{
  "id": 8655770,
  "name": "RUDOLPH KLEYBOLTE & CO. v. THE BLACK MOUNTAIN TIMBER COMPANY et al.",
  "name_abbreviation": "Rudolph Kleybolte & Co. v. Black Mountain Timber Co.",
  "decision_date": "1910-01-08",
  "docket_number": "",
  "first_page": "635",
  "last_page": "638",
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  "last_updated": "2023-07-14T21:30:26.349792+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "RUDOLPH KLEYBOLTE & CO. v. THE BLACK MOUNTAIN TIMBER COMPANY et al."
    ],
    "opinions": [
      {
        "text": "\"Walker, J.\nTbis action was brought by tbe plaintiffs to foreclose a deed of trust executed by tbe defendant, Black Mountain Timber Company, to tbem, 22 February, 1907. Tbe Nantabala Transportation Company claims a lien upon tbe property described in tbe deed of trust, by virtue of a warrant of attachment, issued in an action wherein tbe said company is plaintiff and the timber company is defendant, and levied upon tbe said property 2 September, 1908. Tbe only question in tbe case, as admitted in tbe appellant\u2019s brief, is whether tbe deed of trust was properly probated and registered, so as to prevent any lien being acquired by the transportation company under the levy o\u00a3 the warrant of attachment.\nIt appears from the certificates of probate annexed to the deed, and which were registered with it, that the execution of the deed of trust was duly acknowledged before Edward Carroll, Jr., a notary public in and for the county of Westchester, N. Y., on 12 February, 1907. The certificates, which are annexed to the deed, are in due form. The Clerk of the'Supreme Court for the County of New York, in said State, certified, under the provisions of a statute of that State, that at the time of taking the acknowledgment and probate of the deed of trust, Edward Carroll, Jr., having theretofore been duly commissioned, \u2022 was a notary public, and that his commission had not expired, and, further, that he was duly authorized to take the proof and acknowledgment of the execution of the instrument. The Clerk of the Superior Court of the County of Swain, in this State, when the deed with the annexed certificates were exhibited to him, certified as follows :\n\u201cThe foregoing and annexed certificate of Peter J. Dooling, a clerk of the Supreme Court in and for the county of New York and State of New York, duly authenticated by his official seal, is adjudged to be correct, in due form and according to law, and the foregoing and annexed deed of trust is adjudged to be duly proven.\n\u201cLet the foregoing and annexed deed of trust, together with the certificates and this certificate, be registered.\n\u201cWitness my hand, this the 20th day of February, 1907.\nO. P. Williams,\nCleric Superior Court Swain County\nThe deed of trust and certificates were thereupon and on the same day filed for registration and duly recorded in the office of the register of deeds.\nIt is now contended by the plaintiff that the registration of the deed is invalid, because the certificate of the Clerk of the Superior Court of Swain County is defective, in that it does not conform to the requirements of sections 999 and 1001 of the Revisal of 1905. Section 999 provides as follows: \u201cWhenever the proof or acknowledgment of the execution of any instrument required or permitted by law to be registered is had before any other official than the clerk or deputy clerk of the Superior Court of the county in which such instrument is offered for registration, the clerk or deputy clerk of the Superior Court of the county in which the instrument is offered for registration shall, before the same shall be registered, examine the certificate or certificates of proof or acknowledgment appearing upon the instrument; and if it shall appear that the instrument has been duly proven or acknowledged, and the certificate or certificates to that effect are in due form, he shall so adjudge, and shall order the instrument to be registered, together with the certificates.\u201d We think the clerk substantially complied with the provisions of that section. To hold otherwise would be a perversion of justice and right, and nothing more nor less than \u201csticking in the bark.\u201d' The certificates are all before us, and we can\u2019 see that they are \u201cin due form.\u201d It may be true that the certificate of the Clerk of the Supreme Court of New York, as to the authority of the notary public, was unnecessary, but it will be observed that the clerk makes two adjudications \u2014 first, that the certificate of the said clerk is \u201cin due form and according to law\u201d; and, second, that \u201cthe foregoing and annexed deed of trust is adjudged to be duly proven.