was sufficiently determined; and where, under such a statute, the date of the certificate was prior to that of the deed, it was presumed to be correct, and that the error was in the date of the deed.2

$85. Signature of the Officer.

The officer must sign the certificate; it is not enough that he has written his name in the body of it.3 This construction arises in part from the specific requirement of some of the statutes that the officer shall sign and seal the instrument; and in part from considerations of public policy growing out of the fact that these certificates, involving but a small fee to the officer, are often given on printed forms, in which the officer's name and title is written beforehand in the appropriate blanks, so that any other rule as to the signature would afford opportunities for fraud to be committed with comparative impunity.4 The officer's title may be shown in connection with the signature, or in the body of the certificate."

$86. Certificate on Same Sheet with Deed.

The Revised Statutes of Texas provide "that any officer taking the acknowledgment of a deed or other instrument

1 Kelley v. Rosenstock, 45 Md. 389. A deed was executed in 1881, and the certificate of acknowledgment purported to bear date in 1880. Held immaterial. Yorty v. Paine, 62 Wis. 154; s. c. 22 N. W. Repr. 137. So, where the certificate of acknowledgment was dated April 21, and the deed April 23, of the same year. Hagenbuck v. Phillips, 112 Pa. St. 284; s. c. 6 Eastern Repr. 802; 3 Atl. Repr. 788; and see Attaway v. Carter, 1 Tex. Un. Cas. 73, 77.

2 Cover v. Manaway, 115 Pa. St. 338; s. c. 8 Atl. Repr. 393; 2 Am. St. Rep. 552. Antedating the deed is of no avail. Simpson v. Lovering, 3 Bush. 458; s. c. 96 Am. Dec. 252. A discrepancy of dates is immaterial. Sellers v. Sellers, 98 N. C. 13; s. c. 3 S. E. Repr. 917.

3 Marston v. Bradshaw, 18 Mich. 81; s. c. 100 Am. Dec. 152; Bigelow v. Booth, 39 Mich. 624; Jefferson v. Heil, 81 Ky. 513; Carlisle v. Carlisle, 78 Ala. 542; Clark v. Wilson (Ill.), 19 N. E. Repr. 860.

4 Marston v. Bradshaw, supra.

5 See $68, ante. An alteration of a deed, after acknowledgment and before delivery, which restricts instead of enlarging the interest conveyed, does not necessitate a new acknowledgment. Webb v. Mullins, 78 Ala. 111.

of writing must place thereon his official certificate signed by him and given under his seal of office." The codifiers in submitting the Revised Statutes to the legislature for adoption, stated in their accompanying report that their object in requiring the certificate to be placed on the deed was to prevent affixing the certificate with mucilage, etc.2 The Supreme Court of that state, however, held as sufficient a certificate so attached. The report of the codifiers, it is said in the decision, was not enacted as part of the revision, nor otherwise prescribed as a source from which to ascertain the legislative intent as expressed in the statutes; but the legislature had prescribed certain rules of construction, and under them the usual meaning of the word "placed" could not be restricted so as to exclude attaching the certificate to the deed with mucilage in the common method.3 In Ohio the court reach a different conclusion as to attaching the certificate, but under a statute somewhat more definite in its terms. There the requirement was that the officer should "certify the acknowledgment on the same sheet on which the deed is written or printed," and it was held that a certificate written on a separate paper and attached to the deed in the usual method was invalid. The object of the requirement, it was said, was to guard against fraud and mistake, and a certificate so attached was in violation of the plain terms and the meaning of the statute."

$87. When and of what the Certificate is Conclusive. In all cases the certificate of acknowledgment is prima facie proof of its genuineness, and that the officer making it is such officer as he purports to be, and that the facts therein recited are true, if they are such facts as the officer

Art. 4311.

2 Sayles' Tex. Ann. Stats., p. 734. 3 Schramm v. Gentry, 63 Tex. 583. 4 Winkler v. Higgins, 9 O. St. 599.

The least that can be

is by law required to certify. claimed for it is that it is prima facie proof. When, by whom and under what circumstances this presumption of law may be rebutted, and the recitals contradicted or disproved, will be found to depend on a variety of considerations. It is well settled that parol evidence will not be admitted to supply defects in the certificate so as to make a valid certificate out of that which is otherwise invalid. The certificate cannot rest partly in writing and partly in parol.3 A limited number of cases holding that where the certificate does not show the official character of the officer, this may be shown by parol evidence, may be regarded as in the nature of an exception to this rule.*

Also where the certificate is regular and sufficient on its face, it cannot be defeated on account of mere irregularity in the taking of the acknowledgment.5 Matters of no greater weight and consequence than this, will not suffice to overcome the presumption of law in favor of an official act. The grantor who has requested an officer to take and certify his acknowledgment, and who has made what he then understood to be a proper acknowledgment, is estopped to deny his own act on account of irregularities in the form

1 People v. Snyder, 41 N. Y. 397, and cases cited, §63, ante; Wharton on Ev. 1052; Keen v. Coleman, 3 Wright, 299; Schrader v. Decker, 9 Pa. St. 14; s. c. 49 Am. Dec. 538; Miller v. Wentworth, 82 Pa. St. 280. A statement in the certificate that the grantor is of age may be contradicted. Williams v. Baker, 71 Pa. St. 476.

