(Jflrn^U i[Iam Btl^aal Hihtary KF 670 049™""""'""'^'-"'™^ ».1 ^iiiiS™«,™J!?® '^"' °* "eeds; thefr for 3 1924 018 780 381 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018780381 THE LAW OF DEEDS. A TREATISE ON THE LAW OF DEEDS THEni FOBM, BEQTJISITES, EXECUTION, ACKNOWLEDGMENT, BEGIS- TBATION, CONSTBTTCTION, AND EFFECT. COVBBINa THE ALIENATION OF TITLE TO REAL PROPERTY BY VOL- UNTARY TRANSFER. ■roaETSBB wna chaptebs on ta7 cbbds and shubiff's dkedb. BY BOBEBT T. DfJVXEN" COUNSELOB AT IiAW. IN TWO VOLUMES. Volume I. SAN FRANCISCO: BANCEOFT-WHITNEY CO. 613 Clay Stbeet. 1887. COPTEIGHT, 1887. Bt ROBERT T. DEVUIT. PREFACE. Feom the earliest times, the law of the alienation of real property by voluntary transfer has formed, in every country, an important branch of jurisprudence. At the present day the mode of alienation has been much simplified, but, universally, a deed is required for the conveyance of real estate. In works on real property the subject of deeds is only incidentally considered, such works being necessarily general in their character. Sir Edward Sugden, in England, and others in our own country, have rendered the profession valuable aid by the preparation of treatises devoted to the contract of sale, the law of vendor arid purchaser. I have taken up for consideration the deed itself, by which the title in fee is conveyed. Only in an incidental way have I adverted to the law of vendor and purchaser. A glance at the table of eases will show how frequently questions relat- ing to deeds have come before the courts, and, it is believed, that a treatise devoted exclusively to this subject, will be gladly welcomed by the profession, although some of its parts are con- sidered in other books. It was not my original intention to treat of anything but the law governing the voluntary alienation of real property. I concluded, however, that the value of the treatise would be enhanced by the addition of chapters on tax deeds and deeds of sheriffs and constables, and have added chapters treating of these subjects, so far as they cau be said to be a part of the law of deeds. I believe that a law book, to be adapted to practical use, ought to be written with several different objects in view. It ought, in the first place, to be h treatise, in the strict sense of the word, in which legal principles are announced and explained. Where iv Pebface. a divergence of opinion prevails among different courts, the author ought to endeavor to find the fundamental principle by which they may be harmonized, or failing in that, ought to state what, after a careful examination of the divergent author- ities, he considers to be the correct rule. If he has done his work faithfully, his view, writing as he does from an impartial standpoint, should not be altogether valueless. The work should state, also, what the courts have decided. For, however illogical the conclusion reached by a particular court may be, the rule announced has the force of law in the State in which the decision is pronounced. There can seldom be, in actual practice, much dispute over well-Settled proposi- tions. The diiliculty which besets a court in the decision of a controversy, or a practitioner in giving counsel, is the applica- tion of a principle to a state of facts. Hence, a text-book should not only state bare legal propositions, but should illustrate them with instances in which they have been applied. Then, again, the multiplicity of reports and the difficulty, save in large cities, of gaining access to them all, should induce an author to lay before his reader, whenever the importance of the principle under discussion is sufficient to warrant it, that part of the language of the court pertinent to the point con- sidered, not only as an aid to the busy lawyer, but also as a means by which the writer's conclusions may be verified. On this plan, I have written this treatise. I have endeavored to state . legal principles, to illustrate them with apt cases, and finally, in proper instances, to furnish the reader with the words in which the courts have declared the law. While endeavoring to lay before the reader the law, as decided by the courts, I have frequently, in attempting to discover the correct rule, commented upon conflicting decisions. But such matter has generally been placed in a section by itself, so that my own views and coucIut sions may not be taken as giving the effect of the decisions of the courts. In cases of contrariety of decision I have endeavored to state correctly both views, in order that if my own opinion may not be acceptable, the authorities sustaining an opposite view may be consulted. An author has considerable difficulty in determining how far his researches should go in the multiplication of authorities. I Preface. v have sought to state fully the leading principles of the law of deeds, with their exceptions and qualifications, and have sup- ported them with an abundance of authority. Many cases I have purposely omitted, and some, undoubtedly, have escaped my observation. Perhaps I have erred in some instances, in citing in support of generally accepted propositions more cases than necessity would require. But as the book is intended for use in every part of the United States, it seemed desirable that it should contain a collection of cases from the different States. If the number be large, many of them will at least serve the purpose of illustrating, in various ways, the principles in sup- port of which they are cited. Though no formal division has been made, the work consists of ten parts: Part first, embracing chapters one to six, is devoted to a consideration of the general requisites of deeds, including, with an introductory chapter, such matters as the various kinds of conveyances, what must pass by deed, the parties to a deed, the necessity of a writing for the conveyance of real estate, and the doctrine of part performance. Part second, consisting of chapter seven, is taken up with a consider- ation of the formal parts of the deed, treating of such matters as the form of the deed generally, the date, the name and description of the parties, the granting words, . the habendum, reddendum, and testimoniuni clauses. The execution of the deed constitutes part third, consisting of chapters eight to thir- teen, in which part attention is given to the reading, signature, seal, and attestation of the deed, and its delivery, either abso- lutely or in escrow. In part fourth, consisting of chapters fourteen to eighteen, the question of the execution of deeds in certain relations is considered, taking up the subjects of the exe- cution of deeds by private and municipal corporations, execution of deeds under powers of attorney, under powers of sale in trust deeds and mortgages, execution of deeds by trustees for sale, and lastly, the subject of alterations, and filling up blanks. Having now an executed deed, part fifth, including chapters nineteen to twenty-two. Is devoted to a treatment of the law of acknowledg- ment and registration, and the notice supplied by the record. This concludes the first volume. Part sixth, consisting of chap- ter twenty-three, contains a statement of the law of notice, in vi Peefacb. general, by possession, agency, and lis pendens. Part seve[nth, chapter twenty-four, treats of the subject of the consideration, and the various rules connected with it. In part eighth, the construction of deeds is considered. This part, consisting of chapters twenty-five to thirty, includes the general principles of constractiop, the law .of community property as applicable to deeds, the law of covenants, conditions, limitations, reservations, exceptions, restrictions, stipulations, recitals, and description, and of a deed subject to a mortgage. Part ninth, including chapters thirty-one to thirty-seven, treats of the effect of deeds, or of the transactions resulting in deeds, embracing such matters as, whether a deed absolute in form is a mortgage or not, the effect of a deed where the grantee does not pay the purchase money, the effect of the deed in conveying fixtures, the vendor's lien, and the effect of the deed by way of estoppel and merger. This con- cludes the subject of voluntary transfer, and the tenth part, con- sisting of chapters thirty-eight and thirty-nine, is devoted to a consideration of deeds made under authority of law, tax deeds, and sheriff's deeds. Requiring years for its preparation, and covering a wide field, the work must have many imperfections, and I shall be very happy to receive any suggestions of inaccuracies or omissions that may be observed. If it shall do naught towards giving a clearer conception of the law on the important subject of trans- ferring title to real estate, yet in the hope that it may assist both bench and bar by its arrangement and citation of authorities, and by showing where the law may be found, it is submitted to the profession. ROBERT T. DEVLIN. Sacramento, April, 1887. CONTEISTTS. CHAPTER I. INTEODUCTOEY CHAPTEE» i 1. Introductory. ? 2. Historical view. g 3. Statute of quia emptores, 2 4. Statute of frauds. CHAPTEE n. DEFmrnoNS aijd different kinds op deeds. 2 6. What is a deed — Definitions. g 6. Agreement for a deed. g 7. Same continued. § 8. Illustrations. § 9. Classification of deeds at common law. 'i 10, Feoffment. g 11. Gift. g 12. Grant. g 13. Lease. g 14. Exchange. g 15. Partition. g 16. Belease. g 17. Confirmation. g 18. Void deeds. g 19. Surrender. g 20. Assignment. g 21. Defeasance. g 22. Deeds under the statute of uses. g 23. Bargain and sale deeds. g 24. Covenant to stand seized to uses. g 25. Lease and release. g 26. Fine and recovery. g 27. Quit-claim deeds. viii Contents. CHAPTEE III. WHAT MUST PASS BY DEED, OE BY WRITING. ? 28. General comments. g 29. Equitable interests in land. § 30. Partnership to buy contracts for sale of land. § 31. Compensation for wrongfully obtaining patent. § 32. Bule as to mining claims. § 33. Statutory regulation. g 34. Eight to carry away ore. g 35. Bight to dower an interest on land. i 36. Pews. g 37. Fixtures. g 38. Possession is an interest concerning land. § 39. Stock in corporations. I 40. Interest of execution purchaser. 'i 41. Contract for board and lodging. § 42. Equity Of redemption. i 43. Improvements upon land. § 44. Qualification or enlargement of interests already acquired. § 45. Kevival of void contract. g 46. Revival of satisfied mortgage. J 47. Agreement for execution of covenant to convey. § 48. Executory agreement for creation of lease. i 49. Lands owned in partnership. § 50. Parol proof of partnership in land. § 51. Same subject— Rule in various States. g 52. Agreements to establish title to land. § 63. Release of damages affecting land. g 54. Agreements to devise interests in land. g 55. Application of rules relative to specific performance. g 56. Parol evidence. g 57. Growing crops. g 58. Occupancy of the land. g 59. Distinction hetweeafractwsindustriales and prima vestwra. g 60. This distinction in New York. g 61. Other States. g 62. Opposite view — Where this distinction is- not observed. g 63. Easements are interests in land. CHAPTER IV. THE PARTIES TO A DEED. PART I. WHO MAT CONVEY BT DEED. g 64. Legal capacity to convey — General comments. g 65, Capacity to take or transfer real estate governed by the law ret aiia. Contents. * ix 66. Assignment for benefit of creditors. 67. Disability of insanity. 68. Weakness of mind. 69. Evidence on issue of mental unsoundness. 70. Nervous excitement. . 71. Deed of person deaf and dumb. 72. Insane liusband joining in wife's deed. 73. Deed, when voidable. 74. Deed, when void. 75. Deed, by whom may be avoided. 76. Restoration of consideration. 77. Ratification of deed. 78. Effect of grantor's subsequent insanity on contract of pur- chase. 79. Disability from intoxication. , 80. Degree of intoxication. 81. Deeds made under duress. 82. Threat of legal proceedings. 83. Grantor's will-power. 84. Deeds made under undue influence. 85. Disability of infancy. 86. Deed of minor voidable only. • , 87. Right of disaffirmance. 88. Whether affirmance of infant's deed may be presumed from acquiescence. ' 89. Same subject. ' 90. Opposite view that acquiescence is not affirmance. 91. Comments. • 92. By what means the deed of an infant may be avoided. 93. Subsequent deed must be inconsistent with prior one. 94. Restoring the consideration — General rule. . 95. Exception in Indiana. 96. Where minor has not retained consideration. ' 97. What is a sufficient ratification of an infant's deed, 98. Delivery of deed after majority. 99. Purchaser with knowledge of infant's prior conveyance. 100. Deeds of married women. 101. Joint deed of husband and wife. 102. Rule in New York. 103. In Massachusetts. 104. In New Jersey. 105. In Ohio. 106. In Pennsylvania. 107. In other States. 108. Deed from husband to wife. 109. Joint tenants and tenants in common. ' 110. Deeds by partners. 111. Subsequent ratification. 112. Deed by a disseisee. 113. Right of seisin. 114. Power of corporations to convey. 115. Restriction from nature of corporations. E • Contents. PART n. WHO MAT TAEBl BT DEED. 1116. The capacity of the grantee. ' 117. Deeds to husband and wife— Common law— New York. 118. Other States. 119. Husband's name inserted by mistake. 120. Deeds to corporations. 121. Question between State and corporation. 122. Corporation acting in other States. 123. The parties must be in esse stt the time the conveyance is executed; CHAPTER V. ALIENS TAKING- BY DEED. I 124. Purchase by aliens, \ 125. Ofiaoe found. \ 126. In England. § 127. In the United States. g 128. State regulation. g 129. Treaty paramount law. § 130. Kesident aliens. g 131. Deed of alien before a£S«0 found. g 132. Naturalization. CHAPTER YI. NECESSITY OP A WEITINO PAET PEEPOEMANCE. g 133. Deeds must be written upon paper or parchment. g 134. Comments. g 135. Printed deeds. g 136. Whether writing •with ink is necessary. g 137. Parol contracts may be enforced in case of jyart performance. g 138. Where this doctrine does not prevail. g 139. The basis upon which the principle rests. g 140. Part performance must have been done by'the party seeking the enforcement of the contract, g 141. Acts must be done in pursuance of the agreement. g 142. Convincing proof required, g 143. Letter as memorandum of contract. g 144. Part performance of an agreement for several acts, g 145. Rule with reference to the taking of possession, g 146. Possession must be in pursuance of agreement, g 147. Relief when possession taken based upon equitable considerations. g 148. Parol gift of land, g 149. Compensation at law the test. COXTENTS. ^' g 150. What is a sufficient possession. § 151. Possession alone. § 152. Fraudulent omission of part of land from deed. i 153. Length of time over which possession extends. § 154. Character of possession. § 155. Possession contemporaneous with contracts. § 156. Possession must be in pursuance of the agreement — Pre-existing tenancy. • g 157. Possession upon parol partition, § 158. Disputed boundaries. § 159. Parol exchange. § 160. Erection of improvements. § 161. Nature of improvements. J 162. Compensation for improvements. ? 163. Benefit from the use of the land — Comments. 8 164. One view, g 165. Opposite view, g 166. Comments. § 167. Parol contract for conveyance of land between parent and child, g 168. Consideration. g 169. Acts not considered part performance. J 170. Payment of money merely is not part performance. §171. Reasons for the rule. g 172. When payment of money part-performance, g 173. Part performance by marriage. CHAPTER VII. THE POEMAIi PARTS OF THE DEED. PART I. POEM OF THE DEED eENEKALLY. 174. Form of the deed generally. 175. Statutory forms. 176. Enumeration of the formal parts. PART II. THE DATE OP THE DEED. 177. Date not necessary to the validity of a deed. 178. Presumption of delivery at date. 179. Different view— Presumption of delivery from acknowledgment. 180. Comments. 181. Language of the courts. 183. Presumption not conclusive. xii Contents. PART III. NAMES AND DESCEIPTION OP THE PASTIES. ^ 183. Objects to be attained in naming the parties. i 184. Designation of grantee by description. j 185. Use of common name. § 186. Uncertainty of grantee. , § 187. Where the grantee is dead. ? 188. Signature by wrong name. § 189. Description sufacient if no uncertainty. ^ 190. The grantee named must be capable of holding. § 191. Fictitious grantee. § 192. Mistake in name of corporation. § 193. Extrinsic testimony to remedy uncertainty. § 194. Necessity for stating name of grantor in deed. § 195. Rule in New Hampshire that signature alone is sufficient. § 196. Rule in United States courts that party not bound unless named la the deed. § 197. Same rule in Massachusetts, g 198. Same rule in Maine. I 199. In Ohio. i 200. In Alabama. § 201. In Indiana. 'i 202. In Mississippi. i 203. In California. g 204. Comments. I 205. Christian name. I 206. Mistake in Christian name. §207. Designation " junior." g 208. Deeds t. xviii Contents. 2 398. Compliance with the conditions of tha power. i 399. "What notice must be given. § 400. Publication of notice in newspapei:. g 401. Extent of circulation. ? 402. Time of publication. § 403. A matter of contract. I 404. Publication by posting notices. g 405. Authority for the sale. g 406. Designation of place of sale. I 407. Designation of time of sale. ^ 408. Erroneous statements. S 409. Description of the property. I 410. Sales to bona fide purchasers, 1 411. Sale should be beneficial to debtor, i 412. Sale for cash. g 413. Trustee's presence at sale, § 414. Power to adjourn sale. § 415. Kelease of parcel from mortgage. ? 416. Bequirement of deposit. i 417. Right of mortgagee to purchase. 2 418. Sale voidable only. i 419. Waiver. § 420. Mortgagee may execute a deed to himflelf. § 421. By whom the deed should be made. J 422. Deed to a person other than purchaser. § 423. Reference in deed to power. § 424. Death of purchaser. J 425. Recitals in deed, ? 426. Growing crops. § 427. Sale before default in trust deed passes legal title. §428. Setting aside- sale. § 429. Agreements between mortgagor and mortgagee. g 430. Enjoining sale. CHAPTEE XVn. DEEDS BY TEUSTEES FOE SALE, i 431. Nature of powers to sell, i 432. How created. : 433. Trustees cannot delegate power of sale^ ' 434. Married woman as trustee, ' 435. Services of agent. 436. What a power of sale authorizes, ' 437. Improvident sale. ■ 438. Effect of trustee's deed. • 439. Termination of power by lapse of time. ' 440. How the sale may be made, ! , 441. Private sale or auction. \ 442. Sale to the highest bidder. Contents. xix ' 443. What notice to be given. ' 444. Compliance with terms of power. 445. Notice from recital of consideration^ 446. Construction of powers of sale, 447. Construction against trustee. : 448. Sale within specified time. 449. Provision in deed requiring consent. 450. Deed with assent of cestui que trust. 451. Declaration of trust, 452. Power to sell upon a contingency. 453. Trust deed becoming void on hapx>eiiing of contingency, 454. Conduct of the sale. : 455. Who should pxecute the deed. CHAPTER XVin. niiLING UP BLANKS — ALTERATIONS, ETC, ? 456, Filling np blanks. g 457. Parol authority to insert name, g 458. Grantor may be estopped. I 459. Party executing deed bound. g 460. Alteration of deeds. J 461. Alteration by a stranger. S 462, Material alteration, I 463. Burden of proof. CHAPTEE XIX. ACKNOWLEDGMENT OF DEEDS, § 464, Acknowledgment of deeds. I 465, Acknowledgment not necessary between the parties. i 466. Statutory provisions. § 467. Admissibility of acknowledged deed in evidence. I 468. By whom the acknowledgment should be made. I 469. Time within which deed may be acknowledged* i 470. Qualification of officers. I 471. Acknowledgment before an officer de/aeto, I 472. Continued. § 473. Acknowledgment before deputy, g 474. Deputy taking acknowledgment in his own name. J 475. Presumption as to appointment of deputy. g 476. Officer cannot take acknowledgment of deed in which he is Interested, g 477. Where the officer taking the acknowledgment is a trustee. ~ g 478. Effect of taking acknowledgment by party. 'i 479. Length of acquaintance with person making acknowledgment. zx Contents. g 480. Comments on this rule. g 481. Omission of date does not invalidate acknowledgment. g 482. Omission to state place of taking acknowledgment. g 4S3. When certificate does not show in what State acknowledgment was made, g 484. Proof of locality in which oflBcer had jurisdiction, g 485. Treating two certificates as one. g 486. Presumption that acknowledgment was taken within, jurisdiction of oflScer. g 487. Jurisdiction of officer, g 488. Comments. I 489. Officer if required by statute must attaob seal, g 490. Where there is no statutory provision, g 491. Reference to official seal, g 492. Same subject— Contrary decision, g 493. Comments, g 494. Use of private seal, g 495, What will constitute an official seal. g 496. Signature of officer must be attached to certificate, g 497. Certificate of foreign officer, prima fade evidence of conformity to law. g 498. Taking an acknowledgment is ministerial act. g 499. Official character of officer should appear. g 500. Certificate •prima facie evidence. g 501. Abbreviations sufficient designation of official character. g 502. Proof aliunde of official character. g 503. Stating name of grantor in certificate. g 504. Certificate sufficient, if it shows grantor's name by reference. g 505. Presumption that parties use their real names. g 506. Acknowledgment in court. g 507. Acknowledgment by trustee. g 508. Certificate should affirmatively show compliance with statute. g 509. Pacts showing compliance with statute must be stated. g 510. Equivalent words to those mentioned in statute. g 511. Illustrations. g 512. Omission of the word " personally." g 513. Surplusage does not vitiate certlficatOv g 514. Clerical mistakes in certificate. g 515. Other illustrations. g 516. Omission to state immaterial facts. g 517. Comments. g 518. Fact must appear that grantor was known to officer or his identity established. g 519. Statement that officer is satisfied with identity insufficient. g 520. In some States, officer not required to certify to personal identity. g 521. Fact of acknowledgment must appear. g 522. Equivalent words indicating acknowledgment. g 523. Omission of the word " voluntary." J 524. Omission of certain words under particular statutes. g 525. Presuming an acknowledgment. g 526. Comments. g 527. Certifying an acknowledgment on same paper on which deed is printed or written. Contents. XXI § 528. OfiScer cannot impeach his own certificate. g 529. Between the parties the acknowledgment may be impeached for fraud. i 530. Grantee must have knowledge of fraud or of facts suflioient to put him on inquiry. § 531. To overcome the certificate the evidence must be clear and convincing. § 532. Evidence.' g 533. Illustrations, g' 534. Comments. 2 535. Innocent grantee protected. § 536. Omission of essential word not cured by-insertion in record. ? 537. Acknowledgment through interpreter. § 538. Comments. ? 539. Amendment of certificate — Decisions that such power exists, §'*40. In Mississippi. § 541. In Missouri. i 542. Decisions that such power does not exist. I 543. In Illinois. § 544. In Virginia. g 545. In the Supreme Court of the United States, g 546. Comments, g 547. Proof by subscribing witness. CHAPTER XX. ACKNOWLEDGMENT OP DEEDS BY MAT?.T;.rRn WOMEN. g 548. Acknowledgment an essential part of the deed. g 549. The law in California. g 550. Comments. g 551. Separate examination of wife. g 552. Examination private if husband is excluded. g 553. Comments. g 554. Husband hearing examination. g 555. Construction of particular certificates. g 556. Presumption of private examination. g 557. Comments. g 558. Identity should appear. g 559. Statement of wish not to retract. g 560. Explanation of contents of deed. g 561. Explanation in presence of husband. g 562. Where ofi&oer himself not required to explain, g 563. Omission of explanation. g 564. Acknowledgment by deaf mutes. g 565. Execution voluntary. g 566. Equivalent words for voluntary act — Comments. g 567. Instances. g 568. Omission of the word " fear ' '— Conflicting decisions. g 569. Comments. xxii Contents. § 570. other cases in which certificates have been construed. g 571. Substantial compliance with the statute sufficient. I 572. Surplusage. g 573. Community property. g 574. Married woman acting as /sOTjneaoZe. I 575. Comments. CHAPTEE XXI. EEGISTEY LAWS OF THE SEVEEAli STATES. g 576. Statutory provisions. g 577. Alabama. g 578. Arizona Territory. g 579. Arkansas. g 580. California. g 581. Colorado. g 582. Connecticut. g 583. Dakota Territory. g 584. Delaware. g 585. District of Columbia. g 586. Florida. g 587. Georgia. g 588. Idaho Territory. g 589. Illinois. g 590. Indiana. g 691. Iowa. g 592. Kansas. g 593. Kentucky. g 594. Louisiana. g 595. Maine. g 596. Maryland. g 597. Massachusetts. g 598. Michigan. g 699. Minnesota. g 600. Mississippi. g 601. Missouri. g 602. Montana Territory. g 603. Nebraska. g 604. Nevada. g 605. New Hampshire. g 606. New Jersey. g 607. New Mexico Territory. g 608. New York. g 609. North Carolina. g 610. Ohio. g 611. Oregon. g 612. Pennsylvania, g 613. Rhode Island. g 614. South Carolina. Contents. xxiii 615. Tennessee. 616. Texas. 617. Utah Territory. 618. Vermont. 619. Virginia. 620. Washington Territory. 621. West Virginia. 022. Wisconsin. 623. Wyoming Territory. 624. Eflfectof statutes giving time to record deed— Valid from delivery. 625. Protection of grantee.. CHAPTER XXII. REGISTRATION OP DEEDS. ? 626. In general. i 627. In England. § 628. Kegistration in the TTnited States. g 629. Kegistration not necessary between the parties. g 630. Registration of mortgages in book of deeds. g 631. Mortgagee considered a purchaser. g 632. Pre-existing debt. g 633. Assignee of mortgage considered a purchaser. g 634. Judgment creditors. g 635. In some States judgment creditor considered within the registry acts. g 636. Actual notice subsequent to the lien in these States. I 637. Purchasers at execution sale. g 636. Purchasers at such sale with notice. g 639. Rights of judgtnent creditor as purchaser — Comments. g 640. General rule — Judgment creditor is not bona fide purchaser. g 641. Contrary rule in Iowa. g 642. Comments. g 643. Mortgage for purchase money. g 644. Administrator's deed and prior unrecorded mortgage. I 645. Compliance with preliminary requirements. g 646. Illustrations— Attesting witnesses. g 647. Attachment at time of acknowledgment. g 648. In capacity to take acknowledgment. g 649. Omission of name of grantee. 'f, 650. Description of land. g 651. Illustrations of description insufficient to give constructive notice. g 652. Illustrations where purchaser bound, though description inaccu- rate. g 653. Description by impossible sectional number. g 654. Distinction between description in deed and in mortgage. g 655. Comments. g 656. Instruments not entitled to registration. g 657. Illustrations. xxiv Contents. g 658. Want of delivery. i 659. Equitable mortgages. i 660. Assignment of mortgage. g 661. In some States, defective deeds if recorded impart notice. I 662. In Kansas. g 663. Registration in wrong county. g 664. Land in two counties. g 665. Registration of copy of deed in proper county. g 666. Certified copy of deed recorded in wrong county as evidence. g 667. Presumption of actual notice from examination of records. g 668. Comments. g 669. Change of boundaries of county. g 670. Purchaser under quit-claim deed — Comjnenta. g 671. View that such purchaser is not entitled to the protection of the registry acts, g 672. View that such purchaser is entitled to the full protection of the registry laws, g 673. Comments. g 674. Intention in quit-claim deed to pass grantor's interest only, g 675. Another illustration, g 676. Reservation in quit-claim deed as affecting prior void or voixlable deed, g 677. Record partly printed, g 678. Interest of recording officer, g 679. Time at which deed is held to be recorded. g 680. Mistake of copying deed in.jecord — Conflictingviews — Comments, g 681. View that grantee is not affected by mistake in copying deed, g 682. Reasonable precaution, g 683. Contrary view that purchaser is bound by what appears upon record, g 684. Fuller presentation of this view, g 685. Views of Mr. Pomeroy. g 686. Comments, g 687. Effect of mistake in copying deed when considered reooided as soon as filed, g 688. Effect of mistake where opposite view prevails, g 689. Continued, g 690. Destruction of record, g 691. Proof of deed where record is destroyed, g 692. Index as part of the record — Comments, g 693. View that deed improperly indexed does not give canstmctlve notice, g 694. Decisions in Iowa on this question, g 695. View that mistake in index has no effect npon record. g 696. Comments. g 697. Liability of recording officer for error, g 698. Correction of mistake in record. g 699. Reformation of deed — Correcting record, g 700. Copy of seal. g 701. Filing deed with person in charge of office. g 702. Comments. g 703. Registration of deeds when State Is in rebellion, g 704. Payment of fees. Contents. xxv 705. Proof of time at -which deed is recorded. 706. Withdrawing deed filed for record. 707. Constructive notice. 708. Deposit subject to further order. 709. Priority between deeds recorded on same day. 710. Facts of which the record gives notice. 711. Notice of unrecorded deed from notice of power of sale. i 712. Record is not notice to prior parties. ' 713. Record is notice only to purchasers under the same grantor. I 714. Illustrations. i 715. Record of deed subsequent to mortgage not notice to mortgagee. ! 716. Subsequent purchaser should notify mortgagee. ! 717. Actual notice. I 718. Notice of unrecorded deed. I 719. Unrecorded deed and recorded purchase money mortgage. i '720. Comments. i 721. Subsequently acquired title inuring to benefit of grantee, I 722. Comments. j 723. How far back purchaser must search, i 724. Correct rule. THE LAW OF DEEDS. CHAPTER I. INTEODXJCTOEY CHAPTEE. I 1. Introductory. I 2. Historical view. ? 3. Statute of quia emptores. i 4. Statute of frauds. § 1. Introductory. — A title is the means whereby the owner of lands has the j ust possession of his property. Titulus est jvMa causa possidendi id quod nostrum est} In the ordinary accepta- tion of the term, a purchase is the voluntary conveyance of title by one living person to another. But in law, it signifies the acquisition of title by some act of the parties. Used in this sense, it includes title by deed, title by matter of record, and title by devise.^ The term " purchase " is employed in contra- distinction to "descent," where title is vested by operation of law.^ The general distribution of title to land is into the heads enumerated, " purchase " and " descent." By some, however, a less objectionable division has been considered to be title by purchase and title by act of law, the latter including descent, escheat, and forfeiture.* By American authors a new title, unknown in the common law of England, has been added ; that is, title by exe- cution.^ The present treatise will be devoted to a consideration of the acquisition and conveyance of title by the voluntary act of the parties ; or in other words, of transfer of title by deed. ' Tliis is the definition given by Sir Edward Coke : Co. Litt. 345 ; 2 Blackst. Com. 195. ^ Green v. Blancliar, 40 Cal. 194 ; Litt. § 121 ; 4 Kent Com. 441 ; 2 Blackst. Com. 201. 3 "Purchase includes every mode of coining to an estate except inheritance " : Rhodes, C. J., in Greer v, Blanchar, 40 Cal. 194, 196. * Hargrave's note, Co. Litt. 18 6. 6 i Kent Com. 424. I. Deeds. — 1. § 2 LNTEODUCTOEY. 2 § 2. Historical view. — It is difficult for us of the present day to conceive that the power of alienation, subject to the modifications and restraints required by civil society, or imposed by civil institutions, is not a necessary and inseparable incident of ownership. In fact, the very word implies such a right of disposition. It has been said that, "the alienation of property is among the earliest suggestions flowing from its existence." ^ It appears that at the time of the inhabitation of England by the Anglo-Saxons, the right of alienation, either by deed or will, existed.^ A distinction was made, it is to be observed, between boo, or bookland, and fololand; the former being conveyed by charter or deed, while the latter was conveyed without writing.' Even at that day, the right of disposition was subject to many restrictions. Not, however, until the feudal policy had attained ' The oldest conveyance of which any account has been transmitted, Barrington remarks, was that of the cave of Machpelah, from the sons of Heth to Abraham. He quotes from Genesis xxiii : " And the field of Ephron, which was in Machpelah, which was before Mamre, the field, and the cave which was therein, and all the trees that were in the field, that were in all the borders round about, were made sure unto Abraham " : Barrington on Statutes, 4th ed. 175. ' Brevity and simplicity were characteristic of Saxon deeds. The wjords of conveyance were do et concedo, dabo, trado, or similar terms, expressed either in Latin or Saxon. They also contained a consideration wikh a brief description of the premises, following with the tenure, ending with the date, which, however, in some cases was placed at the beginning. The introduction of wax seals dates from the Norman conquest, as the Saxons possessed none: 2 Turner's Ang.-Sax. 351, 352; 3 Wash. Keal Prop. 234. As an instance of the ordinances, in those early times, the fol- lowing is taken from the Mirrour : " None might alien but the fourth part of his inheritance, without the consent of his heirs ; and that none might alien his lands by purchase from his heirs, if assigns were not specified in the deed " : P. 11. ' Wright on Tenures, 154, n.; Reeves' History of the English Law, vol. I., 1, 5, 10, 11 1 Spelman on Feuds, ch. 5 ; Spelman on Deeds and Charters, b. 7, ch. 1 ; 2 Blaekst. Com. 90 ; 4 Kent Com. 442. In Spelman's Glossary it is said that bocland was hereditary, and could not be conveyed from the heir without his consent, thougli that restriction was finally removed • nor could it be devised by will. It was the folcland that was alienable and devisable, and that possessed the nature of allodial property. (See tit. Bocland and Folcland.) According to Mr. Spence, folcland was left by the Saxons without specific appropriation, and subject to future appro- priations, and considered as fiscal domains : Equitable Jurisdiction of the Court of Chancery, I., 8, 9. The same author says that it was the iocland that in the Saxon times was allodial, and could be freely disposed of by gift, sale, or will : Equitable Jurisdiction of the Court of Chancery. 20, 21. S INTEODUCTOEY, § 3 its supremacy throughout Europe were rigorous restrictions imposed upon the free alienatioa of lands. As the law of feuds would not permit the vassal to alien the feud, without the con- sent of the heirs, even though the lord had given his consent, these restrictions were in a measure in favor of the tenant. But the lord was considered as possessing an abiding interest in the allegiance of his vassal, and consequently these restraints arose chiefly from favor to the lord. Restraints upon alienation were gradually eluded by the practice of subinfeudations. Portions were carved out of the fief, which were to be held of the vassal, by his subvassal in the same manner, and by the same tenure with which the vassal held of the chief lord of the fee. This practice was encouraged by the subordinate feudatories, because it tended to augment their power, and assisted, in part, the attainment of their own independence. As a curious incident- in history, it may be remarked that the crusades undoubtedly exercised a potent influence upon aliena- tion of real property. Those who engaged in these expedi- tions abandoned their inheritances, and hence they became objects of little interest to them. In the reign of Henry I. a law was passed, the effect of which was to relax this restraint as to purchased lands; for over these a man was naturally deemed to possess a greater power than over those transmitted to him by descent. But there was a limitation placed upon this power, that he should not dispose of the whole of his possession so as to cause the complete disinheritance of his children. Nor did this power of alienation extend to those lands which were ancestral.^ § 3. The statute of quia emptores,^ establishing the right of alienation by the subvassal, and the statute of uses, dispensing with the necessity of livery of seisin, a -material part of the common-law conveyance of feoffment, made or tended to make lands freely alienable.* But anterior to the passage of the statute of frauds* there was no law which rendered necessary, as a 1 Lombard's Arch. 203. « 18 Edw. I. 8 2 Blackst. Com, 289 ; 4 Kent Com. 444, 445 ; 3 Wash. Real Prop. 553. • 29 Car. n. f 4 INTEODUCTOEY. 4 mode of conveying lands, a deed or instrument in writing ; * excepting, of course, the conveyance of interests in lauds which on account of their incorporeal nature could not be accompanied by a formal livery of seisin. These were said to lie in grant and not in livery, and could be transferred only by means of a deed,^ Another exception to be noted is in respect to a convey- ance by bargain and sale, which by the provisions of the act of enrollment* required a deed indented and enrolled. This statute had no application, however, to those other deeds which derived their operation and validity from the statute of uses; nor did it apply to deeds of feoffment.^ § 4. Statute of frauds. — The statutes of the different States conform to the English statute of frauds, differing, naturally, in a fe^ minor particulars, but in all a written instrument is necessary for the conveyance of land or of any interest in land. Performance of a condition in an agreement does not operate to revest the legal title in the grantor. A reconveyance is required, and that can be enforced only in equity. Accordingly, a writ of entry, or other equivalent real action, cannot be maintained against a tenant who holds an absolute deed from the demand- ant's or plaintiff's grantor, prior to the deed held by the demand- ant, although he, the tenant, has given a written agreement, not under seal, to reconvey to the grantor on performance of a con- dition, and the condition has been performed.^ The fourth section of the statute of frauds enacts that "no action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate ; or to ' Roberts on Frauds, 270 ; Browne's Stat. Frauds, 3, 4 ; Williams on Real Prop. 126. 2 1 Wood on Conv. 7, 8 ; 2 Blaokst. Com, 317 ; 3 Wash. Real Prop. 553. » 27 Hen. VIII., oh. 16. * Williams on Real Prop. 150. Reeves' History of the English Law con- tains a full statement passim, of the progress of the law of alienation, and a view of the same subject may be obtained in Sullivan's Historical Treatise on the Feudal Laws, §§ 15, 16 ; likewise in Dalrymple's Essays on Feudal Property, ch. 3. Blaokstone treats of the subject of alienation of land in his accustomed happy manner: 2 Blaokst. Com. 287-290. Reference is made to the same subject in Millar's Historical View of the English Government ; likewise in 4 Kent Com. 445 ; and"\u 8 Wash. Real Prop. (4th. ed.) 232. 5 Wilson V. Black, 104 Mass. 406. See also Cranston v. Crane, 97 Mass, 459, 5 INTEODUCTOEY. § 4 charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person ; or to charge any person upon any agreement made in consideration of marriage ; or upon any contract, or sale of lands, tenements, or heredita- ments, or any interest in or concerning them, or upon any agree- ment that is not to be.performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged there- with, or some other person thereunto by him lawfully author- ized."^ Owing to the similarity of the statutes of the different States to the original act, our courts adopt the decisions in Eng- land, respecting its construction, as good authority.^ Many questions as to what is to be deemed a signature, within the meaning of the statute, to what interest in land the statute applies, and other cognate questions, have arisen, attention to which will be given iu their proper order. ' The Civil Code of California declares : " The following contracts are invalid, unless the same, or some note or memorandum thereof, be ia writing, and subscribed by the party to be charged or by his agent An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein, and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the author- ity of the agent be in writing, subscribed by the party sought to be charged " : Civ. Code, g 1624, subd. 4. A similar provision is contained also in the Code of Civil Procedure, § 1971. ' Bowman v. Conn, 8 Ind, 58. CHAPTER II. DEFINITIONS AND DIFFERENT KINDS OF DEEDS. g 5. What is a deed — Definitions. . g 6. Agreement for a deed g 7. Same continued, j 8. Illustrations. g 9. Classification of deeds at common law. I 10. Feoffment, g 11. Gift; I 12. Grant. 1 13. Lease. 2 14. Exciiange. i 15. Partition. g 16. Release. g 17. Confirmation. g 18. Void deeds. g 19. Surrender. g 20. Assignment. g 21. Defeasance. g 22. Deeds under the statute of uses. g 23. Bargain and sale deeds. g 24. Covenant to stand seised to uses. g 25. Lease and release. g 26. Fine and recovery. g 27. Quit-claim deeds. § 5, What is a deed — Definitions. — The definition given by Lord Coke of a deed, is "a writing sealed and delivered by the parties."^ By another writer it is said "deed is somewhat used in jurisprudence in its general and vernacular sense of an act, something done. More frequently it has a technical meaning, denoting, first, a written instrument; and secondly, and more specifically, a conveyance. In the first and broader of these mean- ings, deed includes all varieties of sealed instruments. Even bonds and executory contracts under seal may be included by the term. Still more clearly may assignments, leases, mortgages, and releases. In the second and more common yet narrower mean- ing, deed signifies a writing under seal conveying real estate. It ' Co. Litt. 171 ; 2 Elaokst. Com. 295. 7 DEFINITIONS AND DIFFERENT KINDS. § 6 IS substantially the same in extension as conveyance, except that conveyance points to the transaction, the transfer, while deed points to the form of the instrument." » Although the word "deed" in its largest sense includes a mortgage, yet when the language of a contract shows that it was employed in a limited signification, and as meaning an instrument conveying the title to land,' it will not be held in the construction of a contract to include a mortgage.^ As the term is commonly used, a deed may be defined as "a writing under seal by which lands, tenements, or hereditaments are conveyed for an estate not less than a free- hold."' And in those States which have dispensed with the necessity of a seal, the words under "seal" in the definition would be surplusage. As, however, the law relating to the general requisites of deeds, their execution, acknowledgment, and registration, is common to all instruments or conveyances affect- ing title to real estate, the word "deed" in the present treatise, so far as these specified subjects are concerned, will be taken in its broader and general sense.'* § 6. Agreement for a deed. — A distinction is to be drawn between a deed and an agreement for a deed. But to determine ^ Abbott's Law Diet. tit. Deed. ' Hellman v. Howard, 44 Cal. 100. ' 2 Sharswood's Blackst. Com. 294. ' An instrument in writing under seal, whether it relates to the convey- ance of real estate or to any other matter, as for instance a bond, single bill, agreement, or contract of any kind, is as much a deed as is a conveyance of real estate: Taylor v. Morton, 5 Dana, 365. A deed is nothing more than an instrument or agreement under seal : Master v. Miller, 4 Term Kep. 345. A deed does not ex vi termini mean a deed with covenants of warranty, but only an instrument with apt words conveying the property sold : Ketchum V. Everson, 13 Johns. 364. A deed is a writing sealed and delivered : Osborne v. Tunis, 25 N. J. L. 360. "A writing or instrument written on paper or parchment, sealed and delivered " : Jeffreys v. Under- woods, 1 Ark. 112. " Of old the definition of a deed was an instrument consisting of three things, viz., writing, sealing, and delivery, compre- hending a bargain or contract between party and party, man or woman" ; Best V. Brown, 25 Hun, 223. A written instrument under seal containing a contract or agreement which has been delivered by the party, to be bound and accepted by the obligee or covenantee : McMurtry v. Brown, 6 Neb. 370. Deed is a writing on paper or parchment, sealed and delivered. Acknowledgment is not a necessary part of the deed : Wood v. Owings, 1 Cranch, 239, 241. In Michigan, the- word " deed " in the laws relating to forgery, includes a mortgage : People v. Caton, 25 Mich, 388. § 7 DEFINITIONS AND DIFFEEENT KINDS. 8 whether an instrument which is capable of bearing more than one construction, or which is drawn up without regard to the usual forms, is a deed, or simply an agreement for a deed which a court may enforce, is often a question of considerable difficulty. Each case must, of course, depend upon its own peculiar circum- stances, but we may state, as a general rule, that whether an in- formal instrument purporting to transfer an interest in real estate shall operate as a conveyance of the title or only as an agreement to convey, depends, not upon any particular words and phrases, but on the intention of the parties, as collected from the whole con- tract, and then, in case of doubt, resort is to be had to the cir- cumstances attending the transaction.^ Thus, where a father conveyed land to his three sons, who bound themselves by a writing under seal, to pay to their sister one fourth of the value of the lands, at that time, after payment of the debts of their father, the court considered the agreement to be a mere covenant, and that it did not operate as a conveyance to the sister of any interest in the lands.* § 7. Same contiinied. — The strongest words of conveyance in the present tense will not pass an estate if from other parts of the instrument a contrary intent be apparent.' Though formal and apt words may be used in a deed, yet, if it be appar- ent from the other parts of the instrument, taken and compared together, that all that was intended was a mere agreement for a conveyance, the intent shall prevail.* For illustration, a deed purported by its formal commencement to be only articles of agreement, and concluded by binding the parties to each other ' Kenrick v. Smick, 7 Watts iold unto Alexander Chapman the f'oUowing described tracts of land [the land being described]. Now should the said Glassell make to the said Alexander Chapman titles in fee- simple to the above mentioned tracts of land, then this obligation to be void, otherwise to remain in full force and effect. It is further agreed between the parties, that said Glassell shaU make such titles as he has to the above land." A writing in the form : "This is to certify that I have bargained and sold the one equal half of lot No. 30, in the great location of the sable, for fourteen shillings per acre, to Rufus Green, the interest to commence from the 1st July, 1792," was held to be a mere agreement for a conveyance and not a conveyance or a lease : Jackson v. Clark, 3 Johns. 424. » 2 Blackat. Com. 310 ; 3 Wash. Real Prop. 603. §§ 10-11 DEFINITIONS AND DIFFEEENT KINDS. 12 ■which declare that a prescribed form shall be sufficient to operate as a transfer of title refer, directly or indirectly, to these common - law modes of conveyance, as common and usual forms. But as most of them have fallen into disuse, a very brief description only of each will be given. § 10. PeofFment. — Feoffinent has given place in England to other modes of conveyance ; and it was never in use to any con- siderable extent in this country.' It was defined as "the gift of any corporeal hereditament to another."^ It consisted in a formal declaration by the feoffi)r, that he gave the estate to the feoffee, accompanied by a public delivery of the possession of the land. ' This delivery of possession was termed livery of seisin, which was "in deed," when it took place on the land, and "in' law," when it was made in sight of the land.^ This mode of con- veyance was necessary to the transfer of those estates only which took effect in possession, and hence, it was requisite that the feoffment and livery of seisin should both occur at the same time. The custom arose even before the statute of frauds of making written deeds, expressing the intention of the parties and the terms of the gift. These deeds did not, however, dispense with the necessity of livery of seisin, as they did not of them- selves pass the title, but were only evidence of the transfer.* § 11. Gift. — When an estate in tail is created, the proper mode of conveyance is a " gift," as feoffment is strictly applied to the conveyance of an estate in fee.^ This is using the term "gift" in its stricter sense; for in its largest signification, it includes a gratuitous transfer of property, or a transfer without a valuable consideration.' Where a mother made a deed to her ' See Eckman v. Eokman, 68 Pa. St. 460 ; Perry v. Price, 1 Mo. 553 ; Bryan v. Bradley, 16 Conn. 474. ' 2 Blackst. Com. 810. See French v. French, 3 N. H. 234, 260. ' Co. Litt. 48 a ; 2 Blackst. Com. 315. * The possession of a deed by one who purports to be the grantee of an estate is no evidence of title in the grantor, unless his possession at some time of the land granted or his ownership is shown aliunde : Smith v. Lawrence, 12 Mich. 431. 6 2 Blackst. Com. 316. ' Wood on Conv. 1 ; Watkins on Conv. (Preston's ed.) 199. And see Pierson v. Armstrong, 1 Iowa, 282. 13 DEFINITIONS AND DIFFERENT KINDS. § U eight childrcD, some of whom were married women, conveying eight ninths of two large tracts of land, reserving one ninth to •herself, and the deed stated that it was made " in consideration of the natural love and affection which I have and bear to my said children, and for the further sum of five dollars, to me in hand paid before the sealing and delivery of these presents," it was held that the deed imported upon its face a gift within the meaning of the provisions of the Constitution and statutes of California, relating to the separate property of married women, and not a conveyance for a pecuniary consideration.^ Under the law of California, the grantees therefore took a separate estate. So, where a grantor conveyed to his children an undivided inter- est in a six-league ranch of great value, in consideration of love and affection, "and in the further consideration of four hundred and sixty-one dollars, to him in hand, paid by said parties of the second part," it was held that the deed itself, in connection with the difference between the value of the property conveyed and the small sum named as the consideration, and in view of the condition of the parties, their relations, and the surrounding circumstances, showed that the transaction was a gift, and not a sale.^ Where possession is given and taken, and acts are per- ' Peck V. Vandenberg, 30 Cal. 11. ' Salmon v. Wilson, 41 Cal. 595. Said Crockett, J., in delivering the opinion of the court : " If the recital of this paltry money consideration, so insignificant as compared with the value of the estate, is to convert the transaction into one of bargain and sale, no reason is perceived why the same result would not have ensued if the sum named had been one dollar or one cent for each of the children, instead of fifty-eight dollars. The disproportion between the price named and the value of the estate would only have been a trifle greater in the one case than in the other ; but in either case is so enormously large as clearly to indicate that the money consideration did not, in fact, enter into the transaction as one of its mate- rial elements. It was clearly the intention of Bojorques to donate this large and valuable estate to his children in equal portions, and not to sell it to them. Hence, we find the conveyance to his married daughters is made to them in their own names, excluding their husbands ; and in the case of Theodosia, she is named by her maiden name, and her husband is not referred to. The parties to the deed must be presumed to have known that under the law, as it then was and now is, all property acquired by the wife during the marriage by gift, bequest, devise, or descent, became her separate estate, and that all acquired otherwise became the common property of the husband and wife, and was subject to disposition by the husband without the consent of the wife. It is clear that Bojorques, in conveying this valuable property to his married daughters, had no inten- § 12 DEFINITIONS AND DIFFERENT KINDS. 14 formed by the donee to carry out the gift, it may be made by parol. An equitable title passes, and the donees can obtain a decree giving them the legal title, or can acquire such title by adverse possession for the statutory period.^ Where both hus- band and wife were named as grantees in a deed reciting the payment of a money consideration, no consideration, however, having been paid, and the evidence showing that the conveyance was intended as a gift, it was held in Texas, that by the terms of the deed, the gift was to both husband and wife, and that the wife obtained an undivided half interest as her separate property.^ § 12. Grant. — Conveyance by grant is said to be " the regular method by the common law of transferring the property of incor- poreal hereditaments, or such things whereof no livery can be had."* But in England, by the Act of 8 and 9 Vict. 106, § 2, corporeal as well as incorporeal hereditaments may now be trans- ferred by deed of grant. In California as also in New York, grant is used as a generic term, including all kinds of transfers of title to real estate.* Taken in its largest sense, grant may include feoffments, bargains and sales, gifts, leases in writing, and perhaps without writing; in a word, it may be applicable to all transfers of real property.^ As there could be no livery of seisin of incor- tion to convey It, practically, to their husbands ; and particularly in the case of Theodosia, who had been, for some years, living apart from her husband. But if we should hold that the insertion in the deed of an incon- siderable money consideration by the scrivener who drew it up had the effect to convert the transaction into one of sale, I am convinced we would give an effect to this deed which never entered into the minds of the parties to it at the time it was made." 1 Bakersfleld Town Hall Association v. Chester, 55 Cal. 98. See also :as to gifts, Adams v. Lansing, 17 Cal. 629 ; Barker v. Koneman, 13 Cal. 9. 2 Bradley v. Love, 60 Tex. 472. . « 2 Blackst. Com. 317. • Civ. Code Cal. g 1053. In Vermont and New Jersey, it has a similar TQeaning, applying in the former to aU conveyances by deed, except those ■of gift, and in the latter signifying every ordinary mode of acquiring prop- erty by deed, and comprising such as operate by way of uses : 3 Wash. Heal Prop. 605. s Ross V. Adams, 28 N. J. L. 160, 165. Vredenburg, J. said: "Did the legislature intend to use these terms ' gift ' or ' grant ' in their narrowest tech- nical sense. I think not ; but to embrace in the terms ' gift ' and ' grant ' ' devise ' or ' bequest,' all the modes of acquiring property, except, perhaps, by descent. This language is used by the legislature of 1852. Gift and grant had then long ceased to be understood, even by the profession, and in all ordinary instruments, even such as deeds, in their ancient technical mean- 15 DEFINITIONS AND DIFFERENT KINDS. § 13 poreal rights, they were said to lie in grant and not in livery. Hence, the only method by which they could be conveyed was by deed of grant, followed by delivery of the deed to the grantee.* § 13. Lease. — Lease is a conveyance of lands and tenements to a person for life, or years, or at will, in consideration of a return of rent or other recompense.^ In early times, a writing was not neces- sary for the creation of a lease for any period. But an entry was necessary for its perfection, for after entry, the lessee had the capacity to take a conveyance of the reversion or remainder, by a deed simply dispensing with the ceremony of livery of seisin. The old rule that a freehold could not commence in futuro did not apply to leases, as the feudal seisin of the land was not affected by the grant of a term.' ing. In practice for many years, females as well as others had ceased re- ceiving lands by the strict technical forms of gift or grant. It cannot be intended that the legislature meant to restrict the rights of married women to lands received in a mode which had fallen into disuse. In the State of New York the term ' grant ' had for many years technically as well as in common language, included all modes of acquiring lands by deed or con- veyance. It is true that this was done by special statute ; but still this had only the more strongly fixed this meaning in the public mind. The Verjnont statute provides that any rights in real estate which afemnie covert may acquire by gift, grant, devise, or inheritance during coverture, shall not be liable for the debts of the husband. These words ' gift ' or ' grant,' came up for construction in the case of Peck v. Walter, 26 Vt. 85, wherein Kedfield, Chief Justice, in delivering the opinion of the court, says : ' It is very apparent that the statute was intended to embrace all rights in real estate which the wife shall acquire during coverture. It would be a very nice, and as it seems to me, a very unintelligible construction of this statute to limit the word " grant " to its narrowest technical import. It evidently was intended to apply to all conveyances by deed which were not gifts.' That case was like the present, a mortgage of the wife's property by the hus- band, the wife not joining. In our statute, by the term ' grant,' the legisla- ture intended all the ordinary modes of acquiring property by deed, whether operating by force of the statute of uses or not, that by long usage such had not become not only the popular but also the technical meaning of the term . " 1 This for that matter is stUl the law, as an easement over land, or a right to take coal or timber from land, can be conveyed or created only by deed : Huff u. JVIcCauley, 53 Pa. St. 206 ; Drake v. Wells, 11 Allen, 141. This matter will be fully treated in a subsequent chapter. Where " give and grant " a*-e followed by " bargained and sold," these words qualify the mode of gift and grant, and as a result convert the conveyance into a bargain and sale without its being a feoffment : Matthews v. Ward's Lessee, 10 GUI & J. 443. * Cruise Dig. tit. Lease. ' Williams v. Downing, 18 Pa. St. 60. In that case there was an assign- ment of a lease to commence in futuro. §§ 14-15 DEFINITIONS AND DIPPEEENT KINDS. 16 § 14. Exchange. — An exchange is a mutual grant of equal interests, the one in consideration of the other. The estates exchanged must be equal in quantity, not necessarily of value, for that is considered immaterial. The equality must be of interest ; as for instance, fee-simple for fee-simple, a lease of twenty years for a lease of twenty years, and the like.^ At common law the exchange was perfected by an actual entry, and was not consid- ered complete until then, but livery of seisin as such was not necessary. The transaction was not valid without a deed when the interests exchanged included estates not in possession.* Where each of two persons owns a tract of land under a bond for a title, they cannot, it is held, under the statute of frauds, exchange the tracts by surrendering possession and delivering the respective bonds to each other.* § 15. Partition. — Partition is a division of real estate made between joint owners, such as coparceners, joint tenants, or ten- ants ia common. When partition was made between joint ten- ants or tenants in common, a deed was required, and in every case livery of seisin was necessary.* The power of compelling partition is a branch of the jurisdiction in equity, and as such has been exercised in England since the time of Elizabeth.** ' Wilcox V. Bandall, 7 Barb. 633. Exchange of lands is a mutual grant of equal interests in lands or tenements, the one in exchange of the other : Long V. Puller, 21 Wis. 123. " Deane's Princ. of Conv. 303. In cases of this kind it was necessary to use the word escambium, or exchange. That the deed should be indented seems also to have been considered necessary : Co. Litt. 51 ; 3 Wood on Conv. 243 ; Watkins on Conv. b. 2, oh. 5 ; Cruise Dig. tit. 32. 3 Connor v. Tippett, 57 Miss. 594. In Kaubitschek v. Blank, 80 N. T. 478, A and B verbally agreed to exchange real estate, A to pay B five hundred dollars as the difference in value of the two tracts of land. A gave a check for that amount in payment, and B signed and delivered a receipt for that amount. In an action on the check, which had been lost, there was parol evidence that it specified the lands, the price of each piece, and the amount of the mortgages to be executed, but it did not appear that the terms of credit were specified. A refused to enter into the written con- tract, and stopped payment of the check. The court held, Folger, J., dis- senting, that the burden was uponAtoshowa failure of consideration ; that the receipt and check taken together showed a good consideration for the check, the contract being valid under the statute of frauds, and that it was enforcible in equity against B. * 2 Blackst. Com. 324. » Story Eq. Juris. § 647 ; 1 Wash. Real Prop. 677. 17 DEFINITIONS AND DIFFERENT KINDS. § 16 Though it has lost its early incidents, partition is retained as a means of securing the division of property; and in the United States, where the rules and method of procedure in partition are generally provided for by statute, courts of equity, unless the statute takes away their power, still maintain their original jurisdiction over it. In one case, where it was contended that the statute furnished an exclusive remedy, the court said: " This bill is in the form of a bill for a partition, and it may be properly regarded as a bill in equity. We think such a bill may be well maintained. There are no negative words in the statute providing for a partition upon petition, and the partition of real estate is an undoubted branch of equity jurisdiction. The proceeding in equity is much more simple and convenient than that provided by statute, which is rendered difficult and annoy- ing by a great number of rigid rules as to details."^ § 16. Release. — In a conveyance by release a formal livery of seisin was not necessary, as the lessee was already in posses- sion, but an express release by act of the parties required a deed.* A release was used to add a reversion or remainder to an estate for life or for years, or to convey an undivided interest in land to a joint tenant. It was a discharge or conveyance of a man's right in lands or tenements to another who already had an estate in possession.* As this mode of conveyance derived its force from the possession given to the lessee under the statute of uses, it required two deeds, a lease and a release.'* With the exception that possession in the lessee or grantee is not necessary, deeds ' Whitten v. Whitten, 36 N. H. 326, per Bell, J. See Patton v. Wagner, 19 Ark. 233 ; Adams v. Ames Iron Co. 24 Conn. 230 ; Spitts v. Well, 18 Mo. 468 ; Greenup v. Sewell, 18 111. 53 ; Welbridge v. Case, 2 Cart. 36. ' Deane on Conveyancing, 304. 3 Burton Real Prop. 15 ; Shep. Touch. 320 ; 3 Wash. Keal Prop. 606. ♦ trntil the passage of the Statute of 7 and 8 Vic. ch. 106, this was the usual mode of conveyance in England ; but the Statute of 1841 dispensed with the necessity of a formal lease : Williams Keal Prop. 146 ; Rogers v. Eagle F. Ins. Co. 9 Wend. 611, 628 ; Lalor on Real Estate, 249. The statute refers to persons who have a use " in fee-simple, fee-tail, for a term of life, or for years," and provides that they "shall henceforth stand, and be seized, deemed, and adjudged, in lawful seisin, estate, and possession, of and in the same." The statute makes the interest an estate, without an actual entry, which was necessary at common law : Burton Real Prop, g 131, p. 43, n. I. Deeds. — 2. §§ 17-18 DEFINITIONS AND DIFFERENT KINDS. 18 by release, in some respects, resembled our modern quit-claim deeds.* § 17. Confirmation. — A confirmation is the approbation or consent to an estate already created, which as far as it is in the confirming power, makes it good and valid.^ "Confirmation may make good a voidable or defeasible estate, but cannot operate upon or aid an estate which is void in law, but only confirms its infirmity."* For this reason, where a municipality had mortgaged its lands, and the lands had been sold to certain purchasers at the foreclosure sale, the court held that an agree- ment between the municipal authorities and the purchasers at the judicial sale, confirming unto them all the rights and interests in such lands which they acquired by their purchase at the sheriff's sale, and releasing unto them all the right and title which the city then had, or might afterwards have in the lands, was void, the original mortgage being void, and conferred upon the purchasers no new right.* Under some circumstances, to efiectuate the intention of the parties, effect will be given to deeds of confirmation as bargain and sale deeds.® § 18. Void deeds. — But a deed that is void for want of a ^delivery, or through a mistake in reciting the name of the ' See g 27. The words generally used in such a conveyance at common ilaw were " remise, release, and forever quit-claimi," similar to the language employed in quit-claim deeds: Lltt. J 445. In some of the States the only difference between them and quit-claim deeds is that the latter are treated as original conveyances : Kerr v. Freeman, 83 Miss. 292 ; Rogers v. Hill- house, 3 Conn. 398 ; Hall v. Ashby, 9 Ohio, 96 ; Wade v. Howard, 6 Pick. 492. See also Doe v. Reed, 5 111. 117 ; Pray v. Price, 7 Mass. 331 ; 5 Am. Dec. 59 ; Porter v. Perkins, 5 Mass. 233 ; 4 Am. Dec. 52. ' People V. Law, 34 Barb. 511. ' Sanderson, C. J., in Branham v. Mayor etc. of San Jose, 24 Cal. 585, 605, who quoted the maxim, confinnatio est nulla ubi donum precedens est invalidum, et ubi donatio nulla est, nee valebit conflrmaUo. An exception and perhaps the only one to this rule is where the confirmation is the act of the sovereign will : 8 Com. Dig. 139 ; Blessing v. House, 3 Gill & J. 290. « Branham v. San Jose, 24 Cal. 585. See Chess v. Chess, 1 Pen. & W. 32 ; .21 Am. Dec. 850. 5 Love V. Shields, 3 Yerg. 405 ; Fauntleroy v. Dunn, 3 Mon. B. 594. A party must have knowledge of his rights to make a confirmation valid ; and when it appears that there was fraud in the transaction, he must in full cognizance of It, intend to confirm the transaction to make his act effectual : See Adlum v. Yard, 1 Rawle, 171 ; Stroble v. Smith, 8 Watts, 280. 19 DEFIKITIOXS AND DIFPEEENT KINDS. §§ 19-20 grantee, cannot be confirmed by a subsequent deed given for that purpose.' If by reason of fraud a deed is void, it cannot be made valid by the legislature so that the rights of third persons shall be affected." If a second deed contains recitals that It IS given to confirm a former one in which there were mistakes, and the first deed was void, thus rendering confirma- tion impossible, the recitals in the second deed may be considered surplusage, and if apt words are used, it will be sufficient to pass the title.' *^ § 19. STurender.— A surrender is the yielding up of an estate for life or years to him that has the immediate reversion or remainder, wherein the particular estate may merge or drown by mutual agreement between them.* At common law, a sur- render was of two sorts; the first by a surrender in deed or by express words in writing where the words of the lessee to the lessor constitute a sufficient assent to give him his estate back again ; and the second being a surrender in law, as if a lessee for life or years take a new lease of the same land during the term, this will be considered a surrender in law of the first lease.** § 20. Assignment — In common language this term signifies the transfer of all kinds of property, real, personal, and mixed, and whether the same be in possession or in action as a general assignment. In a more technical sense, however, it is usually applied to the transfer of a term of years ; but it is more particu- larly used to signify a transfer of some particular estate or inter- est in land.® An assignment at common law was understood to 1 Barr v. Sohroeder, 32 Cal. 609. » Smith V. Morse, 2 Cal. 524. See WiUdnson v. Iieland, 2 Peters, 672 ; Satterlee v. Mattbewson, 2 Peters, 380 ; Watson v. Mercer, 8 Peters, 88. s Barr v. Sohroeder, 32 Cal. 609. * Scott's Exrs. V. Scott, 18 Gratt. 159. A surrender of a lease is the yield- ing up of the estate to the landlord so that the leasehold interest becomes extinct by mutual agreement between the parties : Martin v. Steams, Sf Iowa, 347. 5 See Jacob's Law Diet. tit. Surrender. • Ball V. Chadwick, 46 HI. 31. It is the transferring and setting over to another of some right, title, or interest in things in which a third person, not a party to the assignment, has a concern and interest: Cowles v. Rickets, 1 Iowa, 585. Is the setting over or transferring the interest a man hath in anything to another : Perrine v. Little, 13 N. J. L. 248. §§ i21-23 DEFINITIONS AND DIFFERENT KINDS. 20 be a parting with the whole property.* When applied to a term of years it has the effect of substituting the assignee for the former lessee, and though he may not have entered on the land, of rendering him at once liable to all the obligations contained in the lease.* § 21. Defeasance. — A defeasance is an instrument which avoids or defeats the force or operation of some other deed ; and that which in the same deed would be called condition, is when found in another deed called a defeasance. But to be operative it must contain proper words to defeat or put an end to the deed of which it is intended to be a defeasance ; as that it shall be void or of no force or effect.* These instruments were generally used when mortgages were made, the mortgagor executing an absolute deed and the mortgagee giving back a deed of defeas- ance. But it is now the custom to insert the conveyance and all conditions to which it is subject in the same instrument, and hence the use of deeds of defeasance as separate acts has practi- cally ceased.* § 22. Deeds under the statute of uses. — In addition to the deeds enumerated as existing at common law, there were other conveyances which derived their effect from the statute of uses. These included bargain and sale, covenant to stand seised, and lease and release. None of these required an actual livery of seisin, and while a seisin is considered requisite to make the conveyance effectual, the statute transfers this ; that is, it executes the use by causing the union of the legal seisin with the equitable use, and the result is the creation of an entire legal estate from the two.* § 23. BargaJn and sale deeds. — A bargain and safe is a real contract whereby a person bargains and sells his lands to another for a pecuniary condition, in consequence of which a use arises > Potter V. Holland, 4 Blatohf . 210. ' Deane's Prino. of Conv. 302. The idea of assignment is essentially that of a transfer by one existing party to another existing party, of some species of property or valuable interest : Hight v. Sackett, 31 N. Y. 451, » Lippincott v. Tilton, 14 N. J. L. 364. * Deane's Prino. of Conv. 304. » 8 Wash. Eeal Prop. 605. 21 DEFINITIONS AND DIFFERENT KINDS. § 23 to the bargainee, and by the statute of uses the legal estate and actual possession are immediately transferred to the cestui que use, without any entry or other act on his part.* In one case it has been expressed as " the transfer and delivery of personal or real property by one person to another, in consideration of a price agreed upon between them, as the value of the property sold." " To operate as a bargain and sale deed, a pecuniary consideration is necessary.' And this must be either expressed in the deed or proved independently of it. If one is expressed, proof of its actual payment is not required, nor can it be con- troverted by evidence; and though the amount be nominal merely, it is sufficient.* But any consideration that is valuable, » Sifter V. Beales, 9 Serg. & B. 177. The statute thus dispenses with the necessity of livery of seisin : Chenery v. Stevens, 97 Mass. 77. ' Freeman v. Brittin, 17 N. J. L. 191, 231. " A bargain and sale is when a recompense is given by both parties ; as if a man bargains his land to another for money, here the land is a recompense to the one for the money, and the money is the recompense to the other for the land ; and this is properly a bargain and sale:" Sharington v. Shotton, Plow. 303. "A real contract on a valuable consideration, for passing or transferring lands from one to another : " Clarborne v. Henderson, 3 Hen. & M. 349. » Corwin v. Corwin, 6 N. Y. 842 ; Wood v. Chapin, 13 N. Y. 509 ; Cheney V. Watkins, 1 Har. & J. 527; 2 Am. Dec. 530. In Corwin i;. Corwin, supra, Johnson, J., speaking for the court, said : " There being neither livery of seisin nor possession under the deed, the plaintifls fail to make out a title, unless the deed can be sustained as a covenant to stand seised. It cannot operate in the first way, because it shows no pecuniary consid- eration ; nor in the second, because affinity by marriage is not a consid- eration on which a covenant to stand seised can be maintained. Of course I do not speak of a deed in consideration of marriage properly speaking, viz., of marriage to be had. This is a valuable consideration." In Wood V. Chapin, supra, Denio, C. J., said : " A bargain and sale before the stat- ute of uses rested on the goodness of the consideration, and hence it was that a consideration became the great point which deeds of conveyance turned, which were invented after statute in order to raise and convey uses : " See Jackson v. Cadwell, 1 Cowei), 622, 639 ; Jackson v. McKenny, 3 Wend. 233 ; 20 Am. Dec. 690.) * Jackson v. Alexander, 3 Johns. 484 ; Wood v. Chapin, 13 N. Y. 509, 517; Jackson v. Fish, 10 Johns. 456; Jackson v. Florence, 16 Johns. 47; Jackson v. Sebring, 16 Johns. 515 ; 8 Am. Dec. 357 ; Jackson v. Root, 18 Johns. 60. This is the rule declared in Okison v. Patterson, 1 Watts & S. 395, where it is said : "To raise a use by a deed of bargain and sale, a valu- able consideration must be expressed ; but as the smallest is sufficient, the amount of it need not be stated. Thus was the law held in Jackson v. Alexander, 3 Johns. 478; Jackson «. Boot, 18 Johns. 60; though it was ruled differently in Singleton v. Bremen [Bremar], 4 McCord, 12; and though the point was decided In Jackson v. Alexander, by a divided court, yet § 23 DEFINITIONS AND DLFPEEENT KINDS. 22 it has been held is sufficient.* As to the form of conveyances of this character, it is held that any writing containing a sufficient identification of the parties, a proper description of the land, an acknowledgment of a sale in fee of the vendor's right, for a val- uable consideration, and that is signed aad sealed by the grantor and duly attested, when necessary, is a good deed of bargain and sale." the masterly opinion of the maijority delivered by Chief Justice Kent seems to have put the decision on unshaken ground, that the rule requir- ing a consideration has become a matter of senseless form, a pepper-corn being sufficient ; that where a sum of money is stated, it is never a matter of inquiry whether it was paid ; and that since the substance is so entirely gone, the policy of giving effect to contracts, requires us to construe the cases which have modified the rule with the utmost liberality. By any other construction, the omission of a useless expression by the inadvert- ence or unskUlf ulness of the scrivener, would be suffered to destroy many a title and defeat many a fair conveyance for the sake of what, if it ever had any good in it, was at first an innovation on the common law borrowed from the chancery notion of requiring a consideration in every contract, whether sealed or not, and which has dwindled to a, shadow." See Pritchard v. Brown, 4 N. H. 397 ; 17 Am. Deo. 431. ' Jackson v. Leek, 19 Wend. 339 ; Springs v. Hanks, 5 Ired. 30 ; Wood v. Beach, 7 Vt. 522; Busey «. Keese^ 38 Md. 264. A consideration, it has been held in Missouri, Illinois, and Tennessee, is not necessary : Perry V. Price, 1 Mo. 553 ; Fetrow v. Merriwether, 53 111. 275 ; Jackson v. DiUon, 2 Over. 261. A deed that expresses a pecuniary consideration, and mani- festly intends to transfer in prcesenti all the estate of the grantor, though it may not be good as a deed of lease and release, nor, for want of a proper consideration, as a covenant to stand seized to uses, will be considered, notwithstanding the words " remise, release, and quitclaim," good as a deed of bargain and sale : Lynch v. Livingston, 8 Barb. 463. ^ Chiles V. Conley's Heirs, 2 Dana, 21. In that case the conveyance was in the following form : " For value received, I bargain and sell unto Arthur Conley my whole right of improvement made by John Brown, and all the land as far as Thomas Miller's claim interferes with my claim. Given under my hand and seal this 7th day of February, 1806. William Bridges. [Seal.] Test., Thomas Boyd, John Robinson." Chief Justice Robertson, in delivering the opinion of the court, remarked : " The literal import of this writing is that of an executed agreement or a conveyance of the title which the vendor held. It contains all the essential requisites of a conveyance in fee-simple. It is informal and unusually summary, when compared with the redundant, quaint, and prolix system of modern conveyances by deed. But it is not more laconic or less comprehensive than the ancient Saxon deeds, and it is almost as formal and elaborate as the antiquated charters of enfeoffment ; and indeed its form and style are, in some respects, preferable to the repletion and repetitions which unneces- sarily characterize and greatly deform modern deeds of conveyance. It is sealed and signed and attested properly ; it shows a valuable considera- tion ; it identifies the parties, describes the land, and acknowledges an 23 DEFINITIONS AND DIFFEEENT KINDS. § 24 § 24. Covenant to stand seised to uses. — This conveyance required a consideration of, blood or marriage, and was a cove- nant by which a man seised of lands covenanted in consideration of blood or marriage that he would stand seised of the same to the use of his child, wife, or kinsman, for life, in tail, or in fee.