\u201d From what, source could the Clerk of the Superior Court of Swain County have derived any knowledge of the due execution of the deed, or of its probate, except from the certificates of the notary? The Clerk of the Supreme Court of New York did not certify to either fact, but simply to the official character of Edward Carroll, Jr., as a notary. We are as competent to pass upon the correctness of the certificates as the clerk, or, at least, I suppose we are, and we should be. If he adjudges the execution of the deed to have been duly proven and orders it to be registered, and acts upon certificates which, in fact, as we can plainly see, are in due form, how vain and idle to argue that he has not \u201csubstantially\u201d complied with the law. Section 1001 of the Eevisal only requires that there shall be a substantial compliance with the statute. (Section 999.) It expressly provides that no set form or phraseology shall be necessary in adjudging as to the probate of a deed. We consider the case of Cozad v. McAden as directly in point. Indeed, to decide the case otherwise than we have done would clearly overrule the principle established by that case, or, as we sometimes say, its \u201cratio decidendi.\u201d In that case Justice Solve, quoting from Deans v. Pate, 114 N. C., 194, says: \u201cThe adjudication by the Clerk of the Superior Court of Wayne that 'The foregoing instrument has been duly proven, as appears from the foregoing seal and certificate,\u2019 does not follow the very- words of the statute (Code, see. 1246, subsec. 3), in that it does not adjudge that said probate is 'in due form.\u2019 But it is intelligible and means substantially the same thing, and will be upheld, without regard to mere form,\u2019 as was said in Devereux v. McMahon, 102 N. C., 284. The acknowledgment was before an officer authorized to take it, and the probate was, in fact, in due form. The omission, therefore, of the clerk to adjudge in just so many words that the probate was 'in due form/ when in substance he did so adjudge, was not sufficient ground to exclude the deed.\u201d In Beans v. Pate, supra, the probate was taken by a nonresident notary public, and the clerk, in passing upon his certificates, adjudged as follows: \u201cThe foregoing instrument has been duly proven, as appears from the foregoing seal and certificate.\u201d This adjudication was upheld by this Court (Clark, J., writing the opinion), although it did not use the exact language of the statute. It was contended in that case, as it is in this by the appellant, that the certificate or adjudication of the clerk\u2019in this State was defective, because he did not expressly declare the certificate of the notary to be \u201cin due form,\u201d as required by the Code of 1883, sec. 1276. That section of the Code was surely not less strong and exacting in its requirements than is the language of section 999 of the Revisal, which we are .now construing. The Court, in Deans v. Pate, repudiated the contention of the appellant as unsound and not warranted by the provisions of section 1276 of the Code of 1883. See, also, Buggy Co. v. Pegram, 102 N. C., 540; Bevereux v. McMahon, 102 N. C., 284. The construction of a statute should never be so rigid and technical as to defeat the purpose of the legislation. We should ascertain from its language what is its will, and decide accordingly. Public confidence in \u2018the regularity and validity of judicial acts and proceedings would be greatly shaken if we should hold with the appellant in this case.\nNo error.",
        "type": "majority",
        "author": "\"Walker, J."
      }
    ],
    "attorneys": [
      "Bryson & Blade for plaintiff.",
      "Adams & Adams and W. P. Brown for defendant."
    ],
    "corrections": "",
    "head_matter": "RUDOLPH KLEYBOLTE & CO. v. THE BLACK MOUNTAIN TIMBER COMPANY et al.\n(Filed 8 January, 1910.)\n1. Deeds and Conveyances \u2014 Probate\u2014Certificates\u2014Adjudication\u2014 Substantial Compliance \u2014 Sufficiency\u2014Supreme Court \u2014 Appeal and Error.\nA substantial requirement witb. Revisal, secs. 999 and 1001, is all tliat is necessary to be observed by tlie Cleric of tbe Superior Court of tbe county wherein tbe land lay, in passing upon the certificates to a deed thereto made and executed in another State; aud when objection to the validity of registration is made on that ground and it appears of record on appeal that the certificates made in such other State are in fact sufficient, the validity of the registration will be declared and upheld by the Supreme Court. ,\n2. Deeds and Conveyances \u2014 Probate\u2014Certificates\u2014Adjudication\u2014 Substantial Compliance.\nWhen a deed in trust made and executed beyond the borders of this State conveying lands herein has been there acknowledged and probated before a notary public, and (unnecessarily) the Cleric of the Supreme Court, in compliance with \u00e1 statute there, has certified the official character of the notary and his authority as such, it is a sufficient compliance with Revisal, secs. 999 and 1001, for the Clerk of the Superior Court of the county wherein the land lay, to certify that \u201cthe foregoing and annexed certificate of (naming the clerk), a clerk of the Supreme Court, etc., duly authenticated by his official seal, is adjudged to be correct, in due form and according to law, and the foregoing and annexed deed of trust is adjudged to be duly proved, etc.\u201d\nAppeal by defendants from Ferguson, J., July-August Term, 1909, of SwaiN.\nThe facts are stated in tbe opinion of tbe Court.\nBryson & Blade for plaintiff.\nAdams & Adams and W. P. Brown for defendant."
  },
  "file_name": "0635-01",
  "first_page_order": 679,
  "last_page_order": 682
}