Simmons v. Gholson, 50 N.C. 401, 5 Jones 401 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 401, 5 Jones 401

JAMES F. SIMMONS v. THOMAS S. GHOLSON, Trustee.

A deed of trust, executed in another State conveying land and other property situated in this State, -which was acknowledged before a commissioner for this State, resident in the other State, and which, on being presented to the clerk of the county court of the county where the property was situated, was adjudged by him to have been duly proved, and was ordered by him to be registered, which was also done, was Held to have been duly authenticated.

This was an INteeplea filed by Thomas S. Gholson, in an attachment taken out by the plaintiff against The Yirginia and North Carolina Planing and Lumber Company, tried before MáNLY, J., at the last Superior Court of Northampton County.

The defendant, Gholson, filed a petition in writing, claiming the property levied on by the attachment, by virtue of a deed of trust, executed in the State of Yirginia, for the purpose of securing the creditors of the company, and an issne was joined between the plaintiff and the defendant Gholson, 'to try whether on the clay of the levy, the said Gholson was the owner of the property.

Upon calling the cause in the court below, it was admitted by the plaintiff that the deed of assignment to Gholson was made in good faith, and to secure bona ficle debts, but it was insisted that the same was inadmissible as evidence, and inoperative to convey the property mentioned therein, because the same was not duly irrobated and registered in the county of Northampton, where the property was situated, and for other reasons not involved in the view of the case taken by this Court. The probate of the deed in question, is as follows:

" State of Yirginia, City of Petersburg, to wit: — I, Alexander Donnan, a commissioner for the State of North Carolina, resident in Petersburg, Ya;, do hereby certify that the Yirginia and North Carolina Planing Mill Company, by Joseph H. Cooper, President of said Company, and Thomas S. Gholson, parties to this deed, bearing date 28th day of May, 1855, and hereto annexed, this day personally appeared before me, in my said city, and acknowledged the same as their act and deed; and I do farther certify, that the said Virginia and North Carolina Planing Mill Company, by Joseph II. Cooper, President of said Company, further acknowledged the schedules hereunto appended as a part of the said deed.

Given under my hand and seal, this 28th day of fl-j- May, A. D. 1855.

ALEXANDER DONNAN,

Commissioner for N. C.”

Upon the production of the said deed, with the above certificate attached, before the Clerk of the County Court of Northampton, he made the following certificate upon the deed.

“State of North Carolina, Northampton County.

The foregoing deed in trust was exhibited in the County Court Clerk’s office, and the execution thereof appearing to be properly certified by commissioner Donnan, the same with Donnan’s certificate, is ordered to be certified and registered.

Test, JoiiN E. Rogers, C. C. C.”

Following which, on said deed, is this certificate of the public register:

“ This deed came to hand May 29th, 1855, and was then registered. Book No. 86, pages 53 — 58.

SaMüel Calvert, P. R.”

His Honor being of opinion with the plaintiff upon this, and the other matters of law, presented by the case, the defendant submitted to a j udgment, and appealed to this Court.

Moore, for the plaintiff.

Barnes, for the defendant.

Pearson, J.

The question is, was the probate of the deed, which purports to have been executed by the Virginia and North Carolina Lumber and Planing Company and Thomas S. Gholson, duly taken, so as to authorise its registration ? This depends upon the power of the clerk of the county court to take the probate.

“ The clerks of the several courts of pleas and quarter sessions shall have authority, in their respective counties, to take the probate, or acknowledgement of deeds of trust, or mortgages, at any time, in as full a manner as their respective courts can, or may do.” Bev. Stat. 37th ch., 25th sec. By the act of 1852, 133d ch., the same provision is made in respect to the probate of all deeds which are required to be registered, except the deeds of femes (¡overt.

The several courts of pleas and quarter sessions are author-ised to take the probates of all deeds which are required to be registered, in their respective counties. "When the grant- or, or the witnesses, are beyond the limits of the State, the deed may be acknowledged, or proved before the commissioner appointed by the Governor, and such deed, with the certificate being exhibited to the court of pleas and quarter sessions where the property is situate, shall be ordered to be registered.

Probate of a deed is taken by hearing the evidence touching its execution; i. e. the testimony of witnesses, or the ac-knowledgement of the party, and from that evidence actgu&g-i/ng the fact of its due execution. Where the evidence is offered to the court, the entire probate is taken by it, but where the agency of a commissioner is resorted to, a part of the probate, i. e. hearing the evidence, is taken by him, and certified to the court, and thereupon the probate is perfected by an adjudication, that the certificate is in due form, and that the fact of the execution of the deed is established by the evidence so certified.

By the statute, above referred to, the clerk is authorised to take the probate of deeds in as fulla manner, as the court can, or may do; and as the court can either take the entire probate, or perfect the probate which has been in fact taken by a commissioner, it follows that the clerk can do so, likewise.

It was insisted in the argument, that the power of the clerk is confined to taking entire probates, and that he cannot take the probate where the evidence is furnished by the certifiate of a commissioner. This inference is drawn from the use of the words to take ths prolate, or acknowledgement,” but we cannot accede to its correctness; and believe the construction contended for, is too narrow, and that the true construction confers upon the clerk full power to take the probate for the purposes of registration, as well in the one manner, as the other. Erom a perusal of the whole chapter it is obvious that there is much want of precision in the use of words; sometimes, “take the probate or acknowledgement” is used in the sense of “ taking the proof,” e. g. “ before whom the deed shall be proved or aclmowledged.” At others, it is used in the sense of taking “the probate,” which, as we have seen, consists of the two acts, of taking the evidence, and adjudicating thereon the fact of due execution. It is clear that the words are used in the latter sense, in the section under consideration.

Pee CubiaM. There is error. Venire de novo.