Bank of Maxton v. Canaday, 187 N.C. 493 (1924)

April 2, 1924 · Supreme Court of North Carolina

187 N.C. 493

THE BANK OF MAXTON v. P. A. CANADAY et al.

(Filed 2 April, 1924.)

Deeds and Conveyances — Corporations—Probate.

Where, upon its face, a conveyance purports to be made by tbe proper officers of a corporation as tbe act and deed of tbe corporation for its lands, and it and its certification for registration by tbe clerk of tbe court are regular and in proper form, tbe deed will not be beld as an invalid corporate conveyance for tbe failure of tbe notary before whom tbe proper officers bad acknowledged it to certify that such officers acted therein in behalf of tbe corporation. Bailey v. Bassett, 1S4 N. C., 451.

Appeal by defendants from Granmer, J., at February Term, 1924, of ROBESON.

Controversy without action, submitted on an agreed statement of facts.

Plaintiff, being under contract to convey certain lands to defendants, executed and tendered warranty deed therefor. Defendants, being under written contract to buy, declined to accept tbe deed and refused to pay tbe purchase price, claiming tbat tbe title offered was defective. This suit is to determine tbe sufficiency of tbe title offered and to enforce tbe contract of purchase.

His Honor, being of opinion tbat tbe deed tendered was sufficient to convey a full and complete fee-simple title to the lands in question, gave judgment for tbe plaintiff, from which tbe defendants have excepted and appealed.

McKinnon, Fuller & McKinnon and Mordecai & Salmon for plaintiff.

Marshall T. Spears for defendants.

Stacy, J.

On tbe bearing, tbe title offered was properly made to depend upon tbe sufficiency of tbe following probate to a deed from a corporation, Harnett Lumber Company, to A. D. McKenzie, tbe said deed forming a link in plaintiff’s chain of title:

North OaeoliNA — Robeson County.

I, J. S. Jones, a notary public in and for said county and State, do hereby certify that W. E. Williams, president, and W. J. Johnson, secretary and treasurer of tbe Harnett Lumber Company, personally appeared before me this date and acknowledged tbe due execution of tbe foregoing deed of conveyance. Let tbe same, with this certificate, be registered. Witness my band and notarial seal, this 28 April, 1913.

(Seal.) J. S. Jones, N. P.

My commission expires 10 March, 1915.

Tbe case states that tbe execution of said deed is in regular form; that it is signed in tbe name of tbe corporation by its president, attested by its secretary and treasurer, and tbe corporate seal duly affixed thereto; that tbe fiat of tbe clerk of tbe Superior Court, adjudging tbe probate to be correct and sufficient and ordering tbe instrument to registration, is in proper form, and that tbe deed was duly registered on 19 December, 1913.

We think tbe sufficiency of tbe probate in question must be upheld under what was said in Bailey v. Hassell, 184 N. C., 451, and Withrell v. Murphy, 154 N. C., p. 89. Tbe judgment will be affirmed on authority of these cases.

While we uphold tbe sufficiency of tbe present probate, it may not be amiss to remark that tbe use of its kind, as a general practice, is not to be commended, for tbe very good reason that it borders near tbe line of defective probate and leads almost invariably to litigation, as witness tbe instant suit and tbe others above mentioned.

Affirmed.