Latham v. Bowen, 52 N.C. 337, 7 Jones 337 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 337, 7 Jones 337

CHARLES LATHAM v. MONTREVILLE BOWEN.

Registration of a marriage settlement, embracing the slaves of a feme, was Held to be properly made in the county where the feme resided and the slaves wore, at the time the instrument was executed.

Where a deed of marriage settlement was attested by two subscribing witnesses, and an order of registration was made by a Judge on the oath of one, who added his name to the number of subscribing witnesses on the acknowledgment of the woman after marriage, it was Held that this was a sufficient compliance with the formal requirement of the statute, but that on a trial about the property conveyed, the deed had to be proved by the other subscribing witnesses.

Where the probate of a deed and an order of registration are regular on its lace, it cannot be vitiated by going behind it and showing that the witness, on whose oath it was made, was incompetent.

(The case of McKinnon v. McLean, 2 Dev. and Bat. 79, cited and approved.)

Action of trover, for several slaves, tried before Dick, J., at the last Spring Term of Washington Superior Court.

In June, 1859, Thomas Wynne intermarried with Sarah Slaughter ; but before the marriage, they e.xecuted to the defendant, in trust, for the separate use of the wife, a deed of marriage settlement, conveying all her estate, which consisted of slaves, to the defendant. The deed was executed by the parties, previously to the marriage; by the defendant, Bowen, in the presence of one Bennett, a subscribing witness, and by the others, in the presence of A. G. Britt, who also became a subscribing wetness. After the marriage, the deed was acknowledged by all the parties in the presence of H. A. Gilliam, who then became a subscribing witness, and upon his oath before a Judge of the Superior Court, it was ordered to be registered, and was registered in the office of the county of Hertford, within six months after its execution.

Sarah Slaughter was under age at the time of her marriage, and lived in the county of Hertford. Wynne, the husband, had, up to the marriage, resided and done business in Hertford, but the defendant Bowen, resided at that time, in Washington county, and immediately after the marriage, the husband and wife removed to the county of Washington, where they continued to reside, boarding with the defendant, Bowen, till the bringing of this suit.

The plaintiff was the sheriff of Washington county, and having in his hands executions against the husband, Thomas Wynne, levied the same on certain slaves (the subject of this controversy) as the property of the husband. These slaves had been conveyed to the defendant in the deed of marriage settlement, and having afterwards come to the hands of the defendant, he refused to let the plaintiff take them. Thereupon this action was brought, and the' only question before this Court is, whether the deed of marriage settlement had been proved and registered within the six months prescribed by the act of Assembly. It was agreed that a verdict should be taken, subject to the opinion of the Court upon the point of law, with power to order a nonsuit, in case he should be ip favor of the defendant.

The Court, on consideration of the point reserved, nonsuited the plaintiff, who appealed.

Winston, Jr., and Smith, for the plaintiff,

H. A. Gilliam, Donnell and W. A. Moore, for the def't.

Pearson, C. J.

The case depends upon the sufficiency of the registration of the deed, under which the defendant claims.

Two objections are made to it: 1-st. “It ought to have been registered in the county of Washington.” We think it was properly registered in the county of Hertford; because Mrs. Wynne, wheconveyed the slaves, in trust, for herself, resided in that 'county -at the date of the execution of the deed, and the •slaves were hired out in that county by her guardian. Mar?ria,ge settlements are required to be registered “ in the same manner as -deeds for lands,” within six months; Rev. Cod©, •■chap. 37, sec. 2é. Where a slave is the subject of the settlement, this reference to deeds for land is not apposite, but still the statute :so provides, and the construction must be — in the •county where the property is situate, as in the case of deeds ■for land. If an analogy be drawn from the other sections of the statute, ’as this deed was for the benefit of the maker, it ■resembles more a deed of trust or mortgage than a hill of sale for valuable consideration, and the 22nd section requires the former to be registered in the county where “ the donor, bargainor or mortgagor resides,” while the 20th section reqnires the latter to be registered in the county where the purchaser resides; so, both in reference to the county where the property was situate, and where the maker of the deed, who was «entitled to the beneficial ownership, resided, Hertford was the proper county.

