JOSEPH W. S. BARBOUR, Appellant, v. ELIZABETH BICKERSTETH, Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTERRADO COUNTY.
Argued January 19, 1944. Decided February 4, 1944.
A neglect to have probated and registered any deed of conveyance with reference to real property within the time prescribed by statute renders said document null and void as against any party holding a subsequent instrument relating to such property which is duly probated and registered.
On appeal in an action of ejectment, judgment affirmed.
A. B. Ricks for appellant. Charles T. O. King for appellee.
MR. JUSTICE DAVID delivered the opinion of the Court.
This is an action of ejectment instituted in the Circuit Court for the First Judicial Circuit, Montserrado County, by Elizabeth Bickersteth against Joseph W. S. Barbour for a certain piece of property which the said plaintiff, now appellee, contended was held under sheriff’s deed and by her duly purchased according to law. The defendant in the court below resisted the plaintiff’s complaint by filing an answer to the effect that he is the lawful owner of the said land by lease agreement made and entered into on March 1, 1939 by and between himself and one T. A. Dundas, lessor, both parties being of the county of Montserrado.
The pleadings in this case extended to the sur-rejoinder, all of which were overruled, and the case was ruled to trial on the complaint of the plaintiff. A jury of twelve men was selected, sworn, and empanelled to try the issue thus joined which jury, after hearing the evidence of both parties and the instructions of the court, returned a verdict to the effect that the plaintiff is the owner of said lot Number 58. This verdict was confirmed by his honor the judge and final judgment was entered in favor of the plaintiff. From said ruling, verdict of the petit jury, and final judgment entered, appellant prayed an appeal to this Court.
According to the records certified to this Court, one T. A. Dundas, former owner of the said lot Number 58, was sued in the Circuit Court for the First Judicial Circuit by one A. K. D. Sodjie for the amount of three hundred and eighty-eight dollars and seventy-eight cents in an action of debt, which suit he, T. A. Dundas, lost. Final judgment was entered against him and an execution was duly issued in favor of the said judgment creditor against the judgment debtor, which writ of execution was duly served and returned before the trial judge, the said T. A. Dundas having turned over to the sheriff for Montserrado County his original deed for a half acre of land in lieu of a cash settlement.
The sheriff’s request for an order of sale was granted by the court, whereupon the sheriff, after giving notice of the time and place of the sale, proceeded to auction said piece of property. The plaintiff offering the highest bid, the sheriff accordingly issued his deed conveying the premises to said appellee. This deed was probated and registered according to law without objection and plaintiff was put in possession of said piece of land.
The defendant, now appellant, claims ownership of said property by lease agreement made profert of by him and marked exhibit “1” which plaintiff, now appellee, claims to be invalid since by inspection thereof it will be seen that, although said agreement of lease was entered into on March 1, 1939, the probate and registration thereof was not performed until February 24, 1941, approximately one year and eleven months from the date of execution and an additional nine days after the order of sale had been issued. The failure to have probated and registered said agreement within the time prescribed by statute renders same voidable under the conditions prescribed in the enactment stated below.
“Every instrument relating to real estate, before the same shall be entitled to be registered, shall be presented to the Probate Court of the County in which the property is located. . . .” 2 Rev. Stat. § 1299.
“If any person shall fail to have any instrument relating to real estate probated and registered, as herein provided, within four months after its execution, his title to such real property shall be null and void as against any party holding a subsequent instrument relating to such property, which is duly probated and registered.” 2 Rev. Stat. § 1302. See L. 1861, 90, § 5.
The law prescribing the duties of the Registrar provides that:
“He shall record all instruments relating to real estate upon the probate of the same, and all other instruments under seal, such as assignments for the benefit of creditors, bills of sale, partnership deeds, articles of incorporation of domestic companies and associations, and such other agreements between two or more parties as they may desire to have recorded.” 2 Rev. Stat. § 1305.
The records in the case show that although the deed of lease from T. A. Dundas to Joseph W. S. Barbour for ten years was executed on March 1, 1939, and would thereby have constituted an incumbrance upon the land, same was not offered for probate until, February 24, 1941. Hence said conveyance was ipso facto voidable, and became absolutely null and void according to the statute when Barbour, by his negligence aforesaid, allowed the sheriff’s deed to Elizabeth Bickersteth, executed February 28, 1941, to be probated and registered within the legal time. Moreover, it is worthy of note that the said Barbour, now appellant, not only did not offer his deed for probate within the time prescribed by law, but also did not offer his deed for probate until February 24, 1941, four days before the execution of the sheriff’s deed to Elizabeth Bickersteth which was nine days after the issuance of the execution of the writ of sale upon which the sheriff sold and conveyed the said premises. This looks to us like sharp practice which this Court cannot but frown upon.
It is our opinion therefore, that the judgment of the court below should be affirmed with costs against defendant, now appellant; and it is hereby so ordered.
Affirmed.