{ "id": 8629815, "name": "R. C. FREEMAN and C. A. McNEIL v. CHAS. C. MORRISON", "name_abbreviation": "Freeman v. Morrison", "decision_date": "1938-10-12", "docket_number": "", "first_page": "240", "last_page": "244", "citations": [ { "type": "official", "cite": "214 N.C. 240" } ], "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": "189 N. C., 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654257 ], "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/189/0356-01" ] }, { "cite": "114 N. C., 147", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "168 N. C., 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658408 ], "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/nc/168/0219-01" ] }, { "cite": "182 N. C., 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656055 ], "opinion_index": 0, "case_paths": [ "/nc/182/0408-01" ] }, { "cite": "159 N. C., 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656967 ], "opinion_index": 0, "case_paths": [ "/nc/159/0129-01" ] }, { "cite": "196 N. C., 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628639 ], "weight": 2, "pin_cites": [ { "page": "660" }, { "page": "pp. 659-660" } ], "opinion_index": 0, "case_paths": [ "/nc/196/0657-01" ] }, { "cite": "71 N. C., 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277565 ], "weight": 2, "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/nc/71/0240-01" ] }, { "cite": "8 N. C., 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275161 ], "opinion_index": 0, "case_paths": [ "/nc/8/0048-01" ] }, { "cite": "210 N. C., 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627947 ], "opinion_index": 0, "case_paths": [ "/nc/210/0603-01" ] } ], "analysis": { "cardinality": 619, "char_count": 12228, "ocr_confidence": 0.506, "pagerank": { "raw": 2.741623205814103e-07, "percentile": 0.8319849921752195 }, "sha256": "5dc691849b978bbf153937b57f1915a547cffd304f9659a279b844b266159d05", "simhash": "1:32e7976019f69646", "word_count": 2041 }, "last_updated": "2023-07-14T22:38:13.292364+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "R. C. FREEMAN and C. A. McNEIL v. CHAS. C. MORRISON." ], "opinions": [ { "text": "ClaeKSON, J.\nThe lease herein involved was recorded ten minutes prior to the deed of plaintiffs. Accordingly, if the acknowledgment, probate and registration of defendant\u2019s lease was regular, it takes precedence. N. C. Code, 1935 (Michie), secs. 3308, 3311. Knowles v. Wallace, 210 N. C., 603 (606). However, plaintiffs contend that the acknowledgment of the lessors\u2019 execution of the lease was in form insufficient to predicate a valid probate and registration of the lease.\nImmediately following the signature and seals of the lessors at the end of the lease, there appeared the following:\n\u201cWitness:\nClay L. Church.\n(Seal.)\n\u201cAcknowledged to before me, this June 4th, 1936.\nMary L. Mathis, N. P.\n\u201cMy commission expires June 25 \u2014 36.\u201d\nUpon this acknowledgment the order of probate and the registration were made. Was this acknowledgment sufficient? The answer is \u201cYes.\u201d\nAs early as Horton v. Hagler, 8 N. C., 48, it was held that when the clerk of a court of record certifies that an instrument has been \u201cduly proved,\u201d it is implied that everything required by law has been complied with, upon the maxim, res judicate pro veritate accipitwr. But when the record also states how it was to he proved and admits a material circumstance required by law the certificate of due proof is disregarded because the certificate itself shows that it was not duly proved. See Starke v. Etheridge, 71 N. C., 240, 246; McClure v. Crow, 196 N. C., 657, 660. In the instant ease, section 3323, N. C. Code, 1935 (Michie), is pertinent; there a model form of acknowledgment is given as follows :\n\u201cNorth Carolina, .County.\n\u201cI (here give name of the official and his official title), do hereby certify that (here give the name of the grantor or maker), personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and (where an official seal is required by law) official seal, this the.day of . (year).\n\u201c(Official Seal.) .\nSignature of Officer.\u201d\nThis section requires that \u201cthe form of acknowledgment shall be in substance\u201d that of the statutory model. The precise question here is whether the acknowledgment of the lease is a substantial compliance with the requirements of the statute; this question is here answered in the affirmative.