#### DEN ON DEMISE OF JOSEPH RICH AND WIFE *vs.*SAMUEL BEEDING.

A deed of husband and wife, dated 1st March, 1834, was offered in evidence. To prove the due execution of the deed by the wife, a commission issued by the court to two justices of the peace to take the private examination of the wife, dated *17Ik*February, 1834, reciting that a deed had *theretofore*been executed by the husband and wife, and authorizing the justices to take the private examination, together with the return of the justicies indorsed on the deed of 1st March, 1834, was offered in evidence. *Held*that the deed of 1st March, 1834, was not the deed intended to be submitted to the commissioners, and that their certificate indorsed on that deed was made without authority, and was therefore void, and that of course the deed did not pa4s the title of the wife.

This was' an appeal from the Superior Court of Law of Davie county, at Spring Term, 1842, his Honor Judge Pearson presiding. On the trial of this Ejectment in the court below,'it was admitted that the defendant was in possession, and that the land was once the property of Sarah Hoskins, who is now the wife of Joseph Rich, and they are the lessors of the plaintiff. The only question was, whether a deed, executed on the 1st of March, 1834, by John G-. Hos-kins and his then wife, the said Sarah, was valid to pass the title of the *feme covert.*The plaintiff’s counsel insisted that the deed was invalid as to the said Sarah, 1st, because the commission to Brook and Warren, the two justices of the peace, to take the examination of Mrs. Hoskins, supposing it to have issued at the time insisted upon by the defendant, to wit, 17th February, 1834, in fact issued before the deed from Hoskins and wife was executed; 2ndly, because the commission when issued, and at the time the two magistrates acted under it, did not specify the particular deed, as to which the examination was to be taken, but was left blank *241in that particular; 3rdly; because the deed of Hoskins and wife to the defendant was not acknowledged by Hoskins be fore the commission issued, and in fact was not made until afterwards. (The other objections of the plaintiffs it is not material to state, as the court, in their view of the case, did not deem it necessary to notice them.) It was agreed, provided the court thought the evidence admissible, which was objected to by the defendant because it contradicted the record, that the deed to the defendant was not executed until the 1st of March, 1834, on which day it was written and executed in the presence of the magistrates, Ward and Brock, who became subscribing witnesses thereto, and then, on the same day, took the examination of Mrs. Hoskins, and made the return on the back of the deed, so that in fact, provided the evidence be admissible, the deed to the defendant was not acknowledged by Hoskins before the commission issued, and was not made until afterwards; and further, provided the evidence be admissible, which is objected to by the defendant for the same reason, that the deed was kept by the magistrates and not returned to court until May Term, 1839, and Hoskins died in April, 1834, so that, in fact, provided the evidence be admissible, the deed never was acknowledged by Hoskins in open court, and never was proven as to him. Upon these facts agreed, the court was of opinion against the defendant, and the jury having found in favor of the plaintiff, and, a new trial having been moved for and refused, judgment was rendered for the plaintiff, from which the defendant appealed.

No counsel appeared for the plaintiff in this court.

*Badger*for the defendant.

Daniel, J.

It is agreed that the lands were once the property of Mrs. Rich. The defendant is now in possession, and claims title to the same by a deed, written and executed on the 1st day of March, 1834, by Mrs. Rich and her then husband, John G. Hoskins. The lessors of the plaintiff contended, that Mrs. Hoskins (now Mrs. Rich) had never legally been privately examined, as to her voluntary assent to the *242execution of that deed. The defendant then produced a commission to two justices of the peace, signed by the Clerk of the County Court of Rowan, and issued at February Sessions¡¡ 1834, to take the private examination ot Mrs. Hoskins, as to the execution of a certain deed, recited in the commis-. sion to have been *then*(17th of February, 1834,) executed by John Hoskins and Sarah his wife to Samuel Beeding, and that the said Samuel Beeding had procured the deed to be acknowledged or proven by the said John Hoskins before the justices of the Ceu-rt of Pleas and Quarter Sessions of Rowan county. The commission recites, that it was represented to the court, that the said Sarah Hoskins, wife of John Hos-kins, was, on account of sickness, unable to travel, &c. Under this authority, the defendant offered in evidence the certificate of the private examination of the *feme covert*by the said two justices; which certificate was indorsed on the deed, made and executed on the 1st day of March, 1834, and after the order was made by the court to take her examination to a deed then said to be *in esse,,*and after the date of the said commission. It appeared, therefore, from the order of the court granting the commission, and the commission itself issuing upon that order, that the deed of the 1st of March, 1834, was not the deed intended by the court or the parties, to be submitted to the examination of the said commissioners. Their certificate indorsed on the said deed of the 1st of March, 1834, was made without authority, and was therefore void. Waiving, therefore, the consideration of all other objections, the deed did not transfer the title to the land. The judgment must be affirmed.

Per Curiam, Judgment affirmed.