Gaskins v. Allen.

This action was brought to recover a tract of land. The following issue was submitted to the jury: "Is the plaintiff Zenia Gaskins the owner in fee and entitled to the immediate possession of the land described in the complaint? Ans.: ``Yes.'" From a judgment (427) rendered, the defendant appealed. Mary F. Swindell was seized in fee of the land in controversy. She and her husband, David, executed a deed to W. H. Rawls in 1871, at which time she was married and a minor. On 22 June, 1872, the day after she became of age, Mary F. Swindell and her husband signed another deed for the same land to W. H. Rawls. This deed was pinned to the first and both recorded under one probate taken by J. S. Fowler, justice of the peace. The defendant claims by mense conveyances under Rawls. On 10 October, 1894, Mary F. Swindell and her husband executed a deed to the plaintiff Zenia, their daughter, for the land. She was then 17 years of age. This action was commenced on 3 April, 1902.

"Hard cases are the quicksands of the law." We remembered this adage in considering this appeal and gave it a minute and careful investigation. It is with natural reluctance we feel impelled to affirm a judgment which deprives the defendant of land in the possession of which she and those under whom she claims have been so long. But "such is the law."

1. As to the probate of the deed of 22 June, 1872: We can find no evidence that it was ever probated or any privy examination taken. The commission issued by West, probate judge, is dated 19 August, 1871. It refers in specific terms to the deed of 1871, when Mary F. Swindell was under age. The probate of the justice of the peace Fowler (428) is at the bottom of this commission and admitted to be a blank form, all on one paper, and filled out by the probate judge and the justice of the peace. This probate is dated 22 June, 1872, in the record sent here, and if actually taken then, would have been a confirmation of the act of the infant grantor after arriving at full age. His Honor charged the jury that "the plaintiffs claim that the date of this probate has been altered, that one date has been erased and another substituted. If the plaintiffs have satisfied you by the preponderance of the evidence that this is so, and further that she neither executed nor acknowledged the deed after she was 21 years of age, you should answer the first issue ``Yes.'" The jury answered the issue "Yes."

We approve this instruction in general, and more particularly as to the degree of proof required to establish the alteration in the date of the probate. Harding v. Long, 103 N.C. 1, and cases cited; Perry v. Ins. Co.,ante, 402. The finding of the jury under such instruction destroys the value of that probate as a confirmation by Mrs. Swindell of her deed made when a minor. The probate could not possibly refer to the deed of 22 June, 1872. In 1871-72 justices of the peace had no original jurisdiction to take acknowledgment of deeds or to take privy examinations of married women. The probate judge, who was also clerk of the Superior Court, took the acknowledgment of the husband, and when the wife was not present to take her privy examination himself he issued a commission to some convenient justice of the peace to take it. The blank forms for the justice to fill up were printed on the same paper with the commission, as was admitted in this case. The commission described the deed and named the grantor and grantee, as this commission does, and empowered the justice to take the privy examination of the wife. This commission is dated 19 August, 1871. Under it the justice had no authority to take (429) the probate and privy examination to the deed of 22 June, 1872, or to any other deed except the one named in the commission. The two deeds were pinned together with this one commission and certificate of probate. The commission issued by West and the certificate of probate signed by Fowler evidently belonged to the deed of 1871. The certificate of the justice is on the same paper as the commission, and refers to the "foregoing deed of conveyance," viz., the deed described in the commission. There is no other reference to any deed in it. The deed of 22 June, 1872, was not probated and its registration was void.

2. Did Mary F. Swindell ratify and confirm her deed of 1871 after she became of full age? We see no evidence of ratification or confirmation. She was married when the deed was made and her husband was living at the time of the trial. The deed of 22 June, 1872, is no ratification, because, as we have shown, it was never properly executed and no probate or privy examination taken. Lapse of time is not a confirmation in this case. "The presumption of ratification of a voidable deed by long acquiescence will not arise against a woman under disability of coverture." Epps v. Flowers,101 N.C. 158.

So far as Mrs. Swindell is concerned, this matter seems to have been "quiescent" and "in statue quo" from the attempt to make a deed on 22 June, 1872, until 10 October, 1894, when she made the deed to her daughter Zenia, her coplaintiff, and who is the real plaintiff in this action. The deed of October, 1894, was an absolute disaffirmance, and the only disaffirmance, so far as this record discloses, by Mrs. Swindell of her act and deed of 1871 made when a minor. "A deed of bargain and sale made by an infant is avoided by his executing upon his arrival at full age another deed of the same kind and for the same land to a different person." Ruffin, C. J., inHoyle v. Stowe, 19 N.C. 320. There is no conflict withWeeks v. Wilkins, 134 N.C. 516. Three years after majority (430) is a reasonable time within which an infant must disaffirm a deed. Where the infant is under the disability of coverture, the three years begin to run when the disability is removed. Mrs. Swindell was under disability of coverture in 1871, when a minor, and it continued up to the time of the trial in the court below.

3. Does the act of 13 February, 1899 (Laws 1899, ch. 78), bar a recovery in this action by plaintiff Zenia Gaskins? We think not. As we have shown, Mrs. Swindell disaffirmed in 1894, before the act of 1899. Zenia Gaskins was 17 years of age when the deed to her was executed, and was married and an infant, both until October, 1898. The first section of the act eliminates married women from those saved from the operation of the statutes of limitation mentioned in the act. But for the second section, a married woman might under proper facts be barred at the end of three years from the ratification of the act. This section enacts "that in all actions commenced after the ratification of this act by married women heretofore protected by subsection 4 of sections 148 and 163 of The Code, in which the defense of adverse possession shall be relied upon, the time computed as constituting such adverse possession shall not include any possession had against such married woman prior to the passage of this act." It is clear to us that there is nothing in the act of 1899, or any statute of limitation, which bars a recovery in this action by the plaintiff Zenia Gaskins.

The three questions we have briefly discussed are the only ones presented in the record of much importance. The other exceptions are without merit. The judgment is

Affirmed.

Cited: Wicker v. Jones, 159 N.C. 111; Hogan v. Utter, 175 N.C. 335.

(431)