that personally came before the officer, A. B. (the principal), by C. D., his attorney in fact, the signer and sealer of the foregoing deed, and acknowledged the same to be his own free act and deed-has been held to show a sufficient acknowledgment for the principal.1

§60. Acknowledgment on Behalf of Corporations. Quite a number of the statutes designate who shall execute and acknowledge deeds on behalf of corporations, and usually the form of the certificate is prescribed. Where there is no statute of the kind, the officer affixing the corporate seal is held to be the proper person to make the acknowledgment, and it seems that the cashier of a bank is the one to affix its seal, and although the president sign with him, the cashier's acknowledgment alone is sufficient.3 If there be no statutory provisions to the contrary, a deed purporting to be that of a corporation, signed by its officers as such, and with the corporate seal affixed, is admissible in evidence as the deed of the corporation, and is itself presumptive proof of the regular and duly authorized execution of the same. The certificate of acknowledgment, unless one be prescribed in terms by the statute, should state the official position of the officer affixing the corporate seal, his authority, that he knows the corporate seal, and that the same is affixed by order of the board of directors, or other

appears by an agent or deputy, and there is no legal necessity for such absurdity. See Beaumont v. Yeatman, 8 Humph. 542.

1 Williams v. Livingston, 9 N. W. Repr. (Minn.), 31. An acknowledgment by an attorney in fact, in the usual form for a grantor acting in person, except that the certificate mentioned that the person acknowledging was attorney in fact for the grantor named, held sufficient. MeAdow v. Black, 6 Mont. 601; s. c. 13 Pac. Repr. 377.

2 Kelly v. Calhoun, 95 U. S. 710; Lovett v. The Steam Saw Mill Co., 6 Paige, 54, 60.

8 Merrill v. Montgomery, 25 Mich. 73; Johnson v. Bush, 3 Barb. Ch. 207. In Texas the statute designates the president. Rev. Stats., §600; Muller v. Boone, 63 Tex. 91.

4 Warvelle on Abstracts, 236; Miner's Ditch Co. v. Zellerbach, 37 Cal. 543; Sawyer v. Cox, 63 Ill. 130; Solomon's Lodge v. Montmallin, 58 Ga. 547.

trustees of the corporation, and that he subscribed his name thereto as a witness of the execution thereof.1

2

$61. Before Whom Acknowledgment to be Made. The statutes of each state designate the officers who are authorized to take and certify acknowledgments and proof of deeds and other instruments. Unless the acknowledgment is taken by an authorized officer, it is invalid. It would seem that any officer who by law uses an official seal, would be a proper person to take an acknowledgment; but each state has seen fit to arbitrarily select certain classes of officers by name, and no two statutes entirely agree in this particular. The officers named embrace every grade, from Justice of the Supreme Court of the United States to a

1 Lovett v. Steam Saw Mill Co., supra. At common law, the signature of the corporation is its corporate seal; City of Tiffin v. Shawhan, 9 Am. & Eng. Corp. Cas. 556; Beckwith v. Windsor Co., 14 Conn. 594; Frankfort Bank v. Anderson, 3 A. K. Marsh. 932; and while it is usual to sign the corporate name (Flint v. Clinton Co., 12 N. H. 430), it is not necessary; Angell & Ames on Corp., §225; Osborne v. Tunis, 1 Dutch. (N. J.), 633; unless it is required by statute. Isham v. Bennington, 19 Vt. 251.

The Texas statute requires (the form of certificate not being prescribed), that the deed shall be signed by the president and by him acknowledged to be the act of the corporation;" and an acknowledgment by the president and cashier, described as such in the deed and certificate, stating that they acknowledged that they executed the deed "for the purposes and considerations therein contained," was held to sufficiently show its acknowledgment as act of corporation. Muller v. Boone, 63 Tex. 91; see Eppricht v. Nickerson, 78 Mo. 483. In Tenny v. East Warren Co., 43 N. H. 343, the officers were not described as such in the certificate, and their acknowledgment of the instrument as "their free act and deed," was held sufficient. So of "his" deed, for "its" deed, in the certificate. Frostburg v. Brace, 51 Md. 508.

