by the use of that word, or some other word equivalent to it, or This acknowledgment must apcannot be proved by parol evi the certificate will be invalid.1 pear upon the certificate, and dence.2 3 In most places, the fact of acknowledgment shows the act to be the free and voluntary act of the persons making it; and this is the import of the term, but in Iowa this is otherwise held, and there the certificate must show on its face that it was the "voluntary" deed of the grantor. It is not sufficient to state that the party acknowledged according to law: the particulars must appear from the certificate." § 32. Identity of the party. This is the most essential part of the certificate; it is for the purpose of guarding against fraud that the certificate of the notary is required; and for this reason the certificate is looked to as the fullest and most satisfactory evidence of identity. Hence, a certificate which omits to state that the party acknowledging was personally known, or proven, is worthless." It must appear that it was the grantor who appeared and made the acknowledgment. So where a certificate was in these words: "Personally appeared and acknowledged this instrument to be his free act and deed," it was held that the certificate did not impart an acknowledgment by the grantor.7 An omission of the word "personally" before the word "known," has in some States been held immaterial.8 So it has been held, in New York, that a certificate that the party or subscribing witness was known to the officer, sufficiently imports that the officer was personally acquainted with him, and it is not there necessary that the precise language of the statute should be used.9 1 Short v. Conlee, 28 Ill. 219. 2 Pendleton v. Button, 3 Conn. 405. 3 Henderson v. Grewell. 8 Cal. 581. 4 Wickersham v. Reeves, 1 Iowa, 413; Newman v. Samuels, 17 Id. 528. 5 Flanagan v. Young, 2 Har. & M. 38; Gill v. Fauntleroy, 8 B. Mon. 177. Fogarty v. Finlay, 10 Cal. 239; Tully v. Davis, 30 Ill. 103; Brinton v. Seevers, 12 Iowa, 389; Garnett v. Stockton, 7 Humph. 84. Hayden v. Westcott, 11 Conn. 129. 8 Rosenthal v. Griffin, 23 Iowa, 263; Alexander v. Merry, 9 Mo. 514; Warner v. Hardy, 6 Md. 525; West Point Iron Co. v. Reymert, 45 N. Y. 703. Sheldon v. Stryker, 42 Barb. 284; Thurman v. Cameron, 24 Wend. 87; Jackson v. Gumaer, 2 Cow. 552. Where, in an acknowledgment of a mortgage, the word "appeared" was omitted after the phrase, "before me personally," it was held that the omission was manifestly a clerical. error, and not fatal to its validity. But it must appear that the party acknowledging was known or proved to be the party who signed and executed the instrument. Thus, an acknowledgment: "Personally appeared before me R S L, signer and sealer of the foregoing instrument, and acknowledged the same to be his free act and deed before me," is insufficient. And a certificate stating that A B," the party grantor of the within instrument, personally appeared," etc., and that "at the same time personally appeared C B, wife of said A B, and," etc., is not a substantial compliance with the requirement of the law that the grantor or grantors were personally known, or their identity satisfactorily proved to the officer making the certificate, and that such facts should be stated therein.3 § 33. Identity, how proved.-In most of our statutes, it is provided, where a person is unknown to the officer, how his identity must be made to appear. It is required generally to be on the oath of a certain person named in the certificate. The mere introduction at the time of a person appearing before an officer for the purpose of acknowledging the execution of an instrument, is not sufficient; legal proof of his identity is necessary, where the officer has no previous knowledge of the person, and such proof should be satisfactory evidence under oath.4 § 34. As to the officer taking the acknowledgment, it must appear what his character is, but it is not necessary that it should be stated that he is authorized to take the acknowledgment of deeds where it appears from the public laws of the 1 Scharfenburg v. Bishop, 35 Iowa, 60. 2Stuller v. Link, 2 N. Y. Supreme C. R. Thom. & C. 86. 8 Smith v. Garden, 28 Wis. 685. See Callaway v. Fash, 50 Mo. 420. A defect in the acknowledgment of a sheriff's deed, in which the person before whom it was acknowledged failed to state that "the sheriff was personally known to him," does not invalidate. Ogden v. Walters, 12 Kan. 282. 4 Jones v. Bach, 48 Barb. 568. If a wife be introduced to the officer by her husband in the presence of her brother, both of whom are known to the officer, it is sufficient personal knowledge. Rexford v. Rexford, 7 Lans. 6. State that such officer is authorized to take acknowledgments.1 But when a certificate from another country or State is introduced, signed by a certain officer in his official character, it must appear, before it can be admitted in evidence or to record, that such officer is authorized to take acknowledgments.2 It has been held, in Pennsylvania, that the office of a person taking the acknowledgment of a deed, if not appearing in the certificate, may be proved aliunde. It is very doubtful if this would be held elsewhere: the deed ought not to be entitled to registration when so signed. But an acknowledgment of a deed before a person who styles himself a justice of the Court of Common Pleas, is prima facie evidence that he was such; and it is not necessary to produce the commission of the justice until some evidence is given to render the fact doubtful.4 In Wisconsin, the question of presumption as to the authority of an officer to take acknowledgments, was lately considered in Eaton v. Woydt. A deed was introduced, purporting to be acknowledged