37 S.E. 496 | N.C. | 1900
On 14 July, 1795, the State of North Carolina granted to William Tate and William Cochran 100,640 acres of land, lying and being in the county of Burke. The plaintiffs are heirs-at-law of William Cochran, and claim under this grant of 14 July, 1795. The defendants admit that they are in possession of a part of the land covered by the grant to Tate and Cochran, but deny that plaintiffs are the owners of said land, or that they are entitled to possession of same, or any part thereof. The defendants say that plaintiffs acquired and took *267 no title under said grant, for the want of proper registration, but, if any title passed under said grant to the grantees therein named, that said grantees, Tate and Cochran, soon thereafter, to-wit, on 17 December, 1796, bargained, sold, and conveyed the same to William Constable, and that neither Tate (388) nor Cochran, nor the plaintiffs who claim as the heirs of Cochran, have owned any part or interest in said land since the date of said deed to William Constable. The defendants further allege and say that, while said grant was made to William Tate and William Cochran, in fact they were only the absolute owners of one-half thereof, and trustees of Thomas Buchell and Andrew Baird of the other undivided one-half of said land, and that on 12 March, 1796, the said William Tate, William Cochran and Thomas Buchell, made and executed their deed to Andrew Baird for one-fourth of said land, in which they set forth fully and in detail the fact that the money used to procure said grant was furnished in equal parts by the said Baird, Buchell, Cochran and Tate, and that, while the grant was issued to Tate and Cochran, Baird and Buchell were equally interested in said land with them, and that they held one undivided fourth thereof in trust for said Baird, and one undivided fourth thereof in trust for said Buchell. The defendants further allege and say that on the same day that Tate, Cochran, and Buchell conveyed the undivided one-fourth of said land to Andrew Baird, to-wit, on 12 March, 1796, said Baird sold and conveyed the same to William Constable. The defendants further allege that on 20 July, 1796, the State of North Carolina granted to William Cathcart 59,000 acres of land in the county of Burke; that this grant was located on the land embraced within the boundaries of the grant to Tate and Cochran; that defendants are the owners of this Cathcart grant, and have been in possession of the same, through their lessees, bargainees, and tenants, for fifty years or more; and that their said title, though it may have been once defective, is thus ripened into a good, perfect and indefeasible title to all the lands covered by the Cathcart grant. (389)
While there were a number of other questions raised by the exceptions of plaintiffs, the case depends upon the correctness of the findings and rulings of the referee and of the Court upon the admission of the deeds of Tate and Cochran to Constable, and the deed from Tate, Cochran, and Buchell, to Baird, and the possession of defendants, claiming under the Cathcart grant of 59,000 acres. The case, by consent of parties, was referred to Judge Burwell, who took and considered the evidence, and made a report, finding the facts, and declaring *268
the law arising thereon. This report was in favor of the defendants upon the disputed facts, and upon the law based thereon, and plaintiffs excepted. The reference being by consent of the parties, the facts found by the referee are final, and we have no right to review these findings, unless they shall appear to have been found without any competent evidence to support them. Morrison v. Baker,
We will consider first the Cathcart grant. It was contended by the defendants, and not denied by plaintiffs, that there are now 500 (and probably more) settlements upon the land embraced in the Cathcart grant, holding and claiming their title under said grant and mesne conveyances from the defendants and those under whom they claim. The plaintiffs admit that many of these titles may have riped by possession, as against them, but, if so, that their possession would not inure to the benefit of the defendants; that their possession only extended to the boundary lines of such purchases. This position of (390) plaintiffs seems to be correct. Ruffin v. Overby,
We therefore sustain the finding that defendants had held the Cathcart land under color of title for more than seven years, which perfected their title, if it was before imperfect. But as the Cathcart grant may not cover all the land of (392) which the defendants have possession, and which is claimed by plaintiffs under the grant to Tate and Cochran, we proceed to consider the other principal question presented by the appeal: If Tate and Cochran had conveyed all the estate they had in the land embraced in the grant to them of 14 July, *270 1795, to Constable and Baird, as contended by defendants, the plaintiffs have no title to support their action, and it must fall. If the plaintiffs recover, they must do so upon the strength of their title, and not upon the weakness of defendants' title. This question depends upon the competency — the admissibility — of the deed from Tate and Cochran to Constable, and the deed from Tate, Cochran, and Buchell to Baird. If these deeds are competent testimony, the plaintiffs have no title.
It is shown in evidence that the register's books were taken from the register's office in Morganton by the Federal army in 1864, and thrown in a tan vat at a tan yard near Morganton; that said books were thereby greatly mutilated and damaged, and many of them defaced and destroyed; that diligent examination has been made through those not destroyed, and these deeds can not be found. Upon this proof, the defendants offered certified copies of said deeds, but they were objected to by plaintiffs. The copy offered purporting to be a deed from Tate and Cochran to Constable, bearing date 17 December, 1796, has the names attached of William Tate (seal), and William Cochran (seal), with the following evidence of its execution, probate, and registration:
"Signed, sealed, and delivered in the presence of Tench Coxe, Ann Coxe, Rebecca Coxe.
"Acknowledged in open court by William Tate, and also by William Tate by virtue of power of attorney from William Cochran, now filed April Term, 1797. W. W. Erwin, (393) D.C.
"Registered by William Walton, C. R., 19 May, 1797.
