#### EUGENIA A. FENNER et al. *v.*HENRY N. JASPER.

Where it did not appear, either in the order for a commission to take the private examination of a *feme covert,*under the act of 1751 *(Rev. ch.*50), or in the commission itself, that she was an inhabitant of another county, or so aged or infirm, as to be unable to travel to Court, it was held, that the deed was inoperative to convey the wife’s interest in the land.

It seems, that it must appear, that the commission and the certificate of the commissioners were returned to the Court, approved, and ordered to be registered, or the deed will be invalid as to the wife’s estate in the land.

This was an action on the case, in nature of an action of waste, commenced in the county of Franklin, but removed to the county of Warren, where, on the last Circuit, it was submitted to his honour, Judge *Donnell, on the*following case agreed. In the year 1827, the defendant intermarried with Sarah M. Fenner, widow of Richard J. Fenner, and the plaintiffs are the children of the said Sarah by the said Richard. The said Sarah had issue by the defendant born alive, and in the year 1829, departed this life, leaving the plaintiffs, her only children and heirs at law, and the defendant, her husband, surviving. Before the death of the said Sarah, the defendant and the said Sarah executed and delivered to one N. B. Massenburg, a deed intended to convey, and expressed in apt and sufficient words, to convey in fee simple to the said Massenburg, a tract of land in Franklin county, of which, at the time of the marriage of the said Sarah with the defendant, she was seized in fee simple; and after-wards the said Massenburg, by deed duly executed, conveyed all his estate in the said land to the defendant and his heirs, which deed was sufficient to convey, and did convey the fee simple to the defendant, if the deed of the defendant and the said Sarah was sufficiently proved and authenticated to operate in law upon her estate in the land. All the proceedings had touching the probate of the said deed, and the examination of the said Sarah, as to her free consent in executing the same, appear in the following entry on the minutes of the County Court of Franklin, at December term, 1828.

“ The execution of a deed from Henry N. Jasper, and *35Sarah M. his wife, to Nicholas B. Massenburg, was duly proven by the oath of James Newbe'rn, in open Court; whereupon on motion it is ordered by the Court, that C. A. Hill and Thomas Crocker, esquires, be appointed to take the private examination of the said Sarah M., as to the voluntary execution, on her part, of the said deed, and that for that purpose, the clerk issue a commission to the said . , esquires,” and in the following endorsements on the deed of the defendant and the said Sarah to the said Massenburg, on which James Newbern appears the subscribing witness. “ Franklin county, December sessions, 1828. I certify that the execution of the within deed was duly proven in open Court, by the oath of James Newbern, and was, on motion, ordered to be registered. Teste, S. Patterson, C. C.” .

“ State of North Carolina, Franklin county.

Court of Pleas and Quarter Sessions. December Sessions, 1828.

“ To Charles A. Hill and Thomas Crocker, esquires, greeting — Whereas Nicholas B. Massenburg hath produced a deed made to him by Henry N. Jasper and Sarah M. Jasper, his wife, of a certain tract of land lying in the county of Franklin aforesaid, and procured the due execution of the same to be proved by the oath of James Newbern, in open Court: Know ye, that we, in confidence of your prudence and fidelity, have appointed you to take the private examination of Sarah M. Jasper, wife of the said Henry N. Jasper, concerning her free consent in her executing the said deed of conveyance, and therefore we command you, that at such place as you may think fit, you, privily and apart from her husband, examine her, the said Sarah M. Jasper, whether she executed the said deed freely and of her own accord, without fear or compulsion of the said Henry N. Jasper, her husband, and the examination so by you made, that you return on the deed aforesaid. Teste, S. Patterson, C. C.

“ State of North Carolina, Franklin county.

■“ Pursuant to a commission to fis directed by the wor*36shipful County Court of Franklin County aforesaid, at December sessions, 1828, we, Thomas Crocker and Charles A. Hill, Justices of the Peace of the said county, proceeded to take the private examination of Mrs. Sarah M. Jasper, wife of Henry N. Jasper, the parties to the within deed, when she stated that she executed the within deed of her own free will, without any influence or control of her husband, the aforesaid Henry N. Jasper. Given under our hands and seals, this 10th day Deer. a. d. 1828.

