M'Kinnon v. M'Lean, 19 N.C. 79, 2 Dev. & Bat. 79 (1836)

Dec. 1836 · Supreme Court of North Carolina

19 N.C. 79, 2 Dev. & Bat. 79

NORMAN M'KINNON v. JOHN M'LEAN and THOMAS J. CURTIS.

The act of 1829, c. 20, differs from the act of 1820, (Rev. ch. 1037,) in that the latter makes deeds in trust void, unless registered within six months; and there is nothing in it to denote that any thing short of a complete registration, by fully transcribing the instrument into the books of the register, is to be a registration, or constitute part of it; but the former does not avoid a deed of trust for want of registration at any particular time, but declares that it shall not operate “but from” the registration; and that is deemed to be done on the day of its delivery to the register, as noted by him on the deed.

Schedules annexed to a deed in trust, and referred to therein, are parts thereof and must be registered; but such registration will be taken as having been made on the day when the deed itself is deemed to have been registered.

A deed in trust admitted to registration upon a probate by an incompetent witness, is not therefore void for want of probate and registration, but will be received in evidence on a trial, if it be then proved by competent testimony.

Tins was an action of trespass vi et armis, brought by the plaintiff to recover damages from the defendants, for taking the property of the plaintiff, tried at Cumberland, on the last Circuit, before his Honor Judge Saunders. After a verdict and judgment for the defendants, and an appeal by the plaintiff, a case agreed, of which the following were the material facts, was made up for the Supreme Court. The plaintiff was in possession of the property taken, at the time of the taking by the defendants, but it appearing that Henry Horn had been the owner of the property prior to the 4th of September, 1835, it became necessary for the plaintiff to show that he had acquired the property from the said Horn. For that purpose, he offered in evidence a deed, with two schedules, marked A,' and B, annexed thereto, and referred to therein, executed by Horn to the plaintiff, in trust for the payment of Horn’s debts. To this deed there were two subscribing witnesses, one of whom, S. W. Murley, was a creditor of the grantor, and whose debt was intended to be secured by the trust. Upon the deed was endorsed a certificate of its probate by this witness, before the clerk of the County Court of Cumberland, and an order for its registration, dated the 4th day of September, 1835. There was also an endorsement by the register, that the deed “ came to hand for registration at 3 o’clock, p. m. September 4th, 1835 and a further endorsement by the same officer of a copy of the certificate of registration, in the following words : — “ 7th September, 1835. The foregoing deed, together w7ith the schedules marked A and B annexed thereto, came to hand for registration at 3 o’clock, p. m. September the 4th. The deed was registered in book 2, No. 2, page 244, on the 6th of September. The schedules were registered on the 7th September, 1835.” The defendants objected to the probate, and opposed the admission of the deed, on the ground that the witness was interested, and therefore incompetent. The plaintiff contended that the probate had been passed upon by competent authority, was res adjudica, and conclusive on that trial. The other subscribing witness was then called for the plaintiff and proved that the deed was duly executed and delivered on the day it bore date, and that he and Murley subscribed it as witnesses; and the court upon this permitted the deed to be given in evidence. The defendants then gave in evidence a judgment obtained in the County Court of Cumberland, in favour of Thomas Irwin & Co. v. Henry Horn, which was rendered on Tuesday, the eighth day of September, 1835, being the second of the term. On that judgment a writ offi. fa. bearing teste the first Monday of September, 1835, that being the first day of the term of the court aforesaid, and the 7th of the month, was issued to the sheriff of said county. This writ was issued on the 5th of October, 1835, and on that day came to the hands of the defendant M'Lean, who was then the sheriff of the county. It was issued at the instance of the other defendant, Curtis, who was the agent of Irwin & Co.; and under that writ the said sheriff, assisted by Curtis, took from, the plaintiff the property which he claimed, and of which he was possessed, under the deed in trust aforesaid —the property so taken being a part of the personal chattels listed and described in the schedule A, annexed to said deed. The defendants alleged that the deed in trust was operative only from its registration, which they contended was on the 7th day of September, and that the fi.fa. bore teste on the same day, and was a lien on the property attempted to be transferred by the said deed, and that they were therefore justified in taking the property from the plaintiff: — and of this opinion was his Honor, and so instructed the jury.

