
    Farmers and Merchants Bank vs. Chester.
    1. The acts of an officer de facto are valid, so far as third persons are concerned.
    2. A person who had received a written appointment as deputy clerk without having taken the oaths prescribed by the act of 1794, ch. 1, is a legally appointed deputy, and his acts, as such, valid. The appointment and the qualification of an officer are distinct matters.
    This is an action of ejectment brought by Chester in the commercial and criminal court of Memphis, for the recovery of a lot of ground adjoining the town of Memphis, in the possession of and claimed by the Farmers and Merchants Bank.
    
      On the 12th d,ay of June, 1839, Thomas Dixon executed a deed of trust conveying the lot in controversy to Seth Wheatly, to secure a debt due the Farmers and Merchants Bank. This deed was proven by two witnesses in the usual form, on the 28th of June, 1839, before James Rose. James Rose signed the probate as follows: “ Jno. W. Fuller, cl’k, by James Rose, deputy.”
    This deed was registered in Shelby county on the 2nd of July, 1839. Wheatly conveyed the lot of ground to the Bank, which deed was duly proven and registered.
    On the 10th day of February, 1841, a judgment was rendered against Dixon. The lot was levied on by fi.fa. issued on said judgment, and it was sold on the 7th of February, 1842, and a deed made by the sheriff to Chester.
    On the trial before Judge Dunlap and a jury, it being objected that the deed to Wheatly by Dixon was not duly proven and registered, it appeared that John W. Fuller was clerk of the county court of Shelby county; that he had executed a written authority to Rose, dated the 2d of May, 1839, to take probates of deeds, but for no other purpose; that Rose acted in this capacity and took probates of deeds; that he was recognized as deputy by the clerk and by the public after said appointment. No oath was administered to Rose before the probate in question in reference to his official position as deputy clerk.
    The Judge charged the jury, that although it might appear “that Rose had been appointed a deputy by the clerk, and regarded himself as such, and acted as such, and was believed to be a good and lawful deputy by the public,” yet he would not be “a legally appointed deputy unless the oath of office and the oath required to be taken-by public officers were administered to him. He charged that the act of 1794, ch. 1, sec. 72, required “all deputy clerks to take the oath appointed for the qualification of public officers and an oath of office,” and that to constitute a legally appointed deputy, he should take the oaths prescribed by this statute, and that if such oaths were not administered, the probate was void as to the judgment creditor under whose sale the lot was claimed.
    
      The jury rendered a verdict for the plaintiff, Chester, and judgment being entered thereupon, the Bank appealed.
    
      Thomas J. Turley, for the plaintiff in error.
    The probate and registration of deeds is a matter of purely statutory provision. The early acts on the subject gave the courts of the State the exclusive power to take the probate and acknowledgment of deeds. The acts of 1831, c. 90, and of 1833, ch. 92, gave the clerks of the courts that power; and the act of 1835, c. 53, gave to the clerks of the county court the exclusive jurisdiction to take the probate and acknowledgment of deeds. The act of 1837-8, c. 150, sec. 1, gives to the legally appointed deputy clerk of the county court the same power to take such acknowledgment and probates.
    Without these acts, no court nor clerk could take the probate or acknowledgment of deeds. It is a special jurisdiction conferred by the Legislature, without which the acts of the court and clerk, in taking the probate of deeds, would alike be void. It is evident, therefore, that they stand upon the same footing, and the reasoning and the law applicable to a probate taken by a clerk, would likewise be applicable to one taken by or before a court under similar circumstances.
    The act of 1838, c. 306, sec. 2, gives the county court clerk of Shelby county the power to appoint two deputies to take the probate of deeds, &c., one of whom shall reside in Memphis. — Pamph. Acts 1837-8, page 440. This act confers a distinct and substantive grant of power on the deputy to take such probates and acknowlegments, the same as it does on the principal clerk. He does not derive his power to take probates from his principal, virtute officii, for they say it is a power that cannot be delegated; but he derives his authority from the legislature by a distinct and substantive grant, when once made deputy — just as the legislature gives the clerk the power when he is elected — so that the deputy, in this respect, stands just as the principal clerk. That is, if this probate would be valid when taken by the principal clerk, who had not taken the oaths required, it is good when taken by the deputy under the same circumstances.
    The act of Í794, c. 1, sec. 72, says, “that all deputy clerks shall take the oath appointed for qualification of public officers,” &c., and “in case of death of principal the deputy shall hold the office.” — N. & 0. 147. This act applies to deputies of circuit as well as county court clerks; and the provision that says, “the deputy shall hold the office in case of principal’s death,” can have no consideration, because the act of 1837-8 provides that the clerk of the Shelby county court shall have two deputies, both of whom could not hold the office in case of principal’s death.
    The act of 1835, c. 17, sec. 12, provides, “that every person elected a justice of the peace, before entering upon and executing said office, shall publicly take the oath,” &c. — N. & C. 443. The act of 1809, c. 49, sec. 7, and the act of 1835, c. 5. sec. 6, says, “that each of the-circuit judges, before he proceeds to discharge the duties of his office, shall take the oath,” &c. — N. & C. 205,210; and the act of 1835, c. 3, see. 4, provides “that judges of the supreme court, before entering on the duties of their office, shall take the oath,” &c.— N. & C. 235; and the act of 1796, c. 1, sec. 3, inflicts a penalty of $2000 on any Judge who shall presume to act without taking the oaths. — N. & C. 204.
    It will be observed that these several acts are stronger and more prohibitory in their character than the one in question, in relation to deputy clerks. All officers — judicial, ministerial, or otherwise — under the constitution and laws, are required to be sworn before undertaking their offices. Hence the decision to be made in this case will affect the acts of all officers, from the highest to the lowest, known to the constitution or the laws.
    1. A deputy clerk may well be appointed by parol. There is no law requiring it to be made a matter of record, nor that it should be done by deed. — Bond vs. the State, M. & Yer. 146; Sanders us. Owen, Salk. 467; Midhurst us. Wait, 3 Burr. 1259; Clicott vs. Denys, Cro. Eliz. 67; Common vs. Arnold, 3 Litt. R. 315, Cas. in Law and Equity, 74; 5 Bac. Abr. 208. The deputation in this instance is therefore good, and Rose was legally appointed the deputy. There is no objection to the appointment — it is good in form and substance, and comes from the right source.
    2. He was an officer defacto. What constitutes an officer defacto? Some authorities say, “that being sworn in and acting do not, without an election, constitute an officer defacto. There must be an election or appointment, however irregular, otherwise he is a mere usurper. — The Test, of St Luke’s Ch. vs. Mathews, 4 Desa. R. 587; 2 Sira. 1000; 7 Johns. 554. It is necessary that there be some form or color of an election; without this, the taking of the title and regalia of office) and acting and being sworn as such, are not sufficient. — The King vs. Lisle, And. R. 174; 4 Watts & Serg, R. 425; 15 Mass. R. 175, marg. 182; 1 Hill, 674. It seems from these authorities, and perhaps others, that an officer de facto is one who has been elected or appointed, however irregular, defective, or illegal that election or appointment may be; and that the election or appointment is more essential and important than taking the oaths and acting.
    According to other authorities, “an officer defacto is one who has the reputation of being the officer he assumes to be;” and yet is not a good officer “in point of law.” — The King vs. Corpo. of Bedford Level, 6 East. R. 368; Parker vs. Kett, 1 L. Ray. 660; Burke vs. Elliott, 4 Ire. L. R. 361; Wilcox vs. Smith, 5 Wend. Rep. 234; Ang. & Ames Cor. 159. From these authorities, it would seem, an officer de facto may be one who has acted in office till he is regarded by the public as an officer, and has acquired that character and reputation.
    In this case, Rose comes within both rules; he had all the qualifications requisite to make him an officer defacto according to the principle of all the cases. He had the character and reputation of being the officer he assumed to be, was so regarded by the public, and his acts were not questioned at that time, nor for a great while afterwards — this makes him an officer de facto, according to one class of cases. He had an appointment, not merely colorable, not irregular and defective, but a strictly legal appointment — this makes him an officer defacto, according to the other class of cases.
    
