Richmond Cedar Works v. Pinnix

• Decision Date: 01 October 1913
• Parties: RICHMOND CEDAR WORKS v. PINNIX et al.
• Court: U.S. Court of Appeals — Fourth Circuit

208 F. 785

RICHMOND CEDAR WORKS v. PINNIX et al.

United States District Court, E.D. North Carolina.

October 1, 1913

R. W Winston, of Raleigh, N.C., for plaintiff.

E. F Aydlett and J. Kenyon Wilson, of Elizabeth City, N.C., for defendants Pinnix and Ferrebee.

J. C B. Ehringhaus, of Elizabeth City, N.C., for defendant Gregory.

CONNOR, District Judge (after stating the facts as above).

Defendants' first exception is directed to the admission in evidence of a certified copy of a deed from John R. White and his wife to George T. Wallace, dated April 10, 1857; registered in Book C.C., page 542, Camden county, January 24, 1871. There is, upon the certified copy, a certificate of acknowledgment by the grantor and his wife, purporting to have been made by W. J. Baker, a commissioner of affidavits, in Virginia, for North Carolina, dated April 11, 1857. There is, on the copy of the deed, no order of registration, by the court of pleas and quarter sessions of Camden county, N.C. It is offered and admitted as color of title. If plaintiff had offered and proved the execution of the original deed, and showed that it, or those under whom it claimed, entered upon and remained in possession of the land, claiming under the deed, it would be admissible for the purpose of showing the character of the entry and extent of the possession, without registration. When relied upon as title, it must be acknowledged by the grantor, or his signature proven on oath, by one or more witnesses, in the manner prescribed by law, and when so acknowledged or proven and 'registered according to law shall be valid, and pass title and estates without livery of seisin, attornment or other ceremony whatever. ' Revisal, Sec. 979. This provision is found in our statutes as early as Laws 1715, c. 7. A number of statutes have been enacted providing for the probate of deeds, conveying land in this state, by grantors residing in other states of the Union and in foreign countries. These acts were collected, brought into orderly arrangement, and codified by Mr. Samuel F. Mordecai, dean of the Trinity Law School, with his uniform accuracy. Pub. Laws, 1899, c. 235; Pell's Rev. c. 18, Secs. 952-956. For subsequent amendments see Supplement, 1911. Curative statutes have been enacted at every session of the General Assembly. None of them include the deed in controversy. At the session of 1830, the Governor was authorized to appoint commissioners of affidavits in the several states and territories, who were given power to take the acknowledgment or proof of deeds conveying lands lying within this state. It is provided that:

'Any such acknowledgment or proof, taken or made in the manner directed by the laws of this state, and certified by the commissioner before whom the same shall be taken or made shall have the same force and effect and be as good and available in law for all purposes, as if the same had been made or taken before one of the Justices of the Supreme Court of the United States, or judge of any court of supreme jurisdiction in any of the United States. ' Acts 1830-31, c. 31; R.S.c. 21.

By section 4 of the statute the Governor is directed to make known to the clerks of the several courts of record of the state the name and places of residence of such Commissioners. By section 5, c. 37, R.S., and of the Revised Code, it is provided that, when a deed is proven before any of the several officers named therein, outside of this state, including 'any commissioner appointed by the Governor of this state according to law,' and certified by him as required by law, such deed--

'being exhibited in the court of pleas and quarter sessions of the county in which such lands lie. * * * or to one of the Judges of the Supreme Court or of the superior courts of this state, shall be ordered to be registered with the certificate thereto annexed, and such deeds, * * * with the certificates thereto annexed having been registered, pursuant to such order, in the county, in which such lands lie, * * * shall be valid in law to convey,' etc.

