Holmes v. . Carr

Olabk, C. J. Tbe plaintiffs except to tbe admission of a deed from them to T. "W. Carr, tbe father of defendants, on tbe ground tbat tbe probate was improperly taken by W. Gr. Carr, tbe son of tbe said T. "W. Carr, as justice of tbe peace. Said probate was taken by.bim in 1894, and at tbat time be bad no interest in tbe property to wbicb be succeeded, together with tbe other defendants, as heirs at law of their father, T. 'W. Carr, who died in 1903. ¥e have numerous decisions tbat an acknowledgment of a deed by tbe husband and wife and privy examination of.wife taken before a justice of tbe peace, commissioner, or a notary is a judicial or at least a gutcisi-judicial act, and that a probate is void if taken before one who has an interest in tbe conveyance. White v. Connelly, 105 N. C., 65; Long v. Crews, 113 N. C., 256; Land Co. v. Jennett, 128 N. C., 4. But this must be a pecuniary interest in tbe property conveyed. In Gregory v. Ellis, 82 N. C., 227, Dillard, J., says: “No judge, whether probate or other, could take jurisdiction of any cause wherein be was a party or otherwise bad a pecuniary interest But in this case W. G-. Carr, tbe justice of tbe peace, though be has since acquired an interest in tbe property by inheritance, at tbe time of tbe conveyance bad ño interest, either vested or contingent, in tbe property conveyed. His father might have sold it, or have devised it. Tbe mere fact of bis relationship to one of tbe parties to tbe conveyance does not affect tbe validity of tbe probate of tbe deed by him. In McAllister v. Purcell, 124 N. C., 262, this question was directly presented, and tbe Court said: “There is no principle of law, nor precedent, wbicb invalidates tbe acknowledgment and privy examination taken before an officer who has neither any interest in tbe instrument, nor is a party thereto, simply because be is related to tbe parties.” *124 Tbe land belonged to Richard Jones, who died in 18 73, leaving Mabala Jones, his widow, and Sarah Holmes, the plaintiff, his , daughter, who partitioned the land between them, and they went into possession of their respective shares. In 1894, while Mahala Jones was still living, Sarah Holmes and husband conveyed to T. W. Carr the part of which she was in possession— the land in controversy. Subsequently Mahala Jones died intestate, without having disposed of her land, leaving Sarah Holmes her sole heir. The question whether the partition was valid or not is immaterial. Sarah Holmes had no title to the interest, whether a divided or undivided interest, which Mahala Jones owned in the land at the time of the deed; yet Sarah Holmes, though a married woman, is estopped by her deed, and' the subsequent devolution of her mother’s title on her by descent “feeds the estoppel.” Mordecai’s Lectures, 785; Zimmerman v. Robinson, 114 N. C., 49. The other exceptions require no discussion. No error.