\nUpon analysis of the statute it is apparent that the following facts should appear in the certificate, either by incorporation or direct reference to the instrument acknowledged: (1) Name and title of the official taking the acknowledgment; (2) name of grantor; (3) personal appearance of the grantor before the officer; (4) acknowledgment of grantor to the officer of the execution of the instrument; (5) date; and (6) signature of the officer, and, if required by law otherwise, his seal. An examination of the lease and acknowledgment in the instant case, when taken together, clearly reveals each of these facts, with the possible exception of the fact of the personal appearance of the lessor before the notary. As to this item, it does not affirmatively appear that the lessor did not come before the notary; the contrary is clearly implied in the statement that he \u201cacknowledged\u201d the lease before the notary. The factual possibility of this assumption is strengthened by the realization that the word \u201cacknowledge,\u201d as used with respect to the execution of instruments, is a \u201cshort-hand\u201d expression descriptive of the act of personal appearance before a proper officer and there stating to him the fact of the execution of the instrument as a voluntary act. In both Starke v. Etheridge, 71 N. C., 240, and Moore v. Quickle, 159 N. C., 129, the single word \u201cjurat\u201d was interpreted to mean \u201cproved,\u201d within the requirements of our law, and in Finance Co. v. Cotton Mills, 182 N. C., 408, \u201csubscribed and sworn to\u201d was treated as the equivalent of \u201cacknowledged.\u201d Such a liberal interpretation of the meaning of the word \u201cacknowledge\u201d is here adopted in this case. The presumption of regularity attaching to the act of every public officer also supports this view. In Power Corp. v. Power Co., 168 N. C., 219, 221, it was stated: \u201cIn Quinnerly v. Quinnerly, 114 N. C., 147, it is said: \u2018There was no evidence to show that the probate here was insufficient. The presumption is that it was properly taken.\u2019 \u201d This presumption of regularity attaches generally to judicial acts, and, as pointed out in McClure v. Crow, 196 N. C., 657, at pp. 659-660, \u201cTaking the acknowledgment of proof of a deed or admitting it to probate is a judicial or ^wasi-judicial act.\u201d To the same effect, see Best v. Utley, 189 N. C., 356, 362.\nThe conclusion here adopted is in agreement with the authorities generally. \u201cProbably in all jurisdictions the courts strongly advocate a liberal interpretation of the statutes, in order that acknowledgments may be upheld whenever there has been a substantial compliance with the law and no suspicion of fraud or unfairness attaches to the transaction. . . . Acknowledgments also are aided by the presumption that public officers do tbeir duty, and in further support of tbe officer\u2019s certificate resort may be bad to tbe instrument acknowledged.\u201d 1 Am. Jur., \u201cAcknowledgments,\u201d sec. 169, at p. 388. \u201cTbe courts uniformly give to certificates of acknowledgment a liberal construction, in order to sustain them if tbe substance be found, and tbe statute bas been substantially observed and followed. It is accordingly a rule of universal application tbat a literal compliance witb tbe statute is not to be required of a certificate of acknowledgment, and tbat, if it substantially conforms to tbe statutory provisions as to tbe material facts to be embodied therein, it is sufficient.\u201d 1 C. J., \u201cAcknowledgment,\u201d sec. 183, p. 841. See, also, secs. 183, 184, pp. 842-843. \u201cTbe certificate, as regards its form and contents must substantially meet tbe requirements of tbe statute. . . . Tbe form is sometimes given in tbe statute, but usually such form is only a suggestion of what is sufficient, and not strictly obligatory.\u201d 4 Thompson, Real Property, sec. 3774, p. 846. \u201cTbe policy of tbe law favors registration and will not suffer its purpose and effect to be defeated on account of immaterial omissions, patent mistakes, and inartificial expressions in tbe certificate. As a rule, tbe courts have given a liberal construction to tbe ordinary certificate of acknowledgment, and have permitted tbe omission of entire phrases of a formal character, although contained in tbe specific form prescribed by tbe statute.\u201d Webb, Record of Title, 2nd Ed., 79, p. 136. \u201cIt is not necessary tbat tbe exact language of tbe statutory requirements be followed, provided tbe necessary facts are expressed in words of substantially equivalent import. In fact, it is tbe policy of tbe law to construe certificates of acknowledgment liberally, and not allow them to be defeated by technical or unsubstantial objections, provided they are sufficient to serve tbe purpose for which used, and are in fairly substantial conformity witb tbe requirements of statute.\u201d Patton, Land Titles, sec. 204, pp. 689-690.\nWe bold tbat tbe acknowledgment in tbe lease herein considered, although technically inexact and informally stated, to be in substantial conformity to tbe requirement of our statute.\nWe find in tbe record\nNo error.", "type": "majority", "author": "ClaeKSON, J." } ], "attorneys": [ "Folger & Folger for plaintiffs.", "Earl C. J ames for defendant." ], "corrections": "", "head_matter": "R. C. FREEMAN and C. A. McNEIL v. CHAS. C. MORRISON.\n(Filed 12 October, 1938.)\n1. Vendor and Purchaser \u00a7 39\u2014\nA purchaser takes title subject to a lease recorded prior to the registration of his deed. In this case the lease was recorded ten minutes prior to the registration of the deed.