Investment Company v. . Wooten Wooten v. . Trust Co.

GlabKSON, J. The question involved: Is a deed of trust executed by a husband and wife rendered void by reason of the fact that the acknowledgment thereof by the makers and privy examination of the wife were taken by a notary public who was a member of the firm which negotiated the loan secured thereby and which firm was entitled to receive a commission out of the loan for its services, there being no evidence of fraud or undue influence? We think not. In White v. Connelly, 105 N. C., at p. 70, the following safe rule is quoted: “No one ought to be a judge in his own cause; and so inflexible and so manifestly just is this rule, that Lord Colee has laid it down, that 'even an act of Parliament made against natural equity, as to make a man a judge in his own case, is void in itself.’ ” We do not think this salutary rule applicable to the facts in this action: In Holmes v. Carr, 163 N. C., at p. 123, we find: “We have numerous decisions that an acknowledgment of a deed by the husband and wife and privy examination of wife taken before a justice of the peace, commissioner, or a notary is a judicial or at least a gutm-judicial act, and that a probate is void if taken before one who has an interest in the conveyance. White v. Connelly, 105 N. C., 65; Long v. Crews, 113 N. C., 256; Land Co. v. Jennett, 128 N. C., 4. But this must be a pecuniary interest in the property conveyed. In Gregory v. Ellis, 82 N. C., 227, Dillard, J., says: No judge, whether probate or other, could take jurisdiction of any cause wherein he was a party or otherwise had a pecuniary interest.” Speaking to the subject in Hinton v. Hall, 166 N. C., at p. 479, we find: “W. L. Gaboon had no pecuniary interest in the transaction, and *454 bis relation to Williams as brotber-in-law did not disqualify him as notary public to take the acknowledgment of Hall and the privy examination of Hall’s wife. Gaboon testified that of the $800 loaned Hall, $75 was paid to himself for a debt which Hall owed him and $300 for an indebtedness of Hall to Oahoon’s wife for a tract of land.” In Cowan v. Dale, 189 N. C., at p. 687, it is written: “A. N. Dale, the deputy clerk who probated the chattel mortgage, was one of the grantees therein and by reason of his interest was not qualified to exercise this particular judicial function. An officer who has a pecuniary interest in a deed or mortgage as a party, trustee, or cestui que trust is disqualified to probate it or take the acknowledgment of its execution. Long v. Crews, 113 N. C., 256; Lance v. Tainter, 137 N. C., 249; Holmes v. Carr, 163 N. C., 122.” See McAllister v. Purcell, 124 N. C., 262. From the authorities in this jurisdiction, the principle laid down ordinarily is to the effect that the notary must not have a pecuniary or financial interest in the property conveyed. Under the facts and circumstances of this case he had none, and the court below so charged the jury. We find No error.