Bladen County NcArchives Court.....Robinson, Vs. Barfield 1811-18
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Source: North Carolina Reports
Written: 1811-18

JULY TERM, 1818. 

Den on the Several Demises of ROBINSON and others v. BARFIELD.

From Bladen.

1. The deed of a feme covert, without a private examination, according to the 
act of 1751, is a mere nullity and void; and to give validity to her deed it 
must appear that her private examination has been had pursuant to the act; if 
it appear by the clerk's certificate that the "deed was acknowledged in open 
court and ordered to be registered," the court will not presume a private 
examination from such certificate.

2. An act of Assembly declaring that certain deeds which are not executed 
according to law shall be held, deemed and taken to be firm and effectual in 
law for the conveyance of the lands mentioned in them is unconstitutional, 
being in violation of section 4 of the Bill of Rights, which declares the 
legislative, executive, and judicial powers of Government to be distinct.

Case agreed. William Bartram, in or about the year 1769, died intestate, 
seized in fee simple of divers lands in Bladen County, and leaving one son, 
William, and two daughters, Mary and Sarah. William died intestate and without 
issue, in 1771, on which Mary and Sarah became seized of the lands in 
coparcenary. Afterwards Mary intermarried with Thomas Robinson and Sarah with 
Thomas Brown. Mr. and Mrs. Robinson and Mr. and Mrs. Brown made partition of 
part of the lands, and on 8 February, 1776, mutually executed deeds to each 
other, sufficient in form to convey a joint estate in fee simple; but there is 
no evidence that either Mrs. Robinson or Mrs. Brown was privately examined as 
required by the act of Assembly. The land described in the declaration is 
comprehended in the deed from Mr. and Mrs. Robinson to Mr. and Mrs. Brown, on 
which deed is the following indorsement, to wit: "August Term, 1778; this deed 
acknowledged in open court and ordered to be registered." On 25 March, 1779, 
Mrs. Brown joined with her husband in a deed, and conveyed the premises to 
George Lucas, and on the day following Lucas conveyed the land to the said 
Thomas Brown. Mrs. Brown was never privately examined as to her free consent 
in making the deed to Lucas, in the manner prescribed by the act of Assembly; 
but a short time previous to her death she was asked, on examination by the 
subscribing witnesses to the deed, as to the fact, when she acknowledged to 
them that, the deed had been executed at her voluntary instance and of her own 
accord, which the witnesses testified in writing on the deed the same 25 
March, 1779. After her death her husband, Gen. Thomas Brown, applied to the 
General Assembly, and in 1788 an act was passed confirming his right to the 
land, and declaring that he and his heirs should hold the same in fee simple, 
which act, so far as it is consistent with the above facts, is made a part of 
this case. Mrs. Brown had three children, two of whom died in her lifetime 
without issue. The other, named Elizabeth, died afterwards in the lifetime of 
her father, intestate and without issue. On 4 June, 1796, after the death of 
Sarah Brown and Elizabeth Brown, General Brown executed a deed to Stephen 
Barfield for the same land. Stephen Barfield afterwards conveyed to Allen 
Barfield, the defendant. The Barfields, or one of them, possessed the land 
constantly since 4 June, 1796. General Brown died on 22 November, 1814, and 
this suit was brought in August, 1815. The lessors of the plaintiff are the 
heirs at law of Mary Robinson, and also the heirs at law of Elizabeth Brown, 
who survived her mother, but died in the lifetime of her father.

Murphey for defendant.

Seawell, J. Two questions arise in this case: first, the operation of the acts 
of 1776, and, secondly, the effects of the private acts of Assembly passed in 
1778, entitled "An act to quiet Thomas Brown, of Bladen County, esquire, in 
his title to and possession of divers lands, tenements and hereditaments 
therein referred to." As to the first, Mrs. Brown being at the time of making 
the deed a feme covert, her deed without a private examination, according to 
the act of 1751, is a mere nullity and void. By the rules of the common law 
femes covert are morally incapable of doing any act which is to bind 
themselves; this act forms an exception to the common-law rule, and to give 
validity to this deed of the feme covert it must appear that the deed in 
question comes within the exception. It has been insisted that the certificate 
of the clerk that "the deed was acknowledged in open court and ordered to be 
registered," imports a private examination, or, if it did not, that it is to 
be presumed the court did its duty by examining Mrs. Robinson; but we think 
differently, and on this branch of the case I believe we are unanimous.

