§ 98-1. Copy of destroyed record as evidence; may be recorded.
When the office of any registry is destroyed by fire or other accident, and the records and other papers thereof are burnt or destroyed, the copies of all such proceedings, instruments and papers as are of record or registry, certified by the proper officer, though without the seal of office, shall be received in evidence whenever the original or duly certified exemplifications would be. Such copies, when the court is satisfied of their genuineness, may be ordered to be recorded or registered.
History. 1865-6, c. 41, ss. 1, 2; Code, s. 55; Rev., s. 327; C.S., s. 365.
Admissibility of Parol Evidence. —
This Chapter is an enabling act and does not exclude oral evidence, admissible at common law, to prove the contents of a lost deed or record. Hughes v. Pritchard, 153 N.C. 23 , 68 S.E. 906, 1910 N.C. LEXIS 9 (1910). See Mobley v. Watts, 98 N.C. 284 , 3 S.E. 677, 1887 N.C. LEXIS 268 (1887); Varner v. Johnston, 112 N.C. 570 , 17 S.E. 483, 1893 N.C. LEXIS 249 (1893).
When a deed is lost or destroyed, a copy must be produced if there is one, but if there is none, parol evidence may be admitted to prove its contents. Baker v. Webb, 2 N.C. 43 (1794); Dumas v. Powell, 14 N.C. 103 , 1831 N.C. LEXIS 72 (1831); Cowles v. Hardin, 91 N.C. 231 , 1884 N.C. LEXIS 53 (1884).
Parol Evidence Not Admissible to Change Certified Copy. —
This section does not permit parol evidence to be introduced to show that the lost or destroyed original had a different description and thus correct a recorded certified copy of a deed. Hopper v. Justice, 111 N.C. 418 , 16 S.E. 626, 1892 N.C. LEXIS 196 (1892).
§ 98-2. Originals may be again recorded.
All original papers, once admitted to record or registry, whereof the record or registry is destroyed, may, on motion, be again recorded or registered, on such proof as the court shall require.
History. 1865-6, c. 41, s. 3; Code, s. 56; Rev., s. 328; C.S., s. 366.
Jurisdiction in the superior court sustained. McCormick v. Jernigan, 110 N.C. 406 , 14 S.E. 971, 1892 N.C. LEXIS 72 (1892).
Jurisdiction in the superior court tacitly recognized. Tuttle v. Rainey, 98 N.C. 513 , 4 S.E. 475, 1887 N.C. LEXIS 315 (1887).
Section Is Not Exclusive. —
In an action to establish a lost deed, the record of which was also destroyed, a motion to dismiss upon the ground that the action should have been brought under G.S. 56 of the Code (now this section) was properly refused, as the section is an enabling act giving an additional, but not an exclusive, remedy. Jones v. Ballou, 139 N.C. 526 , 52 S.E. 254, 1905 N.C. LEXIS 161 (1905).
Use of Common Law to Establish Contents. —
A party whose deed with its registration had been destroyed, instead of having it set up and recorded, could depend upon the rules of the common law to establish its contents whenever an occasion might arise, as in the course of a trial. Cowles v. Hardin, 91 N.C. 231 , 1884 N.C. LEXIS 53 (1884); Mobley v. Watts, 98 N.C. 284 , 3 S.E. 677, 1887 N.C. LEXIS 268 (1887); Hopper v. Justice, 111 N.C. 418 , 16 S.E. 626, 1892 N.C. LEXIS 196 (1892).
Compliance with Statute. —
When the proceeding is brought by virtue of G.S. 56 of the Code (now this section), its requirements must be complied with. Cowles v. Hardin, 79 N.C. 577 , 1878 N.C. LEXIS 122 (1878); Jones v. Ballou, 139 N.C. 526 , 52 S.E. 254, 1905 N.C. LEXIS 161 (1905).
Original Recorded by Clerk upon Sufficient Evidence. —
Where the registry of partition is destroyed and a paper purporting to be the original is presented to the clerk, it is his duty, after satisfying himself upon evidence that the paper is the original one, to record it. Hill v. Lane, 149 N.C. 267 , 62 S.E. 1074, 1908 N.C. LEXIS 341 (1908).
