not fully remedy the evil. In reference to the application of the lex loci rei site to wills executed in another state or county, and as to the recognition accorded to foreign probates, the statutes of the various states are even more discordant and conflicting than in relation to the acknowledgment and proof of deeds. By a recent statute of Texas, where a will conveying lands in that state has been probated in another state, a certified copy of such will and its probate may be recorded by the register of deeds in the county where the land lies, without further proof or authentication. This is, perhaps, the law in a few other states; and such a provision, it may be presumed, will ultimately become general, and be made as mandatory as any other record of title, whether the will has been probated in another state, or in a county, within the state, other than where the land lies. A purchaser from a devisee under a duly probated will is not affected by a subsequent setting aside of the will; and the rule extends also to a purchaser under a sale by order 1 Rev. Stats. of Texas (1879), §4876. 2 By the laws of Rhode Island (Pub. Stats., ch. 183, §10), and of sixteen other states, no will executed out of the state is valid, unless executed according to the laws of the home state. In Oregon and Missouri, an exception is made in favor of wills conveying personalty. In Maine (Rev. Stats., ch. 64, §12), and thirteen other states, a will made out of the state but within the United States is valid, and will pass property in the state, if valid by the law of the state or territory where it is made; and in several states this is the case where the will is executed in a foreign country. In Iowa (Rev. Code, 1873, §2351), and eighteen other states, the probate of a will in another state will be recognized, usually with little other requirement than that a copy of the will and certificate of its probate be filed in the proper court. 3 Laws of 1887, p. 38; Sayles' Tex. Civ. Stats., §548a. The probate of a will in one state is not notice in another state where the lands devised are situate, and an innocent purchaser of the lands will be protected against the will where he purchases from the heirs in whom the apparent title is vested under the rules of descent. Staton v. Singleton (Tex.), 9 S. W. Repr. 876. ♦ Fowlke v. Zimmerman, 14 Wall. (81 U. S.), 113; Davis v. Gaines, 104 U. S. 386; Grignon's Lessee v. Astor, 2 How. (43 U.S.), 319; Waters v. Stickney, 12 Allen, 15; Knoblock v. Mueller, 17 N. E. Rep. (Ill.), 696; Williams on Executors (6 Am. ed.), 590 and notes; Steele v. Renn, 50 Tex. 468. of a probate court. But if such purchaser knew, or had good reason to believe, there was a later will, he is chargeable with actual notice, and is not protected.2 A will has been held not to prevail against an unrecorded deed, and the record (probate) of the will by one named therein as executor not to militate against his superior right to land of which he was in possession by virtue of an unrecorded contract with the testator.3 1 Davis v. Gaines, supra; Allen v. Dundas, 3 T. R. 125; Lalanne v. Moreau, 13 La. Ann. 431; McNutt v. Turner, 16 Wall. 352; Ballow v. Hudson, 13 Gratt. 672; Steele v. Renn, 50 Tex. 468. 2 Myra Clark Gaines v. De LaCroix, 6 Wall. (73 U. S.), 719, in which Judge Davis makes a very pointed application of the rule. 3 Woods v. Farmere, 7 Watts, 382; s. c. 32 Am. Dec. 772; Martin v. Jackson, 27 Pa. St. 509. In Hall's Lessee v. Ashby, 9 Ohio, 96; s. c. 34 Am. Dec. 424, Grimke, J., says it is impracticable to establish a registry of wills similar to that of deeds, because the will is not committed to the devisee, but to the executor; and because it is impossible to fix an express period for registry in consequence of the absence, legal incapacity or future interest of the devisee-hence it was held in that case that the law did not require the registry of a foreign will. Where a will is probated within the state, a bona fide purchaser from the devisee will be protected against an unrecorded deed made by the testator in his lifetime. Lyon v. Gleason (Minn.), 42 N. W. Repr. 286. 98 CHAPTER 3. ACKNOWLEDGMENT. $52. Purpose of the acknowledgment. 53. Where acknowledgment not required. 54. For what not necessary. 55. Acknowledgment necessary to the record. 56. As proof of execution. 57. By whom to be made. 58. By one of several grantors. 59. By agents and trustees. 60. On behalf of corporations. 61. Before whom to be made. 62. Deputies, magistrates, etc. 63. Ex-officio officers. 64. De-facto officers. 65. Local jurisdiction of the officer. 66. Presumptions as to jurisdiction and authority. 67. Disqualification of officer by interest. 68. Disqualification by relationship. 69. The certificate of acknowledgment. 70. Caption and locality. 71. Official capacity must appear. 72. Initial letters and abbreviations. 73. Using official seal. 74. Seal to be shown how. 75. Certificates of magistracy and conformity. 76. Identity of grantor. 77. The words of identity. 78. Stating grantor's name. 79. Substantial compliance sufficient. 80. Equivalent expressions. 