Strain v. Fitzgerald.

CLARK and MONTGOMERY, J. J., dissenting. This is an action of ejectment. The plaintiffs and defendants claim title under the same common source — the plaintiffs as devisees and the defendants under a sheriff's sale for taxes. It is admitted that the plaintiffs are the owners and entitled to recover, unless the defendants have acquired the title of the testator under whom plaintiffs claim, by reason of said sheriff's sale.

On the trial the defendants offered in evidence the (397) registration books of Durham County, which contained the form of a deed, signed by the sheriff, but without a seal. This evidence was objected to by the plaintiffs, excluded by the Court and the defendants excepted; and this is the point presented by the appeal.

The defendants allege as a reason for offering this copy or registry, that they had lost the original.

This is exactly the case of Patterson v. Galliher, 122 N.C. 511, except in that case the original was offered, and not a copy, or the registration books. The case would be settled by that case but for the fact that it is not the original deed that is offered. This fact, the defendants say, distinguishes this case from Patterson v. Galliher, and enables them to hold the land. The defendants contend that where the original is lost, and the copy on the registration books states that it was made "under the hand and seal" of the sheriff, it will be presumed that the original had a seal. And for this contention the defendants cite and rely on Heath v.Cotton Mills, 115 N.C. 202. But upon examination of that case it will be found that the original deed was offered in evidence on the trial, and it had a seal; and the only question presented by the appeal in that case was whether the seal being omitted on the registration books, the registration was sufficient to give notice of the mortgage, and the Court held that it was. And whether that decision was right or not (and we do not say but what it was), we do not think it sustains the contention of the defendants in this case.

The defendants also cite and reply on Quinnerly v. Quinnerly,114 N.C. 145. But the question presented in that case is as to whether the certificate of probate was sufficient to authorize the registration. Nothing was left out by the register in that case, and the question was as to its sufficiency to authorize the registration. So it does not seem to us that that case sustains the defendants' contention of presumption.

The defendants also cite Aycock v. R. R., 89 N.C. 321, as authority for their contention. That was a case in (398) which a copy of a grant from the State was offered in evidence, and it did not appear that the Great Seal of the State had been put on the registration books; nor was there any such scroll as indicated that it was on the grant. This grant was allowed in evidence. But its admission was put on special grounds and on special legislation, as the case will show. And the Court, while it apparently sustains the Court below upon the special grounds mentioned, states that it was immaterial whether it was admitted or not, as the case depended upon the question of possession. So it would hardly seem that that case was authority to sustain the contention of the defendants.

A deed is an instrument of writing signed, sealed and delivered. 2 Blk. Com., star page 395. The seal is what distinguishes it from a parol or simple contract. Land can only be conveyed by deed, that is, an instrument of writing signed, sealed and delivered. A paper, in form a deed, is not adeed without a seal. And to presume a seal is to presume the very matter at issue. There can be no presumption of a fact, unless other facts are proved or admitted, that form what is called in law a chain, that necessarily leads the mind from the facts proved or admitted to the fact to be proved — "a chain" of facts. One fact, if proved, does not form a "chain" of facts. In this case there is but one fact, as we understand it, that the defendants rely on to prove a seal that is to prove a deed, and that is, that the paper on the registration books says, "Given under my hand and seal." But for this, they would have nothing. And when it is considered that the paper they offer is in the exact words of the form prescribed by the Legislature for sheriff's deeds in sales for taxes, which has no seal, this one fact loses any force it might be supposed to have. The error was originally committed by the Legislature and then by the sheriff, in following the form prescribed by the Legislature. But defendants want the Court to presume that the sheriff (399) of Durham County knew more than the Legislature. This, we think, may be called a violent presumption, in the sense that it violates the rule of presumptions and of common sense.

To adopt the reasoning of the defendants would lead us into the adoption of a logic that can not be sustained — that the inferior is greater than the superior, that a part is greater than the whole. We have said inPatterson v. Galliher, that the original is not good. Shall we say now that a copy is? We can not do so.

It is said for the defendants that the fact that defendants are purchasers at a tax sale makes no difference; they must stand before the court as all other persons do. This is true, so far as they are concerned, and they must have the same legal justice measured out to them that anyone else would have under the same or similar circumstances. But we do not admit that they stand before this Court in the same way that others might stand, in asking the Court to presume a seal. And we do not say the Court would be justifiable in doing so in any case. But it seems to us that this case might be distinguished from some other cases that might be presented, where it did not appear, as it does here, that the paper was drawn by a form that was defective, in the exact particular that this "deed" is fatally defective.

We find no error, and the judgment is

Affirmed.