Effect of Failure to Register Anew. —
This statutory provision admonished all persons having such original papers to prove and register them anew in the way prescribed, and good faith required that they should do so. Moreover, it gave the public reason to expect that it would be faithfully observed by persons interested. Thus, where the plaintiff has been negligent in again registering or recording an original deed, such reregistration would not defeat the rights of bona fide purchasers. Waters v. Crabtree, 105 N.C. 394 , 11 S.E. 240, 1890 N.C. LEXIS 245 (1890).
§ 98-3. Establishing boundaries and interest, where conveyance and copy lost.
When any conveyance of real estate, or of any right or interest therein, is lost, the registry thereof being also destroyed, any person claiming under the same may cause the boundaries thereof to be established in the manner provided in the Chapter entitled Boundaries, or he may proceed in the following manner to establish both the boundaries and the nature of his estate:
He shall file his petition before the clerk of the superior court, setting forth the whole substance of the conveyance as truly and specifically as he can, the location and boundaries of his land, whose land it adjoins, the estate claimed therein, and a prayer to have his own boundaries established and the nature of his estate declared.
All persons claiming any estate in the premises, and those whose lands adjoin, shall be notified of the proceedings. Unless they or some of them, by answer on oath, deny the truth of all or some of the matters alleged, the clerk shall order a surveyor to run and designate the boundaries of the petitioner’s land, and return his survey, with a plot thereof, to the court. This, when confirmed, shall, with the declaration of the court as to the nature of the estate of the petitioner, be registered and have, as to the persons notified, the effect of a deed for the same, executed by the person possessed of the same next before the petitioner. But in all cases, however, wherein the process of surveying is disputed, and the surveyor is forbidden to proceed by any person interested, the same proceedings shall be had as under the Chapter entitled Boundaries.
If any of the persons notified deny by answer the truth of the conveyance, the clerk shall transfer the issues of fact to the superior court, to be tried as other issues of fact are required by law to be tried; and on the verdict and the pleadings the judge shall adjudge the rights of the parties, and declare the contents of the deed, if any deed is found by the jury, and allow the registration of such judgment and declaration, which shall have the force and effect of a deed.
History. 1865-6, c. 41, s. 3; Code, s. 56; Rev., s. 328; C.S., s. 367; 1973, c. 108, s. 44.
As to boundaries, see Chapter 38.
Remedy Additional and Not Exclusive. —
This section is an enabling statute providing, not an exclusive remedy, but merely an additional one. Mobley v. Watts, 98 N.C. 284 , 3 S.E. 677, 1887 N.C. LEXIS 268 (1887); Jones v. Ballou, 139 N.C. 526 , 52 S.E. 254, 1905 N.C. LEXIS 161 (1905).
This section does not repeal but rather aids the common-law rules for establishing deeds, and a party may choose either mode. Cowles v. Hardin, 91 N.C. 231 , 1884 N.C. LEXIS 53 (1884).
Evidence Must Show Existence, Nature and Loss. —
Before the deed can be made, the plaintiff must clearly prove that a deed did exist, its legal operation, and the loss thereof. Plummer v. Baskerville, 36 N.C. 252 , 1840 N.C. LEXIS 46 (1840); Loftin v. Loftin, 96 N.C. 94 , 1 S.E. 837, 1887 N.C. LEXIS 21 (1887).
Judgment Only Has Force of Original. —
A judgment under this section has only such force as the original conveyance would have as evidence had it not been destroyed. McNeely v. Laxton, 149 N.C. 327 , 63 S.E. 278, 1908 N.C. LEXIS 352 (1908).
Private Acts. —
In a special proceeding under a private act, similar to this section, to restore certain records lost by fire or other casualty, it is necessary to conform exactly to all the terms prescribed by the statute. Cowles v. Hardin, 79 N.C. 577 , 1878 N.C. LEXIS 122 (1878).
§ 98-4. Copy of lost will may be probated.
In counties where the original wills on file in the office of the clerk of superior court, and will books containing copies, are lost or destroyed, if the executor or any other person has preserved a copy of a will (the original being so lost or destroyed) with a certificate appended, signed by a clerk of the court in whose office the will was, or is required to be filed, stating that said copy is a correct one, this copy may be admitted to probate, under the same rules and in the same manner as now prescribed by law for proving wills. The proceedings in such cases shall be the same as though such copy was the original offered for the first time for probate, except that the clerk who signed such certificate shall, on oath, acknowledge his signature, or in case it appears that he has died or left the State, then his signature shall be proved by a competent witness; and the witness or witnesses to the original, who may be examined, shall be required to swear that he or they signed in the presence of the testator and by his direction a paper-writing purporting to be his last will and testament.
