fraud. This must be understood as having no reference to proving the certificate a forgery, or to disproving the entire fact of acknowledgment; and the term fraud must be understood to include such matters of gross imposition, duress and gross concurrent mistake as constitute a species of legal fraud, though not within the ordinary meaning of the word. Expressions are to be found in the books that seem to make quite a distinction between cases where the certificate is sought to be impeached "as between the parties," and cases where the property has passed to a subsequent vendee, but the distinction is one of fact rather than of law. The grantee in the deed, as a matter of fact, is more likely to be a participant in the fraud, and to have knowledge or notice of it, than a subsequent purchaser; but if such knowledge or notice can be clearly brought home to the subsequent vendee, equity will not suffer him to occupy any better position in the matter than his vendor.3

If the grantee had no knowledge of any fraud, imposition or collusion by which the acknowledgment was obtained, and there was nothing justly putting him on notice of it, he cannot be affected by it, and the certificate is conclusive. It does not devolve on him to see that the grantor

1 Williams v. Baker, 71 Pa. St. 476; Pereau v. Frederick, 17 Neb. 117; s. c. 22 N. W. Repr. 235; Schrader v. Decker, 9 Barr, 14; s. c. 49 Am. Dec. 538; Whart. on Ev., §§1052, 495; Green v. Seranage, 19 Iowa, 461; s. c. 87 Am. Dec. 447; Central Bank v. Copeland, 18 Md. 305; s. c. 81 Am. Dec. 597.

2 Williams v. Baker, supra; Homeopathic Co. v. Marshall, 32 N. J. Eq. 106; Whart. on Ev., §1052.

3 Ormsby v. Budd, 72 Iowa, 80; s. c. 33 N. W. Repr. 457; McCanless v. Engle, 51 Pa. St. 309; White v. Graves. 107 Mass. 325; Michener v. Cavender, 38 Pa. St. 334; s. c. 80 Am. Dec. 486; Warren v. Hall, 53 Mich. 371; Somes v. Brewer, 2 Pick. 184.

4 Webb v. Burney, 70 Tex. 322; s. c. 7 S. W. Repr. 841; Hartley v. Frosh, 6 Tex. 208; s. c. 55 Am. Dec. 772; Henderson v. Terry, 62 Tex. 281; McDannell v. Horrell, 1 Tex. Un. Cas. 521; Kerr v. Russell, 69 Ill. 666; s. c. 18 Am. Rep. 634; Harkins v. Forsythe. 11 Leigh, 294; Johnston v. Wallace, 53 Miss. 331; s. c. 24 Am. Rep. 699; Singer v. Rook, 84 Pa. St. 442; s. c. 24 Am. Rep. 204; Ridgley v. Howard, 3 H. & McH., 211; Hitz v. Jenks, 123 U. S. 298; Young v. Duvall, 109 U. S. 573, 577;

is not imposed on by third parties who may be interested in having the conveyance made; nor to see that the notary does his duty in making the privy examination of a married woman. But if he has knowledge of facts that should put him on inquiry, and remains silent and inactive on the subject, it is at his peril.2

$90. The Evidence Necessary to Overcome the Certificate.

The certificate constitutes the evidence of the execution of the deed to which subsequent purchasers must ordinarily look, and upon which they must rely, and the proof of fraud to destroy it must be clear, cogent and convincing; a mere preponderance of evidence will not suffice. The Hall v. Patterson, 51 Pa. St. 289; Pouns v. Williams, 48 Tex. 141; Downing v. Blair, 75 Ala. 216; Meyer v. Gosset, 38 Ark. 377; Baldwin v. Snowden, 11 O. St. 203; s. c. 78 Am. Dec. 303; White v. Graves, 107 Mass. 325; s. c. 9 Am. Rep. 38; Lane v. Schlemmer, 114 Ind. 296; s. C. 5 Am. St. Rep. 621; Rollins v. Menager, 22 W. Va. 461; Mays v. Hedges, 79 Ind. 288; Marsh v. Mitchell, 26 N. J. Eq. 497; Shields v. Netherlands, 5 Lea, 193; Smith v. Allis, 52 Wis. 337; Johnson v. Van Velsor, 43 Mich. 208; s. c. 5 N. W. Repr. 273; Moore v. Fuller, 6 Or. 272; Davis v. Kennedy, 58 Tex. 516; DeArnaz v. Escandon, 59 Cal. 486. See, however, Central Bank v. Copeland, 18 Md. 305; s. c. 81 Am. Dec. 597.

1 Pierce v. Fort, 60 Tex. 464; Henderson v. Smith, 23 W. Va. S29; s. c. 53 Am. Rep. 139.

2 Michener v. Cavender, 38 Pa. St. 334; s. c. 80 Am. Dec. 486; Pierce v. Fort, supra; Louden v. Blythe, 16 Pa. St. 532; s. c. 55 Am. Dec. 527; 27 Pa. St. 22; 67 Am. Dec. 442.

