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the officer is required to be set out in the certificate; the seal is no part thereof. It is not used to correct defects in the instrument to which it is affixed, but to give solemnity to, and authenticate it." 1

When the grantor in a deed is described as a resident of Windham County, Connecticut, and the county is named in the caption of the certificate, it will be presumed that the justice who took the acknowledgment was such, and acted in that county.2

Where a certificate was entitled simply "County of New York," it was insufficient, for failing to show the State in which the act was done; but the defect was cured by the certificate of the county clerk, that the commissioner was duly commissioned for the city, county, and State of New York, residing in the county, and duly qualified.3

A notary public is authorized to take the proofs and acknowledgment of deeds in a county for which he is commissioned, although the land conveyed is situated in another county. In Mississippi, before 1836, the acknowledgment should be made before a justice of the county where the whole, or part, of the land is situated.5 Now, by the statute, this is not necessary.

§ 38. The necessity of a seal.-In general, a certificate of acknowledgment should be under the seal of the officer certifying it, unless there are exceptions in the statutes, as there are in a few of our States. But there is scarcely any exception when the certificate is given in one State to be used in another. Thus, it is held, in California, that the statute requires the scal of the

1 Willard v. Cramer, 36 Iowa, 22.
2 Dunlap v. Daugherty, 20 111. 397.
3 Hardin v. Osborne, 60 Ill. 93.
4.Johnson v. McGehee, 1 Ala. 168.

5 Hughes v. Wilkinson, 37 Miss. 482.

See Sec. 49 for the statutory provisions.

A justice may, in his own county, acknowledge a deed of land in another county. Colton v. Seavey, 22 Cal. 496.

In Massachusetts, under the statute, the acknowledgment of a deed may be made before any justice of the peace in the State: therefore, an acknowledgment taken by a justice out of the county for which he was commissioned, is valid. Learned v. Riley, 14 Allen, 103. See, to the same point, Crumbaugh v. Kugler, 2 Ohio St. 373.

7 See, as to the notarial seal, Sec. 28.

officer taking the acknowledgment, as a preliminary to the fitness of the deed for registration, and without conforming strictly to it, the registration will not be constructive notice.1 Under the Act of 1850, the acknowledgment of a notary, taken under his private seal, was held valid when it was stated in the instrument that he had no public seal,2 but under the present law he can only authenticate with his official seal.

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So it is held, in Illinois, that an acknowledgment of a deed by a notary, not attested by a seal, is invalid; and a certificate of acknowledgment to a deed, made in another State, of lands in Illinois, must be under the seal of the Court. A scroll, and the certificate of the clerk that the seal has been lost, will not supply its place. This is probably too strict a rule under the circumstances. Thus, it was decided in Kentucky, under the Act of 1831, which required that a non-resident's deed should be acknowledged, etc., with a certificate of the clerk of the Court, etc., "with the seal of his office annexed," that any seal that the clerk was accustomed to use on such occasions might be deemed his seal of office, though described in the certificate as "his private seal (no seal of the office being yet provided”).5

A notary's certificate, which declares that he has affixed his official seal, etc., is defective without it; but the omission in the certificate of acknowledgment of the word "seal," between "and" and "of office" is immaterial.7

In Massachusetts, the statute provides that deeds of real estate may be acknowledged "before any justice of the peace in this State, or before any justice of the peace, magistrate, or notary public, within the United States, or in any foreign country." Under this, it was decided, in Farnum v. Buffum,8 that a certificate made by a notary public of Rhode Island need not be under seal, as this statute made no mention of a seal. I would not regard this case as good authority-it would not be

1 Hastings v. Vaughn, 5 Cal. 315. See Miller v. Henshaw, 4 Dana, (Ky.) 325. 2 Fogarty v. Sawyer, 23 Cal. 570. See Mason v. Brock, 12 Ill. 273.

8 Booth v. Cook, 20 Ill. 129.

4 Skinner v. Fulton, 39 Ill. 484.

5 Collins v. Boyd, 5 Dana, 316.

6 Ballard v. Perry, 28 Tex. 347.

7 Nichols v. Stewart, 15 Tex. 226. 84 Cush. 264.

accepted elsewhere; it may, however, be followed in Massachu

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§ 39. Certificate of probate of deeds. When the grantor fails to acknowledge a deed or instrument, the statutes provide for subsequent proof of its execution and delivery before certain officers authorized to take the acknowledgment of deeds, and this subsequent proof is called the probate, etc. In general, one of the two subscribing witnesses is required to make this proof, and the officer usually certifies that he either knew the witness or had satisfactory evidence of his identity. But it has been held that the certificate need not state that the officer knew the witness it will be presumed that he had satisfactory evidence of his identity.3

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The certificate of probate must state that the witness saw the grantor execute and deliver the instrument, and that he knew the grantor, and saw the other subscribing witness attest it.4 A probate stating that the witness "testified that he saw the within grantor sign the same," without adding that he knew him, is insufficient.5

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A deed was proved before the clerk of a County Court of North Carolina, who wrote opposite the witness' name the word Jurat," and swore that the witness proved the deed. It was held that this was a sufficient compliance with the statute of that State, to authorize the registration of the deed.