2 Borland v. Walrath, 33 Iowa, 130.

3 Sewall v. Haymaker, 127 U. S. 719; Ennor v. Thompson, 46 Ill. 214; Lindley v. Smith, 46 Ill. 523; Ross v. McLung, 6 Pet. 283; Smith v. Allis, 52 Wis. 337; s. c. N. W. Repr. 155; Ins. Co. v. Nelson, 103 U. S. 544; First. Nat'l Bk. v. Paul, 75 Va. 594; s. c. 40 Am. Rep. 740; Jourdan v. Jourdan, 9 Serg. & R. 268; s. c. 11 Am. Dec. 724; Watson v. Bailey, 1 Binn. 470; s. c. 2 Am. Dec. 462; Looney v. Adamson, 48 Tex. 619; Berry v. Donley, 26 Tex. 737, 747; Hitz v. Jenks, 123 U. S. 298.

Bennett v. Paine, 7 Watts, s. c. 32 Am. Dec. 765; and cases cited in note to $68, ante.

Miller v. Wentworth, 82 Pa. St. 280; Jamison v. Jamison, 3 Whart. 457; s. c. 31 Am. Dec. 536; Barnet v. Barnet, 15 Serg. & R. 72; Shields v. Netherland, 5 Lea, 103; Cox v. Gill, 83 Ky. 669; Harpending v. Wiley, 14 Bush. 380.

and details of taking, or even of certifying it. As to him it is sufficient if the law holds as done that which he attempted to do, and to have done. The rule as to irregularities and estoppel is subject to some exception in the matter of the separate acknowledgment of married women.2 In several states the certificate is by statute made prima facie evidence only; and the influence of these statutes is shown in the admission of parol evidence, without connecting the grantee with any fraud, to show for instance, that the deed of a married woman was not in fact explained to her by the officer. Owing to this difference in the statutes, and also to a difference in the courts, the decisions as to the conclusiveness of the certificate are not uniform.

$88. Continued-How far Certificate Conclusive. Regarded from the stand-point of reason and of public policy, it would seem that certificates of acknowledgment should in most respects be held as conclusive as judgments of a court, and upheld in substantially the same degree. Formerly acknowledgments were largely taken in open court, and although, for the sake of convenience, this method has been changed, there has not necessarily been any change in the underlying principle of the matter. The 1 Jackson v. Colden, 4 Cow. 266.

2 But a widow who has paid the interest upon a mortgage, will be deemed to have ratified it, and will be estopped to deny that the requisite private examination was made. O'Keefe v. Handy, 31 La. Ann. 832; Riggs v. Boylan, 4 Biss. 445.

3 Code of Wash. Ter. (1881), §2321; Hitz v. Jenks, 123 U. S. 298; Dodge v. Hollingshead, 6 Minn. 25; s. c. 80 Am. Dec. 433; Van Bracklin v. Fonda, 12 Johns. 468; s. c. 7 Am. Dec. 339; Forgarty v. Finlay, 10 Cal. 239; s. c. 70 Am. Dec. 714; Hutchison v. Rust, 2 Gratt. 394; Ford v. Teal, 7 Bush, 158; Hughes v. Coleman, 10 Bush, 248; Rev. Stats. Ky., 1 Slanton, 282; Drury v. Foster, 2 Wall. 24; s. c. 1 Dill. 460; Landers v. Bolton, 26 Cal. 393; Comp. Laws of Utah, p. 255, §9; Tarpey v. Desert Salt Co., 14 Pac. Repr. 338; Johnson v. Burden, 40 Vt. 567; s. C. 94 Am. Dec. 436.

*

*

4 Blanchard v. Taylor, 7 B. Mon. 647; Elliott v. Peirsoll, 1 Pet. 328. "The act is clothed with the same force and effect that was anciently produced by the court of record and takes the place of the judgment of former times." Merritt v. Yates, 71 Ill. 639; s. c. 22 Am. Rep. 128; Sewell v. Haymaker, 127 U. S. 719.

certificate is a written declaration and determination, by an officer appointed by law, of matters within his jurisdiction to determine and certify. The officer acts under the sanction of his oath and the penalties of his bond; he must not be directly interested in the matter, and in a certain sense, as repeatedly held by the courts, he acts in a judicial capacity. The integrity and conclusiveness of certificates of acknowledgment to deeds, is a matter on which the security of titles largely depends; and while there is much difference in the manner of impeaching a certificate and of attacking a judgment, an examination of the decided cases will show that in very many instances, the courts have required, in order to set aside or defeat a certificate, substantially the same character and degree of evidence as required to set aside a judgment. That the grantor did not in fact appear before the officer to make any acknowledgment is a matter that may always be shown,2 for the reason that in such case the officer is without jurisdiction in the premises, as much so as a court would ordinarily be without jurisdiction where there are no parties properly before it. Like the deed itself, or a judgment, the certificate of acknowledgment may be shown a forgery by any person interested in the property, and is at all times open to attack on this ground, as well as upon the ground that no acknowledgment was in fact made or attempted.3

$89. Certificate may be Impeached for Fraud.

It has been stated, as a general proposition, that the certificate cannot be impeached for anything but

1 Kerr v. Russell, 69 Ill. 666; s. c. 18 Am. Rep. 634; Lickman v. Harding, 65 Ill. 505; Wasson v. Conner, 54 Miss. 352; Hector v. Glasgow, 79 Pa. St. 79; s. c. 21 Am. Rep. 46; and cases cited in note 3, §65,

ante.

2 Strauch v. Hathaway, 101 Ill. 11; s. c. 40 Am. Rep. 193; Smith v. Ward, 2 Root, 378; s. c. 1 Am. Dec. 80; Michener v. Cavender, 38 Pa. St. 334; s. c. 80 Am. Dec. 486; Donahue v. Mills, 41 Ark. 421; Williamson v. Carskadden, 36 O. St. 664.

3 McKinnon v. McLean, 2 Dev. & Bat. 79, and cases last cited above.