\n2. Deeds \u00a7 3: Acknowledgment\u2014\nCertificates of acknowledgment will be liberally construed and will be upheld if in substantial compliance with the statute. Michie\u2019s Code, 3323.\n3. Same\u2014\nThe word \u201cacknowledgment,\u201d as used with respect to the execution of instruments, describes the act of personal appearance before a proper officer and there stating to him the fact of the execution of the instrument as a voluntary act.\n4. Same\u2014\nAn acknowledgment taken by a notary public is presumed to be regular, and when the clerk certifies the instrument for registration his certificate implies that every requirement of law has been met, unless the instrument or the certificates themselves disclose a material omission.\n5. Same \u2014 Acknowledgment in this case held sufficient to sustain probate and registration.\nThe lease involved in this case had subscribed the following notary\u2019s certificate: \u201cAcknowledged to before me, this June 4th, 1936. Mary L. Mathis, N. P. My commission expires June 25 \u2014 36.\u201d Held,: The following facts required by the statute, N. O. Code, 3323, to be shown by acknowledgments, appear from the acknowledgment or by direct reference to the instrument acknowledged: (1) Name and title of the official taking the acknowledgment; (2) name of the grantor; (3) personal appearance of the grantor before the officer; (4) acknowledgment of grantor to the officer of the execution of the instrument; (o) date; and (6) signature of the officer and the seal required for the instrument; the fact of personal appearance of the lessor being assumed from the meaning of the word \u201cacknowledged\u201d used in the notary\u2019s certificate, and from the presumption of regularity of acts of public officers, and the acknowledgment is in substantial compliance with the statute and supports probate and registration.\nAppeal by plaintiffs from Clement, J., and a jury, at July Term, 1938, of Subby.\nNo error.\nThis is an action brought by plaintiffs to recover of the defendant a certain piece of land, 75 feet by 75 feet, on which is located a filling station, in the town of Elkin, Surry County, N. C., and rent for the premises.\u201d\nThe plaintiffs claim under deed dated 23 March, 1937, from W. S. Gough (widower). The deed was filed for registration on 24 March, 1937, at 10 :40 o\u2019clock a.m., and duly registered in Book 129 of Deeds, on page 178, etc.\nThe defendant claims under a lease from ~W. S. Gough of the locus in quo for a period of five years to start 17 June, 1935, and terminating 16 June, 1940. This lease was filed for registry at 10:30 a.m., 24 March, 1937, in the office of the register of deeds and duly recorded. The lease stipulated that the rental should be le a gallon on gasoline sold.\nThe defendant introduced (1) a check payable to the order of McNeil & Freeman for $18.92 \u2014 \u201cBent for 4th month.\u201d (2) A sales slip \u201cKe-ceived for rent $14.98.\u201d\nThe plaintiffs offered the following testimony in rebuttal: \u201cPlaintiffs offered in evidence the original instrument, dated 1 June, 1935, signed by ~W. S. Gough, C. 0. Morrison and Leslie Morrison, which is offered for the purpose of attack only. This instrument was admitted and marked Plaintiffs\u2019 Exhibit B, a photostatic copy of which is attached to this case on appeal.\u201d\nThe court below charged the jury as follows: \u201cGentlemen of the jury: There is only one issue submitted to you in this case, 'Are the plaintiffs entitled to the possession of the lands described in the affidavit in this cause ?\u2019 If you find the evidence to be true as testified to by the witnesses, and as shown by the record evidence, the court instructs you to answer the issue 'No,\u2019 and with your permission I will answer it for you.\u201d\nThe issue submitted to the jury and their answer thereto is as follows: \u201cAre the plaintiffs entitled to possession of the lands described in the affidavit in this cause? Answer: 'No.\u2019\u201d\nThe court rendered judgment on the verdict. The plaintiffs made the following exceptions and assignments of error. and appealed to the Supreme Court.\n\u201c1. The court erred in admitting the evidence, over the objection of the plaintiffs, page 9 of Book 130, in the office of register of deeds of Surry County, and allowing the instrument appearing thereon to be read to the jury.\n\u201c2. The court erred in refusing to strike out the record, on page 9 of Book 130.\n\u201c3. The court erred in instructing the jury as follows: 'If you find the evidence to be true as testified to by the witness, and as shown by the record evidence, the court instructs you to answer that issue \u201cNo,\u201d and with your permission, I will answer it for you/ \u201d\nFolger & Folger for plaintiffs.\nEarl C. J ames for defendant." }, "file_name": "0240-01", "first_page_order": 308, "last_page_order": 312 }