The certificate implies only that the parties came into court in the usual 
form, and, as the acknowledgment is stated to be in open court, excludes the 
idea of any other acknowledgment; and though it is correct to presume the 
doing in a proper manner everything confided to a court, when it shall appear 
the court has done the thing entrusted to it, yet that only holds good as to 
the manner, and is not universally true as a proposition to that extent.

The reason of the rule is that courts will be inclined to support the thing 
done, and leave it the parties to reverse the judgment by writ of error; but 
in summary proceedings which are not according to the rules of the common law, 
no writ of error will lie; and in such cases it is required that everything 
should appear which authorized the doing of the thing done. The books contain 
many cases of this sort upon convictions on statutes. The principle to he 
extracted from all the cases respecting what things are to be presumed seems 
to be this, that whatever is entrusted to the determination of the courts, to 
authorize the acts done, shall, when the act is done, be presumed to have been 
sufficient for that purpose, as when a court is authorized upon satisfactory 
evidence to do a particular thing: in such a case they are made the judges of 
the sufficiency of evidence; but when they are only authorized upon particular 
prerequisite circumstances they are not entrusted with the authority to 
determine, and for the thing done to be valid the essentials required by law 
must appear to warrant the proceedings of the court. We are therefore all of 
opinion that the certificate of probate does not warrant a presumption that 
Mrs. Robinson was privately examined as required by the act of 1751, and 
consequently that the deed is void. Then as to the other point, a majority of 
us entertain the opinion that the private act of 1778 is a manifest violation 
of section 4 of our Bill of Rights, which declares "that the legislative, 
executive and supreme judicial powers of Government ought to be forever 
separate and distinct from each other." And we think that the whole of the 
argument in respect to the plenitude of legislative power is inapplicable to 
the present question. The act itself does not profess to direct the heirs of 
Mrs. Brown and transfer to General Brown; it only declares "that the several 
deeds shall be held, deemed and taken to be firm and effectual in law for the 
conveyance of the lands, etc., therein mentioned, against the heirs of the 
said Sarah Brown, and so as to bar them and every of them forever." This we 
consider as importing nothing further than the determination of the 
Legislature upon the effects in law of the several deeds. By the Constitution 
they are restricted from this exercise of power; they are to make the law, and 
the judicial power is to expound and determine what cases are within its 
operation. The Legislature is the only authority which can give to a feme 
covert the capacity of conveying her lands; they have done so, and prescribed 
the particular mode in which it should be done; but whether the deed of Mrs. 
Brown was executed according to the provision of that law, belongs not to them 
to decide, nor can they do so without violating the authority under which 
alone they can pass any acts—the Constitution. Upon this point a majority of 
us are of opinion that the plaintiff is entitled to judgment, and that we are 
not under the necessity of re-examining the question whether the Legislature 
does possess the power of stripping one individual of his property without his 
consent and without compensation, and transferring it to another. That 
principle has already been twice examined in this Court, and in both cases 
determined against the power. University v. Foy, 3 N. C., 310, 374; Allen v. 
Peden, 4 N. C., 442. Divers cases have been decided the same way in the 
Supreme Court, of the United States, which, we think, ought to put the 
question at rest.

Daniel, J. The deed from Thomas and Sarah Brown to George Lucas, dated 25 
March, 1779, did not pass the fee-simple estate of Sarah Brown; she never was 
privately examined by any of those modes and ways pointed out by the 
Legislature, and without such an examination we are ignorant whether coercion 
or undue influence was exercised by her husband or not. She being a feme 
covert at the time the deed was executed, the law declares it void without 
such an examination.

