Southern Spruce Co. v. Hunnicutt

AlleN, J. The Court might well decline to consider any of the exceptions in the record for failure on the part of the' appellant to comply with the rules in making the assignments of error. The records are increasing in size year by year, and the Court requires for its own convenience and in the interest of justice that the exceptions or assignments of error shall be stated at the close of the case on appeal, and that they should at least indicate the ground of the exception, without requiring the Court to search for it through the record. The rule is simple, easy to comply with, and one that counsel cannot waive without the consent of the Court. We have, however, examined the- exceptions principally relied on. In Withrell v. Murphy, 154 N. C., 89, Justice Manning, quoting from 1 Enc. L. and P., 963, states the rule in regard to the requirements to constitute a sufficient probate to a corporate deed as follows: “It must appear, when read in connection with the deed,, that the person making the acknowledgment was authorized to execute 'the instrument for the corporation; that he was known, or proved, to be the corporate official he represented himself to be, *207 and that he acknowledged the instrument to be the act and deed of the corporation. The substantial showing of the requisite facts is all that is required, and where the instrument purports to be the act of the corporation the certificate will not be held defective because it recites that the person who executed it in behalf of and under authority from the corporation, acknowledged it to be his act and deed, instead of that of the corporation.” Applying the above rule to the probate or certificate of the deed of the corporation, we find: First. That it was taken before the proper officer, a notary .public of Buncombe County, North Carolina; that the certificate recites that the instrument to which the proof was being taken was the deed of the Three M Lumber Company, a corporation, and said acknowledgment was made upon the oath and examination of G. W. Morris and Frank L. Mitchell. That Morris signed the deed, as vice president of the grantor company, and the said Mitchell attested it as its secretary. The certificate states that this officer, the .vice president, under oath, stated that G. W. Morris was the vice president of the Three M Lumber Company and that Frank L. Mitchell was its secretary and treasurer; that the seal affixed to the deed was the corporate seal of the company and that the same was affixed by the vice president by the authority of the board of directors, and that by such authority he signed it in the corporate name by himself as vice president. Morris further states that F. L. Mitchell was the secretary and treasurer of the company, and that’ said Mitchell signed his name in his presence in attestation of said deed. Frank L. Mitchell stated upon his oath that he .was the secretary and treasurer of said corporation and that G. W. Morris was its vice president; that he knew the corporate seal of the company, and that the same was attached to said deed by said Morris, its vice president, under the authority of the board of directors, and that the same was signed by said Morris under like authority, and that under the same authority he signed his name in attestation thereto. That said Morris signed said instrument in his presence. *208 Under tbe rule laid down in the case above cited, we are unable to see why the above certificate is not a substantial compliance with the requirements of the Revisal. The objection to the probate of the deed by Chambers, justice of peace, is equally without merit. He swears that he was then acting as a justice of the peace; and if so, his acts would be effectual as an officer de facto, although not an officer de jure (Hughes v. Long, 119 N. C., 52), and it is well settled that where the incapacity of an officer who takes a probate does not appear on the record, as in this case, one who takes under the grantee gets a good title. Blanton v. Bostic, 126 N. C., 421. The point made in the brief of appellant, that there is no evidence that the defendants were in possession of the land, is met by the allegation of possession in the complaint, which is not denied in the answer. The exceptions to evidence require no discussion, and they do not seem to be relied on in the brief. No sufficient excuse is presented for the delay in prosecuting the rights of the defendant under their bond for title, and the equity is barred upon the admitted facts. No error.