.C. App. 36, 441 S.E.2d 156 (1994), aff'd, 340 N.C. 107, 455 S.E.2d 160 (1995).

Map or Plat as Part of Deed. - A map or plat referred to in a deed becomes a part of the deed and need not be registered. North Carolina State Hwy. Comm'n v. Wortman, 4 N.C. App. 546, 167 S.E.2d 462 (1969).

Defendant's failure to record the alleged oral termination of easement did not accord plaintiff (successor to easement) a superior interest therein. Howell v. Clyde, 127 N.C. App. 717, 493 S.E.2d 323 (1997), cert. denied, 347 N.C. 576, 502 S.E.2d 592 (1998).

Cited in Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541 (1953); Waters v. North Carolina Phosphate Corp., 310 N.C. 438, 312 S.E.2d 428 (1984).


§ 47-28. Powers of attorney.

  1. Recording required for powers of attorney affecting real property:
    1. Before any transfer of real property executed by an agent empowered by a power of attorney governed by Chapter 32C of the General Statutes, the power of attorney or a certified copy of the power of attorney shall be registered in the office of the register of deeds of the county in which the principal is domiciled or where the real property lies. If the principal is not a resident of North Carolina, the power of attorney or a certified copy of the power of attorney may be recorded in any county in the State wherein the principal owns real property or has a significant business reason for registering in the county.
    2. If the real property lies in more than one county or in a county other than where the principal is domiciled, the power of attorney or a certified copy of the power of attorney shall be registered in the office of the register of deeds in one of the counties, and the instrument of transfer shall refer to the recordation specifically by reference to the book, page, and county where recorded.
    3. Any instrument subject to the provisions of G.S. 47-17.2, 47-18, or 47-20 and signed by an agent and recorded in a county other than the county where a power of attorney is recorded in this State shall include the recording information, including book, page, and county for the power of attorney.
    4. The failure to comply with the provisions of this subsection shall not affect the sufficiency, validity, or enforceability of the instrument but shall constitute an infraction.
  2. If the instrument of conveyance is recorded prior to the registration of the power of attorney or a certified copy of the power of attorney pursuant to subsection (a) of this section, the power of attorney or a certified copy of the power of attorney may be registered in the office of the register of deeds as provided in subsection (a) of this section thereafter provided that the agent was empowered at the time of the original conveyance. Notwithstanding the provisions of subsection (a) of this section, no conveyance shall be rendered invalid by the recordation of the power of attorney or a certified copy of the power of attorney after the instrument of conveyance, and the registration shall relate back to the date and time of registration of the instrument of conveyance.
  3. The provisions of subsection (a) of this section shall apply to all real property transfers utilizing an authority under any power of attorney whether made on or after April 1, 2013, and the provisions of subsection (b) of this section shall apply to all real property transfers utilizing an authority under any power of attorney whether made before, on, or after April 1, 2013.

History

(Code, s. 1249; 1899, c. 235, s. 15; Rev., s. 987; C.S., s. 3317; 2013-204, s. 1.15; 2017-153, s. 2.2.)

Cross References. - As to form for acknowledgment of instrument executed by attorney in fact, see G.S. 47-43.

Effect of Amendments. - Session Laws 2013-204, s. 1.15, effective June 26, 2013, rewrote this section, which formerly read: "Every power of attorney, wherever made or concerning whatsoever matter, may, on acknowledgment or proof of the same before any competent official, be registered in the county wherein the property or estate which it concerns is situate, if such power of attorney relate to the conveyance thereof; if it does not relate to the conveyance of any estate or property, then in the county in which the attorney resides or the business is to be transacted".

Session Laws 2017-153, s. 2.2, effective January 1, 2018, in subdivision (a)(1) substituted "agent" for "attorney-in-fact", and substituted "Chapter 32C" for "Article 1, Article 2, or Article 2A of Chapter 32A"; and substituted "agent" for "attorney-in-fact" in subdivision (a)(3) and in subsection (b).

CASE NOTES

Cited in In re Foreclosure of a Deed of Trust Executed by Lucks, 369 N.C. 222, 794 S.E.2d 501 (2016).


§ 47-29. Recording of bankruptcy records.

A copy of the petition with the schedules omitted beginning a proceeding under the United States Bankruptcy Act, or of the decree of adjudication in such proceeding, or of the order approving the bond of the trustee appointed in such proceeding, shall be recorded in the office of any register of deeds in North Carolina, and it shall be the duty of the register of deeds, on request, to record the same. The register of deeds shall be entitled to the same fees for such registration as he is now entitled to for recording conveyances.

History

(1939, c. 254.)

Legal Periodicals. - For comment on this section, see 17 N.C.L. Rev. 344 (1939).

§ 47-29.1. Recordation of environmental notices.

  1. A permit for the disposal of waste on land shall be recorded as provided in G.S. 130A-301.
  2. The disposal of land clearing and inert debris in a landfill with a disposal area of 1/2 acre or less pursuant to G.S. 130A-301.1 shall be recorded as provided in G.S. 130A-301.1(c).
  3. A Notice of Open Dump shall be recorded as provided in G.S. 130A-301(f).
  4. Expired pursuant to Session Laws 1995, c. 502, s. 4, as amended by Session Laws 2001-357, s. 2, effective September 30, 2003.
  5. The disposal of on-site demolition debris from the decommissioning of manufacturing buildings, including electric generating stations, shall be recorded as provided in G.S. 130A-301.3.
  6. An inactive hazardous substance or waste disposal site shall be recorded as provided in G.S. 130A-310.8.
  7. A Notice of Brownfields Property shall be recorded as provided in G.S. 130A-310.35.
  8. A Notice of Oil or Hazardous Substance Discharge Site shall be recorded as provided in G.S. 143-215.85A.
  9. A Notice of Dry-Cleaning Solvent Remediation shall be recorded as provided in G.S. 143-215.104M.
  10. A Notice of Contaminated Site shall be recorded as provided in G.S. 143B-279.10.
  11. A Notice of Residual Petroleum shall be recorded as provided in G.S. 143B-279.11.
  12. A land-use restriction that provides for the maintenance of stormwater best management practices or site consistency with approved stormwater project plans shall be recorded as provided in G.S. 143-214.7(c1).

History

(1995, c. 502, s. 2.1; 1997-330, s. 1; 2001-357, s. 2; 2001-384, s. 10; 2006-246, s. 16(a); 2013-55, s. 3; 2013-410, s. 16.3.)

Editor's Note. - The number of this section was assigned by the Revisor of Statutes, the number in Session Laws 1995, c. 502, s. 2.1 having been G.S. 47-28.

Session Laws 1995, c. 502, which enacted this section effective July 28, 1995, in s. 4, as amended by Session Laws 2001-357, s. 2, provides that the sentence of subsection (a) subsequently renumbered as subsection (a3) by Session Laws 2001-384, s. 10, expires September 30, 2003.

Session Laws 2001-384, s. 13, provides: "This act becomes effective 1 September 2001. This act applies to any cleanup of a discharge or release of petroleum from an underground storage tank pursuant to Part 2A of Article 21A of Chapter 143 of the General Statutes except that land-use restrictions and recordation of residual contamination are not required with respect to a discharge or release of petroleum for which the Department of Environment and Natural Resources (now Department of Environmental Quality) issued a determination that no further action is required prior to 1 September 2001."

Effect of Amendments. - Session Laws 2006-246, s. 16(a), effective retroactively to July 1, 2006, added subsection (h).

Session Laws 2013-55, s. 3, as amended by Session Laws 2013-410, s. 16.3, effective July 1, 2013, added subsection (a4).

§ 47-30. Plats and subdivisions; mapping requirements.

  1. Size Requirements. - All land plats presented to the register of deeds for recording in the registry of a county in North Carolina after September 30, 1991, having an outside marginal size of either 18 inches by 24 inches, 21 inches by 30 inches, or 24 inches by 36 inches, and, for landscape format, having a minimum one and one-half inch border on the left side or, for portrait format, one and one-half inch border on the top side and a minimum one-half inch border on the other sides shall be deemed to meet the size requirements for recording under this section. Where size of land areas, or suitable scale to assure legibility require, plats may be placed on two or more sheets with appropriate match lines. Counties may specify either:
    1. Only 18 inches by 24 inches;
    2. A combination of 18 inches by 24 inches and 21 inches by 30 inches;
    3. A combination of 18 inches by 24 inches and 24 inches by 36 inches; or
    4. A combination of all three sizes.
  2. Plats to Be Reproducible. - Each plat presented for recording shall be a reproducible plat, either original ink on polyester film (mylar), or a reproduced drawing, transparent and archival (as defined by the American National Standards Institute), and submitted in this form. The recorded plat must be such that the public may obtain legible copies. A direct or photographic copy of each recorded plat shall be placed in the plat book or plat file maintained for that purpose and properly indexed for use. In those counties in which the register has made a security copy of the plat from which legible copies can be made, the original plat may be submitted in the form of black line on white paper instead of transparent and archival and may be returned to the person indicated on the plat.
  3. Information Contained in Title of Plat. - The title of each plat shall contain the following information:
    1. The property designation.
    2. The name of the owner; provided, however, that the name of owner shall be shown for indexing purposes only and is not to be construed as title certification.
    3. The location, to include county and State, and the township or city, if applicable.
    4. The date or dates the survey was made.
    5. The scale or scale ratio in words or figures and bar graph.
    6. The name and address of surveyor preparing the plat, including the firm name and firm license number, if applicable.
    7. The dates and descriptions of revisions made after original signing.
  4. Certificate; Form. - There shall appear on each plat a certificate by the person under whose supervision the survey or plat was made, stating the reference source for the boundary information for the surveyed property shown on the plat, including recorded deed and plat references shown thereon. The ratio of precision or positional accuracy before any adjustments must be shown. Any lines on the plat that were not actually surveyed must be clearly indicated and a statement included revealing the source of information. Where a plat consists of more than one sheet, only one sheet must contain the certification and all other sheets must be signed and sealed. Multiple sheet plats shall be identified as a map set.
  5. Method of Computation. - An accurate method of computation shall be used to determine the acreage and either the ratio of precision or the positional accuracy shown on the plat. Area by estimation is not acceptable nor is area by planimeter, area by scale, or area copied from another source, except in the case of tracts containing inaccessible sections or areas. In such case the surveyor may make use of aerial photographs or other appropriate aids to determine the acreage of any inaccessible areas when the areas are bounded by natural and visible monuments. In such case the methods used must be stated on the plat and all accessible areas of the tract shall remain subject to all applicable standards of this section.
  6. Plat to Contain Specific Information. - Every plat shall contain the following specific information:
    1. An accurately positioned north arrow coordinated with any bearings shown on the plat. Indication shall be made as to whether the north index is true, magnetic, North Carolina grid ("NAD 83," "NAD 27," or other published horizontal datum), or is referenced to old deed or plat bearings. If the north index is magnetic or referenced to old deed or plat bearings, the date and the source (if known) the index was originally determined shall be clearly indicated. North Carolina grid reference shall include the horizontal datum and the realization reference.
    2. The azimuth or course and distance of every property line surveyed shall be shown. Distances shall be in U.S. Survey feet or meters and decimals thereof. The number of decimal places shall be appropriate to the class of survey required.
    3. All plat distances shall be by horizontal ground or horizontal grid measurements. All lines shown on the plat shall be correctly plotted to the scale shown. Enlargement of portions of a plat are acceptable in the interest of clarity, where shown as inserts. Where the North Carolina grid system is used the combined grid factor shall be shown on the face of the plat. If grid distances are used, it must be indicated on the plat.
    4. Where a boundary is formed by a curved line, the following data must be given: actual survey data from the point of curvature to the point of tangency shall be shown as standard curve data, or as a traverse of bearings and distances around the curve. If standard curve data is used the bearing and distance of the long chord (from point of curvature to point of tangency) must be shown on the plat.
    5. Where a subdivision of land is set out on the plat, all streets and lots shall be accurately plotted with dimension lines indicating widths and all other information pertinent to reestablishing all lines in the field. This shall include bearings and distances sufficient to form a continuous closure of the entire perimeter.
    6. All corners which are marked by monument or natural object shall be so identified on all plats, and where practical all corners of adjacent owners along the boundary lines of the subject tract which are marked by monument or natural object shall be shown.
    7. The names of adjacent landowners, or lot, block, parcel, subdivision name designations or other legal reference, where applicable, shall be shown where they could be determined by the surveyor.
    8. All visible and apparent rights-of-way, watercourses, utilities, roadways, and other such improvements shall be accurately located where crossing or forming any boundary line of the property shown. Nothing in this subdivision shall be construed to modify the notification responsibility of persons engaged in excavation or demolition pursuant to G.S. 87-122.
    9. Where the plat is the result of a survey, one or more corners shall be labeled with coordinates on the plat, shown as "X" (easting) and "Y" (northing) coordinates, traceable to a published geodetic datum or the North Carolina State Plane Coordinate System, or both. The plat should include, at a minimum, the referenced horizontal datum and realization (i.e., "NAD 83 (2011)") as well as the data or method used to establish those coordinates, or both. If the bearings shown on the map are not referenced to the same datum as the grid coordinates shown, then either (i) the coordinates of a second point shall be labeled and the two labeled points tied together by a single azimuth or course and distance or (ii) the plat shall include, in written and graphical form, the conversion from plat bearings to reference bearings. Control monuments within a previously recorded subdivision may be used in lieu of grid control. In the interest of consistency with previously recorded plats, existing bearing control may be used where practical. Where no horizontal control monument of any United States or State agency survey system, such as the North Carolina Geodetic Survey, is located within 2,000 feet of the subject property, ties to other appropriate natural monuments or landmarks may be used in lieu of grid coordinates. In all cases, the tie lines shall be sufficient to reproduce the subject lands from the control or reference points used.
    10. A vicinity map (location map) and legend shall appear on the plat.
    11. Notwithstanding any other provision contained in this section, it is the duty of the surveyor, by a certificate on the face of the plat, to certify to one of the following:
      1. That the survey creates a subdivision of land within the area of a county or municipality that has an ordinance that regulates parcels of land.
      2. That the survey is located in a portion of a county or municipality that is unregulated as to an ordinance that regulates parcels of land.
      3. Any one of the following:
        1. That the survey is of an existing parcel or parcels of land or one or more existing easements and does not create a new street or change an existing street. For the purposes of this subsection, an "existing parcel" or "existing easement" is an area of land described in a single, legal description or legally recorded subdivision that has been or may be legally conveyed to a new owner by deed in its existing configuration.
        2. That the survey is of an existing feature, such as a building or other structure, or natural feature, such as a watercourse.
        3. That the survey is a control survey. For the purposes of this subsection, a "control survey" is a survey that provides horizontal or vertical position data for support or control of other surveys or for mapping. A control survey, by itself, cannot be used to define or convey rights or ownership.
        4. That the survey is of a proposed easement for a public utility as defined in G.S. 62-3.
      4. That the survey is of another category, such as the recombination of existing parcels, a court-ordered survey, or other exemption or exception to the definition of subdivision.
      5. That the information available to the surveyor is such that the surveyor is unable to make a determination to the best of the surveyor's professional ability as to provisions contained in (a) through (d) above.
  7. Recording of Plat. - In certifying a plat for recording pursuant to G.S. 47-30.2, the Review Officer shall not be responsible for reviewing or certifying as to any of the following requirements of this section:
    1. Subsection (b) of this section as to archival.
    2. Repealed by Session Laws 1997-309, s. 2.
    3. Subsection (e) of this section.
    4. Subdivisions (1) through (10) of subsection (f) of this section.
  8. Nothing in this section shall be deemed to prevent the filing of any plat prepared by a professional land surveyor but not recorded prior to the death of the professional land surveyor. However, it is the responsibility of the person presenting the map to the Review Officer pursuant to G.S. 47-30.2 to prove that the plat was so prepared. For preservation these plats may be filed without signature, notary acknowledgement or probate, in a special plat file.
  9. Nothing in this section shall be deemed to invalidate any instrument or the title thereby conveyed making reference to any recorded plat.
  10. The provisions of this section shall not apply to boundary plats of State lines, county lines, areas annexed by municipalities, nor to plats of municipal boundaries, whether or not required by law to be recorded.
  11. The provisions of this section shall apply to all counties in North Carolina.
  12. This section does not apply to the registration of highway right-of-way plans provided for in G.S. 136-19.4 or G.S. 136-89.184.
  13. Maps attached to deeds or other instruments and submitted for recording in that form must be no larger than 81/2 inches by 14 inches and comply with either this subsection or subsection (n) of this section. A map submitted for recording pursuant to this subsection shall conform to one the following standards:
    1. An original map that meets the requirements of subsections (c) through (f) of this section and that bears the signature of a professional land surveyor and the surveyor's seal as approved by the State Board of Examiners for Engineers and Surveyors.
    2. A copy of a previously recorded map that is certified by the custodian of the public record to be a true and accurate copy of the map.
  14. A map that does not meet the requirements of subsection (m) of this section may be attached to a deed or other instrument submitted for recording in that form for illustrative purposes only if it meets both of the following requirements:
    1. It is no larger than 81/2 inches by 14 inches.
    2. It is conspicuously labelled, "THIS MAP MAY NOT BE A CERTIFIED SURVEY AND HAS NOT BEEN REVIEWED BY A LOCAL GOVERNMENT AGENCY FOR COMPLIANCE WITH ANY APPLICABLE LAND DEVELOPMENT REGULATIONS AND HAS NOT BEEN REVIEWED FOR COMPLIANCE WITH RECORDING REQUIREMENTS FOR PLATS."
  15. The requirements of this section regarding plat size, reproducible form, and evidence of required certifications shall be met with respect to a plat that is an "electronic document," as that term is defined in G.S. 47-16.2(3), if all of the following conditions have been met:
    1. The register of deeds has authorized the submitter to electronically register the electronic document.
    2. The plat is submitted by a United States federal or a state governmental unit or instrumentality or a trusted submitter. For purposes of this subsection, "a trusted submitter" means a person or entity that has entered into a memorandum of understanding regarding electronic recording with the register of deeds in the county in which the electronic document is to be submitted.
    3. Evidence of required certifications appear on the digitized image of the document as it will appear on the public record.
    4. With respect to a plat submitted by a trusted submitter, the digitized image of the document as it will appear on the public record contains the submitter's name in the following completed statement on the first page of the document image: "Submitted electronically by __________________ (submitter's name) in compliance with North Carolina statutes governing recordable documents and the terms of the submitter agreement with the __________________ (insert county name) County Register of Deeds.
    5. Except as otherwise provided in this subsection, the digitized image of the plat conforms to all other applicable laws and rules that prescribe recordation.

Provided, that all registers of deeds where specific sizes other than the combination of all three sizes have been specified, shall be required to submit said size specifications to the North Carolina Association of Registers of Deeds for inclusion on a master list of all such counties. The list shall be available in each register of deeds office by October 1, 1991. For purposes of this section, the terms "plat" and "map" are synonymous.

The information required pursuant to this subsection shall be listed prominently on the plat. Information listed in the notes contained on the plat does not satisfy the requirements of this subsection.

The certificate required above shall include (i) the source of information for the survey, (ii) data indicating the ratio of precision or positional accuracy of the survey before adjustments, and (iii) the seal and signature pursuant to Chapter 89C of the General Statutes, and shall be in substantially the following form:

"I, ____________, certify that this plat was drawn under my supervision from an actual survey made under my supervision (deed description recorded in Book ________, page ________, etc.) (other); that the boundaries not surveyed are clearly indicated as drawn from information found in Book ________, page ________; that the ratio of precision or positional accuracy as calculated is ________; that this plat was prepared in accordance with G.S. 47-30 as amended. Witness my original signature, license number and seal this ________ day of ________, A.D., ________.

Seal or Stamp

_______________________________________________________________________________

Professional Land Surveyor

License Number"

Nothing in this requirement shall prevent the recording of a map that was prepared in accordance with a previous version of G.S. 47-30 as amended, properly signed, and notarized under the statutes applicable at the time of the signing of the map. However, it shall be the responsibility of the person presenting the map to prove that the map was so prepared. The presence of the personal signature and seal of a professional land surveyor shall constitute a certification that the map conforms to the standards of practice for land surveying in this State as defined in the rules of the North Carolina State Board of Examiners for Engineers and Surveyors.

If the plat contains the certificate of a surveyor as stated in sub-subdivisions b. or c. of this subdivision, nothing shall prevent the recordation of the plat if all other provisions have been met. However, if the plat contains the certificate of a surveyor as stated in sub-subdivisions a., d., or e. of this subdivision, then the plat shall have, in addition to said surveyor's certificate, a certification of approval, or no approval required, as may be required by local ordinance from the appropriate government authority and the county review officer as provided in G.S. 47-30.2 before the plat is presented for recordation. The signing and sealing of the certification as required in subsection (d) of this section shall satisfy the certification requirement contained in this subsection.

A plat, when certified pursuant to G.S. 47-30.2 and presented for recording, shall be recorded in the plat book or plat file and when so recorded shall be duly indexed. Reference in any instrument hereafter executed to the record of any plat herein authorized shall have the same effect as if the description of the lands as indicated on the record of the plat were set out in the instrument.

History

(1911, c. 55, s. 2; C.S., s. 3318; 1923, c. 105; 1935, c. 219; 1941, c. 249; 1953, c. 47, s. 1; 1959, c. 1235, ss. 1, 3A, 3.1; 1961, cc. 7, 111, 164, 199, 252, 660, 687, 932, 1122; 1963, c. 71, ss. 1, 2; cc. 180, 236; c. 361, s. 1; c. 403; 1965, c. 139, s. 1; 1967, c. 228, s. 2; c. 394; 1971, c. 658; 1973, cc. 76, 848, 1171; c. 1262, s. 86; 1975, c. 192; c. 200, s. 1; 1977, c. 50, s. 1; c. 221, s. 1; c. 305, s. 2; c. 771, s. 4; 1979, c. 330, s. 1; 1981, c. 138, s. 1; c. 140, s. 1; c. 479; 1983, c. 473; 1987, c. 747, s. 20; 1989, c. 727, s. 218(6); 1991, c. 268, s. 3; 1993, c. 119, ss. 1, 2; 1997-309, s. 2; 1997-443, s. 11A.119(a); 1998-228, ss. 11, 12; 1999-456, s. 59; 2000-140, s. 93.1(b); 2001-424, s. 12.2(b); 2008-225, s. 9; 2010-180, s. 1; 2011-246, s. 7; 2012-142, s. 12.4(f); 2017-27, s. 1; 2019-35, s. 2.)

Local Modification. - Ashe: 1979, c. 330, ss. 2, 3; Avery: 1973, c. 1050, ss. 1, 2; Cabarrus: 2002-115, s. 2; Davie, as to subsection (f)(3): 1961, c. 609; Durham: 2003-326, s. 2.1; Harnett: 2003-326, s. 2.1; Mecklinburg: 2002-115, s. 2; Moore: 2003-326, s. 2.1; New Hanover: 2003-326, s. 2.1; Onslow: 1977, c. 305, s. 1; Randolph: 2003-326, s. 2.1; Wilson: 1957, c. 1137.

Cross References. - As to validation of registration of plats prior to the 1953 amendment, see G.S. 47-108.10.

Editor's Note. - Session Laws 2017-27, s. 3, made the rewriting of this section by Session Laws 2017-27, s. 1, effective July 1, 2017, and applicable to plats and subdivisions submitted for recording on or after that date.

Effect of Amendments. - Session Laws 2008-225, s. 9, effective August 17, 2008, rewrote subsection ( l ).

Session Laws 2010-180, s. 1, effective August 2, 2010, in subdivision (f)(9), in the second sentence, substituted "North Carolina Geodetic Survey Section in the Division of Land Resources of the Department of Environment and Natural Resources" for "North Carolina Office of State Budget and Management," and in the last sentence, substituted "grid control" for "Grid Control."

Session Laws 2011-246, s. 7, effective October 1, 2011, and applicable to plats registered on or after that date, added subsection (o).

Session Laws 2012-142, s. 12.4(f), effective July 1, 2012, substituted "Division of Emergency Management of the Department of Public Safety" for "Division of Land Resources of the Department of Environment and Natural Resources" in the second sentence of subdivision (f)(9).

Session Laws 2017-27, s. 1, rewrote the section. For effective date and applicability, see editor's note.

Session Laws 2019-35, s. 2, effective June 21, 2019, substituted "G.S. 136-89.184" for "G.S. 136-89.184, nor to the registration of roadway corridor official maps provided for in Article 2E of Chapter 136 of the General Statutes" at the end of subsection ( l ).

Legal Periodicals. - For comment on the 1941 amendment, see 19 N.C.L. Rev. 513 (1941).

CASE NOTES

Due Process. - Decision of the North Carolina Board of Examiners for Engineers and Surveyors to suspend a surveyor's license and to reprimand his surveying company did not violate due process because the Board properly deemed that the surveyor's settlement with a property owner was not "conduct in the interest of protecting safety, health, and welfare of the public, thus violating the Board's Professional Rules of Conduct, 21 N.C. Admin. Code 56.0701(b); the surveyor knew his settlement would necessarily prevent reporting to the Board and that issuing a preliminary plat with knowledge that it would be improperly recorded violated 21 N.C. Admin. Code 56.1103. In re Suttles Surveying, P.A., 227 N.C. App. 70, 742 S.E.2d 574, dismissed and review granted, 367 N.C. 252, 749 S.E.2d 840, 2013 N.C. LEXIS 1150 (2013).

This section was designed to regulate priorities as between two conflicting dedications, and does not affect the general principles of dedication and acceptance and the owner's right of revocation. Wittson v. Dowling, 179 N.C. 542, 103 S.E. 18 (1920).

