Maxwell v. McBrayer.

and the amount of them as a debt can no more be sworn to by the plaintiff his attorney or agent, in the one case than in the other. The case of a tort committed by an absconding wrong-doer was, after the decision in Minga v. Zollicoffer, provided by the act now embraced in Rev. Code, ch. 7, ss. 16 17, but there is as yet no decision for a case like the present. The plaintiff by suing in trespass or trespass on the case for the wrong done to her might have had redress, had she proceeded under the sixteenth section of the Act within the time therein prescribed; or, as the defendant was not a nonresident, she might perhaps have proceeded against him by a judicial attachment, after a return of non est inventus to an original writ of capias.

The judgment of the Superior Court is affirmed, and it must be certified to that court that this court is of opinion that the attachment was not a proper process to be sued out by the plaintiff in this case, that the writ ought to be quashed.


Judgment affirmed.


Gaither v. Gibson.


The bargainee in a deed having refused to accept it after it had been acknowledged by the bargainor before a competent officer and a certificate of the acknowledgment appended, a delivery will not be presumed from a subsequent registration, but the onus will be upon him who would establish the deed.

(Snider v. Lackenour, 2 Ire. Eq., 360 and Baxter v. Baxter, Bus. 341 cited and approved.)

EJECTMENT, tried before Buxton J., at Spring Term 1867 of the Superior Court of CALDWELL.

The plaintiff declared for four lots in the town of Lenoir, and offered in evidence a contract for the sale of the lots between one Patton as agent for his lessor (Gaither) and the defendant, and it was admitted that the defendant entered into possession under the contract, and that a demand for possession had been made by Gaither before suit.

The defendant offered in evidence a registered copy of a deed from Gaither and his wife, purporting to convey the said lots to the defendant in fee simple. It bore date April 26 1864, and there was appended a certificate of acknowledgment and a privy examination before Judge Heath bearing date October 11 1864, and also a certificate of registration dated December 13 1864.

The plaintiff then introduced the original deed from Gaither and wife. It corresponded in date and other particulars with the copy offered by the defendant, but had upon it also a certificate of acknowledgment made by. Gaither before the clerk of the County Court dated December 12 1864. One of the subscribing witnesses was then examined by the plaintiff, and testified that he was present

Gaither v. Gibson.

when Gaither tendered the deed to the defendant; it was between the date of the deed and that of the registration, and his impression was that the certificate of Judge Heath was then upon it; the defendant refused to accept the deed, and objected that Gaither's title to one of the lots was not clear; witness assured him that the title was good. The register testified that the date of the registration was correctly stated in his certificate, and that after the late war closed he returned the deed to Gaither.

His Honor charged the jury that the registration of the deed by the plaintiff's lessor was prima facie evidence of a due execution, including assent by the bargainee; that there was no evidence that the bargainor did not intend to convey title by the act of registration or that the bargainee dissented after registration, the evidence on the contrary being that he was then claiming under the deed.

The plaintiff thereupon submitted to a nonsuit and appealed.

Folk, for the appellant.

Snider v. Lackenour, 2 Ire. Eq. 360, and Airey v. Holmes, 5 Jon., 142, relied on by His Honor, do not sustain his opinion. The dissent of the grantee to the deed being proved, the law presumes him to continue in that state of mind until an assent appears, 1 Gr. Ev., ss. 41, 42; here actual assent is disproved and to imply one would be as was said by Ventris, Judge, in Thompson v. Leach, 2 Vent., 198: “To force an estate down the man's throat in spite of his teeth." See Armfield v. Moore, Bus. 157.

Malone, contra.

1. The lessor executed the deed in the presence of wit

Gaither v. Gibson.

nesses, acknowledged the same, together with his wife and procured its registration, which makes it complete in the absence of dissent by the grantee. Ellington v. Currie, 5 Ire. Eq., 21; 4 Kent (11 ed.) 526, 528, 529, n.; McClain v. Nelson, 1 Jon., 396; Baxter v. Baxter, Bus., 341: Airey v. Holmes, 5 Jon., 142; Snider v. Lackenour, 2 Jon., 360.

2. Where the attestation shows that the deed was signed sealed and delivered, the law presumes it a complete instrument and it can be overthrown only by clear proof. 3 Bat. Dig., 85, s. 10.

3. If the testimony of Bogle was sufficient to establish a refusal to take the deed at that time, it has nothing to do with the subsequent registration of the deed. The procurement of the registration is in effect, a "a second delivery which makes the deed valid for all legal purposes in the absence of proof of dissent on the part of the defendant.

[ocr errors]

BATTLE, J. The point raised in the bill of exceptions is an interesting one, and has been well argued by the counsel on both sides. It cannot be doubted that if the grantor sign and seal a deed, and afterwards have it proved and registered, or acknowledge it and have it registered, it will, under ordi-, nary circumstances, amount to a delivery of the deed, though the execution was in the absence of the grantee, in whose possession the instrument was never actually placed. See Snider v. Lackenour, 2 Ire. Eq., 360, and the other cases cited by the defendant's counsel. It is equally certain that if under such circumstances, the grantee, upon being informed of the transaction, refuse to accept the deed, it will be inoperative to pass the title to him. Baxter v. Baxter, Bus., 341.

In the present case the testimony of the subscribing witness tends to show that the grantee refused to accept the deed when it was tendered to him, and that this occurred

Gaither v. Gibson.

between the time when the grantor acknowledged it and had a certificate to that effect placed upon it by a competent officer, and the time when he had it registered. The counsel for the plaintiff contends that a refusal to accept having been proved, the law presumes it to have continued until it was rebutted by proof, either direct or inferential, of a subsequent acceptance. In this position we think the counsel is correct, and being so, His Honor ought not to have told the jury that the act of having the deed registered by the grantor was a delivery of it, and that there was no evidence of a refusal after that time. We think the instructions ought to have been that if the jury should believe from the evidence that the defendant did refuse to accept the deed, they should then enquire whether, from any of the facts proved, they could infer that the grantee had changed his mind and agreed to receive it.

For the error above indicated the judgment must be reversed, and a venire de novo ordered.


Venire de novo.

« ElőzőTovább »