{ "id": 11269031, "name": "M. E. COZAD et al. v. H. M. McADEN", "name_abbreviation": "Cozad v. McAden", "decision_date": "1908-05-25", "docket_number": "", "first_page": "10", "last_page": "13", "citations": [ { "type": "official", "cite": "148 N.C. 10" } ], "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": "79 N. C., 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8688582 ], "opinion_index": 0, "case_paths": [ "/nc/79/0235-01" ] }, { "cite": "127 N. C., 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661122 ], "opinion_index": 0, "case_paths": [ "/nc/127/0386-01" ] }, { "cite": "111 N. C., 163", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "99 N. C., 43", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649056 ], "opinion_index": 0, "case_paths": [ "/nc/99/0043-01" ] }, { "cite": "147 N. C., 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269464 ], "opinion_index": 0, "case_paths": [ "/nc/147/0249-01" ] }, { "cite": "130 N. C., 484", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 354, "char_count": 5421, "ocr_confidence": 0.475, "pagerank": { "raw": 5.192815580515304e-08, "percentile": 0.3257348208331837 }, "sha256": "358f9f544ae2366eb5c625c8c86dcfdf2d0a9c1c27c4f4bea5afe78537b8d5c8", "simhash": "1:fb16cca8c1a2a0f9", "word_count": 920 }, "last_updated": "2023-07-14T19:55:17.237307+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "M. E. COZAD et al. v. H. M. McADEN." ], "opinions": [ { "text": "Clatck, 0. J.\nTbis is an action to remove a cloud upon title. Neither party was in possession. To complete plaintiff\u2019s chain of title from the State he offered the following-deeds, which being excluded, he took a nonsuit and appealed:\nThe first deed, from Herbert to Ilineman, purported to have been acknowledged before a commissioner of deeds for North Carolina in Ohio, in Cincinnati, 1 February, 1867, and the other, from Ilineman to Stephenson, purported to have been executed 2 March, 1868. Both were probated and recorded in Graham County, where the land lies, on 17 April, 1893. The defendant objected that the probate was defective, and because the deed could not be legally admitted to probate and registration in 1893, having been executed prior to 1 January, 1886.\nThe second objection was invalid. Chapter 147, Laws 1885, now Revisal, sec. 980, contains no limitation as to the time when the conveyance shall be registered. It simply provides that it shall not be valid against creditors or purchasers for value, except from the registration thereof. Hallyburton v. Slagle, 130 N. C., 484.\nBut the first objection must be sustained. The-probate as to the first deed is simply that the certificate of the commissioner of deeds is adjudged to be correct. This does not comply with the statute in force in 1893 (The Code, sec. 1250), which required that the clerk \u201cshall adjudge such deed or other instrument to be duly acknowledged or proved.\u201d\n. Revisal, sec. 999, provides that the clerk shall adjudge the instrument to have been duly proven, and that the certificate is in due form; but Revisal, sec. 1001 (act of 1899), now provides that the form of tire clerk\u2019s probate shall be sufficient if the certificate is \u201cadjudged to be correct.\u201d This 1893 probate is governed by The Code, sec. 1250, above quoted* Up to O. O. P., sec. 429 (24 August, \u00cd868), the statute merely required \u201can order for registration.\u201d Johnson v. Lumber Co., 147 N. C., 249. Section 429, C. C. P., required an adjudication, hut a curative statute was-enacted making prohates in the previous manner valid up to 27 January, 1870. Larvs 1869-\u201970, ch. 32.\nThe probate of the second deed (of 2 March, 1868) by the Clerk of G-raham Superior Court, also m\u00e1de 17 April, 1893, was defective for the same reason, that it lacked the adjudication that it had been duly proven, required by The Code, sec. 1250.\nThe plaintiff then offered a certified copy of the deed of 1 February, 1867 (Herbert to ITineman), from the Register of Deeds of Cherokee County (in which the land lay in 1869), showing that it had been registered in that county 30 September, 1869, but this was properly rejected, there being no order of registration from the Clerk. The endorsement was simply, \u201cThe foregoing deed came to hand 30 September, 1869, and was then duly registered,\u201d etc., giving hook and page, and signed by the Register. The invalidity of such registration upon the certificate of the commissioner of deeds, without an adjudication of the clerk, is decided. Evans v. Etheridge, 99 N. C., 43. It is true that at that time the statute did not require the probate to be registered (Perry v. Bragg, 111 N. C., 163; Cochrane v. Improvement Co., 127 N. C., 386), if there was in fact a proper probate that could be shown. But it was indispensable that there should at least be a fiat from the clerk ordering the deed to he registered. Revised Code, ch. 37, sec. 5.\nTbe nullity of registration without authority is too well settled to need discussion. Todd v. Outlaw, 79 N. C., 235, and numerous eases therein cited, as well as those since, which have approved and followed it, which last will be found in the annotated edition of 79 N. C.\nThere have been very many curative statutes (Eevisal, secs. 1008 to 1030, and two in the Laws of 1907, since the Ee-visal), embracing almost all such defects, but they have omitted to cure this particular defect. Eevisal, sec. 1022, fails to include commissioner of deeds, else it would have been sufficient.\nAffirmed.", "type": "majority", "author": "Clatck, 0. J." } ], "attorneys": [ "Zebulon Weaver, F. 8. Johnson and T. A. Morphew for plaintiffs.", "Dillard & Bell, Merrick & Barnard and Tilletb <& Guthrie for defendant." ], "corrections": "", "head_matter": "M. E. COZAD et al. v. H. M. McADEN.\n(Filed 25 May, 1908.)\n1. Deeds and Conveyances \u2014 Probate, Time for, Not Limited.\nA deed duly executed prior to January, 1889, can be admitted to probate, under chapter 147, Laws 1885 (now Revisal, sec. 980), as no limitation o\u00a3 time for registration is therein specified.\n2. Deeds and Conveyances \u2014 Execution Prior to 1886 \u2014 Registration 1893 \u2014 Statute Applicable.\nA deed executed prior to 1 January, 1886, and offered for probate and registration in April, 1893, is governed in that respect by The Code, sec. 1250.\n3. Deeds and Conveyances \u2014 Probate Without Adjudication Defective.\nThe probate of a deed is defective, under The Code, sec. 1250, which lacks the adjudication therein required, that it had been duly acknowledged or proven.\n4. Deeds and Conveyances \u2014 Certificate of Commissioner \u2014 Revisal, ch. 37 \u2014 Requirements of Registration.\nA deed registered in the proper county upon the certificate of a commissioner of deeds from another State must have the fiat from the clerk ordering it to be registered, or the registration will be invalid, under Revised Gqde, eh. 37, sec. 5. This defect is not cured by Revisal, sec. 1022.\nActioN tried before Gui\u00f3n, J., and a jury, at Spring Term, 1908, of Geaiiam.\nPlaintiffs appealed.\nZebulon Weaver, F. 8. Johnson and T. A. Morphew for plaintiffs.\nDillard & Bell, Merrick & Barnard and Tilletb <& Guthrie for defendant." }, "file_name": "0010-01", "first_page_order": 40, "last_page_order": 43 }