$69. The Certificate of Acknowledgment.

3

In a majority of the states forms of certificates of acknowledgment are now prescribed by statute. The certificate is prima facie evidence of its genuineness and contents, and of the execution of the instrument. Whether a form be prescribed or not, the certificate should state the official character of the officer; the fact of the acknowledgment, and by whom made, using, substantially at least, the statutory language in stating these matters; the date and place when and where made; and should be signed by the officer, and attested by his official seal, if this latter be required. The certificate must show a compliance with the law by a specific statement of the facts constituting a valid acknowledgment; a general statement that the acknowledgment was made "according to law," or "in due form,' 65 Ill. 505; Williams v. Hobson, 6 O. St. 510; Hector v. Glasgow, 79 Pa. St. 79; Wharton on Ev. $1072; Wasson v. Conner, 54 Miss. 352; Williams v. Baker, 71 Pa. St. 476; Homeopathic Co. v. Marshall, 32 N. J. Eq. 103; Jamison v. Jamison, 3 Whart. 457; s. c. 31 Am. Dec. 536; Hornbeck v. Building Association, 88 Pa. St. 64; contra, Gill v. Fauntleroy, 8 B. Mon. 177; Kimball v. Johnson, 14 Wis. 674.

1 Whart. on Ev. §1052; Tuten v. Gazan, 18 Fla. 751; Thurman v. Cameron, 24 Wend. 87, 92; People v. Snyder, 41 N. Y. 402; Tracy v. Jenks, 15 Pick. 468; Willink v. Miles, Pet. C. Ct. 429; Thompson v. Morgan, 6 Minn. 295; Keichline v. Keichline, 54 Pa. St. 76; Duff v. Wynkoop. 74 Pa. St. 300; Merrick v. Wallace, 19 Ill. 486; Fisher v. Meister, 24 Mich. 447.

2 Young v. Duval, 109 U. S. 573; and see ante, §53.

3 Bryan v. Ramirez, 8 Cal. 461; s. c. 68 Am. Dec. 340. A certificate that the grantor appeared before the officer and signed, sealed and delivered the instrument, held not to show an acknowledgment. McDaniel v. Needham, 61 Tex. 269.

4 See Brunswick v. Brackett, 37 Minn. 58; s. c. 39 N. W. Repr. 214. The certificate should be liberally construed, and upheld if possible. Carpenter v. Dexter, 8 Wall. 513; Luffborough v. Parker, 12 Serg. & R. 48; Ralston v. Moore, 83 Ky. 571; Wells v. Atkinson, 24 Minn. 161; Kelly v. Calhoun, 95 U. S. 710.

Where the statute provided for acknowledgments to be taken in other states before the courts, and certified in the manner usual with such courts, held, that the act of Congress (1 U. S. Stat. at Large, p. 122) providing how records, etc., in each state shall be authenticated so as to take effect in every other state, did not operate on the certificate and record in such case. Calvert v. Fitzgerald, Little's Sel. Cases, 388.

will not suffice. Where the statute authorizes acknowledgments to be taken in a foreign country before any court or mayor, and certified in the manner such acts are usually authenticated by them, the certificate, in such a case, is prima facie evidence of its conformity to the foreign law.2 The certificate is in every instance prima facie proof of every matter contained therein which it is the duty of the officer to certify.3 The most marked exception in relation to certificates of acknowledgment is to be found in the law of North Carolina, which does not require, if the deed is probated within that state, that the certificate of acknowledgment or proof be written out and recorded with the instrument; a record otherwise duly made being there presumed to have been made' on a proper probate. This seems also to have been the law at an early day in Kentucky and South Carolina.5.

1 Flanagan v. Young, 2 Har. & McH., 38; Gill v. Fauntleroy, 8 Mon. B. 177; Lucas v. Cobbs 1 Dev. & B. 228; Meddock v. Williams, 12 Ohio, 377; Wetmore v. Laird, 5 Biss. 160; Jones v. Lewis, 8 Ired. 70; s. c. 47 Am. Dec. 338; contra, Horton v. Hagler, 1 Hawks. 48.

Signing and acknowledging a deed in which a different person appears as the grantor, is not sufficient to convey title. Batchelor v. Brereton, 112 U. S. 396; Warner v. Conn., 109 U. S. 357. Under the early Kentucky statute, the certificate must show that the grantor signed in the presence of the officer. Harris v. Price, 14 B. Mon. 333; Brown v. Swift (Ky.), 1 S. W. Repr. 474.