This section was enacted in view of the decision in Sexton v. Elizabeth City, 169 N.C. 385, 86 S.E. 344 (1915), in which it was held that a purchaser in reference to a second plat who had registered his deed would take precedence over one under a former plat who had failed to have his deed registered; this on the ground that, as no statute provided for registration of plats, the date of registration of the deed would determine the matter. Wittson v. Dowling, 179 N.C. 542, 103 S.E. 18 (1920).

In order for a map to constitute notice to the town of a proposed subdivision, recordation in the office of the register of deeds is required, and that office is the proper place for such recordation. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

No Notice Will Take Place of Registration in Proper Public Office. - Ordinarily, a person may rely on the public records, and no notice, regardless of how full and formal, will take the place of registration in the proper public office. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

Certification Required. - A survey of a division of land that is described in G.S. 153A-335(2) falls under subdivision (f)(11)(d) and requires a certification of "no approval required" before the plat may be presented for recordation. Three Guys Real Estate v. Harnett County, 345 N.C. 468, 480 S.E.2d 681 (1997).

Cited in Adams v. North Carolina State Bd. of Registration, 129 N.C. App. 292, 501 S.E.2d 660 (1998).

Opinions of Attorney General

This section applies only to those maps or plats presented to the Register of Deeds for recording in his office. Whether or not the plat or map should be made to comply with this section and recorded depends on the purpose for which it is to be used. See opinion of Attorney General to Mr. Joe B. Freeman, Register of Deeds, Robeson County, 59 N.C.A.G. 1 (1989).

§ 47-30.1. Plats and subdivisions; alternative requirements.

In a county to which the provisions of G.S. 47-30 do not apply, any person, firm or corporation owning land may have a plat thereof recorded in the office of the register of deeds if such land or any part thereof is situated in the county, upon proof upon oath by the surveyor making such plat or under whose supervision such plat was made that the same is in all respects correct according to the best of his knowledge and belief and was prepared from an actual survey by him made, or made under his supervision, giving the date of such survey, or if the surveyor making such plat is dead, or where land has been sold and conveyed according to an unrecorded plat, upon the oath of a duly licensed surveyor that said map is in all respects correct according to the best of his knowledge and belief and that the same was actually and fully checked and verified by him, giving the date on which the same was verified and checked.

History

(1961, c. 534, s. 1; c. 985.)

Local Modification. - Avery: 1973, c. 1050; Yadkin: 1977, c. 480.

Editor's Note. - Session Laws 1961, c. 534, s. 2, provided that any plat recorded in accordance with the provisions of G.S. 47-30.1 in a county to which the provisions of G.S. 47-30, as it read prior to amendment in 1983, did not apply, between December 31, 1959, and May 30, 1961, was in all respects validated and confirmed.

CASE NOTES

Cited in Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).


§ 47-30.2. Review Officer.

  1. The board of commissioners of each county shall, by resolution, designate by name one or more persons experienced in mapping or land records management as a Review Officer to review each map and plat required to be submitted for review before the map or plat is presented to the register of deeds for recording. Each person designated a Review Officer shall, if reasonably feasible, be certified as a property mapper pursuant to G.S. 147-54.4. A resolution designating a Review Officer shall be recorded in the county registry and indexed on the grantor index in the name of the Review Officer.
  2. The Review Officer shall review expeditiously each map or plat required to be submitted to the Officer before the map or plat is presented to the register of deeds for recording. The Review Officer shall certify the map or plat if it complies with all statutory requirements for recording.
  3. A map or plat must be presented to the Review Officer unless one or more of the following conditions are applicable:
    1. The certificate required by G.S. 47-30(f)(11) shows that the map or plat is a survey within the meaning of G.S. 47-30(f)(11)b. or c.
    2. The map or plat is exempt from the requirements of G.S. 47-30 pursuant to G.S. 47-30(j) or (l).
    3. The map is an attachment that is being recorded pursuant to G.S. 47-30(n).

Except as provided in subsection (c) of this section, the register of deeds shall not accept for recording any map or plat required to be submitted to the Review Officer unless the map or plat has the certification of the Review Officer affixed to it. A certification shall be in substantially the following form:

State of North Carolina County of ______________ I, ______________, Review Officer of ______________ County, certify that the map or plat to which this certification is affixed meets all statutory requirements for recording. ______________ Review Officer

Date ______________

History

(1997-309, s. 3; 1998-228, s. 13.)

§ 47-31. Certified copies may be registered; used as evidence.

  1. A duly certified copy of any deed or writing required or allowed to be registered may be registered in any county. The register of deeds may rely on the record keeper's certification on a presented document that the document is a certified copy and is not required to further verify the proof or acknowledgement otherwise required by G.S. 47-14 or to determine whether the document has been changed or altered after it was certified. The registered or duly certified copy of any deed or writing that has been registered in the county where the land is situate may be given in evidence in any court of the State.
  2. Instruments registered pursuant to this section prior to July 6, 1993 that were not further certified pursuant to G.S. 47-14 at the time of registration are hereby validated.

History

(1858-9, c. 18, s. 2; Code, s. 1253; Rev., s. 988; C. S., s. 3319; 1993, c. 288, ss. 2, 3; 2008-194, s. 7(b).)

Cross References. - As to certified copies of registered instruments as evidence, see G.S. 8-18.

As to court records as proof of destroyed instruments, see G.S. 98-12 and 98-13.

Effect of Amendments. - Session Laws 2008-194, s. 7(b), effective August 8, 2008, substituted "The register of deeds may rely on the record keeper's certification on a presented document that the document is a certified copy and is not required to further verify the proof or acknowledgement otherwise required by G.S. 47-14 or to determine whether the document has been changed or altered after it was certified. The" for "without further certification pursuant to G.S. 47-14; and the" in subsection (a).

CASE NOTES

Registration of Copies in Proper County Allowed. - This section allows certified copies of deeds erroneously registered to be recorded in the proper counties. Weston v. John L. Roper Lumber Co., 160 N.C. 263, 75 S.E. 800 (1912).

Proper Registration of Original Presumed. - It is to be assumed that the deed was properly put upon the registry until the contrary is made to appear, and nothing more is required to render the copy competent evidence when certified by the register. Starke v. Etheridge, 71 N.C. 240 (1874); Love v. Hardin, 87 N.C. 249 (1882); Strickland v. Draughan, 88 N.C. 315 (1883), appeal dismissed, 91 N.C. 103 (1884).

Use of Copy of Contract to Prove Lost Original. - For proof of the loss of a contract to convey land, a copy thereof, if shown to be correct, is admissible as secondary evidence to prove the contents of the original, though no search was made to ascertain whether the original was registered. Such a contract is valid between the parties without registration. Mauney v. Crowell, 84 N.C. 314 (1881).

Registration of Certified Copy Over 100 Years Old Even Though Mutilated. - Under this section, a certified copy of a deed over 100 years old, which showed that the original was a perfect deed of conveyance, was admissible to probate and registration, even though by reason of the mutilation of the records some lines of the conveyance showing the consideration therefor were lost; this being particularly true where an earlier certified copy of the same conveyance included the destroyed portions. Richmond Cedar Works v. Stringfellow, 236 F. 264 (E.D.N.C. 1916).

Cited in United States v. 7,405.3 Acres of Land, 97 F.2d 417 (4th Cir. 1938).

§ 47-32. Photographic copies of plats, etc.

After January 1, 1960, in all special proceedings in which a map shall be filed as a part of the papers, such map shall meet the specifications required for recording of maps in the office of the register of deeds, and the clerk of superior court may certify a copy thereof to the register of deeds of the county in which said lands lie for recording in the Map Book provided for that purpose; and the clerk of superior court may have a photographic copy of said map made on a sheet of the same size as the leaves in the book in which the special proceeding is recorded, and when made, may place said photographic copy in said book at the end of the report of the commissioner or other document referring to said map.

The provisions of this section shall not apply to the following counties: Alexander, Alleghany, Ashe, Beaufort, Camden, Clay, Franklin, Granville, Greene, Harnett, Hertford, Hoke, Hyde, Jackson, Jones, Lee, Lincoln, Madison, Martin, Northampton, Pamlico, Pasquotank, Pender, Person, Pitt, Richmond, Robeson, Rockingham, Sampson, Scotland, Surry, Swain, Vance, Warren, Washington, Watauga and Yadkin.

History

(1931, c. 171; 1959, c. 1235, ss. 2, 3A, 3.1; 1961, cc. 7, 111, 164, 252, 697, 932, 1122; 1963, c. 71, s. 3; c. 236; c. 361, s. 2; 1965, c. 139, s. 2; 1971, c. 1185, s. 13; 1977, c. 111; c. 221, s. 2; 1981, c. 138, s. 1; c. 140, s. 1; 1985, c. 32, s. 1.)

Editor's Note. - Session Laws 1981, c. 138, which deleted Cherokee in the list of counties in the second paragraph, provided in s. 2: "This act is effective upon ratification and applies to maps presented to the Cherokee County Register of Deeds or filed in a special proceeding on or after that date." The act was ratified March 27, 1981.

Session Laws 1981, c. 140, which deleted Caswell in the list of counties in the second paragraph, provided in s. 2: "This act shall become effective July 1, 1981 and shall apply to maps presented to the Caswell County Register of Deeds or filed in a special proceeding on or after that date."

§ 47-32.1. Photostatic copies of plats, etc.; alternative provisions.

In a county to which the provisions of G.S. 47-32 do not apply, the following alternative provisions shall govern photostatic copies of plats filed in special proceedings:

In all special proceedings in which a plat, map or blueprint shall be filed as a part of the papers, the clerk of the superior court may have a photostatic copy of said plat, map or blueprint made on a sheet of the same size as the leaves in the book in which the special proceeding is recorded, and when made, shall place said photostatic copy in said book at the end of the report of the commissioners or other document referring to said plat, map or blueprint.

History

(1961, c. 535, s. 1; 1971, c. 1185, s. 14.)

Editor's Note. - Session Laws 1961, c. 535, s. 1, which added this section, renumbered former G.S. 47-32.1 as G.S. 47-32.2.

Session Laws 1961, c. 535, s. 2, provided that any plat filed as part of the papers in a special proceeding in accordance with the provisions of G.S. 47-32.1, in a county to which the provisions of G.S. 47-32 do not apply, between December 31, 1959, and May 30, 1961, was in all respects validated and confirmed.

§ 47-32.2. Violation of G.S. 47-30 or G.S. 47-32 a misdemeanor.

Any person, firm or corporation willfully violating the provisions of G.S. 47-30 or G.S. 47-32 shall be guilty of a Class 3 misdemeanor and upon conviction shall be subject only to a fine of not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00).

The provisions of this section shall not apply to the following counties: Alexander, Alleghany, Ashe, Beaufort, Camden, Clay, Franklin, Granville, Greene, Harnett, Hertford, Hoke, Hyde, Jackson, Jones, Lee, Lincoln, Madison, Martin, Northampton, Pamlico, Pasquotank, Pender, Person, Pitt, Richmond, Robeson, Rockingham, Sampson, Scotland, Surry, Swain, Vance, Warren, Washington, Watauga and Yadkin.

History

(1959, c. 1235, ss. 3, 3A, 3.1; 1961, cc. 7, 111, 164, 252; c. 535, s. 1; cc. 687, 932, 1122; 1963, c. 236; c. 361, s. 3; 1965, c. 139, s. 3; 1977, c. 110; c. 221, s. 3; 1981, c. 138, s. 1; c. 140, s. 1; 1985, c. 32, s. 2; 1993, c. 539, s. 408; 1994, Ex. Sess., c. 24, s. 14(c).)

Editor's Note. - Session Laws 1961, c. 535, s. 1, renumbered this section, which was originally designated G.S. 47-32.1, as G.S. 47-32.2.

Session Laws 1981, c. 138, which deleted Cherokee in the list of counties in the second paragraph, provided in s. 2: "This act is effective upon ratification and applies to maps presented to the Cherokee County Register of Deeds or filed in a special proceeding on or after that date." The act was ratified March 27, 1981.

Session Laws 1981, c. 140, which deleted Caswell in the list of counties in the second paragraph, provided in s. 2: "This act shall become effective July 1, 1981 and shall apply to maps presented to the Caswell County Register of Deeds or filed in a special proceeding on or after that date."

Legal Periodicals. - For article, "Legislative Kudzu and the New Millennium: An Opportunity for Reflection and Reform," see 23 Campbell L. Rev. 157 (2001).

§ 47-33. Certified copies of deeds made by alien property custodian may be registered.

Any copy of a deed made, or purporting to be made, by the United States alien property custodian duly certified pursuant to title twenty-eight, section six hundred sixty-one of United States Code by the department of justice of the United States, with its official seal impressed thereon, when the said certified copy reveals the fact that the execution of the original was acknowledged by the alien property custodian before a notary public of the District of Columbia, and that the official seal of the alien property custodian by recital was affixed or impressed on the original, and further reveals it to have been approved, as to form, by general counsel, and the copy also shows that the original was signed and approved by the acting chief, division of trusts, and was witnessed by two witnesses, shall, when presented to the register of deeds of any county wherein the land described therein purports to be situate, be recorded by the register of deeds of such county without other or further proof of the execution and/or delivery of the original thereof, and the same when so recorded shall be indexed and cross-indexed by the register of deeds as are deeds made by individuals upon the payment of the usual and lawful fees for the registration thereof.

History

(1937, c. 5, s. 1.)

§ 47-34. Certified copies of deeds made by alien property custodian admissible in evidence.

The record of all such recorded copies of such instruments authorized in G.S. 47-33 shall be received in evidence in all the courts of this State and the courts of the United States in the trial of any cause pending therein, the same as though and with like effect as if the original thereof had been probated and recorded as required by the law of North Carolina, and the record in the office of register of deeds of such recorded copy of such an instrument shall be presumptive evidence that the original of said copy was executed and delivered to the vendee, or vendees therein named, and that the original thereof has been lost or unintentionally destroyed without registration, and in the absence of legal proof to the contrary said so registered copy shall be conclusive evidence that the United States alien property custodian conveyed the lands and premises described in said registered copy to the vendees therein named, as said copy reveals, and title to such land shall pass by such recorded instrument.

History

(1937, c. 5, s. 2.)

§ 47-35. Register to fill in deeds on blank forms with lines.

Registers of deeds shall, in registering deeds and other instruments, where printed skeletons or forms are used by the register, fill all spaces left blank in such skeletons or forms by drawing or stamping a line or lines in ink through such blank spaces.

History

(1911, c. 6, s. 1; C.S., s. 3320.)

§ 47-36. Errors in registration corrected on petition to clerk.

Every person who discovers that there is an error in the registration of his grant, conveyance, bill of sale or other instrument of writing, may prefer a petition to the clerk of the superior court of the county in which said writing is registered, in the same manner as is directed for petitioners to correct errors in grants or patents, and if on hearing the same before said clerk it appears that errors have been committed, the clerk shall order the register of the county to correct such errors and make the record conformable to the original. The petitioner must notify his grantor and every person claiming title to or having lands adjoining those mentioned in the petition, 30 days previous to preferring the same. Any person dissatisfied with the judgment may appeal to the superior court as in other cases.

History

(1790, c. 326, ss. 2, 3, 4; R.C., c. 37, s. 28; Code, s. 1266; Rev., s. 1008; C.S., s. 3321.)

Cross References. - As to correction of grants, see G.S. 146-46 et seq.

CASE NOTES

Proceedings Exclusive. - The proceedings provided for by this section are exclusive. Hopper v. Justice, 111 N.C. 418, 16 S.E. 626 (1892).

Grantor Cannot Call upon Grantee to Correct Mistake. - Where, by the mistake or oversight of the makers of a deed, the same is incorrectly written, they have no equity to call upon the grantee to correct the mistake in the books of the register, as they have an ample remedy under this section, and a promise by the grantee to make such correction at his own expense and trouble would be nudum pactum. Oldham v. First Nat'l Bank, 85 N.C. 240 (1881).

Register May Correct Own Mistake. - The order of registration by the clerk is a continuous one, with which the register of deeds may subsequently comply upon inadvertently having omitted to copy the words it contained upon his book. Brown v. Hutchinson, 155 N.C. 205, 71 S.E. 302 (1911).

The original deed may be shown in evidence to correct an omission by the register of deeds of the signature of the justice of the peace before whom the deed was acknowledged. Brown v. Hutchinson, 155 N.C. 205, 71 S.E. 302 (1911).


§ 47-36.1. Notice of errors in recorded instruments of title.

  1. Notwithstanding G.S. 47-14 and G.S. 47-17, notice of a nonmaterial typographical or other minor error in a deed or other instrument recorded with the register of deeds may be given by recording a corrective notice affidavit. For purposes of this section, an error that would affect the respective rights of any party to the instrument is not a nonmaterial typographical or minor error. If a corrective notice affidavit is conspicuously identified as a corrective notice or scrivener's affidavit in its title, the register of deeds shall index the name of the affiant, the names of the original parties in the instrument, the recording information of the instrument for which the corrective notice is being given, and the original parties as they are named in the affidavit. A copy of the previously recorded instrument to which the corrective notice affidavit applies may be attached to the corrective notice affidavit and need not be a certified copy. To the extent the correction is inconsistent with the originally recorded instrument, and only to that extent, notice of the corrective information as provided by the affiant in the corrective notice affidavit is deemed to have been given as of the time the corrective notice affidavit is registered. Nothing in this section invalidates or otherwise alters the legal effect of any instrument of correction authorized by statute in effect on the date the instrument was registered.
  2. Nothing in this section requires that an affidavit be attached to an original or certified copy of a previously recorded instrument that is unchanged but rerecorded. Nothing in this section requires that an affidavit be attached to a previously recorded instrument with a copy of a previously recorded instrument that includes identified corrections or an original execution by a party or parties of the corrected instrument after the original recording, with proof or acknowledgment of their execution of the correction of the instrument.
  3. If the corrective affidavit is solely made by a notary public in order to correct a notarial certificate made by that notary public that was attached to an instrument already recorded with the register of deeds, the notary public shall complete the corrective affidavit identifying the correction and may attach a new acknowledgment completed as of the date the original acknowledgment took place, which shall be deemed attached to the original recording, and the instrument's priority shall remain the date and time originally recorded. The provisions of this subsection shall apply to corrective affidavits filed prior to, on, or after April 1, 2013.

History

(1985 (Reg. Sess., 1986), c. 842, s. 1; 1987, c. 360, s. 1; 2008-194, s. 7(c); 2013-204, s. 1.16; 2017-110, s. 1; 2021-91, s. 12.)

Editor's Note. - Session Laws 2017-110, s. 5, as amended by Session Laws 2021-91, s. 12, made the rewriting of the section heading and the rewriting of subsection (a) by Session Laws 2017-110, s. 1, effective August 31, 2018, and applicable to instruments filed on or after that date.

CASE NOTES

No Continuing Duty to Correct Errors. - There was no merit to plaintiff's allegations that this section creates a continuing duty to correct errors and that defendant's failure to correct errors in deeds constituted a breach of fiduciary duty. Jordan v. Crew, 125 N.C. App. 712, 482 S.E.2d 735, cert. denied, 346 N.C. 279, 487 S.E.2d 548 (1997).

Addition of Grantee. - Addition of a grantee that was not named in the original deed is not the type of error that can be corrected through submission of an affidavit pursuant to G.S. 47-36.1. Therefore, a husband and a wife could not correct the omission of the wife as a grantee by filing an affidavit with the register of deeds. Stone v. Gateway Bank & Trust Co. (In re Stone), - Bankr. - (Bankr. E.D.N.C. Aug. 15, 2011).

Addition of Legal Description of Land. - Addition of a legal description of land is not the correction of an obvious typographical or clerical error; similarly, substituting one legal description for another is not the type of typographical or clerical error that can be corrected by affidavit pursuant to G.S. 47-36.1. Therefore, the Corrective Affidavit was ineffective under North Carolina law and did not cure the incorrect legal description contained in the Deed of Trust. Tadlock v. Pentagon Fed. Credit Union (In re Hill), - Bankr. - (Bankr. W.D.N.C. Apr. 29, 2013).

Cited in Green v. Crane, 96 N.C. App. 654, 386 S.E.2d 757 (1990); Citifinancial Mortg. Co. v. Gray, 187 N.C. App. 82, 652 S.E.2d 321 (2007).


§ 47-36.2. Cure of obvious description errors in recorded instruments.