History. 1868-69, c. 160, s. 1; Code, s. 57; Rev., s. 329; C.S., s. 368.
As to probate of wills generally, see G.S. 28A-2A-1 et seq.
Probate Before Clerk. —
The probate of a lost will must be made before the clerk of the superior court, he alone having jurisdiction. McCormick v. Jernigan, 110 N.C. 406 , 14 S.E. 971, 1892 N.C. LEXIS 72 (1892).
Statute of Limitation Does Not Apply. —
The statute of limitation does not apply to simply taking probate of a will; hence, it has no application to proceedings under this section. McCormick v. Jernigan, 110 N.C. 406 , 14 S.E. 971, 1892 N.C. LEXIS 72 (1892).
§ 98-5. Copy of lost will as evidence; letters to issue.
In any action or proceeding at law, where it becomes necessary to introduce such will to establish title, or for any other purpose, a copy of the will and of the record of the probate, with a certificate signed by the clerk of the superior court for the county where the will may be recorded, stating that said record and copy are full and correct, shall be admitted as competent evidence; and when a copy of a will is admitted to probate, the clerk shall thereupon issue letters testamentary.
History. 1868-69, c. 160, s. 2; Code, s. 58; Rev., s. 330; C.S., s. 369.
§ 98-6. Establishing contents of will, where original and copy destroyed.
Any person desirous of establishing the contents of a will destroyed as aforesaid, there being no copy thereof, may file a petition in the office of the clerk of the superior court, setting forth the entire contents thereof, according to the best of the person’s knowledge, information and belief. All persons having an interest under the same shall be made parties, and if the truth of such petition is denied, the issues of fact shall be transferred to the superior court for trial by a jury, whether the will was recorded, and if so recorded, the contents thereof, and the declarations of the judge shall be recorded as the will of the testator. Any devisee is a competent witness as to the contents of every part of said will, except such as may concern his own interest in the same.
History. 1865-6, c. 41, s. 4; Code, s. 59; Rev., s. 331; C.S., s. 370; 1973, c. 108, s. 45; 2011-284, s. 68.
Effect of Amendments.
Session Laws 2011-284, s. 68, effective June 24, 2011, in the first sentence, substituted “a petition” for “his petition” and “the person’s knowledge” for “his knowledge,” and in the last sentence, deleted “or legatee” following “Any devisee.”
Parol Evidence. —
Parol evidence may be introduced to show the contents of a will which has been lost or destroyed. Cox v. Beaufort County Lumber Co., 124 N.C. 78 , 32 S.E. 381, 1899 N.C. LEXIS 20 (1899). See also Varner v. Johnston, 112 N.C. 570 , 17 S.E. 483, 1893 N.C. LEXIS 249 (1893).
Parol evidence is also admissible to show the existence of such a will, its probate and its registration. Cox v. Beaufort County Lumber Co., 124 N.C. 78 , 32 S.E. 381, 1899 N.C. LEXIS 20 (1899).
§ 98-7. Perpetuating destroyed judgments and proceedings.
Every person desirous of perpetuating the contents of destroyed judgments, orders or proceedings of court, or any paper admitted to record or registration, or directed to be filed for safekeeping, other than wills or conveyances of real estate, or some right or interest therein, or any deed or other instrument of writing, required to be recorded or registered, but not having been recorded or registered, it being competent to register or record said deed or other instrument at the time of its loss or destruction, may file his petition in the court having jurisdiction of like matters with the original proceeding, setting forth the substance of the whole record, deed, proceeding, or paper, which he desires to perpetuate. If, on the hearing, the court shall declare the existence of such record, deed, or proceeding, or paper at the time of the burning of the office wherein the same was lodged or kept, or other destruction thereof, and that the same was there destroyed, and shall declare the contents thereof, such declaration shall be recorded or registered, or filed, according to the nature of the paper destroyed.
History. 1865-6, c. 41, s. 5; Code, s. 60; Rev., s. 332; C.S., s. 371.
