Manufacturers' Finance Co. v. Amazon Cotton Mills Co.

Clakk, C. J. The sufficiency of the acknowledgment to the conditional sale retaining the title to the truck is the sole question. The instrument is full and in regular form in all respects, and was registered at the time the sale was made, as was required. C. S., 3312. Said contract begins with the heading “State of North Carolina, county of Davidson,” and specifically stipulates “The title to said property is to remain in the vendor until the notes are fully paid.” It is signed by the purchaser under seal, and has this acknowledgment: “Signed, sealed and delivered in the presence of . Subscribed and sworn to before me this 17 April, 1920. , In witness whereof I have hereunto set my hand and -seal this day and date above *409 written. R. L. Pope, N. P.” (Here follows tbe seal of tbe notary-public, witb tbe addition of tbe sentence, “My commission expires 16 October, 1921”), and tbe following: “North Carolina, Davidson County, in Superior Court. Tbe foregoing certificate of R. L. Pope, N. P., of Davidson County, attested by bis official seal, is adjudged to be in due form and according to law. Let tbe instrument and certificate be registered. Witness my band tbis 24 April, 1920. S. J. Smith, O. S. C.” Tbe paper was filed for registration on that same day and duly recorded as certified by tbe register of deeds. Tbe defendants, objected on tbe ground that said contract was improperly acknowledged and not entitled to registration. Tbe court sustained tbe objection, to which tbe plaintiff excepted and submitted to a voluntary nonsuit, which ruling is assigned as error. Tbe defendants contend that tbe acknowledgment is insufficient in that tbe venue is not stated; that tbe name of tbe grantor does not appear in tbe body of tbe acknowledgment, and tbe acknowledgment does not mention tbe instrument to which it relates; that tbe word “acknowledge” is not used; that tbe identical words used in tbe statute are not used in tbe acknowledgment, which is in tbe form of an affidavit. Tbe authorities are uniform that tbe certificate will be upheld if tbe place can be ascertained witb reasonable certainty by an inspection of tbe whole instrument. 1 R. C. L., 283; 108 A. S. R., 543, note. “It is a rule of universal application that a literal compliance witb the statute is not to be required of a certificate of acknowledgment, and that, if it substantially conforms to tbe statutory provisions as to tbe material facts to be embodied therein, it is sufficient.” 1 Cyc., 582. Tbe venue is stated in tbe beginning of tbe contract as North Carolina, Davidson County; tbe seal of tbe notary shows him to be a notary public of that county, and tbe clerk of tbe Superior Court certifies that be is such. Tbe failure to name tbe party in tbe certificate of acknowledgment is not material when, as here, it appears on tbe same paper and. refers to tbe instrument which is certified by tbe notary to be “subscribed before him.” 1 R. C. L., 284; 12 S. A. R., 927. Tbe use of the word “acknowledge” is not essential if its equivalent is used. Tbe officer certifies that this paper was subscribed in bis presence, which is a sufficient acknowledgment, and tbe fact that it is sworn to in nowise detracts from tbe sufficiency. Tbis was unnecessary and surplusage. In tbis State we have cases exactly in point. In Starke v. Etheridge, 71 N. C., 240, where a deed was proven before tbe clerk of tbe court, who wrote opposite tb*e witness’ name tbe word “jurat,” and tbe clerk testified that tbe witness did in fact acknowledge .the deed, tbis was *410 beld sufficient. Tbis case was cited and approved in Quinnerly v. Quinnerly, 114 N. C., 147, which held that the recital in the probate that the mortgagees “had procured the paper to be proven” was sufficient. In Devereux v. McMahon, 102 N. C., 287, where the certificate was simply that “the execution of the deed was this day proven,” it was held sufficient, the Court saying that if the essential elements appear the certificate will be upheld regardless of mere form. In Moore v. Quickle, 159 N. C., 130, the Court approved the above authorities and held that a presumption arises from the registration of the deed that the probate was by the proper officer and was properly proven by him. The same authorities are cited and approved in Power Corp. v. Power Corp., 168 N. C., 221. The simple question, therefore, is whether the above certificate of the notary public, who was certified to be such by the clerk of the Superior .Court (and which was on the instrument duly admitted to registration by the register of deeds, on the adjudication of the clerk) that the instrument had been “subscribed and sworn to” before him was equivalent to its being acknowledged. It certainly amounted to this, and even more, but like the young lawyer who swore to his demurrer, this did not invalidate it. Sir John Barrington (Judge) in his “Irish Sketches” says that an affidavit before him for resisting an officer in serving a writ, in the wilds of Connemara, averred that “the defendant poked his gun at the affiant through a crack in the door, and with an oath said that if the affiant did not leave there immediately the defendant would send the affiant’s soul to hell, which the affiant «1 ery believes he would have done.” The judge did not quash the warrant on account of the surplusage. The paper being duly certified by the notary as “subscribed” before him was a plenary acknowledgment, and the additional words “and sworn to” certainly could not make it invalid. Reversed.