  1. The following definitions apply to this section, unless the context requires a different meaning:
    1. Authorized attorney. - An individual licensed to practice law under Chapter 84 of the General Statutes, who is one of the following:
      1. The attorney who drafted the instrument containing the obvious description error to be corrected.
      2. Any attorney for a party to the transaction for which the instrument containing the obvious description error was recorded, including, for example, but not limited to, the attorney for (i) the grantor or grantee in a deed; (ii) the mortgagor or mortgagee in a mortgage; (iii) the grantor or trustor in a deed of trust; (iv) the trustee or duly appointed substitute trustee in a deed of trust; (v) the beneficiary of record in a deed of trust or the assignee of record of the beneficiary's interest; (vi) the assignor or assignee in an assignment of leases, rents, or profits; or (vii) any party to an instrument affecting title to real property.
      3. An attorney retained or authorized by either a title insurance company or title insurance agent that either (i) has issued a policy of title insurance covering the subject property in the transaction in which the error occurred or in any subsequent transaction or (ii) proposes to issue a policy of title insurance in reliance on a curative affidavit recorded or to be recorded in accordance with the provisions of this section.
    2. Curative affidavit. - An affidavit executed by an authorized attorney to correct an obvious description error.
    3. Notice of intent. - A notice issued by an authorized attorney of the authorized attorney's intent to sign and record a curative affidavit.
    4. Obvious description error. - An error in the legal description of real property that is contained in an instrument affecting title to real property recorded in the office of the register of deeds in the county in which the real property or any part or parts thereof is located that is evidenced by any of the following:
      1. One or more of the following, as stated in the instrument, are inconsistent in that one or more identify the property incorrectly, and the error is made apparent by reference to other information contained in the instrument, contained in an attachment to the instrument, or contained in another instrument in the chain of title for the subject parcel, including a recorded plat:
        1. The legal description of the property.
        2. The physical address of the property.
        3. The tax map identification number of the property.
        4. A plat reference.
        5. A prior deed reference.
      2. The legal description of the real property in the instrument contains one or more errors transcribing courses and distances, including, for example, the omission of one or more lines of courses and distances, the omission of angles and compass directions, or the reversal of courses.
      3. The instrument contains an error in a lot or unit number or designation, and the lot or unit described is not owned by the grantor, trustor, mortgagor, or assignor at the time the instrument is executed.
      4. The instrument omits an exhibit, attachment, or other descriptive information intended to supply the legal description of the subject property, and the correct legal description may be determined by reference to other information contained in the instrument, including, but not limited to, one or more of the items described in sub-subdivision a. of this subdivision.
    5. Recorded plat. - A plat that has been prepared by a professional land surveyor licensed pursuant to Chapter 89C of the General Statutes and has been recorded with the register of deeds in the county where the property is situated.
    6. Recording data. - The book and page number or document number that indicates where an instrument is recorded in the office of the register of deeds.
    7. Title insurance agent. - A person or entity licensed by the Commissioner of Insurance and contractually authorized by one or more title insurance companies to issue commitments and policies on behalf of said title insurance company and that has issued or proposes to issue a policy of title insurance covering real property described in a recorded instrument needing correction.
    8. Title insurance company. - A company certified pursuant to Article 26 of Chapter 58 of the General Statutes that has issued or proposes to issue a policy of title insurance covering real property described in a recorded instrument needing correction.
  2. Notwithstanding G.S. 47-14 and G.S. 47-17, obvious description errors in a recorded instrument affecting title to real property may be cured by recording a curative affidavit with the register of deeds in every county where the real property is situated.
  3. Prior to recording a curative affidavit as described in subsection (b) of this section, the authorized attorney seeking to record the affidavit shall serve a notice of intent and a copy of the unsigned proposed curative affidavit on the persons identified in this subsection. Service of the notice of intent and copy of the unsigned proposed curative affidavit shall be made in any manner prescribed for the service of a summons in accordance with Rule 4(j) or Rule 4(j5) of the North Carolina Rules of Civil Procedure. The persons entitled to service of the notice of intent and a copy of the unsigned proposed curative affidavit pursuant to this subsection are as follows:
    1. All parties to the instrument that is the subject of the curative affidavit. In the case of a deed of trust, the parties to the instrument shall include the grantor or trustor named in the deed of trust, the beneficiary of record, and any assignee of the beneficiary known to the party filing the curative affidavit or its authorized attorney, but need not include the trustee named in the deed of trust or any substitute trustee.
    2. Any current record mortgagee, record beneficiary, record assignee, or record secured party in any mortgage, deed of trust, assignment of leases, rents or profits, UCC fixture filing, or other recorded instrument of title that may be adversely affected by the recording of the curative affidavit. For the purposes of this subdivision, "instruments of title" means any instrument, recorded after the date of recordation of the instrument that is the subject of the curative affidavit, that affects title or constitutes the chain of title to real property, including, but not limited to, all deeds, wills, estate documents evidencing transfer of title, plats, surveys, easements, rights-of-way, outstanding mortgages and deeds of trust, judicial orders or decrees, and documents evidencing intestate succession.
    3. The current record owner of the real property.
    4. The attorney who prepared the instrument that is the subject of the curative affidavit, if known.
    5. Any title insurance company, if applicable and known, and title insurance agent, if applicable and known, that (i) issued a policy of title insurance covering the subject property in the transaction in which the error occurred or in any subsequent transaction or (ii) proposes to issue a policy of title insurance in reliance on the proposed curative affidavit.
    6. The current record owners of all adjoining properties that may be adversely affected by the recording of the curative affidavit, the current record holders of any mineral or timber rights that may be adversely affected by the recording of the curative affidavit, and the record holders of any easement rights that may be adversely affected by the recording of the curative affidavit.
  4. Each person served with the notice of intent and a copy of the unsigned proposed curative affidavit described in subsection (c) of this section that wishes to object to the recordation of the proposed curative affidavit or dispute the facts recited in the proposed curative affidavit must do so in a writing sent in any manner provided for under subsection (e) of this section to the authorized attorney within 30 days after the service of the documents upon that person. The authorized attorney may sign and record the proposed curative affidavit at any time after more than 45 days have elapsed since the last person to be served was served with the notice of intent and a copy of the unsigned proposed curative affidavit. However, the authorized attorney may not record the proposed curative affidavit if, at any time before recording the proposed curative affidavit, the authorized attorney receives a written objection to the recordation of the proposed curative affidavit or a written statement disputing the facts recited in the proposed curative affidavit from any person served with the notice of intent and a copy of the unsigned proposed curative affidavit.
  5. In complying with any requirement for objecting to the recordation of the proposed curative affidavit or disputing the facts recited in the proposed curative affidavit pursuant to this section, the objection or document disputing the facts must be addressed to the authorized attorney and shall be delivered by at least one of the following methods:
    1. Delivering a copy to the authorized attorney by handing it to the authorized attorney, or by leaving it at the authorized attorney's office with a partner or employee of the authorized attorney.
    2. Mailing a copy to the authorized attorney's mailing address provided in the notice of intent.
    3. Sending a copy by facsimile to the authorized attorney's facsimile number provided in the notice of intent, as evidenced by a facsimile receipt confirmation.
    4. Electronic mail addressed to the authorized attorney's e-mail address provided in the notice of intent.
    5. Depositing a copy prepaid with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) addressed to the authorized attorney's mailing address provided in the notice of intent.
  6. An affidavit is sufficient as a curative affidavit if it does all of the following:
    1. Contains a statement that the curative affidavit should be indexed as a "subsequent instrument" pursuant to G.S. 161-14.1.
    2. Contains a statement that the curative affidavit is recorded pursuant to this section to correct an obvious description error contained in a previously recorded instrument.
    3. Contains a statement that the affiant is an attorney licensed to practice law in North Carolina and is an authorized attorney pursuant to subdivision (1) of subsection (a) of this section.
    4. Identifies each instrument subject to the curative affidavit by stating the title of the instrument, the parties to the instrument, and the recording data for the instrument.
    5. Identifies the obvious description error contained in each instrument subject to the curative affidavit.
    6. Corrects the obvious description error by stating the correct property description.
    7. Contains a statement that the affiant served a copy of the notice of intent required by subsection (c) of this section and a copy of the unsigned proposed curative affidavit on all persons entitled to notice pursuant to subsection (c) of this section and that service on each such person was properly effected in a manner prescribed for the service of a summons in accordance with Rule 4(j) or Rule 4(j5) of the North Carolina Rules of Civil Procedure.
    8. Contains a statement that more  than 45 days have elapsed since the last person to be served was served, and that before signing and recording the curative affidavit, the affiant did not receive from any person so served any written objection to the recordation of the curative affidavit or any written statement disputing the facts recited in the curative affidavit.
    9. Provides the name, telephone number, e-mail address (if available), facsimile number (if available), and mailing address of the affiant.
    10. Is signed and sworn to or affirmed by the authorized attorney as affiant before a notary public, with an appropriate jurat completed by the notary public that conforms to the requirements of Chapter 10B of the General Statutes.
  7. A curative affidavit recorded pursuant to this section in the office of the register of deeds in the county where the real property is located shall operate as a correction of the instrument being corrected that relates back to, and is effective as of, the date the instrument being corrected was originally recorded in the office of the register of deeds, with the same effect as if the description of the property was correct when the instrument was first recorded, and all parties to the instrument being corrected shall be bound by the terms contained in the recorded curative affidavit and the instrument being corrected.
  8. Upon payment of the appropriate recordation fee, the register of deeds shall accept a curative affidavit for recording unless the curative affidavit (i) is submitted by a method or in a medium not authorized for registration by the register of deeds under applicable law, (ii) is not signed by the affiant and sworn to or affirmed as required by law for an affidavit or affirmation, or (iii) lacks a proper jurat. A copy of the previously recorded instrument to which the curative affidavit applies may be attached to or recorded with the curative affidavit and need not be a certified copy. The register of deeds shall not be required to verify or make inquiry concerning (i) the truth of the matters stated in any curative affidavit or (ii) the authority of the person executing any curative affidavit to do so. The register of deeds shall index the curative affidavit in the name of the affiant and in the names of the various parties, other than a trustee or substitute trustee named in a deed of trust, to each instrument being corrected as both grantees and grantors, irrespective of their designation in the instrument being corrected. The costs associated with the recording of a curative affidavit pursuant to this section shall be paid by the party submitting the affidavit to the register of deeds.
  9. A curative affidavit recorded in compliance with this section shall be prima facie evidence of the facts stated therein. Any person who wrongfully or erroneously records a curative affidavit is liable for actual damages sustained by any party as a result of the recordation, including reasonable attorneys' fees and costs.
  10. The remedies prescribed by this section are not exclusive and do not abrogate any rights or remedies otherwise available under the laws of this State, including any rights or remedies under G.S. 47-36.1.
  11. No particular phrasing is required for a curative affidavit. A curative affidavit in substantially the following form, when properly completed, is sufficient to satisfy the requirements of subsection (f) of this section:
  12. The form of the notice of intent to be given as described in subsection (c) of this section shall be substantially as follows (including capitalization and bold typeface as shown):
  13. Nothing in this section requires that a curative affidavit be attached to an original or certified copy of a previously recorded instrument that is unchanged but rerecorded. Nothing in this section requires that a curative affidavit be attached to a copy of a previously recorded instrument that includes identified corrections or an original execution by a party or parties of the corrected instrument after the original recording with proof or acknowledgment of their execution of the correction of the instrument.
  14. The period prescribed for the commencement of an action contesting the validity or efficacy of a curative affidavit recorded under this statute shall be one year from the date of recordation of the curative affidavit. This subsection does not apply to an action for damages sustained by any party as a result of the wrongful or erroneous recordation of a curative affidavit as provided in subsection (i) of this section.

The term "obvious description error" does not include and shall not apply to (i) missing or improper signatures or acknowledgements; (ii) any designation of the type of ownership interest or right of survivorship; or (iii) any error in the legal description that operates to convey any interest in real property that the grantor, trustor, mortgagor, or assignor owned at the time of conveyance but did not intend to convey.

"Curative Affidavit

This curative affidavit should be indexed as a "subsequent instrument" pursuant to G.S. 161-14.1. I, __________________, certify as follows: 1. This curative affidavit is recorded pursuant to G.S. 47-36.2 to correct an obvious description error contained in a previously recorded instrument. 2. I am an attorney licensed to practice law in North Carolina. I am an "authorized attorney" as defined in G.S. 47-36.2(a)(1). 3. The instrument or instruments containing an obvious description error requiring correction are identified as follows: Insert here the following information regarding each instrument to be corrected: the title of the instrument, the parties to the instrument, and the recording data for the instrument. 4. The obvious description error contained in the instrument(s) to be corrected is identified or described as follows: Insert here the erroneous description that requires correction. 5. The erroneous property description is corrected to read as follows: Insert here the correct description of the real property. 6. I have served a copy of a notice of my intent to sign and record this curative affidavit and a copy of this curative affidavit, unsigned, on all persons entitled to notice pursuant to G.S. 47-36.2(c). Service on each such person was properly effected in a manner prescribed for the service of a summons in accordance with Rule 4(j) or Rule 4(j5) of the North Carolina Rules of Civil Procedure, and more than 45 days have elapsed since the last person to be served was served. By signing and recording this affidavit I certify that I did not receive from any person so served any written objection to the recordation of this curative affidavit or any written statement disputing the facts recited in this curative affidavit. 7. My contact information is as follows: Insert here the affiant's name, telephone number, email address (if available), facsimile number (if available), and mailing address. Date: __________________ ______________________________ Signature of Affiant COUNTY OF __________________, STATE OF __________________ The foregoing curative affidavit was sworn to or affirmed and subscribed before me this day by __________________. Date: __________________ _______________________________________________________________ Signature of Notary Public Official Seal _______________________________________________, Notary Public Print or Type Notary's Name My commission expires: ______________________________________"

"NOTICE OF INTENT TO CORRECT AN OBVIOUS DESCRIPTION ERROR

This is an important legal document that requires your immediate attention. Your property rights may be affected, and you may need to respond to this notice in writing.

I am an attorney licensed to practice law in North Carolina. My contact information is as follows:

Insert the name, telephone number, email address (if available), facsimile

number (if available), and mailing address of the authorized

attorney issuing the notice.

I have discovered or have been advised of an error in the description of real property contained in one or more instruments recorded as part of a real estate-related transaction. A copy of a proposed Curative Affidavit accompanies this notice. The proposed Curative Affidavit identifies the previously recorded instrument or instruments that contain the description errors that I plan to correct, the description error or errors that require correction, and the correct description of the real property. If I sign and record the proposed Curative Affidavit, it will have the legal effect of correcting the erroneous property description in the listed instrument or instruments that contain the description errors. Real property you own may be affected if I correct the erroneous description of the real property in the instrument or instruments identified in the proposed Curative Affidavit. You should consult with your attorney and your title insurance company, if known, promptly to determine whether and the extent to which my correction of the legal description in the instrument or instruments that need to be corrected will impact your property or property rights. IF YOU WISH TO OBJECT TO MY SIGNING AND RECORDING THE PROPOSED CURATIVE AFFIDAVIT OR DISPUTE THE FACTS RECITED IN THE PROPOSED CURATIVE AFFIDAVIT, YOU MUST DO SO IN A WRITING SENT OR DELIVERED TO ME WITHIN 30 DAYS AFTER THE DATE YOU WERE SERVED WITH THIS NOTICE AND THE PROPOSED CURATIVE AFFIDAVIT. Your writing must be sent or delivered to me by one of the following methods: (1) Delivering a copy by handing it to me or by leaving it at my office with a partner or employee of mine. (2) Mailing a copy to me at the mailing address provided in this notice of intent. (3) Sending a copy by facsimile to my facsimile number, if provided in this notice of intent, as evidenced by a facsimile receipt confirmation. (4) Electronic mail sent to my e-mail address, if provided in this notice of intent. (5) Depositing a copy prepaid with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) addressed to the mailing address provided in this notice of intent. I am not permitted to sign or record the Curative Affidavit if, at any time before I actually sign and record it, I receive a written objection to my signing and recording the Curative Affidavit or a written statement disputing the facts contained in the Curative Affidavit from any person served with this notice and a copy of the unsigned proposed Curative Affidavit. However, assuming I do not receive any such objection or statement disputing the facts, Section 47-36.2 of the North Carolina General Statutes permits me to sign and record the Curative Affidavit at any time after more than 45 days have elapsed since the last person to be served was served with this notice and a copy of the unsigned proposed Curative Affidavit, and I intend to do so. If you object to my signing and recording the Curative Affidavit or dispute the facts recited in the proposed Curative Affidavit, you need to send or deliver your written objection or written statement disputing the facts recited in the proposed Curative Affidavit to me promptly using one of the methods described above. While I encourage you to call me if you have questions, your telephone call will not be sufficient - you must write to me if you dispute the facts recited in the proposed Curative Affidavit or object to my signing and recording the Curative Affidavit. Date: __________________ _______________________________________________________________ Signature of authorized attorney"

History

(2017-110, s. 2; 2021-91, s. 12.)

Editor's Note. - Session Laws 2017-110, s. 5, as amended by Session Laws 2021-91, s. 12, made this section effective August 31, 2018, and applicable to instruments filed on or after that date.

ARTICLE 3. Forms of Acknowledgment, Probate and Order of Registration.

Sec.

§ 47-37: Repealed by Session Laws 2005-123, s. 3, effective October 1, 2005.

§ 47-37.1. Other forms of proof.

  1. The proof and acknowledgment forms set forth in this Article are not exclusive. Without regard to whether an instrument presented for registration was signed by an individual acting in his or her own right or by an individual acting in a representative or fiduciary capacity, a notarial certificate that complies with the provisions of Part 6 of Article 1 or Part 5 of Article 2 of Chapter 10B of the General Statutes is deemed a sufficient form of probate or acknowledgment for purposes of this Chapter. Use of a notarial certificate that satisfies the requirements of Part 6 of Article 1 or Part 5 of Article 2 of Chapter 10B of the General Statutes is not a ground for a register of deeds to refuse to accept a record for registration.
  2. When an instrument presented for registration purports to be signed by an individual in a representative or fiduciary capacity, the acknowledgment or proof of that individual's signature may do any of the following:
    1. State that the individual signed the instrument in a representative or fiduciary capacity.
    2. State that the individual who signed the instrument in a representative or fiduciary capacity had authority to do so.
    3. Identify the represented person or the fiduciary capacity.
  3. This section relates only to the form of proof or acknowledgment. The capacity and authority of the individual who signs an instrument presented for registration are governed by other provisions of law.
  4. Repealed by Session Laws 2021-91, s. 7, effective October 1, 2021.

History

(2005-391, s. 9; 2006-59, s. 27; 2021-91, s. 7.)

Effect of Amendments. - Session Laws 2006-59, s. 27, effective October 1, 2006, and except as otherwise set forth in this act, applicable to notarial acts performed on or after that date, added "or fiduciary" throughout the section preceding "capacity"; deleted "(G.S. 10B-25 et. seq.)" following "Article 1 of Chapter 10B" in the second sentence of subsection (a); substituted "may" for "may, but is not required to" at the end of subsection (b); substituted "the fiduciary capacity" for "entity" in subdivision (b)(3); and added subsections (c) and (d).

Session Laws 2021-91, s. 7, effective October 1, 2021, rewrote subsection (a); inserted "do any of the following” in subsection (b); deleted "due” preceding "authority” in subdivision (b)(2); and repealed subsection (d), which read: "This section applies to proofs and acknowledgments made before, on, or after December 1, 2005.”

CASE NOTES

Deed of Trust Valid. - Where the notary's acknowledgment of a debtor's execution left blank the space where the name of the debtor, as the person executing the deed of trust, should have been written, the deed of trust was not invalid under North Carolina's Notary Public Act by reason of the omission in the notarial acknowledgment, because North Carolina courts would not find a properly executed and recorded deed of trust invalid based solely on the omission of the grantor's name from the notary's otherwise compliant acknowledgment. SunTrust Bank v. Abdalqader (In re Abdalqader), - Bankr. - (Bankr. E.D.N.C. Sept. 23, 2013).

§ 47-38. Acknowledgment by grantor.

When properly completed, a certificate in substantially the following form may be used and shall be sufficient under the law of this State to satisfy the requirements for a notarial certificate for one or more individuals, acting in his, her, or their own right or, whether or not so stated in the notarial certificate, in a representative or fiduciary capacity, including one or more individuals acting on behalf of an unincorporated association, as an officer or director of a corporation, as a partner of a general or limited partnership, as a manager or member of a limited liability company, as the trustee of a trust, as the personal representative of a decedent's estate, as an agent or attorney in fact for another, as the guardian of a minor or an incompetent, or as a public official. The authorization of the form in this section does not preclude the use of other forms. This section applies to notarial certificates made before, on, and after December 1, 2005.

North Carolina, ____________ County. I (here give the name of the official and his official title), do hereby certify that (here give the name of the individual whose acknowledgment is being taken) personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and (where an official seal is required by law) official seal this the ____________ day of ________ (year). (Official seal.) ______________________________________________________________________ (Signature of officer.) (Title)

History

(Rev., s. 1002; C.S., s. 3323; 1945, c. 73, s. 13; 1977, c. 375, s. 12; 2006-59, s. 28.)

Effect of Amendments. - Session Laws 2006-59, s. 28, effective October 1, 2006, and except as otherwise set forth in this act, applicable to notarial acts performed on or after that date, rewrote the section.

CASE NOTES

Certificates of acknowledgment will be liberally construed and will be upheld if in substantial compliance with the statute. Freeman v. Morrison, 214 N.C. 240, 199 S.E. 12 (1938).

"Acknowledgment" describes the act of personal appearance before a proper officer and there stating to him the fact of the execution of the instrument as a voluntary act. Freeman v. Morrison, 214 N.C. 240, 199 S.E. 12 (1938).

An acknowledgment taken over the telephone does not meet the statutory requirements. Southern State Bank v. Summer, 187 N.C. 762, 122 S.E. 848 (1924).

Name of Officer. - It is not necessary to the validity of the probate of a deed that the signature of the name of the officer before whom it was acknowledged should be recorded at the end, when it appears from the certificate as recorded and from the clerk's adjudication thereon that his name appeared in the first line, and that in fact he properly took the acknowledgment. Brown v. Hutchinson, 155 N.C. 205, 71 S.E. 302 (1911).

Acknowledgment in Compliance with Section. - An acknowledgment to a will, upon which the name and title of the official taking the acknowledgment and the name of the maker as well as the witness was provided, their personal appearance was ascribed by the phrase "sworn to . . . before me", the date and year of the acknowledgment were provided, the notary's signature and her seal were affixed thereto, and the phrase "sworn to and subscribed before me" appeared prominently below the signatures of the maker and witness, substantially conformed to the statutory provisions of this section. In re Hess, 104 N.C. App. 75, 407 S.E.2d 594 (1991).

Cited in McClure v. Crow, 196 N.C. 657, 146 S.E. 713 (1929).


§ 47-39: Repealed by Session Laws 1977, c. 375, s. 16.

§ 47-40. Husband's acknowledgment and wife's acknowledgment before the same officer.

Where the instrument is acknowledged by both husband and wife or by other grantor before the same officer the form of acknowledgment shall be in substance as follows:

I (here give name of official and his official title), do hereby certify that (here give names of the grantors whose acknowledgment is being taken) personally appeared before me this day and acknowledged the due execution of the foregoing (or annexed) instrument.

History

(1899, c. 235, s. 8; 1901, c. 299; Rev., s. 1004; C.S., s. 3325; 1945, c. 73, s. 15.)

Cross References. - As to when seal of officer is necessary to probate, see G.S. 47-5.

§ 47-41: Repealed by Session Laws 1991, c. 647, s. 3.

Cross References. - As to corporate conveyances, see now G.S. 47-41.01, 47-41.02.

Editor's Note. - Session Laws, 1991, c. 647, s. 3, which repealed this section, provides: "The provision of G.S. 47-41 shall continue to apply to all instruments executed before the effective date [October 1, 1991] of this section of this act."

§ 47-41.01. Corporate conveyances.

  1. The following forms of probate for deeds and other conveyances executed by a corporation shall be deemed sufficient, but shall not exclude other forms of probate which would be deemed sufficient in law.
  2. If the deed or other instrument is executed by an official of the corporation, signing the name of the corporation by him in his official capacity, or any other agent authorized by resolution pursuant to G.S. 47-18.3(e), is sealed with its common or corporate seal, and is attested by another person who is an attesting official of the corporation, the following form of acknowledgment is sufficient:
  3. If the deed or other instrument is executed by an official of the corporation, signing the name of the corporation in his official capacity, or any other agent authorized by resolution pursuant to G.S. 47-18.3(e) the following form of acknowledgment is sufficient:
  4. For purposes of this section:
    1. The words "a corporation" following the blank for the name of the corporation may be omitted when the name of the corporation ends with the word "Corporation" or "Incorporated."
    2. The words "My commission expires" and the date of expiration of the notary public's commission may be omitted except when a notary public is the officer taking the acknowledgment. The fact that these words and this date may be located in a position on the form different from the position indicated in this subsection does not by itself invalidate the form.
    3. The phrase "and official seal" and the seal itself may be omitted when the officer taking the acknowledgment has no seal or when such officer is the clerk, assistant clerk, or deputy clerk of the superior court of the county in which the deed or other instrument acknowledged is to be registered.
    4. The official of the corporation is the corporation's chairman, president, chief executive officer, a vice-president or an assistant vice-president, treasurer, or chief financial officer, or any other agent authorized by resolution pursuant to G.S. 47-18.3(e).
    5. The attesting official of the corporation is the corporation's secretary or assistant secretary, trust officer, assistant trust officer, associate trust officer, or in the case of a bank, its secretary, assistant secretary, cashier or assistant cashier.
    6. The phrase "sealed with its corporate seal" may be omitted if the seal of the corporation has not been affixed to the instrument being acknowledged.
  5. The forms of probate set forth in this section may be modified and adopted for use in the probate of deeds and other conveyances and instruments executed by entities other than corporations, including general and limited partnerships, limited liability companies, trusts, and unincorporated associations. This subsection applies to notarial certificates and forms of probate made before, on, or after December 1, 2005.

__________________________________________________ (State and county, or other description of place where acknowledgment is taken) I, ________________________, _______________________________________, (Name of officer taking (Official title of officer acknowledgment) taking acknowledgment) certify that ________________________________ personally came before (Name of attesting official) me this day and acknowledged that he (or she) is _____________________________ (Title of attesting official) of ________________________, a corporation, and that by authority duly (Name of corporation) given and as the act of the corporation, the foregoing instrument was signed in its name by its __________________, (Title of official) sealed with its corporate seal, and attested by himself (or herself) as its ____________________________ (Title of attesting official) Witness my hand and official seal, this the ____________ day of ____________, (Month) ____________ (Year) __________________________________________________ (Signature of officer taking acknowledgment) (Official seal, if officer taking acknowledgment has one) My commission expires ________________________________________ (Date of expiration of commission as notary public)

(State and county, or other description of place where acknowledgment is taken) I, ________________________ ________________________________________, (Name of officer taking (Official title of officer acknowledgment) taking acknowledgment) certify that ________________________ personally came before (Name of official) me this day and acknowledged that he (or she) is _____________________________ (Title of official) of ________________________, a corporation, and that he/she, as ______________, being authorized to do so, executed the (Title of official) foregoing on behalf of the corporation. Witness my hand and official seal, this the ________ day of ____________, (Month) ____________ (Year) ______________________________________________ (Signature of officer taking acknowledgment) (Official seal, if officer taking acknowledgment has one) My commission expires ________________________________________ (Date of expiration of commission as notary public)

History

(1991, c. 647, s. 4; 1995 (Reg. Sess., 1996), c. 742, s. 18; 1999-221, s. 1; 2006-59, s. 29.)

Cross References. - As to probate of deeds by examination of subscribing witness in certain cases where corporation has ceased to exist, see G.S. 47-16.

As to validation of certain corporate acknowledgments, see G.S. 47-70 et seq.

Effect of Amendments. - Session Laws 2006-59, s. 29, effective October 1, 2006, and except as otherwise set forth in this act, applicable to notarial acts performed on or after that date, added subsection (e).

CASE NOTES

Editor's Note. - The cases below were decided under former G.S. 47-41 and provisions from which it was derived.

Power of Directors to Mortgage Corporate Property. - This section appears to recognize inferentially the power of a board of directors to mortgage the corporate property. Wall v. Rothrock, 171 N.C. 388, 88 S.E. 633 (1916).

Reference to "Other Forms of Probate". - This section, in providing that it shall not exclude "other forms of probate which would be deemed sufficient in law," can only refer to forms of probate deemed sufficient by the common law, under which a certificate showing that the officer whose duty it was to affix the seal acknowledged that he did so is sufficient. National Bank v. Hill, 226 F. 102 (E.D.N.C. 1915).

Substantial Compliance Sufficient. - The probate of a deed of a corporation is sufficient if it substantially shows the facts required by this section, which expressly provides that the form prescribed "shall not exclude other forms of probate." Board of Comm'rs v. A.V. Wills & Sons, 236 F. 362 (E.D.N.C. 1916).

Where the probate of a corporation's deed for land is in substantial compliance with this section, parol evidence is competent, in an action attacking its validity, that tends to corroborate the recitations of the probate, and to further show that the president and secretary had proper authority to act therein on its behalf. Bailey v. Hassell, 184 N.C. 450, 115 S.E. 166 (1922).

While it is the better course to follow the suggested methods of this section, in the execution of a corporate chattel mortgage, there being no general law or charter provision to the contrary, it is not necessary to its validity that the witness to the probate certifies in its probate that he saw the presiding member sign it, when otherwise it complies with the requirements of the general law. Merchants' & Farmers' Bank v. Pearson, 186 N.C. 609, 120 S.E. 210 (1923).

Corporate Seal. - A corporate seal is a necessary prerequisite to a valid conveyance of real estate by a corporation. Investors Corp. v. Field Fin. Corp., 5 N.C. App. 156, 167 S.E.2d 852 (1969).

This section sets out the forms of probate for a deed and other conveyances executed by a corporation and reveals the necessity of having a corporate seal. Investors Corp. v. Field Fin. Corp., 5 N.C. App. 156, 167 S.E.2d 852 (1969).

It is not necessary to the valid probate of a deed made by a corporation that it literally follow the statutory printed forms of this section, if it substantially complies with the law regulating the probate of a conveyance of land; and where the probate shows the acknowledgment of the president and secretary, each acting in his official capacity, or as representing the corporation, who is designated as "the grantor, for the purpose therein expressed," it is sufficient; and the finding of the jury, upon evidence, that their officials were properly authorized to act for and in behalf of the corporation, and had so acted, and had used the word "seal," enclosed in scroll, that had been lawfully adopted for the purpose, makes it a valid execution and probate of the deed as an act of the corporation itself; and were it otherwise, the defects as to the "seal" would seem to be cured under the provisions of G.S. 47-72, and as to signatures of the officials by G.S. 47-73. Bailey v. Hassell, 184 N.C. 450, 115 S.E. 166 (1922).

