#### MRS. GERTIE SMITH and Husband, et al., v. ARCHIE BEAVER et al.

(Filed 10 May, 1922.)

Deeds and Conveyances — Husband and Wife — Probate Officers — Statutes —Certificates—Amendments—Subsequent Certificate — Justices of the Peace — Notary Public.

Where a justice of the peace has failed to certify his finding that the deed of the wife’s lands to her husband and herself to he held by them in entirety was not “unreasonable or injurious to her,” as required, among other things, by C. S., 2515, he may not, after the death of the wife, validate the deed by making a new certificate including this vital finding as of the time of his first probate, or excuse himself upon the ground of ignorance or inadvertence, it being at least required that she should have had due notice of this proposed action, and have been afforded an opportunity to be heard; and the deed itself being void under the statute, the will of the husband disposing of the locus m quo is also ineffectual. Semble, after executing the first certificate, the power of the justice ceased or became functus officio; but this point is not herein decided.

Appeal by defendant from McElroy, J., at November Term, 1921, of RowaN.

Tbis was a civil action, commenced, by tbe plaintiff before tbe clerk of tbe Superior Court, and transferred to tbe civil issue docket of Rowan County Superior Court.

1. Tbe plaintiffs brought tbe action for tbe partition of tbe lands in question, wbicb they inherited from their mother, Mary Jane Beaver, as they alleged, tbe land having been before then conveyed by Simeon J. Beaver (who owned it) and wife, Mary J. Beaver, to said Mary J. Beaver, on 4 March, 1893, registered 15 March, 1893. Tbe defendant, Archie Beaver, answered and set up sole seizin to tbe lands, claiming under a deed executed 2 November, 1917, by Simeon J. Beaver and wife, *498Mary J. Beaver, to Simeon C. Beaver and wife, Mary Jane Beaver, recorded in Book 147, at page 293, and under a will of S. C. Beaver, dated 27 November, 1919 (record, p. 16), devising the land to the said Archie Beaver.

2. S. C. Beaver died in February, 1921, and his wife, Mary J. Beaver, died in July, 1920. This suit was commenced on 20 June, 1921, and summons was served 21 June, 1921. After the summons was served, and long after the death of both S. 0. Beaver and wife, Mary J. Beaver, the justice of the peace who took the probate to the deed of 2 November, 1917, executed a new probate, in accordance with the provisions of C. S., 2515. The court refused to admit in evidence the deed with the new certificate. The only point involved in this case is the legal effect of the deed of 2 November, 1917. If this deed is void, the plaintiffs were entitled to recover.

Judge McElroy held as a matter of law that the deed was void, as the probate was not taken in accordance with the provisions of C. S., 2515.

The evidence as to the probate of the deed was substantially as follows:

The following is the probate first taken by the justice on 2 November, 1917:

NORTH CAROLINA — RowAN COUNTY.

Be it remembered that on this 2 November, 1917, before the undersigned W. L. Kimball, a justice of the peace of said county, personally appeared Simeon C. Beaver and wife, Mary J. Beaver, the grantors named in the foregoing deed, and acknowledged the due execution thereof by them as their act and deed, and thereupon the said Mary J. Beaver, wife of Simeon C. Beaver, being by me privately examined, separate and apart from her said husband, touching her free consent to the execution of said deed, on such separate examination declared she executed the same freely, of her own will and accord and without any force, fear, or undue influence on the part of her said husband, or any other person, and does still voluntarily assent thereto. Therefore, let the said deed, together with this certificate, be registered.

Witness my hand and private seal, date above written.

W. L. KiMbaxl, [seal.]

Justice of the Peace.

North Carolina — Rowan6 County.

The foregoing certificate of W. L. Kimball, a justice of the peace of Rowan County, is adjudged to be in due form and according to law. Therefore, let the said deed, with the certificates, be registered.

John B. Manly,

Deputy Cleric Superior Court.

Registered 10 November, 1917, at 2 p. m., in Book 147, at p. 293.

*499To tbe introduction of tbe foregoing deed tbe plaintiffs object. Objection sustained; defendants except.