      3. Are Rose’s acts, as an officer defacto, valid or invalid in taking the probate of deeds? All acts of an officer de facto, in which the public are concerned or have an interest, whether judicial, ministerial or otherwise, are good and valid; but arbitrary or purely voluntary acts, where the officer is under no obligation or duty to do them, are not valid. — The Vestry .of St. Luke’s Church vs. Mathews, 4 Desa. R. 578; McGargéll vs. the Hazleton Coal Company, 4 Watts &Serg. R. 424; People vs. Runkle, 9 John. R. 159, 149.
    A commissioner of highways, not having taken the oaths of office, is a commissioner defacto, and'his acts are as valid, so far as the public are concerned, as though hé were a commissioner de jure. — 1 Hill R. 674;- the People vs. Covert, et al, and the People vs. Collins, 7 John. R. 549.
    Plea' in abatement to quash a writ on the ground that the officer executing it was not legally a good deputy sheriff; but it was held he was a deputy defacto, and his act, therefore good; and they would not try his title to the office, in a proceeding to which he was not a party .-^-Fowler us. Bebee, et al., 9 Mass. R. 222.
    In the case of public officers, as sheriffs, deputy sheriffs, justices of the peace, &c., it is sufficient to* prove that they acted in those characters, without producing their appointments. — Potter vs. Luther, 3 John R. 431.
    Sale of a chattel by one as constable, and objected that it was not proved he was elected and-qualified; but held good, because it would be productive of great inconvenience to require purchasers at officers’ sales to show the regularity of their appointment and qualification. Their titles cannot be made to depend on their ability to show they were officers de jure as well as defacto. — Doty vs Gorham, et al., 5 Pick. R. 487. If they are officers de facto, it is sufficient.
    The levy of an execution by a coroner, who has not given the security required.by the act of 1783, which says, “coroners shall give security before they proceed to act” — was held good; and that third persons deriving title under his acts should not suffer by his neglect. He was an officer defacto and his acts therefore valid. — Nason vs. Dillingham, 15 Mass. R, 163, marg. 170.
    
