mitted that the decision is not in accord with the tenor of strict construction usually given to matters of this kind.1

$127. Witnesses Defined-When Disqualified.

In Tennessee the words "subscribing witnesses" have been defined to mean that the persons who witness a deed must either have seen the maker sign, or heard him acknowledge his signature; and they must themselves have signed as witnesses in the presence of the maker, by his request or assent, or if they signed as witnesses in his absence, they must have been specially requested by him to attest the instrument as witnesses.2 That an attesting witness is interested does not usually invalidate the record,3 especially if it be a subsequently acquired interest. Under some of the statutes, however, the witness required to a deed must be without a direct, certain legal interest in the land. The

1 Coryelle v. Holmes, 3 Tex. Law Jour. 481. Judge Quinan rendering the opinion says: "And we are at a loss to conceive why other proof should be required to register than to admit in evidence, or what additional efficacy it would impart to the notice which it was the purpose of the registry to effect, that the deed bore upon its face the attestation of a dozen dumb subscribing witnesses." The ruling as to this deed is affirmed in Holmes v. Coryelle, 58 Tex. 685, and again followed in another case arising under the same statute, in Wilson v. Simpson, 68 Tex. 312. But as the decision in the first case was measurably rested on the phraseology of the statute under construction, and also on the effect of a subsequent validating statute, these cases cannot be regarded as settling the principle contended for. Proof by one witness is sufficient under the Miss. statute. Shirley v. Fearne, 33 Miss. 653; s. c. 69 Am. Dec. 375. So, though the statute requires two witnesses, proof by one is held sufficient where the statute is silent on this point. McGowan v. Reid, 27 S. Car. 262. Where one of the two witnesses, though present at the execution of the deed, did not sign until long afterwards, this was held sufficient in equity. Young v. Young, 27 S. Car. 201. 2 Tate v. Lawrence, 11 Heisk. 503, citing 2 Heisk. 405.

3 Jones v. Ruthin, 3 Dev. 404; Johnson v. Turner, 7 Ohio, 216; and see also McKinnon v. McLean, 2 Dev. & Bat. 79, 85; Welsh v. Lewis, 71 Ga. 387.

4 Carter v. Corley, 23 Ala. 612. A corporation mortgage may be proved for record by the president or secretary, if signed by them. For this purpose they may be regarded as subscribing witnesses. Coe v. N. J. Ry., 31 N. J. Eq. 105.

Morrill v. Morrill, 60 Vt. 74; Coleman v. State, 79 Ala. 49; Day v. Adams, 45 Vt. 510; Child v. Baker, 24 Neb. 188; s. c. 38 N. W. Repr. 769.

test of competency is the ability of the witness at the time and place of attestation to testify as to the deed.1 In most of the states the husband and wife are not competent as subscribing witnesses to each other's deed. An attesting witness is not thereby disqualified as an officer from taking the grantor's acknowledgment to the instrument.3 It has been held in North Carolina that where a deed is proved for record by an incompetent witness, the record nevertheless imparts notice.*

$128. The Certificate and Affidavit-Certainty Required.

It is not necessary that the witness should subscribe his name at the bottom of the officer's certificate of proof, as in case of a formal affidavit; nor that the officer should append a jurat. If this be done, however, it will not vitiate the certificate. A certificate that the instrument was "duly proven," is not sufficient; and so it will not suffice for the

1 Cairrell v. Higgs, 1 Tex. Un. Cas. 56; Tillotson v. Pritchard, 60 Vt. 94; Hordin v. Sparks, 70 Tex. 429; s. c. 7 S. W. Repr. 769; Carter v. Campion, 8 Conn. 549.

2 Tillotson v. Pritchard, 60 Vt. 94. In this case the deed was executed in Minnesota where the wife was competent as an attesting witness, and such attestation was held sufficient when questioned in the courts of Vermont, where she was not competent.

3 Conley v. Campbell, 78 Ga. 369; Baird v. Evans, 58 Ga. 350. For other Georgia cases as to attestation by witness and officer, see Williamson v. Moore, 68 Ga. 585; James v. Penny, 76 Ga. 797; Hearn v. Smith, 59 Ga. 704.

