Opinion
September Term, 1890.
Lease — Probate — Registration — Acknowledgment — Privy Examination — Clerk of the Superior Court — His Power to Order Registration in Another County — His Certificates — The Code — Evidence — Hearsay — Mandatory and Directory Statutes.
1. In an action for some cotton, or the value thereof, by lessors, who were the executor and executrix of the deceased landowner, and residing in different counties, they offered in evidence a lease for lands located in another county, acknowledged by the executor before the clerk of the Superior Court of the county where he resided, and acknowledged again by him and also by the executrix and lessee, after the bringing of this action, the executrix having become a feme covert since her execution of the lease, and her husband not becoming a party to any of the acknowledgments. There was no certificate of the clerk of the county where the executor resided, as required by section 1246 of The Code, subsec. 2: Held, (1) there was a valid registration, and the lease was rightly admitted in evidence; (2) the proof of instruments ordinarily prescribed for those executed by married women is not required for the registration of a lease executed before, but acknowledged after, coverture; (3) it was not essential that the acknowledgments should have been taken respectively in the counties where the grantors respectively resided.
2. Where it appears that the clerk appended to a lease offered for registration his certificate, it will be presumed, nothing to the contrary appearing, that it was in due form.
3. It is not essential to the validity of registration of an instrument proved in another county that the clerk of the county where the land lies should have adjudged that it had been duly acknowledged and proved in the same manner as if taken before him.
4. It is not necessary that a married woman should be privily examined as to the execution by her of a lease for land as executrix under the will of a former husband and when she was a feme sole.
5. The power to take probate carries with it the power to order registration.
6. When an acknowledgment or proof of the execution of a deed, or other instrument required or allowed to be registered, is taken by any other officer than the clerk of the Superior Court of the county where the land lies, it is not essential to the validity of registration that the latter should add an adjudication or order of registration to the certificate and fiat of the officer taking the probate.
7. The provisions contained in the last sentence of section 1246, subsection 2, that the clerk of the superior Court of the county where the land lies shall pass upon the acknowledgments taken before other clerks and officers named therein, is not mandatory, but directory.
8. The original papers in a case lately pending in the Superior Court are admissible as primary evidence, if properly identified.
9. What the custodian of such papers said to another witness identifying them is hearsay.
(438) APPEAL at September Term, 1890, of CRAVEN, from Womack, J.
(442) W. W. Clark and C. Manly for plaintiffs.
M. D. Stevenson for defendant.
We do not think that it is necessary to determine whether the acknowledgments by both of the lessors before the clerk of Lenoir, where the land was situate, was a sufficient compliance with the registration laws (The Code, sec. 1246, and the subsections) to make the registration valid. W. M. Darden, a resident of Greene, acknowledged the execution of the lease before the clerk of that county on 6 May, 1889, and C. P. Davis, the lessee, being a resident of Lenoir, made similar acknowledgment before the clerk of Lenoir on 14 May, 1889, and the fact that the other parties to the instrument appeared with Davis before the clerk of the latter county certainly does not vitiate the probate as to him, under subsection 2, section 1246, of The Code, if it would be otherwise sufficient. Hattie D. Kennedy, after she became the wife of W. H. Borden and removed to Wayne on 6 May, 1889, acknowledged the execution on her part before Grady, clerk (443) of the Superior Court of the county in which she then resided. Subsection 6 is as follows:
"When the proof or acknowledgment of a conveyance, power of attorney, or other instrument concerning the interest of a married woman in lands, is taken as in this chapter directed, no clerk of the Superior Court shall adjudge such conveyance or other instrument to be duly proved or acknowledged, unless the private examination of such married woman is taken according to the laws of this state and a certificate thereof attached to the deed or other instrument."
As the agreement was signed by Mrs. Borden when she was a feme sole, had the authority to enter into it in her representative capacity, and did not affect any individual interest held by her in land, it was not necessary that she should be privily examined, or that her husband should, in any way, signify his assent to her act, if, indeed, the instrument were admitted to be such as, under any circumstances, to make a privy examination necessary to its efficacy. Hodges v. Hill, 105 N.C. 130. She acknowledged the genuineness of her signature and the delivery of a paper executed when she had unquestioned power to act as executrix, and, in doing so, she was not continuing to act as executrix after coverture, but was merely furnishing the proof, in the mode prescribed by law, of an agreement previously made by her within the scope of her powers. Hence, her right to act as executrix after her marriage does not come in question.
But counsel contended that it was essential to the validity of the registration that the clerk of the county where the land lies (Lenoir) should have adjudged the lease to have been duly acknowledged or proved in the same manner as if taken or made before him, and, while the judge who tried the case below states that there was no certificate in the precise language of the statute, he also says, in another part of the statement, that said clerk appended a certificate when he took the acknowledgment of all the parties to the lease, on 14 May, 1889, after the lessors had appeared before the clerks of their respective (444) counties. The lease, with all of the certificates attached, ought to have been sent up as an exhibit, so that the Court here could see the form of the certificate instead of acting upon a statement of a conclusion of law as to the nature and effect of the paper signed by him and appended to the lease.