      The levy of an execution on real estate by a deputy sheriff, who had not taken the oaths required by the constitution, but who was regularly appointed, was held valid; because he was an officer defacto, and the acts of such an officer are valid as to third persons who may be interested in such acts. —Bucknam ns. Ruggles, 15 Mass. R. 173, marg. 180.
    Error from a justice’s judgment, and the error assigned was, that the justice was a priest or minister of the Gospel; held no error; for the court will presume a commission, and being an officer defacto, his acts are valid as to third persons. —Mclnstry vs. Tanner, 9 John. R. 135.
    Ejectment for a tract of land. — It was objected that the levy was made by a constable who was not a legal officer, his term .of service having expired; but held a superfluous enquiry — he was an officer defacto, and his acts as valid as if he had been one de jure. — Burke vs. Elliott, 4 Ire. L. R. 355-
    The acts of officers de facto, acting openly and notoriously in the exercise of their office, must be held as effectual, when they concern the rights of third persons and the public, as if they were officers dejuve\ and the act of a register defacto is valid. — Gilliam vs. Reddick, 4 Ire. L. R. 368.
    Information in* the nature of a, quo warranto against Fowler, to know by what authority he exercised the office of judge of probate of wills, and chief justice of the court, &c. Answer: by appointment from the Governor. But held by the court, that the appointment was void; but no public inconvenience need be apprehended, for he was an officer de facto, and so long as he was de facto an officer under such appointment, his official acts would be lawful. — Commonwealth vs. Fowler, 10 Mass. R. 295, marg. 390.
    Trespass against a constable, who justified as a constable, by virtue of an execution issued by a justice of the peace— and it was objected that he was no justice; but it was held, that, coming into office by color of an election or appointment he was an officer defacto, and his acts were valid till he was removed, and his acting as such was conclusive. His title should not be enquired into. — Wilcox vs. Smith, 5 Wend. 231.
    George Miller, under a parol authority from the clerk, and without taking the oaths required, issued the process in question. Held, he was deputy de facto, and process issued by him could not be invalidated either by the parties or others.— Commonwealth vs. Arnold, 3 Litt. R. 315.
    Suit on an injunction bond awarded by three justices of the peace, and objected that their offices to grant injunctions had expired and had not been renewed. Held good; because having exercised .their authority by color of appointment, they were grantors of injunctions de facto. — Stephenson vs. Miller, 2 Litt. R. 306. ■ . '
    The acceptance of the office of paymaster in the army is incompatible with that of county court clerk, and-the acceptance of the former, ipso facto, vacates .the latter; but all his acts afterwards are Valid as clerk. So of the acts of one improperly appointed clerk while another is clerk de jure. — 3J.J. Marsh. 401; 1 Pirt.Dig. 140.-
    Deeds of trusts and mortgages are, by the laws of Mississippi, declared void against creditors and purchasers, unless acknowledged or proved, and delivered to the clerk of the proper court to be recorded. Held, that a deed recorded by a clerk defacto was valid as if recorded by one- de jure.— Cocke vs. Halsey, et al., 16 Peters. R. 71.
    An officer, deputy, or agent, though erroneously appointed iniform, and with intent to do but a singlé act, an'd doing it, is an officer defacto, and his act is binding though he was not sworn. The power of Such officers cannot be drawn in question collaterally; his acts are not even voidable. It is the same thing whether the act be judicial or ministerial.— In the matter of the Mohawk & R. Road Company; 19 Wend. R. 135.
    An officer defacto is bound to do the duties of his office, and is liable for failing to do so, in the same manner as if he were an officer de jure. — 3 Ire.,R. 171, 74.
    The whole doctrine will likewise be found in the elementary books. See Angel! & Ames on Cprpo. 73-4; 159-60; 2 Kent Com. 295; 2 Phil. Ev. by Cowan & Hill, 554-5, &c.
    No decided case in Tennessee conflicts with these decisions. This is the first case presenting this • question. The case of Atkinson vs. MicheaUx, reported in 1 Hum. R. 312, no where touches the question; it was not presented in argument of counsel, nor alluded to by the court. It is not a case where the question could have been made; for Belcher was not deputy; he had not taken on himself the duties and responsibilities of deputy; no one had a right to call on him for his services; he had no appointment in fact; and was, therefore, not a clerk defacto — hence the question could not possibly arise in that case. The same remarks may be made of the case relied on by defendants in error, reported in 2 Dev. R.
    But, it is insisted seriously, because the act says the legally appointed deputy may take the probate, &c., that, therefore, he is not legally appointed unless he is sworn. Now, does the word ‘legally’ add any thing to the force of the act! Did the Legislature ever contemplate a legal and an illegal officer? and that an illegal officer might do some acts but not others? When they gave the probate of deeds to the courts, did they not mean the legal courts? and when they gave it to the clerks of the county courts, don’t they intend the legal clerks? Can it be supposed that a probate taken before the county court clerk himself, who had not taken the oaths, would stand upon a different footing from one taken before a deputy who was not sworn, just because the Legislature used the word ‘legal’ in relation to deputies? Such a distinction strikes me as absurd in the extreme. The Legislature, when speaking of officers, always mean legal officers.
    The defendant in error also tries to connect or read as in one act the act of 1794 and 1831, and insists that the act of ’31 makes void a probate before a clerk who had not been qualified; and wherever the Legislature says in express terms that the act of the officer shall be void, the courts have always held them so. This is fallacious reasoning; before that rule could be made to apply, the act of 1794 must go on and provide, “that, if they do not take said oaths their acts shall be void.” If this provision had been made in the act of 1794, the rule would apply, and all the acts of a clerk, not sworn, would probably be held void.
    Suppose a clerk had not taken the oaths required, can a distinction be taken between his acts, and all of them held valid except that of probating deeds, and that one held void because the act says they shall be proven and recorded, or be void, &c. — Cocke vs. Halsey, et al. 16 Peters’ R. 71.
    The act of 1835, c. 5, N. & C. 160, shows that the Legislature never contemplated that the acts of a clerk should be void who neglected to be sworn and give bond, but that he should be indicted and removed.
    The English authorities are all the same way, and hold that all the judicial and ministerial acts of an officer defacto are valid; but not arbitrary or purely voluntary acts. — See the Company of the Proprietors of Margate Pier vs. Hannon et al., 3 B. & Aid. 266; King vs. Corporation of Bedford Level, 6 East. 367; Crew vs. Yernon, Cro. Charles, 97; Harris vs. Jays, Cro. Elizabeth 699; King vs. Lisle, Andrews 263; O’Brian vs. Kerivan, Cro. James 552; 1 Salk. 96; Parker vs. Kett, 1 L. Ray. 658; Leake vs. Howell, Cro. Eliz. 533; Cos-tard vs. Winder, Cro. Eliz. 775: 5Bac. Abr. Tit. Off. 190; Burdit’s case, Cro. Eliz. 48; Midhurst vs. Waite, 3 Burr, 1259.
    The consequences of holding a contrary doctrine would be alarming — every man might tremble for his titles — a complete stop would be put to the administration of justice — the time of the courts would be wholly occupied in trying collaterally the titles of persons to their offices — the judgments, sentences and proceedings, of all courts who had not been sworn, or who had made a slip therein, would be void; and if they sentenced a man to be hung, the court and all concerned in executing the sentence would be guilty of murder — a marriage celebrated under a license issued by a clerk not sworn, or performed by a justice of the peace not sworn, would be void and the children illegitimate. Such would be some of the awful consequences resulting from holding such a doctrine.
    
