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longer necessary to valid registry, it is still required where it is proposed to use the instrument in evidence without making proof of its execution.1

$57. By Whom Acknowledgment to be Made.

The instrument must be acknowledged by the grantor in person, and the certificate must show this fact with reasonable certainty. A certificate made on the assurance of another that the grantor had executed the deed, is invalid.3 A deed purporting to have been signed and acknowledged by a firm, in the firm name only, is not entitled to record. A certificate that A. acknowledged the deed when A. was the grantee and B. the grantor, was held fatally defective.5 deed purporting to have been made and acknowledged by Hiram Sherman, but signed by Harmon Sherman, was held not admissible in evidence on the acknowledgment alone.

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1 Hurd's Rev. Stats. of Ill. (1882), ch. 30, §31; Stallcup v. Pyron, 33 La. Ann. 1249; Code of La., §2253; Ferris v. Boxell, 34 Minn. 262; s. c. 25 N. W. Repr. 592; Morrison v. Porter, 35 Minn. 425.

In Hastings v. Vaughan, 5 Cal. 315, a deed was offered in evidence as a recorded instrument, but rejected for want of a notarial seal to the certificate of acknowledgment, and it does not appear that any proof of its execution was offered. Justice Heydenfeldt rendering the opinion, says that it "should have been allowed in evidence with instructions to the jury as to its effect in giving notice to third persons;" but the decision is not full enough to be satisfactory.

Where the suit was on a title bond, and for specific performance, and the execution of the bond was not denied by the defendant by written affidavit filed, as required by the Texas statutes, the instrument was held as fully proved; and such proof dispensed with the necessity of registry to make it admissible as a recorded instrument. Yeary v. Cummins, 28 Tex. 91.

2 Hinde v. Longworth, 11 Wheat. 199; Smith v. Hunt, 13 Ohio, 260. 3 Mays v. Hedges, 79 Ind. 288; Hoban v. Piquette, 52 Mich. 346. 4 Sloan v. Owens, 79 Mo. 206, and contra. Baldwin v. Richardson, 33 Tex. 16, with dissenting opinion by C. J. Morrill. An acknowledgment by one partner is sufficient for a partnership deed signed with the firm name. McCoy v. Baley, 21 Fla. 803; but not if the deed is signed with the individual names of the partners. Sanders v. Papoon, 4 Fla. 465.

5 Wood v. Cochrane, 39 Vt. 544; Magness v. Arnold, 31 Ark. 103. In Wise v. Postlewait, 3 W. Va. 452, a certificate was held good which recited that the deed was "signed, sealed and acknowledged," although it did not mention the name of the grantor.

Boothroyd v. Engle, 23 Mich. 19.

But where there is a discrepancy as to the name, resort may usually be had to the body of the deed to support the certificate. The law knows but one christian name, and the insertion or omission of a middle name or initial is usually immaterial. If the grantor be unable to speak the English language, the acknowledgment may be made through an interpreter. So, also, where the grantor is a deaf mute.

$58. Acknowledgment by One of Several Grantors. In a few states it is provided by statute that a deed by two or more grantors will be sufficiently authenticated for

Chandler v. Spear, 22 Vt. 388; Lyon v. Kain, 36 Ill. 362, and see Waters v. Spofford, 58 Tex. 115.

2 Page v. Arnim, 29 Tex. 53; Banks v. Lee, 73 Ga. 25; Schofield v. Jennings, 68 Ind. 232; James v. Stiles, 14 Pet. 322; Dunn v. Gaines, 1 McLean, 321; Erskine v. Davis, 25 Ill. 251; Waters v. Spofford, 58 Tex. 115. It has been held that a deed to Mitchell Allen, followed by one from Michael Allaine, is not a fatal variance, and will be presumed to be from the same person. Chiniquy v. Catholic Bishop. 41 Ill. 148; Warvelle on Abstracts, 180; Chamblee v. Tarbox, 27 Tex. 140; Crosby v. Vleet, 3 N. J. L. 86.

