Sellers v. Sellers

• Decision Date: 21 November 1887
• Citation: 3 S.E. 917,98 N.C. 13
• Parties: SELLERS and others v. SELLERS and others.
• Court: North Carolina Supreme Court

3 S.E. 917

98 N.C. 13

SELLERS and others v. SELLERS and others.

Supreme Court of North Carolina

November 21, 1887

Appeal from superior court, Anson county; BOYKIN, Judge.

When after the registration of a deed, it appears to the register that he has omitted the scroll representing the seal opposite the grantor's name, it is proper for him to make the correction at any time.

Batchelor & Devereux, for plaintiffs.

J. E Lockhart and Burwell & Walker, for defendants.

MERRIMON J.

This is a special proceeding in which the plaintiffs allege in their petition that they are tenants in common with the feme defendant of the land described therein, and they seek to have partition thereof, etc. The defendants in their answer deny the allegations of the petition, and allege that the feme defendant is sole seized of the land, etc. In selecting a jury to try the issue thus raised, the plaintiffs challenged the juror for cause, and assigned as cause that he had not paid tax for the year next preceding the time when his name was selected and placed on the jury-list by the county commissioners, as prescribed by the statute. Code, §§ 1722, 1723. It appeared that he had paid tax for the fiscal year 1884, but had not for the year 1885. The trial took place at the spring term of the court of 1886. On the trial the defendants put in evidence a deed purporting to have been executed on the eighth of October, 1855, upon the sufficiency of which it seems the title of the feme defendant depended. The part thereof, and the certificates of probate and registration thereof, necessary to a proper understanding of the errors assigned, and the opinion of the court, are as follows "In testimony whereof the said Roland R. Sellers, and Sarah Sellers, his wife, hath hereunto set their hands and seal, the day and date above written.

"R R. SELLERS. [Seal.]

"SARAH X SELLERS. [Seal.]

"Signed, sealed, and delivered in the presence of

"A. LITTLE.

"J. T. STREATER."

"NORTH CAROLINA, ANSON COUNTY.

"Court of Pleas and Quarter Sessions--October Term, 1854.

"Then Roland Sellers, and Sarah Sellers, his wife, appeared in open court, and each acknowledged the due execution by them of the foregoing deed for lands in this county, to Thomas Ratliff, for the sole and separate use of Martha Sellers, independent of her husband, Phillip A. Sellers, and of all his marital rights, dated the eighth day of October, 1855; and thereupon Stephen W. Cole, a member of the court, is appointed to take the private examination of the said Sarah Sellers, who is a feme covert; and the said S.W. Cole, after having examined (privily) the said Sarah Sellers within the verge of said court, separate and apart from her said husband, Roland R. Sellers, touching her free and voluntary consent in the execution of said deed of conveyance, reports to the court that she acknowledged before him, when so examined, that she had executed the said deed freely, of her own free will and accord, and without any force, fear, or undue influence of her said husband, or other person, and that she now and still doth voluntarily assent thereto. All of which, on motion, is ordered to be recorded. S.W. COLE, M. C.

"It is further ordered that the deed itself, and the record of the above proceedings, be registered. J. WHITE, Clerk."

"STATE OF NORTH CAROLINA, October 27, 1885.

"Then this deed came into my hands, and was duly registered in the register's office, in Anson county, in Book No. 14, page 482.

"P. J. COPPEDGE, Register."

"STATE OF NORTH GAROLINA, November 28, 1885.

"Then this deed and certificate came into my hands, and were duly registered in the register's office of Anson county, in Deed Book No. 24, pages 270, 271, and 272. P.J. COPPEDGE, Register of Deeds."

The plaintiffs object to the introduction of said deed on following grounds: (1) Because the deed could not have been registered without an order therefor from the clerk of the superior court, there being no evidence offered outside of the deed and certificate, and the registry thereof, of the official character of S.W. Cole, a member of the county court, and of J. White, clerk of said court. (2) Because the probate was taken in 1854, while the deed shows its execution in 1855. (3) Because the words "her mark" do not accompany the X. (4) Because the register of deeds had no authority to add the word "Seal" to the registry after the name of Sarah Sellers, one of the alleged grantors, after the commencement of this action; the register of deeds having put the seal to the name of Sarah Sellers on the registry at the request of defendants' counsel. Objection overruled, and plaintiffs excepted.

There was some question as to whether or not there was a seal affixed to the name of Sarah Sellers at the time she executed the deed, but the evidence went strongly to prove that there was, just as it now appears, and the jury must have so found, and we so accept the fact to be. The deed was admitted in evidence. There was a verdict and judgment for the defendants, and the plaintiffs appealed to this court.

The first assignment of error cannot be sustained. The name of the juror challenged must, in the order as prescribed by the statute, (Code, §§ 1722 1727,) have been selected and placed on the jury-list on the first Monday in September of 1885. To render him eligible to sit on the trial as a juror at the spring term of 1886 of the court, when it took place, he must have paid the tax for the fiscal year next preceding the time when he was so placed on the jury-list, which was the fiscal year of 1884. It appears that he paid tax for that year. Hence the objection was unfounded. State v. Carland, 90 N.C. 668; State v. Haywood, 94 N.C. 847.

Nor do we think that the objections to the deed, and the probate and registration thereof, can be sustained. The deed was a conveyance for land situate in the county of Anson, and the makers (a husband and wife) acknowledged the execution of it by them before the late court of pleas and quarter sessions of that county, and the wife was privily examined by order of the court by a member thereof as to her free and voluntary consent in the execution of it. This acknowledgment and privy examination of the wife was ordered to be recorded and registered, and it was registered, as appears from the certificates of the proper officers. These certificates appear to be...