82 S.E. 951 | N.C. | 1914
The constitutional necessity for the wife's privy examination in a deed to her lands questioned and discussed by CLARK, C. J. This action was begun before the clerk for the partition of land, and upon a plea of sole seizin it was transferred to the civil-issue docket, and tried before a jury. Verdict and judgment for plaintiffs. Appeal by defendants. Frances A. D. Norwood, who was the second wife of Mebane A. J. Norwood, on 11 October, 1905, executed a deed to the premises to her husband, whose heirs at law are the plaintiffs. Her privy examination was not taken. She died about a month thereafter, having had no issue born. The defendants are her heirs at law. The jury find, under proper instructions, that said husband and his children by the first wife have been in adverse possession under said deed more than seven years. This deed was offered merely as color of title, and the court properly held that it was sufficient for the purpose.
Judge Henderson's definition of color of title, in Tate v. Southard,
Judge Gaston's definition of color of title is to be found in Dobson v.Murphy,
This has been approved in Ellington v. Ellington,
The definition by Judge Hoke in Smith v. Proctor,
Applying that to this deed, the judge was correct in holding the deed to be color of title. In Pearse v. Owens,
In Smith v. Allen,
It may here be noted that the requirement of the private examination of a married woman to any conveyance was long ago abolished in England and in nearly all the States of this Union, including our adjacent States of South Carolina, Georgia, Alabama, Tennessee, Kentucky, West Virginia, Maryland, and Virginia. Besides North Carolina, there are only four other States in the Union retaining such requirement, Arkansas, Delaware, Florida, and Texas. 1 A. and E. (651) Enc., 522, 523. In many States it has been abolished by statute. In others it has been held that words substantially like those in our Constitution, Art. X, sec. 6, giving a married woman the right to convey her realty "as if she were unmarried" per se prohibit the requirement of a privy examination in her conveyance, and indeed the requirement in our Constitution of a private examination is made only (Art. X, sec. 6) as to the conveyance by the husband of his homestead. However, this Court, in a majority opinion, has held that it will require a statute to abolish the exaction of a privy examination. Weathers v.Borders,
"Acknowledgement is not ordinarily essential to the validity of an instrument. Consequently an instrument properly executed in other respects but defectively acknowledged is good against everybody except subsequent creditors and purchasers without notice. No one else can take advantage of the defect. . . . The fact that an instrument is defectively acknowledged will not affect its operative force as against the grantor and his heirs." 1 Cyc., 526, 527, and many cases cited.
It is true that this is a conveyance from the wife to the husband, and that Rev., 2107, requires, as to contracts by the wife with the husband, that the officer, besides the certificate of privy examination, must certify that such contract "is not unreasonable or injurious to her."
If, however, it had been required that such certificate as to the reasonableness of the transaction should be embraced in the certificate to conveyances, its absence would have no more effect than the absence of the certificate of a privy examination, that is, while it would invalidate the conveyance, it would not prevent it from being color of title. *563
Treating this defect in the acknowledgment as fatal to the validity of this deed, it was sufficient as color of title which was ripened by seven years adverse possession, under our authorities as above quoted. The same is the general doctrine elsewhere according to cases cited in 1 Cyc., 1087, which are summarized: "A deed which purports to convey title will give color of title, though it be not acknowledged or though it be defectively acknowledged."
The evidence here of adverse possession from the death of the (652) wife, the grantor, is amply sufficient. The building of a house on the land was not the beginning of the adverse possession, but only additional evidence. When the wife died, having had no children, the husband did not have tenancy by the curtesy, and the title went to her heirs at law, and possession by her husband became adverse to them, unless the contrary was shown, for the evidence was that he and his son after him, either in person or by their tenant, occupied and cultivated the land under known and visible metes and bounds for seven years.
The description of the land in the deed, after naming the township and county, "adjoining the land of John Stone on the north and west, and Hargrove heirs on the east, and Samuel Culbertson on the south, and bounded as follows, viz., containing 30 acres more or less," is not void for uncertainty, but the tract could be identified by parol evidence, if there had been any controversy in that regard. Hudson v. Morton,
No error.
Cited: Gann v. Spencer,