Pierce v. . Wanett , 51 N.C. 162 ( 1858 )

The lessor of the plaintiff claimed title to an undivided sixth part of the premises against the defendant, by estoppel, as one of the heirs-at-law of Abraham Golding. She proved a demand of the defendant before suit. To establish her pedigree, she offered the depositions of Ann McDonald and others, taken in Baltimore, Maryland. They were objected to by the defendant as incompetent, upon the ground, that the commission, under which they were taken, had been issued in blank, by the clerk, in respect to the name of the commissioner, and had been filled up after it left this State. The Court allowed the deposition to be read, and the defendant excepted. These depositions proved, that Ann Pierce is one of the heirs-at-law of Abraham Golding.

The plaintiff also offered in evidence the deposition of Peter Pierce, which was taken in a former and different suit, between the same parties, about the same premises, this deposition was objected to by the defendant; and on being allowed by the Court, he again excepted. The plaintiff offered in evidence, a duly certified copy from the register's office, of a deed from James Marshall to Abraham Golding, dated the 4th of December, 1813. This deed was objected to, upon the ground, that it had never been proved, but the Court allowed it, and the defendant again excepted. Other deeds were offered to make out the title of the plaintiff's lessor, and proof was adduced, that Ann Pierce is the daughter of Peter Pierce and his wife Sarah, the latter of whom, was one of the heirs-at-law of Abraham Golding, and that both the parents of the said Ann, are now dead; but it is not deemed material to dwell more at length upon the evidences of the plaintiff's title, inasmuch as the case, before the Court, is made to turn upon the validity of the defendant's title.

The defendant offered in evidence a deed, purporting to be made by Peter Pierce and Sarah his wife, to Samuel Potter, which was objected to, upon the ground, that it had not been proven according to the requirements of our statutes, upon the subject of the deeds of married women. This objection was sustained by the Court, and the defendant excepted. The deed purports to be witnessed by J. McColl and David Jones, and attached to, and upon, the back of the same, are the following certificates:

"State of North Carolina, ) August Term, 1818. New-Hanover County, )

"Ordered that John McColl and David Jones, be appointed to take the private examination of Sarah Pierce, wife of Peter Pierce, touching her free execution of a deed, executed by them to Samuel Potter, dated 21st of July, 1818.

A true copy from the minutes.

Witness, THOMAS F. DAVIS, Cl'k."

"State of North Carolina, New-Hanover County:

"To John McColl and David Jones, Esquires, greeting: Whereas, Samuel Potter produced a deed of conveyance, made to him from Peter Pierce and Sarah his wife, of certain property of land, laying and being in the county of New-Hanover, and State of North Carolina, and procured the same to be proved in the County Court of Pleas and Quarter Sessions of our said county of New-Hanover, and it being represented to our said Court, that the said Sarah cannot travel to the said County Court of Pleas and Quarter Sessions of our said county of New-Hanover, to be privily examined as to her free consent in executing the said conveyance: Know ye! that we, in confidence of your prudence and fidelity, have appointed you, and by these presents do give unto you, or any two of you, full power and authority to take the private examination of the said Sarah, concerning her free consent in executing the said conveyance; and, therefore, we command you, or any two of you, that at such certain day and place as you shall think fit, you go to the said Sarah, if she cannot conveniently come to you, and privily, and apart from her husband, examine the said Sarah, whether she executed the said conveyance freely, and of her own accord, without fear or compulsion of the said Peter, her husband; and the examination being distinctly and plainly written on the said deed, or on some paper annexed thereto, and, when you have so taken, the said examination, you are to send the same, closed up under the seals of you, or any two of you, together with this writ, unto our said County Court of Pleas and Quarter Sessions, to be held for the County of New-Hanover, on the 2nd monday of August, in the 42d year of Independence. Witness, Thomas F. Davis, clerk of our said Court, at office, this the 10th day of August, A.D. 1818."

