Deans v. . Pate

Clark, J.: The adjudication by the Clerk of the Superior Court of Wayne that “the foregoing instrument has been duly proved, as appears from the foregoing seal and certificate,” does not follow the very words of the. statute (The Code, §1246 [3] ) in that it does not adjudge that said probate is “in due form.” But it is intelligible and means substantially the same thing and “will be upheld without regard to mere form,” as was said in Devereux v. McMahon, 102 N. C., 284. The acknowledgment was before an officer authorized to take it and probate was in fact in due form. Tiie omission, therefore, of the Clerk to adjudge in just so many words that the probate was “in due form” when in substance he did so adjudge, was not sufficient ground to exclude the deed. The notary public used a seal as his own. The statute does not require that his name, or any name should be used on the notarial seal, though customarily the name of the notary does appear thereon. The seal appended by the notary to his certificate is presumably his, in the absence of evidence to the contrary. This is not rebutted by the mere fact that the notary signs his name “ Goo. Theo. Som-mer ” and the seal has on it the name of “ Theo. Sommer,” when the fact of the execution of the deed is adjudgéd to have been proved by such seal and certificate of the notary. *197 ' If the only interest the feme defendant had in the land was her contingent right of dower, her failure to- sign the deed or be privily examined would not affect the right of the plaintiff to recover at this juncture, since the grantor being a non-resident no right of homestead is involved. Should the feme defendant survive her husband her right to dower would then arise. The Code, §2106, !hd cases cited. Or, if she has other interest in the premises than the inchoate right of dower, she can assort it on the trial. In excluding the deed upon the above grounds the Court erred. The nonsuit must be sot aside to the end that there may be a . New Trial. '