1 In Ohio, the officer need not affix his seal. Fund Commissioners v. Glass, 17 Ohio, 542. So in Minnesota. Thompson v. Morgan, 6 Minn. 292. Under the present statute of Ohio, it would seem that a seal is required. See 1 Vol. Swan & C.'s Stat. p. 876.

2 See forms given in Appendix.

8 Wood v. Harrow, 11 Johns. 434; Parker v. Phillips, 9 Cow. 94; Kellogg v. Vickory, 1 Wend. 406; Johnson v. Prewitt, 32 Mo. 553.

4 Norman v. Wells, 17 Wend. 136; Delauney v. Burnett, 9 Ill. 454; Green v. Glass, 29 Geo. 246; Doe v. Lewis, Id. 45.

5 Gibbs v. Osborn, 2 Wend. 555; Gillet v. Stanley, 1 Hill, 121.

6 Starke v. Etheridge, 71 N. C. 243. The statute under which this decision was given reads: "All deeds, etc., required or allowed to be registered, may be admitted to registration in the proper county, upon being acknowledged by the grantor, or proved on oath, before the judge, etc., or before the clerk of such county, or his deputy."

ACKNOWLEDGMENT BY MARRIED WOMEN.

§ 40. Theory of the law in respect to.-The dependent position of married women, according to the theory of the law, is plainly shown in the statutory requirements regarding an acknowledgment by a married woman. The common law regarded the woman as sub potestate viri, and therefore it provided for a separate examination of the wife, apart from the husband, and required her to state that her act was free and voluntary.

It is thus stated by Coke: "The examination of a feme covert ought to be secret; and the effect is to examine her whether she be content to levie a fine of such lands (naming them particularly and distinctly, and the estate that passeth by the fine) of her own voluntary free will, and not by threats, menaces, or any compulsorie means." 1

Though fines and recoveries were abolished in England by the Statute 3 and 4 Will. IV, Chap. 74, yet it is provided by the same statute that the deed of a married woman must be acknowledged on a separate examination. In a great many of our States this is required still, and in the section at the end of this chapter will be found the provisions of the statutes of the various States, showing where this examination is required.

§ 41. Requisites of the certificate.-In some States there are peculiar requirements, which will be found in the forms in the Appendix; but as a rule the following are the substantial requisites: 1. The wife must be taken apart from the presence and hearing of the husband. 2. She must be made aware of the contents of the instrument. 3. She must acknowledge that she freely and voluntarily signed and executed it, without any fear or compulsion of her husband. 4. That she does not wish to retract the act, or, as some require, that she desires the instrument to be recorded as her act and deed.

§ 42. As to the exact compliance with these requirements, there is very little doubt in the decisions. The Courts insist upon a close and rigid adherence to the provisions of the

1 Co. Litt. 353a.

statute; and though a literal compliance may not be exacted, still it must appear from the certificate that the prescribed form was substantially observed. So it is held that the certificate of the acknowledgment of a married woman of her execution of a deed must show, by the facts stated therein, that she has been examined in the manner prescribed by the statute, or the deed as to her will not be valid.1

The cases on this point differ in two respects. Some hold a strict compliance with the terms of the statute essential, and admit nothing by way of construction or inference; while others look more to a substantial compliance, giving a fair construction to the language, which they hold need not be in ipsissimus verbis of the statute, and that words of synonymous import will be sufficient.

Thus, in Hollingsworth v. McDonald,2 the Court say: "That the acknowledgment is substantially defective, the word 'fear' being omitted in the certificate of the acknowledgment, and no word of similar import or meaning substituted in its place." So, in McIntire v. Ward,3 it was adjudged not to be essential for the officer taking the acknowledgment to use the words of the statute in his certificate; but that it was sufficient if the directions of the statute were substantially followed.1

In New York, where the statute requires the officer before whom the acknowledgment of the deed of a married woman is taken, to certify that, on "a private examination apart from her husband, she executed such conveyance freely, and without any fear or compulsion of her husband," a certificate that, on an examination, "separate and apart from her husband, she acknowledged the execution of the same without fear or compulsion from him," was held a sufficient compliance with the statute. The correct view, it would seem, is, that while the language of the

1 Jordan v. Corey, 2 Ind. 385; Lewis v. Waters, 3 Har. & McH. 420; Nantz v. Bailey, 3 Dana, 111; Blackburne v. Pennington, 8 B. Mon. 217; Meddock v. Williams, 12 Ohio, 377; Ward v. McIntosh, 12 Ohio St. 231; Garrett v. Moss, 22 Ill. 363; Gove v. Cather, 23 Ill. 634; McBryde v. Wilkinson, 29 Ala. 662. 22 Har. & J. 230.

35 Binn. 296.

To the same point, Brown v. Farran, 3 Ohio, 140; Barton v. Morris, 15 Ohio, 408; Owen v. Norris, 5 Blackf. 479; Hughes v. Lane, 11 Ill. 123; Bell v. Evans, 10 Iowa, 353; Dickerson v. Davis, 12 Iowa, 353; Dundas . Hitchcock, 12 How. U. S. 256; Goode v. Smith, 13 Cal. 81; Stuart v. Dutton, 39 Ill. 91.

5 Dennis v. Tarpenny, 20 Barb. 371.

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