most convincing character, by disinterested witnesses.1 Least of all, can it be contradicted by the officer who certified to the acknowledgment.2 So, where a mortgage bore the notarial seal and signature of S S, but S S testified that he never affixed his seal to it, and that he believed himself to have been the only SS notary in Cincinnati, it was held that the seal proved itself, prima facie, and that the presumption in favor of the deed was not rebutted.3 So, in Morris v. Sargent, it was held that mere want of recollection of signing and acknowledging the execution of a deed should have but little weight against the certificate of the officer that such execution was duly acknowledged; that the burden of proof is upon the party who impeaches the truthfulness of the official certificate of the acknowledgment of the execution of a deed, and the fact that a notary cannot remember incidents connected with the acknowledgment is entitled to little weight as against the certificate. § 156. When certificate may be impeached.—It is the policy of the law to give the fullest faith and credit to the acts of officers clothed with judicial or ministerial duties. On this principle, the certificate of acknowledgment duly executed is sustained, except where the evidence adduced to impeach it is of strong and convincing character; and then the decisions hold that it can be impeached only for fraud or combination. Not always even then, as when a purchaser in good faith acts on such certificate, having no knowledge of any fraud. The certificate will not entirely conclude a grantor;5 he may show he never executed the instrument, and that if he did it was not acknowledged as set forth, or that he was induced by fraud or combination to so acknowledge it. But there must be something more than the evidence of the grantor to counteract and impeach the certificate, for that must prevail over his unsup 1 Kerr v. Russell, 69 Ill. 666; Van Orman v. McGregor, 23 Iowa, 300. 2 Central Bank v. Copeland, 18 Md. 305; Harkins v. Forsyth, 11 Leigh, 294 ; Stone v. Montgomery, 35 Miss. 83. 3 Wright v. Bundy, 11 Ind. 398. It will be observed that the officer's evidence was admitted in this case, because he denied executing the certificate. +18 Iowa, 90. 5 Hutchinson v. Rust. 2 Gratt. 394; Dodge v. Hollinshead, 6 Minn. 25. ported evidence. So in Lickmon v. Harding,1 the Court say that "public policy requires such an act should prevail over the unsupported testimony of an interested party, otherwise there would be but slight security in titles to land." The same point was brought up for examination in Calumet etc. Co. v. Russell,2 where an elaborate review of the authorities was made, and it was held that the official certificate of the acknowledgment of a deed for real estate must prevail over the unsupported testimony of an interested party in the absence of proof of fraud or collusion. § 157. Can be impeached for fraud or collusion.-The cases all show that the certificate can be impeached for fraud or collusion, and that oral evidence is admissible to show this.3 Thus, if a married woman should be persuaded, by fraudulent statements as to the nature of the consideration her husband was to receive, to join in a conveyance of his land, she would not be barred of her dower in the land while in the hands of the party to the fraud, but it would be otherwise in case the land came into the possession of a bona fide purchaser, without notice of the fraud. He has a right to rely on the certificate as the highest, fullest, and most conclusive evidence that her title has been relinquished; and as to him, and all other bona fide purchasers, the certificate is conclusive-it cannot be impeached by oral evidence, so long as it is regular on its face. The security of titles demands this, that a bona fide purchaser shall be able to rely implicitly and exclusively on the certificate, provided it is regular on its face, and there is nothing to put him upon inquiry. This question has been fully and ably discussed in a late case in Illinois, which is very instructive in this connection. In this case, a married woman sought to impeach the 1 65 Ill. 505. 2 68 Ill. 426. 3 Graham v. Anderson, 42 Ill. 514; Montgomery v. Hobson, Meigs, Tenn. 437; Williams v. Robson, 6 Ohio St. 510. * Kerr v. Russell, 69 Ill. 666. The Albany L. Journal, vol. 14, p. 273, criticises this case, and says: "But the Court say 'the unsupported testimony of a party to a deed that he did not execute it shall not prevail over the official certificate of the officer taking the acknowledgment.' This is giving to such a certificate even greater sanctity and force than attach to commercial paper; it prevents the possibility, in the great majority of cases, of proving the forgery, and subjects certificate, on the ground that she never acknowledged the deed nor executed it. The certificate on its face was regular and formal, and the land had passed to several purchasers. The decision was given by Chief Justice Breese, and deserves attention for the