Appeal by defendants from Davis, Judge. Judgment entered 28 August 1978 in District Court, Wilkes County. Heard in the Court of Appeals 27 August 1979.
Martin (Harry C.), Judge. Chief Judge Morris and Judge Parker concur.
We hold the trial court erred in granting plaintiff's motion for summary judgment and in denying defendants' motion. Plaintiff alleges she acquired the disputed property by a deed from Carrie Steele, executed after the death of Ivey Steele. Defendants deny this in their answer. However, in their brief they state as a part of the facts that "Carrie Steele conveyed the subject property, in fee, to Respondent-Appellee."
Therefore, it appears that whatever interest plaintiff acquired in the disputed property from Carrie depends upon the interest Carrie owned when she made the conveyance to plaintiff. This requires us to determine what interests passed under the 1945 and 1957 deeds. By executing and delivering the deed 2 January 1945, Myrtle Steele Mitchell conveyed to Ivey Steele all of her interest in the disputed property. This deed is not a part of the record and there are no allegations or evidence that it contained any conditions that would reserve to the grantor any interest in the property. Upon due execution and delivery without reservation of the deed to the grantee, title to real property passes between the parties. Phillips v. Houston, 50 N.C. 302 (1858). The registration of the deed in the Wilkes County Register of Deeds' office created a rebuttable presumption that it was signed, sealed and delivered by the grantor. Jones v. Saunders, 257 N.C. 118, 125 S.E.2d 350 (1962).
The execution and recording of the second deed to the property 23 January 1957 did not convey any interest in the property to the grantees, as the grantor did not own any title or interest in the property at that time.
Plaintiff relies in her brief upon estoppel, contending that because Ivey Steele procured the execution of the 1957 deed, he and those in privity with him are barred from attacking the validity of the deed. Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540 (1956).
Is the plea of estoppel good? The law answers in the negative.
It is true that an estoppel can arise where A allows B to convey A 's property to a bona fide purchaser for value without notice. Francis v. Mann, 207 N.C. 84, 175 S.E. 696 (1934); Shattuck v. Cauley, 119 N.C. 292, 25 S.E. 872 (1896). Plaintiff contends the acts of Ivey Steele in procuring the execution of the 1957 deed created an estoppel under the holdings of Francis and Shattuck. We do not agree. Plaintiff overlooks the participation by Carrie Steele in securing the execution of the 1957 deed and her knowledge concerning both the 1945 and 1957 deeds. Carrie stated in her affidavit that she and Ivey purchased the property from Myrtle Steele Mitchell; there was a mistake in leaving her name off the deed and when this was discovered the parties agreed that a new deed be drafted showing Carrie as a grantee and that this was done in 1957; that it was always their intention that the property be held as tenants by the entirety.
Plaintiff attempts to create and rely upon an estoppel based, at least in part, upon the acts of Carrie Steele, her predecessor in title. Ivey, with the knowledge and encouragement of Carrie, persuaded Myrtle Steele Mitchell to execute a deed purporting to convey property, owned by Ivey, to Carrie and Ivey jointly. Neither Carrie nor Ivey Steele was a bona fide purchaser for value without notice in 1957. Where Carrie and Ivey Steele acted together to procure the execution of the 1957 deed, no right of estoppel arose between Carrie and Ivey Steele. With respect to the plea of estoppel, plaintiff's rights are the same as and no greater than those of Carrie. One cannot by his own act create an estoppel in his favor. The party asserting the estoppel must show on his part lack of knowledge and the means of knowledge as to the truth of the facts in question, reliance upon the conduct of the party sought to be estopped and action based thereon to his prejudice. Matthieu v. Gas Co., 269 N.C. 212, 152 S.E.2d 336 (1967); Peek v. Trust Co., 242 N.C. 1, 86 S.E.2d 745 (1955); Trust Co. v. Casualty Co., 237 N.C. 591, 75 S.E.2d 651 (1953).
The 1957 deed was void, as nothing passed by the deed. Scott v. Battle, 85 N.C. 184 (1881). A deed having no validity cannot be made the basis of an estoppel. Cruthis v. Steele, 259 N.C. 701, 131 S.E.2d 344 (1963); Buford v. Mochy, 224 N.C. 235, 29 S.E.2d 729 (1944); 5 Strong's N.C. Index 3d, Estoppel § 1.1.
We hold defendants are not estopped to deny the validity of the 1957 deed, and they may ...