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Morrison v. Cook

Supreme Court of North Carolina
Dec 1, 1854
47 N.C. 117 (N.C. 1854)

Opinion

December Term, 1854.

The Act of 1830, concerning the burning of the Court House of Hertford county, made applicable to the County of Montgomery by Act of 1844, only relates to such deeds as were in existence at the time the Court Houses of these counties were burnt.

ACTION OF EJECTMENT, tried before his Honor Judge MANLY, at the Fall Term, 1854, of Montgomery Superior Court.

Kelly, for plaintiff.

G. C. Mendenhall, for defendant.


The plaintiff lessor offered in evidence a deed executed by John L. Christian, late sheriff of Montgomery, bearing date the day of March, 1845, to him for the land in question, in which was recited a judgment before a justice of the peace in favor of the plaintiff's lessor, against Edmund Cook and Mastin C. Williams, and execution on said judgment, and a levy made of the same on the land sued for. And that a venditioni exponas, had issued from July Term, 1842, of Montgomery County Court commanding the then sheriff to sell the lands levied on to satisfy the plaintiff's judgment and costs. Upon which vendi. expo. the sheriff, in October, 1842, had sold said land, and that the plaintiff's lessor had become the purchaser upon which the deed was made.

The plaintiff's lessor then proved that the defendant Calvin J. Cook, was in possession of the premises, and that he acknowledged that he entered in under Mastin C. Williams, one of the defendants, in the execution named in the sheriff's deed aforesaid. He then offered in evidence the 2nd section of the private Act of Assembly passed in the year 1831, in relation to supplying proof of the records destroyed, by the burning of the court house of Hertford county, as follows, to wit: "That in all cases hereafter, when any person shall produce, and offer in evidence, any bill of sale for slaves or other property, or a deed for lands, purporting to be executed by any attorney, or by virtue of a power, or by any sheriff in virtue of any execution from any Court of the county of Hertford, or by a clerk or master under a decree, the production of such bill of sale or deed for lands, shall be held and deemed, prima facia evidence that there was a valid power of attorney, judgment and execution or decree authorising such sale, and that in such cases, it shall not be necessary to produce the said power of attorney, judgment and execution or decree or a copy thereof, but such bill of sale or deed of lands shall be prima facia evidence of the title, so far as the title could in law be transferred, in case the judgment and execution, power of attorney or decree, had been shown in evidence;" also, the Act passed in 1844 and 1845, making the said Hertford Act applicable to the burning of the records and court house in Montgomery, in March, 1843. He then stopped his case.

The defendant's counsel contended that, inasmuch as the sheriff's deed was executed in 1845, three years after the burning of the records in Montgomery, and the said sheriff was out of office, it was necessary that the plaintiff's lessor should prove, by evidence, the existence of the record recited in the deed, and that the deed itself was not prima facia evidence of such record, according to the provision of the said 2nd section of the Hertford Act as aforesaid, as the deed alluded to in said section, must be one made while the record itself was in existence for the sheriff's inspection.

The Court was of a different opinion, thinking the deed sufficient in form, and the recitals therein of the judgment, execution, c., to be evidence by virtue of the Acts of Assembly referred to, of the former existence of said records, and the jury being so advised, gave a verdict for plaintiff.

There was a rule which was discharged. Judgment and appeal.


The question in this case depends upon the proper construction of the Act of 1831, chap. 96, entitled "an Act in addition to an Act passed at the last session of the General Assembly of this State, in relation to the burning of the records of the county of Hertford;" the provisions of which were applied by the Act of 1844, chap. 53, to the county of Montgomery, the records of which had been then recently burnt also. "There are," says Mr. Justice Blackstone, "three points to be considered in the construction of all remedial statutes; that is, how the common law stood at the making of the Act; what the mischief was for which the common law did not provide, and what remedy the Parliament hath provided to cure this mischief. And it is the business of the Judges so to construe the Act, as to suppress the mischief and advance the remedy;" 1 Black. Com. 87, citing 3 Rep. 7. Co. Litt. 11 and 42. Now, with regard to the statutes under consideration: the common law required as evidence of title, under certain circumstances, the production of certain records; the mischief was, that those records had, in the county of Montgomery, been entirely destroyed by the burning of the court house, so that they could not be produced; and the remedy provided was, that when a party claimed under a deed for lands executed by the sheriff, by virtue of an execution from any Court of the said county, the production of the deed should be prima facia evidence, that there was a valid judgment and execution, authorising the sale without the production of the record of the judgment and execution, or a copy thereof.

We think it almost certain, that the mischief in the contemplation of the Legislature, and that against which they intended to provide, was the loss of records upon which the validity of deeds then in existence depended. Such deeds could hardly be founded, as to their recitals, either in mistake or fraud, because the means of detecting it were easily accessible to the party to be affected by it. The law-makers could, in this view, confidently extend to those claiming under the deed, the remedy which they did provide, without fear of doing injustice to others. But if the remedy is to be as broad as is contended for by the plaintiff, there is very little, if any security for the rights of others. The officer through mistake, or fraud may, by executing deeds at any time, and making therein what recitals he pleases, deprive an owner of his lands or put him to great trouble and expense in rebutting the prima facia case which the law sets up against him. This seems to us to be so manifestly unjust, that we cannot believe it was so intended by the Legislature. In this very case, the defendant is sought to be deprived of his land by the acts of a man who was out of office — and who professed to remember, and undertook to recite judgments and executions two years after the records had been destroyed. We think that the Judge erred in his construction of the statute, and that in consequence of such error, the defendant is entitled a venire de novo.

PER CURIAM. Judgment reversed.


Summaries of

Morrison v. Cook

Supreme Court of North Carolina
Dec 1, 1854
47 N.C. 117 (N.C. 1854)
Case details for

Morrison v. Cook

Case Details

Full title:DOE ON THE DEMISE OF JOHN MORRISON vs . CALVIN J. COOK

Court:Supreme Court of North Carolina

Date published: Dec 1, 1854

Citations

47 N.C. 117 (N.C. 1854)