Sluder v. Wolf Mountain Lumber Co.

106 S.E. 215, 181 N.C. 69, 1921 N.C. LEXIS 19

• Court: Supreme Court of North Carolina
• Decided: March 9, 1921
• Status: Published

Opinion

Allest, J.

This action involves the title to a tract of land containing 424 acres lying in tbe county of J ackson, and described in tbe complaint. Tbe plaintiff introduced tbe following chain of title: Deed from P. G. Bowman to Nelson B. Gowan, dated 25 May, 1880. Thence deeds and a will connecting tbe plaintiff with Nelson B. Gowan. Tbe plaintiff then offered, for tbe purpose of showing a cloud upon her title and as estoppel as against the defendants, a deed from Nelson B. Gowan to F. P. Hooper, dated 17 October, 1896, for one-fourth interest in this land, and then a deed from W. A. Henson, sheriff, to E. P. Hooper, dated 20 June, 1901, for three-fourths interest; thence subsequent deeds connecting tbe defendants with Nelson B. Gowan. Tbe plaintiff then rested.'

Tbe defendant then offered State Grant No. 290, to John T. Foster, dated 9 October, 1856; deed from John T. Foster to Robert L. Dashiell, dated 26 November, 1856; will of Robert L. Dashiell, devising tbe property to Mary J. Dashiell, his widow, exemplified copy of which was recorded in Jackson County, July 27, 1917; deed from Mary J. Dashiell to defendant, George H. Smathers, dated 23 September, 1908, and then deeds to the "Wolf Mountain Lumber Company.

The plaintiff insists that the deed from Foster to Dashiell was never properly probated. This exception cannot be sustained. The acknowledgment of the deed was taken before a commissioner of affidavits of North Carolina for the State of Maryland. No seal appears on the record, but the commissioner recites his official seal, and the same is, therefore, presumed. Johnson v. Eversole Lumber Co., 144 N. C., 717; Heath v. Cotton Mills, 115 N. C., 208. However, the statute in force in 1856, the date of the acknowledgment in question, did not require the certificate of acknowledgment made by commissioner of affidavits to be under seal. Revised Code, ch. 21, sec. 2; Johnson v. Duvale, 135 N. C., 642; Johnson v. Lumber Co., 144 N. C., 717.

There is no order of the clerk of the Superior Court of Jackson County ordering this deed to registration. We do not think this invalidates the registration. It has been, in effect, held that the fiat for registration is not absolutely essential. The statutory provision for such an order is directory and not mandatory. If the deed be in fact registered after proper probate, the lack of a fiat does not invalidate the registration. Holmes v. Marshall, 72 N. C., 37; Young v. Jackson, 92 N. C., 144; Darden v. Steamboat Co., 107 N. C., 437; Hiawassee Lumber Co. v. U. S., 288 U. S., 553.

But in any event the probate or registration of this deed is validated by ch. 204, Public-Local and Private Laws of North Carolina, extra session 1913. It is true this statute “is valid as against creditors or purchasers for value from the donor, bargainor, or lessor named in such deed only from tbe ratification of tbis act.” Tbe act. was ratified 11 October, 1913. Tbe plaintiff does not claim under tbe said deed, and derives no title by any other conveyance from tbe grantor in said deed.

It is contended “tbat tbe court erred in admitting tbe will of Robert L. Dasbiell, for tbat tbe same was not properly probated, and was not properly recorded in tbe State of North Carolina.”

We are of opinion tbat tbe probate of tbe will in tbe State of Maryland was insufficient to pass title to land in tbe State of North Carolina. Tbe will was dated 28 December, 1877. Tbe witnesses were John M. Phillips and David Terry. David Terry testified tbat be saw tbe said testator sign and seal tbe said annexed writing, and beard him publish, pronounce, and declare tbe same as and for bis last will and testament. Tbat at tbe time of tbe doing thereof tbe said testator was of sound and disposing mind, memory, and understanding so-far as tbis deponent knows, and as be verily believes; and John M. Phillips, tbe other subscribing witness thereto, was present at tbe same time with tbis deponent, and together with him subscribed bis name thereto as a witness in tbe presence of tbe testator and of each other, at tbe request of tbe testator.

There is no evidence tbat tbe other witness is dead or beyond tbe State, or tbat bis testimony cannot be q>rocured. The probate fails to comply with our statute, but we think it is cured by tbe curative act, cb. 142, Public-Local and Private Laws, extra session 1913. Tbis act contains tbe following provision, viz.; “Tbat tbis act shall not apply to pending suits or vested interests, and nothing herein shall be construed to prevent such wills from being impeached for fraud.”

