Love's Executors v. . Harbin , 87 N.C. 249 ( 1882 )

^* Mr. JUSTICE ASHE did not concur with the majority of the court as to the principle announced in reference to consideration in deed. His dissent, as to that, is also noted in Mosely v. Mosely, ante, 69. Whatever may once have been our opinions upon the subject, it is now the settled rule in this state, that by reason of the efficacy which the statute gives to the fact of their registration, all deeds are put upon the footing of feoffments which take effect by livery of seizen, and need no consideration, as between the parties, to support them. Hogan v.Strayhorn, 65 N.C. 279; Ivey v. Granberry, 66 N.C. 223; Mosely v.Mosely, ante, 69.

It is difficult to conceive of one whose equitable interest as a purchaser from the plaintiffs of record, with a bond for title of the very lands in dispute, could be more directly and positively affected by the result of the action, than that of the proposed witness Robertson. He falls both within the letter and the spirit of the statute (C. C. P., Sec. 343) and was properly excluded as a witness in regard to a communication with the deceased ancestor of the defendants.

The objections which the plaintiffs make to the admission of the copy of the deed as certified by the register, as we understand them, are three in number:

1. That the law makes no provision for the probate and registration of a deed upon proof of the hand-writing of the maker only, there being no subscribing witness to the instrument.

2. That there was no proof aliunde the certificate of the register, that the original deed in this case had ever been proved before any tribunal, competent to take the probate thereof and order its registration.

(253) 3. That where the execution of a deed is denied and notice given to produce the original, then under no circumstances (however the absence of the original may be accounted for) can the copy from the registry be used as evidence, but the deed must be provedde novo, at the trial, by evidence competent to show its execution.

Their first exception is fully answered by the decision in Black v.Justice, 86 N.C. 504, where it was held that a deed to which there was no subscribing witness might be admitted to probate and registration, upon proof of the maker's hand-writing only; and this, without reference to the fact whether he be living or dead. And attention was called to the change in the statute since the decision in Carrier v. Hampton, 33 N.C. 307 upon which the plaintiffs rely.

In considering the second objection, it must be observed that the statute nowhere makes it the duty of the officer, who admits a deed for probate, whether he be a clerk or judge, to make and record a formal adjudication of its probate; and in the case of the judge it would be manifestly impossible for him to do so, except upon the instrument itself. Nor is there any provision which requires the register to spread upon his books the certificate of such adjudication, in case the same be made. Still, the uniform habit has been for every officer, before whom a deed is proved, to endorse upon it his adjudication of probate and order for registration, and for the register to spread upon his minutes both the deed and the certificate of probate; and whenever needed in evidence, a copy of the deed and of such certificate certified by the register is all that has ever been required. As said in Starke v.Etheridge, 71 N.C. 240, it would shake too many titles to allow such an objection to prevail at this day. In our case we have a copy of the deed, and of the certificate of the judge of probate, before whom it was proved setting forth his adjudication of the probate and order (254) for registration and the evidence upon which it was allowed, together with a certificate form the register, that they all appear of record in his office, and this taken in connection with the maximomnia praesumuntur rite acta, we must hold to be sufficient prima facie evidence of the probate.

The third objection seems too to be entirely met by the decision inShort v. Currie, 53, N.C. 42. That was a suit upon a clerk's bond, the defence being non est factum. On the trial the plaintiff produced the original and undertook to prove its execution by the examination of witnesses, but failed to do so successfully. He then offered in evidence a registered copy of the bond, but upon objection it was excluded by the court, and thereupon he submitted to a non-suit and appealed. This court, taking notice of the fact that such bonds were required to be registered like deed, reversed the decision of the superior court, upon the ground that the statute made the registry or duly certified copy of the record of a deed, or other instrument required to be registered, sufficient evidence of the execution of the instrument; and this, even, in the trial of the general issue, directly involving the question of its execution, and after the party had failed to make direct proof thereof.

A main purpose intended to be accomplished by registration is the perpetuation of the instrument, and of the memorial of its probate and order of registration, and it will not do to hold that this intention of the statute may in every case be defeated by a notice to produce the original. Under the operation of such a rule, it would be next to impossible to establish any title depending upon very ancient deeds, as they are rarely preserved so as to pass with the land; and this, partly because it is universally understood that when once registered, the proofs of their execution and probate are perpetuated.

It is not intended to say that the fact of registration is conclusive as to either the execution or probate of the deed, but only (255)prima facie evidence, and as the factum of the instrument may be disputed after its registration, so may the fact that it was ever admitted to probate, or that it was proved by a competent witness, as was done in Carrier v. Hampton, Supra.

No error. Affirmed.

Cited: Strickland v. Draughan, 88 N.C. 317; Aycock v. R. R., 89 N.C. 324;Howell v. Ray, 92 N.C. 512; Rowland v. Rowland, 93 N.C. 221; Simpsonv. Simpson, 107 N.C. 559; Devereux v. McMahon, 108 N.C. 145; Perry v.Bragg, 111 N.C. 164; Check v. Nall, 112 N.C. 373; Helms v. Austin,116 N.C. 755; Mabe v. Mabe, 122 N.C. 555, Griffith v. Richmond;126 N.C. 378; Tarlton v. Griggs, 131 N.C. 221; Wetherington v. Williams,134 N.C. 281; Bryan v. Eason, 147 N.C. 292; Lumber Co. v. Lumber Co.,169 N.C. 97; Belk v. Belk; 175 N.C. 72;McMahan v. Hensley,178 N.C. 588.