Kidd v. Venable

• Decision Date: 29 November 1892
• Citation: 16 S.E. 317,111 N.C. 535
• Court: North Carolina Supreme Court
• Parties: KIDD . v. VENABLE.

16 S.E. 317

111 N.C. 535

KIDD .

v.VENABLE.

Supreme Court of North Carolina.

Nov. 29, 1892.

Presumption as to Official Acts—Deed by Infant Wife.

1. A certificate of probate made under the act of 1751 for the registration of a deed by wife and husband, not showing that the persons who took the privy examination and acknowledgment of the wife required by the act were members of the court, is not on that account invalid; there being no form prescribed in the act for this certificate, and the presumption being that the proper parties acted.

2. Under the act of 1751, which provided procedure for the execution and registration of a deed made by a wife and her husband, and declared that when so executed, etc., it "shall be valid to convey all the estate and title which such wife may or shall have in any lands, tenements, or hereditaments so conveyed, as if done by fine and recovery, or any other ways or means whatsoever, " a deed by an infant wife, having the effect of a fine and recovery, may during her minority, but not afterwards, be impeached. Wright v. Player, 72 N. C. 94, followed.

Appeal from superior court, Surry county; Armfield, Judge.

Action by Nancy Kidd against Joshua Venable to recover certain lands. Judgment for plaintiff. Defendant appeals. Reversed.

A jury trial was waived, and the court found the following facts: On——day of May, 1835, the plaintiff was the owner of the land in controversy, and was at the time a feme covert and a minor, being 18 years of age. On——day of May, 1835, the plaintiff, with her husband, executed to John Venable, under whom the defendant claims, a deed to the land, which was regular in form. The deed was offered for probate in the following form: "May term of Surry county court. Ordered by the court that H. C. Poindexter and R. C. Puryear be appointed to take the private examination of Nancy Kidd in relation to a deed made to John Venable. [Signed] B. Vestal, Chairman County Court. Agreeably to the above order, wehave taken the private examination of Nancy Kidd, relative to her signature to a deed made by her to John Venable, who acknowledged the same of her own free will without control of her husband. [Signed] H. P. Poindexter. R. C. Puryear. Surry County, May term, 1835. The execution of the within deed as to Allan Kidd was duly acknowledged in open court, and ordered to be registered. [Signed] T. K. Armstrong, Clerk." His honor held that said probate was sufficient in form, to which the plaintiff did not except. The court further found that, at the time of the execution and probate of said deed, the plaintiff was an infant 18 years of age, and remained under coverture until within two years from the commencement of this action, in 1889. His honor held that the probate as aforesaid was not conclusive, and could be collaterally attacked, and that the plaintiff could avoid her deed on account of her infancy at the time of the execution and probate thereof, and thereupon gave judgment for the plaintiff.

Glenn & Manly, for appellant.

Watson & Buxton, for appellee.

McRae, J. It appears from the statement of the case on appeal that no exception was taken to the ruling of his honor that the probate of the deed was sufficient in form. We would be precluded from entertaining an exception here which was not made below, except upon a question of jurisdiction or because the complaint does not state a cause of action. Rule 27, (12 S. E. Rep. vii.,) and cases citedthereunder; Clark's Code, p. 696. As It was earnestly argued before us, however, by the learned counsel for the appellee, that the certificate of probate was insufficient to authorize the registration of the deed because it does not appear therein that the persons who took the privy examination were members of the court, as required by the act of 1751, the statute then in force, and therefore that the probate and registration are void, we will say that, the probate being sufficient in form, the maxim, omnia prsesumuntur rite esse acta, will support the inference that they were members of the court. The case of Etheridge v. Ashbee, 9 Ired. 358, relied on by the appellee, we think is not in point; for there it was not certified by the justice appointed for the purpose that the feme covert grantor was privily examined by him, but simply that she in open court acknowledged, etc.; and the order of the court, based on the foregoing certificate, was inconsistent with the same in several respects. In the case before us, it appears that two persons were appointed by the court to take the private examination of the wife; that they reported that they had taken such private examination, and that she acknowledged the same of her own free will, without control of her husband. The acknowledgment of the husband was...