concurring in result: My opinion is tbat tbe second certificate does, by fair implication, state tbat all tbe information upon which tbe justice proceeded in making it was acquired by him upon tbe privy examination of tbe wife. He does not say, nor does be use any language which, if properly construed, implies as much, tbat be was certifying as to tbe facts which be learned outside said examination. The mere added expression, “and upon a careful examination of tbe facts,” following tbe words, “I further certify tbat upon said examination,” plainly mean tbe facts disclosed by sucb examination, unless we extend tbe meaning beyond what tbe words will justify. If we say tbat we bave examined tbe record in a case, “and upon a careful examination of tbe facts,” which is not an unusual expression with us, we always mean tbe facts as shown in tbe record.
There is nothing there to indicate tbat we searched outside tbe record for other facts, and nothing here tbat implies tbat tbe justice gathered facts not appearing at tbe examination of tbe woman. But while I bold this view as to tbe meaning of tbe certificate, nevertheless, after careful and deliberate examination of the law, my conclusion is tbat tbe justice bad no authority to change bis certificate. Tbe trend of opinion as stated by tbe text-writers, and 'in a large majority of tbe cases, is steadily set against tbe exercise of any sucb power, as being both unusual in practice and pernicious in its consequences. Tbe rule is well stated in Elliott v. Lessee of Peirsol, 1 Peters (U. S.), 328 (7 L. Ed., 164) : “Had tbe clerk authority to alter tbe record of bis certificate of tbe acknowledgment of tbe deed at any time after tbe record was made? We are of tbe opinion be bad not. We think be acted ministerially, and not judicially, in tbe matter. Until bis certificate of tbe acknowledgment of Elliott and wife was recorded, it was, in its nature, but an act vn_ pais, and alterable at tbe pleasure of tbe officer. *590But the authority of the clerk to make and record a certificate of the acknowledgment of the deed was functus officio as soon as the record was made. By the exertion of his authority, the authority itself became exhausted. The act had become matter of record, fixed, permanent, and unalterable; and the remaining powers and duty of the clerk were only to keep and preserve the record safely. If a clerk may, after a deed, together with the acknowledgment or probate thereof, have been committed to record, under color of amendment, add anything to the record of the.acknowledgment, we can see no just reason why he may not also subtract from it. The doctrine that a clerk may at any time, without limitation, alter the record of the acknowledgment of a deed made in his office would be, in practice, of - very dangerous consequence to the land titles of the county, and cannot receive the sanction of this Court.” The cases to the same effect are numerous. Durham v. Stephenson, 41 Fla., 112; Bours v. Zachariah, 11 Calif., 281; Merritt v. Yates, 71 Ill., 636; Bank v. Paul, 75 Va., 594 (40 Am. Rep., 740); Newman v. Samuels, 17 Iowa, 528; Elwood v. Klock, 13 Barbour (N. Y.), 50; Wedel v. Herman, 59 Calif, 507. There is a valuable note to the ease of Jordan v. Corey (2 Ind. 385), in 52 Am. Dec. (Extra Anno.), at pp. 519, 520, 521, which was written by Judge Freeman, and where he says: “Whether the act of the officer who takes an acknowledgment be. regarded as a judicial or a ministerial one, there seems to be no good reason why he should not be allowed, within reasonable limits, to amend his certificate so as to malee it speak^the truth and conform to the actual fact. The power to amend is freely exercised in many analogous caes, and it is not easy to see why it should be permitted in this. Be this as it may, it must be admitted that the greater weight of authority is on the other side of the question.” He then collects the cases and shows that the decided weight of authority is the other way, notwithstanding his own view of the subject. By reference to 1 Am. and Eng. Enc. (2 Ed.), at pp. 552, 553, and notes, it will be found that the case of Jordan v. Corey, on which the contrary doctrine seems to rest, has been disapproved by the other courts as being wholly unsupported by reason, or by precedents elsewhere.
A similar decision to that of Jordan v. Gorey was made in Missouri (Wannall v. Kem, 51 Mo., 150), but was afterwards disapproved and overruled by the same Count in Gilbraith v. Gallivan, 78 Mo., 456, and also unfavorably considered in Griffith v. Venters, 91 Ala., 366 (24 Am. St. Rep., 918).
