5 S.E. 386 | N.C. | 1888
By consent a trial by jury was waived and it was agreed that issues of fact as well as of law should be tried by the court.
The material facts are in substance, that on 21 May, 1886, the defendants, J. W. Etheridge and his wife, then and still residents of the District of Columbia, executed a deed of trust to W. T. Brinkley conveying to him the property therein and for the purposes named.
The deed of trust was delivered to the register of deeds for the county of Dare and registered, and the following is the certificate of probate and the certificate of registration:
DISTRICT OF COLUMBIA — County of Washington — ss.
I, Sam'l C. Mills, a Commissioner of Deeds and Affidavits of the State of North Carolina, resident in the District of Columbia, do hereby certify that J. W. Etheridge and Carrie F., his wife, personally appeared before me this 22 May, 1886, and acknowledged the due execution of the foregoing deed. The said Carrie F. Etheridge, being by me privately examined separate and apart from her said husband touching her voluntary execution of the same, doth state that she signed the same (44) freely and voluntarily, without fear or compulsion of her said husband or any other person, and that she doth still voluntarily assent thereto; and at the same time before me personally appeared *63 W. T. Brinkley, the within mortgagee, and made oath in due form of law that the consideration in the foregoing is true and bona fide as therein set forth.
Witness my hand and seal this 22 May, A.D. 1886.
SAM'L C. MILLS, [Com's Seal.] Commissioner of Affidavits, etc., For the State of North Carolina, District of Columbia.
Received 26 May, 1886; registered in Book B, pages 389 and 390, 14 June, 1886.
The above deed of trust was registered in Book B, page 380, 5 June, 1886, without probate, by advice of Judge Albertson.
I hereby certify the foregoing to be a true copy of deed of trust as recorded in this office. This 6 November, 1886.
G. B. BLIVEN, Register of Deeds.
The summons in this action was issued on 28 May, 1886, by J. W. Evans, the plaintiff, who was on 21 May, 1886, and has been continuously since, clerk of the Superior Court of Dare County, and the same day that the summons was issued a writ of attachment was issued by the plaintiff in this action, which was levied 31 May, 1886, and the property conveyed in the deed of trust. It was admitted that the account sued on by the plaintiff is just and still due to him.
W. T. Brinkley died on 4 December, 1886, and soon thereafter (45) the defendant, J. W. Albertson, qualified as his administrator, and on 21 December he was regularly appointed trustee in the place of the said W. T. Brinkley, deceased, to execute the deed of trust.
Upon the facts found it was, among other things, adjudged that the "deed of trust constitutes a lien upon the property therein conveyed from 26 May, 1886, and that said lien is superior to the lien of the attachment issued in this cause."
It was also adjudged that the plaintiff recover of the defendant Etheridge the sum of $441.11, with interest on $415.20 from 9 May, 1887, till paid, together with costs, to be paid from the proceeds of the sale of the property in controversy, after first paying the debt secured by the deed of trust, charges, etc.
To so much of the judgment as declared the deed of trust a lien upon the property from 26 May, 1886, and first to be paid, the plaintiff excepted and appealed.
Though the case states that the summons and writ of attachment were issued by the plaintiff, who was the clerk, no question is raised as to their validity, that having been settled on a former appeal (
In addition to the requirement that the list of Commissioners, etc., be printed with the Acts of the General Assembly, section 634 makes it the duty of the Secretary of State forthwith, upon the appointment of such commissioners, to certify the same to the several clerks of the Superior Courts of the State and in like manner to certify to said clerks all removals of commissioners, and of all whose commissions have expired.
If the appellant is correct in either of these positions the judgment below is erroneous.
Section 1254 of The Code provides that "No deed of trust of mortgage for real or personal estate shall be valid at law to pass any property as against creditors, . . . but from the registration of such deed of trust or mortgage in the county where the land lieth," etc.
It is necessary that all deeds, to be valid as against creditors or purchasers for value, etc., shall be proved in some of the modes prescribed by law and registered as prescribed. One of the modes is found in section 1250 of The Code, and is as follows: "Where the acknowledgment or proof of any deed or other instrument is taken or made in the manner directed by the laws of this State before any commissioner of affidavits for the State of North Carolina, appointed by the Governor thereof, in any of the states or territories of the United States or in the District of Columbia, and where such acknowledgment or proof is certified by such commissioner, the clerk of the Superior Court having (47) jurisdiction, upon the same being exhibited to him, shall adjudge such *65 deed or other instrument to be duly acknowledged or proved in the same manner as if made or taken before him."
It is insisted by the appellees that the deed in question was proved in compliance with this section before a commissioner of affidavits, and that the adjudication of the clerk is only directory and not an essential prerequisite to registration, and that, having been registered upon the certificate of the commissioner, though without any adjudication and order of registration by the clerk, it is valid, and the purpose of registration being to give notice, the spirit and purpose of the law is fully met. We are referred to a number of cases (Young v. Jackson,
"Probate of a deed is taken," says Pearson, J., in Simmons v. Gholson, 5 Jones, 401, "by hearing the evidence touching the execution; i. e., the testimony of witnesses or the acknowledgment of the party, and from that evidence adjudging the fact of its execution.
"Where the evidence is offered to the court the entire probate is taken by it, but where the agency of a commissioner is resorted to, a part of the probate, i. e., hearing the evidence, is taken by him and certified to the court, and thereupon the probate is perfected by an adjudication, that the certificate is in due form and that the fact of the (48) execution of the deed is established by the evidence so certified."
In cases of probate before clerks who can both take the evidence and adjudicate the fact, it has been held that, though it ought not to be omitted, the fiat of the clerk of the county of registration is not an absolute prerequisite to a valid registration, but the validity of the registration in such cases rests upon the fact that there has been an adjudication of "due execution" by an officer competent to both hear evidence and adjudicate.
The register has no authority to put the deed upon his books unless proved and so adjudged in some one of the modes prescribed by the statute. "The probate is his warrant for doing so," and if registered without this warrant it does not create such an equity in the mortgagee or trustee as to affect creditors or subsequent purchasers for value. *66
It was so adjudged in Todd v. Outlaw,
We conclude that the deed from Etheridge and wife to Brinkley was registered without proper warrant therefor, and that such registration did not give it validity as against the plaintiff, who was a creditor.
This renders it unnecessary for us to consider the second point made by the appellant.
There is no error.
Cited: Devereux v. McMahon,
(49)