#### SANDY V. CRISSMAN and FRANKLIN S. CRISSMAN v. GUS PALMER.

(Filed 10 October, 1945.)

1. Judgments § 22e—

In an action instituted in 1944 by plaintiffs against defendant to remove a cloud from their title by reason of claim of defendant to an interest therein, based on a conveyance dated 30 June, 1924, the acknowledgment, upon which defendant’s deed was admitted to probate and registered, having been taken by a notary public, who certified that his commission expired 27 January, 1924, where the cause was heard, by consent without a jury, and the court gave judgment for plaintiffs, no exception or appeal being taken, and at a subsequent term defendant having moved to vacate the judgment, apparently under G. S., 1-220, on the ground that the commission of the notary who took the acknowledgment did not actually expire until 1925, judgment below denying defendant’s motion was proper.

*2.*Appeal and Error § 37a—

The proper way to review an erroneous judgment is by appeal.

3. Judgments § 22e—

Surprise at the action of the court does not constitute ground for setting aside a judgment under G. S., 1-220. This statute does not afford relief from a judgment on the ground of mistake of law.

4. Judgments § 22c—

Where the judge below denies a motion to set aside a judgment, no findings of fact being stated, there is a presumption that he declined to set aside the judgment on the facts alleged.

5. Registration §§ 2, 4b: Deeds §§ 7, 8—

Registration, based on the certificate of a notary whose commission has expired, is invalid. And where the defect in the probate is apparent on the record, the registration does not affect subsequent purchasers and encumbrances. The rule is otherwise when the incapacity of the officer is latent and does not appear upon the record.

6. Trial § 47: Appeal and Error § 47a—

Motion, for a new trial on the ground of newly discovered evidence, must be made at trial term, or upon appeal in this Court.

Appeal by defendant from *Burqwyn. Special Judqe,*at July Term, 1945, of Lee. Affirmed.

*J. G. Edwards and X. JR. Hoyle for plaintiffs, appellees.*

*J. G. B. Ehringhaus for defendant, appellant.*

Devin, J.

The defendant appealed from 'the denial of his motion to set aside the judgment heretofore rendered in the cause.

*473In support of bis motion tbe defendant alleged that tbe judgment sought to be vacated was based upon an erroneous conclusion or mistake as to a fact upon wbicb tbe deed conveying certain mineral rights to tbe defendant was held inadmissible, and that subsequently discovered evidence bad disclosed tbe truth of tbe matter and tbe competency and validity of bis deed.

Tbe circumstances pertinent to defendant’s motion were these: By deed executed 30 June, 1924, there was conveyed to defendant by Jude Palmer and wife one-half interest in tbe minerals and mineral rights in and upon a tract of 209 acres of land. Tbe acknowledgment upon wbicb tbe deed was admitted to probate and registration was taken by a notary public who certified “My commission expires Jan. 27, 1924.” Thereafter Jude Palmer and wife executed mortgage on same land, without exception, to Greensboro Joint Stock Land Bank, under wbicb, by foreclosure and *mesne*conveyances, plaintiffs derive their title.

In 1944 plaintiffs instituted action against defendant Gus Palmer to remove cloud from their title by reason of tbe allegedly unfounded claims of defendant to mineral interests in tbe described land. Removal of cloud in another respect was prayed, but that is not material to tbe questions here presented. Plaintiffs alleged, among other things, that there was no legal binding conveyance or legal registration of valid deed for tbe mineral interests claimed by defendant.

When tbe case came on for trial it was agreed by tbe parties that it be submitted to tbe court without a jury, and thereupon tbe court found tbe plaintiffs were owners of tbe entire mineral interests in tbe described land, and that defendant bad no interest therein, and so adjudged. No exception to this finding or to tbe judgment was noted, and no appeal was taken.

At a subsequent term of tbe Superior Court defendant filed motion to vacate tbe judgment on tbe ground that tbe notary public, who took tbe acknowledgments to tbe deed to plaintiff in 1924, was in fact duly commissioned as such, and that bis commission did not expire until 1925. Defendant offered certificate of tbe clerk in tbe Governor’s office having charge of issuing notary public commissions that tbe records in that office so showed. It was alleged that “by reason of said mutual mistake it was a great surprise to this defendant, and was not due to any inadvertence on bis part, or to any mistake on bis part, and was excusable so far as be is concerned and so far as bis counsel was concerned.”