2 Sessions v. Reynolds, 7 Sm. & M. (15 Miss.), 130. The acknowledgment in this case purported to be taken before the mayor of Liverpool, Eng., and to be under his official signature with the corporate seal, but was signed not by him, but by the town clerk, and it was presumed by the court that this was the usual mode of authentication in such cases.

3 Where the officer was required to certify the day and year of the acknowledgment, his certificate of the date was presumed correct, although the deed bore a later date. Cover v. Manaway, 115 Pa. St. 338; s. c. 2 Am. St. Rep. 552.

4 Love v. Harben, 87 N. C. 253;

Battle's Revision, ch. 35.

Starke v. Etheridge, 71 N. C. 240;

5 Hillegas v. Hartley, 1 Hill Ch. 106; Lamar v. Raysor, 7 Rich. 509; Wood v. Reeves, 23 S. C. 382.

123

$70. Caption and Locality.

Usually the caption of the certificate names the state and county in which the officer acts in taking the acknowledgment. If the title and official character of the officer be fully stated in the body of the certificate, or in connection with the signature, the omission to name the state and county in the caption is immaterial, as the presumption obtains that the officer acted within his jurisdiction.1 Where, however, the officer in stating his title has described himself as a notary or clerk "of said county," referring to the caption, and the caption fails to give the county or state, such defect has been held fatal; while in other cases, evidence has been held admissible to supply the omission and show the county.3 Where the acknowledgment was made in the county where the court was sitting, judicial notice was taken that the certifying officer was a justice of that county. In other cases resort has been had to the

1 Ante, §63, and notes. Wright v. Wilson, 17 Mich. 192; Oney v. Clendenin, 28 W. Va. 34; Blythe v. Houston, 46 Tex. 67; Brown v. Farran, 3 Ohio, 140.

"State of Missouri, Schuyler Co., ss. Before me the undersigned circuit clerk comes L. H. C.," etc., held sufficient to show that the officer was clerk of the Circuit Court of Schuyler county. Sidwell v. Burney, 69 Mo. 144; and to same effect Livingston v. Kettelle, 1 Gilm.; s. c. 41 Am. Dec. 166. It was held, the deed being 30 years old, that it was no objection that the certificate did not name the state. Robidoux v. Cassilegi, 10 Mo. App. 516.

2 Willard v. Cramer, 39 Iowa. 22. The certificate must be entitled of some assignable locality, and "Lincoln, ss. Wiscasset," is not enough. Vance v. Schuyler, 1 Gilm. 160; Hardin v. Kirk, 49 Ill. 153; s. c. 95 Am. Dec. 519.

3 Scott v. Gallagher, 11 Serg. & R. 347; s. c. 16 Am. Dec. 508; Dunlap v. Dougherty, 20 Ill. 397; Graham v. Anderson, 42 Ill. 514; s. c. 92 Am. Dec. 89; Connelly v. Bowie, 6 Har. & J., 141.

Where a justice of the peace of C. county took the acknowledgment, and because of using a printed form of blank for another county, the certificate read "Erie Co. ss. Before the subscriber, a justice of the peace of said county," etc., the mistake was held immaterial, and parol evidence was admitted to show it. Angier v. Schieffelin, 72 Pa. St. 106; s. c. 13 Am. Rep. 659.

4 Irving v. Brownell, 11 Ill. 402; Graham v. Anderson, 42 Ill. 514; s. c. 92 Am. Dec. 89; Livingston v. Kettelle, 1 Gilm. 116; 41 Am. Dec. 166.

seal to ascertain the county,' and to the deed, and to the accompanying certificate of magistracy and conformity.3

$71. Official Capacity Must Appear.

The certificate should show that the person taking the acknowledgment is an officer who is by law authorized to do so. This may be sufficiently shown in connection with the signature, and where the acknowledgment was taken in another state, it has been held as sufficiently shown by the accompanying certificate of magistracy. The rule stated is not universal. Thus, in Maryland, it is held that as the statute does not require it, the official character of the officer need not be stated; and in Pennsylvania evidence

1 Chiniquy v. Catholic Bishop, 41 Ill. 148. But reference to the name of the county on a notary's seal was denied in Willard v. Cramer, 39 Iowa, 22.

2 Carpenter v. Dexter, 8 Wall. 513; Brooks v. Chaplin, 3 Vt. 281; s. c. 23 Am. Dec. 209: Doe ex dem. Truluck v. Roe, 1 Ga. 3; Furhman v. Loudon, 13 Serg. & R. 386; s. c. 15 Am. Dec. 608; Bennett v. Paine, 7 Watts, 334; s. c. 32 Am. Dec. 765; Pierce v. Hokes, 11 Harris, 231. 3 Adams v. Medsker, 25 W. Va. 128; Hardin v. Osborne, 60 Ill. 93; qualifying Hardin v. Kirk, 49 Ill. 153. Two certificates by the same officer, on the same deed, may, as to caption, be treated as one. Wilson, 17 Mich. 192; McDonald v. Morgan, 27 Tex. 504; Culver, 20 Tex. 144.