before an officer styling himself a justice of the peace in New York, and accompanying it was the certificate of the clerk of the city and county of New York, certifying that the person was a justice of the peace, and that the signature of such person was genuine. By statute in Wisconsin, this would be prima facie evidence of the capacity of the person to take acknowledg ments; but it was shown, by the person who claimed adversely to the deed, that by the laws of New York, of 1828, justices of the peace had no authority to take acknowledgments of deeds, and the authority was only conferred in 1840. The Court held that this evidence created a presumption that they did not possess the authority in 1835. A commissioner appointed by the governor of a State to take the acknowledgment of deeds, etc., in another State, is an officer of the State from which he derives his appointment. The Courts of that State are bound to take judicial otice of his acts, and these require no other authentication than his seal of 1 Johnston v. Haines, 2 Ohio, 55; Livingston v. McDonald, 9 Ohio, 168. 2 De Segond v. Culver, 10 Ohio, 188. 3 Bennet 2. Paine, 7 Watts, 334; Scott v. Gallagher, 11 S. & R. 347. 4 Willink v. Miles, Pet. C. C. 429. 532 Wis. 277. office.1 So, by the laws of Pennsylvania, a commissioner's certificate is made presumptive evidence of the execution and acknowledgment of a deed out of the State.2 It will be sufficient if the officer taking the acknowledgment is an officer de facto, who is authorized to take acknowledgments by virtue of his office.3 The officer must subscribe his name to the acknowledgment; it will not be sufficient if it appear in the body of the certificate.* § 35. Where the officer is a party in interest, he cannot take the acknowledgment. Thus, where the instrument shows upon its face that the acknowledgment was taken by a party in interest, it is improperly recorded, and is no constructive notice.5 And where a trustee took the acknowledgment of the grantors in the deed of trust, it was held he was disqualified, and it was declared an invalid acknowledgment. A person cannot take the acknowledgment of a deed to himself or for his use. But it may be taken by an officer who is related to the parties.8 § 36. A deputy can take the acknowledgment, in the absence of the principal clerk. A deputy recorder has authority to take an acknowledgment of a deed and certify it in the name and as the act of his principal.10 A deputy clerk of a Probate Court of Mississippi is competent to receive the acknowledgment of a deed, and it is not necessary that his certificate purport to be that of the principal clerk, "by his deputy." 11 § 37. Place where acknowledgment made.—There is a difference in the decisions as to the place appearing in the certificate where the acknowledgment is made. This arises from 1 Smith v. Van Gilder, 26 Ark. 527; S. P. Vance v. Schuyler, 6 Ill. 160. 2 Hultz v. Ackley, 63 Penn. St. 142. 8 Hamilton v. Pitcher, 53 Mo. 334; Woodruff v. McHarry, 56 Ill. 218; Brown v. Lunt, 37 Me. 423. 4 Marston v. Brashaw, 18 Mich. 81. 5 Stevens v. Hampton, 46 Mo. 404; Wilson v. Traer, 20 Iowa, 231. Bowne v. Moore, 38 Tex. 645. Groesbeck v. Seeley, 13 Mich. 320: Beaman v. Whitney, 22 Me. 413. 8 Lynch v. Livingston, 6 N. Y. 422. Abrams v. Erwin, 9 Iowa, 87; Kemp v. Porter, 7 Ala. 138; Hope v. Sawyer. 14 Ill. 254; Gibbons v. Gentry, 20 Mo. 468. 10 Muller v. Boggs, 25 Cal. 175. 11 McCraven v. McGuire, 23 Miss. 100. NOTARIES-3. the statutes in some States giving a limited jurisdiction to certain officers. This was before adverted to, when the jurisdiction of notaries was considered.1 Where the officer has a local jurisdiction, and acts out of it, his certificate is worthless; but though notaries be appointed for towns or cities, they are generally county officers, and can act throughout the limits of their county. A certificate of acknowledgment must contain some assignable locality, which the Court can judicially notice, to render the deed admissible in evidence, without proof of its execution, and a notarial seal will not cure a defect in this respect.3 It would not be a valid certificate if the locality did not appear, either in the caption, or by the signature of the officer subscribing. Thus, in Chiniquy v. Bishop of Chicago,5 the certificate purported to have been made by the clerk of the County Court, and was formal in all respects, except in the omission, in the caption or margin, of the name of the county. The certifi cate concluded: "Given under my hand and seal of said Court, this 12th day of July, A. D. 1851," with the delineation of a seal containing the words, "Will County Seal." It was held that the omission of the name of the county in the caption was a mere informality which did not vitiate the certificate, it appearing sufficiently that the acknowledgment was taken by a proper officer of Will County. In another case in that State it has been held that when a justice of the peace subscribed his name to an acknowledgment, and there did not appear from the certificate any county of which he was a justice, the certificate was not on this account defective. The Court, it was held, would take judicial cognizance of who were justices of the peace in the county where the Court sat. This decision seems to be of doubtful authority, and would not be followed generally. In Iowa, a certificate was not considered valid, because it failed to show the county of the notary before whom the acknowledgment was taken, although the seal had on it "Marshall County." It was held that the seal did not supply the defect. The Court say: "The title of 1 See Sec. 22. 2 Hill v. Bacon, 43 Ill. 477. 4 Brooks v. Chaplin, 3 Vt. 281. 6 Graham v. Anderson, 42 Ill. 514. |