^ In New York, it is held that a consideration of blood or marriage is indispensably necessary to the validity of a covenant to stand seised;'' and the same rule prevails in New Hampshire.' But in Massachusetts the rule is established that so far as the validity of a covenant to stand seised, requiring a consideration of blood absolute executed sale in fee of the -vendor's right. These constitute a deed of oouveyanoe, and therefore, as this instrument contains no pro- vision or intimation to the contrary, this court cannot by any allowable process of interpretation, give to it any other character or effect than those of a deed of bargain and sale." For the purpose of preventing secret con- veyances and to give the notoriety furnished by the common-law assur- ances, it was enacted that conveyances by bargain and sale would not inure to pass a freehold interest unless made by indenture and enrolled within six months after execution : 27 Hen. VIII. ch. 16. 1 2 Blackst. Com. 338. See also Bell v. Scammon, 15 N, H. 381 ; 41 Am. Dec. 706 ; Rollins v. Riley, 44 N. H. 9 ; Cheney v. Watldns, 1 Har. & J. 527 ; 2 Am. Dec. 530. The statute executes the use, and Blackstone remarks : "The party intended to be benefited having thus acquired the use, is thereby at once put into corporeal possession of the land without ever seeing it, by a kind of parliamentary logic : " 2 Blackst. Com. 338. 2 Jackson v. Sebrlng, 16 Johns. 515 ; 8 Am. Dec. 357 ; Jackson v. Cadwell, 1 Cowen, 622 ; Jackson v. Delancey, 4 Co wen, 427. ' French v. French, 3 N. H. 234 ; Underwood v. Campbell, 14 N. H. 393 ; Bell V. Scammon, 15 N. H. 381 ; 41 Am. Dec. 706. In Jackson v. Sebring, 16 Johns. 515, the following language appears : " A covenant to stand seised is a peculiar species of conveyance, confined entirely to family connections and founded on the tender considerations of blood or marriage. No use can be raised for any purpose in favor of a person not within the influence of that consideration. There is no cold, selfish, calculating motive to con- taminate the contract, nor is the conveyance to be profaned by the foot- steps of a stranger." The Supreme Court of Massachusetts, commenting on this language, says in Trafton v. Hawes, cited in the following note : "The law does indeed recognize the natural aflections, and the mutual obligation of support which springs from the family relations, as afibrding a good and meritorious consideration, sufficient for a deed of conveyance. But that a form of conveyance should be so consecrated by a mere senti- ment that it cannot be permitted to operate between any parties other than relatives, nor upon a pecuniary consideration, would be an anomaly of which the law should not be suspected upon slight grounds. Upon every principle of the law of contracts, money is a sufficient consideration for the support of any contract whatever, so far as its validity depends upon a consideration as such ." Emery v. Chase, 5 Greenl. 232 ; Gault v. Hall, 26 Me. 561. § 24 DBFINITIOJfS AND DIFFERENT KINDS. 24 or marriage, is concerned, the distinction between this conveyance and a deed of bargain and sale is artificial and constructive, depending entirely upon the statute of enrollments, and that it could have no pretext for a continued existence where the pro- visions of that statute do not apply. Accordingly, in that State, a deed of land to take effect at the grantor's death, though there may be no relationship between the parties by blood or marriage, will be held good as a covenant to stand seised to the grantee's use.' Conveyances of this character are now no longer used, but the rules pertaining to them are still retained and enforced by the courts to effectuate the intention of parties who attempt to convey land by deeds, which cannot pass title in the manner pro- posed from their insufficiency under the law governing other forms of transfer." 1 Trafton v. Hawes, 102 Mass. 533, where Wells, J., in delivering the opin- ion of the court, says : "The English statute of enrollments has no appli- cation to this country. In Massachusetts, all deeds of lands are required to be recorded alike. A deed of itself imports a consideration. The recital of a consideration is conclusive for the purpose of supporting the deed against the grantor and his heirs. A voluntary conveyance or gift to a stranger is good against the grantor and his heirs. It is also good against a subsequent purchaser for value, in the absence of actual fraud : Beal v, Warren, 2 Gray, 447. The reason for distinguishing between a deed of bargain and sale and a covenant to stand seised, on the ground of the nature of the considerationj does not exist here. Between the grantor and his heirs and the grantee, in a controversy respecting the title, there is no question open in relation to the nature or existence of the consideration, unless it be in connection with a charge of fraud in procuring the execu- tion of the deed. It is the duty of the court to seek by construction to maintain rather than to defeat the operation of the deed. In case of a deed to take effect at the decease of the grantor, there being nothing to the con- trary in the statutes or in the rules of law applicable to this common- wealth, it is the duty of the court, in accordance with the foregoing principles of construction, to give to the deed its intended operation by construing it as a covenant to stand seised to the use of the grantee, according to the nature of the use granted. The deed in the present case may therefore be properly maintained as a covenant to stand seised, not- withstanding the absence of the relation of blood or marriage between the grantor and grantee." See Welsh v. Foster, 12 Mass. 93; Parker v. Nichols, 7 Pick. HI ; Gale v. Coburn, 18 Pick. 397 ; Miller v. Goodwin, 8 Gray, 542. ' See Exum v. Canty, 34 Miss. 569 ; Fisher v. Strickler, 10 Pa. St. 348 ; 51 Am. Dec. 488 ; Horton v. Sledge, 29 Ala. 478 ; Jackson v. Staats, 11 Johns. 337; 6 Am. Dec. 376; Barrett v. French, 1 Conn. 354; 6 Am. Deo. 241; Jackson v. McKenny, 3 Wend. 233 ; 20 Am. Dec. 690; Van Horn v. Harri- son, 1 Dall. 137 ; 1 Am. Dec. 229 ; Rogers v. Eagle Fire Co. 9 Wend. 611 ; 25 DEFINITIONS AND DIFFERENT KINDS. §§ 25-26 § 25. Lease and release.— It has been remarked, that con- veyances by bargain and sale in order to pass a freehold were required to be enrolled; but the statute of enrollments did not apply to a bargain and sale of chattel interests, either because they were not considered of sufficient importance, or from an oversight in the framing of the statute. For the purpose of avoiding the notoriety which the statute was intended to give, advantage was taken of this omission, to invent an assurance in which enrollment was not necessary. This assurance, by lease and release as it was termed, consisted of an instrument declaring that the vendor had bargained and sold the land, for a rfominal consideration, to the purchaser for one year, to begin from the day before the date of the deed, and of a second deed, which followed the first, releasing the reversion to him. This put him into possession of the whole estate, and hence a convey- ance of this character was said to be tantamount to a feoff- ment.* "When the lessee was in the possession of the land, the remainder of the estate might be conveyed to him without liv- ery of seisin ; and by a bargain and sale for a valuable consid- eration, a use was raised in the bargainee which by the statute was transferred into actual possession.^ § 26. Fine and recovery. — Another assurance that may be mentioned was that by fine and recovery, which was a method of barring an estate tail, and converting it into a fee-simple. This was done by a fictitious suit between the tenant in tail as Wall V. Wall, 30 Miss. 92; Eckman v. Ecknian, 68 Pa. St. 460 ; Jackson v. Swart, 20 Johns. 84 ; Davenport v. Wynne, 6 Ired. 128 ; 44 Am. Dec. 70 ; Brewer v. Hardy, 22 Pick. 376 ; Chancellor v. Wyndham, 1 Rich. 161 ; 42 Am. Deo. 411 ; Bank v. Houseman, 6 Paige, 526 ; Wallis v. Wallis, 4 Mass, 135 ; 3 Am. Dec. 210 ; Cobb v. Hlnes, Busb. 343 ; 59 Am. Dec. 559. 1 Deane on Conveyancing, 308, 309; Co. Litt. 270; 2 Blackst. Com. 389. 2 Until the Statute of 8 and 9 Vict. 106, the use of this form of convey- ance was very common in England. In the United States Its use has been rare : Craig v. Penson, 1 Cheves, 272. In Lewis's Lessee v. Beall, 4 Har. & McH. 488, the point saved was : "Whether a person having a seisin in law, but never an actual possession of lands in fee, whereof "no person whatever hath the actual possession at the time of conveyance, can for a valuable consideration convey the same by lease and release ? If in. the afiarmative, judgment to be entered for the plaintifl'; if in the negative, for the defendant." The court gave judgment, on the point and verdict saved for the plaintiff. §27 DEnNITIONS AND DIFFEEENT KINDS. 26 defendant, and an amicable plaintiff, which resulted in a declara- tion that the latter was the owner in fee-simple of the land, and in giving the owner full power of alienation over it. By the statute of uses, a fine and recovery might constitute a convey- ance to uses, if a declaration to that effect was properly made.* § 27. Qnit-claim deeds. — Deeds of this character, now com- mon in the United States, are similar to the old deeds of release, with the exception that the latter were effectual at common law, strictly speaking, only in favor of a person who had possession of the land, or held some interest in it.* A quit-claim deed pur- ports to release and quit claim only whatever interest the grantor possesses at the time. By the use of this form of conveyance he does not thereby affirm the possession of any title, and is not precluded from subsequently acquiring a valid title, and from attempting to enforce it; and conversely, a grantee in a quit- claim deed may deny that he received any estate by the deed.* The operative words of release in a simple quit-claim deed are "remise, release, and quit claim"; and when the words "bar- 1 In England, this mode of conveyance no longer exists, and it never obtained to any degree in this country : But see Kichman v. Idppincott, 29 N. J. L. 44; McGregor v. Comstook, 17 N. Y. 162; Croxall v. Shered, 5 Wall. 268 ; Moreau v. Detohemendy, 18 Mo. 527 ; 2 Wash. Real Prop. (4th ed.) 423. 2 Kyle V. Kavanagh, 103 Mass. 356; Eowe v. Beckett, 30 Ind. 154; Ely V. Stannard, 44 Conn. 529; Kerr v. Freeman, 33 Miss. 292. In Kyle v. Kavanagh, supra, it is said : " A deed of quit claim passes all the estate which the grantor could convey by deed of bargain and sale. If a grantor has in fact a good title, his deed of quit claim conveys his title and estate as efifectually as a deed of warranty. An agreement or covenant to con- vey a good title, therefore, does not necessarily entitle the covenantee to a ■warranty deed; the right of property and of exclusive possession, which constitutes a good title, being effectually vested in him by a deed of quit claim : " Gazley v. Price, 16 Johns. 267 ; Ketchum v. Everson, 13 Johns. 859 ; Potter v. Tuttle, 22 Conn. 512. " In this case, it should have been left to the jury to determine what the contract between the parties was, with instructions that if the entire contract was that the plaintiff should give the defendant a good title by conveyance from Jackson, there being no agree- ment as to the form of the deed, then the delivery to the defendant of the deed of quit claim was a compliance with the contract on the part of the plaintiff." A quit-claim deed is as effectual to convey land as a deed with fnll covenants : MeConneU v. Reed, 4 Scam. 117 ; 38 Am. Deo. 124 ; Ham- ilton V. Doolittle, 37 111. 478. » San Francisco v. Lawton, 18 Cal. 465. See also Cadiz v. Majors, 33 Cal. 288 ; Gree v. Moore, 14 Cal. 472 ; Morrison v. WUson, 30 Cal. 344. 27 DEFINITIONS AND DIFFEEENT KINDS. § 27 gain, sell, and quit claim " are used, their effect is not only to release, but also to transfer whatever interest the grantor pos- sesses at the time of the execution of the deed.* In California, where a town as the successor in interest of a Mexican pueblo, becomes the owner of the pueblo lands within the town limits, and its board of trustees grant a block of such land to a person petitioning for the same, and he then transfers the same by a quit-claim deed, and the board of trustees subsequently make a conveyance to the grantor, the grantee under the quit-claim deed, it is held, acquires the title to the land as against a sub- sequent purchaser from the grantor. The deed of the board of trustees is considered as dating back to the date of the grant.^ ' Touohard v. Crow, 20 Cal. 150. A quit-claim deed ■will enable the grantee to maintain ejectment for the land it conveys, it his grantor could have done so : Sullivan v. Davis, 4 Cal. 291 ; Downer v. Smith, 24 Cal. 114. A title may be passed as eflfectnally by a quit-claim deed as by any other form : Bayer v. Cookerill, 3 Kan. 282 ; Hall v. Ash by, 9 Ohio, 96; 34 Am. Dec. 424; Hunt«. Hunt, 14 Pick. 374; Rogers v. Hillhouse, 3 Conn. 398 ; Kerr v. Freeman, 33 Miss. 293 ; MoConnel v. Reed, 4 Scam. 117 ;. 38 Am. Deo. 124 ; Hamilton v. Doolittle, 37 111. 473, 482 ; Piatt v. Brovirn, 30 Conn. 336 ; Smith v. Pendell, 19 Conn. 107 ; 48 Am. Dec. 146 ; Young v. Clippinger, 14 Kan. 148 j Carpentier v. Williamson, 25 Cal. 154 ; Thompson V. Spencer, 50 Cal. 532. 2 Thompson v. Spencer, 50 Cal. 532. See also Frey v. Clifford, 44 Cal. 335 ; ■ Graff v. Middleton, 43 Cal. 341 ; Morrison v. Wilson, 30 Cal. 344 ; Car- pentier V. Williamson, 25 Cal. 154 ; Board of Education v. Fowler, 19 Cal. 11; Sullivan v. Davis, 4 Cal. 291; Downer v. Smith, 24 Cal. 114; Qnivey 1). Baker, 37 Gal. 465 ; Crane v. Salmon, 41 Cal. 63. CHAPTEE III. WHAT MUST PASS BY DEED, OE BY WEITINa. J 28. General comments. 2 29. Equitable interests in land. § 30. Partnership to buy contracts for sale of land. g 31. Compensation for wrongfully obtaining patent, § 32. Bule as to mining claims, § 33. Statutory regulation. g 34. Bight to carry away ore, § 35. Right to dower an interest in land, I 36. Pews. § 37. Fixtures. § 38. Possession is an interest concerning land. § 39. Steele in corporations. § 40. Interest of execution purchaser. § 41. Contract for board and lodging. § 42. Equity of redemption. § 43. Improvements npon land. g 44. Qualification or enlargem.ent of interests already acquired. § 45. Revival of void contract. § 46. Revival of satisfied mortgage. g 47. Agreement for execution of covenant to convey g 48. Executory agreement for creation of lease. g 49. Lands owned in partnership. § 50. Parol proof of partnership in land. § 51. Same subject — Rule in various States. g 52. Agreements to establish title to land. g S3. Release of damages afiecting land. § 54. Agreements to devise interests in land. § 55. Application of rules relative to specific performance. § 56. Parol evidence. g 57. Growing crops. g 58. Occupancy of the land. g 59. I)istinotion between fructiisindustriales and prima vesturit. g 60. This distinction in New York. i 61. Other States. g 62. Opposite view — Where this distinction is not obserreb. g 63. Easements are interests in land. § 28, General comments. — Before the passage of the statute of frauds, as we have seen, a freehold might be conveyed without a deed; but incorporeal hereditaments which were said to lie in grant required for their conveyance a written instrument. This 29 WHAT MUST PASS BY DEED OR WEirrNQ. §§ 29-30 distinction was never observed in this country and no longer practically exists in England.^ A deed in all cases is now required to convey " lands, tenements, and hereditaments, or any interest in or concerning them"; and the question to be con- sidered is what is such an interest for the transfer of which a deed or written instrument is necessary. While the laws of Mexico were in force in California, a parol sale of land if fully executed was valid and the vendee obtained the title.* § 29. Equitable Interests Inland. — That equitable interests in land can be conveyed only by deed or writing was determined at an early day. Thus in one case, a plaintiff contracted with an owner of land for its purchase at a certain sum, paying a part of the consideration and taking an obligation for conveyance upon the payment of the residue of the purchase money. After- wards a third person by parol agreed to purchase the plaintiff's interest in the contract, and the latter by endorsement on his obligation directed the owner to convey to the former. The court held the contract was for a conveyance of an interest in lands and was therefore void.* § 30. Partnership to buy contracts for the sale of laud. — A partnership to buy contracts for the sale of lands is deemed to be a partnership for the purchase of an equitable interest in lands, 1 See Statute of 8 and 9 Vict. ch. 106. ' Hall V. Yoell, 45 Cal. 584 ; Cook v. Frlnk, 44 Cal. 331 ; Long v. Dollar- hide, 24 Cal. 218. s Sims V. Killian, 12 Ired. 252 ; Holmes v. Holmes, 86 N. C. 205. In the former case Ruflin, C. J., said: "The contract concerns the sale of an interest in land, and by the statute of frauds a party to it cannot be charged therewith unless it be in -writing and signed by the party thus sought to be charged. It was argued at the bar that the policy of the act was to pro- tect owners of real estate from being deprived of it without written evi- dence under their own hand, and that a promise to pay money for land is not within the mischief. But the danger seems as great that a purchase at an exorbitant price may by perjury be imposed on one who did not contract lor it, as that by similar means a feigned contract of sale should be established against the owner of land. Hence, the act in terms avoids entirely every contract of which the sale of land is the subject in respect of a party, that is, either party who does not charge himself by his signature to it after it has been reduced to writing : " And see Hoen v. Simons, 1 Cal. 119- MiUard v. Hathaway, 27 Cal. 119; Videau v. Griffin, 21 Cal. 889; McLaren v. Hutchinson, 22 Cal. 187; Tohler v. Folsom, 1 Cal. 207; Bayles V, Baxter, 22 Cal. 575. §§ 31-32 WHAT MUST PASS BY DEED OK WKiTlNa. 30 and is required to be in writing.* In such a case, Justice Story remarked : " A contract for the conveyance of lands is a contract respecting an interest in lands. It creates an equitable estate in the vendee in the very lands and makes the vendee a trustee for him. A contract for the sale of an equitable estate in lands, whether it be vinder a contract for the conveyance by a third person or otherwise, is clearly a sale of an interest in the lands within the statute of frauds."* But this case, in so far as it decides that a partnership for the sale of lands is required to be in writing, is not in accord with the modern decisions which announce a contrary doctrine.' § 81. Compensation for wrongfully obtaining patent — So a promise to compensate a plaintiff in money for an injury occa- sioned by the misconduct of the defendant in obtaining a patent in his own name, for land for which he ought to have procured a patent in the name of the plaintiff, and in preventing the plaintiff from securing a patent in his own name, and in consideration of the defendant having procured the issuance of a patent to himself, is a contract affecting lands, and must be in writing.^ § 32. Rule as to mining daims. — In California, the question arose at an early day, whether an instrument in writing was necessary for the conveyance of a right to a mining claim. In one of the first cases in which the courts were called upon to consider the nature of these claims, the following language was used: "Courts are bound to take notice of the political and social condition of the country, which they judicially rule. In this State the larger part of the territory consists of mineral lands, nearly the whole of which are the property of the public. No right or intent of disposition has been shown either by the United States or the State governments, and with the exception of certain State regulations, very limited in' their character, a system has been permitted to grow up by the voluntary action 1 Parsona v. Phelan, 134 Mass. 109. ^ Smith V. Burnham, 3 Sum. 435, 461. » See II 49, 50, 51, post. * Hughes V. Moore, 7 Cranoh. 176. See Toppin v. Lomaa, 16 Com. B. t45; Richards v. Richards, 9 Gray, 313. 31 WHAT MUST PASS BY DEED OB WEITING. § 32 and assent of the population, whose free and unrestrained occu- pation of the mineral region has been tacitly assented to by the one government, and heartily encouraged by the expressed legis- lative policy of the other. If there are, as must be admitted, many things connected with this system which are crude and undigested, and subject to fluctuation and dispute, there, are still some which a universal sense and propriety have so firmly fixed as that they have come to be looked upon as having the force and effect of res adjudhakt."^ In one case, it was held that a bill of sale was insufficient to convey a mining claim." In another, it was held that mining claims were real estate within the meaning of the practice act, relating to the venue of civil actions.' Afterwards, the suggestion was made that title to a mining claim would pass by a verbal sale, if accompanied by an actual transfer of possession to the vendee or purchaser.* And finally it was decided, that the right to mining ground was acquired by appropriation and rested upon possession only; that it did not amount to an interest in the land, and hence a transfer of possession was a sufficient conveyance.^ In a subse- ' Irwin V. Phillips, 5 Csd. 140, 146. ' Hayes v. Bona, 7 Cal. 153. 3 Watts V. Wliite, 13 Cal. 321. In Merritt v. Judd, 14 Cal. 59, claims to public mineral lands were recognized as titles, as legal estates of freehold for all practical purposes, and it was held that a fixture might exist on public land : See Gore v. McBrayer, 18 Cal. 582. * Jackson v. Feather River Co. 14 Cal. 18. 5 Table Mountain Tunnel Co. v. Stranahan, 20 Cal. 198 ; Gatewood v. Mcljanghlin, 23 Cal. 178. The court in the first case said: "The court considered a conveyance from the company necessary to invest the plaint- iff with their rights, and the evidence was striclien out on the ground that no conveyance had been shown. We are of opinion that the court erred in this respect, and that a conveyance by deed would have passed no greater interest than the plaintiff acquired by a transfer of the possession. Rights resting upon possession only, and not amounting to an Interest in the land, are not within the statute of frauds, and no conveyance other than a transfer of possession is necessary to pass them. The rights of the company were of this character, and the transfer of possession was as effectual for the purpose intended, as if it had been accompanied by a conveyance in writing. The plaintiff was put in possession as the successor in interest of the company, and the intention undoubtedly was that what- ever rights the company had should pass with the possession. There was no reservation in that respect ; and the only rational theory upon the subject is that the plaintiff was to take the place of the company and stand in the same position with regard totheclaim": See also Gore «. McBrayer, 18 Cal. 583. § 33 WHAT MUST PASS BY DEED OK WEITING. 32 quent decision, the rule laid down in the case last cited was held to apply only to cases in which the grantor was in actual pos- session, and had the power of delivering possession to the grantee, and that it did not govern cases where the claim at the time of the sale was in the possession of adverse parties. In cases of this character, a written conveyance was deemed necessary.' § 33. Statutory regndation. — A statute was then passed which provided that conveyanceo of mining claims might be evidenced by bills of sale or instruments in writing not under seal.^ Under this statute, it was considered arguendo in one case, that this provision of the statute was mandatory, and that it was intended that the conveyance of mining claims by parol should be ex- cluded, even though accompanied by a delivery of possession ; ' and later, this construction of the statute was expressly adopted.* Accordingly it was held, that where an agreement in writing was made to convey to a party an undivided interest in a mining claim, upon the fulfillment of certain conditions, and to let such party into possession, ejectment would not lie; but the proper remedy was an action for specific performance, and a delivery ' Copper Hill Mining Co. v. Spencer, 25 Cal. 18. 2 Stats. Cal. 1860, p. 175. The following is the language of the statute so far as applicable to this question : " Conveyances of mining claims may be evidenced by bills of sale or instruments in writing not under seal, signed by the person from whom the estate or interest is intended to pass, in the presence of one or more attesting witnesses ; and also all con- veyances of mining claims heretofore made by bills of sale or instruments in writing not under seal, shall have the same force and effect as prima fade evidence of sale, as if such conveyances had been made by deed under seal ; provided, that nothing in this act shall be construed to interfere with or repeal any lawful, local rules, regulations, or customs of the mines in the several mining districts of this State ; and provided further, every such bill of sale or instrument in writing shall be deemed and held to be fraudulent and void, as against all persons except the parties thereto, unless such bill of sale or instrument in writing be accompanied by an immediate delivery to the purchaser of the possession of the mining claim or claims therein described, and be followed by an actual and continued change of the possession thereof, or unless such bill of sale or instrument in writing shall be acknowledged or recorded as required by law in the case of conveyances of real estate." A subsequent section confined the application of the statute to gold mining claims. ' Patterson v. Keystone Mining Co. 30 Cal. 360. * Goller «. Fett, 30 Cal. 481 ; King v. Randlett, 33 Cal. 318. See Harden- bergh v. Bacon, 33 Cal. 381. 33 WHAT MUST PASS BY DEED OE WRITING. §§ 34-35 of the possession as incidental to the relief.* The form of the conveyance is immaterial, if it be clear from the language used, that the maker of the instrument intended to pass the title to the property, and this intent will, if necessary, be effectuated by construction.^ Under the Code, a gold mine is considered to be real estate, and therefore no interest therein, other than an estate at will or for a term not exceeding one year, can be transferred, except by an instrument in writing.' § 34. RlgM to cany away ore. — In Alabama, it is held that an easement is created by the grant of a right to dig and carsy away ore from a mine, and that a contract for the sale of this right, which is an incorporeal hereditament, must be in writ- ing. A license, however, may be conferred by a verbal contract, and this license, as long as it remains unrevoked, will afford pro- tection from trespass, and vest in the party to whom it is given the property in the ore actually taken out, in reliance upon the permission.* § 35. Right to dower an interest in land. — The right that 3 widow possesses to dower upon her husband's death, is such an interest in land that it cannot be released or waived by parol.® Thus, a verbal agreement by a widow made prior to the sale of certain lands of her late husband at probate, with one who became a purchaser, that if a certain sum was bid for the prem- ises she would waive her right of dower, is void because not in writing." And so a promise by parol made by a vendor during the pendency of negotiations between him and a purchaser, to procure a relinquishment of the right of the former's wife to > Pelger v. Coward, 35 Cal. 650. ' Meyers v. Farquharson, 46 Cal. 190. The cx)urt held that a conveyance of land was not void on its face for uncertainty in the description of the property^ if the descKption itself showed the points named as boundaries to be well known monuments easily found, and that a bill of sale of a mining claim is not to be rejected as evidence because it was a gift. ' Civ. Code Cal. g 1091 ; Melton v. Lambard, 51 Cal. 258. The owner of an undivided interest in a mining claim is entitled to the entire possession against one having no title to any portion of it : Melton v, Lambard, 51 Cal. 258. * Riddle v. Brown, 20 Ala. 412. » liOthrop V. Foster, 51 Me. 367. • Wright V. De Groff, 14 Mich. 164. I. Deeds.— 8. § 36 WHAT MUST PASS BY DEED OR WEITING. 34 dower, is void for the same reason.* In Wisconsin, it is held that an inchoate right of dower is such an interest in land that an action may be maintained by a wife for the purpose of estab- lishing such contingent right, and of removing a cloud fraudu- lently attempted to be created upon it.^ An assignment of dower, however, may be made by parol, as the estate is not created, but only ascertained by an assignment.^ The rule requiring an instrument in writing extends also to an agreement between husband and wife to compensate her for consenting to a relin- quishment of her dower.* § 36. Pews. — Pews are sometimes treated as real estate and sometimes as personalty. Where considered as realty, they can be transferred only by a written instrument executed in the manner provided for the transfer of real estate.^ Therefore a levy of execution upon a pew, where the pew is considered as real estate, will transfer a title which at law will prevail over an earlier assignment of a certificate of the pew, although a record of the assignment was made by the clerk of the society ' Martin v. Wharton, 38 Ala. 637. See Chiles v. Woodson, 2 Bibb, 71 ; Campbell v. Taul, 3 Yerg. 548, 557. ' Madigan v. Walsh, 22 Wis. 501. But see Van Cleave v. Wilson, 15 Eep. 202; Dooley v. VUlalonga, 61 Ala. 129; Long v. Mostyn, 65 Ala. 543; Fel- lows V. Lewis, 56 Ala. 343 ; Jones v. De Graffenreid, 60 Ala. 145 ; Holly v. Flournoy, 54 Ala. 99. ^ Lenfers v, Henke, 73 111. 405. In that case Mr. Justice Soott, in deliver- ing the opinion of the court, said : " The objection the agreement was not in writing and therefore within the statute of frauds is not well taken. Treating it as an assignment of dower it was valid, though existing in parol. Bainbridge in his work on Mines, says : ' Dower may be assigned by parol, notwithstanding the statute of frauds, for her estate is not created,' but only ascertained, by assignment, and where she has entered after assignment, the freehold vests in her without the livery of seisin, whether the assignment has been accomplished by agreement or by the course of the law : ' " Bainbridge on Mines, 149. See also Conant v. Little, 1 Pick. 189 ; Jones v. Brewer, 1 Pick. 314 ; Baker v. £aker, 4 Greenl. 668 j Pinkham V. Gear, 3 N. H. 163; Shattuck v. Gragg, 23 Pick. 88; Johnson v. Neil, 4 Ala. 166. * Hall a. Hall, 2 McCord Ch. 269. See also Finney v. Finney, 1 Wils. 34 ; White v. White, 16 N. J. L. (3 Zab.) 202 ; Keeler v. Tatnell, 23 N. J. L. . (1 Har.) 62 ; Shotwell v. Sedam, 3 Ohio, 5 ; Gordon v. Gordon, 56 N. H. 170. 5 Vielie v. Osgood, 8 Barb. 130 ; Baptist Church of Ithaca v. Bigelow, 16 Wend. 28 ; Barnard v. Whipple, 29 Vt. 401 ; Bates v. Sparrell, 10 Mass. 323 ; Kellogg v. Dickinson, 18 Vt. 266 ; Hodges v. Green, 28 Vt. 358. 35 . WHAT MUST PASS BY DEED OR WEITING. §§ 37-38 by which the house had been built and occupied, in compliance with the by-laws of the society which provided for a transfer of pews in that manner.' § 37. Fixtures. — Concerning such improvements as are incorporated with the land and inseparable from it, there may be some doubt as to whether a writing is required for their transfer. But whatever doubt may exist as to the rule concern- ing improvements of this character, it is firmly settled that fixtures which are only annexed to the freehold may be sold witjiout deed.^ Upon no other branch of the law, perhaps, has there been a greater contrariety in the decisions than in those determining what is or is not a fixture. So on the subject we are now considering there is, to some extent, the same disagree- ment. In one case, for instance, it is held that where a house situated on the land of a third person has been sold and delivered, the seller may recover the price on the common counts for goods sold and delivered ; ^ while in Another case, it is held that a contract for the sale of bricks, the debris of a house that had been burned, was a contract for the sale of an interest in land.* But as shown in a following section, improvements, including fixtures necessarily, may be sold without deed, and this must be regarded as the established rule.* § 38. Possession is an interest concerning land. — "Posses- sion is prima jade, evidence of title, and no title is complete 1 Barnard v. Whipple, 29 Vt. 401. » Hallen v. Rnnder, 1 Cromp. M. & R. 266; Horsfall v. Hey, 2 Ex. 778; Bostwick V. Leach, 3 Day, 476. 3 Keyser v. School District, 35 N. H. 477. * Meyers v. Sohemp, 67 111. 469. The ground of the decision was that " a building iJnmos fade is real estate." And see Walton v- Jarvis, 13 Up. Can. Q. B. 616. But see contra, Brown v. Morris, 83 N. C. 251, where a con- tract for bricks was not regarded as within the statute. See also Latham V. Blakely, 70 N. C. 368 ; Bond v. Coke, 71 N. C. 97; Conner v. Coffin, 22 N. H. (2 Fost.) 538. 6 In Noble v. Bosworth, 19 Pick. 314, there was a verbal reservation to the vendor of the dye kettles set in brick in a dye-house. It was held that the kettles not being severed passed to the vendee : See also, generally, Smith V. Odom, 63 «a. 499 ; Pea v. Pea, 35 Ind. 387 ; Patton v. Moore, 16 W. Va. 428 ; Lyle v. Palmer, 42 Mich. 314 ; Detroit etc. R. R. v. Forbes, 30 Mich. 165 : Trull v. Fuller, 28 Me. 545. § 39 WHAT MUST PASS BY DEED OR WEITING. 36 without it," is the language used by the court in New York.' The rule seems to be that an agreement between the respective owners of two adjoining lots, that a party wall should be built in a certain manner, or placed in a certain position, is required to be made by a written instrument." In Maine, a mortgagee of land has the right of possession, before there has been any breach of the condition, but he may divest himself of this "right by contract. But as a contract of this character operates upon an interest in land, it must be in writing.' Upon the same principle, evidently, was founded the decision that a verbal agreement made at the time of the delivery of a deed, that the grantee should not take possession, nor record his deed until he should pay the first instalment of the purchase money, ia inoperative.'* § 39. Stock in corporations. — The question has arisen whether shares of the stock of corporations, owning and deriving profit from real property, are to be regarded as interests in land. ' Howard v. Easton, 7 Johns. 205. The court held that " possession must be considered as an Interest in land, within the meaning of the stat- ute of frauds, so as to render the contract void as not having been reduced to writing . " See Lower v. Winters, 7 Cowen, 263, in whicu tliis case was afi^med. * Rice V. Roberts, 24 Wis. 461. In a New York case (Storms v. Snyder, 10 Johns. 109), an agreement was made by a party to remove his fence, so as to open a certain road to its original width, and in consideration of this agreement, a promise was made by another to pay the first a sum of money. This was held not to be an agreement concerning an interest in land, since it was not for the conveyance of an interest in land. It would seem, however, that the decision in this case might rest upon the ground that as the agreement was to restore the road to its original width, the agreement implied that it had been improperly widened . See also Onder- donk V. Lord, Hill & D. (Lalor's Supp.) 129. » Norton v. Webb, 35 Me. 218 ; Colman v. Packard, 16 Mass. 39. * Gilbert v. Bulkley, 5 Conn. 262; 13 Am. Dec. 57. See further on this subject. Smart v. Narding, 15 Com. B. 652 ; Kerr v. Shaw, 13 Johns. 236 ; Whittemore v. Gibbs, 24 N. H. 484 ; Miranville v. Silverthorn, 1 Grant Cas. 410 ; Sutton v. Sears, 10 Ind. 223. In one case, it was said, concerning an agreement for an assignment of a lease, which was invalid by parol, that if the contract had been for the relinquishment of possession, it might not have been considered a contract for an interest in laud : Baron Parke in Buttemere v. Hayes, 5 Mees. aniels v. Bailey, 43 Wis. 566. = Merritt v. Brown, 21 N. J. Eq. 401, per Beasley, C. J. ' Bauman v. Holzhausen, 26 Hun, 505. And see ComeU ■;;. Utica etc. R. R. Co. 61 How. Pr. 184. * Wright V. Stavert, 2 El. & E. 721 ; White v. Maynard, 111 Mass. 250 ; Wilson V. Martin, 1 Denio, 602. In White v. Maynard, supra, Mr. Justjee Gray, in delivering the opinion of the court, said : " The opinions of emi- nent judges, in cases under English statutes giving the elective franchise to the sole occupiers of houses of a certain value, assume it as unquestion- able that a mere lodger in the house of another is not a tenant. In Fludier v. Lombe, Gas. t. temp. Hardw. 307, Lord Hardwicke held, that a man who let rooms to lodgers was still the sole occupier of the house, and said : ' A lodger was never considered by any one as an occupier of a house. It is not the common understanding of the word ; neither the house, nor even any part of it, can be properly said to be in the tenure or occupation of the lodger.' And this definition is cited with approval by Chief Justice Erie in Cook v. Huraber, 11 Com. B. N. S. 33, 46. So in Brewer V. McGowen, Law R. 5 Com. P. 239, it was held that the owner or tenant of a dwelling-house was not a joint occupier with a lodger to whom he let the exclusive use of a bed-room and the joint use of a sitting-room ; and Mr. Justice Willes, after observing that the lodger ' clearly was not a joint occupier of the room in which he took his meals,' added: 'And with respect to the bed-room he clearly had not an occupation as owner or tenant, but only an occupation as lodger.' " To constitute a tenancy under the English tax acts, the exclusive possession of the apartment must bo given to the lessee. The bare admission of a common lodger, where legal possession of the whole house is retained by the landlord, is not sufiicient : Smith V. St. Michael, 3 El. & E. 383 ; Stamper v. Overseers of Sunderland, Law R. 3 Com. P. 388 ; Queen v. St. George's Union, Law R. 7 Q. B. 90. So the permission to a man to lodge for a year in a particular room, does 39 WHAT MUST PASS BY DEED OB WRITINa. § 42 § 42. Equity of redemption. — A mortgagor's equity of redemption, or the legal estate in fee which remains in him, can only be divested by an instrument in writing made in compliance with the statute prescribing the mode and man- ner of conveying lands.* Hence, a contract by a mortgagee for the purchase of the right of a mortgagor to redeem the land mortgaged, at a value at which it might be appraised by third persons, is a contract for the sale of land, and no action can be maintained upon it unless in writing.^ In a Kentucky case, the mortgagor and judgment debtor possess- ing the privilege of redemption procured another to pay the redemption money, promising to refund at a future day, and the purchaser agreed to reconvey upon the payment of the money advanced. The transaction was deemed • a pledge of the equity of redemption, and not required to be in writ- not violate a covenant in a lease of a coffee-house, not to lease or underlet the premises, or any portion of them : Doe v. Laming, 4 Camp. 73 ; Green- slade V. Tapscott, 1 Cromp. M. there was an oral agreement to become copartners in the buying and sell- ing of land and lumber. The capital for this purpose was to be jointly furnished, and the profits and losses incurred in the transaction of the business equally divided. Judge Story held that the action sought to enforce a trust in land created by the failure to observe the oral partner- ship agreement, and that it could not be maintained . See also Freeman on Cotenancy and Partition, g 119 ; Yeatman v. Woods, 6 Yerg. 21 ; 27 Am. Dec. 452; Rice v. Barnard, 20 Vt. 479; Sumner ». Hampson, 8 Ohio, 328; Piperw. Smith, 1 Head, 93 ; M'Alister v. Montgomery, 3 Hayw. (Tenn.) 94; Scruggs V. Blair, 44 Miss. 406 ; Gtoodbum v. Stevens, 5 Gill, 1 ; Holland v. Fuller, 13 Ind. 195 ; Tillinghast v. Champlein, 4 R. 1. 173 ; Hanff «. Howard, 3 Jones Eq. 440 ; Lang's Heirs v. Waring, 25 Ala. 625 ; Collins v. Warren, 29 Mo. 236 ; Piatt v. Oliver, 3 McLean, 27 ; Shearer v. Shearer, 98 Mass. Ill ; Wilcox V. Wilcox, 13 Allen, 252. But whether real estate purchased by partners will be treated as such, or as personalty, wUl be determined by the intention of the parties. If their Intention is to hold it as cotenants, it will retain its character aa realty (Hunt v. Benson, 2 Humph. 459 ; Dyer V. Clark, 5 Met. 562 ; Smith v. Smith, 5 Ves. 193 ; Coder o. Huling, 27 Pa. St. 88 ; CoUumb v. Read, 24 N. Y. 513) ; and it will not be presumed from the mere payment of the purchase money from the assets of the firm that the real property was intended to be held in partnership and not in cotenancy : Smith u. Jackson, 2 Edw. Ch. 28 ; Cox v. McBurney, 2 Sandf. 561 ; Wool- dridge V. Wilkins, 3 How. (Miss.) 360. But see CoUumb v. Read, 24 N. Y. 513. One of two partners purchased real estate and paid for it with the note of the firm ; the expenses connected with the purchase, the dis- count on the original note, the renewals of the same, and the taxes levied upon the lot, were charged to his individual account by the direction of the other partner. The property was held to have been purchased on indi- vidual account, and the partner and not the firm was held entitled to the profits arising from the real estate : Hay's Appeal, 91 Pa. St. 265. For a case in which lands were held as partnership property, see Causler v. Wharton, 62 Ala. 358. § 52 WHAT MUST PASS BY DEED OR WEITING. 52 real property cannot be taken and held by a partnership as such in its firm name.^ It seems to be settled beyond question that an agreement by parol for the formation of a partnership in land is binding, aside from the consideration that thereby the title to land may be affected.'' § 52. Agreements to estabUsh title to land. — An agreement to perfect the title to land or to have an adverse title determined invalid, it has been held, is an agreement concerning an interest in land, and must be in writing.^ Thus, an execution was issued against a debtor, and a surety who was ultimately bound, and who was informed that no property belonging to the debtor could be found, desired the sheriff to levy the execution on a lot for which the debtor held a bond for a conveyance, and said he would see that the title should be made good to the purchaser. In an action by a person who became the purchaser at the sheriff's sale, in reliance on this promise, and who sought to obtain a conveyance of the legal title, without paying the surety the purchase money, it was held that the promise was void because not made in writing.'* An agreement for the open- ing of a street near a party's lan|J has been held to require a writing.^ In Virginia, an agreement to pay an additional > Tidd V. Rines, 26 Minn. 201. 2 Chester v. Dickerson, 54 N. Y. 1 ; Traphagen v. Burt, 67 N. Y. 30'; Holmes v. McCray, 51 Ind. 358 ; Gibbons v. Bell, 45 Tex. 419. See Bunnell V. Taintor, 4 Conn. 568. ' Duvall V. Peach, 1 Gill, 172 ; Reyman v. Mosher, 71 Ind. 596. ' Bryan v. Jamison, 7 Mo. 106. See Bishop v. Little, 5 Greenl. 367. A verbal release of a covenant of warranty has been considered inoperative : Bliss V. Thompson, 4 Mass. 488. "Whether an agreement to pay off encumbrances was not required to be by deed appears to have been con- sidered a doubtful question by the court in New York : Duncan v. Blair, 5 Denio, 196. A verbal guaranty of title, or an agreement to pay the expense of searching the title, need not be in writing : Jeakes v. 'White, 6 Ex. 873 ; Huntington v. "Wellington, 12 Mich. 10 ; Doggett v. Patterson, 18 Tex. 158. See also Evans v. Hardeman, 15 Tex. 480; Natchez v. Vauder- velde, 31 Miss. 70S ; Miller v. Roberts, 18 Tex. 16. Nor is a deed uecessaiy for mere agreements to deliver or account for the proceeds of land : Ford V. Finney, 35 Ga. 258 j Graves v. Graves, 45 N. H. 323; Gwaltney v. "Wheeler, 26 Ind. 415. 6 Richter v. Irwin, 28 Ind. 26. And the same has been held concerning an agreement not to build within three feet of the street ; "Wolfe v. Frost 4 Sand. Gh. 72. See Rice v. Roberts, 24 Wis. 461. Agreements that a cer- tain trade shall not be carried on premises or certain buildings used 53 WHAT MUST PASS BY DEED OE WHITING. § 53 amount for land if q.oal were found in it has been held void because not by deed.* § 53. Release of damages affecting land. — "When land has been condemned under the proceedings authorized under the power of eminent domain, an agreement releasing damages is not required to be in writing.'^ On the same principle, an agreement not to claim damages for the flowing of one's land, if another party will erect a dam and mill, need not be in writing.' An agreement of this character is not the conferring of any right, interest, or easement in land, and amounts to no more than a waiver of a cla»im for pecuniary damages.^ An agreement to compensate an owner of land for the expenses and outlay incurred by him, caused by the illegal appropriation of his land by a municipal corporation for the purpose of widening a street, does not require a writing.® An interest in contingent profits to arise from sales of real estate to be made in the future is not an interest in laud.* thereon need not be by deed (Bostwick v. Leach, 3 Day, 476 ; Leinau v. Smart, 11 Humph. 308 ; Fleming v. Ramsey, 46 Pa. St. 252) ; nor need agreements for the payment of taxes : Preble v. Baldwin, 6 Cush. 549 ; Braokett v. Evans, 1 Cush. 79. There may be a substitution of appraisers of the value of land by parol although the original appointment may have been by writing : Stark v. Wilson, 3 Bibb, 476. ' Heth V. Wooldridge, 6 Band. 695 ; 18 Am. Dee. 751. See Howe v. O'Mally, 1 Murph. 287; 3 Am. Deo. 693; Fraseri). Child, 4 Smith, E. D. 153 ; Garret v. Malone, 8 Rich. 335. As to whether an agreement to pay back a certain proportion of the purchase money in case the land shall not equal the amount named in the deed must be by deed, see Mott v. Hurd, 1 Root, 73 ; Bradley v. Blodget, Kirby, 22 ; 1 Am. Deo. 11 ; Green v. Vardi- man, 2 Blackf . 324 ; Dyer v. Graves, 37 Vt. 369 ; Metcalf v. Putnam, 9 Allen, 100. ' Embury v. Conner, 3 N. Y. 511 ; Puller v. Plymouth Commissioners, 15 Pick. 81. ' Smith V. Goulding, 6 Cush. 154. * See also Fitch v. Seymour, 9 Met. 462 ; Clement v. Durgin, 5 Greenl. 14. If, however, a contract with the owner Is contemplated by the statute authorizing the taking, the contract must be in writing: Phillips v. Thompson, 1 Johns. Ch. 131. See also McCabe v. Pitzpatrick, 2 Leg. Gaz. 138. A deed is required whenever an interest in land is sold regardless of the nature of the consideration, provided the law recognizes it as a good consideration : Burlingame v. Burlingame, 7 Cowen, 92 ; Jack v. MoKee, 9 Pa. St. 235; Helm w. Logan, 4 Bibb, 78; Baxter v. Kitch, 37 Ind. 554 j Dowling V. McKenney, 124 Mass. 478. 6 Coleman v. Chester, 14 S. C. 286. « Berjamin v. ZeU, 100 Pa. St, 33. See Babcock v. Read, 50 N. Y. Sup, Ct. 126. §§ 54-55 WHAT MUST PASS BY DEED OR WEITTNG. 64 § 54. Agreement to devise interests in land. — The prin- ciple is firmly established that a promise to make a will of a testator's real property, is a contract for the conveyance of lands, and must be by a deed or written instrument;* and when made in this manner, upon a sufficient consideration, it is valid and bindingj and will be enforced by a court of equity.^ § 55. Application of roles relative to specific performance. — But in the case of an oral agreement of this character founded upon a valuable consideration, the rules relating to specific per- formance in general apply. Thus, payment of money will not be sufficient to take the case out of the statute.* But when pos- session has been taken, improvement made, or other acts have been done, which in equity are considered part performance, such an agreement will be enforced.* " There can be no doubt but that a person may make a valid agreement binding himself legally to make a particular disposition of his property by last will and testament. The law permits a man to dispose of his property to a particular individual, or for a particular purpose, as well by will as by a conveyance to be made at some specified future period, or upon the happening of some future event. It may be unwise for a man, in this way, to embarrass himself as to the final disposition of his property, but he is the disposer by law of his own fortune, and the sole and best judge as to the time and manner of disposing of it. A court of equity vrill decree the specific performance of such an agreement upon the recognized principles by ^ Gould V. Mansfield, 103 Mass. 408 ; Harwood v. Goodright, Cowp. 87 i Walpole V. Orford, 3 Ves. 402 ; Caton v, Caton, Law E. 1 Ch. 137 ; 2 H. L. Cas. 127. * Wright V, Tinsley, 30 Mo. 889 ; Davison v. Davison, 2 Beasl. 246 j Van Dyne v. Vreeland, 3 Stock. 370 ,• Maddox «. Kowe, 23 Ga. 431 ; Johnson V. Hubbell, 2 Stock. 332 ; Brinker v. Brinker, 7 Pa. St. 53 ; 2 Story Eq. Juris. ?? 785, 786 ; 3 Parsons on Cont. 406. ' Harder v. Harder, 2 Sand. Ch. 17. * Guptou V . Gupton, 47 Mo. 87 ; Mundorff v. ElTboum, 4 Md. 459 ; Campbell v. Taul, 3 Yerg. 548 ; Johnson v. Hubbell, 2 Stockt. Ch. 332 ; Quackenbush v. Ehle, 5 Barb. 469. And see Frisby v. Parkhnrst, 29 Md. 58 J Semmes v. Worthington, 88 Md. 298 ; Fardy v. Williams, 38 Md. 493 ; Brinker v. Brinker, 7 Pa. St. 53. 55 "WHAT MUST PASS BY DEED OE WEITLNG. §§ 56-57 which it is governed in the exercise of this branch of its jurisdiction." * § 56. Parol evidence. — An agreement for the execution of a written contract to sell land must also be by written instrument. For this is an agreement that one of the parties shall ulti- mately sell the land.* Evidence is not admissible to prove that a deceased person had said during his lifetime that he had sold the land of which he was the presumable owner to the plaintiff. This principle is beyond question. The introduction of such evidence would lead to the same consequences as evidence by parol of a contract for the sale of the land.^ § 57. Growing crops. — Upon the question whether growing crops and other natural products of the soil are such interests in land that a deed or written instrument is required for their con- veyance, there has been a marked, and perhaps irreconcilable conflict in the decisions. It is not our intention to enter into an exhaustive examination of the subject, but to state briefly what seem to be the proper conclusions to be deduced from the authorities. In England, the decisions have been peculiarly inconsistent. In one case Lord Littledale said: "I am of opinion that a sale of the produce of the land, whether it be in a state of maturity or not, provided it be in actual existence at the time of the contract, is not a sale of lands, tenements, or hereditaments, or any interest in or concerning them, within the meaning of the fourth section of the statute of frauds. The 1 ChanceUor Williamson in Johnson v. Hubbel, 2 Stookt. Ch. 332, 336. The chancellor continued: "In the case of Rivera v. The Executors of Rivers, 3 Desaus. Eq. 195, the court in sustaining the propriety of a court of equity recognizing and enforcing such an agreement, very properly remarked that a man might renounce every power, benefit, or right which the laws give him, and he will be bound by his agreement to do so, pro- vided the agreement be entered into fairly, without surprise, imposition, or fraud, and that it be reasonable and moral . " See also Izard v. Izard's Ex'rs, 1 Desaus. Eq. 116 ; Lewis v. Haddocks, 6 Ves. Jr. 150 ; Portescue v. Hennah, 19 Ves. Jr. 71 ; Jones v. Martin, 3 Anstr. 882 ; Podmore v. Gun- ning, 7 Sim. 644 ; Moorhouse v. Colvin, 9 Eng. L. Pattison's Appeal, 61 Pa. St. 294 ; Bowers v. Bowers, 95 Pa. St. 477. ' Pattison's Appeal, supra. The learned justice continuing, said : " In Yeakle v. Jacob, 9 Casey, 376, this court held, that a grant to one of a perpetual right to enter and cut timber on another's land for the purpose of repairing fences, was within the statute of frauds and perjuries ; that such a right is an interest in land, and cannot pass by parol. This case was cited and applied in Huff?;. McCauley, 3 Smith, P. P. 206. Many if not all the authorities bearing on this question ruay be found referred to in the arguments and opinions in these two cases, and I will not burden this opinion with them. "We think the principle of them is indisputable. Nothing can be drawn from the case of Caldwell v. Fulton, 7 Casey, 475, and subsequent cognate cases, in which this court has held to the right of severance of a freehold estate into one or more estates of freehold within the same boundaries ; that is, the mineral under the surface, to constitute a separate estate from the surface land. The distinctiveness of the purposes and uses of these interests, renders the division natural and not productive of any confusion, and very important to both interests. But it was never held that either was a personal chattel, or to be so treated. Nor are we for a moment to doubt but a conveyance of all the timber on a man's land to be taken at discretion, is not an interest in land which may be conveyed by an instrument in writing. That is not our question ; it is whether such an interest is personalty or realty, and we unhesitatingly hold it to be the latter." ' McClintook's Appeal, 71 Pa. St. (21 Smith, P. F.) 365. In that case Pattison's Appeal, 61 Pa. St. (11 Smith, P. F.) 294, is distinguished and approved. 59 WHAT MUST PASS BY DEED OB WErrrNTG. § 61 in the cultivation of hops, and which were taken down for the purpose of gathering the crop and had been piled in the yard to be replaced when the season for hop raising returned, have been considered a part of the real estate.* Therefore, in that State a valid sale of trees growing on land can be made only by a written instrument.^ The court referred to the conflict between the decisions, and observed that the question had not been decided before in that State, and said: "We are, therefore, as it seems to me, at full liberty to adopt a broad principle, if one can be found, which will determine this precise question in a manner which our judgments shall approve, and especially if it be eqlially applicable to other and analogous cases." From an examination of the authorities the court drew the following distinction: "An interest in personal chattels maybe created without a deed or conveyance in writing, and a contract for their sale may be valid though by parol. But an interest in that which isjand can only be created by deed or written conveyance, and no contract for the sale of such an interest is valid unless in writing. It is not material, and does not affect the principle that the subject of the sale will be personal property when transferred to the purchaser. If when sold it is in the hands of the seller a part of the land itself, the contract is within the statute. These trees were part of the defendant's land and not his personal chattels. The contract for their sale and transfer being by parol was therefore void." * § 61. Other States. — In New Jersey, the rule is that trees and such other products as are the natural and permanent growth of the soil cannot be deemed as possessing the nature of emble- ments or fructuA industriales ; they are a part of the inheritance and can become personalty only by an actual severance, or a severance in law as the effect of a proper instrument of writing.* 1 Bishop V. Bisnop, 11 N. Y. 123. ' Green v. Armstrong, 1 Denio, 550. s Green v. Armstrong, supra. See also Warren v. Leland, 2 Barb. 613 ; and Bank of lljansingburgh v. Crary, 1 Barb. 542 ; Pierrepont v. Barnard, 6 N. Y. 292 ; Kilmore v. Ho-wlett, 48 N. Y. 569 ; Boyce v. Washburn, 4 Hun, 792. * Slocum V. Seymour, 36 N. J. L. 138 ; O'Donnell v. Breben, 36 N. J. L. 257. See Westbrook v. Eager, 1 Har. (Del.) 81.. § 62 ITHAT MUST PASS BY DEED OR WEITTNG. 60 This distinction is made by the courts likewise in New Hamp- shire* and Indiana,'^ and it seems also in Vermont' and Missis- sippi.* In a recent case in England, it seems that the distinction made in the early cases as to the nature of the crop has been rejected.* § 62. Opposite view where this distinction is not observed. — Several of the American courts have refused to observe the dis- tinction sought to be made, and their decisions are thus in har- mony with the latest English case. We can see no just reason for this distinction. If the product is attached to or imbedded in the soil, its character as realty or personalty ought to be deter- mined, independently of the inquiry whether it requires periodical care and cultivation. This is the rule that prevails in Maine, Kentucky, Maryland, and perhaps Connecticut.* In Massachu- setts, growing timber may be transferred without a deed ; '' and so may a building sold without the land on which it stands.* But if a severance from the land is not contemplated, and it is intended to pass a title to the standing crop as such, a deed or writing is required.* The license to enter upon the land may be revoked before an actual entry and severance, and no title having passed to the purchaser he will have no right to enter ' Howe V. Batchelder, 49 N. H. 204; Kingsley v. Holbrook, 45 N. H. 313 ; Putney v. Day, 6 N. H. 430 ; 25 Am. Dec. 470. ' Owens V. Lewis, 46 Ind. 488. See Armstrong v. Lawson, 73 Ind. 498. » Buck V. Piokwell, 27 Vt. 157 ; Ellison v. Brigham, 38 Vt. 64 ; Pitch v. Bnrk, 38 Vt. 687 ; Sterling v. Baldwin, 42 Vt. 306. In the last case, how- ever, the court seems to sanction the rule that no distinction should be made while admitting the correctness of its other decisions, saying : " We are not supposed to give that opinion the force of authority beyond the very point of judgment." ' Harrell v. Miller, 35 Miss. 700. See also Powers v. Clarkson, 17 Kan. 218 ; Carrier v. Gordon, 21 Ohio St. 605 ; Kerr «. ConneU,Bert. 133 ; Daniels V. Bailey, 43 Wis. 566 ; Young v. Lego, 36 Wis. 394. * Marshall v. Green, 1 C. P. D. L. R. 35. Tliis decision was made in 1875 in the common pleas division of the English high court of justice. ' Cutler V. Pope, 13 Me. 377. See Saflford v. Annis, 7 Greenl. 168 ; Bryant V. Crosby, 40 Me. 9, 23 ; Brskine v. Plummer, 7 Greenl. 447 ; 22 Am. Dec. 216 ; Caine v. McGuire, 13 Mon. B. 340 ; Byassee v, Beese, 4 Met. (Ky.) 372 j Smith V. Bryan, 5 Md. 151 ; Bostwick v. Leach, 3 Day, 476. ' Claflin V. Carpenter, 4 Met. 580. 8 Shaw V. Carbrey, 13 Allen, 462. • Poor V. Oakman, 104 Mass. 309 ; GUes v. Simonds, 15 Gray, 411. See Knox V. Haralson, 2 Tenn. Ch. 232. 61 WHAT MUST PASS BY DEED OE WEITING. § 62 upon the land to remove the property.^ It cannot be said to be settled that the character of the crop is or is not the criterion by which to determine the necessity for a deed. But our view, as we have stated, is that the distinction is a refinement without practical value and unfounded in reason. Upon the subject, generally, the principle running through the authorities seems to be that if the agreement provides or fairly implies that the purchaser is to have possession of the land, as part of the bargain, then it becomes an agreement for an interest in land. But if the right to enter is simply incidental to the contract, and is not expressly provided for by the contract, the sale is not of land but of goods merely.^ It was held in Michigan, where an oral agreement was made for the conveyance of a farm and also for the transfer of the wheat growing thereon, that, as the former agreement was void because not in writing, the latter being connected with it was also void, though otherwise it might not be.* ' Poor V. Oakman, 104 Mass. 309. And see Drake v. Wells, 11 Allen, 141 ; Giles v. Simonds, 15 Gray, 441 ; Nettleton v. Sikes, 8 Met. 34; Nelson V. Nelson, 6 Gray, 385; Stearns v. Washburn, 7 Gray, 187; Lamson v. Patch, 5 Allen, 586; Burton v. Scherpf, 1 Allen, 133; Whitmarsh v. Walker, 1 Met. 313; Boyce v. Washburn, 4 Hun, 792; White v. Foster, 102 Mass. 375. ' See Sterling v. Baldwin, 42 Vt. 306. A contract by a creditor to take control of a debtor's plantation and sell the crops when grown was held not required to be in writing : Burkham v. Mastin, 54 Ala. 122. A con- tract made by a child with his father to release to his brothers all claim in expectancy to the father's estate, in consideration of a conveyance of land to him, need not be in writing: Galbraith v. McLain, 84 IS. 379. Where an oral agreement was made by the owner of land, giving a person the right to set out a number of trees and to receive a portion of the product during the lifetime of the trees, it was held after part performance not to be void by the statute of frauds : Wiley v. Bradley, 60 Ind. 62. ' Jackson v. Evans, 44 Mich. 510. Under a parol contract whereby plaintiff agreed that defendant might cut from his land a quantity of wood, for which the defendant was to execute to plaintiff a deed for the land, it was held that the plaintiff could not recover on assumpsit for the value of the wood taken by defendant, but as defendant did not seek to avoid the agreement, he was bound by the terms of the original contract : Green v. N. C. R. B. Co. 77 N. C. 95. See generally Brittain v. McKay, 1 Ired. 265 ; Pumer v. Piercy, 40 Md. 212 ; Brown v. Sanborn, 21 Minn. 402 ; Bull v. Griswold, 19 111. 631 ; Davis v. McFarlane, 37 Cal. 634 ; Marshall v. Ferguson, 23 Cal. 65. In Indiana, it is held that a contract for the sale of growing trees or standing timber is within the statute of frauds : Cool v. Peters' Box & Lumber Co. 87 Ind. 531 ; Armstrong v. Lawson, 73 Ind. 498. § 63 WHAT MUST PASS BY DEED OE WEITING. 62 § 63. Easements are interests in lands. — By the common law, incorporeal hereditaments could be transferred only by deed, and this, of course, still remains the law. Hence, a right to a drain running through adjoining land can be created only by deed.^ So a legal right of way can pass only by deed ;^ and the right to be buried in a particular vault requires a writing for its creation.' Pipes for the conveyance of water have been deemed an interest in land ; * so have pipes laid in the ground for the conveyance of gas.* A right of way cannot exist by parol ; it must be created by deed.® And when an easement has been once created, it can be conveyed only by deed.^ The right to abut and erect a dam upon the land of another for a permanent pur- pose can be granted only by deed.' So an agreement by an occu- pant of leased lands to permit a railroad company for a term of years to lay a track on the lands and take stone and soil therefrom ^ Hewlinsv.Shippam, 5Bam.&C. 221. In Fentinam v. Smith, 4 East, 107, Lord EUenborough said: " The title to have the water flowing in the tunnel over defendant's land could not pass by parol license without deed, andthe plaintiff could not be entitled to it as stated in his declaration by reason of his possession of the mill ; but he had it by license of the defendant, or by contract with him, and if by license it was revocable at any time." " Lord Denman, C. J., in Tickle v. Brown, 4 Ad. & E. 369. ' Bryan v. Whistler, 8 Barn. & C. 298. See also Cocker v. Cowper, 1 Cromp. M. & R. 418 ; Monk v. Butler, Cr Pitkin V. Long Island R. R. Co. 2 Barb. Ch, 221 ; 47 Am. Deo. 820. CHAPTER rV. THE PAETIES TO A DEED. PAKT I. WHO MAT CONVEY BY DEED. 64. Legal capacity to convey — General comments. 65. Capacity to take or transfer real estate governed by the law rei aUce 66. Assignment for benefit of creditors. 67. Disability of insanity. 68. Weakness of mind. 69. Evidence on issue of mental unsoundness. 70. Nervous excitement. 71. Deed of person deaf and dumb. 72. Insane husband joining in wife's deed. 73. Deed, when voidable. 74. Deed, when void. 75. Deed, by whom may be avoided. 76. Restoration of consideration. 77. Ratification of deed. 78. Effect of grantor's subsequent insanity on contract of purchase. 79. Disability from intoxication. 80. Degree of intoxication. 81. Deeds made under duress. 82. Threat of legal proceedings. 83. Grantor's will-power. 84. Deeds made under undue influence. 85. Disability of infancy. 86. Deed of minor voidable only. 87. Right of disaffirmance. 88. Whether affirmance of infant's deed may be presumed from acquiescence. 89. Same subject. 90. Opposite view that acquiescence is not affirmance. 91. Comments. 92. By what means the deed of an infant may be avoided. 93. Subsequent deed must be inconsistent with prior one. 94. Restoring the consideration — General rule. 95. Exception in Indiana. 96. Where minor has not retained consideration. 97. What is a sufficient ratification of an infant's deed. 98. Delivery of deed after majority. 99. Purchaser with knowledge of infant's prior conveyance. 100. Deeds of married women. 65 PAETIES TO A DEEIX § 64 § 101. Joint deed of husband and wife. i 102. Rule in New York. § 103. la Massachusetts. ? 104. In New Jersey. ? 105. In Ohio. § 106. In Pennsylvania. i 107. In other States. § 108. Deed from husband to wife. § 109. Joint tenants and tenants in common. g 110. Deeds by partners. § 111. Subsequent ratification. § 112. Deed by a disseisee. § 113. Right of seisin. g 114. Power of corporations to convey. g lis. Restriction from nature of corporations. PART II. ■WHO MAT TAKE BY DEED. J 116. The capacity of the grantee. g 117. Deeds to husband and wife — Common law — New York, i 118. Other States. g 119. Husband's name inserted by mistake. g 120. Deeds to corporations. g 121. Question between State and corporation. g 122. Corporation acting in other States. g 123. The parties must be in esse at the time the conveyance is executed. § 64. Legal capacity to convBy — General comments. — In general, every person who is legally competent to bind himself by contract may convey his property by deed, or may empower another to do so for him. There are, however, certain disabili- ties under which persons may be laboring that render them incapable of making a valid contract. These disabilities are said to be either legal, as in the case of married women and cor- porations, or natural, as in the case of insane persons. The dis- ability of infancy is either legal or natural, depending upon the. circumstances of each particular case. Some of those who rest under a disability, rendering them to a certain extent incapable of contracting, are permitted to convey or acquire title subject to certain restrictions.^ 1 Cutter V. Davenport, 1 Pick. 81 ; 11 Am. Dec. 149 ; Darby v. Mayer, 10 Wheat. 465 ; Chapman v. Robertson, 6 Paige, 627 ; 31 Am. Deo. 264 United States v. Crosby, 7 Cranoh, 115 ; Hosford v. Nichols, 1 Paige, 220 Sill V. Worswick, 1 Black. H. 665; Coppin v. Coppin, 2 P. Wms. 290 Hunter v. Potts, 4 Term Rep. 182. I. Deeds. — 5 § 6S PARTIES TO A DEED. 66 § 65. Capacity to take or transfer real estate governed by the law rei sitae. — The transfer and acquisition of title to land is governed by the law prevailing in the place where the land is situated. The capacity of a person to take land is determined and controlled by the law of the situs. If an alien is not per- mitted to hold land by the laws of the country where it lies, it is immaterial what the law of his domicile may be upon the sub- ject.^ " It is a principle too firmly established to admit of dis- pute at this day, that to the law of the State in which land is situated must we look for the rules which govern its descent, alienation, and transfer, and for the effect and construction ot conveyances."^ On the subject of the capacity of parties to transfer lands. Judge Story, adverting to the fact that if aliens are excluded by the laws of a country from holding lands, the title becomes inoperative as to them, regardless of what may be the law of their domicile, thus continues : " So, if a person is incapable from any other circumstances of transferring his immovable property by the law of the situs, his transfer will be held invalid, although by the law of his domicile no such per- sonal incapacity exists. On the other hand, if he has capacity 'to transfer by the law of the situs, he may make a valid title, notwithstanding an incapacity may attach to him by the law of his domicile. This is the silent, but irresistible result of the ■principle adopted by the common law, which has no admitted exception. We may illustrate the principle by an application .to cases of common occurrence under the dominion of the com- mon law. By that law, a person is deemed a minor, and is incapable of conveying real estate, until he has arrived at the age of twenty-one years. But by the law of some foreign countries minority continues until twenty-five or even until thirty years of age. Let us then suppose a foreigner, owning lands in England or America (where the common law prevails), who is by the law of his domicile in his minority, but who is over twenty-one years of age. It is dear that he may convey 1 Huey's Appeal, 1 Grant Cas. 51 ; Kling v. Sejonr, 4 La. An. 128 ; Hughes V. Hughes, 14 La. An. 85 ; Clopton v. Booker, 27 Ark. 482; Kerr V. Moon, 9 Wheat, 565 ; Buchanan v. Deshon, 1 Har. . Morley, 9 Ves. 47S ; Riggan v. Green, 80 N. C. 236 ; I»rice v. Berrington, 3 Macn. & G. 4S6; Menkins v. Lightner, 18 lU. 282; Ganger v. Skinner, 1 MoCart. 389; Carr v. Holliday, 1 Dev. & B. Eq. 344 ; Eaton v. Eaton, 8 Vioom, 108. 6 Crawford v. ScoveU, 94 Pa. St. 48 j Hovey v. Hobson, 53 Me. 451 j Gibson «. Soper, 6 Gray, 279 ; 76 Am. Dec 414 ; Rogers v. Walker, 6 Pa. St. 371 ; 47 Am Deo. 470. And see Flanders v. Davis, 19 N. H. 139. §§ 77-78 PAETIES TO A DEED. 76 be that only in cases of fraud should the deed be set aside without return of the consideration, but in cases where the deed was taken in good faith the grantee should be reimbursed.* § 77. Katlflcation of deed. — A grantor who while insane executes a deed, may ratify it on his restoration to sanity, but to render the ratification effectual, it must appear that the grantor had an intelligent conception of what he was doing, knowing that he was acting in compliance with the contract contained in the deed.^ Intention to ratify the deed may be inferred from circumstances without proof of an express ratification. Where a grantor after restoration to reason did not enter upon the land or give notice of an intention to avoid the deed, but received the money due on the notes given for the price, and was fully cog- nizant of the fact that the grantee was in possession under the deed, his ratification of the deed was inferred.' But the grantor must be able to ratify the deed intelligently.* § 78. Effect of grantor's sabsequent Insanity on contract of pnichase. — Where equities exist in favor of third persons, courts of equity are disposed to decree the specific performance of agree- ments to convey entered into by a party while sane, but who afterwards becomes insane.* If a contract for the sale of land is made by one who dies before the execution of the deed, and who leaves an insane child as his only heir at law, a court of equity has power to enforce a specific performance of the contract by directing the committee of the lunatic to execute the necessary deed.' Where the vendor has been found to have been insane at a time prior to the execution of the contract, the vendee will not be compelled to accept the title.^ ' See Eaton v. Eaton, 8 Vroom, 108. ' Bond V. Bond, 7 Allen, 1. And see Tucker v. Moreland, 10 Peters, 64 ; Eaton V. Eaton, 8 Vroom, 108. » Arnold v. Kiohmond Iron Works, 1 Gray, 434. * Valpey v. Rea, 130 Mass. 384. * Lawrie v. Lees, Law B. 14 Ch. D. 249 ; Owen v. Davies, 1 Ves. Sr. 82 ; Pe^e V. Skynner, 4 Cox Eq. 23 ; In re Doolan, 3 Drn. . Dome, 10 Mo. 277 ; Birdsong v. Birdsong, 2 Head, 289 ; Drummond v. Hopper, 4 Har. (Del.) 327. • Drummond v. Hopper, 4 Har. (Del.) 327 ; Grore v. Gibson, 13 Mees. . Hills, 36 lU. 376, 380. * Hepburn v. Dubois, 12 Peters, 345. ° 2 Blackst. Com. 293. 93 PAETIES TO A DEED, §§ 101-102 does not observe the requirements of the statute is absolutely void.* § 101. Joint deed of hnsband and wife. — la several of the States a married woman can convey her real estate only by a joint deed executed by herself and husband, and acknowledged separate and apart from her husband.^ In Maine and New Hampshire, the rigor of the early rule has been somewhat relaxed.* In Vermont, the husband must unite with the wife in the conveyance of her estate, with the exception that the wife, in the event of the husband's desertion and ill-treatment, may convey her property without joining her husband.* § 102. In New York. — In New York, a married woman was formerly required to acknowledge her deed on a private examina- tion before some officer authorized to take an acknowledgment, and this examination was required to be separate and apart from her husband. Under this statute it was held that the deed of a married woman unless acknowledged in the manner prescribed was of no validity.* The wife, however, was regarded as a » McClure v. Douthitt, 6 Pa. 414 ; Glidden v. Strnpler, 52 Pa. 400 ; Kirk- land V. Hepselgefser, 2 Grant Cas. 84 ; Trimmer v. Heagy, 16 Pa. 484 ; Snip V. Campbell, 19 Pa. 361 ; Peek v. Ward, 18 Pa. 506 ; Stoops v. Blackford, 27 Pa. 213 ; Pettit v. Fretz, 33 Pa. 118 ; Kumfelt «. Clemens, 46 Pa. 455 ; Tbom- dell V. Morrison, 25 Pa. 326 ; Millenberger v. Croyle, 27 Pa. 170 ; Richards V. McClelland, 29 Pa. 385 ; Rosebnrg's Ex'rs v. Sterling's Heirs, 27 Pa. 292. ' Bowe V. Hamilton, 3 Me. 63 ; Ex parte Thomes, 3 Me. 50 ; Shaw v. Buss, 14 Me. 432 ; Holt v. Agnew, 67 Ala. 360 ; Lane v. McKean, 15 Ala. .'$04 ; CaU v. Perkins, 65 Me. 439 ; Payne v. Parker, 10 Me. 178 ; Buchanan V. Hazzard, 95 Pa. St. 240; Fowler v. Shearer, 7 Mass. 14; Andrews v. Hooper, 13 Mass. 476 ; Concord Bank v. BeUls, 10 Cush. 276 ; Ela v. Card, 2 N. H. 176; 9 Am. Dec. 46; Gordon v. Haywood, 2 N. H. 402; Sumner V. Conant, 10 Vt. 20 ; Whiting v. Stevens, 4 Conn. 44 ; Hyde v. Morgan, 14 Conn. 104 ; Dnrant v. Ritchie, 4 Mason, 45 ; Hall v. Savage, 4 Mason, 273 ; Powell V. The Monson & B. Manuf. Co. 3 Mason, 347; Manchester v. Hough, 5 Mason, 67. As to whether the husband should be named in the body of the deed as grantor there is a difference of opinion. On one side see Blythe v. Dargin, 68 Ala. 370, and on the other Evans v. Summerlin, 19 Fla. 858. » Strickland v. BarUett, 51 Me. 355 ; Bean v. Boothby, 57 Me. 295 ; Wood- ward V. Seaver, 38 N. H. 29. • Frary v. Booth, 37 Vt. 78. ' Jackson v. Stevens, 16 Johns. 110; Jackson v. Cairns, 20 Johns. 301 ; Doe V. Howland, 8 Cowen, 277 ; Gillett v. Stanley, 1 Hill, 121 ; Galliano v. liane, 2 Sand. Ch. 147; Cuitiss v. Follett,]S Barb. 337; Van Nostrandv. Wright, Lalor, 260. §§ 103-104 PARTIES TO A DEED. 94 femme sole, so far as her separate estate, essentially such, was concerned.^ But in that State, it is now provided by statute, that the acknowledgments of a married woman may be taken and certified in the same manner as if she were sole.* § 103. la Massaclmsetts. — The separate deed of a married woman, attempting to convey her real estate, was, prior to the enactment of statutes relating to the separate estates of married women, held to be void.* But the acknowledgment of the husband alone was deemed to be sufficient, though the signatures of both were necessary to its execution.* But the assent of the husband to his wife's conveyance is no longer necessary, and she has the same power to convey real estate as if she were unmarried.^ § 104. In New Jersey. — The husband must join in the deed of the wife or the conveyance will be void.* And she must acknowledge the execution of the deed upon a private exami- nation without the hearing of her husband.' The rule that both husband and wife must join in the conveyance is applied with strictness.* ' Powell V. Murray, 2 Edw. Ch. 636 ; S. C. 10 Paige, 256. See as to construction of Acts of 1848 and 1849, Cramer v. Comstock, 11 How. Pr. 486 ; Firemen's Ins. Co. v. Bay, 4 Barb. 407; S. C. 4 N. Y. 9; Blood v. Humphrey, 17 Barb. 660. 2 Laws of 1880, ch. 800. ' Lithgow V. Kavenagh, 9 Mass. 161 j Warner v. Crauoh, 14 Allen, 163 ; Ijufkin V. Curtis, 13 Mass. 223 ; Melvin v. Locks, 16 Pick. 137 ; Gerrish v. Mason, 4 Gray, 432 ; Bruce v. Wood, 1 Met. 542 ; 35 Am. Deo. 380 ; Towns- ley V. Chapin, 12 Allen, 476 ; Leggate v. Clark, 111 Mass. 308 ; Cormorais V. Wesselhoeft, 114 Mass. 550 ; Child v. Sampson, 117 Mass. 62 ; Weed Sewing M. Co. v. Emerson, 115 Mass. 554 ; Beal v, Warren, 2 Gray, 447 ; Dresel v. Jordan, 104 Mass. 407. * Dudley v. Sumner, 5 Mass. 438 ; Catlin v. Ware, 9 Mass. 220 ; 6 Am. Deo. 50. See Gibbs v. Swift, 12 Cush. 393 ; Call t>. Buttriok, 4 Cush. 345 ; Dole V. Thurlow 12 Met. 158 ; Shaw v. Poor, 6 Pick. 86 j 17 Am. Dec. 347. 6 Laws of 1874, ch. 184. 8 Armstrong v. Ross, 20 N. J. Eq. 109 ; Moore v. Bake, 2 Dutch. 574 ; Den V. Crawford, 3 Halst. 90. ' Marsh v. Mitchell, 26 N. J. Eq. 497. If the certificate of acknowledg- ment state that she was examined separate and apart from her husband, it is regarded as a compliance with the statute, though it fails to state that she was examined separate and apart from her husband: Thayer v. Torrey, 87 N. J. L. 339. > Kearney v. Macomb, 16 N. 3. Eq. 189. 95 PAETIES TO A DEED. §§ 105-107 § 105. In Ohio. — The wife must be made acquainted with the contents of the deed, and must acknowledge its execution upon an examination separate and apart from her husband, and the officer taking the acknowledgment is required so to certify.* But an action may be maintained under the provisions of a statute to correct the certificate of acknowledgment when it omits to state that she was examined separately.* § 106. In Pennsylvania. — A separate deed by the wife is ineffectual to pass title ; both husband aud wife must join in the conveyance.* The wife is required to acknowledge the deed upqn an examination separate and apart from her husband.* If the acknowledgment is defective, rendering the deed void, she may after her husband's death ratify it, and parol evidence is admitted to show such ratification.® Though both husband and wife have executed a deed, yet if it has not been delivered until after her death, it will not be enforced against her heirs.* § 107, In other States. — Without entering into details, the law relating to the conveyances of married women in the other States will be briefly stated. In Alabama, Florida, Louisiana, Delaware, Missouri, Georgia, Maryland, Kentucky, Virginia, West Virginia, North Carolina, Mississippi, Tennessee, and Texas, the husband must join lq the wife's conveyance. In Kentucky, the court has the power upon the petition of husband and wife, to authorize the wife to sell her property without the concurrence of her husband. In West Virginia, the wife may convey her property by her separate deed when living apart from her husband. In Texas, where lands are settled upon the wife for her exclusive benefit, she may dispose of the same individually, if there is nothing in the deed of settlement restrict- ing her power of conveyance. In North Carolina, a wife may convey her property with the written consent of her hus- ' Bocook V. Fstvej, 8 Ohio St. 270. 2 Kilbourn v. Fury, 26 Ohio St. 153. ' Buclianan v. Hazzard, 95 Fa. St. 240; Bichards v. McClelland, 29 Pa. 385 ; Glidden v. Strapler, 52 Pa. 400 ; Dunham v. Wright, 53 Pa. 167. But see Elsey v. McDaniel, 95 Pa. St. 472. * Davey v. Turner, 1 Dall. 11 ; Lloyd v. Taylor, 1 Dall. 17 ; Watson v. Bailey, 1 Binn. 470; 2 Am. Deo. 462. ' Jourdan v. Jourdan, 9 Serg. & R. 268. 