Wright v.
Manly v.

Fogg v. Holcomb, 64 Iowa, 621; s. c. 21 N. W. Repr. 111; Patton v. Brown, 1 Cooke. 119; Johnston v. Haines, 2 Ohio, 55; s. C. 15 Am. Dec. 533; Cassell v. Cooke. 8 Serg. & R. 268; s. c. 11 Am. Dec. 610; Trustees v. McKechnie, 90 N. Y. 618; Lincoln v. Thompson, 75 Mo. 613; Belo v. Mayer, 79 Mo. 67; Greenwood v. Jenswold, 69 Iowa, 52; s. c. 28 N. W. Repr. 433; Myers v. Boyd, 96 Pa. St. 427.

5 McDonald v. Morgan, 27 Tex. 504; Russ v. Wingate, 30 Miss. 440; Duval v. Covenhoven, 4 Wend. 561; Goodyear v. Hullihen, 2 Hughes (U. S.), 492.

If the caption state the county, and the certificate is signed by one as justice of the peace, it will be presumed that he is a justice of that county. Wright v. Wilson, 17 Mich. 192.

6 Final v. Backus, 18 Mich. 218; Adams v. Medsker, 25 W. Va. 128; Hardin v. Osborne, 60 Ill. 93. But the proper place is in the body of the certificate. Colby v. McOmber, 71 Iowa, 469; s. c. 32 N. W. Repr. 459.

7 Van Ness v. U. S. Bank, 13 Pet. 17; Schultz v. Moore, 1 McLean, 520: Bank of U. S. v. Benning, 4 Cranch C. Ct. 81. For the certificate of official character now required by §3, art. 24. Code of Maryland, see Sitler v. McComas, 66 Md. 135; s. c. 6 At. Repr. 527; Dyson v. Simmons, 48 Md. 207.

aliunde has been admitted to supply the omission and show the officer's authority. The general rule, however, not only requires that the official character of the officer shall appear in the certificate, but also denies that an omission in this respect can be supplied by parol evidence. A record that does not affirmatively show upon its face to be valid, will not charge constructive notice.2

$72. Initial Letters and Abbreviations may be used in the certificate, and in connection with the signature, to designate the official character of the officer taking the acknowledgment. Thus, where the affidavit of proof of a deed was headed "Republic of Texas-Liberty County," it was held that the letters "R. L. C.," following the signature, sufficiently showed the proof to have been made before the recorder of Liberty county.3 Any letters having a well known and fixed import may be used; thus, "J. P." will

1 Bennett v. Paine, 7 Watts, 334; s. a 32 Am. Dec. 765; Scott v. Gallagher, 14 Serg. & R. 333; s. c. 16 Am. Dec. 508; also Byer v. Entyre, 2 Gilm. (Ill.), 150; s. c. 41 Am. Dec. 410; Connelly v. Bowie, 6 Har. & J. 141. These cases are not in harmony with the established construction of the registry laws and the doctrine of constructive notice. The admission of such evi lence is, of course, on the theory that without it the certificate is deficient. How, then, can the defective record be held to have imparted constructive notice without giving to such parol evidence a retroactive effect? And how can such evidence, given in a suit properly aid the defective record in the register's office to impart notice thereafter?

Where the certificate did not show the county, but that fact clearly appeared by reference to the deed, it was sustained. Oney v. Clendenin, 28 W. Va. 34; Merchant's Bank v. Harrison, 39 Mo. 433; s. c. 93 Am. Dec. 285; but where it showed neither the state nor the county or city where made, it was held defective. Greenwood v. Jenswold, 69 Iowa, 53; s. c. 28 N. W. Repr. 433. The certificate should state of what county the officer is an officer. Crawford v. Burton, 6 Iowa, 476.

2 Parol evidence will not be admitted to show the official character of the officer taking the acknowledgment. Coffey v. Hendricks, 66 Tex. 676; s. c. 2 S. W. Repr. 47; Holladay v. Cromwell, 26 Tex. 189; People v. Register of N. Y., 6 Abb. 180. See Ennor v. Thompson, 46 Ill. 214; Sewall v. Haymaker, 127 U. S. 719; Smith v. Allis, 52 Wis. 337; Bank v. Paul, 75 Va. 594; s. c. 40 Am. Rep. 740; post, §87.

8 McDonald v. Morgan, 27 Tex. 504.