Opinion
(June Term, 1849.)
Where a deed of a married woman had on it only the following entries as to its probate: "State of North Carolina. Currituck County, February Term, 1832. Personally appeared Lydia Cook, wife of John Cook, and in open court acknowledged that she assigned the within deed of her own free will without any constraint whatever. Let it be registered. (Signed) W. D. BARNARD."
STATE OF NORTH CAROLINA. Currituck Sessions, February Term, 1832.
This deed from John Cook and Lydia to Samuel Ferebee, was exhibited and proven in open court by John L. Scurr, subscribing witness. At the same time Lydia Cook, the feme covert, personally appeared in open court, and being privately examined by W. D. Barnard, one of the court appointed for that purpose, who reported that the said Lydia Cook acknowledged the execution of said deed of her own accord and without any constraint whatever, etc. On motion, ordered to be registered.
S. HALL, C. C. C.
And there was also the following entry on the minute docket of the same term: "A deed from John D. Cook and wife, Lydia, to William C. Etheridge was proven as to John Cook and wife by the oath of John Scurr, a witness thereto, and her private examination taken in open court. Ordered registered": Held, that these entries afforded no evidence that the wife had been privily examined as required by law.
APPEAL from the Superior Court of Law of CURRITUCK, at Spring Term, 1849, Manly, J., presiding.
Heath for plaintiff.
Jordan for defendant.
Both parties claim under Lydia Cook, the wife of John (354) Cook. It is admitted that if a deed from Cook and wife to William C. Etheridge is valid to pass the title of Lydia Cook, then the plaintiff is not entitled to recover. If the deed be not valid, then the plaintiff is entitled to recover.
The deed is in the usual form, signed and sealed by both Cook and Lydia Cook, attested by John L. Scurr. Upon the back of the deed are the following endorsements:
STATE OF NORTH CAROLINA, Currituck County, February Term, 1832.
Personally appeared Lydia Cook, wife of John Cook, and in open court acknowledged that she assigned the within deed of her own free will, without any constraint whatever. Let it be registered. W. D. BARNARD, [J. P.]
STATE OF NORTH CAROLINA, Currituck County, February Term, 1832.
This deed from John Cook and Lydia Cook to Samuel Ferebee, was exhibited and proved in open court by the oath of John L. Scurr, subscribing witness. At the same time Lydia Cook, the feme covert, personally appeared in open court, and being privately examined by W. D. Barnard, one of the court appointed for that purpose, who reported that the said Lydia acknowledged the execution of the said deed of her own accord, and without any constraint whatever, etc. On motion ordered to be registered. S. HALL, C. C. C.
Registered, 15 May, 1832. THOS. S. LAND, P. R.
On the docket of the Court of Pleas and Quarter Sessions for Currituck, February Term, 1832, was the following entry: (355) "A deed from John D. Cook and wife, Lydia, to William C. Etheridge was proven, as to John D. Cook and wife, by the oath of John L. Scurr, a witness thereto, and the private examination taken in open court and ordered to be registered."
A verdict was returned for the plaintiff, subject to be set aside and a nonsuit entered should the court be of opinion that the deed was valid to pass the title of Lydia Cook. The court, being of that opinion, directed the verdict to be set aside and a nonsuit entered. The plaintiff appealed.
His Honor was of opinion that the deed was valid to pass the title of Mrs. Cook. With every disposition to give effect to the deeds of femes covert, we cannot concur in that opinion. The privy examination was not taken as the law requires.
Suppose W. D. Barnard was a member of the County Court, appointed to take the privy examination of Mrs. Cook, his certificate is not that she was privily examined by him, but that "in open court she acknowledged," etc.
So, the certificate of the clerk is inconsistent and repugnant, as endorsed on the deed. It says: "this deed from John D. Cook and wife, Lydia, to Samuel Ferebee was exhibited," etc. This is inconsistent, for the deed, upon which the endorsement is made, is a deed from John Cook and Lydia Cook, his wife, to William C. Etheridge. The description is wrong, or else the endorsement is made on the wrong deed.
Again, it says: "Lydia Cook, being privately examined by W. D. Barnard, one of the court appointed for that purpose, who reported that she acknowledged the execution of the said deed," etc. It is not stated that Barnard reported that (356) upon her privy examination before him "she acknowledged," etc. But suppose this is to be inferred from the certificate of the clerk: then it is repugnant, for the certificate of Barnard is that she made the acknowledgment "in open court."
Nor is it aided by the entry upon the docket (admitting that the entry can be called in aid), for the entry is that the deed was proven and "her private examination taken in open court." It is not stated by whom the examination was taken, and for aught that appears the husband was present.
We are of opinion that the deed was not valid to pass the title of Lydia Cook.
The judgment must, therefore, be reversed, and a judgment be entered for the plaintiff, according to the verdict.
PER CURIAM. Judgment accordingly.
Cited: Beckwith v. Lamb, 35 N.C. 403; Kidd v. Venable, 111 N.C. 537; Cook v. Pitman, 144 N.C. 531.