
    J. J. Matthewson et al., vs. Wm. J. Spencer.
    ¡Registratioh. Heed of Feme Covert. Defective Probate. Act of 1839, ch. ■26, $ 9. The act of 1839, ch. 26, \ 9, which cures defective prohates ■after a registration of twenty ypars, applies as well to deeds executed hy femes covert as to those executed hy other persons. Toiten, J., dissented.
    
    ER.OM MABisorr.
    This was an action of ejectment from the Circuit Court of Madison county, argued before this ..Court at the April Term, 1855, and continued under advisement until the present Term. The action was commenced on the 5th of January, 1853. Upon the trial in the Circuit Court at January Term, 1855, the plaintiffs relied upon a certain deed executed by Daniel Piver and wife, in 1825, to James Hart, in Carteret county, North Carolina, as a link in their chain of title. To the reading of this deed in evidence, there was objection, on account of a defective probate -.in the privy examination of the feme covert. The Court, Judge Read presiding, sustained the. objection, admit-ing the paper as the deed of Daniel Piver alone. It seems that this -deed was recorded in the Register’s office, of Madison, on the ,18th of October, 1831, more than -twenty years before the institution of the suit At the January Term, 1855, there was verdict and judgment for the defendant, from which the plaintiffs-appealed in error.
    S. McLaNahan, for the plaintiffs.
    The first act as to the mode of probate of foreign deeds, is that of 1797, ch. 43, §' 1; C. & N., 578. The second act on the subject, is that of 1807, ch. 85, §3; C. & N., 581. The third is the act of 1809, ch. 100, § 4; C. & N., 584. But none of these acts make any provision for the probate of deeds by married women living out of the State, for lands lying within the State. That provision is found in the act of 1813, ch. 79; 2d Scott’s Revisal, p. 146. The act of 1833, ch. 92, § 1, provides for local deeds executed by husband and wife; C. & N., 594. The act of 1839, ch. 26, Nicholson’s Statutes, page 237, provides for the probate of foreign deeds and deeds made in the sister States of the Union. — 2d. section provides for the probate of the deed before a Court of record, and certified by the clerk with his seal of office, or private seal if there be none, and certificate of the Judge of the Court. Section 5 provides, that deeds, &e., may be proved in any of the States of this Union, where the parties may reside or be. Section 6 provides, for the privy examination of a feme covert, before the same officer or Court, who, under the previous sections of the act, has authority to take the probate of deeds. Section 8 provides, that where any deed shall have been theretofore proved and registered according to the provisions of that act, it shall be as effectual as if done subsequent to the provisions of said act; a saving to creditors and bona fide subsequent purchasers, &c. And section 9, provides that where a deed has been registered 20 years, the same shall be presumed to be upon lawful authority, and the probate shall be good, though the certificate on which it was registered has not been transferred to the register’s book, and no matter what has been the form of the certificate of probate or acknowledgment. The deed in this case had been registered 20 years before said suit was brought. There should have been a continuance granted in this case; see the affidavits filed.
    M. & H. BhowN, for the defendant.
    The question arises on a paper, (exhibit D.) as to its sufficiency to divest title out of a feme covert. This turns on the construction to be given to the several acts directing the mode of executing deeds by femes covert.
    
    To divest title out of a married woman there must be a strict compliance with the statutory provisions authorizing it. In the language of a learned and able Judge, “ Every ceremony, however formal, which has the least tendency to interpose the protection of the law, or the advice of an additional Judicial character, ought to be adhered to, substantially and literally.” Burgess and others, vs. Wilson, 2 Dev. L. R., 313; Elliott and others, vs. Bier sal and others, 1 Peters 338-9.
    The first act in North Carolina, authorizing a married woman to make a deed, except by fine, is the act of 1715, ch. 28. This was confined to the county where the land lies. The next act was the act of 1751, ch. 3. The next act is the Tennessee act of 1813, ch. 79.
    If any act can sustain this deed, it is the last referred to. But even under this act it is- fatally deficient. The pretended acknowledgment purports to be taken before commissioners. Before the Court can delegate this power, it must appear to the Court, that the feme covert was aged or iitfirm, and unable to attend Court. This fact necessary to give the Court power to delegate its authority is wanting. As to the construction given to the North Carolina acts, see Margaret Barfield vs. Combs, 4 Dev. L. R. 512; Sutton vs. Sutton, Dev. & Battle L. R., p. 582. The fact of inability to get to Court must appear in the record of the Court, to make an examination valid.
    The proceeding in North Carolina is, or ought to be, a record. The existence of this record when transferred to the deed must be authenticated, before the Courts of this State can judicially take notice of it. The Courts can only know the existence of records and the official characters of those who certify them, by the forms prescribed by law. There are in this case no such forms.
    The privy examination of a feme covert must be right, or the deed is not executed ■— it is void. The argument admits it bad for nineteen years, but the twentieth year made it good! If this is the meaning of the act, it will revive a large amount of deeds heretofore bad, but which are ripening. It will disturb many titles. It is a knife that cuts hath ways.
    
