Weston v. J.L. Roper Lumber Co.

• Decision Date: 11 September 1912
• Citation: 75 S.E. 800,160 N.C. 263
• Parties: WESTON et al. v. J. L. ROPER LUMBER CO.
• Court: North Carolina Supreme Court

75 S.E. 800

160 N.C. 263

WESTON et al. v. J. L. ROPER LUMBER CO.

Supreme Court of North Carolina

September 11, 1912

Appeal from Superior Court, Pasquotank County; Bragaw, Judge.

Action by C. P. Weston and another against the J. L. Roper Lumber Company. From a judgment of nonsuit, plaintiffs appeal. Reversed, and new trial granted.

The statutes validating defective probates and registrations are remedial, and must be liberally construed to embrace all cases fairly within their scope.

This is an action to recover a tract of land in Pasquotank county. The only question now presented is whether a deed from Enoch and Fred B. Sawyer to Cary Weston and Joseph Seguine, dated February 3, 1820, and offered in evidence by the plaintiff was properly excluded by the court. The deed was proven in the court of pleas and quarter sessions of Camden county, and recorded on April 3, 1821, in the office of the register of deeds of that county. A duly certified copy of the registry of this deed was on January 29, 1910, ordered to registration by the clerk of the superior court of Pasquotank county and recorded by the register of deeds in said county April 21 1910. This deed was a necessary link in the plaintiff's chain of title. The court having excluded the deed from the evidence and having held there was no sufficient proof of the original, the plaintiff excepted to the ruling, submitted to a nonsuit, and appealed.

Winston & Biggs, Ward & Thompson, and Meekins & Tillitt, for appellants.

W. B Rodman, W. M. Bond, and A. D. MacLean, for appellee.

WALKER J. (after stating the facts as above).

The general rule undoubtedly is that a deed must be registered in the county where the land it conveys is situated, registration taking the place of livery of seisin, attornment, or other ceremony which the law formerly required to pass title. Rev. St. c. 37, § 1; Rev. Code, c. 37, § 1; Revisal 1905, § 980. But as probates were sometimes taken by officers who had mistaken their powers, or who, having the power, had exercised it in the wrong way, and because deeds, owing to the uncertainty as to the boundry lines of counties, and perhaps for other reasons, had, in many instances, been registered in the wrong counties, the Legislature, with its usual wisdom, deemed it proper to validate such void or defective probates and registrations by a series of enactments, many of which will be found in the Revisal of 1905. Laws 1858-59, c. 18, as well as the Rev. Code, c. 37, § 29, had provided for just such a case as we have before us, but the defendant's counsel contend that as they were omitted from the Code of 1883 and the Revisal of 1905, and as the plaintiffs had not caused the registration in Pasquotank county of a certified copy of the registry in Camden county until 1910, they lost their right, under those acts, to have the deed registered in the former county, where the land lies, the Code, by section 3867, and the Revisal, by section 5453, repealing all public and general statutes not contained therein; but by section 3868 of the Code, and section 5454, such repeal does not "affect any act done, or any right accruing, or accrued or established, or any suit or proceeding had or commenced in any case before the time when such repeal shall take effect," and it may, perhaps, admit of doubt, under those sections, though we do not decide the question or intimate any preferential opinion in regard to it, whether it was intended that the Code and Revisal should operate as a repeal of the act of 1858-59 and the previous enactment in chapter 37, § 29, of the Revised Code.

It is sufficient for our present purpose that we consider Revisal 1905,§ 1009, which provides that "wherever the judges of the Supreme or the superior courts, or the clerks or deputy clerks of the superior courts, or courts of pleas and quarter sessions, mistaking their powers, have essayed previously to the 1st day of January, 1889, to take probate of deeds or any instrument required or allowed by law to be registered, and have ordered said deeds registered, and the same have been registered, all such probates and registrations so taken and had are validated." It must be conceded that our case is embraced by the words or terms of this statute; and, being within the letter, is it also within the spirit of the law? It is evident from the general scope of all the legislation upon this important subject that it was intended to ratify and validate what had erroneously been done by officials having general or special powers of probate and registration, so that the essence of what was done should not be sacrificed to the form of doing it, and to save rights of property where no substantial departure from legal requirements appeared, but merely an irregularity which could be cured without injury to the rights of others. The object of probate and registration in the county where the land lies was intended to give notice to creditors and purchasers for value, or others whose rights might otherwise be seriously and unjustly impaired by the deed, and this idea is emphasized in the act of 1885, c. 147, Revisal, § 980, which differs somewhat in phraseology from prior enactments relating to the same subject, viz., act of 1715, c. 7, Rev. Statutes, and Rev. Code, c. 37, § 1.

A deed is good and valid between the parties thereto without registration, and may be proved on the trial as at common law. Warren v. Willeford, 148 N.C. 474, 62 S.E. 697; Pells Rev. 980, and note.

In view of these settled principles, we may the more easily construe section 1009 of the Revisal, with reference to the registration of a deed in the wrong county, upon a probate taken according to law, or which, though originally void, has been validated by the Legislature, but, before doing so, one position of the defendant requires attention. It is argued by counsel that section 1009, which was taken from the Laws of 1871-72, c. 200, as amended by Acts of 1889, c. 252, and Acts of 1891, c. 484, does not refer to probates taken by the county courts, but to those of the clerks of said courts, but in our opinion the probates of the county courts were intended to be validated. The phraseology and punctuation, as well as the grammatical construction, of the statute, lead us to...