careful and salutary views it lays down regarding the certificate as evidence. It was there held that an innocent purchaser of land has a right to rely upon the record of a deed which shows upon its face that a wife has executed and properly acknowledged a deed with her husband, and the wife will not be allowed to avoid the same, as to such a purchaser, without notice, by showing her signature to be a forgery, and that she never, in fact, acknowledged the same. married women to the mercy of unscrupulous husbands and careless or dishonest notaries. It must at least be a question for the jury. This is precisely the province of the jury. Whether the bare oath of the interested party should prevail against the certificate of the officer, would depend on a variety of considerations-character, intelligence, memory, probability, and so forth; but still it is a question of fact and not of law." It is true that one reading the syllabus of this case may be misled, and might get the impression that in no case could the certificate be impeached in the hands of an innocent vendee, not even if the signature was a forgery. Now, no such inference-which would be incredible-can be derived from the case. Surely, if it is proven that a married woman never executed her deed, never personally appeared before the officer to acknowledge it, it is impossible that she could be concluded by the certificate, no matter how many may have relied upon it. But this case only goes to show that the evidence to impeach the certificate for fraud or forgery must be very complete and overwhelming; it does not, by any means, pretend to hold that it cannot be impeached. § 158. Appointment.-As a general rule, throughout the United States, commissioners of deeds are appointed by the Governor of a State, to act in other States. There are a few States where the governor appoints by and with the consent of the senate or council. Thus, in Maryland, the statute provides for the appointment of commissioners of deeds by the governor, by and with the advice and consent of the senate; and the appointment and commissions are to be made biennially.1 So, in New Jersey, the governor is to appoint, by and with the advice and consent of the senate.2 In Massachusetts, the governor is to appoint, with the advice and consent of his council; and the same is the provision in New Hampshire.1 3 § 159. Qualifications. It would, of course, be expected that the applicant for appointment should be a person who can bring recommendations as to character and intelligence; and it is, therefore, invariably the rule to require satisfactory assurance as to intelligence and integrity. In most cases, the mode of procuring and presenting such evidence of character and eligibility is prescribed by regulations drawn up in the execu 1 Code 1860, p. 119. 2 Nixon's Dig. p. 155. 3 Rev. Stat. 1860, p. 132. tive department of each State, which regulations can be obtained on application; but, in a few instances, the statutes provide certain qualifications, or conditions for appointment. For instance, in Illinois, the statute provides for a certain number of commissioners to be appointed, and then provides that the governor may appoint one additional for every ten thousand inhabitants in the cities of other States and Territories, when the governor receives a certificate under the seal of the mayor of the city, or the judge of a Court of record of a city in which such applicant resides or desires to open an office, of the number of inhabitants of said city, and that said applicant is a proper person to receive such appointment. And, in Michigan, it is provided that the applicant, in all cases, shall present a written application, with proper recommendation for such office, from the governor of his State, or from a judge of a Court of Record in the county where such applicant resides, or other satisfactory evidence of his fitness for the office, and shall pay into the State treasury three dollars.2 1 § 160. Number appointed.-The statutes, in nearly all instances, give the governor authority to appoint as many as he deems expedient; in a few cases, the limit is prescribed, as in Illinois, where it is provided that the governor may appoint as many as he deems expedient, but the number of such commissioners shall at no time exceed five in any one city or county.3 In New York, the governor may appoint one or more commissioners, not exceeding five, in each city in any foreign State or country.1 § 161. Period for which appointed-In many of our States, there is no limited period prescribed for which they are appointed. The statutes use the expression that they "shall hold office during the pleasure of the governor." This is the case in Alabama, Arkansas, Florida, Georgia, Kansas, Maine, Maryland, Minnesota, Missouri, North Carolina, Pennsylvania, South Carolina, Texas, Vermont, West Virginia, and Wisconsin. In the remaining States, there is a definite period pre 1 Rev. Stat. 1874, p. 267. 2 Comp. Laws, 1871, p. 220. 3 Rev. Stat. 1874, p. 266. |