81. Omission of material words. 82. Clerical omissions and mistakes. 84. Dating the certificate. 85. Signature of the officer. 86. Certificate on same sheet with deed. 87. When and of what certificate is conclusive. How far certificate is conclusive. 88. 89. Certificate impeachable for fraud. 90. 91. 92. 93. Evidence necessary to overcome the certificate.. Continued. Continued-Married women. 94. Correction by the courts. 95. Acknowledgment of ancient deeds. 96. Testimonios and public acts of sale. 97. Validating statutes. $52. Purpose of the Acknowledgment. Acknowledgment or proof of a deed or other instrument authorized by law to be recorded, made before some designated officer and duly certified, has hitherto been almost universally required by the statutes as a prerequisite to valid registration. The object of the acknowledgment, it has been said, is to insure the authenticity of the instrument and to prevent one person from personating another.2 It would seem that this object is sufficiently attained by the statute of Georgia, in requiring that the execution of the deed be attested by two witnesses, one of whom shall be an officer; and such attestation, without any certificate of the officer, is all that is required, whether the deed be that of husband or wife.3 In Kansas it is sufficient that the officer certify that the grantor in the deed, being known to him as such, appeared before him "and duly acknowledged the 1 Hitz v. Jenks, 123 U. S. 298; s. c. 8 Sup. Ct. Repr. 143; Stevens v. Hampton, 46 Mo. 404; Schultz v. Moore, 1 McLean, 520; Barney v. Sutton, 2 Watts, 31; Hastings v. Vaughan, 5 Cal. 315; Johns v. Scott, 5 Md. 81; Taylor v. Harrison, 47 Tex. 454; s. c. 26 Am. Rep. 304; Work v. Harper, 24 Miss. 517; White v. Denman, 1 O. St. 110. 2 McConnell v. Reed, 2 Scam. 371; Livingston v. Kettelle, 1 Gilm. 116; s. c. 41 Am. Dec. 166. An acknowledgment estops the grantor from saying his signature was forged. Chivington v. Colo. Co., 9 Colo. 597; s. c. 14 Pac. Repr. 212. 3 Code of Ga. (1882), §2707; Dinkins v. Moore, 17 Ga. 64; and see ante, $8, note. Acknowledgment is not necessary in Louisiana and Alabama, except where recording is invoked to supply proof of the execution of the instrument. The record imparts notice without it. Stalleup v. Pyron, 33 La. Ann. 1249; Dyke v. Dyer, 14 Id. 701; Fairthorn v. Davis, 28 Id. 728; Allen v. Whetstone, 35 Id. 850; Code of La. §2253; Tranum v. Wilkinson, 81 Ala. 408. execution of the same." Usually the statutes require much more than this, and because of errors and omissions in taking the acknowledgment and in writing down in the certificate all that is required, these provisions serve in a very large proportion of cases to defeat the recórd entirely. In a few instances the statutory forms have been cumbered with matter so entirely immaterial that its omission has been disregarded by the courts; as in Alabama, where the prescribed form of certificate requires the statement that the deed was executed "on the day the same bears date;" and in Texas, where the certificate is required to state that the grantor executed the deed "for the purposes and consideration therein expressed."3 1 Dassler's Comp. Laws of Kan. §1034. 2 Bradford v. Dawson, 2 Ala. 203; Hobson v. Kissam, 8 Ala. 357; Carter v. Chandron, 21 Ala. 72. In Mississippi the certificate must show the grantor's acknowledgment that he "delivered" the instrument. Buntyn v. Shippers' Co., 63 Miss. 94; which subsequent matter, though already acknowledged, In Florida it is held that proof of the "execumay or may not occur. tion" of an instrument by a witness, includes proof of its delivery. EdWard v. Thom. 5 South. Repr. 707. 3 Rev. Stats. of Tex. §4313; Monroe v. Arledge, 23 Tex. 478. In this case the court says: "The deed itself must import a consideration, if none be expressed; and if one be expressed, it is not material that the one expressed be the one upon which it was actually made. This then, is a formal part of the certificate, which, for the sake of regularity, should be inserted, but its omission does not invalidate the certificate." But the Arkansas court attaches some consequence to these words on the supposition that they must have been intended to serve some proper purpose or they would not have been placed there." Griesler v. McKennon, 44 Ark. 517; Clapp v. Halliday, 48 Ark. 259; Little v. Dodge, 32 Ark. 453; Jacoway v. Gault, 20 Ark. 190; s. c. 73 Am. Dec. 494; and see, also, Currie v. Kerr, 11 Lea (Tenn.), 138. A statute of California provided for the recording of sheriffs' certificates of sale, but said nothing about their acknowledgment, and it was held that acknowledgment was not necessary. "Doubtless it would be within the power of the law makers," said Searle, J., "to provide that all instruments should be recorded so as to impart notice without the formality of proof or acknowledgment." Foorman v. Wallace, 75 Cal. 552, 557; s. c. 17 Pac. Repr. 680; and for a similar decision requiring no acknowledgment for the record of assignments of mortgages, see Honore v. Wilshire, 109 Ill. 103, 107. |