Wright v. Player

Decision Date31 January 1875
Citation72 N.C. 94
PartiesDOE on demise of CATHERINE WRIGHT v. THOMAS PLAYER.
CourtNorth Carolina Supreme Court
OPINION TEXT STARTS HERE

Where an infant feme covert acknowledged the execution of a deed, and her privy examination was taken before a Judge of the Superior Court: Held, that the deed was then a conveyance of record, and could not be collaterally impeached in an action of?? ejectment.

( Woodbourne v. Gorrell, 66 N. C. Rep. 82, cited and approved.)

CIVIL ACTION, Ejectment, commenced before the adoption of the C. C. P., tried before Cloud, J., at the December (Special) Term, 1873, of NEW HANOVER Superior Court.

On the trial below, it was admitted that the land in dispute was the property of the lessee of the plaintiff, being land owned by her at the time of her marriage with James Wright, and that he, her said husband, died before the commencement of this action.

On the ____ day of January, 1853, James Wright and Catherine, his wife, the lessor of the plaintiff, made a deed of conveyance of the land in dispute to McMillan and Davis, which deed was duly acknowledged and the privy examination of the wife taken, before his Honor, JNO. M. DICK, then one of the Judges of the Superior Courts, and the deed was duly registered.

On the 5th day of December, 1853, McMillan and Davis sold and conveyed the land to the defendent, by deed duly proved and registered.

The plaintiff offered to prove, that at the time of the execution by her, of the deed for the land to McMillan and Davis, and at the same time of her private examination before JUDGE DICK, she was an infant. And for the purpose of showing that she had never ratified the sale of said land, the plaintiff offered to prove further, that several years after the acknowledgment by her of the execution of the deed, and in the lifetime of her husband, in disaffirmance of her contract of sale, she took possession of said land, claiming it as her own; and continued in possession until she was ejected by the defendant, on certain proceedings before a Justice of the Peace, and that very soon after his death, she commenced this action.

His Honor rejected all this testimony upon the grounds, that the probate of the deed to McMillan and Davis, offered in evidence, was conclusive; and that the plaintiff could not be heard to say, that she was under the disability of infancy at the time she acknowledged the execution of the same before JUDGE DICK.

In submission to this opinion of his Honor, the plaintiff submitted to a non-suit and appealed.

Strange and Battle & Son, for appellant .

Smith & Strong, contra .

BYNUM, J.

Upon the trial, in the leading case of Woodbourne v. Gorrell, 66 N. C. Rep., 82, the plaintiff offered to prove, that at the time of her privy examination she was non compos mentis, and the deed was on that account void. In the case now before us, the plaintiff offered to prove on the trial, that she was an infant at the time she acknowledged the deed, and was privily examined. In the former case this Court held: 1. That the acknowledgment and privy examination, taken before a Judge, by our Statute, has the effect of a fine and recovery; 2. that a fine or recovery is a matter of record in England, done before the Chief Justices of the Court of Common Pleas in open Court, and that the verity of such record cannot be impeached.

In delivering the opinion of the Court the CHIEF JUSTICE says: “I am not able to see how the proceeding, if done before a Judge or the County Court, could be vacated by the wife, if in point of fact the examination was not separate and apart from her husband and she was subject to the influence of his presence, or if in point of fact, she was not of sound mind and could not voluntarily assent thereto. Possibly, where the examination is by commission, the wife might maintain a bill in equity, to cancel the deed on the ground of fraud, and a false certificate by the Commissioner, but it is perfectly certain that this assurance of title, and conveyance of record cannot be impeached collaterally, in an action for the land, as the plaintiff offered to do in this case.”

It is clear that Woodbourne's case is decisive of this, unless the effect of a fine or recovery, upon the rights of an infant, can be distinguished from the effect upon the rights of a person non compos mentis. Admitting the force of this, the counsel of the plaintiff have assumed that task, and filed a learned and able brief, to show the difference between the two cases.

Woodbourne's case was put upon the ground that when the Revised Statutes, chap. 37, sec. 9, entitled that, “all conveyances, &c., acknowledged, &c., shall be as valid in law to convey all the estate of the wife, in such lands, & c., as if done by fine and recovery or any other means whatever,” all conveyances so made, must have the effect declared in the Statute, and no other, and that the effect of a fine or recovery is, to constitute a conveyance of...

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3 cases
  • Lee v. Rhodes
    • United States
    • North Carolina Supreme Court
    • March 30, 1949
    ... ... impeached collaterally in an action for the recovery of the ... land. Woodbourne v. Gorrel, 66 N.C. 82; Wright ... v. Player, 72 N.C. 94 ...          In this ... connection it must be noted that there is a wide distinction ... between proof that ... ...
  • Piedmont Natural Gas Co. v. Day
    • United States
    • North Carolina Supreme Court
    • January 28, 1959
    ...674; Freeman v. Morrison, 214 N.C. 240, 199 S.E. 12; Best v. Utley, 189 N.C. 356, 127 S.E. 337; Ware v. Nesbit, 94 N.C. 664; Wright v. Player, 72 N.C. 94; Woodbourne v. Gorrell, 66 N.C. The defendants' claim would be defeated even if we treat the plaintiff's easement as unrecorded since it ......
  • Kidd v. Venable
    • United States
    • North Carolina Supreme Court
    • November 29, 1892
    ..." a deed by an infant wife, having the effect of a fine and recovery, may during her minority, but not afterwards, be impeached. Wright v. Player, 72 N. C. 94, followed. Appeal from superior court, Surry county; Armfield, Judge. Action by Nancy Kidd against Joshua Venable to recover certain......

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