Summary
In Burgess v. Wilson, 13 N.C. 306, the manner in which, in every case, the private examination is to be conducted is so fully and distinctly pointed out that we content ourselves by referring to it.
Summary of this case from Jones v. LewisOpinion
(June Term, 1830.)
1. The certificate of the clerk of the County Court is evidence of the probate of a deed; but it is supposed to be the result of the facts proved by the record — and where it is contradicted by the record, it must be controlled by the latter.
2. By the act of 1715 (Rev., ch. 30), as explained and amended by the act of 1751 (Rev., ch. 50), a deed to convey the lands of a feme covert must, except in the case of her inability to attend, be acknowledged by the husband and wife in open Court. Proof by witnesses of the execution is not sufficient.
3. Under these acts the proper mode to bar the wife, she being able to attend, is for the husband and wife to acknowledge the deed personally in open Court, and then for one of the Court to take the private examination of the wife.
4. When the wife cannot attend, the deed must be first proved as to the husband, and then a commission issued to two or more commissioners to take the acknowledgment and privy examination of the wife.
5. Where a justice was directed to take the private examination of the wife before the deed was proved as to either the husband or the wife, who, upon making his report, proved the execution of the deed by the husband and wife, and also certified as to her private examination — held, that the deed was inoperative, and did not bar the heir of the wife.
EJECTMENT, tried before STRANGE, J., on the spring circuit of 1827. The lessors of the plaintiff claimed, as heirs at law of one Sarah Burgess; the defendant, under a deed from the said Sarah, and (307) Lemuel Burgess, her husband, to one Dempsey Sawyer; and the only question was whether that deed was acknowledged so as to bar the feme covert. Upon the deed was the following endorsement, signed by the clerk of the County Court: "Camden County Court, November Term, 1812. — The foregoing deed of bargain and sale from Lemuel Burgess and Sarah Burgess, his wife, to Dempsey Sawyer, was exhibited in open Court, and proved by oath of Caleb Perkins, a subscribing witness thereto. And on motion ordered, that Caleb Perkins, Esq., be appointed to take the private examination of the said Sarah Burgess, feme covert, touching her free consent to the execution of the said deed, and report thereon, under the direction of an act of the general assembly, in such case made and provided. Pursuant to said order the said Caleb Perkins proceeded to take the private examination of the said Sarah, separate and apart from her husband, and reported that she, the aforesaid Sarah Burgess, feme covert, acknowledged that she executed the said deed of her own free will and accord. All done in due form of law, and on motion, ordered to be registered."
To explain and control this certificate the lessors of the plaintiff produced the minutes of the County Court, from which the following are extracts.
"Monday, 2 November, 1812. On motion, ordered that Caleb Perkins, Esq., be appointed to take the private examination of Sarah Burgess, a feme covert, touching her free consent to the execution of a deed of bargain and sale to Dempsey Sawyer, of certain lands, etc."
"Tuesday, 3 November, 1812. A deed of bargain and sale for certain lands from Lemuel Burgess and Sarah, his wife, to Dempsey Sawyer, was exhibited in open Court, and proved by the oath of Caleb Perkins, a subscribing witness thereto. And further, said Caleb Perkins, agreeably to an order of this Court, reports that he proceeded to privately (308) examine said Sarah Burgess, touching her free consent to the execution of said deed, and that she says it was done with her free will, consent and accord."
Under the directions of his Honor a verdict was returned for the plaintiff, and the defendant appealed.
Gaston, for the defendant.
Hogg, for the plaintiff.
FROM CAMDEN.
The clerk's certificate on the deed states that it was proved by Mr. Perkins; and that the same person being appointed by the Court to take Mrs. Burgess' privy examination reported that she acknowledged that she executed it freely and of her own accord. From this it does not appear when Perkins proved the deed; whether before or after he had examined the feme; nor whether she acknowledged the deed at Court; nor whether the same was proved in Court, as to her or not. It is, indeed, to be prima facie inferred that the proof was as to both the husband and the wife, and that it was proved before Perkins was delegated to take her privy examination. The certificate of the clerk is evidence by the act of assembly. But it is not higher evidence of what the Court did than the record of the Court itself; nor so high. The certificate is made evidence because it is presumed the clerk will be guided as to the facts stated in it by the record, and that they will accord. They are often made after Court, and it would be dangerous to consider them as overruling the record when contradictory, or as not to be construed with it when reconcilable. Both documents may be read together legitimately. By reference to the record it is seen that in fact the acknowledgment of the feme was not taken in Court, nor was it proved as to either husband or wife until after Perkins had been appointed to take the privy examination, and had taken and reported it. He was appointed on Monday, and the deed was not proved (309) until Tuesday, and at the same time he made his report.
