[Harrison v. Simons.] MANNING, J.-The persons named in the deed as grantors, by signing and sealing it, declare and make known, to all whom it may concern, that they respectively grant, bargain, enfeoff, and convey the land therein described, to Thomas J. Harrison; and that they covenant with him that they are seized in fee, and have a right to sell and convey the land, and that they will warrant and defend the title. But what is declared, or certified, by the signature and seal of A. L. Barnett? Can they import anything else than is contained in the deed-to-wit, that the persons described in it as grantors convey and covenant as above? It is not set forth in the deed that A. L. Barnett himself does, or shall do, any of these things; and we cannot attribute any efficacy, or meaning, to his mere signature and seal, apart or different from what is expressed in the instrument to which they are affixed. This is, in substance, what was decided by the Supreme Court of the United States in Agricultural Bank v. Rice et al. 4 How. 225. Property belonging to married women had been bargained to purchasers, by an executory contract, signed and sealed by the husbands and wives, jointly, and describing them all as parties to it; but the deed subsequently executed set forth that the husbands, in right of their wives, conveyed the property, in consideration of $40,000, to the grantees. This deed was signed and sealed by the husbands and wives jointly; and they all acknowledged, the married women separate and apart from their husbands, that they signed, sealed, and delivered it, as their act and deed. TANEY, C. J., delivering the opinion of the court, said: "It is altogether the act of the husbands, and they alone convey. Now, in order to convey by grant, the party possessing the right must be the grantor, and use apt and proper words to convey to the grantee; and merely signing, sealing, and acknowledging an instrument, in which another person is grantor, is not sufficient." The deed, in the cause pending before us, can, therefore, operate only to convey the title that was in the persons who are the grantors in the deed, and not the title of A. L. Barnett. 2. To the deed is attached a certificate, purporting to be that of a notary public, setting forth that the execution of it by the grantors was proved by the subscribing witness, Blair, who also deposed, in the words of the form in section 1549 of the Revised Code, "that he attested the same in the presence of the grantors, and of the other witness, and that the other witness subscribed his name as a witness in his presence;" but the notarial seal is not to this certificate. The deed was recorded, within twelve months after [Harrison v. Simons.] the execution of it, as appears by a certificate of the proper judge of probate. The deed, with these certificates, being offered in evidence by plaintiff, was objected to, and excluded, upon the specific grounds, "that one of the subscribing witnesses, to-wit, Thomas Morrison, signed it only by his mark, as set forth on the deed, and that the deed was not executed, or proven to have been signed, by two witnesses, as required by sections 1, 1535, 1544, 1549, and 1550, of the Revised Code." The case presents the very important question, for the first time raised in this court, whether or not the sections of the Revised Code referred to, relating to the proof by subscribing witnesses of a deed or conveyance of real estate, do not require that they shall be able to write, and shall write their names thereto. Section 1, defining words used in the Code, enacts: "Signature,' or 'subscription,' includes mark, when the person cannot write; his name being written near it, and witnessed by a person who writes his own name as a witness." Section 1535 enacts: "Conveyances for the alienation of lands must be * * * signed at their foot by the contracting party, or his agent having a written authority; or, if he is not able to sign his name, then his name must be written for him, with the words, 'his mark' written against the same, or over it; the execution of such conveyance must be attested by one, or, where the party cannot write, by two witnesses, who are able to write, and who must write their names." A casual reading might induce the supposition, that it is only when the contracting party who signs is unable to write, that the subscribing witness must be one who can write, and does write his own name. But we are not justified in so construing these sections. The qualification prescribed at the end of section 1535 is as much required of the one witness, who must attest the signature to a conveyance inter vivos, of a grantor who writes his own name, as of the two witnesses who attest the execution by a grantor who cannot do so; and it seems plainly to result, that, whether the law requires such an instrument to be attested by one or more subscribing witnesses, only those are competent to attest it who are able to write their names. And the two witnesses that are necessary to entitle a recorded conveyance to be read in court as evidence, without further proof, according to section 1550, which is a part of the same chapter concerning "Conveyances," to which section 1535 belongs, must be such as are qualified according to this section. The single attestation of Blair is sufficient to give validity to the deed in question, as that of the real grantors, but not to entitle [Harrison v. Simons.] it to be read in evidence, without other proof of its execution. Whether, however, the deed in this case was properly ruled out, or not, remains yet to be determined. Section 1544 provides, that conveyances, "acknowledged or proven according to law, and recorded within twelve months from their date, may be received in evidence, in any court, without further proof." Section 1549 prescribes the form of proof for a deed attested by two witnesses; and the certificate to this deed is in that form, and shows that the proving witness, Blair, "attested the same in the presence of the grantors, and of the other witness; and that the other witness subscribed his name as a witness in his (Blair's) presence." The certificate being, therefore, in compliance with the statute, and by a competent officer, must be held, in the absence of any contrary evidence, to prove-what might not have been inferred from, but is not irreconcilable with the form of Morrison's attesting signature-that he wrote it himself. If Blair deposed only that Morrison made his mark to the deed, the notary ought not to have certified that Blair deposed that Morrison "subscribed his name" to it. We cannot presume that the notary violated his duty in this particular. 