      G. D. Searcy, for the defendant in error.
    The only question in this case is, as to the validity of the probate of the deed of trust from Dixon to Wheatly. This deed was proven before James Rose, who styles himself deputy clerk. Rose, at the time the deed was proven, had a written authority, not under seal, from the clerk of the county court of Shelby county, to take the probate of deeds and other instruments of writing, but had no other appointment, and was never qualified as deputy clerk.
    We contend that he had no authority under our law to take the probate of deeds; therefore the deed has not been proven and registered as required by law, and is void as to creditors and subsequent purchasers.
    The first section of the act of 1831, ch. 90, enumerates the instruments required to be proven and registered, and amongst others requires that all deeds of trust shall be proven and registered in the manner therein prescribed.
    The 12th section declares all instruments not so proven and registered to be void as to creditors and subsequent purchasers.
    The act of 1835-6, ch. 53, gives the clerks of the county court exclusive authority to take the probate of all instruments required to be proven and registered by the act of 1831, ch. 90, and requires that he shall exercise the authority “in the manner and according to the forms prescribed by the act of 1831, ch. 90.”
    Prior to the act of 1831, ch. 90, all deeds were required to be proven in open court, and certified' for registration. The act of 1831, ch. 90, was passed — as is stated in the caption— to prevent frauds, and because the registration laws, as they then existed, did not answer the purposes for which they were intended, and to give notice to creditors and subsequent purchasers, &c.
    By the act of 1837-8, ch. 150, it is enacted that the legally appointed deputy clerk of the county court shall be authorized to take the probate or acknowledgement of all writings, &c., in the name of his principal: provided such probate or acknowledgement be taken and certified as required by law. The same act legalizes probates made before deputy clerks, saving the rights of creditors and subsequent purchasers.
    This brings us to the question, whether James Rose was, at the time of taking the probate, a legally appointed deputy clerk? For, by the words of the statute, none but a legally appointed deputy can perform the act.
    
      It is insisted that he was deputy defacto, and as such his acts are binding on third persons. The rule of common law, as we understand it, is as follows: The acts of a public officer defacto, whether judicial or ministerial, done in discharge of the duties of the office, and which legitimately appertain to the office, and not declared by act of partement to be void, are binding on third persons.
    We contend that the common law cannot govern in this case.
    1st. Because the act of 1837-8, ch. 150, which confers this power on deputy clerks, uses the words “legally appointed deputy,” and negatives the idea that a deputy de facto can perform the duty.
    2nd. Because the probate of a deed is not a common law duty appertaining to the office of clerk — it is a high and delicate trust, judicial in its nature, and was conferred on the clerk of the county court and his legally appointed deputy, to prevent fraud, and to make the registration laws answer the purpose for which they were intended.
    3rd. Because the case now before the court is within one of the exceptions stated in the common law rule. All the English cases, it is believed, establish the principle, that the acts of a public officer defacto are not binding when declared by act of partement to be void.
    The act of 1835, ch. 53, and the act of 1837-8, ch. 150, confers on the clerk of the county court, and his legally appointed deputy, the exclusive power to take probates, áse., and the act of 1831, ch. 90, sec. 12, declares that all deeds, not so proven and registered, are void as to creditors and* subsequent purchasers. Plaintiff is a creditor, and is therefore within the exception to the rule.
    We contend that the common law rule is not in force in this State — our statutes have changed the common law on that subject. The act of 1794, ch. 1, requires that clerk of the county court shall give bond and security, conditioned for the faithful keeping of the records and the discharge of the duties of his office; the 72d sec. enacts that deputy clerks shall take the oath appointed for the qualification of public officers and another oath of office; and in case of the death of the clerk, the deputy shall hold the office until another shall be appointed, &c. This act operates as a change of the common law on this subject. So held by this court in the case of Atkinson vs. Micheaux, 1 Hum. 312; Shepherd vs. Lane, 2 Dever. R. 150.
    The Legislature so understood the law, and therefore they passed the act of 1837-8 to legalize' probates made before deputy clerks.
    The same principle has been decided by this court in relation to executors. By the law of England, an executor derives his power and title from the will — our acts of the Legislature require that he shall qualify, give bond and security, and take letters testamentary. This court has decided that these acts of the Legislature change the common law, and that an executor in this State derives no power or title from the will. — Robertson vs. Gains, 2 Hum. 367.
    The assent of an executor to a specific legacy, before he proves the will and gives bond and security, will not pass the title to the bequest. — Martin vs. Peek, 2 Yer. R. 298.
    
