208 F. 785 | E.D.N.C. | 1913
“Any such acknowledgment or proof, taken or made in the maimer directed by the laws of this slate, and certified by the commissioner before whom the same shall be taken or made, shall have the same force and effect and be as good and available in law for all purposes, as if the same had been made or taken before one of the Justices of the Supreme Court of the United States, or judge of any court of supreme jurisdiction in any of the United States.” Acts 1830-31, e. 31; R. S. c. 21.
By section 4 of the statute the Governor is directed to make known to the clerks of the several courts of record of the state the name and places of residence of such Commissioners. By section 5, c. 37, R. S., and of the Revised Code, it is provided that, when a deed is proven before any of the several officers named therein, outside of this state, including “any commissioner appointed by the Governor of this state according to law,” and certified by him as required by law, such deed—
“being exhibited in the court of pleas and quarter sessions of the county in which such lands lie. * * or to one of the Judges of the Supreme Court or of the superior courts of this state, shall be ordered to be registered with*788 the certificate thereto annexed, and such deeds, * * * with the certificates thereto annexed having been registered, pursuant to such order, in the county, in which such lands lie, * * * shall be valid in law to convey,” etc.
This statute was in force in 1857, when the deed from White to Wallace purports to have been executed. It will be noted that the statute does not require that the certificate of the clerk of the court or the judge who orders the deed and the certificate of the commissioner to registration shall be made upon or attached to the deed or registered with it. It may be asked, what evidence would the register of deeds have that a deed tendered him for registration upon a probate taken by a commissioner had been passed upon by the court? By reference to chapter 98, R. S. (Id. Rev. Code, entitled “Registers”) being the act of 1777, as amended by the Acts of 1807 and 1814, it will be seen that by section 5 it is made the duty of the clerks of the court of pleas and quarter sessions, upon application of the register of deeds for his county, at any time after 10 days from'the rise of each court, to deliver to the said register all deeds and other instruments of writing admitted to probate and then remaining in his office for registration, and to pay over the fees for registering the same. For failure to discharge the duty so imposed, the' clerk shall forfeit and pay to the register the sum of $100. By section 6 it is made the duty of the register, within 20 days after the rising of each court, to apply at the clerk’s office of their respective counties for all deeds admitted to probate for registration. For failure to do so the register forfeited the sum of $10, one half to the use of the poor, and the other half to the use of the person suing for the same. The register, therefore, was authorized, and it was made his duty, to accept from the clerk such deeds as were given him for registration, as having been duly admitted to probate in open court. There was no statutory requirement that the clerk write any certificate on the deed, and none that such certificate, if written on it, be recorded. The fact of its probate and order of registration was entered on the minutes of the court. Freeman v. Hatley, 48 N. C. 115; Perry v. Bragg, 111 N. C. 163, 16 S. E. 10. The abolition of the court of pleas and quarter sessions, resulting in conferring upon clerks of the superior court and other officers probate jurisdiction, resulted in important changes in the method pursued in probating deeds. This is shown by the provision of section 1246, Code 1883, requiring the clerk of the superior court, taking probate of a deed, to “enter his certificate thereon.” By section 1250, the power is conferred upon the clerk to “adjudge probates taken before a commissioner of affidavits to be correct,” etc. Act 1899, c. 235, requires that the clerk, passing upon the validity of the probate, shall order the deed, together with the certificate, to be recorded. Revisal 1905, c. 18, § 1001. It is held that, unless required by the statute, the certificate need not be registered. Cochran v. Improvement Co., 127 N. C. 386, 37 S. E. 496.
In the absence of 6 any statute requiring the registration of the certificate, showing that the deed probated by the commissioner of affidavits has been passed upon, adjudged correct, and ordered to regis
“Whore the alleged ancient original deed is lost (or otherwise unavailable) and a purporting official record is offered, made more than .‘10 years before, and certifying the deed’s contents and execution, but inadmissible as an official record, because not made in accordance with statutory provisions, may not this ancient copy record serve as sufficient evidence of genuineness? * * * The defects in the record are, in a measure, technical only, and it still is entitled to some consideration as an official statement, and the long publicity of it has given ample opportunity, if any just ground existed, for doubting the original’s authority. Accordingly, there has been a general disposition, on one ground or another, to accept such an ancient record, though otherwise inadmissible, as sufficient, after the lapse of time.”
