Burnett v. Thompson, 48 N.C. 113, 3 Jones 113 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 113, 3 Jones 113

JOSEPH BURNETT vs. JOHN THOMPSON

Terms-for years in land being, by law, only chattels, deeds for them are not' required to be registered; therefore if that should be done voluntarily, a copy of such a deed certified by a register is not evidence.

The act of 1824, converting the long terms granted by the Tuscarora Indiana-into real estate, and making it transmissible as such, does not make good a registration made before its passage. And a certified copy of a deed enter- . ed on the- register’s book before that act, cannot be read as evidence:.

Tins was an action of trespass, tpiecl before Ms Honor, Judge Saunders, at the Fall Term, 1855, of Washington Superior Court. The case has been before tliis Court twice, formerly, and new trials granted. Vide 13 Ire. Rep. 146 ; Ibid 379.

On the trial below, tlie plaintiff claimed title under a deed made by two Indian Chiefs, Saomusa and Longbord, executed in January, 1805, and conveying the land in question to John McCaskey for a term of years, ending in July A. D. 1916. This deed was executed in their names by Jeremiah Slade, tlieir attorney in fact, under a power made by them to him in 1803. This power of attorney was proved and ordered to be registered at February Term, 1805, of Bertie County Court. The deed named above was proved and ordered to he registered at the November Term, 1805, of tlie same County Court. The plaintiff further claimed title through a deed made by John McCaskey in March, 1805, conveying the same term of years to Thomas Spiller, which deed was proved in Bertie County Court, and ordered to he registered at May Term, 1813.

Certified copies of these deeds from the register’s hooks were offered in evidence, without accounting- for the originals, and were objected to, upon Hie' gfound that they were conveyances of mere chattel interests, and that there was no authority given to the register, to put such deeds upon Ms books, or, having done so, to give authenticated copies thereof. In reply, an Act of the General Assembly, passed in the year 1824, was produced, converting the leasehold interests conveyed by the Tuscarora Indians into real estate for the terms for which they .were conveyed, and providing that the conveyance, and devise of such estates, should thence forward ho governed by the same rules as are now prescribed in the case of real estate held in fee simple.

The evidence was received by the Court, and the defendant excepted.

There were many other exceptions brought up to the Court, but as the above was the only one considered by their Honors, the others are omitted.

Moore, for plaintiff.

Rodman, for defendant.

Nash, C. J.

Hie second exception made to the plaintiff’s recovery is decisive of the case now before us.

The plaintiff claims under'long leases made by the Tuscarora tribe of Indians, conveying the premises in question. Those leases were made in the year '1805, and prior thereto, and were proved and registered in 1813, and the plaintiff offered in evidence, copies from the register’s book. Their reception was objected to by the defendant. The objection was overruled and the copies admitted.

At the time those leases were made and registered, up to the year 1824, they were considered mere chattel interests, and there was no Actof Assembly authorising their registration.' The registration in 1813, was of no effect, and, as a ncessary consequence, copies from the register’s book were not competent evidence, without pursuing the course pointed out for giving in evidence copies of any other private deeds or paper writing. The Act of 1824, cli. 13, converted these chattel interests, thereafter, into real estates for the term for which they were originally granted, investing them with all the incidents of such estates, and concludes by saying, “ and its conveyance and devise shall be governed by the same rules as are now prescribed in the case of real estate held in fee simple.” All conveyances of real estate are required to be proved and registered in the county where the land lies, and copies from the register’s book, properly certified, when the original is lost, are made evidence. Here, the deeds were put upon the register’s book in the year 1813. The Act of 1824, has no retroepective operation. It is all prospective so far as the registration is affected. They might, and ought to have been proved and registered since the Act of 1824. See S. C. 13 Ire. 319.

His Honor erred in admitting the copies of the leases in evidence.

Per Curiam.

Judgment is reversed and a venire de novo awarded.