2. “ As Gilliam did not attest the deed until after the marriage, he was not a subscribing witness, in respect to Mrs. Wynne, within the meaning of the statute, and, therefore, the probate, by him, did not support the order of registration:”

We admit the proposition, but do not concur in the conclu.ssion drawn from it. Had there been no subscribing witness at the time the deed was executed, we conclude it would have been inoperative, but as there were two such witnesses', and they proved its execution on the trial, we think it passed the title, and that the registration was sufficient. The argument urged against it was this : a married pvoman has not capacity to execute a deed, therefore she has not capacity to acknowledge the execution of one. If the purpose of the acknowledgment was to give legal existence to the deed, or to add in any way to' its legal effect, this would be a logical conclusion; but where- there- has'been a complete execution o-f the deed before marriage, it is a non sequitur, that she has not capacity to acknowledge its previous execution. It is true, a wife eanno-t give evidence for or against her bus-band1, and, as a general rule, her declarations, or admissions, cannot he given in evidence for or against him, a.s if he- be sued for a trespass committed by her, or slanderous words, which she may have uttered, her subsequent admissions, we presume, would not be evidence against him ; but that is a different question from the one now before us. As respects the husband, the acknowledgment of the wife was made in his presence, and by his consent, and, as it respects her, it was, obviously, on the side of her interest, which repels all idea of constraint, and the question is, s-imply, when a deed has been duly executed, may not a wife, in the presence of the husband, acknowledge its execution for the mere purpose of registration, in order to save the trouble and expense of sending for the subscribing witnesses ? We can see no objection to it, and in the absence of authority, must conclude there is none. For, assuming the deed, to have been duly executed before the marriage (as was proved in this case) the title had passed, so that the husband had no interest, and the law does not presume that a woman loses her memory by getting mar.ried. A wife has capacity to make a will of personalty with the consent of her husband; so, she may convey real estate, a privy examination being required to guard against constraint; and if a-woman, before marriage execute a deed for land, we suppose she may, after marriage acknowledge its execution, at least, for the purpose of registration, without -a privy examination. Her incapacity to make a contract, except as the agent of her hnsband, or to convey personal estate* arises from the fact, that all of h-er rights are vested in him, and she has no property of that kind to deal with. But there is another ground in support of the registration, which seems to be conclusive, if a deed be put or the books of the register without probate and an order of registration, it amounts to nothing; Williams v. Griffin, 4 Jones’ Rep. 31. But if there be a probate and an order of registration by competent authority, and the proceeding upon its £aee is regular and in due form, the registration is valid, for the mere purpose of registration, although the witness, who proved the execution •of the deed, was incompetent; McKinnon v. McLean, 2 Dev. and Bat. Rep. 79. This decision is put on the ground, that ■such registration gives the notice designed for creditors and ipnrchasers, and as «very object of the law is answered, a proceeding before competent authority, and in due form, ought •not to be vitiated by proof, aliunde, of a fact which show's the proceeding to have been erroneous ; provided the execution of the deed be proved at the trial.

In our ease, every thing is regular on the face of the proceeding, and on the authority of McKinnon v. McLean, we are of opinion that the registration cannot be vitiated by going behind it and proving a fact, from which it appears that die witness, Gilliam* although a subscribing- witness according to the face of the pa-per, wasflnot so within the meaning of the statute. Of course, the principle is confined to the mere act of registration, and cannot be extended so as to allow- a deed to he read in evidence at the trial without proof >»f its execution.

Carrier v. Hampton. 11 Ire. Rep. 307, does not conflict with McKinnon v. McLean, or with the decision in this ease, for the opinion that the registration of the deed in that ca'se was insufficient, is put on the ground that the defect, in the probate, -appeared on its face; and supposing the registration to be sufficient in respect te the mere ©ereaffiOMy <®f regisiratiOn,. as the object of giving notoriety was-answered, stiii suck registration was not sufficient to, dispense- with proof of the execution, of the deed at the trial.

There is no- error.. Judgment of nonsuit on the case- agreed..

Per Curiam,

Judgment affirmed.