Sellers v. . Sellers

The first assignment of error cannot be sustained. The name of the juror challenged must, in the order as prescribed in the statute (The Code, secs. 1722 — 1727), have been selected and placed on the jury list on the first Monday in September, 1885. To render him eligible to sit on the trial as a juror at the Spring Term, 1886, of the court when it took place, he must have paid tax for the fiscal year next preceding the time when his name was so placed on the jury list, which was the fiscal year of 1884. It appears that he paid tax for that year, hence the objection was unfounded.S. v. Carland, 90 N.C. 668; S. v. Haywood, 94 N.C. 847.

Nor do we think that the objections to the deed and the probate and registration thereof can be sustained. The deed was a conveyance for land, situate in the county of Anson, and the makers, a husband and wife, acknowledged the execution of it by them before the late Court of Pleas and Quarter Sessions of that county, and the wife was privily examined by order of the court by a member thereof, as to her free and voluntary consent in the execution of it. This acknowledgment and privy examination of the wife was ordered to be recorded and registered, and it was registered, as appears from the certificates of the proper officers. These certificates appear to be sufficiently regular and complete for the purposes for which they were intended, and have the sanction of the statute (Rev. Stat., ch. 37, sec. 9), then in (18) force, and which as to them continue in force and have effect.Etheridge v. Ferebee, 9 Ired., 312; Beckwith v. Lamb, 13 Ired., 400.

At the time the probate of the deed was thus taken, and the order of registration made, these were effectual. They were made a part of the record of the court, and upon the certificate of the clerk of the court, without further evidence, it became, and was, the duty of the register to register the deed as he did, as appears from his certificate. These official certificates were of themselves prima facie evidence of the pertinent facts stated in them, and the record of the probate of the deed reciting that S. I. Cole was a member of the court, thus certified, was evidence that he was such member. Etheridge v. Ferebee, supra.

The probate of the deed and order of registration were sufficient when taken and made — they have each since then continued, and will continue, to be efficient and sufficient. There is no law, statutory or otherwise, that renders them inoperative because of lapse of time. If, therefore, the deed had not been registered in 1855, it might, in pursuance of the order, have been in 1885 without further order. We can conceive of no adequate reason why it might not have been done. The probate had once been taken, and the order of registration made by the proper competent authority. In the absence of statutory requirement, why should there be a further order necessary?

It seems to us that a re-registration of the deed was unnecessary. If the register failed at first to completely execute the order of registration, it continued in force and mandatory until it was completely executed, and it continued to be the register's duty to execute it until he had completely done so. If he found that he had by inadvertence omitted a word, a sentence, a paragraph or a scroll representing a seal, we think he might, in good faith, complete the registration in (19) these respects. Of course he could not have authority to interpolate anything that was not in the deed, or other instrument, at the time the probate was made. It was therefore not improper for the register, as it appears he did, to add on the registry the scroll representing the seal affixed to the signature of the wife, which he had at first omitted.

But if this were not so, and the registration in 1855 was insufficient, we think the re-registration in 1885 cured any defect in that respect, because the order of registration, as we have seen, continued mandatory, and there was at that time no statute that forbade such registration. The statute (Acts 1885, ch. 147) had not then taken effect. It might have been regular to submit the probate to the clerk of the Superior Court, who is now the probate officer, to the end he might have made a further order of registration, but this was not essential. Holmes v. Marshall, 72 N.C. 37;Young v. Jackson, 92 N.C. 144.

Nothing appears in the record by which the apparent inconsistency between the date of the deed and the time of the term of the court at which its execution was acknowledged can be reconciled. It may be that the term of the court was in fact held in October, 1855 — this is not improbable — it may be that in fact the deed was executed in October, 1854. But it is not indispensable that these dates shall be reconciled — it was only essential that the deed existed, and was proven, and these things appear from the record of the probate of it, which imports verity and which, while it remains unimpeached, prevails.

The certificate of probate settles the fact as to the existence of the deed and of the probate of it.

It was not necessary that the words "her mark" should be annexed to or accompany the cross mark of the wife in executing the deed on her part to identify herself with it as her deed. It was only essential that she made the mark herself, or adopted it as hers, if made by some other person under her direction. Such words might be appropriate (20) as furnishing some evidence that she made or adopted the mark, but that she did so is the important fact, and this might be proven by any appropriate evidence, or she might acknowledge it as she did, before the appropriate probate court. The objection that the words "her mark" were not used in the connection mentioned has no force. S. v. Byrd, 93 N.C. 624;Tatom v. White, 95 N.C. 453.

The court gave the jury numerous instructions, and after a verdict for the defendant, it is stated in the record that the "plaintiffs excepted," but to what part of the instructions given, or to what rulings in other respects they excepted, does not appear from any assignment of errors in terms or by the remotest implication.

To except thus is no compliance with the statute in respect to the assignment of errors, and it is settled that the court will not notice such "exceptions." Pleasants v. R. R., 95 N.C. 196; Clements v. Rogers, ibid., 248.

No error appears, and the judgment must be affirmed.

No error. Affirmed.

Cited: S. v. Hargrave, 100 N.C. 485; McKinnon v. Morrison, 104 N.C. 362;S. v. Gardner, ibid., 742; Brown v. Brown, 106 N.C. 458; Devereux v.McMahon, 108 N.C. 143; S. v. Davis, 109 N.C. 781; S. v. Fertilizer Co.,111 N.C. 659; Brown v. Hutchinson, 155 N.C. 211; Butler v. Butler,169 N.C. 591; S. v. Levy, 187 N.C. 585.