It is argued that under the acts of 1715 (Rev., ch. 3 and 7), taken together, everything was done which is required, and that the order of doing it is immaterial. The course of reasoning is that the validity of the deed of a married woman depends upon her privy examination, and not upon the acknowledgment in Court by herself or her husband. These last acts are held to relate only to the formal execution, and as testifying the husband's assent. That his acknowledgement in Court is sufficient under chapter 3; and that as by chapter 7 proof is made tantamount to acknowledgment, as far as formal execution and an order for registration are concerned, the proof by witnesses is all sufficient to authorize the wife to be privily examined, out of Court, by any justice of the peace. I do not think the two statutes are in pari materia. They relate to distinct subjects. Being passed at the same session it cannot be supposed that the legislature would adopt contradictory enactments on one and the same matter. But if these provisions had been contained in the same chapter each must be construed according to the subject matter. The last act provides generally for the proof and perpetuation of deeds, and enacts that they may be either acknowledged or proved. The third chapter relates exclusively to the particular subject of deeds made by husband and wife. The special ceremonies prescribed for these deeds are not dispensed with, because they are not required with regard to other deeds. The conveyance by husband and wife is a peculiar one, and stands by itself. We can, therefore, resort only to the third chapter for light on the subject. That requires the deed to be acknowledged in Court. But it is said that this may mean an acknowledgment by the husband alone; and ought to be so held, because the wife's acknowledgment in Court is superfluous, since that would be to require her to acknowledge it twice; for it is clear she must be privily examined by one member of the Court. I (310) think otherwise; and that the inference is irresistible that the acknowledgment in Court must be by all the persons whose deed it is. By the act the deed cannot be registered upon proof, but only upon acknowledgment. Surely it is of much more consequence that this acknowledgment should be that of the wife than of the husband; since it is her freehold that passes, and she it is who stands in need of the guardian care of a Court of justice to see her fairly dealt by. But whatever doubt might be raised on the act of 1715 is removed by that of 1751, Rev., ch. 50, which is in pari materia. The second section says that conveyances sealed by husband and wife, and by them personally acknowledged in the Court of the County, the wife being privily examined before some member of the Court, appointed for that purpose, etc., shall be good and valid. Here is a positive injunction that the deed shall be acknowledged by both, and that in Court. Superadded thereto is the provision for her privy examination by one magistrate. But this does not supersede the acknowledgment in Court, and vest the power in a single person to take the acknowledgment out of Court. It would be strange that no such authority is confided as to other deeds, which are to be proved or acknowledged in Court; and yet should be in the instance of deeds by a feme covert, which the legislature intend to surround by especial and cautious safeguards. It has always been understood that such deeds were to be acknowledged by the wife in open Court. The late Chief Justice TAYLOR explicitly lays it down so, in Whitehurst v. Hunter, 3 N.C. 401. It is true that the privy examination is not in open Court; for that would be an absurdity in terms. But it is to be within its verge, as it were; and by a justice of the peace — not by virtue of his office, but as "a member of the Court." It might be by the whole Court; but for convenience's sake it is permitted to (311) one. After open confession in Court she is then to be examined, when in privacy, and with the self-collection which a timid female, in the presence of a crowd and overawed by the authority of her husband, might not be able to command in public, that she may have an apportunity [opportunity] of retracting her deed after her interests have been weighed by her and her rights explained by an intelligent and upright judicial officer. This being done all at once, there is not so much apprehension, though certainly some even here, of malversation in the examining magistrate. The danger of immediate detection would subdue his disposition to aid in the undue machinations of a cruel husband. But the facility for practicing abuses on the wife would be great indeed if the trust of receiving her acknowledgment were reposed in a single justice of the peace, as matter in pais.