The parties, lessors and lessee, appeared before Bizzell, clerk, and, in the language of the statement, "acknowledged the execution of said lease, and, upon a certificate to that effect, said lease was registered on 14 May, 1889." In the absence of more specific information, we must presume that the officer, though he did not adjudge the lease to have been duly acknowledged or proved before the other clerks, in the same manner as if taken or made before him, did, in fact, adjudge that it had been duly acknowledged, and order it, with the certificates, to be registered, after the other two certificates had already been endorsed on or attached to it. We must presume, too, when the record does not show the contrary, that the officer did his duty and made his certificate in proper form. We do not deem it essential that he should have adopted the very language of the statute, and have adjudged that the lease had been duly acknowledged before each of the other clerks, if, acting upon the assumption that it had been, after the endorsement of two other certificates, he ordered the registration. The fiat presupposes the necessary approval of what had been previously done, and there is nothing in the record to rebut the presumption that a fiat constituted a part of Bizzell's certificate. The appellant might have insisted upon bringing up the lease, and, possibly, ought to have done so. He has no just ground of complaint, if the certificate is not in form what we assume the officer would make it.
But it is important that we should pass upon at least one of the questions that the counsel for both parties discussed before us and intended to present. Supposing that Bizzell did not, in (445) terms, order that any certificate should be registered with the lease but his own, and admitting, for the sake of argument, that he had no authority to take the acknowledgments of residents of Wayne or Greene as to conveyances or leases of land lying in Lenoir, we would still be confronted with the question whether the registration as to Mrs. Hattie D. Borden and W. M. Darden, upon the certificates and fiats (which we presume were appended) of the two other clerks, was valid. We think that the concluding sentence of subsection 6, section 1246, should still be construed as directory merely, notwithstanding the changes made by The Code since this Court construed section 2, chapter 35 of Battle's Revisal, in Holmes v. Marshall, 72 N.C. 39, and approved that construction in Young v. Jackson, 92 N.C. 144.
The acknowledgment of the lessors having been taken in accordance with the terms of the second, and that of the lessee in compliance with the first subsection of section 1246, by the clerks of the Superior Courts in the counties where they respectively resided, it is not material whether the fiat of Bizzell, in terms or by implication, passed upon the probates taken by the other clerks and ordered them to be recorded with his own certificate and the lease.
The probate as to each of the parties having been taken by a competent officer, the right to order the registration follows as an incident to the probate jurisdiction. Rodman, J., in Holmes v. Marshall, supra. says: "It would seem that a power to take probate naturally carries with it, as an incident, a power to order registration." We think that the most important and cogent reasons that led this Court in that case to sustain the authority of an officer who is empowered to take probate of deeds to add a fiat to his certificate still subsist. We therefore (446) hold that where an acknowledgment or proof of the execution of a deed or other paper required or allowed to be registered is lawfully taken by any officer other than the clerk of the Superior Court of the county where the land lies, it is not essential to the validity of its registration that the latter should add an adjudication or order of registration to the certificate and fiat of the officer taking the probate. The provision contained in the last sentence of the subsection (section 1246) (2), that the clerk of the superior Court of the county where the land lies shall pass upon the acknowledgments taken before the other clerks, judges or Justices of the Supreme Court, and determine whether they have taken due form or in the same manner as if he had taken them himself, was not intended to be mandatory, but directory merely.
A witness for the defendant produced, while upon the witness stand, a bundle purporting to be the original papers in a case lately pending in the Superior Court of Lenoir, wherein the plaintiffs in this action and one Oettinger were defendants, and counsel for the defendant proposed to ask him the question, "Where did you get these papers?" The purpose of the counsel in propounding the question was to identify the papers as records, by showing that the clerk of the Superior Court of Lenoir gave them to the witness as the original papers, according to their purport. In other words, the proposition was to show that the officer intrusted by law with the custody of them told the witness that they were original records in his office.
The original papers offered, if they were material and were properly identified, were admissible in evidence. A copy of this record, with a proper certificate from the clerk, is declared competent as evidence by section 1342 of The Code, but it was the inconvenience of producing and identifying the originals that necessitated the admission of exemplified copies. S. v. Voight, 90 N.C. 745. It is not necessary to decide whether the record was relevant or pertinent, since the testimony offered to identify it was merely hearsay evidence and insufficient (447) for that purpose. The custodian of the record might have identified it, if he had been introduced as a witness, but what he said to the witness in reference to the nature or character of the papers was no more competent than proof of the declarations of any other person in relation to them. Springs v. Schenck, 106 N.C. 165.
We conclude, therefore, that there was no error in the rulings of his Honor, to which exceptions were entered below, and the judgment must be
Affirmed.
Cited: Croom v. Sugg, 110 N.C. 260; Williams v. Kerr, 113 N.C. 310; Long v. Crews, ib., 257; Cochran v. Improvement Co., 127 N.C. 397; S. v. Knight, 169 N.C. 343; Sluder v. Lumber Co., 181 N.C. 70.