suffice for justice of the peace,1 and "N. P." for notary public.2

$73. Using Official Seal.

If the statute requires an officer to use an official seal in certifying acknowledgments, a failure to attach it renders the certificate invalid, and the record of the instrument will not impart constructive notice. But unless the statute specifically requires its use, it is held that a seal is not necessary; and the rule has been applied to notaries public who, at common law, were required to authenticate all their official acts with their seal of office.5 There is some contrariety of decision as to what is sufficient to constitute an official seal, and especially a notarial seal. A scrawl will

1 Russ v. Wingate, 30 Miss. 440; Final v. Backus, 18 Mich. 218; Shattuck v. The People, 4 Scam. 477.

2 Rawley v. Berrian, 12 Ill. 198; Stinson v. Russell, 2 Tenn. 40; Blythe v. Houston, 46 Tex. 67. 79. In this last case, the only designa tion of official character consisted of the words "Notary Public N. C." following the signature. The caption was, "The State of Texas. Hopkins county." The mistake was held immaterial, and the designation sufficient. And see, Merchant's Bank v. Harrison, 39 Mo. 433.

3 King v. Russell, 40 Tex. 124, 130; Meskimen v. Day, 35 Kan. 46; s. c. 10 Pac. Repr. 14; Mason v. Brock, 12 II. 273; s. c. 52 Am. Dec. 490; Hastings v. Vaughan, 5 Cal. 315; McKellar v. Peck, 39 Tex. 381; Baze v. Arper, 6 Minn. 220; Little v. Dodge, 32 Ark. 453; Talcot v. Del. Ins. Co., 2 Wash. 449; Tunis v. Withrow, 77 Am. Dec. 717; Thompson v. Scheid (Minn.), 38 N. W. Repr. 801; Tex. Land Co. v. Williams, 51 Tex. 51; Miller v. Henshaw, 4 Dana, 325; Barney v. Sutton, 2 Watts, 31; Buell v. Irwin, 24 Mich. 145; Dail v. Moore, 51 Mo. 589; Richards v. Randolph, 5 Mason, 115.

4 Baze v. Arper, 6 Minn. 220, 264; Maxwell v. Hartman, 50 Wis. 660; Farnum v. Buffum, 4 Cush. 260; Harrison v. Simmons, 55 Ala. 510; Jacques v. Weeks, 7 Watts, 261; Powers v. Bryant, 7 Port. 9; Cole v. Wright, 70 Ind. 179.

5 Farnum v. Buffum, supra; Booth v. Cook, 20 Ill. 129; Nichols v. Hampton, 46 Ga. 253. The Ohio statute in reference to notaries required them to have seals, and to authenticate their official acts therewith. Afterwards, notaries were by statute named among the officers authorized to take acknowledgments, but it was rot specifically required that a seal should be used in taking acknowledgments. Held, that an acknowledgment taken by a notary was valid without his seal. Fund Commissioners v. Glass, 17 Ohio, 542, quoted at length in Devlin on Deeds. $490, note; and see also, Muncie v. Brown, 112 Ind. 474; s. c. 14 N. E. Repr. 358; 12 West. Repr. 157. In McKellar v. Peck, 39 Tex. 381, a certificate of acknowledgment by a notary public was held in

not answer,1 unless its use be permitted by statute until a seal can be provided.2 At common law a seal was an impression on wax, but an impression on paper alone is now held sufficient; and so, an impression in ink, in the form of a notarial seal, and stamped on the paper, has been held to answer the requirement. If the statute pre

scribe the form of the seal, it should be followed; yet the Nebraska statute in relation to engraving the name of the notary on the seal, is held to be permissive only ;6 and in Alabama, where the statute provided that the seal should bear the arms of the state, but failed to state what should be the arms of the state, the requirement was disregarded. It has been held that the name of the notary must be engraved on the seal, and also that it must show on its face to be the seal of a notary; but where the statute does not prescribe the form, the better opinion is that the notary may adopt a seal with such an inscription as he may choose, and if it be capable of making a definite and uniform impression on paper, it will be sufficient.9

valid for want of a notarial seal, the court putting the decision on the ground that the statute (Pas. Dig. 4684) required (as did that of Ohio) that all notarial acts should be under seal. And see Meskimen v. Day,

35 Kan. 46.

1 Mason v. Brock, 12 Ill. 273; s. c. 52 Am. Dec. 490; Dunn v. Adams, 1 Ala. 527.

2 Fogarty v. Sawyer, 23 Cal. 570; Collins v. Boyd, 5 Dana, 316.

8 Pillow v. Roberts, 13 How. (U. S.), 472; Mason v. Brock, supra. 4 The Gallego, 30 Fed. Repr. 271.

5 Village v. Reed, 21 Neb. 261; s. c. 31 N. W. Repr. 797.

6 Kirksey v. Bates, 7 Port. 529; s. c. 31 Am. Dec. 722. So, in Arkansas, the absence from the seal of the emblems and devices required by the statute, does not invalidate the certificate. Sonfield v. Thompson, 42 Ark. 46. The use by one notary of another's seal, the seal being without name, but having a different design, does not vitiate. Muncie v. Brown, 112 Ind. 474.

