Manufacturers' Finance Co. v. Amazon Cotton Mills Co.

• Decision Date: 09 November 1921
• Docket Number: 388.
• Citation: 109 S.E. 67
• Parties: 182 N.C. 408, 29 A.L.R. 916 v. AMAZON COTTON MILLS CO. ET AL. MANUFACTURERS' FINANCE CO. ET AL.
• Court: North Carolina Supreme Court

109 S.E. 67

182 N.C. 408, 29 A.L.R. 916

MANUFACTURERS' FINANCE CO. ET AL. v. AMAZON COTTON MILLS CO. ET AL.

No. 388.

Supreme Court of North Carolina

November 9, 1921

Appeal from Superior Court, Davidson County; Webb, Judge.

Action by the Manufacturers' Finance Company and another against the Amazon Cotton Mills Company and others to recover the balance due on sale of a motor truck, and for the possession of the truck, title to which was retained as security. The purchaser, who is insolvent, having sold the truck to his codefendant, the cotton mills, the only defense set up is by said cotton mills that the acknowledgment to the contract retaining title is insufficient. The court so held, and plaintiffs appealed. Reversed.

Failure to name the party sworn in a certificate of acknowledgment is immaterial when the name appears on the same paper and refers to the instrument certified by the notary to have been subscribed before him.

Brooks Hines & Smith, of Greensboro, for appellants.

Raper & Raper, of Lexington, and H. R. Kyser, of Thomasville, for appellee cotton mills.

CLARK C.J.

The sufficiency of the acknowledgment to the conditional sale retaining the title to the truck is the sole question. The instrument is full and in regular form in all respects, and was registered at the time the sale was made, as was required. C. S. § 3312. Said contract begins with the heading "State of North Carolina, County of Davidson," and specifically stipulates, "The title to said property is to remain in the vendor until the notes are fully paid." It is signed by the purchaser under seal, and has this acknowledgment:

"Signed sealed and delivered in the presence of ______. Subscribed and sworn to before me this April 17, 1920. In witness whereof I have hereunto set my hand and seal, this day and date above written. R. L. Pope, N. P."

Here follows the seal of the notary public, with the addition of the sentence, "My commission expires Oct. 16, 1921," and the following:

"North Carolina, Davidson County, in Superior Court. The foregoing certificate of R. L. Pope, N. P. of Davidson County, attested by his official seal is adjudged to be in due form, and according to law. Let the instrument and certificate be registered. Witness my hand this April 24, 1920. S. J. Smith, C. S. C."

The paper was filed for registration on that same day and duly recorded as certified by the register of deeds.

The defendants objected on the ground that said contract was improperly acknowledged and not entitled to registration. The court sustained the objection, to which the plaintiff excepted and submitted to a voluntary nonsuit, which ruling is assigned as error. The defendants contend that acknowledgment is insufficient in that the venue is not stated; that the name of the grantor does not appear in the body of the acknowledgment and the acknowledgment does not mention the instrument to which it relates; that the word "acknowledge" is not used; that the identical words used in the statute (C. S. § 3323) are not used in the acknowledgment which is in the form of an affidavit.

The authorities are uniform that the certificate will be upheld if the place can be ascertained with reasonable certainty by an inspection of the whole instrument. 1 R. C. L. 283; 108 Am. St. Rep. 543, note.

"It is a rule of universal application that a literal compliance with the statute is not to be required of a certificate of acknowledgment, and that, if it substantially conforms to the statutory provissions as to the material facts to be embodied therein, it is sufficient." 1 Cyc. 582.

The venue is stated in the beginning of the contract as North Carolina, Davidson county; the seal of the notary shows him to be a notary public of that county, and the clerk...