Mitchell v. . Bridgers

Shephekd, C. J.: The exceptions addressed to the sufficiency of the descriptions contained in the will of Joseph Eason and the deed of Leonora Burden and others to T. L. Mitchell, as well as to the charge of the Court respecting the identification and location of the land upon which the trespass was committed, are plainly untenable. The principles sustaining the action of his Honor in these particulars are deemed to he too well settled to require an extended discussion or the citation of authorities. Equally without merit is the exception to the refusal of the Court to instruct the jury that if they believed that the land on which the timber was cut was covered by water, “the doctrine of constructive possession ” would not apply, and that it would be necessary to show that the plaintiffs “ were in possession ” of the same. Constructive possession, says Ruffin, C. J., in Graham v. Houston, 4 Dev., 232, is “such a possession as the law carries to the owner by virtue of his title only, there being no actual occupation of any part of *70 the land by anybody,” and we know of no reason or authority that excludes from the operation of this principle lands which are held, as in this case, under “ deeds by metes and bounds,” simply because they are “ almost entirely ” covered by the waters of a mill-pond. The case, however, discloses that the trespass was committed by going on the pond and cutting and carrying off certain timber-trees near the run of the swamp; that this pond was appurtenant to the mill which had been used by the plaintiffs and those under whom they claimed for fifty years or more under the deeds in evidence. It is very plain that if these deeds embrace within their boundaries the land covered by the water, as well as that upon which the mill is situated, the plaintiffs would have actual possession of the whole, except such part as might be in the actual possession of another. Graham v. Houston, supra. The exception, therefore, is overruled. The exception respecting the enclosed land in the actual occupation of the defendants is without force. There was no evidence of a trespass except upon the waters of the pond, and in assessing the damages the jury were necessarily confined to the same. The refusal to charge as requested could not have prejudiced the defendants, and especially is this so, inasmuch as his Honor, it seems by consent of all parties, excluded from the judgment all the lands in the actual occupation of the defendants. There was no evidence that the defendants were in the actual possession, as distinguished from acts of trespass, of the waters of the pond where the timber was cut, and the instructions based upon such an hypothesis were properly refused. The defendants objected to the introduction of the deed from Jesse Eason to “Noah and William Hinton.” The attesting witnesses to the deed were Thomas Ruffin and H. W. King. The certificate of probate is as follows : *71 “ State ot? North Carolina — Bertie County, May Term, 1820. “This deed from Jesse Eason to Noah and William King was proved in open Court by the oath of Thomas Ruffin, one of the subscribing witnesses thereto. Let it be registered. “Teste: E. A. Rhodes, Clerk.’’ It is quite manifest that the name of King instead of Hinton was inserted by reason of a clerical error on the part of the Clerk ; and where it appears that the requirements of the law have been substantially complied with, we should be reluctant to hold upon so slight a ground that the certificate was insufficient to warrant the registration of the deed. “Acknowledgments are frequently taken before persons of limited skill and knowledge, and while all the requirements of the law have been carefully and scrupulously complied with, yet errors will creep into the certificate which manifestly are clerical. To scrutinize these certificates with severity, and declare them insufficient for slight variations or evident errors, where they substantially comply with the statute, would subserve no desirable end.” 1 Devlin Deeds, 514. In the absence of testimony to the contrary, we must assume that the certificate having been registered with the deed was either written on the deed or annexed thereto. Such being the case, the identification of the certificate with the deed of Eason to Noah and William Hinton.is complete; for it is “ this deed ” which the Clerk declares was proved in open Court by Thomas Ruffin. The fact that Jesse Eason executed that particular paper was the essential thing to be proved, and this plainly appears from the certificate. There was no error in permitting the deed to be read in evidence. In making out their title the plaintiffs introduced a contract, executed in 1855, for the sale of the land by one Freeman to James Burden. The defendants objected “because it was not under seal, and was not such a paper as required registration, and the original should be produced.” No seal *72 is necessary to the validity of a contract for the sale of land, and we have been referred to no authority in support of the position that the registry or certified copy of the record of any such contract may not be received in evidence. The Revised Code, ch. 37, § 26, which was in force when this contract was executed, required that it should be registered, and in section 16 of said chapter it is provided that the “registry or duly certified co.py of the record of any deed, power of attorney, or other instrument required or allowed to be registered or recorded, may be given in evidence,” etc. The case of Edwards v. Thompson, 71 N. C., 177, decided that these provisions did not put a contract for the sale of land on the same footing as an unregistered mortgage, but it was by no means held that such a contract was not allowed to be registered, and therefore its registiy inadmissible in evidence. The objeetiop to the admission of the registry was properly overruled. In looking over the entire record we have been able to discover but one error on the part of the Court. The defendants Junius and ri liornas Bridger asked the Court to instruct the jury that there was no evidence that they had ever cut any timber or otherwise trespassed upon the land. This instruction was refused, and as we can find no such evidence in the record, we must hold that there was error in the refusal. As these defendants do not claim the land, and are only concerned about the judgment against them for the damages assessed by the jury, the erroneous ruling will not necessitate a new trial, but may be corrected by striking the names of these parties from the judgment. Modified and Affirmed.