      W. T. Brown, for the defendant in error.
    The facts of the case aré these: James Rose was appointed deputy clerk by Fuller, clerk of the county court of Shelby county, and, after the passage of the act of 1838, he took the probate of the deed of trust from Dixon to Wheatly, as trustee for the Memphis Bank. He did not take the oath of office or qualify according to law.
    The question arising upon the foregoing facts, is, whether Rose had the authority to take the probate in question.
    The act of 27th January, 1838, provides — “hereafter the legally appointed deputy clerk of any county court in this State, shall be authorized to take the probate and acknowl-edgement of all such instruments of writing, (to wit: deeds of conveyance, &c.,) in the name of the principal, by his deputy.”
    This act clearly confers on the legally appointed deputy clerk of any county court the authority to take probate of deeds. The question recurs, was Rose legally appointed? The act confers the power upon such an one, and no other, to take probate of deeds. The act of 1794, ch. 1, sec. 72, requires expressly that deputy clerks shall take the oath appointed for the qualification of public officers and an oath of office. Unless the deputy takes the oath of office, as required by this act, he is not “legally appointed;” and, according to the authority of the case of Atkinson vs. Micheaux, 1 Hum. R. 318, the probate of the deed is invalid — nor does the case in Martin & Yerg. R. conflict in the slightest degree with the assumption that the deputy had no authority to take the probate in question: that case decides, simply, that it is competent for a person, not regularly appointed and qualified as deputy clerk, to perform, under the eye and superintendence of the court, services of a ministerial nature. The taking the probate in question was not a ministerial, but a judicial act. The deputy administered oaths to witnesses and exercised his judgment upon the sufficiency of the probate. This distinction was recognized and enforced in the case in 1 Humphreys 312.
    It may may be urged, that, in the case of Atkinson vs. Mi-cheaux, there was no appointment, written or verbal, from the clerk constituting Belcher the deputy. Judge Reese, in delivering the opinion, states the fact to be so, although the proof is clear that “Neely requested Belcher, in his absence, to discharge all the duties of his office.” But we care not how this may be — whether Belcher had the appointment of deputy clerk or not, written or verbal — the decision goes to the extent of invalidating the proceedings, upon the ground alone that he had not taken the oath of office or qualified according to law.
    It will be seen, from the report of the case, that the great contest was, whether the deputy could discharge the duties of the office unless he was first'duly qualified. The opinion of the court shows this to have been the main ground upon which the case turned. Judge Reese, at page 319, says— “It is objected to the validity of the ca. sa., that he was not, in point of law or fact, a deputy clerk, not having taken the oath of office or received a written or verbal contract.” He goes on and says — “the objection is well taken;” and gives his reason, to wit:- “By the act of 1794, ch. 1, sec. 72, it is required,' that all deputy clerks shall take the oath appointed for the qualification of public, officers and an .oath of - office.” Again, he'says — -“the duty, therefore, is in its nature judicial, and by,no means to be performed by the locum tenens,, from courtesy, of a clerk’s office, himself not sworn.” * * “The liberty of the citizen, the policy of the statute, and the general principles of law, would be alike violated by the assumption and exercise of such a power.”
    Under this decision, is not the taking the oaths an( element necessary to constitute, the legality of an. appointment. This must be the meaning of the opinion, or it was folly in the Supreme Court to be talking of, the act of 1794, ch, 1. sec. 72.' But in the absence of any decision of the Supreme Court, it would necessarily be so upon principle. The statute authorizes a person legally appointed deputy clerk, alone, to take the probate of deeds — not a deputy clerk de facto, but an officer de jure; and by the act of 1831, all probates of deeds taken by a deputy clerk, not legally-appointed, are not only invalid, but the deeds are absolutely void as to creditors.
    The sensible reason for the proviso in the statute, “legally appointed,” is, that the act to be performed is a judicial act, and therefore the Legislature, contemplated a legal appointment as necessary to impart validity to the act of the officer, the deputy clerk.
    The act of 1776, sec. 8, of North .Carolina, is the same as our act of 1794, and the Supreme Court of that State have placed the same construction upon it that the Supreme Court of this State have, in the case of. Atkinson us.- Micheaux— see 2 Dev. R. 148.
    This view of the statute is sustained by decisions in ánal-agous cases.