The learned author says:
“This conclusion has been usually accepted. * * * Moreover, the fact of possession of the land, as a confirming circumstance, seems often to be here insisted upon irrespective of its general requirements.”
Among the illustrative cases cited by him are the following:
“Though the ancient record of a deed improperly acknowledged is not in itself evidence of the execution of the deed, yet such record, in connection with long and undisputed possession consistent with the deed, and other circumstances which tend, as a matter of fact, to show the probable execution and loss of such a deed, is admissible as evidence to go to the jury upon the question” of its execution. Townsend v. Downer, 32 Vt. 183.
“A copy of a deed * * * is, after 60 years, admissible in evidence to establish the grant under which the party claims title to the land in controversy.” Stokes v. Dawes, 4 Mason, 268, Fed. Cas. No. 13,477.
“If it (the deed) had been recorded in the proper court of the proper county more than 20 years before the day of trial, the presumption was that its execution had been legally proved or acknowledged, and that the proper certificate had been ‘written upon or under the deed.’ ” White v. Hutchings, 40 Ala. 253, 88 Am. Dec. 766.
In Bradley v. Lightcap, 201 Ill. 514, 66 N. E. 546, the deed had been recorded more than 30 years. It was admitted without any proof of acknowledgment.
Experience, the best test of the admissibility of ancient deeds and records, has demonstrated the wisdom of relaxing the rules of evidence to prevent injustice and promote security of title to land. It
Without passing upon the effect to be given to the certified copy of the deed, I am of the opinion that it was properly received in evidence by the master.
“Any person * * * holding any unregistered deed or claiming title thereunder, executed prior to January 1, 1870 (originally 1855), may have the same recorded without proof of the execution thereof: Provided, that such •person * * * shall make an affidavit * * * that the grantor * * ® of such deed, and the witnesses thereto are dead or cannot be found, and that he, * * * cannot make proof of their handwriting. Provided, that * * * affiant believes such deed to be a bona fide deed and executed by> the grantor therein named. * ® * Said affidavit shall be written upon or attached to such deed, and the same, together with such deed, shall he entitled to registration.”
This statute (drawn by the writer) was incorporated in Act 1885, c. 147, to enable the large number of persons in this state, holding or claiming under unregistered deeds of 30 years of age or more, to put them upon the registration books. By this statute, a new policy in regard to the effect of registering deeds as muniments of title was introduced. For the first time in this state deeds which were registered were given priority, as against creditors and purchasers for value, over those claiming under unregistered deeds. The purpose of the statute was to secure the registration of deeds and increase the security of titles. Its provisions should be construed liberally to promote this end. The defendants objected to the introduction of this deed for that the president of the corporation was not' authorized to make the affidavit unless so directed and authorized by a resolution of the board of directors; that the words “any person,” etc., referred to the corporation, and the affidavit was the act of the corporation. I am unable to perceive the force of this objection. It is elementary that a corporation acts only through its officers or agents. While it may be that, as the custodian of its records, etc., the secretary may have more appropriately made this affidavit, there is no good reason why the president was not competent to do so. His authority to do an act for
On March 3, 1842, George 1 Tapper executed to Wm. Wallace and Gisbourn Cherry a deed sufficient in form to convey land describing a tract of juniper swamp containing boundaries corresponding with the boundaries of lot No. 7, and further described as—
“containing eight hundred, and seventy acres, more or less, and is the same swamp that the said Happer purchased at the sale oí Wiley McPherson, deceased.”
This deed contains the following reservation:
“Except the lumber made by said Happer, and now remaining in said swamp and the privilege of carting it oil.”
