Howell v. . Hurley

AlleN, J., after stating the case: The contentions of the parties are stated at some length for the purpose of showing the importance to the plaintiff’s title of the paper of date 1858, issued to Jacob Lassiter. If it is not a grant the plaintiffs must rely altogether on adverse possession, and the evidence of such possession introduced tends to show title in the husband, Harris Johnson, as well as in the wife, Bethany, *800 if not to tbe exclusion of any claim in ber; and if Harris Johnson bad acquired title by adverse possession prior to 1890, a possession of like character by tbe defendants since then under color would confer tbe title on them. ’ It follows, therefore, that tbe peremptory instruction to tbe jury, which would be objectionable if tbe paper is a grant on account of tbo controversy as to adverse possession, is clearly erroneous if tbe paper is not a grant. Tbe Constitution, Art. Ill, sec. 16, leaves no ground for discussion as to tbe validity of tbe paper. It provides: “All grants and commissions shall be issued in tbe name and by tbe authority of tbe State of North Carolina, sealed with ‘The Great Seal of tbe State,’ signed by tbe Governor and countersigned by tbe Secretary of State,” and in Richards v. Lumber Co., 158 N. C., 56, tbe Court, speaking of tbe seal, says: “Tbe original grant is filed in tbe record. There is no question made by any one but that it is genuine. This is shown by tbe great seal of tbe State. When that appears, tbe signature of tbe Governor and Secretary of State on an instrument, thus issued from tbe Secretary’s office, are presumed to be genuine.” If, therefore, it is tbe mandate of tbe Constitution that all grants shall be sealed with “Tbe Great Seal of tbe State,” and if tbe seal furnishes tbe proof of tbe genuineness of tbe signatures of tbe Governor and Secretary of State, we cannot bold that a paper without a seal is admissible in evidence as a grant, when there is no recital of a seal in tbe paper and no evidence that a seal bad ever been affixed. This is tbe same principle which has been applied to deeds. Patterson v. Galligher, 122 N. C., 511; Fisher v. Owens, 132 N. C., 689. It follows that tbe paper was improperly admitted in evidence, and tbe instruction to tbe jury erroneous. New trial.