On the back of the deed is the following certificate:

"State of North Carolina, Wilmington:

"We certify, that we examined Sarah Pierce, whose signature is to this instrument, separate and apart from her husband, Peter Pierce, and she declares that she had signed it of her own free will and consent, and without any compulsion on the part of her husband, in witness whereof we have set our hands and seals.

DAVID JONES, J.P. [seal.]

J. MacCOLL, J.P. [seal.]"

The certified copy of the order of the Court, at August Term, 1818, appointing John MacColl and David Jones, to take the private examination of Sarah Pierce, wife of Peter Pierce, is upon a piece of paper attached to the deed; and upon the back of this certified copy of the order of the Court, is the following probate and registration, to wit:

"North Carolina, ) County Court, August Term, New Hanover County. ) 1818.

"The execution of this deed was proved by John MacColl, subscribing witness, and ordered for registration.

THOMAS F. DAVIS, Cl'k."

"Registered in the records of New-Hanover County. Book 2, page 249. WM. M. SMITH, Reg'r."

The certificate of the clerk of New-Hanover County. Court states that the following entry appears of the minutes of his office:

"State of North Carolina:

"At a Court of Pleas and Quarter Sessions, begun and held for the county of New-Hanover, at the court-house in Wilmington, on Monday, the 10th day of August, A.D. 1818, and in the 42nd year of Independence.

"The Court was opened with the usual proclamations.

"Present, the Worshipful,

" Edward St. George, Robert Henry.

" Robert Hendry.

"The following order was passed at this Term:

"Ordered that John MacColl and David Jones, be appoint"ed to take the private examination of Sarah Pierce, wife of "Peter Pierce, respecting the execution of a deed, signed by "by them to Samuel Potter, dated 21st of July, 1818."

"A deed from Peter and Sarah Pierce to Samuel Potter, proved by J. MacColl."

Verdict and judgment for the plaintiff. Appeal by def't. In his bill of exceptions, the defendant has assigned two errors, upon one, or both of which, he seeks to have the judgment reversed, and a new trial granted. The second alleged error is, in our opinion, well founded, and as it is fatal to the plaintiff's action, it is unnecessary for us to consider the first, at all.

When the case, between the same parties, and involving the question of title to the same lot of land, was before this Court at December Term, 1849, (see 10th Ire. Rep. p. 446,) it was said that, "with respect to the deed from Pierce and wife, the facts do not appear, with sufficient distinctness, to authorise the Court to form a satisfactory or positive opinion." It was intimated, however, that, as the case then stood, the deed in question, was ineffectual to pass the title of the wife, "for the want of a due acknowledgment and a privy examination;" but as the cause was decided on another ground, this point was not definitively passed upon. The facts in relation to the deed are now more fully stated, which enables us to decide the case upon its merits. The main objection to the authenticity of the instrument, as the deed of the wife, is, that the order for taking her privy examination, was made before the deed was proved in Court, and therefore, there was no authority vested in the Court, at the time, to make the order; and in support of this objection, the leading case of Burgess v. Wilson, 2 Dev. Rep. 306, is relied upon.

The records of the County Court of New-Hanover, at August Term, 1818, exhibit the following entries: "Ordered that John McColl and David Jones, be appointed to take the private examination of Sarah Pierce, wife of Peter Pierce, respecting the execution of a deed, signed by them to Samuel Potter, dated 21st July, 1818."

"A deed from Peter and Sarah Pierce to Samuel Potter, proven by J. McColl."