6 Shoenberger v. Zook, 34 Pa. 24 ; Shoenberger v. Hackman, 37 Pa. 87. § 107 PARTIES TO A DEED. 96 band.* In Alabama, where a wife held under a deed of gift from her husband to her and her children, which authorized her to sell when she saw proper, it was held that her deed signed also by the husband was sufficient, although the husband was not named in the body of the deed as a party.'' In Indiana, Illinois, Minne- sota, and Oregon, the separate real estate of the wife can be con- veyed only by a deed executed by herself and husband. In Indiana, if the husband is insane, the wife may px)uvey her sepa- rate property without her husband's action, and in case of the husband's abandonment or imprisonment in the penitentiary she may be authorized by the court to convey her real estate ; while in Illinois, the wife may alienate her own lands, yet as the husband is entitled to a third part of her estate of inheritance unless he waives it, a deed from both is generally required.^ As a general ' Alabama— Fis^ v. Stubbs, 30 Ala. 335; Mathews v. Sheldon, 53 Ala. 136 ; Hammond v, Thompson, 56 Ala. 589. Oeorgia — Seabrook v. Brady, 47 Ga. 650 ; Wynn v. Fioklen, 54 Ga. 529. Maryland — Gfllstou v. Frazier, 26 Md. 329 ; Preston v. Fryer, 38 Md. 221 ; Schley v. McCeney, 36 Md. 266 ; Gebb V. Rose, 40 Md. 387 ; Whitridge v. Barry, 42 Md. 140 ; Lawrence v, Heister, 3 Har. & MoH. 371. Kentuck}/— Miller v. Shackleford, 3 I>ana, 289 ; Powell v. Powell, 5 Bush, 619 ; Bowen v. Sebree, 2 Bush, 112 ; Latimer V. Glenn, 2 Bush, 535 j Whitaker v. Blah-, 3 Marsh. J. J. 241. Virginia— Sexton V. Pickering, 3 Rand. 468 ; Evans v. Klngsberry, 2 Rand. 120. West Fir^rmia — Laughlin v. Fream, 14 W. Va. 322. North Caj-oima— Gilchrist V. Buie, 1 Dev. & B. 359 ; 'Davis v. Duke, 2 Hay w. (N. C.) 401. Missis- sippi— Hand V. Winn, 52 Miss. 784 ; Toulmin v. Heidelberg, 32 Miss. 268 ; 14 Am. Dec. 779 ; Ezelle v. Parker, 41 Miss. 520 ; Sellars v. Kelly, 45 Miss. 323. Tennessee— Cope v. Meeks, 3 Head, 387; Parker v. Parker, 4 Lea, 392; Gillespie v. Worford, 2 Cold. 632; Matherson v. Davis, 2 Cold. 443. See Chadwell v. Wheless, 6 Lea, 312. Texas— P&tton v. King, 26 Tex. 685. In Missouri, where the husband is an alien, residing in a foreign country, it is held that the wife may dispose of her estate as though she were unmarried : Gallagher v. Delargy, 57 Mo. 29. * HoUeman v. De Nyse, 51 Ala. 95. See also Friendenwald v. MuUan, 10 Heisk. 226. » Indiana— Kmna.ma.n v. Pyle, 44 Ind. 275; Shumaker v. Johnson, 35 Ind. 33 ; Bowers v. Van Winkle, 41 Ind. 432 ; McCormick v. Hunter, 50 Ind. 186 ; Baxter v. Bodkin; 25 Ind. 172 ; Mattox v. Hightshue, 39 Ind. 257 ; Albdil V. Abdil, 26 Ind. 287 ; Farley v. Eller, 29 Ind. 322 ; Stevens v. Parish, 29 Ind. 260 ; Ellis v. Kenyon, 25 Ind. 134; Philbrooks v. MoEwen, 29 Ind. 347; Buell v. Shuman, 28 Ind. 464; Scott v. PnroeU, 7 Blackf. 66; 39 Am. Deo. 453. Illinois— Cole v. Van Riper, 44 111. 58; Rogers v. Higgins, 48 lU. 211 ; Scovil V. Kelsey, 46 111. 344 ; Hoy t v. Swar, 53 111. 134 ; Marston V. Brittenham, 76 111. 611 ; StUes v. Probst, 69 111. 382 ; Brassier v. Kent, 61 111. 426. Minnesota— Fond v. Carpenter, 12 Minn. 430; Dixon v. Merritt, 21 Minn. 196. See also Lindley v. Smith, 58 111. 250 ; Terry v. Eureka CoUege, 70 lU. 236; Merrit v. Yates, 71 lU. 636. 97 PAETtEB TO A DEED. § 107 rale, in Iowa, Nebraska, Wisconsin, Michigan, California, Nevada, and Colorado, a wife may sell her separate estate with- out the joinder of her husband. But in California, she is required to acknowledge her deed separate and apart from her husband, and the acknowledgment is part of the deed.' In Colo- rado, it was held that by a power of attorney executed by hus- band and wife to sell all their real estate in a certain county, the attorney was authorized to convey the separate property of the wife in that county.^ In South Carolina and Arkansas there are constitutional provisions authorizing married women to convey their property as if they were sole.* In nearly all the States, however, the wife is required to acknowledge the execution of the deed upon an examination separate and apart from her hus- band. The certificate of acknowledgment must show that there Las been a compliance with all the requirements of the statute.* 1 Iowa — O'Neil v. Vanderbnrg, 25 Iowa, 104 j Pursley v. Hayes, 22 Iowa, 11 ; Green v. Scranage, 19 Iowa, 461 ; Wolff v. Van Metre, 19 Iowa, 134 ; Childs V. McChesney, 20 Iowa, 431; Sanborn v. Casady, 21 Iowa, 77. Michigan — Hovey v. Smith, 22 Mich. 170. Nefyraaka — Hale v. Christy, 8 Neb. 264. California— 'Dsntzel v. Waldie, 80 Cal. 138 ; Bodley v. Ferguson, 80 Cal. 511 ; Smith v. Greer, 31 Cal. 476; Dow v. The Gould . Abbott, 12 Mass. 474 ; 7 Ajn. Dec. 87 ; Farr v. Reilly, 58 Iowa, 399. § 110 PAETIES TO A DEED. 100 would have no right to complain.^ " Neither a joint tenant nor a tenant in common can do any act to the prejudice of his co-tenants in their estates. This is the settled law, and hence a conveyance by one tenant of a parcel of a general tract owned by several is inoperative to impair any of the rights of his co-tenants. The conveyance must be subject to the ultimate determination of their rights, and upon obvious grounds. One tenant cannot appropriate to himself any particular portion of the general tract ; as upon a partition which may be claimed by the co-tenants at any time, the parcel may be entirely set apart in severalty to a co-tenant. He cannot defeat this possible result whilst retaining his interest, nor can he defeat it by the transfer of his interest. He cannot of course invest his grantee with rights greater than he possesses. The grantee must take, therefore, subject to the contingency of the loss of the premises, if on the partition of the general tract they should not be allotted to the grantor. Subject to this contingency the convey- ance is valid, and passes the interest of the grantor.^ " § 110. Deeds by partners. — In the case of a partnership a deed executed in the firm name by one of the partners will only operate upon his own interest, and cannot affect the interest of his partner.' The general rule is that a partner has no implied » Whitton V. Whitton, 38 N. H. 127 ; 75 Am. Deo. 163 ; Blossom v. Bright- man, 21 :^ok. 284 ; Phillips v. Tudor, 10 Gray, 78 ; 69 Am. Deo. 306 ; Sneed's Heirs v. Waring, 2 Men. B. 522 ; Lamb v. Wakefield, 1 Sawy. 252 ; Good v. Coombs, 28 Tex. 51 ; MoKey v. Welch, 22 Tex. 390 ; Butler v. Roys, 25 Mich. 53 ; Campau v. Godfrey, 18 Mich. 27 ; Jewett v. Stockton, 3 Yerg. 492; Bigelow v. Topliff, 25 Vt. 273; 60 Am. Deo. 264; Gates v. Salmon, 35 Cal. 576 ; Ballou v. Hale, 47 N. H. 347 ; The Boston Franklinite v. Condit, 19 N. J. Eq. 394 ; March v. Huyter, 50 Tex. 243. 2 Stark V. Barrett, 15 Cal. 361, 368, per Field, C. J. Though one tenant cannot alienate by metes and bounds a specific portion of a tract of land held in common, so as to prejudice his co-tenants, yet where separate and distinct parcels of land are held by several persons In common, oue of them, it has been held, may convey all his undivided interest in the whole of any of the separate parcels, and his deed will be effectual against his co-tenants : Primm v. Walker, 38 Mo. 94. See Bell v. Adams, 81 jST. C. 118 ; Reinicker v. Smith, 2 Har. & S. 421 ; Treon v. Emerick, 6 Ohio, 391 j Bamhart v. Campbell, 50 Mo. 597 ; Porter v. Hill, 9 Mass. 34 ; 6 Am. Dec. 22. ' Thompson v. Bowman, 6 Wall. 316 ; Brooks v. Sullivan, 32 Wis. 444 ; Lay ton v. Hastings, 2 Har. 147 ; Jackson v. Stanford, 19 Ga. 14 ; Anderson V. Tompkins, 1 Brock. 456. 101 PABTIES TO A DEED. § lU power by virtue of his relation to bind the firm by an instru- ment under seal.' But if express authority has been given for the execution of such a deed, or if there is a subsequent ratifica- tion of it, the deed will be effectual.* Thus, where a deed is executed by one partner with the consent of the others and in their presence, it will be treated as the deed of all.* § 111. Subsequent ratification. — But in cases where it has been claimed that the deed has been rendered effectual by a sub- sequent ratification, it has been extremely difficult to determine the nature of the act by which this fact should be manifested. Naturally the decisions will be found more or less inharmonious. The particular circumstances of each case must, in the main, govern, when it is urged that sufficient assent has been given to a prior unauthorized conveyance to make it operative. The English decisions are to the effect that a subsequent ratification to effectuate a deed executed by a partner without previous authority must be under seal.* But the general American rule is that a parol ratification is sufficient to make such a deed the deed of the firm.® And there is authority to the effect that an 1 Clement v. Brush, 3 Johns. Cas. 180 ; Doe v. Tapper, 4 Smedes & M. 261 ; Harrison v. Jackson, 7 Term Bep. 207 ; Van Deosen v. Blum, 18 Pick. 229 ; 29 Am. Dec. 582 ; Minnely v. Doherty, 1 Yerg. 26 ; Posey v. Bullitt, 1 Blackf. 99; Trimble v. Coons, 2 Marsh. A. K. 375 ; 12 Am. Deo. 411 ; LitUe V. Hazard, 5 Harring. 292 ; Snodgrass' Appeal, 13 Pa. St. 471 ; Morris v. Jones, 4 Har. 428 ; McNaughten v. Partridge, 11 Ohio, 223 ; Cummins v. Cassily, 5 Mon. B. 74. 2 Gunter v. Williams, 40 Ala. 561 ; Shirley v. Fearne, 33 Miss. 653 ; 69 Am. Dec. 375 ; Gibson v. Warden, 14 WaU. 244; Ely v. Hair, 16 Mon. B. 230 ; Baldwin v. Richardson, 33 Tex. 16 ; 1 Am. Lead. Cas. 592 ; Lowery V. Drew, 18 Tex. 786 ; Pike v. Bacon, 21 Me. 280 ; 38 Am. Dec. 259 ; Haynes V. Seachrest, 13 Iowa, 455. 5 Story on Partnership, § 120 ; Ball v. DnnsterviUe, 4 Term Rep. 313 ; Burn V. Burn, 3 Ves. 573 ; Mackay v. Bloodgood, 9 Johns. 285 ; Halsey v. Whitney, 4 Mason, 206. See Smith v. Winter, 4 Mees. & W. 454 ; Hunter V. Parker, 7 Mees. & W. 322 ; Potter v. McCoy, 26 Pa. St. 458 ; Anthony v. Butler, 13 Peters, 423. * Gow on Part. ch. 2, § 2, pp. 58-60, (3d ed.); Steiglitz v. Eggington, Holt N. P. 141 ; Hunter v. Parker, 7 Mees. & W. 322, 842 ; Wallace v. Kelsall, 7 Mees. & W. 264, 272 ; Story on Partnership, § 121. See Henry Coimty v. Gates, 26 Mo. 315 ; Snyder v. May, 19 Pa. St. 235. 5 Cady V. Shepperd, 11 Pick. 400; 22 Am. Dec. 379; Bondu. Aitkin, 6 Watts & S. 165 ; 40 Am. Dec. 550 ; Grady v. Robinson, 28 Ala. 289 ; Gunter V. Williams, 40 Ala. 561 ; Hayes v. Seachrest, 13 Iowa, 455 ; Skinner v. Dayton, 19 Johns. 513; 10 Am. Dec. 286; Gram v. Seton, 1 Hall, 262; §§ 112-113 PARTIES TO A DEED. 102 express ratification is not necessary; that it may be by the conduct and course of dealing pursued by the firm.* § 112. Deed by a disseisee. — The old rule of the common law was that a person out of possession was unable to make a valid transfer of his property. This proceeded on the ground that rights which had not been reduced to possession could not be assigned to a stranger; because it was assumed that such a transfer had a tendency to produce litigation. Statutes have been enacted in several of the States providing against the con- veyance of pretended titles." In States where statutes of this character exist, a deed made by a party who is out of possession and against whom the land he seeks to convey is held adversely by another under a claim of title, is ineffectual to transfer the legal title against the person having the actual seisin.* Thus in Massachusetts, this rule was enforced where the grantor was out of possession for only four months.* § 113. Eight of seisin. — But a deed made by a disseisee is not void as a contract between the parties to the conveyance. But it is void to the extent that it will not pass the legal title and seisin, nor enable the grantee to maintain an action in his Smith V. Kerr, 3 Comst. 144 ; Johns v. Battin, 30 Pa. St. 84 ; McDonald v. Egglestou, 26 Vt. 154 ; 60 Am. Dee. 303 ; Drumright v. Philpot, 16 Ga. 424; 60 Am. Deo. 73S; Swan v. Stedman, 4 Met. 548; Willey r. Lines, 3 Houst. 542; Kussell v. Annable, 109 Mass. 72; Holbrook v. Chamberlin, 116 Mass. 155 ; Gibson v. Warden, 14 Wall. 244. See also Cunningham erate. It was never, we believe, regarded as a mischief, that under a conveyance to husband and wife they should take as tenants by the entirety, and we have no reason to believe that it was within the con- templation of the legislature to change that rule. Neither do we think that there is any public policy which requires that the statute should be so construed as to change the common-law rule. It was never considered that the rule abridged the rights of married women, but rather that it enlarged their rights and improved their condition. It would bo against the spirit of the statutes to cut down an estate of the wife by the entirety to an estate as tenant in common with her husband. If the rule is to be changed, it should be changed by a plain act of the legislature, applicable to future conveyances; otherwise incalculable mischief may follow by unsettling and disturbing dispositions of property made upon the faith of the common-law rule. The courts certainly ought not to go faster than the legislature in obliterating rules of law under which many generations have lived and flourished and the best civilization of any age or country has grown up." Danforth, J., and Finch, J.,.dissented,on the ground that the common-law doctrine was abrogated by the statutes enabling a wife to hold a separate estate, and also for the reasons stated in the case of Meeker V. Wright, 76 N. Y. 262. ' Dutch V. Manning, 2 Danes Abr. 230; Ross v. Garrison, 1 Danes Abr. 35 ; Shaw v. Hearsey, 5 Mass. 521-523 ; Fox v. Fletcher, 8 Mass. 274 ; Var- num V. Abbot, 12 Mass. 479 ; 7 Am. Dec. 87 : Wales v. CofSn, 13 Allen, 213. § 118 PAETIES TO A DEED. 110 the rule of the common law prevails,* and it is recognized also in Indiana and Missouri.' This rule was enforced in Indiana, where a conveyance was made to husband and wife without specifying their relation, and to several other grantees.* The doctrine of the common law is observed in Maine,* and in Vermont.* In New Hampshire, the doctrine of tenancies by entirety has been abrogated by statute." In Connecticut, the husband and wife become joint tenants, and the husband has the power of conveying his interest.'^ In Pennsylvania, in accord- ance with the common-law rule, it is held, that by a conveyance of land to husband and wife they take the estate by entirety, and. this would be so, although the deed be made to them as "tenants in common, and not as joint tenants."* In Michigan, when a conveyance is made to husband and wife, they take the same estate as they would at common law,® although there is a constitutional provision for the enjoyment by married women of their property.*" In New Jersey, the husband and wife held by entirety; but this estate it seems has been abolished by statute." In Kentucky, it was formerly held that where a conveyance was made to husband and wife, without limitation, they became ' Ketohum v. Walsworth, 5 Wis. 95 ; 68 Am. Dec. 49; Bennett v. Child, 19 Wis. 365. 2 Davis V. Clark, 26 Ind. 428 ; Arnold v. Arnold, 30 Ind. 305 ; Falls v, Horthorn, 30 Ind. 444; Simpson v. Pearson, 31 Ind. 1; Anderson v. Tannoliill, 42 Ind. 141 ; Hulett v. Inlow, 67 Ind. 412 ; Garner v. Jones, 52 Mo. 68. See Gibson v. Zimmerman, 12 Mo. 885 ; 51 Am. Dec. 168. » Hulett V. Inlow, 57 Ind. 412 ; Chandler v. Cheney, 37 Ind. 391 ; Barnes V. Loyd, 37 Ind. 523. * Harding v. Springer, 14 Me. 407 ; 31 Am. Dec. 61. ' Brownson v. Hull, 16 Vt. 309 ; 42 Am, Deo. 517. « Clark V. Clark, 56 N. H. 105. ' Whittlesey v. Fuller, 11 Conn. 337. 8 Fairchild v. Chastellenx, 1 Pa. 176; 44 Am. Deo. 117; Stuokey v. Keefe's Executor, 26 Pa. 397 ; Bates v. Seely, 46 Pa. 248 ; Diver v. Diver, 58 Pa. 106 ; French v. Mehan, 56 Pa. 289 ; McCurdy v. Canning, 64 Pa. 39. 9 Fisher v. Provin, 25 Mich. 347, 350; Jacobs v. Miller, 50 Mich. 119; .ffitna Ins. Co. v. Resh, 40 Mich. 241 ; Manwaring v. PoweU, 40 Mich. 371. 10 Const. Mich, art xvi. § 5. A husband and wife may occupy the home- stead as tenants in common : Lozo v. Sutherland, 38 Mich. 168. " Washburn v. Burns, 34 N. J. L. 18 ; Den v. Hardenbergh, 5 Halst. 42 ; 18 Am. Deo. 371; Den v. Gardner, Spenc. 556; Thomas v. De Baum, 1 McCart. 40 ; MoDermott v. French, 2 McCart. 78 ; Bolles v. State Trust Co. 12 Green, C. B. 308 ; See v. Zabriskie, 1 Stewt. Eq. 423. See Kip v. Kip, 33 N. J. Eq. 213 J 23 Alb. L. J. 219. Ill PARTIES TO A DEED. § 118 tenants by the entirety, and the whole estate vested in the survivor.* But by the Revised Statutes, unless a right of survivorship is expressly provided for in a conveyance to husband and wife, they hold as tenants in common with all the incidents of a tenancy of this nature.^ But in Maryland,' Virginia,* and North Carolina,^ the common law prevails. The husband and wife hold by entirety and the survivor takes the whole estate ; and the law is the same, substantially, in Tennessee,' It is held in Arkansas that the statutes and constitution of that State do not alter the common-law rule upon this subject, and that it is still in force ;^ and in Mississippi, an estate by entirety is created by a d&d to husband and wife. But the sole debt of the husband may be secured by a joint mortgage executed by husband and wife.' In Texas, where a gift is made to husband and wife, the wife has an undivided half interest in the property conveyed as her separate estate.' In Michigan, where a deed had been made to a man and woman living together as husband and wife, and regarded as occupying that relation by the public, and he, after her death, conveyed the land, and her children by a former husband sought to claim a right of inheritance in the land by showing that she was not lawfully married to the man, and that the estate taken by them was a tenancy in common, it was held that the grantees became seised of the entirety, the survivor taking the whole, and that they were tenants in common could not be shown by parol.** But even if the property is paid for with funds belonging to the community, still if the deed is ' Boss V. Garrison, 1 Dana, 35 ; Sogers v. Orider, 1 Dana, 243 ; Cochran V. Kemey, 9 Bush, 199; Babbit v. Scroggin, 1 Duval, 272. » 2 Re V. Stats, ch. 47, § 14 ; Croan v. Joyce, 3 Bush, 454 ; Elliott v. Nichols, 4 Bush, 502. > Marburg v. Cole, cited in 22 Alb. L. J. 59 ; Hannan v. Towers, 3 Har. ° Jacobs V. Miller, 50 Mich. 119. §§ 119-121 PAETIES TO A DEED. 112 made to the sole and separate use of the wife, in pursuance of the common understanding of all parties interested, the object being to vest the title in her, she has the title to the land con- veyed as her separate estate.^ § 119. Husband's name inserted by mistake. — "Where the name of the husband has been inserted in the deed as one of the grantees by mistake, a court of equity may correct the mistake. A married woman purchased a piece of land, and the person who drew up the deed inserted the husband's name with hers, thus conveying the title to them jointly. Subsequently the hus- band died, and after his death his widow brought an action against the heirs to reform the deed, by striking out the hus- band's name. The mistake having been satisfactorily shown, the court granted the relief prayed for.^ § 120. Deeds to corporations. — In England, the right of a corporation to hold land was restrained by statutes, known as statutes of mortmain.' In Pennsylvania, the statutes of mort- main have been held to be in force so far as they are consonant with its political condition.* "In other States, it is under- stood," says Kent " that the statutes of mortmain have not been re-enacted or practiced upon." * If a charter of a corporation forbids it to purchase or take lands, a deed made to it is void,* § 121. Question between State and corporation. — The gen- eral rule is that the State alone can take advantage of the clause in the charter prohibiting a corporation from holding land. In Virginia, it was decided upon a bill by a corporation for the specific performance of a contract to convey lands, that it was no defense that the corporation was by its charter not allowed to 1 Baker v. Baker, 55 Tex. 577; Morrison v. Clark, 55 Tex. 437. See Edwards v. Beall, 75 Ind. 401. ' Courtright v. Courtright, 63 Iowa, 356. See Nowlin v. Pyne, 47 Iowa, 298. ' Co. Litt. 2 6; 1 Blaokst. Com. 479 ; 2 Blaokst. Com. 268, 274. * 3 Binney App. 626. See Methodist Church v. Remington, 1 Watts, 218 ; 26 Am. Deo. 61. 5 2 Kent Com. 229 ; MoCartee v. Orphan Asylum, 9 Cowen, 452 ; 18 Am. Deo. 615 ; Potter v. Thornton, 7 R. I. 252 ; Lathrop v. Scioto Com. Bank, 8 Dana, 119. " Leazure v. Hillegas, 7 Serg. & R. 319, per Tilghman, C. J. 113 PAETIKS TO A DEED. § 121 hold them. It was considered a question solely between the State and the corporation.^ In that case the charters of the banks after authorizing them to purchase lands, provided that the lands which it should be lawful for them to hold should be only such as were requisite for their immediate accommodation, or acquired in satisfaction of debts, and that they should not deal, directly or indirectly, in any other thing than bills of exchange, gold or silver bullion, etc. Green, J., said : " It seems to me that the charters are only directory in this respect ; they impose no penalty in terms. They do not declare the purchase by or conveyance to the banks to be void, nor vest the title in the commonwealth, or any other than the banks, in consequence of such purchase and conveyance. The legal title passed to the banks by the conveyance to them, and their conveyance would effectually transfer that title to any other. If in making the pur- chase of the land in question, the banks violated their charters, the corporation might for that cause be dissolved by a proceeding at the suit of the commonwealth, and even in that case it seems to be the better opinion, that the property if not previously con- veyed to some other, would revert upon the dissolution of the corporation to the grantor and not to the commonwealth.^ But any conveyance made by the corporation before its dissolution would be effectual to pass their title. The banks have, therefore, a title which they can convey to the appellee, and which would in his hands be indefeasible. If, in this case, the banks violated their charter, by the purchase of the land in question, the maxim fadwm valet quod fieri non debet seems to apply. It would be extremely inconvenient if every contractor with one of these banks could, for the purpose of avoiding his contract, institute the inquiry whether the bank had violated its charter. They have a right to insist that the question should be tried by a jury, in a proceeding having that single object in view." ' And this is a correct statement of the general rule.* But in Michi- 1 Banks v. Portianx, 3 Rand. 136 ; 15 Am. Deo. 706. » Co. Litt. 13 6. ' Banks v. Portiaux, supra. * See Silver Lake Bank v. North, 4 Johns. Ch. 370 ; Storer v. Great Western Co. 2 Younge & C. Ch. 48 ; Natoma Water Co. v. Clarkin, 14 Cal. 544. In Natoma Water and Mining Co., supra, Chief Justice Field, in the petition for rehearing, said : " The plaintiffs are an incorporated com- I. Deeds. — 8. § 122 PAETIES TO A DEED. 114 gan the-court did not follow the rule announced by the Supreme Court of Virginia, on the ground that a court of equity will not lend its aid to enforce the performance of a contract against the spirit of terms of the charter of the corporation.^ "Where a restraint upon the right to take lands is imposed by a proviso, the party objecting is required to bring the case by proof within the operation of such proviso.^ § 122. Corporation acting in other States. — Though a cor- poration has no legal existence out of the State in which it was created, yet it may do business in another State by the comity observed among the different States.* But the validity of an act performed in another State depends upon the laws of that State. Thus, where a coal company incorporated by the State of New York for the purpose of supplying a city of that State with coal, bought coal lands in Pennsylvania, and it appearing by the act of incorporation that the power to purchase and hold lands was pany under the Act 'of April 14, 1853, by the fourth section of which they are authorized ' to purchase, hold, sell, and convey such real and personal estate as the purposes of the corporation shall require.' Whether or not the premises in controversy are necessary for those purposes it is not material to inquire ; that is a matter between the government and the cor- poration, and is no concern of the defined acts. It would lead to infinite inconveniences and embarrassments, if in suits by corporations to recover the possession of their property, inquiries were permitted as to the neces- sity of such property for the purposes of their incorporation, and the title made to rest upon the existence of that necessity." In California State Telegraph Co. v. Alta Telegraph Co. 22 Cal. 398, Cope, C. J., on page 429, says: "If the corporation, in making the pur- chase, has acquired property which, under the law of its incorporation, it had no right to acquire, all that can be said is that it has exceeded its powers, and may be deprived of its property by a judgment of forfeiture. The question is one which the State alone can raise. A purchase by a corporation in the face of a positive prohibition would be void ; but that is not this case. There was no provision of law forbidding the purchase ; and admitting that the corporation had no power to make it, the want of power in the absence of an express prohibition is not sufiQcient to avoid it as to third persons." ^ Michigan Bank v. NUes, 1 Doug. 401. A vendor cannot set aside a deed or executed contract upon this ground : Barrow v. Nashville Turn- pike, 9 Humph. 304. 2 Ex parte Peru Iron Co. 7 Cowen, 540 ; Dookery v. Miller, 9 Humph. 731. s Farmers' Loan Co. v. McKlnney, 6 McLean, 1 ; Lurabard v. Aldrich, 8 W. H. 31 ; 28 Am. Deo. 381 ; State v. Boston, 25 Vt. 433 ; CoweU v. Colorado Springs Co. Sup. Ct. U. S. Ch. L. N. vol. 12, No. 12, p. 105. 115 PAETIES TO A DEED. § 123 given with a view to the purchase of lands in Pennsylvania, it was held by the Supreme Court of the United States that the right of the corporation to hold the lands was dependent upon the express or implied consen^ of tjie^ate of Pennsylvania; and as it had been decided in that State that a corporation had a right to hold land until the government took some act to divest the estate, it was determined that the corporation purchasing the lands could hold them until an adverse proceeding was instituted by the State of Pennsylvania.* § 123. The paxties must be in esse at the time the conveyance is executed. — A deed made of a present estate to a party not living at the time of its execution is void.* Where there is a reasonable doubt of either of the parties being in esse at the time the deed is delivered, his existence must be shown as an aflSrmative fact to render the conveyance operative.' 1 Bunyan v. Cotter, 14 Peters, 122. ' Hunter v. Watson, 12 Cal. 363 ; 73 Am. Deo. 543 ; Phelan v. San Fran- cisco Co. 6 Cal. 531 ; Miller v. Chittenden, 2 Iowa, 368 ; Barr v. Schroeder, 32 Cal. 610. But this rule does not apply to remaindermen : 1 Wood on Conveyancing, 170, 172 ; Perkins, g 53 ; 3 Wash. Keai Prop. (4th ed.) 266. ' Hulick V. Soovil, 4 111. 191. See as to charitable uses, Miller v. Chitten- den, 2 Iowa, 368 ; Potter v. Chapin, 6 Paige, 649 ; Brown v. Manning, 6 Ohio, 303 ; 27 Am. Dec. 43 ; Vidal v. Gerard's Ex. 2 How. 128. A deed to a corporation never created or organized can have no effect : . Harriman v. SoQtham, 16 Ind. 190; Jones v. Cincinnati Type Foundry, 14 Ind. 89; Bossell V. Topping, 5 MoLean, 202. CHAPTER V- ALIENS TAKING- BY DEED. J 124. Purchase by aliens. g 125. Office found. J 126. In England. ? 127. In the United States. g 128. State regulation. § 129. Treaty paramount law. g 130. Resident aliens. § 131. Deed of alien before office found. 2 132. Naturalization. 1 124. Purcliase by aliens. — By the common law of England, while an alien may purchase, he can do so only for the benefit of the king. The king is entitled to the land so purchased by virtue of his prerogative upon an office found.* Even if the conveyance was taken in the name of a trustee, it afforded the alien no protection.'' An alien who is made a denizen by letters patent of the king possesses the capacity of holding lands which are purchased after he becomes a denizen.' § 125. Office foimct. — Unless the proceeding of office found is perfected, an alien has the power to hold and convey the land inter vivos.* And at common law, if an alien had purchased ' Co. litt. 2 6 ; Dumoncel v. Dumoncel, 13 I. R. Eq. 92. 2 The King v. Holland, Allen, 14 ; 1 Ho. Ab. 194, pi. 8. See Anstice v. Brown, 6 Paige, 148. And the crown might enforce in its favor a devise in trust for an alien : Barrow v. Wadkin, 24 Beav. 1 j Burney v. Macdonald, 15 Sim. 6 ; Master v. De Croismar, 11 Beav. 184. But where the devise is to trustees to sell for the benefit of the alien and others, the crown is not entitled to th« alien's interest : Du Hourmelin v. Sheldon, 1 Beav. 79. 8 Co. Litt. 2 6. * Com. Dig. Alien, C (3) ; Co. Litt. 2 6 ; Phillips v. Moore, 100 U. S. 208 ; Craig V. Bradford, 3 Wheat. 594 ; Cross v. De Valle, 1 WaU, 5 ; Gouveneur V. Robertson, 11 Wheat. 332 ; Munro v. Merchant, 28 N. Y. 9 ; Smith v. Zaner, 4 Ala. 99 ; Dudley v. Grayson, 6 Mon. 259 ; Ramirez v. Kent, 2 Cal. 558 ; Waugh v. Riley, 8 Met. 290 ; Montgomery v. Dorion, 7 N. H. 475. And see Scanlan v. Wright, 13 Pick. 523; 25 Am. Dec. 344; Sheaffe v. O'Neil, 1 Mass. 256 ; Merle v. Matthews, 26 Cal. 455 ; Buchanan v. Deshon, 1 Har. & G. 280 ; Wadsworth v. Wadsworth, 12 N. Y. 376 ; Jinkins v. Noel, 3 Stewt. 60 ; People v. Folsom, 5 Cal. 373 ; Kottman v. Ayer. 1 Strob. 552. 117 ALIENS TAKING BY DEED. §§ 126-127 lands and before office found had been made a denizen by the king, and the latter confirmed his estate, the confirmation would be operative.* It was considered that an alien had no capacity for transmitting by descent, and, therefore, his land upon his death vested by operation of law in the king, without the neces- sity of an office found.* § 126. In England. — These disabilities were removed by a statute passed in 1870, and an alien may now hold and dispose of property in the same manner and to the same extent that a natural born British subject may. The statute provides that "real and personal property of every description may be taken, acquired, held, and disposed of by an alien in the same manner in all respects as by a natural born British subject; and a title to real and personal property of every description may be derived through, from, or in succession to an alien in the same manner in all respects as through, from, or in succession to a natural born British subject, provided (1) that this section shall not confer any right on an alien to hold real property situate out of the United Kingdom, and shall not qualify an alien for an office, or for any municipal, parliamentary, or other franchise; (2) that this section shall not entitle an alien to any right or privilege as a British subject, except such rights and privileges in respect of property as are hereby expressly given to him ; (3) that this section shall not affect any estate or interest in real or personal property to which any person has or may become entitled, either mediately or immediately, in possession or expectancy, in pur- suance of any disposition made before the passing of this act, or in pursuance of any devolution by law on the death of any person dying before the passing of this act." ' § 127. In the United States. — In the United States, where there is any disqualification placed in the holding of lands by an ' Fourdrin v. Gowdey, 3 Mylne & K. 383. " Com. Dig. AUen, C (3). ' 33, 34 Vict. cli. 14, g 2. The statute was passed May 12, 1870. The legislatures of British provinces ha,ve the power by section 12 to confer the privilege of naturalization within their own limits : See Fitch v. Weber, 5 Hare, 51 ; Count De Wall's Case, 6 Moore P. C. C. 216 ; 12 Jur. 145 ; Barrow V. Wadkin, 24 Beav. 327 ; Eittson v. Stordy, 3 Smale & G. 230. § 128 AUENS TAKING BY DEED. Il8 alien, it is firmly settled that his title to land purchased or devised to him is good and valid against everybody but the State, and can be divested only by office found, or by some other act or proceeding taken by the State for the purpose of acquiring possession."^ On this point it has been said : " An alien may purchase land or take it by devise, but he holds it at the will of the government. The government may at any time iugtitute an inquest of office for the purpose of ascertaining whether he is an alien or not; and if it be found that he is, the estate or posses- sion of the land is immediately vested in the people of the State, who before had only the right or title. The people cannot enter upon the possession of an alien without this judicial proceeding. His entry and possession and holding are lawful, and can be terminated only by regular legal proceedings."^ Aliens may take by purchase or succession, lands held by the federal government.' § 128. State regulation. — Each State has the power of determining to what extent aliens may hold land within its territory. In some the rights of aliens to hold lands are guarded by constitutional provisions; in others the right is conferred by statute. Without entering into an examination of the different statutes or the rules by which they and constitutionals are to be construed, it may be stated that no restrictions to the acquisition of lands by aliens exist in Alabama,^ Colorado,* Florida,' 1 Jackson v. Adams, 7 Wend. 367 ; McCreery v. Allender, 4 Har. & McH. 409 ; Scanlan v. Wright, 13 Pick. 523 ; 25 Am. Dec. 844 ; Groves v. Gordon, 1 Conn. 11 ; Marshall v. Conrad, 5 Call, 364 ; Dudley v. Grayson, 6 Mon. 267 ; University v. MiUer, 3 Dev. 191 ; Buchanan v. Deshon, 1 Har. & G. 280 ; Doe V. Horuiblea, 2 Hayw. (N. C.) 37 ; Halstead v. Commissioners of Lake, 56 Ind. 363 ; People v. Conklin, 2 Hill, 67 ; Jenkins v. Noel, 3 Stewt. 60 ; Waugh V. Riley, 8 Met. 295 ; Doe v. Bobertson, 11 Wheat. 322 j Courtney V. Turner, 12 Nev. 345 ; Bradstreet v. Supervisors, 13 Wend. 546 ; Wibur V. Tobey, 16 Pick. 179 ; People v. Folsom, 5 Cal. 378 ; Ramirez v. Kent, 2 Cal. 558; Racouillat v. Sansevain, 32 Cal. 376; Foss v. Crisp, 20 Pick. 124. ' Jackson v. Adams, 7 Wend. 367, 368, per Sutheilaiid, J. See Jackson V. Beach, 1 Johns. Cas. 401. ' Brightley's Dig. tit. Land Presumption. « Code 1866, §? 2860, 2861 p. 677. ' G«u. Laws, ch. 4, J 15. « Laws of Florida (McClellan's Dig. 1881), oh. 92, §? 7, 14, p. 470. 119 ALIENS TAKING BY DEED. § 128 Illinois/ lowa,^ Kansas,* Maine,^ Massachusetts,* Michigan,* Minnesota,'' Mississippi,* Missouri," Ohio,'" Nebraska,^ New Hampshire," New Jersey," South Carolina," Wisconsin.'* In other States conditions of various kinds, such as residence, limit- ation of time within which claim must be made, and disposition of land within specified time, are imposed. Among the States where statutes of this nature prevail are Arkansas, California, Connecticut, Delaware, Indiana, Kentucky, Maiyland, New York, Tennessee, Virginia, and Texas." In Rhode Island, a statute provided that aliens might hold land provided they had previously obtained a license from the court. It was held that » Eev. Stats. (Hurd), 1880, oh. 6, g 1, p. 136. > Code, § 1908, pt. 2, tit. 13, ch. 1. See Krogan v. Kinney, 15 Iowa, 242; Kheim v. Kobins, 20 Iowa, 45 ; Purozell v. Smidt,^! Iowa, 540 ; Brown v. Pearson, 41 Iowa, 481. » Gen. Stats, p. 40. « Rev. Stats, p. 449, 559. 6 Gen. Stats, oh. 90, 2 83 j Pnb. Stats. 1882, pt. 2, tit. 1, ch. 126, § 1, p. 744. ' Compiled Laws 1871, p. 79 ; Const, art. xviii. § 13. ' ' Gen. Stats. 1873, i 22 ; Stats. 1878, ch. 75, g 41, p. 820. " Eev. Code 1880, 1 1230. » Rev. Stats. 1879, § 325, p. 49. See Wacker v. Waoker, 26 Mo, 426; Sullivan v. Burnett, 4 Morr. Trans. 671. >» Rev. Stats. 1880, § 4173. " Const, art. i. § 25 ; Comp. Stats. (Brown) 1881y ch. 73, H4> P' 394. " Gen. Laws, ch. 135, g 16. " Rev. of 1877, pp. 0, 296. » Rev. Stats, pp. 440-537. " Rev. Stats. 1878, ch. 99, g 2200. '« Ark. Code, 1874, g 2167; Cal. Const. 1879, art. i. g 17; Civ. Code Cal« g§671, 672, 1405; Conn. Stats. 1866, p. 137; Del. Rev. Code 1874, p. 493; Ind. Rev. of 1876, oh. 11 ; Ky. Gen. Stats. 1873, p. 191 ; Md. Code, Rev. Code 1878, art. Ixv. g 8 ; N. Y. Fay's Dig. 1876, pp. 552, 553 ; Tenn. Th. & St. Stats. 1871, p. 953 ; Va. Code 1873, p. 130, ch. 4, tit. 2, g 18 ; Tex. Rev. Stats. 1879, g 9, 1658 ; Pasch An. Dig. (2d ed.) art. Ixvil. p. 106. In Texas, an alien has the term of nine years in which to dispose of real estate that he has acquired : Barclay v. Cameron, 25 Tex. 232. See Phillips v. Moore, 100 tJ. S. 208; Osterman v. Baldwin, 6 Wall. 216; Sattegarl v. Schiimpfif, 85 Tex. 323. As to the rule in New York, see Goodrich v. Russell, 42 N. Y. 177 ; Ettenbeimer v. Hellman, 66 Barb. 374 ; Heeney v. Brooklyn, 33 Barb. 360. As to Kentucky, see Eastlake v. Rodaquest, 11 Bush, 42 ; Yeaker v. Yeaker, 4 Met. 33. As to Michigan, see Crane v. Reader, 21 Mich. 24. As to Iowa, see Purozell v. Smidt, 21 Iowa, 540 ; Greenhold v. Stanforth, 21 Iowa, 595. By section 2676 of the Georgia Code, it is provided that lands may be acquired on the condition that improvements are made and the holding is limited to one hundred and sixty acres. In Pennsylvania, an alien is permitted to hold five thousand acres : Brightley 's Piirdon Dig. 67. § 129 AlilENS TAKING BY DEED. 120 this statute did not affect the principle that aliens may take Jand by deed and hold it against all but the sovereign, until ofiSce found, and that this principle existed in that State as else- where.' Protection will be given to an alien in the possession of public lands as against trespassers who do not connect them- selves with the government title.* But this protection will not be given against one who shows connection with, the title of the government.* § 129. Treaty paramount law. — It is now settled, that State laws placing restrictions upon the right of aliens to hold lands must yield to treaties made by the federal government with foreign States giving their subjects the right to hold real estate. Such treaties are a part of the local law of each State, and are superior to all State constitutional provisions or legislative enactments.* 1 Cross V. De VaUe, 1 WaU. 1, 13. ' Courtney v. Turner, 12 Nev. 345. Beatty, J., delivering the opinion of the court, said : "An alien will be protected in the possession of the public lands the same as a citizen. Neither can hold as against the government title ; but the defendants have not shown, or offered to show, that they have the government title, or that they have taken any steps to obtain it. They are mere naked trespassers upon the possession of one who, so far as the proof goes, has as much right as they have to occupy any portion of the public lauds." 8 Golden Fleece Co. v. Cable Con. Co. 12 Nev. 312. Under the Mexican law an alien might hold land untU proceedings were taken to divest title: Merle v. Matthews, 26 Cal. 455; Phillips v. Moore, 100 U. S. 208; Hammeken v. Clayton, 2 Woods, 336. "The question as to the right of a non-resident alien to hold property at common law, and as we understand ■it under the civil law, was a matter between the alien and the government, and could not be called in question on a collateral proceeding between individuals. The proceeding at common law to divest an alien of property purchased is by an inquest of ofllce, and untU ofiSce found an alien may hold real estate. Under the civil law, there was some analogous proceed- ing : " Racouillat v. Sansevain, 32 Cal. 386. See also 2 Escreche Partidos Hispano Mexicanos, 696; 2 Sala Mexicana, 240. And see HoUiman v. Peebles, 1 Tex. 673 ; Yates v. lams, 10 Tex. 168 ; Clay v. Clay, 26 Tex. 24^ La Coste v. Odam, 26 Tex. 458; Barrett v. Kelly, 31 Tex. 476. * Hanensteiu v. Lynham, 100 U. S. 483 ; Chirac v. Chirac, 2 Wheat. 259 ; Carneal v. Banks, 10 Wheat. 181 ; Hughes v. Edwards, 9 Wheat. 489; Orr V. Hodgeson, 4 Wheat. 453. The court in Hauenstein v. Lynham, per Mr. Justice Swayne, said : " It must always be borne in mind that the Con- stitution, laws, and treaties of the United States are as much a part of the law of every State as its own local laws and Constitution. This is a funda- mental principle in our system of complex national polity:" See also Shanks v. Dupont, 3 Peters, 242 ; Foster & Elam v. Neilson, 2 Peters, 253 ; 121 ALIENS TAKING BY DEED. § 130 An alien, it is held, may maintain an action for the recovery of land in ease of an intrusion.* § 130. Resident aUens. — A provision in a State Constitution providing that aliens who are bona Juie residents of the State may hold land is not restrictive in its operation, and the legisla- ture has the power of extending this right to non-resident foreigners. The effect of a constitutional provision of this character is to remove the common-law disability which otherr wise would rest upon resident foreigners, and the rights which it confers may be enlarged, but cannot be abridged by the legis- lature.^ The State may interpose an information to forfeit land held by an alien against a claim by an alien plaintiff who seeks to recover the land.^ The Cherokee Tobacco, 11 Wall. 616; Mr. Rnkney's Speech, 3 Elliot's Constitutional Debates, 231 ; The People etc. v. Gerke & Clark, 5 Cal. 881. And see Ware v. Hylton, 3 Dall. 242; Fairfax v. Hunter's Lessee, 7 Cranoh, 627 ; 8 Op. Att'y-Gen. 415 ; Halleck Int. Law, 157 ; 4 Kent Com. 420. ' Bradstreet v. Supervisors, 13 Wend. 546; McCreery v. Allender, 4 Har. & McH. 409 ; Jackson v. Britton, 4 Wend. 507 ; Waugh v. Riley, 8 Met. 295 ; Scanlan v. Wright, 13 Pick. 523. See also Gansevoort v. Lunn, 3 Johns. Gas. 109 ; Orser v. Hoag, 3 Hill, 79 ; Jackson ex dem, Culverhouse V. Beach, 1 Johns. Cas. 399; Lareau v. Davignon, 1 Bufl'. N. Y. Sup. Ct. 128 ; Bonaparte v. Camden etc. R. R. Co. 1 Bald. 316 ; Commonw. v. Andre, 3 Pick. 224. At common law, an alien could not maintain either real or mixed actions (Co. Litt. 2 b); but he might maintain personal actions: Story's Eq. Plead. §g 51, 52. And see Taylor v. Carpenter, 3 Story, 458 ; S. C. 2 Wood. & M. 1; Coats v. Holbrook, 2 Sand. Ch. 586; Byam v. Stevens, 4 Edw. Ch. 119 ; Breedlove v. Nicolet, 7 Peters, 413. ' People V. Rogers, 13 Cal. 159 ; Purczell v. Smidt, 21 Iowa, 540 ; Norria V. Hoyt, 18 Cal. 217. In People v. Rogers, supra, Baldwin, J., delivering the opinion of the court, said : " The object of this provision was to secure a certain protection to resident aliens as might be in the State at the time of a descent. But this short sentence was not designed to comprehend all the law in respect to aliens. The legislature could not, indeed, abridge this privilege, but it was not disabled from extending it or adding other privileges. It might as well be urged that because the Constitution pro- vided that no law should be passed impairing the obligation of contracts, no legislative regulation could be had; or because a homestead was exempted from forced sale, there could be no exemption of other property. The alien is secured by the Constitution in this one privilege, but he may be secured by the legislature in as many more as it chooses to give, pro- vided there is no conflict with any constitutional restrictions upon its power : " See U. S. «. Fox, 94 U. S. 815 ; Etheridge v. Malempre, 18 Ala. 565. » Held V. The State ex rel. Thompson, 74 Ind. 252. §§ 131-132 ALIENS TAXING BY DEED.. 122 § 131. Deed of alien before office found. — While it is said in some cases that where the alien has conveyed land by deed, it is liable to forfeiture in the hands of the grantee,* yet the rule seems to be when the disability of alienage exists, that an alien may convey lands acquired by him by purchase before office found, and his deed will transfer a good and valid title, if the grantee is capable of holding. It is not the object of the State to add to its revenue by the confiscation of property, but to pro- tect itself from the danger of allowing persons who owe it no allegiance to own land within its boundaries, and perhaps use the profits derived from the land in acts of hostility to the State. For this reason is it that the land may be forfeited to the State.* An alien cannot prevent the performance of a specific contract relating to real estate by pleading his alienage as a bar.' As to whether an alien before office found can maintain an action to recover real estate, the better view is that he can.* If land is to be conveyed to a citizen in trust to convert into money as soon as practicable, and deliver the same to an alien, there is no intention that the trustee shall hold the land for the benefit of the alien, and such a trust is valid.* § 132. Naturalization. — The naturalization of an alien will confirm a title which he had previously acquired by either pur- chase or devise.' But it will not have the efiect of enabling him to take lands as an heir, to which if capable of holding he would have been entitled before his naturalization.^ Where ' People V, Conklin, 2 Hill, 67; Scanlan v. Wright', 13 Pick. 523. ' Montgomery v. Dorion, 7 N. H. 475 ; Halstead v. Board of Commis- sioners of Lake County, 56 Ind. 363 ; Marshall v. Conrad, 5 Call, 364 ; Foxwell V. Craddook, 1 Pat. & H. 250 ; Sheaflfe v. O'Neil, 1 Mass. 256. 8 Scott V. Thorpe, 1 Edw. Ch. 512. * Bradstreet v. Supervisors of County of Oneida, 13 Wend. 546. And see Norris v. Hoyt, 18 Cal. 217 ; MoCreery's Lessee v. Allender, 4 Har. . Smart, 24 Hun, 127 ; Tracy v. Tracy, 14 W. Va. 243 ; West Va. OU Co. v. Vinal, 14 W. Va. 637 ; Hanlon v. Wilson, 10 Xeb. 138 ; Viokers v. Sisson, 10 W. Va. 12 ; Peckham v. Barker, 8 R. 1. 17 ; Ingles v. Patterson, 36 Wis, 73 ; Guynn i-. McCauley, 32 Ark. 97 ; Fleming v. Carter, S7 lU. 565 ; Troup ». Troup, 87 Pa. St. 149 ; Pfiffner t>. S. «fe St. P. R. R. Co. 23 Minn. 343 ; Gregg V. Hamilton, 12 Kan. 333; Fall v. Hazelrigg, 45 Ind. 576; Gibert v. Pet- eler, SS X. Y. 165 ; Thompson i>. Gould, 20 Pick. 134 ; Wells r. Calnan, 107 Mass. 514 ; Bacon v. Simpson, 3 Mees. A W. 78 ; Burnley r. Stevenson, 24 Ohio St. 474 ; Massie v. Watts, 6 Cranch, 148 ; Hiatt v. Williams, 72 Mo. 214; 37 Am. Bep. 438. §§ 150-151 NECESSITY OF A WKITLNG. 138 § 150. What is a sufficient possession. — Courts of equity exercise their power to decree specific performance, as we have seen, for the prevention of fraud. Hence, in any given case, the possession of the vendee must be of such a character that the refusal of the vendor to complete the agreement will be a fraud. On this ground is founded the decision that where possession has been taken of land under a parol contract for its purchase and afterwards abandoned, specific execution will not be enforced.*^ Where two persons live in the same house, of which one is the owner, an agreement by the latter to convey the house to the other in return for his support and care will, in case of per- formance during the owner's life, be enforced against his heirs.^ When possession has been taken under a verbal agreement for a lease for one year with the privilege of renewing for two years more, and the rent for the first year has been paid, the lessee may obtain a decree of specific performance against the lessor.* But even the payment of the purchase money and the erection of improvements are not sufficient to take the case out of the statute, when the possession after the sale is a mere continuance of a prior possession.'' The possession must not only be with the permission of the vendor, but a direct consequence of the agreement and referable to it.* § 151. Possession alone. — It is said in some cases that pos- session alone is not enough to entitle a party to specific per- formance, that either payment or the expenditure of money on the land is also required.* But this is a narrow view, not in ' Chambliss v. Smith, 30 Ala. 366. See Cuppy v. Hixon, 29 Ind. 522 j White V. Watkins, 23 Mo. 423. ' Watson V. Mahan, 20 Ind. 225. See Fisher v. Moolick, 13 Wis. 321. » Clark V. Clark, 49 Cal. 586. » Pearson v. East, 36 Ind. 27 ; Carlisle v. Brennan, 67 Ind. 12 ; Suman v. Springate, 67 Ind. 115. 5 Lord V. Underdunck, 1 Sand. Ch. 46. See Jervis v. Smith, 1 Hofif. Ch. 470 ; Wills v. Stradling, 3 Ves. 381 ; Cole v. White, 1 Bro. 409 ; Harris V. Kniekerbaoker, 5 Wend. 638 ; (livens v. Calder, 2 Desaus. Eq. 171, 190 ; 2 Am. Dec. 686 ; Thompson v. Scott, 1 McCord Ch. 39 ; Hood v. Bowman Freem. (Miss.) 290 ; Wood v. Parmare, 10 Watts, 195 ; Atkin's Heirs v. Young, 12 Pa. St. 15 ; Christy v. Bamhart, 4 Pa. St. 260 ; 12 Am. Dec. 538 ; Carrolls v. Cox, 15 Iowa, 455 ; Moore v. Higbee, 45 Ind. 487. * See Moore v. Small, 19 Pa. St. 461 j Dougan v. Blooher, 24 Pa. St. 28 • Ballard v. Ward, 89 Pa. St. 358. ISd NECESSITY OF A WEITINO. §§ 152-153 accord with the weight of authority. "Where there is a parol agreement for a partition, instructions to a scrivener to draw the necessary writings, and entry upon the land for the purpose of marking the lines of division, to obtain an accurate descrip- tion of the several lots, are not such acts as will be deemed a part performance.* "Whether possession be an unequivocal act amounting to part performance, must depend upon the trans- action itself. If it be distinctly referred to the contract alleged in the pleadings, I think no case has denied that it is part per- formance. The defendant is protected from liability as a tres- passer, and the plaintifP is disabled from dealing with any other person."* An oral agreement was made between a father and two of his sons, that if they would take charge of the farm and earn a certain sum of money for the father he would give the farm to them. The sons managed the farm and retained the profits, but the land was assessed to the father without objection from the sons, and it was held that the sons after the death of the &ther were not entitled to have the farm conveyed to them.* § 152. Fraadnlent omission of part of land tsxaa deed. — Where a vendor by fraudulent misrepresentations prevails upon a purchaser of land, who has paid the purchase price and assumed possession, to accept a deed from which a portion of the land verbally agreed to be conveyed is omitted, the purchaser is per- mitted to maintain a 'suit for the specific performance of the agreement.* § 153. Length of tune over which possession extends. — It is always r^arded as an additional reason for enforcing perform- ance, that possession has been retained for a considerable period ' Oiatz V. Giiatz, i Rawle, 411. ' liord Manners, in Kine v. BaUe, 2 Ball & B. 343. See Poland v. O'Con- nor, 1 ifeb. 50 ; Anderson «. Simpson, 21 Iowa, 399 ; Tatnm v. Brooker^Sl Mo. 148; Anderson v. Chick, 1 BaU. Eq. 124; Hatcher v. Hatcher, 1 Mcilnll. Eq. 311 ; Poag t>. Sandifer, 5 Rich. Eq. 170. » Larison v. Polhemus, 36 N. J. Eq. 506. " Beardsley v. Duntley, 69 N. T. 577. And see HoUis v. Edwards, 1 Vem. 159 ; Mondy ». Jolliffe, 5 Mylne . Wisking, 25 Eng. L. & Eq. 257 ; Mills V. Hunt, 17 Wend. 333 ; McKnight v. Dunlop, 5 N. Y. 537 ; 65 Am! Dee. 370 ; Boutwell v. O'Keefe, 32 Barb. 484. 141 NECESSITY OP A WKITIKG. §§ 155-156 of land are sold by separate and distinct j^reements, the taking of possession of one parcel would remove from the statute only that particular lot.* § 155. Possession contemporaneous with contract — The pos- session must be contemporaneous with the contract, or an imme- diate consequence and in direct pursuance of it. Possession before and at the time the supposed contract is entered into, and the bare continuation of that possession, cannot be deemed as the taking of possession under such contract.^ Thus, for instance, the continuance in possession by a tenant as in the cases referred to in the following section, cannot be considered such a part per- formance or taking of possession as to take a case out of the statute. The possession must result from the agreement and unequivocally refer to it.* § 156. Possession nrnst be in pursuance of the agreement —Pre-existing tenancy. — If the purchaser under a parol agree- ment is a tenant of the vendor, his continued possession will be referred to the tenancy, and not to the contract of sale.* The rule is, that the statute will be enforced and specific performance denied, when reliance is placed upon possession which may be attributed to any other cause than the alleged parol contract.' The rule stated as applicable to a contract for purchase where the tenant is in possession, also prevails in case of a parol agreement for a different term of tenure. Tn the absence of circumstances showing that possession is referable to the last agreement, it will be considered as an incident of the original tenancy, and neces- ' Buckmaster v. Harrop, 7 Ves. 341. » Aitkin's Heirs v. Toung, 12 Pa. St. 15. » Mahana v. Blunt, 20 Iowa, 142 ; 1 Story's Eq. Juris. § 763. ' Blanchard v. McDongall, 6 Wis. 167 ; 70 Am. Dec. 458. If, however, it was specdally agreed at the time of the purchase, and as a part of it, that the tenancy from that time should cease, and the possession should be considered to be under such contract, it would seem that such possession with the payment of the purchase money would avail as part performance : Blanchard v. McDougaU, 6 Wis. 167. As cases in which the principle stated in the text has been applied, see Mahana v. Blunt, 20 Iowa, 142 ; Rosen- thal V. Freeburger, 26 Md. 75. » Danforth ti. Laney, 28 Ala. 274 ; Charpiot v. Sigerson, 25 Mo. 63 ; Colo V. Potts, 10 N. J. Eq. 67 ; Knoll v. Harvey, 19 Wis. 99 ; Sitton v. Shipp, 65 Mo. 297 ; Tate v. Jones, 16 Fla. 216. § 157 NECESSITY OP A wnmNG. 142 sarily the parol contract will be void.^ Where a person con- templating the purchase of land resided temporarily with the owner as a guest, during the pendency of negotiations for its purchase, it was held that there was not such part performance as to take the case out of the statute.^ If a purchaser under a parol contract takes possession and subsequently attorns to tlie vendor as landlord, or assumes any other relation than that of a purchaser in possession, his possession will be referred to his last agreement, and he will be deemed to have abandoned his equities.^ That possession is referable to the original tenancy in the absence of proof to the contrary is but a presumption, and does not apply to cases where it is apparent by the acts of the parties that they are not referable to the continuance of the old relation.* Thus, a solicitor acting for both parties was instructed by the lessee, at the request of the lessor, to prepare a written lease in accordance with the terms previously agreed upon, a draft contract was written out by the solicitor from a memo- randum made by him, and this contract was given to the lessor for his approval. He placed the lessee in possession and instructed the solicitor to draw a lease, conforming to the draft contract. The lessor objected to the lease when presented to him, and gave the tenant notice to quit. The agreement was enforced on the ground that there bad been part performance.* § 157. Possessioa upon a parol partition. — If followed by an actual posssession, a partition by parol of a tract of land 1 Armstrong v. Kattenhom, H Ohio, 265 ; Anthony v. Ijeftwioh, 3 Rand. 238 ; Jones v. Peterman, 3 Serg. . Jones,3Gill& J.127; Byrnev. Bomaine,2Edw. Ch. 445; Carlisle v. Fleming, 1 Har. (DeL) 421 ; Peckham v. Barker, 8 R. I. 17; Spmlding v. Congelman, 30 Mo. 177 ; Wood o. Thomly, 53 HL 464. > Eckert v. Eckert, 3 Fa. 332; Haines v. Hunee, 6 Md. 435. ' Dongan v. Blocker, 24 Pa. St. 2S. See also O'Keilly v. Thompson, 2 Cox, 271; South Wales R. R. Co. f. Wrthes, 1 Kay . Darrah, 50 HI. 249. Bat see King o. Thompson, 9 Peters, 204; Haines V. Haines, 6 Md. 435. See Brown r. Jones, 46 Barb. 400 ; McCoy v. Hughes, 1 Greene, 370. Where possession was taken and improvements made, but i^ainst the vendor's objection until the payment of the purchase money, specific performance was enforced : Potter v. Jacobs, 111 Mass. 32 ; Zim- merman V. Wengert, 31 Pa. St. 401| Noithn^ v. Boone, 66 HL 368; Miller t>.BaIl,64Jr.T.2Se. I. Dkess.— 10. § 162 NECESSITY OF A WKITING. 146 go with, and the father had the deed made out in his own name, but the son entered upon the land and made both temporary and permanent improvements, it was held that the heirs of the son were entitled to a conveyance.* And so where under a parol agreement between a father and son that the former should con- vey land to the latter, the title to vest at the father's death, the fact that payment of the purchase money was made by five years' Jabor, and that the son took {>ossession and made permanent improvements, is sufficient to entitle the son to a decree of specific performance, and this right is unaffected by the fact that the father paid the taxes and received each year one third of the crop.* § 162. Compensation for improvements. — If through any infirmity in the contract it cannot be specifically enforced, the vendee will be entitled to the repayment of the purchase money and compensation for the improvements, with a deduction of the amount of the rents and profits.^ And as against the vendor and creditors, it is held that the vendee has a lien upon the land for his improvements.* But it seems he has not the right to retain possession until compensation has been made to him for his improvements.* Clearing up the land or bestowing labor and skill upon its cultivation, will be considered as the making of improvements.* Where an owner of land three days after making a parol agreement to convey it died leaving three minor children, and the vendee subsequently entered upon the land and made valuable improvements, it was held that the performance I Bohanan v. Bohanan, 96 HI. 591. > McDowell V. Lucas, 97 lU. 489. » Pox V, Longly, 1 Harsh. A. K. 3SS ; Lord Pengall v. Boss, 2 Eq. Cas. Abr. 46, pi. 12 ; Farkhurst v. Van Cortlandt, 1 Johns. Ch. 273 ; Dann v. Moore, 3 Ired. Eq. 364 ; Harden v. Hays, 9 Pa. St. 151 ; Baker v. Carson, 1 Dev. . Ery, 17 Pa. St. 491 ; Moote V. Scriven, 33 Mich. 500. • Patterson v. Copeland, 52 How. Pr. 460 ; MoCarger ti. Rood, 47 Cal. 38 ; Morrison v. Peay, 21 Ark. 110. See Harder v. Harder, 2 Sand. Cb. 19. 147 KECESSITY OP A WEirDTG. §§ 163-164 of this parol agreement, notwithstanding the failure to give notice to the vendee by the children not to make the improve- ments, would not be enforced against them.^ § 163. Benefit from the use of the land. — As it is said that the statute must prevail in all cases except when it would be a fraud on a party not to enforce specific performance, it is interest- ing to inquire what the result will be when the advantages or benefits received or realized by a party in possession from the rents, issues, and profits, equal or exceed the value of the improvements placed on the land by him. It may be said that as the party has been fully compensated for all loss and damage he has sustained by his possession, labor, and improvements, there should be no ground for a departure from the statute. § 164 One view. — On one hand, the rule is laid down that compensation is never permitted in cases of this character to excuse the performance. The reason given is, that the party has so fer executed his portion of the contract, that he is entitled to an execution of it, and compensation in place of this execution is not what he contracted to have. In the language of the court : "All the courts require is proof of the agreement, and that it has been so fer partly executed as to let the purchaser into the possession under it, and that he has made valuable improve- ments on the land, and a performance will be decreed. To allow parties in avoidance of this rule to go farther and inquire whether injury has in fact resulted, or whether the correspond- ii^ benefits already received have not fully compensated for the change of possession and improvements, in order to bring the case back within the operation of the statute, would be to inaugu- rate an entirely new role on this subject, and add greatly to the complication of this already embarrassing question, and would be wholly changing the rights of the party under the agreement. Such an inquiry would always arise in those cases where a bare possession is relied upon to take the case out of the statute, and that has always been held to be sufficient for that purpose, yet the inquiry never has been gone into, or if so, has universally been disallowed by the courts.'" ^ Bysn V. WHsoo, 66 Tex. 36. * Mims v. Lockett, 33 Ga. 9^ 17, §§ 165-167 NECESSITY OP A WEXTISTG. 148 § 165. Opposite view. — On the other hand, it is asserted that when compensation has been made to a purchaser for his improvements, or where his receipts by virtue of his possession more than balance his expenditures for improvements, they will not avail him as a ground for specific execution.^ § 166. Comments. — We think the true rule to be that when a party has made improvements, the court will properly refuse to enter into a speculation as to the value of the improvements, or attempt to solve the question whether the purchaser has or has not been fully compensated by the rents and profits derived from the use of the land. One cogent reason that may be given for this view is that if this is not the true rule, and the relation of landlord and tenant did not exist, it would follow that the purchaser is a trespasser. The vendor under these circumstances would, hence, be himself legally entitled to the profits. The decisions of the courts in Pennsylvania show a strong inclination to disregard the entire doctrine of part performance ; and it is extremdy doubtful whether these decisions would be r^arded as authority elsewhere. By one author it is said that, "it is, however, well settled that possession alone without payment or other acts of ownership, is sufficient part performance of a verbal contract for land to sustain a decree for its specific execution."* § 167. Parol contract for conveyance of land between parent and cMld. — It requires stronger and more convincing evidence to establish a contract between a parent and child, or between others bearing a similar family relation, than it does to prove a con- tract between strangers.' Therefore, it is not a proper inference, » Ann Berta Lodge v. Leverton, 42 Tex. 18 ; Eckert v. Eekert, 3 Pa. 332 ; Eason v. Bason, 61 Tex. 225 ; Waek v. Sorber, 2 Whart. 387 ; 30 Am. Deo. 269 ; Ash v. Daggy, 6 Port. (Ind.) 259. » Browne on Statute of Frauds, | 467. And see the same authority, ? 469. See also 2 Story's Eq. Juris. § 761 ; 2 Greenl. Cruise, tit. 32, oh. 3, 32, 33. > Poorman v. Kilgore, 26 Pa. St. 365 ; 67 Am. Dee. 425 ; Eokert v. Mace, 3 Pen. <& W. 364. See also Shellhammer v. Ashbaugh, 83 Pa. St. 24 ; Sower v. Weaver, 84 Pa. St. 262 ; King v. Thompson, 9 Peters, 204. In Poorman v. Kilgore, supra, the court say : " We may notice still another principle of law that is applied very beneficially to restrain the exception to the statute, and which is of especial importance in this case, though its applica- tion is not peculiar to cases under this statute. We allude to the law of evidence that grows out of the family relation. It is so usual and natural 149 NECESSITY OP A WBITINQ. § 167 in the absence of other evidence, that the land was given to the son by the father, from the circumstances that the son went into possession, made improvements, and paid the taxes ; nor is suffi- cient evidence of a gift supplied by loose declarations of the father that the land was his son's property.* But while it requires stronger evidence to constitute proof, yet when the con- tract is satisfactorily shown, it will, if sufficient equitable con- siderations exist, be enforced as in other cases. A verbal agreement was made by a father to convey to his son, a minor, a tract of land, if the son would remain with him and work for him until he attained his majority. The son continued in his employment until he had passed his majority, when the father renewed the promise and caused the land to be transferred to the son on the tax-list, who relying on his father's promise took possession of the land and made valuable improvements. The father dying without executing a conveyance, a specific per- formance of the contract was decreed.* for children to work for their parents even after they arrive at age, that the law implies no contract in snch cases ; and it is so natural for parents to help their children by giving them the use of a farm or house, and then to call it theirs, that no gift or sale of the property can be inferred from such circumstances. It is so entirely usual to call certain books, or uten- sils, or rooms, or houses, by the name of the children who use them, that it is no evidence at all of their title as against their parents, but only a mode of distinguishing the rights which the parents have allotted to the children as against each other, and in subjection to their own paramount right. The very nature of the relation, therefore, requires the contracts between parents and children to be proved by a kind of evidence that is very different from that which may be sufficient between strangers. It must be direct, positive, express, and unambiguous. The terms must be clearly defined, and all the acts necessary for its validity must have especial reference to it and nothing else. The importance of this rule is very apparent, for it requires but a glance over the cases of this class to discover how sad has been the experience of the courts in family disputes growing out of the exceptions which have been allowed to this statute, and how many and how distressing must have been the ruptures of the clos- est ties of kindred that have been produced and perpetuated by the encouragement thus given to try the experiment of extracting legal obli- gations out of acts of parental kindness." 1 Hugns V. Walker, 26 Pa. St. 356; Cox v. Cox, 26 Pa. St. 375. > Atkinson v. Jackson, 8 Ind. 31. See Young v, Glendenning, 6 Watts, 509 ; 31 Am. Dec. 492 ; Lobdell v. Lobdell, 36 N. Y. 327 ; Moore v. Pierson, 6 Iowa, 279; 71 Am. Dec. 409; Bright v. Bright, 41 lU. 101 ; Hardesty v. Richardson, 44 Md. 617; Galbraith v. Gralbraith, 5 Kan. 402; Twiss v. George, 33 Mich. 253 ; Syler v. Eckhart, 1 Binn. 378 ; Willis v. Mathews, 46 Tex. 478 ; McCray v. McCray, 30 Barb. 633 ; France v. France, 8 N. J. Eq. §§ 168-169 NECESSITY OP A WKITING. 150 § 168. Consideration. — It is held that a son must be a pur- chaser for a valuable consideration, or have suffered some incon- venience, to entitle him to enforce a parol executory agreement to convey. And hence where a promise is made by a father to devise certain lands to his son, the fact that the latter makes improvements, but not in consequence of the agreement, does not relieve the case from the operation of the statute.* § 169. Acts not considered part perfonnance. — Having referred to the acts which are deemed a part performance, we now pass to the consideration of those which are not considered sufficient to take a case out of the operation of the statute. A court of equity will not enforce a contract when reliance is placed solely upon such part performance as consists of acts done anterior to the contract.^ These acts are not performed in execution of the agreement, and they are, ii. most cases, done by one party with- out the knowledge of the other. Where a vendor had verbally agreed with his vendee to convey the land when the latter obtained a release from a third person, and he did so, paying a large sum for it, it was held that this was not part performance, but simply an act preparatory to the agreement.* Under a parol agreement for the sale of land, the vendor had drawn the deeds and written to the vendee that they were ready, and requested him to complete the transaction; the vendee had deposited part of the purchase money with his agent, to be paid to the vendor upon the execution of the deeds, and the vendor had been so informed by the agent ; and finally the vendee had taken possession of the land without the vendor's permission. But these acts were not considered as constituting part perform- 650 ; Shepherd v. Bavin, 9 Gill, 32. Where an agreement was made by a father to convey in return for his support and maintenance, it was on account of part performance specifically enforced : Davison v. Davison, 13 N. 3. Eq. 246. See also Law v. Henry, 39 Ind. 414 ; Forward v. Armistead, 12 Ala. 124 ; 46 Am. Dec. 246. 1 McClure v. McClure, 1 Pa. St. 374. 2 Parker v. Smith, 1 Colly. C. C. 608, 623 ; Dougan v. Blocker, 12 Harris, 28 ; Eckert v. Eckert, 3 Pa. 332. ' O'Keilly v. Thompson, 2 Cox, 271. Where a surveyor agrees to search for swamp lands in consideration of receiving a portion of them for his services, the rendition of such services by the surveyor is not such part performance that the contract will be enforced : Edwards v. Estell, 48 CaU 194. See also North v. Forest, 15 Conn. 400. 161 NECESSITY OF A WHITING. § 170 ance.' The making of a lease by a purchaser who had pre- viously bound himself to lease the premises to a third person is not part performance.^ And generally, such acts as are merely ancillary or preparatory to the contract, as delivering abstracts of title, giving instructions for the drawing of leases or convey- ances, visiting, examining, or measuring the land, appraising the value of the land, executing conveyances which the vendee had not accepted, are not considered as constituting part performance.* § 170. Payment of money merely is not part performance. — At one time it was held that the payment of a part of the pur- chase money would take the case out of the statute.^ Subse- quently the opinion prevailed that wliUe payment of a small portion of the purchase price would not operate as part perform- ance, yet the payment of a considerable part of it would be so considered.* But it is now settled law that the mere payment of the purchase money is not such an act of part performance as 1 Givens v. Calder, 2 Desaas. Eq. 171 ; Reeves v. Pye, 1 Cranch, 219. See Townsend v. Hawkins, 45 Mo. 286. Where plaintiff had contributed his professional services toward the acquisition of defendant's title, under an agreement for a conveyance of a portion of it as his compensation, and defendants were insolvent and claimed the land as exempt from execu- tion, specific performance was decreed: Chastain v. Smith, 30 Ga. 96. See also Gosden v. Tucker, 6 Munf. 1 ; Livingston v. Livingston, 2 Johns. Ch. 537. » Whitchurch v. Bevis, 2 Bro. C. C. 559. See Whaley v. BagneU, 1 Brown Pari. C. 345. » Cole V. White, cited 1 Bro. C. C. 409; Whitbred v. Brockhnist, 1 Bro. C. C. 412 ; Redding v. Wilkes, 3 Bro. C. C. 400 ; Clerk v. Wright, 1 Atk. 12 ; Hawkins v. Holmes, 1 P. Wms. 770 ; Pembroke v. Thorpe, 3 Lev. 437, n ; Cooke V. Tombs, 2 Anstr. 420 ; Montacute v. Maxwell, Strange, 236 ; Pop- ham V. Eyre, Lofft, 786 ; Cooth v. Jackson, 6 Ves. 12, 17, 41 ; Frame v. Dawson, 14 Ves. 386 ; Stokes v. Moore, 1 Cox, 219 ; Earl of GlengaU v. Bar- ' nard, 1 Keen, 769; Thynne v. Earl of Glengal, 2 Clark & F. (N. S.) 131 ; Phillips V. Edwards, 33 Beav. 440 ; Gratz v. Gratz, 4 Rawle, 441 ; Smith v. Smith, 1 Rich. Eq. 130, 138. * Lacon v. Mertins, 3 Atk. 4; Wetmore v. White, 2 Caines' Cases in Error, 109. * Main v. Melbonm, 4 Ves. 720 ; Child v. Comber, 3 Lev. 423, n. See Wills r. StradUng, 3 Ves. 378 ; Simmons v. Cornelius, 1 Ch. Rep. 241 ; Sngden on Vendors, ch. 8, § 3. In Townsend ». Houston, 1 Har. (Del.) 532, 27 Am. Deo. 732, payment of a substantial portion of the purchase money may constitute part performance : See Thompson v. Tod, 1 Peters C. C. 388 ; Spear t>. Orendorf, 26 Md. 37. §§ 171-172 NECESSITY OP A WEITING. 152 will entitle the vendee to the specific execution of a parol con- tract for the sale of land.* § 171. Reasons for this rule. — One reason assigned for this rule is that the money may be repaid, and the parties thus restored to their former situation.* Another reason advanced is that as part payment renders a verbal sale of goods binding, it is to be presumed that the omission of any such provision con- cerninp; the sale of real estate shows an intention that such a payment shall not have this effect.* But perhaps the best reason is that the payment of money by itself is not such an act as will " put the party into a situation which is a fraud upon him, unless the agreement is fully performed."* § 172. When payment of money part performance. — But where a recovery of money paid by the party on the contract > Townsend v. Fenton, 32 Minn. 482 ; Neal v. Gregory, 19 Fla. 356 ; Parker v. Wells, 6 Whart. 153 ; Peokham v. Balch, 49 Mich. 179 ; Hood v. Bowman, Freem. (Miss.) 290 ; Townsend v. Fenton, 30 Minn. 528 ; O'Her- lihy V. Hedges, 1 Sohoales & L. 129; Alsopp v. Patten, 1 Vem. 472; M'Kee v. Pliillips, 9 Watts, 85 ; Hughes v. Morris, 2 De Gex, M. & G. 356 ; Cole V. Potts, 2 Stockt. Ch. 67 ; Ham v. Goodrich, 33 N. H. 32, 39 ; Smith v. Smith, 1 Rich. Eq. 130, 132, 135; Puroell v. Miner, 4 WaU. 513; Gamer v. Stubblefield, 5 Tex. 561. See also Leake v. Morris, 2 Ch. Cas. 135 ; Ijord Pengall v. Ross, 2 Eq. Cas. Abr. 46, pi. 12 ; Coles v. Trecothick, 9 Ves. 234 ; Jackson v. Cutright, 5 Munf . 303, 308 ; Malhi v. Lassabe, 4 Ala. 712 ; Black V. Black, 15 Ga. 445 ; Hart v. McClellan, 41 Ala. 251 ; Dugan v. Colville, 8 Tex. 126 ; Netherly v. Ripley, 21 Tex. 434 ; Blanchard v. McDougal, 6 Wis. 167 ; 70 Am. Dec. 458 ; Wood v. Jones, 35 Tex. 64 ; Smith v. Knoh, 8 Wis. 245 ; Parke v. Leewright, 20 Mo. 85 ; Workman v. Guthrie, 29 Pa. St. 495 ; 72 Am. Deo. 654 ; Lanz v. McLaughlin, 14 Minn. 72 ; Blodge v. Hildreth, 103 Mass. 424 ; Odell v. Montross, 68 N. Y. 499 ; Cogger «. Lansing, 43 N. Y. 559 ; Kidder v. Barr, 35 N. H. 235 ; Thompson v. Gould, 20 Pick. 134 ; Glass v. Hul- burt, 102 Mass. 24; Eaton v. Whitaker, 18 Conn. 222, 229; 44 Am. Dec. 586; Allen's Estate, 1 Watts & S. 383, 389; Rankin v. Simpson, 7 Harris, 471 ; Church of the Advent v. Farrow, 7 Rich. Eq. 378 ; Wilber v. Paine, 1 Hamm (Ohio), 252 ; Sites v. Keller, 6 Hamm (Ohio), 483 ; Lewis v. Mont- gomery etc. Association, 70 Ala. 276; Cronk v. Trumble, 66 lU. 428; Letcher v. Cosby, 2 Marsh. A. K. 106. If payment and other acts are relied upon, those other acts must be of such a character that a refusal to execute the agreement would be a fraud upon the purchaser : Horn v. Ludington, 32 Wis. 73. See also WUson v. Chicago etc. R. R. Co. 41 Iowa, 443. ' Neal V. Gregory, 19 Fla. 356 ; Clinan v. Cooke, 1 Sohoales & L. 22, 41. See Mialhi v. Lassabe, 4 Ala. 710. ' Pomeroy on Specific Performance, g 113, n. * Story's Eq. Juris, g 761 ; Temple v. Johnson, 71 111. 13. 153 NECESSITY OP A WETTING. § 173 ■will not restore him to his former situation, payment of the purchase money may be considered an act of part per- formance.^ Thus, where a purchaser agreed to buy land of an owner on condition that a mortgagee should discharge a mort- gage upon the land, and there was a verbal agreement between all three that the mortgagee should receive a part of the consid- eration to be paid on the purchase, and that he should at the same time release the mortgaged premises, and on the comple- tion of the purchase the purchaser paid the consideration money of which the mortgagee received the agreed sum, but declined to execute a release, he was compelled by the court, notwith- standing the statute, to do so.* § 173. Part performance by marriage. — "The subsequent marriage is not deemed a part performance, taking the case out of the statute, contrary to the rule which prevails in other cases of contract. In this respect it is always treated as a peculiar case standing on its own ground." ' But where there are other independent acts of part performance, and though they are con- nected with marriage, yet marriage is not relied upon as the only act, a parol agreement will be enforced as in other cases.* Thus, the taking of possession and the erection of improvements by the husband and wife are a sufficient part performance of a verbal promise before marriage by the father of the husband to convey land to the wife in consideration of the contemplated marriage.* ' Malins v. Brown, 4 N. Y. 403 ; Morgan »>. Milman, 3 De G«x, M. & G. 35, per Iiord Cranworth ; Rhodes t), Bhodes, 3 Sand. Ch. 279 ; German v. Machin. 6 Paige Ch. 288 ; Van Duyne v. Vreeland, 1 Beasl. 142, 151 ; Hill r. Gomme, 1 Beav. 541 ; Davison v. Davison, 2 Beasl. 246. > Malins v. Brown, 4 N. T. (4 Comst.) 4D3. See also Kunn v. Fabian, Law R. 1 Ch. 35; FarweU v. Johnston, 34 Mich. 342. But it has been held that the fact that the grantor is insolvent does not alter the mle : Townsend v. Fenton, 32 Minn. 482. » Story's Eq. Juris. § 768. See Montacute v. Maxwell, 1 P. Wms. 618 ; Taylor v. Beech, 1 Ves. Sr. 297 ; Dundas v. Dutens, 1 Ves. Jr. 199 ; Red- ding V. Wilkes, 3 Bro. C. C. 400 ; Warden v. Jones, 23 Beav. 487 ; Lassence V. Tiemey, 1 Macn. & G. 551 ; Finch v. Finch, la Ohio St. 501 ; Worley v. Walling, 1 Har. & J. 208. But see Dngan v. Gittings, 3 Gill, 138 ; 43 Am. Dec. 306. * Hammersly v. De Biel, 12 Clark & F. 45, 64; Surcome v. Pinniger, 3 De Gex, M. & G. 571 ; Ungley v. Ungley, Law R. 4 Ch. D. 73 ; Neale v. Neale, 9 Wall. 1 ; Gough v. Crane, 3 Md. Cb. 119. ^ Keale v. Keales, 9 WaU. 1. CHAPTEE Vn. THE FORMAL PAETS OF THE DEED. PART I. FORM OF THE DEBD QESBBAJJLY. g 174. Form of the deed generally. g 175. Statutory forms. § 176. Enumeration of the formal parts. PART n. THE DATE OF THE DEES. ? 177. Date not necessary to the validity of a deed. g 178. Presumption of delivery at date. i 179. Different view— Presumption of delivery from acknowledgment. g 180. Comments. i 181. Language of the courts. § 182. Presumption not conclusive. PART in. NAMES AND DESCRIPTION OP THE PARTIES. g 183. Objects to be attained in naming the parties. g 184. Designation of grantee by description. g 185. Use of common name. I 186. Uncertainty of grantee. § 187. Where the grantee is dead. g 188. Signature by wrong name. g 189. Description sufficient if no uncertainty. g 190. The grantee named must be capable of holding. g 191. Fictitious grantee. g 192. Mistake in name of corporation. g 193. Extrinsic testimony to remedy xmcertainty. g 194. Necessity for stating name of grantor in deed. g 195. Rule in New Hampshire that signature alone is sufficient. g 196. Rule in United States courts that party not bound unless named in the deed, g 197. Same rule in Massachusetts, g 198. Same rule in Maine. g 199. In Ohio, g 200. In Alabama, g 201. In Indiana. 155 POBMAI. PARTS OF THE DEED § 174 g 202. In MississippL i 203. In California. i 204. Comments. 1 205. Christian name. 2 206. Mistake in Christian name. J 207. Designation '• junior." i 208. Deeds to partners. i 209. Ascertaining intended grantee. i 210. Further description of the parties. PART IV. THE GRANTING -WOBDS. 1 211. An intention to convey should be shown, i 212. Nature of the deed. PART V. THE HABENDUM. ^ 213. The habendum not an essential part of a deed. § 214. Repugnance between granting words and habendum. § 215. Qualification of previous grant. J 216. Not the province of habendum to introduce new subject-matter into the grant. J 217. Reference to habendum. 