~W. L. Kimball testified for defendants: “I am a justice of tbe peace of Eowan County, and bave been a justice for about 18 or 20 years. On 2 November, 1917, I drew a deed from Simeon C. Beaver and wife, Mary J. Beaver, to themselves. Tbey were botb present and gave directions as to bow tbey wanted tbe deed drawn.”

“Q. I want you to state to tbe jury wbat directions tbey gave you as to tbe drawing of tbis deed.” Plaintiffs object; objection overruled. A. “Mrs. Beaver wanted to make tbe land to ber busband, and in tbe event one or tbe other would die, tbe land would go to tbe one tbat would survive. Tbat was tbe object. Tbat was tbe way tbey wanted, and tbe intention tbey wanted. Tbis deed tbat is shown to me is in my own bandwriting, and is tbe one I drew up. I took tbe acknowledgment of Mrs. and Mr. Beaver, and took ber private examination on 2 November, 1917.”

“Q. "When you took ber private examination on 2 November, 1917, I want you to tell tbe jury wbat facts, if any, wbat conclusions, if any, you found on tbat day, and why you did not embody your findings and conclusions in tbe eertificáte of tbat date?” Plaintiffs object; objection sustained; defendants except.

Questions by tbe court:

“Q. At tbe time you took tbis acknowledgment, did you attempt to do anything else except to take tbe ordinary private examination of tbe wife? A. I did ask more questions than I usually do.

“Q. At tbat time, you didn’t mean to set out anything different from tbe ordinary private examination? A. There was a good deal of discussion and talk.

“Q. You didn’t attempt to find tbe facts and adjudge tbe matters as required by tbis section of tbis Kevisal? A. No, sir.

“Q. You didn’t know tbat section was in existence? A. No, sir.”

Tbe following evidence was excluded:

“Q. (Defendants’ counsel): Tell wbat conclusions you formed in your own mind when tbis deed was executed by Simeon 0. Beaver and wife to themselves ? A. I came to tbe conclusion tbat it certainly could not injure ber. It never bad been ber land. It originally belonged to him and, as tbey botb stated, be turned it over to ber as protection, and she now turned it back, and in tbe event of bis death it would go to ber. She could not possibly be injured in any way. I found tbis at tbat time.”

To tbe foregoing tbe plaintiffs object; objection sustained; defendants except.

*500“Q. Did you come to that conclusion? A. I came to the conclusion that it could not possibly be injurious to her at that time.”

To the foregoing question and answer plaintiffs object; objection sustained. Evidence excluded; defendant excepts.

“Q. After you found out that you had omitted your conclusions from the certificate, and that the law required your conclusions to be embodied in your certificate, did you then file a new certificate to that deed ? A. I did.”

To the foregoing question and answer the plaintiffs object; objection sustained. Evidence excluded; the defendants except.

WQ. Is this certificate attached to the deed which I hand you, that is, the certificate that you signed on 29 June, 1921? A. Yes, sir.”

. (This was after the death of both parties, and the new certificate was drawn up on 29 June, 1921.) .

“Q. Does this certificate, dated 29 June, 1921, embrace and set out your conclusions you came to on 2 November, 1917 ? A. Yes.”

Plaintiffs object; sustained; defendants except.

“Q. At the time you drew the deed on 2 November, 1917, mentioned in the pleadings, did you know that the law required your conclusions to be set out? A. No, sir.”

“Q. If you had known that there was such a law, would you have embodied it in your certificate?” Plaintiffs object; sustained; defendant excepts.

The defendant proposed to show that if the justice had known that the law required his conclusions to be put in his certificate, that he would have put them in, and that his findings and conclusions were omitted through ignorance or inadvertence.

