71 S.E. 302 | N.C. | 1911
This was an action brought originally before the clerk under the Processioning Act (Rev., sec. 326) to establish a boundary *169
line. The issue of title being raised by the answer, the cause was properly transferred for trial to the Superior Court at term. Smith v. Johnson,
The first exception is that the judge refused to permit the plaintiff to introduce in evidence a deed from Absher to Brown, executed in December, 1859, as a part of the plaintiff's chain of title, on the ground that it was not recorded till after the commencement of the action. The exception is well taken.
While it is unquestionably true that the plaintiff must have title at the commencement of the action as well as at the time of the trial (Burnettv. Lyman,
Chapter 147, Laws 1885, now Revisal, 980, contains no limitation as to the time when a deed shall be registered. It simply provides that it shall not be valid against purchasers or creditors, except from the registrationthereof. Cozad v. McAden,
It is true that the instrument must be probated and registered to be competent as evidence of title. Jennings v. Reeves,
His Honor's action was based upon the ruling in Morehead v. Hall,
(209) It has been not uncommon practice, as the profession knows, that when a deed offered in a chain of title has not been registered, and, therefore, can not be admitted in proof, for the parties to probate it then and have it registered during the trial. Among many cases in which this has been recognized are Cawfield v. Owens,
In this case the plaintiff had already introduced a grant from the State to Eli Brown, dated October, 1846, and duly registered. He could therefore have shown seven years' possession under color. Gilchrist v. Middleton,
The plaintiff offered to introduce in evidence a deed from the executors *171 of Elijah Brown to himself for the locus in quo executed in 1862 and registered in 1885. The court refused to admit the same because the record of the certificate of the justice of the peace had omitted the signature of the justice. The certificate as recorded was as follows:
I, F. M. Adams, a justice of the peace, do certify that James W. Brown, the subscribing witness to the foregoing deed of conveyance, came before me this day and maketh oath in due form of law that he saw the foregoing deed signed and delivered in his presence.
Given under my hand and private seal, this 15 April, 1885.
North Carolina — Wilkes County. (210)
The foregoing certificate of F. M. Adams, a justice of the peace of Wilkes, is adjudged to be correct. Let the said deed, with these certificates, be registered.
Filed 15 April, 1885, and registered.
The plaintiff then offered the deed itself to show that the justice had actually signed the certificate, and insisted that the register of deeds should then and there make the correction in the record. His Honor refused to admit the record or the deed itself, though he inspected the deed and saw that the justice of the peace had signed the certificate of probate.
The exceptions to the above refusals constitute the second and third assignments of error, and, we think, are well taken. The name, "F. M. Adams, a justice of the peace," is written in the certificate, though it is not subscribed at the end thereof, and the certificate of the clerk adjudges that the certificate of "F. M. Adams, a justice of the peace," is correct. Under the maxim, "Omnia presumuntur rite esse acta," the certificate is valid. Kidd v. Venable,
In Health v. Cotton Mills,
(211) Besides, the order of the clerk for the registration of the deed was a continuous order, and it was the duty of the register to act at any time till the deed should be fully recorded. Sellers v. Sellers,
The court further erred in excluding the original deed when offered to show that the certificate was in fact duly signed by the justice of the peace. Strain v. Fitzgerald,
The fourth exception is to the refusal of the court to permit the plaintiff to show that the locus in quo was embraced in the grant and in the deeds above shown. Upon this refusal the plaintiff excepted and took a nonsuit. The validity of the last exception depends, of course, upon the other three. The defendant moved to dismiss the appeal upon the ground that the nonsuit was not justified in that state of the case; that the plaintiff should have gone on and offered evidence of possession under the deed. But as his claim of title and proof that his deeds covered the locus in quo had been rejected, evidence to show possession would have been useless.
Error.
Cited: Whitaker v. Garren,
(212)