Defective Conveyances. - When it does not appear from the probate of a corporation's deed to lands that the seal affixed is the common seal of the corporation, or that it was affixed by the proper officers of the corporation, it is not a substantial compliance with this section, and the deed is ineffectual to pass title to the lands as against creditors and purchasers. Withrell v. Murphy, 154 N.C. 82, 69 S.E. 748 (1910).

A corporation's deed is defective which fails to show by its certificate, read in connection with the deed, that the corporate officials acknowledged the instrument as the act and deed of the corporation, or that the official executing the deed in behalf of and under authority from the corporation acknowledged it to be "his" act and deed, as such. Withrell v. Murphy, 154 N.C. 82, 69 S.E. 748 (1910).

In Withrell v. Murphy, 154 N.C. 82, 69 S.E. 748 (1910), where the corporate seal had been affixed to a deed of conveyance, but the acknowledgment by the corporate officers failed to acknowledge that the seal so affixed was the seal of the corporation, the Supreme Court held that this conveyance was, therefore, ineffectual as to the corporation's auditors. Investors Corp. v. Field Fin. Corp., 5 N.C. App. 156, 167 S.E.2d 852 (1969).

Acknowledgement by Individuals Instead of Officers. - The probate of a deed of a corporation by the acknowledgment of individuals instead of by its officers is fatally defective, and its registration, in consequence, is a nullity. Bernhardt v. Brown, 122 N.C. 587, 29 S.E. 884 (1898).


§ 47-41.02. Other forms of probate for corporate conveyances.

  1. The following forms of probate for deeds and other conveyances executed by a corporation shall also be deemed sufficient but shall not exclude other forms of probate which would be deemed sufficient in law.
  2. If the instrument is executed by the president or presiding member or trustee and two other members of the corporation, and sealed with the common seal, the following form shall be sufficient:
  3. All deeds and other conveyances executed on or before April 12, 1974, by the president, any vice-president, assistant vice-president, manager, comptroller, treasurer, assistant treasurer, trust officer or assistant trust officer, or chairman or vice-chairman of a corporation are hereby validated to the extent that such deeds or other conveyances were otherwise properly executed, probated, and recorded.
  4. The forms of probate set forth in this section may be modified and adopted for use in the probate of deeds and other conveyances and instruments executed by entities other than corporations, including general and limited partnership, limited liability companies, trusts, and unincorporated associations. This subsection applies to notarial certificates and forms of probate made before, on, or after December 1, 2005.

North Carolina, ______________ County.

This ________ day of ________ A.D. ________, personally came before me (here give the name and official title of the officer who signs this certificate) A.B. (here give the name of the subscribing witness), who, being by me duly sworn, says that he knows the common seal of the (here give the name of the corporation), and is also acquainted with C.D., who is the president (or presiding member or trustee), and also with E.F. and G.H., two other members of said corporation; and that he, the said A.B., saw the said president (or presiding member or trustee) and the two said other members sign the said instrument, and saw the said president (or presiding member or trustee) affix the said common seal of said corporation thereto, and that he, the said subscribing witness, signed his name as such subscribing witness thereto in their presence. Witness my hand and (when an official seal is required by law) official seal, this ________ day of ________ (year).

(Official seal.) _______________________________________________________________________ (Signature of officer.) (c) If the deed or other instrument is executed by the president, presiding member or trustee of the corporation, and sealed with its common seal, and attested by its secretary or assistant secretary, either of the following forms of proof and certificate thereof shall be deemed sufficient: North Carolina, ______________ County. This ________ day of ________, A.D. ________, personally came before me (here give name and official title of the officer who signs the certificate) A.B. (here give the name of the attesting secretary or assistant secretary), who, being by me duly sworn, says that he knows the common seal of (here give the name of the corporation), and is acquainted with C.D., who is the president of said corporation, and that he, the said A.B., is the secretary (or assistant secretary) of the said corporation, and saw the said president sign the foregoing (or annexed) instrument, and saw the said common seal of said corporation affixed to said instrument by said president (or that he, the said A.B., secretary or assistant secretary as aforesaid, affixed said seal to said instrument), and that he, the said A.B., signed his name in attestation of the execution of said instrument in the presence of said president of said corporation. Witness my hand and (when an official seal is required by law) official seal, this the ________ day of ________ (year). (Official seal.) _______________________________________________________________________ (Signature of officer.) North Carolina, ______________ County. This is to certify that on the ________ day of ________, ________, before me personally came ________ (president, vice-president, secretary or assistant secretary, as the case may be), with whom I am personally acquainted, who, being by me duly sworn, says that ________ is the president (or vice-president), and ________ is the secretary (or assistant secretary) of the ________, the corporation described in and which executed the foregoing instrument; that he knows the common seal of said corporation; that the seal affixed to the foregoing instrument is said common seal, and the name of the corporation was subscribed thereto by the said president (or vice-president), and that said president (or vice-president) and secretary (or assistant secretary) subscribed their names thereto, and said common seal was affixed, all by order of the board of directors of said corporation, and that the said instrument is the act and deed of said corporation. Witness my hand and (when an official seal is required by law) official seal, this the ________ day of ________ (year). (Official seal.) _______________________________________________________________________ (Signature of officer.) (d) If the deed or other instrument is executed by the signature of the president, vice-president, presiding member or trustee of the corporation, and sealed with its common seal and attested by its secretary or assistant secretary, the following form of proof and certificate thereof shall be deemed sufficient: This ________ day of ________, A.D. ________, personally came before me (here give name and official title of officer who signs the certificate) A.B., who, being by me duly sworn, says that he is president (vice-president, presiding member or trustee) of the ________ Company, and that the seal affixed to the foregoing (or annexed) instrument in writing is the corporate seal of said company, and that said writing was signed and sealed by him in behalf of said corporation by its authority duly given. And the said A.B. acknowledged the said writing to be the act and deed of said corporation. (Official seal.) _______________________________________________________________________ (Signature of officer.) (e) All corporate conveyances probated and recorded prior to February 14, 1939, wherein the same was attested by the assistant secretary, instead of the secretary, and otherwise regular, are hereby validated as if attested by the secretary of the corporation. (f) The following forms of probate for contracts in writing for the purchase of personal property by corporations providing for a lien on the property or the retention of a title thereto by the vendor as security for the purchase price or any part thereof, or chattel mortgages, chattel deeds of trust, and conditional sales of personal property executed by a corporation shall be deemed sufficient but shall not exclude other forms of probate which would be deemed sufficient in law: North Carolina __________________ County I, __________________, do hereby certify that ____________________________ (Name of president, secretary or treasurer) personally came before me this day and acknowledged that he is ________________________ of ________________________ and acknowledged, (President, secretary (Name of corporation) or treasurer) on behalf of _________________________________________, the grantor, the due (Name of corporation) execution of the foregoing instrument. Witness my hand and official seal, this ________ day of ________, ________ (Official seal) _________________________________________________________________ (Title of officer) ______________________________________________________________________________ (Name of state) ______________________________________________________________________________ (County) I, _______________________________________________________________________ (Name of officer taking proof) (Official title of officer taking proof) of ________________________, certify that (County) (Name of state) _________________________________________________ personally appeared before (Name of subscribing witness) me, and being duly sworn, stated that in his presence ___________________________________________________________________________

(Name of president, secretary or treasurer of maker)

(signed the foregoing instrument) (acknowledged the execution of the foregoing instrument.) (Strike out the words not applicable.) Witness my hand and official seal, this __________________________ day of ______________, ________ (Month) (Year) ________________________________________________________________________ (Signature of official taking proof) ________________________________________________________________________ (Official title of official taking proof) My commission expires ____________________________________________________ (Date of expiration of official's commission)

History

(1991, c. 647, s. 5; 1991 (Reg. Sess., 1992), c. 1030, s. 14; 1999-456, s. 59; 2006-59, s. 30.)

Effect of Amendments. - Session Laws 2006-59, s. 30, effective October 1, 2006, and except as otherwise set forth in this act, applicable to notarial acts performed on or after that date, added subsection (h).

§ 47-41.1. Corporate seal.

All documents, including but not limited to deeds, deeds of trust, and mortgages, required or permitted by law to be executed by corporations, shall be legally valid and binding when a legible corporate stamp which is a facsimile of its seal is used in lieu of an imprinted or embossed corporate seal.

History

(1971, c. 340, s. 1.)

§ 47-41.2. Technical defects.

  1. Technical defects, including technical defects under G.S. 10B-68, and errors or omissions in a form of probate or other notarial certificate, shall not affect the sufficiency, validity, or enforceability of the form of probate or the notarial certificate or the related instrument or document. A register of deeds may not refuse to accept an instrument or document for registration because of technical defects, errors, or omissions in a form of probate or other notarial certificate.
  2. This section does not apply to the requirements for registration contained in G.S. 47-14(a) and a register of deeds shall not accept for registration an instrument that does not comply with the requirements of G.S. 47-14(a).

History

(2006-59, s. 31; 2006-199, s. 3; 2013-204, s. 1.17.)

Effect of Amendments. - Session Laws 2006-199, s. 3, effective July 1, 2006, added the last sentence in subsection (a).

Session Laws 2013-204, s. 1.17, effective June 26, 2013, deleted the former last sentence of subsection (a), which read: "This subsection applies to notarial certificates and forms of probate made on or after December 1, 2005."

§ 47-42. Attestation of bank conveyances by secretary or cashier.

  1. Repealed by Session Laws 2002-26, s. 1.
  2. All deeds and conveyances executed prior to February 14, 1939, by banking corporations, where the cashier of said banking corporation has attested said instruments, which deeds and conveyances are otherwise regular, are hereby validated.
  3. All deeds and conveyances executed by a banking corporation on or after October 1, 1999, that complied with G.S. 47-18.3 are hereby validated.

History

(1939, c. 20, s. 21/2; 1957, c. 783, s. 4; 2002-26, s. 1.)

§ 47-43. Form of certificate of acknowledgment of instrument executed by agent.

When an instrument purports to be signed by parties acting through another by virtue of the execution of a power of attorney, the following form of certificate is sufficient, but does not exclude other forms:

North Carolina, ____________ County.

I (here give name of the official and the official's title), do hereby certify that (here give name of agent) (the "Agent"), agent for (here give names of parties who executed the instrument through the Agent) (the "Principal"), personally appeared before me this day, and being by me duly sworn, says that the Agent executed the foregoing and annexed instrument for and on behalf of the Principal, and that the Agent's authority to execute and acknowledge the instrument is contained in an instrument duly executed, acknowledged, and recorded in the office of (here insert name of official in whose office power of attorney is recorded, and the county and state of recordation), on the (day of month, month, and year of recordation), and that this instrument was executed under and by virtue of the authority given by the instrument granting the Agent power of attorney; that the Agent acknowledged the due execution of the foregoing and annexed instrument for the purposes therein expressed for and in behalf of the Principal.

WITNESS my hand and official seal, this ________ day of ____________, (year) ________.

(Official seal.)

_______________________________________________________________________ Signature of Officer

History

(1941, c. 238; 2018-142, s. 34.)

Cross References. - For amendment of this section, see G.S. 47-43.1.

As to registration of power of attorney, see G.S. 47-28.

Editor's Note. - Session Laws 1949, c. 66, s. 1, provided that this section was amended by adding G.S. 47-43.1 at the end thereof. Section 2 of the act, read in conjunction with s. 4, provides that all instruments executed prior to February 11, 1949, which satisfy the requirements of the act, and are otherwise valid as to form and substance, shall be deemed sufficient and valid in law.

Effect of Amendments. - Session Laws 2018-142, s. 34, effective December 15, 2018, rewrote the section.

CASE NOTES

Cited in In re Sale of Land of Warrick, 1 N.C. App. 387, 161 S.E.2d 630 (1968).


§ 47-43.1. Execution and acknowledgment of instruments by attorneys or attorneys-in-fact.

When an instrument purports to be executed by parties acting through another by virtue of a power of attorney, it shall be sufficient if the attorney or agent signs such instrument either in the name of the principal by the attorney or agent or signs as attorney or agent for the principal; and if such instrument purports to be under seal, the seal of the agent shall be sufficient.

History

(1949, c. 66, s. 1; 2017-153, s. 2.3.)

Editor's Note. - Session Laws 1949, c. 66, s. 1, which added this section, provided that G.S. 47-43 was amended by adding this section at the end thereof. Section 2 of the act, read in conjunction with s. 4, provides that all instruments executed prior to February 11, 1949, which satisfy the requirements of the act, and are otherwise valid as to form and substance, shall be deemed sufficient and valid in law.

Effect of Amendments. - Session Laws 2017-153, s. 2.3, effective January 1, 2018, substituted "agent" for "attorney-in-fact" throughout and deleted the last sentence which formerly read: "For such instrument to be executed under seal, the power of attorney must have been executed under seal."

Legal Periodicals. - For brief comment on this section, see 27 N.C.L. Rev. 421 (1949).

§ 47-43.2. Officer's certificate upon proof of instrument by subscribing witness.

When the execution of an instrument is proved by a subscribing witness as provided by G.S. 47-12, the certificate required by G.S. 47-13.1 shall be in substantially the following form:

STATE OF _____________________________________________________________________ (Name of state) __________________________________________________________________ COUNTY I, ________________________________, a ___________________________________ (Official title of officer taking proof) of ________________________ COUNTY, ____________________, certify that (Name of state) _____________________________________ personally appeared before me this day, (Name of subscribing witness) and being duly sworn, stated that in his presence ___________________________ (Name of maker) (signed the foregoing instrument) (acknowledged the execution of the foregoing instrument.) (Strike out the words not applicable.) WITNESS my hand and official seal, this the ________ day of ____________, (Month) ________ (Year) ________________________________________________________________________ (Signature of officer taking proof) ________________________________________________________________________ (Official title of officer taking proof) My commission expires ___________________________________________________ (Date of expiration of officer's commission)

Provided, however, that when instruments have been recorded upon proof of execution of the instrument by certificate of a judicial officer, showing that execution was proven by oath and examination of the subscribing witness, the date of such examination, and the signature of the officer taking the proof, such proof of execution shall be deemed sufficient on all instruments filed for registration prior to March 15, 1961.

History

(1951, c. 379, s. 3; 1953, c. 1078, s. 3; 1955, c. 1345, s. 6; 1961, c. 237; 1999-456, s. 59.)

§ 47-43.3. Officer's certificate upon proof of instrument by proof of signature of maker.

When the execution of an instrument is proved by proof of the signature of the maker as provided by G.S. 47-12.1 or as provided by G.S. 47-13, the certificate required by G.S. 47-13.1 shall be in substantially the following form:

STATE OF _____________________________________________________________________ (Name of state) _________________________________________________ COUNTY I, ________________________________________, a __________________ (Name of officer taking proof) (Official title of officer taking proof) of ______________ COUNTY, _____________________________________, certify that (Name of state) ____________________________________ personally appeared before me this day, (Name of person familiar with maker's handwriting) and being duly sworn, stated that he knows the handwriting of _____________________________________ and that the signature to the foregoing (Name of maker) instrument is the signature of ______________________________________________ (Name of maker) WITNESS my hand and official seal, this the ______________________ day of ____________, ________ (Month) (Year) _______________________________________________________________________ (Signature of officer taking proof) _______________________________________________________________________ (Official title of officer taking proof) My commission expires ___________________________________________________ (Date of expiration of officer's commission)

History

(1951, c. 379, s. 3; 1999-456, s. 59.)

§ 47-43.4. Officer's certificate upon proof of instrument by proof of signature of subscribing witness.

When the execution of an instrument is proved by proof of the signature of a subscribing witness as provided by G.S. 47-12.1, the certificate required by G.S. 47-13.1 shall be in substantially the following form:

STATE OF _____________________________________________________________________ (Name of state) _________________________________________________________ COUNTY I, ________________________________________, a __________________ (Name of officer taking proof) (Official title of officer taking proof) of ________________________ COUNTY, ____________________, certify that (Name of state) _____________________________________ personally appeared before me this day, (Name of person familiar with handwriting of subscribing witness) and being duly sworn, stated that he knows the handwriting of __________________________________________________, and that the signature of (Name of subscribing witness) _____________________________________________ as a subscribing witness to the (Name of subscribing witness) foregoing instrument is the signature of ____________________________________ (Name of subscribing witness) WITNESS my hand and official seal, this the ______________________ day of ____________, ________ (Month) (Year) _________________________________________________________________________ (Signature of officer taking proof) _________________________________________________________________________ (Official title of officer taking proof) My commission expires ___________________________________________________ (Date of expiration of officer's commission)

History

(1951, c. 379, s. 3; 1999-456, s. 59.)

§ 47-44. Clerk's certificate upon probate by justice of peace or magistrate.

When the proof or acknowledgment of any instrument is had before a justice of the peace of some other state or territory of the United States, or before a magistrate of this State, but of a county different from that in which the instrument is offered for registration, the form of certificate as to his official position and signature shall be substantially as follows:

North Carolina ________________ County. I, A.B. (here give name and official title of a clerk of a court of record), do hereby certify that C.D. (here give the name of the justice of the peace or magistrate taking the proof, etc.), was at the time of signing the foregoing (or annexed) certificate an acting justice of the peace or magistrate in and for the county of ______________ and State (or territory) of _________________________________________________________________________, and that his signature thereto is in his own proper handwriting. In witness whereof, I hereunto set my hand and official seal, this ______ day of ________________, A.D. ________________________________________________ (Official seal.) _______________________________________________________________________ (Signature of officer.)

History

(1899, c. 235, s. 8; Rev., s. 1006; C.S., s. 3327; 1971, c. 1185, s. 15.)

§ 47-45. Clerk's certificate upon probate by nonresident official without seal.

When the proof or acknowledgment of any instrument is had before any official of some other state, territory or country and such official has no official seal, then the certificate of such official shall be accompanied by the certificate of a clerk of a court of record of the state, territory or country in which the official taking the proof or acknowledgment resides, of the official position and signature of such official; such certificate of the clerk shall be under his hand and official seal and shall be in substance as follows:

______________ County.

I, A.B. (here give name and official title of the clerk of a court of record as provided herein), do hereby certify that C.D. (here give name of the official taking the proof, etc.) was at the time of signing the foregoing (or annexed) certificate (here give the official title of the officer taking proof, etc.) in and for the county of ______________ and state of ____________ (or other political division of the state, territory or country, as the case may be), and that his signature thereto is in his own proper handwriting.

In witness whereof, I hereunto set my hand and official seal, this ______ day of ______________, A.D. __________________________________________________ (Official seal.) _______________________________________________________________________ (Signature of Clerk.)

History

(1899, c. 235, s. 8; Rev., s. 1007; C.S., s. 3328.)

§ 47-46: Repealed by Session Laws 2005-123, s. 4, effective October 1, 2005.

§ 47-46.1. Notice of satisfaction of deed of trust, mortgage, or other instrument.

No particular phrasing is required for a notice of satisfaction pursuant to G.S. 45-37(a)(5) as it was prior to October 1, 2005, a satisfaction of a security instrument under G.S. 45-36.10, or a trustee's satisfaction under G.S. 45-36.20. The following form, when properly completed, is sufficient to satisfy the requirements (i) for a notice of satisfaction under G.S. 45-37(a)(5) as it was in effect prior to October 1, 2005, (ii) for a satisfaction under G.S. 45-36.10 if the form is signed and acknowledged by the secured creditor, and (iii) for a trustee's satisfaction under G.S. 45-36.20 if the security instrument is a deed of trust and the form is signed and acknowledged by the trustee:

North Carolina, ________________________ County. I, ________________________ (name of trustee or mortgagee), certify that the debt or other obligation in the amount of ______________ secured by the (deed of trust)(mortgage)(other instrument) executed by ________________________ (grantor)(mortgagor), ________________________ (trustee)(leave blank if mortgage), and ________________________ (beneficiary)(mortgagee), and recorded in ________________________ County at ______________ (book and page) was satisfied on ________________________ (date of satisfaction). __________________________________________________________________ (Signature of trustee or mortgagee) (Acknowledgment before officer authorized to take acknowledgments) My commission expires ________________________ (Date of expiration of official's commission).

History

(1987, c. 405, s. 2; c. 662, s. 4; 1989, c. 434, s. 2; 2005-123, s. 5; 2006-264, s. 82(a).)

Editor's Note. - Session Laws 2006-264, s. 82(a), which amended the introductory language to S.L. 2005-123, s. 5, was repealed by S.L. 2006-264, s. 82(b), which provided "If Senate Bill 1479, 2005 Regular Session [S.L. 2006-226], becomes law, this section is repealed."

Effect of Amendments. - Session Laws 2005-123, s. 5, effective October 1, 2005, rewrote the section.

§ 47-46.2. Certificate of satisfaction of deed of trust, mortgage, or other instrument.

No particular phrasing is required for a certification of satisfaction pursuant to G.S. 45-37(a)(6) as it was in effect prior to October 1, 2005, or for a satisfaction of a security instrument under G.S. 45-36.10. The following form, when properly completed, is sufficient to satisfy the requirements (i) for a certificate of satisfaction under G.S. 45-37(a)(6) as it was in effect prior to October 1, 2005, and (ii) for a satisfaction of a security instrument under G.S. 45-36.10 when signed and acknowledged by the secured creditor:

CERTIFICATE OF SATISFACTION

North Carolina, ________________________ County. I, ________________________ (name of owner of the note or other indebtedness secured by the deed of trust or mortgage), certify that I am the owner of the indebtedness secured by the hereafter described deed of trust or mortgage and that the debt or other obligation in the amount of __________________ secured by the (deed of trust)(mortgage)(other instrument) executed by ________________________ (grantor)(mortgagor), ________________________ (trustee)(leave blank if mortgage), and ____________________________ (beneficiary)(mortgagee), and recorded in __________________ County at ____________ (book and page) was satisfied on ________________________ (date of satisfaction). I request that this certificate of satisfaction be recorded and the above-referenced security instrument be canceled of record. _________________________________________________________________ (Signature of owner of note) [Acknowledgment before officer authorized to take acknowledgments].

History

(1995, c. 292, s. 3; 2005-123, s. 5; 2006-226, s. 27(a); 2006-264, s. 82(a).)

Editor's Note. - Session Laws 2006-264, s. 82(a), which amended the introductory language to S.L. 2005-123, s. 5, was repealed by S.L. 2006-264, s. 82(b), which provided "If Senate Bill 1479, 2005 Regular Session [S.L. 2006-226], becomes law, this section is repealed."

Effect of Amendments. - Session Laws 2005-123, s. 5, as amended by Session Laws 2006-226, s. 27, effective October 1, 2005, rewrote the introductory paragraph.

§ 47-46.3. Affidavit of lost note.

No particular phrasing is required for an affidavit of lost note pursuant to G.S. 45-36(a)(6) as it was in effect prior to October 1, 2005. The following form, when properly completed, is sufficient to satisfy the requirements for an affidavit of lost note under G.S. 45-37(a)(6) as it was in effect prior to October 1, 2005.

AFFIDAVIT OF LOST NOTE

[Name of affiant] personally appeared before me in ________________________ County, State of ________________________, and having been duly sworn (or affirmed) made the following affidavit: 1. The affiant is the owner of the note or other indebtedness secured by the deed of trust, mortgage, or other instrument executed by __________________ (grantor, mortgagor), __________________ (trustee), and ________________________ (beneficiary, mortgagee), and recorded in __________________ County at __________________ (book and page); and 2. The note or other indebtedness has been lost and after the exercise of due diligence cannot be located. 3. The affiant certifies that all indebtedness secured by the deed of trust, mortgage, or other instrument was satisfied on __________________, __________________ (date of satisfaction), and the affiant is responsible for cancellation of the same. __________________________________________________________________ (Signature of affiant) Sworn to (or affirmed) and subscribed before me this ________ day of ______________, ________. [Signature and seal of notary public or other official authorized to administer oaths].

History

(1995, c. 292, s. 4; 1995 (Reg. Sess., 1996), c. 604, s. 2; c. 742, s. 19; 1999-456, s. 59; 2005-123, s. 6.)

Editor's Note. - This section was amended by Session Laws 1995 (Reg. Sess., 1996), c. 604, s. 2, and c. 742, s. 19, the amendments being similar. The section is set out above at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2005-123, s. 6, effective October 1, 2005, rewrote the introductory paragraph.

ARTICLE 4. Curative Statutes; Acknowledgments; Probates; Registration.

Sec.

§ 47-47. Defective order of registration; "same" for "this instrument".

Where instruments were admitted to registration prior to March 2, 1905, and the clerk's order for the registration used the word "same" in place of "this instrument," the said registrations are good and valid.

History

(1905, c. 344; Rev., s. 1010; C.S., s. 3329.)

Legal Periodicals. - For article, "Toward Greater Marketability of Land Titles - Remedying the Defective Acknowledgment Syndrome," see 46 N.C.L. Rev. 56 (1967).

§ 47-48. Clerks' and registers of deeds' certificate failing to pass on all prior certificates.

When it appears that the clerk of the superior court, register of deeds, or other officer having the power to probate or certify deeds, in passing upon deeds or other instruments, and related certificates, consisting of more than one certificate of the same or a different date by other officer or officers taking acknowledgment or probating the certificates, has in his or her certificate or order mentioned only one or more of the preceding or foregoing certificates or orders, but not all of them, but has admitted the same deed or other instrument to probate or recordation, it is conclusively presumed that all the certificates of the deed or instrument necessary for probate or recordation have been passed upon, and the certificate of the clerk, register of deeds, or other probating or certifying officer is deemed sufficient and the probate, certification, and recordation of the deed or instrument is valid for all intents and purposes. This section applies to all instruments recorded in any county of this State prior to April 1, 2021.

