Evans v. . Etheridge

Davis, J., (after stating the case). Though the case states that the summons and writ of attachment were issued by the plaintiff, who was the Clerk, no question is raised as to their validity, that having been settled on a former appeal, (96 N. C., 42,) and the only question presented for our consideration is: Was the deed from Etheridge and wife to W. T. Brinkley so proved and registered as to give it validity against creditors of the bargainor? The appellee says it was; the appellant says it was not, andi nsists that an adjudication by the Clerk of the Superior Court that the deed was duly acknowledged or proved was an essential prerequisite .to a valid registration. He further insists that Samuel C. Mills had *46 ■ceased to be a Commissioner of Affidavits, &c., for the State of North Caroliua on the 18th day of January, 1886, and was not such on the 22d day of Mhy, 1886, and that he had no authority to take the acknowledgment of deeds, &c.; and for proof of this he refers to the lists of Commissioners of Affidavits, &c., as printed in the volumes of the Acts of 1886 .and 1887, as required by §§ 636, et seq., of The Code, which .show that the said Mills was appointed on the 18th of Jan-nary, 1884; that his term of office expired on the 18th of January, 1886, and that he was not thereafter appointed. In addition to the requirement that the list of Commissioners, &c., be printed with the Acts of the General Assembly, § 634 makes it the duty of the Secretary of State forthwith, upon the appointment of such commissioners, to certify the same to the several Clerks of the Superior Courts of the State, and in like manner to certify to said clerks all removals of commissioners, and of all whose commissions have expired. If the appellant is correct in either of these positions the judgment below is erroneous. Section 1254 of The Code provides that “ No deed of trust or mortgage for real or personal estate shall be valid at law to pass any property as against creditors, * * * but from the registration of such deed of trust or mortgage in the •county where the land lieth,” &c. It is necessary that all deeds, to be valid as against creditors or purchasers for value, &c., shall be proved in some of the modes prescribed by law and registered as prescribed. One of the modes is found in §1250 of The Code, and is as follows: “ Where the acknowledgment or proof of any deed •or other instrument is taken or made in the manner directed by the laws of this State before any Commissioner of Affidavits for the State of North Carolina, appointed by the Governor thereof, in any of the States or Territories of the United States or in the District of Columbia, and where such acknowledgment or proof is certified by such commissioner, *47 the Clerk of the Superior Court having jurisdiction, upon the same being exhibited to him, shall adjudge such deed or other instrument to be duly acknowledged or proved in the same manner as if made or taken before him.” It is insisted by the appellees that the deed in question was proved in compliance with this section before a Commissioner of Affidavits, and that the adjudication of the clerk is only directory and not an essential prerequisite to registration and that, having been registered upon the certificate of the commissioner, though without any adjudication and order of registration by the clerk, it is valid, and the purpose of registration being to give notice, the spirit and purpose of the law is fully met. We are referred to a number of cases (Young v. Jackson, 92 N. C., 144; Holmes v. Marshall, 72 N. C., 37, and other cases) in which it was held that “ the provisions requiring the certificate of probate by the Probate Judge of a county other than that of registration to be passed on by Probate Judge (the Clerk) of the county of registration, is directory, and that a registration upon a probate which has not been so passed on is not void.” The analogy between those cases and that before us is lost in the fact that the functions of the clerk are broader than those of the commissioner. He not only takes the proof or acknowledgment, but adjudges the fact “ of due execution,” whereas the Commissioner of Affidavits, and perhaps others, only take and certify the acknowledgment or proof. “ Probate of a deed is taken,” says Pearson, J., in Simmons v. Gholson, 5 Jones, 401, “ by hearing the evidence touching the execution; i. e., the testimony of witnesses or the acknowledgment of the party, and from that evidence adjudging the fact of its execution. “ Where the evidence is offered to the Court the entire probate is taken by it, but where the agency of a commissioner is resorted to, a part of the probate, i. e., hearing the evidence, is taken by him and certified to the Court, and thereupon *48 the probate is perfected by an adjudication, that the certificate is in due form and that the fact of the execution of the deed is established by the evidence so certified.” In cases of probate before clerks who can both take the evidence and adjudicate the fact, it has been held that, though it ought not to be omitted, the fiat of the clerk of the county of registration is not an absolute prerequisite to a valid registration, but the validity of the registration in such cases rests upon the fact that there has been an adjudication of “ due execution” by an officer competent to both hear evidence and adjudicate. The Register has no authority to put the deed upon his books unless proved and • so adjudged in some one of the modes prescribed by the statute. “ The probate is his warrant for doing so,” and if registered without this warrant it does not create such an equity in the mortgage trustee as to affect creditors or subsequent purchasers for value. It was so adjudged in Todd v. Outlaw, 79 N. C., 235, and we refer to that case and the authorities there cited. We conclude that the deed from Etheridge and wife to Brinkley was registered without proper warrant therefor, and that such registration did not give it validity as against the plaintiff, who was a creditor. This renders it unnecessary for us to consider the second point made by the appellant. There is error.