Restored Record Free from Collateral Attack. —
Where the destroyed record has been restored, the record so restored cannot be collaterally attacked. Branch v. Griffin, 99 N.C. 173 , 5 S.E. 393, 188 N.C. LEXIS 268 (1888).
§ 98-8. Color of title under destroyed instrument.
Every person who has been in the continual, peaceable and quiet possession of land, tenements, or hereditaments, situated in the county, claiming, using and occupying them as his own, for the space of seven years, under known boundaries, the title thereto being out of the State, is deemed to have been lawfully possessed, under color of title, of such estate therein as has been claimed by him during his possession, although he may exhibit no conveyance therefor: Provided, that such possession commenced before the destruction of the registry office, or other destruction as aforesaid, and also that any such person, or any person claiming by, through or under him, makes affidavit and produces such proof as is satisfactory to the court that the possession was rightfully taken; and if taken under a written conveyance, that the registry thereof was destroyed by fire or other means, or was destroyed before registry as aforesaid, and that neither the original nor any copy thereof is in existence: Provided further, that such presumption shall not arise against infants, persons of nonsane memory, and persons residing out of the State, who were such at the time of possession taken, and were not therefore barred, nor were so barred at the time of the burning of the office or other destruction.
History. 1865-6, c. 41, s. 6; Code, s. 61; Rev., s. 333; C.S., s. 372.
As to title by adverse possession generally, see G.S. 1-35 et seq.
In an action to recover land under this section, the plaintiff showed title out of the State by a 30 years’ possession. It was held that this statute did not make it necessary to show seven years’ adverse possession in addition to the 30 years. The lapse of seven years’ adverse possession concurrently with the 30 years was sufficient. Hill v. Overton, 81 N.C. 393 , 1879 N.C. LEXIS 202 (1879).
§ 98-9. Action on destroyed bond.
Actions on official or other bonds lodged in any office which are destroyed with the registry thereof may be prosecuted by petition against the principal and sureties thereto, and the proceedings shall be as in the former courts of equity.
History. 1865-6, c. 41, s. 7; Code, s. 62; Rev., s. 334; C.S., s. 373.
Nature of Proceedings Is Equitable. —
The nature of the proceedings under this section is equitable. McCormick v. Jernigan, 110 N.C. 406 , 14 S.E. 971, 1892 N.C. LEXIS 72 (1892).
§ 98-10. Destroyed witness tickets; duplicates may be filed.
The court having jurisdiction of the action may allow other witness tickets to be filed in place of such as may be destroyed, upon the oath of the witness or other satisfactory proof.
History. 1865-6, c. 41, s. 8; Code, s. 63; Rev., s. 335; C.S., s. 374.
§ 98-11. Replacing lost official conveyances.
Where any conveyance executed by any person, sheriff, clerk and master, or commissioner of court has been lost, and registry thereof destroyed as aforesaid, and there is no copy thereof, such persons, whether in or out of office, may execute another of like tenor and date, reciting therein that the same is a duplicate, and such deed shall be evidence of the facts therein recited, in all cases wherein the parties thereto are dead, or are incompetent witnesses to prove the same, to the extent as if it was the original conveyance.
History. 1865-6, c. 41, s. 9; Code, s. 64; Rev., s. 336; C.S., s. 375.
§ 98-12. Court records as proof of destroyed instruments set out therein.
The records of any court in or out of the State, and all transcripts of such records, and the exhibits filed therewith in any case, are admissible to prove the existence and contents of all deeds, wills, conveyances, depositions and other papers, copies whereof are therein set forth or exhibited, in all cases where the records and registry of such as were or ought to have been recorded and registered, or the originals of such as were not proper to be recorded or registered, have been destroyed as aforesaid, although such transcripts or exhibits have been informally certified; and when offered in evidence have the like effect as though the transcript or record was the record of the court whose records are destroyed, and the deeds, wills and conveyances, depositions and other papers therein copied or therewith exhibited were original.
History. 1865-6, c. 41, s. 10; Code, s. 65; Rev., s. 337; C.S., s. 376.
When papers have been lost and, under competent evidence and instructions, the jury has found their contents to be as contended by the plaintiff, the plaintiff prevails. Fain v. Gaddis, 144 N.C. 765 , 57 S.E. 1111, 1907 N.C. LEXIS 216 (1907).
