James & Mayer Buggy Co. v. Pegram

Avery, J. (after stating the facts). We think that The •Code (§ 632) confers upon Commissioners of Affidavits, regu- *543 lari}7 appointed, full authority to take the acknowledgment, within the State for which they are appointed, of the grantors of any deed conveying lands lying in this State, and, when necessary, to take the privy examination of a married woman, who is a grantor, joining her husband in the execution. When the certificate of such Commissioner is adjudged correct by the Clerk of the Superior Court of the county in which the land lies, and the deed is registered upon the order of the latter, the registration will be deemed valid for all purposes. If a deed of trust is so proven and registered in obedience to the order of such Clerk, after adjudication by him, it will be effectual to pass the title of land or other property conveyed in the deed to the trustee, and will create a lien, as against subsequent purchasers for value, or docketed judgments of later date, in favor of the cestui que trust named in the deed. It is not material in such Cases, whether the grantors, or either of them, are, at the time of the execution of the deed or deed of trust, residents of this State, or domiciled in the State in which the acknowledgment is taken. Counsel contended that the ruling of this Court, in the case of Decourcy v. Borr, Bush. Eq., 181, is decisive of the question raised in this case. We cannot concede the position to be tenable. The Court, in that case, construed section 2, chapter 21, of the Revised Statutes, as empowering-Commissioners of Affidavits to take the acknowledgments of non-residents only, upon the ground that the section declared that the acknowledgment should have “ the same power and effect,” &c., as if the same had been made “ before some one of the judges of supreme jurisdiction in any other State.” Section 5, chapter 37, of the Revised Statutes, authorizes judges of courts of supreme jurisdiction in other States to take the acknowledgment of grantors residing “in any of the United States other than this State.” The Revised Code was enacted at the next session of the General Assembly held after that decision was *544 rendered, and the law (as embodied in sec. 2, ch. 21, Rev. Code) seems to have been drawn with the purpose of enlarging the powers of Commissioners of Affidavits, and enabling them to take and certify acknowledgments of grantors of deeds, whether they were non-residents, or residents of this State temporarily absent from the State. The section last mentioned has been in force since its enactment by the Legislature of 1854-55, being almost the same as section 633 of The Code. The latter gives to acknowledgments, taken before Commissioners of Affidavits, “ the same force and effect, for all purposes, as if the same had been made or taken before any competent authority in this State.” It does not seem that any serious doubt has been entertained as to the true meaning of the law now in force since the case of Simmons v. Gholson, 5 Jones, 401 was decided. It has been considered as conferring upon a Commissioner of Affidavits the same authority to take the proof of executions or the acknowledgment of grantors, who may be in the State for which they were appointed (whether there temporarily or as residents), as to the execution of deeds conveying land or other property located in this State, that are required or allowed by law to be registered — that is, given by law to the Clerk of the Superior Court of the county in-which the land lies; but the Clerk has power to adjudge that the execution has been properly proven and order the registration, while the Commissioner is functus officio, as to any given deed, when he has attached to it his certificate as to proof or acknowledgment of its execution. Evans v. Etheridge, 99 N. C., 43; Simmons v. Gholson, supra. The plaintiff is not entitled to judgment against the defendants Buxton and Grogan. He has already recovered judgment against the defendant Pegram. Error. Reversed.