   McKinney, J.,

delivered the opinion of the Court.

This was an action of ejectment in the Circuit Court of Madison; verdict and judgment were for the defendant, and the plaintiffs appealed in error.

On the trial, the plaintiffs exhibited and offered to read, as a link in their chain of title, a deed of conveyance covering the premises, described in the declaration, purporting to have been executed by Daniel Piver and Jane Piver his wife, to James Hart, on the 26th of May, 1825. The defendant, by his counsel, objected to the reading of said deed, as the deed of the feme covert; and the Court sustained the objection, but permitted it to be read as the deed of the husband alone. And the only question is, did the Court err in the determination of this point ?

The ground of the objection is, that the probate and privy examination of the wife, as shown by the certificates of the clerk attached to the deed, were not taken as required by law, in order to divest the estate of a feme covert.

It is certainly true, that the deed of a feme covert does not bind' her, or pass her estate unless executed in substantial compliance with the formalities required by law; and the first enquiry for our consideration in the present case, is, was the deed in question so executed?- and, if not, secondly, is the objection obviated by the act of 1839, ch. 26, § 9?

1. The validity of the probate and privy examination is to be determined by the act of 1813, ch. 79, (2 Scott’s Rev. 146.) Piver and wife were residents of Carteret county, North Carolina. The certificates of the clerk of the Court of Pleas and Quarter Sessions for said county of Carteret, attached to said deed, show, that at the September Term of that Court, 1830, the deed was proved in open Court, by Hunt and Frazier, the subscribing witnesses; that a commission was issued by order of the Court, to take the private examination of the feme covert; and that the same was returned at the ensuing term of the Court, properly executed; all which was ordered to be certified under the seal of the Court. The deed together with the certificates of the clerk, the certificate of the presiding justice of the Court, the commission to take the private examination of the feme covert, and the return thereon, were registered in the Register’s office of Madison county, in this State, where the land is situate, on the 18th day of October, 1831, more than twenty years before the commencement of the present action. It is sufficiently apparent from the statement of facts contained in the certificates of the clerk — if certified in the proper manner — that the probate of the deed, and private examination of the jeme covert, were in all respects regular, and in conformity with the requirements of the act of 1813: and sufficient to divest the married woman of her estate, and to entitle the deed to be registered in this State.

The objection that the commission issued without authority, to take the examination of the wife, because it is not shown that she was “ aged or infirm,” so as to be unable to attend the Court, is, in our opinion ■untenable. The commission upon its face recites the fact, that it was represented to the Court, “ that Jane Fiver, wife of Daniel Piver, is so infirm that she cannot travel to the said Court,” &c. This commission is not the mere ministerial act of the clerk; it is a set form incorporated into the act of 1751, ch. 3, § 4, (1 Scott’s Rev. 83;) its issuance is by the order •of the Court, and in every proper sense, is the act of the Court; and the recitals and statement of facts therein contained, cannot be collaterally questioned or impeached; and the recital in the commission of the ground upon which it issued — the infirmity of the feme covert, which disabled her to attend the Court in person — is entitled to all the^consideration and effect, that a recital of the same faet, in the entry upon the minutes of the Court, directing the issuance of the commission, would have been entitled to.

The objection to the probate in the present ease, is, that the clerk, in his certificates, does not give copies of the record of the Court, of the orders of probate, the issuance of the commission, and the return thereof; but merely a statement of his own, as to what took place. It was held in McIver's lessee vs. Clay, 9 Yerg. 257, that a certificate of probate in this form, was insufficient and did not entitle the deed to registration.

This decision, which, it was apprehended might tend to disturb the titles to real estate to a great extent, probably led to the passage of the act of 1839, ch. 26.

2. And this brings us to the question, whether the ninth section of that act applies to and obviates the objection to the probate of the deed under consideration.