“one half of a tract lying on both, sides of Gross Canal, containing eight hundred acres, more or less, and is the same land that was purchased (by) Cherry and Wm. Wallace, deed bearing date March 8, 1842.” Recorded November 10, 1843.
On January 6, 1845, Josiah Cherry, mortgagee, executed a deed to Gisbourn Cherry, Jr., reciting the said mortgage and a sale at public auction “in front of Samuel Foreman’s tavern,” after advertisement, conveying “one-half of a tract of eight hundred acres more or less, called the Happer tract.” Recorded July 4, 1845. On December 7, 1846, Gisbourn Cherry, Jr., executed a deed to J. R. White, conveying juniper swamp described as the same land sold under a deed of trust and purchased by Gisbourn Cherry. Recorded March 26, 1847. On April 10, 1857, J. R. White and wife executed a deed to G. T. Wallace, conveying a certain juniper swamp—
“the same that was purchased by said White from Gisbourn T. Cherry, and is the south part of the tract known as the Happer swamp (the north part of which is owned by the said Wallace), containing four hundred acres more or less.”
On July 29, 1844, William Wallace executed a deed to G. T. Wallace conveying — ■
“a certain tract of juniper swamp land, belonging to Gisbourn Cherry, Sr., and myself and is the same that was purchased by us from George Happer, a deed bearing date March 3, 1842, * * * containing eight hundred and seventy acres, more or less, and is the same swamp land that the said George Happer purchased at the sale of Wiley McPherson, deceased.”
If the description in these deeds is sufficiently definite to admit parol evidence to locate the land, the paper title to lot No. 7, containing 870 acres, vested in G. T. Wallace on April 10, 1857, and such title as he had passed to and vested in the plaintiff by the other deeds in evidence.
The master finds from the parol evidence and the plats that these deeds cover the lands in controversy. To this finding defendants except, and insist that the description is not sufficiently certain and definite to admit parol evidence to locate the land. The master finds otherwise. The exception to this finding cannot be sustained. The master finds:
“That no other persons than plaintiff and those under whom it claims have claimed the lands since the date of the aforesaid (Happer) deed, March 3, 1842, and certainly not since 1869.
“That plaintiff and those under whom it claims have claimed and exercised control over the said tract of land.
“That the Wallaces begun operations on lot No. 7 in 1869, and that, in varying degrees, they and the plaintiff in this case have continued to the beginning of this suit.
“That the land is a juniper swamp, and valuable principally for timber which, for several years after 1870, could only be moved by tram or roll ways and canal or large ditches. When water was low, or during fly season, operations had to be suspended until these conditions changed. That from 1869 to 1876, the Wallaces subjected some portion of lot No. 7 continuously to the only use to which it was susceptible, and that after this time to 1886 there were varying degrees of operation on the land, and from 1880 to 1885 or 18S6, the use and operation of the land were continuous. That plaintiff and those*793 mular whom it claimed, listed and paid tax on this land from 1872 to 1910, inclusive. There were several years during which the tax lists were lost. There is no evidence tending to show that defendants, or their ancestors, listed the land in controversy, for taxation.
“'That the plaintiff does not connect Itself with the grant, and therefore is compelled to rely upon an ouster under color of title and seven years’ adverse possession. That the deeds under which plaintiff and those under whom it claims constitute color of title to said land, and that they have been in the adverse possession thereof, under such color of title, for more than seven years next before the filing of the bill heroin.
“That the deeds under which defendants claim to own the said land constitute a cloud upon plaintiff’s title. That the land in controversy is worth from $60,000 to $75,000. Defendants’ exceptions challenge the correctness of each of these findings of fact, except the value of the land, and conclusions of law. Defendants Tinnix and Eerrebee except to the finding that defendant ,T. N. Gregory was, at the date of filing the bill herein, not a resident of the state of Virginia. This finding relates to the jurisdiction of this court.”
There is sufficient evidence in the record to sustain the finding; the exception is overruled.
