Den on demise of Hathaway v. Davenport, 47 N.C. 152, 2 Jones 152 (1855)

June 1855 · Supreme Court of North Carolina

47 N.C. 152, 2 Jones 152

Den on demise of JERDAN HATHAWAY vs. PENELOPE DAVENPORT.

A copy of the probate of a deed by the subscribing witness, also of the order made by a County Court to appoint commissioners to take the private examination of a feme covert, was inserted on the deed itself, as also was the report of the commissioners, which were duly registered, though no other commission issued to them, and no other report was made to the Court: it was Held that this was a substantial compliance with the act of Assembly, and that the deed was duly authenticated.

Tins was an actioN of ejectment, tried before bis Honor Judge PERSON, at tlie‘Spring Term, 1855, of Washington Superior Court.

The only question made in the case, was whether the deed, and the proceedings in regard to the probate thereof, are sufficient in law to pass the estate of th& feme covert, which it purports to convey, and it was agreed that if the court should be of opinion that they were sufficient for that purpose, judgment should be entered for defendant, otherwise for the plaintiff.

The following order was passed by the county court of Washington, at November session, 1834, viz:

“This deed from Asa Ansly, and wife, Nancy, to Abraham Davenport, was proved in open court by the oath of Jordan Snell, the subscribing witness thereto, and ordered to be registered.

Test, James HoskiNS, clerk.”

Also, the following: “ State of North Carolina, Washington County, Court of Pleas and Quarter Sessions, November Term, 1S34. Ordered by the court that Uriah Chesson and Hamilton W. Davenport, Esqrs., two of the justices of the peace of this county, be appointed to take the private examination of Nancy Ansljq wife of Asa Ansly, touching her free and voluntary act in joining her said husband in a deed conveying land to Abram Davenport, on the 28th of December, 1833, the said feme covert being too infirm to attend court, 18th November, 1S34.

Test, James IToseins, clerk.”

“Pursuant to a commission, to us directed, from the November Term of Washington county, of 1834, to take the private examination of Nancy Ansley, wife of Asa Ansley, concerning her free and voluntary assent in assigning this deed of sale for land with her husband, Asa Ansley, we have examined the above named, Nancy Ansley, wife of said Asa Ansley, separate and apart from her said husband, she says she did assign this deed of sale for land to Abram Davenport, of her own free and voluntary consent and without the constraint of her said husband. December 4th, 1834.

(Signed,) ■ IT. W. DayeNpoet, J. P. [seal.]

URIAH ChessoN, J. P. [seal.] ”

There was no entry of these proceedings on the minutes of Washington county court, or other note of them, except that they were written on, and now appear on the deed itself.

At the November term, 1851, of that county court, the following order was made and duly entered on the docket:

“ Upon motion, in open court, it is ordered that the following entry be made now, as of February Term, 1835 :

“ A deed of bargain and sale of land, from Asa Ansley and wife, Nancy, to Abram Davenport, was proved in open court, by the oath of Jordan Snell, the subscribing witness thereto, and the Justices, II. W. Davenport and Uriah Ghesson, Esqrs., appointed at November Term, 1834, of this court, to take the private examination of the feme covert, Nancy Ansley, apart from her husband Asa, having made their report to this term of the court, it is ordered that the report be confirmed, and that it be with the deed and commission registered.

Test, E. F. FagaN, clerk.”

• The said deed, with the foregoing entries on its back, and the entry above stated, of November Term, 1851, were registered March 15th, 1855. Upon consideration of these proceedings and certificates, his Honor was of opinion that the deed was properly authenticated to pass the land of the feme covert, and judgment was entered for the defendant according to the agreement of the parties, from which the plaintiff appealed to this court.

Winston, jr., and Ileath, for the plaintiff.

Moore and Smith, for the defendant.

PeaesoN, J.

The object of the statute was to favor feme coverts who resided out of the State, or were unable, from age or infirmity, t.o come to court, by conferring upon the court, or judge, the power to direct the clerk to issue a commission to take the acknowledgment and private examination of such feme coverts at home : thereby relieving them from the inconvenience of coming to court: and for the pni’pose of aiding the clerks in the discharge of this duty, the statute gives the form of the commission which they ought to issue. It is evident that the commissioners derive their authority from the act of the court or judge, and not from the commission, which is only evidence of the fact of their appointment. In this case, the clerk, instead of pursuing the form which the statute sets forth for his guidance and direction, endorsed upon the deed the order of the court, by which the persons named were appointed commissioners. In pursuance of this order, they take the private examination, which is certified to by them upon the back of the deed and duly returned; whereupon the deed, the order of court, and the certificate, that they, as commissioners, had taken the private examination of the feme covert, were all duly registered. The question is, does this substantial compliance with the requirements of the statute, pass the title of the feme covert, or is her deed inoperative and void, because the clerk did not follow the form which the statute sets forth as a direction for him in the discharge of his duty ?

A mere statement of the question is sufficient without the need of argument, unless we act upon the assumption that the object'of the law is to enable women, after the death of their husbands, to defeat the title of purchasers who have honestly bought and paid for the land. Must a purchaser lose his land because the sheriff did not do his duty in making advertisement, as he is required by law to do ; or because a clerk did not do his duty in issuing a commission in the very form which the statute lays down for his direction ? These are ministerial acts ; the statute is directory, and if the thing required to be done, has been done in substance, the deed is valid, although the clerk did not attend to the direction given to him as to the form of the commission.

Peb CurtaM. Judgment affirmed.