History

(1917, c. 237; C.S., s. 3330; 1945, c. 808, s. 1; 1965, c. 1001; 1971, c. 11; 1973, c. 1402; 1987, c. 360, s. 2; 2013-204, s. 1.18; 2021-91, s. 4(d).)

Effect of Amendments. - Session Laws 2013-204, s. 1.18, effective June 26, 2013, substituted "April 1, 2013" for "April 1, 1980" at the end of the last sentence.

Session Laws 2021-91, s. 4(d), effective October 1, 2021, rewrote the section.

§ 47-49. Defective certification or adjudication of clerk, etc., admitting to registration.

In all cases where, prior to January 1, 1919, instruments by law required or authorized to be registered, with certificates showing the acknowledgment or proof of execution thereof as required by the laws of the State of North Carolina, have been ordered registered by the clerk of the superior court or other officer qualified to pass upon probates and admit instruments to registration, and actually put upon the books in the office of the register of deeds as if properly proven and ordered to be registered, all such probates and registrations are hereby validated and made as good and sufficient as though such instruments had been in all respects properly proved and recorded, notwithstanding the failure of clerks or other officers qualified to pass upon the proofs or acknowledgments of instruments and to admit such instruments to registration to adjudge or certify that said instruments were duly proven, and notwithstanding the failure of such officers to adjudge or certify that the certificates of proof or acknowledgments of said instruments were correct or in due form.

History

(1919, c. 248; C.S., s. 3331.)

Legal Periodicals. - For article, "North Carolina's Real Estate Recording Laws: The Ghost of 1885," see 28 N.C. Cent. L.J. 199 (2006).

§ 47-50. Order of registration omitted.

In all cases prior to October 1, 2005, where it appears from the records of the office of the register of deeds of any county in this State that the execution of a deed of conveyance or other instrument by law required or authorized to be registered was duly signed and acknowledged as required by the laws of the State of North Carolina, and the clerk of the superior court of such county or other officer authorized to pass upon acknowledgments and to order registration of instruments has failed either to adjudge the correctness of the acknowledgment or to order the registration thereof, or both, such registrations are hereby validated and the instrument so appearing in the office of the register of deeds of such county shall be effective to the same extent as if the clerk or other authorized officer had properly adjudged the correctness of the acknowledgment and had ordered the registration of the instrument.

History

(1911, cc. 91, 166; 1913, c. 61; Ex. Sess. 1913, c. 73; 1915, c. 179, s. 1; C.S., s. 3332; 1941, cc. 187, 229; 1949, c. 493; 1957, c. 314; 1961, c. 79; 1981, c. 812; 1993, c. 80, s. 1; 2013-204, s. 1.19.)

Effect of Amendments. - Session Laws 2013-204, s. 1.19, effective June 26, 2013, substituted "October 1, 2005" for "December 31, 1992" near the beginning of this section.

§ 47-50.1. Register's certificate omitted.

In all cases prior to October 1, 2005, where it appears from the records of the office of the register of deeds of any county in this State that the execution of a deed of conveyance or other instrument by law required or authorized to be registered was duly signed and acknowledged as required by the laws of this State, and the register of deeds has failed to certify the correctness of the acknowledgment as required by G.S. 47-14(a), the registrations are hereby validated and the instrument so appearing in the office of the register of deeds of that county is effective to the same extent as if the register of deeds had properly certified the correctness of the acknowledgment.

History

(2004-199, s. 17; 2013-204, s. 1.20.)

Effect of Amendments. - Session Laws 2013-204, s. 1.20, effective June 26, 2013, substituted "October 1, 2005" for "October 1, 2004" near the beginning of the section.

§ 47-51. Official deeds omitting seals.

All deeds executed prior to April 1, 2021, by any sheriff, commissioner, receiver, executor, executrix, administrator, administratrix, or other officer authorized to execute a deed by virtue of office or appointment, in which the officer has omitted to affix a seal after the officer's signature, are not invalid on account of the omission of the seal.

History

(1907, c. 807; 1917, c. 69, s. 1; C.S., s. 3333; Ex. Sess. 1924, c. 64; 1941, c. 13; 1955, c. 467, ss. 1, 2; 1959, c. 408; 1971, c. 14; 1973, c. 1207, s. 1; 1983, c. 398, s. 2; 1985, c. 70, s. 2; 1987, c. 277, s. 2; 1989, c. 390, s. 2; 1991, c. 489, s. 2; 2013-204, s. 1.21; 2021-91, s. 4(e).)

Effect of Amendments. - Session Laws 2013-204, s. 1.21, effective June 26, 2013, substituted "April 1, 2013" for "January 1, 1991" near the beginning of this section.

Session Laws 2021-91, s. 4(e), effective October 1, 2021, rewrote the section.

§ 47-52. Defective acknowledgment on old deeds validated.

The clerk of the superior court may order registered any deed, or other conveyance of land, in all cases where the instrument and probate bears date prior to January 1, 1907, where the acknowledgment, private examination, or other proof of execution, has been taken or had before a notary public residing in the county where the land is situate, where said officer failed to affix his official seal, and where the certificate of said officer appears otherwise to be genuine.

History

(1933, c. 439.)

§ 47-53. Probates omitting official seals, etc.

If the acknowledgment, private examination, or other proof of the execution of any deed, mortgage, or other instrument authorized or required to be registered has been taken by or before any commissioner of affidavits and deeds of this State, clerk or deputy clerk of a court of record, or notary public of this or any other state, territory, or district, and the deed, mortgage, or other instrument has been recorded in any county in this State, but the commissioner, clerk, deputy clerk, or notary public omitted to attach his or her official or notarial seal to it, or if omitted, to insert his or her name in the body of the certificate, or if omitted, to sign his or her name to the certificate, if the name of the officer appears in the body of the certificate or is signed to it, or it does not appear of record that the seal was attached to the original deed, mortgage, or other instrument, or the commissioner, clerk, deputy clerk, or notary public has certified the certificate as under his or her "official seal," or "notarial seal," or words of similar import, and no such seal appears of record or where the officer uses "notarial" in his or her certificate and signature shows that "C.S.C.," or "clerk of superior court," or similar exchange of capacity, and the word "seal" follows the signature, then all such acknowledgments, private examinations or other proofs of such deeds, mortgages, or other instruments, and their registration are in all respects valid and binding. This section applies to acknowledgments, private examinations, or proofs taken prior to April 1, 2021. This section does not apply to pending litigation.

History

(Rev., s. 1012; 1907, cc. 213, 665, 971; 1911, c. 4; 1915, c. 36; C.S., s. 3334; 1929, c. 8, s. 1; 1945, c. 808, s. 2; 1951, c. 1151, s. 1; 1965, c. 500; 1983, c. 398, s. 3; 1985, c. 70, s. 3; 1987, c. 277, s. 3; 1989, c. 390, s. 3; 1991, c. 489, s. 3; 2013-204, s. 1.22; 2021-91, s. 4(f).)

Effect of Amendments. - Session Laws 2013-204, s. 1.22, effective June 26, 2013, substituted "April 1, 2013" for "January 1, 1991" in the next-to-last sentence.

Session Laws 2021-91, s. 4(f), effective October 1, 2021, rewrote the section.

§ 47-53.1. Acknowledgment omitting seal of clerk or notary public.

If any person has taken an acknowledgment as either a notary public or a clerk of a superior court, deputy clerk of a superior court, or assistant clerk of a superior court and has failed to affix his or her seal and this acknowledgment has been otherwise duly probated and recorded, then this acknowledgment is sufficient and valid. This section applies only to those deeds and other instruments acknowledged prior to April 1, 2021.

History

(1951, c. 1151, s. 1A; 1953, c. 1307; 1963, c. 412; 1975, c. 878; 1983, c. 398, s. 4; 1985, c. 70, s. 4; 1987, c. 277, s. 4; 1989, c. 390, s. 4; 1991, c. 489, s. 4; 2004-199, s. 18; 2013-204, s. 1.23; 2021-91, s. 4(g).)

Cross References. - As to absence of notarial seal, see also G.S. 47-102 and 47-103.

Effect of Amendments. - Session Laws 2004-199, s. 18, effective August 17, 2004, rewrote the section.

Session Laws 2013-204, s. 1.23, effective June 26, 2013, substituted "April 1, 2013" for "January 1, 1991" in the second sentence.

Session Laws 2021-91, s. 4(g), effective October 1, 2021, substituted "If any” for "Where any,” deleted "hereby declared to be” preceding "sufficient and valid,” substituted "April 1, 2021” for "April 1, 2013,” and made a stylistic change.

§ 47-54. Registration by register's deputies or clerks.

All registrations of instruments heretofore made in the office of register of deeds of the several counties by the register's deputy or clerk, and signed in the name of the register of deeds by the deputy or clerk, or signed by the deputy in his own name and not in the name of the register of deeds, when such registrations are in all other respects regular, are hereby validated and declared to be of the same force and effect as if signed in the name of the register of deeds by such register.

History

(1911, c. 184, s. 1; C.S., s. 3335; 1953, c. 849; 1963, c. 203.)

Local Modification. - Montgomery: 1955, c. 1223.

§ 47-54.1. Registration by register's assistants or deputies.

All registrations of instruments heretofore made in the office of register of deeds of the several counties by the register's assistant or deputy, and signed in the name of the register of deeds by the assistant or deputy, and initialed by the assistant or deputy, instead of being signed by them as assistant or deputy, when such registrations are in all other respects regular, are hereby validated and declared to be of the same force and effect as if signed by the assistant or deputy in the respective capacity.

History

(1991 (Reg. Sess., 1992), c. 877, s. 1.)

§ 47-55. Before officer in wrong capacity or out of jurisdiction.

All deeds, conveyances, or other instruments permitted by law to be registered in this State, which have been probated or ordered to be registered previous to January 1, 1913, before any officer of this or any other state or country, authorized by law to take acknowledgments or to order registration, where the certificate of the probate or order of registration is sufficient in form, but appears to have been certified by the officer in some capacity other than that in which such officer was authorized to act, or appears to have been made out of the county or district authorized by law, but within the State, and where the instrument with such certificate has been recorded in the proper county, are hereby declared to have been duly proved, probated and recorded, and to be valid.

History

(Rev., ss. 1017, 1030; 1913, c. 125, s. 1; C.S., s. 3336.)

Editor's Note. - Public Laws 1927, c. 189, s. 2, provided that all deeds, conveyances, or other instruments permitted by law to be registered in this State, which had been probated or ordered to be registered by any of the several justices of the peace appointed under Public Laws 1921, c. 237, since the first Monday in April, 1925, where the certificate of the probate was sufficient in form but appeared to have been certified by one of the several justices of the peace named in said Chapter, were declared to have been duly proved, probated and recorded, and to be valid.

CASE NOTES

Effect of Validating Acts on Vested Rights of Third Parties. - Acts validating irregular acknowledgments and probates, while good as between the parties and as to third parties from the passage of the acts, would not validate such acknowledgments and probates as to third parties whose rights had already been acquired prior to the validating statutes. Gordon v. Collett, 107 N.C. 362, 12 S.E. 332 (1890); Williams v. Kerr, 113 N.C. 306, 18 S.E. 501 (1893).


§ 47-56. Before justices of peace, where clerk's certificate or order of registration defective.

In every case where it appears from the record of the office of any register of deeds in this State that a justice of the peace in this State or any other state of the United States, has taken and certified the proof of any instrument required by the law to be registered, or the privy examination of a married woman thereto, and the deed and certificate have been registered prior to the first day of January, 1963, in the county where the lands described in the instrument are located, without a certificate or with a defective certificate of the clerk of the official character of the justice, or as to the genuineness of his signature, or without the order of registration of the clerk, or his adjudication of due probate, or with a defective adjudication thereof, such proofs, certificates and registration are hereby validated.

History

(1907, c. 83, s. 1; C.S., s. 3337; 1951, c. 35; 1963, c. 1014.)

Local Modification. - Clay: 1933, c. 530.

§ 47-57. Probates on proof of handwriting of maker refusing to acknowledge.

All registrations of instruments, prior to February 5, 1897, permitted or required by law to be registered, which were ordered to registration upon proof of the handwriting of the grantor or maker who refused to acknowledge the execution, are hereby validated.

History

(1897, c. 28; Rev., s. 1026; C.S., s. 3338.)

§ 47-58. Before judges of Supreme Court or superior courts or clerks before 1889.

Wherever the judges of the Supreme Court or the superior court, or the clerks or deputy clerks of the superior court, or courts of pleas and quarter sessions, mistaking their powers, have essayed previously to the first day of January, 1889, to take the probate of any instrument required or allowed by law to be registered, and the privy examination of femes covert, whose names are signed to such deeds, and have ordered said deeds to registration, and the same have been registered, all such probates, privy examinations and registrations are validated.

History

(1871-2, c. 200, s. 1; Code, s. 1260; 1889, c. 252; 1891, c. 484; Rev., s. 1009; C.S., s. 3339.)

CASE NOTES

Constitutionality. - This curative statute is constitutional and valid if rights of third parties have not accrued, but it would not divert the title of a party acquired by a subsequent deed from the same grantor which was registered prior to the enactment of the curative statute. Gordon v. Collett, 107 N.C. 362, 12 S.E. 332 (1890).

Purpose of Section. - This section was intended to ratify and validate what had erroneously been done by officials having general or special powers of probate and registration, so that the essence of what was done should not be sacrificed to the form of doing it, and to save rights of property where no substantial departure from legal requirements appeared, but merely an irregularity which could be cured without injury to the rights of others. Weston v. John L. Roper Lumber Co., 160 N.C. 263, 75 S.E. 800 (1912).

Liberal Construction. - The statutes validating defective probates and registrations of deed are remedial, and must be liberally construed to embrace all cases fairly within their scope. Weston v. John L. Roper Lumber Co., 160 N.C. 263, 75 S.E. 800 (1912).

Scope of Original Section. - This section originally rendered valid all probates of deeds, etc., made before the officers therein named, prior to February 12, 1872; and registrations made in pursuance of such probates were held embraced within the operation of the statutes, although made after that date, but before the enactment of the Code in 1883. Tatom v. White, 95 N.C. 453 (1886).

Applicability to Defective Probates of County Courts. - Where it was argued by counsel that this section did not refer to probates taken by the county courts, but to those of the clerks of said courts, it was held that the probates of the county courts were intended to be validated. The phraseology and punctuation, as well as the grammatical construction, of the statute, lead to that conclusion. If the other meaning had been intended, the preposition "of" would have been inserted before the words "courts of pleas and quarter sessions." The section also validates registrations made upon such probates. Weston v. John L. Roper Lumber Co., 160 N.C. 263, 75 S.E. 800 (1912).

Acts of Deputy Clerks Validated. - At the time, and prior to the enactment of this section, deputy clerks could not take proof of deeds and other instruments requiring registration; but an erroneous impression prevailed then and before that time, that they and the judges of the courts had authority to do so, and in many instances they undertook to exercise such authority. To cure errors in this respect and render effectual many official acts done by honest misapprehension of the law, the legislature enacted this section. Tatom v. White, 95 N.C. 453 (1886). As to authority of deputy clerks to take probate on instruments, see G.S. 47-1.

This section validates probates of deeds and privy examinations taken before a deputy clerk prior to January 1, 1889, and it is immaterial whether the deputy clerk, in making the probate, signed as deputy clerk or merely signed the name of the clerk thereto. Gordon v. Collett, 107 N.C. 362, 12 S.E. 332 (1890).

Intentional Breaches of Authority Not Validated. - There was no intent to give efficacy and vitality to a certificate of probate or adjudication of its correctness, where the error consisted not in misconceiving the extent of the power affirmatively conferred by law, but in disregarding a plain prohibition of the statute, and committing a breach of propriety in breaking over the barriers constructed to limit their authority. It was never intended that an officer, who exercised authority in the face of a plain statutory prohibition, should under the curative provisions of this section derive benefit from thus disregarding such legal restrictions for his own advantage or convenience. Freeman v. Person, 106 N.C. 251, 10 S.E. 1037 (1890).

Probate of Interested Officer. - This section has been considered in Freeman v. Person, 106 N.C. 251, 10 S.E. 1037 (1890), and it is there held that it cannot be construed to validate the probate of an officer in regard to a matter in which he or his wife was a party. White v. Connelly, 105 N.C. 65, 11 S.E. 177 (1890).


§ 47-59. Before clerks of inferior courts.

All probates and orders of registration made by and taken before any clerk of any inferior or criminal court prior to the twentieth day of February, 1885, and valid in form and substance, shall be valid and effectual, and all deeds, mortgages or other instruments requiring registration, registered upon such probate and order of registration, shall be valid. This section shall apply only to the counties of Ashe, Beaufort, Bertie, Buncombe, Cumberland, Duplin, Edgecombe, Granville, Greene, Halifax, Hertford, Iredell, Lenoir, Martin, Mecklenburg, New Hanover, Northampton, Robeson and Wayne. This section applies to probates and private examinations taken before the clerks of the criminal court of Buncombe prior to February second, 1893.

History

(1885, cc. 105, 108; 1889, cc. 143, 463; Rev., ss. 1020, 1021; C.S., s. 3340.)

§ 47-60. Order of registration by judge, where clerk party.

All deeds, mortgages or other instruments which prior to the twentieth day of January, 1893, have been probated by a justice of the peace and ordered to registration by a judge of the superior court or justice of the Supreme Court, to which clerks of the superior court are parties, are hereby confirmed, and the probates and orders for registration declared to be valid.

History

(1893, c. 3, s. 2; Rev., s. 1011; C.S., s. 3342.)

§ 47-61. Order of registration by interested clerk.

The probate and registration of all deeds, mortgages and other instruments requiring registration prior to the fifteenth day of January, 1935, to which the clerks of the superior courts are parties, or in which they have an interest, and which have been registered on the order of such clerks or their deputies, or by assistant clerks of the superior courts, on proof of acknowledgment taken before such clerks, assistant clerks, deputy clerks, justices of the peace or notaries public, be, and the same are declared valid.

History

(1891, c. 102; 1899, c. 258; 1905, c. 427; Rev., s. 1015; 1907, c. 1003, s. 2; Ex. Sess. 1908, c. 105, s. 1; C.S., s. 3343; 1935, c. 235.)

§ 47-62. Probates before interested notaries.

The proof and acknowledgment of instruments required by law to be registered in the office of the register of deeds of a county, and all privy examinations of a feme covert to such instruments made before any notary public on or since March 11, 1907, are hereby declared valid and sufficient, notwithstanding the notary may have been interested as attorney, counsel or otherwise in such instruments.

History

(Ex. Sess. 1908, c. 105, s. 2; C.S., s. 3344.)

Cross References. - As to acknowledgments taken by notaries interested as trustee or holding other office, see G.S. 47-95.

CASE NOTES

Construction. - G.S. 10B-20(c)(5) in conjunction with G.S. 47-62 indicates that "attorney, counsel or otherwise" is meant to include persons that may have drafted or otherwise participated in the preparation of the document; using the rule of ejusdem generis leads to the same conclusion as the word "otherwise" is presumed to be and construed as restricted by the particular designations and as including only things of the same kind, character and nature as those specifically enumerated. Quinn v. Quinn, 243 N.C. App. 374, 777 S.E.2d 121 (2015).

Deed Void. - There was no genuine issue of material fact as to the validity of a deed because the deed was void whether due to notarization if the deed was to the notary and her husband or the deed was materially altered after execution without the grantor's knowledge or consent; statue could not cure any defect in notarization as to the notary if she was in fact a grantee under the deed she notarized. Quinn v. Quinn, 243 N.C. App. 374, 777 S.E.2d 121 (2015).


§ 47-63. Probates before officer of interested corporation.

In all cases when acknowledgment or proof of any conveyance has been taken before a clerk of superior court, magistrate or notary public, who was at the time a stockholder or officer in any corporation, bank or other institution which was a party to such instrument, the certificates of such clerk, magistrate, or notary public shall be held valid, and are so declared.

History

(Rev., s. 1015; 1907, c. 1003, s. 1; C.S., s. 3345; 1971, c. 1185, s. 16.)

Cross References. - As to probate before stockholders and directors of banks, see G.S. 47-92.

CASE NOTES

The grantee in a chattel mortgage is not qualified to take the acknowledgment thereof, but a chattel mortgage to a bank will not be declared void because the acknowledgment thereof was taken by its cashier. Bank of Duplin v. Hall, 203 N.C. 570, 166 S.E. 526 (1932).


§ 47-64. Probates before officers, stockholders or directors of corporations.

No acknowledgment or proof of execution, including privy examination of married women, of any deed, mortgage or deed of trust to which instrument a corporation is a party shall be held invalid by reason of the fact that the officer taking such acknowledgment, proof or privy examination was an officer, stockholder, or director in said corporation; but such proofs and acknowledgments and the registration thereof, if in all other respects valid, are declared to be valid. Nor shall the registration of any such instrument ordered to be registered be held invalid by reason of the fact that the clerk or deputy clerk ordering the registration was an officer, stockholder or director in any corporation which is a party to any such instrument.

History

(Ex. Sess. 1913, c. 41; C.S., s. 3346; 1929, c. 24, s. 1; 1943, c. 135; 1945, c. 860; 2013-204, s. 1.24.)

Effect of Amendments. - Session Laws 2013-204, s. 1.24, effective June 26, 2013, deleted "prior to January 1, 1945" following "corporations" in the section heading; and deleted "executed prior to the first day of January, 1945" following "corporation is a party" in the first sentence.

§ 47-65. Clerk's deeds, where clerk appointed himself to sell.

All deeds made by any clerk of the superior court of any county or his deputy, prior to the first day of January, 1905, in any proceeding before him in which he has appointed himself or his deputy to make the sale of real property or other property are hereby validated.

History

(1911, c. 146, s. 1; C.S., s. 3347.)

§ 47-66. Certificate of wife's "previous" examination.

All probates of deeds, letters of attorney or other instruments requiring registration to which married women were parties, had and taken prior to the fourteenth day of February, 1893, in which probate it appears that such married women were "previously examined" instead of "privately examined," are hereby validated and confirmed.

History

(1893, c. 130; Rev., s. 1016; C.S., s. 3348.)

§ 47-67. Probates of husband and wife in wrong order.

All probates prior to March 6, 1893, of instruments executed by a husband and wife in which the probate as to the husband has been taken before or subsequent to the privy examination of his wife are validated.

History

(1893, c. 293; Rev., s. 1017; C.S., s. 3349.)

Cross References. - As to order of acknowledgment being immaterial, see G.S. 39-8.

CASE NOTES

Rights of Third Parties Acquired Before Statute Cannot Be Divested. - If third parties acquired rights, as by liens, against the grantor or conveyances from him, registered before the curative act, though with notice of such defectively probated instruments, the rights of such third parties could not be divested or impaired by this curative statute. Smith v. Castrix, 27 N.C. 518 (1844); Robinson v. Willoughby, 70 N.C. 358 (1874); Gordon v. Collett, 107 N.C. 362, 12 S.E. 332 (1890); Long v. Crews, 113 N.C. 256, 18 S.E. 499 (1893); Williams v. Kerr, 113 N.C. 306, 18 S.E. 501 (1893); Quinnerly v. Quinnerly, 114 N.C. 145, 19 S.E. 99 (1894); Barrett v. Barrett, 120 N.C. 127, 26 S.E. 691 (1897).


§ 47-68. Probates of husband and wife before different officers.

Where, prior to the second day of March, 1895, the probate of a deed or other instrument, executed by husband and wife, has been taken as to the husband and the wife by different officers having the power to take probates of deeds, whether both officers reside in this State or one in this State and the other in another state, or foreign country, the said probate, in the cases mentioned, shall be valid to all intents and purposes, and all deeds and other instruments required to be registered, and which have been ordered to registration by the proper officer in this State, and upon such probate or probates, and have been registered, shall be taken and considered as duly registered, and the word "probate," as used in this section, shall include privy examination of the wife.

History

(1895, c. 120; Rev., s. 1018; 1907, c. 34, s. 1; C.S., s. 3350.)

Cross References. - As to acknowledgment before different officers at different times and places, see G.S. 39-8.


§ 47-69. Wife free trader; no examination or husband's assent.

In all cases prior to the twenty-fourth day of September, 1913, where a married woman who was at the time a free trader by her husband's consent has executed and delivered a deed conveying her land, without her privy examination having been taken, and without the written assent of her husband other than his written assent contained in the instrument making her a free trader, such deed shall be valid and effectual to convey her land as if she had been, at the time of the execution and delivery of such deed, a feme sole. This section does not validate such deed where it would affect the title to land or property of purchasers or their grantees or assignees from such married woman and free trader subsequent to the execution of such deed.

History

(Ex. Sess. 1913, c. 54, s. 1; C.S., s. 3351.)

CASE NOTES

Applied in Foster v. Williams, 182 N.C. 632, 109 S.E. 834 (1921).


§ 47-70. By president and attested by treasurer under corporate seal.

All deeds and conveyances for lands in this State, made by any corporation of this State, which have heretofore been proved or acknowledged before any notary public in any other state, or before any commissioner of deeds and affidavits for the State of North Carolina in any other state, and sealed with the common seal of the corporation and attested by the treasurer, are hereby ratified and declared to be good and valid deeds for all purposes. Where such deeds have been executed for the corporation by its president and attested, sealed and acknowledged or probated as aforesaid, and the acknowledgment or probate has been duly adjudged sufficient by any deputy clerk and ordered registered, the acknowledgment, probate and registration are ratified, and said deed is declared valid. Such deeds, or certified copies thereof, may be used as evidence of title to the lands therein conveyed in the trial of any suits in any of the courts of this State where the title of said lands shall come in controversy.

History

(1905, c. 307; Rev., s. 1028; C.S., s. 3352.)

