Heath, Springs & Co. v. Big Falls Cotton Mills , 115 N.C. 202 ( 1894 )

BURWELL, J., did not sit on the hearing of this case. The question presented in the exception of the appellants is whether the mortgage deed to J. E. Mitchell Co. has been properly executed, probated and registered so as to give the note secured therein priority over the claims of the excepting creditors. The deed is signed in the name of the corporation by its president, vice-president, secretary and treasurer, who constitute all the stockholders, directors and officers of the corporation, and the corporate seal is affixed to it, as appears by the profert of the original deed on the trial, as well as from the fact agreed. We are of the opinion that it is properly executed as a common-law deed. Bason v. MiningCo., 90 N.C. 417. We are also of the opinion that the certificate of the clerk was sufficient to warrant the registration of the same. Quinnerly v.Quinnerly, 114 N.C. 145.

It is earnestly insisted, however, that the omission of the register to copy the seal on his book destroys the efficacy of the registration as constructive notice of the said mortgage. Very respectable authorities, which accord with our conception of the true principle, sustain the position that if the attestation clause recites that the deed (208) was signed and sealed, it will be presumed that the original deed was sealed. "Where an instrument, which the law requires to be sealed, is in all respects correctly recorded, except that the record does not show a copy of the seal, or any device representing it, the record will nevertheless be valid and sufficient as notice, provided the record represents on its face, in any other way, as by recitals or otherwise, that the instrument was sealed, and it was in fact duly sealed." Beardsley v.Day, 55 N.W. 46 (Minn.). To the same effect, 1 Jones Mort., 493.

This view is fully supported by the case of Aycock v. Railroad,89 N.C. 323. A similar objection was made to the introduction of certain grants, but as it appeared from the attestation clause that the seal was affixed, the objection was overruled. The Court said: "It thus affirmatively appears that the grants were issued under the great seal, and this is shown in the registration. As the purpose of requiring registration is to give notice of the terms of the deed, and this is fully accomplished in the registry, we can see no reason why some scroll or attempted imitation of the form of the seal should be required in addition to the words spoken in the grant. The registry furnishes all the information that could be derived from an examination of the original, as both utter one and the same language."

His Honor was also correct in his ruling that the debts of the plaintiffs and others arising from cotton and flour sold and delivered to the defendant are not entitled to priority over the said mortgage. PaperCo. v. Chronicle, ante, 143.

Upon a careful inspection of the whole record, we are unable to find any reason to disturb the judgment of the court below.

Affirmed.

Cited: Strain v. Fitzgerald, 128 N.C. 397, 400; s. c., 130 N.C. 601;Smith v. Lumber Co., 144 N.C. 49; Johnson v. Lumber Co., 147 N.C. 251;Edwards v. Supply Co., 150 N.C. 176; Withrell v. Murphy, 154 N.C. 90;Brown v. Hutchinson, 155 N.C. 210; Weston v. Lumber Co., 162 N.C. 206;Hopkins v. Lumber Co., ib., 534; Power Corporation v. Power Co.,168 N.C. 221, 222; Buchanan v. Hedden, 169 N.C. 224.

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