The plaintiff requested his Honor to charge the jury, that the certificate of registration showed that the deed had been registered on the 6th of September, 1835, and that if they believed the certificate, the registration was prior to the teste of the fi.fa.; which instruction was refused. The plaintiff then requested the court to instruct the jury, that although the schedules annexed to the deed, were referred to in it, yet they were not parts of the deeds, and the registration of the schedules was not required by law; which was also refused. The plaintiff then requested the court to instruct the jury, that if the registration was not complete until the 7th day of September, 1835, neither a judgment rendered on the 8th day of that month, nor an execution issued on that judgment, could relate back to the first day of the term of the court, so as to defeat a bona fide purchaser or assignee; which instruction was also refused. His Honor was also requested by the plaintiff to charge the jury, that if the execution could relate back to the first day of the term, there was a prius and posterius in every day, and that the registration was completed before the rendering of the said judgment, and before the issuing of the said execution, and before the teste thereof; but this instruction was also refused. The bona fide execution of the deed in trust, and the due delivery thereof, were not denied by the defendants, but they relied on the aforesaid judgment, and writ oifi. fa. in justification of their taking the property in question.

Under the advice of his Honor, it was agreed by the parties to be made part of the case, that if the Supreme Court should be of opinion on the foregoing statement, that the plaintiff was entitled to recover, the verdict and judgment should be set aside, and judgment' should be rendered by the Supreme Court in favour of the plaintiff, for the sum of one thousand three hundred and sixty-six dollars and fifty-five cents, and the costs of both courts; but if the Supreme Court should think the judgment correct, then the same should be confirmed with costs.

Devereux, for the plaintiff.

Badger and W. H. Haywood, for the defendant.

Rueein, Chief Justice.

The court is of opinion, that the registration of the deed to the plaintiff is to be considered under the provisions of the act of 1829, c. 20, as having been made on the 4th day of September, and is therefore prior to the lien of the execution tested on the 7th of the month. The latter act is different from that of 1820, (Rev. ch. 1037,) upon which the case of Moore v. Collins, 4 Dev. 384, was decided. That makes deeds of trust void unless they be registered within six months; and there is nothing in it to denote that any thing short of a complete registration by fully transcribing the instrument into the books of the register, is to be a registration, or constitute part of it. The opinion delivered by my brother Daniel adverts particularly to that circumstance, as distinguishing the two statutes, and we think it a plain and sound distinction. The act of 1829 does not avoid a deed of trust for want of registration at any particular time; but it declares that it shall not operate “ but from” the registration; and the question is, at what period the registration shall be said to be made.

If two or are neces-^v^na ity to a must be^ performed, Smot be connected with the other; as in the case of probate and regís-tration— the latter cannot relate, in point of time, to the former.

The defendant contends, that it is only when it shall have been completed by spreading the deed and the whole óf it upon the record. We think otherwise. It is obvious, that the legislature meant that the deed should not begin to operate until it was deposited with the register. There is no delivery of it, if we may use the expression, as against creditors and purchasers, but the delivery to the register; in whose hands those persons could see its contents at all times afterwards, either by perusing the original or the transcript. For that reason, it is tó operate from that delivery; for, while the act thus ties up the operation bf the deed, it at the same time provides that immediate probate or acknowledgment may be taken by the clerk ,• and that the register shall endorse on each deed the day on which it was delivered to Mm for registration, and that such endorsement shall be entered on the register’s book and form a part of the registration. The act further requires the officer immediately thereafter to register the deeds in the order of time in which they were delivered. In the nature of things, the act of registering the deed, that is to say, of transcribing it, cannot be done in an instant, and there must be a prior and posterior as to the different parts of it; yet, since the note of the day of delivery is made a part of the registration, when that is done, it thereby appears at what particular time the deed was delivered for registration, and that it was then in a course of being registered thenceforward until it was done. The truth is, that where a ceremony necessarily embraces distinct periods of time in its performance, and is constituted of several acts, which, when completed, make but one whole, there is a necessity ut res magis valeat quam pereat, that all that is done, should be referred to the period at which it was begun. If two or more distinct things are necessary to give validity to a thing, both must be performed, and one cannot be connected with the other, Such, in the case before us, are probate and registration. The latter cannot relate in point of time to the former, But registration in itself is but one thing, necessarily indeed made up of successive operations, consuming more than an instant of time; and as the registration cannot be said not to exist at any instant after it was begun, the intermediate lapse of time is not regarded, and the whole relates to the first moment, so as to make the act operative therefrom. It is upon this principle, that the relation of a judgment to the first day of the term depends; and we believe it equally applicable to every case, in which there is necessarily more than an instant consumed in the performance of a single act. From the beginning, the whole is one continuing act; and therefore, in legal contemplation, it is done from the commencement. The substance of the act of 1829 is therefore, we think, that a deed, when registered, is to be deemed to have been registered from the delivery to the register, as noted by him on the deed.

