Not overruled or negatively treated on appealinfoCoverage
Supreme Court of North CarolinaJun 1, 1844
26 N.C. 368 (N.C. 1844)

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(June Term, 1844.)

The acts of officers de facto, acting openly and notoriously in the exercise of the officer for a considerable length of time, must be held as effectual, when they concern the rights of third persons or the public, as if they were the acts of rightful officers.

APPEAL from Bailey, J., at Spring Term, 1844, of GATES.

No counsel for plaintiff.

A. Moore and Iredell for defendant.

Ejectment. The plaintiff deduced a title from the State to one Drew Welch. He then showed a judgment in Gates County Court, at the instance of Pierce Co., against the said Drew Welch, an execution thereon, levied on the land described in the plaintiff's declaration, and the sheriff's deed therefor to the lessor of the plaintiff as the purchaser at the execution sale. The defendant offered in evidence a deed of trust, executed by the said Welch, by which he conveyed all his property, including the said land, to a trustee, for the benefit of certain creditors. The deed of trust was executed, duly proved before the clerk, and handed over to the person acting as Register of Gates County, and actually transcribed by him upon the books of the Register's office of Gates County several months before the rendition of the judgment above mentioned. He also proved that the trustee sold the premises in dispute, by virtue of the said deed of trust, and that they were purchased by the defendant. The plaintiff then offered in evidence the records of the county court of Gates, from which it appeared that a May Term, 1829, a majority of the justices being then on the bench, the following order was made in relation to the appointment of a register to-wit: (369) "John Walton, Esquire, was declared to be elected Public Register for the County of Gates. Ordered that he enter into bond, with sureties as the law directs." It also appeared that Walton at that term entered into bond as register of the said county, with sufficient sureties. At May Term, 1836, four justices being on the branch, the following order was made, to-wit: "Ordered, that John Walton renew his bond as register for this county, agreeably to law, and give H. Bond and T. Walton for securities." And it appeared that Walton at that term entered into bond as register, with the required sureties. It was proved on the part of the defendant that the said Walton had discharged all the duties of register of said county from the time of his first appointment in 1829 up to the present time and that he had in every respect acted as register since his original appointment, and that no other person had been engaged in the discharge of the duties of the office.

Walton was the person who registered the deed of trust.

Upon this evidence it was insisted on the part of the plaintiff (1) that the appointment of Walton terminated at the expiration of four years from his original appointment, by virtue of the act of Assembly applicable to such cases, and that all his acts since the expiration of his official term under the original appointment were wholly void, and that therefore the deed of trust had never been duly registered, and from the records that Walton took the oaths prescribed by law for his qualification as register, and therefore he could not legally enter upon the discharge of the duties of the office.

The defendant insisted that Walton was duly appointed register, and by virtue of his appointment in 1829 and his giving bonds he was invested with the office; that his acts as register were valid until the office was declared to be vacant by judicial proceedings, properly instituted for that purposes; and that, being recognized as the officer, and engaged in the discharge of the actual duties of the office, he (370) was the register de facto, and his official acts could not be treated as nullities in any proceedings by which their validity was questioned, incidentally.

His Honor ruled that Walton had a valid appointment under the order of the county court of Gates at May term, 1829, and that it was not necessary the record should show that he had taken the prescribed official oaths, but that this appointment expired by limitation of law at the termination of four hears from the time it was made, and that, without a new appointment, according to the act of Assembly, which would be valid itself, all his official acts were null and void; that as no valid appointment of Walton to the office of register had been made since 1829, the deed of trust under which the defendant claimed had not been registered when the lessor of the plaintiff obtained title.

Under these instructions, the jury returned a verdict for the lessor of the plaintiff, and the court rendered judgment accordingly, from which the defendant appealed.

This case, we think depends on the same principle on which we decided Burke v. Elliott, ante, 355, and it would seem as if there could be no case to which that principle could be more properly applied or which could more clearly show its soundness and necessity. The principle is that the acts of officers de facto, acting openly and notoriously in the exercise of the office for a considerable length of time, must be held, as effectual when they concern the rights of third persons or the public as if they were the acts of rightful officers. The general reasons for the position and the authorities in support of it need not be here repeated, it being sufficient to refer to them as given in the opinion delivered in the case cited. It may be observed, however, that those reasons have a peculiar force in their application to the office of register and to the circumstances of this case. Under our registry laws, (371) that office is one of absolute necessity to the citizen; and, in reference to mortgages and deeds of trust (under a deed of which latter kind the defendant claims), the office is one of indispensable daily necessity, for such securities have no legal efficacy until and only from registration. Rev. Stat., ch. 37, sec. 24; Fleming v. Burgin, 37 N.C. 584. The Legislature, sensible of the deep concern the business of the country had that the office of register should be constantly filled, has endeavored to make provisions to that end which it was supposed, would be completely effectual.

It confers the power of appointing on the county court of each county (which sits four times a year), and imposes it on that body as a duty to make the appointment, from time to time, when the office may become vacant by the expiration of the time for which an appointment was before made, or by death, resignation, or otherwise. More than that, it is enacted (Rev. St., ch., 98) that if a vacancy shall arise in this office by death or otherwise in the interval between the county courts, three justices of the peace may appoint a register and take his bond and swear him in, and that the person so appointed "shall hold the office until an appointment shall be made by the county court." When the general necessity for this office is considered, and the legislative anxiety to have one at all times provided is thus seen, the community has a right to except that the office will be applied for, and that those who have the power will confer it on some person. And when the same person is seen in the continued and undisturbed exercise of the office, rightfully beginning, beyond a doubt, and continuing for fourteen years, and embracing services for nearly every man in the county, probably, and for many of the citizens numerous acts of service, such a possession of such an office cannot be treated as wrongful and illegal, so as to make his official acts void as between third persons, without violating the public faith, apparently plighted to the citizen, that this person is rightfully in office, and without visiting with he most ruinous consequences a mistake of (372) the party which was induced by the acquiescence of the public authorities themselves in the alleged usurpation of one of the public offices. We are happy in finding a well settled and ancient rule of law which enables and requires us to prevent such private losses and general mischief.

PER CURIAM. Venire de novo. Cited: S. v. Robbins, 28 N.C. 26; Mabry v. Turrentine, 30 N.C. 205; R. R. v. Johnston, 70 N.C. 350 Threadgill v. R. R., 73 N.C. 179; Norfleet v. Staton, ib., 550; S. v. Lewis, 107 N.C. 972; Van Amring v. Taylor, 108 N.C. 200; S. v. Davis, 109 N.C. 882; Hughes v. Long 119 N.C. 655.

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