Barrett Et Ux v. Barrett

• Decision Date: 02 March 1897
• Citation: 26 S.E. 691,120 N.C. 127
• Court: North Carolina Supreme Court
• Parties: BARRETT et ux. v. BARRETT et al.

26 S.E. 691

120 N.C. 127

BARRETT et ux.

v.BARRETT et al.

Supreme Court of North Carolina.

March 2, 1897.

Deeds—Probate—Curative Acts.

1. The fact that the acknowledgment and the privy examination of a wife voluntarily joining in a deed with her husband were taken prior to proof of execution of the deed by the husband, instead of thereafter, as required by Code, § 1256, was a defect in the probate merely, which did not render the deed void as between the parties.

2. Acts 1893, c. 293, making valid probates of deeds by husband and wife where the wife's privy examination was had prior to the husband's "acknowledgment, '' includes cases where the execution of the deed by the husband was proved by a subscribing witness, instead of by technical acknowledgment.

3. Acts 1893, c. 293, curing defective probates of deeds in certain cases, is not invalid, as between the parties to deeds defectively probated, because retrospective.

Appeal from superior court, Pitt county; Graham, Judge.

Action by J. E. Barrett and Annie E. Barrett against E. A. Barrett and others to cancel a deed. There was a submission on an agreed case, and a judgment for plaintiffs, from which defendants appeal. Reversed.

The following is the agreed case, with the omission of the certificates of the justice of the peace, of the clerk, and the order of registration on the deed and as recorded in the register's office: "(1) That prior to the 16th day of July, 1891, the feme plaintiff was seised of an undivided one-half interest in a certain tract of land in the county of Pitt, fully described and set out in her complaint, and that on the said day she and her husband signed a deed purporting to convey, and sufficient in form to pass, a fee-simple title in her said interest in the land to one R. B. Bynum, the said R. B. Bynum executing his note for the purchase money thereof, in the sum of nine hundred dollars, the whole of which note still remains unpaid; that the said R. B. Bynum is insolvent. (2) That on the said 16th day of July, 1891, the acknowledgment and privy examination of the feme plaintiff was taken before a justice of the peace, and, later in the day, proof as to the execution by the husband was made before the clerk of the court, the examination and acknowledgment of the wife before the justice preceding the proof as to the husband before the clerk in point of time a few hours. * * * (3) That subsequently the said R. B. Bynum conveyed the said land to the defendant R. L. Davis, in fee, who conveyed same to defendant E. B. Barrett; that the defendants were purchasers for value, and without any notice of any defect in the probate and registration of said deed from plaintiffs to said R. B. Bynum (if there be any defect), except such as the law may fix them with from the registration books. (4) That the defendant E. A. Barrett, and wife, B. B. Barrett, are in the sole possession of the said lands, receiving the rents and profits of the same, and that defendant Davis holds a mortgage thereon. (5) The plaintiffs insist that, upon the foregoing facts, they are entitled to judgment prayed for in their complaint, for that the deed from the plaintiffs to R. B. Bynum is void, on account of the defective probate and registration. (6) The defendants insist that, upon the foregoing facts, they are entitled to have judgment rendered in their favor, for that the defect in probate of deed from plaintiff to R. B. Bynum (if it shall be found that any defect exists) was cured by the act of 1893, and that plaintiffs are estopped by their deed, and under no circumstances are they entitled to recover in this action."

That part of Code, § 1256, which is material to the questions involved is as follows: "Every conveyance * * * affecting the estate, right or title of any married woman in lands or tenements must be executed by such married woman and her husband; and due proof of acknowledgment thereof must be made as to the husband and as to the wife, and the privy examination of the wife, touching her voluntary assent to such conveyance, * * * shall be taken separate and apart from her husband, and such acknowledgment or proof and private examination shall be taken and certified as hereinbefore provided inthis chapter. And such conveyance * * * shall be valid in law to pass the estate, right and title of the wife to all such lands, tenements or hereditaments so conveyed or to be conveyed."

In so far as it affects this case, the language of the curative statute referred to is as follows: "That in all cases, whether under commission or otherwise, when acknowledgment of the husband has been taken before or subsequent to the acknowledgment and privy examination of his wife * * * to a deed * * * requiring registration in this state and such deed * * * has been admitted to probate by the proper probate judge, clerk of the superior court, or official having jurisdiction, and by him ordered to be registered, and the same has been registered, such acknowledgment, privy examination, probate and registration are hereby made valid and binding."

Jarvis &...