{ "id": 11272701, "name": "CAROLYN S. POWERS v. J. Q. BAKER et al.", "name_abbreviation": "Powers v. Baker", "decision_date": "1910-05-27", "docket_number": "", "first_page": "718", "last_page": "720", "citations": [ { "type": "official", "cite": "152 N.C. 718" } ], "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": "32 N. C., 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1972672 ], "opinion_index": 0, "case_paths": [ "/nc/32/0358-01" ] }, { "cite": "119 N. C., 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655874 ], "opinion_index": 0, "case_paths": [ "/nc/119/0623-01" ] }, { "cite": "96 N. C., 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649155 ], "opinion_index": 0, "case_paths": [ "/nc/96/0059-01" ] }, { "cite": "120 N. C., 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656559 ], "opinion_index": 0, "case_paths": [ "/nc/120/0127-01" ] }, { "cite": "95 N. C., 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274489 ], "opinion_index": 0, "case_paths": [ "/nc/95/0453-01" ] }, { "cite": "16 Cal., 533", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2279248 ], "opinion_index": 0, "case_paths": [ "/cal/16/0533-01" ] } ], "analysis": { "cardinality": 430, "char_count": 7077, "ocr_confidence": 0.47, "pagerank": { "raw": 4.7492960360752035e-08, "percentile": 0.2987417413138758 }, "sha256": "b045124cd897e258abe60c591b1ce5026817645545ac06b285f5586295c552e0", "simhash": "1:8709a004b61735ef", "word_count": 1243 }, "last_updated": "2023-07-14T16:29:47.463636+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CAROLYN S. POWERS v. J. Q. BAKER et al." ], "opinions": [ { "text": "Clark, C. J.\nThe plaintiff claims title under a grant No. 3993, issued in 1877 to Joseph L. Sticlmey, upon an entry No. 6317, made by bim 26 February, 1857. Sticlmey conveyed to tbe plaintiff by deed executed 1 January, 1880, in London, Eng. The first exception is that the execution of this deed purports to have been acknowledged before \u201cJoshua Nunn, N\u00e9e and Deputy Consul General U. S. A.\u201d \u201cN\u00e9e\u201d is clearly a clerical error in copying, for \u201cVice,\u201d for the evidence shows that Nunn at that time was -\u201cVice and Deputy Consul General of U. S.\u201d in London. He signs himself in above capacity and \u201cex officio notary public.\u201d The judge of probate of Graham County adjudged that \u201cthe foregoing deed - has been duly acknowledged,\u201d and ordered it to registration. The IT. S. Rev. Statutes, sec. 1614, in force at that date, provides for \u201cvice\u201d and \u201cdeputy\u201d consuls, and section 1750 confers upon every \u201cconsular officer\u201d the \u201cauthority and powers of a notary pub1 lie.\u201d\nThe Code of North Carolina, sec. 1245 (4), authorized such' acknowledgments to be taken before \u201cany ambassador, minister, consul or commercial agent of the United States.\u201d This would seem to include any consul, whether consul, consul general or vice or deputy, in view of U. S. statute, supra, giving to every \u201cconsular officer\u201d the authority and power of a notary public. It was so held, Mott v. Smith, 16 Cal., 533; 1 A. and E. Enc., 506, n. 1. But to make the matter sure, the curative statute, Laws 1905, ch. 451, sec. 2, now Rev., 1024, validates acknowledgments before \u201cvice consuls and vice consuls general.\u201d Validating statutes of this nature have always been within the power of the General Assembly, Tatum v. White, 95 N. C., 453, though such statute would not be valid against a deed from the same grantor duly registered, or a lien acquired against the grantor, before the validating act. Barrett v. Barrett, 120 N. C., 127. But the validation of the probate of a deed from Stickney to the plaintiff would be good against the defendant, who does not claim under Stickney.\nThe second exception is that there is a defect in the privy examination of the wife of Stickney. If so, she might claim her dower against the plaintiffs if she outlived her husband; but that is a matter that does not concern the defendant.\nThe land when entered was in Cherokee County. When granted it lay, ns the jury finds, in Graham, because that county had been then cut off in 1872 from Cherokee. There is nothing irregular in this. Harris v. Norman, 96 N. C., 59, has no application. There the entry and surveys were of land in Watauga, when at the time of the entry and survey the land claimed lay in Mitchell, and had never been in Watauga.