Moore v. Collins

• Decision Date: 30 June 1834
• Citation: 15 N.C. 384
• Parties: AUGUSTUS MOORE v. JOSIAH COLLINS and WILLIAM D. RASCOE.
• Court: North Carolina Supreme Court

15 N.C. 384

AUGUSTUS MOORE

v.JOSIAH COLLINS and WILLIAM D. RASCOE.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1834.

1. Where the bargainor, having signed and sealed a deed, said to the attesting witness, "I acknowledge that to be my act and deed:" was held that these words, being addressed to one who was not intended to take possession of the deed, did not amount to a delivery.

2. And where, after the deed was thus executed, the agent of the bargainee offered to take it and carry it to him, he being out of town, but the bargainor objected, saying it might thereby be lost, and that he expected the bargainee back that night, and would himself hand it to him: It was held that this refusal of the bargainor to part with the custody destroyed the effect of his antecedent words.

3. Held also, that the jury could not infer, from the facts above stated, a delivery at the time of the bargainee's return, but only at the time when the deed was proven to be in his possession.

4. Where a deed of trust was duly proved but, because of the sickness and death of the register, was not registered within six months, but was registered as soon as a successor was appointed, it is void as to the creditors of the bargainor.

After the new trial granted in this cause at December Term, 1831, 14 N. C., 126, it was tried again on the Spring circuit of 1834, before Norwood, J., at CHOWAN.

The statement of facts certified with the record, set forth the deed made by Creecy to the plaintiff, as it is stated in the before mentioned case; it is sufficient to say that it was executed to secure sundry debts of the bargainor, was dated the 15 September, 1829, proved at the term of Chowan County Court commencing the ensuing week, and the certificate of registration was dated 27 March, 1830.

To prove the execution of the deed, the plaintiff called Robert H. Smith, one of the attesting witnesses, who stated that on 15 September, 1829, he was requested by Thomas Benbury one of the cestui que trusts, to go to the house of Creecy, and attest the execution of a deed—that he went with Benbury and Dr. Matthias E. Sawyer, the other attestingwitnesses, and found there Creecy and William R. Norcum, the latter of whom was also a cestui que trust. That the deed was lying on a table in the room, that Norcum filled up some blanks in it, that in a short time Creecy went to the table and signed the deed, and the witness and Dr. Sawyer attested it. That the deed was left on the table, and immediately he and Dr. Sawyer withdrew, leaving Norcum and Benbury with Creecy. The witness further stated that the plaintiff was from home at this time—that he returned the latter part of the same week, and that he, the witness, neither saw nor heard anything more of the deed until the Tuesday following; which was the week of Chowan County Court, when he was called upon to prove it. Dr. Sawyer stated that Creecy, after he signed the deed said, "I acknowledge that to be my act and deed."

William R. Norcum was called by the defendants—upon his examination by the plaintiff, he stated that he and others of Creecy's creditors, among whom was Benbury, employed the plaintiff to draw the deed; that in a short time thereafter the plaintiff informed him that he was going out of town to attend the Superior Court of Washington, that the deed was drafted, and was in Benbury's possession for the purpose of being executed; that he, the plaintiff, was fearful that Benbury might be negligent and that he wished the witness would attend to its execution. That on 15 September, 1829, he, the witness, went with Benbury to the house of Creecy, where he found the deed, that he having filled up several blanks in it, Creecy signed and sealed it; that after the attesting witnesses had left the house, the deed was lying upon the table for the ink to dry; that as soon as this was done he went to the table, saying to Creecy that he was going to Washington Superior Court, when he should see the plaintiff, and that he would carry the deed and hand it to him; that Creecy remarked, he, the witness, might

miss the plaintiff on the way, and thereby the deed might not get to the hands of the plaintiff in time; that he, Creecy, expected the plaintiff back that evening or the next morning, when he would himself hand it to him. The witness also stated that Benbury was in an adjoining room nearly all the time he, the witness, was in Creecy's house; that he came into the room where the deed had been executed during the period which elapsed after the departure of the attesting witnesses, and the conversation above stated, and that they, the witness and Benbury, left the house together.

