Den ex dem. Sutton v. Sutton, 18 N.C. 582, 1 Dev. & Bat. 582 (1836)

June 1836 · Supreme Court of North Carolina

18 N.C. 582, 1 Dev. & Bat. 582

DEN ex Dem. WILLIAM T. SUTTON et al. v. JOHN A. SUTTON.

The deed of a feme covert is void at common law, and can only be effectual when,taken according to the acts of 1715 and 1750 (Rev. ch. 3 and 50.) By those acts the deed is to he first proved as to both husband and wife, and then her private examination is to be had either by a judge, or in the County Court; and when her examination preceded the probate, the deed .was held to be inoperative.

This was an action of ejectment, upon the trial of which, at Bertie, on the last Circuit, before his Honor Judge Dick, the jury returned a special verdict, the mate-, rial' facts of which were as follows. Mary Sutton was seised in fee of the lands described in the plaintiff’s declaration when she intermarried with John E. Wood. On the 19th day of June, 1821, the said Mary, with her husband, executed and'delivered to one Joseph S. Pugh, a deed intended to convey, arid expressed in apt and sufficient words to convey, and which did convey, the said lands, in fee simple, to the said Pugh, if the said deed was I sufficiently proved and authenticated to operate inlaw upon the estate of the said Mary in the said lands. The I said deed was attested by three subscribing witnesses, and I upon it appeared the following endorsements: 1st. An] affidavit before the clerk of the Superior Court of Law for j Bertie County, made by the attending physician of the! said Mary, certifying that she was “so indisposed, weak, and infirm of body'and health, as to be utterly incapable to travel to any one of the judges of the Supreme Court, or judges of the Superior Courts of Law and Equity of the said state, to be privately examined,” &c. 2d. An order from one of the judges of the Superior Courts of Law and Equity, to the clerk of the Court of Pleas and Quarter Sessions for Bertie County, commanding him “ to issue a commission to two or more persons properly qualified, empowering them, according to the form prescribed by law, to take the examination of the said Mary,” &c. 3d. The commission, issued by the clerk in pursuance of the above order. 4th. The return made by the commissioners, that they had “ attended and taken the private examination qf Mrs. Máry Wood, wife of John E. Wood, touching and concerning her having executed the within deed to Joseph S. Pugh, and upon the examination of the said Mary Wood, privately, and apart from her husband, the said John E. Wood, we find that the said Mary Wood, executed the said conveyance freely,” &c. All the above endorsements bear date in June, 1821. The 5th bore date of August term, 1821, Bertie County Court, and was in the following words : “ This deed from John E. Wood and his wife Mary, to Joseph S. Pugh, with the commission and private examination of the said Mary, was returned to this Court and ordered to be registered.” (Signed,) “ E. A. Rhodes, Clerk.” ' A 6th endorsement, bearing date at Bertie County Court, November Term, 1835, was in the words and figures following: “ This deed, from John E. Wood, and Mary his wife, to Joseph S. Pugh, was proved in open court by the oath of William Morning, the subscribing witness thereto, and ordered to be registered. (Signed,) John S. Taylor, Clerk.” On the 18th of October, 1821, Joseph S. Pugh exécuíed and delivered to John E. Wood a deed for the same lands. Mary Wood died in 1822; and the lessors of the plaintiff are her heirs at law. John E. Wood died in 1834, leaving the defendant one of his heirs at law, who was in possession of the premises described in the declaration at the commencement of the suit. His Honor being of opinion that the deed from John E. Wood and his wifef Mary, to Joseph S. Pugh, was not executed in due form of law to pass the lands therein mentioned to the said Joseph, directed judgment to be entered upon the verdict for the plaintiff-; and the defendant appealed.

Iredell and Badger, for the defendant,

contended — that it was sufficient for the transfer of the wife’s estate, if all were done which the law required, notwithstanding it were not done in the order of time specified: That the law required the wife’s interest to be protected, and if it appeared that such had been done, it was sufficient. They then endeavoured to distinguish this case from that of Burges and wife v. Wilson, 2 Dev. Rep. 306.

Kinney, for the plaintiff,

argued — that the affidavit upon which the order of the judge was made, was insufficient, as it only stated the inability of the wife to travel to one of the judges of the Supreme or Superior Courts, and not also to the court of the county where the land was situate. He also contended that the deed of a feme covert was void at common law, and the statute giving the authority to make a deed must be construed strictly.

Gaston, Judge.

— This Court approves of the decision made in the Superior Court, that the deed set forth in the special verdict as executed by John E. Wood and wife Mary to Joseph S. Pugh, was not executed in due form of law to pass the estate of Mary Wood. A feme covert has no capacity at common law to make a deed, and an instrument purporting to be such is void, unless it be accompanied by the ceremonies prescribed by our acts of Assembly authorising femes covert to convey land. It is unnecessary to inquire whether the provisions therein made for the. protection of the wife are effectual or not. The courts of justice are bound to support them, and dare not substitute other provisions in their stead. Under these acts the private examination of the married woman, and her acknowledgment of the voluntary execution of, or voluntary assent to the deed, is indispensable. The examination must ordinarily be had before a judge, or in the Court of Pleas and Quarter Sessions of the county. This authority of the judge or the Court cannot be delegated at pleasure. In certain defined cases, however, the acts authorise a commission- to issue, and when such a commission has regularly issued, an examination before the commissioners, regularly taken, certified, and returned, has then the efficacy of an examination before the judge or in open court. These cases are, when the conveyance shall have been acknowledged by the husband or proved by the oath of one or more witnesses, before the judge or the County Court, and it shall be represented to the judge of the Court that the wife is a resident of another County, or is so infirm or aged that she cannot travel to the judge or County Court to make her acknowledgment. We do not assent to the argument that the case of infirmity must be such as to disable her as well from travelling to the Court as to the judge. The acts autho: rise a personal examination before the judge or the Court, and authorise either the judge or the Courtj when the infirmity is such as to forbid such a personal examination, to cause the same to be done by a commission. But we cannot get over the objection that no power is conferred on either the Judge or the Court to order a commission, until the conveyance has first been acknowledged by the husband, or proved by the oath of one or more witnesses. The language of the statutes is plain, and it is our duty to give full effect to it. The judgment below is affirmed.

Per Cum am. Judgment affirmed.