§ 47-71. By president and attested by witness before January, 1900.

Any deed or conveyance for land in this State, made prior to January 1, 1900, by the president of any corporation duly chartered under the laws of this State, and attested by a witness, is hereby declared to be a good and valid deed by such corporation for all purposes, and shall be admitted to probate and registration and shall pass title to the property therein conveyed to the grantee as fully as if said deed were executed according to provisions and forms of law in force in this State at the date of the execution of said deed.

History

(1909, c. 859, s. 1; C.S., s. 3353.)

§ 47-71.1. Corporate seal omitted prior to January 1, 2000.

Any corporate deed, or conveyance of land in this State, made prior to January 1, 2000, which is defective only because the corporate seal is omitted therefrom is hereby declared to be a good and valid conveyance by such corporation for all purposes and shall be sufficient to pass title to the property therein conveyed as fully as if the said conveyance were executed according to the provisions and forms of law in force in this State at the date of the execution of such conveyance.

History

(1957, c. 500, s. 1; 1963, c. 1015; 1969, c. 815; 1971, c. 61; 1973, c. 479; 1977, c. 538; 1981, c. 191, s. 1; 1983, c. 398, s. 5; 1985, c. 70, s. 5; 1987, c. 277, s. 5; 1989, c. 390, s. 5; 1991, c. 489, s. 5; 2013-204, s. 1.25.)

Effect of Amendments. - Session Laws 2013-204, s. 1.25, effective June 26, 2013, substituted "January 1, 2000" for "January 1, 1991" twice in this section.

CASE NOTES

This section only serves to accentuate the necessity of a corporate seal in order to make a corporate conveyance of real estate valid and effectual. Investors Corp. v. Field Fin. Corp., 5 N.C. App. 156, 167 S.E.2d 852 (1969).

Cited in Philbin Invs., Inc. v. Orb Enters., Ltd., 35 N.C. App. 622, 242 S.E.2d 176 (1978).


§ 47-72. Corporate name not affixed, but signed otherwise prior to April 1, 2021.

In all cases prior to April 1, 2021, where any deed conveying lands purported to be executed by a corporation, but the corporate name was in fact not affixed to the deed, but the deed was signed by the president and secretary of the corporation, or by the president and two members of the governing body of the corporation, and the deed has been registered in the county where the land conveyed by the deed is located, the defective execution is in all respects valid, and the deed is deemed in all respects the deed of the corporation.

History

(1919, c. 53, s. 1; C.S., s. 3354; 1927, c. 126; 1963, c. 1094; 1973, c. 118, s. 1; 2013-204, s. 1.26; 2021-91, s. 4(h).)

Effect of Amendments. - Session Laws 2013-204, s. 1.26, effective June 26, 2013, substituted "April 1, 2013" for "January, 1973" in the section heading; and substituted "April 1, 2013" for "the first day of January, 1973" near the beginning of this section.

Session Laws 2021-91, s. 4(h), effective October 1, 2021, rewrote the section.

§ 47-73. Probated and registered on oath of subscribing witness.

In all cases prior to the first day of January, 1919, where any deed conveying lands was executed by a corporation, and said deed was probated and ordered registered upon the oath and examination of a subscribing witness, by the clerk of the superior court of the county in which the land conveyed by said deed is located, and said deed has been duly registered by the register of deeds of said county, such probate and order of registration shall be, and the same is hereby, declared to be in all respects valid.

History

(1919, c. 53, s. 2; C.S., s. 3355.)

§ 47-74. Certificate alleging examination of grantor instead of witness.

Wherever any deed of conveyance registered prior to January 1, 1886, purports to have been attested by two witnesses and in the certificate of probate and acknowledgment it is stated that the execution of such deed was proven by the oath and examination of one of the grantors in said deed instead of either of the witnesses named, all such probates and certificates are hereby validated and confirmed, and any such deed shall be taken and considered as duly acknowledged and probated.

History

(1925, c. 84.)

§ 47-75. Proof of corporate articles before officer authorized to probate.

All proofs of articles of agreement for the creation of corporations which were, prior to the eighteenth day of February, 1901, made before any officer who was at that time authorized by the law to take proofs and acknowledgments of deeds and mortgages, are ratified.

History

(1901, c. 170; Rev., s. 1027; C.S., s. 3356.)

§ 47-76. Before officials of wrong state.

In all cases where the acknowledgment, examination and probate of any deed, mortgage, power of attorney or other instrument required or authorized to be registered has been taken before any judge, clerk of a court of record, notary public having a notarial seal, mayor of a city having a seal, or justice of the peace of a state other than the state in which the grantor, maker or subscribing witness resided at the time of the execution, acknowledgment, examination or probate thereof, and such acknowledgment, examination or probate is in other respects according to law, and such instrument has been duly ordered to registration and has been registered, then such acknowledgment, examination, probate and registration are hereby in all respects made valid and binding. This section applies to probates and acknowledgments of deputy clerks of other states when such probate and acknowledgment has been attested by the official seal of said office and adjudged sufficient and in due form of law by the clerk of the court in the state where the instrument is required to be registered.

History

(1905, c. 505; Rev., s. 1013; C.S., s. 3357.)

§ 47-77. Before notaries and clerks in other states.

All deeds and conveyances made for lands in this State which have, previous to February 15, 1883, been proved before a notary public or clerk of a court of record, or before a court of record, not including mayor's court, of any other state, where such proof has been duly certified by such notary or clerk under his official seal, or the seal of the court, or in accordance with the act of Congress regulating the certifying of records of the courts of one state to another state, or under the seal of such courts, and such deed or conveyance, with the certificate, has been registered in the office of register of deeds in the book of records thereof for the county in which such lands were situate at the time of such registration, are declared to be validly registered, and the proof and registration is adjudged valid. All deeds and conveyances so proved, certified and registered, or certified copies of the same, may be used as evidence of title for the lands on the trial of any suit in any courts where title to the lands come into controversy.

History

(1883, c. 129, ss. 1, 2; Code, ss. 1262, 1263; 1885, c. 11; Rev., ss. 1022, 1023; 1915, c. 213; C.S., s. 3358.)

CASE NOTES

Constitutionality. - The legislature has the constitutional right to enact statutes making valid deeds which were theretofore invalid by reason of defective probate, when no vested rights are impaired. Penland v. Barnard, 146 N.C. 378, 59 S.E. 1109 (1907).

For application of this section to deed probated in Tennessee in 1869, see Penland v. Barnard, 146 N.C. 378, 59 S.E. 1109 (1907).


§ 47-78. Acknowledgment by resident taken out-of-state.

When prior to the ninth day of March, 1895, a deed or mortgage executed by a resident of this State has been proved or acknowledged by the maker thereof before a notary public of any other state of the United States, and has been ordered to be registered by the clerk of the superior court of the county in which the land conveyed is situated, and said deed or mortgage has been registered, such registration is valid.

History

(1895, c. 181; Rev., s. 1019; C.S., s. 3359.)

§ 47-79. Before deputy clerks of courts of other states.

Where any deed or conveyance of lands in this State, executed prior to January 1, 1923, has been acknowledged by the grantor or the privy examination of any married woman has been taken before the deputy clerk of a court of record of any other state, and the certificate of acknowledgment and privy examination is otherwise sufficient under the laws of this State, except that it appears to have been signed in the name of the clerk of said court, by the deputy clerk, and the seal of the court has been affixed thereto, and such certificate has been duly approved by the clerk of the superior court of this State in the county where the lands conveyed are situated and the instrument ordered to be recorded, such certificate and probate and the registration made thereon are validated, and the conveyance, if otherwise sufficient, is declared valid.

History

(1913, c. 57, ss. 1, 2; C.S., s. 3360; 1951, c. 1134, s. 1.)

§ 47-80. Sister state probates without Governor's authentication.

In all cases where any deed concerning lands or any power of attorney for the conveyance of the same, or any other instrument required or allowed to be registered, has been, prior to the twenty-ninth day of January, 1901, acknowledged by the grantor therein, or proved and the private examination of any married woman, who was a party thereto, taken according to law, before any judge of a supreme, superior or circuit court of any other state or territory of the United States where the parties to such instrument resided, and the certificate of such judge as to such acknowledgment, probate or private examination, and also the certificate of the secretary of state of said state or territory instead of the Governor thereof (as required by the laws of this State then in force) that the judge, before whom the acknowledgment or probate and private examination were taken, was at the time of taking the same a judge as aforesaid, are attached to said deed, or other instrument, and the said deed or other instrument, having said certificates attached, has been exhibited before the former judge of probate, or the clerk of the superior court of the county in which the property is situated, and such acknowledgment, or probate and private examination have been adjudged by him to be sufficient and said deed or other instrument ordered to be registered and has been registered accordingly, such probate and registration shall be valid. Nothing herein contained affects the rights of third parties who are purchasers for value, without notice, from the grantor in such deed or other instrument.

History

(1901, c. 39; Rev., s. 1014; C.S., s. 3361.)

§ 47-81. Before commissioners of deeds.

Any deed or other instrument permitted by law to be registered, and which has prior to the third day of March, 1913, been proved or acknowledged before a commissioner of deeds, is validated; and its registration is authorized and validated.

History

(1913, c. 39, s. 2; C.S., s. 3362.)

CASE NOTES

Section Cannot Interfere with Vested Rights. - This section is remedial in character and beneficent in purpose, but it will not be permitted to impair or to interfere with the vested rights of others. Champion Fibre Co. v. Cozad, 183 N.C. 600, 112 S.E. 810 (1922).

This section cannot have the effect of impairing vested rights of purchasers at an execution sale under judgment, or those holding the land under his deed. Champion Fibre Co. v. Cozad, 183 N.C. 600, 112 S.E. 810 (1922).


§ 47-81.1. Before commissioner of oaths.

All deeds, mortgages or other instruments required to be registered, which prior to March 5, 1943, have been probated by a commissioner of oaths and ordered registered, are hereby validated and confirmed as properly probated and registered instruments.

History

(1943, c. 471, s. 2.)

§ 47-81.2. Before United States Army, etc., officers, and other service members.

In all cases where instruments and writings have been proved or acknowledged before any commissioned officer of the United States Army, Navy, Air Force, Marine Corps, or Coast Guard or any officer of the United States Merchant Marine having the rank of lieutenant, senior grade, or higher, such proofs or acknowledgments, where valid in other respects, are hereby ratified, confirmed and declared valid. All proofs or acknowledgments made by any military personnel authorized by the Congress of the United States are hereby ratified, confirmed, and declared valid and shall not require the affixation of a seal where valid in other respects.

History

(1943, c. 159, s. 2; 2011-183, s. 32; 2013-204, s. 1.27.)

Effect of Amendments. - Session Laws 2011-183, s. 32, effective June 20, 2011, in the section catchline, substituted "United States Army" for "army"; and in text, substituted "United States Army or Marine Corps" for "army of the United States or United States marine corps," "Navy or Coast Guard" for "navy or coast guard," and "Merchant marine" for "merchant marine."

Session Laws 2013-204, s. 1.27, effective June 26, 2013, added "and other service members" in the section heading; substituted "any commissioned officer of the United States Army, Navy, Air Force, Marine Corps, or Coast Guard" for "any officer of the United States Army or Marine Corps having the rank of captain or higher, before any officer of the United States Navy or Coast Guard having the rank of lieutenant, senior grade, or higher" in the first sentence; and added the second sentence.

CASE NOTES

Use of Section to Validate Separation Agreement Precluded. - Where a wife's acknowledgment of a separation agreement was fatally defective under former G.S. 52-6 because there was no private examination of the wife and thus no finding as to whether the agreement was unreasonable or injurious to the wife, and because the acknowledgment was certified by a Judge Advocate in the Marine Corps who did not qualify as a "certifying officer" under former G.S. 52-6(c) since his position was not that of an "equivalent or corresponding officer" of the jurisdiction where the examination and acknowledgment were to be made, the omission of the private examination and the lack of authority on the part of the certifying officer precluded the use of curative statutes, G.S. 52-8 and this section, to validate the agreement. DeJaager v. DeJaager, 47 N.C. App. 452, 267 S.E.2d 399 (1980).


§ 47-82. Foreign probates omitting seals.

In all cases where the acknowledgment, privy examination or other proof of the execution of any instrument authorized or required to be registered has been taken by or before any ambassador, minister, consul, vice-consul, vice-consul general or commercial agent of the United States in any country beyond the limits of the United States, and such instrument has heretofore been recorded in any county in this State, but the official before whom it was taken has omitted to attach his seal of office, or it does not appear of record that such seal was attached to the instrument, or such official has certified the same as under his "official seal" or seal of his office, or words of similar import, and no such seal appears of record, then all such acknowledgments, privy examinations or other proof of such instruments, and the registration thereof, are hereby made in all respects valid, and such instruments, after the ratification hereof, shall be competent to be read in evidence.

History

(1913, c. 69, s. 1; C.S., s. 3363.)

§ 47-83. Before consuls general.

Any deed or other instrument permitted by law to be registered, and which has prior to the thirteenth day of October, 1913, been proved or acknowledged before a "consul general," is validated; and its registration is authorized and validated.

History

(Ex. Sess., 1913, c. 72, s. 2; C.S., s. 3364.)

§ 47-84. Before vice-consuls and vice-consuls general.

The order for registration by the clerk of the superior court and the registration thereof of all deeds of conveyance and other instruments in any county of this State prior to January 1, 1905, upon the certificate of any vice-consul or vice-consul general of the United States residing in a foreign country, certifying in due form under his name and the official seal of the United States consul or United States consul general of the same place and country where such vice-consul or vice-consul general resided and acted, that he has taken the proof or acknowledgments of the parties to such instruments, together with the privy examinations of married women parties thereto, are hereby, together with such proof and acknowledgments, privy examinations and certificates, validated.

History

(1905, c. 451, s. 2; Rev., s. 1024; C.S., s. 3365.)

CASE NOTES

Applied in Powers v. Baker, 152 N.C. 718, 68 S.E. 203 (1910).


§ 47-85. Before masters in chancery.

All probates, acknowledgments, and private examinations of deeds and conveyances of land heretofore taken before masters in equity or masters in chancery in any other state are declared to be valid, and all registrations of such deeds or conveyances upon such probates, acknowledgments and private examinations, or any of them, are hereby declared to be sufficient. All such deeds and conveyances and registration thereof, and all certified copies of such registrations, shall be received in evidence or otherwise used in the same manner and with the same force and effect as other deeds and conveyances with probates, acknowledgments, or private examinations made in accordance with provisions of statutes of this State in force at the time and as registrations thereof and certified copies of such registrations. Nothing in this section contained shall have effect to deprive anyone of any legal rights acquired, before its passage, from the grantors in such deeds or conveyances subsequently to their execution, where the deeds or conveyances by which such rights were acquired have been duly acknowledged or probated and registered.

History

(1911, c. 10; C.S., s. 3366.)

§ 47-85.1. Further as to acknowledgments, etc., before masters in chancery.

All probates, acknowledgments and privy examinations of deeds, mortgages and conveyances of land, which prior to January 1, 1948 have been taken before masters in equity or masters in chancery in any other state, are hereby declared to be valid, and all registrations of such deeds, mortgages or conveyances upon such probates, acknowledgments and private examinations, or any of them are hereby declared to be sufficient and valid. All such deeds and conveyances and registration thereof, and all certified copies of such registrations shall be received in evidence or otherwise used in the same manner and with the same force and effect as other deeds, mortgages and conveyances with probates, acknowledgments, or private examinations made in accordance with the provisions of statutes and laws of this State in force at the time, and as registrations thereof and certified copies of such registrations.

History

(1953, c. 1136.)

§ 47-86. Validation of probate of deeds by clerks of courts of record of other states, where official seal is omitted.

In all cases where, prior to the first day of January, 1891, the acknowledgment, privy examination of a married woman, or other proof of the execution of any deed, mortgage, or other instrument authorized to be registered has been taken before a clerk of a court of record in another state, and such clerk has failed or neglected to affix his official seal to his certificate of such acknowledgment, privy examination, or other proof of execution, of such deed, mortgage or other instrument, or where such court had no official seal and no official seal was affixed to such certificate by reason of that fact, and such deed, mortgage, or other instrument has been ordered to registration by the clerk of the superior court of any county in this State and has been registered, the probate of any and every such deed, mortgage, or other instrument authorized to be registered shall be and hereby is to all intents and purposes validated.

History

(1921, c. 15, ss. 1, 2; C.S., s. 3366(a).)

§ 47-87. Validation of probates by different officers of deeds by wife and husband.

In all cases where, prior to the second day of March, 1895, the acknowledgment, privy examination of a married woman, or other proof of the execution of any deed, mortgage, or other instrument, authorized to be registered, executed by husband and wife, has been taken as to the husband and wife in different states and by different officers having power to take acknowledgments, any and every such acknowledgment, privy examination of a married woman, or other proof of execution, and the probate of any and every such deed, mortgage or other instrument shall be and hereby is, to all intents and purposes validated.

History

(1921, c. 19, ss. 1, 4; C.S., s. 3366(b).)

§ 47-88. Registration without formal order validated.

In all cases where the acknowledgment, privy examination of a married woman, or other proof of the execution of any deed, mortgage or other instrument, authorized to be registered, has been taken before a commissioner in another state appointed by the probate judge of any county of this State, under the provisions of section 20 of Chapter 35 of Battle's Revisal, during the time said Chapter remained in force and effect, and such commissioner has certified to such acknowledgment, privy examination or other proof, and has returned such deed, mortgage or other instrument to said probate judge, with his certificate endorsed thereon, and such deed, mortgage or other instrument, together with such certificate, has been registered, without any adjudication or order of registration by such probate judge, the probate and registration of any and every such deed shall be, and hereby are, to all intents and purposes validated.

History

(1921, c. 19, ss. 2, 4; C.S., s. 3366(c).)

§ 47-89. Same subject.

In all cases where any deed, mortgage or other instrument has heretofore been acknowledged or probated in accordance with the provisions of G.S. 47-87 and 47-88, and such deed, mortgage or other instrument has been registered, without any order of registration by the probate judge or clerk of the superior court appearing thereon, the probate and registration of any and every such deed, mortgage or other instrument shall be, and hereby is, to all intents and purposes validated.

History

(1921, c. 19, ss. 3, 4; C.S., s. 3366(d).)

§ 47-90. Validation of acknowledgments taken by notaries public holding other office.

In every case where deeds or other instruments have been acknowledged before a notary public, when the notary public, at the time was also holding some other office, and the deed or other instrument has been duly probated and recorded, such acknowledgment taken by such notary public is hereby declared to be sufficient and valid.

History

(1921, c. 21; C.S., s. 3366(e).)

§ 47-91. Validation of certain probates of deeds before consular agents of the United States.

In all cases where the acknowledgment, privy examination of a married woman, or other proof of the execution of any deed, mortgage or other instrument authorized or required to be registered has been taken before any consular agent of the United States, during the time Chapter 35 of Battle's Revisal remained in force and effect, and such acknowledgment, privy examination, or other proof of the execution of such deed, mortgage, or other instrument is in other respects regular and in proper form, and such deed, mortgage, or other instrument has been duly ordered to registration and registered in the proper county, the acknowledgment, probate, and registration of any and every such deed, mortgage, or other instrument is hereby validated as fully and to the same effect as though such acknowledgment, privy examination, or other proof of execution had been taken before one of the officers named in subsection five of section two of said Chapter 35 of Battle's Revisal.

History

(1921, c. 157; C.S., s. 3366(f).)

§ 47-92. Probates before stockholders and directors of banks.

No acknowledgment or proof of execution, including privy examination of married women, of any mortgage, or deed of trust executed to secure the payment of any indebtedness to any banking corporation shall be held invalid by reason of the fact that the officer taking such acknowledgment, proof, or privy examination was a stockholder or director in such banking corporation.

History

(1923, c. 17; C.S., s. 3366(g); 2013-204, s. 1.28.)

Cross References. - As to probates before officer of interested corporation, see G.S. 47-63.

Effect of Amendments. - Session Laws 2013-204, s. 1.28, effective June 26, 2013, deleted "taken prior to the first day of January, 1923" following "banking corporation."

§ 47-93. Acknowledgments taken by stockholder, officer, or director of bank.

No acknowledgment or proof of execution, including privy examination of married women, of any mortgage or deed of trust executed to secure the payment of any indebtedness to any banking corporation shall be held invalid by reason of the fact that the officer taking such acknowledgment, proof, or privy examination was a stockholder, officer, or director in such banking corporation.

History

(Ex. Sess. 1924, c. 68; 2013-204, s. 1.29.)

Effect of Amendments. - Session Laws 2013-204, s. 1.29, effective June 26, 2013, deleted "taken prior to the first day of January, 1924" following "banking corporation."

§ 47-94. Acknowledgment and registration by officer or stockholder in building and loan or savings and loan association.

All acknowledgments and proofs of execution, including privy examination of married women, of any mortgage or deed of trust executed to secure the payment of any indebtedness to any State or federal building and loan or savings and loan association shall not be, nor held to be, invalid by reason of the fact that the clerk of the superior court, justice of the peace, notary public, or other officer taking such acknowledgment, proof of execution or privy examination, was an officer or stockholder in such building and loan association; but such proofs and acknowledgments of all such instruments, and the registration thereof, if in all other respects valid, are hereby declared to be valid.

Nor shall the registration of any such mortgage or deed of trust ordered to be registered by the clerk of the superior court, or by any deputy or assistant clerk of the superior court, be or held to be invalid by reason of the fact that the clerk of the superior court, or deputy, or assistant clerk of the superior court, ordering such mortgages or deeds of trust to be registered was an officer or stockholder in any State or federal building and loan or savings and loan association, whose indebtedness is secured in and by such mortgage or deed of trust.

History

(Ex. Sess. 1924, c. 108; 1929, c. 146, s. 1; 1959, c. 489; 2013-204, s. 1.30.)

Effect of Amendments. - Session Laws 2013-204, s. 1.30, effective June 26, 2013, deleted "prior to the first day of January, 1955" following "savings and loan association" in the first paragraph.

§ 47-95. Acknowledgments taken by notaries interested as trustee or holding other office.

In every case where deeds and other instruments have been acknowledged and privy examination of wives had before notaries public, or justices of the peace, prior to October 1, 1991, when the notary public or justice of the peace at the time was interested as trustee in said instrument or at the time was also holding some other office, and the deed or other instrument has been duly probated and recorded, such acknowledgment and privy examination taken by such notary public or justice of the peace is hereby declared to be sufficient and valid.

History

(1923, c. 61; C.S., s. 3366(h); 1931, cc. 166, 438; 1939, c. 321; 1955, c. 696; 1957, c. 1270; 1959, c. 81; 1969, c. 639, s. 1; 1975, c. 320, s. 1; 2013-204, s. 1.31.)

Editor's Note. - Session Laws 1975, c. 320, which substituted "January 1, 1975" for "January 1, 1969," stated that it was "the purpose and intent of this act to validate those certain acknowledgments with which G.S. 47-95 deals and which were made before January 1, 1975." Section 2 of the 1975 act provided that the act would not apply to pending litigation.

Effect of Amendments. - Session Laws 2013-204, s. 1.31, effective June 26, 2013, substituted "October 1, 1991" for "January 1, 1975".

Legal Periodicals. - For suggestion that this section should be considered as an addition to G.S. 47-62, see 1 N.C.L. Rev. 302 (1923).

§ 47-96. Validation of instruments registered without probate.

In every case where it shall appear from the records in the office of the register of deeds of any county in the State that any instrument of writing required or allowed by law to be registered prior to January 1, 1869, without any acknowledgment, proof, privy examination, or probate, or upon a defective acknowledgment, proof, privy examination, or probate, the record of such instrument may, notwithstanding, be read in evidence in any of the courts of this State, if otherwise competent.

History

(1923, c. 215, s. 1; C.S., s. 3366(i).)

Local Modification. - Cherokee, Graham: 1935, c. 92.

Legal Periodicals. - For suggestion that this section probably means that the registration must have been made prior to 1869, and that this section and G.S. 47-98 should be considered as amendments or additional sections to Chapter 8, Article 2, see 1 N.C.L. Rev. 302 (1923).


§ 47-97. Validation of corporate deed with mistake as to officer's name.

In all cases where the deed of a corporation executed before April 1, 2021, is properly executed, properly recorded and there is error in the probate of the corporation's deed as to the name or names of the officers in the probate, the deed has the same force and effect as if the probate were in every way proper.

History

(1933, c. 412, s. 1; 2013-204, s. 1.32; 2021-91, s. 4(i).)

Effect of Amendments. - Session Laws 2013-204, s. 1.32, effective June 26, 2013, substituted "April 1, 2013" for "the first day of January, 1918".

Session Laws 2021-91, s. 4(i), effective October 1, 2021, rewrote the section.

§ 47-97.1. Validation of corporate deeds containing error in acknowledgment or probate.

In all cases where the deed of a corporation executed and filed for registration prior to April 1, 2021, is properly executed and properly recorded, and there is error in the acknowledgment or probate of the corporation's deed as to the name or names of the officer or officers named and error as to the title or titles of the officer or officers named, the deed has the same force and effect as if the probate or acknowledgment were in every way proper.

History

(1951, c. 825; 2013-204, s. 1.33; 2021-91, s. 4(j).)

Effect of Amendments. - Session Laws 2013-204, s. 1.33, effective June 26, 2013, substituted "April 1, 2013" for "the fifteenth day of June, 1947".

Session Laws 2021-91, s. 4(j), effective October 1, 2021, rewrote the section.

§ 47-98. Registration on defective probates beyond State.

