{
  "id": 11270359,
  "name": "P. A. NICHOLSON et al. v. EUREKA LUMBER COMPANY",
  "name_abbreviation": "Nicholson v. Eureka Lumber Co.",
  "decision_date": "1912-09-11",
  "docket_number": "",
  "first_page": "33",
  "last_page": "38",
  "citations": [
    {
      "type": "official",
      "cite": "160 N.C. 33"
    }
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  "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": "113 N. C., 1",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8652053
      ],
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    {
      "cite": "51 N. C., 524",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11278610
      ],
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      "case_paths": [
        "/nc/51/0524-01"
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  "last_updated": "2023-07-14T16:32:58.976002+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "P. A. NICHOLSON et al. v. EUREKA LUMBER COMPANY."
    ],
    "opinions": [
      {
        "text": "IIoke, J.\nBoth parties claimed title to the land in controversy under Ruel Windley, deceased, the plaintiff by deed purporting to be from Sadie Delany and her husband, the said Sadie, n\u00e9e Sadie Tooker, being the grandchild and only heir at law of James Windley, to whom Ruel Windley had devised it. This deed, admitted in evidence over defendant\u2019s objection, was from Sadie Delany and her husband, Thomas, to P. A. Nicholson, plaintiff, bore date of 12 December, 1908, and had been duly registered in Beaufort County on acknowledgment formally correct as follows:\nState'oe Texas \u2014 MoLeNNAN CouNty.\nI, Delia Sadler, a notary public in and for the said county of McLennan, do hereby certify that Thomas Delany and wife, Sadie Delany, personally appeared before me this day and acknowledged the due execution of the within deed of conveyance; and the said Sadie Delany being by me privately examined, separate and -apart from her said husband, touching her voluntary execution of the same, doth state that she signed the same freely and voluntarily, without fear or compulsion of her said husband or any other person, and that she- doth still voluntarily assent thereto. \u25a0\nWitness my hand and notarial seal, this the 14th day of December, 1908. .. .. Delia SadleR,\nNotary Public, McLennan Gownty, Texas.\nIt was chiefly urged for error by defendant that there was no testimony amounting to legal evidence that the Sadie Delany, grantor in said deed, was the Sadie Delany, n\u00e9e Tooker, who was the grandchild and heir at law of James- Windley, deceased; but on the facts in evidence the position cannot be sustained. On this question, a witness, William Draper, testified in substance that James Windley was dead and all of his children had died without descendants except Lovey, who married one Captain Tooker. That she died leaving two children; one was drowned in a millpond and Sadie Tooker, the surviving child, married Thomas Delany, and was how in Waco, Texas. That he had received several letters from her and answered' them, which he had at home, the letters being about this land. There was other testimony from this witness as to this 100 acres, the land in controversy, which was the James Windley land, and as to its correct location. On cross-examination the witness stated that this Sadie Tooker was named Sadie Delany before she ever left Bath, N. \u2022 0. That he had never seen her husband and had never seen Sadie Delany write in her life. Didn\u2019t know her husband except what was said about him in these letters. \u201cThat he answered the letters he received from Mrs. Delany and received replies from her; that he got the replies out of the postofB.ce, and had them at home now.\u201d A motion to strike out-this testimony was properly overruled; and the identity of name, the subject-matter of the correspondence, and attendant circumstances, were, in our opinion, amply sufficient to justify the conclusion, as stated, that the grantor in plaintiff\u2019s deed and Sadie Delany, tbe sole surviving grandchild and heir at law of James Windley, were one and the same person. Freeman v. Loftis, 51 N. C., 524; 1 Greenleaf, see. 43a (16th Ed.); Lawson on Presumptive Evidence, p. 309; 16 Cyc., p. 1055.\nIt was further objected that the acknowledgment is invalid because taken by a woman. The only evidence that the officer taking this acknowledgment was a woman- is the fact that the certificate is signed \u201cDelia Sadler, a notary public in and for said county of McLennan,\u201d and in favor of the stability of titles and the regularity of judicial proceedings we might, if required, rest the case here, on the position that it does 'not sufficiently appear that this notary was a woman, but whether man or woman, we think it entirely safe to hold that, having-been entrusted by the State of Texas with a notarial seal and having acted and professed to act in that State as a notary public, it will be assumed that she was rightfully appointed to that office and that she acted rightfully in taking this probate, until the contrary is made to appear. As an open question, this would be so from convenience, and the position is, we think, in accord with authority. Piland v. Taylor, 113 N. C., 1; Jones on Evidence, sec. 41 (2d Ed.); Elliott on Evidence, sec. 103.\nThe controversy between these litigants was really one of boundary, dependent largely on the correct location of plaintiff^ deeds, \u201cBeginning on an oak at or near the head of Ashe Branch\u201d and thence various specified courses and distances inclosing the property. Under a comprehensive charge the jury have established the location as contended for by plaintiffs, and after careful examination we find no good reason for disturbing their verdict.\nThe objection made, that the court in its charge ignored or disregarded evidence tending to show that a proper allowance for the variation of the magnetic needle would give the land a somewhat different placing, is without merit. It would seem from the testimony that the theoretical variation was controlled to some extent by an old and marked line, and, further, there are no data in tbe record from wbicb tbe Court could determine that any substantial change in tbe location would have resulted.