#### ANDREW J. BARWICK vs. JAMES WOOD.

Where both plaintiff and defendant claim under the same person, neither can be heard to deny that person’s title, and neither can take any thing by showing an outstanding paramount title, unless he has procured that title,, olean in some way connect himself with the true owner.

One who has a remainder in slaves in right of his wife after a life-estate in another, cannot pass the title during the life-estate; but if, during such life-estate the husband and wife make a deed of the slaves, and afterwards the life-estate fall in, the wife still being alive, the title will enure to the benefit of the grantee, by relation back, and will thus be perfected in him by estoppel.

A witness who swears that he is well acquainted with the hand-writing of a person, no question being- asked him by the opposing party as to how he became acquainted with such hand-writing-, is qualified prima facie to testify as to such hand-writing.

Whether this Court can, in a collateral proceeding, review the decision of a County Court in regard to the sufficiency of the evidence to establish the execution of an instrument as a will of personalty, if the error appear upon the face of the certificate of probate—quare ?

This was an action of trover for the conversion of two slaves, Betsy and. Allen, tried before Ms Honor, Judge Saunders, at the Spring Term, 1856, of Lenoir Superior Court.

This cause was before -the Court at June Term, 1850, and reported in lltli Ire. Rep. 80, as JBarwich v. Bwrwiok et at. The plaintiff claims title to tbe slaves in question, by a deed or bill of sale from Joshua Barwick and Winefred Ms wife, executed in 1837, conveying their interest in a lot of negroes which are named, and which interest is recited as being derived to tliem under the will of Benjamin Sutton. Under this will, Sutton’s whole negro property, with the land. &c., is giv*307en to his widow during her life, then to be equally divided between his four daughters, of whom Winefred, intermarried with Joshua Barwick, is one. The provision of the will as to this part, is as follows: “ which they are to hold possession and enjoy during their natural lives ; then my will and desire is, that at the death of my daughters, Nancy Sutton, Winefred Barwick, Mary Rouse, and Elizabeth Ellis, that the property -heretofore mentioned that I lent to my beloved wife Sarah Sutton, is hereby intended to be also lent unto my four daughters here above mentioned, and at their death given to the lawful begotten heirs of their body.”

Mrs. Sutton held these slaves, including the two in controversy from the death of her husband, which occurred about the year 1832, until her own death, which took place in 1846.

At-the July term of the County Court of Lenoir, commissioners were appointed to divide the negroes according to the will, who did so, and their division was confirmed at the Term of the Court following; according to which proceeding, the slaves, Allen and Betsy, were allotted to Joshua Barwick and wife. On the 4th of November ensuing, they conveyed these two slaves to the defendant James Wood. Before the death of Mrs. Sutton, in the Spring of 1846, the plaintiff had got possession of the slaves as her bailee, and after her death retained them as his own property. In the latter part of October, 1846, the slaves were taken out of the possession of the plaintiff by the defendant Wood, in the night time, and carried South by the rail-road cars, and since then have not been heard from.

The defendant objected to the reception of the will of Benjamin Sutton as not having been duly proved. The certificate of probate relied on, is as follows :

State of North Carolina, { Court of Pleas and Quarter SesLenoir County.

“ The foregoing last will and testament of Benjamin Sutton, sen’r., deceased, is offered for probate, and Luis O. Desmond and Wm. H. Groom being duly sworn, make oath and say, that they are well acquainted with the hand-writing of Abra*308ham Groom and Joshua II. Byrd, the subscribing witnesses to the said last will and testament of Benjamin Sutton, deceased, and that their respective signatures as subscribing witnesses to the said last will and testament of Benjamin Sutton, dee’d., are in the proper hand-writing of them the said Abraham Groom and Joshua IT. Byrd, and they verily believe that the said Abraham Groom and Joshua IT. Byrd affixed their said signatures as subscribing witnesses, respectively to the • said will, and that the said Abraham Groom is dead, and that the other two subscribing witnesses, Joshua H. Byrd and Robert Mitchell, have long since removed from the State of North Carolina, and when last heard from, were citizens and residents of distant States ; whereupon it is ordered by the Court that the said last will and testament of Benjamin Sutton, deceased, be recorded.” IV. O. Lomu, Clerk.

His Honor overruled the objection, and admitted the will, to which defendant excepted.

There was evidence offered on behalf of defendant, tending to show that at the date of the bill of sale, the plaintiff Joshua Barwick was in debt, and that the bill of sale was fraudulent as to his creditors. There was evidence also, tending to show that the defendant knew of the former conveyance at the time he purchased the slaves.

His Honor charged the jury, that “if the bill of sale to the plaintiff was made, not bona fide and for a full consideration, it was fraududent as to creditors, and also as to subsequent purchasers without notice. But that if the jury should be convinced that the bill of sale to the plaintiff was originally fraudulent as to the creditors of Joshua Barwick, yet if the defendant purchased with notice, the plaintiff would be entitled to recover; for the defendant not being a creditor of Joshua Barwick, if he purchased with notice of the plaintiff’s claim, he purchased as a speculator, and must abide the consequences.” To this charge defendant also excepted.

It was insisted by the defendant’s counsel, that, as it does not appear from the record that the executors named in the will ever qualified, there could not be any assent to the lega*309cy, and therefore that the plaintiff eonld not recover ; and for the Judge’s not so instructing the jury, the defendant further excepted.