Had the legislature any right or power to take the lands without the consent 
of the lessors of the plaintiff, in whom the fee simple vested, and, without 
compensation rendered, give them to Gen. Thomas Brown and his heirs? or, in 
other words, is the act of the Assembly, passed in 1788, confirming the title 
of General Brown, of any force or effect? I am of opinion the act is a 
nullity, and does not affect the rights of the lessors of the plaintiff. The 
Constitution declares that the legislative, executive and supreme judicial 
powers of Government ought to be forever separate and distinct from each 
other. The transfer of property from one individual, who is the owner, to 
another individual, is a judicial and not a legislative act. When the 
Legislature presumes to touch private property for any other than public 
purposes, and then only in case of necessity, and rendering full compensation, 
it will behoove the Judiciary to check its eccentric course by refusing to 
give any effect to such acts. Yes, let them remain as dead letters on the 
statute-book. Our oath forbids us to execute them, as they infringe upon the 
principles of the Constitution. Miserable would be the condition of the people 
if the judiciary was bound to carry into execution every act of the 
legislature, without regarding the paramount rule of the Constitution. This 
Government is founded on checks and balances. The Judiciary check the 
legislature when it strays beyond its constitutional orbit, by refusing to 
enforce its acts. "The opinion of Sir Mathew Hale, that a statute is in the 
nature of a judgment, may be law in England, but in this State, where the 
Constitution has separated the legislative and judicial powers, courts can 
neither nibble at the legislative power, nor can the legislative stride over 
the judicial." In England "acts of this kind are carried on in both Houses 
with great deliberation and caution, particularly in the House of Lords. They 
are generally referred to two judges to examine and report the facts alleged, 
and to settle all technical forms. Nothing, also, is done without the consent 
expressly given of all parties in being and capable of consent, that have the 
remotest interest in the matter, unless such consent shall appear to be 
perversely and without any reason withheld; and as before hinted, an 
equivalent in money or other estate is usually settled upon infants or persons 
not in esse, or not of capacity to act for themselves, who are to be concluded 
by this act, and a general saving is constantly added at the close of the bill 
of the rights and interests of all persons whatsoever, except such whose 
consent is so given or purchased, and who are therein particularly named. 
Though it has been holden that if even such saving be omitted, the act shall 
bind none but the parties." 2 Blackstone Com., 345. Judge Blackstone then 
adds: "A law thus made, though it binds all parties to the bill, is yet looked 
upon more as a private conveyance than as the solemn act of the Legislature." 
In this country, a variety of determinations by different judges, in different 
courts, has established the principle that the Legislature has not the power 
to take the lands of A and give them to B. Such a power is not within the 
definition of that prerogative affixed to sovereignty, and denominated, by 
writers on national law, the eminent domain. This prerogative of majesty is to 
be exercised only in case of necessity, and for the public safety. When the 
sovereign disposes of the property of on individual in case of necessity and 
for the public safety, the alienation will be valid; but justice demands that 
this individual be recompensed out of the public money, or if the treasury is 
not able to pay it, all the citizens are obliged to contribute to it. Vattel, 
Book 1, ch. 20, sec. 244.

