19 N.C. 79 | N.C. | 1836
The court is of opinion, that the registration of the deed to the plaintiff is to be considered under the provisions of the act of 1829, c. 20, as having been made on the 4th day of September, and is therefore prior to the lien of the execution tested on the 7th of the month. The latter act is different from that of 1820, (Rev. ch. 1037,) upon which the case of Moore v. Collins, 4 Dev. 384, was decided. That makes deeds of trust void unless they be registered within six months; and there is nothing in it to denote that any thing short of a complete registration by fully transcribing the instrument into the books of the register, is to be a registration, or constitute part of it. The opinion delivered by my brother Daniel adverts particularly to that circumstance, as distinguishing the two statutes, and we think it a plain and sound distinction. The act of 1829 does not avoid a deed of trust for want of registration at any particular time; but it declares that it shall not operate “ but from” the registration; and the question is, at what period the registration shall be said to be made.
We have no doubt but the schedules form part of the deed, and ought to be registered, for without them there is no description of the things conveyed; but for the reasons already mentioned, it was unnecessary that the register should have stated the different periods at which the different parts of the deed were transcribed; for although not true in point of fact, it is true in point of law, that the whole was registered together on the fourth day of the month.
It is however, objected by the defendant, that the deed was proved by an incompetent witness, and therefore that the probate and registration founded thereon are void. We do not assent to that inference, although we do not concur in, the answer of “ res judicata” given to it at the bar. Probates of deeds are eso parte, and do not conclude. The deed may still be shown to be a forgery, or to have been executed by an infant or a feme covert. The person taking the probate does not adjudge and decide theinstru
The judgment must therefore be reversed; and judgment be given for the plaintiff for the sum mentioned in the case agreed, and for the costs in both courts.
Pek CtjRiam. Judgment reversed.