Moore v. Quickle, 159 N.C. 129 (1912)

May 8, 1912 · Supreme Court of North Carolina

159 N.C. 129

KATHLEEN R. MOORE et al. v. T. C. QUICKLE et al.

(Filed 8 May, 1912.)

1. Deeds and Conveyances — Probate—Presumptions.

The presumption that the probate of a deed is properly taken arises when the only indorsement thereon is that the parties claiming under it “procured the same to be proved.”

2. Same — Probate—Officer—Registration—Regularities Presumed.

The word “jurat,” written on a deed by an officer authorized to take probates, means “proved”; and when there is nothing in the form of the probate on the deed in question indicating that it was improperly taken, and there is no evidence to that effect, a presumption arises from the act of the register of deeds in admitting the deed to registration that the probate was by the proper officer and regular, and that proof of that fact was before him.

■ Appeal from Long, J., at January Special Term, 1912, of GASTON.

This is an action to recover possession of a tract of land.

Botb parties claim under deeds from William Sams, eacb purporting to convey tbe land in controversy, tbe deed under wbicb tbe plaintiff claims bearing date of 7 November, 1859, and tbe deed under wbicb tbe defendant claims bearing date 7 March, 1860. Neither party claims title by possession, and tbe original deeds from William Sams were not produced, botb parties relying on tbe records.

The deed from William Sams, of date 7 November, 1859, has been on tbe records for more than forty years. After tbe signature of William Sams, at tbe bottom of the deed, is found tbe following: “Signed, sealed, and delivered in tbe presence of William T. Shipp, A. W. Davenport, Jurat ” and tbe only question presented by tbe appeal is whether this deed has been probated and is properly on tbe registry.

If it has been duly probated and registered, tbe plaintiff is tbe owner of tbe land in controversy, as in that event she would have tbe older and better title from tbe common source.

His Honor held with tbe plaintiff, and tbe defendant excepted and appealed.

R. S. Hutchison and A. L. Bulwinlcle for plcmvtiff.

A. L. Quiclcle and Carpenter & Carpenter, for defendant.

Allen, J.

In Starke v. Etheridge, 71 N. C., 245, which has been frequently cited with approval, it is held that the word “jv/rat" when written on a deed by an officer authorized to take probates, means “proved,” and in Quinnerly v. Quinnerly, 114 N. C., 147, that the presumption is that the probate is properly taken when the only indorsement on the deed is that the parties claiming under it “procured the same to be proved.”

The authorities are conclusive against the defendant, if there is any evidence that the word "jurat” was written on the deed by ah officer of the law, or if, in the absence of such evidence, the law would presume the fact to exist.

The question has arisen in several cases before this Court, and it has'been held, as we think, without exception, in the absence of evidence and when there is nothing in the form of the probate on the deed indicating that it was improperly taken, that a presumption arises from the act of the register of deeds in admitting the deed to registration that the probate was by the proper officer and regular, and that proof of that fact was before him. Strickland v. Draughan, 88 N. C., 317; Howell v. Ray, 92 N. C., 513; Cochran v. Improvement Co., 127 N. C., 389.

If the rule is ever applicable, it should be in a case like this, where the deed has been registered more than forty years.

Being of the opinion, upon these authorities, that the deed of 1859 was duly registered, upon a legal probate, and that the judgment of his Honor is in accordance with law, it is

Affirmed.

Hoke, J., did not sit.