Fowler v. Union Development Co., 158 N.C. 48 (1911)

Dec. 23, 1911 · Supreme Court of North Carolina

158 N.C. 48

MARY H. FOWLER et al. v. THE UNION DEVELOPMENT COMPANY.

(Filed 23 December, 1911.)

1. Grants of Land — Countersignature—Deputy Clerk — Invalidity.

A countersignature by tbe chief clerk to tbe Secretary of State on a grant for lands held void under the doctrine, of Bich-areis v. Lumber Go., post, 54.

2. Same — Correction—Validity.

When the countersignature of the Secretary of State correctly appears on a grant in all respects regular in form, the validity of the grant will not be affected because a void attempted countersignature of the Secretary appears thereon as having been made by the chief clerk in his office.

3. Grants of Land — Regular in Form — Countersignature—Seal— Entry — Presumptions.

■A grant of land under tbe great seal of the State, regular in substance and form, had thereon the following countersignature by the Secretary of State: “Secretary’s office, May 21, 1869, I-I. J. Menninger, Secretary of State.” The countersignature held sufficient, and the reference to the Secretary of State’s office, with the entry plat as well as the great seal affixed to the grant, shows that the grant was duly issued upon the payment of the money.

Allen, J., dissenting; Walkee, J., concurs in the dissenting opinion.

Appeal by plaintiff from Gline, J., at Spring Term, 1911, 'of Clay.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clark.

A. W. Horne, J. Frank Ray, and 0. L. Anderson for plaintiffs.

F. S. J ohnston, G. L. J ones, and J. II. Dillard for defendant.

ClaeK, 0. J.

Tbe only question presented is wbetber Grant No. 3075 is valid. Tbe original is sent up in tbe record, and shows:

1. Tbe grant purports to be countersigned, as follows;' “By command, H. J". Menninger, Secretary of State, per T. J. Men-ninger, chief clerk.” This is invalid. Beam v. Jennings, 96 N. C., 83; Richards v. Lumber Co., post, 54.

2. Tbe Secretary of State himself seems to have been of this opinion and duly countersigned it himself by writing on tbe opposite side of tbe sheet tbe following: “Secretary’s office, May 21, 1869. H. J. Menninger, Secretary of State.” This is sufficient countersigning, as is held in Richards v. Lumber Co., post, 54. Tbe abortive countersigning by the chief clerk does not vitiate tbe proper countersigning by 'the Secretary of State himself. Utile per inutile non vitiatur. Tbe genuineness of tbe signature of tbe Secretary of State and that of tbe Governor is presumed from tbe great seal being affixed, and there is no attack made upon it. Reference to the Secretary of State’s office shows that this grant was duly issued, and upon payment of the purchase money. The entry and plat as well as the great seal are’affixed to the grant. In rejecting it there was

Error.

AlleN, I., dissenting: The question involved in this appeal is similar to the one considered on the plaintiff’s appeal in Richards v. Lumber Co., but the facts differ in one particular.

The paper, purporting to be a grant, offered in evidence in this case, in addition to a countersigning, “II. J. Menninger, Secretary of State, per T. J. Menninger, Chief Clerk,” had indorsed on it, “Secretary’s office, May 21, 1869. II. J. Men-ninger, Secretary of State.”

There was no evidence as to handwriting, or that this indorsement was on the paper when it left the office of Secretary of State.

For the reasons assigned in the opinion in Richards v. Lumber Co., I think the paper was properly excluded and that the judgment ought to be affirmed.

Justice Walkee concurs in this opinion.