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 [505] opportunity 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, 7
Free access — add to your briefcase to read the full text and ask questions with AI
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 [505] opportunity 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 [506] be 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.