#### DEN ON DEMISE OF MARY ETHERIDGE *vs*JAMES M. FEREBEE.

A deed is acknowledged by husband and wife ; two justices of the peace, thereupon lake the private examination of the wife and report to the Court and the Court acts upon the report; *Held,*that the inference is irresistible that the two justices were members of the Court, appointed for that purpose, though no special order of appointment appears.

It is sufficient, if the certificate of the private examination of a *feme covert*states that upon such examination, she declared that she had voluntarily *executed*the deed, without saying that *she doth now voluntary assent thereto.*

If, upon the privy examination, the wife states, that though she was willing to convey when she executed the deed, yet she had changed her mind was then unwilling; of course the assent of the wife could not be certified;

It is immaterial whether the acknowledgment or the private examination be first recorded.'

The cases of *Joyner*v. *Faulcon,*2 Ire. Ecj. 386, and *Burgess*v. *Wilson,*2 Dev. 307, cited and approved.

Appeal from the Superior Court of Law of Currituck County, at the Fall Term, 1848, his Honor Judge Bailey presiding.

*313This was an action of ejectment. The plaintiff offered in evidence a deed from John D. Cook and Lydia Cook to Joseph Cowell, also a deed from Joseph Cowell to Alfred Perkins, and from Perkins to the defendant James M. Ferebee. It was proved, that the defendant was in possession of the locus *in quo,*and that Lydia Cook was dead, having had no child by John D. Cook, and that Mrs. Etheredge, one of the lessors, was the daughter and only heir at law of Lydia Cook by another husband. The sole question in the cause was, whether the examination of Lydia Cook was legal, so as to convey her title. The following is the only entry upon the Minute Docket at February Term 1837, in relation to the deed from Cook and wife to Cowell, to wit: “Deed from John D. Cook and wife, Lydia, to Joseph Cowel was duly acknowledged in open Court, and the private examination of the *feme covert,*taken in open Court and ordered to be registered,” and it appeared at the opening of the Court, that C. Etheredge and J. Forbes, and one other, were Justices presiding, and the above entry was the, minute order, and the minutes do not show that the above Justices were appointed to take the private examination of the *feme covert.*

The following is a copy of the probate, as it appeared on the back of the deed, to wit:

Currituck February Term 1837. Personally appeared before us privately and aside from her husband Lydia Cook, wife of John D. Cook, acknowledged that she assigned the within deed of conveyance to Joseph Cowell with her own free will and accord and without any com* pulsion of her husband John Cook and ordered to be registered.

(Signed,)

J. FORBES, J. P.

C. ETI-IEREDGE, J. P.

*314State of North Carolina, Currituck County, February Term 1837. This deed from John D. Cook and wife Lydia to Joseph Cowell was acknowledged in open Court and the examination *offeme covert*taken and ordered to be registered.

(Signed.)

J. W. HUGHS, C. C. C.

A verdict of the jury was rendered in favor of the plaintiffs subject to the opinion of the Court, whether the deed from John D. Cook and wife Lydia passed the title to the land from said Lydia, she being at the time one of the owners of the land.

The Court being of opinion that the deed of Mrs. Cook did not pass her title, by reason of the defect in the examination, gave judgment for the plaintiff.

The defendant appealed to the Supreme Court.

*‘Heath,*for the plaintiff, submitted *the following*argument :

The probate *of*the deed from Cook and wife is defective in many respects. It does not appear there was a *joint acknowledgment: but if it be implied, then the privy*examination is defective for the following reasons : 1st, for the reason, that the Commissioners, who took it, were not “appointed” by the Court; the minutes show no such appointment.

‘ Second. For the reason, if they were so *“appointed,”*it does not appear, that either of them was a *“member of the County Court”*It is true, they are mentioned as being ■on the bench, *when the Court*opened; but this is no evidence they were there at the time the examination was taken ; *Foster*v. *Dean,*4 Hawks. *303;*since, there are •nine orders, between the opening of the Court and the •entry in relation to the examination. The two Justices, therefore, were not “members of the Courtand no others •are authorised to take a privy examination.

*315Third. Had these Commissioners been appointed, and had they been “members of the Court,” as Justices off the Bench certainly are not, then the examination would be fatally defective in this: the Act *requires*the *feme covert*should express, that “she doth voluntarily assent thereto;” that is, that she doth *now, at the time of the pr ivy examination, assent*thereto ; while the privy examination *on the deed*says, she acknowledged “she *assigned”*the deed. The Act requires *present assent;*the examination speaks of a *past*transaction ; the Act requires her, to express *her assent*to the deed ; the examination says, “she acknowledged she “assigned” the within deed,” &c. Assent to a deed, and having *once “assigned”*it, are entirely different things, even if “assigned,” can be made to mean, executed: the Act requires present volition; the term “assigned,” refers to a past transaction, while the object of the Legislature seems to be, to give the wife a *Hocus penitentice”*between the execution and examination. Hence, had she used the word “executed,” instead of “assigned,” the examination would be defective.