A certified copy of the above recited order, for taking the private examination of the feme grantor was attached to the deed, and on the back of this, was the following certificate by the clerk, of the probate and order for registration: "The execution of this deed was proved by John McColl, subscribing witness, and ordered for registration." There was endorsed upon the deed, itself, a commission, in the prescribed form, issued by the Clerk, and directed to John McColl and David Jones, Esquires, and commanding them to take the private examination of the wife, c. This commission contained a recital among others, that the grantee had procured the deed to be proved in the County Court; and also, that it was represented to the Court, that the feme could not travel to the Court. Following this, there was an endorsement upon the deed of the certificates of the justices, under their hands and seals, that they had taken the privy examination of the wife, upon which she declared, that she had signed the deed "of her own free will and consent, and without any compulsion on the part of her husband." All this appears to have been done at the same term of the Court, and on the same day of the term; for the date given, is that of the 10th of August, 1818, the day on which the commission was issued, and also the day on which the Court was opened and held. It is contended that the deed was proved after the order was made, because the entry of the probate follows the entry of the order for the appointment of the justices to take the privy examination, on the minutes of the Court; and also, because it is endorsed on the back of the paper annexed to the deed, on which was written a certified copy of the order. We do not think that this is sufficient evidence of the fact, that the probate was made after the order, instead of before it, as the law required; on the contrary, we regard it as one continuing transaction, done at the same time, and to be supported upon the same principle that a certificate of a Judge of the Superior Court was held good in the case of Joyner v. Faulcon, 2 Ired. Eq. Reports 386. There, the certificate was as follows: "State of North Carolina, Halifax county. Fanny Clanton, the wife of Dr. John Clanton, was examined separate and apart from her husband, and privily by me, one of the Judges of the Superior Court of Law and Equity, in and for the State aforesaid, when she acknowledged, that she executed the within deed, freely and voluntarily, and not by the force or persuasion of her husband or any other person. Henry Wilkes, the subscribing witness, came before me, and made oath that John T. Clanton and Fanny Clanton, executed the within deed for the purposes therein contained. Let it be registered." The Court disposed of the objection, that the probate was taken after the privy examination, in a summary manner. "This objection (say they) we hold to be not founded in fact. The certificate states a single transaction. All therein mentioned occurred at the same time. And, therefore, it is immaterial what part of it is first mentioned in the certificate." So, we say in this case, that the order for the private examination, and the probate of the deed, were made at the same time, and formed a part of the same transaction; and it is immaterial in what order the entries appear upon the minutes of the Court. The case of Burgess v. Wilson, ubi supra, presents the essential difference that the records of the Court, showed that the order for appointing a justice for taking the privy examination of the wife was made on one day of the term, and that the deed was proved on a subsequent day of that term, and that, therefore, the two acts could not have been parts of one and the same transaction. In further support of this view of the case, it may be remarked, that the commission issued by the clerk, under the order of the Court, and which bears date the first day of the term, recites the fact, that the deed had been proved, and we do not perceive any good reason why that fact may not be proved by the commission, as well as the essential fact, that the wife was unable to travel to the Court, to be there privately examined; Skinner v. Fletcher, 1 Ire. Rep. 313. Taking all the proceedings together, it appears that every thing, which the law requires to be done for the protection of married women, in the disposition of their lands, was observed in this case; to wit: the deed was duly proved in open Court by a subscribing witness; it was shown that the wife was unable to travel to the Court; an order was made, appointing two justices, to take her privy examination; a commission for that purpose was duly issued to them, and they returned a certificate, properly authenticated, that they had done so; an order was made for the registration of the deed, and it, together with the certificates, was duly registered. All this, except the act of registration, appears affirmatively to have been done at the same term of the County Court, and there is nothing to show that it was not done on the same day of the term. Indeed, from the circumstance, that only one date is given to any part of the proceedings, and that the first day of the term, we are to presume that all was done on that day, and done in the order of time required by the law to make the deed effectual for the purpose for which it was intended. Our conclusion is, that Samuel Potter, the grantee, under whom the defendant claims, acquired a good title from Pierce and his wife, Sarah, under the latter of whom, the lessor of the plaintiff claims. The judgment must, therefore, be reversed, and a venirede novo awarded.

PER CURIAM, Judgment reversed.