Yerdict and judgment for the plaintiff, and appeal by the defendant.

Bryan, for plaintiff.

Moore and Dortch, for defendant.

Pearson, J.

1. The defendant has certainly no right to complain of the charge; the error was in his favor. It is settled that 27 Eliz. (Eev. Code, ch. 50, sec. 2,) which protects subsequent purchasers, does not embrace personal property, and the common law only protected against fraud, rights which existed at the time of the fraudulent conveyance. Long v. Wright, decided at this term, ante 290, and the cases there cited.

2. The defendant insisted that the plaintiff had failed to malee out his title; for, that it did not appear from the probate of the will of Benjamin Sutton, that the executors, therein named had qualified. The reply is, in the first place, that both parties claim under deeds executed by Joshua Barwick, and it is a well established principle, that when the plaintiff and defendant both claim under the same person, neither can be heard to deny his title, and the controversy is narrowed down to the question, which of the two has derived the better title from him ; and the defendant can take nothing by showing an outstanding paramount title, in a third person, unless he has procured that title, or can in some way connect himself with the true owner. In the second place, the possession of these slaves has been held under, and in pursuance of, the will, from 1832 to' 1816, when the defendant took them out of plaintiff’s possession, and this action was commenced. In fact the possession has been held under the will up to the present time, for the defendant claims under Joshua Barwick, who derived title under it. An executor may assent to a legacy before probate, and every presumption will *310be made in support of a possession which has been held without interruption for so many years.

3. In 1837, the date of the conveyance to plaintiff, Joshua Barwick had but a remainder in right of his wife, after a life-estate in the widow, who was then living, and Barwick could not pass the title during her life. See this same case, 11 Be. Rep. 80.

That is true, but in 1846 the widow died, and Barwick then took the slaves into possession, his wife being still living; this gave him the title which enured to the plaintiff’s benefit by relation back, and, as is said in the books, “fed the estoppel.” Fortescue v. Satterthwaite, 1 Ire. Rep. 566 ; McNeely v. Hart, 10 Ire. 63; Christmas v. Oliver, 2 Smith’s leading cases, 417, 458.

4. lire will was not admissible as evidence, because the probate shows on its face that it was taken upon insufficient evidence, in this, that the witnesses say merely “ they were well acquainted with the hand-writing of the subscribing witnesses,” but do not say they had ever seen them write, or state how they acquired a knowledge of the hand-writing; for this Carrier v. Hampton, 11 Ire. Rep. 307, is relied on.

We think when a witness states he is well acquainted with the hand-writing, he is qualified to testify to it prima facie; and that the mode by which he acquired his knowledge is a matter for cross examination. As, when the witness says he is well acquainted with the general character of a person, he may say what it is, unless upon enquiry as to how long ho had known the person, how far he lived from him, &c., it be shown that he had not the opportunity of becoming so well acquainted with it as to qualify himself to speak to it. Bo this case is distinguishable from Carrier v. Hampton; for there the witness did not say he was well acquainted with the handwriting, or even that he was acquainted with it; but swore merely that the signature was in the hand-writing of the grantor.

5. It was assumed in the argument that this Court can review the decision of the County Court in regard to the suffi*311ciency of the evidence to establish the execution of an instrument, as a will of personalty, if the error appéars on the face of the certificate of probate. ¥e are not now called upon to decide the question, and therefore leave it open; because, supposing we have the power to review the decision. of the County Court in this collateral way, we are of opinion there is no error, and refer to the point now, by way of protestando, which is the “exclusion of a conclusion.” In Marshall v. Fisher, 1 Jones’ 111, the Court being of opinion there was no error in regard to the probato of the devise, this point was not adverted to.

The probate of a deed for the purpose of registration, is an ex parte proceeding, and when it is offered in evidence the Court may treat the probate as inoperative, if an error appears on the face of the certificate of probate, Carrier v. Hampton, supra; Horton v. Bagley, 1 Hawks’ Rep. 48 ; Beckwith v. Lamb, 18 Ire. Rep. 400. Indeed, that is the only way in which tiie validity of the probate of the deeds of femes covert can be examined. But there may be a distinction between this class of cases and the probate of wills of personalty, In England the Ecclesiastical Court has exclusive jurisdiction ; the question of the execution of a will is tried by the certificate of the ordinary, and the Courts of Common Law do not review his decision, holding that it cannot be impeached collaterally, and must be set aside by a direct proceeding in the Court of probate. In this State the County Court is substituted in place of the Ecclesiastical Court, with the right of appeal, which is quite different from an ex parte probate; and it would seem that when a Court has exclusive jurisdiction, and a case is properly constituted before it, its action must be conclusive until it be reversed. It is otherwise when there is a want of jurisdiction, or when it appears on the face of the proceedings, that the case was not properly constituted before it, as if process was not served on tire party whose rights are to be affected by the judgment or decree. Irby v. Wilson, 1 Dev. and Bat. Eq. 568; Drake v. Merrill, 2 Jones’ Rep. 368. So, a grant, issued by a proper authority of land subj ect to grant, *312cannot be impeached collaterally in an action of ejectment on the ground of irregularity or fraud in obtaining it; but if it be of land not subject to entry, it is treated as void, and the obj ection may bo taken in an action at law. Stanmire v. Powell, 13 Ire. Rep. 312; Stanmire v. Welch, ante 214.

Per Curiam.

Judgment affirmed.