The defendant next offered in evidence the deed dated 2 November, 1917, heretofore introduced in evidence, together with the certificate of probate signed by W. L. Kimball, justice of the peace, on 20 J une, 1921, and registered in Book 167, page 99, which new certificate is in words and figures as follows (omitting acknowledgment and privy examination, which are in the usual form):

I further certify that on said 2 November, 1917,1 carefully examined •into the facts causing the execution of said deed, and found that the original deed was in the name of Simeon C. Beaver, and that he became financially involved, and in order to save his lands, executed a deed to his wife, Mary J. Beaver, and that she held the title to said lands in trust and upon the understanding and agreement to reconvey the same to him when called upon, and that she really had no interest in said real estate; I further find as a fact, at said time, that the said Mary J. Beaver desired to execute a title to her said husband for said lands, and *501it was tbe purpose to so fix tbe title that tbe survivor should have tbe land at tbe death of tbe other. I also certify that I found as a fact, on 2 November, 1917, that said conveyance of said deed from Simeon 0. Beaver and wife, Mary J. Beaver, was not unreasonable or injurious to her, tbe said Mary J. Beaver, and that no undue advantage was taken of her. All of tbe foregoing facts were found by me, and tbe acknowledgment made by Mary J. Beaver on 2 November, 1917, tbe date of tbe execution of tbe said deed, and tbe date that tbe probate was made, and that these facts were omitted by me through ignorance of tbe law, mistake, and inadvertence.

Witness my band and private seal, this 29 June, 1921.

W. L. Kimball, [seal.]

Justice of the Peace.

This certificate is to be read in connection with and as a part of tbe deed heretofore offered in evidence.

NORTH CAROLINA-BowAN COUNTY.

Tbe foregoing certificate of W. L. Kimball, a justice of tbe peace of Eowan County, is adjudged to be in due form and according to law. Therefore, let tbe said deed with this certificate be registered.

J.' F. McOubbins,

Cleric Superior Court.

Eegistered in Book 167, at page 99, on 4 July, 1921, at 10 a. m.

To tbe introduction of tbe foregoing deed, with last certificate of probate, tbe plaintiffs object; sustained; defendants except.

Cross-examination: “I found out that my certificate of probate was improper when this case came up. I dictated' my last certificate.”

“Q. Could you dictate to tbe stenographer tbe certificate? A. Yes. On tbe private examination of tbe said M. J. Beaver, she says that she executed tbe same freely, of her own will and accord, without any influence. I find that she voluntarily said that she executed tbe deed voluntarily, without any fear of her husband or any one, and that she still voluntarily assents thereto, and that she further said that she wanted Mr. Beaver to have tbe land, that it was bis land, bad been bis land, and be bad given it to her because be bad got in a little trouble, intended to make it back as soon as tbe time came 'to do it; tbe time bad now come, and she wanted him to have it, in case of bis death she wanted it so that tbe one who would survive would get tbe land. As to tbe findings of fact that it was not injurious, this is an unusual certificate, you know. I could not do that. It is not on our blanks. Defendants’ counsel prepared tbe certificate. That is, be typewrote it, but I read it over. I am willing to swear to anything that is on it. It is my certificate, if be did write it.”

*502R. A. Smith testified for defendants: “I was a magistrate and drew a deed from Simeon C. Beaver and bis wife, Mary J. Beaver. I do not remember who was present, but I know that he was present, and sbe also.”

“Q. (By defendant) ‘You may state wbat they told yon about this deed, the way they wanted it fixed, and wbat was the understanding, if any, between Simeon C. Beaver and Mary J. Beaver.’ ” To the foregoing question plaintiffs object; sustained; defendants except.

The defendant proposed to show by this witness the following facts: “I was called to bis home to fix some papers for him. He wanted a deed made for the property; that it was Simeon C. Beaver’s property and they wanted it made to bis wife. I asked why, and be sáid, ‘Well, be got into some trouble some way, and be. wished to make the deed to her.’ 1 drew the papers the best I knew bow, and the papers were recorded. My recollection was that be wanted a deed made to her in order to keep from paying a certain sum, or something like that; there was some trouble that be was looking for, and be wanted to make this deed to bis wife that way.”

“Q. Was anything said about bow long she was to bold it for him? A. I would not be positive whether there was or not. Four or five years after this deed was made, sbe asked me if they could sell and make a good title, and I told them that they could, so far as I knew. I do not remember the number of acres.”