2 218. Explanatory clause. I 219. Party not named as grantee taking under habendum. § 220. Effect of the habendum to limit the estate. PART VI. THE KEDDENDUM. i 221. What is, and when used. I 222^ What is necessary for a good reddendum. PART VH. THE TESTIMONinH CLAUSE. i 223. G^eneral use of the testimonium clause. i 224. Relinquishment of the right of dower. § 174. Form of the deed generally. — No particnlar form is required to constitute a deed. All that is essential may be expressed in veiy brief language. Lord Coke remarked that if a deed of feoffment be without premises, habendum, tenendum, reddendum, clause of warranty, etc., it is still a good deed; "for if a man by deed give land to another and to his heirs without more saying, this is good if he put his seal to the deed, deliver § 175 FORMAL PABTS OP THE DEED. 156 it, and make livery accordingly."^ Chancellor Kent, referring to this, observes: "In the United States, generally, the form of a conveyance is very simple. It is usually by bargain and sale, and possession passes ex vifacti under the authority of the local statute, without the necessity of livery of seisin, or reference to the statute of uses I apprehend that a deed would be per^ fectly competent, in any part of the United States, to convey the fee, if it was to be to the following effect : ' I, A B, in considera- tion of one dollar to me paid by C D, do bargain and sell [or in New York, grant] to C D, and his heirs [in New York, Virginia, etc., the words and his heirs may be omitted], the lot of land [describe it]; witness my hand and seal,' etc. But persons usually attach so much importance to the solemnity of forms, which bespeak care and reflection, and they feel such deep solicitude in matters that concern their valuable interests to make 'assurance double sure,' that generally in important cases, the purchaser would rather be at the expense of exchanging a paper of such insignificance of appearance, for a conveyance sur- rounded by the usual outworks, and securing respect, and check- ing attacks, by the formality of its manner, the prolixity of its provisions, and the usual redundancy of its language. The English practice and the New York practice, down to the pres- ent time, have been in conformity with the opinion of Lord Coke, that it is not advisable to depart from the formal and orderly parts of a deed which have been well considered and settled."* § 175. Statutory forms. — Attempts have been made to attain simplicity and brevity in deeds by l^islation. Thus, in Eng- land, by a statute made to facilitate the conveyance of real prop- erty, a short form of conveyance is given together with a technical and redundant form ; and the statute declares that the short form shall have the same effect as the other.' In many of the American States, short forms of conveyance have been given, which are declared effectual to pass the title to real prop- erty; and in some States, the mere naming of the several covenants has the same effect by statute as the insertion of the » Co. Litt. 7 o. » 4 Kent Com. 461. » 8, 9 Viot. oh. H9. 157 FORMAL PAETS OF THE DEKD. §§ 176-177 covenants themselves at length.* The use of these forms is not made obligatory, and though they have not always been practi- cally adopted, they mark a return to the simplicity observed by the ancient Saxons. "The Saxons, in their deeds, observed no set form, but used honest and perspicuous words to express the thing intended with all brevity, yet not wanting the essential parts of a deed, as the names of the donor and donee, the con- sideration, the certainty of the thing given, the limitation of the estate, the reservation, and the names of the witnesses."* § 176. Ennmeratioii of the formal parts. — The formal parts of a deed consist of the premises, the habendum, the tenendum, the reddendum, the conditions, the warranty, the covenants, and the conclusion. All that is contained in a deed preceding the habendum is understood to be included in the premises, embrac- ing the names of the parties, such recitals as may be deemed necessary, the statement of the consideration, and a description of the property conveyed. Certain topics, such as description, covenants, consideration, recitals, etc., which might be spoken of in this chapter, will be considered elsewhere separately. § 177. Date not necessary to the validity of a deed. — The validity of a deed is not affected by the failure to insert a date as it becomes operative from its delivery and not from its date. The date, however, is prima fade evidence of the time of the execution of the deed.* " The date is no part of a deed and not necessary to be inserted. The real date of a deed is the time of its delivery."* It is immaterial in what part of the deed the date is placed. In a deed preserving the form of an indenture, it ' In California, for instance, the form of conveyance aathorized by statute is as follows : "I, A B, grant to C D all that real property situated in [insert name of county] County, State of California, bounded [or described] as follows [here insert description] ; or if the land songht to be conveyed has a descriptive name, it may be described by the name, as for instance, ' The If orris Ranch.' Witness my hand this [insert day] day of [insert month], 18— . AB." Civ. Code, g 1092. ' Sir Henry SpeUman's Works, by Bishop Gibson, p. 234. ' Meech v. Fowler, 14 Ark. 29; Lyerly w. Wheeler, 12 Ired. 290; 53 Am. Deo. 414 ; Newlin v. Osborne, 4 Jones (N. C.) 157 ; 67 Am. Dec. 269 ; Costigan V. Gould, 5 Denio, 290 ; Colquhonn t». Atkinson, 6 Munf . 550 ; Thomi>8on v. Thompson, 9 Ind. 323 ; 68 Am. Dec 638. * Kent, C. J., in Jackson «. Schoonmaker, 2 Johns. 230, 234. §§ 178-179 FOEMAX, PARTS OF THE DEED. 158 is generally inserted at the commencement, and in one having the form of a deed-poll in the testimonium clause. In a case in which the date in a body of the deed differed from one in the foot by exactly a year, the latter was considered as the true date of the deed.* A deed which requires to be executed by several grantors is considered as dated when executed by the last grantor." § 178. Presumption of delivery at date. — It frequently becomes necessary in the case of conflicting deeds from the same grantor to determine when each became operative. They of course are supposed to take effect from delivery. But when the time of actual delivery is doubtful, resort must be had to pre- sumption. And the presumption in cases of this kind, it may be stated as a general rule, is that a deed is delivered at its date. " As a general principle a deed does not take effect from its date, but from its delivery ; but the presumption is, it was delivered on the day of its date, and the date may be contradicted as not essential to its operation. It is always competent to show that the date inserted in a deed was not the date of its delivery." ' And although the deed may not be acknowledged until long afterwards, yet the date of the deed will be presumed, in the absence of proof to the contrary, to be the true date of its execution.* § 179. Different view — Presumption of delivery from acknowl- edgment. — This rule, however, is not universally accepted, and in some States the acknowledgment is taken as the time of pre- sumptive delivery. In a Missouri case, the court said : "A deed is not generally executed till it is acknowledged, and till that takes place there will be no presumption of delivery."^ In the case cited one deed "Was dated July 10, 1835, and acknowledged ' Morrison v. Caldwell, 5 Mon. 426 ; 17 Am. Dec. 84. ' Kurtz V. HoUingshead, 4 Cranch 0. C. 180. " Mr. Justice Breese in Blake v. Fash, 44 111. 302. And this may be shown by parol evidence : Sweetser v. Lowell, 33 Me. 446. » Darst V. Bates, 51 111. 439 j Billings v. Stark, 15 Pla. 297 ; Ellsworth v. Central B. B. Co. 34 N. J. L. 93 ; McConnell v. Brown, Litt. Sel. Cas.«459 ; Jayne v. Gregg, 42 HI. 413 ; Ford v. Gregory,. 10 Mon. B. 175 j Sweetser v. Lowell, 33 Me. 446 ; Harris v. Norton, 16 Barb. 264. ' Fontaine v. Boatmen's Sayings Institution, 57 Mo. 662, 661. 159 FOKMAX, PAETS OF THE DEED, § 180 and recorded on the succeeding day, the 11th of the same month." The other "was dated, acknowledged, and recorded on the 11th of July, 1835, the same day on which the acknowledgment and recording of the first deed took place." The court said : "Both acknowledgments were taken before the sam^ officer, and the natural presumption is that they were both delivered and recorded at the same time, and that they constituted one and the same transaction. That the first deed was dated one day prior in point of time, will make no difierence."^ And in Michigan, where there was no proof of the delivery of a deed prior to its acknowledgment, and it was acknowledged on a day subsequent to its date, it was presumed to have been delivered after acknowl- edgment. The decision was placed upon the ground that such was the usual course and practice in regard to the delivery of deeds and other instruments intended for record.^ So in Iowa, it is presumed that the delivery of a deed was made at the date of the acknowledgment, in the absence of any showing as to the precise time at which a deed was delivered;' and in Maine likewise.* § 180. Comments. — But though the presumption that a deed was delivered at the time it bears date does not prevail in the States enumerated in the previous section, we regard it as the proper and general rule. Deeds are frequently delivered before they are acknowledged. The want of acknowledgment or delay in making it may be due to various causes. The parties themselves may not desire to have the deed recorded until some period subsequent to its date, and may either wish to keep the con- veyance secret, or may consider an acknowledgment before the time at which it is to be recorded as unnecessary. The deed may be executed in a place where no officer, entitled to take an acknowledgment, resides, and the inconvenience and difficulty of finding such an officer at a distance may cause delay in the acknowledgment. Or perhaps in some cases, the parties may not be aware that in order to secure to the grantee, full protection • Fontaine v. Boatmen's Savings Bank, supra, ' Blanchard v. Tyler, 12 Mich. 339. ' County of Henry v. Bradshaw, 20 Iowa, 355. * Loomia v. Pingree, 43 Maine, 299, 308. § 181 FOEMAIi PAETS OF THE DEED. 160 against subsequent purchasers and encumbrancers, the deed should be acknowledged and recorded. Then, again, in deter- mining what the proper presumption should be, there is another consideration. Acknowledgment was not necessary at common law, and if there were no statutes relative to acknowledgment, the date of the deed would have to be taken as the time at which delivery would be presumed, and this presumption mani* festly must be adopted when the deed is not acknowledged at all. Indeed, the statutes providing for the acknowledgment of deeds seem to assume that a deed has been delivered before it may be acknowledged. These statutes provide a mode of proving the execution of instruments, and execution includes delivery. Of course, as a matter of fact, deeds are sometimes, and perhaps very often, not delivered until after they have been acknowledged. But as a matter of presumption the date of the deed should, in the opinion of the author, be accepted i.i the absence of countervailing evidence as the time of delivery, § 181. Language of the courts. — This question has been in some cases elaborately discussed, and the conclusions announced have been attained by a careful consideration of all the argu- ments that may be advanced on one side or the other. "VVe deem it proper in this connection to bring to the attention of the reader the language of the court, in cases in which this question has arisen and been decided. In a case in Massachusetts, Mr. Justice Merrick said, in delivering the opinion of the court : "All deeds and contracts ought regularly to be dated on the day of their execution. This is important for a great variety of purposes. The rights of the contracting parties are not unfrequently made to depend upon an accurate statement of time. Accordingly, it is found by experience that in the pru- dent management of affairs this rule is commonly recognized as useful and observed with care. And this being at once the usual and proper manner of conducting a transaction of this kind, it may well be considered reasonable and safe to conclude, in any particular instance, where there is no other evidence upon the subject, that any legal instrument by which property is conveyed was completed on the day on which it bears date. The principle, omnia premmvnter rite acta, is not confined merely 161 FORMAL PAETS OF THE DEED. § 182 to official proceedings, or the doings of public bodies, but has been extended to acts of private individuals, especially when they are of a formal character, as writings under seal.^" "It is of little importance that the deed was not acknowledged on the same day on which it purports to have been executed, but on the 17th of January, 1846. It is well known that in this commonwealth the title to land, followed by a corresponding seisin and possession, often passes by instruments of conveyance which are not duly acknowledged; and accordingly the law will not allow a title to fail on account of such an omission, but has made suitable provision for supplying the defect of an acknowledgment where it is found to exist." ^ " The delivery of a deed is always presumed to have been made on the day of its date, and its subsequent acknowledgment does not change this presumption ; but the deliveiy may be proved to have occurred at a different time." * The presumption that the delivery of a deed was made at its date prevails in California;* also in Kansas.* This presumption is accepted, and the rule has been incorporated in California into the Civil Code, which declares that "a grant duly executed is presumed to have been delivered at its date."* § 182. Presumption not coneliisive. — This is but a presump- tion, however, and cannot avail when there is a positive aver- ment in the acknowledgment that the deed was executed after its date;' and it may always be overcome by proof.* The date is no indication of the time of the actual execution of the deed, when it appears that the deed was antedated, and the date there- fore was not the true one.' In a case where the date of the deed was prior in point of time to that written upon a revenue stamp placed on the deed, it was held that the presumption was that the deed was delivered at the time of the cancellation of the stamp.** 1 Smith V. Porter, 10 Gray, 68 ; citing 1 Phil. Ev. (8th ed.) 470. > Smith V. Porter, 10 Gray, 66, 68. ' Ford V. Gregory, 10 Mon. B. 175, 180, per Justice Simpson. • Tread well v. Reynolds, 47 Cal. 171. ' Clark V. Akers, 16 Kan. 166, 171. • Cal. Civ. Code, § 1055. ' Henderson v. Baltimore, 8 Md. 353. > Elsey V. Metcalf , 1 Denio, 323. • Costigan v. Gould, 5 Benio, 290. 10 Van Rensselear v. Vickery, 3 Lans. 67. I. Deeds. — 11. §§ 183-184 FORMAL PARTS OP THE DEED. 162 § 183. Objects to be attained in naming tbe parties. — The names of the parties should be so given that the individuals intended may be readily distinguished. And whenever such designation has been used that this may be accomplished, there is a sufficient description of the parties though the name employed be not the true one, or even if none be used at all. When the name of the grantee in a deed is asserted to be erroneous, and there is such a person as the one named, it may be shown by parol evidence who was really intended as the grantee. Thus, the court allowed a deed to "Hiram Gowing" to be shown as intended for "Hiram G. Gowing," and not to his son, whose name was "Hiram Gowing." ^ But it is requisite that there be a designation in the deed in some manner of the persons intended as parties to it.* § 184. Designation of grantee by description. — The fact that a grantee is not described by name will not affect the validity of a deed, if the designation or description be sufficient to dis- tinguish the person intended from the rest of the world. Thus, where a conveyance was made to Margaret W. Pitcher and hfer children, and to their heirs and assigns forever, it was declared that the number of children in esse could be ascertained, and the maxim would apply, id cerium est quod cerium reddi potest.^ 1 Peabody v. Brown, 10 Gray, 45. And see Scanlan v. Wright, 13 Pick. 523, 530, where it is said: "As to the deed being made to the female petitioner, by the name which she bore before her marriage, we thinls: it is the common case of a person known by different names. She bore the name of Eliza A. Castin till her marriage, and it appears that she was the person intended and understood by the grantor ; that he used the name by which he had known her, and by which she had always been known till her marriage, and it does not appear that her marriage and change of name were known to Bishop Fenwick, who conveyed the estate to her in execution of a trust.. We think it was no violation of the rule, which rejects parol evidence when offered to contradict or control a deed, to show that the petitioner was the person to whom the grant was made ; that she was in fact known by her maiden name to some persons, and especially to the grantor, and that there was no other person claiming to bear the name used in the deed, or claiming title under it." ' Chase v. Palmer, 29 111. 306. In that case, a deed without the name of the grantee when it was executed and acknowledged was held invalid. There must be a grantee named : Whittaker v. Miller, 83 111. 381. 8 Hamilton v. Pitcher, 53 Mo. 334. The court held that she and her children in esse took as tenants in common. A deed to " P or her heirs " was held good: Hogant).Page,2Wall.607; Keadyi;.Kearsley,14Mich.225. 163 FOEMAIi PARTS OF THE DEED. § 185 A deed is valid which is made to the heirs at law of a person deceased.^ But a deed made to the heirs of a living person without specifying the names of the heirs so called is void, because it is left in uncertainty who are to have the benefit of the conveyance.* § 185. Use of common name. — The description of a person by the name by which he is generally and commonly known is suf- ficient, though this name may be different from that of his bap- tism.' In a case in Michigan, where there was some uncertainty to the name of the grantee, the court observed : " It is undoubt- edly true that to constitute a valid conveyance, the grant must in k)me way distinguish the grantee from the rest of the world. But it is equally true, that if upon a view of the whole instru- ment he is pointed out, even though the name of baptism is not given at all, the grant will not fail. The whole writing is always to be considered, and the intent will not be defeated by false English, or irr^ular arrangement, unless the defect is so serious as absolutely to preclude the ascertainment of the mean- ing of the parties through the means furnished by the whole document, and such intrinsic aids as the law permits. It is not indispensable that the name of the grantee, if given, should be inserted in the premises. If the instrument shows who he is, if it designates him, and so identifies him that there is no reasonable doubt respecting the party constituted grantee, it is not of vital consequence that the matter which establishes his identity is not in the common or best form, or in the usual or most appropriate position in the instrument."* I Boone v. Moore, 14 Mo. 420; Shaw v. Loud, 12 Mass. 417. And see Thomas v. Maishfield, 10 Pick. 364, 367. • Morris v. Stephens, 46 Pa. St. 200; Winslow v. Winslow, 53 Ind. 8; Hall V. Leonard, 1 Pick. 27. " A deed conveying property is not void for uncertainty if it con be shown who were intended, and that they were in life, and capable of taking at the time the deed was executed : " Hogg v. Odom, Dud. (Oa.) 185. In that case the conveyance was to the "children of Sancy Jones." * Counden v. Gierke, Hob. 32 a. See also Erskine t>. Davis, 25 lU. 251 ; Oarwood v. Hastings, 38 Cal. 217. ' Newton v. McKay, 29 Mich. 1, 2, per Graves, C. J. The instrument in question was in this form : " Jacob Sammons and wife to F. H . Gener- eaux. This indenture made and agreed to between Jacob Sammons of the first part, and F. H. Genereaus of the second part, both of Michigan, and §§ 186-188 POEMAIi PAKTS OF THE DEED. 164 § 186. Uncertainty of grantee. — The grantee must be either mentioned by name, so that it can be known at once who is the person intended, or he must be described by terms sufficiently definite to enable his identity to be ascertained. Uncertainty as to the person intended as grantee, as for instance where a grant is made to a "neighborhood," will render a deed void.* A deed in which no grantee is mentioned, but which is given " for use of school house, if the neighboring inhabitants see cause to build a school house thereon," cannot, for the lack of necessary parties, operate either by way of grant or estoppel.* § 187. Where the grantee is dead. — A deed naming as grantee a man who is dead at the time of its execution is a nullity. And if the word "heirs" be added, title will not be conveyed to the persons coming under that classification, as the term is not one of purchase carrying title to them, but is employed as a qualifi- cation of the title of the grantee.' § 188. Signature by wrong name. — A conveyance is not invalidated by the fact that the grantor signs it by a wrong name if his true name is recited in the body of the deed, and he also acknowledges it by his true name.* Between the parties, a the county of Mackinaw, witnesseth, that the said party ot the first part, for and in consideration of the sum of fifty dollars to him in hand paid by the party of the second part, the receipt whereof is hereby acknowledged and confirmed, this first day of May, one thousand eight hundred and fifty-two, do grant, bargain, sell, and convey, and does by these presents bind his heirs, executors, administrators, and assigns, all that certain tract or parcel of land being and known as lot number forty-one (41), in the village of Cheboygan, together with all and singular the appurtenances thereunto belonging, for himself, his heirs, and assigns, to have and to hold forever, and will warrant and defend against whomsoever. In testi- mony whereof we have hereunto set our hands and seals the day and year above written. Jacob Sammons, Chloe Ann Sammons. Signed, sealed, and delivered in presence of W. A. Barr, William A. Kioe." The court considered that the paper was prepared and executed as an idle cere- mony, and that from the use of the expressions "of the party of the first part," and "party of the second part,'.' it might be gathered from the instrument who was intended as grantee. ' Thomas v. Marshfield, 10 Pick. 364, 367. See Jackson v. Sisson, 2 Johns. Cas. 321 ; Reformed Dutch Church v. Veeder, 4 Wend. 494. » Bailey v. Kilburn, 10 Met. 176 ; 43 Am. Dec. 423. But it may create a trust : BaUey v. Kilburn, lO Met. 176. » Hunter v. Watson, 12 Cal. 363, 376 : 73 Am. Dec. 543. * Middleton v. Findla, 25 Cal. 76. 165 FORMAL PAETS OP THE DEED. § 189 conveyance of property by the owner by any name will transfer the title. And when executed in a different name from that in which he acquired title, it will when recorded operate as con- structive notice of the transfer of title, and will be entitled to precedence over a deed to the same land executed in the name by which title to it was acquired, but subsequently recorded.' In all cases where there is a substantial similarity in sound, a slight variance in the orthography will be disregarded. Thus, the name of a patentee was written James Emonds, and in the deed in which he was grantor, he signed his name James Emmens or Emmons, it did not clearly appear which, but the variance was considered immaterial.^ § 189. Description sufficient if no imcertainty. — If the description of the grantees is such that no uncertainty can arise, it will be sufficient, as where a conveyance is made "to the trustees" of an unincorporated association. This is a sufficient designation, although the names of the trustees are not men- tioned.^ So where a grantor conveyed land by deed to "an association of persons," without specifying the names of all of the persons who were members of the association at the date of the deed, the court will determine who were members of the association at the time of the execution of the deed, and will decide as to the interest taken by each member of the associa- tion in the land so conveyed.* When a corporation is contem- plating a change of its existing name, it may take by the name it intends to assume in the future.' If at the time a deed is executed and acknowledged the name of the grantee is not inserted in the deed, but is inserted before delivery, and the deed is delivered either by the grantor himself or by some one else at ' Fallon V, Kehoe, 38 Cal. 44. In California, it is now provided by statute that "any person on whom the title of real estate is vested, who shall afterwards from any cause have his or her name changed, shall in any conveyance of said real estate so held, set forth the name in which he or she derived title to said real estate : " Stats. Cal. 1873-74, pp. 345, 346. » Lyon V. Kain, 36 111. 362. But see Heil & Lauer's Appeal, 40 Pa. St. 453. ' Lawrence v. Fletcher, 8 Met. 153, 163. And see American Emigrant Co. V. Clark, 62 Iowa, 182. * Pratt V. California Mining Co. 1 West C. Kep. 87 j U. S. 0. C. (Or.) » City Bank of Kenosha v. McClellan, 21 Wis. 112. § 190 POEMAL PARTS OF THE DEED. 166 his direction, the deed in its completed form must be regarded as adopted by him.^ But the legal title will not pass by a deed duly signed and acknowledged by the grantor, if after the deed is delivered the name of the grantee is inserted without any authority from the grantor. And in California, the fact that all distinctions between sealed and unsealed instruments are abolished does not affect this result.^ § 190. The grantee named must be capable of holding. — "A grant to be valid must be to a corporation, or some person certain must be named who can take by force of the grant, and who can hold either in his own right or as a trustee."' In the case from which the preceding quotation is taken, a deed to the people of a county was held void because the statute by which supervisors of counties were enabled to take conveyances of land applied only to conveyances made to them in their official name.* Upon the ground that a voluntary unincorporated association has not the legal capacity to take or hold real property, and cannot, therefore, be the beneficiary of a trust, a deed to three persons in trust for it has been held void.* But in Connecticut, in a very early case decided in 1795, a deed to a society's committee and their successors for the use of the society, seems to have been considered good.® ' tiockwood V. Mapes, 49 Mich. 546. 2 Aiguello V. Bours, 7 West C. Rep. 498; 67 Cal 447 s Jackson v. Cory, 8 Johns. 386, 388. ' Jackson v. Cory, supra. See Jackson v. Hartwell, 8 Johns. 422 ; Horn- beck V. Westbrook, 9 Johns. 73 ; North Hempstead v. Hempstead, 2 Wend. 109 ; Natchez v. Minor, 17 Miss. 544. 6 German Land Association v. Scholler, 10 Minn. 331. The court, per Wilson, C. J., said : The German Land Association was not by the law invested with any legal existence, and the trust deed gives no intimation as to who the persons were associated under that name. The deed was therefore void." Speaking of grants for charitable uses the court said : " It is true that grants for charitable and pious uses have by courts of equity been sustained when made by trustees for the benefit of unincor- porated institutions or associations, and when the cestui que trusts have been uncertain. The authorities in the United States are by no means liarmonious as to the source or extent of the power of the courts in this class of cases ; but it not being claimed that this grant is for charitable or pious uses, it is not necessary for us here to^inquire as to the extent of the jurisdiction of courts of equities over charities, or whether it rests in the provisions of the statute of 43 Elizabeth, or exists where that statute is not in force." « Judd V. Woodruff, 2 Root, 298. 167 POEMAL PARTS OF THE DEED. §§ 191-192 § 191. Pictitious grantee. — A patent issued to a person under an assumed name is not void, and a conveyance by such person under his assumed name will transfer title. But if issued to a person not in existence, the patent would be a nullity.* A grantee is as necessary to a deed as a grantor.^ A deed pur- porting to convey title to a corporation which has no existence is void.' " A title by deed implies a contract, or at least compe- tent parties. A deed to a person having no existence is generally inoperative and passes no title from the grantor. Even in the case of an escrow, the title remains in the grantor till the con- dition, is complied with and the deed delivered, when it will relate back for certain purposes to the time when it was delivered By the grantor as an escrow. If a man grant his estate to an imaginary corporation which exists only in his own mind, no title passes, and it is precisely the same if it is granted to a corporation rendered incapable by its charter of taking the grant. As to that particular faculty.it is not a corporation." * A deed to "L. R., etc., trustees of the Methodist Society, and to their heirs and assigns forever," was held to convey an absolute title to L. E., etc., named as grantees; and the words, "trustees of the Methodist Society" were considered descriptio personce.^ Where a corporation was duly organized by the legislature of the Territory of Nebraska, but its charter had not been approved by Congress, it wa.s held that the corporation was one de facto, and could take title.* § 192. Mistake in name of corporation. — A mistake in setting out the name of a corporation which is a party to a deed will not vitiate the deed, when it appears ' from its face that the cor- ' Thomas v. Wyatt, 31 Mo. 188 ; Dewing v. Bartels, 2 West C. Eep. 506. TJ. a V. Southern Col. etc. Co. 1 WestC. Rep. 11 (U. S. C. C. CoL). » Douthitt V. Stinson, 63 Mo. 268. • Judge Drummond, in Bussell v. Topping, 5 McLean, 194, 202. See Harriman v. Southam, 16 Ind. 190. A deed to a fictitions person is invalid : Lillard v. Suckers, 9 Yerg. 64 ; Muskingum Turnpike v. Ward, 13 Ohio, 120; 42 Am. Dec. 191. ' Towar v. Hale, 46 Barb. 361. See also Austin v. Shaw, 10 Allen, 552 ; Brown v. Combs, 5 Dutch. 36. Smith V. Sheeley, 12 Wall. 361. To the same effect see Myers v. Crott, 13WaU.295. §§ 193-195 POBMAL PAETS OF THE DEED. 168 poration was intended.* Where two persons answer the descrip- tion in a deed, the one claiming under it is required to show that he is the person intended.'' ■ § 193. Extrinsic testimony to remedy Tuicertaiiity. — A patent, palpable uncertainty in the description of a grantee in a deed cannot be remedied by the aid of extrinsic testimony. But where the uncertainty springs from the difficulty of determining to which of a number of individuals it was intended to apply, resort may be had to other facts and circumstances to ascertain the particular person intended by the grantor.' § 194. Necessity for stating name of grantor in deed. — Is it essential that a person should be mentioned in the deed to be bound by it, and to make it an operative conveyance of his estate ? Suppose a deed is signed by a person who is not named in it as a grantor, is he bound ? There is a marked contrariety of opinion upon this subject. In some of the States, it is con- sidered that the naming of the grantor in the body of the deed is entirely unnecessary, and he is bound by a deed which he signs, but which does not contain his name in the premises, as firmly as if his name had been so written. In other States, the rule announced is that to bind a party the deed must contain apt words indicating an intent to bind him, and that his signa- ture at the bottom of the deed in which he is not named 8S grantor cannot have the effect of making the conveyance oper- ative against him. We shall proceed to inquire in what courts and States one or the other of these variant rules prevails. § 195. Eule in New Hampshire that signature alone is sufli- cient. — In New Hampshire, it was determined at an early day that if a person signs, seals, and delivers a deed, he is bound by 1 Douglass V. Branch Bank at Mobile, 19 Ala. 659 ; Culpepper Society v. Digges, 6 Rand. 165 ; 18 Am. Dec. 708 ; President v. Meyers, 6 Serg. & R. 12 ; Society v. Varick, 13 Johns. 38 ; Aultman «. Richardson, 7 Keb. 1. ' Grand Gulf R. R. & Banking Co. v. Bryan, 16 Miss. 234. " Morse v. Carpenter, 19 Vt. 613 ; Aultman v. Richardson, 7 Neb. 1 • Webb s). Den, 17 How. 579. ' ' 169 foemaij pahts op the deeix. § 195 the deed, though not named in it as grantor.* In a subsequent case in the same State, it was decided that where a deed of lands belonging to the wife purports to be the conveyance of the wife alone, and does not contain a recital that the husband is a party, but is executed by both husband and wife, it is the deed of both, and is operative to transfer the title of both to the land described in the deed.* • Elliot V. Sleeper, 2 K. H. 525. The court, per Woodbury, J., said : " It Is said to be the province of the premises to name among other things both the grantor and grantee. So rigid has been the adherence to this rule that it was long doubted whether a deed was valid, if the name of the grantor was omitted from the premises, although it appeared in the habendum : Co. Litt. 27 a, n. 4. But these doubts have been overruled (Trethway v. EUesdon, 10 Mod. 46; liord Say and Seal's Case, 3 East, 118; Spyve t>. Topham, Allen, 3S, 41; Edes v. Lambert, 2 Vent. 141), because every deed must, if possible, be made operative: Langdon v. Gable, 3 Lev. 22. And cases exist where almost every formal part of a deed has been dispensed with: Shep. T. 54; Co. Litt. 7 a; Bridge v. Wellington, 1 Mass. 219 ; Com. Di. Faits, E, 3. Indeed, writing, sealing, and delivery have been pronounced the only essentials. Here, however, a deed must by statute be attested ; and since seals have ceased to be dis- tinguished by peculiar devices, and education has become more generally diffused, signing would seem to be proper and indispensable. When a deed is signed, the utility of naming the gi-antor in the premises or any part of the body of the instrument appears in a great measure superseded, for 'linow,' says Perkins, section 36, 'that the name of the grantor is not put in the deed to any other intent but to make certainty of the grantor : ' Bac. Ab. ' Grant ' C. This certainty is attained whenever a person signs, seals, acknowledges, and delivers an instrument as his deed, though no mention whatever be made of him in the body of it, because he can per- form these acts for no other possible purpose than to make the deed his own. In a deed-poU, like that under consideration, where only the grantor speaks, or signs or covenants, there is sUll less danger of mistake and uncertainty concerning the party bound than in deed indented:" Storer v. Gordon, 3 Maulo & S. 322 ; Gilly v. Copley, 3 Lev. 139. ' Woodward ». Seaver, 38 N. H. 29. Perley, C. J., in delivering the opinion of the court, said : " In this case, Hannah I. Woodward owned the land, and in order to convey her right it was necessary that her husband should join with her in the conveyance ; her separate deed would be void, and convey no title. The husband's name does not appear in the body of the deed, but there is a clause purporting to release Hannah I. Wood- ward's right of dower, and aU her other rights in the premises, in which she is described as wife of the grantor. It therefore appears on the face of the deed that she was a married woman, and consequently that to give her conveyance effect it was necessary her husband should join in the deed. Her husband signed and sealed the deed. This would seem to bring the case very distinctly within the authority of Elliot v. Sleeper, 2 N. H. 525. In that case, as in this, the land belonged to the wife; the deed purported to be her sole conveyance, but was signed and § 196 FOEMAL PAHTS OP THE DEED. 170 § 196. "Rais ifL the United States courts that party not bonnd unless named in the deed. — But by the Supreme Court of the United States, a different view from that which we have seen prevails in New Hampshire was expressed. An executory con- tract for the sale of property belonging to married women was signed and sealed by the husbands and wives jointly. The con- tract described them all as parties to it. Subsequently a deed was executed in compliance with this agreement for the sale of the land. The deed set forth that the husbands in rights of their wives conveyed the premises, bargained by the contract of sale, to the grantees. The husbands and wives signed and sealed this deed jointly. They all acknowledged that they signed, sealed, and delivered the instrument as their act and deed. The married women acknowledged the execution of the deed separate and apart from their husbands. The court held the deed inoperative to convey the title of the married women to the land. " In the premises of this instrument," said Mr. Chief Justice Taney, delivering the opinion of the court, " it is stated to be the indenture of their respective husbands in right of their wives of the one part, and of the grantees of the other part, the husbands and the grantees being specifically named, and the parties of the first part then grant and convey to the parties of the second part. The lessors of plaintiff are not described as. grantors, and they use no words to convey their interest. It is altogether the act of the husbands, and they sealed by her and her husband, and she is described as being the wife of Nathaniel Brown, who signed and sealed the deed. From this the court say it appears that it was necessary he should join with her in the conveyance. So it appears from the deed in the present case that Hannah I. Woodward was a married woman, and that to mal^e her deed operative it was necessary her husband shovdd join in the conveyance. It has been lately deejded,.in Burge v. Smith, 27 N.H. 332, that where the wife signs and seals the deed of the husband, it is sufficient to bar her claim of dower, though no mention is made of her in the body of the deed which is ih some respects stronger than the present case, for the hus- band's deed is operative upon his own estate without the wife joining ; but here the deed would be wholly void, unless it should be held that signing and sealing the deed made him a party to the conveyance. There is also less danger that the husband, who is in law sui juris, should part with his rights improvidently, than in case of the wife, whom the law supposes to be incapable of acting for herself . " And see also Burge v Smith, 27 N. H. 332 j Gordon v. Haywood, 2 N. H. 402. 171 foemaij paets of the deed. § 196 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 and sealing • and acknowledging an instrument in which another person is grantor is not sufficient. The deed in question conveyed the marital interests of the husbands in these lands, but nothing more. It is unnecessary to inquire whether the acknowledg- ment of the./cmmes covert is or is not in conformity with the statute of Mississippi. For, assuming it to be entirely regular, it would not give effect to the conveyance of their interests made by the husbands alone. And as to the receipt of the money mentioned in the testimony, after they became sole, it certainly coftld not operate as a legal conveyance, passing the estate to the grantee, nor give effect to a deed which as to them was utterly void."* So, it has been held that a deed of land executed by husband and wife, but which contains no words of grant by the wife, does not convey the latter's estate in the land or bar her dower.^ It was likewise held in one of the Circuit Courts, under the local law of Massachusetts, where a deed was executed ^ Agricultural Bank of Mississippi v. Bice, 4 How. 225; Batchelor v. Brereton, 112 U. S. 396, 404. ' Powell V. Monson . Wells, 7 Blackf. 410. There it was said: 'The deed offered in evidence by the plaintiff, and shown in oyer, does not convey the interest of Conwell's wife in the premises, her name not beinginserted in the body of the deed.' The ruling in the above § 202 EOESIAL PAETS OP THE DEED. 176 § 202. In Mississippi. — In Mississippi, it is considered that all that is necessary to bind a party is, that the conveyance case was followed in Davis v. Bartholomew, 3 Ind. 485, where it was held that to bar dower, the deed itself must contain the words necessary to con- stitute a conveyance or release of dower, and it cannot be aided by the certificate of acknowledgment. "The decision in Cox v. Wells, supra, was based upon two cases in. Massachusetts — Catlin v. Ware, 9 Mass. 209; Lufkin v. Curtis, 13 Mass. 223. In the case first cited, it was held that 'a deed cannot bind a party sealing it, unless it contains words expressive of an intention to be bound. In this case, whatever may be conceived of the intention of the demandant in signing and sealing the deed, there are no words implying her intention to release her claim of dower in the lands conveyed which must have been to give it that operation. It was merely the deed of the husband, and the wife is not by it barred of her right to dower.' In the second cited, it was held that to release the dower of th6 wife, the deed should have contained ' words importing a release of her claim of dower.' "The ruling in the preceding cases proceeded upon the theory that to convey or release the dower of the wife, the deed must contain words expressing a clear intention on his part to convey or release her dower, and that hence her name must appear in the body of the deed, as other- wise, there would be no means of ascertaining her intention. We think the above authorities can have no application to the present case, for all that is required to render the appellants liable as sureties is, that it should clearly appear that they intended to be bound by the terras of the bond, and this is plain from the act of executing it : Dobson v. Keys, Cro. Jao. 261 ; Smith V. Crocker, 5 Mass. 538 ; Ex parte Fulton, 7 Cowen, 484. An obliga- tion which, by its terms, purports to be that of one person, as ' I hereby bind myself,' etc., aud is executed by more than one, may be treated as the several obligation of each person who signs it, or the joint obligation of all : Knisely v. Shenberger, 7 Watts, 193 ; Leith v. Bush, 61 Pa. St. 395; Parks V. Brinkerhoflf, 2 HiU, 663 ; Smith v. Crocker, 5 M&ss. 538 ; Wright V. Harris, 31 Iowa, 272. " The question involved has been expressly decided by this court in two cases. In Potter v. The State ex rel. Thompson, 23 Ind. 550, the name of the surety was not in the body of the bond, but it was held that this did not render it void as to him, as his signature to the bond was sufficient ; and Pequawkett Bridge v. Math6s, 7 N. H. 230, and Smith v. Crocker, 5 Mass. 538, are cited. "In the Wild Cat Ranch v. Ball, 45 Ind. 213, the question is fully con- sidered. Many authorities are cited and reviewed. The conclusion reached was, that the liability of the sureties was fixed by their execution of the bond, and it was for this held that the fact that the name of the principal appeared in the body of the bond created no liability against him without he subscribed the bond. In Knisely v. Shenberger, supra, the court said : ' If there was a time when courts listened to trivial and verbal inaccuracies in contracts, when the real meaning and intention of the parties was plain, that time has gone by, and the only object of courts is, that where the meaning and intention of the parties are perfectly plain, no grammatical inaccuracy or want of the most appropriate words shall render the instrument unavailing.' We think the language used quite appropriate to the present case." 177 POEMAIi PAETS OF THE DEED. § 203 should be signed in such a manner as to show his intention of making it his act and deed. " Anciently, sealing and delivery- were necessary to a deed, but it was not essential that it should be signed, nor was the sealing required to be on any particular part of it.* Afterwards the practice of signing grew up under the requirements of the Statute of 29 Charles II., chapter .% and the registration acts. But these statutes did not prescribe the manner of signing, and all that seems to have been required by their policy was that the instrument should be signed by the party in such a manner as to show that he intended it as his act and deed. The most essential and efficacious act to give it validity was the delivery, because that more clearly showed that he intended it as his deed; and accordingly, it is said that if one signs and seals a deed, and another delivers it as his act and deed, the latter thereby adopts and makes it his deed." ^ The court considered the subsequent acknowledgment of the instru- ment as a fact of importance, and said : " But the acknowledg- ment of the deed by the husband removes all doubt upon this point. It explains the act, which without it might have been doubtful, by a contemporaneous declaration that he intended to sign, seal, and deliver it as his act and deed, and this affords the best exposition of its character."^ In a subsequent case the court said that if a husband signed the deed of his wife, in , which he was not named as a party, that, " his signing, delivery, and acknowledgment of the deed would estop him from setting up any claim to the property against the grantee, and show that the title of the wife was conveyed by his co-operation."* § 203. In GaUfomia. — Under a statute which provided that the separate property of the wife could be conveyed only " by an instrument in writing signed by the husband and wife," a deed was held sufficient which mentioned her as the conveying ' Citing 2 Co. Litfc. 234, notes ; 2 Blackat. Com. 305. ' Armstrong v. Stovall, 26 Miss. 275. • Armstrong v, Stovall, supra. In that case, immediately after the wife's signature to the deed, the husband signed the following : I, Edmond Jenkins, husband of the said Mary Jenkins, do hereby consent to the above obligation of my wife. "Witness my hand and seal, this 10th day of February, 1846. Edmond Jenkins. [Seal.l « Stone V. Montgomery, 35 Miss. 83, 107. I Deeds. — 12. § 204 POEMAL PARTS OF THE DEED. 178 party, which she signed, and at the close of which the husband, though not named in the body of the deed, signed the statement : " I have read the foregoing, and fully agree with the convey- ance made by my wife." ^ § 204. Comments. — The question whether a person who signs a deed, but is not named in it as grantor, is bound by it, should in the author's judgment be one of construction, to be determined by reference to the circumstances connected with the transaction, rather than by a fixed and arbitrary rule of law. In several of the cases that have been cited in the preceding sec- tions, the decision of the court was based upon the ground that a wife could not relinquish her right of dower, unless the con- veyance contained apt words expressive of such an intent, and that by merely signing a deed in which she was not mentioned, her claim of dower remained unaffected. Possibly, a distinc- tion can be drawn between such cases and cases where the party signing was under no disability. The general rule for constru- ing all contracts is that if it appears by a contract that a party intends to bind himself, trivial inaccuracies will be disregarded, and if the intention of the parties can be ascertained, courts will effectuate that intention. Now, if a party signs a deed, he must do it for some purpose. It is in practice the general custom for deeds to be drawn by others than the parties to them. The scrivener may have omitted the name of the grantor, or by mistake may have inserted a wrong name. If such should be the case, and a party should sign a deed, intending to bind himself, all parties supposing he had executed an effectual conveyance, is it reasonable to say that the deed is nugatory because the party signing was not named in the conveyance? The fact that he signs and delivers the deed should be entitled 1 Ingoldsby v. Juan, 12 Cal. 564. In Dentzel v. Waldie, 30 Cal. 138, the signature by the husband at the end of the deed was considered sufficient to make it his deed under a statute, providing that "a husband and wife may by their joint deed convey the real estate of the wife," etc : See Green V. Swift, 49 Cal. 260. Where two persons are described in a deed, and one of them does not sign and seal the deed, the covenants in favor of the par- ties of the first part, it is held,' will inure to the benefit of the one who did sign : Philad,elphia etc. K. K. Co. v. Howard, 18 How. 307, 338. 179 FOEMAIi PAKTS OF THE DEED. § 205 to greater consideration in determining whether he intended to convey his title, than the writing of his name in the deed by some one else. It has been objected to this view, that the relations between the parties are to be determined from the language of the deed, and if that shows an intended contract between a party who does not execute the instrument, the party 'who does sign cannot be bound, because he is, so fer as the deed itself evinces the intention of the parties, a person with whom no contract was intended to be made. But assuming that such an instrument shows that the contract was originally intended to be made between certain persons, and that is all that can be claimed, such an intention may subsequently have been altered. If the name of the party originally mentioned in the deed should be erased and the name of the party signing substituted, there can be little question that the party whose name was substituted and who executed the instrument would be firmly bound by the instrument. If he signs the instrument, though his name is not substituted or mentioned at all in the deed, should not some effect be given to his act? We think so. While it may well be that in such a case he should not be conclusively bound, yet we think that by his signature and delivery of the deed, he should be held presumptively to have assented to its provisions; or, at all events, that his intention should be considered so uncertain and ambiguous that the court should, by reference to all the circumstances not tending to contradict the deed, but to explain the conditions surrounding its execution, attempt to ascertain his meaning. § 205. Ghristiaa name. — The law recognizes but one Chris- tian name, and therefore an error in the middle name, or its initial, or its entire omission, cannot affect the validity of a deed.* Where a plaintiff brought suit under the name of William Robinson, and for the purpose of showing title, produced a deed to William T. Robinson, the variance was considered immaterial. The letter "T." was regarded as no portion of his name. The plaintiff if he thoaght proper, was entitled to prove that he was as well known without, as with the letter " T." in the middle of his I McDonald v. Morgan, 27 Tex. 603. § 206 rORMAIi PAETS OP THE DEED. 180 name.^ A grantor being ignorant of the first name of the grantee, left a blank for its insertion, intending to fill the blank before delivering the deed. But in delivering the deed he omitted through neglect to insert the grantee's Christian name. Subse- quently the grantee, for the purpose of defrauding his creditors, inserted the Christian name of his wife without her knowledge. It was held that though the deed might be ambiguous, yet the- ambiguity could be removed by proof aliunde, and that the title vested in the husband was not divested by filling the blank with the Christian name of the wife.* § 206. Mistake in Christian name.— A mistake in the Chris- tian name will be disregarded if it can be gathered from the whole instrument who is the party intended.* But it is said that the presumption of law is that the parties use their real names, and not that they have different names. On this ground, in Michigan, a record of a deed purporting to be signed by Harmon Sherman, and to be ackowledged by Hiram Sherman, was held inadmissible to prove a conveyance by Hiram Sher- man.'* A party who executes a deed in one name, is estopped 1 Franklin v. Talmadge, 5 Johns. 84. See Dunn v. Games, 1 McLean, 321 ; Erskine v. Davis, 25 HI. 251 ; Jackson v. Stanley, 10 Johns. 133 ; Games V. Stiles, 14 Peters, 322 ; Jackson v. Hart, 12 Johns. 77 ; Jackson v. Miner, 15 Johns. 226 ; Jackson v. Cody, 9 Cowen, 140 ; Roosevelt v. Gardiner, 2 Cowen, 463. ' Fletcher v. Mansur, 5 Ind. 267. "The deed was delivered by the grantor to Barratt," says the court, per Davison, J., " with the intention of vesting in him the legal title, and no doubt that was its effect. Though the deed wanted his Christian name, and on that account might be con- sidered ambiguous, still that was an ambiguity that could have been sup- plied by proof aliunde. The title thus being in Barratt as grantee, could not be divested by the mere insertion of the Christian name of his wife in the blank left by the grantor. That insertion in our opinion was a void act, and conveyed to her no title." ' Merchants' Bank v. Spicer, 6 Wend. 443 ; Middleton v. Findla, 25 Cal. 81 ; Nixon v. Cobleigh, 52 111. 387. * Boothroyd v. Engles, 23 Mich. 19. The court said : " Our statutes now require every deed to be signed and sealed by the person from whom the estate or interest is intended to pass, as well as acknowledged by the person executing it. The signing cannot be dispensed with, and no one but the signer can be regarded as the grantor. The presumption of law always must be that a person uses his real name, and there is no presumption that he is known by different names. And in the absence of proof, a deed signed by Harmon and acknowledged by Hiram, is signed and acknowledged by different persons. There is nothing in the certificate of acknowledg- 181 POEMAL PAETS OF THE DEED. §§ 207-208 from asserting that the name by which he signed the conveyance is not his true name; proof of its execution will be sufficient.^ Thus, if a person is designated as James in the body of the deed, and executes it in the name of John by adopting the latter name in the signature, and is sued in the name of John and pleads the misnomer, the plaintiff may rely on the estoppel. The deed will be considered conclusive evidence of the adoption by the party of the names both of James and John.* Where there is a variance between the names of the grantors as they are written in the body of the deed and in the signatures, and the deed has been properly acknowledged, the identity of the persons will be presumed until rebutted.' § 207. The designation "junior." — The designation of "jun- ior" or "second" is no part of a person's name, and though its use may be convenient to distinguish a particular person from another bearing the same name, the person intended may be shown by any other means as well,* § 208. Deeds to partners. — When a deed is made to a part- nership it should mention the names of the partners individually, ment which can supply the defect if it could be supplied in that way, upon which there is no occasion to express an opinion. Hiram Sherman in legal presumption has executed no deed which he could acknowledge. A person may be known by an alias as well as by his real name, and perhaps may use a name for a single occasion which he would be estopped to deny. But this could only be shown by directly connecting him by proof with the execution and delivery of the deed, and in such a case he would not be bound, because he had acquired a new name in fact, but only because be had so acted that in the given case he could not be heard to dispute his own act. If there had been proof in this case that Hiram Sherman was known also by the name of Harmon Sherman, we are not prepared to say it would not have laid a foundation for introducing the record. But it is not competent to introduce it until some such foundation has been laid to connect the two variant names." 1 Com. Dig. Fait Bl,; Boothroyd v. Engles, 23 Mich. 19, supra; O'Meara V, North Am«rican etc. Co. 2 Nev. 112 ; Nixon y. Cobleigh, 52 111. 387. ' Gould V. Barnes, 3 Taunt. 505 ; Lind v. Hook, Mod. Cas. cited Cro. Eliz. 807 n. a.; James v. Whitbread, 11 Com. B. 406 ; Reeves v. Slater, 7 Bam. &C. 489; WiUiams V.Bryant, 5 Mees. & W. 454. See EUiott D.Davis, 2 Bos. & P. 339. » Lyon V. Cain, 36 111. 862. * Cobb V. Lucas, 15 Pick. 7 ; Kinoaid v. Howe, 10 Mass. 203 : Conunonw. ti. Perkins, 1 Pick. 388. § 209 FOEMAL PABTS OP THE DEED. 182 as those not mentioned cannot take as grantees.* But where a deed is executed to four persons by name, and they are described as composing a partnership, it conveys the legal title to an undivided one fourth of the property to each of the four grantees. This interest, however, is encumbered by an equitable lien in favor of the other partners.* § 209. AscertaJning Intended grantee. — A deed made to A & Co. transfers the legal title to the land to A alone, and a deed executed by him will convey to his grantee a good and valid title.^ As an illustration of the rule that though a deed be made to a party under a wrong baptismal name, it is valid and the title vests in the intended grantee, we may select the case of Staak V. Sigelow.* In that case a deed was made to Louis Staak, but as no person of that name was known to exist, and as the circumstances indicated that Arnold Staak was the intended grantee, title was held to be in him, and the ambi- guity was allowed to be explained by parol evidence.* A deed was made by L, senior, to the heirs of L, junior, in consideration of the natural love and affection for his grandchildren. At the time of the execution and delivery of the deed, L, junior, was living, and as in legal contemplation he could have no heirs, it was contended that the deed was void for uncertainty. But the court took the view that by the use of the word "grandchil- dren," it was apparent that the grantor employed the word " heirs " in its popular sense, and hence sustained the validity of the deed.* Where the description in the deed is so uncertain that it applies to two or more persons, it is incumbent upon the one claiming that he is the one intended to show that fact.^ ' Beaman v. Whitney, 20 Me. 413. But the partners whose names appear in the firm will hold for themselves and for those associated with them. ' McCauley v. Fulton, 44 Cal. 355. See Arthur v. Weston, 22 Mo. 378. A deed to a partnership without mentioning the individual partners is not void, but may be explained by parol : Murray v. Blackledge, 71 N. C. 492. > Winter v. Stock, and oases cited. « 12 Wis. 234. » Staak V. Sigelow, 12 Wis. 234, supra. • Huss 0. Stephens, 51 Pa. St. 282. ' Grand Gult B. R. Co. v. Bryan, 16 Miss. (8 Smedes & M.) 234. If the deed does not name the grantee, he must be described in such a manner as to enable him to be identified : Simmons v. Spratt, 20 Fla. 495. 183 FORMAL PAETS OP THE DEED. §§ 210-211 § 210. Pmtlier description of the parties. — When a woman is a party to a conveyance, it is desirable in case she is married to give her husband's name, and if unmarried to describe her as a "single woman" or a "widow." It is customary to state the place of residence of the parties, and frequently a designation of the occupation of each is added. These matters are of service in identifying the parties whenever a doubt arises as to the persons intended. Where the parties act in a trust relation as trustees, guardians, or executors, it should clearly appear that the convey- ance is made by or to them as such. For unless apt words are used to transfer the title from the real party in interest, the deed, though it be signed by the trustee or executor, and designates him as such, will be held to be his own personal deed.' Where an heir undertook to convey inherited land and described him- self as agent for the heirs of the decedent in one part of the deed, but in the other portions designated himself as grantor and executed the deed in hLs own name, the conveyance was admitted in evidence as his own deed.* But where there is a sufficient identification of the party, an incorrect description will be rejected as surplusage.* § 211. An intention to convey should be shown. — To enable a deed to operate as an effectual conveyance there should be proper and sufficient words manifesting an intention to transfer an estate. Where the words "sign over" were the only expres- sion from which an intent to convey might be assumed, it was held that the instrument could not operate as a grant.* But its validity is not affected by the use of the wrong tense. No differ- ence is caused by the employment of the words " has given and granted," instead of "do" or "does give and grant"; either expression will suffice.* A grant was made to A and his heirs, and contained a proviso that if A died in his minority without I Bobb V. Barnnm, 69 Mo. 394. ' Endsley v. Strock, 50 Mo. 508. ' Jackson v. Boot, 18 Johns. 59 ; Jackson t>. Clark, 7 Johns. 217. • MoKenney v. Settles, 31 Mo. 541. See Bentley's Heirs ti. De Forrest, 2 Ohio, 221 ; 15 Am. Dec. 546. See Ingell v. Nooney, 2 Pick. 362; 13 Am. Dec. 434. ' Pierson v. Armstrong, 1 Iowa, 292. See Wiseley v. Findlay, 3 Hand. 361 J 15 Am. Dec. 712. § 212 rOEMAL PAETS OP THE DEED. 184 issue, then the -estate was " to go " to the issue of B. It was held that the words used, though not technical terms of conveyance, were sufficient to convey the estate to such issue as a remainder.* The word "grant" has become a generic term of transfer.* But no particular formula of words is necessary to effect a valid con- veyance of land. If the words used show an intent to convey, they are sufficient for that purpose.' § 212. Nature of the deed. — It was at one time considered important that the words of the grant should conform to the nature of the deed. For a feoffment the proper words were said to be "give," "grant," "enfeoff," etc.; and for a deed of bargain and sale, "grant, bargain, and sell."* But these words are now unnecessary if there be other words of a like import showing the intention to convey. By the words " I have given and granted," a grant, a feoffment, a gift, lease, or release, a confirmation or surrender may be created, and the grantee has the privilege of determining for which of these purposes he will use the convey- ance.° The operative words usually employed in a deed of lease and release, as we have seen, are " grant, bargain, and sell," which give effect to the lease; and the words "grant, bargain, sell, remise, release, and forever quit claim," render the release effect- ual. A deed is to be so construed as if possible to give effect to it as a conveyance; hence it wiU be allowed to have this effect, although it may lack formal words if it contains sufficient words to convey the estate.® From the employment of particular grant- 1 Folk V. Varn, 9 Rioh. Eq. 303, 310. » S. F. & O. R. R. Co. V. Oakland, 43 Cal. 502. ' Gambril v. Rose, 8 Blackf. 140 ; 44 Am. Dec. 760 ; Cobb v. Hmes, Bosb, 343 ; 59 Am. Deo. 559. See McWilliams v. Martin, 12 Serg. & R.. 269 ; 14 Am. Dec. 688. « 1 Wood on Cbnveyanoing, 203 ; 3 Wash. Real. Prop. (4th ed.) 379. ' Rowe V. Beckett, 30 Ind. 154. And see Folk v. Varn, 9 Rich. Eq. 303 ; Patterson v. Carneal, 3 Marsh. A. K. 619. 6 Jennings v. Brizeadine, 44 Mo. 332 ; Wilcoxson «. Spragne, 51 Cal. 640 ; Lynch U.Livingston, 8 Barb. 483, 485; Marden ». Chase, 32 Me. 329 ; Collins V. Lavelle, 44 Vt. 230; Pierson v. Armstrong, 1 Iowa, 282; Jackson v. Alexander, 3 Johns. 484 ; Shove v. Pencke, 5 Term Rep. 124 ; Roe v. Tran- marr, 2 was. 75, 78 ; Clanrickard v. Sidney, Hob. 277 ; Young v. Ringo, 1 Mon. 30, 32; 1 Wood on Conveyancing, 203; 2 Rolle. Abr. 789, pi. SO; Shep. Touch. 82, 222 ; Cornish on Purchase Deeds, 29 ; 3 Wash. Real Prop. 379. The Spanish word " cedo " was the word ordinarily used in Mexican conveyances : Schmitt v. Giovanari, 43 Cal. 617. 185 FORMAL PARTS OP THE DEED. §§ 213-215 ing words, certain implied covenants were implied, which will be treated of in another part of this treatise. § 213. The habendum is not an essential part of a deed. — The purpose of the habendum is to define the estate which the grantee is to take in the property conveyed, whether a fee, life estate, or other interest.^ It has now, as Chancellor Kent observes, degenerated into a mere useless form, and in some of the States it has been altogether dispensed with.^ "The habendum is no essential part of the deed. It merely denotes the extent of the estate granted ; in modern conveyancing it is almost practically obsolete, and may be entirely rgected if repugnant to the other clausfes of the conveyance."* § 214. Repugnance between granting words and habendum. — Where proper words of limitation are employed in the grant- ing clause there is no benefit to be obtained by the habendum. Where there is a repugnance between the words expressing the grant and the habendum, concerning the estate the grantee is to take, the rule governing the construction of all contracts will be applied, and effect will be given to both clauses if possible. Yet where there is a definite limitation in the words of the grant, and there is a conflict between them and the habendum, the latter must yield.* § 215. Qualification of previous grant. — In California, where it is not necessary to use the word "heirs" to convey a fee- simple, a deed was made containing no words of inheritance, but simply granted, bargained, conveyed, and confirmed to the grantees a tract of land. The habendum was; "To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, and to the longest liver of them, for and ' Mitchell V. Wilson, 3 Craneli O. C. 242; Ws^r v. Wager, 1 Berg. & E. 374. 2 Major, Adm'r, v. Bukley, 51 Mo. 227. " Major, Adm'r, v. Bukley, supra. ' Farquharson v. Eiohelberger, 15 Md. 63 ; Major v. Bokley, 51 Mo. 227; Budd V. Brooke, 3 Gill, 236; Flagg v. Eames, 40 Yt. 23. See Warn v. Brown, 102 Pa. St. 347. § 215 POEMAL PARTS OF THE DEED. 186 during their natural lives and the natural life of such longest liv«r, remainder thereafter to the issue and heirs of their two bodies, begotten and to be begotten, and the heirs of such issue forever, to and for the use and benefit of such longest liver of them, for and during the life of such longest liver, and there- after to and for the use and benefit of the said issue and heirs of their two bodies, begotten and to be begotten in equal shares, as tenants in common, the issue, if any, of any child of their bodies, who may die before the death of the longest liver of the said parties of the second part, to take the share and portion of such deceased child." It was decided, that the limitation in the habendum clause was not repugnant to the granting clause, and that the conveyance vested a life estate in the grantees and a full estate in their children.* Where the grant is uncertain or indefinite concerning the estate intended to be vested in the grantee, the habendum performs the office of defining, qualifying, ' Montgomery v. Sturdivant, 41 Cal. 290. Temple, J., delivering the opinion of the court, said : " If the habendam were entirely omitted, the deed in question would undoubtedly have conveyed an estate in fee-simple, and it is, therefore, contended that the language of the habendum, which attempts to limit the estate granted to a life estate, is repugnant. Inde- pendently of the statute, the common-law rule was that a deed like this, without the habendum, would convey a life estate only. The estate, though different, was just as definite as that under the rule of the statute. If the argument of counsel were correct, the result would have been that tl^g grant could not have been enlarged by tiie habendum. Yet we all know that where the formal parts of a deed are all used, this was the customary mode of conveying, and is still often followed. " The rule of common law was only intended to apply to conveyances in which the extent of the ownership of the grantee in the thing granted was not defined in the conveyance. The statute rule was merely intended to take the place of the common-law rule. Neither was intended to override the expressed intention of the parties. The office of the habendum is to limit and define the estate which the grantee is to have in the property granted. It is not an essential part of a deed, but has generally been used, and in some States the form adopted in this case is in general use. No estate is limited in the granting part of the deed, but this is done in the habendum. The legislature did not intend to prohibit this form of con- veyance, but merely to supply a rule of construction when the parties failed to define the estate conveyed. The word "grant," in the last part of the section of the statute, has precisely the same meaning as the word " conveyance " in the preceding clause. Giving full effect to the language of the habendum clause in this deed, it is a conveyance to the grantees for their joint lives, and to the svu-vivor during the life of the survivor, with remainder to the issue and heirs of their two bodies, and the heirs of such issue forever." 187 FORMAL PAETS OP THE DEED. § 216-218 or controlling it.* For example, where a lease of land was made to a person, habendum to him and his heirs, it was held 'to convey a fee.* § 216. It is not the province of the habendum to introduce new subject-matter into the grant — Where more property is included in the habendum than is mentioned in the grant, the portion not comprised in the grant will not pass by virtue of the habendum.* It has been stated that "where a deed first speaks in general words, and afterwards in special words, and the latter accord with the former, this deed shall operate according to the special words, whether they enlarge or restrain the general words that precede."^ § 217. Reference to habendum. — When the premises contain an express reference to the habendum, the latter may limit and qualify the terms of the grant and prescribe the mode in which the estate is to be enjoyed. Thus, where one by deed granted land to another, " his heirs and assigns forever, subject to the limitations hereinafter expressed as to part thereof," and in the habendum limited the estate as to one half to the grantee's use during his natural life, and at his decease to descend to his chil- dren by him lawfully begotten, and to the issue of such as were then deceased, it was held that the grantee took by the convey- ance a fee-simple as to one half of the land and a life estate in the other.* § 218. Explanatory dause. — In Nevada, a deed, afl«r grant- ing a certain number of feet of the interest of the grantor in a mining claim, contained this explanatory clause: "The interest herein intended to be conveyed, to include also and carry along » Co. Litt. 6 a ; Sumner v. Williams, 8 Mass. 162, 174 ; Berry v. BUlings, 44 Me. 423 ; 1 Wood on Conveyancing, 224. ' Jamaica Pond ». Chandler, 9 Allen, 168. ' Manning v. Smith, 6 Conn. 289. But this principle does not apply to such incidents as would pass by the grant though they are enumerated only in the habendum : Sumner v. Williams, 8 Mass. 162. See Den v. Helmes, 3 N. J. L. 1050 ; Swazey v. Brooks, 34 Vt. 451. * 1 Wood on Conv. 199, 212, 223, 224, n.; Wrotesley v, Adams, 187, 196. See Ford v. Flint, 40 Vt. 382 ; Moss v. Sheldon, 3 Watts & S. 162. ' Tyler v. Moore, 42 Pa. St. 374. § 219 rOEMAL PARTS OF THE DEED. 188 with it an interest of equal extent in all the ledges and lodges in ■which said party of the first part is owner, and which will be reached and prospected by said parties of the second part in their continuation of the tunnel of the 'Gold Hill Tunneling Company,' said continuation commencing at a point four hun- dred feet in from the moutli of the tunnel." The court decided that this clause should not have the effect of conveying any interest which was not included within the natural signification of the granting words.* § 219. Under what clrcmnstances a party not named as a grantee may take under the habendum. — "Where there is no repugnance between the granting clause and the habendum, a party not named in the former may take under the deed if named in the latter.^ Thus, there is no repugnance between the two clauses when the party who is to take is not named in the grant but may be ascertained from the habendum.'* A person who is not named in the premises as a grantee may take by way of remainder, but where the grant is to one person, the habendum cannot be operative when it is to him and another to take as joint tenants or tenants in common.^ In a case of that character • McCurdy v. Alpha Mining Co. 3 Nev. 27. Tlie court said, per Beatty, C. J.: " This explanatory clause is entitled to all due weight, and under the liberal rules adopted by the more modern decisions in the interpreta- tion and enforcement of deeds, it might, perhaps, even have the, effect of passing title to that which by no possibility could be understood as having been included within the granting clause of the deed. But before giving such effect to mere explanatory words, it should appear from the instru- ment beyond all reasonable doubt, that it was the intent of the parties using the words to give them such effect. Parties usually describe in the granting clause of a deed all that they intend to convey. And no court should hold that a party by his deed has conveyed more than is described or referred to in the granting clause, unless forced to that conclusion by language In other portions of the deed which clearly and beyond all reasonable doubt shows an intent on the part of the grantor to part with more property than, was described in the granting clause. This explana- tory clause, although not strictly ttie habendum of the deed, is somewhat similar to the habendum, and it appears to us should be construed in the same way." = Tyler v. Moore, 42 Pa. St. 388 ; Irwin v. Longworth, 20 Ohio, 681. ' Spyve V. Tonham, 3 East, 115; 1 Wood on Conveyancing, 206, 212; 3 Wash. Real Prop. (4th ed.) 438. Contra, Bustard v. Coulter, Cro. Eliz. 902, 903 ; Berry v. Billings, 44 Me. 424 ; Sumner v. Williams, 8 Mass. 174. * Greenwood o. Tyler, Cro. Jac. 564 ; Brooks v. Brooks, Cro. Jao. 434. See Walters v. Breden, 70 Pa. St. 237. 189 FORMAL PAETS OF THE DEED. §§ 220-221 the habendum would be at variance with the grant. Where the premises contain a complete grant, the habendum cannot have the effect of defeating or curtailing the estate granted.^ § 220. Effect of the habendum to limit the estate.— Wliile the habendum cannot abridge an estate granted, yet where the granting clause does not mention the estate conveyed, the haben- dum may have the effect of declaring the intention, and may overcome any presumption that in its absence would properly arise from the defect in the preceding clause.* But it is to be understood that the habendum, when irreconcilable with the granting clause, is to be rejected,' and is to affect the grant only when it can be construed as consistent with the premises.* § 221. Reddendum, what is. — The clause of reddendum generally follows the habendum, and is used when anything is to be reserved out of the property granted. There is a distinc- tion between an exception and a reservation. By the former, the grantor withdraws from the operation of the conveyance which is in existence, and included under the terms of the grant. A reservation is "something arising out of the thing granted, not then in esse, or some new thing created or reserved, issuing or coming out of the thing granted, and not a part of the thing itself, nor of anything issuing out of another thing." ^ A reser- vation may be of some easement or servitude, existing and operative, and incapable of severance from the grant.® 1 Nightingale v. Hidden, 7 R. 1. 118; Walters v. Breden, 70 Pa. St. 237; 4 Cruise, 272. ' Biggin V. Love, 72 HI. 553. A grant may be to one, the habendum, to him and his heirs, or heirs of his body, or for the life of another : 3 Prest. Abst. Tit. 43. See Carson v. McCaslin, 60 Ind. 334 ; Jackson v. Ireland, 3 Wend. 99 ; Corbin v. Healey, 20 Pick. 514. ' Riggin V. Love, 72 111. 553 ; Carson v. McCaslin, 60 Ind. 337. * Lee V. Tucker, 55 Ga. 9. » 3 Wash. Real Prop. (4th ed.) 440 ; Shep. Touch. 80 ; Craig v. Wells, 11 N. Y. 315 ; Marshall v. Trumbull, 28 Conn. 183 ; A^horoft v. Eastern R. R. Co. 126 Mass. 196 ; Moulton v. Trafton, 64 Me. 218 ; State v. Wilson, 42 Me. 9 ; IveS V. "Van Auken, 34 Barb. 566 ; Bridger «. Pierson, 1 Lans. 481 ; Whitaker v. Brown, 46 Pa. St. 197 ; Munn v. Worrall, 53 N. Y. 44; Stack- bridge Iron Co. V. Hudson Iron Co. 107 Mass. 290. 6 Cutler V. Tuft, 3 Pick. 272, 278 ; Doe n. Lock, 4 Nev. & M. 807; Pettee v. Hawes, 13 Pick. 323, 326; Hurd v. Curtis, 7 Met. 110. §§ 222-223 POEMAL PAETS OF THE DEED, 190 § 222. What is necessary for a good reddendnm, — In every good reddendum or reservation there should be a concurrence of several things. One is, that the reservation must be made to the grantor, or to one of the grantors in the deed, and not to a stranger.* Another is, that it must be out of the estate granted, and not out of something extraneous.^ As in the case of a grant, the description of the thing reserved should be sufficiently defi- nite as to enable it to be identified,* Thus, where a deed reserves out of the property conveyed one acre of land, and there is noth- ing to show from what particular part of the tract it is to be taken, the reservation is void for uncertainty, and the grantee is entitled to the whole tract.* It should also contain words of limitation to enable it to extend beyond the life of the grantor.* § 223. General use of the testunoninni clause, — It is custom- ary to end a deed with a testimonium clause, such as "in witness whereof the parties have hereunto set their hands and seals," etc. This clause was once of value as indicating an intention to execute a sealed instrument; and in those States where the use of seals has not been rendered unnecessary, it may still have this efiect. A common provision in several of the States is that "every instrument to which the maker affixes a scroll by way of seal, shall be of the same force and obligation as if it were actually sealed, provided the maker shall in the instrument recognize such scroll as having been affixed by way of a seal." It has been decided under statutes of this character that to give the scroll the effect of a seal, it must appear from the instrument that the scroll 1 Hombeok v. Westbrook, 9 Johns. 74 ; Petition of Young, 11 R. I. 636 ; Bridger v. Pierson, 1 Lans. 481 ; Illinois E. R. Co. v. Indiana R. R. Co. 85 111. 211. But it seems that it may, if so intended, operate as an exception, and as notice to the grantee of adverse claims : West Point Iron Co. v. Reymert, 45 N. Y. 703. And see Bridger v. Pierson, 45 N, Y. 601 ; Brps- sart J). Corlett, 27 Iowa, 288. 2 Dyer v. Sanford, 9 Met. 395. » Woodcock V. Estey, 43 Vt. 515 ; Jewett v. Bicker, 68 Me. 377. * Mooney v. Cooledge, 30 Ark. 640. , ° Ashoroft V. Eastern R. R. Co. 126 Mass. 198 ; Dennis v. Wilson, 107 Mass. 591 ; Handy v. Foley, 121 Mass. 258 ; Bean v. Coleman, 44 N. H. 542 ; Hornbeck v. Westbrook, 9 Johns. 