Den on demise of Etheridge v. Ashbee, 31 N.C. 353, 9 Ired. 353 (1849)

June 1849 · Supreme Court of North Carolina

31 N.C. 353, 9 Ired. 353

DEN ON DEMISE OF THOMAS ETHERIDGE & AL. vs, SOLOMON ASHBEE.

Where a deed of a married woman liad on it only the following entries as to its probate: “State of North Carolina, Currituck County, February Term 1832. Personally appeared Lydia Cook, wife of John Cook, and in open Court acknowledged that she assigned tho within deed of her own free will without any constraint whatever. Let it be registered. (Signed,) W. P.. > Barnard.”

“State op North Carolina, ) Currituck Sessions, February Term 1832. J

“This deed from John Cook and Lydia to Samuel Ferebee, was exhibited and proved in open Court, by John L. Scurr, subscribing witness. At the same time Lydia Cook, the feme covert, personally appeared in open Court, and being privately examined by W. D. Barnard, one of the Court appointed for that purpose, who reported, that the said Lydia Cook acknowledged the execution of said deed qf her own accord, and without any constraint whatever, &c. On motion ordered to be registered.

(Signed,) S. HALL, C. C. C.”

And there was also the following entry on the minute docket of the same term: “A deed from John D. Cook and wife Lydia to Wm. C. Etheridge was proven as tó John Cook and wife by the oath of John Scurr, a witness thereto, and her private examination taken in open Court. Ordered registered.”

Held, that these entries afforded no evidence that the wife had been privily examined, as required by law.

Appeal from the Superior Court of Law of Currituck County, at the Spring Term 1849, his Honor Judge Manly presiding.

Both parties claim under Lydia Cook, the wife of John Cook. It is admitted, that if a deed from Cook and wife to William C. Etheridge is valid to pass the title of Lydia Cook, then the plaintiff is not entitled to recover. If the deed be not valid, then the,plaintiff is entitled to recover.

The deed is in the usual form, signed and sealed by both Cook and Lydia Cook, attested by John L. Scurr. Upon the back of the deed, are the following endorsements :

“State of North Carolina, ) Currituck County, February Term 1832. )

“Personally appeared Lydia Cook, wife of John Cook» and in open Court acknowledged, that she assigned the within deed of her own free will, without any constraint whatever. Let it be registered.

W. D. BARNARD, [j. r.”]

“State of North Carolina, ) Currituck County, February Term 1832. J

“This deed from John Cook and Lydia Cook to Samuel Ferebee, was exhibited and proved in open Court, by the oath of John L. Scurr, subscribing witness. At the same time, Lydia Cook, the feme covert, personally appeared in open Court, and being privately examined by W. D. Barnard, one of the Court, appointed for that purpose, who reported, that the said Lydia acknowledged the execution of the said deed of her own accord, and without any constraint whatever, &c. On motion ordered to be registered.

“S. HALL, C. C. C..

“Registered, May 15th, 1832.

“THOS. S. LAND, P. R.”

On the docket of the Court of Pleas and Quarter Sessions for Currituck February Term 1832, was the following entry : “A deed from John D. Cook, and wife Lydia, to William C. Etheridge, was proven, as to John D. Cook and wife, by the oath of John L. Scurr, a witness thereto, and the private examination taken in open Court and ordered to be registered.”

A verdict was returned for the plaintiff, subject to be set aside and a non-suit entered, should the Court be of opinion, that the deed was valid to pass the title of Lydia Cook. The Court, being of that opinion, directed the verdict to be set aside, and a non-suit entered. The plaintiff appealed.

Heath, for the plaintiff.

Jordan, for the defendant.

Pearson, J.

His Honor was of opinion, that the deed was valid to pass the title of Mrs. Cook. With every dis. position to give effect to the deeds oí femes covert, we cannot concur in that opinion. The privy examination was not taken as the law requires.

Suppose W. D. Barnard was a member of the County Court, appointed to take the privy examination of Mrs. Cook, his certificate is not, that she was privily examined by him, but that “in open Court she acknowledged,” &c.

So, the certificate of the Clerk is inconsistent and repugnant, as endorsed on the deed. It says: “this deed from John D. Cook and wife Lydia to Samuel Ferebee, was exhibited,” &c. This is inconsistent, for the deed, upon which the endorsement is made, is a deed from John Cook and Lydia Cook, his wife, to William C. Etheridge. The description is wrong, or else the endorsement is made on the wrong deed.

Again, it says : “Lydia Cook, being privately examined by W. D. Barnard, one of the Court, appointed for that purpose, who reported, that she acknowledged the execution of the said deed,” &c. It js not stated, that Barnard reported, that upon her privy examination before him, “she acknowledged,” &c. But suppose this is to be inferred from the certificate of the Clerk. Then it is repugnant; for, the- certificate of Barnard is, that she made the acknowledgment “in open Court”

Nor, is it aided by the entry upon the docket; (admitting that the entry can be called in aid,) for the entry is, that the deed was proven, and “her private examination taken in open Court” It is not stated, by whom the examination was taken, and for aught that appears, the husband was present.

We are of opinion, that the deed was not valid to pass the title of Lydia Cook.

Tl>é judgment must, therefore, be reversed, and a judgment be entered for the plaintiff, according to the verdict.

Per Curiam. Judgment accordingly.