In every case where it shall appear from the records in the office of the register of deeds of any county in this State that any instrument required or allowed by law to be registered, bearing date prior to the year 1835, executed by any person or persons residing in any of the United States, other than this State, or in any of the territories of the United States, or in the District of Columbia, has been proven or acknowledged, or the privy examination of any feme covert taken thereto, before any officer or person authorized by any of the laws of this State in force prior to the said year 1835 to take such proofs, privy examinations and acknowledgments, and the said instrument has been registered in the proper county without the certificate of the Governor of the state or territory in which such proofs, acknowledgments or privy examinations were taken, or of the Secretary of State of the United States, when such certificate or certificates were required, as to the official character of the person taking such acknowledgment, proof or privy examination, as aforesaid, and without an order of registration made by a court or judge in this State having jurisdiction to make such order, then and in all such cases such proofs, privy examinations, acknowledgments and registrations are hereby in all respects fully validated and confirmed and declared to be sufficient in law, and such instruments so registered may be read in evidence in any of the courts of this State.

History

(1923, c. 215, ss. 2, 3; C.S., s. 3366(j).)

Legal Periodicals. - For suggestion that this section and G.S. 47-96 should be considered as amendments or additional sections to Chapter 8, Article 2, see 1 N.C.L. Rev. 302 (1923).


§ 47-99. Certificates of clerks without seal.

All certificates of acknowledgment and all verifications of pleadings, affidavits, and other instruments executed by clerks of the superior court of the State prior to March 1, 1945, and which do not bear the official seal of such clerks, are hereby validated in all cases in which the instruments bearing such acknowledgment or certification are filed or recorded in any county in the State other than the county in which the clerk executing such certificates of acknowledgment or verifications resides, and such acknowledgments and verifications are hereby made and declared to be binding, valid and effective to the same extent and in the same manner as if said official seal had been affixed.

History

(1925, c. 248; 1945, c. 798.)

§ 47-100. Acknowledgments taken by officer who was grantor.

In all cases where a deed or deeds dated prior to the first day of January, 1980, purporting to convey lands, have been registered in the office of the register of deeds of the county where the lands conveyed in said deed or deeds are located, prior to said first day of January, 1980, and the acknowledgments or proof of execution of such deed or deeds has been taken as to some of the grantors by an officer who was himself one of the grantors named in such deed or deeds, such defective execution, acknowledgment and proof of execution and probate of such deed or deeds thereon and the registration thereof as above described, shall be, and the same are hereby declared to be in all respects valid, and such deed or deeds shall be declared to be in all respects duly executed, probated and recorded to the same effect as if such officer taking such proof or acknowledgment of execution had not been named as a grantor therein, or in anywise interested therein.

History

(1929, c. 48, s. 1; 1953, c. 986; 1991 (Reg. Sess., 1992), c. 1030, s. 51.8.)

§ 47-101. Seal of acknowledging officer omitted; deeds made presumptive evidence.

In all cases where deeds appear to have been executed for land prior to January 1, 1900, and appear to have been recorded in the offices of the registers of deeds in the proper counties in this State, and the same appear to have been acknowledged before commissioners of affidavits (or deeds) of North Carolina, residing in the District of Columbia or elsewhere in the different states, or appear to have been recorded without any certificate being recorded on the record of such deed or deeds, such record or records shall be presumptive evidence of the execution of such deed or deeds by the grantor or the grantors to the grantee or grantees therein named for the lands therein described, and the record of such deed or deeds may be offered or read in evidence upon the trial or hearing of any cause in any of the courts of this State as if the same had been properly probated and recorded: Provided, however, that nothing herein contained shall prevent such record or records from being attacked for fraud, and provided further that this section shall not apply to creditors or purchasers, but as to them the same shall stand as if this section had not been passed, and shall only apply to deeds executed prior to January 1, 1900.

History

(1929, c. 14, s. 1.)

§ 47-102. Absence of notarial seal.

Any deed executed prior to October 1, 2005, and duly acknowledged before a North Carolina notary public, and the probate recites "witness my hand and notarial seal," or words of similar import, and no seal was affixed to the said deed, shall be ordered registered by the clerk of the superior court of the county in which the land lies, upon presentation to him: Provided, the probate is otherwise in due form.

History

(1935, c. 130; 1943, c. 472; 1945, c. 808, s. 3; 2013-204, s. 1.34.)

Cross References. - As to absence of notarial seal from acknowledgment, see G.S. 47-53.1.

Effect of Amendments. - Session Laws 2013-204, s. 1.34, effective June 26, 2013, substituted "October 1, 2005" for "the first day of January, 1945".

§ 47-103. Deeds probated and registered with notary's seal not affixed, validated.

Any deed conveying or affecting real estate executed prior to January 1, 1932, and ordered registered and recorded in the county in which the land lies prior to said date, from which deed and the acknowledgment and privy examination thereof the seal of the notary public taking the acknowledgment or privy examination of the grantor or grantors thereof was omitted, is hereby declared to be sufficient and valid, and the probate and registration thereof are hereby in all respects validated and confirmed to the same effect as if the seal of said notary was affixed to the acknowledgment or privy examination thereof.

History

(1941, c. 20.)

§ 47-104. Acknowledgments of notary holding another office.

In every case where deeds or other instruments have been acknowledged before a notary public, when the notary public at the time was also holding some other office, and the deed or other instrument has been duly probated and recorded, such acknowledgment taken by such notary public is hereby declared to be sufficient and valid.

History

(1935, c. 133; 1937, c. 284.)

§ 47-105. Acknowledgment and private examination of married woman taken by officer who was grantor.

In all cases where a deed or deeds of mortgages or other conveyances of land dated prior to the first day of January, 1926, purporting to convey lands have been registered in the office of the register of deeds of the county where the lands conveyed in said deeds are located prior to said first day of January, 1926, and the acknowledgments or proof of execution of such deed or deeds and the private examination of any married woman who is a grantor in such deed or deeds have been taken as to some of the grantors, and the private examination of any married woman grantor in such deed has been taken by an officer who was himself one of the grantors named in such deed or deeds, such defective execution, acknowledgment, proof of execution and the private examination of such married woman, evidenced by the certificate thereof on such deed and the registration thereof as above described and set forth, shall be and the same are hereby declared to be in all respects valid, and such deed or deeds or other conveyances of land are declared to be in all respects duly executed, probated and recorded to the same effect as if such officer taking such proof or acknowledgment of execution or taking the private examination of such married woman and certifying thereto upon such deed or deeds had not been named as grantor therein and had not been interested therein in any way whatsoever.

History

(1937, c. 91.)

§ 47-106. Certain instruments in which clerk of superior court was a party, validated.

In all cases where a deed, or other conveyance of land dated prior to the first day of January, 1918, purporting to convey land, wherein the grantor or one of the grantors therein was at the time clerk of the superior court of the county where the land purporting to be conveyed was located, was acknowledged, proof of execution, privy examination of a married woman, and, or, order of registration had and taken before a deputy clerk of the superior court of said county, and the instrument registered upon the order of said deputy clerk of the superior court in the office of the register of deeds of said county, within two years from the date of said instrument, such instrument and its probate are hereby in all respects validated and confirmed; and such instrument, together with such defective acknowledgment, proof of execution, privy examination of a married woman, order of registration, and the certificate of such deputy clerk of the superior court, and the registration thereof, are hereby declared in all respects to be valid and binding upon the parties of such instrument and their privies, and such instrument so probated and recorded together with its certificates may be read in evidence as a muniment of title, for all intents and purposes, in any of the courts of this State.

History

(1939, c. 261.)

§ 47-107. Validation of probate and registration of certain instruments where name of grantor omitted from record.

Whenever any deed, deed of trust, conveyance or other instrument permitted by law to be registered in this State has been registered for a period of 21 years or more and a clerk of the superior court or a register of deeds has adjudged the certificate of the officer before whom the acknowledgment was taken to be in due form and correct and has ordered the instrument to be recorded, but the name of a grantor which appears in the body of the instrument and as a signer of the instrument has been omitted from the record of the certificate of the officer before whom the acknowledgment was taken, such deed, deed of trust, conveyance or other instrument shall be conclusively presumed to have been duly acknowledged, probated and recorded; provided this presumption shall not affect litigation instituted within 21 years after date of registration.

History

(1941, c. 30; 1971, c. 825.)

§ 47-108. Acknowledgments before notaries under age.

All acts of notaries public for the State of North Carolina who were not yet 21 years of age at the time of the performance of such acts are hereby validated; and in every case where deeds or other instruments have been acknowledged before such notary public who was not yet 21 years of age at the time of taking of said acknowledgment, such acknowledgment taken before such notary public is hereby declared to be sufficient and valid.

History

(1941, c. 233.)

§ 47-108.1. Certain corporate deeds, etc., declared validly admitted to record.

Deeds, conveyances and other instruments of writing of corporations entitled to registration, which have been heretofore duly executed in the manner required by law, by the proper officers of the corporation, and which have prior to March 8, 1943, been admitted to registration, on the acknowledgment or proof of the proper executing officer, in the manner required by law, shall be, and the same are hereby declared to be, in all respects validly admitted to record, although such officer at the date of such acknowledgment or proof had ceased to be an officer of such corporation, or such corporation at the date of such acknowledgment or proof had ceased to exist.

History

(1943, c. 598.)

§ 47-108.2. Acknowledgments and examinations before notaries holding some other office.

In every case where deeds or other instruments have been acknowledged, and where privy examination of wives had, before a notary public, when the notary public at the time was also holding some other office, and the deed or other instrument has been otherwise duly probated and recorded, such acknowledgment taken by, and such privy examination had before such notary public is hereby declared to be sufficient and valid.

History

(1945, c. 149.)

§ 47-108.3. Validation of acts of certain notaries public prior to November 26, 1921.

In all cases where prior to November 26, 1921, instruments by law, or otherwise, required, permitted or authorized to be registered, certified, probated, recorded or filed with certificates of notaries public showing the acknowledgments or proofs of execution thereof as required by the laws of the State of North Carolina have been registered, certified, probated, recorded or filed, such registration, certifications, probates, recordations and filings are hereby validated and made as good and sufficient as though such instruments had been in all respects properly registered, certified, probated, recorded or filed, notwithstanding there are no records in the office of the Governor of the State of North Carolina or in the office of the clerk of the superior court of the county in which such notaries public were to act that such persons acting as such notaries public had ever been appointed or subscribed written oaths or received any certificates or commissions or were qualified as notaries public at the time of the performance of the acts hereby validated.

History

(1947, c. 102.)

§ 47-108.4. Acknowledgments, etc., of instruments of married women made since February 7, 1945.

All acknowledgments, probates and registrations of instruments wherein any married woman was a grantor, including deeds and mortgages on land, made since February 7, 1945, are hereby validated, approved and declared of full force and effect.

History

(1947, c. 991, s. 2.)

§ 47-108.5. Validation of certain deeds executed in other states where seal omitted.

All deeds to lands in North Carolina, executed prior to January 1, 1991, without seal attached to the maker's name, which deeds were acknowledged in another state, the laws of which do not require a seal for the validity of a conveyance of real property located in that state, and which deeds have been duly recorded in this State, shall be as valid to all intents and purposes as if the same had been executed under seal.

History

(1949, cc. 87, 296; 1959, c. 797; 1983, c. 398, s. 6; 1985, c. 70, s. 6; 1987, c. 277, s. 6; 1989, c. 390, s. 6; 1991, c. 489, s. 6.)

Legal Periodicals. - For brief comment on this section, see 27 N.C.L. Rev. 475 (1949).

§ 47-108.6. Validation of certain conveyances of foreign dissolved corporations.

In all cases when, prior to April 1, 2021, any dissolved foreign corporation has, prior to its dissolution, by deed of conveyance purported to convey real property in this State, and the instrument recites a consideration, is signed by the proper officers in the name of the corporation, sealed with the corporate seal and duly registered in the office of the register of deeds of the county where the land described in the instrument is located, but there is error in the attestation clause and acknowledgment in failing to identify the officers signing the deed and to recite that authority was duly given and that it was the act of the corporation, the deed has the same force and effect as if the attestation clause and acknowledgment were in every way proper.

History

(1949, c. 1212; 2013-204, s. 1.35; 2021-91, s. 4(k).)

Effect of Amendments. - Session Laws 2013-204, s. 1.35, effective June 26, 2013, substituted "April 1, 2013" for "the first day of January, 1947".

Session Laws 2021-91, s. 4(k), effective October 1, 2021, rewrote the section.

Legal Periodicals. - For brief comment on this section, see 27 N.C.L. Rev. 440 (1949).

§ 47-108.7. Validation of acknowledgments, etc., by deputy clerks of superior court.

All acts heretofore performed by deputy clerks of the superior court in taking acknowledgments, examining witnesses and probating wills, deeds and other instruments required or permitted by law to be recorded are hereby validated: Provided, nothing in this section shall affect pending litigation.

History

(1949, c. 1072.)

§ 47-108.8. Acts of registers of deeds or deputies in recording plats and maps by certain methods validated.

All acts heretofore performed by a register of deeds, or a deputy register of deeds in recording plats and maps by transcribing a correct copy thereof or permanently attaching the original to the records in a book designated "Book of Plats" is hereby validated the same as if said plats had been recorded as required by G.S. 47-30: Provided, however, that nothing herein contained shall affect pending litigation.

History

(1949, c. 1073.)

§ 47-108.9. Validation of probate of instruments pursuant to G.S. 47-12.

The probates of all instruments taken on and after February 7, 1945, in accordance with the provisions of G.S. 47-12, as amended by section 11 of Chapter 73 of the Session Laws of 1945 and section 1 of Chapter 991 of the Session Laws of 1947 and as further amended by sections 2 and 3 of Chapter 815 of the Session Laws of 1949, are hereby in all respects validated; provided, however, that this section shall not apply to pending litigation.

History

(1949, c. 815, s. 3.)

§ 47-108.10. Validation of registration of plats upon probate in accordance with G.S. 47-30.

The registration of all plats which have prior to February 6, 1953, been admitted to registration upon probate thereof, in accordance with the provisions of G.S. 47-30 as amended by section 1 of Chapter 47 of the Session Laws of 1953, is hereby validated.

History

(1953, c. 47, s. 2.)

§ 47-108.11. Validation of recorded instruments where seals have been omitted.

In all cases of any deed, deed of trust, mortgage, lien, or other instrument authorized or required to be registered in the office of the register of deeds of any county in this State, where it appears of record or it appears that from the instrument, as recorded in the office of the register of deeds of any county in the State, that there has been omitted from the recorded or registered instrument the word "seal" or "notarial seal" and that any of the recorded or registered instruments shows or recites that the grantor or grantors "have hereunto fixed or set their hands and seals" and the signature of the grantor or grantors appears without a seal thereafter or on the recorded or registered instrument or in all cases where it appears there is an attesting clause that recites "signed, sealed and delivered in the presence of," and the signature of the grantor or grantors appears on the recorded or registered instrument without any seal appearing thereafter or of record, then all such deeds, mortgages, deeds of trust, liens, or other instruments, and their registration in the office of the register of deeds, are in all respects valid and binding and are in all respects valid and binding to the same extent as if the word "seal" or "notarial seal" had not been omitted, and the registration and recording of the instruments in the office of the register of deeds in any county in this State are valid, proper, legal, and binding registrations.

This section does not apply in any respect to any instrument recorded or registered subsequent to April 1, 2021, or to pending litigation or to any instruments now directly or indirectly involved in pending litigation.

History

(1953, c. 996; 1959, c. 1022; 1973, c. 519; c. 1207, s. 2; 1977, c. 165; 1979, 2nd Sess., c. 1185, s. 1; 1983, c. 398, s. 7; 1985, c. 70, s. 7; 1987, c. 277, s. 7; 1989, c. 390, s. 7; 1991, c. 489, s. 7; 1995, c. 163, s. 16; 1999-456, s. 12; 2013-204, s. 1.36; 2021-91, s. 4( l ).)

Effect of Amendments. - Session Laws 2013-204, s. 1.36, effective June 26, 2013, substituted "April 1, 2013" for "January 1, 1999" in the second paragraph.

Session Laws 2021-91, s. 4( l ), effective October 1, 2021, rewrote the section.

CASE NOTES

Cited in Page v. Miller, 252 N.C. 23, 113 S.E.2d 52 (1960).


§ 47-108.12. Validation of instruments acknowledged before United States commissioners.

All deeds, mortgages, or other instruments permitted or required by law to be registered, which prior to January 1, 1933, have been proved or acknowledged before a United States commissioner, or U.S. commissioner, are hereby in all respects validated as to such proof or acknowledgment, and all registrations of such deeds or conveyances, upon such probates, acknowledgments and private examinations, or any of them, are hereby declared to be sufficient and validated.

History

(1953, c. 987.)

§ 47-108.13. Validation of certain instruments registered prior to January 1, 1934.

In all cases where prior to January 1, 1934 instruments by law required or authorized to be registered show the signatures and seal of each of the grantors therein and further show that each of such grantors has appeared before or signed such instruments in the presence of a notary public, justice of the peace or other person duly authorized to take acknowledgments, and such instruments have been ordered registered by the clerk of the superior court or other officer qualified to pass upon probate and admit instruments to registration, and actually put on the books in the office of the register of deeds, as if properly acknowledged, all such instruments and their registrations are hereby validated and made as good and sufficient as though such instruments had been in all respects properly acknowledged: Provided, that this section shall not apply to any privy examination or acknowledgment of a married woman.

History

(1953, c. 1334.)

§ 47-108.14. Conveyances by the United States acting by and through the General Services Administration.

The United States of America, acting by and through the General Services Administration may convey lands and other property in the State of North Carolina which is transferable by deed, quitclaim deed, or other means of conveyances without the Regional Director or other duly authorized agent acting for and on behalf of the United States of America, adopting or placing a "seal," in any form, after the signature of the grantor's agent, or elsewhere on said deed, quitclaim deed, or other instrument, and the conveyances of the United States of America acting by and through the General Services Administration, and executed by its Regional Director or other duly authorized agent, although without a "seal" appearing thereon, shall be in all respects valid and binding to the same extent as if the word "seal" or some other type of seal, appeared after the signature of the grantor's agent, or elsewhere on said conveyances.

All conveyances prior to April 19, 1955, where any deed, quitclaim deed, or other instrument conveying land or other property in the State of North Carolina has been executed by the United States of America, by and through the General Services Administration, and said conveyances are authorized or required to be registered in the office of the register of deeds of any county in this State, and it appears from said instrument, or said instrument as recorded in the office of the register of deeds of any county in this State, that a seal has been omitted from said instruments, that notwithstanding the absence of a seal all such conveyances are hereby declared to be in all respects valid and binding to convey lands and property rights in the State of North Carolina to the grantees named therein, to the same extent as if the word "seal," or a seal in some other form, had appeared after the signature of the grantor's agent, or elsewhere on said conveyances, and the registration and recording of such conveyances in the office of the register of deeds in all counties in this State are hereby declared to be valid, proper, legal and binding registrations to the same extent as if such conveyances were executed under seal.

History

(1955, c. 629, s. 1.)

§ 47-108.15. Validation of registration of instruments filed before order of registration.

All deeds, deeds of trust, mortgages, chattel mortgages, contracts and all other instruments required or permitted by law to be registered which have heretofore been accepted for filing and registration by registers of deeds on a date preceding the date of the clerk's order of registration are hereby validated, approved, confirmed and declared to be valid, proper, legal and binding registrations to the same extent as if such instruments had been accepted for filing and registration on the date of or subsequent to the date of the clerk's order of registration.

History

(1957, c. 1430.)

§ 47-108.16. Validation of certain deeds executed by nonresident banks.

All deeds and other conveyances of land in this State executed on behalf of banks not incorporated in the State of North Carolina, by a trust officer thereof, and properly recorded on or before December 31, 1963, which deeds are otherwise regular and valid, are hereby validated.

History

(1965, c. 610.)

§ 47-108.17. Validation of certain deeds where official capacity not designated.

In all cases where an executor, executrix, administrator, administratrix, guardian or commissioner has executed a deed, deed of trust or other instrument of conveyance permitted by law to be registered in this State and the granting clause of the instrument sets forth the official capacity of the grantor, neither the failure to redesignate the grantor's official capacity following his or her signature nor the failure to designate the official capacity of the grantor in the acknowledgment of the instrument shall invalidate the conveyance provided the instrument is otherwise properly executed.

History

(1973, c. 1220, s. 1.)

§ 47-108.18. Registration of certain instruments containing a notarial jurat validated.

A notarial jurat constitutes an acknowledgment in due form for all plats or maps that have heretofore been accepted for filing and registration under G.S. 47-30 as amended. No plat or map heretofore accepted for filing and registration, that contains a notarial jurat instead of an acknowledgment may be held to be improperly registered solely for lack of a proper acknowledgment.

History

(1983, c. 391.)

§ 47-108.18A. Registration of certain instruments containing a notarial acknowledgment.

A notarial acknowledgment constitutes a jurat in due form for all instruments that have heretofore been accepted for filing and registration under this Chapter or which relate to real estate located within this State.

History

(2013-204, s. 1.37.)

§ 47-108.18B. Registration of certain instruments containing a notarial jurat.

A notarial jurat constitutes an acknowledgment in due form for all instruments that have heretofore been accepted for filing and registration under this Chapter or which relate to real estate located within this State.

History

(2013-204, s. 1.37.)

§ 47-108.19. Validation of certain maps and plats that cannot be copied.

All maps and plats registered before June 1, 1983, pursuant to G.S. 47-30 that met all of the requirements of that statute except that they were not on a material from which legible copies could be made or did not contain the original of the surveyor's signature and acknowledgment are declared to be valid registrations.

History

(1983, c. 756.)

§ 47-108.20. Validation of certain recorded instruments that were not acknowledged.

All instruments recorded before April 1, 2021, that were not reexecuted and reacknowledged and that correct an obvious typographical or other minor error in a recorded instrument that was previously properly executed and acknowledged are valid instruments.

History

(1985 (Reg. Sess., 1986), c. 842, s. 2; 2013-204, s. 1.38; 2021-91, s. 4(m).)

Effect of Amendments. - Session Laws 2013-204, s. 1.38, effective June 26, 2013, substituted "April 1, 2013" for "June 30, 1986".

Session Laws 2021-91, s. 4(m), effective October 1, 2021, substituted "April 1, 2021” for "April 1, 2013,” and deleted "declared to be” preceding "valid.”

§ 47-108.21. Sales for 1930 on dates other than first Monday in June validated.

All sales of land for failure to pay taxes held or conducted by any sheriff or any tax collector of any county, city, town, or other municipality during the year of 1930, on any day subsequent to or other than the first Monday in June of said year, are hereby approved, confirmed, validated, and declared to be proper, valid, and legal sales of such land and legally binding in all respects, and all certificates of sale made and issued upon and in accordance with such sales are hereby approved and validated to all intents and purposes with such full force and legal effect as if said sales had been held and conducted on said first Monday of June, 1930.

History

(1931, c. 160; 1971, c. 806, s. 1; 1987, c. 777, s. 4(1).)

Editor's Note. - This section was formerly G.S. 105-387. It was recodified by Session Laws 1987, c. 777, s. 4(1), effective August 12, 1987.

§ 47-108.22. Tax sales for 1931-32 on day other than law provides and certificates validated.

All sales of land for failure to pay taxes held or conducted by any sheriff or any tax collector of any county, city, town, or other municipality during the years 1931 and 1932, on any day subsequent to or other than the first Monday in June of said year, are hereby approved, confirmed, validated, and declared to be proper, valid, and legal sales of such land and legally binding in all respects, and all certificates of sale made and issued upon and in accordance with such sales approved and validated to all intents and purposes with such full force and legal effect as if said sales had been held and conducted on said first Monday of June, 1931 and 1932.

History

(1933, c. 177; 1971, c. 806, s. 1; 1987, c. 777, s. 4(1).)

Editor's Note. - This section was formerly G.S. 105-388. It was recodified by Session Laws 1987, c. 777, s. 4(1), effective August 12, 1987.

§ 47-108.23. Tax sales for 1933-34 and certificates validated.

All sales of land for failure to pay taxes held or conducted by any sheriff or any tax collector of any county, city, town, or other municipality during the years 1933 and 1934, or on any date subsequent to or other than the date prescribed by law, and all certificates of sale executed and issued pursuant to and in accordance with such sales be and the same are hereby approved, confirmed, and validated and shall have the same force and legal effect as if said sales had been held and conducted on the date prescribed by law.

The board of county commissioners of any county or the governing board of any city, town, or other municipality may by resolution order the sheriff or tax collecting officer of the said county, city, town, or other municipality to advertise in the manner provided by law and sell all land for the taxes of any year levied by the said county, city, town, or other municipality, which land has not heretofore been legally sold for the failure to pay said taxes. The sale or sales herein authorized shall be held not later than the first Monday in September 1935, and certificates of sale shall be issued in accordance with and pursuant to said sale or sales in the same manner as if said sale or sales had been held and conducted as provided by law. Any sale held and conducted under the provisions of this paragraph and all certificates issued pursuant to such a sale shall be and the same are hereby approved, confirmed, and validated and shall have the same force and legal effect as if said sale had been held and conducted on the date prescribed by law.

All actions instituted in any county, city, town, or other municipality for the foreclosure of certificates of sale issued for the taxes of the years 1927, 1928, 1929, 1930, 1931 and 1932 subsequent to October 1, 1934, and all such actions instituted before October 1, 1935, shall be and the same are hereby approved, validated, and declared to be legally binding and of the same force and effect as if said actions were instituted prior to October 1, 1934: Provided, that this section shall not be construed to repeal any private or local act passed by the General Assembly of 1935.

History

(1935, c. 331; 1971, c. 806, s. 1; 1987, c. 777, s. 4(1).)

Editor's Note. - This section was formerly G.S. 105-389. It was recodified by Session Laws 1987, c. 777, s. 4(1), effective August 12, 1987.

