Ferebee v. Hinton

Shepherd, J.

(after stating the case). The first, fourth, fifth and sixth exceptions may be considered together, as the}r substantially involve the same question, viz.: Whether it was competent to receive testimony to impeach the probate of a deed, and whether the deed was void as to the wife, if the Clerk of the Superior Court of Camden County took her privy examination in the State of Virginia. As this was an action brought directly for the purpose of impeaching the probate, there can be no doubt as to the admissibility of the testimony. It is unnecessary to cite authority in support of such a plain proposition. As to the other point, it is equally clear that the Clerk had no jurisdiction when he took the privy examination in the State of Virginia. The case of Young v. Jackson, 92 N. C., 144, cited by the appellant’s counsel, has no application to the facts before us. It simply decides, that “the acts of 1868-69, requiring the certificate of the Probate Judge of a county other than the county of registration, to be passed on by the Probate Judge of the latter county, is directory only.”

The second, sixth and seventh exceptions involve the correctness of the principles embraced in the charge, that “the defendants claim title to the same land by the deed which is now sought to be set aside, and as both claim under Mrs. Fere-bee there is no need to show title out of the State.” This instruction is so manifestly correct that it is needless to cite, in support of it, any of the numerous authorities in our *105State. The third and remaining exception, as to the burden of proof, like all the others, is clearly untenable. AYe think, however, that the judgment is erroneous, in that it directs the cancellation of the deed and notes. These remain effective so far as the husband, W. B. Ferebee, is individually concerned.

The judgment should be corrected, so as to declare the notes and deeds inoperative only as to Sarah and her real .•and personal representatives. Ware v. Nesbit, 94 N. C., 664.

Modified and affirmed.