Opinion
(June Term, 1845.)
1. Marriage settlements must be proved within six months after their execution, before a judge either of the Superior or Supreme Court or before a court of record, or otherwise they will be void as to creditors. Probate before the clerk of the county court, as in the case of deeds in trust, will not be sufficient.
2. An unauthorized registration is not even notice.
APPEAL from CRAVEN Spring Term, 1845; Settle, J.
No counsel for plaintiff.
J. H. Bryan and J. W. Bryan for defendant.
Detinue to recover a number of negroes, under the following circumstances. John F. Smith died in the year ____ leaving three daughters, his only children, and entitled, as his next of kin, to his personal estate. A petition was filed in the county court of Craven, the proper tribunal, to have partition of the slaves. The daughters, of whom Laura M. was one, were the plaintiffs, and stated in their petition that they were tenants in common of the slaves. During the pendency of the (519) petition a marriage settlement was made between Laura M. and James Shackleford, whereby the whole of her estate, both real and personal, was conveyed to the plaintiff in trust for the sole and separate use of the said Laura M. This deed was executed by James Shackleford, Laura M. Smith and the plaintiff, on 6 January, 1841, and on 16 February ensuing, was proved before James G. Stanly, clerk of the county court of Craven, and registered 1 March. It was again proved 23 March, 1842, before a judge of the Superior Courts, and under his fiat registered the following day. After the execution of this deed Laura M. Smith and James Shackleford were duly married, and upon a division of the negroes under the decree of the court, those now in controversy were allotted to Mrs. Shackleford, and were taken possession of by the plaintiff as her trustee. James Shackleford having become largely indebted to different persons, judgments were obtained against him and the executions levied on the negroes claimed in this case. At the sale made by the sheriff the defendant purchased them and took them into his possession. His Honor, being of opinion that the plaintiff was not entitled to recover upon the conveyance from Laura M. Smith, judgment was rendered for the defendant, from which the plaintiff appealed.
The parties have, unfortunately for their interests, considered the marriage settlement as a mere deed of trust, and accordingly had it proved before the clerk of Craven County Court, under the provisions of sec. 25, ch. 37, Rev. Stat. That section gives the clerks of the several county courts full power and authority to take the probate or acknowledgment of all deeds of trusts and mortgages at any time. This became necessary in consequence of the preceding section having limited the legal operation of such deeds, as to creditors, to their registration, and when registered they have, and can have, no relation back. (520) Great injustice, it was evident, must be done to persons endeavoring to secure their debts in this way, if they were compelled to go before a judge or wait the regular terms of the several courts, before they could have deeds registered. To make the law consistent, section 25 was incorporated into the act. The deeds of trusts therein mentioned are such only as are intended as securities for debts in the nature of mortgages, with power to sell. The deed we are considering, though a deed of trust, is not one for the securing of a debt, and is not embraced in that section, as is evident from the act itself. In section 29, provision is made for the probate and registration of marriage settlements. By it, all marriage settlements and other marriage contracts, whereby any money or other estate is secured to the wife or husband, are directed to be proven in the same manner as other deeds, within six months after the making thereof and registered within one month thereafter, and it declares all such contracts and settlements not so proved and registered void as against creditors. It is manifest, the Legislature intended in section 25 to create a special tribunal for taking the probate of the deeds therein mentioned, and as to marriage contracts and settlements, they are left, as to their mode of probate, to the general laws upon the subject of probate of deeds. That is, they must be proved, either before a judge of the Superior or Supreme Court, or in a court of record. Saunders v. Ferrell, 23 N.C. 101, is full authority in this case. The probate before Mr. Stanly, clerk of Craven County Court, was of no effect in law, and his fiat did not authorize the registration. Not until December, 1842, was the deed properly proved and registered, and this was near two years after its execution. It may be that the registration of the deed under the probate before the clerk was calculated to give as full notice as if it had been under a probate before a judge of the Superior or Supreme Court, at his chambers, but the Legislature has thought otherwise. They have pointed out the manner in which public notice shall be given. We have no power or authority to depart from that mode. To do so would be to legislate and not adjudicate. We have no discretion in the matter. (521) An unauthorized registration is not even notice. Latouche v. Duhaney, Sch. and Le Froy, 137. Frost v. Bucknam, 1 Johns. Ch. 288, and notice as to creditors in this court would be of no effect. Davidson v. Cowan, 16 N.C. 470. The marriage settlement is void as to the creditors of James Shackleford, and the slaves therein conveyed to the plaintiff are liable to his debts.
PER CURIAM. Affirmed.
Cited: Justice v. Scott, 39 N.C. 112; DeCourcy v. Barr, 45 N.C. 186; Long v. Crews, 113 N.C. 257; Barrett v. Barrett, 120 N.C. 130.