The County Court commenced on the next Monday, the 21st, and the minutes of Tuesday the 22d, contained the folowing entry, "Deed of trust from James R. Creecy to Augustus Moore was exhibited in open Court, the execution of which was proved by the oath of Robert H. Smith, and ordered to be registered (withdrawn by Mr. Moore)."

The Clerk of the County Court proved that after the probate of the deed, he made the usual certificate, and was about to file it when the plaintiff asked for it, and took it away, saying that he would hand it to the Register. It was proved that the Register did not receive the deed between four and six weeks after its probate, that the Register was then in very bad health, and died in December following, leaving the deed among his papers, but unregistered, and that no successor was appointed until the ensuing March Term of the County Court. It was also proved that the Register was the clerk of the defendant Collins, and usually attended to his business, and that he had a short time after the deed came into his possession, handed the original to Mr. Collins for the purpose of having it copied.

The defendant Rascoe being the sheriff of Chowan, justified under a writ of fieri facias against the property of Creecy, in favor of the defendant Collins, tested of the second Monday of September, 1829.

Several points were taken for the defendants, of which it is necessary to notice only the following:

1st. It was contended that the instrument relied on as the deed of Creecy, was void as against them, because it was not registered within six months after its execution, as required by the act of 1820 (Rev. ch. 1037).

2d. That no valid delivery of the deed had been made by Creecy prior to 22 September, the Tuesday of the County Court, at which time the lien of the execution in favor of the defendant Collins had attached.

His Honor instructed the jury that if the plaintiff within five or six weeks after the probate of the deed, delivered it to the Register for registration, and its registration was prevented by the ill health and death of the Register, and the delay of the County Court in appointing a successor, it should be considered as registered within due time, leaving the facts attending the execution of the deed to the jury, his Honor informed them, that if Creecy in the presence of the attesting witnesses and of Norcum, declared the instrument to be his act and deed, unaccompanied by any other declaration or act, at the time, manifesting that he was to retain the control and power over it until some future period, the declaration amounted in law to a delivery at that time; that if the jury should think that the fact of Creecy's declining to permit the deed to be taken by Norcum, and retaining it himself was, as he declared it to be, for the purpose of keeping it more securely until he could hand it to the plaintiff, his so refusing to surrender the custody of the deed, and retaining it in his own possession, did not do away the efficacy of his prior delivery of it, and that if the jury, should upon the testimony before them, come to the conclusion that the deed was not then delivered, it was for them to decide, upon the whole evidence, whether it was subsequently delivered before or after the teste of the execution.

A verdict was returned for the plaintiff, and the defendants appealed.

DANIEL, J. This was an action of TROVER, brought by the plaintiff to recover certain slaves and other property, mentioned in an instrument of writing, purporting to be a deed of trust, made by Creecy to the plaintiff. The defendants pleaded the general issue, and on the trial tookfive objections to the recovery of the plaintiff. I shall take notice of the charge of the Judge of the Superior Court only on two of the objections. First: whether the instrument which the plaintiff calls a deed of trust, ever was delivered, so as to constitute it a deed, or if it was, whether it was delivered at a time subsequent to the lien created on the property, by the teste of the defendant's execution. Secondly, whether the deed of trust under which the plaintiff claims, was registered in six months, as is required by the act of Assembly passed in 1820.

The Judge who tried the cause, in his charge to the jury, told them that the words made use of by Creecy, at the time he signed and sealed the paper, would in law, amount to a delivery of the deed. I cannot agree with him in this opinion. The delivery of every deed must be proved as well as the sealing of it, being an essential requisite to its validity. The deed, if delivered, is good from the time of the delivery, and not from the date expressed on the face of the instrument. A deed may be delivered by words, without any act of delivery by the grantor, as if the writing sealed lieth upon the table, and the feoffor or obligor, saith to the feoffee or obligee, go and take up the said writing, it is sufficient for you, or it will serve the turn, or take it as my deed, or the like words, it is a sufficient delivery. (2 Thos. Coke, 235.) But the words must be addressed to the feoffee or obligee, or some person for them. The words must amount to an authority or license, in the person addressed, to take possession of the deed, and a reception of the instrument by the person spoken unto, must follow the speaking of...