Fourth. The defects are not aided, but rather made more glaring by the minutes: for the minutes say, “the privy examination of the *feme covert*was *taken in open Court”*The Clerk’s certificate cannot overrule the minutes, but must be the result of, and governed by, the minutes: *Burgess*v. *Wilson, 2*Dev. 308. Hence, here is a privy examination, *in open*Court, which is “an absurdity in terms.” *Burgess*v. *Wilson, ut supra.*

No counsel for the defendant.

Pearson, J.

If the deed, alleged to have been executed by Mrs. Cook, is valid in law to convey her estate, the plaintiff is entitled to recover. His Honor was of opinion, that the deed was not valid. We have come to a different conclusion.

*316It is objected to the probate oí the deed, that it does not appear that the two Justices, who certified to the *feme covert,*were members of the County Court, or were appointed by the Court for that purpose.

The record shows that the deed was acknowledged in open Court by the husband and wife ; and that a report was made to the Court, at the same time, by Forbes and Etheredge, two justices of the peace, as to the privy examination of the wife ; and that, thereupon, the Court ordered the deed to be registered.

The County Court is held by the justices of the peace in the several Counties, Any three are sufficient to make a Court, and any justice has the right to go upon the bench, and be a member of the Court. Indeed, any justice, who is present in the Court room, and takes part in the proceedings of the Court, as one of the Court, *ipso facto,*is one of the Court.

A deed is acknowledged by husband and wife in open Court — two justices of the peace, thereupon, take the privy examination and report to the Court, and the Court acts upon the report. The inference is irresistible, that the two justices were members of the Court, appointed for that purpose. If they had taken the examination *officiously,*the Court would not have received their report and *acted upon it.*In this case the record shows, that the two justices, Forbes and Etheredge, were members of the Court, when the Court opened on that day, but it is not necessary to call that circumstance in aid of the conclusion, that they were members of the Court, appointed to take the privy examination.

The other objection is, that it appears from the report, that the justices examined the wife as to whether she *executed*the deed voluntarily, but it does not appear, that they examined her as to whether she *doth voluntaria ly assent thereto*— in other words, that the examination appears to have been as to *a past*act, whereas, it should *317have been as to her *present*assent; and the idea is sug* gested, that the law intends to give the wife a *“locus peni-*tentice,” between the execution of the deed and the privy examination ; so that, although she *executed*the deed voluntarily, yet, she should be at liberty to change her mind before the privy examination.

The result of this objection is an argument against it; for several cases, in which the report of the examination is expressed, as it is in this case, have been examined by this Court, and all objections, supposed to be at all feasible, were raised, and many similar cases have, no doubt, occurred on the circuils. And yet, this idea has' now been suggested for the first time. In *Joyner*v. *Faulcon, 2*Ired. Eq. 386, the certificate made by Judge Daniel is, “she acknowledged that she executed, the within deed freely,” &c. In *Burgess*v. *Wilson, 2*Dev. 307, the certificate is, “she acknowledged, that she executed the deed of her own free will,” &c., and although many objections were taken, the one, now under consideration, was not started.

i The Act of Assembly gives no form, in which the certificate or report of the privy examination is to be made. It simply provides, that the Judge, or member of the County Court, shall privily examine the wife, “whether she doth voluntarily assent thereto” — that is, to the execution of the deed, which she had just before acknowledged in the presence of her husband. And it can make no difference, whether the judge or member of the Court, in making the certificate or report of the privy examination, uses words in the past or present tense ; in truth, the past tense would seem to be most proper. In the provision j made for taking the examination of the wife, who is sick,the words in the commission are in the past tense — ■ “whether she executed the deed freely and of her own accord,” &c. and it is probable, that from this circumstance, most of the judges and members of the Courts, *318have fallen into the mode of expressing the certificate in the past, which is really the most natural manner of stating the fact, as the examination comes *after*the ac-knowledgement of the deed.

IÍ upon the privy examination, the wife states, that although she was willing to convey when she executed the deed, yet she had changed her mind, and was then unwilling ; of course, the assent of the wife would not he certified or reported.

The word “assigned” is used by the parties in this case instead of the word “executed.” We think it immaterial. The former being used as synonymous with the latter.

So, it is immaterial, whether the acknowledgement, or the examination be first recorded. In *Joyner*v. Faulcon, before cited, the privy examination is written first, but it was held, “the certificate states a single transaction — all therein mentioned occurred at the same time, and it is immaterial what part of it is mentioned first in the certificate.”

Peb Curiam. Judgment reversed and a *venire de novo*ordered.