Barefoot v. . Musselwhite

MANNING, J. Upon tbe record presented to us, we do not think bis Honor’s ruling as to tbe effect of tbe recitals in tbe deed of D. H. McLean, commissioner, to Kinion Barefoot, can be sustained. No evidence was offered to bring tbe deed and its recitals under tbe operation of sec. 341, Eevisal. That section provides: “Tbe recitals, reference to, or mention of, any decree, order, judgment or other record of any court of record of any county in which tbe courthouse, or records of said county, or both, have been destroyed by fire, or otherwise, contained, recited or set forth in any deed of conveyance, paper-writing or other bona fide written evidence of title, executed prior to tbe destruction of tbe courthouse and records of said county, by any executor, etc., or commissioners appointed, etc., shall be deemed, taken and recognized as true in fact, and shall be prima facie *211 evidence of tbe existence, validity and binding force of said decree, etc., and shall be to all intents and purposes binding and valid against all persons mentioned or described in said instrument of writing, deed, etc., as purporting to be parties thereto, etc.” The constitutionality and validity of this section and the next section (342) cannot now be open to dispute. Hare v. Halloman, 94 N. C., 14; Everett v. Newton, 118 N. C., 919; Irvin v. Clark, 98 N. C., 437. But in order to invoke the aid of these sections, it is essential that the preliminary fact of the destruction by fire or otherwise of the courthouse or records must be shown; otherwise the benefit and protection of these sections are not available, and the recitals in the deed would be valueless as proof of the existence of the facts therein set forth, and incompetent as evidence to prove that the title of L. L. Barefoot was divested. If the preliminary fact required by the statute were proven or admitted, the proper remedy of the defendants to avail themselves of any irregularity in the action or proceeding would be by motion in the original action, and not by way of defense, and the prayer for affirmative relief — to have' the deed set aside as a cloud upon their title as is attempted in this action. This has been repeatedly held by this Court. Rackley v. Roberts, 147 N. C., 201, in which case the previous decisions of this Court are reviewed in an able and exhaustive opinion by Mr. Justice Walker. See also Hargrove v. Wilson, 148 N. C., 439. Upon the evidence appearing in the record, his Honor’s ruling was erroneous as to the effect of the deed and its recitals, and as it may have induced the plaintiffs to withhold evidence of the record itself of the action recited or its destruction by fire or otherwise, a new trial is ordered. New trial.