    By the act of 1813, chap. 119, sec. 3, Car. & Nich. 791,- it is provided that “all executors of every description, shall, before they presume to enter upon the administration of any estate whatever, enter into bond and security, in the same way that administrators are required to do.” This statute was decided by this court, in the case of Robertson vs. Gains, 2 Humph. 380, to change the common law, by which a title to the goods and chattels is vested in the executor immediately upon the death of testator. The court say, that by this act, executors are prohibited from meddling with estate until they obtain letters testamentary, give bond and security, and swear to perform the testator’s will. — 2 Humph. 381. Under this decision, he is no officer or executor until he complies with the provisions of the statute; and consequently all his acts as executor would be absolutely void.
    The assent of an executor to a specific legacy, before he proves the will and enters into bond and security, will not pass the legal title in the specific bequest to the legatee — see 2 Yerg. 298. Judge Catron, who delivered the opinion of the court, says — “It is believed before the executor qualifies and gives bond and security, he can do no valid act. Suppose he were never to qualify, but proceed to deliver over to the de-visees the specific legacies, which included all the property of the testator, and thereby leave nothing to be administered; this would be contrary to the spirit and words of our acts of Assembly, and therefore void as against the administrator with the will annexed.” — 2 Yerg. 299. Again, the act of 1815, ch. 48, sec. 5, requires administrators to take the oath, &c., and also to give bond and security, before the clerk shall issue letters of administration. The court in construing this act say, that “the office is not strictly filled until bond is given, although the administrator had taken the oath, and had been acting as such for several years; had paid off the debts of the intestate, and also had paid off three of the distributees.” —See 4 Humph. 79-83. In this case, although the admistrator had been appointed by the county court, and an entry of his appointment was made on the minutes of the court, still the office was vacant, on account of the bond not being given, as required by the statute, and the court remanded the cause to the county court of Dyer county, with instructions to take a bond from the administrator, and in case he failed to give bond, to grant the administration to the petitioner.— See 4 Humph. 83.
    There can be no doubt, that but for the change wrought by this act in the common law, the office of administrator would have been filled without giving the bond; or, in other words, in the language of the court, he would have been considered an administrator defacto, and his acts, so. far as third persons Were concerned, would have been valid. This statute then repeals the common law, and renders void the very acts to which it imparted validity.
    Again: a sheriff is elected only for two years — Con. Tenn. art. 7, sec. 1 — and the time commences from his qualification in office, by taking oath, giving bond, See. — Act of 1835, ch. 2, sec. 5, Nich. & Car. 276. The court say, in the case of Todd vs. Jackson and securities, 3 Humph. 398, that “a sheriff is not authorized by virtue of the provisions of the act of 1811, ch. 49, to serve process at any time after the expiration of his term of service, thpugh such process may have been in his hands before the expiration of his term.” In this case, the court virtually decide that an act of a sheriff defacto is void.
    Again: In the case of Smith vs. Normant, reported in 5 Yerger 271, the Supreme Court declare the act of Judge Martin, who held the circuit court of Smith county under an appointment made by the Governor of Tennessee, in pursuance of the act of 1827, absolutely void; still, according to the principles of the common law, his judicial acts would have been valid as to third persons, inasmuch as he held the office under a color of appointment, and was an officer de facto. The fact that Judge Williams was the officer de jure, at the time, does not alter the case, as the cases referred to by the opposite counsel, show the acts of an officer defacto to be valid as to third persons, notwithstanding there was an officer de jure at the time.
    We then conclude, in the first place, even if the court were disposed to adopt the common law, which makes the acts of an officer defacto valid as to third persons, still the act which gives the power to take probates of deeds to the legally appointed deputy of the county court clerk, repeals the common law in this respect, and renders it nugatory. And, secondly, we conclude, that in the absence of the various statutes reviewed in the above cases, this court — from the tenor of various decisions — are not disposed to adopt the principles of the common law, which makes valid the acts of all officers defacto who may happen fraudulently or illegally to get or obtain possession of offices.
    The great object of the registration laws is to prevent fraud; but if it be allowed to the county court clerks to appoint any person a deputy, and he shall act as such, without having, complied with any of the provisions of the act of 1794, and shall be allowed to administer oaths without having taken an oath himself — instead of preventing the perpetration of fraud, the whole policy of the law will be defeated, and it will operate in practice to encourage fraud on the part of these deputy clerks, affecting vitally the interests and prosperity of the community at large.
    
