35 N.C. 452 | N.C. | 1852
Trover for a horse, tried on the general issue, upon the following facts agreed: Elijah Grady conveyed the horse with other things to the plaintiff on 28 May, 1850, by deed of trust to secure the payment of sundry just debts therein mentioned; and on the same day the deed was proved, out of term time, by a subscribing witness before a person as deputy of the clerk of the county court, who had not been appointed and sworn in as the deputy of the clerk, but was his brother and in his absence sometimes attended for him in his office, with his assent. Upon the certificate of the probate made on the deed by the said person as deputy clerk, the deed was registered on the same day; at that time the defendant was the creditor of Grady, and on 29 May, 1850, he took a judgment before a justice of the peace and on an execution he had (453) the horse seized and afterwards sold, and then this action was brought. The single question was whether the deed of trust was duly proved and registered, so as to make it operative against the defendant. The court held that it was not, and a verdict passed for the defendant, and plaintiff appealed from the judgment.
The act of 1829 authorizes the deputy, as well as the clerk himself, to take and certify the probate of a deed of trust for the purpose of its being registered. Were it not for that express provision the deputy could not have done so under an authority to the clerk, for that officer could no more delegate the power to administer an oath out of court than a justice of the peace could. But as the act expressly includes deputies, the question is, Who is to be taken as filling that character in our law? That is the precise point decided in Shepherd v. Lane,
PER CURIAM. No error.
Cited: Miller v. Miller, 89, N.C. 405; Coltrane v. Lamb,