3 Barnett v. Preskauer, 62 Ala. 486; Jourdan v. Jourdan, 9 Serg. & R. 268; s. c. 11 Am. Dec. 724; Ford v. Osborne, 45 O. St. 1; Sisters v. Catholic Bishop, 86 Ill. 171; Hughes v. Coleman, 10 Bush, 248; Marston v. Brittenham, 76 Ill. 611; Grotenkemper v. Carver, 9 Lea, 280; Bailey v. Landingham, 53 Iowa, 722; Riecke v. Westenhoff, 10 Mo. App. 358; Young v. Duvall, 109 U. S. 573; Shelton v. Aultman, 82 Ala. 315.

A simple majority of witnesses will not answer. Strauch v. Hathaway, 101 Ill. 11; s. c. 40 Am. Rep. 193. The evidence must be clear and convincing beyond a reasonable doubt. Russell v. Baptist Union, 73 Ill. 337, 341; Cox v. Gill, 83 Ky. 669.

For cases in which the evidence was held sufficient to overcome the certificate, see Borland v. Walrath, 33 Iowa, 130; Pickens v. Knisely, 29 W. Va. 1; s. c. 6 Am. St. Rep. 622; Lowell v. Wren, 80 III. 238, quoted at length in Devlin on Deeds, §533. See also, Webb v. Webb, 87 Mo. 540; s. c. 4 West Repr. 618; Michener v. Cavender, 38 Pa. St. 334; s. c. 80 Am. Dec. 486; Schrader v. Decker, 9 Barr, 14; s. c. 49 Am. Dec. 538.

officer who certified the acknowledgment will not be heard to stultify himself by testifying that he did not take it, or that it was not properly taken as stated in the certificate.1 His certificate is entitled to at least equal credibility with his oath, and public policy cannot permit testimony so dangerous to the titles of the country. When the certificate is attacked as a forgery or fabrication, it is not sufficient that the officer who purports to have signed it, does not remember the transaction. The grantor is an interested witness, and his unsupported testimony is not sufficient to overcome the certificate; nor is the proof of any one witness, not supported by corroborating circumstances. The improbability of misconduct in a reputable officer, who is not a party to the transaction, and who acts under oath, and is liable to indictment for the misconduct, as well as under his bond, is greater than is that of falsehood or error in an interested witness.5

Johnston v. Wallace, 53 Miss. 331; s. c. 24 Am. Rep. 699; Stone v. Montgomery, 35 Miss. 83; Hightower v. Stiffler, 21 Md. 338; s. c. 83 Am. Dec. 593; Kennedy v. Ten Broeck, 11 Bush, 250; Central Bank v. Copeland, 18 Md. 305; s. c. 81 Am. Dec. 597; Harkins v. Forsythe, 11 Leigh,

294.

By force of certain statutes, the evidence of the officer is sometimes admitted to contradict the certificate. Garth v. Fort, 15 Lea, 683; Kilbourn v. Fury, 26 O. St. 153. The notary is a competent witness for the purpose of showing that the deed was duly executed, when its execution is denied. Jansen v. McCahill, 22 Cal. 563; s. c. 83 Am. Dec. 84,

593.

2 Wright v. Bundy, 11 Ind. 398; Tooker v. Sloan, 30 N. J. Eq. 394. That the officer is not certain that the person in whose name a deed is executed is the same person whose acknowledgment he took, and thinks such person was a smaller man, is not sufficient. Sisters v. Catholic Bishop, 86 Ill. 171.

3 Fitzgerald v. Fitzgerald, 100 Ill. 385; Canal Co. v. Russell, 68 Ill. 426; Lickman v. Harding, 65 Ill. 505; Homeopathic Co. v. Marshall, 32 N. J. Eq. (5 Stew.), 106.

4 Warrick v. Hull, 102 Ill. 280. And see, Strauch v. Hathaway, 101 Ill. 11; s. c. 40 Am. Rep. 193; Washburn v. Roesch, 13 Ill. App. 268; Young v. Duvall, 109 U. S. 573; Smith v. McGuire, 67 Ala. 34; Tett v. Rogers, 12 Bush, 564.

5 Russell v. Baptist Union, 73 Ill. 341. The unsupported testimony of the wife is insufficient. Knowles v. Knowles, 86 Ill. 1; Marston v. Brittenham, 76 Ill. 611; and see also, Cover v. Manaway, 115 Pa. St. 338;

$91. Amendment of the Certificate.

