Den ex Dem. Skinner v. Fletcher, 23 N.C. 313, 1 Ired. 313 (1840)

Dec. 1840 · Supreme Court of North Carolina

23 N.C. 313, 1 Ired. 313

DEN EX DEM. HENRY W. SKINNER AND ELIZABETH HIS WIFE vs. FRANCIS FLETCHER.

Where a commission issued, by order of a County Court, to take tho private examination of a feme covert as to her execution of a deed, tho recital in the commission that “ it has been represented to our said court that M. W. (thefeme covert) is indisposed, so that she cannot travel to our said court,” &e. is as effectual as if the same recital had been made in the order of the court directing the commission to issue.

The words “ indisposed, so that she cannot travel,” &c. taken in reference to the subject matter, must mean “unable to travel from sickness.”

Where the commissioners certified that they took “ the private examination” of th efeme covert, and that she acknowledged that “ she executed the deed without any compulsion from her husband or any other person,” this is sufficient, without saying that she was examined “ privily and apart from her husband.”

On the subject of the examination of femes coverts, as to the executionfof deeds, the phrases “ privy examination,” “private examination,” and “ examination separate and apart from her husband,” are indifferently used in our acts of Assembly.

This was an action of Ejectment; tried at the Fall Term, 1840, of Pasquotank Superior Court, before his honor Judge Battle. The defendant set up title under a deed executed to him by William W. Freshwater and Mary his wife, in the year 1824, and it was admitted that at the date of that deed the title in fee simple was in the said Mary. The only question was, whether that deed had been so proved as to pass the title of the feme covert. The deed was in the usual form. The probate was as follows: First, an entry on the records of the court in the following words:

“ State of North Carolina, Pasquotank County,

) September j Term, 1824.

This deed of bargain and sale from William W. Freshwater and wife to Aaron Fletcher, was exhibited and acknowledged in open court by William W. Freshwater, and on motion ordered that Ambrose Knox and Thaddeus Freshwater, Esquires, be directed to take the private examination of Mary Freshwater, the wife of the said William, as to her voluntary assent thereto, and make report to December Term next.

Teste, Charles Grice, Cl’k.”

By virtue of which order a commission issued from the said court in the following words, to wit:

“ State of North Carolina

To Ambrose Knox and Thaddeus Freshwater-, Esquires, justices of the peace for the county of Pasquotank, Greeting:

Whereas Aaron Fletcher hath produced a deed of conveyance made to' him from William W. Freshwater and Mary his wife, of a certain tract or parcel of land, lying and be-in the county of Pasquotank, in the State aforesaid, and procured the same to be proven in the court of the said county of Pasquotank, and it being represented to our said court that Mary Freshwater,- the wife ot the said William W. Freshwater, is indisposed^ so that she cannot travel to our said court to be privily examined as to her free consent in executing the said Conveyance, know ye that we, in confidence of your prudence and’ fidelity, have appointed you and by these presents do give unto you or any two of you full power and authority to take the private examination of the said Mary Freshwater, wife of the said William W. Freshwater, concerning her free consent in executing the said conveyance. And therefore we command you or any two of you, that at’such certain day and place as you shall think fit, you go to the said Mary Freshwater, if she cannot conveniently come to you, and, privily and apart from her husband, examine her, the said Mary Freshwater, whether she executed the said conveyence, freely and of her own accord, without fear or compulsion of the said William W. Freshwater, her husband; the examination being distinctly and plainly wrote on the said deed or on some paper annexed thereto; and when you have so taken the said examination, you are to send the same closed up under the seal of you or any two of you, together with this writ, to our said court, to be held for the said county of Pasquotank, at the court house in Elizabeth City, on the 1st Monday of Decernber next ensuing. Witness, Charles Grice, clerk of the said court, at Elizabeth City the 6th day of September, 1824, and in the 49th year of our independence.

Charles Grice, Cl’k.”

Upon this writ the said commissioners returned as follows, annexing the commission and the return to the deed, to wit:

“ Agreeable to the within commission to us directed, we have proceeded to take the private examination of Mary Freshwater, wife of William W. Freshwater, relative to her voluntary assent in the execution of the annexed deed, who saith she did execute the same without any compulsion from her husband or any other person whatever. Given under our hands and seals the 6th day of November, 1824.