3. The objection to the certificate of May, a notary of this State, because his notarial seal is not attached, is not well taken. His act is one of those which a justice of the peace (and a notary, according to the constitution of 1867-8, was ex officio a justice of the peace), and other officers, might do without a seal; and one of those which, according to clause 1, of section 1083, and to section 1090 of the Revised Code, it is intended that a notary may perform without authentication by his seal of office.-See, also, Act No. 23, of January 18th, 1866; and Powers v. Bryant, 7 Porter, 10, 17. The exclusion of the deed from the jury as evidence was, therefore, an error. Presuming the other points made in this cause will not be presented again, we do not consider it necessary to discuss them now. The judgment of nonsuit in the court below is here set aside, and the cause remanded. VOL. LV. [Alexander et al. v. Caldwell et al.] Alexander et al. v. Caldwell et al. Bill in Equity for Reformation and Foreclosure of Mortgage. 1. When mortgagee is purchaser for a valuable consideration.-When a mortgage is given to secure the payment of a pre-existing debt, the mortgagee cannot claim protection against older equities as a bona fide purchaser for a valuable consideration. 2. Declarations of grantor; when admissible against grantee.-The declarations or admissions of the grantor, in disparagement of his own title, are competent evidence against a subsequent grantee, but not against a prior grantee. 3. Reformation of written contracts in equity. When, by mistake, a written contract fails to express any material term of the actual agreement which the parties intended to make, a court of equity will reform it, and make it express the true agreement; but the mistake must be shown by clear and satisfactory proof; and if it is uncertain in any material respect, the uncertainty is fatal to relief, although the court may see that great wrong has been done. 4. Reformation of mortgage refused, notwithstanding mistake, on account of uncertainty of proof.-Where a mortgage purported to convey eight hundred acres of land, part of a large plantation, but, by a misdescription of government numbers, conveyed three hundred and twenty acres to which the mortgagor had and claimed no title; held, that a reformation was properly refused, although there was an evident mistake, because it was uncertain what lands were intended to be conveyed instead of those described by mistake. APPEAL from the Chancery Court of Wilcox. The bill in this case was filed on the 7th of January, 1872, by John D. Alexander, Fred. A. McNeill, John T. Hollis, and Alexander C. Davidson, against J. D. Caldwell, and J. H. George; and sought, principally, to reform and foreclose a mortgage on a tract of land in said county, which said Caldwell had executed to Patrick, Irwin & Co., on the 5th November, 1860, and of which the complainants claimed to be the owners by assignment and transfer from said Patrick, Irwin & Co.; also, to annul and set aside, as fraudulent and void, another mortgage, and a quit-claim deed for a part of the same lands, which said Caldwell had executed to said John H. George, and to restrain the defendants from cutting timber, or otherwise committing waste on the lands. The mortgage to Patrick, Irwin & Co. was given to secure a promissory note for $14,080.80, dated the 2d July, 1860, and payable one day after date. It purported to convey eight hundred acres of land, which were described as lying in sections one, two, eleven, and twelve, in township eleven, and range ten; but, by mistake, as the bill alleged, in describing the lands by their government numbers and subdivisions, [Alexander et al. v. Caldwell et al.] three hundred and twenty acres were included, to which said Caldwell neither had nor claimed any title. This mortgage, which was duly acknowledged and recorded, contained no power of sale; and on the 5th November, 1868, by another instrument under seal, reciting as its consideration the desire to avoid the expense of a suit for foreclosure in equity, and indulgence granted to him by said Patrick, Irwin & Co., Caldwell authorized them, or their assigns, to foreclose by a sale. In this latter instrument, the mortgage is described as "conveying to them a plantation and tract of land lying in said county, near the town of Allenton, containing about eight hundred acres, more or less." On the 14th February, 1861, said Caldwell executed a mortgage to said J. H. George, to secure the payment of a promissory note for $6,556.41, borrowed money; the lands conveyed being three hundred and twenty acres in quantity, and erroneously described as they were in the mortgage to Patrick, Irwin & Co. On the 8th December, 1868, he executed another mortgage to George, reciting the mistake in the description of the land in the former mortgage, purporting to correct that mistake, and to provide full security for the payment of the note; and this mortgage conveyed six hundred and seventy acres of said plantation, and included one hundred and sixty acres of the lands conveyed by the mortgage to Patrick, Irwin & Co. On the 9th October, 1872, Caldwell conveyed these six hundred and seventy acres, described as in said second mortgage, by quit-claim deed, to said J. H. George, for the nominal consideration of ten dollars. The opinion of the court contains a diagram of the lands, from which the several portions, as described in the different instruments, will be better understood. The bill alleged, that the mortgage to Patrick, Irwin & Co. was intended and understood by both parties to it to convey Caldwell's entire plantation, and that it failed to do so through the mistake of Caldwell, who furnished the numbers and description of the lands to the draughtsman; also, that the first mortgage to George was without consideration, and was intended to hinder, delay, and defraud the creditors of Caldwell; that the subsequent mortgage and quit-claim deed were executed with the same intent; and that George had notice of the mortgage to Patrick, Irwin & Co. The defendants filed separate answers. Caldwell denied that he ever promised or intended to convey his entire plantation to Patrick, Irwin & Co., or to convey to them any other lands than those described in their mortgage; and alleged that, at the instance and request of their attorneys, he consented to give them a mortgage, and, for that purpose, procured the numbers and |