4 The registration, no matter on what proof made, gives the notice designed for creditors and purchasers." Ruffin, C. J., in McKinnon v. McLean, 2 Dev. & Bat. 79, 85. It may be remarked that this kind of reasoning dispenses with probate and acknowledgment altogether. Where one of the two witnesses was the grantor's wife, the record was held of no effect, in Carter v. Campion, 8 Conn. 549; and see also, Winsted Sav. Bank v. Spencer, 26 Conn. 194.

5 Dana v. The U. S. Bank, 5 Watts & Serg. 223: Whitney v. Arnold, 10 Cal. 531. The certificate in this last case is given in full in 1 Devlin on Deeds, §513, note.

6 Fleming v. Reed, 37 Tex. 152; Ross v. McLung, 6 Pet. 283. Except in North Carolina, where the certificate is not required to be recorded where the proof is made before a home state officer or court. Starke v. Etheridge, 71 N. C. 240; Love v. Harbin, 87 N. C. 253.

certificate to show only that the witnesses acknowledged or proved their own subscription; nor will a bare statement that they saw the grantor's name subscribed for the purposes therein mentioned. A failure of the witness to state that he was a witness when the instrument shows him to be such, is immaterial.3 Where the certificate of an ancient deed did not state that the witness was sworn, that matter was presumed. Where a witness who had signed by making his cross-mark, swore "to the best of his knowledge and The officer merely noted "jurat" opposite the name of the witness "as a memorial of the fact" that proof for record had been made by the witness. The court, while conceding that it would be the better practice to formally make out a certificate of the probate, held that to allow the objection would shake the titles of a large portion of the land owners of the state owing to the untechnical form in which these probates are usually made. Bynum, J., in Starke v. Etheridge, supra.

The certificate of probate was not required to be made out and recorded in South Carolina prior to the act of 1872. Hillegas v. Hartley, 1 Hill Ch. 106; Monks v. Jenkins, 2 Hill Ch. 9; Lamar v. Raysor, 7 Rich. 509; Wood v. Reeves, 23 S. Car. 382.

1 McCorkle v. Amarini, 12 Ala. 17. The certificate must show that the witness was sworn. Jackson v. Livingston, 6 Johns. 149; Jackson v. Osborn, 2 Wend. 555; Bradstreet v. Clarke, 12 Wend. 673; Norman v. Wells, 17 Wend. 137; Van Cortlandt v. Tozer, 17 Wend. 338; s. c. 20 Wend. 423; McIntyre v. Kamm, 12 Or. 253; s. c. 7 Pac. Repr. 27. In this last case it is said that the ruling in Hunt v. Johnson, 19 N. Y. 292, to the effect that it would be presumed that the witness was sworn, is not sound in principle, nor in accord with the practice in New York prior to the statute.

For cases giving certificates of proof held sufficient, see Myrick v. McMillan, 13 Wis. 188, 191; Wilson v. McEwan, 7 Or. 87, 104; Talbert v. Dull, 70 Tex. 675; s. c. 8 S. W. Repr. 530.

The witnesses to a deed of confirmation need not swear that the grantor was the one who signed the deed intended to be confirmed. Crockett v. Campbell, 2 Humph. 411.

Under former statutes of Virginia a chattel mortgage, admitted to record on the oaths of only two subscribing witnesses was void even as against creditors with notice. Hodgson v. Butts, 3 Cranch, 140.

In Florida proof by a subscribing witness to a mortgage, that he saw the mortgagor sign the instrument, and acknowledge that he did so, is not sufficient to authorize its admission to record. Edwards v. Thom (Fla.), 5 South. Repr. 707.

2 Fipp v. McGehee, 5 Port. 413.

3 Carpenter v. Dexter, 8 Wall. 513.

4 Hunt v. Thompson, 19 N. Y. 279.

This case is justly critized in

McIntyre v. Kamm, 12 Oregon, 253. The certificate must show the witness was sworn. See cases cited in note 1, ante.

belief" that he signed the instrument as a witness, and that the grantor acknowledged that he signed it, this was held. sufficient. Proof that the witness saw a firm name signed without stating which member signed it, is not sufficient.2 Where the witness testified that he would not have attested the deed unless the grantor had acknowledged it, this was held sufficient proof of acknowledgment. A statement that the witness saw the grantor sign or heard him acknowledge, was held bad for uncertainty. Where the statement was that the grantor signed and delivered the instrument, and that the witness signed at his request, but there was no statement that he saw the grantor sign, it was held to sufficiently import that fact.5 A bare statement that the signature of the grantor is in his handwriting is not usually sufficient, the witness' means of information should be stated.6

$129. Other Statutory Requisites.

