J. C. HERBERT et al. v. UNION DEVELOPMENT COMPANY.
(Filed 12 January, 1916.)
1. Appeal and Error — Objections and Exceptions — Scope of Objections.
Objections to the introduction of State grants in evidence in an action involving title to lands, upon the ground that they are not and do not purport to be grants or abstracts of grants, not having been signed by the Governor, cannot be enlarged on appeal so as to include an objection that they have not been properly registered. As to whether the objection in this case is aptly taken, Qucere.
2. Deeds and Conveyances — Actions Commenced — Registration.
A party to an action involving title to lands may cause a proper registration to be made after the commencement of the action, and use it upon the trial.
Appeal by defendants from Ferguson, J., at Fall Term, 1915, of SwaiN.
This is an action brought for the purpose of determining the title to five several tracts of land embraced in State Grants Nos. 2865, 2866, 2867, 2868, and 2869, as described in the complaint, plaintiffs asserting ownership thereto as the children and heirs at law of one W. H. Herbert by descent and not by purchase.
The answer of the defendants denied the right of plaintiffs to recover the lands embraced in Grants Nos. 2865, 2866, 2868, and 2869, or any interest therein, and disclaimed any right or interest in and to the lands embraced in Grant No. 2867 unless the same or a part thereof should lap upon and be covered by sections Nos. 31 and 32 in District No: 13 of Macon County, denying the right of plaintiffs to recover so much of Grant 2867 as might be embraced within the boundaries of said section.
At the trial of the action the plaintiffs, for the purpose of showing title in themselves, offered certified copies of certain records from the office of the Secretary of State, said copies having been certified in one paper by the Secretary of State and being in words and figures as follows :
No. 2865.
State or North GaroliNA.
E. HERBERT.
Know ye that we have granted unto William Herbert of Cherokee County 640 acres of land on the waters of Nantigalee River, on the west side, beginning at a white oak on a ridge S. E. of the Tate Branch and *623nearly, S. of its mouth, running N. 55 E. three hundred and' twenty poles to a stake; thence S. 35 E. two hundred and thirty-three poles to a stake; then S. 55 W. four hundred and forty poles to a stake; then N. 35 W. two hundred and thirty-three poles to a stake, then N. 55 E. one hundred and twenty poles to the beginning. Entered the 20th day of March, 1859.
To hold, the said ~W. E. Herbert, his heirs and assigns forever.
Dated 25 April, 1865.
Corrected by virtue of authority given by Laws of T889, ch. 460. This 20th day of April, 1891. Oct. Coke,
Sec. State.
I, J. Bryan Grimes, Secretary of State of North Carolina, do hereby certify the foregoing and attached five sheets to be true copies from the records of this office.
In witness whereof I have hereunto set my hand and affixed my official seal.
Done at Raleigh, this 5 September, 1908.
(Signed) J. BryaN Grimes,
(Official Seal.) Secretary of State.
Only one of the papers is copied, as all are alike. '
The defendant objected to the introduction in evidence of said copies from the office of the Secretary of State, and each of them, upon the grounds that they are not and do not purport to be grants or abstracts of grants, not having been signed by the Governor, not having been countersigned by the Secretary of State, and not having the Great Seal of the State affixed, and, further, that they do not recite or purport to recite or in any manner indicate that they were signed by the Governor, countersigned by the Secretary of State, or attested by the Great Seal of the State.
Objection sustained, and plaintiff excepted.
The plaintiffs, for the purpose of showing title in themselves, offered in evidence certain records from the office of the register of deeds of Clay County. Said records being found respectively in Book “F,” at page 511, Book “F,” page 512, and at Book “F,” page 483, of the records of Olay County, and being in words and figures as follows:
No. 2865.
State oe North Carolina.
Know ye that we have granted unto W. E. Herbert, of Cherokee County, 640 acres of land on the waters of Nantigalee River, on the west side, beginning at a white oak on a ridge S. E. of the Tate Branch and nearly S. of its mouth, running N. 55 E. three hundred and twenty poles to a stake; thence S. 35 E. two hundred and thirty poles to a *624stake; then S. 55 W. four hundred and forty poles to a stake; then N. 35 "W. two hundred and thirty-three poles to a stake; then N. 55 E. one hundred and twenty poles to the beginning. Entered the 20th day of March, 1859. To hold, to the said W. E. Herbert, his heirs and assigns, forever.
Dated 25 April, 1865.
Corrected by virtue of authority given by Laws of 1889, ch. 460. This 20th day of April, 1891. Oct. Coke,
Sec. State.
State oe North OaroliNA — DepartmeNt oe State.
Raleigh, July 11, 1868.
I, Henry J. Menninger, Secretary of State, do hereby certify that the foregoing is a true copy of the record on file in this office.
Given under my hand the day and date above written.
H. J. MeNNINGEr,
Secretary of State.
Only one of these papers copied, as they are all alike.
Defendant objected to the introduction of the foregoing records, and each of them, for the reasons that while purporting to be copies of certain records from the office of the Secretary of State, they are not certified as being such by the Secretary of State in the manner and form prescribed by law to entitle them to registration, in that the purported certificate of the Secretary of State attached thereto and upon which the purported registration was had is not authenticated by the seal of the Secretary’s office, and the said certificate not reciting that they were authenticated by a seal, and no seal being indicated thereupon; and for the further reason that said records are not and do not purport to be grants or the abstracts of grants, in that they are not signed by the Governor, countersigned by the Secretary of State, or in any manner purporting to be under the Great Seal of the State. Neither do they profess in any way to have been signed by the Governor, countersigned by the Secretary of State, or sealed with the Great Seal of the State.
The court sustained the objection of the defendants, and the plaintiff excepted.
The objections of the defendants to the certified copies from the office of the Secretary of State, and to the records' of Olay County, having been sustained by the court as above indicated; and the plaintiff having excepted in each instance to said ruling, in deference to the ruling of the court upon the objections made by the defendant, plaintiffs submitted to a nonsuit and appealed to the Supreme Court.
J. D. Murphy and Zekulon Weaver for plaintiffs.
Lindsay, Young & Donaldson, Johnsion & Dome, and Bryson & Black for defendants.
*625AlleN, J.
Tbe copies of tbe papers relied on by tbe plaintiff as grants from tbe State, duly certified by tbe present Secretary of State, áre not objected to upon tbe ground tbat tbey bave not been registered, and tbe rule generally prevails in appellate courts tbat tbe ground of objection cannot be enlarged upon appeal. 3 Corpus Juris, 747.
Confining ourselves, therefore, to tbe objection as stated, tbe question bas been fully considered and decided against tbe defendants, at tbis term, in Howell v. Hurley, ante, 401.
We are inclined to tbe opinion tbat tbe record from tbe office of tbe register of deeds, made on tbe authority of tbe certificate of Menninger, Secretary of State, was properly excluded, but it is not necessary to decide tbis question, as a new trial must be ordered for error already pointed out, and if tbe papers bave not since been registered on tbe new certificate tbis can be done before another trial is bad.
Tbe case of Morehead v. Hall, 132 N. C., 122, bas created tbe impression tbat a plaintiff cannot register bis title after tbe commencement of tbe action and use it upon tbe trial; but tbat ease is founded upon tbe fact tbat tbe grant offered in evidence could not be registered under the laws in force at the commencement of the action.
In tbe subsequent case of Brown v. Hutchinson, 155 N. C., 208, it was held tbat a plaintiff may register bis title after tbe commencement of the action, and tbe case of Morehead v. Hall is there commented on and distinguished.
Tbe judgment of nonsuit is set aside and a new trial ordered.
New trial.