Benzien v. Lenoir, 5 N.C. 194, 1 Mur. 194 (1808)

July 1808 · Supreme Court of North Carolina

5 N.C. 194, 1 Mur. 194

Benzien and others v. Lenoir and others.

t From Iredell. J

1. Deeds executed in England, for lands in tliis State, were prove®, before the Lord Mayor of the city of .London, and the probate thereof certified under the seal of the Mayoralty. They were then transmitted to this State, and arrived in the year Iff 1, but not registered within twelve months thereafter. They cannot be read in evidence under the act of lfl5, ch. 38; as that act requires them to be re= gist ered within twelve months after their arrival.

But the act of IffO, ch. f, paving- declared, “ that all deeds, Sec-. not already registered, acknowledged, or proved, shall and may within two years after the passing of this act, he acknowledged by the grantor, &c. or proved by one or more of the subscribing witnesses, and tendered to the registers of the counties where such lands'lie, and shall be as good and valid, &c. as if they had been acknowledged or proved and registered agreeably to the directions of any act of Assembly theretofore made,” and the deeds having been registered within two years from the passing of the act, shall be received in evidence. And a further probate of the deeds is not necessary, under this act, to entitle them to registration, they having , been legally proved before.

3. A power of attorney executed in lff2, in Ireland, to sell lands ip this State, and proved before the Mayor of the city of Oarrickfergus, in Iff4, and the probate certified under the seal of the Mayoralty, is not admissible in evidence; as there was no law before If 93, for the probate and registration of such powers of attorney.

And this defect is not cured by a registration of the power of attorney, under the private act of lf82, ch. 36, sec. 3, which directs, “ that ihis power of attorney shall be admitted to probate and registration in the county of Wilkes, and be as good and valid-as if the confiscation acts had never passed” — for by this act a future probate as well as registration were necessary to give validity to the power of attorney.

4. There being no law before If 95, for the probate and registration of powers of attorney to sell lands, a power of attorney proved before a Judge of our Superior Courts, in lff9, and registered upon his certificate of probate, is not admissible in evidence.

The bill charged, that the Complainants were members of the unitas fratrum of this State, and instituted this suit on behalf of themselves and all other the members of the said unitas fratrum. That in the year 1754, the Earl of Granville granted two tracts of land lying in the county of Wilkes, to Henry Cossart, in trust for the unitas fratrum. That Henry Cossart died previous to the year 1776, leaving Christian Frederick Cossart, of the county of Antrim, in the kingdom of Ireland, his heir at law, upon whom the said lands descended. That Christian F. Cossart was, at the time of the descent, and still continued to be, a British subject; that since the descent, he had never come over into this State, and that by the declaration of American Independence, he had become an alien, whereby, or by virtue of the confiscation laws passed in the year 1777, and at divers times after-wards, the lands held by him in trust as aforesaid, as to the legal title thereof, were supposed to have become vested in the State of North-Carol in a ; hut Complainants were advised, that the said lands having become vested in the State by a voluntary acquisition, in default of any legal proprietor, the equitable interest in trust which the unitas fratrum before had therein, was in no wise impaired or injured ; and that any person obtaining a grant ór conveyance of the legal title from the State, for the said lands, either fraudulently, with intent to defeat the trust estate of the Unitas fratrum, or witli notice of the equitable interest’which the unitas fratrum had in said lands, became seised of the legal estate in trust for the mitas fratrum.' ■ ’

That Christian F. Cossart, after the descent to him as aforesaid, to-wit, in November, 1772, in order that; the said lands might be sold for the use and benefit, of the unitas fratrum, and the moneys arising therefrom might be applied to their use or as they should direct, executed in due form of law, his power of attorney, whereby he empowered Frederick William Marshall to sell and dispose of said lands in his name, and also empowered him to constitute one other attorney or attornies-under him, with power to perform all other matters and things in relation to the said lands which might be deemed requisite.

That Marshall did not sell the lands, and being called by his affairs into Europe, he, previous to his departure in July, 1774, executed his power of attorney^ whereby he appointed John Michael Graff, one of the members of the mitas fratrum, to execute all and singular the matters and things, to the execution of which he had been appointed by divers persons in Europe therein named or described.