*Thos. Crocker.*[ i. s. ]

*C. A. Hill.*[ i. s. ]”

After the death of the said Sarah, the defendant continued in possession of the land, claiming to hold the same as tenant in fee simple, and hath cut down timber trees, and done other acts which do in law amount to waste in a tenant for any less estate; and the plaintiffs claiming that he is only tenant by the curtesy, and that the fee simple and inheritance is in them by descent from their mother, have brought this action to recover damages for the said waste.

Upon this case, his honour being of opinion, that the deed of Jasper and wife had not been so proved and authenticated as to pass the wife’s title, gave judgment for the plaintiffs, for a sum agreed as the amount of damages, from which the defendant appealed.

*Badger,*for the defendant.

*W. A. Haywood, contra.*

Ruffin, Chief Justice.

— The act of 1751 *(Rev. ch.*50,) gives two modes of taking the acknowledgment of a married woman, of a deed executed by her husband and herself; the one in open Court of the county where the lands lie, or before a Judge; and the other by two or more commissioners authorised by a commission issued by the clerk of the County Court. The act does not treat these methods as equally proper and beneficial to the wife, and give to the parties an election of the one or the other in every case; but it substitutes that by commission for an acknowledgment in Court, only when it shall appear that such an acknowledgment cannot be made, *37because the wife cannot travel to Court by reason of age, infirmity, or a residence in another county.

These provisions being for the protection of the wife, the principle of construction laid down in *Den*v. *Wilson,*2 Dev. 306, and other cases, is to require a strict observance of every ceremony prescribed in the statute, and in the order as there prescribed, as tending to render the intended protection the more effectual. A literal construction is the true construction, according to the spirit of the act.

The deed in this case was acknowledged under a commission from the County Court; and neither the commission, nor the order of record for issuing it, sets forth that Mrs. Jasper was either so infirm or aged, that she could not travel to Court; while upon its face, the deed itself states the husband and wife to be inhabitants of Franklin county, in which the lands are situate.

Upon the principle established, such an acknowledgment is defective, and the deed must be deemed invalid; unless the order of the County Court for the commission precludes all inquiry into the propriety and grounds of that order. The acts of a Court of record are always conclusive of the truth of the matters stated in them; and also generally, perhaps, of the ■ existence of those facts, without which the order or judgment could not be legally made. But this case cannot come within that rule. It would defeat the purposes of the legislature, to be collected from the several parts of the act construed together, and as almost literally expressed in some of the provisions. The authority to issue a commission is found in the third section, which comes in by way of proviso to the second, and is a special authority, founded upon a particular state of facts. That state of facts may therefore reasonably be required to appear affirmatively. But there are other reasons which imperatively determine, that it must thus appear. The commission may be ordered as well by a Judge out’ of Court, as by the County Court; but it. is in all cases to be issued by the clerk of the County Court, and be returned to that Court. Now in the fourth section, the form of the *38commission is set forth *in his verbis;*and in it is recited, as the cause for taking the acknowledgment by commission, that it has been represented to the Judge or Court that .the wife was not an inhabitant of this state, or was so aged or infirm that she could not travel to them. This recital in the act of the Clerk can be founded only on a similar one in the order ; and therefore must be authorised by such specific averments in the order. Whatever, therefore, may be the general rule, there cannot, under the act of 1751, be a presumption from the order, of any of these facts, where the • order itself is *silent*as to their existence; because in the other proceedings arising out of the order, those facts must be distinctly and affirmatively stated.

It will be perceived that the validity of the order does not depend upon the truth of the representation made to the Court, as appearing upon evidence afterwards; for of that the adjudication is conclusive. But the question is determined upon this; that the commission can be issued only under particular circumstances, and that those circumstances, must be proved by the record and commission themselves; or at least by one of them.

This defect being fatal, it is unnecessary to look farther. But it may be mentioned, that there are others which seeni to be equally so. Among them are these; that it does not appear, that the commission, or certificate of the commissioners, was ever returned to the County Court, much less, that the Court was satisfied therewith, and ordered the proceedings to be registei’ed. The only order for a registration is that made on the probate by the subscribing witness; which extends to the deed as that of the husband only.

Per Curiam. Judgment affirmed.