Nicholson v. Eureka Lumber Co.

IIoke, J. Both parties claimed title to the land in controversy under Ruel Windley, deceased, the plaintiff by deed purporting to be from Sadie Delany and her husband, the said Sadie, née Sadie Tooker, being the grandchild and only heir at law of James Windley, to whom Ruel Windley had devised it. This deed, admitted in evidence over defendant’s objection, was from Sadie Delany and her husband, Thomas, to P. A. Nicholson, plaintiff, bore date of 12 December, 1908, and had been duly registered in Beaufort County on acknowledgment formally correct as follows: State'oe Texas — MoLeNNAN CouNty. I, Delia Sadler, a notary public in and for the said county of McLennan, do hereby certify that Thomas Delany and wife, Sadie Delany, personally appeared before me this day and *35 acknowledged the due execution of the within deed of conveyance; and the said Sadie Delany being by me privately examined, separate and -apart from her said husband, touching her voluntary execution of the same, doth state that she signed the same freely and voluntarily, without fear or compulsion of her said husband or any other person, and that she- doth still voluntarily assent thereto. ■ Witness my hand and notarial seal, this the 14th day of December, 1908. .. .. Delia SadleR, Notary Public, McLennan Gownty, Texas. It was chiefly urged for error by defendant that there was no testimony amounting to legal evidence that the Sadie Delany, grantor in said deed, was the Sadie Delany, née Tooker, who was the grandchild and heir at law of James- Windley, deceased; but on the facts in evidence the position cannot be sustained. On this question, a witness, William Draper, testified in substance that James Windley was dead and all of his children had died without descendants except Lovey, who married one Captain Tooker. That she died leaving two children; one was drowned in a millpond and Sadie Tooker, the surviving child, married Thomas Delany, and was how in Waco, Texas. That he had received several letters from her and answered' them, which he had at home, the letters being about this land. There was other testimony from this witness as to this 100 acres, the land in controversy, which was the James Windley land, and as to its correct location. On cross-examination the witness stated that this Sadie Tooker was named Sadie Delany before she ever left Bath, N. • 0. That he had never seen her husband and had never seen Sadie Delany write in her life. Didn’t know her husband except what was said about him in these letters. “That he answered the letters he received from Mrs. Delany and received replies from her; that he got the replies out of the postofB.ce, and had them at home now.” A motion to strike out-this testimony was properly overruled; and the identity of name, the subject-matter of the correspondence, and attendant circumstances, were, in our opinion, amply sufficient to justify the conclusion, as stated, that the grantor in *36 plaintiff’s deed and Sadie Delany, tbe sole surviving grandchild and heir at law of James Windley, were one and the same person. Freeman v. Loftis, 51 N. C., 524; 1 Greenleaf, see. 43a (16th Ed.); Lawson on Presumptive Evidence, p. 309; 16 Cyc., p. 1055. It was further objected that the acknowledgment is invalid because taken by a woman. The only evidence that the officer taking this acknowledgment was a woman- is the fact that the certificate is signed “Delia Sadler, a notary public in and for said county of McLennan,” and in favor of the stability of titles and the regularity of judicial proceedings we might, if required, rest the case here, on the position that it does 'not sufficiently appear that this notary was a woman, but whether man or woman, we think it entirely safe to hold that, having-been entrusted by the State of Texas with a notarial seal and having acted and professed to act in that State as a notary public, it will be assumed that she was rightfully appointed to that office and that she acted rightfully in taking this probate, until the contrary is made to appear. As an open question, this would be so from convenience, and the position is, we think, in accord with authority. Piland v. Taylor, 113 N. C., 1; Jones on Evidence, sec. 41 (2d Ed.); Elliott on Evidence, sec. 103. The controversy between these litigants was really one of boundary, dependent largely on the correct location of plaintiff^ deeds, “Beginning on an oak at or near the head of Ashe Branch” and thence various specified courses and distances inclosing the property. Under a comprehensive charge the jury have established the location as contended for by plaintiffs, and after careful examination we find no good reason for disturbing their verdict. The objection made, that the court in its charge ignored or disregarded evidence tending to show that a proper allowance for the variation of the magnetic needle would give the land a somewhat different placing, is without merit. It would seem from the testimony that the theoretical variation was controlled to some extent by an old and marked line, and, further, there *37 are no data in tbe record from wbicb tbe Court could determine that any substantial change in tbe location would have resulted. Apart from this, a perusal of bis Honor’s charge will disclose that be directed tbe jury to make tbe allowance for tbe variation wbicb tbe facts would require, tbe language of tbe court in reference thereto being in part as follows: “Tbe burden is upon tbe plaintiff to satisfy you by tbe greater weight of tbe evidence that tbe defendant has cut within their lines, tbe course of wbicb will be determined by tbe lines of tbe grant and tbe xiroper variation for tbe difference in time.” We find no reversible error in tbe record, and tbe judgment in plaintiffs’ favor is affirmed. No error. Clark, 0. J\, did not sit in this case, being related to some of tbe parties; but on tbe collateral question as to whether tbe certificate of a notary public in Texas to a legal instrument is valid here or not, because it appears that she.was a woman, observes: That each State or country is sole judge of tbe qualifications for voters and for office therein, and that such matter cannot be inquired into in any other jurisdiction. In Great Britain tbe Chief Executive in two of its longest and most brilliant reigns — Queen Victoria and Queen Elizabeth — was a woman, and the sanie is true even of Russia and Spain, whose most brilliant reigns were those of Catherine tbe Great and Isabella. In ten States of this country, and in many foreign nations, women have now equal suffrage with men, and usually tbe right of suffrage carries with it tbe right to bold office. While tbe women have tbe full right of suffrage in only ten States of this country, they vote in school matters and on local assessments in most of tbe other States. These are matters for each jurisdiction to settle for itself, and when tbe certificate of a notary public is sent to this State from another under a notarial seal, our courts cannot go back of it 'to inquire into tbe qualifications of tbe officer. -It cannot be doubted that a notary public is a public office, and “full faith *38 and credit shall be given in each State to the public acts, records, and judicial proceedings of every other’ State.” Const. U. S., Art. IY, sec. 1. At common law in England, women. have not only seven times held the highest office, as Queen, but also that of sheriff (1 El. Com., 339n) and others. Some courts in this country (but none in England) have held that at common law she could not be a notary public. 29 Cyc., 1068, 1071, where the matter is fully discussed.