The justice or notary has been allowed by some courts to amend, or rather perfect, which is a better word,. his certificate by signing his name, which he had omitted to do, or by affixing his official seal, where it had not been done at the time of making his certificate. Harmon v. Magee, 57 Miss., 415. But it will be seen that this is merely a formal *591defect and did not contradict or otherwise substantially affect the body of tbe certificate. It was merely something necessary to complete the act of certification, and its omission was manifestly an inadvertence. We permitted a similar act to be done by an officer in the probate of a deed in Sellers v. Sellers, 98 N. C., 13. It may be that if no certificate had been made at all, or an incomplete one, that is, one lacking in some essential formality, but not affecting the substance or facts certified or their legal significance, the officer might supply what is missing. This, though, is not our case.
We know that, anciently, such acknowledgments of married women could only be taken in open court and entered on its records in proceedings somewhat tedious, intricate, and attended with much expense, form and ceremony, by the procedure of fine and recovery, this being one of the methods of barring the wife’s dower. 2 Lewis’s Blackstone, page 136. And by our statute the privy examination, duly taken according to the statute and by the irroper officer, once had the conclusive force and effect of a fine and common recovery. Eev. Stat., ch. 37, sec. 9; Jones v. Cohen, 82 N. C., 75; Ware v. Nesbit, 94 N. C., 664, and though the law has been somewhat modified in this respect, the private examination of the wife still is binding upon her, and will pass her dower or other interest in the land described in her deed, if regularly acknowledged by her husband and herself with her proper privy examination. Eev. Code, ch. 37, sec. 8; Eevisal of 1905, see. 952, and such privy examination, even at the present, precludes investigation as to fraud, duress or undue influence in the treaty against an innocent purchaser for value; and also shuts off inquiry into fraud or falsity in the examination itself, unless supported by strong, clear, and convincing proof. Eevisal, sec. 956; Lumber Co. v. Leonard, 145 N. C., 339.
It was a long time before the Legislature would dispense with the old procedure, and substitute one less formal and solemn, but it finally did so, and now justices of the peace and other enumerated officers have been intrusted with this important duty and power to take and certify such acknowledgments and privy examinations, and when it is done in conformity with the statute the act is clothed with the same force and effect formerly produced by the judgment of a court of record, but it was not intended by this radical change in ceremony that the proceeding, which is now authorized, should be regai’ded as of less moment than anciently, or that it should be left to the loose and uncertain action or conduct of careless or unskillful persons.
The formalities of the law should be just as punctiliously observed now as before the change, and I do not see why,- when the officer has acted and recorded what he has done, he should be permitted-to reopen the matter and alter the facts, or impart new life or validity to the record he has made, if imperfect, without the consent of the parties, *592or why the court should require him to do so without notice and opportunity to be heard being given to all parties concerned. If his certificate is not technically to be considered as a judicial record, it is, at least, a quasi one. It was said'in Bours v. Zachariah, 11 Calif., 281, 70 Am. Dec., 779: “The certificate of a notary public to a deed is not an act in pais, which he may exercise by virtue of his office at any time while in office; he derives his power from the statute, acts under a special commission for that particular case, and after taking the acknowledgment and making and delivering the return, his functions cease, and he is discharged from all further authority, and cannot alter or amend his certificate. Mr. Justice Baldwin, who delivered the opinion in that case, thus referred to the principal-case: ‘We do not deem it necessary to criticise the case of Jordan v. Corey in 2 Carter’s Indiana Reports. That case we think wholly unsupported by authority.’ ” And in Enterprise Transit Co. v. Sheedy, 103 Pa. St., 492 (49 Am. Dec., 130), it was held: “This attempt to impart life to a void instrument has the merit of novelty. When Mrs. Sheedy affixed her name to the written instrument and acknowledged it, the acknowledgment was confessedly so defective as not to bind her or pass her title to the land. It was then delivered, and eleven days thereafter recorded. More than five months after the acknowledgment was actually taken, and the certificate* thereof, signed by the notary public, indorsed thereon, he wrote and signed a second certificate of acknowledgment. The parties to the* instrument did not again come before him, but he certifies what occurred months before. To this last certificate he adds facts not contained in his former certificate, with a view and for the purpose of making valid the writing of a married woman which was then invalid. Effect cannot be given to this latter action of the notary public.” Citing many eases. See, also, McMullen v. Eagan, 21 W. Va., 233.