\nThe grant to Stickney is of \u201c640 acres lying and being in the county of Cherokee, section No., in District No. 6, Warrant No. 6317, it being part of the land lately acquired by treaty from the Cherokee Indians, and sold in obedience to an act of tbe General Assembly of this State, bounded as follows, viz.: Beginning on a Spanish oak and hickory and runs west with M\u00e1uney\u2019s line 320 poles to a stake at the corner of E. L. Morron\u2019s survey, thence north 320 poles to a rock in Big Snow Bird Creek, thence east 320 poles to a cucumber, thence south to the beginning, as by the plat on file in the office of the Secretary of State.\u201d The court properly held that if in fact the land lay in Cherokee when entered and, by reason of the creation of Graham County, it lay in the latter county. when granted, the fact that the grant, following the words of the entry, described the land as being in Cherokee would not invalidate the grant.\nThere was uncontradicted evidence that Big Snow Bird Creek' is entirely in Graham County, and evidence identifying the beginning corner and the location of the land, as claimed by the plaintiffs; but it was in evidence that District No. 6 is still in Cherokee. The plaintiffs contended that this was a mere clerical error for No. 9, in which district their evidence showed that the beginning corner and boundaries actually lay, which district is now in Graham. The court charged the jury: \u201cNow, if you should find from the evidence from the time the survey was actually made that the corner of 6317 was established at the point marked hickory, and the other corners made as called for in the deed at that location, then it would be your duty to answer the third issue yes.\u201d The defendant\u2019s exception to this charge cannot be sustained. Higdon v. Rice, 119 N. C., 623, and cases there cited. In Houser v. Belton, 32 N. C., 358, the jury were allowed to find that a corner which in the deed read \u201ceast\u201d of a certain creek should have been written \u201cwest.\u201d Here the real contention was over the location of the land, and the jury upon evidence and on a proper charge have found the issue for the plaintiffs.\nNo error.", "type": "majority", "author": "Clark, C. J." } ], "attorneys": [ "A. D. Baby, T. A. Morphew and Avery & Avery for plaintiff.", "Dillard & Bell for defendant." ], "corrections": "", "head_matter": "CAROLYN S. POWERS v. J. Q. BAKER et al.\n(Filed 27 May, 1910.)\n1. Deeds and Conveyances \u2014 Foreign Countries \u2014 Probate\u2014Title of Officer \u2014 Clerical Error.\nA deed made in England to the locus in quo, the evidence showing it. was in fact probated before a United States Vice and Deputy Consul General there, but giving the title to the probate officer as \u201cN\u00e9e\u201d and Deputy Consul, etc., will be adjudged \u201cduly acknowledged,\u201d it appearing that the word \u201cn\u00e9e\u201d was a clerical error and intended for the word \u201cvice,\u201d as indicated. U. S. Rev. Statutes, sec. 1674; Code, see. 1245 (4).\n2. Deeds and Conveyances \u2014 Foreign Countries \u2014 Probate\u2014Validating Acts \u2014 Interpretation of Statutes.\nRevisal, sec. 1024, validating acknowledgment of deeds in foreign countries before \u201cvice consuls and vice consuls general.\u201d though not valid against a deed from the same grantor duly registered or a 'lien against the grantor acquired before the validating act (Laws 1905, ch. 451), is good as against the plaintiff in this action not claiming under the grantor therein.\n3. Deeds and Conveyances \u2014 Probate\u2014Defective\u2014Married Women\u2014 . Title.\nThe exception that there is a defect in the privy examination of a married woman to a conveyance made to the husband\u2019s land, is irrelevant in the lifetime of the grantor in an action involving the question of title thereunder.\n4. State\u2019s Lands \u2014 Entry\u2014New County \u2014 Grant\u2014Location\u2014Description Sufficient \u2014 Interpretation of Deeds.\nIt appearing that an entry of State\u2019s lands was made and definitely located and described as being in a certain county, wherein it was situated at the time, the validity of the grant is not affected by reason of the subsequent creation of a new county by the Legislature, including the locus in quo, and the description of the grant following the entry which called for the land in the original county; or by a clerical error in giving the number of the district as No. 6, when from a sufficient description it axipears that District No. 9 was clearly intended.'\nAppeal by defendants from Ferguson, J., at tbe Fall Term, 1909, of GrBAHAM.\nThe facts are sufficiently stated in tbe opinion of tbe Court.\nA. D. Baby, T. A. Morphew and Avery & Avery for plaintiff.\nDillard & Bell for defendant." }, "file_name": "0718-01", "first_page_order": 766, "last_page_order": 768 }