2

evidence. The general rule is that although the government under which the officer acts be unlawful and revolutionary, yet if it is a government de facto, of paramount force within the district where the officer exercises his functions, his official acts, not directly in aid of the insurrectionary war power of such government, will be valid and binding. An officer who continues to exercise the functions of his office after his commission has expired, is an officer de facto, and an acknowledgment taken by him has been sustained; and the rule has even been applied where such officer had removed into another state, but kept an office and continued business in the county for which he was originally appointed, and continued to act as an officer there. One who acts as a notary without having been duly commissioned, is an officer de facto, and an acknowledgment taken by him cannot be attacked collaterally; but where, by the acceptance of an incompatible office, the notary had ceased to be such, de jure, for some time previous to taking a deposition, this latter act alone was held not sufficient to constitute him a notary de facto.6

1 Simpson v. Lovering, 3 Bush, 458; s. c. 96 Am. Dec. 252.

2 Texas v. White, 7 Wall. 700; s. c. 25 Tex. Sup. 467, 608; Henning v. Fisher, 6. W. Va. 238; Griffin v. Cunningham, 20 Gratt. 31; Scherfy v. Argenbright, 1 Heisk. (Tenn.) 128.

3 Gilbraith v. Gallwan, 78 Mo. 452; Farmer's Bk. v. Chester, 6 Humph. 458; Brown v. Lunt, 37 Me. 423; but compare Grotenkemper v. Carver, 4 Lea (Tenn.), 375.

Prescott v, Hayes, 42 N. H. 56.

5 Hamilton v. Pitcher, 53 Mo. 334.

Biencourt v. Parker, 27 Tex. 558. "The mere assumption of an office by performing one or even several acts appropriate to it, without any recognition of the person as officer by the appointing power, may not be sufficient to constitute one an officer de facto." Burke v. Elliott, 4 Ind. Law. 355. See, as to what constitutes an officer de facto, McCraw v. Williams, 33 Gratt. 513; Leach v. Cassidy, 23 Ind. 449; Morton v. Lee, 28 Kan. 287; Carli v. Rhuer, 27 Minn. 293; Norton v. Shelby Co., 118 U. S. 425; Hamlin v. Cassafer, 15 Or. 456; s. c 15 Pac. Repr. 778; White v. Burnley, 20 How. 246; Wilcox v. Smith, 5 Wend. 231; s. c. 21 Am. Dec. 213; Trustees v. Hills, 6 Cow. 23; s. c. 16 Am. Dec. 429; Allen v. McKeen, 1 Sum. 312; Doty v. Gorham, 5 Pick. 487; s. c. 16 Am. Dec.

417.

It is sufficient, though the officer describe himself in the certificate as a clerk pro tem., if he was clerk de facto; as the temporary char

$65. Local Jurisdiction of the Officer.

Where, as in many instances, the statutes require acknowledgments to be taken in the county or district where the grantor resides, or where the land lies, or for which the officer is appointed, unless the statute be complied with the acknowledgment will not be valid;1 and if the want of such compliance appears on the face of the certificate, or of the deed and certificate together, the record will not impart constructive notice. The decisions involving questions as to the local jurisdiction of the officer taking the acknowledgment, are usually controlled by the terms of the statute. But in cases where there is an absence of express or definite terms of restriction, in the statutes, as to the territorial jurisdiction of the officer, there is a conflict of judicial decision on the subject. On the ground that the act is ministerial and not judicial, it has been held that a judge may take an acknowledgment even outside of his state,3 but this is denied by other courts. The current of authority seems

acter of his tenure of office does not affect the question. Woodruff v. McHarry, 58 Ill. 218; and see Cocke v. Halsey, 16 Pet. 71.

A notary public cannot delegate his official authority to a clerk. Sheldon v. Benham, 4 Hill, 12); s. c. 40 Am. Dec. 271; Sacrider v. Brown, 3 McLean, 483.

An acknowledgment is not void because the officer holds two ineompatible offices, the statute not having declared which shall be forfeited. Adam v. Mengel (Pa.), 8 Atl. Repr. 606.

If the office does not exist de jure, the acts of the person are void. Norton v. Shelby County, 118 U. S. 425.

1 Share v. Anderson, 7 Serg. & R. 43; s. c. 10 Am. Dec. 421; McCulloch v. Myers, 1 Dana, 522; Hedges v. Ward, 15 B. Mon. 106; Hughes v. Wilkinson, 37 Miss. 482; Colton v. Seavey, 22 Cal. 496; Johns v. Reardon, 3 Md. Ch. 57; Jackson v. Humphreys, 1 Johns. 498; Gittings v. Hall, 1 Har. & J. 14; s. c. 2 Am. Dec. 502; Cook v. Hager, 3 Colo. 386; Frank v. Miner, 50 Ill. 444.

