CLARK, C. J., and HOKE, J., concurring; WALKER and CONNOR, JJ., dissenting. The pleadings are set out in the record, and in its complaint plaintiff alleged the execution of the contract for conveyance of the land, *Page 247 tender of deed within the time prescribed by the contract, drawn in accordance with its terms, and tender also of the contract price. The feme defendant alone answered, and admitted all the allegations of the complaint except the binding execution of the contract, alleging that she signed the contract believing it to be for sale of timber instead of the fee to the land, and denying that she acknowledged its execution, as required by law. Plaintiff, tendering the deed and purchase money into court, renewed its demand for the specific performance of the contract.
From judgment denying the prayer for specific performance the plaintiff appealed. We think there should be a new trial of this case.
1. The plaintiff, in apt time, handed up the following prayer for instruction, viz.: "That although the feme defendant, M. F. Leonard, did, at the time she signed the contract to convey, believe and suppose that it was only a contract to convey the standing timber, yet, as she, after having ascertained that it was a contract to convey the land, subsequently acknowledged to the justice of the peace, separate and apart from her husband, that she signed the same freely and voluntarily, without fear or compulsion of her husband or any other person, and that she still voluntarily assents thereto, such acknowledgment would relate back to the signing of the contract, and would be as effectual against her as if she had known at the time of the signing that it was a contract to convey the land that she was signing; and if the jury should so find, they will answer the first issue `No.'"
We think it was prejudicial error in the court to refuse to give this instruction. It deprived the plaintiff of its strongest position before the jury. It admitted that Mrs. Leonard signed the deed a week before the justice of the peace came to her house to take her privy examination. She testifies herself that when she signed the deed she believed it to be a conveyance of the timber only, but that she learned from her husband that it was a deed for the land on the evening of the same day on which she signed it. She admits she knew its true purport a week before the official called to take her examination.
Stokes, the justice of the peace, testifies as follows:
"Q. You are an acting justice of Franklin County, and were such acting justice on 25 September, 1905? A. Yes.
"Q. Examine that paper [exhibiting option], and see if it is your probate. Yes, sir. *Page 248
(342) "Q. When you took that probate, what did you ask Mrs. Leonard? A. I asked her if she signed `this paper of her own free will and accord, if she was forced by her husband or any other person, and —'
"Q. How did she answer? A. She said she did. I asked her if she was forced by her husband or any other person. She said: `No.' I says: `You still assent, then, freely and voluntarily, on your part? She says: `Yes.' I asked her: `Then you still say it is freely and voluntarily, of your own free will and accord?'
"By the court: Did you ask her if she still voluntarily assented? A. I asked her them three questions.
"Q. Did she still voluntarily assent to it? A. She answered them `Yes.'
"Q. You asked her that, and she answered `Yes'? A. Yes, sir.
"Q. At that time did she say anything about having misunderstood the purport of the paper? A. She said, while I was there — I don't know whether to me or to Captain Phil — says: `When I signed that contract I thought it was for timber only, instead of for the land and timber.'
"Q. Was that after you asked her those questions? A. I think it was."
That testimony is plainly susceptible of the construction placed upon it by plaintiff, viz., that, although Mrs. Leonard did not know the option contract covered the land at the time she signed it, yet she was informed of it the same day by her husband, and that she acquiesced, and when the justice came the following week she duly acknowledged and voluntarily assented to the paper, although she stated, after her privy examination was taken, either to "Captain Phil" or the justice, that, had she known the true nature of the paper in the beginning, she would not have signed it. This is the justice's account of the matter, and it is entitled to great weight. The prayer for instruction was intended to present that phase of the testimony to the jury, and it is supported by Stokes' evidence. It seems to (343) me erroneous to refuse it. The plaintiff had a right to have that phase of the evidence presented to the jury.
2. The following questions were asked witness Stokes, for the evident purpose of corroborating and strengthening his testimony:
"Q. Would you have probated that paper, as you have, had she said to you at the time that she signed it thinking it was a timber deed?" Defendant objected to the question.
"Q. Would you have probated the paper at the time if you had understood her to say at the time that she thought she was signing a timber deed?"
These questions were excluded by the court, and plaintiff excepted. We think this ruling was erroneous and prejudicial. The evidence was *Page 249 competent, upon the ground that the judicial act of the officer was being inquired into, and the evidence tended strongly to support and corroborate his evidence and to affirm his good faith and integrity. The feme defendant having been permitted, over plaintiff's objection, to state that she told the officer at the time he took her acknowledgment that she thought she was signing a timber contract instead of a land contract, it was competent in contradiction of this testimony to show that, if she had made any such statement to him, the paper would not have been probated by him. We cannot imagine any statement that could be more strongly corroborative of the accuracy of the justice's recollection than the one which the excluded questions sought to bring out.
3. The court erred in charging the jury that "The burden of proof is upon the defendant in respect of the contentions, and the finding of either one of the issues in her favor must be by the greater weight of the testimony." The certificate of the justice is in due form, and is also supported by abundant evidence. It can only be attacked by clear, strong, cogent and convincing proof. Benedict v. Jones, 129 N.C. 472. The court should instruct the jury with the greatest care (344) in cases of this character, and explain to them that the solemn act of a judicial officer is not to be lightly set aside, and certainly not upon a mere preponderance of evidence, but only upon very clear, strong, and cogent proof, which should fully convince the minds of the jury. Unless in their opinion the proof comes fully up to this standard, we think the judges of the Superior Court should not hesitate to exercise their discretion and set aside a verdict which destroys the legal effect of such an important judicial act, and one which is so essential to the security of titles.
4. Much may be said in favor of the contention that, "if the private examination of the wife shall have been certified in the manner prescribed by law," by the purport of section 956 it is not open to attack at all, except upon the ground that "its execution was procured by fraud, duress, or other undue influence," to which the grantee must be shown to be a party. In other words, it is contended that, if the officer certifies in due form the wife's voluntary assent, when in fact she refused to give it, it is a fraud perpetrated against the wife and the purchaser both, but one to which the grantee or his agent must be proven to be a party, in order to invalidate the certificate. However that may be, we are of opinion that the certificate of the officer of privy examination of a married woman shuts off all inquiry as to fraud, duress, or undue influence in the treaty, unless participated in by the grantee or his agent. It also precludes all inquiry into fraud or falsehood in the factum of the privy examination itself, unless the feme covert can make it appear, by clear, cogent, and convincing proof, either that no such examination was had *Page 250 at all or that on such examination she refused to give her voluntary assent to the execution of the instrument, and so expressed herself to the officer at the time he undertook to examine her. In the case at bar there is no such evidence offered in contradiction of the official certificate, the truthfulness of which has the additional support of the (345) clear and unequivocal testimony of the officer who made it. On the contrary, the evidence shows that her entire objections and statements, made when Stokes was at her residence, related, not to the privy examination at all, nor to what she understood at that time, but to her act and mental attitude in respect to the execution of the instrument at the time she signed it, several days before, when Stokes, the justice, was not present.
For the reasons given, we think that there should be a new trial.