2 Baze v. Arper, 6 Minn. 220; Simpson v. Montgomery, 25 Ark. 365; s. c. 99 Am. Dec. 228; Johnson v. Haines, 2 Ohio, 25; s. c. 25 Am. Dec. 533.

The preamble to the statute of 1771 recited it to have been an ancient practice to record deeds upon acknowledgment or proof before a member of his majesty's privy council, and this was held to warrant the presumption that such person had the requisite authority in 1725. Hunt v. Thompson, 19 N. Y. 279.

Brightly's Pur. Dig. of Pa. (1872), Deeds, etc., $16. In North Carolina, all judges were authorized to take acknowledgments prior to the Code. Dugger v. McKesson, 100 N. C. 1; s. c. 6 S. E. Repr. 746. (S-Reg. of Title.)

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major of the army, and a provost-marshal-the differences in the statutes seeming to have their origin entirely in local caprice. Notaries public and commissioners of deeds are embraced in all, or nearly all, of the statutes. In a few instances the authority of justices of the peace and other inferior officers is limited to taking the acknowledgment of deeds only where the lands lie in their counties;5 and usually, also, they are mentioned only in the class designated to take acknowledgments for the home state. Where they are authorized to take acknowledgments out of the state, a certificate of magistracy and conformity, by some officer of a court of record, is usually required. In Arkansas it seems that a justice of the peace can take an acknowledgment anywhere within the state, but in Missouri only within his own county.8

The judge of a court of record in another state is not now authorized to take acknowledgments for Texas. Talbert v. Dull, 70 Tex. 975; s. c. 8 S. W. Repr. 530.

1 Pub. Stats. of R. I. (1882), ch. 173, §3.

2 Paul v. Carpenter, 70 N. C. 502.

3 In Delaware it requires the combined efforts of two justices of the peace to take an acknowledgment. Rev. Code (1874), ch. 83. §3. This seems also to have been the law of Kentucky, under the act of 1792. Brown v. Swift (Ky.), 1 S. W. Repr. 474; Stansberry v. Pope, 4 Bibb. 492; Smith v. White, 1 B. Mon. 19; Harris v. Price, 14 B. Mon. 333; Littell's Sel. Cases, 292, 461, 156. Where such law exists, an acknowledgment before only one justice is not good. Dufphey v. Frenage, 5 St. & P. (Ala.), 215; even though he act under a dedimus. Malloy v. Bruden, 88 N. C. 305.

A notary is an officer known to the common law. Kirksey v. Bates, 7 Porter, 529, and his seal is evidence of his official character. Harding v. Curtis, 45 Ill. 252; in all countries. Orr v. Lacy, 4 McLean, 243. 5 Gatewood v. Hart, 58 Mo. 261. See Womack v. Hughes, Littell's Sel. Cas. 292.

6 As to these certificates, see post, §74.

7 Biscoe v. Byrd, 15 Ark. 655. But if he is outside of his state when taking it, his action will be void. Cowan v. Beall, 1 MacArth. 270; yet if the certificate is regular on its face, the record will impart con

structive notice, §52, ante.

8 Gatewood v. Hart, 58 Mo. 261; Bishop v. Schneider, 46 Mo. 472; s. c. 2 Am. Rep. 533; and to same effect, Grove v. Todd, 41 Md. 633.

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§62. Deputies, Magistrates, etc.

Where an officer empowered to take acknowledgments is authorized by law to appoint a deputy, the deputy has in this respect the same authority of his principal;1 and the rule has been held to apply where the duties of the deputy are not specified by the statute. Where an acknowledgment is taken in another state by a deputy clerk, it will be presumed that by the law of the state where taken, the appointment of such deputy is authorized, and that the deputy was regularly appointed.3 Properly where an acknowledgment is taken by a deputy, the certificate should read in the name of the principal, by the deputy, and in some instances this has been required; but certificates in the name of the deputy alone have by other courts been held sufficient.5

The term "magistrate" is not confined to persons who exercise general judicial powers; hence it was held that an alderman of Philadelphia was a magistrate within the meaning of a statute of Maine authorizing magistrates in other states to take acknowledgments.

