Construction of the act of the Legislature of North Carolina,
concerning the registration of deeds, passed in 1715.
The questions which grow out of the language of this act, so far
as they have been settled by judicial decisions, cannot be
disturbed by this Court. Whatever might have been their opinion in
this case, had it remained open for consideration, the peace of
society, and the security of titles require that the court should
conform to the construction which has been made in the courts of
the state, if it can discover what that construction is.
In the probate of deeds, the court has a special limited
jurisdiction, and the record should state facts which show its
jurisdiction in the particular case. If this rule be disregarded,
every deed admitted to record, on whatever evidence, must be
considered as regularly admitted.
This was an action of ejectment instituted in the circuit court
by the plaintiff in error for the recovery of five thousand acres
of land situate in the District of East Tennessee.
On the trial of the cause, the plaintiff excepted to the opinion
of the court in rejecting certain evidence offered by him in
support of his title from the original grantor, Stockley Donelson,
holding under a patent from the State of North Carolina. The court
refused to admit the deed of conveyance to the plaintiff on the
ground that the same was not registered according to the provisions
of the law.
The bill of exceptions, containing the matters offered in
evidence and rejected by the court, is stated in the opinion of the
Court.
Page 31 U. S. 284
The case was argued by Mr. Polk, for the plaintiff in error; and
by Mr. White, for the defendant.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
At the trial the plaintiff gave in evidence a patent from the
State of North Carolina to Stockley Donelson, which covered the
land in controversy. He then offered a deed of conveyance from the
said Stockley Donelson and John Hackett to David Ross, the lessor
of the plaintiff, for five thousand acres, being the same land
contained in the aforesaid grant, which deed of conveyance is dated
9 September, 1793, and is witnessed by Walter King, Thomas N.
Clark, and Meriwether Smith, and of which deed of conveyance a copy
was annexed, and made a part of the bill of exceptions, and on the
back of said deed is the following endorsement of probate and
registration,
viz.,
"December sessions, 1793. This deed was proven in open court,
and ordered to be recorded. RICHARD MITCHELL, Clerk."
"This conveyance is registered 27 December, 1793, in liber G,
page 127, in the register's office of Hawkins County. THOMAS
JACKSON, C.R."
"State of Tennessee. At a court of pleas and quarter sessions
begun and held for the County of Hawkins, at the courthouse in
Rogersville, on the second Monday of December, 1793. Present,
Thomas Henderson, Isaac Lane, James Berry, and Thomas Amey,
Esquires. A deed of conveyance from Stockley Donelson and John
Hackett to David Ross, proved in open court by M. Smith that he saw
Donelson sign for himself, and signed as attorney for Haget, and
ordered to be registered. "
Page 31 U. S. 285
"State of Tennessee. I, Stockley D. Mitchell, Clerk of the Court
of Pleas and Quarter Sessions of Hawkins County, in the state
aforesaid, do certify the foregoing to be a true copy from the
records of my office. Given under my hand, at office in
Rogersville, this 16 October, A.D. 1828. STOCKLEY D. MITCHELL,
Clerk of the Court of Pleas, &c., for Hawkins County,
Tennessee."
To the reading of which deed of conveyance on the probates and
registration aforesaid the defendant objected, and the court
sustained the objection, and would not permit said deed to be read.
Plaintiff then offered to prove by Meriwether Smith, who was one of
the subscribing witnesses to said deed, that he proved the
execution of said deed in the Court of Pleas and Quarter Sessions
for Hawkins County, at December sessions of said court, in the year
1793, and plaintiff also offered to prove by Mitchell, whose name
was subscribed to the probate on the back of said deed, that he,
Richard Mitchell, was the clerk of the Court of Pleas and Quarter
Sessions for Hawkins County in the year 1793, and that the
foregoing deed was the one proved by Meriwether Smith, the
subscribing witness thereto, at December term of said court, in the
year 1793, but the court would not permit said proof to be given in
support of the probate of said deed.
Plaintiff offered to prove further that said deed and grant
covered the land sued for, and that Anne Hackett, the defendant,
was in possession at the time of the institution of this suit; but
said proof was rejected by the court. The jury found a verdict for
defendant, and lessor of the plaintiff moved for a new trial, and
produced and read the affidavit of Thomas Hopkins, trustee,
annexed, marked C, but the court refused a new trial.