§ 47-108.24. Notices of sale for taxes by publication validated.

All sales of real property under tax certificate foreclosures made between January 1, 1927, and March 13, 1937, where the original notice of sale was published for four successive weeks, and any notice of resale was published for two successive weeks, preceding said sales, whether the notice of sale was required to be published in a newspaper or at courthouse door, or both, shall be, and the same are in all respects validated as to publication of said notice: Provided said publication was completed as above set out within 10 days of the date of the sale.

The provisions of this section shall not apply to the Counties of Alleghany, Beaufort, Cabarrus, Camden, Carteret, Caswell, Currituck, Halifax, Harnett, Henderson, Hertford, Hyde, Iredell, Johnston, Jones, Macon, Mitchell, Moore, Nash, New Hanover, Perquimans, Pitt, Polk, Rowan, Rutherford, Scotland, Surry, Wake, Warren, Washington, and Wayne.

History

(1937, c. 128; 1971, c. 806, s. 1; 1987, c. 777, s. 4(1).)

Editor's Note. - This section was formerly G.S. 105-390. It was recodified by Session Laws 1987, c. 777, s. 4(1), effective August 12, 1987.

§ 47-108.25. Validation of sales and resales held pursuant to G.S. 105-374.

All sales or resales held prior to April 14, 1951, pursuant to G.S. 105-374, where the advertisement was in accordance with G.S. 1-327 and G.S. 1-328 as provided by such sections prior to their repeal, are validated to the same extent as if such advertisement were in accordance with Article 29A of Chapter 1 of the General Statutes; and all such sales, where the provisions of G.S. 45-28 as to resales, as provided by such section prior to its repeal, were followed, are validated to the same extent as if the resale procedure provided for in Article 29A of Chapter 1 of the General Statutes had been followed.

History

(1951, c. 1036, s. 2; 1971, c. 806, s. 1; 1987, c. 777, s. 4(1).)

Editor's Note. - This section was formerly G.S. 105-391. It was recodified by Session Laws 1987, c. 777, s. 4(1), effective August 12, 1987.

G.S. 1-327 and G.S. 1-328, referred to in this section, were repealed by Session Laws 1949, c. 719, s. 2. G.S. 45-28, referred to in this section, was repealed by Session Laws 1949, c. 720, s. 5.

§ 47-108.26. Validation of reconveyances of tax foreclosed property by county boards of commissioners.

The action of county boards of commissioners taken prior to March 20, 1951, reconveying tax foreclosed property by private sale to the former owners or other interested parties for amounts not less than such counties' interest therein is hereby ratified, confirmed, and validated.

History

(1951, c. 300, s. 2; 1971, c. 806, s. 1; 1987, c. 777, s. 4(1).)

Editor's Note. - This section was formerly G.S. 105-392. It was recodified by Session Laws 1987, c. 777, s. 4(1), effective August 12, 1987.

§ 47-108.27. Title to real property affected by boundary certification; liens.

  1. Title to real property previously treated as being subject to the jurisdiction of the State of South Carolina but that is recognized as being within the boundaries of this State as a result of the certification of the boundary is not affected by the certification of the boundary or the recognition of the real property as being within the boundaries of this State. All conveyances and instruments of title, of any sort, made prior to the certification of the boundary shall be recognized and given full faith and credit in this State according to the law, jurisdiction, and terms in effect at the time of the conveyance in the jurisdiction the property was previously treated as being subject to. For the purposes of this subsection, 'instruments of title' means any instrument that affects title or constitutes the chain of title to real property, including, but not limited to, all deeds, wills, estate documents evidencing transfer of title, plats, surveys, easements, rights-of-way, outstanding mortgages and deeds of trust, judicial orders or decrees, and documents evidencing intestate succession.
  2. Liens recorded prior to the date of boundary certification with the register of deeds or docketed with the clerk of superior court in the county in this State where the affected parcel is situated shall attach, as a class, to the affected parcel as of the effective date and time of the boundary certification. This class of liens shall be assigned priority as of the date of boundary certification but shall retain the same priority among themselves as if this subsection did not apply.

History

(2016-23, s. 3(c), (d).)

Cross References. - As to reestablishment of North Carolina-South Carolina boundary, see G.S. 141-9.

Editor's Note. - Session Laws 2016-23, s. 3(c), (d), effective June 22, 2016, was codified as this section at the direction of the Revisor of Statutes.

Session Laws 2016-23, s. 3(a) and (b), provides: "(a) The North Carolina Geodetic Survey shall record the final survey of the confirmed boundary in the office of the register of deeds in every county in this State where real property has been affected by the certification of the boundary. The applicable uniform fees provided in G.S. 161-10 shall apply to the recordation of the final survey. The register of deeds shall register and index the surveys in accordance with the provisions of Article 2 of Chapter 161 of the General Statutes.

"(b) For parcels of real property affected by the certification of the boundary, situated in whole or in part within the boundaries of this State, the North Carolina Geodetic Survey shall record a Notice of Affected Parcel in the office of the register of deeds in the county or counties where each affected parcel is situated. The register of deeds shall register and index the Notice in accordance with the provisions of Article 2 of Chapter 161 of the General Statutes. Notwithstanding any other provision of law to the contrary, the register of deeds shall not collect any fees or taxes for the Notice recorded pursuant to this subsection. The Notice shall contain at least all of the following information:

"(1) Reference to this act.

"(2) The recording reference for the final survey of the confirmed boundary recorded pursuant to subsection (a) of this section.

"(3) The names of the record owners of the parcel.

"(4) The property address of the parcel.

"(5) A tax parcel identification number or other applicable identifier used by a county tax office, if available.

"(6) A brief description of the parcel, if available.

"(7) A source deed reference for the parcel, if available."

Session Laws 2016-23, s. 12(a), is a severability clause.

§ 47-108.28. Seven-year curative statute.

  1. An instrument conveying or purporting to convey an interest in real property that contains a defect, irregularity, or omission shall be deemed effective to vest title as stated therein and to the same extent as though the instrument had not contained the material defect, irregularity, or omission, if both of the following conditions are met:
    1. The instrument is recorded by the register of deeds in the county or counties where the property is situated.
    2. The material defect, irregularity, or omission is not corrected within seven years after the instrument was recorded.
  2. For the purposes of this section only, an instrument shall be deemed to contain a "defect, irregularity, or omission" when any of the following conditions are met:
    1. The recorded instrument lacks any of the following:
      1. A properly executed form of acknowledgment as provided under Article 3 of this Chapter or Chapter 10B of the General Statutes.
      2. The proper recital of consideration paid.
      3. The residence of a party.
      4. The address of the property.
      5. The address of a party.
      6. The date of the instrument.
      7. The date of any instrument or obligation secured by the instrument.
      8. The proper affixation of seal by any person authorized to execute an instrument by virtue of an office or appointment held by the grantor that is required to affix the seal to the recorded instrument under applicable law.
    2. The name of a grantor, trustor, mortgagor, assignor, borrower, or other person with an interest in the property does not appear in any part of the instrument, but the person executed the instrument without limitation or qualification.  The person who executed the instrument without limitation or qualification shall be deemed to have conveyed or encumbered (as applicable) any interest or right such person then had in the property conveyed or encumbered by the terms of the instrument.
  3. Nothing in this section is intended to modify any provisions of law pertaining to the competency or infancy of the grantor or the provisions of Chapter 22 of the General Statutes or to limit any remedies available under the laws of this State.

The proper recordation and indexing of a curative instrument or a notice of lis pendens shall toll the seven-year curative period.

History

(2017-110, s. 3; 2021-91, s. 12.)

Editor's Note. - Session Laws 2017-110, s. 5, as amended by Session Laws 2021-91, s. 12, made this section effective August 31, 2018, and applicable to instruments filed on or after that date.

ARTICLE 5. Registration of Official Discharges from the Armed Forces of the United States.

Sec.

§ 47-109. Book for record of discharges in office of register of deeds; specifications.

There shall be provided, and at all times maintained, in the office of the register of deeds of each county in North Carolina a special and permanent book, in which shall be recorded official discharges from the United States Army, Navy, Marine Corps and other branches of the Armed Forces of the United States. The book shall be securely bound, and the pages of the book shall be printed in the form of discharge papers, with sufficient blank lines for the recording of such dates as may be contained in the discharge papers offered for registration.

History

(1921, c. 198, s. 1; C.S., s. 3366(k); 1945, c. 659, s. 2; 2011-183, s. 34.)

Effect of Amendments. - Session Laws 2011-183, s. 34, effective June 20, 2011, in the first sentence, substituted "United States Army, Navy, Marine Corps" for "army, navy, marine corps" and "Armed Forces" for "armed forces," and in the last sentence, made minor stylistic changes.

§ 47-110. Registration of official discharge or certificate of lost discharge.

Upon the presentation to the register of deeds of any county of any official discharge, or official certificate of lost discharge, from the United States Army, Navy, Marine Corps, or any other branch of the Armed Forces of the United States the register of deeds shall record the same without charge in the book provided for in G.S. 47-109.

History

(1921, c. 198, s. 2; C.S., s. 3366(l); 1943, c. 599; 1945, c. 659, s. 1; 2011-183, s. 35.)

Local Modification. - Alleghany: 1945, c. 877.

Effect of Amendments. - Session Laws 2011-183, s. 35, effective June 20, 2011, substituted "United States Army, Navy, Marine Corps" for "army, navy, marine corps" and "Armed Forces" for "armed forces," and made a minor stylistic change.

§ 47-111. Inquiry by register of deeds; oath of applicant.

If any register of deeds shall be in doubt as to whether or not any paper so presented for registration is an official discharge from the United States Army, Navy, Marine Corps, or any other branch of the Armed Forces of the United States or an official certificate of lost discharge, the register of deeds shall have power to examine, under oath, the person so presenting such discharge, or otherwise inquire into its validity; and every register of deeds to whom a discharge or certificate of lost discharge is presented for registration shall administer to the person offering such discharge or certificate of lost discharge for registration the following oath, to be recorded with and form a part of the registration of such discharge or certificate of lost discharge:

"I, ______________, being duly sworn, depose and say that the foregoing discharge (or certificate of lost discharge) is the original discharge (or certificate of lost discharge) issued to me by the government of the United States; and that no alterations have been made therein by me, or by any person to my knowledge. _____________________________________________________________________ Subscribed and sworn to before me this _______________________________ day of ______________, ________ ____________________________"

History

(1921, c. 198, s. 3; C.S., s. 3366(m); 1999-456, s. 59; 2011-183, s. 36.)

Effect of Amendments. - Session Laws 2011-183, s. 36, effective June 20, 2011, in the first paragraph, substituted "United States Army, Navy, Marine Corps, or any other branch of the Armed Forces of the United States" for "army, navy, or marine corps of the United States" and made a minor stylistic change.

§ 47-112. Forgery or alteration of discharge or certificate; punishment.

Any person who shall forge, or in any manner alter any discharge or certificate of lost discharge issued by the government of the United States, and offer the same for registration or secure the registration of the same under the provisions of this Article shall be guilty of a Class 1 misdemeanor.

History

(1921, c. 198, s. 4; C.S., s. 3366(n); 1993, c. 539, s. 409; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 47-113. Certified copy of registration.

Any person desiring a certified copy of any such discharge, or certificate of lost discharge, registered under the provisions of this Article shall apply for the same to the register of deeds of the county in which such discharge or certificate of lost discharge is registered. The register of deeds shall furnish certified copies of instruments registered under this Article without charge to any member or former member of the Armed Forces of the United States who applies therefor.

History

(1921, c. 198, s. 5; C.S., s. 3366(o); 1945, c. 659, s. 3; 1969, c. 80, s. 11; 2011-183, s. 37.)

Effect of Amendments. - Session Laws 2011-183, s. 37, effective June 20, 2011, substituted "Armed Forces" for "armed forces" in the last sentence.

§ 47-113.1: Repealed by Session Laws 2003-248, s. 1, effective January 1, 2004.

Cross References. - For similar provisions pertaining to restriction of access to military discharge documents, see G.S. 47-113.2.

§ 47-113.2. Restricting access to military discharge documents.

  1. All military discharge documents filed on or after January 1, 2004, shall be considered a public record, but for confidential safekeeping and restricted access to such documents, these documents will be filed with the registers of deeds in this State. These documents are exempt from public inspection and access except as allowed in subsections (b) and (m) of this section.
  2. Definitions:
    1. Authorized party. - Four categories of authorized parties are recognized with respect to access to military discharge documents under subsection (e) of this section:
      1. The subject of the document or the subject's widow or widower.
      2. Agents and representatives of the subject authorized in writing:
        1. By the subject or subject's widow or widower in a notarized authorization,
        2. By a court to represent subject, or
        3. By the subject's executor acting on behalf of a deceased subject.
      3. Authorized agents of the Department of Military and Veterans Affairs, the United States Department of Veterans Affairs, the Department of Defense, or a court official with an interest in assisting the subject or the deceased subject's beneficiaries to obtain a benefit.
      4. Agents or representatives of the North Carolina State Archives.
    2. Filing office. - The office where military discharge documents are recorded, registered, or filed in this State is the register of deeds.
    3. Military discharge document. - Any document that purports to represent a notice of separation from or service in the Armed Forces of the United States or armed forces of any state, including, but not limited to, Department of Defense Form 214 or 215, WD AGO 53, WD AGO 55, WD AGO 53-55, NAVMC 78-PD, and NAVPERS 553.
  3. A military discharge document shall be accepted for filing upon presentation in person.
  4. The filing officer may refuse to accept any document that is:
    1. Not submitted in person by an authorized party in accordance with subsection (b) of this section.
    2. Not an original, a carbon copy, or a photographic copy issued or certified by an agency of federal or State government.
  5. No copy of a military discharge document or any other information from such document filed after January 1, 2004, shall be made available other than in accordance with subsection (b) or (m) of this section.
  6. Certified copies of a military discharge document will be made available only in accordance with subsection (h) of this section and only by individual request.
  7. Uncertified copies of a military discharge document will be made available to an authorized party in accordance with subsection (b) of this section and only by individual request.
  8. The North Carolina Association of Registers of Deeds and the Department of Military and Veterans Affairs shall adopt such request forms and associated rules as are required to implement the provisions of this section. All filing offices shall use the forms and comply with the rules, as adopted.
  9. Completed request forms shall be maintained in the register of deeds for a period of one year.
  10. The request forms shall not be considered public records and are subject to the same restricted access as the military discharge document.
  11. In the event images of and the index to military discharge documents filed prior to January 1, 2004, have not been commingled with other publicly available document images and their index in a filing office, the images and the index will be maintained and are subject to all the provisions of this section that apply to newly filed documents.
  12. The register of deeds shall, to the greatest extent possible, take appropriate protective actions in accordance with any limitations determined necessary by the register of deeds with regard to records that were filed before January 1, 2004.
  13. Subsection (e) of this section shall not apply to images of military discharge documents that have been on file for over 80 years.
  14. There shall be no fee charged for filing military discharge documents or for providing certified copies of military discharge documents provided to those who have a right to access under subsection (e) of this section. Uncertified copy of a military discharge document that becomes public record under subsection (m) of this section is subject to fee as determined in G.S. 161-10(a)(11).
  15. Filing offices shall be responsible for the cost of compliance with this section.
  16. Recording officials shall not be liable for any damages that may result from good faith compliance with the provisions of this section.
  17. The words "register of deeds" appearing in this section shall be interpreted to mean "register of deeds, assistant register of deeds, or deputy register of deeds."

History

(2003-248, s. 2; 2011-183, s. 38; 2011-246, s. 8; 2013-15, s. 1; 2015-241, s. 24.1(o); 2015-268, s. 7.3(a).)

Cross References. - As to public records and archives, see G.S. 121-5.

As to Department of Military and Veterans Affairs, see G.S. 143B-1210 et seq.

Editor's Note. - Subsections (c1), (d), (d1), (d2), (e), (e1), (e2) and (f) through ( l ) were redesignated as (d) through (q) at the direction of the Revisor of Statutes.

Session Laws 2015-241, s. 24.1(a), as amended by Session Laws 2017-57, s. 19.1(a), provides: "The Department of Military and Veterans Affairs is established as a new executive department. All functions, powers, duties, and obligations vested in the following agencies are transferred to, vested in, and consolidated within the Department of Military and Veterans Affairs by a Type I transfer, as defined in G.S. 143A-6:

"(1) The following components of the Department of Administration:

"a. The Veterans' Affairs Commission.

"b. The Governor's Jobs for Veterans Committee.

"c. The Division of Veterans Affairs.

"(2) Repealed by Session Laws 2017-57, s. 19.1(a), effective July 1, 2017."

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2015-268, s. 7.3(a), made the amendment of this section by Session Laws 2015-241, s. 24.1(o), effective July 1, 2015.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2011-183, s. 38, effective June 20, 2011, in subdivision (b)(3), substituted "the Armed Forces of the United States or armed forces of any state" for "any armed forces of the United States or of any state" and deleted "or any other letter relating to the separation from the armed forces" from the end.

Session Laws 2011-246, s. 8, effective June 23, 2011, added "or the subject's widow or widower" in subdivision (b)(1)a.

Session Laws 2013-15, s. 1, effective March 28, 2013, substituted "subsections (b) and (m)" for "subsection (b)" in the second sentence of subsection (a); substituted "January 1, 2004" for "the effective date of this section" in subsections (e) and ( l ); substituted "80 years" for "50 years" in subsection (m); and made a minor punctuation change in subsection (q).

Session Laws 2015-241, s. 24.1(o), as amended by Session Laws 2015-268, s. 7.3(a), effective July 1, 2015, substituted "Department of Military and Veterans Affairs" for "Division of Veterans Affairs" in subdivision (b)(1)c. and subsection (h); and deleted "before January 1, 2004," following "shall adopt" in the first sentence of (h).

§ 47-114. Payment of expenses incurred.

The county commissioners of each county are hereby authorized and empowered in their discretion to appropriate from the general fund of the county an amount sufficient to cover any additional expense incurred by the register of deeds of the county in carrying out the purposes of this Article.

History

(1945, c. 659, s. 31/2.)

Legal Periodicals. - For article on the continuing power of attorney, see 5 Campbell L. Rev. 305 (1983).

ARTICLE 6. Registration and Execution of Instruments Signed under a Power of Attorney.

§ 47-115. Execution in name of either principal or attorney-in-fact; indexing in names of both.

Any instrument in writing executed by an attorney-in-fact shall be good and valid as the instrument of the principal, whether or not said instrument is signed and/or acknowledged in the name of the principal by the attorney-in-fact or by the attorney-in-fact designating himself as attorney-in-fact for the principal or acknowledged in the name of the attorney-in-fact without naming the principal from which it will appear that it was the purpose of the attorney-in-fact to be acting for and on behalf of the principal mentioned or referred to in the instrument. This section shall not affect any pending litigation or the status of any matter heretofore determined by the courts. This section shall apply to all such instruments heretofore or hereafter executed. Registers of deeds shall be required to index all such instruments filed for registration both in the name of the principal or principals executing the powers of appointment and in the name of the attorney-in-fact executing the instrument: Provided, that instruments heretofore registered and indexed only in the name of the attorney-in-fact shall be valid and in all respects binding upon the principal or principals insofar as validity of registration is concerned.

History

(1945, c. 204; 1959, c. 210.)

§ 47-115.1: Repealed by Session Laws 1983, c. 626, s. 2.

Cross References. - As to powers of attorney, see now the North Carolina Uniform Power of Attorney Act, G.S. 32C-1-101 et seq.

ARTICLE 7. Private Examination of Married Women Abolished.

§ 47-116: Transferred to G.S. 47-14.1 by Session Laws 1951, c. 893.

ARTICLE 8. Memoranda of Leases and Options.

Sec.

§ 47-117. Forms do not preclude use of others; adaptation of forms.

  1. The form prescribed in this Article does not exclude the use of other forms which are sufficient in law.
  2. The prescribed form may be adapted to fit the various situations in which the grantors or grantees are individuals, firms, associations, corporations, or otherwise, or combinations thereof.

History

(1961, c. 1174.)

CASE NOTES

Cited in Lawing v. Jaynes, 285 N.C. 418, 206 S.E.2d 162 (1974).


§ 47-118. Forms of registration of lease.

  1. A lease of land or land and personal property may be registered by registering a memorandum thereof which shall set forth:
    1. The names of the parties thereto;
    2. A description of the property leased;
    3. The term of the lease, including extensions, renewals and options to purchase, if any; and
    4. Reference sufficient to identify the complete agreement between the parties.
  2. If the provisions of the lease make it impossible or impractical to state the maximum period of the lease because of conditions, renewals and extensions, or otherwise, then the memorandum of lease shall state in detail all provisions concerning the term of the lease as fully as set forth in the written lease agreement between the parties.
  3. Registration of a memorandum of lease pursuant to subsections (a) and (b) of this section, shall have the same legal effect as if the written lease agreement had been registered in its entirety.

Such a memorandum may be in substantially the following form:

MEMORANDUM OF LEASE

______________________________________________________________________________

(Name and address or description of lessor or lessors)

hereby lease(s) to _________________________________________________________, (Name and address or description of lessee or lessees) for a term beginning the _____________________________ day of ______________, (Month) ________, and continuing for a maximum period of ___________________________, (Year) including extensions and renewals, if any, the following property:

(Here describe the property)

(If applicable: [There exists an option to purchase with respect to this leased property, in favor of the lessee which expires the ________ day of ____________, (Month) (Year) ____________, which is set forth at large in the complete agreement between the parties].) The provisions set forth in a written lease agreement between the parties dated the ________ day of ________, ________, are (Month) (Year) hereby incorporated in this memorandum. _____________________________________________________________ [Seal] (Lessor) _____________________________________________________________ [Seal] (Lessee)

(Acknowledgment as required by law.)

History

(1961, c. 1174; 1999-456, s. 59.)

§ 47-119. Form of memorandum for option to purchase real estate.

An option to purchase real estate may be registered by registering a memorandum thereof which shall set forth:

  1. The names of the parties thereto;
  2. A description of the property which is subject to the option;
  3. The expiration date of the option;
  4. Reference sufficient to identify the complete agreement between the parties.

Such a memorandum may be in substantially the following form:

NORTH CAROLINA __________________ COUNTY In consideration of ____________________________________________________, (Set out consideration) the receipt of which is hereby acknowledged, _________________________________ (Name and address of person selling option) does hereby give and grant to ________________________________________________ (Name and address of person buying option) the right and option to purchase the following property: (Here describe property) This option shall expire on the ________ day of ______________, ________. The provisions set forth in a written option agreement between the parties dated the ________ day of ______________, ________, are hereby incorporated in this memorandum. Witness our hand(s) and seal(s) this ________ day of ________, ________ _____________________________________________________________ (Seal) _____________________________________________________________ (Seal)

History

(1961, c. 1174; 1999-456, s. 59.)

§ 47-119.1. Form of memorandum for contract to purchase real estate.

A contract to convey real estate may be registered by registering a memorandum thereof which shall set forth all of the following:

  1. The names of the parties thereto.
  2. A description of the property which is subject to the contract.
  3. The expiration date of the contract.
  4. Reference sufficient to identify the complete agreement between the parties.

The memorandum may be in substantially the following form:

NORTH CAROLINA __________________ COUNTY ____________________________________________________________ (Name and address of person contracting to sell real estate) and ____________________________________________________________ (Name and address of person contracting to purchase real estate) have entered into a contract to sell and purchase the following property: ______________________________________________________________________________ (Here describe property) This contract provides for a closing date of the ________ day of ________, ________. The provisions set forth in a written contract to convey real estate between the parties dated the ________ day of ________, ________, are hereby incorporated in this memorandum. Witness our hand(s) and seal(s) this ______ day of ________, ________ (Seal) (Seal) [Acknowledgement notarial certificate by all parties, as provided by applicable law in order to register in the office of the register of deeds of the county in which the property is located.] The titles of the contract and the parties thereto, as contained in the original written contract, may be substituted in lieu of the above references.

History

(2011-351, s. 1.)

§ 47-120. Memorandum as notice.

Such memorandum of a lease, an option to purchase real estate, or a contract to convey real estate as proposed by G.S. 47-118, 47-119, or 47-119.1 when executed, acknowledged, delivered and registered as required by law, shall be as good and sufficient notice, and have the same force and effect as if the written lease, option to purchase real estate, or contract to convey had been registered in its entirety. However, it shall be conclusively presumed that the conditions of any contract to purchase that is the subject of a recorded memorandum under this section have been complied with or have expired and are no longer enforceable as against creditors or purchasers for valuable consideration who have recorded their interests after the memorandum from and after the expiration of 60 days from whichever of the following events occurs first:

  1. The closing date stated in the memorandum, or any recorded extension or renewal of the memorandum, signed by the parties and acknowledged before an officer authorized to take acknowledgements.
  2. The date when the conditions of the contract to convey, including payment of the last installment of earnest money or balance of purchase price (other than a purchase money note or deed of trust), and delivery of the deed from the seller to buyer were required by the terms of the recorded memorandum to have been performed, or the date of any recorded extension or renewal thereof signed by the parties and acknowledged before an officer authorized to take acknowledgements.

History

(1961, c. 1174; 2011-351, s. 2.)

Effect of Amendments. - Session Laws 2011-351, s. 2, effective June 27, 2011, and applicable to all memoranda of contracts to purchase real estate recorded prior to and on or after that date, rewrote the section, which formerly read: "Such memorandum of an option to purchase real estate, or lease as proposed by G.S. 47-118 or 47-119, when executed, acknowledged, delivered and registered as required by law, shall be as good and sufficient notice, and have the same force and effect as if the written lease or option to purchase real estate had been registered in its entirety."