We are thus brought to a consideration of the findings and exceptions thereto, relating to plaintiff's title; and that is dependent upon the correctness of the findings in regard to the entry and adverse possession of plaintiff and those under whom it claims. Defendants offer no evidence that they, or those from whom they deraign title, have exercised any control, or act of dominion over, or in respect to, the land since 1842. They rely upon the legal title, conceded to have been in their ancestor, Wiley McPherson, at the time of his death and the principle of law which, in the absence of actual adverse occupation by another, draws the possession to it. The burden is therefore upon plaintiff to show such entry under color of title and adverse occupation, or possession, for seven years as will ripen into' title. It is well settled, by numerous and uniform decisions of our Supreme Court, that such entry, followed by possession for seven years, uqt only bars the disseisee, but confers title upon the disseisor. In discussing the question of possession, and the evidence deemed sufficient to establish it, the courts have said:
“So much depends on the nature and situation of the property, the uses to which it can he applied, or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule, adapted to all cases.” Ewing v. Burnet, 11 Pet. 53, 9 L. Ed. 621.
It has been said by our Supreme Court that, in seeking to ascertain whether the acts atid conduct of a trespasser, continued" for the statutory period, are sufficient to constitute an ouster, the leading idea is that there shall be notice to the world that the land is being subjected to that use to which it is susceptible. Moore v. Thompson, 69 N. C. 120. A recent decision of the Supreme Court of this state is peculiarly in point because the land in controversy is situate in the same section, and is of the same character, as that involved in this case. In Berry v. McPherson, 153 N. C. 4, 68 S. E. 892, Mr. Justice Brown says:
“The land in controversy appears to be swamp land, uninclosed, and with no habitation upon it. The evidence Indicates that the plaintiff and his lather for more than BO years exercised acts of dominion over the land, and*794 made from it the only profits and use of which it is susceptible. From the evidence of the witnesses the jury may well infer that these acts were those of ownership and not those of an occasional trespasser, and that they were repeated and continuous for a considerable period of time. The possession was as decided and notorious as the nature of the land would permit.”
In Locklear v. Savage, 159 N. C. 236, 74 S. E. 347, Mr. Justice Walker reviews the North Carolina decisions, which are controlling with this court in this case. He says:
“While the evidence offered is not necessarily conclusive, if taken to he true, as to the fact of possession, we think it is sufficient to be submitted to the jury, under appropriate instructions, 'that they may draw such inference as they see proper, bearing in mind that the burden of proof is on the plaintiff to establish the fact of possession for the statutory period by a preponderance of the proof.”
Applying this rule to the testimony heard by the master, it is found that, while the evidence, coming from a large number of witnesses, many of them illiterate colored men, who had, at different periods of time, worked in the swamp, cutting and removing timber, was not always clear, either in their understanding or memory, frequently contradictory, there is much reliable and satisfactory evidence, both from witnesses and conditions, which justifies the finding of the master —the natural evidence, stumps, indicating the cutting of trees in large numbers at different periods of time; tramroads, indicating different periods of time of building and use, ditches, cut into the land; and other similar evidence, showing that the land was subjected to the use to which it was susceptible. There is also evidence of books, accounts, etc., showing that large quantities of timber were cut and removed from the land by Wallace. Of course, as is usual in such controversies, the evidence is conflicting, witnesses differing in their statements; there is evidence tending to show, and the master finds, that some years ago a controversy arose regarding the proper location of the western boundary of lot No. 7, between the Roper Lumber Company and’plaintiff) and that it was compromised by running a line, etc. Defendants contend that, while there is evidence of use and of control over portions of the land, it fails to show that such use extended over other parts of it; that for long periods of time the plaintiff and those under whom it claims made no use of any part; that the cutting was sporadic and limited, both in time and extent, to mere trespasses. There is evidence tending to support this contention. It is impracticable to analyze or discuss the evidence. The master, an intelligent lawyer, having much experience in dealing with questions of the character presented here, properly says:
“The evidence in this ease is voluminous, and in many cases vague and uncertain, and sometimes contradictory.”
