$96. Protocols, Testimonios, and Public Acts of Sale. The system of titles in the early history of Texas, under the Mexican government, was essentially different from that which now prevails, and was similar, in some of its features to that in force in Louisiana. The protocol, or register of title issued by a commissioner, alcalde, or other officer of the government, constituted an archive of his office. These protocols were afterward required to be archived in the general land office of Texas, and may be proved by a certified copy, without accounting for the testimonio,2 which is a second original, issued to the grantee.3 A testimonio, to be admitted to record, must have due authentication attached, such authentication being the acknowledgment of his signature by the officer issuing it. Conveyances by public act before a judge or notary were included in the act of Dec. 20, 1836, and required to be proved and recorded.5 The omission to note the instrumental witnesses in an act of sale passed before a notary in 1835, did not render the instrument void. The office of assisting witnesses was to give to the signature and seal of the judge or alcalde who acted in the place of a notary, the force and effect which the seal and signature of the notary would have without witnesses. Copies of notarial acts were under the Mexican law regarded as originals. Under 8 without actual possession), and that taxes had been paid, it was held that the execution of the deed was sufficiently proved. Reid v. Howard, 9 S. W. Repr. (Tex.), 106; and see Shinn v. Hicks, 68 Tex. 277; s. c. 4 S. W. Repr. 486. i Paschal v. Perez, 7 Tex. 359. 2 Sheppard v. Harrison, 54 Tex. 91. 3 Blythe v. Houston, 46 Tex. 67; Titus v. Kimbro, 8 Tex. 210; McPhaul v. Lapsley, 20 Wall. 264. 4 Wood v. Welder, 42 Tex. 397; Hutchins v. Bacon, 46 Tex. 409; Fulton v. Bayne, 18 Tex. 50. And is admissible in evidence as a recorded instrument under the statute. Gainer v. Cotton, 49 Tex. 101. 5 Watson v. Chalk, 11 Tex. 89. Cowan v. Williams, 49 Tex. 381. 7 Martin v. Parker, 26 Tex. 253. of the two witnesses of assistance. rous v. McGrew, 16 Tex. 503; Ruis v. Chambers, 15 Tex. 586. Titus v. Kimbro, S Tex. 210. The title was not invalid for want the laws of Coahuila and Texas, in force in 1834, the signature of an officer before whom an instrument was executed, though not necessary to its validity, was essential to its character as a public or authentic act, capable of making proof of itself, without extrinsic evidence.1 $97. Validation of Acknowledgments. The subject of legislative validation of imperfect acknowledgments and records, has been already alluded to.2 Statutes of this kind intended to cure formal defects and irregularities, are a constitutional exercise of legislative power, though retrospective in operation. They are not void as impairing the obligation of contracts, but are void in so far as they impair vested rights, or affect the rights of third persons not parties to the instrument validated.6 1 Andrews v. Marshall, 26 Tex. 212. 5 The Act of 1839, in reference to recording, was applicable only to copies of instruments which at the date of the act remained in the public archives, and did not permit instruments then in private hands to be recorded on the faith of certificates made by officers of the pre-existing government. Lambert v. Weir, 27 Tex. 359. For further cases on this subject, see The State v. Sais, 47 Tex. 309; Byrne v. Fagan, 16 Tex. 891; Lee v. Wharton, 11 Tex. 61; Hatchett v. Connor, 30 Tex. 104; King v. Elson, 30 Tex. 246; Beatty v. Whitaker, 23 Tex. 526; Beaumont v. Preston, 65 Tex. 448; Jones v. Montes, 15 Tex. 351; Cavazos v. Trevino, 35 Tex. 134; State v. Cardinas, 47 Tex. 251; Word v. McKinney, 25 Tex. 258; Edward v. James, 7 Tex. 375. In Louisiana notarial titles were not required to be registered in the recorder's office prior to the Act of April 23d, 1853. Parish Board v. Edrington, 4 South. Repr. 574. 2 Ante, $22. The statutes on the subject are numerous. son's Am. Stat. Law, §§1585, 1626, 6511. See Stim 3 Cooley's Const. Lim., 462, 463; Raverty v. Fridge, 3 McLean, 230; Doe v. Nelson, Id. 383; Johnson v. Taylor, 60 Tex. 360; Green v. Abraham. 43 Ark. 420; Green v. Weissenberg, 57 Pa. St. 433; s. c. 98 Am. Dec. 237; Baker v. Westcott (Tex.), 11 S. W. Repr. 157; Jones v. Richardson, 44 Ark. 365, 473. 4 Barton v. Morris, 15 Ohio, 408; Watson v. Mercer, 8 Pet. 88; Barnet v. Barnet, 15 Scr z. & R. 72; s. c. 16 Am. Dec. 516; Hoskinson v. Adams, 77 Mo. 537; Howard v. Moox, 64 N. Y. 262; Foster v. Essex Bank, 16 Mass. 245; Buckley v. Earley, 72 Iowa, 550; s. c. 33 N. W. Repr. 769; Ross v. Worthington, 11 Minn. 438; s. c. 88 Am. Dec. 95. 5 Brinton v. Seevers, 12 Iowa, 89. 