But wherever, as in the case of registration alone, there is necessarily more than an instant consumed in the performance of a single act, the whole is one continuing act, and therefore, in legal contemplation, is done from the commencement.

The act of 1829, c. 20, was taken from the English annuity act, and should therefore receive the same construction with that act.

The probate of a deed is ex parte and does noconclude, thTfactum, f thewif-° m^lie still be gery, or to executedby ™infaut or Jems covert,

We the more readily adopt this construction, because the act of 1829 is known to have been taken from the English annuity act, and it is safe therefore to incorporate into our law a settled construction of that act. The case of Garrick v. Williams, 3 Taunt. 540, decides that the enrollment may be entered as of the day and hour the memorial was delivered into the office, and that the court will not look out of the enrollment, as it appears of record, for the time at which it was made.

We have no doubt but the schedules form part of the deed, and ought to be registered, for without them there is no description of the things conveyed; but for the reasons already mentioned, it was unnecessary that the register should have stated the different periods at which the different parts of the deed were transcribed; for although not true in point of fact, it is true in point of law, that the whole was registered together on the fourth day of the month.

It is however, objected by the defendant, that the deed was proved by an incompetent witness, and therefore that the probate and registration founded thereon are void. We do not assent to that inference, although we do not concur in, the answer of “ res judicata” given to it at the bar. Probates of deeds are eso parte, and do not conclude. The deed may still be shown to be a forgery, or to have been executed by an infant or a feme covert. The person taking the probate does not adjudge and decide theinstrument to be a deed, but only sees that the person offered as a witness to prove it, is the person who attested it; he certifies that the execution was proved by that person. The factum and the identity of the witness are all the certificate concludes. Hence, unless a statute expressly make the deed evidence, and authorize it to be read upon such proof, it cannot be; but upon the trial, it must be proved as at common law, and as if it had not before been proved or registered. The probate and registration are only to perpetuate the instrument and give notice of its contents. We think therefore, that the probate was not conclusive, as res judicata, especially as in this case the deed is for chattels only, and could not be read upon the trial without the evidence of one of the subscribing witnesses; but for the same reason, we are of opinion * that it was sufficiently proved on the trial, and that the incompetency of the witness who proved it before the clerk does not vitiate the probate or registration. The registration, no matter upon what proof made, gives the notice designed for creditors and purchasers. The instrument is not like a will, which requires for its validity attestation by a certain number of disinterested witnesses; and when registered it is not read like a will is, which is conclusive evidence of the devise upon the adjudication of the court of probate. The probate of a deed is but a memorial that the attesting witness, whoever he may be, and competent or incompetent to testify on a trial before a jury, swore to the factum of the instrument by the parties, whose act it purports to be; and as the officer who takes the probate does not look into the instruments or the interests acquired under it, so the competency or incompetency of the witness is not a question before him. It may be shown at the trial, that the witness is incompetent, and therefore could not prove the deed, and that will make it necessary to call witnesses who are competent, but it will not render the instrument void for the want of probate and registration, when in fact there have been both probate and registration. In this respect, the present case differs from Jones v. Ruffin, 3 Dev. Rep. 404, which was cited by the defendant’s counsel as an authority that the probate even by one incompetent witness is conclusive; and from the report it might seem so, as the deed was there read upon the probate and registration. But the reason why no other evidence was deeemed necessary by this court and the counsel in that case, was, that the witness who proved the deed was not interested in the particular tract of land in dispute in that action, and therefore the deed, as it operated between the parties to the suit, had been proved by a' competent witness, and was one which under our statutes could be read without other proof, on the trial. That case therefore is not an authority on either side here; but without it, or any other, we think, from the nature of the thing, that a deed which has in fact been registered upon proof by one appearing on its face to be a witness to it, and is proved by competent evidence on the trial to have been duly executed, is not rendered void or inoperative by the circumstance that one of the subscribing witnesses was not a competent person to attest and prove the deed. Every object of the law is answered by the registration, and the proof of execution on the trial.

The case of Jones v. Ruffin, 3 Dev. Rep. 404, explained and approved.

The judgment must therefore be reversed; and judgment be given for the plaintiff for the sum mentioned in the case agreed, and for the costs in both courts.

Pek CtjRiam. Judgment reversed.