"State of North Carolina, Burke County. I, Thomas Walton, register of said county, do hereby certify that the within and above is a true copy of a deed, William Tate and William Cochran to William Constable, as appears on record in Book No. 7, page 543. Certify, this 15 May, 1859. Thomas Walton, C. R."
The defendants then proved the signature of Thomas Walton upon said copy to be his genuine handwriting and signature, and that he was register of deeds of Burke County; and, there being no evidence by plaintiffs in rebuttal, the commissioner allowed the copy to be offered as evidence. The plaintiffs, among other grounds, object for the reason that it appears that William Tate, under a power of attorney, acknowledged the deed of William Cochran. But if the power of attorney was regular, and authorized Tate to acknowledge the deed, it was sufficient. 1 Am. and Eng. Enc. Law (2 Ed.), 508. And, as there is nothing to show but what it was in all things regular, *271
it will be presumed that it was, as this was a judicial act, and everything is presumed to have been regular, under the maxim,"Omnia praesumuntur," etc. If there was no error in allowing this evidence, it proves that plaintiffs have no title to three-fourths of the land embraced in the grant of 1795 under which they claim. This is an important question, and one that seems not to have been decided by this Court, though we have many decisions bearing more or less directly upon it. It has been a long time since this deed was registered — more than one hundred years. In the course of nature, we must know that no one is now living who was living in 1796 and 1797. By the fluctuations and vicissitudes of time, the original deed is lost, or its whereabouts unknown to defendants. And, if they had it, no one is now living by whom it could be proved (394) for registration. And if a preserved copy, certified to by the public register of Burke County, can not serve the defendants (the original registry being destroyed), the defendants would seem to be without protection against the plaintiffs, who have slept on their rights, if they had any, for 100 years. It may be that, if they had asserted this claim seventy-five or even fifty years ago, the execution of this deed might have been established by living witnesses. While the Court must have inherent evidence of the truth of the matter to be proved, when it has this it will be presumed that all matters were regular that are necessary to establish the facts, and cast the burden of disproving them, or of rebutting this presumption, upon the other side. And the great length of time will be taken into account in raising this presumption, as well as of the destruction of the records. Morris v. House,
But it is objected by plaintiffs that the Deputy Clerk could not take the probate of deeds. This is true. Neither could the Clerk of the Court at that time take the probate of a (396) deed, but it was done in open court, and by the Court. The deputy, W. W. Erwin, did not take the probate of this deed, but only certified to the register that it had been proved in open court. We see no objection to his doing this, and if the original deed had been offered in evidence, with this certificate upon it, or the original registry of this deed had not been destroyed, we must think it would have been admissible evidence. Perry v. Bragg,
We do not propose to devote a separate discussion of (398) the deed from Tate, Cochran, and Buchell to Baird, as we think the argument and authorities cited in the discussion of the deed from Tate and Cochran to Constable apply and dispose of the execution of the deed to Baird, though, as there was some difference in the execution and probate of the two deeds, they could not be treated together. In this deed we have a certified copy from the registration books of Burke County, certified to by Thomas Walton, on 14 May, 1859; the only difference between the two being that on the registry this entry appears: "Signed, sealed, and delivered in presence of W. H. Williams, James Murphy, B. Collins." "Enrolled in register's office 18 March, 1796. William Walton, C. R.," followed by a similar certificate from Thomas Walton, as that in the case of the deed from Tate and Cochran to Constable. And it appears that, on the same day this deed bears date (12 March, 1796), Andrew Baird made a deed to said Constable, conveying to him one undivided fourth in the land embraced in the grant to Tate and Cochran, witnessed by W. H. Williams, one of the witnesses to the deed of Tate, Cochran, and Buchell to Baird. It is said in Starke v. Etheridge, supra, that the entry on the record is not the probate of the instrument, but only a memorial of the fact, and, if it be necessary that there should be some written indicia made at the time, it appears in that case by the word "jurat," not deciding that it was an indispensable requisite, but the inference is that it was not. It is held in Howell v. Ray, supra, that it must be presumed from the fact of registration that the deed was properly proved, nothing to the contrary appearing. And it must be presumed that the deed was properly put on the registry, until the contrary is shown. Strickland v. Draughan,
From the facts and circumstances of this case, the great length of time since the date of this deed and its registration; the fact that in December, 1796, eight or nine months after the date and registration of this deed from Tate, Cochran, and *275 Buchell to Baird, Tate and Cochran conveyed to Constable their undivided three-fourths in said land, and the presumption arising in favor of its regular probate from the fact of registration (nothing appearing to rebut such presumption, but all the circumstances going to sustain this presumption); and the fact that it is not necessary to register the certificate or evidence of probate, we must hold that this deed was properly admitted in evidence, and sustain the ruling of the commissioner and the Court below, and affirm the judgment appealed from. "Let the tail go with the hide."
Affirmed.
DEFENDANT'S APPEAL.
We are of opinion that the copy of the grant to Tate and Cochran was properly allowed as evidence, and that defendants' exception thereto is not sustained. Neither do we think the defendant's other exceptions can be sustained. But defendant's exceptions become immaterial, as we have affirmed the judgment appealed from, in the plaintiff's appeal. The parties will be taxed with the costs proper in their respective appeals. The cost of printing transcript of record will be divided equally between the parties.
Affirmed.
Cited: Cozad v. McAden,
(400)