Quinnerly v. . Quinnerly

Feb 5, 1894
Reporters:
,
Before:
Clajlik
Clajlik, J.:

The plaintiff contends that the probate of the mortgage to Nelson and Williams was insufficient to render the registration thereof valid. The ground assigned is that the-Probate Court did not adjudge that the mortgage had been acknowledged by the grantor, or its execution proved by the-witness thereto. It merely recites that the mortgagee had “procured the same to be proved by this Court.” It is true, as contended by the plaintiff, that, if the probate *147 was ill fact insufficient, the registration was invalid and óf no effect. Todd v. Outlaw, 79 N. C., 235, and cases there cited. And there are numerous cases since. Long v. Crews', 113 N. 0., 256. But there was no evidence to show that the probate here was insufficient. The presumption is that it was properly taken. In Starke v. Etheridge, 71 N. C., 240, it is said (page 245): “The probate of a deed is but a memorial that the attesting witness swore to the factum of the instrument by the parties whose act it purports to be. The officer who takes the probate does not look into the ' instrument or to the interests acquired under it, and, as the' probate is ex-parte, it does not conclude. Therefore, it may be shown by parol that what purports to bo a deed is no ' deed, but a forgery; or was executed by a married woman or an infant; or was not proved so as to make the deed ' valid; or that it was not proved at all prior to registration; or was proved by an incompetent witness, as in the case of' Carrier v. Hampton, 11 Ired. (33 N. C.), 307. See also, McKinnon v. McLean, 2 Dev. & B. (19 N. C.), 79. As the ' validity of the registration may-be thus impeached, so it may be supported by the same kind of evidence. Justice v. Justice, 3 Ired. (25 N. C.), 58; Moore v. Eason, 11 Ired. (33 N. C.), 568.” Accordingly, in that case (Starke v. Etheridge), in which there was no probate on the deed, or on the record of its registration, beyond the word “Jurat,” written opposite the name of the subscribing witness, an admission that \ the deed had been in fact properly proved before the proper officer cured the defect. Here the recital in the probate that the mortgagees Nelson and Williams “had procured the same to be piroved,” not being impeached, is conclusive of sufficient and proper proof. Horton v. Hagler, 1 Hawks (8 N. C.), 48; Devereux v. McMahon, 102 N. C., 284.

The plaintiff further contends that his nmrtgage, being for the unpaid purchase-money, is entitled to priority over *148 the Nelson mortgage, though registered after it, and that Nelson and Williams had notice that the purchase-money had not been paid. As to this, it will bo sufficient to quote from Blevins v. Barker, 75 N. C., 436 (on page 438): "Under the. act of 1829 (now section 1254 of The Code) no notice to the purchaser (here the defendant), however full and formal, will supply the place of registration. Robinson v. Willoughby, 70 N. C., 358; Fleming v. Burgin, 2 Ired. Eq. (37 N. C.), 584; Leggett v. Bullock, Busb., 283; Miller v. Miller, Phil. Eq. (62 N. C.), 85. It is altogether too late to contend that the vendor of real estate, who has conveyed it by deed, lias a lien upon the land for the purchase-money; nor can the vendor reserve a lien, unless he take his security in writing and have it registered. All secret trusts, latent liens and hidden encumbrances are, and were intended to he, cut up by the roots, by force of our registration laws. And since the decision of this Court in Womble v. Battle, 3 Ired. Eq. (38 N. C.), 182, the law as here announced has been considered as well settled in North Carolina.”

No Error.