73. Words of limitation are unneces- sary in the case of an exception : Winthrop v, Fairbanks, 41 Me. 307. 191 POEMAL PARTS OF THE DKED. § 224 ■was SO intended.' But where the word "seal" was placed oppo- site the signature, it was held to be sufficient under the Tennessee statute.* By the statute in Alabama, if an instrument purports in its body to be under seal, it will be treated as a deed, even though a seal or scroll is not annexed to the signature.^ In Indiana, however, an instrument was held to be only a simple contract, which concluded " witness our hands," and in which a scroll was annexed to the signature with the word "seal" written therein.* It may be added that a scroll of ink or other device is not a seal, even though it is apparent that the intention was to use it as such, unless there is some statutory provision permitting it.« § 224. Rellnqnlslunent of the right of dower. — In those States in which the wife's right to dower is recognized, it is frequently the practice for her to relinquish her right by a clause expressing this intention. This is properly part of the testi- monium clause.* The following form has been held sufficient for this purpose : " In witness whereof, I, the said Caleb Lassell, junior, and Susan, wife of said Caleb Lassell, in token that she relinquishes her right to dower in the premises, have hereunto set our hands and seals."" It would be foreign to the object of this treatise to discuss the nature of the rights so alienated. In some of the States, the release of the right of dower or of home- stead is effected by a recital in the certificate of acknowledgment, V ' Cromwell v. Tate, 7 Leigh, 301 ; Armstrong v. Pearce, 5 Har. (Del.) 351 ; Lee v. Adkins, Minor, 187 ; Haseltine v. Donahue, 42 Wis. 576 ; Boyn- ton V. Reynolds, 3 Mo. 79 ; Hudson v. Poindexter, 42 Miss. 304 ; Long v. Long, 1 Morris, 43 ; Norvell v. Walker, 9 W. Va. 447 ; Glasscock v. Glass- cock, 8 Mo. 577 ; Grimsly v. Kiley, 5 Mo. 280 ; Walker v. Keile, 8 Mo. 301 ; Bell V. Keefe, 13 La. An. 524. ' Whitley v. Davis, 1 Swan, 333. See Wittington v. Clarke, 16 Miss. (8 Smedes & M.) 480. ' Shelton v. Armor, 13 Ala. 647. See Starkweather v. Martin, 28 Mich, 471 ; Hudson v. Poindexter, 42 Miss. 304. * Deming v. BuUett, 1 Blackf. 241. See Jenkins v. Hart, 2 Band. 446. Contra, Lewis v. Overby, 28 Gratt. 627. 6 Perrine v. Cheeseman, 11 N. J. L. 174 ; Warren v. Lynch, 5 Johns. 239. « Davis V. Bartholomew, 3 Ind. 485 ; Fowler v. Shearer, 7 Mass. 14 ; Stinson v. Sumner, 9 Mass. 143 ; Burge v. Smith, 27 N. H. 332 ; Learned v. Cutler, 18 Pick. 9 ; Steams v. Swift, 8 Pick. 532 ; Witter v. Bescoe, 13 Ark. 422. ' Frost V. Deering, 21 Me. 156. § 224 FOEMAL PAETS OP THE DEED. 192 and in cases where the question has arisen, it has been held in some States that it is unnecessary that the release should appear in the body of the deed.^ In other States, however, it has been held that to make the release of either homestead^ or dower' effectual, it should appear both in the body of the deed and in the certificate of acknowledgment. > Concerning homestead, see Babcock v. Hoey, 11 Iowa, 375 ; O'Brien ». Young, 15 Iowa, 5 ; Robbins v. Cookendorier, 10 Bush, 629. A release of dower is not necessarily a release of homestead : Wing v. Hayden, 10 Bush, 280. » Witler V. Biscoe, 13 Ark. 422 ; BusseU v. Bumsey, 35 lU. 362 : Connor V. McMurray, 2 AUen, 202. And see Hoge v. HolUster, 2 Tenn. Ch. 606. ' Leavit v. Lamprey, 13 Pick. 383 ; Catlin v. Ware, 9 Mass. 218 ; Stevens ti. Owen, 25 Me. 94 ; PoweU v. Monson Co. 3 Mason, 349 ; HaU v. Savage, 4 Mason, 273. See Lothrop v. Foster, 51 Me. 367; WestfaU v. Lee, 7 Iowa, 12. CHAPTEE VIII. READINa THE DEED. I 225. How far reading is essential. I 226. Duty of officer. i 227. Deaf and dumb person. g 228. Where person does not understand Ei^Ush. I 229. Burden of proof. J 230. Effect of erroneous reading. § 225. How far reading is essential — The correct reading of an instrument is material to its execution by an illiterate person ; as much so as the making of his mark.* " It is at the peril of the party to whom the deed is made that the true effect and purport of the writing be declared if required ; but if the party who should deliver the deed doth not require it, he should be bound by the deed although it be penned against his mean- ing."^ Hence, proof of the grantor's illiteracy and of his ina- bility to reaxi writing, and that a deed was not read to him, is not sufficient to avoid the deed, unless he requested that it be read to him.' "There is no proof" said Spencer, J., delivering the opinion of the court, " that the deed was read, and it is certain that the grantor was a very illiterate man ; but the circumstance that the deed was not read is of no weight, unless it also appear to have been required, and of this there is no evidence ; on the contrary, there can be no doubt but that the grantor was fully apprised of the nature and contents of the deed,"* § 226. Duty of officer.— It is the duty of the officer authenti- cating the execution of a deed, in a case where the grantor is old, decrepit, and ignorant, to inform him of its contents by such > Suffem V. Butler, 18 N. J. Eq. (3 Green, C. B.) 220. ' Thoroughgood's Case, 2 Co. 9, o, 6. • Hallenbeek v. DeWitt, 2 Johns. 404. * See Withington v. Warren, 10 Met. 434 ; Souverbye v. Arden, 1 Johns. 252 ; Taylor v. King, 6 Munf . 358 ; 8 Am. Dec. 746 ; Rex. v. Longnor, 1 Nev. & M. 576 ; Bossetter v. Simmons, 6 Serg. & B. 452. I. Deeds.— 13. § 227 BEADING THE DEED. 194 means as will enable him to comprehend its nature and effect. This is not accomplished by a simple formal reading of the instrument.* In the case in which this principle was declared, it appeared that the scrivener read the deed in the presence of the parties. It was executed, however, without explanation or comment, except the scrivener thought he said to the grantor, he supposed she understood she was giving the grantee a deed of her farm. She replied that she so understood it, and then said something about the grantee attending to her business, and she was satisfied he would do what was right.* § 227. Deaf and dumb persons. — Where there was no fraud on the part of the grantee, the deed of an uneducated deaf and dumb man, acknowledged before an officer and recorded, was upheld upon proof that the deed was explained to him, and he was believed to understand it.' Where a person deaf and dumb » Lyons «. Van Riper, 26 N. J. Eq. (11 Green, C. E.) 337. ' Lyons v. Van Kiper, supra. The VJoe-ChanceUor said, at page 343 : " In dealing with persons in the helpless condition of this old woman, an officer having power to authenticate the execution of deeds, is bound to go further than a simple formal reading of the instrument. The contents are to be make known to the grantor by such means as will enable him to comprehend the nature and effect of his act. It is conspicuously manifest that this was not done in this case. I am satisfied the officer, by a grossly careless performance of his duty, unconsciously aided in the perpetration of a fraud, which he would have frustrated by the exercise of the care and vigilance the law requires him to employ in the discharge of his duties." ' Morrison v. Morrison, 26 Gratt. 190. Anderson, J., delivering the opinion of the court, stated the facts : " I do not think that the charge of fraud is supported by the proofs. It is true that the plaintiff was both deaf and dumb and was bom so. But it appears from the testimony of both the plaintiff's and the defendant's witnesses that he was capable of making known his thoughts and wishes by signs to those who were well acquainted with him, and of understanding their communications to him- self with a most remarkable certainty. He was not educated, but the weight of testimony shows that he was a man of intelligence, and was remarkably cautious in his business transactions, and understood well his own interests." The deed " was written more than two years before he executed it, and remained in his possession, affording him opportunity of having it explained to him by his acquaintances, of which it is probable he availed himself. He sent for men to witness it who undoubtedly explained it to him. Mr. Miller, the justice before whom it was acknowledged, testifies that Skelton Coleman and G. J. Gray were witnesses to the deed, though their names do not appear to be subscribed to the copy in the record. And he says that both of them in his presence explained it to him before he executed it, and acknowledged it before him." 195 READING THE DEED. §§ 228-229 and unable to read directed a deed to be, drawn and presented to him, and his directions being carried out, he requested infor- mation only as to the land described, and an explanation was made to him commensurate with his request, and he then exe- cuted it without further explanation, it was held that the deed was valid although no further information of the contents of the deed was given.* § 228. Where a person does not understand EuglisL — To read an instrument in English to a person who is unable to understand the language, would seem to be insufficient.' But a party cannot object that he was misled in signing a deed, when he has the ability to read, or if he is unable to read, fails to request to have it read.' This rule is applicable to the execution of all contracts.^ In England, it has been held that a failure to read a deed to a party in the rough draft, before the execution or when it is engrossed at the time of execution, is a badge of fraud.^ § 229. Burden of proof. — When an action is brought to set aside a deed executed by a person unable to read for misrepre- sentation of its contents or effects, the burden of proof rests upon the defendant. In a case of this kind, part of the necessary proof of the execution of the instrument consists in showing that it was read or its contents made known to the grantor. An acknowledgment, however, according to the statute, before an officer designated by the law, is equivalent to proof that the grantor possessed knowledge of its contents, if the acknowledg- ' Brown v. Brown, 3 Conn. 299 ; 8 Am. Deo. 187. ' Fisher v. Meister, 24 Mich. 447. ' School Committee of Prov. etc. v. Kesler, 67 N. 0. 443 ; Jackson v, Croy, 12 Johns. 427. * Rogers v. Place, 29 Ind. 577 ; Clem v. Newcastle R. Co. 9 Ind. 488 ; 68 Am. Dec. 653 ; Starr v. Bennett, 5 Hill, 303 ; New Albany R. Co. v. Fields, 10 Ind. 187; Russell v. Branham, 8 Blackf. 277. 5 Bennett v. Vade, 2 Atk. 324, 327. Where a person supposed she was signing a mortgage to A, but which contained the name of B, and the agent of the mortgagor who read the deed omitted to read the name of the mortgagor, the court were inclined to the opinion that the omission rendered the deed invalid, while deciding the case upon other grounds : Terry v. Tuttle, 24 Mich. 206. § 230 BEADING THE DEED. 196 inent contaius a certificate that the office^ made known the con- tents to the grantor before acknowledgment.* § 230. Effect of an erroneous reading. — The deed of an illiterate man, who is induced to sign it by misrepresentations of its nature and contents, is void. If there be an incorrect reading caused by mistake, the deed cannot stand because he has given his consent to the deed as it was read and not as it was executed.^ An heir is not permitted to avoid a deed by showing that the grantor was old and infirm, that so far as the knowledge of the subscribing witness extended it was not read, and that he saw the payment of no money ; nor does the fact that the grantor died in possession, affect the case.* ' ' Hyer v. liittle, 20 N. J. Eq. (5 Green, 0. E.) 443. See to- some extent, cmtra, Kimball v. Eaton, 8 N. H. 391. See Pool v. Chase, 46 Tex. 207; WiUiama v. Baker, 71 Pa. St. 476. > Jackson v, Hayner, 12 Johns. 469. > Kimball v. Eaton, 8 X. H. 491. CHAPTER IX. THE SIGNATURE. I 231. Signing unnecessary at common law. § 232. Signing in grantor's presence. § 233. Beason for this rule, g 234. Opposition to this rule. i 235. Absence of grantor. 1 236. Holding top of pen. 2 237. Signature by mark. i 238. Attestation by witness, I 239. Comments. 1 240. Variance in name. 2 241. Deed inter partes. § 231. Signing mmecessary at common law. — It was not necessary to the execution of a deed at common law that it should be signed, though signing was always advisable.^ The use of seals among the Saxons was not general. They subscribed their deeds with the sign of the cross appended. With the advent of the Normans, sealing was substituted for signing.^ In several of the American States, signing formerly was not necessary to the valid execution of a deed.' But as the statute of frauds requires that the instrument be signed, it is believed in most, if not all the States, signing is now an essential requisite of the exe- cution of a deed. There is, however, no particular form for the signing of a deed. It should appear by some writing that the party intended to adopt the instrument as his own, and to be bound by its terms.* But where a written transfer of a bond for a title was not actually signed, the space in the name between the words "her mark" being unfilled, it was held that the party's acknowledgment before a clerk of a court that she had signed it, was not a substitute for the signing required for its execution, nor proof thereof.® ' 1 Wood on Conveyancing, 239 ; Shep. Touch. fPrest. ed.) 56, n, 60 ; Martindale on Conveyancing, 163 ; 3 Wash. Real. Prop. 270 ; Wms. Real Prop. 126. » 1 Wood on Conveyancing, 191, 192 ; 2 Blackst. Com. 309. » Secard'u. Davis, 6 Peters, 124. See Elliott v. Sleeper, 2 N. H. 529. • Ingoldsby v. Juan, 12 Cal. 564. 6 Jones V. Gurlie, 61 Miss. 423. §§ 232-233 THE SIQNATUKB. 198 > § 232. Signing in grantor's presence. — It is a general rule that a person cannot sign a deed for and as another's agent, unless authority has been given to him under seal.' But this principle does not apply where the grantee is present and authorizes another, either expressly or impliedly, to sign his name to the deed. It then becomes the deed of the grantor, and is as bind- ing upon him to all intents and purposes as if he had person- ally aflSxed his signature.^ § 233. Reason for this mle. — This rule is placed upon the ground that the act of signing and sealing is to be deemed as much his personal act as if he held the pen and his hand was guided by another. In a case in Massachusetts, the grantor gave her assent to her daughter's signing for her by a nod. The daughter signed the deed, "Polly Gwinn, by Mary G. Gardner." Chief Justice Shaw, who delivered the opinion of the court, said : " The name being written by another hand, in the presence of the grantor, and at her request, is her act. The disposing capacity, the act of mind, which are the essential and efficient ingredients of the deed, are hers, and she merely uses the hands of another, through incapacity or weakness, instead of her own, to do the physical act of making a written sign. To hold otherwise would be to decide that a person hav- 1 Banorgee v. Hovey, 5 Mass. 11 ; 4 Am. Deo. 417 ; Reed v. Van Ostrand, I Wend. 424; 19 Am. Deo. 529 ; Hanford».McNair,9Wend.54; 19 Am. Dec. 529 ; Blood v. Goodrich, 9 Wend. 68 ; 24 Am. Dec. 121 ; McNanghten v. Partridge, 11 Ohio, 223 ; 38 Am. Dec. 731 ; Harrison v. Jackson, 7 Term Rep. 207 ; Cooper v. Ranldn, 5 Binn. 613 ; Gordon v. Bnlkley, 14 Serg. & B. 331; Hunter v. Parker, 7 Mees. & W. 322. In Hibblewhite v. McMorine, 6 Mees. & W. 200, 215, the instrument was executed by the grantor, but contained a blank for the name of the grantee, whose name was afterwards inserted by an agent appointed by parol. The instrument was held void because the appointment was not made by deed. It is held, however, in some courts, that a subsequent parol ratification would make a deed effective, executed in blank and filled up by the agent : See Skinner v. Dayton, 19 Johns. 513 ; 5 Am. Dec. 286 ; Cady v. Shepherd, II Pick. 400 ; 22 Am. Dec. 379 ; Gram v. Seton, 1 Hall, 262 ; Story on Part- nership, § 122, n. * Jansen v. Cahill, 22 Cal. 563 ; Videau v. Griffin, 21 Cal. 389 ; Frost v. Deering, 21 Me. 156 ; Bufns •«. Lynde, 6 Allen, 309 ; Goodell v. Bates, 14 R. I. 65 ; Ball v. Dunsterville, 4 Term Rep. 813 ; Pierce v. Hakes, 23 Pa. St. 231 ; Mutual etc. Ins. Co. v. Brown, 30 N. J. Eq. 193 ; Gardner v. Gard- ner, 5 Cush. 483 ; King«.Liongnor,4Barn. Wallace v. McCullough, 1 Rich. Eq. 426. And see Bockford etc. B. B. Co. V. Shuniok, 65 lU. 223. s 5 Gush. 483. §§ 235-237 THE SIGNATDEE. 200 tion by the principal in a manner sufficient at common law, and not controlled by the language of the statute."* § 235. Absence of grantor. — If the deed is to be made in the grantor's absence, the authority to execute it must be conferred by an instrument in writing.* But it has been held that a person recognizes and adopts a signature as his own, made to a deed by his wife in his absence, by acknowledging the deed before an officer.* § 236. Holding top of pen. — As the principle that as a signa- ture is sufficient if made by another in the grantor's presence at his request is established, it is apparent that the proposition that if the grantor holds the top of the pen while another is writing his signature for him, the grantor is bound, is still more clear and undisputed.* § 237. Signature by mark. — A signature by mark is suffi- cient though the party be able to write. "The grantor's adop- tion of a signature by affixing his mark thereto, the deed being in other respects r^ular, is as effective to transfer the estate as if his name had been written thereon in full by himself." * In a case where a party had put his mark to a will, evidence was given to prove that he could write, but it was held that that 1 Browne Stat. Fiands (4th ed.) J 12 &. In Mutual Ben. Life Ins. Co. v. Brown, 30 N. J. Bq. (3 Stewart) 193, the Vioe-Chancellor says (p. 203) : " A person physically unable, or too illiterate, to write his name may sign by making a cross, a straight or a crooked Une, a dot, or any other symbol. Simply making a mark by bringing the pen in contact with the paper is sufficient. The right to sign in any of these modes cannot, in principle, depend wholly upon the question of capacity. I do not believe the legisla- ture intended to give any such extraordinary virtue to the mere physical act of touching a pen to paper as to mean that a deed should be valid if it was done, but invalid if it was not done, though the grantor adopted the signature made for him by a delivery of the deed, and an acceptance of the consideration. The essential ingredient of the transaction, in the language of Chief Justice Shaw, is the disposing purpose, an intention, by act done or directed, to divest himself of title and j)ass it to the grantee. If this is the purpose of the grantor's mind, the deed is his, though his name be traced by the hand of another." s McMurtry v. Brown, 6 Neb. 368. s Bartlettt>. Drake, 100 Mass. 174; Greenfield Bank e. Crafts, 4 Allen, 447. * Harris v. Harris, 59 Cal. 620. » Truman t». Love, 14 Ohio St. 144, 164, per Peck, C. J. 201 THE SIGNATURE. § 238 fact was immaterial and the will was sufficiently signed.^ Where a signature is made by mark, and the statute does not require the person writing the name of the grantor to write his own name as a witness, it should seem that no attestation is neces- sary. This is the rule with reference to promissory notes.* § 238. Attestation by witness. — In several of the States signature is defined as including a mark, "when the person can- not write, his name being written near it and witnessed by a person who writes his own name as a witness." The question as to whether it is essential that the witness should also write his name to insure the due execution of the deed has not directly arisen or been authoritatively decided in any case that has come within our observation. In Alabama, the court, referring to this provision of the statute, says : " A subscription or signatu re to any instrument by mark at common law is sufficient; and if it is not an instrument, the execution of which must be attested by a wit- ness or witnesses, the absence of an attestation would not detract from its sufficiency, though proof of execution, when it becomes necessary to prove it, is thereby rendered more difficult.' The statutory provision we are considering does not negative expressly the validity of instruments signed or subscribed by mark, and not attested; yet, as it introduces a new rule in reference to ' Baker v. Dening, 4 Ad. & E. 94. Coleridge, J., said: "I should be sorry if our decision were to lead to the practice of substituting a mark for a name, for this might give much opportunity for fraud. But here we are on the question of law, whether if a party make his mark that be a signa- ture although he could have written his name. How can we say that it is not, when we look at the statute and find what is admitted in argument ? The statute has only the word signed, and it is admitted that in some cases this is satisfied by a mark. When I consider the inconvenience which would result from inquiring in all cases whether the party who has made a mark could write at. all, or could write at the particular time, I think it would be wrong to raise a doubt by granting the rule." « Hilborn v. Alford, 22 Cal. 482; George v. Surrey, Moody & M. 516; Shank v. Butsch, 28 Ind. 19 ; Willonghby v. Moulton, 47 N. H. 205. Judge Story, in his treatise on Promissory Notes, section 11, says : " The signature must be in the handwriting of the party executing it, or if it be by the mark of the maker, that mark must be verified by the handwriting or attestation of some person who acts for the marksman or attests it at hisi request." But he is not borne out in the statement by authority. ' Citing, Baker v. Dening, 8 Ad. & E. 94; 3 Wash. Real Prop. 244; Wimberly v. Dallas, 62 Ala. 196 ; Bailey v. Bailey, 35 Ala. 687.. §§ 239-240 THE SIGNATUEE. 202 subscriptions or signatures, we think it must be construed as implying a negative of the sufficiency of unattested signatures or subscriptions by mark of all instruments falling within its pur- view. When a statute limits a thing to be done in a particular manner, it includes in itself a negative, and the negative is that it shall not be done otherwise. The limitation exists whenever the statute prescribes the particular mamier in which the thing must be."^ § 239. Comments. — The case cited, however, was one involv- ing the validity of a mortgage of personal property. As the court held that a mortgage of personal property was good whether contained in writing or not, its remarks cannot be received as authority. If this conclusion be the proper one, and it is diffi- cult to see how any other can be reached, if effect be given to the language of the statute, it would follow that if the person had not made his mark, the execution would be perfect for the reasons given in a preceding section. The distinction, however, may be placed on the ground that where the grantor requests another to write his name and it is done in the grantor's presence, it is the grantor's act. While in the other case, the attestation of a subscribing witness is an essential element of a proper signa- ture when it is made under the conditions specified in the statute. § 240, Variance in names. — If a person is designated by his proper name in the body of the deed and in the certificate of acknowledgment, the deed is not invalidated by the fact that he signs it by a wrong name.^ The identity of the person in such a case should be proved before the deed is admitted in evidence.' Where the signature is a forgery no title passes, and notice of the forgery is not necessary to make the deed a nullity.* If there are two grantors in a deed, one of whom acts as the attorney in fact for the other, such attorney must sign his name twice, once as attorney in fact for the grantor for whom he acts, and » Bickley v. Keenan, 60 Ala, 29S, 295, per Brickell, C. J. > Middleton v. Pindla, 25 Cal. 76. » TustJn V. Paught, 23 Cal. 237. * Cole V. Long, 44 Ga. 579. 203 THE SIGNATURE. § 241 once for himself. One signature and a second seal is not equiva- lent in a case, of this character to a second subscription.* § 241. Deed Inter partes. — If one of the conditions of a deed is that a certain number of persons shall sign it, and the deed is not signed by all, it is inoperative. Thus, several tenants in common were named as parties to a deed of partition, by which each party conveyed his interest in the land held in common to the others in consideration of a deed to him of a certain designated portion. All the parties named in the deed did not sign it, and the deed was therefore held to be- inoperative, and the partition attempted to be made by it void.'' But whether a deed intended to be signed by several, but not signed by all, is to be considered as the deed of those who do sign it, must be determined by the intention of the parties, whether those signing it intended it as an escrow only until signed by the others or executed it as their deed.' 1 Meagher v. Thompson, 49 Cal. 189. In this ease the question was whether the husband had giren his consent to the wife's conveyance as required by the statute in force at the time the deed was executed. She signed his name to it,.adding the words, " by his attorney in fact," and then signed her own, but only once. The decision, however, was based for the most part upon the proposition that the husband was compelled to sign the deed himself, and could not delegate the power to another. Said the court : "Assuming that the purpose of the statute was the protection of the wife, this protection can be made effectual only by requiring the husband to exercise his judgment in respect to each transaction of the wife with respect to her real estate. No sale shall be valid unless consented to by the husband. The signing of the instrument in writing by the husband is made evidence of his assent to the sale, as well as to the conveyance, but the power of attorney which purports to authorize the wife in advance to make any sale, ' for such sum or price, and on such terms ' as she might deem proper, cannot be made to operate as an abdication by the husband of that discretion which he was bound to exercise. The duty imposed by law on the husband required the employment of a discretion which he could not delegate ; which he was compelled to exercise himself, and in a particular manner, the mode entering into and forming part of his obliga- tion. ' He must not only assent in fact, but he must manifest his assent by his signature to the instrument in writing. The statute has in effect pre- scribed that the only evidence competent to prove his assent is hjs signa- ture, which must appear on the face of the instrument : ' Dow v. G. & CM. Co. 31 Cal. 665." ' Emeric v. Alvarado, 64 Cal. 529, and cases cited. • Haskins v. Lombard, 17 Me. 140 ; 33 Am. Dec. 645. CHAPTER X. THE SEAIj. i 242. History of the use of seals. I 243. Definition. § 244. Seal stamped upon paper. § 245. Seal essential at common law. I 246. In equity. § 247. Seal required unless dispensed with by statute. i 248. Abolition of distinction between sealed and unsealed instruments. § 249. Effect of these statutes. g 250. Use of scrolls. g 251. Bale in Delaware, Indiana, Iowa, Louisiana, Missouri, and Virginia. ^ 252. In Mississippi. I 253. In Tennessee. g 254. Several persons may bind themselves by one seal. § 242. History of the use of seals. — It would be almost impossible to trace the history of seals back to the time when they were first employed. We have instances in very remote antiquity where seals were used in the place of signatures for the purpose of giving effect and authenticity to acts. We find the recognition of seals at an early day in this sentence from Ahasuerus to Esther, the queen : " Write ye also for the Jews as it liketh you, in the King's name, and seal it with the King's ring; for the writing which is written in the King's name and sealed with the King's seal may no man reverse." ^ And again it is said that Jezebel, wife of Ahab, King of Samaria, "wrote letters and sealed them with his seal."^ The use of seals was common in the civil law, and they were especially required in the attestation of testaments.' The extent to which the use of • Bible, Esther, ch. 8, v. 8. ' Bible, 1 Kings, ch. 21, v. 8. Another illustration occurs in the Book of Jeremiah: "And I bought the field of Hanameel and weighed him the money, even seventeen shekels of silver. And I subscribed the evidence, and sealed it and took witnesses, and weighed him the money in the balances. And I took the evidence of the purchase both that which was sealed according to the law and the custom, and also that which was open." Ch. 32. ' 2 Blackst. Com. 305 ; 4 Kent Com. 453. 205 THE SEAL. § 242 seals prevailed among the early Saxons is thus stated by Black- stone : " But in the times of our Saxon ancestors they were not much in use in England. For though Sir Edward Coke relies on an instai^ce of King Edwin's making use of a seal about an hundred years before the conquest, yet it does not follow that this was the usage among the whole nation, and perhaps the charter he mentions may be of doubtful authority, from this very circumstance of being sealed, since we are assured by all our ancient historians that sealing was not then in common use. The method of the Saxons was for such as could write to sub- scribe their names, and whether they could write or not, to affix the sign of the cross, which custom our illiterate vulgar do, for the most part, to this day keep up, by signing a cross for their mark, when unable to write their names. And indeed this inability to write, and therefore making a cross in its stead, is honestly avowed by Cerdwalla, a Saxon king, at the end of one of his charters. In like manner, and for the same unsurmount- able reason, the Normans, a brave but illiterate nation, at their first settlement of France, used the practice of sealing only, with- out writing their names, which custom continued when learning made its way among them, though the reason for doing it had ceased. And hence, the charter of Edward the Confessor to Westminster Abbey, himself being brought up in Normandy, was witnessed only by his seal, and is generally thought to be the oldest sealed charter of any authenticity in England. At the conquest, the Norman lords brought over into this kingdom their own fashions, and introduced waxen seals only, instead of the English method of writing their names, and signing with the seal of the cross. And in the reign of Edward I., every freeman, and even such of the more substantial villeins as were fit to be put upon juries, had their distinct particular seals. The impressions of these seals were sometimes a knight on horse- back, sometimes other devices; but coats of arms were not intro- duced into seals, nor indeed into any other use, till about the reign of Richard the First, who brought them from the crusade in the holy land This neglect of signing and resting only upon the authenticity of seals remained very long among us, for it was held in all our books that sealing alone was Bufficient to authenticate a deed; and so the common form § 243 THE 8EAI.. 206 of attesting deeds, sealed and delivered, continues to this day»» § 243. Definition. — One of the definitions given of a seal is, "an impression upon wax, wafer, or some other tenacious sub- stance capable of being impressed.'"* Lord Coke defined a seal as wax with an impression. " It is required," he says, " that the deed, charter, or writing must be sealed, that is, have some impression upon the wax; for sigUlum est cera impressa, quia cera sine impressione non est sUgiUum, and no deed, charter, or ■ 2 Blackst. Com. 305. "And because we- are about sealing and sign' ing of deeds, it shall not be much amiss here to show you, for antiquity's sake, the manner of signing and subscribing deeds in our ancestors, the Saxons' time, a fashion differing from that we use now in this, that they to their deeds subscribed their names (commonly adding the sign of the cross), and in the end did set down a great number of witnesses, not using at that time any kind of seal. And we at this day, for more surety both subscribe our names, though that be not very necessary, and put to our seals, and use the help of witnesses besides. That the former fashion con- tinued absolute until the time of the conquest by the Normans, whose manners by little and little at the length prevailed amongst us. For the first sealed charter in England is thought to lie that of Edward the Con- fessor to the Abbey of Westminster, who, being educated in Normandy, brought into the realm that and some other of their fashions with him. And after the coming of WiUiam the Conqueror, the Normans, liking their own country custom (as naturally all nations do), rejected the manner that they found here, and retained their own, as Ingulphus the Abbot of Croiland, who came in with the conquest, witnesses saying : ' The Nor- mans do change the making of writings (wiiich were wont to be firmed in England with crosses of gold, and other holy signs) into an impression of wax, and reject also the manner of the English writing.' Howbeit this was not done all at once, but it increased and came forward by certain degrees, so that first and for a season the king only, or a few other of the nobility, used to seal ; then the noblemen for the most part, and none other, which thing a man may see in the history of Battle-Abbey, where Richard Lucie, Chief Justice of England, in the time of EJng Henry II., is reported to have blamed a mean subject, for that he used a private seal, whereas that per- tained (as he said) to the king and nobility only : " Termes de la Ley, 149. Mr. Layard, in his " Discoveries in the Buins of Ninock and Babylon, part i., p. 153, gives some instances of ancient seals. He says: "Other corroborative evidence, as to the identity of the king who buUt the pal- ace of Kouyunjik with Sennacherib, is scarcely less remarkable. In a chamber or passage in the southwest comer of this edifice were found a large number of pieces of fine clay, bearing the impressions of seals which there is no doubt had been affixed, like modem official seals of wax, to documents written on leather, papyrus, or parchment." * Bouv Ijaw Diet. tit. Seal. 207 THE SEAL. § 244 writing can have the force of a deed without a seal." ^ But it is not requisite, it has been held in some of the States, that the impression to constitute a good seal should be apparent.* A piece of paper attached to an instrument with mucilage is good as a common-law seal.* So a piece of colored paper which has been affixed as a seal but which bears no impression has been held good as a seal.* § 244. Seal stamped upon paper. — A seal stamped upon paper instead of upon wax or wafer has been held sufficient. > 3 Inst. 169. See also Mill Dam Foundry v. Hovey, 21 Pick. 417 ; Warren v. Lynch, 5 Johns. 239 ; 3 Caines, 362 ; Beardsley v. Knight, 4 Vt. 471 ; Tusker v. Bartlett, 5 Cush. 359, 364 ; Bradford v. Randall, 5 Pick. 496. Chancellor Kent says : " The common law intended by a seal an impression upon wax or wafer or some other tenacious substance capable of being impressed : " 4 Kent Com. 452. ' Hughes V. Debnam, 8 Jones (N. C.) 127 ; Pease v. Lawson, 33 Mo. 35. A printed seal has been held insufficient : Kichard v. Boiler, 6 Daly, 460. ' Gillespie v. Brooks, 2 Bedf. 349. * Turner v. Field, 44 Mo. 382. See Pease ». Lawson, 33 Mo. 35. The seal was described in the bUl of exceptions thus : " It appeared on inspec- tion that there was no scrawl by way of seal made with pen or pencil, but there was a small round piece of paper cut into scallops on the edges attached to the end of the name, the usual place for a seal with a wafer, but no impression made thereon." Dryden, J., delivering the opinion of the court, said with reference to the sufficiency of the seal : " The common-law seal, which was ' an impres- sion upon wax or wafer, or some other tenacious substance capable of being impressed,' has become well nigh obsolete in this and many other States of the Union, the statutory ' scrawl by way of seal ' having almost entirely superseded it. Yet a seal of tlje one or the other sort is still requisite (and either is sufficient) to constitute a documient a sealed instrument. In this case it is not pretended the statutory mode was adopted, so that unless what was done comes up to the common-law standard, the letter of attor- ney is not a sealed instrument in the sense of the law. Does it then reach this standard ? The point of the objection is that no impression was made on the wafer, and so although everything else had happened necessary to a valid sealing, yet the want of the crowning requisite was fatal. Now, as in the days of the greatest strictness, the common law prescribed no par- ticular instrument with which to make the impression, nor fixed the breadth or length or depth it should be made ; and as the execution of this paper was attended with the usual circumstances of deliberation, and as it was manifestly intended as a sealed instrument, and as the scalloped paper when applied to the wafer and caused to adhere must from a physical necessity have made an impression, we feel warranted for the effectuation of tha clear intentions of the parties in regarding the scalloped paper a sufficient instrument, and the impression made by it to cause cohesion, a sufficient impression to comply with the requirement of the law." § 244 THE SEAL. 208 " Formerly wax was the most convenient, and the only material used to receive and retain the impression of a seal. Hence it was said : SigiUum est cera impressa, quia cera, sine impressione non est sigiMum. But this is not an allegation that an impression without wax is not a seal. And for this reason courts have held that an impression made on wafers or other adhesive substance capable of receiving an impression, will come within the defini- tion of cera impressa. If, then, wax be construed to be merely a general term including within it any substance capable of receiving and retaining the impression of a seal, we cannot per- ceive why paper, if it have that capacity, should not as well be included in the category. The simple and powerful machine now used to impress public seals, does not require any soft or adhesive substance to receive or retain their impression. The impression made by such a power on paper is as well defined as durable, and less likely to be destroyed or defaced by vermin, accident, or intention, than that made on wax. It is the seal which authenticates, and not the substance on which it is impressed; and where the court can recognize its identity, they should not be called upon to analyze the material which exhibits it." 1 ' Mr„ Justice Grier, in Pillow v. Boberts, 13 How. 473 ; S. C. 7 Eng. (12 Ark.) 822. But in Bank of Rochester v. Gray, 2 HiU, 227, it was held that the New York statute authorizing seals of courts and officers to be made by directly impressing the paper, had no extraterritorial force, and there- fore was inapplicable to a notarial protest of another State ; it was also held that at common law a seal must be impressed upon wax, wafer, or other tenacious substance, and that a mere stamp on paper was insuffi- cient. And in Farmers' and Mechanics' Bank v. Haight, it was held under the New York statute that the seal of a religions corporation impressed directly upon paper, without the use of wax or some other tenacious substance, was a nullity. In Carter v. Burley, 9 N. H. 558, where a protest was made by a notary under what purported to be an official seal, the court said : " It is not a mere scrawl, but a distinct impression upon the paper showing the character of the notarial seal. Nothing would have been added to its character by wafer or wax, and as this is not an uncommon mode of affixing official seal, we are of opinion that it is sufficient. It is to be presumed from the production of the instrument itself, that it was duly affixed according to the laws of Pennsylvania, until there is some- thing to impeach it.' ' In AUen v. Sullivan R. R. Co. 32 N. H. 446, the court observed : "It seems to us, then, that there is nothing necessary to consti- tute a seal but some material of a suitable character to receive an impression, and an impression bearing the character of a seal upon it. For other oases as to what will operate as a common-law seal, with reference to various 209 THE SEAL. § 245 § 245. Seal essential at common law. — At common-law seal- ing was 'considered indispensable to the valid execution of a deed,^ which was intended to transfer a freehold interest.^ Where a seal of some character is required, an instrument, although intended to operate as a deed, and purporting on its face to be under seal, is, nevertheless, not a deed if it lacks a seal or a scroll.' In a case in Pennsylvania, where a writing was not actually sealed, though purporting to be under seal, the court, speaking of the necessity for a seal, said with reference to that instrument, and its language is equally ajjplicable to deeds, that " it has been heretofore decided that any mark made by the pen in imitation of a seal may be considered as a seal. The usual mode is to make a circular, oval, or square mark, opposite to the name of the signer, but the shape is immaterial. Some- thing, however, there must be intended for a seal, and the writ- ing must be delivered as a deed. Although in this and many of our sister States the law has been somewhat relaxed in favor of custom and convenience in doing business, yet the relaxation is confined to the Tnanner of making a seal. Sealing and deliver- ing is still the criterion of a specialty If it should be thought that, in the present state of society, it would be best to put all writings on the same footing, the legislature alone has power to accomplish it. Many, however, are of opinion fhat it is useful to allow greater efficacy to writings executed with greater solemnity; and it is certain that even the lower orders of the people understand and feel the solemnity of deliver- ing a writing as their act and deed, and of affixing only the resemblance of a seal, and having the execution attested by instruments, see Jones v. Longwood, 1 Wash. (Va.) 42 ; Connolly v. Good- win, 5 Cal. 220 ; Follett v. Rose, 3 McLean, 832, 335 ; Bank of Manchester V. Slason, 13 Vt. 334 ; Corrigan v. Trenton Co. 1 Halst. Ch. 52 ; Beardsley v. Knight 4 Vt. 471, 479; Curtis v. Leavitt, 17 Barb. 309, 318 ; Ross v. Bedell, 5 Duer, 462 ; Sprange ti. Barnard, 2 Bro. C. C. 585 ; Regina v. St. Paul, 7 Q. B. (Ad. & E. N. S.) 232." See also Commonw. v. Griffith, 2 Pick. 11 ; Bradford v. Randall, 5 Pick. 495 ; Bates v. Boston etc. R. R. Co. 10 Allen. 251. » Wood on Conveyancing, 192 ; 3 Wash. Real Prop. 271. ' Jackson v. Wood, 12 Johns. 242 ; 7 Am. Deo. 315 ; McCabe v. Hunter, 7 Mo. 355 ; Cline v. Black, 4 McCord, 431 ; Underwood v. Campbell, 14 >r. H. 393 ; Jackson v. Wendell, 12 Johns. 355 ; Floyd v. Ricks, 14 Ark, 286 ; 68 Am. Dec. 374. ' Alexander v. Polk, 39 Miss. 737. I. Deeds,— 14. §§ 246-247 THE SEAL. 210 subscribing witnesses I will premise that two principles are, in my opinion, well founded. One, that although in the body of the writing it is said that the parties have set their hands and seals, yet it is not a specialty unless it be actually sealed and delivered. Another, that if it be actually sealed and delivered, it is a specialty, although no mention be made of it in the body of the writing. The fad and not the assertion fixes the nature of the instrument." * § 246. fii equity. — Although the conveyance may be defect- ive for want of a seal, it is good so as to bind in equity the lands conveyed in the hands of the grantor and his heirs, and is good also against a subsequent purchaser who has notice of the prior defective deed.* " It is clear that where there is an agreement to convey, or a defective conveyance by a person then actually hav- ing title, that would be such an equity as would bind the lands in the hands of the heir."' If a seal is actually affixed to the deed, the absence of the customary recital that the party has set his seal thereto, does not affect the conveyance. * § 247. Seal required unless dispensed with by statute. — la those States where the common law prevails, and where there is no statutory provision to the contrary, a seal is essential to make an instrument a deed of conveyance. With reference to the law in California, prior to the abolition by statute of the distinction between sealed and unsealed instruments, it was said : " There is no doubt that a seal is essential to a conveyance of real prop- erty. There may be certain possessory rights to mines and water privileges on the public lands, which are held in this State to pass by simple unsealed bills of sale, but these are exceptional 1 Taylor v. Glaser, 2 Serg. & K. 502, per Telghman, C. J. See also Warren v. Lynch, 5 Johns. 239 ; Deming v. Bullitt, 1 Blackf . 241 ; Davis v. Judd, 6 Wis. 85; Wadsworth ». Wendell, 5 Johns. Ch. 224; Davis ». Brandon, X How. (Miss.) 154. And see also MoCarley v. Tappah County Supervisors, 58 Miss. 483, 749. 2 Wadsworth v. Wendell, 5 Johns. Ch. 224 ; MoCaleb v. Pradat, 25 Miss. 257. See Dreutzer v. Baker, 60 Wis. 179. ° Morse v. Faulkner, 1 Anstr. 14. See idso Martin v. Seamore, 1 Cas. Ch. 170 ; Daniel v. Davison, 17 Ves. 433. * Bradeford v. RandaU, 5 Pick. 496; Taylor v. Glaser, 2 Serg. & E. 502; Mill Dam Foundry v. Hover, 21 Pick. 417. 211 THE SEAL. § 248 cases. The general doctrine with reference to instruments by which real property is transferred is the same in California as in other States — the instruments must be sealed. The transfer inter vivos can only be made by deed, and a deed implies seal- ing; its definition is 'a writing sealed and delivered by the parties.' " '■ § 248. Abolition of distinction between sealed and unsealed instraments. — In some of the States, the distinction between sealed and unsealed instruments has been abolished and a seal is not essential to the valid execution of a conveyance. In Ala- bama, it is provided : " A seal is not necessary to convey the legal title to lands to enable the grantee to sue at law, any instrument in writing signed by the grantor, or his agent having a written authority, is effectual to transfer the legal title to the grantee, if such was the intention of the grantor to be collected from the whole instrument."* It is also declared: "All writ- ings which import on their face to be under seal are to be taken as sealed instruments, and have the same effect as if the seal of the parties was affixed thereto.* " By statute the consideration of sealed instruments may be inquired into.* In California, under the Code, an estate may be transferred by an instrument in writ- ing subscribed by the party disposing of the same or by his agent thereunto authorized by writing.* The Code also declares : " All distinctions between sealed and unsealed instruments are abolished."* "The execution of an instrument is the subscrib- ing and delivering it, with or without affixing a seal." ^ " There ' Mr. Justice Field, in Le Fianc, 6 Sawy. 603. It was held that where the original could not be produced, a seal to the original will be presumed from the statement in the concluding clause that the grantor affixed bis seal, and from the attestation clause stating the sealing of the instrument in the presence of witnesses : Le Franc, 5 Sawy. 603. See Smith v. Dall, 13 Cal. 510; Pratt v. Clemens, 4 W. Va. 443. A writing with a seal is implied by the term " deed," and the seal is essential to make it a deed : Taylor v. Morton, 5 Dana, 365 ; Davis v. Brandon, 1 How. (Miss.) 154 ; Jones V. Crawford, 1 McMuU. 873. ' Ala. Code, 1877, g 2948. » Ala. Code, g 2194. * Ala. Code, g 2981. » Cal. Civa Code, §§ 1091, 1092. « Cal. Civil Code, 1 1629. ' Cal. Code Civil Procedure, § 1933. § 249 THE SEAIi. 212^ shall be no difFerence hereafter in this State between sealed and unsealed writings. A writing under seal may therefore be changed, or altogether discharged by a writing not under seal." * These statutes indicate the modern tendency to make the transfer of real estate easy, and to regard land as much an object of barter as other commodities.* § 249. Effect of these statutes. — The effect of these statutes is simply to dispense with the necessity of affixing a seal to a deed ; but in other respects, as for instance with reference to the doctrine of estoppel, the deed retains the incidents it possessed as a sealed instrument at common law. Commenting upon the statute in Alabama, the court observes: "The common law required more form and solemnity in the conveyance of lands than in the transfer of chattels. The freehold could not pass, after conveyances by writing became the usual mode of transfer, unless the conveyance was under the seal of the grantor. A writing not under seal would create equities if founded on a valuable consideration, but of these courts of law could not take notice. The freehold was of greater dignity than personal prop- erty, title to which could pass by mere words of delivery. This principle of the common law was frequently recognized in this court, and instruments creating equities perfect in themselves, were declared insufficient to pass the legal estate, and therefore insufficient to support ejectment.' The statute expressly dis- penses with a seal as necessary to convey the legal title to enable the grantee to sue at law, and by its terms meets and obviates the insufficiency of the instruments which in the cases referred to was fatal to a recovery in ejectment, compelling suits in the name of the grantor to recover lands held adversely, and com- pelling a resort to equity, if the grantor would not voluntarily, or if he were dead and could not by a legal conveyance perfect the title. If these were the only words of the statute, its only ' Cal. Code CivU Procedure, i 1932. A private seal may be made hy scroll : Code Civil Procedure, g 1931. " See Kentucky Gen. Stats. 1824, oh. 22, § 2 ; Texas Kev. Stats. 1879, art. 4487 ; Goodlett v. Hansell, 56 Ala. 346 ; Pierson i>. Armstrong, 1 Iowa, 282, 293 ; 60 Am. Deo. 440 ; Simpson v. Mundee, 3 Kan. 172 ; Courand v. Vollmer, 31 Tex. 397, See also Bower v. Chambers, 53 Miss. 259. ■ Ansley v. Nolan, 6 Port. 379 ; Thrash v. Johnson, 6 Port. 458. 213 THE SEAL. § 249 effect would probably be to enable the grantee of lands by an instrument not under seal, to sue at law as if the conveyance was under seal, not dispensing with a seal as an indispensable ele- ment of a legal conveyance for all purposes. There are other words, however, indicative of a larger legislative intention, render- ing effectual any instrument in writing to transfer the legal title to lands, if such was the intention of the grantor to be collected from the entire instrument. Former sections of the Code pre- scribe with particularity the essentials of conveyances for the alienation of lands, and of these, are an attestation by witnesses, or an acknowledgment of execution before a proper officer, not essentials at common law.^ When these several statutes are con- strued in connection, as they must be, we cannot doubt it was intended to dispense with a seal as an element of a legal convey- ance of lands, and to leave the sufficiency of every instrument in writing, for that purpose, which is executed in the prescribed mode, dependent on the intention of the grantor as it may be collected from the terms of the instrument Though a seal may not now be necessary to a conveyance of a legal estate in lands, yet the instrument, the deed of conveyance, which it must still be termed, though shorn of its dignity of a seal, retains all the operation and effect of a deed sealed at common law. Its covenants may be as comprehensive, and whatever they may be, are as obligatory, and its recitals are as incapable of being gain- sayed, as if it were sealed with the greatest formality. The estoppel which a sealed instrument or its covenants created at common law, is now claimed by the appellee, shall be attached to the conveyance by the agents of the appellant. And we can- not doubt that the estoppel which at common law grew out of the covenants, or the recitals of a sealed instrument, attach now to an unsealed conveyance of the legal estate in lands. The statute is not so broad in its sweep as to blot out the common- law principles which give security to conveyances of real estate. It would be fearful, indeed, if this was the operation of the statute, and the freehold in lands was not invested with greater dignity than the fleeting ownership of chattels. While the clause of the statute we are considering is indicative of a larger 1 Code of 1876, H 2145, 2146. §§ 250-251 THE SEAL. 214 legislative intention, than the merely dispensing with a seal as an element of a conveyance «f the legal estate in lands, the whole scope of that intention is, that the intention of the grantor, as it is collected from the instrument, shall be carried into effect. The Code in many of its sections, parts, and clauses, simply repeats and affirms the common law, and in this clause it is merely declaratory of the rule of universal application in the construction of written instruments, to which we have referred, that the intention of the parties shall be ascertained and effect given to it if possible. To avoid any supposition or construction that this rule was infringed by dispensing with a seal, as an essential ingredient of the conveyance of the legal estate in lands, is the whole scope of this clause."^ § 250. Use of scrolls. — In many of the States a scroll annexed to the signature of the grantor gives effect to the instrument as one under seal.^ Where the necessity for a seal still exists, but the statute permits a scoU to be used for that purpose, the seal cannot be dispensed with by mere words, and the phrase "witness my hand and seal," will not, in the absence of a seal or scroll, make the instrument a sealed one.' § 251. Delaware, Indiana, Iowa, Louisiana, Missouri, and Virginia. — In Delaware, Indiana, Iowa, Louisiana, Missouri, and Virginia, it is held that an instrument which contains no expression that it is sealed is not a sealed instrument, ' Jones V. Morris, 61 Ala. 518, 522, per BrickeU, C. J. 2 United States v. Stephenson, 1 McLean, 462 ; Relph v. Gist, 4 McCord, 267 ; Lindsay v. State, 15 Ala. 43 ; Jeffrey v. Underwood, 1 Ark. 108 ; Cum- mins V. Woodruff, 5 Ark. 116 ; Comerford ii. Cobb, 2 Fla. 418 ; Hastings v. Vaughan, 5 Cal. 315 ; Bradfield d. McCormiok, 3 Blackf . 161 ; Vanblancum V. Yeo, 2 Blaekf . 322 ; Smith v. Baker, 1 Ga. Deo. pt. 1, 126 ; Scruggs v. Brackin, 4 Yerg. 528 : Bohannan v. Hough, 1 Miss. (1 Walk. Ch.) 461 ; Parks V. Hewlett, 9 Leigh, 511 ; Garter v. Penn, 4 Ala. 140 ; Trasher v. Everhart, 3 Gill & J. 234; Wanzer v. Barker, 4 Miss. (3 How.) 363; McRaven v. McGuire, 17 Miss. (9 Smedes & M.) 34 ; Commercial Bank v. Ullman, 18 Miss. (10 Smedes & M.) 471 ; McKaln v. MUler, 1 McMull. 313; Parkes v. Duke, 2 McCord, 380 ; Bertrand v. Burd, 4 Ark. 195 ; Flemming V. Powell, 2 Tex. 225; Jones o. Logwood, 1 Wash. (Va.) 42; Long v. Ramsey, 1 Serg. & R. 72 ; Stahter v. Cowman, 7 Gill & J. 284. 8 WiUiams v. Young, 3 Ala. 145 ; Moore v. Lespeur, 18 Ala. 606 ; Vance V. Punk, 3 ni. 263. 215 THE SEAL. §§ 252-253 though it have a scroll annexed, and the word "seal" -written in it.i § 252. Mississippi. — But it is held otherwise in Mississippi, and a scroll is considered as a seal whenever it £^pears from the body of the instrument, the scroll itself, or the place where it is affixed, that it was intended as a seal.^ § 253. Tennessee. — In Tennessee, the word "seal," affixed to an instrument purporting to be a deed, it has been decided, is as much indicative of an intention to execute a sealed instrument as a seal or scroll would be, and the instrument is therefore a deed. "The word 'seal' at the end of the name is equivalent to a seal. The only reason for a scroll made by a flourish of the pen at the place for a seal is to show that it was the intention of the party to execute a deed. Since wax, by which an actual seal was made, has gone out of use, the courts of nearly all the States have regarded the scroll as a substitute for the seal; but the word 'seal' written at the place for the seal is certainly much more expressive of the intention of the party to make a deed than a scroll could be, and this word so written, should therefore be regarded as a substitute for the seal.'" And in Missouri, the word "seal" at the end of the name of the grantor, and referred to and adopted in the testimonum clause, is a suf- ficient sealing.* Under the Wisconsin statute, the printed letters 1 Armstrong v. Pearce, 6 Har. (Del.) 351 ; Deming v. Billit, 1 Blackf . 241 ; Long v. Long, 1 Morris, 343 ; Bell v. Keefe, 13 La. An. 524 ; Boynton V. Reynolds, 3 Mo. 79 ; Walker v. Keile, 8 Mo. 301 ; Jenkins v. Hunt, 2 Band. 446. See Moore v. Lesseur, 18 Ala. 606. ' Hudson V. Poindexter, 42 Miss. 304. Shackelford, C. J., said: "This court has repeatedly held, in construing the statute, that any instrument to which the person making the same shall a,&x a scroll by way of seal, shall be adjudged and holden to be of the same force and obligation as if it were actually sealed; that whenever it is manifest that a scroll was intended to be used 'by way of seal,' it must have that effect, whether it so appears from the body of the instrument or from the scroll itself; and that ' any afi&xture to obligor's name in an instrument, and in the locus sigillo, manifestly intended to be used by way of seal, is sufllcient to have that effect . ' " McGnlre v. McRann, 9 Smedes & M. 34 ; Whittington et al. V. Clarke, 8 Smedes & M. 480 ; Commercial Bank of Manchester v. UUman, 10 Smedes & M. 411. ' Whiteley v. Davis' Lessee, 1 Swan, 333, per Green, J. ♦ Qroner v. Smith, 49 Mo. 318 ; Underwood v. Dollins, 47 Mo. 259. § 254 THE SEAL. 216 ,"L. S.," inclosed in brackets in the usual place of the seal, is a sufficient device to answer the purposes of a seal, and a party ■will be held to have adopted these characters as a seal, if he prefixes his signature to them.*^ § 254. Several persona may bind themselves by one seal — Several persons may bind themselves by one seal where nothing appears upon the face of the instrument indicating that this was not their intention.^ It is not necessary that a separate seal shall be affixed to each name, where a deed purports to be executed under the hands and seals of all the parties signing, and is acknowledged by all. It is a sufficient sealing if it appears that the adoption of the seal attached was intended by each signer.' "Where the deed is executed for several parties, it does not appear to be necessary to affix a separate and distinct seal for each, if it appears that the seal was intended to be adopted a§ the seal of each of the parties."* • Williams v. Starr, 5 Wis. 534, 549. The scroU need not be made in any particular form where the body of the instrument expresses the execution of a sealed instrument : Lee v. Adkins, i\I>or, 187; Boyntou v. Reynolds, 3 Mo. 79 ; Gumsley v. Riley, 5 Mo. 280 ; Glassock v. Glassook, 8 Mo. 577. Where the law requires instruments to be recorded, and declares that prior to recording they must be sealed, the fact that the record fails to show that a seal was attached to the instrument does not overcome the presumption raised by the law that the instrument was sealed, or the officer would have refused to record it : Starkweather v. Martin, 28 Mich. 471. An instrument must be sealed according to the method recognized in the State where it is executed or where the land is situated, else it is not a deed : Jones v. Crawford, 1 McMull. 373 ; Arms v. Burt, 1 Vt. 306 ; 18 Am. Deo. 680 ; Pratt v. Clemens, 4 W. Va. 443 ; Taylor v. Morton, 5 Dana, 36t> ; Davis v. Brandon, 2 Miss. 154 ; Kelleran v. Brown, 4 Mass. 443. See Shortridge v. Catlett, 1 Marsh. A. K. 587 ; Hurley «. Ramsey, 49 Mo. 309. 2 Mapes V. Newman, 2 Ark. 469 ; Burnett v. McClney, 78 Mo. 676 ; Yale V. Flanders, 4 Wis. 96 ; Carter v. Chaudron, 21 Ala. 72 ; Maokay v. Blood- good, 9 Johns. 285 ; Williams v. Greer, 12 Ga. 459 ; State Bank v. Bailey, 4 Ark. 453 ; Flood v. Yandes, 1 Blackf . 102 ; Bohannons v. Lewis, 3 Mon. 376 ; Bank of Cumberland v. Bugbee, 19 Me. 27 ; Bowmann v. Robb, 6 Pa. St. 302 ; Lambden v. Sharp, 9 Humph. 224. ' liunsford v. La Motte Lead Co. 54 Mo. 426 ; Van Alstynew. Van Slyck, 10 Barb. 383 ; Yarborough v. Monday, 2 Dev. 493 ; McLean v. Wilson, 4 111. 50. * Chancellor Walworth, in Townsend v, Hubbard, 4 HUl, 341, 858. See Tasker v. Bartlett, 5 Cush. 859. CHAPTER XI. ATTESTING WITNESSES. 2 255. Attesting witnesses not necessary at common law. § 256. Witnesses required in different States. I 257. Attestation must be made at grantor's request. g 258. Import of term. ^ 259. Qualification of the witnesses. § 255. Attesting witnesses not necessary at common law. — At common law, it was not necessary that the execution of a deed should be attested by subscribing witnesses. Blackstone, speaking of the necessity for the attestation of deeds, says : " This is necessary, rather for preserving the evidence than for consti- tuting the essence of the deed."* "The rule seems to be well settled by authority, that an attesting witness is not necessary to a deed. A deed is a writing, signed, sealed, and delivered."* "Subscribing witnesses are not necessary to the validity of a deed, and if none, or called and they deny having seen the exe- cution, or a fictitious name is put to it, as a witness by the obligor, or the attesting witness at the time of the execution was interested in it, and continues so at the time of the trial, proof of the contractor's handwriting is sufficient if the instrument on the face of it purports to be sealed and delivered." ' § 256. Witnesses required in different States. — In Connecti- cut, Delaware, Georgia, Kentucky, Michigan, Minnesota, New Hampshire, South Carolina, Tennessee, Rhode Island, and Ver- mont, two attesting witnesses are required to the execution of the deed.* One witness is sufficient in Maryland and Missis- » 2 Blackst. Com. 307. 2 Dole V. Thurlow, 12 Met. 157, 166. ' 3 Dane's Abr. 354 ; Thaoher v. Piiinney, 7 AUen, 149 ; Craig v. Pinson, Cheves, 273 ; 1 Wood on Conveyancing, 239 ; Com. Dig. Tait, B. 4 j Meuley V. Zeigler, 23 Tex. 88. * Connecticut, Gen. Stats, p. 352, § 5 ; Delaware, Rev. Code, oh. 83, g 3 ; Georgia, Code, g 2690; Kentucky, Gen. Stats. 1879, p. 257, §15; Michigan, Comp. Laws, p. 1347, § 8 ; Minnesota, Stats, vol. 1, p. 637, § 7 (1871) ; New Hampshire, Gen. Stats, p. 251, g 3 ; South Carolina, Kev. Stats, p. 473, 1 4 ; Rhode Island, Kenyon v. Segar, 14 R. I, 490; Vermont, Gen. Stats, p. 450, 218. § 257 ATTESTING WITNESSES. 218 sippi.* A deed without witnesses has been held good between the parties in New Hampshire and Kentucky.^ In Alabama, where the grantee writes his name, the deed must be attested by one witness, and if he cannot write, two witnesses are required.* In Michigan, it was held under the early statute requiring two wit- nesses that a deed was invalid unless so attested;* but in that State, in a late case, it was decided that the title might pass with- out witnesses or acknowledgment but cannot be fully protected, and therefore the court held that where general terms are employed, such as "property and effects of every description," and it is doubtful whether the conveyance covered land, the fact that the instrument was not witnessed or acknowledged is entitled to weight in determining the probable intent of the grantor.* § 257. Attestation must be made at the grajitor's request — The usual clause to denote that the witnesses sign as such is "signed, sealed, and delivered in the presence of," the witnesses writing their names thereunder. If the grantor request the wit- nesses to sign their names to the attestation clause, and they do so, the deed is properly attested, even if the witnesses did not see the grantor write his name. "A deed takes effect from the delivery, and if the parties choose to sign their names alone, and then call witnesses before whom they acknowledge the instru- ment, that is a good execution."* > Rev. Code Maryland, 1878, p. 383, § 3 ; Shirley v. Feame, 33 Miss. 653 ; 69 Am. Dee. 375. = Kingsley v. Holbrook, 45 N. H. 320 ; Fitzhugh v. Croghan, 2 Marsh. J. J. 429. » Code Ala. g§ 2145, 2146 ; Lord v. Folmar, 57 Ala. 615 ; Goodlett v. HanseU, 57 Ala. 346 ; Bank of Kentucky v. Jones, 59 Ala. 123. An acknowl- edgment is a substitute for the attestation of subscribing witnesses : Sharp V. Orme, 61 Ala. 263. There, however, must be one or the other : Ck>od- lett V. HanseU, 56 Ala. 346. • Crane v. Reeder, 21 Mich. 24. s Price V. Haynes, 37 Mich. 487. A deed having but one witness was permitted in Vermont to be used in evidence to compel specific perform- ance : Day v. Adams, 42 Vt. 510 ; Vermont Mining Co. e. Windham Bank, 44 Vt. 489. In New York, unless acknowledged, a deed should be attested by at least one witness : Qenter v. Morrison, 31 Barb. 155. « Jackson v. Phillips, 9 Cowen, 94, 113 j Parke v. Meais, 2 B. & P. 217. See Kenyon v. Segar, 14 R. I. 490. 219 ATTESTING WITNESSES. § 258 § 258. Import of tenn. — The term "subscribing witness" imports that the person who claims to be such must either have seen the maker sign or heard him acknowledge his signature, and he must himself sign as witness in the maker's presence, at his request or by his assent; if he does not sign in the presence of the maker, he must have received a special request fix)m the maker to attest the instrument. Therefore, where a deed was executed by the grantor and delivered to the grantee, who for several years failed to register it, and although the deed was signed in the presence of two sons of the grantee, the latter were not requested to witness it, nor did they sign as witnesses, but after the death of the grantee, the two sons took the deed to the clerk's office, and there attaching their names as witnesses, proved its execution and had it roistered, it was held that the registra- tion was void, and that the land described in the deed was still subject to attachment by the creditors of the grantor.^ • Tate V. Lawrence, 11 Heisk. 503. Mr. Justice Sneed, delivering the opinion of the court, said : " Mr. Simon Greenleaf defines a 'subscribing ■witness' to be one who was present when the instrument was executed, and who at that time, at the request or with the assent of the party, sub- scribed his name to it as a witness of the execution. If bis name is signed, not by himself but by the party, it is no attestation. Not is it such if, though present at the execution, he did it afterwards and without request, or by the fraudulent procurement of the other party. But it is not neces- sary that he should actually have seen the party sign, nor have been present at the very moment of signing; for if he is called in immediately afterwards, and the party acknowledges the signature to the witness and requests him to attest it, this will be deemed part of the transaction, and therefore a sufficient attestation : 1 Greenl. Ev. | 569. The principle of the rule, says Mr. Greenleaf, is that the party to whose execution he is a wit- ness is considered as invoking him, as the person to whom he refers to prove what x>assed at the time of the attestation, and that he is entitled to avail himself of all the knowledge of the subscribing witness relative to the transaction, as facts may be known to him which have passed out of therecoUectionof the bargainer himself : 1 Greenl. £v. 1 569. The objects of our registration laws were to preserve the muniments of title, to per- petuate the evidence of their valid execution, to give the community notioesof the changes in the ownership of property: 9Terg. 37; 5 Humph. 345 ; 4 King's Dig. 2 10336. And it may be added to prevent frauds both upon the bargainer and upon his creditors. Thus, a deed may be executed and delivered upon conditions or in escrow, and the policy of requiring subscribing witnesses is obvious While we do not hold that under our statute it is necessary that the witness should see the party write his name, yet he must have heard the bargainer acknowledge the instrument, and he must subscribe it as a witness either in his presence, or if in his absence, at his special request: 3 Wash. Real Prop. 248; Jackson v. PliiUips, 9 C!owen, 113. It is unquestionably a wise policy which forbids the legistia- § 259 ATTESTING WITNESSES. 220 § 259. QuaMcation of the witnesses. — The object of requir- ing subscribing witnesses is to enable the other party to inquire into the circumstances attending the sealing and delivery.* For this reason they should be persons competent to testify to the facts in an action between the parties or to testify generally. Hence a wife, whether of the grantor or grantee, is incompetent.* And so a grantor in a joint deed is incompetent to be a witness of the execution of the deed by his co-grantors." In Connecticut, the decisions are to the effect that the competency of the witnesses must exist at the time of the execution of the deed.* In New Hampshire, on the other hand, it is sufficient if one of them is competent to testify at the time the attestation is to be proved.* In those States where interest is a disqualification, an interested party cannot be a subscribing witness. Where this is the case, the stockholder of a private pecuniary corporation is disqualified from acting as an attesting witness to the execution of a deed made to the corporation.* But if the witness had no interest at the time, the fact that he subsequently acquired an interest does not affect the validity of the deed." tion of a deed, except upon the acknowledgment of the bargainer, or upon the testimony of ' subscribing witnesses '; and we are constrained to hold that a subscribing witness, in the sense of our registry laws, is one who becomes a witness at the request of the bargainer, either in his presence or at his special request or with his assent, upon his acknowledgment of the execution of the deed." » Morkley v. Swartzlander, 8 Watts & S. 172. ^ Corbett v. Norcross, 35 N. H. 99 ; Smith v. Chapman, 4 Conn. 344 ; Carter v. Champion, 8 Conn. 549. 8 Townsend v. Downer, 27 Vt. 119. * Winsted Savings Bank v. Spencer, 26 Conn. 195. » Frink v. Pond, 46 N. H. 125. ' Winsted Savings Bank -o. Spencer, 26 Conn. 195. It was also held in this case that a party who has executed a deed attested in this manner, is not estopped from denying that a legal title was conveyed by such a cou- veyauoe to the grantee. ' Carter v. Corley, 23 Ala. 612. Say the court: "Although the suit Is brought for the use of Wm. Townes, who is one of the attesting witnesses to the deed which Corley and his wife signed, it does not appear that he had any interest at the time he attested the deed; and if not, an interest subsequently acquired in the note given for the purchase money, could not affect the validity of his previous attestation. The grantee in the deed had an interest in that act, and in his testimony to it, if required after- wards, which he had no power to destroy even if he desired to do so : 3 PhiUips on Evidence, 1266, et seq." In Alabama, it is necessary thatattest- ing witnesses should be able to write their own names : Harrison v, Simons, 55 Ala. 510. CHAPTER XII. DELIVEEY OP DEEDS. ! 260. Delivery essential. I 261. No particular form required. I 262. Delivery a question of intention, i 263. Evidence of intention. ! 264. When deed takes effect. I 265. Presumption as to time of delivery. I 266. .Verbal admissions. ! 267. Possession of deed surreptitiously obtained. I 268. Ratification of deed so obtained. I 269. Manual delivery not requisite. S 270. Delivery of commissioner's deed. ! 271. Delivery for inspection. i 272. Delivery to director of corporation. i 273. Deed delivered for examination, whether a contract of purchase. I 274. Delivery to officer taking acknowledgment. ! 275. Delivery to another for the grantee's use. ! 276. Assent of grantee subsequent to delivery. ! 277. Where there are several grantors. ! 278. Constructive delivery. I 279. Delivery after death of grantor. ! 280. Absolute delivery to a third person to hold until grantor's death. I 281. Instances. \ 282. Delivery with a right to recall the deed. I 283. This rule not universally adopted. I 284. Saving expenses of administration. I 285. Acceptance by the grantee. ! 286. Presumption of acceptance in favor of infants. i 287. Presumption of acceptance by adults. I 288. Contrary views. I 289. What is the proper rule — Comments. ! 290. Registration not of itself delivery. ! 291. Delivery to recording officer for use of grantee. I 292. Registration prima/acie evidence of delivery. I 293. Where acceptance of deed depends upon conditions, registration is not prima fade evidence of delivery. ' 294. Possession of deed by grantee, presumption of delivery. 295. Parol evidence admissible to rebut presumption arising from possession of deed. 296. Inference of delivery of deed from execution in presence of wit- nesses. 297. Inference of acceptance from relationship between person receiv- ing deed and grantee. § 260 DELIVERY OF DEEDS. 222 g 298. Delivery to several grantees. g 299. Comments. § 300. Deed once executed and delivered cannot be revoked. I 301. Illustrations of foregoing rule. I 302. A different doctrine prevails in some of the States. § 303. Ground upon which these decisions are based. g 304. Redelivery without intention to revest title. § 305. Comments on these decisions. g 306. Redelivery to the grantor for correction, acknowledgment, etc. g 307. Delivery to a married woman. g 308. Whether delivery is a question of law or fact. g 309. Deed taking effect as a will. g 310. Complete execution before delivery essentiaL g 311. Right to rents. § 260. Delivery essentiaL — To operate as an eflectual trans- fer of title to land, it is necessary that the deed should be delivered.* "The delivery of a deed is essential to the transfer of the title. It is the final act, without which all other formal- ities are ineffectual."" As was forcibly said by Mr. Justice Marston: "One of the essential requisites of the validity of a deed, so as to pass the title, is delivery. Even although in all other respects it has been properly executed, yet it does not follow that the title to the property passes ; the grantor yet retains con- trol of the instrument, and may deliver it absolutely, condition- ally, or not at all. The act of delivery is not necessarily a transfer of the possession of the instrument to the grantee and an acceptance by him, but it is that act of the grantor, indicated either by acts or words, or both, which shows an intention on his part to perfect the transaction, by a surrender of the instru- ment to the grantee, or to some third person, for his use and I Oliver v. Stone, 24 6a. 63 ; Fairbanks v. MetcaU, 8 Mass. 230 ; Black v. Thornton, 81 Mass. 641 ; Herbert v. Herbert, 1 Breese, 354; 12 Am. Dec. 192; Ferguson v. Miles, 9 lU. (3 Gilm.) 358; 54 Am. Deo. 702; Hatch v. Hatch, 9 Mass. 307 ; 6 Am. Deo. 67 ; Maynard ». Maynard, 10 Mass. 456 ; 6 Am. Dec. 146 ; Jackson v. Richards, 6 Cowen, 617 ; Porter v. Bucking- ham, 2 Har. (Del.) 197 ; Jackson v. Leet, 12 Wend. 105 ; Fay v. Richardson, 7 Pick. 91 ; Clark v. Ray, 1 Har. & J. 318 ; Frisbie v. McCarty, 1 Stewt. Thatcher v. St. Andrew's Church, 37 Mich. 264, 268. In Cannon v. Cannon, 26 N. J. Eq. (11 Green, C. E.) 316, the court say, on page 319 : " To make a delivery of a deed, it is not necessary it should actually be handed over to the grantee, or to another person for him. It may be effected by words without acts, or by acts without words, or by both acts and words. Indeed, it may be made, though the deed remains in the custody of the grantor. Thus, if both parties are present when the usual formalities of execution take place, and the contract is fully carried out, and nothing remains to be done except the empty ceremony of passing the deed from the grantor to the grantee, the law regarding the substance, and disregard- ing mere form, will adjudge the title has passed to the grantee, and that the deed is good and valid to him though it should remain in the custody of the grantor. However, in cases where there is not an actual transfer of the deed, it must satisfactorily appear, either from the circumstances of the transaction, or the acts or words of the grantor, that it was his inten- tion to part with the deed and put the title in the grantee : Crawford v. Bertholf , Saxt. Ch. 467 ; Polly v. Vantuyd, 4 Halst. 158 ; Farlee v. Farlee, 1 Zab. 285 ; Garnons v. Knight, 5 Barn. & C. 687 ; 4 Kent Com. 505." See also Armstrong v. StovaU, 26 Miss. 275 ; Jackson v. Sheldon, 22 Me. 569 ; Whittaker v. MiUer, 83 111. 381 ; Wood on Conveyancing, 193 ; 3 Wash. Real Prop. 286. * Walker v. Walker, 42 HI. 311. In this case, Mr. Justice Lawrence, in delivering the opinion of the court, said: "Whether the statement of Presley to his son, on the day the deed was made, that it was at his house ready for him, would of itself be considered as equivalent to a delivery, it is not necessary to decide, though, as was said by this court in Bryan v. Wash, 2 Gilm. 565, a 'delivery may be by acts without words, or by words without acts, or by both.' The case does not depend upon these words alone, but upon them taken in connection with and construed by the subsequent acts of the parties. And tried by this test, we can entertain no doubt that the son understood these words of his father as meaning a deed had been executed with all the formalities requisite to vest the title, and making him the owner of the land ; and that under the belief in such ownei'ship, he built his house, and occupied it till his last sickness, when he was taken to his father's house to die. His father permitted him to entei- § 261 DELIVEEY OP DEEDS. 224 attestation of a deed as a valid instrument between the parties will render it complete and effectual, notwithstanding it may be left in the possessiop of the grantor where no condition is attached, and nothing remains to be done to give the deed effect. Like any other fact, proof of which is required, the delivery of a deed may be established by circumstantial evidence.* But while it is conceded that no formal manual delivery to the grantee is required, yet there should be some evidence that the deed> was delivered, or in case the grantor retains possession until his death, that he intended his signature and acknowledgment before witnesses should vest the title, and evidence of the with- holding of the deed by the grantor "from the grantee until a particular event casts the burden of proving a delivery upon the latter.^ "It is elementary law" says Mr. Justice Virgin, "that tain this belief, and to act under it, expending time, labor, and money, and probably entertained the same belief himself. There is no evidence whatever that it was ever brought to the knowledge of Alonzo that his mother had interposed any objections, or that she desired to require a promise from him that he would remain on the place, before she would consent to the delivery. All these circumstances form a strong case of equitable estoppel. Having induced Alonzo to believe that a deed had been executed which made him the owner, and having permitted him to act under this belief in the manner above stated, he cannot now be allowed to say that the deed was in fact inoperative for want of a formal delivery. No formal delivery to the grantee in person was necessary. If the grantor in a deed intends, when executing it, to be understood as delivering it, that is sufficient. The intention of the party is the controlling element, as said in Hasterton v. Cheek, 23 111. 