\nApart from this, a perusal of bis Honor\u2019s charge will disclose that be directed tbe jury to make tbe allowance for tbe variation wbicb tbe facts would require, tbe language of tbe court in reference thereto being in part as follows: \u201cTbe burden is upon tbe plaintiff to satisfy you by tbe greater weight of tbe evidence that tbe defendant has cut within their lines, tbe course of wbicb will be determined by tbe lines of tbe grant and tbe xiroper variation for tbe difference in time.\u201d\nWe find no reversible error in tbe record, and tbe judgment in plaintiffs\u2019 favor is affirmed.\nNo error.\nClark, 0. J\\,\ndid not sit in this case, being related to some of tbe parties; but on tbe collateral question as to whether tbe certificate of a notary public in Texas to a legal instrument is valid here or not, because it appears that she.was a woman, observes:\nThat each State or country is sole judge of tbe qualifications for voters and for office therein, and that such matter cannot be inquired into in any other jurisdiction. In Great Britain tbe Chief Executive in two of its longest and most brilliant reigns \u2014 Queen Victoria and Queen Elizabeth \u2014 was a woman, and the sanie is true even of Russia and Spain, whose most brilliant reigns were those of Catherine tbe Great and Isabella.\nIn ten States of this country, and in many foreign nations, women have now equal suffrage with men, and usually tbe right of suffrage carries with it tbe right to bold office. While tbe women have tbe full right of suffrage in only ten States of this country, they vote in school matters and on local assessments in most of tbe other States.\nThese are matters for each jurisdiction to settle for itself, and when tbe certificate of a notary public is sent to this State from another under a notarial seal, our courts cannot go back of it 'to inquire into tbe qualifications of tbe officer. -It cannot be doubted that a notary public is a public office, and \u201cfull faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other\u2019 State.\u201d Const. U. S., Art. IY, sec. 1.\nAt common law in England, women. have not only seven times held the highest office, as Queen, but also that of sheriff (1 El. Com., 339n) and others. Some courts in this country (but none in England) have held that at common law she could not be a notary public. 29 Cyc., 1068, 1071, where the matter is fully discussed.",
        "type": "majority",
        "author": "IIoke, J. Clark, 0. J\\,"
      }
    ],
    "attorneys": [
      "B. B. Nicholson and E. A. Daniel, Jr., for plaintiff.",
      "Rodman & Rodman and Ward & Grimes for defendant."
    ],
    "corrections": "",
    "head_matter": "P. A. NICHOLSON et al. v. EUREKA LUMBER COMPANY.\n(Filed 11 September, 1912.)\n1. Deeds and Conveyances \u2014 Probate in Another State \u2014 Female Probate Officer \u2014 Comity of Laws.\nWhen it appears from tbe probate of a deed in tbe chain of title of a party to tbe action claiming the lands in dispute, that it was probated before \u201cDelia Sadler, Notary Public\u201d in another State, the position cannot be maintained that the probate is fatally defective, being taken by a woman, if such were made to appear, for it will be assumed that the notary was rightfully appointed in the State in which the deed was probated, and her act will be recognized as valid here.\n2. Deeds and Conveyances \u2014 Identity of Grantor \u2014 Correspondence\u2014 Handwriting \u2014 Evidence.\nIn a controversy involving title to lands, wherein a--'deed from \u2022 Mrs. D., the grandchild and heir at law of W., was relied on in the chain of title of a party, there was testimony tending to show that W. was dead and all of his children had died without descendants, except L., who married T., who died leaving two children, one of whom died and-the other married D., who lived in Waco, Texas; that the witness liad received several letters from Mrs. D. from Texas, about this land, which was correctly located in the boundaries of the disputed deed from her: Held, (1) evidence sufficient to be submitted to the jury that the conveyance was made by Mrs. D., the grandchild and heir at law of W.; (2) testimony of the witness that he had received and answered letters from Mr. D. concerning the lands, though he did not know of her husband except from the letters and had never seen her write, was competent under the attendant circumstances.\n3. Deeds and Conveyances \u2014 Variation of Magnetic Needle \u2014 Instructions \u2014 Appeal and Error.\nIn an action involving title to disputed lands, an exception that the charge of the court ignored or disregarded evidence tending to show that a proper allowance for the variation of the magnetic needle would have given the land a somewhat different placing, cannot he sustained, it appearing that this theoretical variation was controlled to some extent by an old and marked line, without anything of record to show that the location would have been varied, and, further, that his Honor charged that the course should \u201cbe determined by the lines of the grant and the proper variation for the difference in time.\u201d\nClark, C. J., did not sit.\nAppeal by .defendant from Webb, J., at May Term, 1912, of Beaufort.\nCivil action of trespass and to try title to realty.\nThe jury rendered the following verdict:\n1. Are the plaintiffs the owner# of the land described in the complaint? Answer: Yes; all the lands lying east of the lines E down to 3, then to A.\n2.- Did defendant trespass on said land, as alleged ? Answer: Yes.\n3. If so, what damages are plaintiffs entitled to recover? Answer: Seven dollars and.fifty cents ($7.50).\nJudgment on the verdict for plaintiff, and defendant excepted and appealed.\nB. B. Nicholson and E. A. Daniel, Jr., for plaintiff.\nRodman & Rodman and Ward & Grimes for defendant."
  },
  "file_name": "0033-01",
  "first_page_order": 73,
  "last_page_order": 78
}