35 N.C. 400 | N.C. | 1852
Ejectment, submitted on the following case agreed: The feme lessor, Susan E. Beckwith, while the wife of Watrous Beckwith, now deceased, signed a deed in due form of law to convey her interest in the premises, which she owned in fee, prior to her coverture. The probate, examination, and report on the said deed are as follows, viz.:
February Probate Court, 1827.
NORTH CAROLINA — Pasquotank County.
This deed of bargain and sale from Watrous Beckwith and wife, Susan E., and William Shaw and Edmund Blunt, to John M. Skinner, with a release thereon from said John M. Skinner to the said Watrous and Susan E. for the burying ground, was exhibited in open court, and the execution thereof by the said Watrous, William, Edmund, and John was proved by the oath of Thomas L. Shannonhouse, one (401) of the subscribing witnesses thereto, and acknowledged by Susan E.; and on motion in open court, Lemuel Jennings, Esq., one of the presiding justices, was appointed to take the private examination of the said Susan E., as to her consent in signing said deed, who reported she acknowledged to have signed it of her own free will and accord, without any compulsion from her said husband. Ordered to be recorded.
The presiding judge being of opinion that the probate, examination, report, and registration were not good and sufficient and available to pass title to a feme covert's lands, directed a judgment in favor of the plaintiff, which was entered, and from which the defendant appealed. The lessor of the plaintiff, while a feme covert, had executed two deeds; and it was agreed that if the "probate, examination, *274 report, and registration" on either of them was sufficient in law, judgment was to be entered for the defendant. But if the probate, etc., on neither was sufficient, then judgment was to be entered for the plaintiff. His Honor was of the latter opinion, and directed a judgment in favor of the plaintiff.
In this opinion we do not concur. In reference to the first deed, the record of the county court sets forth that it was exhibited in open court, and the execution thereof by the husband was proved by the oath of one of the subscribing witnesses, and it was acknowledged by the wife; "when on motion in open court, Lemuel Jennings, Esq., one of the presiding justices, was appointed to take the private examination of the said Susan E. (the wife) as to her consent in signing said deed, who reported she acknowledged to have signed it of her own free will and accord, without any compulsion from her said husband. Ordered to be recorded."
(402) The objection is that it is not set forth that upon her private
examination she acknowledged, etc. All that is set forth in this record occurred at the same time. Joyner v. Faulcon,
The fact that the deed was proven as to the husband, instead of beingacknowledged both by him and his wife, was not relied on in the argument; but it may be well to advert to it, as at one time there was an impression that the objection was fatal. All doubt upon this, however, is settled inJoyner v. Faulcon, cited above, and in Etheridge v. Ashbee,
It is not necessary to notice the questions made as to the second deed upon the agreement of the parties.
Judgment reversed and judgment in favor of defendant.
PER CURIAM. Judgment accordingly.
Cited: Marshall v. Fisher,
(404)