76, and in this case there can be no doubt that both the father and the son, judged in the light of their sub- sequent conduct, considered the deed as having been effectually executed for the purpose of passing the title. Less strictness is required in cases of voluntary settlements, and for a reason well illustrated in this case, to wit, because the parties are supposed to place great confidence in each other: Bryan v. Wash, 2 Gilm. 568, and cases there cited. In this case, the son, no doubt, had all confidence in his father, and considered the deed as safe in his house as if in his own." In that case, after the deed was executed the mother made some objection, when her husband told her to take the deed and keep it, until she should be satisfied that the son would remain on the place and not sell it. After the father and the magistrate left the former's house, where the deed had been executed, they met the son, and the father said to him : " Pay the squire for making your deed. It is up at the house ready for you." ' Mcliaughlin v. Manigle, 63 Tex. 553 ; Farrar v. Bridges, 24 Tenn. (5 Humph.) 411; 42 Am. Dec. 439. See Taylor v, Taylor, 2 Humph. 597; Soverbye v. Arden, 1 Johns. Ch. 240. ' Martin v. Bamsey, 6 Humph. (24 Tenn.) 350. 225 DELIVERY OF DEEDS. § 261 the delivery of a deed is as indispensable as the seal or signature of the grantor. Without this act on the part of the grantor, by which he makes known his final determination to consummate the conveyance, all the preceding formalities are impotent to impart vitality to it as a solemn instrument of title. No form- ulary of words or acts is prescribed as essential to render an instrument the deed of a person sealing it. It may be done by acts or words, or by both, by the grantor himself, or by another by the grantor's authority, precedent or assent subsequent, with the intention thereby to give effect as his deed ; to the grantee personally, to another authorized by the grantee to accept it, or to a stranger with a subsequent ratification, although it do not reach tlie grantee until after the death of the grantor."* A statement by the grantor to the husband of the grantee, that certain deeds were in his drawer, and that he desired such hus- band to get them and have them recorded, and telling him to enter upon and improve the portion conveyed to his wife, can- not be said to be sufficient evidence to show a delivery.* " In Brown v. Brown, 66 Me. 316, 820 ; Burkholder v. Casad, 47 Ind. 41»; McLure v. Cololough, 17 Ala. 89 j Dayton v. Newman, 19 Pa. St. 194 ; Porter V. Cole, 4 Me. 20, 25 ; Devinal v. Holmes, 22 Me. 121 ; Hatch v. Bates, 54 Me. 136 ; Chadwick v. Webber, 4 Me. 141 ; 3 Greenl. 141 : 14 Am. Dec. 222 ; Verplanck v. Sterry, 12 Johns. 536 ; 7 Am. Deo. 348 ; Jones v. Jones, 6 Conn. Ill ; 16 Am. Deo. 35; Gilmore v. Whitesides, Dud. Eq. 14; 31 Am. Deo. 563 ; Blight v. Schenck, 12 Barr. 285 ; 10 Pa. St. 245 ; 51 Am. Dee. 478 ; Doe V. Knight, 5 Bam. & C. 671 ; Woodman v. Coolbroth, 7 Me. 181 ; Turner v. Whidden, 22 Me. 121 ; Shep. Touch. 57, 58 ; Chess v. Chess, 21 Am. Deo. 350 ; Hughes v. Easten, 4 Marsh. J. J. 572 ; 20 Am. Dec. 230. In Warren v. Sweet, 81 N. H. (11 Fost.) 332, Eastman, J., says (p. 340) : "No form of words is necessary in the delivery of a deed. It is complete when the grantor has parted with his dominion oyer it, with intent that it shall pass to the grantee, provided the grantee assents to it, either by him- self or his agent." » O'Neal V. Brown, 67 Ga. 707. And see as to evidence tending to show the delivery of a deed, Martz v. Eggeman, 44 Mich. 430. A person exe- cuted to a town a deed of a lot of land on condition that a library building should be erected upon it. There was evidence that the deed after being signed was left with the grantor, and that about a month afterwards it was acknowledged by him, and recorded twelve days after the acknowl- edgment. It was also shown that the town voted to erect a building on the land, and had appointed a building committee who soon after began, and bad since completed the building. On the issae of delivery and acceptance, it was held that the evidence was sufficient to warrant the finding tiiat the deed had been delivered and accepted. Evidence was also introduced showing that the deed after the death of the grantor waa I. De&ds.— IS. § 262 DELIVERY OP DEEDS. 226 § 262. Delivery a question of intention. — As no particular form of delivery is required, the question whether there was a delivery of a deed or not so as to pass title must in a great measure, where it is not clear that an actual delivery has been effected, depend upon the peculiar circumstances of each particu- lar case. The question of delivery is one of intention, and the rule is that a delivery is complete when there is an intention manifested on the part of the grantor to make the instrument his deed.^ "The doctrine seems to be settled beyond reasonable doubt," remarks Justice Atwater, "that where a party executes and acknowledges a deed, and afterwards, either by acts or words, expresses his will that the same is for the use of the grantee, especially where the assent of the grants appears to the transac- tion, it shall be sufficient to convey the estate, although the deed remains in the hands of the grantor The main thing which the law looks at is whether the grantor indicates his will that the instrument should pass into the possession of the grantee ; and if that will is manifest, then the conveyance inures as a valid giant, although, as above stated, the deed never comes into the hands of the grantee." ^ A deed does not become operative until it is delivered with the intent that it shall become effective as a conveyance. Whether such intent actually existed is a question of fact to be determined by the circumstances of the case, and cannot in the majority of instances be declared as a matter of law.' A deed was held complete and valid where it had been prepared for execution, read, signed, and acknowledged before a proper officer, notwithstanding the testimony of the witnesses present at its execution that there was no formal delivery, and found in his house, and that the selectmen had no knowledge of any delivery. But this was held not conclusive in law to overcome the other showing : Snow v. Orleans, 126 Mass. 453. See, also, on what constitutes delivery, Jones «. .Loveless, 99 Ind. 327 ; Davis v. Cross, 14 Lea (Tenn.) 637 ; 52 Am. Rep. 177 ; Miller v. Lullman, 81 Mo. 311. » Jordan v. Davis, 108 111. 836 ; Kevard v. Walker, 39 HI. 413 ; Wanen v. Swett, 31 N. H. 332 ; Buckman v. Buckman, 32 N. J. Kq. 259 ; Byers v. McClanahan, 6 Gill & J. 250; Stewart v. Beddett, 3 Md. 67; Crawford V. BerthoU , 1 N. J. Eq. 458 ; Thompson v. Hammond, 1 Edw. Cb. 497 ; Dukes V. Spangler, 9 Cent. L. J. 398 ; Burkholder v. Casad, 47 Ind. 418; Hastings v. Vaughn, 5 Cal. 315. And see Harris v, Harris, 59 Gal. 620. > Stevens V. Hatch, 6 Minn. 64, 76. > Hibberd v. Smith, 3 West C. Bep. 446. 227 DELIVERY OP DEEDS. § 263 : fact that the deed after the grantor's death •was found among private papers in his desk.* § 263. Evidence of intentioii. — Where a controversy arises as whether a deed was delivered without authority by fraudulent Jlusion between the grantor's agent and the grantee, it is proper i show the offers commuaieated by the agent to the grantor as manating from the grantee, and the instructions as to delivery jiven by the grantor to the agent.* Two brothers, A and B, lived together, A working for B. After the death of B, a bill was brought by A against the heirs of B to obtain a deed, which it was claimed had been delivered to him by B before his death. The delivery of the deed was denied, but it was proved and admitted that the deed had been executed and acknowledged. The deed was kept apparently in B's bureau drawer among other papers, but one of the witnesses for A testified that B delivered the deed to him for A. One of the defendants, however, testified that he saw B take the deed from the drawer and destoy it. The court held that there was not sufficient evidence to entitle the plaintiff to a decree.' The grantee is not affected by the fact that a deed executed by husband and wife was delivered by the husband against the wife's instructions, when the grantee did not know that the delivery was unauthorized.* 1 Scrugham v. Wood, 15 Wend. 545; 30 Am. Dec. 75. Said Nelson, J.: " No one can doubt from the account of the execution of the deed given by the commissioner, in connection with the previous preparation of it at the instance of Scrugham, that it was the understanding and intent of all parties at the time of the execution and acknowledgment that it was delivered, or iu other words, that the family settlement was complete : " See also Roose- velt V. Carow, 6 Barb. 190 ; Rose v. Rose, 7 Barb. 174 ; Bunn v. Winthrop, 1 Johns. Ch. 329 ; Rathbun v. Rathbun, 6 Barb. 98. But where a father signed and sealed a deed transferring land to bis son, and left it with the scrivener with instructions to have it recorded, which was done, and the scrivener at the request of the grantor retained the deed in his hands until the death of the son, when the father reclaimed the deed and canceled it, the son having no knowledge of the circumstances, it was held that the conveyance was imperfect for want of delivery, and that the father was entitled to hold the land as against the heirs of the son. Maynard v. Maynard, 10 Mass. 455 ; 6 Am. Dec. 146. See also Wanfcford v. Wankford, 1 Salk. 299, 301 ; Hatch v. Haskins, 17 Me. (5 Shep.) 391 ; StilweU v. Hub- bard, 20 Wend. 44 ; Mills v. Gore, 20 Pick. 28 ; Rogers v. Carey, 47 Mo. 232. » Adams v. Kenney, 59 N. H. 133. ■ 6ormanv.Gorman,98II1.361. Dickey, C. J., and Walker, J., dissented. ' Edwards v. Desmnkes, 53 Tex. 605. §§ 264-265 DELIVERY OP DEEDS. 228 § 264. When deed takes effect — As delivery is the final act necessary to the valid execution of a deed, it follows that the deed does not take effect until that time. And where the date and the day of delivery are different, it takes effect from delivery only and not from date.* "A deed takes effect only from the date of its delivery, which may be either actual or constructive."* Between the same parties a deed may sometimes, for the further- ance of justice, be permitted in its operation to relate back to the time of a contract for the purchase of the land conveyed by the deed; but this effect will not be given to it when wrong would "thereby be done to strangers.* In an action to cancel and set aside a recorded deed on the ground that it was never delivered, and that its possession was procured by the grantee by fraud, it is held in Colorado, that when the grantee is dead, that it is not sufficient to make the executor a defendant, but the heirs of the grantee must also be joined.* The instrument has no legal exist- ence as a deed, and no person can acquire rights under it where it has passed into the grantee's hands without the grantor's intention to make it operative." § 265. Fresnnrption as to time of delivery. — The general pre- sumption is that a deed was delivered at the time it bears date." > Bank of Healdsburg v. Bailhache, 65 Cal. 327; Harrington v. Gage, 6 Vt. 532; Mitchell o. Bartlett, 51 N. Y. 453; Harman v. Oberdorfer, 33 Gratt. 497 ; Blake v. Flash, 44 lU. 302 ; Jackson v. Bard, 4 Johns. 230 ; 4 Am. Dec. 267; McDowell v. Chambers, 47 Am. Dec. 539; Anderson v. Lewis, 1 Freem. Ch. (Mich.) 178; Floyd v. Kicks, 58 Am. Deo. 374; Har- rison ». Phillips' Academy, 12 Mass. 456 ; Fitzgerald v. Goff, 99 Ind. 28 ; Jackson v. Schoonmaker, 2 Johns. 230 ; McCants v. McConnell, 1 Tread. 190 ; Goodwin v. Whitfield, 5 Ired. 162 ; McDowell v. Chambers, 1 Strob. Eq. 347 ; Hatch v. Hatch, 9 Mass. 307 ; 6 Am. Dec. 67. 2 Tuttle V. Turner, 28 Tex. 759, 773, per Coke, J.; Fairbanks v. Metcalf, 8 Mass. 230 ; Hood v. Brown, 2 Ohio, 266 ; City Bank v. McClellan, 21 Wis. 112. ' Jackson v. Bard, 4 Johns. 230 ; 4 Am. Deo. 267. * Snyder v. Voorhies, 7 Colo. 296. 8 Fitzgerald v. Goff, 99 Ind. 28. See Jones v. Loveless, 99 Ind. 317. 6 Raines v. Walker, 77 Va. 92 j Harman «. Oberdorfer, 33 Gratt. 497; Cutts V. York etc. Co. 18 Me. 190 ; Deininger v. McConnel, 47 HI. 228 ; Hall V. Benner, 1 Pen. & W. 402 ; 21 Am. Deo. 894 ; EUsworth v. Central K. R. Co. 34 N. J. L. 93 ; Meech v. Fowler, 14 Ark. 29 ; Harrison v. Phillips' Academy, 12 Mass. 456; Billings «. Stark, 15 Fla. 297 ; Geiss d. Odenheimer, 4 Yeates, 278; 2 Am. Dec. 407; Colquhoun v. Atkinson, 6 Munf. 615; McConnell v. Brown, Litt. Sel. Cas.462 ; 3 Wash. Real Prop. 286. 229 DEIilVEEY OP DEEDS. § 265 Where a deed bears date of a certain day and is acknowledged on a subsequent day, a difference of opinion prevails, as we have seen in the chapter on the formal parts of the deed, among courts as to the time at which in the absence of proof it is to be presumed to have been delivered. In most States the rule is adhered to strictly that the date of the deed is prima fade evidence of the time of its delivery, and this presumption is not allowed to be overcome by showing that it was acknowledged on a later day.' But in other cases it is held that where there is no proof of deliv- ery prior to the acknowledgment, and the acknowledgment is perfected on a day subsequent to the date of the deed, the deed must be presumed to have been delivered after its date.* These decisions proceed upon the ground that the acknowledgment of deeds and other instruments intended for record precede delivery in the usual course of business. The presumption that a deed was delivered on the day of its date, cannot prevail against the positive averments in the acknowledgments that it was executed afterwards, where the deed was executed and acknowledged on 1 Darst V. Bates, 51 HI. 439. See Sweetser v. Lowell, 33 Me. 446 ; Jayne f. Gregg, 42 HI. 413; Breokemidge v. Todd, 3 Mon. 52; 16 Am. Dec. 83 ; Harris v. Norton, 16 Barb. 264 ; Ford v. Gregory, 10 Mon. B. 175 ; Robinson V. Gtonld, 26 Iowa, 89 ; McConneU v. Brown, Litt. Sel. Cas. 459. In Darst V. Bates, supra, Mr. Justice Walker, who delivered the opinion of the court, said : " But the trust deed bears date on the 13th day of October, 1856, and the notes are by it described as bearing even date therewith ; and in the absence of proof showing that it was executed on a different day, the data specified wiU be presumed to be the true date of its execution. It is true that it was not acknowledged until the 30th of that month, but that does not prove that it had not been executed before that time. And when it appears that the deed of trust and notes did not come to the hands of Bates until about the 3d or 4th of the next Kovember, we may readily suppose that although previously executed, it would only be acknowledged at the time the makers desired to forward it to Bates." " It is of little import- ance," says the court, in Smith v. Porter, 10 Gray, 66, 69, "that the deed was not acknowledged on the same day on which it purports to have been executed, bat on the 17th of January, 1806. It is well known that in this commonwealth the title to land, followed by a corresponding seisin and possession, often passes by instruments of conveyance which are not duly acknowledged ; and accordingly the law will not allow a title to fail on account of such omission, but has made suitable provision for supplying the defect of an acknowledgment where it is found to exist." See Summers V. Dame, 31 Gratt. 791. > Blanchard v. Tyler, 12 Mich. 339 ; Clark v. Akers, 16 Kan. 166 ; Loomia «. Piogree, 43 Me. 299 ; Fontaine v. Boatman's etc. Bank, 57 Mo. 553. See Eaton V. Trowbridge, 38 Mich. 454 ; Biolasky v. Fniey, 12 Fhila. 428. § 268 DELIVEEY OF DEEDS. 230 different days by parties living in different counties.* The pre- sumption, ho\pever, as to the time of the delivery is not conclu- sive, and the time at which actual delivery was made may be shown by parol evidence. "That the date found in the body of the deed is presumptively the date at which it was delivered is not questioned; that this presumption, however, is not conclu- sive, but that the true date of delivery may be proved aliunde is also clear."* Notwithstanding that the rule is not uniform in all the States, the weight of authority and the better opinion is to the effect that although a deed may be acknowledged on a day subsequent to its date, the date of the deed is nevertheless pre- sumed to be the time at which delivery was made. Acknowledg- ment may have been made at a subsequent time, and as it may be impossible to tell from lapse of time when delivery was actually effected, the most satisfactory presumption to adopt is that the deed was delivered at its date, making this the time from which it will be presumed to be operative to pass the grantor's title.' § 266. Verbal admissions. — When it becomes material to inquire whether a deed was delivered at its date or some other '' Henderson v. Mayor etc. of Baltimore, 8 Md. 352. In that case, Tuck, J., said, (p. 358) : " The deed bearing date April 19th, executed as a com- pliance with the condition on which Shipley signed the application, and relied on by the appellees as evidence of ratification, cannot be considered as operative from its date even if it be otherwise sufficient to remove the objection. Deeds take effect from delivery. It is manifest that this was executed and acknowledged by some of the grantors after the 4th of May, and could not have been delivered on the day of its date. There was no proof as to the delivery other than what appeared on the instrument. Being a point arising upon its face unconnected with parol proof, it was for the decision of the court : Barry v. Hoffman, 6 Md. 78. Where deeds, as in this case, are executed and acknowledged in different countries, and necessarily on different days, the presumption arising from the date that the instrument was delivered on that day, cannot stand against the positive averment in the acknowledgment that it was executed afterwards." See Tan Rensselaer v. Vickery, 3 Lans. 57, where it was held that it would not be presumed that a deed was delivered until the cancellation of the revenue stamps. ' Treadwell v. Reynolds, 47 Cal. 171 ; Whitman v. Henneberry, 73 111. 109. See also Fairbanks v. Metoalf, 8 Mass. 230; Harrison v. PhUlips' Academy, 12 Mass. 456 ; Barry v. Hoffman, 6 Md. 78 ; Cook v. Knowles, 38 Mich. 316. ' Hardin v. Osborne, 60 El. 93 ; Harden v. Crate, 78 111. 533; Ellsworth V. Cent. R. R. Co. 34 N. J. L. 93 ; People t>. Snyder, 41 N. Y. 402. 231 DELIVERY OF DEEDS. § 267 time, the question to be solved is, when did the parties consider that thfe grantee had unconditional control of the deed.^ Where there is positive evidence that a deed was delivered at its date, and it is shown in addition to this that the deed was ready for delivery at that time, and that its delivery was practicable, evidence, consisting of verbal admissions, and the testimony of prejudiced parties, to establish a delivery at a different time, cannot be regarded as convincing in a . proceeding in equity.' But in the case of a forged instrument, there is no presumption that it was delivered at its date, or at any other particular time.* § 267. Possession of deed snrreptitioiisly obtained. — A deed which has been surreptitiously and fraudulently obtained from the grantor without his knowledge or consent, does not, even as against a subsequent purchaser without notice, transfer title. " A deed purloined or stolen from the grantor, or the possession of which was fraudulently or wrongfully obtained from him with- out his knowledge, consent, or acquiescence, is no more eflectual to pass title to the supposed grantee, than if it were a total forgery, and an instrument of the latter kind had been spread upon the record. The only question which can ever arise to defeat the title of the supposed grantor in such cases, is whether he was guilty of negligence in having made, signed, and acknowl- edged the instrument, and in suffering it to be kept or deposited in some place where he knew the party named as grantee might, if so disposed, readily and without trouble obtain such wrongful possession of it, and so be enabled to deceive and defraud inno- cent third persons. It might possibly be that a case of that kind could be presented where the negligence of the supposed grantor in this respect was so great, and his inattention and carelessness to the rights of others so marked, that the law would on that account estop him from setting up his title as against a bcmajide purchaser for value under such deed."* ' McCnllough V. Day, 45 Mich. 554. I McCnllough V. Day, supra. ' Remington Paper Co. v. O'Dongharty, 81 N. Y. 474. • Per Dixon, C. J., in Tisher v. Beckwlth, 30 Wis. 55 ; Henry v. Carson, 96 Ind. 412. In Everts v. Agnes, 4 Wis. 343, where it was held that the fraudu- lent procurement of a deed deposited as an escrow from the depositary, by the grantee, will not pass the title, and that a subsequent purchaser of §. 268 DELIVERY OF DEEDS. 232 § 268. Ratification of deed so obtained. — Where possession has been obtained surreptitiously of a deed which had never the grantee for a valuable consideration, without notice, derives no title, and is not entitled to protection, Smith, J., in delivering the opinion of the court, said (p. 350) : "We think that there can be no doubt that the fraudulent means used by Agnes to get possession of the deed from Zettler, the depositary, are such as effectually preclude him from deriving any benefit from it. The testimony in this branch of the case is satis- factory. The deed was left with Zettler as an escrow, with instructions not to be delivered untU certain securities should be given by Agnes. Until the performance of the condition, it was, and must remain, a mere scroll in writing, of no more efficacy than any other written scroll ; but when, upon the performance of the condition, it is delivered to the grantee or his agent, it then becomes a deed to all intents and purposes, and the title passes from the date of the delivery. The delivery to be valid must be with the assent of the grantor. These are familiar principles, and do not require the citation of authorities to sustain them. If the grantee obtain possession of the escrow without performance of the condition, he obtains no title thereby, because there has been no delivery with the assent of the grantor, which assent is dependent upon compliance with the condition. The assent of the latter is withheld until the condition is per- formed. The obtaining of it by fraud, larceny, or any means short of the performance of the condition, is against the assent of the grantor, and as this assent is essential to delivery, and a dollvery is essential to the validity of the deed, it is difficult to perceive how Agnes ever obtained any title wha.tever to the premises, and, of course, equally difficult to perceive how he could convey any by any conveyance which he might execute to another. The recording of an escrow does not make it a deed. Supjiose Zettler had procured the deed to be recorded, and Svrift had purchased of Agnes on the faitli of the record title, without any delivery of the deed to Agnes, will it be claimed that Swift in such case would have obtained title 7 How is the case made better by the wrongful possession of the escrow by Agnes, obtained without the consent of Everts, and hence, without any delivery to him ? It is true, all this might be done, and Swift, the pur- chaser, be quite innocent of any wrong. It is also true, that either Everts or Swift must suffer by the fraud of Agnes, the latter being unable to make reparation. But which has the prior or superior equity ? Everts asks that he shall not be divested of his estate without his consent. Swift asks not only that Everts may be thus divested, but that he, himself, may be invested with it. It is quite apparent that the superior equity is with him who had the original title, with which he has never voluntarily parted . Swift has his remedy upon the covenants of his deed from Agnes. But were the equities equally balanced, the legal title must prevail ; that the legal title never passed from Everts, we think is clear both from reason and authority : 4 Kent Com. 459 ; 5 Greenl. Cruise, tit. Deed, 45, 46 ; 3 Am. Dec. 415 ; Jackson v. Catlin, 2 Johns. 248 ; Same v. Same, 8 Johns. 429, 431 j Frost V. Beekman, 1 Johns. Ch. 296 ; Jackson v. Howland, 6 Wend. 666 ; Carr v. Hoxie, 5 Mason, 60 ; Jackson v. Sheldon, 9 Shep. 569 ; Bobbins v. Bellas, 2 Watts, 859 ; 1 Story's Eq. Juris. g§ 75, 76 ; Somes v. Brewer, 2 Pick. 184 J 13 Am. Deo. 406 ; Worcester v. Eaton, 11 Mass. 873 ; 13 Mass. 871 j 233 DELIVEEY OP DEEDS. § 268 been delivered, it requires aa express ratification, or at least an acquiescence, after a knowledge of all the facts of such a char- 7 Am. Deo. 155. But it Is contended that Swift is entitled to protection as a bona fide purchaser without notice. This has been a point of some diflaoulty. We have not been referred to, nor have we been able to find aa authority directly in point. We are aware that courts of equity go to great lengths to protect a bona fide purchaser for a valuable consideration without notice. The plaintiff cannot set up the fraud of his grantee in procuring a conveyance to defeat the title of a subsequent bona fide purchaser. But such, and all the cases referred to, differ from the case at bar, in the impor- tant fact that in all of them the conveyance was perfected by the voluntary act, and with the assent of the grantor. He made the sale. He executed and delivered the deed, or caused the same to be done. All these acts were perfectly voluntary on his part, and no matter what fraudulent representations may have induced him to do these acts, an innocent third person shall not be made to bear his misfortune, or suffer for his credulity. Cases of this kind are numerous, and the principle on which they all depend is an equitable one. But they all depend, nevertheless, upon the fact that the party voluntarily parted with his property, and executed and delivered the evidences of its alienation. Not so, however, in the case of a forged or stolen deed. The reason is obvious. In the latter case there is no assent of the alleged grantor. There is no delivery. It is erroneous to suppose that Everts delivered the deed to Zettler, for Agnes, and thus made Zettler his agent, and is therefore bound by his acts. If the deposi- tary of an escrow can be considered the agent of the depositor at all (which we very much doubt), he is only such within the scope of his authority. He is as much the agent of the grantee as of the grantor. He holds the scroll for both, to be delivered on the performance of the con- dition. He is as much bound to deliver the deed on performance of the condition, as he is to withhold until performance. The act of delivery cannot be considered the act of the grantor until the condition be complied with. Without such compliance there is no assent to the delivery. To obtain the deed or scroll from the depositary without such compliance, is as much against the assent of the grantor, as it wotild be to take it from the desk or drawer where the grantor had deposited it, without his knowl- edge or consent. It would seem, therefore, that there is a great and fundamental distinction between the case where by fraudulent represen- tations a person is induced to execute and deliver a deed, and one where the deed or scroll is obtained from a depositary, without the knowledge or consent of the depositor or compliance with the conditions on which the delivery depends. It would seem that where a deed deposited as an escrow is obtained without performance of the conditions by operating upon the fears or credulity of the depositary, or by fraudulent collusion with him, or by other undue means, it bears a closer analogy in principle to the case of a forged or stolen deed than it does to that of a fraud practiced directly upon the grantor, by means of which he is induced to deliver it. In the latter case, the legal title passes, and a subsequent bona fide pur- chaser is protected. In the former, no title passes whatever, and a su bse- quent purchaser is not protected. In the one class of cases there is the voluntary assent of the grantor ; in the other, there is no assent at all. If § 268 DELrVEEY OP DEEDS. 234 acter as "would create a presumption of aa express ratification to give force and effect to the deed. A deed thus obtained is consid- ered to possess no greater validity than it would have if forged. Where reliance is placed upon the statute of limitations, posses- sion for the full statutory time must be made out, and possession does not of itself raise the presumption of ratification.' A delivery, however, may be effected in law, where the grantor still retains the physical possession of the deed. A husband desiring to obtain an extension of time from his creditor, executed a deed to his wife, for the purpose of having her exhibit it to the creditor to create in his mind the impression that she owned the property. The husband deposited the deed with his other papers in the house where the wife had access to it, so that she might use it for the purpose designed, and she placed it on record. The court held that the legal control must be regarded as having been delivered to her, and this was equivalent to a delivery in law.* this reasoning be correct, the better opinion would seem to be, that the fraudulent procurement of a deed deposited as an escrow, from the deposi- tary by the grantee named in the deed, would not operate to pass the title, and that a subsequent purchaser for a valuable consideration with- out notice would derive no title, and would not be protected." 1 Hadlock v. Hadlock, 22 111. 384. ' Gage V. Gage, 36 Mich. 229. Chief Justice Cooley says: "The testi- mony regarding the actual delivery of the deed by the husband to the wife is conflicting, but from all the evidence it is perfectly dear that whether the deed was actually placed in the wife's hands or not, it was deposited where she could make use of it for the very purpose for which it was made. The actual custody was as much in her as in him, and as it was understood that she was to make use of it on occasion to show owner- ship in herself, the lagal control must be regarded as delivered to her. And the act of the wife in taking the deed and placing it upon record, though it may not have been without the husband's knowledge, was in itself no wrong, if delivery in fact or in law had previously been made. We think a delivery in law is shown, and this is an end of the case. Fraud in procuring the deed is not relied upon, and complainant, having planted himself on the non-delivery, must fail when delivery is made out. He has executed a conveyance for the illegal purpose of delaying his creditor in the c9llection of his demand, and if the party he trusts in his unlawful attempt defrauds him, he must bear the consequences. Courts cannot occupy themselves with adjusting equities between wrong-doers. When parties associate for an unlawful purpose they ntust calculate in advance the probabilities of bad faith towards each other, and mast expect no assistance of the law against each other's frauds." A deed placed in the hands of a stranger for safe-keeping is not delivered, and if he gives it to the grantee, it is not a valid delivery : Barlow v. Hinton, 1 Marsh. A. K. 97. But see Berry v. Anderson, 22 Ind. 11. 235 DELIVEEY OF DEEDS. § 269 § 269. Manual deltrery not reqriisite. — Actual manual deliv- ery and change of possession are not required in order to consti- tute an effectual delivery. But whether there has been a valid delivery or not must be decided by determining what was the intention of the grantor, and by regarding the particular cir- cumstances of the case. Where a father had indicated in various ways that certain property should be bestowed at his death upon his infant son, and for that purpose had executed a deed, of which he, however, retained the possession, effect was given to his intention, despite the fact that there had been no manual delivery of the deed.^ In the Touchstone it is said : " If I take the deed in my hand, and use these, or the like words, ' here, take it,' or 'this will serve,' or 'I deliver this as my deed,' or 'I deliver it to you,' these are good deliveries."^ In New York, under the statute abolishing the doctrine of resulting trusts, it was held that where a deed is made to another, at the request of the purchaser, and the latter receives and retains the deed, with- out disclosing its existence to the grantee, the title nevertheless ' Newton v. Bealer, 41 Iowa, 334 ; Shirley v. Ayers, 14 Ohio, 308 ; 45 Am. Dec. 546 ; Dakes v. Spangler, 35 Ohio St. 119. In the first case, Day, J., says : "Where one who has the mental power to alter his intention, and the physical power to destroy a deed in his possession, dies without doing either, there is, it seems to ns, but little reason for saying that his deed shall be inoperative simply because during life he might have done that which he did not do. It is much more consonant with reason to deter- mine the effect of the deed by the intention existing up to the time of the death, than to refuse to give it that effect because the intention might have been changed. Applying this doctrine to the deed in question there can be no doubt that it should be sustained. The deceased, as he frequently declared, had made all the provisions for his other children that he intended to make, when within a very few days of his death, and evidently, as appears, contemplating approaching dissolution, he says that he has his property all fixed, and points to the chest in which the deed would be found, which, as he supposed, had the effect to fix his property so that there would be no fussing about it when he was gone. He thus manifested an unequivocal intention within ii, very short time of his death to have this deed operate as a disposition of his property, and any construction of the law which ignores this intention and defeats this pur- pose prefers shadow to substance. As bearing upon this question, see Masterson v. Cheek, 23 111. 76 ; Presley v. Walker, 42 111. 311 ; Souverbye V. Arden, 1 Johns. Ch. 256; Lessees of Mitchell v. Ryan, 3 Ohio St. 382; Cecil V. Beaver, 28 Iowa, 242." See also Stow v. Miller, 16 Iowa, 460 ; Foley V. Howard, 8 Iowa, 56, 60 ; Strugham v. Wood, 15 Wend. 545 ; 30 Am. Deo. 75 ; Tallman v. Cooke, 39 Iowa, 402. 2 Shep. Touch. 58. §§ 270-271 DELIVERY OF DEEDS. 236 passes by the deed and becomes vested in the grantee, freed from any trust in favor of the purchaser.^ "The law does not pre- scribe any particular form of words or actions, as necessary to consummate a delivery. Anything done by the grantor from which it is apparent that a delivery is thereby intended, either by words or by acts, or by both combined, is sufficient." * It is held that a formal sealing and delivery, without an actual delivery to the other party, where nothing else is expected to be done to complete the transaiction, will be sufficient to give immediate operation to a declaration of trust, or deed, or mortgage.' § 270. Delivery of coimnissioner's deed. — At the time at which the court confirms the report of sale and conveyance of a commissioner appointed by a decree to sell and convey land in partition proceedings, a deed executed and acknowledged by him is delivered, although he retains manual possession of it.^ § 271. Delivery for inspection. — A delivery of a deed for inspection, or a delivery to the grantee or his agent to be held while the grantee has under consideration the proposition whether he shall accept it or not, is not a valid delivery. An agent of a grantee during negotiations for a conveyance of a parcel of land advanced a trifling sum of money to the grantor's attorney, and received a deed, on an agreement that it should be returned and the money refunded in the event that the conveyance was not accepted. Afterwards the grantee's agent said he did not think it worth his while to take the property, and received back from the grantor's attorney the money advanced, promising to send the deed back to the grantor, but instead of doing this, he retained the deed and caused it to be recorded. The court held that there had been no valid delivery, and set aside the deed as a cloud > Everett v. Everett, 48 N. Y. 218. ' Somera v. Pumphrey, 24 Ind. 231, 239, per Elliott, C. J. See also Dearmond v. Dearmond, 10 Ind. 194; Connelly v. Doe, 8 Blaokf. 320; MoNeeley v. Ruoker, 6 Blaokf. 391 ; Mallett v. Page, 8 Ind. 364 ; FoUy v. Vautuyl, 9 N. J. L. (4 Halst.) 153 ; Pennsylvania Co. v. Dovey, 64 Pa. St. 260 ; Church v. Gilman, 15 Wend. 656 ; 30 Am. Deo. 82 ; Duncan v, Hodges, 4 MoCord, 239 ; 17 Am. Dec. 734. ' Linton V. Brown, 20 Fed. Rep. 445. < Cocks V. Simmons, 57 Miss. 183. 237 DELIVERY OP DEEDS. § 271 upon the title of a subsequent purchaser from the original grantor.* "A deed," said Grover, J., "may be deposited with the grantee or handed to him for any purpose other than as the deed of the grantor, or as an effective instrument between the parties, without becoming at all operative as a deed."^ A deed, although left in the hands of the grantee after its execution by the grantor, will not be effective as a valid instrument where the sole purpose of so leaving it was for transmission to a third person, with whom the parties had agreed it should remain until the occurrence of a specified event, at which time it should be finally delivered to the grantee and take effect.* So a deed may ' Ford V. James, 2 Abb. N. Y. App. 159. ' Ford V. James, 2 Abb. N. Y. App. 159. In Graves v. Dudley, 20 N. Y. 77, the facts proven at the trial are thus stated by the reporter: "The plaintiff had negotiated with Koyal Dudley and Levi G. Dudley, brothers of the defendant, in respect to a loan of two hundred and fifty dollars, to be made by them upon usurious terms. The loan was to be secured by the conveyance of certainJands to the plaintiff with an agreement for reconvey- ance upon payment. The deeds and contract were drawn by the defend- ant acting as the agent of his brothers. They were executed and offered to the plaintiff by the defendant when the former raised some question as to the validity of the acknowledgment of one of the deeds, and talked of taking the papers to counsel for examination. On the next day the defend- ant called on the plaintiff for the two hundred and fifty dollars, and it was handed to him upon his executing a paper reciting the receipt of the m.oney ' which I agree to deliver to Eoyal Dudley and Levi G. Dudley, pro- vided there shall be found no mistakes in the conveyances or contracts this day delivered to the said Graves [describing them]. And if upon examination of said papers there shall be found any mistake or mistakes, they are to be immediately rectified, and the said contract [for reconvey- ance!, delivered to the said Royal Dudley and Levi G. Dudley ; and further I agree to deliver the said two hundred and fifty dollars as above received at the time the said papers shall be rectified as above stated. John K. Dudley.' Some evidence was received under the defendant's exception of what was said at the time of delivering the above paper. The plaintiff, on the 15th of April, demanded the money of the defendant and tendered to him the papers which he had received." The court held that there had been no valid delivery, and that plaintiff was entitled to a return of the money, saying, per Grover, J.: "The title to the money depends upon the construction of the defendant's agreement made with the plaintiff. This shows that the deeds were not delivered to the plaintiff' to take effect as perfect instruments either absolutely or upon condition, but for the pur- pose of examination by the plaintiff to ascertain whether the papers were right, and subject to future correction should they be found imperfect. Such a delivery did not transfer the title to the land to the plaintiff. The papers were not operative as conveyances until the examination was made and they were found correct, or if imperfect corrected." • Gilbert v. North American Fire Ins. Co. 23 Wend. 43 ; 35 Am. Dec. 543. §§ 272-273 DELIVKRY OF DEEDS. 238 be delivered to the grantee named therein, for the purpose of awaiting complete€xecution or acknowledgment byanother party, and such a delivery does not, in the absence of the further con- templated execution, give effect to the instrument.^ § 272. Delivery to director of corporation. — If the grantee In the deed is a corporation, such as a bank, the handing of a deed to one of the directors of the grantee, upon the condition that it shall not be delivered until the settlement of a controversy between the parties to the deed, nor until the depositary is instructed to make the delivery, is not in any sense a delivery to the corporation. A delivery of the deed cannot be effectually made until the depositary receives the proper instructions to deliver it.^ § 273. Deed delivered for examination, whether a contract of purchase. — A deed delivered to the grantee for examination only, which, as we have seen, does not constitute a valid delivery, cannot, although it may be signed and acknowledged by the grantor, operate as a contract, or memorandum of a contract, for the conveyance of lands, so as to satisfy the requirements of the statute of frauds. In a case where the contention was made that a deed, invalid for want of an effectual delivery, might be considered as an agreement for the sale of land capable of specific enforcement, Mr. Justice McMillan, delivering the opinion of the court, said : " But it is claimed by the plaintiff that although the delivery of a deed may not have been sufficient to pass the title to the land, yet it was sufficient to constitute a contract in writing, the specific performance of which the plaintiff is entitled to enforce. This position cannot be sustained; for to render a written contract to convey land operative, it is just as essential that the contract, or memorandum of the contract, required by the statute of frauds be delivered, as that a deed be delivered in order to convey the title to the land. And in this case, if the instrument was delivered at all, it was as a conveyance, not I 1 Brackett v. Barney, 28 N. Y. 333. See also Hoag v. Owen, 60 Barb. 34 ; Fisher v. Hall, 41 N. Y. 416 ; Crosby v. Hillyer, 24 Wend. 280 ; People v. Bostwiok, 82 N. Y. 445 ; Fonda v. Sage, 48 N. Y. 173 ; Worrall v, Munn, 1 Seld. 229 ; Chouteau «. Suydam, 21 N. Y. 179. a Bank of Healdsburg v, Bailhacbe, 65 Cal. 327 ; 3 West C. Rep. 140, 239 DELIVERY OF DEEDS. § 273 otherwise." * Another illustration may be given where the parties went together to an attorney, and had a deed drawn for the con- veyance of a piece of land, for the sale of which there had been a previous oral agreement. The grantor signed the deed, and the grantee made a part payment of the consideration price. Both parties examined the deed, and expressed themselves satis- fied with its form, and afterwards the grantor took it for the purpose of procuring from hjs wife a release of her right to dower. The court held that there was no delivery of the deed, and that for want of a delivery, it could not operate as a deed, or as a memorandum in writing of the agreement.^ It has been held, nevertheless, that if a parent, in consideration of love and affection, execute a deed to a member of his family, which is inoperative for want of delivery in the grantor's lifetime, yet equity will come'to the aid of the grantee, and vest him with the legal title.* This case, however, while iu apparent conflict with the decisions previously cited, may be distinguished from them. The conveyance was made to a member of the grantor's family, and this became, in a sense a voluntary settlement, which equity favors, and uses every means to sustain. In Virginia, it seems a doctrine at variance with that above stated prevails. In that State, it is held that an undelivered deed is a sufficient memo- 1 Comer v. Baldwin, 16 Minn. 172, 176. See also Overman v. Kerr, 17 Iowa, 485, 490, sustaining the same rule. ' Parker v. Parker, 1 Gray, 409. Dewey, J., in delivering the opinion of the court, said : " The transaction, as respecting the acceptance of the deed by the grantee, or a delivery by the grantor, obviously was not closed. Something yet remained to be done before the deed was delivered and accepted by William N. Parker. If it was not so, the deed would have been passed over to William N. Parker at once. But the grantee required the release of dower of Mary Parker. The parties separated without any act having been done equivalent to a delivery of the deed, and nothing further was done to give eflfect to the instrument as a deed. The instru- ment was therefore not operative to pass any title, or lay the foundation for a bill in equity to recover possession of the deed. It was further urged that if the . instrument was not valid as a deed, it might be con- sidered as a memorandum in writing, signed by the party agreeing to convey the real estate therein described, and thus authorize a decree in equity to make a conveyance. But in regard to this, the same difficulty exists. As a memorandum in writing, stipulating to convey the land, to make it operative, it must have been executed and delivered to the plaint- iffs, or some one in their behalf . " See Merriam v. Leonard, 6 Cush. 151. » Jones V. Jones, 6 Conn. Ill ; 16 Am. Dec. 35. And see Souverbye v. Arden, 1 Johns. Oh. 240 ; Bunu v, Winthrop, 1 Johns. Ch.. 329. § 274 DBLIVEEY OF- DEEDS. 240 randum to satisfy the statute of frauds, although the cases in which this was held did not require a decision upon the question.* § 274. Delivery to officer taking acknowledgment, — If a grantor delivers his deed to the officer taking the acknowledg- ment, with unqualified instructions to deliver it to the grantee at any time he may call for it, and the grantee accepts the title to the land conveyed, the delivery to the officer is sufficient to vest the title to the land in the grantee, although the latter for the sake of convenience may allow the officer to retain possession of the deed.^ But it was held in New York, that the delivery of a deed to an attorney, whom the grantee employed to examine the title and for that purpose alone, and who in fact did not assume to accept the deed, but held it for the consideration of his client, cannot be considered an effective delivery, if the client declines afterwards to accept the deed ; and where the grantee had refused his consent to the delivery of the deed under these circumstances, neither he nor those claiming under him will be permitted to cut off the lien of an intermediate judgment by assuming the validity of the deed as so delivered.' In Delaware, however, in a recent case, it is held that a deed is delivered when properly signed, sealed, attested, and acknowledged in the presence of both parties and left with a notary by the grantor, although the grantee never called for it.'* Where a grantee directed the notary public who drew the deed to send it to the county recorder ' Bowles V. 'Woodson, 6 Gratt. 78 ; Parrill ». McKinley, 9 Gratt. 1 ; 58 Am. Deo. 212. In the former case, it was not necessary to pass upon this point, because the court denied relief to the plaintiff upon the ground that he had been guilty of laches. But upon the subject referred to in the text, the court, per Allen, J., said : "The court is of the opinion that the con- tract between the parties for the sale and purchase of the land, in the bill and proceedings mentioned, was sufQciently evidenced by the deed, made and signed by him on the 21st of May, 1827, to relieve the case from the operation of the statute of frauds and perjuries . " And see Nay v. Mog- rain, 24 Kan. 75. ' Black V. Hoyt, 33 Ohio St. 203, citing Mitchell v. Eyan, 3 Ohio St. 377 ; Shirley v. Ayers, 14 Ohio, 307 ; 45 Am. Deo. 546 ; Steele v. Lowry, 4 Ohio, 72 ; 19 Am. Dec. 581 ; Hammell v. Hammell, 19 Ohio, 17 ; Hoflfman V. Mackall, 5 Ohio St. 124 ; 64 Am. Deo. 637. And see Blight v. Sohenck, 10 Pa. St. 245 ; 51 Am. Dec. 478. ' Games v. Piatt, 7 Abb. Pr. N. S. 42. * Jamison v. Craven, 4 Del. Ch. 311. See also 'Walton v. Burton, 107 111. 54 ; Alexander v. Alexander, 71 Ala, 295. 241 DELIVERY OP DEEDS. § 275 for registration, but the officer placed the deed in his safe and for some months forgot to send it, it was held that the deed was delivered on the day on which it was made.^ If a husband executes a deed and leaves it with a notary for execution by the wife, the question of delivery is one of fact, dependent on the husband's intention at the time.^ § 275. Delivery to another for the grantee's use. — It is not essential that the delivery of the deed should be made to the grantee personally. It may be made to some other person for his benefit. "A deed need not necessarily be delivered directly to the grantee himself. A delivery to any other person for him, and to his use, is sufficient. If it have passed beyond the con- trol of the grantor by his own act, accompanied with declarations that it is delivered for the use and benefit of the grantee, it shall have the same effect in the hands of the custodian, though a stranger, as if delivered to the party beneficially entitled."' Where the parties to a deed, conformably to their agreement, prepared, signed, and acknowledged a deed and left it with a justice of the peace for the grantee, Frazer, J., said : " Nothing is plainer in the law than that such facts constitute a good deliv- ery of a deed."* Mr. Justice Sewall upon this point observes : " The delivery is an essential requisite to a deed, and the effect of it is to be from the time when it is delivered as a deed. But it is not essential to the valid delivery of a deed that the grantee be present, and that it be made or accepted by him personally at the time. A writing delivered to a stranger for the use and benefit of the grantee, to have effect after a certain event, or the performance of some condition, may be delivered either as a deed or as an escrow. The distinction, however, seems almost ■ Adams v. Byan, 61 Iowa, 733. ' Gilmore ». Morris, 13 Mo. App. 114. Said Lewis, P. J., speaking for the coiut : " It is generally understood, that wiien a deed or other instrument signed by one person is to remain in fieri, until signed by another, there can be no valid delivery until such other shall have signed also. At the same time, the first signer may, if so disposed, make a complete execution and delivery as to himself, which wUl be binding on him whether the other signature be added or not." ' Woodward, C. J., in Eckman v. Kckman, 55 Pa. St. 269, 275 ; Jones v. Swayze, 42 N. J. L. 279. * Fewell V. Kesler, 30 Ind. 195. I. Deeds.— 16. § 276 DBLIVEEY OP DEEDS. 242 entirely nominal, when we consider the rules of decision which have been resorted to for the purpose of effectuating the inten- tions of the grantor or obligor, in some cases of necessity. If delivered as an escrow, and not in name as a deed, it will never- theless be regarded and construed as a deed from the first delivery, as soon as the event happens, or the condition is per- formed, upon which the effect had been suspended, if this con- struction should be then necessary in furtherance of the lawful intentions of the parties." ^ And where a deed is thus placed, with the assent of the grantor, in the hands of a third person, the delivery is effectual, notwithstanding the fact that the deed may be lost while in the keeping of the third party .^ Where a grantor with the intention of passing the title delivers a deed to the husband of the grantee, the title by such delivery is vested in the grantee.' But where a deed of a wife's land was executed and acknowledged by her and her husband, and left with the husband for the purpose of delivering it to the grantee whenever he might choose to do so, aud the husband retained the deed in his possession until after the death of the wife, and they had, since the execution of the deed, occupied the premises, having built a house thereon, it was held that the deed had never been delivered.* § 276. Assent of the grantee subsequent to the delivery. — When a grantee is ignorant of the execution of a deed which has been delivered to a stranger for the grantee's benefit, but when informed of the fact accepts the conveyance, the deed becomes operative, and where the rights of third persons have not inter- vened, takes effect from the date of the first delivery.* It was > Hatch V. Hatch, 9 Mass. 307 ; 6 Am. Deo. 67. See also Hatch v. Bates, 54 Me. 136 ; Guest v. Beeson, 2 Houst. 246 ; Stephens v. Hubs, 54 Pa. St. 20 ; Turner v. Whidden, 22 Me. 121 ; Cincinnati R. R. Co. v. Iliff, 13 Ohio St. 235 ; Merrills v. Swift, 18 Conn. 257 ; 46 Am. Dec. 315 ; Morrison v. Kelly, 22 lU. 610 ; 74 Am. Deo. 169 ; Peavey v. Tilton, 18 N. H. 151 j 45 Am. Dec. B65. = Henriohsen v. Hodgen, 67 111. 179. But see Logsdon v. Newton, 54 Iowa, 448. ' Parker «. Parker, 56 Iowa, HI. * Benneson v. Aiken, 102 HI. 284 ; 40 Am. Rep. 617. ^ McPherson v. Peatherstone, 37 Wis. 632 ; Stewart v. Weed, 11 Ind. 92 ; Bennett v. Waller, 23 HI. 97; Brown v. Anst«n, 35 Barb. 341 ; Bell v. farmers' Bank, 11 Bush, 34 ; Guard v. Bradley, 7 Ind. 600 ; Marsh v. 243 DELHTEKY OP DEEDS. § 276 said by Mr. Justice Lindsay, who delivered the opinion of the court in a case in Kentucky, that : " A deed delivered to the regis- Austin, 1 Allen, 235. In MoPherson v. Featherstone, supra, Cole, J., stated the facta and the law applicable to them as follows : " The leading facts in regard to the execution and delivery of the deed are in brief these : In 1844, Alexander McPherson, then an unmarried man, and brother of the plaintiff, immigrated to the territory of Wisconsin from Scotland, and pur- chased this and other lands, taking the title to all except the tract in ques- tion in his own name. He negotiated with one Boyoe living near the land for the purchase, the owner, Webb, residing in Jefferson County, New York. Boyce acted as agent for Webb, and received the purchase money when paid. Alexander requested that the deed should be made to the - plaintiff, and it was executed according to this direction or request. Tlie deed was received by Alexander and retained by him until his death, all the while the plaintLQ' not knowing anything about the transaction. Alex- ander subsequently married, and in July, 1853, disclosing before he died the state of the title and giving various reasons why the deed was taken in the name of the plaintiff. Alexanderlefta widow and two children. In September, 1853, the plaintiff was Informed by the executor of the will that the land was conveyed to him, or that his name was put in the deed as grantee, and he seems to have immediately accepted the grant and ratified the acceptance of the deed by Alexander for his benefit. From this time various negotiations followed, conducted on one side by the executor or guardian of the infant children of Alexander, to procure from the plaintiff a quit claim or release to the widow and heirs of his interest in the land ; but from one cause or another all these negotiations failed, and the legal title apparently remained in the plaintiff at the commencement of this action. In considering the question of delivery, we lay out of view all questions as to who was the equitable owner, or whether there was a result- ing trust in favor of Alexander, arising out of the alleged fact that he paid the whole purchase money. This feature of the case will be subsequently noticed. The material inquiry now is, do the above facts show a valid delivery of the deed ? It is very evident that Webb intended to execute a conveyance which would be effectual to convey his estate, and that he parted with all control over the instrument. He undoubtedly intended to make a good delivery of the deed to the grantee, or to some one for his benefit. About this there is no possible room for doubt. He evidently intended the deed should take effect as a conveyance in pre senti, and pass his estate. Alexander McPherson received the instrument knowing that at least it conveyed the legal title to the grantee. He assumed to act for the grantee in accepting the deed, and the plaintiff assented to and ratified his act as soon as he was informed of it. It seems to us that this amounted to a valid delivery of the conveyance. It is not denied that a deed may be delivered to a stranger for the benefit of the grantee, who may be ignorant at the time that it has been executed. If the grantee when informed of the fact assents to and accepts the conveyance, the deed takes effect, providing the rights of third personr have not intervened ; Cooper V, Jackson, 4 Wis. 637 ; Turner v, Whidden, 22 Me. 121 ; Concord Bank v. Belles, lOCush. 276; Lessee of Mitchell v. Ryan, 3 Ohio St, 377; Church V. Gilman, 15 Wend. 656 ; 30 Am. Deo. 82 ; Welch v. Sackett, 12 Wis. 244, § 276 DELIVERY OF DEEDS. 244 tering officer or to an nnauthorized third person, and subsequently accepted by the grantee, will take effect as between the grantor and grantee from the time of the first delivery; and in such case volunteers claiming under and through the grantor, and ordi- nary creditors who have acquired no lien upon nor interest in the estate conveyed, are entitled to no greater consideration than the grantor. Yet, until the grantee is informed of the execution of the deed and does some act equivalent to an acceptance of it, it is manifest that he may refuse to accept it, notwithstanding the fact that by a fiction of law the presumption of an actual acceptance had all the while existed for his benefit as against the grantor, his heirs, devisees, and ordinary creditors. But this fiction will not be allowed to prevail to the prejudice of persons who have acquired title to, an interest in, or a lien upon the prop- erty before the date of the actual acceptance. As in the case of an escrow, whenever it becomes necessary for the purposes of justice that the true time of the acceptance of a deed so delivered shall be ascertained, the legal fiction will be disregarded, and the intervening claimant or lien-holder allowed to show the actual facts of the transaction." ' Hence, it has been held that where a deed is delivered without the grantee's knowledge to a third person, not authorized to receive it, the rights of the grantor's creditors attaching subsequently to such delivery, and prior to the manifestation of the grantee's assent, are not affected, notwith- standing the beneficial nature of the deed to the grantee. The And a deliyery may be made good by a snbsequent assent, thoagh origi- nally invalid for want of It, upon the principle omnia rati, kabitio mandato aequiparatur ; 3 Wash. Real Prop. eh. 4, g 2, p. 27. Here there was an absolute delivery of the deed by the grantor with the intent to pass the estate ; and we must presume, on the absence of all evidence to rebut that presumption, that Alexander received the deed for the use and benefit of his brother, whose name by his direction had been placed in the instrument as grantee. And when the grantee upon being informed of the transaction, ratified the delivery and assented to the grant, the deed took effect for the purposes intended. Indeed, many of the cases hold from the beneficial nature of the transaction, that an acceptance by the grantee wUl be presumed in the absence of proof to the contrary ; but here there was an unequivocal assent and acceptance. This certainly amounted to a good delivery and vested the title in the plaintiff." 1 InBellu.Farmers'Bank, llBush,S4, 39. AndseeGroodsellv. Stinson, 7 Blaokf. 439; Kennard v. Adams, 11 Mon. B. 102; Ensworth v. King, 60 Mo. 477. 245 DEUVTEEY OF DEEDS. § 277 assent of the grantee under these circumstances is not considered as relating back to the time of the delivery.* § 277. Where there are several grantors. — Where there are several joint owners who intend to convey the land held by them by a deed to be executed by all, and all but one of them join in executing a deed, which is delivered to a third person to obtain the signature of the other owner and then to deliver it to the grantee, the deed is not delivered as to those who have signed unless the other grantor also execute it.* Thus, by the terms of a deed of partition, embracing a number of tenants in common as parties, each party conveyed and released his undivided interest in the whole property in consideration of receiving a conveyance of the undivided interests of the others - Hibberd v. Smith, 67 Cal. 547 ; 3 West C. Rep. 446. ' Overman v. Brown, 17 Iowa, 485. In that case, John M. Overman, Wm. P. Overman, D. C. Overman, and Edwin Brown, the plaintifis, held land in partnership, and being desirous that the county seat should be Ideated in their village, agreed, as an inducement to the commissioners to select that place for the purpose, to donate fifty lots to the county. The three Overmans executed a deed for these fifty lots which contained this reservation : " That in the event the county seat should, at any time, be removed from Cedar Falls, then the title to all of the aforesaid lots which shall, at the time of such removal, remaiu unsold by the county, shall revert back to us, with all Improvements thereon." The deed was drawn by Dr. Brewer, one of the commissioners. The Overmans made objection to the deed on the ground that it did not state all the terms upon which they were to make the donation, but signed and acknowledged the deed and left it with the notary, who took the acknowledgment for the purpose of having Brown, who was then absent, execute and acknowledge it. The notary presented the deed to Brown on his return, and he signed it and then said he desired to examine it and see what he had signed before he made the delivery. He read the deed and at once said ho was dissatisfied with the condition contained in it and refused to deliver it to the notary, and the deed ever since that time had been in the plaintiff 's possession. The court, per Dillon, J., said: "The fair weight of evidence is to the effect that the execution of the deed by the Overmans was with the express understanding that the notary should retain it to obtain Brown's signa- ture, and was not authorized to deliver it to the commissioners or to the county, and that it was never so delivered, either by the Overmans or by the notary. Without Brown's signature the instrument was immature not complete — and it was intended by the plaintiffs to be delivered when it was made perfect, and not before. And, in general, an instrument will not be regarded as delivered, when anything remains to be done by the parties by whom the delivery is to be made : Parker v. Parker, 1 Gray 409." See also Batchelor v. Brereton, 112 U. S. 396. § 278 DELIVEEY OP DEEDS. 246 in a specified portion ; most of the parties, but not all, signed this deed, but it was held that as to those who did sign, it could not be considered a valid deed, and they still retained their interests in the land as tenants in commoni "In the absence of any other circumstance than what appears on the face of the instrument," says the court, "we think it cannot be held that this agreement was executed by the plaintiff's grantors and delivered to take effect like a deed-poll, upon their affixing their own signatures, but that it was an inchoate instrument, only to become effective when executed by all the persons named as parties. Certain cases are cited by the plaintiff, in which instru- ments have been held operative when not executed by all the parties. Without entering into a separate examination of each case, it will suffice to say that they are cases in which, from the terms of the instrument, or from the nature of the subject- matter of the contract, it appeared that it was the intention of the parties who signed to be bound, without reference to an exe- cution by all the parties, or where by acting under it with a knowledge that it had been fully executed, the parties had become estopped from denying its obligation upon them. Con- sidered, therefore, as a conveyance, we think the agreement in question was void as against the defendant's grantors, and gave no title to the grantors of the plaintiff."^ Where the vendee has fully paid the consideration of a deed executed by. tenants in common and one of the tenants in common dies, the delivery of the deed after hia death by the other tenant in common, or by some person who has received it for that purpose, is a valid delivery.^ § 278, Constructive delivsry. — The grants may retain pos- session of the deed and still it may be constructively delivered. Thus, an owner of land executed a deed of it to a firm of which he was a member, but kept the deed in his possassion. His retention of the deed was considered to be a constructive delivery to the firm.' ' Tewksbury v. O'Counell, 21 Cal. 60, 69, per Norton, J. See Tustin v. Faught, 23 Cal. 237 ; Colton v. Seavey, 22 Cal. 496 ; Townsend v. Corning, 28 "Wend. 435 ; Livingston v. Rogers, 1 Caines, 584. ' Holt's Appeal, 98 Pa. St. 257. • Henry v. Anderson, 77 Ind. 361. 247 DELIVERY OF DEEDS. § 279 § 279. DelivBry after death of the grantor. — The general rule, undoubtedly, is that where a deed remains in the possession of the grantor to be delivered and take effect after his death, the deed is void for want of a delivery during his lifetime.* There are some qualifications to this general rule, as where the delivery of the deed is complete during the grantor's life, but the time it is to take effect is postponed till the grantor's death, and other modifications which shall be presently noticed. In support of the general proposition, reference may be made to a case where a father executed and acknowledged a deed for a piece of land upon which he resided, making his children grantees; he did Hot record or deliver the deed, stating as one reason for this action, that if he retained possession of the deed, he might sell the land for the minors, and this he could not do if he parted with the possession of the deed, and they being minors would also be unable to sell. The deed having remained in the father's possession until his death, was held invalid for ^rant of delivery.* > Ooodlett V. Kelly, 74 Ala. 213 ; Jackson ». Ijeek, 12 Wend. 107 ; Fay v. Kichardson, 7 Pick. 91 ; Wiggins v. Lnsk, 12 111. 132; Miller o. Physick, 24 Ark. 244 ; Herbert v. Herbert, Breese, 354 ; 12 Am. Deo. 192 ; Eisher v. Hall, 41 N. Y. 423; Ball v. Foreman, 37 Ohio St. 139; Jones v. Houston, 5 Jones (N. C.) 302 ; Martin v. Bamsey, 5 Humph. 349 ; Jones v. Loveless, 99 Ind. 317 ; MUler v. Iiullman, 81 Mo. 311. See McLaughlin v. McMan- igle, 63 Tex. 553. » Byars v. Spencer, 101 HI. 429 ; 40 Am. Rep. 212. Mr. Justice Walker delivered the opinion of the court, and said: "The first question we propose to consider is, whether the deed executed by Thomas Whitson ever became operative to pass the title to the grantees named in the deed — whether there was such a delivery as passed the title to the land from him to them. On the one side it is claimed there was, and on the other it is insisted there was no delivery. The question as to what acts are neces- sary to constitute a sufficient delivery to render a deed operative, and to pass the title to the land, has been the subject of much discussion in this court. It is held that a delivery is essential to render a deed operative, and it does not take effect until it is delivered : Skinner v. Baker, 79 lU. 496 ; Blake v. Fash, 41 HI. 302. It may be delivered to the grantee, or to his agent. Nor is any particular form or ceremony necessary to constitute a sufficient delivery. It may be by acts or words, or both, or by one with- out the other ; but what is said or done must clearly manifest the intention of the grantor, and of the grantee, that the deed shall at once become operative, to pass the title to the land conveyed, and that the grantor loses all control over it : Bryan v. Wash, 2 Gilm. 557. It has been held that where a deed is executed and delivered to even a stranger, to be delivered to the grantee, without condition, it wiU be a sufficient delivery to pass the title : Rawson v. Fox, 65 HI. 200. But the execution of a deed, § 279 DELTVTEKY OF DEEDS. 248 " For we consider it indispensable to the delivery of a deed, that it shall pass beyond the control or dominion of the grantor; otherwise it cannot come rightfully within the power and control of the grantee. Their interests are adverse, and both cannot lawfully have control over the deed at the same time. The grantee does not necessarily acquire the right the moment it leaves the possession and control of the grantor, but he cannot have it before. Neither can the grantee transfer his property after his decease by deed. The statute of wills or of descent, then govern all property not disposed of during the lifetime of the owner." ^ "Where a grantor caused a deed to be prepared, and having signed, sealed, and acknowledged it, inquired whether the deed would give the land to his daughter, in whose favor it was made, and was advised that it would, but retained the land in his possession until his death, it was held that the deed was inoper- ative for the want of deliver}'.* Nor unless there has been a and having It placed on record, without the knowledge of the grantee, is not a delivery : Kingsbury «. Burnside, 58 HI. 310 ; Krebaum v. Cordell, 63 HI. 23. But in such a case the subsequent assent will be sufficient : Dale V. Lincoln, 62 111. 22. In Gunnell v. Oookerill, 79 111. 79, it was held that any act which clearly manifests an intention of the grantor, and the person to whom it is delivered, that the deed shall presently take effect and become operative, and the grantor loses all control over it, is a suf- ficient delivery. In all cases the intention of the grantor to part with its possession and control enters largely into the question of delivery. When the facts show that the grantor did not intend to lose control of the deed, and still continues to have power over the title without the consent of the grantee, there is not such a delivery as the law requires to render it a deed, and it cannot pass title. In this case Thomas Whitson, so far from manifesting such an intention, on the contrary retained the deed and declined to have it recorded, on the express ground that he would thereby place the title beyond his power to control it. He also expressed "the intention, after he had made and acloiowledged it, to sell the land if he could do so at six thousand dollars, and in pursuance of that intention he did ofl'er to seU it. Instead of his doing or saying anything Indicating an intention to deliver the deed, his declarations and acts clearly prove that he did not intend to deliver the deed, or place the title in the grantees. Under none of the cases referred to can it be held that there was a delivery, but they all hold that there could not, under the facts of this case, have been a delivery, and there being no delivery the complainants took no title under the deed." See also Beed v. Douthet, 62 ID. 348 ■ Stenson v. Anderson, 96 111. 373. 1 Brown v. Brown, 66 Me. 316, 321, per Virgin, J. See also Huey v. Huey, 65 Mo. 689 ; Shurtlefif v. Francis, 118 Mass. 154 j Patterson v. Snell' 67 Me. 559 ; Jones v. Jones, 6 Conn. Ill ; 16 Am. Dec. 35. ' Stilwell V. Hubbard, 20 Wend. 44. Say the court, per Bronson J. : " The grantor kept the deed himself. He did not intend it should be an 249 DELIVEEY OF DEEDS. S 280 prior delivery, is a delivery through the mail by a third person after the grantor's death operative.* An owner of land and his wife made a deed of it to their daughter, who was then four months old, and properly acknowledged the execution of the conveyance. When the acknowledgment was taken, the father said, " she is early in acquiring property," and handed the deed to\\'ard her, without putting it into her hands. He did not have the deed recorded, but kept it among his papers, where it was found after his death. Prior to his death he conveyed the same premises to a trustee for the use of the child for life, with a remainder over. The court considered it to be clear when a 'claim was made to the land through the deed, that the deed was not intended as a completed transaction, and there had been no valid delivery of it.* So there was considered to be no delivery of a deed where the grantor having signed, sealed, and acknowledged it, enclosed in it a slip on which was written a statement that he had deposited the deed for safe-keeping, direct- ing that it be given to his grandchildren, and placed it in a bank with his other documents, where on his death four years subsequently it was found.* § 280. Absolute deUveiy to a third person to hold until the grantor's deatL — Where a grantor executes a deed and delivers it to a third person to hold until the death of the grantor, the latter parting with all dominion over it and reserving no right to recall the deed or alter its provisions, it seems to be settled by the weight of authority that the delivery is effectual, and the grantee on the death of the grantor succeeds to the title. A delivery of this kind may be considered in effect an escrow, but differs from that in the fact that a delivery in escrow is dependent upon the performance of some event, and not upon the lapse of time. In a case in Massachusetts, where a delivery of this char- operativo'conveyance so long as he lived ; and if it was his settled purpose that Altie should have the land after his death, he has not taken the proper legal means for carr3nng that intention into effect. We cannot uphold this deed without overturning well-settled principles." See also Jackson v. Phipps, 12 Johns. 418. > Otto V. Doty, 61 Iowa. 23. ' Ireland v. Geiaghty, 15 Fed. Bep. 35. ' Davis V. WiUiams, 57 Miss. 843. And see Goodlett v. KeUy , 74 Ala. 213. § 280 DELIVERY OF DEEDS. 250 acter was held good, Chief Justice Shaw, in delivering the opinion of the court, remarked : " Whether, when a deed is exe- cuted and not immediately delivered to the grantee, but handed to a stranger to be delivered to the grantee at a future time, it is to be considered as the deed of the grantor presently, or as an escrow, is often matter of some doubt, and it will generally depend rather on the words used and the purposes expressed, than upon the name which the parties give to the instrument. Where the future delivery is to depend upon the payment of money or the performance of some other condition, it will be deemed an escrow. Where it is merely to await the lapse of time or the happening of some contingency and not the perform- ance of any condition, it will be deemed the grantor's deed presently. Still it will not take effect as a deed until the second delivery ; but when thus delivered it will take effect by relation from the first delivery." * A person executed a deed in favor of his married daughter, and having acknowledged the instrument, placed it in the hands of a third party, with directions to have it recorded and to hold it without delivery until the grantor's death. The daughter having died, the grantor filed a bill to have the deed set aside, but the court decided that the deed could not be set aside in the failure of proof of any mistake or error in its execution, and that the original intention of the grantor had to be effectuated; while he was entitled to the use of the land in the same manner as he would have been had he reserved a life estate, yet upon his death the deed would take effect, and by relation back would vest a title in the grantee to which her heirs at law would succeed.* I Foster v, Mansfield, 8 Met. 412, 415. See also Latham v. Udell, S8 Mich. 238; Wallace v. Harris, 32 Mich. 380; Wheelwright v. Wheel- wright, 2 Mass. 447 ; 3 Am. Dec. 66 ; Gilmore v. Whitesides, 31 Am. Dec. 563 ; Stephens v. Rinehart, 72 Pa. St. 434 ; Hatch v. Hatch, 9 Mass. 807 ; 6 Am. Dec. 66 ; Mather v. Corliss, 103 Mass. 568 ; Carter v. Mills, 30 Mo. 439 ; Cooper V. Jackson, 4 Wis. 551 ; Thatcher v. St. Andrew's Church, 37 Wis. 264 ; Hathaway v. Payne, 34 N. Y. 92 ; Church v. Gilman, 15 Wend. 661 ; SO Am. Dec. 82. - Stone V. Duvall, 77 111. 475. Says Mr. Justice Walker, delivering the opinion of the court: "To cancel the deed would be to permit Duvall to change his mind, and to defeat his act deliberately done after consultation and advice taken, and done in accordance with his previously expressed purpose to convey to Mrs. Stone. It would be dearly wrong to abrogate 251 DELIVEEY OP DEEDS. § 281 § 281. Instances. — A grantor executed deeds in which certain of his children were named as grantees and delivered them to a third person, directing the latter, in case he, the grantor, should die without making a will, to deliver the deeds to the children named therein as grantees. Before a will was prepared the grantor died, and the person in whose custody the deeds were placed delivered them to the children. It was decided that the deeds were valid and took effect from the first delivery.* Where a father executed a deed in favor of his son, and placed the deed in the hands of a third person with instructions to deliver it after the grantor's death, but not before that time unless both parties called for it, and the deed on the father's death having been delivered conformably to his instructions, it was held to be valid.* Further illustrating the principle that a delivery of this kind is good, is a case where a grantor signed and sealed a deed with his grandson as grantee, and delivered it to the person who drew the deed, instructing him to retain it during the grantor's life, and in the event of his death to deliver it to some person to keep for the grantee. On the death of the grantor the custodian of the deed went before an officer for the purpose of proving ita execution as a subscribing witness, and left it with such offixier for the grantee. The court held that the deed came into the hands of the grantee in the mode assigned by the grantor and operated as an effectual transfer of title.' So where a person iu consideration of love and affection executed a deed to his chil- dren, and placed it in the hands of the husband of one of the children, with instructions to give it to some one to keep until the grantor's death and then to have it recorded, and the husband of the child in accordance with these instructions gave the deed to the grantor's wife, and after the death of the grantor it was recorded, the delivery was held to have been valid, notwithstand- ing the fact that the grantor had a few days aft^r the execution of the deed expressed himself as dissatisfied with the transaction, the deed unless it clearly appeared that an estate less than a fee, and such an estate as terminated with her life or previous thereto, was intended to be conveyed, but was not by reason of a mistake." > Boggles V. Lawson, 13 Johns. 