That pursuant to the powers contained, or supposed and intended to be contained, in the said power of attorney, Graff, in. July, 1778, as attorney of Christian F. Cossart, the trustee in respect to the said lands, articled to sell and convey the said lands to Hugh Montgomery, for the sum of two thousand five hundred pounds, proclamation money, of which sum he received one thousand pounds, and thereupon, by a deed duly executed to pass the said lands, supposing Graff to have been legally empowered thereto, he bargainecTand sold the said lands to said Montgomery, in fee simple.

That for securing the Residue of the purchase money to be paid to Graff, for the use and benefit of the imitas fratrum, Montgomery, by deed duly executed for that purpose, demised to Graff the said lands for and during the term of five hundred years, with a proviso therein, inserted, that the same should become void on the payment of the principal money with interest, as therein stipulated.

That Graff soon afterwards died, and Traugot. Bagge became his administrator in due form of lawwho, well knowing that the said term had vested, in Graff in trust for the unitas fratrum, in the month of November, in the year 1784, assigned the same in due form of law to Frederick W. Marshall, then the agent .and trustee of the said imitas fratrum, to be possessed for them.

That Marshall had died, having'before his death pub-iished in writing his last will and testament, bearing date in the month of December, in the year 1801, and thereby devised all bis interest and right ill and to the said lands, to the Complainant, Christian Lewis Ben-xiea, and thereof appointed said Benzien, with'Jacob Van Vleck and John Gebhard Cunow, executors, which >Vill had been duly proved in Stokes County Court, and the Complainant, Benzien, had taken upon himseif the burthen of the execution thereof in North-Carolina.

That Montgomery, by deed duly executed in the year 17Y9,'conveyed the said lauds to trustees and the survivors or survivor-of them ; that all the trustees were dead**, except John Brown, who held the lands in trust for two infant children, until their arrival to age: that Montgomery also made his will, and thereby charged the proceeds of the residue of his real and personal estate with íhé>payment of his debts, and especially with the payment of his debt to the Moravians. That the same persons named as trustees in the deed aforesaid, were appointed executors of his will, who proved the same, and undertook the execution thereof.’

The bill then charged, that J. Brown, the surviving executor, delayed the payment of his debt, upon the ground that he, as surviving trustee under the deed aforesaid, could not get possession of the said lands, excepting only a small part thereof. And further charged, that William Lenoir. and others, having notice of the equitable interest of the unitas fratrum in the said lands, and intending fraudulently to defeat that interest, had obtained from the State, grants for the said lands, under which they had entered and still kept possession thereof.

The bill then prayed, that Lenoir and the other Defendants might be decreed to convey to John Brown, the surviving trustee as aforesaid, such right and title as they had acquired to the lands under their grants, and to surrender up to him the possession of said lands $ and that Brown, as<swrviving executor of Montgomery’s will., might be decreed to pay the balance of the purchase money*

The Defendants, in their answer, pray that Complainants may be put to the proof of their title, deny notice thereof, and rely upon the statute of limitations.

This cause, coming on to be heard, the complainants offered to read in evidence, 1st, the grants from Lord Granville to Henry Cossart. 2d, The power of attorr ney from Christian F. Cossart to Frederick W. Marshall: and 3d, The power of attorney from Marshall to Graff. This was objected to by the defendants’ counsel upon the following grounds. As to the grants from Lord Gran-ville to Cossart, they were executed in England and proved before the Lord Mayor of the city of London, and the probate certified under the seal of the Mayoralty ; they were therefore duly proved agreeably to the provisions of the act'of 1715, eh. 38. But it did not appear that they had been registered within twelve months after their arrival in this country, as the said act requires. As to the Power of Attorney from Christian F. Cossart to Marshall, it was proved before the Mayor of the city of Carrickfergus in Ireland, and the probate certified under the seal of the Mayoralty. Upon this probate it was registered in the register’s office for Wilkes county. But there being no public act of Assembly then in force authorising the registration of powers of attorney, executed in foreign parts, upon such a probate, and certificate, it was contended that the private act of 1782, ch. 36, “ to vest in Frederick William Marshall, of Salem, all the lands of the Unitas Fratrum in this .State,” had authorised the regristration of this posher-of attorney upon this probate and certificate. As to the power of attorney from Marshall to Graff, it was proved before Samuel Spencer, Esq. one of the Judges of the Superior Courts, by one of the subscribing witnesses, in March 1779, and registered upon Judge Spencer’s certificate-hut it was alleged that there was then no act of Assembly in force authorising the Judges Of the Superior Courts .to lake probate of such powers of attorney. This case was sent to the Supreme Court upon the following questions :

1st. Whether the grants and powers of attorney aforesaid were not sufficiently authenticated to be read in evidence? and

2d. Whether, if the grants be well authenticated, the complainants ■ may not proceed against the defendants, although the powers of attorney be defective in their authentication ?

