Barrett v. . Barrett

26 S.E. 691, 120 N.C. 127

• Court: Supreme Court of North Carolina
• Decided: February 5, 1897
• Status: Published

Opinion

ClaeK, J.:

The acknowledgment and privy examination of the wife having been takeii prior to the proof of the execution of the deed by the husband, the probate was insufficient, under the Code, Section 1256; McGlennery v. Miller, 90 N. C., 215; Ferguson v. Kinsland, 93 N. C., 337; Southerland v. Hunter, Ibid, 310; Lineberger v. Tidwell, 104 N. C., 506. A registration had upon an unauthorized probate is invalid. DeCourcy s. Barr, 45 N. C., 181; Todd v. Outlaw, 79 N. C., 235; Duke v. Markham,, 105 N. C., 131. And if third parties acquired rights, as by liens, against the grantor or conveyances from him, registered before the curative act, though with notice of such defectively probated instruments, the rights of such third parties could not be divested or impaired by the curative statute. Robinson v. Willoughby, 70 N. C., 358; Smith v. Castrix, 27 N. C., 518; Gordon v. Collett, 107 N. C. 362; Long v. Crews, 113 N. C., 256; Williams v. Kerr, Ibid, 306; Quinnerly v. Quinnerly, 114 N. C., 145. Here, however, the proceeding is between the grantors and the grantee of the grantee, and no question arises of the rights of third parties claiming under a subsequent lien against, or grant from the grantor acquired prior to the curative act. As between the parties, the deed is valid without registration.' Leggett v. Bullock, 44 N. C., 283.

The feme plaintiff signed the deed and her privy examination was properly taken. There- is no controversy on these points. The sole defect is that the privy examination was taken a few minutes or hours before the husband’s acknowledgment on the same day of the execution of the deed by him. The power of the legislature to cure such defects, as between the parties, has not only been recognized by this court in cases above cited, but elsewhere; Cooley Const. Lim. (6th Ed.), 463, 464, and numerous cases there cited. It is true, as insisted by plaintiff’s counsel, that the curative act, 1893, Ch. 293, makes valid probates where the wife’s privy examination was had prior to the husband’s “acknowledgment,” but we must take it that this embraces, in the true intendment of the act, cases like the present, in which the execution of the deed by the husband was proved by a sutscrifcing vutness, and not by his technical acknowledgment. “The -legislature may abolish all the incapacities of married women and give them full power to contract as femes sole” (subject only to the constitutional restriction that conveyances of their property cannot be made without the written assent of their husbands), Ba nk v. Howell, 118 N. C., 271, citing Pippen v. Wesson, 74 N. C., 437, 445. Whatever the effect of the' privy examination of a married woman at common law, since the Constitution of 1868 (Art. X, Sec. 6), it is amere statutory.requirement, which any legislature can abolish at will, except in conveyances of the Homestead, Cons. Art. X, Sec. 8. The legislature has power to pass, repeal or modify the laws regulating the manner of executing, proving or recording conveyances, and the exercise of such power to cure defective compliance with former statutes cannot be an interference with vested rights as between the parties to such instruments. Tatom v. White, 96 N. C., 453, 459. It only becomes so when third parties have acquired rights which would be impaired by the act which is intended to cure the defective execution, probate or registration. The deed having been signed by the wife for the purposes therein set forth, and her privy examination before a proper officer having disclosed the fact that she had done so voluntarily • and still assented thereto, we cannot agree with her able, learned and zealous counsel that such deed was void or that the'legislature infringed upon the judicial department in passing the curative statute. There was merely a defect in the probate, which, until cured, rendered the registration invalid. It is competent for the legislature to provide what mode of probate shall be valid, and when it does so it can affect past as well as future probates, except that the rights of third parties, claiming prior to the validating act, cannot be divested. Retrospective legislation is not necessarily invalid. It is only so to the extent it would divest vested rights. The feme grantor had no vested rights in the land which she had conveyed'away by her deed with the assent of her husband, which is all that the Constitution requires, except in conveyances of the homestead.

Reversed.