Note. While the cause was before the jury, plaintiff
offered to read a grant from the State of North Carolina to
Stockley Donelson and John Hackett, for five thousand acres of
land, dated 22 February, 1795, which last mentioned grant also
covered the land in dispute, which grant the court considered as
read to the jury.
The jury found a verdict for the defendant, the judgment on
which is brought before this Court by a writ of error.
Page 31 U. S. 286
The plaintiff contends that the instructions given by the court
are erroneous, and that the deed from Donelson and Hackett to Ross
ought to have been admitted.
In the year 1715, the State of North Carolina passed an act
concerning the registration of deeds, the fifth section of which is
in these words,
"No conveyance or bill of sale for lands other than mortgages,
in what manner soever drawn, shall be good and available in law
unless the same shall be acknowledged by the vendor, or proved by
one or more evidences on oath, either before the Chief Justice or
in the court of the precinct where the land lieth, and registered
by the public register of the precinct where the land lieth, within
twelve months after the date of the said deed, and that all deeds
so drawn and executed shall be valid and pass estates in land or
right to other estate, without livery of seizin, attornment or
other ceremony in the law whatsoever."
Under this act, two requisites are essential to the validity of
a deed -- probate and registration in the precinct or county in
which the land lies. The proof which shall be sufficient to
establish these requisites is not prescribed by the act with such
precision as to exclude difference of opinion respecting it. But
the questions which grow out of the language of the act, so far as
they have been settled by judicial decisions, cannot be disturbed
by this Court. Whatever might have been our opinion on the case had
it remained open for consideration, the peace of society and the
security of titles require that we should conform to the
construction which has been made in the courts of the state if we
can discern what that construction is.
The plaintiff contends that the deed ought to have been admitted
on the certificates of probate and registration endorsed on it.
First, the certificate of probate. It is in these words, "December
session, 1783. This deed was proven in open court and ordered to be
recorded."
The act requires that the deed should be acknowledged by the
vendor, or proved by one or more witnesses in the court of the
county in which the land lieth.
It appears to be universally understood that the proof ought to
be made by a subscribing witness to the deed; and certainly an
instrument to which there are subscribing witnesses ought
Page 31 U. S. 287
to be proved by some one of them, if anyone be living. The fact,
too, to which the witness testifies ought to be stated on the
record, that a judgment may be formed on its sufficiency. The order
of the court that it should be recorded does not, the defendant
contends, cure this defect. The court proceeds
ex parte in
a summary manner, and the correctness of its proceedings ought to
appear on the record. Its judgment is not presumed to be right as
when acting in a regular course.
In
Knox v. Bowman's Lessee, decided in the Supreme
Court of Tennessee, at Knoxville, on exceptions taken in the
inferior court, a question arose on the probate of a deed endorsed
thus,
"State of Tennessee, Washington County. At a court held for the
County of Washington on the first Monday of November, 1789, the
within deed of conveyance from Bardley Gamble to Michael Massingile
was proved in court by the oath of _____ Starns. Given under my
hand at office 27 November, 1819. JAMES SEVIER, Clerk."
This deed was admitted. On considering the exception taken to
its admission, the court observed
"The clerk should have given a copy from the minute book
verbatim, and not a history of what had taken place, because the
court, and not he, must judge of the conclusions which are proper
to be made from the naked fact appearing on the record book. Had an
exact copy been given, the court should have presumed, after such a
lapse of time, at least until the contrary were shown, that Starns
was a subscribing witness."
The court added,
"Where enough is stated by the clerk to show that a witness was
sworn, or that the deed was acknowledged by the bargainor, however
informally or unscientifically the clerk may have expressed the
fact, the legality of the probate or acknowledgement should be
enforced, and such old probate should be presumed to have been made
in the proper county until the contrary appear."
The general principles laid down by the court in the last
sentence show that every reasonable presumption will be made to
support an ancient probate where the entry has been informal or
unscientific, but the decision on the particular point seems
applicable to the very case before the court. The clerk certifies
that the deed was proved by the oath of Starns. This is undertaking
to know what in point of law is proof,
Page 31 U. S. 288
and to certify his conclusion instead of stating the fact which
the witness did prove, so as to enable the court to draw the
inference of law from it. So in this case, instead of stating the
fact to which the witness testified, the clerk certifies that the
deed was proved. This, according to the decision in the case cited,
is a legal inference which the court alone could draw from the fact
as certified.