285 ; 7 Am. Deo. 376, « Tooley v. Dibble, 2 Hill, 641. > Ooodell V. Pierce, 2 Hill, 659. § 282 DELIVERY OF DEEDS. 252 and had declared that there was no delivery of the deed.* When a deed is delivered to a third person to be delivered to the grantee on the grantor's death, the title passes as of the time of the first delivery.^ § 282. DeUvBiy with a right to recall the deed. — While there is some conflict of opinion upon the question, it is ruled by the weight of authority, that where a deed is deposited with a third person to be delivered to the grantee upon the death of the grantor, if it be not previously recalled, the grantor reserv- ing the right to recall the deed at any time, the delivery is not effectual.' "So long as a deed," says Eastman, J., "is within the control and subject to the authority of the grantor there is no delivery. And whether in the hands of a third person or in the desk of the grantor, is immaterial, since in either case he can destroy it at his pleasure. To make the delivery good and effectual, the power of dominion over the deed must be parted with. Until then, the instrument passes nothing; it is merely ambulatory and gives no title. It is nothing more than a will defectively executed, and is void under the statute There must be a time when the grantor parts with his dominion over the deed, else it can never have been delivered. So long as it is in the hands of a depositary, subject to be recalled by the grantor at any time, the grantee has no right to it and can acquire none ; and if the grantor dies without parting with his control over the deed, it has not been delivered during his life, and after his decease no one can have the power to deliver it. The depositary must have had such a dominion over the deed during the life- time of the grantor as the latter could not interfere with, in order to have any control over it after his decease." * Where a ^ Squires v. Summers, 85 Ind. 252. ' Ball V. Foreman, 37 Ohio St. 132. ' Prutsraan v. Baker, 30 Wis. 644; Stinson v. Anderson, 96 lU. 373; Brown v. Brown, 66 Me. 316 ; Cook v. Brown, 34 N. H. 460 ; BaUey v. Bailey, 7 Jones (N. C.) 44; Williams v. Schatz, 42 Ohio St. 47. * In Cook V. Brown, 34 N. H. 460, 475, 476. In this case, the earlier case of Shed v. Shed, 3 N. H. 432, where it was held under similar circum- stances that a delivery was effectuated, was overruled. The decision in Cook V. Brown has been re-affirmed in Johnson v. Farley, 45 N. H. 505, 510 ; Bank v. Webster, 44 N. H. 264 ; Baker v. Haskell, 47 N. H. 479. In the last case, Smith, J., says : " Since the decision in Cook v. Brown, 34 N. H. 253 DELIVERY OP DEEDS. § 282 deed was placed in the hands of a third person with instructions to have it recorded, and to deliver it to the grantee in case of the grantor's death, but to retain it subject to the order of the grantor until his death, and the depositary having held the deed until the death of the grantor, then recorded it and transferred it to the grantee, it was held in accordance with these views that the deed never took effect from the absence of a valid delivery during the grantor's lifetime.^ A mother, who 460, overruling Shed v. Shed, 3 N. H. 432, it must be regarded as the estab- lished doctrine of this State, that placing a deed in the hands of a third person is not a good delivery, unless the grantor parts with his dominion over the deed. If the grantor continues till his death to have the right to recall the deed from the depositary, there is no delivery." In that case the following is given as the testimony of the witness as to the delivery of the deed : " When he first introduced the subject of this deed, he said that his son, the defendant, who had recently got married, had said to him that he felt as if he ought to malie some arrangement of his property, so that he might Juiow what he was to have. He said, he is my only son, and bears my name, and I always meant to do well by him, but I don't know how he will use the property. Here is a writing in his favor. It is for him, but I don't want him to have it in his hands just now ; I want you to take it and keep it in your possession till a proper time to produce it. If I keep it in my hands, I don't know who wUl get hold of it. That is pretty much all he said on that subject. He made a few remarks in respect to three of his children. He said he had assisted them. He spoke in particular of Mr. Thompson. He said he had given him considerable, but it was of no use, and that lie might say about the same of Nutting and Jackson. Thompson, Nutting, and Jackson had married three of his daughters. I carried the writing home and put it in my desk. I did not know what the contents were and he did not tell me. I kept it till a short time after his death. I kept the paper till Mr. Haskell died. When I heard of his death I thought of this paper. I then enclosed it in an envelope and sent it to Jas. Haskell, Jr., the defendant." • Prutsman v. Baker, 30 Wis. 644. See also Maynard v. Maynard, 10 Mass. 456 ; 6 Am. Dec. 146 ; Jackson v. Phipps, 12 Johns. 421 ; Jackson v. Dunlap, 1 Johns. Cas. 114 ; 1 Am. Dec. 100 j Baldwin v. Maultsby, 5 Ired. 505 ; Hale v. Joslin, 134 Mass. 310. In Prutsman v. Baker, supra, Chief Justice Dixon, in delivering the opinion of the court, said: "To constitute delivery good for any purpose, the grantor must divest himself of all power and dominion over the deed. To do this he must part with the possession of the deed and all right and authority to control it, either finally and fofever, as where it is given over to the grantee himself or to some person for him, which is called an absolute delivery ; or otherwise he must part with ail present or temporary right of possession and control, until the happening of some future event, or the performance of some future condition, upon the happening or not, or performance, or non-per- formance of which his right of possession may return and his dominion and power over the deed be restored, in which case the delivery is said to § 282 DELIVEEY OP DEEDS. 254 at the time was extremely ill and expected to die, signed and acknowledged two deeds in favor of her daughters and delivered them to her physician, with directions to deliver the deeds after her death, and in doing so said : " If I recover from my present sickness, I intend to retain the right to control the property myself as long as I live." Having recovered, she subsequently received back the deeds and lived for a period of nearly five years afterwards. One of the grantees obtained possession of the deed in her favor after the death of the grantor, but it was held that the deed was valueless for the want of a delivery.* be continj!;eiit or conditional. An essential characteristic and indispensable feature of every deliveiy, whether absolute or conditional, is that there must be a parting with the possession, and of the power and control over the deed by the grantor for the benefit of the grantee, at the time of delivery." It has been held that a court of equity has power to set aside a deed made under a mutual mistal^e of fact, under the erroneous impres- sion of the grantor's speedy death and the mistaken belief that the deed could be revoked by the grantor any time during his life : Houghton v. Houghton, 34 Hun, 212. And see Meaoh v. Meach, 24 Vfc. 591 ; Gamsey v. Mundy, 24 N. J. Eq. (9 Greene, C. E.) 243, 246 ; Forshaw v. Welsby, 30 Beav. 243 ; Wallaston v. Tribe, Law R. 9 Eq. 44. ' Jacobs «. Alexander, 19 Barb. 243. Marvin, P. J., referring to a number of cases where deeds had been delivered to take effect upon the grantor's death, says: "It will be noticed that la all the above cases no control was retained by the grantor over the delivery of the deed to the grantee. An event or condition was specified upon which the delivery was to depend, and when that event happened, or the condition was per- formed, the deed was delivered. And I think the authorities show that when the event specified is the death of the grantor, and the deed is delivered after the death, the grantee is deemed to take title by relation at the time the deed was delivered by the grantor to the third person. In the case we are considering the delivery to Dr. Thomas was qualified. The grantor was aged and very ill, and expected to die of her then sick- ness. Tinder these circumstances she caused the deeds to be prepared, signed them, acknowledged them, and handed them to Thomas, instruct- ing him to deliver them to the grantees respectively, after her death, adding, at the same time, ' If I recover from my present sickness, I intend to retain the right to control the property myself as long as I live.' She recovered and lived nearly five years, and soon after her recovery she received back the deeds from Dr. Thomas, and never delivered the deed to Mary Anguish ; but Mary obtained possession of it after her death. It seems to me that this case is clearly distinguishable in principle from the cases cited by the plaintiff's counsel. When she authorized Thomas to deliver the deeds after her death to the grantees, she had reference to her death from her then sickness, as is clear from her avowed intent, in case she should recover, to retain the right to control the property. At anv rate she retained the right, in case she recovered, to control the property as long as she lived, and this involved the right to recall the deeds and 255 DELIVERY OF DEEDS. § 283 A grantor had duly executed and acknowledged a deed, but with the grantee's consent was to retain it until the payment of the consideration. Before payment was made, the grantor died, leaving a will in which he made a devise of the same land described in the deed. The deed was found among his papers, and it was held that the deed had never actually been delivered to the grantee nor accepted by him, and hence did not transfer the land.* A father after executing a deed in favor of his son directed the scrivener to have it recorded and then to retain it until it should be called for. The son never knew of these facts, and after his death, the father reclaimed and canceled the deed. The deed, it was held, had never been delivered, and therefore the father was adjudged to be entitled to the premises as against the heirs of the son.^ § 283. This rule not universally adopted. — While it seems to accord with legal reasoning that a deed should not become effective where a grantor reserves the right to recall the same prior to his death, yet this view has not been universally adopted. In an early case in Connecticut, a grantor who had signed, sealed, and acknowledged two deeds took them up, in the absence of the grantee, and delivered them to a third person, saying: "Take these deeds and keep them; if I never call for them, deliver over one to Pamela and the other to Noble, after my death ; if I call for them, deliver them to me." " The grantor never called for the deeds, and on his death, a short time after their execution, they were delivered to the gnmtees, in accordance with the grantor's directions. The court held that the deeds were valid, and took effect from the first delivery.* A decision make any other disposition of the property by will or otherwise, and she exercised this right by recalling the deeds, and talcing them into her own possession and nnder her own control. The grantee, Mary Anguish, had no vested interest in and no control over the deed." ' Jackson v. Dunlap, 1 Johns. Cas. 114 ; 1 Am. Dec. 100. ' Maynard v. Maynard, 10 Mass. 456 ; 6 Am. Dec. 146. And see Stinson V. Anderson, 96 111. 373. ' Belden ti. Carter 4 Day, 66 j 4 Am. Deo. 185. Say the court: "The grantor delivered the deed to Wright, with a reservation of a power to countermand it ; but this makes no difference, for it was in the nature of a testamentary disposition of real estate, and was revocable by the grantor during his life, without an express reservation of that power. The case, then, stands upon the same footing as if there had been no reservation of § 284 ■ DEIilVEKY OF DEEDS. 256 of a similar character was also made in Vermont, in a case where a debtor, who was largely indebted and insolvent, executed and delivered to a third person, for the purpose of preferring certain of his bona fide creditors, a deed which such third person was to hold in trust, to be delivered to the grantees at the decease of the grantor, unless he should otherwise direct during his lifetime.* g 284. Saving expenses of administration. — Whether a deed passes the title or not must be determined by its legal effect. If it has been executed and delivered its effect is determined by its language. When so executed and delivered its legal effect as to the passing of the title is not altered, by the fact that one object of the transaction was to save the expense and trouble of admin- istration upon the grantor's estate after his death. And where a power to countermand the deed. It was a delivery of a writing as a deed to the use of the grantee, to take effect at the death of the grantor, deposited in the hands of a third person to hold till that event happened, and then to deliver it to the grantee. The legal operation of this delivery is, that it became the deed of the grantor presently ; that Wright held it as a trustee for the use of the grantee ; that the title became consummate in the grantee by the death of the grantor ; and that the deed took effect, by relation, from the time of the first deliveiy." This decision has been recognized as an authority in several later cases in the same court: Stewart v. Stewart, 5 Conn. 320 ; Woodward v. Camp, 22 Conn. 461 ; Jones V. Jones, 6 Conn. 113 ; 18 Am. Dec. 327 ; Alsop v. Swathel, 7 Conn. 503 ; Merrills v. Swift, 18 Conn. 262 ; 46 Am. Dec. 315. • Morse v. Slason, 13 Vt. 296. The court say: "It has been nrged, too, and with no little plausibility, that one involved in debt to a large amount and largely insolvent, ought not to be allowed to prefer Creditors by a deed, or other instrument, which is under his control during his whole life, and only takes effect at the very moment when a lien upon his property attaches in favor of 'all his creditors.' But the numerous cases decided upon this subject, many of which have been referred to in the argument, all show, that where a deed is delivered in trust for the grantee, to take effect at the grantor's death, unless he shall otherwise direct in his lifetime, and he dies without giv- ing any further direction, the deed does, at the death of the grantor, take effect as his deed, from tTae first delivery. Prom this view of the case there does not seem any very valid objection to this mode of preferring creditors, which wiU justify the court in distinguishing it from the ordi- nary case of preferring creditors. It is always an invidious, and, some- times, an unjust distinction, but one which the law of this State does not prohibit or control. And we think this case is not, in principle, distin- guishable from the ordinary cases. There is nothing hero indicating any want of good faith, or any attempt at disguise or dissimulation." And see Wall V. Wall, 30 Miss. 91 ; 64 Am. Deo. 147. 257 DELIVEEY OP DEEDS. § 285 a grantor executed a deed for this purpose to his wife, the fact that she placed the deed after delivery where her husband equally with herself could have access to it, does not change its legal effect as a conveyance.* A deed which conveys an estate to a person for life, and on the latter's death, to her chil- dren, but reserving a life estate to the grantor, is valid and operative.^ § 285. Acceptance by the grantee. — Though a grantor may execute a deed and tender it to the grantee, he still retains the title unless the grantee accept the deed.' If the rights of a creditor of the grantor intervene before an acceptance by the grantee, they wUl be protected against the claims of the grantee or any one deriving title under him.* " It is essential to the operative force and validity of a deed if not actually delivered to the grantee, or his agent authorized to receive it, to prove notice to him of its execution, and such additional circumstances as will afford a reasonable presumption of his acceptance of it. The presumption that a party will accept a deed because it is beneficial to him, it is said will never be carried so far as to con- sider him as having accepted it."* An acceptance may in some cases, to be noticed in a subsequent section, be presumed, and this presumption may arise from the retention of the deed by the grantee. But where an agreement is made that a grantor is to convey the land to the purchaser by a deed containing certain special provisions, and a deed is made and handed to the pur- chaser, which conveys the land to another person, the purchaser taking it without an examination of its contents, understanding and believing that it is a deed which vests the title in him, and retains it in such belief antU he ascertains the truth, may return the deed to the vendor and require a conveyance in accordance with the agreement. Acceptance by the grantee beii^ essential, 1 Le Sanlnier v. Ix>ew, 53 Wis. 207. ' Savage v. Lee, 90 K. C. 320 ; 47 Am. Bep. 523. ' Cooper D. Jackson, 4 Wis. 537; Comer B.Bald'win, 16 Miun. 172; Wood- bury V, Fisher, 20 Ind. 389. And see Jefferson Connty Bnilding Assoc, v. HeU, 81 Ky. 513. * Commonw. v. Jackson, 10 Bnsh, 418. 5 Tuttle V. Turner, 28 Tex. 759, 773, per Coke, J. See also 4 Kent Com. 454 ; Hulick v. Soovii; 4 Gilm. 159. I. Deeds.— 17. § 285 DELIVERY OP DEEDS. 258 no valid and effectual delivery has been made in such a case.^ There is a sufficient delivery of a deed, and it passes title if it is left unconditionally with a third person for the use of a lunatic grantee who is not under guardianship, and is received by the grantee under circumstances that indicated an acceptance.* Evi- dence of the acts and declarations of the grantee respecting the deed while it was in his actual possession, are admissible for 1 Fonda v. Sage, 46 Barb. 109. See also Foster v. Beardsley Scythe Co, 47 Barb. 505, 519 ; Bell v. Farmers' Bank, H Bush, 34 ; Wilsey v. Dennis, 44 Barb. 359; Young v. Gnilbeau, 3 Wall. 636, 641 j Jackson v. Phipps, 12 Johns. 422 ; Townsen v. TickeU, 3 Barn. & Adol. 36. In Fonda u. Sage, supra, Johnson, J., delivering the opinion of the court, said : " To consti- tute a delivery of a deed so that it shall become effectual to transfer title to real estate from one to another, there must be an acceptance by the person to whom it is made. Acceptance by the grantee is an essential part of a delivery in law. When a deed or other instrument is handed over by the maker to the other party, and retained by such other party, and nothing further is said, the law presumes that the instrument is made according to the agreement, and that the party to whom it is thus handed over accepts it as a delivery in fulfillment of the agreement between them. But it is not every mere handing over, and retention for a greater or less period of time, which will constitute a full and effectual delivery of an instrument. If it is taken by the grantee or other party merely for the purpose of examination, to see whether it is in accordance with the agreement, it is no delivery, unless the party concludes to retain it after such examination. And so I apprehend where a party makes a purchase of land and the agreement is that the vendor is to convey it to the purchaser, by a deed with some special provision in it, and a deed is made and handed over to such purchaser, which conveys the land to another person, and the pur- chaser receives it without any examination of its contents, understanding and believing that it is a deed made to b^ and which vests the title in him, and retains it in that belief until ^he discovers that it is not such an instrument as he was to have, and does not give him the land which he had purchased and paid for, he may return it to the vendor and require one to be made in accordance with the agreement. Ko valid and effectual delivery has been made in such case. There has been no meeting of minds which is as essential in this as in any other part of the agreement. Upon tlie discovery of the mistake or error within a reasonable time and before any other rights have intervened, founded upon the instrument as made and thus retained, the party receiving it may refuse to retain it, and may return itanddemandoneinaccordance with the agreement. The rejection in such a case, where the mistake or misapprehension under which the instrument had been received was genuine, and the delay in the discovery of the mistake or error excusable, would relate back to the original deliv- ery or handing over of the instrument, and constitute a refusal to accept it at that time. There being no acceptance no title has passed, and a new instrument conveying according to the agreement would transfer the original title of the vendor." ' Campbell v. Kuhn, 45 Mich. 513 : 40 Am. Rep. 479, 259 DELIVEEY OP DEEDS. § 286 the purpose of determining whether the deed was accepted or not.' § 286. How far acceptance may be presumed in favor of infants. — The rule with reference to infants and persons under a disability, is that they are presumed to accept conveyances made for their benefit. "The principle being admitted," says Mr. Justice Breese, "that an infant of tender years cau take by deed, not having at the same time discretion to accept or refuse, and dying before that period arrives, and the grantor having per- formed every act he could perform to pass the title to the infant, and it b^ing for his benefit, it is fair to presume he assented to it. The grantor in this case must be regarded as to his sub- sequent possession of the deed, as the mere custodian or trustee for his son. The law presumes much more in favor of the delivery of deeds in the case of voluntary settlements, especially when made to infants, than it does between parties of full age in ordinary cases of bargain and sale."^ An absolute deed from a father to a minor child, beneficial to the lattec, is when voluntarily delivered by the father sufficiently delivered.' A person for the purpose of preventing the squandering of his property by his wife, executed a deed in favor of his children, and had the instmment recorded. The wife afterwards obtained a divorce, and thereupon the grantor filed a bill to set aside the deed made to the children, allying as grounds for relief that there had been no delivery to the grantees, and that the motives which led to the execution of the deeds no longer existed. But ' Kidder v. Stevens, 60 Cal. 414. If the grantee accept a deed-poll in which certain duties are reserved expressly to be performed by him, assumpsit will lie for their non-performance: Glade v. Schmidt, 15 Bradw. (111.) 51. ' In Masterton v. Cheek, 23 HI. 72, 77. See also Byington v. Moore, 62 Iowa, 470. In Bryan v. Wash, 2 Gilm. page 568, it is said : " It must be remembered that the law presumes much more in favor of the delivery of deeds in case of voluntary settlements, especially when made to infants, than it does in ordinary cases of bargain and ^ale. The same degree of formality is never required, on account of the great degree of confidence which the parties are presumed to have in each other, and the liability of the grantee, frequently, to take care of his own interests. The presumption of law is in favor of the delivery, and the burden of proof is on the grantor to show clearly that there was no delivery." ' Palmer v. Palmer, 62 Iowa, 204. § 287 DELIVEEY OP DEEDS. 260 it was held that as the grantor intended to divest himself of the title so as to place it beyond the reach of his wife, which result would not have been accomplished unless the deed took immedi- ate effect, his acts would in behalf of infant grantees be regarded as an absolute delivery.^ The legal presumption where a father has purchased land, paying for it himself but causing the title to be taken in the name of the children, is, that these acts con- stitute an advancement to the children, and not a trust in favor of the father. Clear and satisfactory evidence, however, will overcome the presumption that a trust and not an advancement was intended." § 287. As to presumption of acceptance by adults. — We have noticed in the preceding section the rules applicable to delivery and acceptance of deeds when made in favor of infants. There is, however, in this question, of how far acceptance may be presumed in favor of adults, a diversity among the decisions. In some cases it is held that the assent of the grantee to the deed, if it be benefi- cial to him, will be presumed.' This view of the question finds • Rivard v. Walker, 39 111. 413. See Spencer v. Carr, 45 N. T. 407. ' Cecil 0. Beaver, 28 Iowa, 241. In the course of the opinion. Chief Justice Dillon said : " Where the deed to a child is absolute in form and beneficial in effect, and the grantor and father voluntarily causes the same to be recorded, this is in law a sufficient delivery to the infant, and the title to the lands conveyed will pass thereby. In such case actual manual delivery and a formal acceptance are not necessary. Of the effect of such a deed, and by what kind of evidence a trust can be established, no further observations are necessary : Robinson v. Gould, 26 Iowa, 89 ; Masterson v. Cheek, 23 111. 72 ; Jlitehell v. Ryan, 3 Ohio St. 377 ; Foley v. Howard, 8 Iowa, 56 ; 3 Wash. Real Prop. (3d ed.) 261, top page, and cases cited." In a com,plaint to quiet title, to land, it was alleged that a deed was not delivered, but was made by a father to his minor child to avoid an unjust suit, and that, it was taken by him to the recorder's office without her knowledge, and subsequently obtained by him, and always kept with his papers. The court held that on demurrer it could not be said that as a matter of law the deed was delivered : Vaughan v. Goodman, 94 Ind. 191. ' McLean v. Nelson, 1 Jones .(N. C.) 396 ; Jones v. Swayze, 42 N. J. L. 279 ; Mallory v. Stodder, 6 Ala. 801 ; Tibbalsw. Jacobs, 31 Conn. 428 ; Lady Superior v. McNamara, 3 Barb. Ch. 375 ; 49 Am. Dec. 184 ; Renf ro v. Har- rison, 10 Mo. 411 ; Church v. GUman, 15 Wend. 656 ; 30 Am. Dec. 82 ■ Brown v. Austen, 35 Barb. 341 ; Rogers v. Carey, 47 Mo. 232 ; Bennett v. Waller, 23 111. 97 ; Stewart v. Reed, 11 Ind. 92 ; Merrills v. Swift, 18 Conn! 257 ; 46 Am. Dec. 315. In Jackson v. Bodle, 20 Johns. 187, Spencer C. J. says: "It is necessary to the validity of a deed that there be a grantee Willing to accept it. It is a contract, a parting with the property by the 261 DELIVEEY OF DEEDS. § 287 forcible expression in a case in Ohio, in -which Mr. Chief Justice Thurman says: "It is true that judges have said with more solemnity than I think the occasion warranted, that no one can have an estate thrust upon him against his will, and that, conse- quently, a delivery of a deed to a stranger, for the use of the grantee, is of no effect unless assented to by the latter. How much weight this argument is entitled to, may be judged of by the fact that estates are every day thrust upon people by last will and testament; and it certainly would sound somewhat novel to say that the devises were of no effect until assented to by the devisees. If a father should die testate, devising an estate to his daughter, and the latter should afterward die with- out a knowledge of the will, it would hardly be contended that the devise became void for want of acceptance, and that the heirs of the devisee must lose the estate. Neither will it be denied that equitable estates are every day thrust upon people by deeds, or assignments made in trust for their benefit, nor will it be said that such beneficiaries take nothing until they assent. Add to these the estates that are thrust upon people by the stat- ute of descent, afld we begin to estimate the value of the argu- ment that a man shall not be made a property holder against his will, and that courts should be astute to shield him from such a wrong. It is certainly true, as a general rule, that acceptance by the grantee is necessary to constitute a good deliv- ery, for a man may refuse even a gift. But that such accept- ance need not be manual is equally true, and it is also certain that simple assent to the conveyance, given even before its exe- cution, is a sufficient acceptance But the cases go still further, and upon the soundest reasons hold that where a grant is plainly beneficial to the grantee, his acceptance of it is to be presumed in the absence of proof to the contrary. It is argued, however, that this is only a rule of evidence, and that where the proofs show that the grantee has never had any knowledge of grantor, and an acceptance thereof by the grantee. An acceptance will be presumed from the beneficial nature of the transaction, where the grant is not absolute. The presumption is not so strong that the grantee accepts' the deed where he derives no benefit under it, but is subjected to a duty or the performance of a trust." See also Camp v. Camp, 5 Conn. 291 ; 13 Am. Bee. 60; Halsey c. Whitney, 4 Mason, 20; Young v. CardweU, 6 Lea (Tenn.) 168. § 288 DELIVEBY OP DEEDS. 262 the conveyance the presumption is rebutted. If this argument were limited to cases in which an acceptance of the grant would impose some obligation upon the grantee, I am not prepared to say that I would object to it, although the obligation might fall far short of the value of the grant. But where the grant is a pure, unqualified gift, I think the true rule is that the presump- tion of acceptance can be rebutte Barnes v. Hatch, 3 N. H. S04 ; 14 Am. Dec. 369. 267 DELIVEEY OF DEEDS. § 291 Would have been in legal contemplation a delivery to him."* Where a deed has been delivered to the recording officer for the grantee's use, and the latter assents to it, the deed ■will prevail against an attachment made after such assent by one of the grantor's creditors. "We all think," says Putman, J., deliver- ing the opinion of the court, "that the delivery to the register for the use of the grantee, and her assent to the same before the attachment (which is to be inferred from the fiicts above recited), was equivalent to an actual delivery to the grantee personally. If, therefore, it were made upon a good consideration, and bona fide, the title vested in her."* But the subsequent assent of the grahtee does not operate by relation to pass the title as of the time of delivery against creditors of the grantors, whose rights ■ Parmelee v. Simpson, 5 Wall. 81, 86. In Boody v. Davis, 20 N. H. 140, 51 Am. Deo. 210, Wilcox, J., said: "Possession held by the grantee of a deed duly executed is alone competent evidence of a delivery, for things shall be presumed legally and properly in their present state, unless the contrary be shown : 1 Cow. Phil. 1284 ; Canning v. Pinkham, 1 N. H. 353 ; Bufifum V. Green, 5 N. H. 71 j 20 Am. Dec. 561. Indeed, when a deed is delivered to a third party with the intent on the part of the grantor that it shall t&ke effect for the benefit of the grantee, the assent of the latter is presumed, and the deed takes effect from the time of delivery (Towson v. Tickell, 3 Barn. & Aid. 36 ; Peavey v. Tilton, Strafford County, July Term, 1846} ; so that there is no occasion to resort to presumptions to enable us to conclude that the deed has come into the hands of the demandants by means of a regular delivery by the tenant. There has been a regular delivery of the deed by the tenant to the recording officer, with the intent that it should pass to the grantees, and should in fact inure for their benefit from that moment. It was, in short, delivered to that officer for their benefit. Their assent to it, which is a legal presumption at that moment, has been established as a fact by their subsequent acts that have been adverted to." And see Snider v. Lackenour, 2 Ired. Eq. 360 ; 38 Am. Dec. 685 ; Elsberry v. Boykin, 65 Ala. 336. » Hedge v. Drew, 12 Pick. 141, 144; 22 Am. Dec. 416. The court, how- ever, granted a new trial to try the question whether the deed was made in good faith, or with the intention of delaying the creditors of the grantor. See also Elsey ti. Metcalf, 1 Denio, 326 ; Parker v. HUI, 8 Met. 447 ; Jackson V. Kichards, 6 Cowen, 617 ; Oliver v. Stone, 24 Ga. 63 ; Folk v. Vam, 9 Rich. Eq. 303 ; Masterton t. Cheek, 23 HI. 72 ; I»rettyman v. Goodrich, 23 lU. 330 ; Kathbun v. Rathbnn, 6 Barb. 93 ; Kemp t>. Walker, 16 Ohio, 118 ; Jackson v. Cleveland, 15 Mich. 94 ; Snider v. Lackenour, 2 Ired. Eq. 360 ; 38 Am. Dec. 685 ; Boody t>. Davis, 20 N. H. 140 ; 51 Am. Dec. 210. But a lien placed upon the land before assent is given will take precedence : Parmelee v. Simpson, 5 Wall. 81 ; Denton v. Perry, 5 Vt. 382 ; Elmore v. Marks, 39 Vt. 538, 542 ; Baker v. Haskell, 47 N. H. 479; Johnson v. Parley, 45 N. H. 505 ; Derry Bank v. Webster, 44 N. H. 264. But see Merrills v. Swift, 18 Conn. 257 ; 46 Am. Dec 315 ; Tompkins v. Wheeler, 16 Peters, 119. § 292 DELIVEET OF DEEDS. 268 have attached prior to the time the grantee manifested his assent.* A delivery of a deed was held to be effectual where the convey- ance had been signed, sealed, and acknowledged by a husband and wife, and sent by the former, in the latter's presence, to the recorder's office for recording.* In other words, it may be said that the delivery is valid when it appears that the deed was placed on record, with the intent that it should pass the title to the grantee, although never actually delivered to the grantee.' § 292. Registration prima facie evidence of delivery. — The registration of a deed is prima fade evidence of its delivery.* The presumption of delivery arising from the registration of the- deed is not conclusive, however, but may be rebutted by other evidence.* This presumption may be rebutted by the facts that the consideration was not paid by the grantee; that he never had . the actual possession of the deed, nor any knowledge of its exist- ence ; and that the grantor continued in possession for a long time afterwards, claiming the land as his own. "Doubtless the recording of a deed is evidence of a delivery, or, more properly, it is evidence from which a delivery may be presumed ; but still it affords only a ground for a presumption, a presumption of fact; it may be rebutted and destroyed by other evidence."* So in > Hibberd v. Smith, 67 Cal. 547. * McNeely v. Ruoker, 6 Blackf. 391. See Mallet v. Page, 8 Ind. 364 ; Somers v. Pumphrey, 24 Ind. 240 ; HammeU v. Hanuaell, 19 Ohio, 17 ; Kerr »•. Biinie, 25 Ark. 225. ' Moore V. GUes, 49 Conn. 570. See also Connard v. Colgan, 55 Iowa, 538. * Bobinson v. Gould, 26 Iowa, 89 ; Lawrence v. Farley, 24 Hun, 293 ; Bensley v. AtweU, 12 Cal. 231 ; Kille v. Ege, 79 Pa. St. 15 ; Rigler v. Cloud, 14 Pa. St. 361 ; Bulkley v. Bufflngton, 5 McLean, 457 ; Warren v. Jackson- ville, 15 HI. 236 ; 58 Am. Deo. 610 ; Boardmau i>. Dean, 34 Pa. St. 252 ; Wel- born V. Weaver, 17 Ga. 267; BuUitt v. Taylor, 34 Miss. 708; Rowell v. Hayden, 40 Me. 582 ; Ingraham v. Grigg, 13 Smedes & M. (21 Miss.) 22 ; Javenal v. Jackson, 14 Pa. St. 519 ; Balbeck v. Dondedson, 2 Grant Gas. 459 ; Blight v. Schenok, 10 Barr. 285 ; 51 Am. Dec. 478; Burke v. Adams, 80 Mo. 504 ; 50 Am. Rep. 510. See also Pearce ti. Dansforth, 13 Mo. 360 ; Eau Claire Lumber Co. v. Anderson, 13 Mo. App. 429 ; Swiney v. Swiney, 14 Lea (Tenn.) 316 ; Hendricks v. Rasson, 53 Mich. 575. ' Union Mut. Ins. Co. ■». Campbell, 95 lU. 267; 35 Am. Rep. 166. « Boardman v. Dean, 34 Pa. St. 252, 254. In that case the only evidence of delivery was that the deed was recorded by some unknown agency in 1832. Possession of the land was never taken by the grantee, and he had no knowledge of the existence of the deed until 1857, and he had never paid the money mentioned as the consideration. The grantor remained 269 DELIVEEY OF DEEDS. § 292 New York, where the grantor and his representatives had been in undisturbed possession for more than forty years without recog- nizing any rights under a deed of land, valuable only for its use and occupation, the grantee never having been in possession, it was held that the presumption of the delivery of the deed from the fact of its registration was repelled, and that the contrary presumption arose, either that the deed was never delivered, or in possession for ten years after the date and recording of the deed, when he sold the land to another. The court, per Strong, J., said: "Actual delivery was actually disproved. It is true that actual delivery is not, in all cases, necessary. It is sometimes said to be a question of intent, but it must be an intent to have the deed operate immediately, and an intent manifested by word or action. Here the instrument itself shows that it was not the intent of William Clark and wife that it should take effect, except upon the payment of the consideration. It was not a deed of gift, but one of bargain and sale, for the stipulated price of four hundred dol- lars. The payment of the consideration was necessary to transfer the use and make the instrument operative. But the proof was positive that the consideration was never paid. In this particular it differs from a deed of gift, or a release, of which the law.will presume a delivery without proof of acceptance, and that, though the donee or releasee may not have known of the instrument. In such cases, his assent is inferred from the charac- ter of the writing as beneficial to the donee or releasee. It is true, there is here a receipt acknowledging payment of the consideration, but this is of no account against the positive testimony of Jerry Clark that it never was paid. The case of the Lessee of Mitchell v. Kyan, 3 Ohio St. 337, upon which the plaintiff la error relies, differs from the present in several important particulars. In that case, the transaction was a gift, not a sale. The alleged donee was an absent minor, and there was positive proof that the donor directed the deed to be put upon record. All these facts are wanting in the case now before us. Nor is it to be overlooked that Board- man cannot be regarded as a bona fide purchaser for value from the alleged grantee, and without notice, as was the claimant under the deed in Blight V. Schenck, 10 Barr. 285 ; 51 Am. Dec. 478. The court of common pleas held in the present case that the facts already recited rebutted the presumption of delivery arising from the recording of the deed only, if added to them was the other fact, that Bnardman who claimed under Jerry Clark was not a bona fide purchaser. Whether he was'or not was submit- ted to the jury, and their verdict established that he was not. It may well be that stronger evidence is required to rebut the presumption of delivery when the deed is set up by a bona fide purchaser, who has advanced his money upon the faith of it, than when it is set up by the grantee himself, or one who stands in his shoes. But where the grantee denies any deliv- ery or payment of the consideration, when he negatives all possession under the deed or knowledge of its existence, where the instrument is one that cannot operate without his assent and his action, it is not for another who has surreptitiously obtained a conveyance from the grantee to set up the deed as having been delivered, without more evidence of delivery than is furnished by the fact that it is found upon the record." § 293 DELIVEEY OP DEEDS. 270 that a reconveyance had been executed.* So the presumption of delivery and acceptance is rebutted by showing the grantee's ignorance of the deed for seven years, and a prompt repudiation of the trust accompanying the deed when informed of its existence.^ § 293. Where acceptance of a deed depends npon conditions registration is not prima fiusie evidence of delivery. — A com- mittee of a bank agreed to purchase from a person a tract of land, if the board of directors of the bank would assent to the transaction, and the counsel of the bank would give his approval. The vendor prepared the deed and informed the cashier of the bank of his intention to have it recorded, and the deed was after- wards duly acknowledged and recorded. A judgment creditor of the vendor, after the deed had been filed for record, laid an attachment upon the consideration money to be paid by the bank. The counsel for the bank subsequently disapproved the pur- chase ; the vendor was notified of the disapproval, and the prop- erty was reconveyed to him by deed. The court held that there was no such delivery as to make the bank responsible under the 1 Knolls V. Barnhart, 71 N. T. 474. In Bensley v. Atwell, 12 Cal. 231, the court Bay, per Baldwin, J., who delivered the opinion: "This deed purports to be a deed of bargain and sale on an alleged consideration, exe- cuted and acliLnowledged by the defendant, and on the same day recorded. This certainly Is some evidence that the deed was perfected, and that It was intended to vest the title in the grantee. He might, if Ignorant of Its execution at the time, have at any time assented to It, It is scarcely to be presumed that one man will execute to another a deed without the assent of that other. Mr. Brooks, the witness, does not say that the grantee had no knowledge of the execution of this deed. We think the facts should have gone to the jury for them to say whether the grantee had this knowl- edge, or had given, directly or otherwise, his assent ; and that the court did not err, on the facts stated by the witness, in refusing to rule that the deed was never delivered. Perhaps it would bo too much in any case where the testimony of a witness contradicts the written acknowledgment of a party introducing him (as In this case, that a deed was delivered), and also the fair presumption from the nature of the transaction, for the court to assume that the testimony of the witness is the fact, and to give effect to it as a legal conclusion. In this case the plaintiff admitted, by the exe- cution of the deed and his acknowledgment of it for record, that he deliv- ered it. The mere fact that the plaintiff was absent from the State, and that the deed was made at the Instance of the grantor, or of the witness, is not conclusive evidence of its non-delivery." See Lady Superior ». McNa- mara, 3 Barb. Ch. 376 ; 49 Am. Dec. 184. > Metcalfe v. Brandon, 60 Miss. 685. 271 DELIVEEY OP DEEDS. § 294 t attachment process, inasmuch as the acceptance of the deed by the bank was dependent upon events which never occurred, and that the bank could not be charged as grantee by the execution of the deed and placing it on record by the grantor without suf- ficient sanction from the bank. With reference to the reconvey- ance, the court held that its only effect was a disclaimer of record, and that it could not operate as evidence of the acceptance of the previous deed.* § 294. Possession of deed by grantee affords presumption of delivery. — The possession of a deed duly executed in the hands of the grantee is prima fade but not conclusive evidence of its delivery.* It therefore follows that he who disputes this pre- ' Leppoo o. Union Bank, 32 Md. 136. Alvey, J., who delivered the opinion of the court, said, in the course of the opinion : " But had the deed been accepted by the bank at the time of laying the attachment 7 As matter of law, on the facts found by the jury, we are bound to say that it had not been accepted. The delivery of the deed was certainly essential to the transfer of the property j and without such transfer, no obligation was imposed on the bank. The delivery, to be effectual, required accept- ance of the deed by the bank, and as we have seen, that was dependent on events that never occurred ; and although the deed was made and placed on record, these were acts of the grantor without sufficient legal sanction of the bank to charge it as grantee. 'To constitute a good delivery,' says the Supreme Court of the United States In Younge v. Guilbeau, 3 Wall. 636, ' the grantor must part with the possession of the deed or the right to retain it. Its registry by him is entitled to great consideration upon this point, and might, perhaps, justify, in the absence of opposing evidenfie, a presump- tion of delivery. But here in (that case) any such presumption is repelled by the attendant and subsequent circumstances. The registry was of course made without the assent of the grantee, as he had no knowledge of the existence of the deed, and the property it purported to convey always remained in the possession and under the control of the grantor.' And in the cases of Hutchins v, Dixon, Ex'r of Hooper, 11 Md. 29, and Phelps' & Stewart's Lessee v. Phelps, 17 Md. 120, it was decided by this court that while a deed duly acknowledged and recorded will be treated as having been delivered to and accepted by the grantea in the absence of all proof to the contrary, those facts only give rise to a prima fade presumption, liable of course to be repelled." » Chandler w. Temple, 4 Cush. 285; Brittain». Work,18Neb.347; Newlin V. Beard, 6 W. Va. 110 ; Billings v. Stark, 15 Pla. 297 ; Kidder v. Stevens, 60 Cal. 414 i Cutts v. Tork Co. 18 Me. 190 ; Canning v. Pinkham, 1 N. H. 353 J Cames v. Piatt, 41 N. Y. Sup. Ct. 435 ; Green v. Yamall, 6 Mo. 326 ; Reed V. Douthit, 62 111. 348 ; Clark v. Ray, 1 Har. Boyd V. Slayback, 63 Cal, 493. But see Carver v. Carver, 97 Ind. 497. 275 DELIVERY OF DEEDS. §§ 297-298 § 297. Merence of acceptance from relationship between per- son receiving the deed and the grantee. — Where the grantee has not actually received the deed, his acceptance may in some cases be implied from the relationship existing between him and the person to whom it is^ actually delivered. This principle is, per- haps, most frequently applied in cases where the grantees are minors and the deeds are delivered to their parents. Thus, a grantor made and executed a deed in favor of his granddaughter, who at the time was a minor. The deed was given to her father to be held by him for her until she should arrive at sufficient discretion to take care of it, and it was held that the delivery of the deed to her father was for her use and benefit, and her accept- ance would be presumed.^ In a case in Alabama, it appeared in the testimony of the subscribing witnesses to a deed that immediately after the execution the grantor placed it in the hands of the mother of the grantees, who were infants, telling her to keep it. The court held that this testimony was at least sufficient to permit the deed to go to the jury, and that the ques- tion of whether the intention of the grantor was that it should or should not be considered as delivered, was one of fact for the jury to determine.* § 298. Delivery to several grantees. — It would seem to be sufficient that when the grantor has parted with all control over the deed, that a delivery has been made to all the parties named as grantees, unless he makes some declaration, or performs some act evincing a different intention. But it has been held that if there be two or more grantees, and the grantor delivers the deed to one of them only, and says nothing concerning the others, the deed is void as to them.* 1 Bryan v. Wash, 2 Gilm. 557. ' Gregory v. WsJker, 38 Ala. 26, See also Sonverbye v. Arden, 1 Johns. Ch. 456 ; Morrison v. Kelly, 22 111. 612 ; 74 Am. Dec. 169 ; Jaquea v. Metho- dist Church, 17 Johns. 577 ; 8 Am. Dec. 447 ; Cloud v. Calhoun, 10 Kich. Eq. 358, 362. » Hannah v. Swarner, 8 Watts, 9; 34 Am. Deo. 442. Gibson, C. J., delivering the opinion of the court, said : " It is said in Viner's Abridg- ment, Faits I., 7, ' if a man make an obligation to two, and deliver to one of them only, and say nothing of the other on the livery, the deed is void as to him,' for which he cites the Tear Book, 3 H. 6, 19. So in Hungate's Case, 5 Rep. 103, an action was not maintained on a bond to perform an § 299 DELIVBEY OF DEEDS. 276 § 299. Comments. — It may well be doubted that the case cited in the preceding section contains a proper statement of the correct rule. In the case in which this conclusion was reached, the jury found simply that a deed was made, but failed to declare whether there had been a delivery or not. If they had declared under these circumstances that a delivery was made to all the grantees, we do not see how their finding could be successfully assailed. It certainly must have been the intention of the grantor to exe- award, if made and delivered to the defendants by suoh a day, on proof that It was delivered to one of the grantees ; for the jury explicitly say that they are ignorant whether the delivery to him was assented to by the others. In the Bank of Washington v. Smith, 5 Serg. & R. 318, the assent of an absent grantee was presumed ; but there was an actual delivery to a third person, and to the grantee's present use, a circumstance which is wanting here, and which is a distinguishing one, perhaps, in all the cases. In Taw V. Bury, 2 Dyer, 167 6, A delivered his bond to the obligee as his deed ; the obligee refused to receive it, whereupon B left it ; but the obligee afterwards sued and recovered on it, because, by the first delivery, it was A's deed without delivery over, though, had it been given to be delivered over on the performance of a condition, it would have been otherwise. But if the writing be given to a stranger without any intima- tion or declaration of intention, it remains inoperative ; ' for the bare act of delivery to him without words worketh nothing : ' Co. Litt. 36 a. The rule to be extracted from all this is, that a delivery to a third person for the present use of the grantee, makes the instrument a present deed ; but that a delivery to his use when he shall perform a condition, makes not a pres- ent deed, and the grant may be frustrated by his refusal to perform it ; and that a bare delivery to a stranger, without words of direction to deliver over to the grantee, either absolutely or conditionally, is merely void. Now, the most favorable construction that can be made for the defendant is to say that for the purpose of receiving a deed, each of the grantees must be considered as standing in the relation of a stranger to the rest, else a delivery to the one, without direction to deliver it to the others, would perfect the deed as to all, which we have seen is not so ; and here it is not found that there was any direction to the grantee who received the deed, it being nakedly affirmed that it was delivered to him and kept in his pos- session. Had it been given to him for delivery to the others ilso, it would have presently vested the estate in them without their consent; insomuch that they could not, on the principle of Butler and Baker's Case, 3 Rep. 25, have divested it by a subsequent expression of oral dissent. But no suoh fact is found ; and we are unable to pronounce, on the premises, that there was a delivery in law. The difficulty is to say whether enough is found to enable us to give judgment for any one. The jury have set forth an instrument in the form of a deed, and it was their business to find a deliv- ery in fact, or circumstances constituting a delivery in law, or to find that it was not delivered at all." The court, therefore, held that the case was insufficiently found, and remitted it to another jury to find whether there was or not an actually delivery. 277 DELIVEEY OF DEEDS. § 300 cute a valid instrument transferring his title. In parting with all control over the deed and delivering it to one of the grantees, it would in our judgment seem fair to infer that by that act he intended to divest himself of the title, and to convey it to the grantees. If he had, however, declared that the delivery to one was not to inure to the benefit of the others, of course there would be no delivery to them. But in the absence of any such declarations or circumstances showing that to be his intention, we think that a delivery to one would be a delivery to ajl. Thus, it is held that where the grantee has only a qualified estate, which is defeasible on the occurrence of an event when the estate is to pass to others, a delivery of the deed to the first grantee is sufficient for all purposes.* § 300. Deed once exeeated and deUvered cannot be revoked. — When a deed has been properly executed and delivered, it operates as a transfer of title. Its redelivery to the grantor or its cancellation cannot operate as a retransfer of the title so con- veyed. Where it has once become effective, it cannot be defeated by any act occurring afterwards, unless it be by force of some condition contained in the deed itself.^ The redelivery of a deed is not only ineffectual to retransfer the title, but also to revive a debt for the extinguishment of which the deed was given.' " The decided weight of authority is that the surrender of a deed, though not registered, will not operate to revest the grantor with the title." * The fact that both grantor and grantee suppose that a deed will not take effect until recorded, and 1 Folk V. Vara, 9 Rich. Eq. 303 ; Phelps v. Phelps, 17 Md. 120. ' Rogers ti. Rogers, 53 Wis. 36 ; 40 Am. Rep. 756 ; Connelly v. Doe, 8 Blackf. 320 ; Taliaferro v. Rolton, 34 Ark. 503 ; Snodgrass v. Rickett, 13 Cal. 359 ; Jeffers v. Philo, 35 Ohio St. 173 ; Kearsing v. Killan, 18 Cal. 491 ; Brady V. HuflF, 75 Ala. 80 ; Bowman v. Cudworth, 31 Cal. 148 ; ICilly v. Wilson, 33 Cal. 691 ; Lawton v. Gordon, 34 Cal. 36 ; Cal. Civil Code, § 1058 ; Souverbye V. Arden, 1 Johns. Cb. 240 ; Parker v.. Kane, 4 Wis. 1 ; 65 Am. Dec. 283 ; Warren v. Tobey, 32 Mich. 45 ; Somers v. Pumphrey, 24 Ind. 240 ; Reavis V. Reavis, 50 Ala. 60 ; Duncan v. Wickliflfe, 5 111. (4 Scam.) 452 ; Graysons V. Richards, 10 lieigh, 57 ; Morgan v. Elam, 4 Yerg. 375 ; Tibeau v. Tibeau, 19 Mo. 78 ; 59 Am. Dec. 329 ; Shelton's Case, Cro. Eliz. 7. And see Byron V. Bradshaw, 23 Cal. 528 j Rootes v. HoUiday, 6 Munf. 251 ; Mallory v. Stodder, 6 Ala. 801 ; Wallace v. Bardell, 97 N. T. 13. » Starr v. Starr, 1 Ohio, 321. • Strawn v. Norris, 21 Ark, 80, 82, and cases cited. § 301 DELIVEBY OP- DEEDS. 278 might be revoked at any time before that is- accomplished, does not alter its legal character as a conveyance where it has been delivered to the grantee.^ Nor will a contemporaneous parol agreement between parties who have reciprocally executed and delivered deeds, that they shall not be probated for registry until one of the parties shall perfect the title to the land conveyed by him, prevent the vesting of the titles in accordance with the terms of the deeds. In such a case it is immaterial that the parties did or did not understand whether this would be the legal result of their acts.* The title remains in the grantee when it has once become vested in him, notwithstanding the destruction of the deed or its return to the grantor, and although the latter has through the direction of the grantee again executed a deed to another.' § 301. niustrations of the foregoing rule. — A grantee went into possession of a piece of land under an absolute deed, and paid about half of the purchase price. Finding himself, how- 1 Hinchliff D. Hinman, 1» Wis. 130. " Walker v. Kenfro, 26 Tex. 142. Wheeler, C. J., delivering the opinion of the court, says : " The deeds of the 6th of January, 1853, -were executed and delivered to the parties respectively. The effect undoubtedly was to vest the title in accordance with the terms of the deeds. That effect, it is conceived, could not be obviated by the parol contemporaneous agreement that they should not be probated for registry until Kenfro should perfect the title to the Sigler labor. The parties may not have been aware that such was the effect of the delivery. How that was we are not certainly informed; but however it may have been, their not understanding its effect could not change the legal consequence of the act. Where a deed has thus been delivered to the grantee, it is questionable whether in the absence of fraud parol evidence can be heard to prove that it was not to take effect according to its import. It may beshown that a deed was never dulydelivered, or was delivered as an escrow; orthat the grantee obtained it fraudulently, or in an improper manner, etc. This species of evidence has not been considered as coming within the rule which rejects parol l^roof when offered to contradict a deed : Roberts v. Jackson, 1 Wend. 484. But here the deed was not delivered to a third person as an escrow ; it is not pretended that it was duly delivered and accepted by the grantee com- pletely and regularly executed. In Ward v. Lewis, 4 Pick. 518, 520, it was held that where a deed, with the evidence of complete and unqualified exe- cution on its face, has been signed, sealed, and delivered to the party, parol evidence of an agreement or understanding that it should not take effect until a certain event, is inadmissible as going to vary the terms of the deed, and make that conditional which appeared to be absolute," ' Cunningham v. Williams, 42 Ark. 170. 279 DELIVEEY OF DEEDS. § 301 ever, unable to pay the residue, he sent back the deed, which had not been recorded to the grantor, to be canceled. He and the grantor went again into possession, giving up the notes for the residue of the purchase money. A creditor of the grantee then levied an execution upon the land as the property of the grantee, and brought an action of ejectment against the grantor for it. The court held that inasmuch as the title did not revest in the grantor by the return and cancellation of the deed, the creditor was entitled to recover.' In another case, a grantee being seised and possessed of land under an unrecorded deed, contracted to sell the land to a third person, and for that pur- pose destroyed the deed in his possession from the grantor, who at the grantee's request made a new conveyance to such pur- chaser. All the parties at the time supposed this was a proper mode of conveying the title, but it was held that although the deed to such purchaser was recorded, the title still remained in the original grantee.* A executed a deed containing covenants of warranty and seisin to B, and the latter without entering into possession or recording his deed, mortgaged the land to C, who immediately placed his conveyance on record. Afterwards B delivered up his unrecorded deed to A, and received back the notes which he had given for the purchase money. A deed was afterwards executed to D, containing the usual covenant of seisin, and it was held that this covenant was broken at the time the deed was executed." ' Botsford V. Morehouse, 4 Oonn. 550. ' Eaynor v. Wilson, 6 Hill, 469. » Gilbert ti. Bulkley, 5 Conn. 262; 13 Am. Dec. 57. Hosmer, C. J., speaking for the court, says : " The plaintiff's action is founded on the covenant of seisin, in which the defendant stipulated that he and his wife Clara, at the execution of the deed, were well seised of the premises. Were they well seised ? Most unquestionably, they were not. They had several months before executed a deed of the land, with covenants of seisin and warranty, to one Dunscombe; and by this act deprived themselves of the seisin of the premises, so that theircovenant was untrue, and broken instan- taneously as soon as it was made. Whether the plaintiff, by the omission of Dunscombe to record his deed, and by procuring his own to be recorded, had acquired a title as against Dunscombe, is a very irrelevant question. If, by facts subsequent to the delivery of his deed he had, the position would not be the less true, that the defendant and wife were hot seised at the execution of the deed to the plaintiff. The plaintiff had right to the full benefit of his covenant, and is not obliged to enter into a legal con- troversy with Dunscombe or Dayton, in which he may be foiled by proof, § 302 DELrVEKY OP DEEDS. 280 § 302. A different doctrine prevails in some of the States. — In some of the States, particularly those of New England, while recognition seems to be given to the general rule previously stated, yet it is held that the redelivery of an unrecorded deed to the grantor operates to revest in him the title.* It was held in an early case in Massachusetts, where a grantee, in possession of land by a deed duly executed but not recorded, contracts to sell the land to a third person, and for that purpose cancels the grantor's deed, and the latter, at the grantee's request, makes a new conveyance to such third person, he takes a valid title, not- withstanding the original grantee continues in possession of the land jointly with him after the execution of the last deed.* In a later case in the same State, while it was conceded that the mere cancellation of a deed by the grantee, who holds under it, does not divest his title or reconvey it to the grantor, it was, however, held that if A conveys land to B by a deed, which is not recorded, though B takes possession by virtue of the con- veyance, and he sells the land to C, delivering up the deed to A, and having it canceled, and A executes a new deed to C, which that at the date of his deed, he knew of the deed to Danscombe. The sur- render of the deed to the defendant is lil^ewise a perfectly immaterial fact. If by this act the defendant had acquired title, it would have no bearing on the above question in this c^e, which, let it be remembered, is merely this, whether the defendant and wife, at the execution of his deed to the plaintiff, were well seised. But no title was thus acquired. The legal evidence of title was given up, but the title in Dunscombe remained. Land once conveyed cannot be retransferred by a destruction of the con- veyance ; but a deed executed with aU legal solemnities, is as requisite for this purpose, as if the evidence had not been destroyed : Botsford v. More- bouse et al. 4 Conn. 550 ; Coe et al. v. Turner et ux. 5 Conn, 86. The verbal agreement, at the delivery of the deed to Dunsoombe, was null and of no legal effect." And see also Cravener v. Bowser, 4 Pa. St. 259 ; Holmes v. Trout, 7 Peters, 171 ; Lewis v. Payne, 8 Cowen, 71, 75 ; Jaclison v. Gould, 7 Wend. 364, 366 ; Chessman v. Whittemore, 23 Pick. 231 ; Roe v. Arch- bishop of York, 6 East, 86; Bolton v. Bishop of Carlisle, 2 Black. H. 259; Doe V. Bingham, 4 Barn. & Aid. 672; Perrott v. Perrott, 14 East, 422; Harrison v. Owen, 1 Atk. 519. 1 Farrar v. Farrar, 4 N. H. 191 : 17 Am. Deo. 410 ; Tomson v. Ward, 1 N. H. 9 ; Mussey v. Holt, 24 N. H. 248 ; 55 Am. Deo. 234 ; Dodge v. Dodge, 33 N. H. 487 : Holbrook v. Tirrell, 9 Pick. 105 ; Nason v. Grant, 21 Me. 160; Faulks v. Bums, 1 Green Ch. 250; Patterson «. Yeaton, 47 Me. 314. » Commonw. v. Dudley, 10 Mass. 402. This decision, however, is criticised in a note appended by the reporter. 281 DELIVEEY OP DEEDS. § 303 is recorded, the title of G will prevail over a subsequent execu- tion lien of a creditor of B, the original grantee.^ , § 303. Ground upon wMch these decisions are placed. — The principle upon which it is sought to support these decisions referred to in the preceding section is that briefly stated by Richardson, C. J., in an eariy case in New Hampshire : '•' It is apprehended that in these cases the cancelling of the deed oper- ates like a reconveyance, but that it is not in fact to be consid- ered as such. The true ground on which these decisions are to be supported is, that the grantee having voluntarily, and with- out any misapprehension or mistake, consented to the destruction of the deed with a view to revest the title, neither he nor any other person claiming by a title subsequently derived from him is to be permitted to show the contents of the deeds so destroyed by parol evidence. So that, in fact, there being no competent evidence that the land ever passed, the title is to be considered as having always remained in the grantor." ' It will be seen that this rule in the States where it prevails is placed upon the ground of estoppel, and this is more fully declared in a subse- quent case, in which it is said : " If the deed had been canceled with the intention of revesting the title in the grantor, it would have :that effect by way of estoppel. The grantee having put it out of his power to produce the deed, the law will not allow him to introduce secondary evidence in violation of his undertaking, and to defeat the fair intention of the parties. Delivering the deed back into the hands of the grantor, with the intention of revesting the title, will have the same effect on the same princi- ple. This puts it in the power of the grantor to cancel or destroy the deed, or what is in effect the same thing, to detain it from the grantee. In neither case can the grantee produce the deed, and the law will estop him in both cases to give secondary evidence to defeat the intended operation of his act in returning or annulling the deed. An agreement to cancel or to return is not sufficient; it is no better than an agreement to reconvey, and ' Holbrook v. Tirrell, 9 Pick. 105. And see Marshall v. Fisk, 6 Mass. 24 ; 4 Am. Dec. 76 ; Hall v. MoDufif, 24 Me. 311 ; Steel v. Steel, 4 Alien, 417 ; Howe V. Wilder, U Gray, 267 ; Lawrence v. Stratton, 6 Cush. 163 ; Speer v. Speer, 7 Ind. 178; 63 Am. Dec. 418. ' In Farrar v. Farrsr, 4 N. H. 191, 195. § 304 DELIVEEY OP DEEDS. 282 leaves the deeds iu the hands of the grantee, so that the princi- ple of estoppel cannot be applied."^ § 304. Redelivery without intention to revest title. — But even in the States where the peculiar rule we have just con- sidered obtains, it is not every redelivery to the grantor that will have the effect of retransferring to him the title. The redelivery to him to have this operation must be made with the intention of revesting him with the title. Accordingly, in one of these States, where an unrecorded deed had been redelivered by the grantee to the grantor, who received it without any intent of revesting the title in him for his own benefit, but only that another deed might be substituted, and it appearing that no rights of third persons had intervened, and that the first deed would not impair any right intended to be given to the grantor by the redelivery, it was held that the grantee was not estopped from showing the existence and contents of the first deed.^ • Mussey v. Holt, 24 JT. H. (4 Fost.) 248, 252; 55 Am. Deo. 234; per Perly, J. In Trull v. Skinner, 17 Pick. 214, where an unrecorded defeas- ance had been surrendered, Chief Justice Shaw delivered the opinion of the court, and said : "The court are of opinion that where an absolute deed is given, accompanied by a simultaneous instrument operating by way of defeasance, and afterwards the parties, by fair mutual stipulations, agree that the defeasance shall be surrendered and canceled, with an intent to vest the estate unconditionally in the grantee, by force of the first deed, by such surrender and cancellation the estate becomes absolute in the mort- gagee. The original conveyance stands uuafEected in form and legal effect ; it conveys an estate in fee ; the only party who could even claim a right to deny it tkat operation, by engrafting a condition upon it, has voluntarily surrendered the only legal evidence by which that claim could be sup- ported, and is thereby estopped from setting it up. Such cancellation does not operate by way of transfer, nor, strictly speaking, by way of release working upon the estate, but rather as an estoppel arising from the volun- tary surrender of the legal evidence, by which alone the claim could be supported, like the cancellation of an unregistered deed, and a convey- ance by the first grantor to a third person without notice. The cancel- lation reconveys no interest to the grantor, and yet, taken together, such cancellation and conveyance to a third person make a good title to the lat- ter by operation of law. It gives a seisin de facto, a conveyance by deed duly registered being to many purposes equivalent to livery of seisin (Higbie v. Rice, 5 Mass. 352; 4 Am. Deo. 63); it is good against the grantor and his heirs by force of the second deed, and it is good against the first grantee, and all claiming under him, by force of the registry acts." 2 Bank v. Eastman, 44 N. H. 431. Say the court, per Bartlett, J.: " It is well settled that the redelivery of an unrecorded deed for cancellation to the grantor by the grantee, does not operate as a reconveyance ; but it will 283 DELIVEHY OF DEEDS. § 305 § 305. Oomments on these decisions. — The rule that is recog- nized in Massachusetts, Maine, and New Hampshire, concerning the effect of a redelivery of a deed to the grantor, is confined to cases where the deed has not been recorded. Where the deed has been recorded, the rule seems to be universal that a redelivery or cancellation of the deed can have no effect upon the title. These decisions, however, are confined to but a few States, and it is obvious that they must in a measure conflict with the pro- visions of the statute of frauds. If the rule that the cancellation of a deed or its redelivery to the grantor would operate to revest the title were adopted, it would permit the perpetration of the frauds which it was the design of the statute to prevent. The deed might be redelivered to the grantor for many other pur- Spses than that of a retransfer of title. As in the cases cited in e following section, the deed might be returned for the pur- pose of correction or acknowledgment. Resort would have to be had to parol evidence in case of controversy, to determine the intention with which the redelivery was made. These decisions have frequently been referred to in other States, but always with disapproval. And as said by Mr. Ju«tice Compton, ia a case in Arkansas: "It would not be easy to maintain the soundness of these decisions upon principle."^ under certain oircamstances estop the grantee from making proof of the deed so delivered up. However, the destruction of a deed by a party does not in all cases preclude him from showing its contents : Riggs v. Taylor, 9 Wheat. 483 ; 2 C. & H.'s notes, Phill. Ev. 406. Where an unrecorded deed has been canceled or redelivered to the grantor by the grantee with the intention of revesting the title, the grantee cannot produce the deed, and the law will estop him in both cases to give secondary evidence to defeat the intended operation of his act in returning or annulling the deed : Mussey v. Holt, 24 N. H. 252 ; 55 Am. Dec. 234 ; Farrar v. Farrar, 4 N. H. 195 ; Dodge v. Dodge, 33 N. H. 495. Here the deed was redelivered, not with the intent that the land should become the grantor's, but merely that another deed might be substituted. The intention was not to revest the title in Claris to his own use, but only, if at all, that it might at the same instant inure to the benefit of Aldrich by virtue of the deed then or already executed to him : See Crocker v. Pierce, 31 Me. 177 ; HaU v. McDufT, 24 Me. 312. The good faith of this transaction is not impeached, the rights of third parties have not intervened (Palmer v. Jenness, Rockingham, December Term, 1862), and proof of the first deed in the present case would not defeat or impair any right intended to be given to Clark by the sur- render: See Lawrence v. IJawrence, 42 N. H. 112. As there was no estoppel to show the deed, proof of it was properly admitted, and it showed title in Aldrich from its date as against all having notice of it." 1 In Strawn v. Norris, 21 Ark. 80, 82, § 306 DELIVEEY OF DEEDS. 284 § 306. Redelivery to the grantor for correetion, acknowledg- ment, etc. — Where a deed had been delivered, and afterwards, before it was recorded, the grantee intrusted it to the grantor for the purpose of having certain informalities in it corrected, the grantor on refusing to return it, was decreed to execute the trust reposed in him by returning the deed, or in case of its destruc- tion, to give another deed for the premises.* The return of a deed after its delivery to the grantor for safe-keeping during the grantee's minority or expected absence, does not negative its previous delivery, or destroy its effect as a conveyance of title.' Nor will the redelivery to the grantor for the purpose of procuring his acknowledgment invalidate the prior delivery.' Where a grantor, having delivered a deed, receives it back for the purpose of obtaining a relinquishment of dower by his wife, the title has passed by the first delivery, and notwithstand- ing the non-return of the deed, is vested in the grantee.* But equity would have no jurisdiction in a case of this kind, unless the bill alleged that the deed is secreted or withheld, so that it cannot be replevied." A verbal contract was made for the pur- chase of land, and both the vendor and vendee went to the office of an attorney to have the deed prepared. The owner signed the deed and delivered it to the grantee. The latter handed it back to the grantor for acknowledgment, and they both attempted to find an officer to take the acknowledgment. The note for the purchase money had previously been delivered to the grantor, but he refused subsequently to acknowledge the deed. It was held that these acts constituted a valid delivery." Where a con- dition is solely for the benefit of the grantee, as where a deed is delivered to him with the understanding that the grantor's wife shall also afterwards join in the execution, the grantee may ' Albert v. Bnrbank, 25 N. J. Eq. (10 Green) 404. » Hart V. Bust, 46 Tex. 556. " Rootes V. Holliday, 6 Munf. 251. * Brooks V. Isbell, 22 Ark. 488. Where a grantor, through the misrepre- sentation of the grantee, has executed a deed for the same land, whereby he has become liable on the covenant of warranty in the first deed to a third person, equity wiU grant him relief by canceling the second deed : Strawn v. Norris, 21 Ark. 80. Travis v. Tyler, 7 Gray, 146. • Towery v. Henderson, 60 Tex. 291. 285 DELIVERY OF DEEDS. §§ 307-308 waive the provision and the delivery becomes complete.* Where a grantor having executed a deed to his intended wife, hands it to her, and she, after some conversation relating to the deed, gives it back to him for the purpose of having it recorded, there is a sufficient delivery.* § 307. Delivery to a married woman. — At common law, it was essential that a husband should give his assent to a convey- ance made to his wife. If a deed was made to her and he dissented it was void as to her.' If the husband, however, gave his express assent to the deed, it is said that the wife or her heirs might after the husband's death waive the deed.* But a verbal disclaimer, on her part, after his death, where a grant was made to husband and wife, and he had given his assent, would not avoid the deed.® § 308. Whether delivery is a question of law or fact. — The question of delivery is a mixed one of law and fact. What amounts to a final delivery and acceptance is a question of law, but it is a question of fact for the jury whether the facts exist which constitute such delivery and acceptance.' But the ques- tion of delivery or non-delivery, while frequently of a mixed character, partly of law and partly of fact, yet in practice is generally one of fact only.' " The question, what constitutes > Brittain v. Work, 13 Neb. 347. » Otis V. Spencer, 102 III. 622; 40 Am. Rep. 617. " Wood on Conveyancing, 240 ; Melvin v. Proprietors etc 16 Pick. 167 ; Whelph dale's Case, 5 Rep. 119 ; Butler v. Baker's Case, 3 Rep. 29 ; 3 Wash. Real Prop. (4tli ed.) 297. * Co. Litt. 3 a. ' 1 Wood on Conveyancing, 240 ; 3 Wash. Real Prop. (4th ed.) 297. " Earle v. Earle, 20 N. J. L. (1 Spenc.) 347 ; Hibberd v. Smith, 4 West 0. Rep. 446. ' Hurlburt v. Wheeler, 40 N. H. 73. And see Parker v. Dnstin, 22 N. H. 424 ; Warren v. Swett, 31 N. H. 332 ; Ela «. Kimball, 30 ST. H. 133 ; Hannah V. Swamer, 8 Watts, 9 ; 34 Am. Deo. 442. In Burke v. Adams, 80 Mo. 504, ■60 Am. Rep. 504, Commissioner Philips said: "What constitutes a deliv- ery of a deed is often a mixed question of law and fact. An arbitrary rule ought not to be laid down. Each case must stand more or less on its peculiar facts. The intent to convey is evidenced by the fact of making out and duly executing a deed. The delivery may be evidenced by any act of the grantor by which the control or dominion or use of the deed is made available to the grantee." § 309 DEIilVEEY OP DEEDS. 286 a delivery of a deed, has been much discussed. It is much a question for the jury in each particular case."^ But in a case in Vermont, it was said to be a question of fact purely. "The delivery of a deed, either as an escrow or absolutely, is an act including intent. It may be by words, without act, by an unequivocal act only, or by both combined. Hence, it is always a question of fact, resting in pais, to be found by a jury, under proper instructions of the court." ^ And where a deed was not delivered at the time of its signature, but deposited in the hands of a third person, it is competent for a jury to infer from cir^ cumstantial evidence that the deed was subsequently delivered by the grantor to the grantee.* § 309. Deed taking effect as a wiU. — In some instances where an instrument has been executed as a deed, and purport- ing to be such, but was invalid because to take effect at the death of the grantor, operation has been given to it by consid- ering it a testamentary disposition of the grantor's estate.* Thus, a father made an instrument in the form of a deed to his son, which contained a clause that it was "in no way to take effect until the death of the grantor," and that the grantor was to have " the entire use and possession of the land during his natural life." The court held that this was a testamentary instrument, and therefore revocable. Woodward, C. J., who delivered the opinion of the court, said : " As these words were expressly limited to take effect only after the death of the grantor, they were necessarily revocable words. The doctrine of the cases is, that whatever the form of the instrument, if it vest no present interest, but only appoints what is to be done after the death of the maker, it is a testamentary instrument. It signifies nothing, that the parties meant to make a deed instead of a will. If they have used language which the law holds to 1 Dearmond v. Dearmond, 10 Ind. 191, 194. » Lindsay v. Lindsay, 11 Vt. 621, 626, per CoUamer, J. And see Hastings V. Vaughn, 6 Cal, 815. » FeUows V. PeUowa, 87 N. H. 75. • Oilman v. Mustin, 42 Ala. 365 ; Mosser v. Mosser's Ex'r, 82 Ala. 551 ; Shepherd v. Nabors, 6 Ala. 631 ; Dunn v. Bank of Mobile, 2 Ala. 152 ; Carey V. Dennis, 13 Md. 1 ; HaU v. Bragg, 28 Ga. 330 ; Symmes v. Arnold, 10 Ga. 50G ; Millioan v. MilUoan, 24 Tex. 426 ; Walker v. Jones, 23 Ala. 448 ; Fred- erick's Appeal, 52 Pa. St. 388 ; Dudley v. Malleiy, 4 Ga. 52. 28lr DELIVERY OP DEEDS. § 310 be testamentary, their intention is to be gathered from the legal import of the words they have employed, for all parties must be judged by the legal meaning of their words."' But as it now generally required that a will shall be attested by witnesses, these decisions can perhaps have little application except in cases where the instrument is wholly in the handwriting of the grantor, in which case it might be an olographic will, if otherwise comply- ing with the statutes relating to this class of wills.* § 310. Complete execation before delivery essential — The deed must be completely executed before the delivery of it can be effectual to pass the title.