The doctrine is strongly stated in Merritt v. Yates, 71 Ill., at p. 639 : “But we are aware of no statute or common-law practice which authorizes, or in any manner sanctions, the right of justices of the peace to* amend their records after they have once been made. To allow a justice to make alterations and changes in his record at will and according to his whim would be fraught with evil and wrong that would be oppressive. Such a power has not been intrusted to the higher courts, and cannot be exercised by these inferior jurisdictions.”
It may be admitted that whenever substance is found in a certificate of acknowledgment, obvious clerical errors and all technical omissions and effects will be disregarded, and, in order to uphold it, the certificate will be read in connection with the instrument, and in the light of the surrounding circumstances (Morse v. Hewett, 28 Mich., 481; King v. Merritt, 67 Mich., 194), a proposition in support of which numerous authorities are collected in the case last cited, but that is very far from *593saying that a probate officer may alter his certificate in matters of substance affecting the validity of his action in the premises. It is true that it is said by Judge Mitchell so recently as 1889, in Westhafer v. Patterson, 120 Ind., 459 (16 Am. St. Rep., 330), that “assuming that the officer before whom the deed was acknowledged did his duty, and examined the wife separate and apart from her husband, it would follow that the informality in the certificate was the result of a mere clerical omission, which might be corrected on proper, application.” But a close examination of the case will disclose that the Court was referring in that connection to a mere informality.
We may well refer to what is aptly said in Gilbraith v. Gallivan, 78 Mo., at p. 455, after stating the fact that a perfect certificate was substituted for the original, which was erased: “If we assume this last certificate as true, and stating the facts as they occurred, it is plain that the notary, at the date of his examination and certificate, was perfectly aware of what was required by the statute.” This being so', it shows the danger in allowing the probate officer to trust to his memory of the events or facts long after the examination was taken, rather than require that what he has certified or recorded when the facts were fresh in his mind shall stand, unless altered, at least, after full investigation, upon notice to the interested parties. My conclusion, therefore, is that it is safer to deny to the officer this power of correction, so as to change the substance of the certificate, upon the grounds:
1. That it would be against a sound public policy to thus open the door to collusion and fraud, or to leave the matter to the uncertain and often unreliable memory of an officer, or to his unrestrained discretion, to materially change the substance of the certificate, either for the purpose of validating or invalidating the deed.
2. It would violate the cardinal principle or maxim of the law, that a party is entitled to a notice, and a hearing before his rights are altered to his prejudice. It should, therefore, be entrusted to the court, where an investigation of an adjudication upon the facts can be made, after notice and an opportunity for a hearing, rather than to the arbitrary will or even judgment of the officer who took the acknowledgment and conducted the privy examination.
If we should permit the justice, or other probate officer, to change the facts recited in the certificate at his will, however honestly he may act, titles to land would rest, in many cases, not upon the recorded evidence of them, or upon any sure foundation, but would depend, in many instances, upon the future and uncertain action of the officer, either to validate or invalidate them, rendering them very precarious. This would shake the confidence of the people in land titles and might prove *594to be very disastrous. In tbis case, the only witness who could contradict the officer as to the facts is dead, and it, therefore, furnishes a striking example of the unwisdom of any such rule as will permit him to change the facts stated ’in his certificate, attached to the deed, after the delivery to the grantee.
I may add that in this particular case it appears that there was no actual misstatement of the fact as to what the justice really did, or, at least, that there is no suggestion of such a thing or of any fraud or collusion. But the question is not what the fact is, in the instant case, but what is the law, as applicable to all cases, the object of which is to guard against any wrong influences calculated to prevent or pervert justice, or to take away a person’s rights without a hearing.
Some of the cases hold that a court of equity will not correct a mistake of this kind, but that the court, after such facts have been ascertained by judicial investigation, as will justify it, may require the offi-' cer to do so by its mandatory process. But this question is not now before us.
I fully concur in the position taken by the Court in its opinion, that this transaction is subject to the provisions of Revisal, sec. 2107, and the case has been discussed by me upon this hypothesis. A deed from the wife to her husband for her land is certainly a contract which “affects or changes her estate,” within the meaning of that section.