Gilliam v. Reddick

• Decision Date: 30 June 1844
• Citation: 4 Ired. 368,26 N.C. 368
• Court: North Carolina Supreme Court
• Parties: DEN ON DEMISE OF HENRY A. GILLIAM v. JOHN REDDICK.

26 N.C. 368

4 Ired. 368

DEN ON DEMISE OF HENRY A. GILLIAM

v.JOHN REDDICK.

Supreme Court of North Carolina.

June Term, 1844.

The acts of officers de facto, acting openly and notoriously in the exercise of the office for a considerable length of time, must be held as effectual, when they concern the rights of third persons or the public, as if they were the acts of rightful officers.

The case of Fleming v Burgin, 2 Ired. Eq. 584, cited and approved.

Appeal from the Superior Court of Law of Gates County at Spring Term 1844, his Honor Judge BAILEY presiding.

This was an action of ejectment. The plaintiff deduced a title from the State to one Drew Welch. He then shewed a judgment in Gates County Court at the instance of Pierce & Co. against the said Drew Welch, an execution thereon levied on the land described in the plaintiff's declaration, and the Sheriff's deed therefor to the lessor of the plaintiff as the purchaser at the execution sale. The defendant offered in evidence a deed of trust, executed by the said Welch, by which he conveyed all his property, including the said land, to a trustee for the benefit of certain creditors. The deed of trust was executed, duly proved before the clerk, and handed over to the person acting as register of Gates County and actually transcribed by him upon the books of the register's office of Gates County, several months before the rendition of the judgment above-mentioned. He also proved that the trustee sold the premises in dispute, by virtue of the said deed of trust and that they were purchased by the defendant. The plaintiff then offered in evidence the records of the County Court of Gates, from which it appeared that, at May Term 1829, a majority of the justices being then on the bench, the following order was made in relation to the appointment of a register, to wit, “John Walton, Esquire, was declared to be elected Public Register for the County of Gates. Ordered that he enter into bond with surteies as the law directs.” It also appeared that Walton at that term entered into bond as register of the said County with sufficient sureties. The records furnish no other evidence of his qualification as register. At May Term 1836, four justices being on the bench, the following order was made, to wit, “Ordered that John Walton renew his bond as register for this County, agreeably to law, and give H. Bond and T. Walton for securities.” And it appeared that Walton at that term entered into bond as register with the required sureties. It was proved on the part of the defendant, that the said Walton had discharged all the duties of register of the said County from the time of his first appointment in 1829 up to the present time, and that he had in every respect acted as register since his original appointment, and that no other person had been engaged in the discharge of the duties of that office.

Walton was the person who registered the deed of trust.

Upon this evidence, it was insisted on the part of the plaintiff, Frst, That the appointment of Walton terminated at the expiration of four years from his original appointment, by virtue of the Act of Assembly applicable to such cases, and that all his acts, since the expiration of his official term under the original appointment were wholly void; and that, therefore, the deed of trust had never been duly registered, and of course no estate passed to the trustee. Secondly; It did not appear from the records that Walton took the oaths prescribed by law for his qualification as register, and therefore he could not legally enter upon the discharge of the duties of the office.

The defendant insisted that Walton was duly appointed register, and by the virtue of his appointment in 1829 and his giving bonds, he was invested with the office, that his acts as register were valid,...