1 West v. Schneider, 64 Tex. 327; Touchard v. Crow, 20 Cal. 150; s. c. 81 Am. Dec. 108; Young v. Boardman (Mo.), 10 S. W. Repr. 48; Lynch v. Livingston, 8 Barb. 463; Kemp v. Porter, 7 Ala. 138; Muller v. Boggs, 25 Cal. 175; Gordon v. Leech, 81 Ky. 229; Babbitt v. Johnson, 15 Kan. 252; Gibbons v. Gentry, 20 Mo. 468; Hope v. Sawyer, 14 Ill. 254; Abrams v. Erwin, 9 Iowa, 87; Marx v. Hanthorn, 30 Fed. Repr.

579.

2 Muller v. Boggs, supra; Devlin on Deeds, $473. Deputy clerks are not authorized to take acknowledgments in North Carolina. Tatom v. White, 95 N. C. 453.

3 Hope v. Sawyer, 14 Ill. 254.

4 Abrams v. Erwin, 9 Iowa, 87; Gibbons v. Gentry, 20 Mo. 468; Talbott v. Hoosier, 12 Bush, 408.

5 Beaumont v. Yeatman, 8 Humph. 542; Touchard v. Crow, 20 Cal. 150; McRaven v. McGuire, 1 S. & M. (17 Miss.), 34; Devlin on Deeds, §474.

6 Gordon v. Hobart, 2 Sumu. 401, 404. So, an American consul at a foreign port, has been held a magistrate within the meaning of a similar statute. Scanlan v. Wright, 13 Pick. 523; s. c. 25 Am. Dec. 344; and see Palmer v. Stevens, 11 Cush. 147; Welsh v. Hill, 2 Johns. 373. But a mayor of a town held not authorized by a statute designating “mayor of a city." Dundy v. Chambers, 23 Ill. 369.

$63. Ex-Officio Officers.

Where the statute authorizes an officer, as a notary public, to take acknowledgments, the fact that he is a notary only ex-officio will not make any difference; and the rule has been held to apply to officers without as well as within the state; the recital in the certificate that he is ex-officio a notary being sufficient to authorize the presumption that he is legally such by the laws of his state. The statutes of Texas made primary judges ex-officio notaries, and elsewhere authorized notaries to take acknowledgments. An acknowledgment taken by an officer whose certificate recited him to be a primary judge, and who signed as primary judge only, was held sufficient. The recitation showed that he was authorized to take the acknowledgment, since, being primary judge, it followed as matter of law that he was also a notary, and it was immaterial that he did not in terms purport to act in his capacity as notary.2

$64. De Facto Officers.

Where an officer belonging to the class authorized to take acknowledgments, is without proper political authority, it has been held, in Kentucky, that he is not an officer either de jure or de facto; his acts are void, and a certified copy of a deed recorded on his certificate cannot be used in

1 Wilson v. Simpson, 68 Tex. 312; s. c. 4 S. W. Repr. 489; and see Mott v. Smith, 16 Cal. 533. But where the certificate fails to show that a circuit clerk in another state, who makes it, is ex-officio county clerk, this will not be presumed, and proof of the laws of such other state is not admissible to show it and supply such defect in the certificate. People v. Register of N. Y., 6 Abb. 180.

2 Butler v. Dunnagan, 19 Tex. 560. So, where a judge of the Supreme Court was ex-officio a justice of the peace, and as such justice authorized to take acknowledgments, it was held not necessary for him in signing the certificate, to designate himself as such justice-the land, it seems, lying in his own state. Middlebury College v. Cheney, 1 Vt.

336, 350; and see Welles v. Cole, 6 Gratt. 645.

If the statute expressly required notaries to use a seal, and the primary judge in the case above had used his seal as judge, and not his notarial seal, quere? The cases do not present any question as to the use of the seal in such instances.