In tracing title, identity of names is prima facie evidence of identity of persons. Stebbins v. Duncan, 108 U. S. 32; Chamblee v. Tarbox, 27 Tex. 139; Brown v. Metz, 33 Ill. 339; Gitt v. Watson, 18 Mo. 274; Bogne v. Bigelow, 29 Vt. 179.

A deed by one in his right name is valid, although it be different from the name by which, as vendee, the land was conveyed to him. Fallon v. Kehoe, 38 Cal. 44; s. c. 99 Am. Dec. 347; Cordier v. Cage, 44 Tex. 532.

The registry of a deed signed "James Howes" is notice of a deed by James N. Howes. Gillespie v. Rogers, 146 Mass. 610. A man by the name of Germain Sirois, who was also sometimes called John Keever, made an assignment under the name of Joseph Cyr, which name he signed by his mark, being unable to read or write. There was no intent of misleading anybody; it was a mistake, the man being an ignorant foreigner who could not speak English. Held, the registry was constructive notice as against attaching creditors. Quimet v. Sirois, 124 Mass. 162, citing Gifford v. Rockett, 121 Mass. 431.

3 Waltee v, Weaver, 57 Tex. 569; Rev. Stats. of Tex., §4321; Norton v. Meador, 4 Saw. 603; Chestnut v. Shane, 16 Ohio, 599; Civ. Code of Cal., §1201; De Arnaz v. Escandon, 59 Cal. 486; Devlin on Deeds, §§537, 538; contra, Dewey v. Campau, 4 Mich. 565.

4 In the matter of Harper, 6 Man. & G. 732. See §§76-78, post, for further cases in relation to the identification, in the certificate, of the grantor as the one who made the acknowledgment.

record by the acknowledgment of any one of them.' It is, of course, competent for the legislature to enact such provision, and to authorize registry without any acknowledgment whatever, but in the absence of special provision such as that just referred to, the record of a deed by several grantors, acknowledged by one alone, unless it conveyed partnership property, would properly be constructive notice only of a conveyance of the interest or title of the one who acknowledged. There is a Massachusetts case, decided prior to the statute of that state which now gives full effect to such acknowledgment, in which it is held that the registry of a deed by two, but acknowledged by one only, is presumptive, if not conclusive evidence of notice to creditors or subsequent purchasers of the other; and whether the grantors were seized as joint tenants in common, or respectively seized of distinct parts, is immaterial. knowledgment is in truth a matter of but little consequence, and could, by statute, be properly dispensed with entirely; but so long as its requirement is retained, the courts should be consistent in their construction of the law; and this decision is not in harmony with the well established judicial construction of the registry acts. The reasoning of the court in the case above referred to, is that the object of the statute is to give publicity to conveyances, and that this object is attained as well by a record made on the acknowledgment of one only. But equal publicity would be attained by a record made without any acknowledgment at all. The theory on which one is charged with constructive notice of a recorded deed of which he has no actual knowledge whatever, is that the law of record has been fully complied with, in matters of form as well as substance, as it is by force of the law alone that the notice arises. That the record of a

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1 Pub. Stats. of Mass. (1882), ch. 120, §6; Rev. Stats. of Maine (1883), ch. 73, §17; Rev. Code of Del. (1874), ch. 83, §3; Brightley's Dig. of Penn. (1872), Deeds, etc., 10 and 74.

2 Shaw v. Poor, 6 Pick. 86.

deed from A. to B. should be held constructive notice of a conveyance of a separate tract or parcel by C. to B. or even to D., because this matter is also embraced in the instrument, does violence to the settled rules of interpretation which the courts have almost uniformly applied to the registration law; nor is the case different in principle where both or all the grantors convey undivided interests in the same tract, since each interest or title is a thing in law as distinct as though it related to a different property.1

$59. Acknowledgment by Agents and Trustees. A number of the statutes require that where the acknowledgment is by an agent or attorney in fact, the certificate thereof must show the instrument to have been acknowledged as the act and deed of the principal. It is usually stated as a general proposition, without reference to any special statutory provision, that the certificate must show with reasonable clearness that the acknowledgment was made by the agent on behalf of the principal, and as being the act and deed of the principal. This course of decision is from analogy to the common law requirement that the deed of the agent must be in the name of the principal

