16 S.E. 317 | N.C. | 1892
A jury trial was waived, and the court found the following facts: On ______ day of May, 1835, the plaintiff was the owner of the land in controversy, and was at the time a feme covert and a minor, being eighteen years of age. On ______ day of May, 1835, the plaintiff, with *333 her husband, executed to John Venable, under whom the defendant claims, a deed to the land, which was regular in form. The deed was offered for probate in the following form.
"May Term of Surry Superior Court. Ordered by the court that H. P. Poindexter and R. C. Puryear be appointed to take the private examination of Nancy Kidd in relation to a deed made to John Venable.
B. VESTAL, Chairman County Court.
Agreeable to the above order we have taken the private examination of Nancy Kidd, relative to her signature to a deed made by her to John Venable, who acknowledged the same of her own free will without control of her husband.
H. P. POINDEXTER, R. C. PURYEAR.
Surry County, May Term, 1835. The execution of the within deed as to Allen Kidd was duly acknowledged in open court and ordered to be registered.
T. K. ARMSTRONG, Clerk."
His Honor held that said probate was sufficient in form, to which the plaintiff did not except. The court further found that at the time of the execution and probate of said deed the plaintiff was an infant eighteen years of age, and remained under coverture until within two years from the commencement of this action in 1880.
His Honor held that the probate as aforesaid was not conclusive (537) and could be collaterally attacked, and that the plaintiff could avoid her deed on account of her infancy at the time of the execution and probate thereof, and thereupon gave judgment for the plaintiff. The defendant excepted and appealed. It appears from the statement of the case on appeal, that no exception was taken to the ruling of his Honor that the probate of the deed was sufficient in form. We would be precluded from entertaining an exception here which was not made below, except upon a question of jurisdiction or because the complaint does not state a cause of action. Rule 27, and cases cited thereunder; Clark's Code, page 696. As it was earnestly argued before us, however, by the learned counsel *334 for the appellee, that the certificate of probate was insufficient to authorize the registration of the deed, because it does not appear therein that the persons who took the privy examination were members of the court, as required by the Act of 1751, the statute then in force, and therefore that the probate and registration are void, we will say that the probate being sufficient in form, the maxim presumunter rite esse acta will support the inference that they were members of the court.
Etheridge v. Ashbee,
(538) In the case before us it appears that two persons were appointed by the court to take the private examination of the wife; that they reported that they had taken such private examination, and that she acknowledged the same of her own free will, without control of her husband; the acknowledgment of the husband was made in open court, and the deed was ordered to be registered — the whole proceeding being one continuous transaction.
It was held in Beckwith v. Lamb,
In Etheridge v. Ferebee,
It must be remembered that at the time of the execution of the deed we are now considering, the act of Assembly gave no form in which the certificate of the report of the privy examination is to be made, as it does now by section 1246 of The Code.
The inference, then, is that the persons appointed to conduct the (539) privy examination were members of the court as required by statute *335
for the court appoints them, receives their report, acts upon it and orders the deed to be registered. It was further said in the case last cited, and we adopt it as applicable hereto, that "this Court has every disposition, by fair construction, to sustain the deeds of femes covert, and does not feel it to be a duty to become astute in detecting informalities or irregularities whereby to avoid such deeds and throw the loss on innocent purchasers." See, also, Robbins v. Harris,
This brings us to the second point: Whether the plaintiff can avoid this deed upon the ground that she was an infant at the time of its execution?
The deed was executed and admitted to probate in May, 1835. The statute then in force was the Act of 1751 (1 Potter's Revisal, 185, afterwards amended and brought forward into the Revised Statutes, chap. 37, sec. 9), which prescribes the manner of execution of deed, probate and privy examination of the wife, and registration, and that when so executed, etc., according to law, they "shall be as valid in law to convey all the estate and title which such wife may or shall have in any lands, tenements or hereditaments so conveyed . . . as if done by fine and recovery, or any other ways and means whatsoever."
The same question has been fully discussed by Mr. Justice (540)Bynum in Wright v. Player,
The statute, now section 1256 of The Code, as did section 8 of chapter 37 of the Revised Code, omits the words "as if done by fine and recovery," etc. And the deed and privy examination of a feme covert, made and taken since the enactment of the Revised Code, have no longer the effect of an assurance of record, like a fine, but may be collaterally impeached on the ground of infancy or other disability. *336
His Honor evidently did not advert to the fact that this deed and privy examination were while the Act of 1751 was still in force.
There is error. Judgment reversed, and judgment should be entered in the court below for the defendant.
REVERSED.
Cited: Williams v. Kerr,
