Southerland v. . Hunter

Sjiith, C. J., (after stating the facts). We have at the present term, decided in the case of Ferguson v. K'msland, not only that the deed which conveys the estate of a married woman, must be executed by both, but it must be proved to have been executed by the husband, or must have been acknowledged by him according to the act of 1869, which governs this attempted probate, or proved or acknowledged as to both parties, under the act now in force, The Code, §1256, before the private examination *312 of the wife is had. This has long been the settled law, and still remains, that the proof or acknowledgment of execution by one or both, must precede the examination in reference to the volition and freedom of the wife, or the act or deed will be ineffectual to divest her estate; nor is this enactment in conflict with the constitutional provision that secures to the wife her entire estate notwithstanding her marriage. The section in The Code, 1826, to which we are referred in the brief of defendants’ counsel, has reference only to executory contracts and the obligation they create, but is not applicable to conveyances or executed contracts, which are provided for elsewhere. Nor is the position tenable that registration is only necessary in dispensing with other proof of execution, and admitting the original or a copy in evidence, when the deed upon ex parte probate has been transcribed upon the registry. It is a substitute for livery of seizin, a fundamental condition in the operation of conveyances at common law, as explained by the late Chief Justice in Hogan v. Strayhorn, 65 N. C., 279, and is now held as an inseparable incident to the efficacy of the deed itself. Ivey v. Granberry, 66 N. C., 223; Triplett v. Witherspoon, 74 N. C., 475; McMillan v. Edwards, 85 N. C., 81; Hale v. Jernigan, 76 N. C., 471; Phifer v. Barnhardt, 88 N. C., 334. The case of Carrier v. Hampton, 11 Ired., 307, is not in conflict with these adjudications, for it merely decides that a deed incapable of being proved under the law as it then existed, so as to be spread upon the registry and render a copy admissible in evidence, might be registered upon proof competent at common law, and not being in the purview of the statute, it must again be proved on the trial. The principle involved, is discussed and explained in Howell v. Hay, 92 N. C., 510, and we are content with a reference to it. It has occurred to us, that perhaps the defence may be put upon the ground that the deed, without registration, like an exe- *313 cutory contract to convey, may create an equitable estate iu the defendant, which will equally obstruct the plaintiffs’ recovery of possession. But the suggestion is without force aud unavailable to sustain the ruling. It is not in law the contract of the feme iu any legal sense, until after the execution is proved or acknowledged, the private examination has taken place, and her voluntary assent thus ascertained and declared. Until then, it is no more her executory than it is her executed contract, and is not binding upon her as such. The statutory requirements as to one, are not those applicable to the other. Besides, the Judge erred in his ruling that the instrument was sufficiently proved to be competent evidence and divested the estate of the feme plaintiff in the land and transfer it to the defendant. For this erroneous ruling the verdict must be set aside, and a venire de novo awarded, and it is so ordered. Let this be certified. Error. Reversed.