2 Titus v. Johnson, 50 Tex. 224; Heilbrun v. Hammond, 13 Hun. 474. 3 Moore v. Vance, 1 Ohio, 1; Kinsman v. Loomis, 11 Ohio, 475. And a justice of the peace outside of his county; Biscoe v. Byrd, 15 Ark. 655; Odiorne v. Mason, 9 N. H. 30; Learned v. Allen, 14 Allen, 109; Crumbaugh v. Kugler, 2 O. St. 373.

4 Jackson v. Humphrey, 1 Johns. 498. A commissioner outside of his state held not authorized to take an acknowledgment; Jackson v. Colden, 4 Cow. 266. But a mayor of a city held authorized to do so outMoore v. Moore, 3 O. St. 154.

side of his city.

to be in favor of the view that taking an acknowledgment (excepting, perhaps, that of a married woman, where a separate examination is required), is an act ministerial in its character; and in the absence of statutory restriction, the authority attaches to the officer wherever he may be within his own state; and in any event, an acknowledgment so taken would be good betwen the parties, and also sufficient to sustain the record of the instrument as constructive notice to third persons, if the certificate on its face discloses no such want of jurisdiction.1

§66. Presumptions as to Officer's Authority and Jurisdiction.

If the certificate purports to have been made by an officer authorized by law to take acknowledgments, and is in due form, it is in itself prima facie evidence that the officer had due authority and acted within its jurisdiction. It is not necessary that the certificate state in terms that the officer is authorized to take acknowledgments, nor that he is acting within his territorial jurisdiction. The notarial seal is prima facie evidence that the person using it is a notary

3

1 Peterson v. Lowry, 48 Tex. 408, 412; Heilbrun v. Hammond, 13 Hun. 474; Stevens v. Hampton, 46 Mo. 404.

An acknowledgment taken by a justice of the peace out of his state, is defective and void. Cowan v. Beall, 4 MacArth. 270; and so, in Missouri, out of his county; Bishop v. Schneider, 46 Mo. 472; s. c. 2 Am. Rep. 533. For further cases as to the territorial jurisdiction of the officer, see Hopkins v. Menderback, 5 Johns. 231; Duly v. Brooks, 30 Mo. 515; Howard v. McIntyre, 3 Allen, 572; Thurman v. Cameron, 24 Wend. 91; Dickerson v. Talbot, 14 B. Mon. 60; Harris v. Burton, 4 Harr. (Del.), 66; Lynch v. Livingston, 8 Barb. 463; 6 N. Y. 422.

2 People v. Snyder, 41 N. Y. 397; Carpenter v. Dexter, 8 Wall. 513; Trustees v. McKechnie, 90 N. Y. 618; Harding v. Curtis, 45 Ill. 252; Evans v. Lee, 11 Nev. 194; Belo v. Mayer, 79 Mo. 67; Thompson v. Morgan, 6 Minn. 292; Tuten v. Gazen, 18 Fla. 751; Bell v. Fry, 5 Dana, 341; Hassler v. King, 9 Gratt. 115; Jackson v. Schoonmaker, 4 Johns.

161.

8 Livingston v. McDonald, 9 Ohio, 168; Sparrow v. Hovey, 41 Mich. 708.

Bradley v. West, 60 Mo. 33; Morrison v. White, 16 La. Ann. 100; Dunlap v. Daugherty, 20 Ill. 297; Sidwell v. Burney, 69 Mo. 144.

duly qualified.1 A commissioner of deeds appointed for another state is an officer of the state from which he derives his appointment, and the courts of that state will take judicial notice of his official acts, which require no other authentication than his seal of office. If the certificate fails to state the title of an officer authorized to take acknowledgments, such defect cannot usually be supplied by either presumption or proof.3 The acknowledgment of a deed before a commissioner of deeds for North Carolina in another state is not, it seems, sufficient without the adjudication of the clerk of the superior court of the county in North Carolina wherein the land lies.4

$67. Disqualification of Officer by Interest.

A party having a direct interest in the subject matter of the conveyance is thereby disqualified, as an officer, from taking the acknowledgment to it.5 Thus, the grantee can

1 Brown v. Phil. Bank, 6 Serg. & R. 484; Harding v. Curtis, 45 Ill. 252; Stephens v. Williams, 46 Iowa, 540. But where the law requires the officer to state his title in the certificate, the omission by a notary to state of what county he is notary, has been held to vitiate, though the name of his county appears on his seal affixed to the instrument, Willard v. Cramer, 39 Iowa, 22; Greenwood v. Jenswold, 69 Iowa, 533; s. c. 28 N. W. Repr. 433. Where a notary described himself in the certificate as being within and for the county of L., but to his signature added "Notary Public. H. Co.," the deed was held admissible in evidence. Merchant's Bank v. Harrison. 39 Mo. 433.