7 Gage v. Dubuque, 11 Iowa, 310, 314. But see Philipps, In re., 14 Nat. Bank Reg. 219.

8 Nebe, In re., 11 Nat. Bank Reg. 289.

9 Mason v. Brock, supra; Orr v. Lacy, 4 McLean, 243; Bump on Bank'ey (10 ed.), 86; Devlin on Deeds, §495. In Texas, seals were not required to have thereon a star with five points, prior to 1868. Davis v. Roosvelt, 53 Tex. 305. And see Sparrow v. Hovey, 41 Mich. 708; Pierce v. Indseth, 16 Otto (106 U. S.), 546.

$74. Seal to be Shown How.

Where the seal is in fact attached, a reference to it, in the certificate, as being the officer's seal, and as having been attached by him, is usually held unnecessary; but on the ground that nothing should be presumed in favor of the certificate, it has elsewhere been held that the officer must certify that what purports to be his seal, is his official seal; and where the certificate read "witness my hand and seal," instead of "notarial seal," and only a certified copy of the instrument, showing a scrawl in the place where the seal is usually affixed, was before the court, the certificate was adjudged insufficient.2 In recording, a scrawl may be used to indicate the seal, a fac simile of the seal or device not being absolutely necessary; and where the certificate read "witness my hand

1 Harrington v. Fish, 10 Mich. 415; Coffey v. Hendricks, 66 Tex. 676. In Webb v. Huff. 61 Tex. 677, the entire omission of the clause, "Given under my hand and seal of office," though contained in the statutory form, was held immaterial, the court saying that while no doubt these venerable words ought to be used by all notaries, yet it could add nothing to the seal and signature to say "this is my seal and this my signature," or other equivalent words. So, the omission of the word "seal" from the expression above, held not bad. Nichols v. Stewart, 15 Tex. 225.

2 Wetmore v. Laird, 5 Biss. 160. Contra, as to same expression in the certificate, the certified copy not even showing the scrawl. Ballard v. Perry, 28 Tex. 347, 364. See, however, Switzer v. Knapps, 10 Iowa, 72; s. c. 74 Am. Dec. 375.

3 I. C. Ry. Co. v. Johnson, 40 Ill. 35.

Where the deed is offered in evidence, proof may, it seems, be admitted to show that the wrong seal was affixed by mistake. Peck v. McKellar, 33 Tex. 234; but not so as to give the record the effect of notice. King v. Russell, 40 Tex. 124.

Where the recorder took the acknowledgment and immediately following his certificate of acknowledgment, and on the same sheet, was his certificate of record, with his seal to the latter only, the two certificates were treated as one, and the seal held applicable to both. Manly v. Culver, 20 Tex. 143. And see Wright v. Wilson, 17 Mich. 192.

Courts take notice of the seals of notaries public. Stoddard v. Sloan, 65 Iowa, 680; s. c. 22 N. W. Repr. 924; Yeaton v. Fry. 5 Cranch, 535; Porter v. Judson, 1 Gray, 175; and of commissioners of deeds appointed for other states. Smith v. Van Gilder, 26 Ark. 527; Irving v. Brownell, 11 Gilm. 402; Hultz v. Ackley, 63 Pa. St. 142.

General evidence by a notary that he never aflixed his seal to an instrument purporting to have been signed and sealed by him, will not re(9-Reg. of Title.) 129

and official seal," it was held immaterial that a certified copy, offered in evidence, did not show even a scrawl to indicate a seal on the original.1

$75. Certificates of Magistracy and Conformity. Usually the statutes require that where the acknowledgment is taken in another state, and especially if taken by an inferior officer, or in accordance with the laws of the state where taken, it shall be accompanied by a further certificate of some officer of a court of record under seal to the effect that the officer taking the acknowledgment is such officer as he purports to be, that his signature is genuine and his certificate in proper form. In cases where but the presumption in favor of the deed. Wright v. Bundy. 11 Ind. 398. See Stone v. Montgomery, 35 Miss. 83, and compare Garth v. Fort. 15 Lea (Tenn.). 683.