Ambrose Knox, [Seal.]

Thaddeus Freshwater, [Seal.]”

The clerk then entered upon his record as follows, to wit:

“ State of North Carolina, ) December Term 1824 Pasquotank County. $ ss’ ^ecemoei -i erra, 1824.

Ambrose Knox and Thaddeus Freshwater, Esquires, to whom the within commission issued, directing them to take the private examination of Mary Freshwater, wife of William Wr Freshwater, report that she acknowledged to have signed the same of her own free will and accord, and without any compulsion from her said husband. Ordered to be registered.

Teste, Charles Grice, Cl’k.”

And on the deed was endorsed the following certificate from the register.

“ Registered in the Register’s office of Pasquotank county, January 13, 1825, in book X, pages 127, 128 & 129, by John C. EhringhÁüs, P. Reg,

A verdict was taken for the plaintiff, subject to the opinion of his Honor, whether the defendant had acquired the title of Mary Freshwater. His Honor being of opinion that the deed as proved did not pass the title of the feme, gave judgment for the plaintiff, from which the defendant appealed to the Supreme Court.

The case 0f Jasper"7 s'* Uey. and Bat. 34* cit-«d and apr preyed.

A. Moore for the plaintiff.

Kinney for the defendant.

Daniel, Judge.

The order of the County Court, granting a commission to take the private examination of the feme covert to the deed given by Freshwater and his wife to the defendant; does not contain any suggestion that she was “ so inñrm ” that she could not travel to court to be examined. But the commission, which issued upon that order, contains these words, “ and it being represented to our said court that Mary Freshwater, wife of said William Freshwater, is indisposed, so that she cannot travel to said court &c.” The commission was executed by the commissioners and duly returned, and the court ordered the deed, the commission and report to be registered, which was done accordingly. The word indisposed has two meanings: it may mean unwilling to travel, or it may mean unable to travel from sickness. The latter meaning must be assigned to the word, when we read it in connection with its context. The County Court is limited in its power to grant commissions of this kind, and therefore it is necessary that the proceedings should shew that the court acted within the sphere of its limited jurisdiction, as no intendment would be made that it had so acted. In Fenner v. Jasper. 2 Dev. and Bat. 34, a remark fell from the court, which would seem to imply that the suggestion should appear in the order made by the court; but it is afterwards distinctly stated that the J . . . 1 . ., -j ,, suggestion must appear either m the order or the. commxss;011- That case, we still think, was correctly decided, for there was not a proper fact suggested, either in the order or the commission. In the case now before us, we are of the opinion that the proceedings of the County Court do shew, that they acted within the limits of the power given them by the acts of Assembly.

Another objection to the validity of the deed arises upon the report or return of the commissioners. The report is not couched in definite or precise language; but we think, nevertheless, the meaning of it cannot be well misunderstood, and, fairly considered, it is a fulfilment of the demands of the act of Assembly. The commissioners, in their report, say, that they proceeded to take the private examination Mary Freshwater, relative to her voluntary assent in the execution of the annexed deed; and on the said private examination as to her voluntary assent, they received this answer, “ that she did execute the same, without any compulsion from, her husband or any other person whatever;” which answer could not be true, unless she executed the deed without the physical or moral force of her husband or any other person; and therefore she executed it voluntarily and of her own free will. The words of the act, passed in 1751, sec. 3, (Rev. Stat. c. 37, s. 10,) run thus: “ And such deed acknowledged before them (commissioners) after they have examined her privily and apart from her husband, touching her consent,” &c. The phrases “ privy examination,” “ private examination,” and “ examination separate and apart from her husband,” are indifferently used in our acts of Assembly, when speaking of the examination of a feme covert, touching her voluntary assent to the execution of a deed; as in the ancient law respecting her examination on acknowledgment of a fine, to convey one and the same idea, an examination i! when delivered from her husband, and therefore her judgment free.” Hearle v. Greenbank, 2 Atk. 712. It is enough that the commissioners have certified that the examination was private.

It seems to us, therefore, that the deed was sufficiently executed and authenticated to pass the land. There must be a new trial.

Pkr Curiam. Judgment reversed and new trial awarded.