The two methods do not differ then more in form than in substance. It is true that the acts authorize a Judge of the Superior Court to take the acknowledgment of the husband and wife, and the privy examination of the latter; and this being to be done by one person, the whole is necessarily one act. It has been seriously doubted by respectable lawyers whether the construction of the statute does not require this to be done in Court. But the usage to the contrary has been so uniform and long that it cannot now be questioned. But the law very properly relies more upon the intelligence and integrity of the high judicial officers selected by the legislature from the whole profession than on any single inferior magistrate of a county. But my own practice has always been to take the acknowledgment of both the husband and wife together, and immediately after to examine her privily. I never take the acknowledgment of the wife first, nor of the husband, until the deed purports to have been executed by the wife. This I have done upon the idea that there is a peculiarity in their deed which rendered it necessary. In others each party acknowledges the deed as his own. But as (312) the validity of the wife's deed depends not only upon her husband's executing it as his own, and upon her freely executing it also, but likewise upon her having so executed it by the husband's consent, it has occurred to me that they are to acknowledge it as their deed, and not simply as his or her deed. Be this as it may, it is clear that it ought to be fully executed before it is acknowledged or proved as to either. For by the third and fourth sections of the act of 1751 provision is made for the case of a woman who cannot personally travel to Court, when, upon proof of its execution in Court, or on the acknowledgment of the husband, a commission is to issue to take her acknowledgment. This recites that "whereas F. G. hath produced a deed made to him by H. I. and K., his wife, and procured the same to be proved (or acknowledged by the said H. I.) in the Court, etc." Now, unless the wife had before executed it the deed could not be produced, nor be said to be made by them — much less proved.
In the case before us no deed was brought into Court until the day after the Court took the first order on it; and by possibility it may have been executed by the wife without the privity of the husband. The provisions of these two sections likewise prove the necessity of an acknowledgment in Court, except when a commission issues. For under the second section the magistrate, after her acknowledgment, is to examine her "whether she doth voluntarily assent thereto." But when the commission issues it is "for receiving the acknowledgment of the wife," which had not been previously given. This change of phraseology evinces a difference in office. The commission also is to be directed to two or more, and is to issue only when the wife cannot travel to the Court. This shows that the power of taking the acknowledgment of the deed was a greater one than the legislature was willing to confer upon a single subordinate magistrate. And, further, that the acknowledgment in Court is to be dispensed with, not for any trivial inconvenience, but only for necessity — when the wife is kept away (313) by age, sickness, or residence abroad.
The provisions of the statutes seem therefore plain and precise. The deed is to be acknowledged by both of the parties in Court, except in the single case of a commission issuing, as provided in the latter clauses of the act of 1751. There seems to be no reason for relaxing the provisions of the statute by a liberal construction. The scrupulous regard with which the Courts of Westminster search into the motives of a married woman for suffering a recovery or acknowledging a fine is worthy of all praise and imitation. We but follow their example in holding to the letter of our law. It is true the acts were passed to facilitate alienations by married women, but not to encourage them, and especially not to furnish temptations nor opportunities to the husband to extort from the wife a conveyance, which he might do if a public as well as a private exhibition of the instrument were not required. The presumption of the law, that the will of the wife is subdued to that of the husband is, so far as regards the disposition of her estate at least, but too fully verified by our experience. Every ceremony, however formal, which has the least tendency to interpose the protection of the law, or the advice of an additional judicial character, ought to be adhered to, substantially and literally.
PER CURIAM. No Error.
Cited: Barfield v. Combs, 15 N.C. 518; Fenner v. Jasper, 18 N.C. 37; Ives v. Sawyer, 20 N.C. 181; Gilchrist v. Buie, 21 N.C. 359; Jones v. Lewis, 30 N.C. 73; Pierce v. Wanette, 32 N.C. 455; Malloy v. Bruden, 88 N.C. 308; McGlennary v. Miller, 90 N.C. 219; Wynne v. Small, 102 N.C. 136; McKaskill v. McKinnon, 121 N.C. 222; Lumber Co. v. Leonard, 145 N.C. 349; Bryan v. Eason, 147 N.C. 291.
Distinguished: Joyner v. Faulcon, 37 N.C. 390, 391; Etheredge v. Ferebee, 31 N.C. 317; Pierce v. Wanette, 51 N.C. 167; Kidd v. Venable, 111 N.C. 539.
(314)