Baker, Judge,

delivered the opinion of the Court:

The first question which presents itself for consideration in this case is, Whether the grants from Lord Gran-ville to Cossart have been properly proved and registered ? The act of 1715, ch. 38, directs “ that all deeds, &c. made in foreign parts, which shall be acknowledged or proved before the chief magistrate of any city, town or corporation, within the dominions of the King of Great-Britain, and registered in the precinct where the land lieth, within one year after the arrival of such deeds, sháll be good and valid in law, &c.” These grants, which were made in foreign parts, were proved before the Lord Mayor of London on the 4th September, 1770, and arrived in this country about the latter part of that year, or the beginning of the year 1771, but were not registered until March, 1772, which was more than twelve months after their arrival: so that they were not registered agreeably to the provisions of that act. But the Legisla^ ture passed an act in December, 1770, ch. 7, which declares “ that all deeds, &c. not already registered, acknowledged or proved, shall and may, within two years after the passing of this act, be acknowledged by the grantor, &c. or proved by one or more of the subscribing witnesses, and tendered to the registers of the counties where such lands lie, and shall be as good and valid, Ac. as if they were acknowledged or proved and registered, agreeably to the directions of any act of assembly heretofore made.” And it appears that the grants in ques-Ron were registered within two years after the passing ojp ac^ ^hat |Sj ju 1772 • an¿ so fai. the act was complied with. But it is contended that they were not proved at any time afterwards, whereas the act requires that they shall be proved or acknowledged as well as registered within two years. We cannot consider that this was necessary after they had been legally proved before. The act intended to provide for future probate and registration, where either bad been omitted to be done in due time. The probate here was in due time, and there could be no reason to require a second probate, where the grantee was not laboring under any inconvenience on that account; the defect being in the registration, and not in the probate. The registration, however, was in Rowan county, when the lands lay in Wilkes; and on that account it was not a compliance with the act. But the Legislature passed an act in 1806, ch. 1S, giving a further time of twelve months for the registration of grants under such circumstances. It appears that these grants were afterwards registered in Wilkes county within the twelve months: and we think that this gives validity to them, and entitles them to be read in evidence, as if tjiey had been registered in due time in the first instance.

The second question is, whether the power of attorney from Cossart to Marshall, has been proved in such a manner as to admit of its being read in evidence. There was no law until lately, that we know of, which allowed of the probate and registration of powers of attorney. The probate, therefore, of this before the Mayor of Car-rickfergus, in Ireland, in the year 1774, and its subsequent registration in Surry county in the same year, being not warranted by law, would not justify the Court in receiving it in evidence without further proof. But this defect the Complainants attempt to remedy by an act of Assembly passed in the year 1782, ch. 36, sec. 3.. which provides tiiat “ this power of attorney shall he admitted to probate and registration in the county of Wilkes, and be as good and valid in law as if the confiscation acts had never passedby which we conceive that a future probate as well as registration were contemplated to give validity to it:' as the former proof must he considered as if there were none at all, the same not being made-under any legal authority. So that one of the requisites of the act of 1782, not being performed, the power of attorney is not proved and registered in the manner required by the act, and cannot bo read in evidence.

As to the power of attorney from Marshall to Graff) the only proof of it which appears, was before Judge Spencer, in the year 1779 ; and that not being made under the authority of any act of Assembly, the power of attorney cannot be read without other proof.

As to tlip question whether the Complainants cannot proceed against the Defendants, although the foregoing powers of attorney should not be authenticated by legal proof of their execution; we arc of opinion that Complainants may proceed, in as much as the trust estate (if any there was) vested in the unitas fratrmn by the deeds from Lord Granville. But as this part of the case can be examined and decided on at the hearing with more correctness, we permit the Complainants to proceed, subject to such objections at the hearing, as this part of the hill may be exposed to. rS*