1 Ballard v. Perry, supra; Hammond v. Gordon, 93 Mo. 223; s. c. 6 S. W. Repr. 93. In Geary v. City of Kansas, 61 Mo. 378, it is held that in recording, it is not necessary for the recorder to indicate in any manner that a seal was attached to the instrument. It is enough that it appear from the recitals of the record, that the instrument copied is under seal. Smith v. Dall, 13 Cal. 510. And see also, to,same effect, Jones v. Martin, 16 Cal. 166; Hedden v. Overton, 4 Bibb. 406; Griffin v. Sheffield, 38 Miss. 359; s. c. 77 Am. Dec. 646; Sneed v. Ward, 5 Dana, 187; Coffey v. Hendricks, 66 Tex. 676; s. c. 2 S. W. Repr. 47; Gale v. Shillock (Dak.), 29 N. W. Repr. 661. Contra, if the record does not show a copy of the seal, as such copies are usually made in records, the presumption is that there was no seal to the original. Switzer v. Knapps, 10 Iowa, 72; s. c. 74 Am. Dec. 375; Talcot v. Delaware, 2 Wash. 449; Todd v. Union Dime Sav. Inst., 20 Abb, N. Cas. 270.

Where the statute authorizes acknowledgments to be taken by the clerk of a court of record, the use of his official seal by a county clerk does not, of itself, suffice to show his court to be a court of record, there being no recital to that effect in the certificate. Fogg v. Holcombe, 64 Iowa, 621; s. c. 21 N. W. Repr. 111.

2 See Stimson's Am. Stat. Law, §1583. Scarcely any two statutes correspond as to when the double certificate is required, by whom it is to be made, or what is to be certified in it. In all cases, however, the second certificate must certify to the official character of the officer taking the acknowledgment; usually also to his seal and the genuineness of his signature; and in some cases that he is authorized by the law of his own state to take acknowledgments, and that his certificate thereof is in due form. Some of the statutes provide that the official character of justices of the peace shall be certified by the 'proper authority," or the "proper clerk" (Rev. C. of Iowa (1873), §1956), and it has been held that the proper clerk in such case is the one in whose office the

the statute requires this double certificate, the record of an instrument without it will not impart constructive notice. If, however, such certificate be subsequently obtained and recorded, the deed will be treated as recorded from the date of filing this certificate. These certificates may often be looked to in supplying defects of venue, of statement of official character and the like in the certificate of acknowledgment;3 and like it, are to receive a liberal construction.4

evidence of the official character of justices of the peace is kept. Grand Tower Co. v. Gill, 111 Ill. 541.

It seems that an acknowledgment taken according to the laws of another state has been held good in Illinois without a certificate of conformity. Edward v. Flannagan, 104 U. S. 562; though such certifcate is required as to foreign acknowledgments. Hurd's Rev. Stats. of Ill. (1882), ch. 30, $22.

1 Musgrove v. Bosner, 5 Or. 313; s. c. 20 Am, Rep. 737; O'Brien v. Gaslin, 20 Neb. 347; s. c. 30. N. W. Repr. 274; Tex. Land Co. v. Williams, 51 Tex. 51; Ely v. Wilcox, 20 Wis. 551; s. c. 91 Am. Dec. 436; Sidler v. McComas, 66 Md. 135; s. c. 6 Atl. Repr. 527; Irwin v. Welch, 10 Neb. 479; Strong v. Smith, 3 McLean, 362; Dyson v. Simmons. 48 Md. 207; De Segond v. Culver, 10 Ohio, 188; Morton v. Smith, 2 Dill. 316; Milligan v. Mayne, 2 Cr. C. Ct. 210; Jones v. Berkshire, 15 Iowa, 248; s. c. 83 Am. Dec. 412; Fleschner v. Sumpter, 12 Or. 161; s. c. 6 Pac. Repr. 506.

2 Reasoner v. Edmundson, 5 Ind. 393; Ely v. Wilcox, 20 Wis. 523; s. c. 91 Am. Dec. 436.

3 Hardin v. Osborne, 60 Ill. 93.

Thus the statute required the certifving officer to state that he knew the signature of the officer who took the acknowledgment to be genuine, and his certificate stating simply that it was genuine, held sufficient. Wells v. Atkinson, 24 Minn. 161.

But a double certificate stating that the acknowledging officer was a justice of the peace was held bad for not stating he was such at the time the acknowledgment was taken. Phillips v. People, 11 Ill. App. 340.

Where the certificate of conformity was given some years after the acknowledgment was taken, and certified that the acknowledgment was taken according to "existing law," it was sustained, and the word "existing" referred to the date of the acknowledgment. Harrington v. Fish, 10 Mich. 415.

A certificate of magistracy given by an officer not authorized to make it, is of no avail. Sartor v. Bolinger, 59 Tex. 411. See De Segond v. Culver, 10 Ohio. 188. Where the judge is his own clerk, he may certify to his attestation. Moore v. Hill, 59 Ga. 760.