This section of the acts may be thought by some to be a strong exercise of legislative power. Be .this as it may, however, no question can be raised as to its validity. Being confined merely to the remedy, and not affecting vested rights, it steers- clear of the constitutional objection against retrospective legislation». And falling clearly within the competence of the legislative power, it is the duty of the Courts to carry its provisions into effect, according to their proper import and meaning. It was to meet and to cure, perhaps, every case of defective probate, declared such by the Courts, in a long' series of judicial determina*-tions. And after providing for various specific cases, including the case of a clerk’s certificate which “ does not purport to be -a transcript from the minutes” of the Court, it contains the following general provision: “ And whenever a deed has been registered twenty years or more, the same shall be presumed to be upon lawful authority; and the probate shall be good and effectual, though the certificate on which the same has been registered has not been transferred to the Register’s book; and no- matter what has been the form of the certificate of probate or acknowledg-ment.”

• The provisions of this section, it is argued, do not, in terms, apply to a deed executed by a feme covert; and ought not to- be so applied by construction. We are aware of no rule of construction applicable- to a statute of this nature, that warrants such a conclusion. The principle of this statute, is simply the principle1 of the ordinaxy statutes of limitation, differently applied. And the doctrine is well established at this day, that a statute of limitations runs against all persons, not in express terms excepted from its operation; and, consequently infants and maiTied women are barred if there be no saving clause or exception in their favor. {Angel on Lim. 204, 205.) The established rule is, that the general words of a statute are to receive a general contraction; and unless there can be found in the statute itself, some ground for restraining it, it cannot be restrained by arbitrary judicial decision. — lb.

The necessity and policy of the law are, in our view, alike applicable to the deeds of married women as to other persons; and we perceive no just reason why they should be exempted from its operation. No legislation, perhaps, in the present condition of the eountry, is more urgently demanded, or more universally sanctioned, or promotive, in a higher degree, of the general interests of the community, than that which has for its object the security of 'titles to real estate and quieting long possession of the soil.

The result of our opinion is, that the ninth section of the act of 1839, ch. 26, applies to the deed under consideration, and removes the objection to the probate, both as to the husband and wife.

Judgment reversed and the case remanded.

Totten, Judge,

dissented. I do not concur in the construction given to the ninth section of the act of 1839, ch. 26, in respect to- the deed of a feme covert. In Scott vs. Buchanan, 11 Humph. 472, the Court say, “At the common law, a conveyance by a feme covert, except by some matter of record, was absolutely void; and the only modes by which she could convey title to her real estate, were by fine and common recovery. A different and more convenient rule has been adopted by statute, in most, if not all the States of the Union; and that is by the joint deed of the husband and wife, and the private examination of the wife, as required by the statute authorizing this mode of conveyance. Such, as is well known, is the settled law and usage of our own State. The deed of a feme covert, so made, will have the same force and effect to pass her title to real estate, so far as it can be effected by her disability, as if she were a feme sole."

And in Perry vs. Calhoun's lessee, 8 Hum. R. 556, Turley, Judge, delivering the opinion of the Court, says, “A feme covert cannot convey a title to her lands except by a deed executed upon her private examination, made as the law directs; her signature to a deed without such private examination, is a nullity; her deeds of all kinds are void without such examination ; it is the examination which gives them validity, and not the signature; the signature being a nullity without such examination. It then, necessarily follows, that there is no divestiture of title till such examination be had, and that if suit be brought before, it is brought without title in the lessor of the plaintiff. It is not similar, in any respect, to the case of an unregistered deed of a man or feme sole; in such case, the execution of the deed by the signature, constitutes it a good and valid deed, being made by one having authority in law to execute it, an inchoate legal title is passed by it, and registration makes it perfect by relation from its date. It therefore, may be registered after the action of ejectment is commenced, its date being anterior to the suit, and the title resting upon registration, by relation to the date, the lessor has title before the commencement of the, suit. Thus far, and no farther have our decisions gone on the subject.”

And so, it was held, that the private examination of the feme covert, after the institution of the suit, had no relation to the date of the deed, and that the lessor of the plaintiff had no title when the suit was instituted.

From this view of the subject, I think it clear, that the privy examination oí a feme covert, is in fact and in legal effect, the execution of her deed, and if that be defective — if it be not according to law, no interest in the estate passes by her deed. Her title remains in her, perfect and unaffected by the void deed, and no act of legislation can be permitted, under the constitution, to divest her title. For these reasons, I dissent from the opinion of the majority of the Court.  