2 Smith v. Van Gilder, 26 Ark. 527; Vance v. Schuyler, 1 Gilm. (6 Ill.) 160.

3 See post. §73; People v. Register of N. Y., 6 Abb. 180; De Segond v. Culver, 10 Ohio, 188.

Where the statute authorized justices of the peace in another state to take acknowledgments, and the acknowledgment was taken in another state by two aldermen of New York city, describing themselves as such, it was held sufficient; the presumption being indulged that aldermen were ex-officio justices, that being generally the case with aldermen of cities. Welles v. Cole, 6 Gratt. 645.

4 Evans v. Etheridge, 99 N. C. 43; Code, §1250.

5 Hammers v. Dole, 61 Ill. 307; Green v. Abraham, 43 Ark. 420; Davis v. Beasley, 75 Va. 491; West v. Krebaum. 88 Ill. 263; Jones v. Porter, 59 Miss 628; Withers v. Baird, 7 Watts, 227; s. c. 32 Am. Dec. 754. In Georgia it does not invalidate the record that the notary who attests the deed is the attorney for both parties. Wardlaw v. Mayer, 77 Ga. 620.

not take the acknowledgment. Nor can one who identifies himself on the face of the transaction as the agent of one of the parties. So the commission to which a trustee is entitled, is a sufficient disqualification. But where the disqualifying interest in no way appears on the face of the papers, the record will nevertheless impart constructive notice.4

$68. Disqualification by Relationship.

An ordinary acknowledgment is usually held to be a ministerial act; and on this ground it is decided that it may be taken by one who is so related to the parties as to be disqualified as judge or juror. The current of authority, however, is very strongly to the effect that taking the separate acknowledgment of a married woman is a judicial act, or quasi judicial in its character."

1 Hogans v. Carruth, 19 Fla. 752; Wilson v. Traer, 20 Iowa, 233; Beaman v. Whitney, 29 Me. 413; Stevens v. Hampton, 46 Mo. 404; Green v. Abraham, 43 Ark. 420.

But a sheriff's deed, or tax deed, may be acknowledged before a court over which one of the grantees presides. Lewis v. Curry, 74 Mo. 49; Mundee v. Freeman (Fla.), 3 South. Repr. 153. Of course the grantor cannot take his own acknowledgment. Groesbeck v. Seeley, 13 Mich. 329; Hammers v. Dole, 61 Ill. 307; Davis v. Beasley, 75 Va. 491.

2 Sample v. Irwin, 45 Tex. 567; Nichols v. Hampton, 46 Ga. 253. So, a trustee cannot take the acknowledgment of a deed to his wife in satisfaction of the trust. Jones v. Porter, 59 Miss. 628. An attorney for both parties is not disqualified. Wardlaw v. Mayer, 77 Ga. 620. A trust deed acknowledged before the trustee, if its execution be proved, is good between the parties to it, and those claiming under them. Bennett v. Shipley, 82 Mo. 448; Siemers v. Kleburg, 56 Mo. 196.

3 Brown v. Moore, 38 Tex. 645; Darst v. Gale, 83 Ill. 136; contra, Bennett v. Shipley, 82 Mo. 448.

4 National Bank v. Conway, 1 Hughes, C. C. 37; s. c. 14 Bank Reg. 513; Stevens v. Hampton, 46 Mo. 404; Titus v. Johnson, 50 Tex. 224; and see Dussaume v. Burnett, 5 Iowa, 95, as to an indirect interest.

5 Hill v. Bacon. 43 Ill. 477; Learned v. Riley, 14 Allen, 109; Biscoe v. Byrd, 15 Ark. 655; Odiorne v. Mason, 9 N. H. 24; Schultz v. Moore, 1 McLean, 520; Kinsman v. Loomis, 11 Ohio. 479; Beaumont v. Yeatman, 8 Humph. 543; Hopkins v. Menderback, 5 Johns. 234; Truman v. Love, 14 O. St. 531; Nat'l. Bank v. Conway, supra.

6 Lynch v. Livingston, 6 N. Y. 422; Williamson v. Carskadden, 36 0. St. 664; Kimball v. Johnson, 14 Wis. 674.

7 Wright v. Player, 72 N. C. 94; Woodbourne v. Gorrell, 66 N. C. 82; Kerr v. Russell, 69 Ill. 666; s. c. 18 Am. Rep. 634; Lickmon v. Harding,