{
  "id": 8649634,
  "name": "W. A. DEANS v. SALLY PATE",
  "name_abbreviation": "Deans v. Pate",
  "decision_date": "1894-02",
  "docket_number": "",
  "first_page": "194",
  "last_page": "197",
  "citations": [
    {
      "type": "official",
      "cite": "114 N.C. 194"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "102 N. C., 284",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8649613
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/102/0284-01"
      ]
    }
  ],
  "analysis": {
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  "last_updated": "2023-07-14T15:40:42.198773+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "W. A. DEANS v. SALLY PATE."
    ],
    "opinions": [
      {
        "text": "Clark, J.:\nThe adjudication by the Clerk of the Superior Court of Wayne that \u201cthe foregoing instrument has been duly proved, as appears from the foregoing seal and certificate,\u201d does not follow the very words of the. statute (The Code, \u00a71246 [3] ) in that it does not adjudge that said probate is \u201cin due form.\u201d But it is intelligible and means substantially the same thing and \u201cwill be upheld without regard to mere form,\u201d as was said in Devereux v. McMahon, 102 N. C., 284. The acknowledgment was before an officer authorized to take it and probate was in fact in due form. Tiie omission, therefore, of the Clerk to adjudge in just so many words that the probate was \u201cin due form\u201d when in substance he did so adjudge, was not sufficient ground to exclude the deed.\nThe notary public used a seal as his own. The statute does not require that his name, or any name should be used on the notarial seal, though customarily the name of the notary does appear thereon. The seal appended by the notary to his certificate is presumably his, in the absence of evidence to the contrary. This is not rebutted by the mere fact that the notary signs his name \u201c Goo. Theo. Som-mer \u201d and the seal has on it the name of \u201c Theo. Sommer,\u201d when the fact of the execution of the deed is adjudg\u00e9d to have been proved by such seal and certificate of the notary.\n' If the only interest the feme defendant had in the land was her contingent right of dower, her failure to- sign the deed or be privily examined would not affect the right of the plaintiff to recover at this juncture, since the grantor being a non-resident no right of homestead is involved. Should the feme defendant survive her husband her right to dower would then arise. The Code, \u00a72106, !hd cases cited. Or, if she has other interest in the premises than the inchoate right of dower, she can assort it on the trial.\nIn excluding the deed upon the above grounds the Court erred. The nonsuit must be sot aside to the end that there may be a . New Trial. '",
        "type": "majority",
        "author": "Clark, J.:"
      }
    ],
    "attorneys": [
      "Messrs. Allen & Dortch, for plaintiff (appellant).",
      "Mr. W G. Munroe, for defendant."
    ],
    "corrections": "",
    "head_matter": "W. A. DEANS v. SALLY PATE.\nDeed \u2014 Probate by Cleric \u2014 Notary\u2019s Seal \u2014 Contingent Right of Dower and Homestead.\n1. Where ail acknowledgment of a deed was made before an officer authorized to take it and was, in fact, in \u25a0 due form, the adjudication by the Clerk of the Superior Court of the county where the land lies that \u201cthe foregoing instrument has been duly proved, as appears from the foregoing seal and certificate,\u201d is sufficient although not following the words of the statute (The Code, $124(5 [3]) that it is in \u201cdue form.\u201d\n2. The statute authorizing a notary public to take acknowledgment of deeds does not require that his name or any name shall be used in the notarial seal, and the seal appended to the certificate is 23resumably his in the absence of evidence to the contrary; hence, where the fact of the execution of a deed by a notary public is adjudged to have been proved by such seal and certificate, it is not rebutted by the mere fact that the notary signs his name \u201cGeo. Theo. Sommer\u201d and the seal has on it the name of \u201cTheo. Sommer.\u201d\n3. Where the only interest that a feme defendant in an action by the grantee of her husband and herself to recover the land is her contingent right of dower, her failure to sign the deed or to be privily examined will not affect the right of the plaintiff to recover.\nCivil action to recover possession of land, tried before Shuford, J., and a jury, at October Term, 1893, of Waynb Superior Court.\nThe plaintiff offered -in evidence a deed purporting to be from R. B. Pate to W. A. Deans,- dated May 12, 1892. The wife\u2019s name appeared in the body of the deed, but ivas not signed thereto.\nThe following certificates were appended to the deed;\n\u201cState or New Yore \u2014 New York County.\n\u201c I, Geo. Theo. Sommer, do hereby certify that R. B. Pate personally appeared before me this day, and acknowledged the due execution of the annexed deed.\n\u201cWitness my hand and seal, this 23d day of May, 1892.\n\u201c Geo. Theo. Sommer,\n\u201c Notary Public, Kings Co.\u201d\n\u201c Certified in New York Co.\u201d\n\u201c North Oarooixa \u2014 Wayne County.\n\u201c I, C. F. Herring, C. S. C., do hereby certify that the foregoing instrument has been duly proven, as appears from the foregoing seal and certificate. Let the same, with said certificates, be registered.\n\u201c Witness my hand and official seal, this 20th day of July, 1892. C. F. Herring,\n\u201c Clerk Superior Court.\u201d\nThe defendant objected to the introduction of said deed on the ground that the same purports to have been proven before Geo. Theo. Sommer, a notary public of the State of. New York, and was not authenticated by his seal, but, on the contrary, purported to be authenticated by the notarial seal of Theo. Sommer.\nThe plaintiff stated that he had no evidence that the said Geo. Theo. Sommer is the same person as Theo. Som-mer, except such as might appear from the deed itself and the certificate of the Clerk.\nThe defendant further objected to the introduction of said deed on the ground that the certificate of probate did not appear to have been adjudged to be in due form by the Clerk of the Superior Court of Wayne County. The Court, being of opinion with the defendant, sustained the objection and excluded the deed, and the plaintiff excepted.\nThe plaintiff thereupon offered to prove that the signature to the deed was in the handwriting of R. B. Pate, and that the deed was delivered tu the plaintiff by said Pate, and \u2019 to prove further that the defendant is his wife, and claims possession of the land by virtu\u00e9 of her marital rights. The Court, being of opinion against the plaintiff, excluded the evidence, and the plaintiff excepted.\nThe plaintiff then stated to the Court that the said deed was a necessary link in his claim of title, and without it he could not recover, and thereupon submitted to a nonsuit and appealed.\nMessrs. Allen & Dortch, for plaintiff (appellant).\nMr. W G. Munroe, for defendant."
  },
  "file_name": "0194-01",
  "first_page_order": 222,
  "last_page_order": 225
}