In the same case, a deed was offered from Gales to the lessor of
the plaintiff, endorsed thus. "February session, 1802. This deed
was legally admitted to record." The court allowed this deed also
to be given in evidence, and an exception was taken to its
admission. In commenting on this opinion, the supreme court
observed, "it is not said in what county, nor upon what ground,
whether because proved by witnesses, or acknowledged by the
bargainor, or for some other cause."
Both these exceptions were sustained, and the judgment of the
inferior court was reversed. The ground of reversal appears to be
that the certificate of probate stated the legal inference, without
stating the fact from which that inference was drawn. In the one
case it was stated that the deed was proved in court by the oath of
Starns; in the other that it was legally admitted to record. If
legally admitted, it could not be material to inquire whether it
was admitted on the acknowledgement of the vendor, or the proof of
witnesses. The error therefore must be that the conclusion to which
the court came is endorsed on the deed, and not the fact which led
to that conclusion. In the probate of deeds, the court has a
special limited jurisdiction, and the record should state facts
which show its jurisdiction in the particular case. If this rule be
disregarded, every deed admitted to record, on whatever evidence,
must be considered as regularly admitted.
The counsel for the plaintiff has endeavored to cure this defect
in the endorsement on the deed, by a distinct entry made in Hawkins
County Court, at the same session of December, 1793. That entry is
in these words.
"At a court of pleas and quarter sessions began and held for the
County of Hawkins, at the court house in Rogersville on the second
Monday of December, 1793. Present, Thomas Henderson, Isaac Lane,
James Berry and Thomas Amey, Esquires. A deed of conveyance from
Stockley Donelson and John Hackett, to David Ross, proved
Page 31 U. S. 289
in open court by Mr. Smith, that he saw Donelson sign for
himself, and signed as attorney for Haget, and ordered to be
registered."
"State of Tennessee. I, Stockley D. Mitchell, Clerk of the Court
of Pleas and Quarter Sessions of Hawkins County, in the state
aforesaid, do certify the foregoing to be a true copy from the
records of my office. Given under my hand at office in Rogersville,
this 16 October, A.D. 1828. STOCKLEY D. MITCHELL, Clerk of the
Court of Pleas, &c., for Hawkins County, Tennessee."
The difficulty of applying this certificate to the deed offered
in evidence is insurmountable. The deed offered in evidence
purports to have been executed by Stockley Donelson and John
Hackett, each for himself, and not by attorney. The probate
endorsed on the deed represents it to have been so executed. The
entry certified by Stockley D. Mitchell in 1828, shows the probate
of a deed executed by Stockley Donelson for himself, and as
attorney in fact for John Hackett. They cannot be presumed to be
the same. Stockley Donelson and John Hackett may have conveyed more
than one tract of land to David Ross, and it is not at all
improbable that Meriwether Smith may have witnessed both deeds.
An attempt has been made to reconcile this incompatibility by
parol testimony. Richard Mitchell, who was Clerk of the Court for
Hawkins County in the year 1793, was offered as a witness to prove
that the deed now offered in evidence was the one proved by
Meriwether Smith, the subscribing witness thereto, at December
term, 1793, but the court would not permit this proof to be given
in support of the deed, and to this opinion also an exception was
taken.
This is an attempt by parol testimony to vary a record. It is an
attempt to prove by the officer of the court, that his official
certificate of probate, endorsed on the deed, did not conform to
the true state of the proof. This is in such direct opposition to
the settled rules of evidence, as to render it unnecessary to
remark the danger of trusting to memory in such a case after a
lapse of thirty-five years.
There are other objections to the admission of this certificate
which would require very serious consideration if it were necessary
to decide them. It is questioned whether the order
Page 31 U. S. 290
made on the second Monday of December, 1793, even if it related
to the deed under which the plaintiff claims, could be given in
evidence, as it was not endorsed on the deed or registered with it.
The plaintiff's counsel has cited several acts of assembly, which
are supposed to settle this point in his favor. It was fully
considered in the case of
Minick's Lessee v. Hodges,
decided in the Supreme Court of Tennessee in July, 1831. A decision
on it is unnecessary, because the Court is satisfied that the order
must relate to a different deed.
We are of opinion that there is no error in the opinions
given by the circuit court. The judgment is affirmed with
costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
East Tennessee and was argued by counsel, on consideration whereof
it is adjudged and ordered that the judgment of the said circuit
court in this cause be and the same is hereby affirmed with
costs.