The judge charged the jury as follows: “In this case of Smith v. Beaver, the defendant Archie Beaver relies entirely on the deed dated 2 November, 1917, which S. C. Beaver and bis wife attempted to execute to S. C. Beaver and wife. The court instructs you, gentlemen, as a matter of law, that the deed is void, and that S. C. Beaver, under whom the defendant Archie Beaver claims, took nothing by it. Now, that being the view of the law taken by the court, it is unnecessary to go further into the facts, as be relies entirely on that deed, and if the deed is void, be bad no title whatever to this particular tract of land. The will of S. C. Beaver, so far as this tract of land is concerned, did not pass the title to it, be did not own it, and be could not will it. As I understand it, there is another tract of land about which there is no controversy, devised by Beaver to this same defendant, Archie Beaver, but as the deed was void, any attempt that .S. C. Beaver made to devise the land by the will, in so far as this particular tract of land is concerned, conveyed nothing.

“Now, this court submits for your consideration the following issue, gentlemen: Are the plaintiffs the owners in fee simple of an undivided three-fourths interest in the lands described in the complaint, as therein alleged ?

*503“The court instructs you, gentlemen, that if you believe the evidence taken in its light most favorable tt> the defendant Archie Beaver, you will answer that issue ‘Yes.’ If you do not believe the evidence, you will answer it ‘No.’ ”

To the foregoing charge, and to the court directing the jury that if they believed the evidence they should answer the issue “Yes,” and to the failure to give instructions requested, the defendant excepted.

The jury answered the issue “Yes.”

Judgment for plaintiff, and exception by defendant, who appealed.

Rendleman & Rendleman for plaintiffs.

B. D. McOubbins and R. Lee Wright for defendants.

Walker, J.,

after stating the case: Whatever may be the true rule in cases of this kind, concerning the power of the justice to alter his certificate, as to the probate of a deed and privy examination of a married woman, who was a party to it, he cannot do so long after the probate was taken and the certificate had been made and filed (on 2 November, 1917), and the deed duly registered on that date, when the justice admitted, in answer to questions from the judge, as was done in this case, that “he did not attempt to find the facts and adjudge the matters as required by section of the Revisal, and that he did not even know, at the time (2 November, 1917), that the section was in existence,” and it appears that both of the parties to the deed, husband and wife, were dead at the time the justice made an.entirely new certificate in which he attempts to find material facts not stated in his first certificate, and essential to have been found and inserted in it at the time it was made.

In the case of Butler v. Butler, 169 N. C., 584, this Court, in considering a somewhat similar case, said, through Justice Allen, at p. 588: “There is much conflict of authority as to the power of a judicial officer to amend his certificate of probate after the instrument he is probating has passed from his hands, but it seems that the weight of authority is against the exercise of the power (1 Devlin on Deeds, sec. 539 et seq.), and all agree that it is a power fraught with many dangers. The higher judicial tribunals are not permitted to correct their records without notice to the parties and without an opportunity to be heard, and if the position of the defendant can be maintained, a justice of the peace, who has no fixed place for the performance of his official duties, may at any time, and when parties cannot be heard, change his certificate of probate and materially affect the titles of property.”