It is by virtue of the eminent domain that highways are made through private 
grounds. Fortifications, lighthouses and other public edifices are constructed 
on the soil owned by individuals. Necessity demands these works; they are for 
the public safety, and the individual is compensated for his loss; but 
necessity can never demand that the lands of A shall be taken and given to B, 
nor can the public safety ever require it. It is immaterial to the State in 
which of its citizens the land is vested; but it is of primary importance that 
when vested it should be secured and the proprietor protected in the enjoyment 
of it. Judge Patterson, in Vanhorner v. Dowanee, 2 Dallas, 310, says: "The 
Legislature has no authority to make an act divesting one citizen of his 
freehold and vesting it in another, without a just compensation; it is 
inconsistent with the principles of reason, justice and moral rectitude; it is 
incompatible with the comfort, peace and happiness of mankind; it is contrary 
to the principles of social alliance in every free government, and lastly, it 
is both contrary to the letter and spirit of the Constitution. In short, it is 
what every one would think unreasonable and unjust in his own case." Judge 
Chase, in Calder v. Bull, 3 Dallas, 394, observes: "It is not to be presumed 
that the Federal or State Legislature will pass laws to deprive citizens of 
rights vested in them by existing laws, unless for the benefit of the whole 
community, and on making full compensation." Chief Justice Parsons, in 
delivering the opinion of the Court in Walls v. Stetson, 2 Mass., 146, 
says, "that we are also satisfied that the rights legally vested in this or 
any other corporation cannot be controlled or destroyed by any subsequent 
statute." Chief Justice Marshall, in Fletcher v. Peck, 6 Cranche, 132, 143, 
said: "The Legislature of Georgia, in their session of 1796, had no power to 
divest the titles of the Yazoo lands out of those grantees to which the 
Legislature in its session of 1795 had conveyed." We all know that Georgia 
repealed or attempted to repeal the law of 1795. The records were erased or 
burnt. Congress fretted and stormed, but the grantees held the land.

In Osborn v. Huger, 1 Bay, 197, Judge Burke said, "he should not be for 
construing a law so as to divest a right; and that a retrospective law in that 
case would be against the Constitution of the State."

Chief Justice Kent is of the same opinion, Dash v. Van Kluck, 7 Johns., 507. 
Chancellor Lansing, in delivering his opinion in the case of Catlin v. 
Jackson, 8 Johns., 557, remarking on the passage in Blackstone's Commentaries 
relative to the manner of passing private acts in England, observes: "If in 
Great Britain, where so many precautionary measures are taken to preserve the 
interest of strangers, private acts are restrained to the parties only who are 
evidenced to be such, by consent to them, either in person or by those who 
legally manage their concerns for them; and if when the suggestions on which 
the act is passed are proved fraudulent, a court of chancery will relieve 
against them, which is there well settled, the general practice which obtains 
here with respect to the passing such acts generally on the bare suggestion of 
the applicants, affords additional and very cogent reasons against relaxing 
such restraints; and it can be scarcely necessary to add, to divest an 
interest to a stranger to it is contrary to the clearest dictates of justice 
and repugnant to the Constitution." The same doctrine has been held by this 
Court: University v. Foy, 3 N. C., 310, 374; Allen v. Peden, 4 N. C., 442. No 
principle in the law appears to be better supported by authority than this. 
The Legislature had no right or power to divest the lessors of the plaintiff 
of their title to the lands in controversy, and vest them in General Brown and 
his heirs. The act of 1788 shall not prevent the recovery of the plaintiff.

The act of limitations does not bar the entry of the plaintiff. Thomas Brown 
was tenant by the curtesy of these lands. On 4 June, 1796, by deed of bargain 
and sale, he conveyed in fee to Stephen Barfield. But as he was seized and 
possessed only of a life estate, the statute of uses executed and transferred 
that only to the bargainee. The conveying a greater estate in land than a 
person has by any of those modes of conveyancing which have sprung out of the 
statute of uses, does not amount to a forfeiture; but it shall pass such 
estate or interest which the bargainor had or was seized and possessed of, and 
no more. 4 Com. Dig. "Forfeiture" A, 3.

"A right of entry in the remainderman cannot exist during the existence of the 
particular estate, and the laches of a tenant for life will not affect the 
party. An entry to avoid the statute must be an entry for the purpose of 
taking possession, and such an entry cannot be made during the existence of a 
life estate. 4 Johns., 402; 1 Burr., 120, 126; 2 Salk., 422; 7 East, 311, 312, 
319, 321.

The plaintiff had no right to enter before the death of Thomas Brown, and he 
died 22 November, 1814.

By the Court. Judgment for the plaintiff.

Cited: Hoke v. Henderson, 15 N. C., 16; Lowe v. Harris, 112 N. C., 481; Miller 
v. Alexander, 122 N. C., 720; Wilson v. Jordan, 124 N. C., 715; Daniels v. 
Homer, 139 N. C., 240, 242, 270.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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