nying the truth of what he has certified.1 The case is where the certificate does not show an acknowledgment; where, being deficient in law, it fails of effect, and there is nothing, legally, to be contradicted; where it is apparent that the duty imposed upon the officer by the request of the grantor acknowledging has not been properly discharged. That there is error in the certificate is patent, except on the theory that the grantor has fraudulently requested the officer not to take his acknowledgment properly, but to take an improper acknowledgment, or to certify it insufficiently. The rights of third persons that may have intervened are not to be affected by the amendment; and the right of any other person to object to a second or corrected certificate cannot properly be greater than his right to have objected to the issuance of a correct certificate in the first instance. Often the deed is attested by subscribing witnesses, and is delivered to the grantee unacknowledged, and without the proof for record having yet been made. The grantee may have it proved for record at any time thereafter;2 and that he must apply to the officer a second time to get a proper certificate of the proof made out, and that he must have his deed recorded a second time in order to get a proper record of it, are matters with which the grantor has no concern. The presence, at the writing out of the certificate, of the person acknowledging or the witness proving the deed, is not required by law, and, therefore, no necessity exists for again bringing the party before the officer to repeat his former statement. A recording officer, it is held, has the right to correct a mistake made by him in recording the deed, and since all correcStone v. Montgomery, 35 Miss. 83, and other cases cited in note 1, $90, ante.

3

2 It is the duty of the purchaser, not of the vendor, to have the deed probated. Carter v. Corley, 23 Ala. 612.

3 Harmon v. Magee, 57 Miss. 410.

4 Baldwin v. Marshal. 2 Humph. 116; Chamberlain v. Bell, 7 Cal. 292; s. c. 68 Am. Dec. 260.

tions must be made subject to the rights of third persons that may in the meantime have accrued on the faith of the record as at first made, it would seem that the acknowledging officer has an equal right to correct mistakes in his part of the record.1

$93. Amendment of Certificate-Married Women.

In those states, about one-half in number, where a privy examination of married women is required, if the defect in the certificate be that it fails to show the requisite separate examination and consent of the wife, the objection to an amendment of such certificate presents at least a debatable question. The principles of equity have been somewhat stretched in holding that a married woman who appears before an officer and makes what she then understood to be a sufficient acknowledgment, can afterwards take advantage

' Mr. Martindale in his work on Conveyancing (§292), doubts that a second registration of the deed would be valid without legislative sanction, because a question might arise as to which record is to be held as imparting the notice, and because the searcher, finding the first record, might not be bound to continue his search. He, therefore, suggests the record of a new deed. The searcher, however, would be no more likely to find the second deed than to find the second record of the first deed. "Every consideration of the subject and construction of the statute founded in the convenience or inconvenience, real or supposed, of searching the records, * is wholly impertinent." Dixon, C. J., in Fallas v. Pierce, 30 Wis. 442. One who searches and actually reads or sees the first record, although the acknowledgment to it be defective, would be thereby put on inquiry and charged with notice. Walter v. Hartwig, 106 Ind. 123; s. c. 3 West. Repr. 881; Musgrove v. Bosner, 5 Or. 313; s. c. 20 Am. Rep. 737; Hastings v. Cutler, 4 Foster, 481. The necessity for the new record is to charge with constructive notice those who do not actually examine the records. A re-record of the deed, and not an alteration of the record as first made, is the proper practice, in order that the date of the correct record may clearly appear. A note should be made in the margin of the first record, showing where the new record may be found. King v. Bales, 44 Ind. 219.

Where the wife makes a new acknowledgment, unless the rights of third parties have intervened, it will relate back. Cahall v. Mutual Assoc., 61 Ala. 232. But not as against such rights. Coal Creek Co. v. Heck, 83 Tenn. (15 Lea), 497, 513; Fall v. Roper, 3 Head. 486; Harrison v. Wade, 3 Cold. 505.

In Tennessee it has been held that the deed of a woman, made while she was sole, cannot be recorded after her marriage without a separate acknowledgment. Johnson v. Walton, 1 Sneed, 258.

of the manner in which it was taken, and avoid her deed for want of a full compliance with the particulars of the law in the matter of the acknowledgment;1 but no equity whatever exists in her favor where the acknowledgment was in fact properly made, and the defect is merely that the officer, through mistake or oversight, failed to certify it as required by law. In such latter case, the question is whether the wife actually made the proper acknowledgment. This fact the law requires to be shown by the certificate of the officer, and the objection is that having issued a certificate that fails to show it, he should not be permitted to give another and different one. It is not reasonable to presume that the officer would have intentionally given a certificate that is a nullity, but rather that if the proposed acknowledgment had actually failed in any essential particular, he would have declined to certify an acknowledgment, and that the defect in the certificate is the result of clerical oversight. Nor is there, in reason, any stronger presumption in favor of the truth of the invalid and abortive certificate than in favor of an amended or second certificate, showing that that was properly done2 which the grantor's appearance before the officer evidently contemplated should be done. If the officer be false, both certificates are unreliable; but if he be truthful, as the law presumes, and as the parties must be held to have presumed when entrusting the business to him, the latter certificate must be held the correct one.3

1 That the feme covert received the purchase money, used it in improving her separate property, and had acquiesced in the sale by permitting her vendees to improve the land; held, not to estop her or her heirs from recovering the land, where the acknowledgment of her deed was not in compliance with the statute. Johnson v. Bryan, 62 Tex. 623; Berry v. Donley, 26 Tex. 745; Coal Co. v. Pasco, 79 Ill. 170; Huffman v. Huffman. 118 Pa. St. 458; s. c. 10 Cent. Repr. 908. The privy examination is now abolished by statute in Illinois and many other states. See post, ch. 4.