The right of an officer to amend his certificate of acknowledgment after the deed has been recorded is affirmed and denied by something like an equal weight of authority in the decided cases. In Texas, California and some other states, there are statutory provisions to the effect that where an acknowledgment has been properly made but defectively certified, any person interested may have an action in the proper court to obtain a judgment correcting the certificate.1 By the aid of such statutes a correction can be obtained when the officer neglects or refuses to make the proper certificate, or when by reason of death, removal or expiration of his term of office, the correction cannot be made by him. But the officer himself, it is held, may make the correction, or rather the correct certificate, at any time while he continues in office.2 He cannot, of course, correct the certificate, or give a new one, or perform any other official act in the premises after his term of office has expired. Where the officer neglected to sign the certificate of a married woman's acknowledgment, and the deed had been recorded for ten months, it was held that, unless the rights of third persons had intervened, the proper correction could be made, and at any time while he remained in office. So, where the officer neglects to affix his seal ;5 s. c. 2 Am. St. Rep. 552; Jarrell v. Jarrell, 27 W. Va. 743; Rust v. Goff, 94 Mo. 511; s. c. 13 West. Repr. 608; 7 S. W. Repr. 418.

1 Rev. Stats. of Tex. (1879), §4353; Johnson v. Taylor, 60 Tex▸ 360; Civ. Code of Cal., §1202; Hutchinson v. Ainsworth, 63 Cal. 286. In Tennessee the officer may correct his certificate by making oath in open court. Brinkley v. Tomeny, 9 Baxt. 275; Fall v. Roper, 3 Head. 485; Vaughan v. Carlisle, 2 Lea, 525; Stroud v. McDaniel, 12 Lea, 617; Garth v. Fort, 15 Lea, 683.

2 Jordan v. Corey, 2 Ind. 385; s. c. 52 Am. Dec. 517; Wannal v. Kem, 51 Mo. 150; Ralston v. Moore, 83 Ky. 571; Harmon v. Magee, 57 Miss. 410; Bowlby v. Thunder, 3 Atl. Rep. (Pa.), 588; Fall v. Roper, 3 Head. 485; Miller v. Powell, 53 Mo. 252; C. B. & Q. Ry. v. Lewis, 4 N. W. Repr. 842.

3 Gilbraith v. Gallivan, 78 Mo. 452.

4 Harmon v. Magee, supra.

Stoll v. Harrison, 73 Ind. 20.

See King v. Russell, 40 Tex. 124.

and to insert in the certificate that the married woman was examined without the presence of her husband.1

$92. Amendment of Certificate-Continued.

The right of the officer to make any correction whatever has been strenuously denied, but the reasoning in support of the objection is not satisfactory. It is said that the officer acts as under a special commission, and that when he has taken the acknowledgment and delivered the certificate, his power over the subject is exhausted, just as that of a notary who has returned a deposition to a court. But there is no special delegation of authority made, or necessary to be made, in order that an acknowledgment may be taken; no court to which the officer makes a return, and no analogy between the cases. It has also been said that if the officer has the right to amend the certificate by showing an acknowledgment, he has the right to contradict it by denying all acknowledgment. This, however does not follow, and such a right is not claimed for the officer. He will not be heard in court, nor permitted out of court, to impeach his certificate showing an acknowledgment, by de

1 Jordan v. Corey, supra.

As to admitting the certificate in evidence, although the mistake has not been corrected, see Merchant's Bank v. Harrison, 39 Mo. 433; Sharp v. Hamilton, 12 N. J. L. 109; Northrop v. Wright, 7 Hill, 476.

2 Wedel v. Harmon, 59 Cal. 507; First Nat'l Bank v. Paul, 75 Va. 594; s. c. 40 Am. Rep. 740; Merritt v. Yates, 71 Ill. 639; s. c. 22 Am. Rep. 128: Bours v. Zachariah, 11 Cal. 281; s. c. 70 Am. Dec. 779; Elliott v. Peirsoll, 1 Pet. 328; Enterprise Transit Co. v. Sheedy, 103 Pa. St. 492; s. c. 49 Am. Rep. 130; McMullen v. Eagan, 21 W. Va. 233; Devlin on Deeds. §§539-546; O'Farrall v. Simplot, 4 Iowa, 381.

3 Bours v. Zachariah. supra. In this case the court advances one idea worthy of note here, viz: that the human memory is uncertain, and that the allowance of such amendments subjects the titles of the country to the mercy of the officers' memories. But while memory allows facts to slip from its grasp, lapse of time does not usually generate a . recollection of facts that did not occur.

4 Bours v. Zachariah, supra. The opinion in this case is quoted at length in 1 Devlin on Deeds, §542. "The clerk does not contradict his own certificate by showing he did something more than appears from the record"-hence such amendment allowed. Ralston v. Moore, 83 Ky. 571.