      J. C. Humphreys, for the plaintiff in error.
    The probate is good as the act of an officer de facto.— Nason vs. Dillingham, 15 Mass. R, 170; Fowler vs. Beebe, 9 Mass. 231; Commonwealth vs. Fowler, 10 Mass. 301; Buck-nam vs. Ruggles, 15 Mass. 181; State vs. McIntyre, 3 Iredell 174; Burke vs. Elliott, 4 Iredell 355; State vs. Biggs, 3 Iredell 357; Cocke vs. Halsey, 16 Peters 71; M. & H. R. R. Co., 19 Wend. 135; Wilson vs. King, 3 Littell Rep. 459; Commonwealth vs. Arnold, 3 Littell Rep. 315; Stephenson vs. Miller, 2 Littell 306; People vs. Collins, 7 J. Rep. 549; Mclnstry vs. Tanner, 9 J. R. 134; Wilcox vs. Smith, 5 Wend. 231; Vestry of St. Luke’s Church vs. Mathews, 4 Dessausure Rep. 578-87; 4 Watts & Seargent’s Rep. 424, McGargill vs. H. C. C. Co.; King vs. Lisle, Andrews Rep. 164; Harris vs. Hays, Cro. Eliz. 699; Cro. James, 654; Parker vs. Kelt, Salkeld 96; Margate Pier Co. vs. Hannam, 3 B & Aid. 266; James vs. Brown, 5 B. & Aid. 243; Berryman vs. Wise, 4 T. R. 366; Potter vs. Luther, 3 J. Rep: 431; 2 Kent’s Com. 5 Ed. 295; Philips on Ev. by Cow. & Hill, 2 vol. p. 454, note 427; 3 Stephens Nisi Prius, 2448-9.
    The case of Atkinson vs. Micheaux, 1 Hump. R. 312, and the case in 2 Devereaux 148, are not decisions against the doctrine contended for, or authorities against the plaintiff in error. In neither was the doctrine of defacto officers adverted to or raised by the facts of the cases. In Atkinson’s case, Belcher, in the absence of the clerk, took the affidavit, signed the clerk’s name to, and issued the ca. sa. He was not in point of fact deputy, had not that reputation, and did not assume to be or regard himself as such. In the other case, an attorney at law wrote out and signed the clerk’s name to a capias to answer, under a privilege exercised by him and by the clerk conferred on him in common with the whole bar, for their convenience, to write out and sign the clerk’s name to leading process and subpcBnas; but he, the attorney, did not assume the duties and obligations of deputy, or regard himself as such. If an application had been made to Bel-cher, in the one case, or the attorney in the other, to issue a writ, and he had refused, he could not have been compelled to do so, or made liable for the omission; yet an officer de facto is as much bound to discharge the duties belonging to the officé as an officer de jure. — State vs. McIntyre, 3 Iredell 374. The cases of Martin and wife vs. Peck, 2 Yer. 298, and Robertson vs. Gaines, 2 Hum. 369, are in reference to executors. There is great reason to require the executor to give bond, qualify, &c., before his acts are valid. Public convenience and policy would require it; besides that, the acts of the Assembly in reference thereto are conditional or prohibitory in terms. Whereas,' as to public officers, the doctrine that held their acts good, notwithstanding an illegal election or appointment, or the omission of the requisite tests, oaths, or bonds, ,is founded on policy and public convenience. In the language of the cases referred to, “the business of life could not go on, if it were not so.” “The adoption of such a rule is necessary, in order to prevent a failure of justice and the great public mischief which might otherwise be apprehended.” ' That “it would be entrapping the citizen and betraying his interest.”
    Further, it is submitted, that the act of Assembly is directory in its terms, and ought so to be construed — see act of 1774, ch. 1, sec. 2 and 3; 1809, ch. 49, sec. 8: 1801, ch. 17s sec. 1 and 2; 1794, ch. 1, sec. 72 and sec. 50; and act of 1835, sec. 5; Bank of U. S. vs. Dandridge, 12 Wheaton; Mohawk and Hudson R. R. Co., 19 Wendell 135; Angelí and Ames on Corporations. What are to be deemed such (directory) must depend, say Mr. Justice Story and Cowen, upon the sound construction of the nature and object of each regulation, and of public convenience and apparent legislative intention.
    The apointment of Rose as deputy at Memphis to take the probate of deeds, &c., was in accordance with the act of 1838, ch. 306, sec. 2; acts of 1837-8, p. 440, giving the special authority; his residence was Memphis, and he was appointed by the county court clerk of Shelby county. A deputy is legally appointed by parol. — Midhurst vs. Waite, 3 Burrows 1257; Commonwealth vs. Arnold, 3 Littell’s Rep. 315; 5 Bacon Abr. B. Title Officer, L. 203; Cliclott vs. Denny, Cro. Eliz. 67; Saunders vs. Owen, 2 Sulk. 467; Bonds ns. State, Martin & Yer. 143-.
    Rose, then, had a legal appointment, and the probate of the deed in question was good, and not affected by the act of 1838, ch. 150, sec. 1, which provides that, “hereafter, the legally appointed deputy clerk of any county- court in this State, shall be authorized to take the probate of,” &c., &c.— Acts of 1837-8, page 218-19. No case has determined that before this act the deputy did not have the same power as his principal to take the probate of deeds; that question is reserved by this court in Atkinson’s case.
    In Midhúrst vs. Waite, 3 Burrows R. 1259-62, Lord Mansfield said — “It is taking the definition too large to say, that every act, where the judgment is at all exercised, is a judicial act. A judicial act is supposed to be done pendenti lite, of some sort or other. This construction is the most convenient and agreeable to the rule of law in cases of appointing deputies.”
    If, however, a deputy did not have the power before the act of 1838, ch. 150, sec. 1, still Rose, the deputy in question, was, in the words of that act, legally appointed. That act does not confer the power upon, or limit the power to a deputy also legally qualified.
    The act of 1794, ch. 1, sec. 72, provides that “all deputy clerks shall take the oath,” &c.; and we have seen that the acts of an officer not sworn are good. Is it to be understood that an officer legally appointed, is also one legally qualified? The cases and elementary books herein before referred to in relation to the acts of defacto officers, show that one does not import the other.
    Again, Rose “is to be conclusively deemed an officer.”
    By statute, it is provided in North Carolina, (see revised statutes of N. C. 114-16,) the manner of electing constables by the people, and the contingencies on the occurrence of which, and the time when the county court may appoint.— Sec. 8, provides, “all constables, before they shall be qualified to act as such, shall take, before the county court, the oaths,” &c. Sec. 9, provides, “each and every constable so appointed” may execute the power of a constable, &c. Notwithstanding his power depended on being so appointed, yet, with the proof of only an illegal appointment, and acting as the known constable, he was held so de facto, and, say the court, “he is to be conclusively deemed a constable.” — Burke vs. Elliott, 4 Iredell Law Rep. 355. Though in the State vs. Biggs, 3 Iredell Law Report, the fi.fa. was addressed to a lawful officer, and the court held the supposed constable was not a lawful officer; yet, in Burke vs. Elliott, before mentioned, the court say they would have held him a good constable defacto, if there had been proof that he had acted, and was generally known as an officer, and the case were not presented and tried on the title only.
    In relation to the supposed intention of the Legislature by the use of the words “legally appointed,” in the act of 1838, ch. 150, sec. 1, it is worthy of attention that this court had determined (State vs. Bond, Martin & Yer.) that there was no law requiring a deputy clerk to be sworn; that, subsequently, there was no other case on the point prior to Atkinson vs. Micheaux, 1 Hump. R.; and the latter was decided not until April, 1839; and again, that the act of 1838, ch. 307, see. 2, does not employ the words “legally appointed.”
   Tueley, J.