It is necessarily so in such cases. He was doubtless impressed, as I am with the fact that since 1842 deeds have been executed conveying this land — many of them put to record between 1843 and 1846, others during the year 1871 — reciting that this land was “purchased at the sale of Wiley McPherson, deceased”; that it was sold in 1845, after advertisement, at a public tavern; that the first deed (1842) contains
“The testimony must tend to prove the -continuity of possession for the statutory period either in plain terms or by ‘necessary implication.’ This possession need not be unceasing, but the evidence should be such as to warrant the inference that the actual use and occupation have extended over the required period, and that during it the claimant has, from time to time, continuously subjected some portion of the disputed land to the only use of which it was susceptible."’
Applying to the findings of fact by the master the elementary rules by which courts are governed in passing upon exceptions, it is manifest that they should not be disturbed unless there is an absence of evidence to support them, or they are manifestly against the weight of the evidence. This rule is so uniformly followed by courts, and so essential to the orderly administration of justice, that a citation of authority is neither necessary nor justified. The findings of the master are entitled to the same weight as the verdict of a jury.
In his fourth finding of fact, the master says:
“Another question affecting the bona tides of .T. JV. Gregory and as to Ms adversary interest to plaintiff, in this cause: 1 am frank to confess, that the evidence on this point is confusing to me, and introduced some complications*796 that have been somewhat hard to reconcile, but from the character, reputation, and standing of the witnesses who testified upon this point, and the character of the evidence, I am constrained to hold that the purchase of J. N. Gregory, as disclosed by the deeds to him, was bona fide, and that his interest is antagonistic to plaintiff.”
An examination of the evidence discloses a condition in respect, to this phase of the case which fully justifies the state of mind in which the master found himself. It is a complicated and, in some respect, a remarkable story. Without calling into question the testimony of any of the witnesses, in regard to it, and accepting it as true, the inferences to be drawn from it are not altogether satisfactory. Assuming, however, that Warwick, in buying the Baxter and Grice interest, and having the deeds made to J. N. Gregory, his brother-in-law, purposed to' promote the interest of his employer, the plaintiff; that Gregory is a mere nominal holder of the interest of Baxter and Grice —i-it is not perceived how the real merits of this controversy are affected. Conceding that the special proceeding brought by Gregory for .partition in the superior court of Camden county was for the purpose of forcing the land to sale, it is not perceived how the decree in this case can affect the rights or defenses of the other defendants in that case. It is evident that Gregory’s presence in this record has not interfered with the defense of the other defendants, or deprived them of any rights or advantages in making such defense. If, as the master finds, Gregory acquired no title under the Baxter and Grice deeds, no one else is injured; he, or Warwick, has paid out a considerable sum of money, and he will be called upon for his portion of the cost in this case. The scheme or conspiracy, if true as contended, will not avail Gregory in the suit in the state court, and of course the plaintiff, which is not a party to that record, will not be affected by the result of that case; that is, its legal rights will not be affected, and this court cannot take notice1 of other results or conditions. I do not perceive how, in any way, the rights or interests of the other defendants have been injuriously affected by the manner in which, or the purpose for which, Warwick purchased the Baxter and Grice interest, or what difference it malees to the other defendants that the deed was made to Gregory; nor do the briefs of counsel suggest that they were injured thereby. If any wrong was done to Baxter and Grice, and it seems that none was done them, this court could not, in this case, administer any relief, nor have they asked that it do so; that is a matter with which the other defendants have no concern. If there was any evidence, or well-grounded suggestion, that the defendants had been injured in their rights by the conduct of Warwick, and that he was acting as the agent of the plaintiff in producing such condition, this court would not hesitate to either make him a party and make such decree as the evidence warranted, or dismiss plaintiff’s bill.
It is suggested that some of the heirs of Hallowell Old, who reside in Virginia, should have been made parties to this bill. This objection is not for the defendants; this court would make them parties if within its jurisdiction, or if they were found to be neces
An anxious and careful examination of the record, the argument and brief of counsel, leads me to the conclusion that the report of the special master should be confirmed. A decree may be drawn in accordance therewith. The cost will be adjusted in the final decree.