§ 98-13. Copies contained in court records may be recorded.
The copies aforesaid of all such deeds, wills, conveyances and other instruments proper to be recorded or registered, as are mentioned in G.S. 98-12 , may be recorded or registered on application to the clerk of the superior court and due proof that the original thereof was genuine.
History. 1865-6, c. 41, s. 11; Code, s. 66; Rev., s. 338; C.S., s. 377.
§ 98-14. Rules for petitions and motions.
The following rules shall be observed in petitions and motions under this Chapter:
- The facts stated in every petition or motion shall be verified by affidavit of the petitioner that they are true according to the best of his knowledge, information, and belief.
- The instrument or paper sought to be established by any petition shall be fully set forth in its substance, and its precise language shall be stated when the same is remembered.
- All persons interested in the prayers of the petition or decree shall be made parties.
- Petitions to establish a record of any court shall be filed in the superior court of the county where the record is sought to be established. Other petitions may be filed in the office of the clerk.
- The costs shall be paid as the court may decree.
- Appeals shall be allowed as in all other cases, and where the error alleged shall be a finding by the superior court of a matter of fact, the same may be removed on appeal to the appellate division, and the proper judgments directed to be entered below.
- It shall be presumed that any order or record of the court of pleas and quarter sessions, which was made and has been lost or destroyed, was made by a legally constituted court, and the requisite number of justices, without naming said justices.
History. 1865-6, c. 41, s. 12; 1874-5, c. 51; c. 254, s. 3; Code, s. 67; 1893, c. 295; Rev., s. 339; C.S., s. 378; 1969, c. 44, s. 64; 1973, c. 108, s. 46.
Affidavit by Agent Held Insufficient. —
In a proceeding under this section, an affidavit by the agent of the petitioner to the effect that the facts set forth in the complaint were “true to the best of his knowledge, information and belief” was an insufficient verification. Cowles v. Hardin, 79 N.C. 577 , 1878 N.C. LEXIS 122 (1878).
Waiver of Verification. —
The requirement that when one pleading in a court of record is verified, every subsequent pleading in the same proceeding, except a demurrer, must be verified also, is one which may be waived except in those cases where the form and substance of the verification is made an essential part of the pleading, as in an action for divorce in which a special form of affidavit is required under G.S. 50-8 , or in a proceeding to restore a lost record under this section. Calaway v. Harris, 229 N.C. 117 , 47 S.E.2d 796, 1948 N.C. LEXIS 428 (1948).
It seems that all persons whose estates may be affected by a proceeding to restore lost records should be made parties. Cowles v. Hardin, 79 N.C. 577 , 1878 N.C. LEXIS 122 (1878).
§ 98-15. Records allowed under this Chapter to have effect of original records.
The records and registries allowed by the court in pursuance of this Chapter shall have the same force and effect as original records and registries.
History. 1865-6, c. 41, s. 14; Code, s. 68; Rev., s. 340; C.S., s. 379.
Copies Only Have Effect of Originals. —
The copies have only the same force and effect as the lost or destroyed deeds would have had, if produced. McNeely v. Laxton, 149 N.C. 327 , 63 S.E. 278, 1908 N.C. LEXIS 352 (1908).
Negligently Delayed Reregistration Held Not to Affect Rights of Bona Fide Purchasers. —
When a deed, absolute on its face, but intended as a mortgage, was executed in 1859, and a defeasance was executed in pursuance of the intention of the parties in 1861, and recorded in 1862, and in 1864 the records were destroyed, subsequent purchasers for value, without actual notice, whose deeds were duly recorded, were not affected with notice of such registration. Nor could reregistration of the defeasance in 1886, after the registration of the mesne conveyances to the innocent purchasers, avail to defeat their rights. Waters v. Crabtree, 105 N.C. 394 , 11 S.E. 240, 1890 N.C. LEXIS 245 (1890).
§ 98-16. Destroyed court records proved prima facie by recitals in conveyances executed before their destruction.
