Warren v. Wade, 52 N.C. 494, 7 Jones 494 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 494, 7 Jones 494

ELIZABETH J. WARREN v. ROBERT WADE et al.

An office copy of a deed inter partes executed in pais, acknowledged and recorded in the court of another State, is not such a record and judicial proceeding as can be authenticated under the provisions of the act of Congress of 1790.

Perhaps, if authenticated in the form required, the copy of such a deed from ' an office booh, might be admitted under the supplemental act of Congress, passed in 1804.

This was an issue of clevisavit ml non, tried before Bailey, J., at the last Spring Term of Caswell Superior Court.

The script was propounded as the will of one Ellis Wade. It was in the ordinary form of a will, with two subscribing witnesses. The probate was opposed, on the ground, that the decedent had not sufficient capacity to make a will, and, secondly, on the ground of undue influence exerted over him by Elizabeth Warren, the propounder. The decedent was a man of very intemperate habits ; he lived at the time of the execution of the paper, and had for several years previously, in a state of adultery with the propounder, by whom he had several children; he had a wife, by whom he had no children, who lived separate from him in the State of Yirginia. There was evidence tending to establish both the points made in the issue, which was submitted without exception. In order to rebut this testimony, the caveators offered in evidence the certified copy of a deed, executed in Halifax county, Yirginia, reciting that his wife, Susan Wjide, had obtained a decree for alimony against the said Ellis, in the county court of Halifax, and had obtained a writ of wexeat, to compel the satisfaction of said decree, and providing, in order to settle and put an end to said suit, that one-third of the whole estate of the said Ellis shall be vested in a trustee, for the sole and separate use of the said Susan, with full power in her to dispose of the same" by'deed or will.

The probate of the said deed is as follows:

“ Halifax cleric’s office, 27th of February, 1844.

“ The within indenture was presented in the clerk’s office aforesaid, and acknowledged b}r the within named Ellis Wade, a party thereto, to be his act and deed, and admitted to record according to law.

Teste, Wi. Holt, C. H. 0.”

The certificate of the transcript, offered in evidence, is as follows:

“ State of Virginia, ) q . County of flalifax. j

“ I, William S. Holt, clerk of the county court, in the county and State aforesaid, do certify that the foregoing deed from Ellis Wade to Edward Boyd, trustee, is truly copied from the records of my office.

Í. — ■— ) ‘In testimony whereof I have hereunto affixed the s L. S. y seal of the said county, subscribed my name, this —v— ) 7th of November, 1859.

Wm. S. Holt, Clerk.”

To which is added the following :

“I, Beverly Snyder, presiding justice of the county court of Halifax, in the State of Virginia, do certify that William S. Holt, who hath given the preceding certificate, is clerk of said court, and that his attestation is in due and usual form. Given under my hand, this 5th day of November, 1859.

Bev. Snyder, P. J. P. H. C.”

The admission of this copy was objected to, on the ground, that it was not proper evidence in itself, and because it was not attested according to the act of Congress. The objections were over-ruled, and the evidence admitted. The caveators excepted.

Verdict in favor of the prop under. Judgment and appeal.

IIill, for the propounder.

Morehead, and Norwood, for the caveators.

Battle, J.

The only question presented'by the bill of exceptions, is as the admissibility in evidence of the certified copy of a deed, purporting to have been copied from the records of the county court of Halifax county, in Virginia. The trans-script of the instrument was objected to on two grounds ; first, because it was irrelevant; and, secondly, because it was not properly authenticated. The first ground of objection is clearly untenable. On the trial of the issue of devisavit vel non, the alleged will was opposed upon the allegations, that the supposed testator was non compos, and that the script was procured by the exercise of undue influence over him. In answer to such allegations, made by the caveators, it was certainly very material for the propounders to show, if they could, that the testator had not, by giving his estate to other persons, lost sight of his primary duty to provide suitably for his wife. This proof was amply furnished by the instrument offered in evidence, and it only remains for us to enquire whether, as the original deed was not produced, the copy was authenticated in such a manner as justified its admission. Upon that point our opinion is adverse to the propounders.

The instrument, though purporting to have been recorded in the county court of Halifax county, in Virginia, is manifestly nota judicial proceeding, nor part of a judicial proceeding in that court. It is nothing more nor less than an indenture between the testator and another person as the trustee of his wife, whereby a certain part of the testator’s estate is conveyed to the trustee for the sole and separate use of the wile. It is true, that a part of the consideration for the deed, was the compromise of a suit, which the wife had instituted for the recovery of an alimony, but it does not appear that the deed was recorded as any portion of that judicial proceeding. It was a deed inter partes executed m pcds and afterwards acknowledged in the court, and recorded according to the laws of Virginia, instead of being proved or acknowledged and registered according to our laws. Not being properly a record and judicial proceeding of the court, it cannot be authenticated as such under the act of Congress of 1790. See Appendix to the Eevised Code, page 623. It may, perhaps, be considered as the record of an office book, and as such, come within the,.provisions of the supplementary act of Congress, passed in the year 1804, but unfortunately for the propounders of the will, in this case, that act requires not only the attestation of the keeper of the office book, and of the certificate of the presiding justice of the court, but also the certificate of the clerk or prothonotory of the court, under his hand and seal of office, that the said presiding justice is duly commissioned and qualified. This latter certificate is wanting in the case now before us, and for that reason the certified copy of the instrument ought not to have been admitted in evidence. This was an error for which the judgment must be reversed and a venire de novo awarded.

Per Curiam,

Judgment reversed.