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1 This case of Shaw v. Poor was decided in 1827, while the law of registration was yet in a formative stage. Justice Wilde comments on the opinion of Lord Redesdale, in Bushell v. Bushell, 1 Sch. & L. 90, denying that registry is constructive notice, and deduces therefrom that his lordship admits that “registry is notice to a certain extent;" and he says that if it is presumptive evidence only, yet in the present case that is sufficient, as there is no other evidence touching the question of notice, so that nothing appears to repel the presumption of notice arising from the registry." Had there been other evidence, the decision might have been different, and the record have been held not to impart presumptive notice. The case is reported also in 17 Am Dec. 347, and is followed in Palmer v. Palmer, 75 Mass. (9 Gray), 56.

2 Hittell's Codes of Cal., §6192; Civ. Code of Dak., §666; Session Acts of Minn. (1883), p. 99, $2; Session Laws of Mo. (1883), p. 20, §1.

8 North v. Henneberry, 44 Wis. 306; McDaniels v. Flower Brook, 22 Vt. 274; Story on Agency, $$273, 277, 278; Fowler v. Shearer, 7 Mass. 19; Shanks v. Lancaster, 5 Gratt. 110; Hackney v. Butts, 41 Ark. 394; Evans v. Wells, 22 Wend. 325; Elwell v. Shaw, 16 Mass. 42; McDonald v. Bear River Co., 13 Cal. 235; Clarke v. Courtney, 5 Pet. 319; Bigelow v. Livingston, 28 Minn. 57.

and purport distinctly and fully to be the deed of the principal in order to bind him;1 but the application of the rule to the certificate of acknowledgment is not based on any sound reason. The certificate is not a part of the deed, which, upon delivery, conveys title without acknowledg. ment, and which may be proved aside from any acknowledgment. The agent declares to the officer that the signature to the instrument is genuine and made by him, but the effect of the signature, the capacity in which the agent acts, and the legal effect of the deed as binding the constituent or not, are matters to be determined from the deed itself, rather than from verbal declarations of the agent made to the officer, and by the latter embodied in his certificate. In Texas the strict common law construction of deeds by agents and attorneys is not adopted, and a deed executed and acknowledged by the attorney in his own name, will, in a proper case, be upheld as the deed of the principal.3

Where a deed is made and acknowledged by a trustee, a description of him in the certificate by name, without reference to his fiduciary capacity, is sufficient. If a sheriff's

deed be executed by a deputy, the latter is the proper person to acknowledge it; and a certificate stating that the sheriff, naming him, "by W. T. S., deputy," personally appeared before the notary and acknowledged the execution of the deed, for the purposes "and in the capacity therein set forth," was held sufficient. So a certificate

1 See cases last cited, and Coombe's Case, 9 Co. R. 766; 3 Wash. on Real Prop. (4th ed.), 277; Story on Agency, §148; Brinley v. Mann, 2 Cush. 377; s. c. 48 Am. Dec. 669; 2 Kent's Com. 631; Locke v. Alexander, 2 Hawks, 155; s. c. 11 Am. Dec. 750.

2 See post, §51; Davis v. Living (W. Va.), 9 S. E. Repr. 84.

Giddens v. Byers, 12 Tex. 75, in which the comments of Ch. J. Hemphill on the common law rule are very pointed. The Texas rule is said to have been derived, through Mexico, from the civil law of Spain. Hanrick v. Barton, 16 Wall. 166, 173. But see Echols v. Cheney, 28 Cal. 157.

4 Dail v. Moore, 51 Mo. 589. A certificate of acknowledgment by an agent as his act and deed, is ratified by the principal subsequently signing the deed. Sowden v. Craig, 26 Iowa, 126; s. c. 96 Am. Dec. 125.

Terrell v. Martin, 64 Tex. 121. But legislation and judicial decision combined cannot make correct the statement that a man personally

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