Judge Burgwyn, who beard tbe motion, ordered and adjudged that tbe motion to set aside tbe judgment be denied. No facts were found, nor was there any request that be find any facts.

*474Tbe motion to vacate tbe judgment appears to have been based on G. S., 1-220. It is so denominated in tbe brief. However, we tbink defendant could hardly claim surprise or inadvertence wben tbe deed in question with tbe notary’s certificate thereon bad been in bis possession approximately twenty years, and tbe plaintiff in bis reply, on file some time before tbe trial, bad specifically denied tbat there bad been a valid registration of tbe deed under wbicb defendant claimed tbe mineral interests. Tbe record of tbe commissioning of notaries was at all times available to tbe defendant. Nor may tbe defendant now be beard to complain of an erroneous ruling of tbe judge as to tbe admissibility of tbe deed as evidence. He is precluded by tbe final judgment to wbicb be did not except and from wbicb be did not appeal. “Tbe proper way to review an erroneous judgment is by appeal.” *Cameron v. McDonald,*216 N. C., 712, 6 S. E. (2d), 497; *Simmons v. Dowd,*77 N. C., 155. No irregularity in procedure is suggested. Surprise at tbe action of tbe court would not constitute ground for setting aside tbe judgment under G. S., 1-220. *Skinner v. Terry,*107 N. C., 103. Tbis statute does not afford relief from a judgment on tbe ground of mistake of law. *Lerch v. McKinne,*187 N. C., 419, 122 S. E., 9.

Tbe judge -below denied defendant’s motion without comment. *S. v. Fuller,*114 N. C., 885, 19 S. E., 797. No findings of fact were stated, but presumably on tbe facts alleged be declined to set aside tbe judgment. *Norton v. McLaurin,*125 N. C., 185, 34 S. E., 269. It does not appear tbat tbis ruling was based on misapprehension of want of power or misconception of any principle of law. *Hudgins v. White,*65 N. C., 393; *S. v. Casey,*201 N. C., 620, 161 S. E., 81.

We perceive no substantial ground for reversal of tbe ruling denying defendant relief under G. S., 1-220.

It is argued tbat tbe judgment was based on tbe court’s erroneous view tbat defendant’s deed was inadmissible in evidence, whereas it is contended tbat tbe notary’s statement as to *the*expiration of bis commission, though required by statute (G. S., 10-7), did not vitiate its registration or prevent it from constituting notice to subsequent purchasers.

Tbat question is not presented by tbis record. It may be noted, however, that in *Hughes v. Long,*119 N. C., 52, 25 S. E., 743, it was held tbat registration based on tbe certificate of a notary whose commission bad expired was invalid, and in *Bank v. Tolbert,*192 N. C., 126, 133 S. E., 558, it was pointed out tbat where tbe defect in tbe probate was apparent on tbe record tbe registration was invalid and did not affect subsequent purchasers and encumbrances. It was stated tbat tbe rule was otherwise wben tbe incapacity of tbe officer was latent and did not appear upon tbe record, citing *Blanton v. Bostic,*126 N. C., 418, 35 S. E., 253.

*475The question of a new trial for newly discovered evidence is not presented by this appeal. To avail the defendant, motion on tbis ground must have been made at the trial term, or upon appeal in this Court. *Turner v. Davis,*132 N. C., 187, 43 S. E., 637; *Stilley v. Planing Mills,*161 N. C., 517, 77 S. E., 760; *Fleming v. R. R.,*168 N. C., 248, 84 S. E., 270; *Lancaster v. Bland,*168 N. C., 377, 84 S. E., 529; *S. v. Casey,*201 N. C., 620, 161 S. E., 81; *S. v. Wall,*205 N. C., 659, 172 S. E., 216; McIntosh, 676.

Nor has the defendant asked for relief on this ground. The only exception noted below was to the signing of the judgment. This presents only the question whether error appears on the face of the record. *Query v. Ins. Co.,*218 N. C., 386, 11 S. E. (2d), 139. Counsel who argued the case for the defendant in this Court did not appear in the trial or hearing below.

The judgment denying defendant’s motion on the grounds alleged must be

Affirmed.