Tbis will devises tbe property to Mary J. Dasbiell, under whom tbe defendants claim by deed dated 23 September, 1908. Tbe plaintiff claims also under tbe heirs at law of Robert L. Dasbiell, by deed dated 14 May, 1917, some time after tbe act was ratified. We cannot see tbat tbe plaintiff bad any vested interest in tbe land at tbe time of tbe ratification of tbe act. She certainly bad none from tbe heirs of Dasbiell, because her deed was dated some years afterwards. In our opinion, she bad no vested interest derived from Nelson R. Gowan, because it is not shown tbat be bad any title to tbe land in 1880.

If tbe will bad been defectively executed, as if it bad one witness instead of two, or if for any reason void, tbe rights of tbe heirs could not be affected by subsequent legislation, because tbis would be to make a will for one who died intestate, but curing a defect in tbe probate of a will, executed in accordance with our statutes, stands upon an entirely different footing, and if tbe power cannot be exercised, then all of tbe legislative acts validating probates of wills are void, because wills are probated after death, and tbe interest of the heir has then accrued.

Tbe question is, however, foreclosed by the unanimous opinion of the Court in Vanderbilt v. Johnson, 141 N. C., 370, which has been approved in Weston v. Lumber Co., 160 N. C., 268, and Vaught v. Williams, 177 N. C., 82.

In the Vanderbilt case the Court states the facts and its conclusion as follows: “In deraigning his title, the plaintiff offered in evidence the will of John Strother, dated 22 November, 1816. The will is attested by two witnesses, but was admitted to probate in Tennessee upon the testimony of one only. The General Assembly of North Carolina, at its session of 1885, enacted an act to cure the defects in the probate of this will, and to ratify and validate the orders of the probate courts of this State in regard thereto. Private Laws 1885, ch. 52. The referee held that the act ‘has not the effect to cure and make valid the probate of said will.’ In this we think there is error. We are of opinion that the act is valid and effectual for the purpose for which it was enacted. . . . The defendants do not claim under a deed executed by the heirs at law of John Strother, before the passage of the act, and therefore no vested right intervenes. Legislation validating the probate of deeds, curing defects in privy examinations of married women and the like, has been very common in this State, and has been uniformly upheld.”

This case is exactly like the one before us, and, instead of being overruled, it has been twice affirmed on the point now under discussion.

In Weston v. Lumber Co., supra, Walker, J., while discussing the effect of curative acts, says: “The statutes are highly remedial, and should be liberally construed, so as to embrace all cases fairly within their scope. It is constructive legislation; we are saving titles, and not destroying them. It has been said that ‘such acts are of a remedial character, and are the peculiar subjects of legislation. They are not liable to the imputation of being assumptions of judicial power.’ McFaddin v. Evans Co., 185 U. S., 505. It was further held that to validate defective jn’obates and registrations is a proper exercise of legislative power and favored by the courts.”

In the Vaught case a curative act was considered, and its effect upon the heirs, who claimed that their- interests were vested, and could not be disturbed by subsequent legislation. The decision was against the contention of the heirs, and in the course of the opinion the Court quotes from In re Patterson, 132 A. S. R., 126, that, “The heirs had no vested right to have this law forbidding the probate of such wills continued in force. Their right to the estate of the ancestor was given by statute, and it was contingent upon the fact of there being no will in existence which could be proved”; and from West Side Belt Co., 219 U. S., 92: “In Watson v. Mercer, 8 Pet., 88 (8 L. Ed., 876), such an act was sustained against a charge that it divested rights and impaired the obliga tion of a contract. Tbe act considered made valid tbe deeds of married women wbicb were invalid by reason of defective acknowledgments, and .avoided a judgment in ejectment rendered against one of tbe parties to tbe action because of sucb a defect in a deed relied on for title. Tbe controversy was between tbe successor by descent of tbe married woman and tbe grantee in tbe deed. It was said in tbe argument tbat tbe descents bad been confirmed by two judgments of tbe Supreme Court -of tbe State against tbe deed, adjudicating it to be void on points involving its validity, wbicb judgments, it was contended, were conclusive evidence tbat tbe deed was no deed, and tbat tbe rights acquired by descent were absolute vested rights. Tbe act was nevertheless sustained, as we have stated,” and from 6 R. C. L., 315, tbat, “Tbe heirs have no vested right in having any -law relating to a pending probate continued in force.”

Tbe proviso in tbe act of 1913 to tbe effect tbat tbe act shall not apply to “vested interests” does not'affect tbe result, as we have seen tbe heirs bad no vested interests.

Tbe judgment is

Affirmed.

Note. This opinion was written by Brown, J., at last term, except tbat part discussing tbe effect of tbe curative act.