92 N.C. 144 | N.C. | 1885
There was a verdict and judgment for the plaintiffs and the defendants appealed. It appears that a judgment for money obtained in the Superior Court of the county of Iredell by Mary C. Bell against the defendant N. A. Jackson, was duly docketed in the Superior Court of the county of Cleveland on the 16th day of December, 1876; that an execution duly issued upon the *145 judgment, and the land in question, situated in the last-named county, was sold under it on the 7th day of May, 1877, by the sheriff of that county, and the defendant E. A. Morgan became the purchaser thereof, and took the deed of the sheriff therefor, and claimed title to it by virtue of that deed.
The defendant N. A. Jackson, on the 11th day of October, 1872, executed to J. and E. B. Stowe his two promissory notes, each for $1000, and these, and certain of his other notes, were secured by a mortgage, of the same date with them, of the land mentioned and described in the sheriff's deed above referred to. These notes have not been paid, and they and the mortgage to secure them, as to them, were assigned to the defendant, the First National Bank of Charlotte, by J. and E. B. Stowe.
The execution of the mortgage deed was proven before the judge of probate of the county of Mecklenburg on the 3rd day of January, 1873, and his certificate of probate was duly attached thereto, and his official seal was placed thereon. The deed and the certificate of probate thereof were not exhibited to the judge of probate of the county of Cleveland, in which the land was situated, nor did he adjudge that the deed was duly proven, and order the same, with the certificate of probate thereto attached, to be registered in that county; but, acting upon the certificate of probate mentioned above, the register of deeds of the county of Cleveland registered the deed and the certificate thereto attached, in that county, on the 8th day of January, 1874.
The defendant, E. A. Morgan, objected to the admission of the mortgage deed in evidence, insisting that the same had not been proven and registered according to law, prior to the docketing of the judgment under which he purchased and claimed the land. He insisted, that it was essential to the validity of the registration of the mortgage deed, that it and the certificate of the probate judge of Mecklenburg county, should have been exhibited to the judge of probate of the county of Cleveland, and that he should have adjudged the deed duly proven, and ordered it and the certificate of probate attached to it to be *146 registered. The Court overruled the objection and admitted the deed in evidence, and the defendant E. A. Morgan excepted.
These being the facts, the single question presented by the record in this appeal to be decided, is, was such registration of the deed valid? We think it was. The case of Holmes v. Marshall,
The purpose of registration is to give authoritative public notice of deeds and other writings required by law to be registered, and their purpose, as expressed in them, to perpetuate them as evidence, and to make them prima facie evidence in all actions, proceedings and matters wherein they may be pertinent. The probate is not conclusive, except as to notice of the instrument, *147
and its purpose as expressed in it, when duly registered; it is an ex parte
ascertainment, by authority by law, that the instrument registered is authentic and to be so treated by all persons affected by it, until in some proper way the contrary is made to appear. Now, when the instrument is proven, and the probate is certified as prescribed by law, and it is registered in the proper county, the essential purpose of registration and the law is served, and this is sufficient, notwithstanding some of the non-essential, yet helpful forms to be observed between the probate and registration of the instrument, have been omitted. The Legislature certainly has power to make forms essential, but unless it shall do so in plain terms, the failure to observe them, especially where they appear from their nature or terms to be directory, will not be allowed to defeat the chief purpose of a salutary statute. And so a statute requiring that the judge of the court should sign every judgment granted by him, has been held to be directory, and that a judgment that the judge failed to sign was not void. Rollins v. Henry,
It was insisted on the argument for the appellant, that taking Holmes v.Marshall, supra, to have been properly decided, it applied to a deed conveying only personal property, and it could not apply to the probate of deeds conveying real property, and that the learned judge who delivered the opinion in that case inadvertently omitted to consider the statute. (Acts 1868-'69, chapter 64.) We do not think so. It is not probable that so able a judge, and the whole Court, failed to see the statute referred to; but, be that as it may, the decision was put upon broad ground, and the scope of the reasoning, and the opinion, embraced deeds conveying both real and personal property; indeed, the statute mentioned as having been brought forward in Battle's Revisal, chapter 35, embraced both kinds of property. The statute subsequent in date (Acts 1868-'69, chapter 277, section 15,) to that above referred to, seems to have been intended to supersede the latter; it regulated the general subject as to both *148 real and personal property. But if the statute relied upon by the appellant's counsel, stood alone, the same reasoning and authorities would apply to it as were applied to the statute certainly construed.
The case cited was decided in 1875. It has been treated as a proper construction of the statute in question, and, as thus construed, it has been acted upon, no doubt, in many cases. To disturb it, would unsettle titles and give rise to much confusion and injustice. We cannot think of doing so.
The registration of the deed in question was sufficient.
The judgment must be affirmed.
No error. Affirmed.