2 Jackson v. Gilchrist, 15 Johns. 89.

3 The officer may be compelled by mandamus to execute a proper certificate if the facts exist that warrant it. Wannall v. Kem, 51 Mo. 151.

In Elliott v. Piersoll, 1 Pet. 328, the denial of the officer's right to amend seems to be placed, in part at least, on the ground that in this

$94. Correction of Certificates of Acknowledgment by the Courts.

As already mentioned, there are in some states statutory provisions for correcting defective certificates of acknowledgment by special suit for that purpose.1 These statutes usually provide only for cases where the acknowledgment was in fact properly taken. If not actually taken as required by law, a court of equity has no power to correct the error, though it may have been the result of mistake.2 And it is held generally that courts of equity have no power to correct any mistake of the officer in the certificate of acknowledgment, but there are decisions to the contrary where the mistake is of a formal character. Thus where the same person was commissioner of deeds for two states, and described himself in the certificate as commissioner for the wrong state, it was held that equity would relieve against the mistake.

matter he acts ministerially, and not judicially; while in Wedel v. Harmon, 59 Cal. 507, the right is denied because he acts judicially, and not ministerially.

1 Ante, $91; Johnson v. Taylor, 60 Tex. 360. So, where an instrument is entitled to be proved for record, an action may be had for a judgment proving it. Rev. Stats. of Tex., §4354; and the cause of action under that statute held transitory aud not local as to venue. Pegram v. Owens, 64 Tex. 475. In some states there are statutory provisions for compelling an acknowledgment, where the grantor refuses to make it; and for a provisional record of the deed, without acknowledgment, pending such proceedings, or pending proceedings for proof of the instrument. Gen. Laws of N. H. (1878), ch. 135, §11; Rev. Laws of Vermont (1889), §1944; Stimson's Am. Stat. Law, §§1631, 1632.

2 Proof that the wife in fact understood the character of the instrument signed by her; that she was not induced to sign it by the influence of her husband; that she was not under his control, but was, rather than he, the business manager and trader in the marital partnership; that for a long time she continued satisfied with the conveyance, and hat the consideration for the land was used for the support of herself and family, held not to authorize a court to give effect to her deed where the separate examination was not had. Berry v. Donley. 26 Tex. 737. And see Goss v. Furman, 21 Fla. 406; post. §§98, 121; Huffman v. Huffman, 118 Pa. St. 458; s. c. 12 Atl. Repr. 308.

3 Eyster v. Hathaway, 50 Ill. 521; s. c. 99 Am. Dec. 537; Shryer v. Nickell, 55 Mo. 264; McBride v. Wilkinson, 29 Ala. 662, and cases cited in note to Jordan v. Corey, 52 Am. Dec. 517.

Simpson v. Montgomery, 25 Ark. 365; s. c. 99 Am. Dec. 228.

§95. Acknowledgment of Ancient Deeds.

For the acknowledgment and proof of ancient deeds the law does not require as strict a showing as in case of recent ones. Thus where the certificate of acknowledgment to an ancient deed recited that the grantor and his wife came before the officer to acknowledge the deed, it was held to import also that they did acknowledge it, and that it would be presumed that the wife was privily examined. Where the deed is thirty years old, it is admissible in evidence without proof of its execution; the witnesses are presumed dead;* and where the deed had been registered for twenty years on a defective certificate of acknowledgment, its probate was conclusively presumed to be proper. The certificate of record endorsed on an ancient deed is sufficient evidence that it was recorded at the time stated therein. The presumption of due execution does not attach where a certified copy is offered in evidence; at least not without proof of the antiquity of the record as well as of the deed, or other corroborating evidence of age.8

1 Coulson v. Walton, 9 Pet. 62. The presumptions of regularity and due execution should be indulged "to repair the ravages of time." Howard v. Colquhoun, 28 Tex. 134, 145.

2 Jackson v. Gilchrist, 15 Johns. 89.

8 Applegate v. Lexington, 117 U. S. 256; 373; Caruthers v. Eldredge, 12 Gratt. 670; N. W. Repr. 659; Dodge v. Briggs, 27 Fed. portation Co. (Ala.), 3 South. Repr. 475.

Harland v. Howard, 79 Ky. King v. Merritt (Mich.), 34 Repr. 160; Woods v. Trans

4 Winn v. Patterson, 9 Pet. 663; Barr v. Gratz, 4 Wheat. 215.

5 Stroud v. McDaniel, 12 Lea, 617. See Riecke v. Westenhoff, 10 Mo. App. 358.

The presumption will not be indulged where the deed is less than twenty years old. England v. Hatch, 80 Ala. 247.

Lapse of time will not cure a defective certificate relating to trusts. Fell v. Young, 63 II. 106.

742.

6 Applegate v. Lexington Mining Co., supra; s. c. 6 Sup. Ct. Repr.

7 Patterson v. Collier, 75 Ga. 419.

3 Brown v. Simpson, 67 Tex. 225; s. c. 2 S. W. Repr. 644. Where a deed had been recorded in a wrong county, a copy of the record could, by a party who had seen the original, be made to serve as an examined or sworn copy; and it being shown that the officer who took the acknowledgment and the clerk who recorded it were dead, and that the land had been claimed under the deed from its date (but