Buchanan v. Hedden

• Citation: 169 N.C. 222,85 S.E. 417
• Decision Date: 25 May 1915
• Docket Number: (No. 590.)
• Court: United States State Supreme Court of North Carolina
• Parties: BUCHANAN. v. HEDDEN et al.

85 S.E. 417

169 N.C. 222

BUCHANAN.

v.HEDDEN et al.

(No. 590.)

Supreme Court of North Carolina.

May 25, 1915.

Appeal from Superior Court, Jackson County; Justice, Judge.

Action by M. Buchanan against E. C. Hed-den and another. From a judgment for plaintiff, defendants appeal. No error.

J. Frank Ray and H. G. Robertson, both of Franklin, for appellants.

Coleman C. Cowan, of Sylva, and Manning & Kitchln, of Raleigh, for appellee.

WALKER, J. [1, 2] This is a civil action for the recovery of 040 acres of land. Plaintiff introduced evidence of a grant, No. 144, from the state for the land in dispute, to J. F. Foster, and mesne conveyances showing that W. N. Hedden had acquired the title so granted. He then showed a judgment of the superior court of Jackson county, rendered in a civil action, wherein he was plaintiff and W. N. Hedden was defendant, at spring term, 1897, involving title to the land described in grant No. 144, by which it was adjudged that the said W. N. Hedden was not the owner of the said land, but that the plaintiff was the owner thereof, and that a writ of possession issue to put him in possession of the same. This established that the title was in the plaintiff to this suit, so far as the parties thereto are concerned, and at least prima facie. Mobley v. Griffin, 104 N. C. 112, 10 S. E. 142; Campbell v. Everhart, 139 N. C. 503, 52 S. E. 201. The defendants assert title to the land under a mortgage made by W. N. Hedden to Frank B. Mayer, a power of attorney of Frank B. Mayer to E. C. Hedden, authorizing him to sell the land under a power contained in the mortgage, a sale thereunder, and a deed by E. C. Hedden, in his own name, to Sarah C. Hedden, one of the defendants. The power of attorney, which was offered in evidence, had been acknowledged in Maryland before George Wells, clerk of the circuit court of Anne Arundell county, by Frank B. Mayer, who executed the letter of attorney, and a certificate of said clerk was annexed, but it was never passed upon by the clerk of the superior court of Jackson county, N. C, and was placed on the registry of that county without, as appears, his authority or order. The deed, therefore, was not properly registered (Revisal, § 999; Lumber Co. v. Branch, 158 N. C. 251, 73 S. E. 164), and was not, therefore, evidence. "Until a deed is proved in the manner prescribed by the statute, the public register has no authority to put it on his book; the probate is his warrant, and his only warrant, for doing so." Todd v. Outlaw, 79 N. C. 235; Duke v. Markham, 105 N. C. 131, 10 S. E. 1017, 18 Am. St. Rep. 889; Williams v. Griffin, 49 N. C. 31; Burnett v. Thompson, 48 N. C. 113; Lambert v. Lambert, 33 N. C. 162; Carrier v. Hampton, 33 N. C. 307. The court properly excluded the power of attorney, upon objection by the plaintiff. The deed from E. C. Hedden was not properly executed by him as attorney, and, besides, was never probated, so as to authorize its registration and introduction in evidence. Proof before a justice of the peace was not sufficient for this purpose, as it is required by the statute that the clerk of the superior court shall pass upon his certificate and order the deed to registration. Nothing of this kind was done. The law requires that the deed, or other instrument, shall be properly probated "before the same shall be registered." Revisal, § 999. The originals of the power of attorney and the deed were not produced, and we are not, therefore, informed as to whether they would show sufficient certificates of probate, or that the radical defects appearing upon the registry were mere misprisions of the register of deeds. Strain v. Fitzgerald, 130 N. C. 600, 41 S. E. 872; Patterson v. Galliher, 122 N. C. 511, 29 S. E. 773; Heath v. Cotton Mills, 115 N. C. 202, 20 S. E. 369. It may be seriously questioned whether proper search was made for the originals. Greene v. Grocery Co., 159 N. C. 119, 24 S. E. 813; Blair v. Brown, 116 N. C. 631, 21 S. E. 434. No proof of their contents was made which is sufficient to cure the defects, if curable in that way. The defendants did not contend that they had been in adversepossession long enough to ripen their title without color, and, as the deed under which they claimed title was not registered, and as both parties derived title from...