Summary
In Etheridge v. Ferebee, 31 N.C. 312, it is said: "A deed is acknowledged by husband and wife in open court, two justices of the peace thereupon take the privy examination and report to the court, and the court acts upon the report; the inference is that the two justices were members of the court appointed for that purpose."
Summary of this case from KIDD v. VENABLEOpinion
(December Term, 1848.)
1. A deed is acknowledged by husband and wife; two justices of the peace thereupon take the private examination of the wife and report to the court and the court acts upon the report: Held, that the inference is irresistible that the two justices were members of the court, appointed for that purpose, though no special order of appointment appears.
2. It is sufficient if the certificate of the private examination of a feme covert states that upon such examination she declared that she had voluntarily executed the deed, without saying that she doth now voluntarily assent thereto.
3. If upon the privy examination the wife states that though she was willing to convey when she executed the deed, yet she had changed her mind and was then unwilling, of course, the assent of the wife could not be certified.
4. It is immaterial whether the acknowledgment or the private examination be first recorded.
APPEAL from the Superior Court of Law of CURRITUCK, at Fall Term, 1848, Bailey, J., presiding.
Heath for plaintiff.
(315) No counsel for defendant.
This was an action of ejectment. The plaintiff offered (313) in evidence a deed from John D. Cook and Lydia Cook to Joseph Cowell, also a deed from Joseph Cowell to Alfred Perkins, and from Perkins to the defendant James M. Ferebee. It was proved that the defendant was in possession of the locus in quo, and that Lydia Cook was dead, having had no child by John D. Cook, and that Mrs. Etheridge, one of the lessors, was the daughter and only heir at law of Lydia Cook by another husband. The sole question in the cause was whether the examination of Lydia Cook was legal so as to convey her title. The following is the only entry upon the minute docket at February Term, 1837, in relation to the deed from Cook and wife to Cowell, to wit: "Deed from John D. Cook and wife, Lydia, to Joseph Cowell was duly acknowledged in open court, and the private examination of the feme covert taken in open court and ordered to be registered," and it appeared at the opening of the court that C. Etheridge and J. Forbes and one other were justices presiding, and the above entry was the minute order, and the minutes do not show that the above justices were appointed to take the private examination of the feme covert.
The following is a copy of the probate as it appeared on the back of the deed, to wit:
CURRITUCK — February Term, 1837. Personally appeared before us privately and aside from her husband Lydia Cook, wife of John D. Cook, and acknowledged that she assigned the within deed of conveyance to Joseph Cowell with her own free will and accord and without any compulsion of her husband, John Cook, and ordered to be registered. J. FORBES, J. P. C. ETHERIDGE, J. P.
(314) STATE OF NORTH CAROLINA — Currituck County, February Term, 1837. This deed from John D. Cook and wife, Lydia, to Joseph Cowell was acknowledged in open court and the examination of feme covert taken and ordered to be registered. J. W. HUGHS, C. C. C.
A verdict of the jury was rendered in favor of the plaintiffs, subject to the opinion of the court whether the deed from John D. Cook and wife, Lydia, passed the title to the land from said Lydia, she being at the time one of the owners of the land.
The court being of opinion that the deed of Mrs. Cook did not pass her title, by reason of the defect in the examination, gave judgment for the plaintiff, and defendant appealed.
If the deed, alleged to have been executed by Mrs. Cook, is valid in law to convey her estate, the plaintiff is entitled to recover. His Honor was of opinion that the deed was not valid. We have come to a different conclusion.
(316) It is objected to the probate of the deed that it does not appear that the two justices who certified to the examination of the feme covert were members of the County Court or were appointed by the court for that purpose.
The record shows that the deed was acknowledged in open court by the husband and wife, and that a report was made to the court at the same time by Forbes and Etheridge, two justices of the peace, as to the privy examination of the wife, and that thereupon the court ordered the deed to be registered.
The County Court is held by the justices of the peace in the several counties. Any three are sufficient to make a court, and any justice has a right to go upon the bench and be a member of the court. Indeed, any justice who is present in the courtroom and takes part in the proceedings of the court, as one of the court, ipso facto, is one of the court.
A deed is acknowledged by husband and wife in open court; two justices of the peace thereupon take the privy examination and report to the court, and the court acts upon the report. The inference is irresistible that the two justices were members of the court, appointed for that purpose. If they had taken the examination officiously the court would not have received their report and acted upon it. In this case the record shows that the two justices, Forbes and Etheridge, were members of the court when the court opened on that day, but it is not necessary to call that circumstance in aid of the conclusion that they were members of the court, appointed to take the privy examination.
The other objection is that it appears from the report that the justices examined the wife as to whether she executed the deed voluntarily, but it does not appear that they examined her as to whether she doth voluntarily assent thereto — in other words, that the examination appears to have been as to a past act, whereas it should have been as to her present assent; and the idea is suggested that the law intends to give the (317) wife a " locus penitentiae" between the execution of the deed and the privy examination; so that, although she executed the deed voluntarily, yet she should be at liberty to change her mind before the privy examination.
The novelty of this objection is an argument against it; for several cases, in which the report of the examination is expressed as it is in this case, have been examined by this Court, and all objections supposed to be at all feasible were raised, and many similar cases have, no doubt, occurred on the circuits. And yet, this idea has now been suggested for the first time. In Joyner v. Faulcon, 37 N.C. 386, the certificate made by Judge Daniel is, "she acknowledged that she executed the within deed freely," etc. In Burgess v. Wilson, 13 N.C. 307, the certificate is, "she acknowledged that she executed the deed of her own free will," etc., and although many objections were taken, the one now under consideration was not stated.
The act of Assembly gives no form in which the certificate or report of the privy examination is to be made. It simply provides that the judge, or member of the County Court, shall privily examine the wife, "whether she doth voluntarily assent thereto" — that is, to the execution of the deed, which she had just before acknowledged in the presence of her husband. And it can make no difference whether the judge or member of the court, in making the certificate or report of the privy examination, uses words in the past or present tense; in truth, the past tense would seem to be most proper. In the provision made for taking the examination of the wife who is sick, the words in the commission are in the past tense — "whether she executed the deed freely and of her own accord," etc., and it is probable that from this circumstance most of the judges and members of the courts have fallen into the mode of expressing the (318) certificate in the past, which is really the most natural manner of stating the fact, as the examination comes after the acknowledgment of the deed.
If upon the privy examination the wife states that, although she was willing to convey when she executed the deed, yet she had changed her mind, and was then unwilling, of course, the assent of the wife would not be certified or reported.
The word "assigned" is used by the parties in this case instead of the word "executed." We think it immaterial, the former being used as synonymous with the latter.
So it is immaterial whether the acknowledgment or the examination be first recorded. In Joyner v. Faulcon, before cited, the privy examination is written first, but it was held, "the certificate states a single transaction — all therein mentioned occurred at the same time, and it is immaterial what part of it is mentioned first in the certificate."
PER CURIAM. Judgment reversed, and a venire de novo ordered.
Cited: Beckwith v. Lamb, 35 N.C. 402; Freeman v. Hatley, 48 N.C. 119; Robbins v. Harris, 96 N.C. 559; Sellers v. Sellers, 98 N.C. 18; Kidd v. Venable, 111 N.C. 538.