delivered the opinion of the court.

The only question presented for the consideration of the court in this case is, as to the validity of the probate of a deed of conveyance from Thomas Dixon to Seth Wheatly intrust, to secure a debt due the Farmers and Merchants Bank of Memphis.

The deed was executed on the 12th day of June, 1839, and proven before James Rose, an acting deputy of John W. Fuller, clerk of the county court of Shelby, on the 28th day of June, 1839, in regular form, by Charles Lofland, John W. Dupree and T. W. Moon, the subscribing witnesses thereto, and registered July 2d, 1839, in the county of Shelby.

It appears from the bill of exceptions, that John W. Fuller, clerk of the county court of Shelby, on the 2nd day of May 1839, executed a power by which he appointed James Rose a deputy clerk of the county court of Shelby, giving him full and ample authority to take the probate of deeds and instruments of writing required to be proven and registered.

Under this appointment, James Rose proceeded to act as deputy clerk, without having taken the oath appointed for the qualification of public officers, and the oath of office, and, while so acting, received and certified the probate of the deed in controversy. This, it is contended on the part of the plaintiff in ejectment, he was not, under the circumstances, warranted in doing; that the probate is therefore void, and the deed not legally registered.

By the act of 1794, ch. 1, sec. 72, it is provided that all deputy clerks shall take the oath appointed for the qualification of public officers and an oath of office. Now, James Rose having neglected to comply with the provision of this statute, though regularly appointed, was not a deputy clerk of Shelby county de jure; but it is contended that he was de facto, and that his acts as such are, so far as third persons are concerned, of equal validity as if he had been clérk de jure, and this from public necessity. This, as a general proposition, is not, as it could not be controverted. But it is argued, that under the provisions of our statutes upon this subject, one who is only a deputy defacto and not de jure, cannot take a probate of a deed or other instrument, and if such probate be taken by him it is null and void.

An examination of the different statutes upon this subject is necessary to their correct exposition.

By the 6th section of the act of 1835, ch. 53, exclusive authority is given to the clerks of the county courts to take probate or acknowledgement of deeds of trust, bills of sale, and all other instruments of writing required to be registered. By the act of 1838, ch. 150, sec. 1, it is provided, that the legally appointed deputy clerk of any county court in this State, shall be authorized to take the probate and acknowledgement of all such instruments; and by an act of the same year, ch. 306, sec. 2, the clerk of the county court of Shelby is authorised to appoint two deputies, one to reside in Memphis.

The argument against the validity of the probate of the deed in this case, rests upon the words “legally appointed,” as used in the statute of 1838. It is said these words necessarily exclude the actions of a deputy, who is such only de-facto; for such an one is not a legally appointed deputy; that to constitute a legally appointed deputy, he must not only have the appointment properly made by a principal clerk, but that he must also have taken the oaths prescribed by the act of 1794, ch. 1. Such, in our opinion, is not the just and proper construction of the words. The appointment and the qualification to an office are distinct and separate things; both of which (when a qualification is required) are necessary to constitute an officer de jure. A man is legally appointed to an office when his appointment has been made by the appointing power. Thus, in this State, a Judge is legally appointed when he has been duly elected by the Legislature, but he is not legally qualified till he has taken the oaths prescribed; so it is of all other officers — the appointment is a distinct and separate thing from the qualification. Indeed, this is necessarily so; for the oaths of qualification can only be administered to those who have been legally appointed. For, if the appointment be illegal, the administration of the oaths of' office would be, a nullity. Then the question arises, was James Rose, at the date of the probate of this deed in controversy, a legally appointed deputy of the clerk of the county court of Shelby county? We think he was; a written authority with full power constituting him such, had been executed and delivered by John W. Fuller, the principal clerk, who was the appointing power; but he was not a legally qualified deputy, for .want of the administration of the oaths of office and qualification required by the act of 1794. Being the legally appointed deputy, he had the authority to take the probate of the deed, and the same is a valid probate.

The case of Atkinson vs. Micheaux, 1st Humph., which is cited as conflicting with this view of the case, has no similarity whatever. In that case, Belcher, who had undertaken to perform a high duty of the clerk of the county court of Hardeman, in the administration of an oath, was neither the legally appointed nor the legally qualified deputy of the clerk; he says himself that he was not a deputy at all, and so the court clearly thought and adjudged, not on account of any informality in his appointment and qualification to the office, but because he was neither appointed nor qualified.

Rose, then, being the legally appointed deputy of the clerk of the county court of Shelby, and acting publicly in that capacity, the probate of the deed of trust made to secure the debt to the Farmers and Merchants Bank, was a valid probate, and the Judge below erred in holding otherwise.

Let the judgment be reversed and the case remanded.  