Where the statute requires the proof to show that the witness knew the grantor, a statement in the certificate that the witness saw the grantor sign the deed is not sufficient proof of identity. Unless the statute specifically requires 1 Stramler v. Coe, 15 Tex. 211. See post, $130.

2 Baldwin v. Richardson, 33 Tex. 16.

3 2 Wash. (Va.), 58.

Harvey v. Cummings, 68 Tex. 599; s. c. 5 S. W. Repr. 513. The learned judges who so ably decided the earlier cases by this court, cited ante, §119, were no longer on the bench, elsewise a construction would certainly have been found whereby to make effectual the certificate in this last case. Compare this case with the one cited in the next note below where, in addition to the uncertainty as to which method afforded the witness his means of knowledge, there was no direct affirmation as to either method, and yet the certificate was sustained. 5 Stinnett v. House, 1 Tex. Un. Cas. 484.

Discrepancy in the name of the witness as signed to the deed, and as stated in the certificate, held immaterial, see Waters v. Spofford, 58 Tex. 115; Page v. Arnim, 29 Tex. 53.

6 The proof should show upon what grounds the witness founds his opinion. Carrier v. Hampton, 11 Ired. 307; Jackson v. Waldron, 13 Wend. 178.

7 Jackson v. Gould, 7 Wend. 366; Jackson v. Osborn, 2 Wend. 555; s. c. 20 Am. Dec. 649; Harrison v. Wade, 3 Cold. 505; Averill v. Wilson, 4 Barb. 183.

3

the officer to certify that the witness making the proof is personally known to him, this is not necessary; and where it is required, the precise language of the statute need not be used. What shall be sufficient proof that the person offering himself is a subscribing witness, is left to the discretion of the officer. The grantor's acknowledgment to a witness that he had executed the deed is equivalent to an original execution in the presence of the witness. In Alabama it is held unnecessary that the proof show that the witness saw the instrument signed and delivered on the day the same bears date, although this latter is required by the statute.5 But the certificate must comply with the statute of that state in showing that the witnesses signed in the presence of the grantor and of each other. Under an early Texas statute, proof by witnesses who were not subscribing witnesses, was held sufficient, although this was conceded to be a departure from the literal import of the terms of the statute. Where the statute required the proof to show the delivery of the deed as well as its signing and sealing by the grantor, an omission to state the delivery has been held fatal.8

1 Johnson v. Prewitt, 32 Mo. 553; Parker v. Phillips, 9 Cow. 94. Where the certificate did not show that the officer knew the witness, the court intended that he had satisfactory evidence of the person being the subscribing witness. Wood v. Harrow, 11 Johns. 434 (A. D. 1808). 2 Sheldon v. Stryker, 42 Barb. 284; s. c. 27 How. 387.

3 Kellogg v. Vickory, 1 Wend. 406.

4 Parker v. Phillips, 9 Cow. 94. It is not necessary that the grantor sign the deed in the presence of both the witnesses. Little v. White (S. Car.), 7 S. E. Repr. 72.

5 Harbinson v. Harrell, 19 Ala. 753; Parsons v. Boyd, 20 Ala. 112. And see, as to a similar provision in the Tennessee statute, Lea v. Polk County, 21 How. 493. Such expressions are doubtless written in the statutes only for the sake of euphony.

6 Dolin v. Gardner, 15 Ala. 758. See further as to proof by witnesses, Simpson v. Simpson, 93 N. C. 373; Davis v. Higgins, 91 N. C. 382; Secrest v. Jones, 21 Tex. 121; Howard v. Colquhoun, 28 Tex. 134; Waters v. Spofford, 58 Tex. 115.

7 Paschal v. Perez, 7 Tex. 348; McKissick v. Colquhoun, 18 Tex. 149. 8 Rushin v. Shields, 11 Ga. 636; s. c. 56 Am. Dec. 436; Eaton v. Freeman, 63 Ga. 538. So the proof must show the signing by the other witnesses, if that be required. Allen v. Holden, 32 Ga. 423.