Opinion
(Spring Riding, 1806.)
It must appear that a deed from husband and wife was acknowledged by the husband as well as the wife.
Plaintiff deduced title to himself to the lands in question. Defendant offered a deed from one of the mesne owners, through whom the plaintiff claimed, which owner was a feme covert. The deed had no endorsement of a probate in court, or an acknowledgment by the baron; but in the minute docket of the county court there was an entry purporting that the deed was acknowledged, not saying by whom or in what court. There was also an endorsement on the deed, not stating in what county court or term, purporting that the feme acknowledged the deed in court, and was privately examined, not saying by whom.
I will ut res magis valeat quam pereat give a favorable construction to the endorsement. I will understand that she was privately examined, not that she was examined in court, for that would be a private examination in open court, which is absurd. What is stated may admit of the idea that she acknowledged the deed in open court, and was there privately examined. It is not said by whom she was examined. I will presume it to have been made in the usual mode, by some member of the court. The act does not require that it should be expressed by whom. I think, therefore, that the endorsement is sufficient in these respects. The objection that the deed was not acknowledged by the husband, nor proved to be his deed, is fatal. Had there been a statement upon the minutes that the husband (402) acknowledged the note endorsed on the deed, I should deem that sufficient; but here it is not said on the minutes that the husband acknowledged, but only, in general terms, that the deed was acknowledged. I need not give my opinion upon the point of the county or court not being mentioned in the endorsement, stating the wife's acknowledgment and examination. The wife cannot make a deed without the consent of the husband; and it does not appear that he has executed this deed with her.
So the deed was not read.
NOTE. — See Hunter v. Bryan, 6 N.C. 178; Sutton v. Sutton, 18 N.C. 582; Gilchrist v. Buie, 21 N.C. 346; Joyner v. Faulcon, 17 N.C. 386.
Cited: Burgess v. Wilson, 13 N.C. 310; Barfield v. Combs, 15 N.C. 518; Joyner v. Faulcon, 37 N.C. 390.