The exercise of the power of amendment by a justice in a ease of this kind was fully discussed in the several opinions filed in Butler v. Butler, *504 supra, and we need not extend that discussion but very little in tbis opinion. Tbe case of Jordan v. Corey, 5 Ind., 385, where the Court beld tbat tbe justice could amend bis certificate, is said, in 1 A. & E. (2 ed.), at pp. 552 and 553, and notes, to bave been disapproved by tbe other courts as being wholly unsupported by reason or by precedents elsewhere, and tbe Supreme Court of Missouri, which at one time adopted tbe same doctrine in Wannall v. Kern, 51 Mo., 150, afterwards disapproved and overruled tbe case in Gilbraith v. Gallivan, 78 Mo., 456, and it was also criticised, and tbe Court refused to follow it, in Griffith v. Venters, 91 Ala., 366 (24 Am. St. Rep., 918), where tbe subject is fully and exhaustively treated and many authorities cited, showing bow tbe question is viewed by tbe courts generally of tbis country. Tbe Supreme Court of tbe United States bad tbis question before it in Elliott v. Lessee of Peirsol, 1 Peters (U. S., 328 (7 L. Ed.), 164, where it was said: “Had tbe clerk authority to alter tbe record of bis certificate of tbe acknowledgment of tbe deed at any time after tbe record was made? We are of tbe opinion be bad not. We think be acted ministerially and not judicially in tbe matter. Until bis certificate of tbe acknowledgment of Elliott and wife was recorded, it was, in its nature, but an act in pais, and alterable at tbe pleasure of tbe officer. But tbe authority of tbe clerk to make and record a certificate of tbe acknowledgment of tbe deed was functus officio as soon as tbe record was made. By tbe exertion of bis authority, tbe authority itself became exhausted. Tbe act bad become matter of record, fixed, permanent, and unalterable; and tbe remaining powers and duty of tbe clerk were only to keep and preserve tbe record safely. If a clerk may, after a deed, together with tbe acknowledgment or probate thereof, bave been committed to record, under color of amendment, add anything to tbe record of tbe acknowledgment, we can see no just reason why be may not also subtract from it. Tbe doctrine tbat a clerk may at any time, without limitation, alter tbe record of tbe acknowledgment of a deed made in bis office would be, in practice, of very dangerous consequence to tbe land titles of tbe country, and cannot receive tbe sanction of tbis Court.” There are numerous cases to tbe same effect. But we will not base our decision of tbis case upon a- lack of power residing in the probate officer to amend bis certificate after it has been fully executed, filed, and acted upon by a registration of tbe deed, or instrument, for we are of tbe opinion tbat if such a power exists, it should not extend to a Case like tbe one we are now considering, as before any such power should be exerted, the party (for instance, tbe feme covert) whose interests may be, and likely will be, materially and vitally affected by it, should bave bad notice of what was intended to be done a reasonable time before it was done, and a fair *505opportunity to be beard in opposition to it, and to defend and.safeguard ber rights, and such an amendment should not be permitted after the death of the feme, who is by the statute required toffie privately examined separate and apart from her husband, and who would be the only witness, except the justice, to the fact, as to whether her examination by him was conducted according to the statute (Rev., 2107; C. S., 2515), otherwise those claiming under her would be completely at the mercy of the probate officer, and this limitation upon his power is more imperatively required because by the statute his findings are made conclusive. That parties are entitled to notice, and a hearing, before substantial and material alterations can in any event be made would seem to require no authority, as Justice Allen said in the Bidler case, supra, and we repeat it here, because of its great importance, even “the higher tribunals are not permitted to correct their records without notice to the parties and without an opportunity to be heard,” and further, he said: “And if the position of the defendant can be maintained, a justice of the peace, who has no fixed place for the performance of his official duties, may, at any timé and when parties cannot be heard, change the certificate of probate and materially affect the title to property.” This matter has been considered in the courts of other jurisdictions. In Enterprise Transit Co. v. Sheedy, 49 Am. Rep., 130, the headnote reads: “A notary public, having made and delivered a defective certificate of acknowledgment of a deed, cannot amend it in the absence of the grantor.” And the Court said in its opinion: “This attempt to impart life to a void instrument has the merit of novelty. When Mrs. Sheedy affixed her name to the written instrument and acknowledged it, the acknowledgment was confessedly so defective as not to bind her or pass her title to the land. It was then delivered, and eleven days thereafter recorded. More than five months after the acknowledgment was actually taken, and the certificate thereof signed by the notary public indorsed thereon, he wrote and signed a second certificate of acknowledgment. The parties to the instrument did not again come before him, but he certifies what occurred months before. To this last certificate he adds facts not contained in his former certificate, with a view and for the purpose of making valid the writing of a married woman, which was then invalid. Effect cannot be given to this latter action of the notary public.” And Merritt v. Yates, 71 Ill., 638 (22 Am. Rep., 128), where a similar question was presented, the Court said: “It is also contended that the subsequent certificate, written by the justice of the peace on the deed some years after the first was made, cured the defective certificate, although the deed was not reacknowledged. ¥e have been referred to no precedent for such action, and we would confidently expect that none could *506be faund. Anciently, such, acknowledgments could only be taken in open court, and entered on the records of the court in proceedings tedious, expensive, and encumbered with much form. It was at that time regarded of too much moment to be left to the loose and uncertain action of unskilled persons, and the title to property held by married women was guarded with such care as only to permit it to be divested by the judgment of a court of record. Justices of the peace, and the other enumerated officers, have, however, under our laws, been entrusted with the power to take and certify such acknowledgments, and when in conformity with the statute, the act is clothed with the same force and effect that was anciently produced by the judgment of a court of record. It is said that courts of record permit amendments to their records — sheriffs to amend their returns, and compel officers by mcm-damus to perform legal duties. There is no rule more rigidly enforced than that the opposite party must have notice in all cases of amendments of records in matters of substance, and the amendment here is of the very essence of the conveyance itself. And it is true that the court, in a proper case, and on notice to the opposite party, will permit the sheriff to amend his return. O’Connor v. Wilson, 57 Ill., 226. But we are aware of no statute or common-law practice which authorizes or in any manner sanctions the right of justices of the peace to amend their records after they have once been made. To allow a justice to make alterations and changes in his records, at will and according to his whim, would be fraught with evil and wrong that would be oppressive. Such a power has not been entrusted to the higher courts, and cannot be exercised by these inferior jurisdictions.” The Court further observed that the failure of the officer to properly take and certify the probate may seriously affect the rights of parties, “but that is no ground for violating rules that have governed the purchase and sale of real estate from the organization of our State,” and that the defendant must be left to any other remedy he may have in law or equity, if he has any. It was finally held that the deed, the certificate to which was altered, was improperly read in evidence, and for that reason the judgment was reversed. We have a provision in our law (Code, sec. 1266; Rev., 1081; C. S., 3321) for correcting errors in the registration of instruments, but it requires notice and a hearing before any material correction is made therein.