This statute was in force in 1857, when the deed from White to Wallace purports to have been executed. It will be noted that the statute does not require that the certificate of the clerk of the court or the judge who orders the deed and the certificate of the commissioner to registration shall be made upon or attached to the deed or registered with it. It may be asked, what evidence would the register of deeds have that a deed tendered him for registration upon a probate taken by a commissioner had been passed upon by the court? By reference to chapter 98, R.S. (Id. Rev. Code, entitled 'Registers ') being the act of 1777, as amended by the Acts of 1807 and 1814, it will be seen that by section 5 it is made the duty of the clerks of the court of pleas and quarter sessions, upon application of the register of deeds for his county, at any time after 10 days from the rise of each court, to deliver to the said register all deeds and other instruments of writing admitted to probate and then remaining in his office for registration, and to pay over the fees for registering the same. For failure to discharge the duty so imposed, the clerk shall forfeit and pay to the register the sum of $100. By section 6 it is made the duty of the register, within 20 days after the rising of each court, to apply at the clerk's office of their respective counties for all deeds admitted to probate for registration. For failure to do so the register forfeited the sum of $10, one half to the use of the poor, and the other half to the use of the person suing for the same. The register, therefore, was authorized, and it was made his duty, to accept from the clerk such deeds as were given him for registration, as having been duly admitted to probate in open court. There was no statutory requirement that the clerk write any certificate on the deed, and none that such certificate, if written on it, be recorded. The fact of its probate and order of registration was entered on the minutes of the court. Freeman v. Hatley, 48 N.C. 115; Perry v. Bragg, 111 N.C. 163, 16 S.E. 10. The abolition of the court of pleas and quarter sessions, resulting in conferring upon clerks of the superior court and other officers probate jurisdiction, resulted in important changes in the method pursued in probating deeds. This is shown by the provision of section 1246, Code 1883, requiring the clerk of the superior court, taking probate of a deed, to 'enter his certificate thereon.' By section 1250, the power is conferred upon the clerk to 'adjudge probates taken before a commissioner of affidavits to be correct,' etc. Act 1899, c. 235, requires that the clerk, passing upon the validity of the probate, shall order the deed, together with the certificate, to be recorded. Revisal 1905, c. 18, Sec. 1001. It is held that, unless required by the statute, the certificate need not be registered. Cochran v. Improvement Co., 127 N.C. 386, 37 S.E. 496.

In the absence of any statute requiring the registration of the certificate, showing that the deed probated by the commissioner of affidavits has been passed upon, adjudged correct, and ordered to registration, why should we not presume, for the purpose of admitting a certified copy in evidence, that the registration was in accordance with the legal requirements? It will be further noted that the statute (Revisal 1905,Sec. 1599) entitles a duly certified copy of any deed or writing, required or allowed to be registered, to be used as original evidence. The statute does not require that such certified copy shall include the certificate of probate. In Cochran v. Improvement Co., 127 N.C. 386, 37 S.E. 496, it is expressly held that the probate of a deed will be presumed from the fact that it is registered, and that it is not necessary to register the certificate as evidence of probate. Mr. Justice Furches, in an interesting and well-considered opinion, reviews the decisions of the Supreme Court. The decision has been cited with approval. Brown v. Hutchinson, 155 N.C. 210, 71 S.E. 302; Johnson v. Lumber Co., 147 N.C. 251, 60 S.E. 1129. Why is the certified copy not admissible upon the ground that it shows that the deed was placed on the record, in the county wherein the land lies, more than 40 years ago? Prof. Wigmore says:

'Where the alleged ancient original deed is lost (or otherwise unavailable) and a purporting official record is offered, made more than 30 years before, and certifying the deed's contents and execution, but inadmissible as an official record, because not made in accordance with statutory provisions, may not this ancient copy record serve as sufficient evidence of genuineness? * * * The defects in the record are, in a measure, technical only, and it still is entitled to some consideration as an official statement, and the long publicity of it has given ample opportunity, if any just ground existed, for doubting the original's authority. Accordingly, there has been a general disposition, on one ground or another, to accept such an ancient record, though otherwise inadmissible, as sufficient, after the lapse of time.'

The learned author says:

'This conclusion has been usually accepted. * * * Moreover, the fact of possession of the land, as a confirming circumstance, seems often to be here insisted upon irrespective of its general requirements.'

Among the illustrative cases cited by him are the following:

'Though the ancient record of a deed improperly acknowledged is not in itself evidence of the execution of the deed, yet such record, in connection with long and undisputed possession consistent with the deed, and other circumstances which tend, as a matter of fact, to show the probable execution and loss of such a deed, is admissible as

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