Den on the demise of Barbee v. Taylor, 51 N.C. 40, 6 Jones 40 (1858)

Dec. 1858 · Supreme Court of North Carolina

51 N.C. 40, 6 Jones 40

Den on the demise of WILLIS BARBEE and wife v. DAVID TAYLOR.

Where a certificate on the back of a deed, by a husband and wife, for the wife’s land, purported to be of an acknowledgement in the county court, and an examination of the feme before some member of the court, but was subscribed with the name of a Judge of the Superior Court, it was Held that such certificate was ineffective.

Ejectment tried before Heath, J., at the last Superior Court of Wilson County.

The lessors of the plaintiff are the heirs at law of Barshaba Crowell, and the only question on the trial was as to the efficacy of a deed for the premises made by James B. Crowell and his wife Barshaba to Dempsey Harrison, under whom the defendant claims. The deed purports to have been made on the day of , 1818, and to be nnattested; and on it is a certificate in these words:

“North Carolina, ) Court of Pleas and Quarter Sessions, Nash County, j Second Monday of February, 1818.

James B. Crowell, one of the bargainors in the foregoing deed, came into court and acknowledged the execution thereof : and afterwards, Barshaba Crowell, the feme covert, came into court and was privily examined, separate and apart from her husband, the said James B. Crowell, touching the execution thereof by her, by , Esquire, one of the Justices of the said Court assigned for the purpose, and upon her examination, acknowledged that she executed the same freely and without the control or compulsion of her husband. Let it be registered,” and to the certificate is subscribed the name “ Henry Seawell ” in the hand writing of the late Hon. Henry Seawell, who was in 1818, one of the Judges of the Superior Courts of Law.

The Court held, that the deed did not divest the estate of Mrs. Crowell and that the plaintiff was entitled to recover; and from a judgment accordingly the defendant appealed.

B. F. Moore, Miller and Dortch, for the plaintiff.

Badger and Dewis) for the defendant.

Ruffin', J.

The act of Assembly authorises and requires deeds to be proved or acknowledged before one of the Judges, or in the County Court; and it is necessarily implied that a certificate of the Judge on the deed should purport to be of the matters and things done before him, and those only. The tenor of this certificate is quite to the contrary' — purporting to be of an acknowledgement in the county court, and an examination. of the feme before some member of the court, for whose name a blank is left. To proceedings of that kind, a Judge's signature is not the appropriate attestation, and therefore, it is ineffective. It was contended at the bar, that those parts of the certificate, in reference to the proceeding being in the county court, might, as being inconsistent with the signature of the Judge, be rejected as surplusage, and the Judge’s signature would furnish a sufficient presumption of an ac-knowledgement had before him. But, if those parts be struck out of the certificate, there is really nothing left but the name of the Judge, without any certificate of any tiling done before him.

It is easy to conjecture how the mistake happened, but not as easy to help the party from its effects.

Pee Cueiam, Judgment affirmed.