In a case like ours, where the amendment of the certificate is fraught with such grave consequences, the well settled rule as to notice and hearing should not be departed from. Eor these reasons we have reached the conclusion that the evidence as to the new certificate, and also the other evidence relating to it, and the alteration of the first certificate, was properly excluded by Judge MeElroy at the trial of the case.

*507 We again direct particular attention to tbe fact, before closing, tbat tbe justice admitted, wben examined by tbe judge, tbat “be made no attempt to find tbe facts and adjudge tbe matters as required by Bev., 2107 (O. S., 2515), and was not even aware of its existence, and bis evidence substantially amounts to no more tban tbis, tbat if be bad known of tbe law, be would bave found tbe facts and bis conclusions tbereon and stated tbem in tbe original certificate. As said by Justice Allen, in Butler v. Butler, supra,, at pp. 588 and 589, “Tbe remainder of tbe certificate of tbat date (1912) is in regular form, and gives evidence of tbe acts of an official of some experience, and if be tben knew tbat it was necessary to adjudicate tbat tbe conveyance was not unreasonable, and not injurious to tbe wife, and be did so adjudicate at tbat time, be would bave included it in bis certificate.” Tbe fact tbat tbis was not done is strong proof tbat be is mistaking bis findings of 1921 for those wbieb be should bave made in 1917, but which be evidently did not make, as tbe law required, and insert in bis certificate. If be did find tbe facts, why did be do so, if be did not know it was necessary to consider tbe matter? Tbe evidence, viewed as a whole, is entirely of too unsatisfactory a character to induce a court to act upon it, and reform as solemn an instrument as tbe acknowledgment and private examination of a married woman.

A full and exhaustive consideration of tbe general power of a justice, or probate officer, to materially alter bis certificate once given and upon which tbe deed has been registered, will be found in Griffith v. Ventress, 91 Ala., 918 (24 Am. Reports, 918).

As defendant relied entirely on tbe validity of tbe deed in question, and it being invalid as to Mrs. Beaver, be acquired no title to it under tbe deed, and consequently none under Mr. Beaver’s will, tbe title remaining in Mrs. Beaver, because tbe deed not having been executed and probated properly was void as to her. Kearney v. Vann, 154 N. C., 311; Wallin v. Rice, 170 N. C., 417; Butler v. Butler, 169 N. C., 584; Foster v. Williams, 182 N. C., 632.

It must be understood tbat we confine our decision strictly to tbe grounds stated in it, and it should not be construed as covering tbe general and broader question as to whether tbe certificate of a justice, as probate officer, can be materially amended after it has been completed and passed from bis possession, and tbe deed has been registered upon it. We decide tbe case on other grounds.

There was no error in tbe rulings and judgment of tbe court, and it will be so certified.

No error.