Doe on the Demise of Morrison v. Cook, 47 N.C. 117, 2 Jones 117 (1854)

Dec. 1854 · Supreme Court of North Carolina

47 N.C. 117, 2 Jones 117

DOE ON THE DEMISE OF JOHN MORRISON vs. CALVIN J. COOK.

The Act of 1830, concemirig't'he'’buming of the'Court House of Hertford county, made applicable to the County of Montgomery by Act of 1844, only relates to such deeds as were in existence at the time-the Court Houses of these counties were'burnt.

ActioN OR EJECTMENT, tried before his Honor Judge MaNly, at the -Fall Term, 1854, of Montgomery Superior Court.

The plaintiff’s lessor offered in evidence a deed executed by John L. Christian, late sheriff of Montgomery, bearing date the day of March, 1845, to him for the land in question, in which was recited abridgment before a-justiee of the peace, in favor of the plaintiff’s -lessor, against Edmund Cook and Mastín C. Williams, and execution on said judgment, and a levy made of the same en the land sued-for. And that a ven-ditioni exponas had issued -from July Term, 1842, of Montgomery County Court,-commanding the then sheriff to sell the lands levied on to satisfy the .plaintiff’s..judgment and costs. Upon which vendi. expo. >the sheriff, in October, 1842, had sold said land, and that the .plaintiff’s lessor had become the purchaser upon which the deed, was made.

The .plaintiff’s lessor then proved-that the defendant Calvin J. Cook, was in possession of -the premises, and that he acknowledged that ho entered in .under Mastín C. Williams, one of the defendants, in the execution named in the sheriff’s deed aforesaid, lie then offered in evidence the 2nd section of the private Act of Assembly, passed in the year 1831, in relation to supplying proof of the records destroyed, by the burning of the court house of Hertford county, as follows, to wit: “ That in all cases hereafter, when any person shall produce, and offer in evidence, any bill of sale for slaves or other property, or a deed for lands, purporting" to be executed by any attorney, or by virtue of a power, or by any sheriff in virtue of any execution from any Court of the county of Hertford, or by a clerk or master under a decree, the production of such bill of sale or deed for lands, shall be held and deemed, prima facia evidence that there was a valid power of attorney, judgment and execution or decree authorising such sale, and that in such cases, it shall not be necessary to produce the said power of attorney, judgment and execution or decree or a copy thereof, but such bill of sale or deed of lands shall be prima facia evidence of the title, so far as the title could in law be transferred, in case the judgment and execution, power of attorney or decree, had been shown in evidence j.” also, the Act passed in 1841 and 1845, making the said Hertford Act applicable to the burning of the records and court house in Montgomery, in March, 1843,. lie then stopped his case.

The defendant’s connsel contended that, inasmuch as the sheriff’s deed was executed in 1845, three years after the burning of the records in Montgomery, and when the said sheriff was out of office, it was necessary that the plaintiff’s lessor should prove, by evidence, the existence of the record recited in the deed, and that the deed itself was not prima, facia evidence of such record, according to the provision of the said 2nd section of the Hertford Act as aforesaid, as the deed alluded to in said section, must bo one made while the record itself was in existence for the sheriff’s inspection.

The Court was of a different-opinion, thinking the deed sufficient in form, and the recitals therein of the judgment,, execution, &c., to he evidence by virtue of the Acts of Assembly referred to, of the former existence of said records, and the jury being so advised, gave a verdict for plaintiff.

There was a rule which was discharged. Judgment and appeal.

Kelly, for plaintiff.

G. O. Mendenhall, for defendant.

Battle, J.

The question in this case depends upon the proper construction of the Act of 1831, chap. 96, entitled “ an Act in addition to an Act passed at the last session of the General Agsembty of this State, in relation to the burning .of the records of the county of Hertfordthe provisions of which were applied by the Act of 1844, chap. 53, to the county of Montgomery, the records of which had been then recently burnt also. “ There are,” says Mr. Justice Blackstone, “ three points to be considered in the construction of all remedial statutes; that is, how the common law stood at the making of the Act; what the mischief was for which the common law did not provide, and what remedy the Parliament hath provided to cure this mischief. And it is the business of the Judges so to construe the Act, as to suppress the mischief and advance the remedy1 Black. Com. 87, citing 3 Rep. 7. Co. Litt. 11 and 42. Now, with regard to the statutes under consideration: the common law required as evidence of title, under certain, circumstances, the production of certain records; the mischief was, that those records had, in the county of Montgomery, been entirely destroyed by the burning of the court house, so that they could not be produced; and the remedy provided was, that when a party claimed under a deed for lands executed by the sheriff, by virtue of an execution from any Court of the said county, the production of the deed should be prima facia evidence, that there was a valid judgment and execution, authorising the sale without the production of the record of the judgment and execution, or a copy thereof.

"We think it almost certain, that the mischief in the contemplation of the Legislature, and that against which they intended to provide, was the loss of records upon which the validity of deeds then in existence depended. Such deeds could hardly be founded, as to their recitals, either in mistake or fraud, because the means of detecting it were easily accessible to the party to be affected by it. The law-makers could, in this view, confidently extend to those claiming under the deed, the remedy which they did provide, without fear of doing injustice to others. But if the remedy is to be as broad as is contended for by the plaintiff, there is very little, if any security for the rights of others. The officer through mistake, or fraud may, by executing deeds at any time, and making therein what recitals he pleases, deprive an owner of his lands or put him to great trouble and expense in rebutting the pri- ma facia case which the law sets up against him. This seems to us to be so manifestly unjust, that we cannot believe it was so intended by the Legislature. In this very case, the defendant is sought to be deprived of his land by the acts of a man who was out of office — and who professed to remember, and undertook to recite judgments and executions two years after the records had been destroyed. ¥e think that the Judge erred in his construction of the statute, and that in consequence of such error, the defendant is entitled a venire de novo.

Pee Cueia^x. Judgment reversed.