146 S.E. 713 | N.C. | 1929
The plaintiff alleged that he was the owner of a tract of land containing 140 acres, and that the defendants claimed title thereto. He brought suit to have the claim of the defendants declared void as a cloud upon his title. The defendants denied that the plaintiff had title to the land, alleged that they were the owners in fee, and prayed that the plaintiff's claim be declared a cloud upon their title and adjudged to be of no effect. Both parties claimed title under one A. C. Berry.
The plaintiff introduced a grant for the land in controversy (No. 3472) to D. F. Ramsour, dated 12 June, 1871, and registered 8 January, 1872; also a deed from A. C. Berry to the plaintiff dated 27 February, 1903. This deed purports to have been signed under seal by A. C. Berry and to have been witnessed by E. F. Burgess and W. L. McNabb. The certificate and probate are as follows:
State of North Carolina — Cherokee County — ss.
Before me, U.S. G. Phillips, a justice of the peace of said county, personally appeared W. L. McNabb, the within named witness, with whom I am personally acquainted, and who acknowledged that he saw the deed signed by A. C. Berry for the purposes therein expressed.
Witness my hand and seal of office on this 28th day of December, 1906. U.S. G. PHILLIPS, Justice of the Peace. *659 North Carolina — Cherokee County.
The foregoing certificate of U.S. G. Phillips, a justice of the peace in and for the county of Cherokee and State of North Carolina, attested by his . . . . . . . seal, is adjudged to be correct and sufficient; therefore, let the instrument with certificate be registered.
Witness my hand this the 31st day of December, A.D. 1906.
A. A. FAIN, Clerk Superior Court.
Upon the certificate and probate the deed was registered 31 December, 1906.
The trial judge held that the certificate of the justice and the probate of the clerk were insufficient in law, and that no title passed to the plaintiff by virtue of the deed. He held in addition, the parties claiming from a common source, that the deed was not effective as color of title.
The plaintiff withdrew her motion for voluntary nonsuit, the defendants offered evidence, and at the conclusion of the evidence the defendants' motion to nonsuit the plaintiff on his cause of action was allowed. Upon the defendants' counterclaim two issues were submitted, and to each the jury gave an affirmative answer: 1. Are the defendants the owners of the land described in the complaint and answer? 2. Does the plaintiff's claim constitute a cloud upon the title of the defendants? It was therefore adjudged that the defendants are the owners of the land; that the plaintiff's claim is a cloud on the defendants' title, and that it be canceled and removed. The plaintiff appealed upon assignments of error which are set out in the opinion. The plaintiff and the defendants claim the land in controversy under A. C. Berry as a common source of title. The deed from Berry to the plaintiff was dated 27 February, 1903, and registered 31 December, 1906; the deed from Berry to W. T. Crow was dated 18 February, 1909, and registered 1 February, 1910.
No conveyance of land shall be valid to pass any property, as against creditors or purchasers for a valuable consideration, from the donor, bargainor or lessor, but from the registration thereof in the county where the land lies, and no notice however full and formal as to the existence of a prior deed can take the place of registration. C. S., 3309; Allen v. R.R.,
The execution of all deeds of conveyance may be proved or acknowledged before any one of designated officials. C. S., 3293. They shall be acknowledged by the grantor or his signature shall be proved on oath by one or more witnesses in the manner prescribed by law; and all deeds executed and registered according to law shall be valid. C. S., 3308. The substantial form of the grantor's acknowledgment is prescribed in section 3323. "Probate of a deed is taken by hearing the evidence touching its execution; i. e., the testimony of witnesses, or the acknowledgment of the party, and from that evidence adjudging the fact of its due execution."Pearson, J., in Simmons v. Gholson,
The registration of a deed on a probate which is apparently regular is prima facie evidence of its due execution. Strickland v. Draughan,
In Starke v. Etheridge,
Our opinion is that the probate of the deed in question is defective, the mere acknowledgement by the witness that he was the deed signed by Berry falling short of the plain requirement that the execution must be proved by the witness on his oath.
The plaintiff offered to prove by the justice of the peace who took the "acknowledgement" of McNabb, one of the subscribing witness, and by McNabb Himself, that McNabb testified on oath before the justice that Berry signed the deed in the presence of both witness. We find no error in the exclusion of this evidence. Neither Starke v. Etheridge, supra, nor Quinnerlyv. Quinnerly, supra, nor Bailey v. Hassell, supra, supports the appellant's position. The first two of these cases hold that evidence is admissible to show that what purports to be a deed is a forgery, or that it was executed by a married woman or an infant, or that it was not properly executed, and that the registration of an instrument may be impeached in this way or supported by evidence tending to sustain the officer's finding as stated in this certificate. Bailey v. Hassell, supra, which was controversy between the immediate parties or their representatives, is not authority for the position that parol evidence may be heard, long after the rights of innocent third parties have intervened. The opposite conclusion is maintained in Butler v. Butler,
The plaintiff next insisted that his deed is color of title, citing three cases which we think are not in point. In Smith v. Proctor,
In Austin v. Staten,
We are of opinion, however, that his Honor erred in directing a verdict upon the two issues set out in the judgment. There is at least some evidence of the plaintiff's adverse possession of the land for a period of twenty years. C. S., 430. Johnson v. Fry, supra. For this reason the appellant is entitled to a
New trial.