Tatom v. . White

MekriMON, J. (after stating the case). That Hall was a deputy, might be proven by himself, or other witnesses who knew the fact that he was recognized and acted as deputy, and as nothing to the contrary appeared, the presumption was that he was duly appointed and sworn, and had author *458 ity as a deputy clerk. Evidence that a person acted as a public officer, and that he was known as such, is prima facie evidence of his official character, without producing his commission or appointment. All who have acted and act as such officers are presumed to have been duly appointed to the offices each professes to hold until the contrary appears, and it is not material how the question as to official character arises, whether in a civil or criminal action, nor whether the officer is or is not a party to the action, unless being plaintiff he unnecessarily avers his title to the office, or the mode of his appointment, thus putting directly in question his title or his appointment. In that case the proof must support the allegation. Such evidence is competent, and comes within a well-settled exception to the general rule that the best evidence must be produced. This exception is founded in general practical convenience. Swindell v. Warden, 7 Jones, 575; Cotton v. Beardsley, 88 Barb. 29; Rex v. Murphy, 8 C. & P., 297; McCoy v. Curtice, 9 Wend. 17; 1 Greenleaf on Ev. §§83, 92, and numerous cases cited in the notes. It is true, that at the time the deed in question was proven regularly, deputy clerks could not, nor can they nove take proof of deeds and other instruments requiring registration; but an erroneous impression prevailed then and before that time, that they and the Judges of the Courts had authority to do so, and in many instances they undertook to exercise such authority. This was attributable to confused legislation on the subject of the probate of deeds and other instruments, and the fact that such officers were invested with such power before the present statutes on that subject were enacted. To cure errors in this respect, and render effectual many official acts done by honest misapprehension of the law, the Legislature enacted (The Code,§1260; Acts 1871-'72, ch. 20, §1), that “ Whenever the Judges of the Supreme or Superior Court, or the Deputy Clerks of the Superior Court, mistaking *459 their powers, have essayed previously to the twelfth day of February, one thousand eight hundred and seventy-two, to take the probate of deeds and the privy examination of Jemes covert, whose names are signed to such deeds, and have ordered said deeds to registration, and the same have been registered, all such probates, privy examinations and registrations so taken and had, shall be as valid and binding to all intents and purposes, as if the same had been taken before, or- ordered by, the Clerk of the Superior Court, or other officer having jurisdiction thereof.” This statutory provision is remedial in its nature and purpose, and plainly embraces such probates and registrations as that now under consideration. The certificate of proof of the deed and the order of registration, were made before the day specified in the statute, and in pursuance of the order, it was registered before the enactment of The Code, which embraced the re-enactment of the original act mentioned. As we have said, the statute is remedial, and it must receive such interpretation as will effectuate the remedial purpose. It does not, therefore, imply that the registration must have been before the day specified. The scope of the purpose embraces any registration done in such cases before the enactment of The Code. The Legislature has power to pass, repeal or modify registration laws from time to time. Over the subject of registration it has complete control, and the exercise of its power cannot be deemed an interference with vested rights. The statute set forth above, simply renders effectual, acts purporting to be official, and which served the purpose of the law in giving notice of the deed and the transaction it was intended it should be evidence of. Tabor v. Ward, 83 N.C., 291 ; Alexander v. Commissioners, 70 N. C., 208; King v. Foscue, 91 N. C., 116; Holmes v. Marshall, 72 N. C., 37; Young v. Jackson. 92 N. C., 144. *460 The witness Vho purported to attest the execution of the deed, testified on the trial, that he “ witnessed the signing of the deed,” but “ did not sign his name a subscribing witness-thereto,’i — one of the defendants subscribed his name as witness for him. He further testified that he “ don’t write— can read writing a little.” An attesting witness by his written signature identifies himself with the deed, or other instrument as the case may be, as such witness, and he thereby declares that he knew and saw the party making it execute it, or that such party acknowledged before him that he had done so. He does an important act. lie ought to be able to write his name — to know his handwriting, and sufficiently intelligent to understand why he writes his name as such witness. But a person who cannot write is not necessarily inelligible — unfit—to be a witness. He might be able to make a mark or device that he would know and recognize himself easily, and that others might know, just, as they might know the handwriting of any person. Most assuredly such a person would be a good or sufficient attesting witness. State v. Byrd, 93 N. C., 624. But granting, in this case, that the attesting witness was objectionable and insufficient, the registration made upon the certificate of probate, and the order of registration, was not therefore void. The deputy clerk recognized and examined him as the attesting witness, and made the order of registration. This order, though not regular, was not void, and it warranted the registration. Such registration was good — it served the purpose of the law, and gave notice of the deed, just as if the witness had written his name. As the witness was not properly an attesting witness, it was competent and proper — necessary if required, to prove the deed on the trial by any competent evidence as by the witness who purported to be the attesting witness. This was done, and this was sufficient. McKinnon v. McLean, 2 D & *461 B. 79. Thus it appears that the deed was sufficiently registered. We think, also, that the Court properly held that the plaintiffs could not be allowed to question the registration of the deed on the trial. They introduced and took benefit by it, without at first intimating any defect in or-objection to the probate. They were justly treated, as having waived any objection in that respect, and as concluded by such waiver. Very clearly the plaintiffs were not entitled to have the special instructions prayed for by them. We have examined the evidence sent up with care, and are satisfied there was none that the relation of attorney and client ever existed between John A. Richardson and Malcom Mclnnis, the maker of the deed in question; nor was there evidence of such relation between the latter and the defendant William H. White. While the law scrutinizes transactions between attorney and client as to the former, such relation must exist before the presumption of fraud arises as ■ against the attorney, in respect to transactions between him and another person. The mere fact that an attorney purchases a piece of property from an old man with whom he is on friendly and intimate terms, raises no presumption adverse to him in respect to such transaction. He may buy and sell just as other persons may do. And so also, he like others, may obtain property or valuable advantage from an old and infirm man by fraud and fraudulent practices, for which he may be called to answer in courts of justice, but he will stand on the same footing and be treated as other ordinary litigants. It is alleged that the maker of the deed mentioned was a very old and infirm man — that he was a lunatic and had not mental capacity to make a deed, and that the bargainees procured its execution by fraud: There was much evidence tending to prove these allegations produced on the trial by the plaintiffs, while on the other hand there was much of *462 the defendant’s, tending to prove the reverse. The issues in these respects, it seems, were the ones most strongly controverted. Indeed, the merits of the case turned upon them and the principal questions were those of fact for the decision of the jury. The Court in its instructions to the jury stated the law applicable with clearness and fairness. The plaintiffs “ excepted,” but specified no particular grounds of exception, nor did they assign errors. We discover none, certainly none of which they can justly complain. No error. • Affirmed.