The recitals, reference to, or mention of any decree, order, judgment or other record of any court of record of any county in which the courthouse, or records of said courts, or both, have been destroyed by fire or otherwise, contained, recited or set forth in any deed of conveyance, paper-writing, or other bona fide written evidence of title, executed prior to the destruction of the courthouse and records of said county, by any executor or administrator with a will annexed, or by any clerk and master, superior court clerk, clerk of the court of pleas and quarter sessions, sheriff, or other officer, or commissioners appointed by either of said courts, and authorized by law to execute said deed or other paper-writing, are deemed, taken and recognized as true in fact, and are prima facie evidence of the existence, validity and binding force of said decree, order, judgment or other record so referred to or recited in said deed or paper-writing, and are to all intents and purposes binding and valid against all persons mentioned or described in said instrument of writing, deed, etc., as purporting to be parties thereto, and against all persons who were parties to said decree, judgment, order or other record so referred to or recited, and against all persons claiming by, through or under them or either of them.
History. 1870-1, c. 86, s. 1; 1871-2, c. 64, s. 1; Code, s. 69; Rev., s. 341; C.S., s. 380.
This section is constitutional. Barefoot v. Musselwhite, 153 N.C. 208 , 69 S.E. 71, 1910 N.C. LEXIS 53 (1910).
Evidence Must Show Destruction of Records. —
The fact of the destruction by fire or otherwise of the records must be shown before the recitals, reference to, or mention of any decree, judgement, or other record recited in a deed of conveyance, etc., shall have the effect of evidence under this section. Barefoot v. Musselwhite, 153 N.C. 208 , 69 S.E. 71, 1910 N.C. LEXIS 53 (1910). See Dail v. Suggs, 85 N.C. 104 , 1881 N.C. LEXIS 213 (1881).
Where the original papers of the judgment roll have been lost, the minute docket of the court may be introduced to prove the contents thereof. Hare v. Hollomon, 94 N.C. 14 , 1886 N.C. LEXIS 3 (1886); Everett v. Newton, 118 N.C. 919 , 23 S.E. 961, 1896 N.C. LEXIS 155 (1896).
This section was applied where a deed made in compliance to a decree of court was destroyed, the recitals in the decree being taken as prima facie evidence of facts and authority. Irvin v. Clark, 98 N.C. 437 , 4 S.E. 30, 1887 N.C. LEXIS 300 (1887). See Isler v. Isler, 88 N.C. 576 , 1883 N.C. LEXIS 123 (1883).
The recitals in a deed which refer to the decree, so as to identify it, are of themselves prima facie evidence of its binding force and validity as against all persons who were parties to said decree. Pinnell v. Burroughs, 172 N.C. 182 , 90 S.E. 218, 1916 N.C. LEXIS 261 (1916). See also Hare v. Hollomon, 94 N.C. 14 , 1886 N.C. LEXIS 3 (1886); Everett v. Newton, 118 N.C. 919 , 23 S.E. 961, 1896 N.C. LEXIS 155 (1896); Pinnell v. Burroughs, 168 N.C. 315 , 84 S.E. 364, 1915 N.C. LEXIS 44 (1915).
§ 98-17. Conveyances reciting court records prima facie evidence thereof.
Such deed of conveyance, or other paper-writing, executed as aforesaid, and registered according to law, may be read in any suit now pending or which may hereafter be instituted in any court of this State, as prima facie evidence of the existence and validity of the decree, judgment, order, or other record upon which the same purports to be founded, without any other or further restoration or reinstatement of said decree, order, judgment, or record than is contained in this Chapter.
History. 1870-1, c. 86, s. 2; Code, s. 70; Rev., s. 342; C.S., s. 381.
The constitutionality and validity of this section cannot now be open to dispute. Barefoot v. Musselwhite, 153 N.C. 208 , 69 S.E. 71, 1910 N.C. LEXIS 53 (1910).
§ 98-18. Court records and conveyances to which Chapter extends.
This Chapter shall extend to records of any court which have been or may be destroyed by fire or otherwise, and to any deed of conveyance, paper-writing, or other bona fide evidence of title executed before the destruction of said records.
History. 1871-2, c. 64, s. 2; 1874-5, c. 254, s. 2; Code, s. 71; Rev., s. 343; C.S., s. 382.
Cherokee, Graham, Haywood and Madison: C.S., G.S. 384, 1935, c. 25; Moore: C.S., G.S. 383.
§§ 98-19, 98-20. [Repealed]
Repealed by Session Laws 1971, c. 780, s. 37.
For present provisions covering the subject matter of the repealed sections, see G.S. 142-15.1 , 159-137.