Cook v. . PittmanCook v. . Pittman
In deraigning ber title, tbe plaintiff offered a deed purporting tо have been executed by Elisba Oarroway and wife to Isаac Cook, 20 July, 1878. This deed was offered as color of title. The following is the probate to the deed:
“I, Samuel W. Blalоck, an acting justice of the peace in and for sаid county, do hereby certify that I have privately examinеd Elisha Oarroway, Nancy Oarroway, his wife, grantors of the abоve deed; and Nancy, his wife, doth state that she signed the same freely and voluntarily, without fear or compulsion of her said husband or any other person, and she doth still assent thereto. Witness my hand, seal, this 26 July, 1818. S. W. Blalock, J. P ”
The introduction of the deed was objected to for insufficiency of the certificatе. During the recess of the Court, S. W. *531 Blalock attacked, to thе deed a proper certificate, and dated it 26 July, 1878. Hе attacked to tke deed at tke same time an affidavit dated 11 April, 1906, tkat on 26 July, 1878, ke was a justice of tke peace in Mitckell Oonnty, and tkat Eliska Oarroway and wife Nancy duly aсknowledged said deed before kim on tkat date, and tkat kе properly took tke privy examination of tke wife. Uрon tkis last certificate tke deed was registered during tke rеcess, and wken tke trial was resumed it was offered again in еvidence and admitted, over tke defendant’s objectiоn.
We do not find anywhere in tke record tkat tke plaintiffs insisted on proving on tke trial tke execution of tke instrument as a common-law deed for purposes of color. Therеfore, tke right to introduce it at all must depend upon tke sufficiency of the certificate of probate.
The first сertificate is insufficient because it does not appear thereon that Eliska Oarroway ever acknowlеdged the execution of the deed, and therefore it does not come within the terms of the curative statute of 1893 (Rеv., sec. 1017). Neither is the certificate sufficient as to Nanсy Oarroway, for the reason that it fails to state that the privy examination was taken separate and apаrt from her husband.
Fenner v. Jasper,
We think that the second certificate, datеd in 1878, but made in 1906, did not' entitle the deed to registration, and was valueless, as Blalock was not in office and had not been fоr some 'years, and had actually, it is said, removed from the сounty. A Sheriff or coroner who has gone out of office can make deeds for land sold by him under execution by .virtue оf the power conferred by the Acts of 1784 and 1899, which gave thе same power to successors.
Harris v. Irwin,
29 N. C., pp. 433, 434. But we know of no statute, and
*532
none has been called to onr attention, which authorizes a justice of the peace, whose term has expired, to attaсh a new certificate of probate to a deed. “One who has certified a married woman’s acknowledgment cannot, after going out of office, correct а defect in the certificate.” 1 Cyc., 607, where the authorities are cited; 1 Am. and Eng. Enc. (2 Ed.), 552;
Fitzgerald v.
Milliken,
New Trial.