6 Cooley's Const. Lim., 472; Grove v. Todd, 41 Md. 633; s. c. 20 Am. Rep. 76; Thompson v. Morgan, 6 Minn. 292; Green v. Drinker, 7 Watts The general rule is that statutes of this kind are remedial, and will be liberally construed. Thus, although the statute only provided that deeds defectively recorded might be used in evidence, yet it was held to impart to the record the effect of notice from the date of the statute.2 In some instances, however, a stricter construction has been applied. Thus, a statute of North Carolina validating certain records of deeds "which shall have been proved by one or more of the subscribing witnesses thereto," was held not to embrace a deed acknowledged by the grantor.3 Subsequent purchasers are bound to take notice of the operation of a validating statute. Such a statute will not take effect upon an acknowledgment as to which there has already been a judgment, although the case be still pending on appeal;5 nor upon a judgment; but it will operate upon an acknowledgment between the date of suit filed and the date of judgment.7 & S. 440; Newman v. Samuels, 17 Iowa, 528; Southard v. Cent. R. Co., 26 N. J. L. 13; Russell v. Rumsey, 35 Ill. 362. A statute providing that deeds theretofore made by husband and wife should not be held defective, because of any informality or omission in the acknowledgment," was held unconstitutional. Alabama Ins. Co. v. Boykin, 38 Ala. 510. But where the certificate stated that the wife was examined "separate" from her husband, instead of "privily and apart," this was held cured by a validating statute. McDannell v. Horrell, 1 Tex. Un. Cas. 521. Even the expiation of the deed by the officer has been held but a matter of form. Cox v. Gill, 83 Ky. 669; Dentzel v. Waldie, 30 Cal. 193. 1 Butler v. Dunagan. 19 Tex. 565; Waters v. Spofford, 58 Tex. 115; Fogg v. Holcomb, 64 Iowa, 621; s. c. 21 N. W. Repr. 111; Carson v. Raisback, 3 Wash. Ter. 168; s. c. 13 Pac. Repr. 618. 2 Fallass v. Pierce, 30 Wis. 442. 3 Denn v. Reid, 10 Pet. 524. Journeay v. Gibson, 56 Pa. St. 57. 5 Wright v. Graham, 42 Ark. 141; Gaines v. Catron, 1 Humph. 514; and see Galt v. Dibrell. 10 Yerg. 147. 6 Ralston v. Moore, 83 Ky. 571. 7 Green v. Abraham, 43 Ark. 420; Johnson v. Richardson, 44 Ark. 365. For other cases on the subject of validation, see post, §120; Stroud v. McDaniel, 12 Lea, 617; Shonk v. Brown, 61 Pa. St. 320; Blount v. Janesville, 31 Wis. 648; Rich v. Flanders, 39 N. H. 304; Dengenhart v. Cracraft, 36 O. St. 549; Nolan v. Grant, 53 Iowa, 392; Dentzel v. Waldie, 30 Cal. 142; Webb v. Den, 17 How. 578. Where each of two conflicting deeds of the same property was recorded on a defective acknowledgment, it was held that the effect of a subsequent validating act was to record both deeds at the same instant of time, and hence left them to operate as at common law, by which the one first executed would pass the title. Deininger v. McConnell, 41 Ill. 228. But for case where, under the operation of a validating statute, a deed was held as having been properly acknowledged and recorded originally, see East v. Pugh, 71 Iowa, 162; s. c. 32 N. W. Repr. 309. Defects of substance in the body of the deed, held not cured by a validating statute. Arginsinger v. Cline, 69 Iowa, 435. The acknowledgment of a deed conveying land in Texas was made before a notary public in Ohio in 1841. At that date there was no law of Texas authorizing a notary public in one of the United States to take acknowledgment of deeds conveying lands in Texas. In 1874 an act was passed providing that instruments which had been properly acknowledged out of Texas, and in any state of the United States, before an officer authorized to take such acknowledgment by the laws existing at the date of the act, should be held to have been duly acknowledged, and that if also registered, they should be considered duly registered with the "full effects and consequence of existing laws." Paschal's Dig., art. 7414a. By the law in force at the date of that act (1874), an acknowledgment taken before a notary public in another state was legal. Pasch. Dig., art. 7418. Held, that the validating act cured the original defect of want of power in the notary, and also made valid the original registration. Baker v. Westcott, 73 Tex. 129, 131; s. c. 11 S. W. Repr. 157. 160 CHAPTER 4. ACKNOWLEDGMENT BY MARRIED WOMEN. $98. Acknowledgment of married women. 99. 100. Distinctive features of the law. Modern changes in the law. 101. Early and later theories of the law. 102. Continued-The modern view. 103. The statutory requisites. 104. The separate examination. 105. Certifying the privy examination. 106. Explanation of the deed. 107. Certifying the explanation. 108. The voluntary execution. 109. Certifying the voluntary execution. 110. The wish not to retract. 111. Substantial compliance. 112. Joint certificates. 113. Identity of the wife. 114. Community property. 115. Relinquishment of dower. 116. Acknowledging deed with blanks. 117. Wife's power of attorney. 118. Wife acting as feme sole. 119. Re-acknowledgment and ratification. 120. Validating deeds of married women. 121. Impeachment of certificate by the wife. $98. Acknowledgment of Married Women. The object of requiring a separate examination with certificate thereof where a married woman acknowledges a deed, is said to be two-fold; not only to protect the wife from compulsion of the husband, or ignorance of the contents of the deed, but also to facilitate the conveyances of estates of married women, and to secure and perpetuate evidence upon which innocent grantees as well as subsequent purchasers may rely. The only mode by which a 1 Hitz v. Jenks, 123 U. S. 298; s. c. 8 Sup. Ct. Repr. 143, citing Laurence v. Heister, 3 Har. & J. 371, 377. |