* Therefore, a bill in equity may, ' Turner v. Scott, 51 Pa. St. 126, 134. And see generally, Ingraham v. Porter, 4 MoCord, 198 ; Jacks v. Henderson, 1 Desaus. Eq. 543 ; Wheeler V, Durant, 3 Bich. Eq. 452 ; Gage v. Gfage, 12 N. H. 371 ; Stewart v. Stewart, 5 Conn. 317 ; Allison o. Allison, 4 Hawks, 141 ; Wagner v. McDonald, 2 Har. & J. 346 ; Herrington v. Bradford, 1 Miss. 620 ; Watkins v. Dean, 10 Yerg. 321; 31 Am. Dec. 583; Henderson v. Farbridge, 1 Buss. 479; Green v. Pronde, 3 Keb. 310 ; S. C. 1 Mod. 117 ; Peacock v. Monk, 1 Ves. 127 ; Habergham v. Vincent, 2 Ves. Jr. 204. But it is held that although the instrument may be wholly inoperative as a deed, it cannot be admit- ted to probate as a will, when it was clearly evident that it was the intention of the maker that the instrument should operate as a deed : Edwards V. Smith, 35 Miss, 197. And see Wales v. Ward, 2 Swan, 648 ; Fitzgerald V. Goff, 99 Ind. 28 ; Swajls v. Bushart, 2 Head, 561 ; Stevenson v. Huddle- son, 13 Mon. B. 299. ' But these wiUs are not recognized in all the States. Among some of the instances in which informal documents have been held to be wiUs may be cited the case of Clarke v, Bansom, 50 Cal. 695, where the following instfa- ment, properly dated, was held to be a will : " Dear old Nance : — I wish to give you my watch, two shawls, and also five thdusand dollars. Your old friend, E. A. Gordon." The following was held to be a will : " Mrs. Sophie Loper is my heiress. G. Ehrenberg." Succession of Ehrenberg, 21 La. An. 280. So was the following : " It is my wish and desire that my good friend and relative, Dr. Joseph B. Outlaw, have all my property of every description. David Outlaw." Outlaw v. Hurale, 1 Jones (N. 0.) 150. The same instrument may be partly a deed and partly a wiU : Rob- inson V. Schly, 6 Ga. 515 ; Jacks v. Henderson, 1 Desaus. Eq. 543. But where it is sought to have an informal paper declared to be a will, it must be proven that it is the act of the deceased, and that it was executed animo testandi: Collins v. Townley, 6 Green, C. E. 353 ; Combs v. Jolly, 2 Green Ch. 625. And see Anderson v. Pryor, 18 Miss. 620 ; Frew v. Clarke, 80 Pa. St. 170 ; Brunson v. King, 2 Hill Ch. 483 ; Stein v. North, 3 Yeates, 324 ; Winch V. Brutton, 8 Jur. 1086. ' Bums V. Lynde, 6 AUen, 305 ; WiUiams v, Sprigg, 6 Ohio St. 585 ; McKee v. Hicks, 2 Dev. 379 ; Brevard v. Neely, 34 Tenn. (2 Sneed) 164. See Hicks V. Goode, 12 Leigh, 479 ; 37 Am. Dec. 677. In Shep. Touchstone, 54, it is said : " Every deed well made must be written ; i. e., the agreement § 310 SEUVKBT OF DEEDS. 288 by a married woman who has signed and sealed a blank form of a deed, giving parol authority to fill it up so as to convey her rights of dower and homestead in the land of her husband, be maintained after the instrument has been filled up in her absence, and signed and delivered by her husband, to compel the person whom the deed names as grantee to reconvey her estate in the premises. Her right to relief, it seems, is not affected by the fact that she gave her assent when informed that the deed had been filled up in conformity to her authority, or by the fact that the grantee relying upon the validity of the instrument has furnished supplies to the family, or rendered services to her husband.* Mr. Justice Chapman reviews the authorities in Massachusetts and elsewhere upon this question, and observes: "When the paper was delivered, it had no validity or meaning. The filling of the blanks created the substantial parts of the instrument itself, as much so as the signing or sealing. If such an act can be done under a parol agreement, in the absence of the grantor, its effect must be to overthrow the doctrine that an authority to make a deed must be given by deed. We do not think that such a change of the ancient common law has been made in this commonwealth, or that the policy of our legislation favors it, or that sound policy would dictate such a change. Our statutes, which provide for the conveyance of real estate by deed, acknowl- edged and recorded, and for the acknowledgment and recording of powers of attorney for making deeds, are evidently based on the ancient doctrines of the common law respecting the execution of deeds; and a valuable and important purpose which these doctrines still serve, is to guard against mistakes which are likely to arise out of verbal arrangements from misunderstandings and defect of memory, even where there is no fraud. .... If this must be all written before the sealing and delivery of it ; for if a man seal and deliver an empty piece of paper or parchment, albeit he do there withal give commandment that an obligation or other matter shall be written in it, and this be done accordingly, yet this is no good deed." This is the rule in England : Master v. MiUer, 1 Anstr. 228 ; Hibblewhite v. McMorine 6 Mees. & W. 200 ; Davidson v. Cooper, 11 Mees. Neil V. Chesaen, 15 Bradw. (HI.) 266. I. Deeds.— 19. CHAPTEE XIII. DELIVERY IN ESCJlOW. § 312. Definition of an escrow. I 313. Deed must beexeouted — Delivery the only difference between deed and escrow. § 314. Delivery to the grantee- cannot operate as an escrow, g 315. Conditional deed, g 316. Delivery to grantee's agent. g 317. Deed placed in grantee's hand for transmission to another., g 318. Some condition to be performed before delivery, g 319. Whether an escrow or a present deed, j 320. Materiality of distinction. § 821. Grantee must perform condition before entitled to delivery. i 322., Bscrow delivered without authority or obtained fraudulently passes no title, g 323. Xiegal title until performance of condition is in grantor, g 324, Not an escrow if grantor retains the right of controL g 325. Voluntary conveyance, g 326. Comments, g 327. Enforcing delivery of deed. g 328. At what time title passes, g 329. Intention of parties. g 330. lienof attachment or judgment upon land prior to second delivery, g 331. The necessity of an actual second delivery. g 332. No particular form of delivery required, g 333. Condition must be one to be performed by grantee. § 312. Definitiou of an escrow. — A delivery may be made to a third person conditional on the performance of an act or the happening of an event, whereupon it is to be delivered to the grantee. Such delivery to a third person is called an escrow. " The delivery of a deed as an escrow is said to be when one doth make and seal a deed, and deliver it unto a stranger until certain conditions be performed, and then be delivered to him to whom the deed is made to take effect as his deed. And so a man may deliver a deed, and such delivery is good. But in this case, two cautions must be heeded : first, that the form of the words used in the delivery of a deed in this manner be apt and proper; second, that the deed be delivered to one who is a stranger to it, 291 DELIVERY IN ESCEO"W. § 313 and not to the party himself to whom it is made." ^ Another definition given is : "A writing sealed and delivered to a stranger (i. e., a person not a party to it), to be held by him until certain conditions be performed, and then to be delivered to take effect as a deed. It is said that to make the writing an escrow, the word 'escrow' must be used in delivering it, but whether this is so at the present day is doubtful."* § 313. Deed must be executed — Delivery the only difference between deed and escrow. — The only particular in which a deed differs from an escrow is in its delivery. In all other respects both' are the same. It follows, therefore, that the deed must be complete, every act required to be performed in order that the present title may pass to the grantee must be performed, and the deed must be in a condition to be delivered to the grantee upon the performance of the stipulated condition. Not only are suffi- cient parties, a proper subject-matter, and a consideration required, but also an actual contract by the parties. In other words, the grantor must have sold and the grantee must have purchased the land; for a proposal to sell or a proposal to buy, although it may be stated in writing, is not sufficient. An actual contract of sale on one side and of purchase on the other, is just as requisite as the execution of the instrument by the grantor to make it au escrow. The minds of the parties must have met, the terms must have been assented to, and both parties must have agreed upon the instrument as a conveyance of the land, which would then have been delivered by the grantor and received by the grantee, were it not for the agreement that it should be deposited with some third person to be retained by him until the perform- ance of a specified condition by the grantee, and to be delivered thereupon to the grantee. Though the instrument executed by the proposed grantor is in form a deed, yet until both parties have definitely assented to the contract, it is neither a deed nor an escrow ; and as long as the proposals for sale or purchase are pending, it makes no difference whether the nominal grantor retains possession of the instrument, or it is placed in the hands ' Shep. Touch. 58. ' Rapalje & Lawrence Law Diet. tit. Escrow. For other definitions, see Baymond v. Smith, 5 Conn. 559 ; James v. Vanderheyden, 1 Paige, 387. § 314 DELIVEEY m ESCEOW. 292 of a third person. In either case it is ineffectual as a deed or an escrow.^ § 314. DeUveiy to the grantee cannot operate as an escrow. — A deed cannot be delivered to the grantee as an escrow. If it be delivered to him, it becomes an operative deed, freed from any condition not expressed in the deed itself,* and it will vest the title in him, though this may be contrary to the intention of the parties.* One of the grounds upon which this rule is based is that parol evidence is inadmissible to show that the deed was to take effect upon condition. "A deed," says Harris, J., " can only be delivered as an escrow to a third person. If it be intended that it shall not take effect until some subsequent con- dition shall be performed, or some subsequent event shall hap- pen, such condition must be inserted in the deed itself, or else it must not be delivered to the grantee. Whether a deed has been delivered or not is a question of fact upon which, from the very nature of the case, parol evidence is admissible. But whether a deed, when delivered, shall take effect absolutely or only upon the performance of some condition not expressed therein, cannot be determined by parol evidence. To allow a deed absolute upon its face to be avoided by such evidence would be a danger- ous violation of a cardinal rule of evidence. The deed in this case being absolute upon its face, and having been delivered to the grantee himself, took effect at once. It could not have been delivered to take effect upon the happening of a future contin- gency, for this would be inconsistent with the terms of the instrument itself. Without regard, therefore, to any under- 1 Fitch V. Bunch, 30 Cal. 209. ' Williams v. Higgins, 69 Ala. 517; McCann v. Atherton, 106 111. 31; Fairbanks v. Metcalf , 8 Mass. 230 ; Ward v. Lewis, 4 Pick. 520 ; Moss v. Kiddle, 5 Cranch, 351 ; WorraU v. Munn,5 N. Y. (1 Seld.) 229; 55 Am. Dec. 330 ; Duncan v. Pope, 47 Ga. 445 ; Miller v. Fletcher, 27 Gratt. 403 ; Blake V. Fash, 44 111. 305 ; Gilbert v. North American F. Ins. Co. 23 Wend. 43 ; 35 Am. Dec. 543 ; Black v. Stevens, 13 N. J. 458 ; M. & Ind. Plank Road Co. v. Stevens, 10 Ind. 1 ; Herdman v. Bratten, 2 Har. 396 ; State v. Crisman, 2 Ind. 126 ; Graves v. Tucker, 18 Miss. 9 ; Jordan v. Pollock, 14 Ga. 145 ; Fuller V. Hollis, 57 Ala. 435 ; State v. Thatcher, 41 N. J. L. 403 ; Brown v. Reynolds, 5 Sneed, 639. But see Brackett v. Barney, 28 N. Y. 333. • Braman v. Bingham, 26 N. Y. 483, 491 ; Worrall v. Munn, 5 N. Y. (1 Seld.) 229; 55 Am. Dec. 330; Gilbert v. N. A. F. Ins. Co. 23 Wend. 45; 55 Am. Dec. 330. 293 DELIVEEY IN ESCROW §§ 315-316 standing which may have existed between the parties at the time the deed was delivered, it must be held to bean absolute convey- ance, operative from that time." ^ § 315. Conditional deed, t— But this principle that a deed intended as an escrow cannot be delivered to the grantee is appli- cable, it is held in a late case in Virginia, only to the case of deeds which are upon their face complete contracts, requiring nothing but delivery to make them perfect according to the intention of the parties, and it has no application to deeds which show upon their face the necessity of the performance of something besides delivery to make, agreeably to the intention of the parties, competent and perfect contracts.^ § 316. Delivery to grantee's agent. — A delivery-to the agent or attorney of the grantee has the same effect as a delivery to the grantee personally. A deed so delivered cannot be an escrow.' A delivery of a deed with the intention of passing the title, made to an officer of a corporation, is a delivery to the corporation itself, if it be done for the use and benefit of the cor- poration. But a deed may be delivered to an officer of a corpo- ration to take effect as an escrow, upon the performance of a condition, as there is no such personal identity between a corpo- ration and its officers as will prevent a delivery to the latter as an escrow.* Where a perfectly executed deed of release is deliv- » In Lawton v. Sager, 11 Barb. 349, 351. But see Bibb v. Eeld, 3 Ala. 88. " Wendlinger v. Smith, 75 Va. 309. ' Duncan v. Pope, 47 GJa. 445. * Southern Life Ins. etc. Co. v. Cole, 4 Fla. 359 ; Bank of Healdsburg v. Bailhache, 65 Cal. 326. In the former case the opinion of the court was delivered by Thompson, J., who said (p. 373): "The appellants, how- ever, plant themselves upon an alleged delivery of the deeds to the South- em Life Insurance and Trust Company, its acceptance of them as valid instruments, and an alleged credit to Tooke, as conclusive of their right to the decree of foreclosure prayed for. And first, as to the delivery of the deeds : Delivery of a deed is a matter in pais, and there is no doubt that the possession of a deed by the grantee, acknowledged by the grantor for record, is evidence of delivery, but the authorities cited do not make it more than prima fade evidence of the fact. It is, even in a court of law, susceptible of explanation or rebuttal. The grantor may show that such possession is the result of fraud, mistake, or accident : 2 Greenlf . Ev. § 297, and aathorities cited in the margin. But whatis the evidence of delivery in the case before us ? On the part of the appellants, there is nothing more than the prima § 316 DELIVEEY IN ESCROW. 294 ered to a known agent of the releasee, it is in law a delivery to the principal, and it is immaterial by what verbal stipulations facie case made by the possession of the deeds. On the part of the respond- ent, there is the express denial of the answer, which is responsive, not only to the allegations of the hill, bnt to the special interrogatory addressed to him. The explanation which he gives as to the manner in which the company became possessed of the deeds, is perfectly consistent with the contract proved, of which the execution of the deeds was an Integral part. The respondent executed the Instruments and deposited them with the cashier, or other ofi&cer of the company, at its office, the place where the execution of the contract was to be finally consummated, so far as the respondent was interested, to wit: The transfer of the shares, which to be fuU and perfect must be made on the books of the corporation, there to be ready for the final completion. It is said that delivery to an officer or servant of a corporation is delivery to the corporation. To this we assent, with the addition that such delivery Is for the use and benefit of the corpora- tion, and with intent to pass an absolute property or interest in the deed delivered ; and the rule woilld be the same if the delivery should be made to a mere stranger. We do not think that there is such a personal identity between the corporation and its officers, that a deed may not be placed in the hands of the latter as an escrow until the performance of some con- dition, etc. Whether there was any formal notification by words or not, at the time of the deposit or delivery to the officers of the company, that it was to operate as an escrow, is not, it seems, material. In Bowker v. Burdekin, 11 Mees. & W. 145, Parke, B., says : ' I take it now to be settled, though the law was otherwise in ancient times, as appears by Sheppard's Touchstone, that in order to constitute the delivery of a writing as an escrow, it is not necessary that it should be done by express words, but you are to look at all the facts attending the execution — to all that took place at the time, and to the result of the transaction ; and therefore, though it is in form an absolute delivery, if it can be reasonably inferred that it was delivered not to take effect as a deed tiU a certain condition was performed, it will nevertheless operate as an escrow.' We find no suffi- cient proof of the delivery of the deeds in question. The presumption of a delivery, as an independent and substantive contract, is repelled, not only by the answer, but by the proofs of the contract which was in fact made, and of which the deeds were but an integral pai;t; a contract of which the company had full notice, for it was qot an unimportant party thereto. It must be borne in mind that this court is now sitting as a court of equity, which regards not the circumstances or outward ceremonial, but the substance of the act, and therefore we think that if the respondent had entered the parlor of the company, the president and directors being there in session, and by the most formal act had delivered the deeds in question to the head of the corporation, stating the circumstances under which and to accomplish which they were executed, we should be compelled to regard it as a delivery, to take effect only on the final consummation of the contract. In Flagg v. Mann, 2 Sum. 510, that learned jurist. Justice Story, says : Though there is a technical difficulty in the suggestion of the delivery of the deed to the grantee as an escrow, yet a court of equity wiU not govern itself exclusively by technical principles of law, where 295 DELIVEEY IN ESCEOW. § 317 or conditions its delivery was accompanied, as to its operation after delivery, it will, notwithstanding, be operative from the time of its delivery. It is not, however, an inevitable conclu- sion that the mere delivery of manual possession is a valid delivery of the deed. If the acceptance of an agency from both parties will involve no violation of duty to either, the releasor may make the agent of the releasee his own agent for the pur- pose of holding the deed as an escrow, and returning it to him in case a stipulated condition is not performed. The rule that a delivery to an agent of the grantee is equivalent to a delivery to the grantee himself would not apply in such a case, because therg is not that personal identity between the releasee and his agent, upon which the reason for the rule depends.^ § 317. Deed placed In grantee's hand for transmission to another. — Where it was agreed between the parties that a deed should remain in the hands of a third person until the happen- ing of a certain event, when it should be delivered over and take effect, it was held that the fact that it was left in the hands of the grantee, but solely for the purpose of transmission, to such third person, did not cause the deed to take effect as an oper- ative instrument.* But in the case cited, the dfeed' at the time the intentions of the parties will be thereby defeated.. It neqpires, how- ever, he says, dear evidence of what the intentiO(niis,.and whether it will be so defeated ; otherwise the rule of law must prevaiL, In.this case we are perfectly satisfied of the intentions of the parties,aiul>that if the possession of the deeds by the company be regarded as an, absolute technical deliv- ery, the intention of the party wiU be frustrated and. defeated." See Millership v. Brookes, 5 Hurl. & N. 797. 1 Cincinnati, Wilmington etc. K. K. Co. v. Ilifi^,l&Ohio,St. 235. ' Gilbert v. North America etc. Ins. Co. 23, Wend.. 43; 35 Am..Dec. 543. And see Jackson v. Sheldon, 22 Me. 569 ; Brown v^ Beynolds, 37. Tenn. (5 Sneed) 639 ; Simonton's Estate, 4 Watts, 180 ; Murray v. Stair, 4 Bam. Smith V. South Royalton Bank, 32 Vt. 341, 347, per Bennett, J. ' White V. Core, 20 W. Va. 272 ; Black v. Shreve, 13 N. J. Eq. 458 ; Everts v. Agnes, 4 Wis. 343 ; S. C. 6 Wis. 453 ; 65 Am. Dec. 314 ; Smith v. South Royalton Bank, 32 Vt. 341 ; Patrick v. McCormiok, 10 Neb. 1 ; Peo- ple V. Bostwlck, 32 N. Y. 450 ; Dyson v. Bradshaw, 23 Cal. 536 ; Fitch v. Bunch, 30 Cal. 208 ; Abbott v. Alsdorf , 19 Mich. 158 ; Cagger v. Lansing, 57 Barb. 421 ; lUinois Cent. R. R. Co. v. McCuUough, 59 111. 170 ; Peter v. Wright, 6 Port. (Ind.) 183 ; Fraser v. Davie, 11 S. C. 56. And see Fresno Liand Co. v. McCarthy, 59 Cal. 309. In the case of Smith v. South Royal- ton Bank, supra, a bond and mortgage had been executed for the purpose of being delivered to the treasurer of the State, to enable a bank to obtain an increased issue of registered bills. The mortgagor delivered the bond and mortgage to a third person until he received an indemnity bond from the bank. The depositary, however, delivered the instruments to the treasurer in violation of his trust. No bond ever having been delivered, and suit being brought, the mortgagor urged that no title passed to the treasurer, because the condition upon which delivery was to be made was not performed. Bennett, J., delivering the opinion of the court, said: "The deed not having been delivered, it was a nullity and void, or, more properly speaking, never existed, and must be tainted with the fraud of Bolfe, which goes to the very existence of the instruments, into whosesoever hands they may come. It is not like the cases where the fraud is collat- eral, as where the instrument has become a perfect one, and it is appro- priated fraudulently to a use different from the one for which it was created. It is then the important question in the case, whether from the facts disclosed there is any good ground to hold that the grantors cannot avail themselves of the want of a delivery of the bond and mortgage 1 It is said on the part of the defense that the orators ought to be bound by the delivery of the bond and mortgage by Rolfe, although he has been guilty of a gross fraud, and has transcended his authority, because the orators have enabled him to mislead an innocent party, and that the maxim of natural justice applies to this case with its full force, 'that he who, though without any intentional fraud, has put it in the power of another person to do an act which must be injurious to himself, or to another innocent 301 DELIVEEY IK Escasow. § 322 possession of a deed by the grantee is jmma fade evidence of its delivery, yet where it appears that the final transfer was party, shall himself suffer the loss rather than the other party who has placed confidence in him.' Though this position may seem specious, y^t we think, as applied to this case, it is not sound. The authority delegated to Bolfe was to do a single a>2t, and his agency was of the most special kind, requiring him only to perform a single act, strictly ministerial in its character. Mr. Smith, in his treatise on Mercantile Law, a work of great accuracy, on page 59, second edition, after defining a general agent, pro- ceeds to say : ' His authority cannot be limited by any private order or direction not known to the party dealing with him. But the rule,' he says, 'Is directly the reverse concerning a particular agent, that is, an agent employed specially in one single transaction, for it is,' he adds, 'the duty of the person dealing with such a one to ascertain the extent of his author- ity, and if he does not do it he must abide the consequences.' So- in Paley on Agency, by Lloyd, third edition, 199, note, after stating the rule applicable to general agents, and the assumptions to be made that they have an unqualified authority to act in all matters within the scope of their agency, it is said, ' in the case of a particular agent, that is, one employed specially in that single instance, no such assumption can be reasonably made, and it becomes the duty of the person dealing with him to ascertain by inquiry the nature and extent of his authority, and if it be departed from he must be content to abide the consequences.' This distinction, he says, will explain all the cases in the text : See also. Smith's Mer. Law (3d ed.), 107, 108 ; Wooden v. Bnrford, 2Cromp. & M. 395 ; Jordan v. Norton, 4 Mees. & W. 155 ; Sykes v. Giles, 5 Mees.A W. 645. ' Where one of two innocent persons must suffer from the fraud of a third person, the inquiry naturally arises, which gave the credit? Smith is not chargeable with holding out Kolfe as possessing larger powers than he in fact had ; and the State treasurer not having ascertained the true extent of his powers, though this may be without any personal fault in him, must, as between Smith and himself, be regarded as having trusted to Rolfe rather than Smith ; or in other words, the State treasurer, or rather those in whose behalf he was acting, must sustain the loss occasioned by the fraud of Rolfe rather than Smith. If an agent in dealing for his principal strictly within his authority commits a fraud in the sale of property, the principal must answer for it, unless he chooses to repudiate the fraud and restore the dealer to his former situation. He cannot adopt the dealing and repudi- ate the fraud. The maxim in relation to which of two innocent persons shall suffer from the fraud of a third person, is not to be so extended as to make the principal responsible for the want of the general integrity of his agent, and for his acts attended with fraud which are not included within the power conferred upon him. Such an application of the maxim would break down well-settled principles, and would prevent the principal from defending upon the ground that it was the fraud of the agent, even in cases where the agent acted in a matter beyond the extent of his powers. The maxim was first applied by Lord Holt in an action for a deceit in the sale of some silks by an agent who had authority to make the sale : ' 1 Salk. 289. In such a case the application of the maxim is well enough, but here Bolfe was a special agent to deliver the deed upon a special condition, § 322 DELIVEEY IN ESCROW. 302 dependent upon the compliance with certain terms- and condi- tions, the party who claims under the deed must prove such compliance. His right to the deed and to the property conveyed is subject to the performance of a condition precedent, and this performance it is necessary to prove. That the condition upon which he' was to receive the deed has been performed, cannot be inferred from the fact that the grantee has the unexplained pos- session of the deed.* " If the party to be bound suffer the paper to go into the hands of a third person, with authority to deliver it in case certain conditions are complied with, a transfer of the paper without compliance with the conditions is no delivery for want of authority in the agent to do the act. It is the duty of the party thus accepting a tradition of the instrument to see to it that the agent in the act of transfer is authorized to do it, unless he be the party's general agent." ^ An owner of a tract of land and the fraud consisted in bis doing an entire act which he had no author- ity to do. It might have been better if the law had required that it should appear upon the face of a deed that it was delivered as an escrow, and if such had been the rule grantees might have been more secure against fraud ; but as was well said by Marshall, G. J., 'the law is settled other- wise, and it is not to be disturbed by the court : ' 4 Cranch, 222. The posi- tion that an agent with limited powers cannot bind his principal when he transcends his powers, and that the person dealing with him is bound to know the extent of his powers, is too well established to be questioned: 1 Peters, 290. The bond ftnd mortgage then was a nullity in the hands of the treasurer for the want of a delivery, and he cannot escape this consequence by an application to the case of the maxim which is. sometimes applied as between two innocent parties. This is not like the case of Pratt v. Holman et al. 16 Yt. 530. There the deed was delivered to the agent appointed by the grantee to procure it. In such a case the delivery to the agent was effective to pass the title, although it was delivered upon a condition which had not been performed : 1 Seld. 238 ; 8 Mass. 238. In legal effect it was a delivery to a grantee. Besides, the court in Pratt v. Holman put the case upon the ground that the agent was satisfied with the promise to pay the money, and if not paid an action might be had on the promise. This was clearly a case where the deed took effect from the time it was-deUvered to the agent." And see Cotton V. Gregory, 10 Neb. 125 ; Titus v. Phillips, 18 N. J. Eq. 541. » Black V. Shreve, 13 N. J. Eq. (2 Beasl;) 455. ' Whelpley, J., in Black v. Shreve, supra. But see Blight v. Sohenck, 10 Pa. St. 285, 51 Am. Deo. 478, where Kogers, J., said, his remarks, how- ever, being o6i«er dicta, aa the case was decided on another point: "If a man employs an incompetent or unfaithful agent, he is the cause of the loss so far as an innocent purchaser is concerned, and he ought to bear it, except as against the party who may be equally negligent in omitting to inform himself of the extent of the authority, or may commit a wrong by 303 DELIVEEY m ESCROW. § 323 having subscribed for stock in a railroad company, signed and acknowledged the deed for the land, which, it was agreed, the company should take in payment for the stock subscribed. The deed was placed in the hands of a third person, the grantor tell- ing him that an agent would call in a short time and deliver a certificate for the stock subscribed, and the depositary was instructed upon the receipt of the certificate to deliver the deed to the company's agent. The agent called, but did not have any certificate of stock; he, however, requested the depositary to place the deed in his hands so that he might give it to the attor- ney of the company for examination. This was done, and the company sold the land.. But it was held that the delivery by the depositary before the performance of the condition did not convey the title, and that the owner was entitled to have his deed and the deed made by the railroad company to its grantee set aside as void.* But where persons after an exchange of lands had deposited their deeds in escrow and transferred to one another the possession of their respective tracts of land, and the deposi- tary had one of the deeds recorded without the grantor's knowl- edge, and a person in good faith took a mortgage on the land for a loan, it was held that although the mortgagor neglected to pay off cenain encumbrances, as he agreed to do with his grantor, still the lien of the mortgagee was valid,* § 323. Legal title until performance of conditioii is in grantor. — The legal title where possession of an escrow is obtained, without performance of the condition upon which a delivery to acting knowingly contrary to them. But this principle must not be extended to a person who has no possible means of protecting himself, who acts on the presumption that the records of the county are not intended to mislead, but speak the truth, that the acts and declarations of the grantor are such as they purport to be. If the grantor is injured by the conduct of his agents, the remedy is against them ; surely there is no reason that it should affect an innocent purchaser who pays his money on the faith that his title is good. Nor is it any answer that he may protect himself by proper covenants. This, in many cases, may be impracticable, and would amount to this, to discourage all sales or transfers of property whatever." 1 Berry v. Anderson, 22 Ind. 40. And see Wallace v. Harris, 32 Mich. 880; Souverbye v. Arden, 1 Johns. Ch. 240; Illinois Cent. B. B. Co. v. MoCnllough, 59 lU. 170. ' Bailey v. Crim, 9 Biss. 95. § 324 DELivEEY nr escrow. 304 the grantee was to be made, remains in the grantor, or if he is dead, in his heirs. To maintain the plea of an innocent purchaser, a person must have acquired the legal title which he seeks to protect against some latent equity or charge on the land. Hence, this plea cannot avail a person who has bought on the faith of the possession of the escrow by the person named therein, where such possession has been obtained wrongfully. The conveyance made by the grantee in the escrow cannot affect the legal title, for that remains in the grantor or his heirs. And as the equities of such purchaser and those of the heirs of the original grantor are equal, the legal title which is vested in such heirs must pre- vail.* Where a deed is delivered before compliance with the condition, the grantor is not estopped from setting up its invalid- ity by the fact that he had acted upon the belief that the con- dition has been complied with before delivery.^ When the deed has been delivered without authority, the grantor may recover it by action, or have it removed as a cloud upon his title.' § 324. Not an escrow if grantor retains right of control — As we have already pointed out, it is essential to a complete and effectual delivery of an instrument intended to operate as a present deed, that the grantor should part with all control and dominion over it. If he retains the right to recall the deed, it cannot be considered as delivered. The same principle applies to an escrow. If the grantor retains the right of control over it, it is not an escrow, notwithstanding the fact that it may be deposited with a third person with instructions to deliver it to the grantee upon the compliance by him of certain specified conditions.* "An essential characteristic and indispensable feature of every deliv- ery, whether absolute or conditional^ is that there must be a parting with the possession, and of the power and control over the deed by the grantor for the benefit of the grantee at the time ofddwery."^ * Harkreader v. Clayton, 56 Miss. 383; 31 Am. Rep. 369; Patrick ti. McCormick, 10 Neb. 1. But see Bailey v. Criia, 9 Biss. 95. ' Robbing v. Magee, 76 Ind. 381. » EiclUor V. Holroyd, 15 Bradw. (III.) 657. * Campbell v. Thomas, 42 Wis. 437. 6 Prutsman v. Baker, 30 Wis. 644, 646, per Dixon, C. J. 305 DELIVEEY IN ESCROW, §§ 325-326 § 325. Voluntary conveyance. — But it seems that if a person execute a voluntary conveyance without consideration, intending it as a donation of land, and place it in the hands of a custodian, he may ydthdraw it at any time before delivery; the custodian is not the judge of the performance of the conditions, where delivery is conditional, and he has no power t» deliver the instru- ment until the donor is satisfied. Therefore, where a deed was thus executed and left with a person not to be delivered until signed and acknowledged by the grantor's wife, nor until the grantee should execute a mortgage, as the grantor termed it, secur- ing to Jiim and his wife a life estate in the premises, and the custodian placed the deed on record without authority, after the grantor's death, although it had not been signed and acknowl- edged by the wife, and the mortgage had not been delivered, the deed was set aside at the suit of the heirs of the grantor, as a cloud upon their title.* § 326. Comments. — In the case cited in the preceding section, it appeared that the conditions had not been performed, and while the decision was right upon themerits, we think the language quoted in the note is subject to criticism. Although the deed was voluntary, we understand that a voluntary conveyance, so far as the grantor's title is concerned, is just as effective as any other, when it becomes an executed contract. If, therefore, the con- ditions upon which the deed was to take effect had been complied with, the donee in our opinion would be entitled to the deed, and where the grantor had not stipulated that his judgment as to the compliance with the conditions should be final, he could not arbitrarily say that the conditions had not been performed. It would certainly seem that the grantee ought, upon proof of -the 1 Holg V. Adrian College, 83 111. 267. Mr. Justice Scott delivered the opinion of the court, and said: "It was his [the grantor's] privilege to jndge for himself whether the terms upon which he was willing to deliver the deed to his property as a donation had been performed. The scrivener in whose custody the deed was left, was not invested with any discretion in regard to it. He had no authority to deliver it until the grantor was satisfied it should be. Being a voluntary conveyance without consider- ation, the grantor was at liberty at any time to withdraw the deed from the position of the custodian, and the grantee could have no just cause to complain. The grantor was under no legal obligation to complete the donation." I. Deeds.— 20. § 327 DELIVERY IN ESCEOW. 306 performance of the conditions, to be entitled to the delivery of the deed. § 327. Ecpilty wiU enforce the delcvery of a deed held as an escrow, where the condition has been fulfilled. In a case of this kind, the depositary is as much the agent of the grantor as of the grantee. His obligation to deliver the deed on perform- ance of the condition is just as strong as it is to withhold it until performance.* And the destruction or detention by the grantor of the deed, after performance of the condition, will not prevent the deed taking effect.* Where a person executes and acknowl- edges a deed conveying a farm in fee-simple to his sister, and leaves it in the custody of a third party undelivered and without any instructions as to delivery, and subsequently makes a will in which he devises two acres of the farm to another for life, with the proviso that the same, upon the death of the devisee, should "revert back to said farm, and become the property of my said sister, Barbara Lloyd, together with other lands I have already conveyed by deed to her," the devisee is entitled to a life estate in the two acres, and the sister is entitled to the fiirm in fee-simple, subject to such life estate.* • Stanton v. Miller, 65 Barb. 58. And see Lessee of Shirley v. Ayers, 14 Ohio, 308 ; 45 Am. Deo. 546. ' Began v. Howe, 121 Mass. 424. Colt, J., delivering the opinion of the court, said : " There was evidence that the conditions upon which the deed was to be delivered to the grantee had been fully performed, so that the equitable title to it was in the grantee ; that the scrivener in discharge of his trust, intending to complete its delivery, gave it to the petitioner her- self to carry and deliver it the grantee, and that she took it away, declar- ing that she took it for that purpose. This is enough to constitute a delivery, if subsequently accepted as a delivery by the grantee. It is not necessary as between the parties themselves, even when both are present, that the deed should be placed in the actual custody of the grantee, or of his agent. It may remain with the grantor, and it will be good, if there are other acts and declarations sufiScient to show an intention to treat it as delivered. The significance of the acts or declarations relied on will be greatly strengthened where the deed is placed in the hands of a third per- son, by the fact that the conditions upon which the delivery of the deed depends have been fully performed. The destruction or detention of the deed by the grantor after such delivery, cannot divest the grantee's estate." » Thompson's Executors v. Lloyd, 49 Pa. St. 127. The court, per Wood- ward, C. J., said : "The deed can have no operation as a conveyance of the title, because it was not delivered in the lifetime of the grantor; but it 307 DELIVEEY IN ESCROW. § 328 § 328. At what time title passes. — The general rule is that the title passes only upon the second delivery, or upon the hap- pening of the event made the condition of delivery. But in certain cases for the prevention of injustice, the instrument will relate back to the first delivery so as to pass title at that time. The law upon this point has been thus stated : " The title only passes on the performance of the amdition or the happening of the event, except in certain cases where by fiction of law the writing is allowed to take efifect from the first delivery. This relation back to the first delivery is permitted, however, only in cases of necessity and where no injustice will be done, to avoid injury to the operation of the deed from events happening between the first and second delivery ; as if the grantor, being a femme sole, should marry, or whether 2i.fenvme sole or not, should die or be attainted after the first and before the second delivery, the deed will be considered as taking effect from the first deliv- ery, in order to accomplish the intent of the grantor, which would otherwise be defeated by the intervening incapacity. But subject only to this fiction of relation in cases like those above supposed and others of the kind, and which is only allowed to prevail in furtherance of justice and where no injury will arise to the rights of third persons, the instrument has no effect as a deed, and no title passes until the second delivery ; and it has accordingly been held, that if, in the mean time, the estate should be levied upon by a creditor of the grantor, he would hold by virtue of such levy, in preference to the grantee in the deed."' Relation, however, is made to the first delivery only for the purpose of effectuating the deed. And it may be stated that so far as the capouMy of the grantor is concerned, the existed, and may be taken in connection with the wUl to explain the language quoted above. Wills often refer to deeds, bonds, aud other instruments of writing which exist independently of themselves ; and to explain the intention of the testator, recourse is always had to the instru- ment referred to. It becomes in some sense a part of the will, and is to be taken in connection with it to get at the testamentary purpose. So, usmg the deed in this instance to interpret the allusion in the will, there can be no doubt that the latter received the proper construction in the court below, and that Mrs. Iiloyd holds, under the will, the title to the farm, subject to the life estate of Barbana Clough in the two acres." • Prutsman v. Baker, 30 Wis. 644, 649. § 329 DELrVEEY IN ESCEOW. 308 deed is to take effect from the first delivery.* A grantor exe- cuted a deed, his wife joining in the conveyance, and deposited it in escrow. Before the payment of the purchase money and the acceptance of the deed, the wife of the grantor died and he remarried; but it was held that the claim of the second wife to dower was taken away by relation of the deed back to the time of its delivery in escrow.'' A grantor deposited a deed with a third person as an escrow, instructing him to deliver it to the grantee on the production of a mortgage executed and recorded, and a certificate of the clerk that no other encumbrances were on record. On the receipt of the mortgage and the certificate of registry by the clerk, the depositary delivered the deed to the grantee,, and the mortgage to the grantor. The clerk, however, made a mistake in the registry of the mortgage as to the amount of the debt. But, notwithstanding this, the condition was considered as performed and the delivery to the grantee was deemed proper; the deed was held to relate back, so as to give effect to an intermediate conveyance by the grantee.* §,329. Where it is the intention of the parties that the con- veyance is, after the performance of the condition, to take effect from the date of delivery in escrow, their intention will control. Accordingly, where deeds were executed on a certain day, and placed as escrows in the hands of the attorney for the grantee, and it was agreed that if certain bonds and mortgages should be delivered within a fixed time, the deeds should take effect from the day of the first delivery, it was held that the deeds took 1 2 Wharton on Contracts, § 679. And see Andrews v. Farnham, 29 Minn, 246 ; Black v. Hoyt, 33 Ohio St. 203 ; Wheelwright v. Wheelwright, 2 Mass. 447 ; 3 Am. Dec. 66 ; Graham v. Graham, 1 Ves. Jr. 275 ; Foster v. MansBeld, 3 Met. 412 ; 37 Am. Deo. 154. See Bostwiok v. McEvoy, 62 Cal. 496. » Vorheis V. Ketch, 8 Fhila. 554. And see Harkreader v. Clayton, 56 Miss. 383. » Beekman v. Frost, 18 Johns. 544; 1 Johns. Ch. 297; 9 Am. Dec. 246. See also Green v. Putnam, 1 Barb. 500 ; James v. Vanderheyden, 1 Paige, 385 ; Buggies V, Lawson, 13 Johns. 285 ; 7 Am. Dec. 375 ; Everts v. Agnes,. 4 Wis. 351 ; 65 Am. Dec. 314 ; Shirley v. Ayres, 14 Ohio, 307 ; 14 Am. Deo. U6. 309 DELrVEEY IN ESCROW. § 329 effect from that day, if the bonds and mortgages were delivered within the time specified.' 1 Price V. Pittsburgh, Port Wayne etc. R. R. Co. 84 111. 13, 33. In this case the opinion of the court was delivered by Mr. Justice Breese, and he observes upon the subject we are now considering : "It is generally true, and is the old doctrine of the books, that if a deed is delivered to a stranger to be delivered to the grantee, on the performance by him of certain con- ditions, and they are fully performed and the deed delivered, that the deed takes effect from the second delivery, and to be considered the deed of the party from that time. This rule, it is said, does not apply where justice requires a resoi \ 344. Delivery of deed of corporation. PART II. MTJNTCEPAL COHPOEATIONS. I 345. Mode of alienation prescribed in charter must be observed. \ 346. Effect of conditions in charter upon which alienation may be made. I .347. Restriction on alignation as affecting power to mortgage or lease., \ 348. Presumption of reguiarity. I 349. Same rule applicable to municipality as to general government. g 350. Requisites and proof deeds. g 351. Title cannot be conveyed by a simple ordinance or vote. § 334. Signature by corporations. — It is essential to a proper execution of a deed by a corporation that it be done in the cor- porate name and under the corporate seal.^ "The technical mode of executing the deed of a corporation is to conclude the instrument, which should be signed by some officer or agent iu the name of the corporation, with, 'in testimony whereof, the common seal of said corporation is hereunto affixed,' and then to affix the seal.'"* And the execution of the instrument should ' Hatch V. Barr, 1 Ohio, 390 ; Zoller v. Ide, 1 Neb. 439. ' Angell & Ames on Corporations, g 225 j Flint v. Clinton Co, 12 N. H. 433. 315 EXBCUTIOIT OP DEEDS BY COEPOEATIOKS. § 335 be made in its own name and under its own seal, and not under the name aud seal of the agent of the corporation, unless the latter mode is authorized by statute.* Thus, by the provisions of a statute enacted in Vermont in the year 1815, private com- mercial corporations were empowered to convey lands by a deed reciting the vote of the corporation authorizing the sale, and executed by their president under his seal.^ If a power to sell and convey be conferred upon the trustees of a corporation and not upon the corporation itself, a deed made in the name of the trustees and not of the corporation is valid.* § 335. What is a sufficient recital of execution by corporation. — Where a deed purporting to be the conveyance of the cor- poration was executed by an agent, and concluded, "in witness whereof they," mentioning the corporation, "have hereunto set their seal, and the said agent hath hereunto subscribed his name," it was held to bind the corporation.* It is not essential to the validity of a deed that it should contain a recital "sealed with our common seal," or similar words, if the fact appears other- wise,* Where a deed was made by the president of a company conveying all bis estate and that of his constituents, either in law or in equity, and which he signed, writing under his name the words " president and trustee," it was held to transfer not > Savings Bank v. Davis, 8 Conn. 191; Hatch v. Barr, 1 Ohio, 390; Isham V. Bennington Iron Co. 19 Yt. 230. • Wheelock v. Monlton, 15 Vt. 519 ; Isham t>. Bennington Iron Co. 19 Vt. 230 ; Warner v. Mower, 11 Vt. 385. ' De Zeng v. Beekman, 2 HUl, 489. A deed was made by the treasurer of a corporation, who signed and sealed it in his own name ; the convey- ance recited that he executed it on behalf of the company, and had author- ity for that purpose. It was held, however, that it was not the deed of the corporation : Brinley v. Mann, 2 Cnsh. 337. A similar decision has been made with reference to a mortgage, but the transaction, it was held, would operate as an equitable mortgage against subsequent mortgagees having notice : MUler ti, Butland etc. R. B. Co. 36 Yt. 452. See also Cobum v. Ellenwood, 4 N. H. 99 ; Atkinson v. Bemis, 11 N. H. 44. * Flint V. Clinton, 12 K. H. 430. It was held also that a lease of a cor- poration was sufficiently executed which was signed by the trustees in their individual names, and to which the corporate seal was affixed: Jackson v. Walsh, 3 Johns. 226. See Cooch v. Goodman, 2 Q. B. (Ad & E. N. S.) 580. ' Goddard's Case, 5 Bep. 5 ; Com. Dig. Fait, A, 2 ; Mill Dam Foundry V. Hovey, 21 Pick. 417. § 335 KXECUTION OF DEEDS BY COKPOEATIONS. 3l6 only the title of the company, but his individual estate as ■well.* A deed which declared that the corporation has " caused these presents to be signed by their president, and their common seal to be affixed," signed "A. B., President," and sealed, is the deed of the corporation.^ A deed of a corporation is properly exe- cuted as a common-law deed where the attestation clause is in the form, " in witness whereof the said G. Company have caused this indenture to be signed by their president, and attested by ' "Vilas V. Eeynolds, 6 Wis. 214. The deed was signed, "J. D. Doty [seal], President and Trustee of the Four Lake Company." The grant- ing words were " does give, grant, bargain, sell, demise, release, alien, and confirm unto the said party of the second part, and to his heirs and assigns forever, all that certain lot or parcel of land [describing it], together with all and singular the hereditaments and appurtenances thereunto belong- ing or in any wise appertaining, and all the estate, right, title, interest, claim, or demand whatsoever of the said party of the first part, and of his constituents, either in law or in equity, either in possession or expectancy of, in and to the above bargained premises, and their hereditaments and appurtenances." Cole, J., delivering the opinion of the court, said : "The description of the parties and the style Doty has adopted in signing the deed, favor the idea that it was Intended to be the deed of Doty in his: representative, in contradistinction to his individual capacity. But if we examine the granting part of the deed, and the estate conveyed, we find in substance the following language." He then epitomizes the granting words above given, and continues : "By this language aU the estate and interests of the party of the first part, and of his constituents, in the prem- ises, passes to the grantee ; a mode of expression entirely inconsistent with the idea that Doty conveyed in a fiduciary capacity alone. For if the party of the first part be indeed the Four Lake Company, what was the estate and interest of the constituents in the premises ? Who were the constitu- ents referred to, if not the Four Lake Company? If the grant is to be limited to conveying only the title of the company, and If Doty was a fiduciary vendor alone, then the estate of the party of the first part, and the estate of the constituents, was one and the same estate, and the lan- guage of the deed becomes senseless and unmeaning. It would all pass in the grant of the estate, of the party of the first part, and the subsequent grant of the estate of his constituents would be unnecessary and of no effect. We therefore think it manifest from this clause of the deed that it was the intention of the parties that Doty should convey to his grantee all the title and interest which he might properly and lawfully convey as the president and trustee of the Four Lake Company." The court said its view of the matter was further strengthened by the covenants which were on the part of himself and his constituents. ^ Haven v. Adams, 4 Allen, 80. An instrument which throughout the body thereof purported to be a mortgage of personal property by a cor- poration, was held to be the deed of the corporation, notwithstanding it was signed by the president only with his own name and title, and was sealed with his individual seal : Sherman v. Filch, 98 Mass. 59. See also Eureka Co. V. Bailey Co. 11 Wall. 488 ; McCollin v. Gilpin, 5 Q. B. D. 390. 317 KsaxjunoN OP deeds by corporations. § 336 their secretary, and the common seal to be affixed," and is cor- respondingly signed and sealed.^ But, on the other hand, where a president of a corporation was authorized by resolution to execute a deed conveying real estate of the corporation, and he did so in the name of the corporation, but attested it in the words, " in witness whereof I, president, have hereunto set my hand and seal," etc., and signed his own name as president, opposite to a seal upon which no distinct impression appeared, the conveyance was held to be the individual deed of the presi- dent; and as he had personally no interest in the lands con- veved, the deed was inoperative.* § 336 Seal incident to a corporation. — It has been said that incident to all corporations is the right to have and use a common seal,* This incident exists without any provision in the charter, and the corporation may adopt any seal it desires.* But the seal must be that of the corporation to bind it by deed. It is, there- fore, held that a conveyance under the private seal of an agent of the corporation, does not bind it as a deed ; but for the benefits received they may be made to respond in implied assumpsit.* And the deed must be under its corporate seal, which it may alter at pleasure, or it may adopt the private seal of an indi- vidual ; but in that case the seal must be used as that of the corporation.* ' Bason v. King's Mountain Mining Co. 90 N. C. 417. ' Tenney v. East Warren Lumber Co. 43 N. H. 343. Where a deed, however, concluded, "in witness whereof, the said B. C. S. Bank, by J. S., their treasurer duly authorized for this purpose, have hereunto set their name and seal," signed "J. S., Treasurers. C. S. Bank," and sealed. It was held to be the deed of the corporation : Hutchins v. Byrnes, 9 Gray, 367. ' Angell & Ames on Corporations, J 216 ; Dillon on Municipal Corpora- tions, J 130 ; Field on Corporations, J 279. « Case of Sutton's Hospital, 10 Rep. 30 6. See Porter v. Androscoggin, 37 Me. 349. 6 Tippets V. Walker, 4 Mass. 597 ; Brimley v. Mann, 2 Cush. 337 ; Colum- bia Bank v. Patterson, 7 Cranch, 304 ; Metropolis Bank v. Guttsohlick, 14 Peters, 19; Randall?;. VanVechten,19Johns. 65; 10 Am. Dec. 193; Savings Bank v. Davis, 8 Conn. 191 ; Haight v. Sahler, 30 Barb. 218 ; Hatch v. Barr, 1 Ohio, 390 ; Bank v. Rose, 2 Strob. ISq. 90 ; Stinchfield v. Little, 1 Greenl. 231 ; 10 Am. Deo. 65; Decker v. Freeman, 3 Greenl. 838; Elwell v. Shaw, 16 Mass. 42 ; 8 Am. Dee. 126. « Richardson p. Scott River W. & M. Co. 22 Cal. 150. §§ 337-338 EXBCunoN of deeds by cokpokations. 318 § 337. What is a corporate seal — The common seal of a cor- poration, in one sense, is the instrument by which an impression- is made upon the wax, wafer, or other substance used to take the impression. In another sense, the corporate seal is the impression itself. At common law, in order that an instrument might oper- ate distinctively as one under seal, it was essential that the cor- porate seal should be impressed upon wax, wafer, or some other impressible and tenacious substance attached to the instrument; an impression directly upon the paper was insufficient.* But this rule has been altered in most of the States by legislative action. And even in the absence of a statutory provision upon the sub- ject, it may be asserted that the modern authorities recognize the impression of a seal, when required, made directly upon the paper or parchment, as sufficient.* And a seal, which is not the cor- porate one, may be used with the assent of the directors.* § 338. Who has the power to convey for the corporation. — In general, the entire management and control of the affairs of a corporation are intrusted to a board of directors or other govern- ing body elected by the stockholders, who as a body have usually the right to take no other part in the management of corporate affairs.* When the corporate authority is thus vested, the stock- 1 Farmers' Bank v. Haight, 3 Hill, 494, 495 ; Mitchell t>. TTnion Ins. Co. 45 Me. 104 ; 71 Am. Deo. 529 ; Rochester Bank v. Gray, 2 Hill, 227. ' Corrigan v. Trenton Falls Co. 1 Halst. 52 ; Hendee v. Pinkerton, 14 Allen, 381 ; Davidson v. Cooper, 11 Mees. & W. 778 ; S. C. 13 Mees. Lord Hale's note to Coke upon Littleton, tit. 1, ch. 5, § 40, 36 a, n., 222, Butler & Hargrave's ed. See Dean and Chapter of Femes, Davies, 116 ; 2 Leon. 97 ; 1 Vent. 257 ; 1 Lev. 46 ; 3 Keb. 307 ; 1 Kyd on Corporations, 268 ; Angell & Ames on Corporations, J 227. » Derby Canal Co. v. Wilmot, 9 East, 360. The company brought an action in ejectment and recovered a verdict. Upon a motion to set it aside. Lord Ellenborough, C. J., answered, and the rest of the court agreed, '■ that in order to give it effect, the aflSxing of the seal must be done with intent to pass the estate ; otherwise it operates no more than feoffment would do without livery of seisin ; whereas, here, though the seal was directed to be and was affixed to the instrument for form, yet it was with a reservation of any present effect to pass the title out of the company, as they did not choose to deliver over the possession of the conveyance till the accounts were settled between them and the purchaser." § 345 EXECUTION OF DEEDS BY C!ORPORATIONS. 326 for the very essence of an auction sale is that every one is at liberty to bid, and that the property shall fall to the highest bidder. It could only be done by a private arrangement, and as a consequence, could not be done at all by the common council under the instructions of the charter. The case would be differ- ent if the common council had possessed authority to dispose of the municipal property at private sale. They could then have said : We will confirm the previous proceedings ; we will take the money already advanced, and what is to be advanced upon the bid, as the consideration, and transfer the title. But as the power of disposition could only be exercised in one way — by a direct vote or ordinance authorizing a public sale, after due advertisement of the time, place, and terms — no other mode could be adopted in its stead. Appropriation of the proceeds, proceedings upon the assumed validity of the sale, reference to the ordinance as having been passed, would not answer the requirements of the charter. The common council were not invested with any discretion to substitute a different mode for the disposition of the city's property in place of the one pro- vided. A private proprietor, having full power over his own property, may ratify an unauthorized sale of the same made by a person assuming to be his agent, without reference to its mode, whether made publicly or privately; he may in some instances be estopped from denying the act of the assumed agent after appropriating its benefits, with the knowledge of the facts. So the State may ratify the acts of her agents, upon a subject within the constitutional control of the legislature, when they exceed their powers. She may do this by legislation directly affirming the acts, or by legislation proceeding upon their assumed validity. The reason is obvious ; there is no limitation as to the mode in which the State may give her assent, except that it must be by an act or resolution of her legislature. Not so with a municipal body under restrictions, such as controlled the action of the common council of the city of San Francisco. They could give their assent to the sale of the city's property only in one mode."' * Grogan v. San Francisco, 18 Cal. 590, 608, per Field, C. J. See on the same subject, McCracken v. San Francisco, 16 Cal. 592 ; Pimental v. San Francisco, 21 Cal. 851. In the latter case the court said, upon the question of the purchaser's right to the money paid by the city (p. 365): "The 327 EXECUTION OF DEEDS BY COEPOEATIONS. § 346 Where a statute authorizes the board in which the corporate authority of a city is vested to convey its lands, a majority of the members of such board may execute the deed.* § 346. Effect of conditions in charter npon which alienation may be made. — If the charter prescribes a certain condition upon which the real estate of the municipal body may be sold, that condition must exist, or be performed, when performance is required, or the deed executed by the corporation will be void. Thus, where the charter declares that no real estate shall be sold severaj. cases stand simply upon this ground ; The city has obtained the money of her citizens without any consideration, under a mistaken impres- sion of her rights, and has appropriated it to municipal purposes, and they insist, and so we have held, that she is under these circumstances bound, both legally and morally, to refund it to them. The suggestion frequently made in the cases, that the claimants are taking advantage of a mere technical defect, and that had they remained contented with the sale they would not have been disturbed in their possession, is without force. That defect which vitiates entirely a sale, and leaves the title of the prop- erty in the city, can hardly be termed a technical one. It is a defect whichi goes to the substance of the whole transaction. Kor is it by any means certain that the bidders would have been left in undisturbed possession of the property had no question as to the validity of the alleged sale been raised. They could have no assurance that subsequent corporate author- ities might not claim the property ; or if the authorities did not move in the matter, that the creditors of the city might not attempt to subject the property to the satisfaction of their demands. But, independently of these considerations, it is enough to say that the bidders had a clear right to ask for a return of their money when they found that the title had not passed to them, and could not pass by the proceedings taken. They were not under any obligation to wait a moment. The money was paid for a present not a future transfer of the title." In Herzo v. San Francisco, 33 Cal. 134, in a case of the same character, Bhodes, J., delivering the opinion of the court, observed : "The first point is, 'the conveyance of the lots of land, by the city of San Francisco to the appellant, was not void, but only voidable, and might ripen into a title. The appellant, therefore, had no cause of action until he made a reconveyance and surrender of that prop- erty to that city.' Regarding the conveyance as voidable, doubtless the proposition could be successfully maintained ; but concurring as we do in the decisions on this point, in the cases mentioned, that the sale and con- veyance were void, we are bound to hold that the conveyance could not ripen into a title, and did not nor could vest in the purchaser any right, tiUe, or interest in the lots ; and that the purchaser having acquired from the city by virtue of the attempted sale neither the title nor the possession of the lots, he is not required to convey or transfer either to the city, prior to the commencement of an action to recover the purchase money." See also Satterlee v. San Francisco, 23 Cal. 314. ^ San Diego v. S. D. &. L. A. R. B. Co. 44 Cal. 106. § 347 EXECUTION OP DEEDS BY COEPOEATIOHS. ^28 "without the consent of the freeholders and other legal voters of said village, or the major part thereof, to be given at a public meeting duly notified," this consent must be obtained, and a deed made without it will be void.^ § 347. Restnction on alienation as affecting power to mort- gage or lease. — A condition, however, that a vote of the citizens of the municipality shall be obtained before corporate prop- erty is sold and conveyed, does not, it seems, affect the power of the corporation to mortgage or lease city property without such vote. For instance, in a case in Iowa, the charter declared that the city council should have the custody, care, and management of all the corporate property, " with full power to purchase, hold, possess, and occupy the same for the use and benefit of said city and the inhabitants thereof." It also contained this limitation : " Provided that the city council shall not have power to sell any real estate belonging to the said city of Dubuque, unless the qualified voters thereof, in pursuance of ten days' previous notice given by order of the city council, and published in one or more newspapers printed in said city, setting forth the time, place, and purpose of voting, and there shall be a majority of written or printed ballots given expressing their assent thereto." This restriction was considered by the court to apply to an alienation of the title only, and did not affect the power to mortgage; and accordingly a mortgage made without the previous assent of the electors was held valid.* Concerning a provision of this kind ^ Still V. The Trustees of Lansingburgh, 16 Barb. 107, 112. ' Middleton Savings Bank v. The City of Dubuque, 15 Iowa, 394. Wright, J., delivering the opinion of the court, said (p. 410): "The sale contemplated in the restriction refers to an alienation, not a mere encum- brance. Under our law the legal title remains in the mortgagor. The mortgagee acquires no right to the property which can be attached, reached by the levy of an execution, nor that can be inherited. The mortgage is but a lien upon the land to secure the payment of a debt. The thought that the city property might thus indirectly be sold without a vote of the people, is entitled to but little weight, for the same thing might be aeeomplished by incurring a simple debt upon which judgment might be recovered, and the property sold under execution. And that a debt might be contracted without a vote is undenied. The publicity of the judicial proceedings and sheriff 's sale would give ample opportunity for the detection of any fraud and the protection of the interest of the city by any one interested. But in the ca.se of a private, absolute sale, it was 329 EXECUTION OF DEEDS BY COKPOEATIONS. §§ 348-349 upon the po'wer to lease, it was said in the same State : " This inhibition upon the power of the council to dispose of and make sale of the real estate of the city, has reference to the transac- tions which shall result in parting with the title, and vesting it permanently and entirely in another. It never was intended that a stall in the market-house could not be leased without the authority of a majority of the legal voters." * § 848. PresTunption of regularity. — A deed executed by a municipality showing nothing on its face to render it invalid, will be presumed, when the corporation has power to alienate, to have been executed in pursuance of that power. The deeds need not recite the ordinances or resolutions, nor show on their face that the contingency authorizing the sale has occurred.* "If it were conceded," says Wagner, J., for the court, "that the city of St. Louis, in disposing of her commons, occupied the position of a trustee, there might be some weight in the objection ; but it is well settled that the rules that govern trustees in the execution of their trusts do not apply to city authorities. A deed by a trustee under a special power, must recite the power and show on its face that the contingency has happened which would authorize the sale. Not so with municipal officers acting under ordinances or resolutions of the law-making power of the corporation."* § 349. Same rule applies to municipality as to general govern- ment. — It is said that so far as a consideration of this character is involved, a municipal corporation occupies a position similar to that of the United States. "When a deed from the United States is produced, the grantee is not bound to show that all the prerequisites of the law have been complied with. It is not incumbent on him, when he produces his patent, to prove that deemed wiser and safer to first take the opinion of the inhabitants, and thus remove the opportunity for fraud and speculation on the part of the city authorities." Baldwin, J., however, dissented from this view. See Dr. Bayter v. St. Peter's Church, 3 Comst. 238. 1 The City of Dubuque v. Miller, 11 Iowa, 583, per Wright, J. See Davenport v. Kelly, 7 Iowa, 102. ^ Jamison v. Fopiana, 43 Mo. 565. 3 Jamison v. Fopiana, supra. § 350 EXECUTION OP DEEDS BY COEPORATIONS. 330 the land was surveyed, and that it was duly proclaimed for sale by the president, and that it was offered for sale at public auction. These are preliminaries to a patent which the law requires, but the production of the patent raises the presumption that these preliminary acts have been duly performed. Nor will our courts hear any objection from the opposite party on account of a defect in these prior proceedings, unless that party holds a conflicting title from the same source." ' And the same rule plainly applies where the authority to execute the deed is not derived from an ordinance, but from a statute. The deed need not recite the authority for its execution; it is suiBcient if it appears upon the face of the instrument that it was made by the proper officer in his official capacity.^ § 350. Requisites and prooi ot deeds. — xn general, the same rules that govern the validity and proof of deeds of private cor- porations apply to the conveyances of municipal corporations as well. This remark, however, is to be taken with the qualifica- tion explained in a preceding section, that where the statute confers a power to sell, and prescribes the mode in which that power shall be exercised, the execution of the deed must be made in strict pursuance of the power. Therefore, where the statute requires that the deed of a municipal corporation shall be signed by the persons executing it, proof that the deed was sealed and delivered by them is not sufficient.* Where a deed purporting ' Kapton, J., in Swartz v. Page, 13 Mo. 603, 611. " The city of Carondelet having power to dispose of its common, the deed is presumed to have been executed in pursuance of that power, and it was unnecessary for the plaint- iffs to show special authority by resolution or ordinance, and therefore the objections to the resolution introduced for that purpose are not to be con- sidered." Chouquette v. Barada, 33 Mo. 249, 259, i>er Bates, J. See, also, Flint V. Clinton Co. 12 N. H. 430 ; Hart v. Stone, 30 Conn. 94. ' Henry u. Atkison, 50 Mo. 266. Where a commissioner had powei only to convey the interest of the county, he is not authorized to insert a covenant of warranty : Henry v. Atkison, 50 Mo. 266. " Osborne v. Tunis, 1 Dutch. 633. The court on this proposition said (p. 661) : "As a general rule, the deed of a corporation is proved by proof of its corporate seal. No signature by the corporators is necessary, though in practice it is usually attested by one or more of the ofllcers of the cor- poration. The deed is complete without a signature. Proof that it is the deed of the corporation, therefore, is not equivalent to proving that it was signed by anyone. If it be true in the case of a deed of an individual that it cannot be his deed without signing, or that his sealing includes his signs- 331 EXECUTION OF DEEDS BY COEPOEATIONS. § 350 to be the conveyance of a county was signed by the proper officer, who did not add his official designation, but wrote the word "agent" opposite his name, evidence to show that he was such officer at the time of the execution of the deed was decided to be admissible. "The whole deed runs in the name of the county," observes the court, " and shows that it is the county who sells ; and can it be true that the party must lose his property because the agent has omitted to add to his name the description of office, when he was, in fact, such officer? But it is argued that the evidence offered tends to change or alter a written instrument. .... The evidence is to show that Grardner was an officer — the clerk. The contract is by the county, and the clerk was the person authorized to execute it. Does this, in fact, tend to change or alter the contract ? It seems, on the other hand, only to perfect it." * So, where a city charter authorized the appointment of a ture, neither principle applies to the deed of a corporation. The affixing of his individual seal by a grantor to a deed may import that he signed.it, but the affixing of a corporate seal cannot import that all the corporators signed it, or that the proper officers signed it. The seal of the corporation is neither the seal of the individual corporators, nor of the officers. The deed in question is executed under the authority of a particular statute conferring special powers. The deed was given in execution of the power. The power must be strictly pursued. The statute requires that the deed shall be under the corporate seal, and shall be signed by the com- missioners of the loan office. The corporate seal certainly does not prove that it was signed by the commissioners, nor does that fact appear in the formal proof of the deed. The proof would have been precisely the same if the commissioners had not signed it. ' If the proof contained in the certificate had been made in a court of justice by a living witness. It would have been radically defective. It certainly can have no greater efficacy because it is indorsed upon the deed. Where a statute has added an additional solemnity to the ordinary execution of a deed, it certainly cannot be presumed from the proof of the deed in the ordinary form that the additional solemnity was observed. If such a rule of construction is adopted, the statute becomes a dead letter." ' Gourley v. Hankins, 2 Clarke, 75, per Woodward, J. In that ease the deed was signed : " In testimony whereof, I, Stephen B. Gardner, agent of the county of Johnson, in the State of Iowa, have hereunto set my name, this ninth day of February, A. D. 1848. Stephen B. Gardner, Agent of J. C." With regard to the authority of an officer, the general rule is, that where it comes incidentally into question in a proceeding in which he is not a party, proof that he was acting as an officer is sufficient, and the regu- larity of his appointment cannot be made an issue. If, however, he relies upon proof of a due election or appointment, the fact must be shown by legal proof : Johnson v. Wilson, 2 N. H. 202 ; Pierce v. Bichardson, 37 N. H. 306 ; Bean v. Thompson, 19 N. H. 290 ; 49 Am. Dec. 154 ; Tucker v. § 351 EXECUTION OP DEEDS BY COBPOBATIONS. 332 mayor -pro tempore, a deed purporting to have been executed by a person occupying that position, and which was attested by the auditor and properly acknowledged, afibrds prima fade evidence that the person executing it was at the time acting in the capacity of mayor.* § 351. Title cannot be conveyed by a simple ordinance or vote. — An ordinance which is not under the seal of the corporation, does not express a consideration, and is not delivered, cannot be a conveyance. For example, an ordinance was passed in these words : " Ordered that, for the future, whatever small strips of land are to be found between the outward lines of Front Street and the water, shall be the property of the person owning the front lot on the opposite side of the street." In an action of ejectment brought by the corporation it was decided that this ordinance could not operate as a deed, for the absence, among other things, of a seal of the grantors, and of a consideration from the grantees, even if the latter had been properly desig- nated. In the course of the opinion it was said : " "Viewing the ordinance in the light of a conveyance, we think it so obviously defective that it could not have misled a man of ordinary capac- ity. Besides the want of a seal and a consideration above men- tioned, it is altogether informal, and does not appear ever to have been delivered to the pretended donees. The last is a decisive and fatal objection, without adverting to any others, because delivery is essential to give effect to any instrument of conveyance inter vivos, and must, in the very nature of things, be as necessary where the instrument is to operate only as color Aiken, 7 N. H. 113 ; Burgess v. Pue, 2 Gill, 254 ; Blake v. Sturdevant, 12 N. H. 573. General reputation is prima fade proof of the oflacial character of an officer: Johnson v. Stedman, 3 Ohio, 94; Potter v. Luther, 6 Johns. 431. * Middleton Savings Bank v. The City of Dubuque, 19 Iowa, 467. See also Lovett v. Steam Saw Mill Association, 6 Paige, 54. In San Diego v. S. D. li. &, A. B. B. Co. 44 Cal. 106, it was held that where a board exer- cising the corporate authority of a city was authorized by an act of the legislature to convey its lands, a majority of the members of such board may make the conveyance. But a member of such board, if it have dis- cretion in the matter, who is a stockholder in a corporation to which the deed is to be made, cannot take an official part in relation to the convey- ance : San Diego v. S. D. L. & A. B. B. Co. 44 Cal. 106. 333 EXECUTION OF DEEDS BY COEPORATIONS. § 351 of- title, as when it is to convey a complete title." ^ Nor can the title to lands of a town be passed by a vote without express authority ; and when an agent conveys, under the authority of a vote, the deed should be made in the name of the principal.^ 1 Commissioners of Beanfort v. Duncan, 1 Jones (N. C.) 239, per Battle, J. The court held that it was of so little importance as a conveyance that it would not give color of title to the defendant as an element of adverse possession. » Cofran v. Cockran, 5 N. H. 458 ; Coburn v. Ellemwood, 4 N. H. 99, 102. See Ward v. Bartholomew, 6 Picls. 409 ; De Zeeng v. Beekman, 2 Hill, 489. It has been said, arguendo, that a release by a municipality of an interest in real property and not by deed may be in a proper case enforced in eqitity : Wright, C. J., in Grant v. The City of Davenport, 18 Iowa, 179, 189. As to the liability created by covenants of warranty where city has no title to convey, see ITindler v. San Francisco, 13 Cal, 534. CHAPTER XY. EXBCCnON OF DEEDS UNDER POWEES OP ATTOENEY. § 352. Capacity to appoint an attorney. g 353. Powers of attorney by married womeo— Connnon-lsw rale< § 354. Common-law mle altered by statute. J 355. Delegation ot authority. g 356. Authority to execute a deed must be byxleed. I 357. Contract of sale. g 358. Construction of powers of attorney. g 359. General terms limited by particular words. g 360. Illustrations of construction placed upon powers of attorney. g 361. Partition. § 362. Special instances of construction. I 363. Continued. g 364. Warranty deed under power of attorney — Comments. § 365. Decisions that attorney has no power to execute warranty deed. i 366. Cases holding attorney has such power. i 367. Mr. Kawle's views. i 368. Comments. § 369. Description of property to be sold. g 370. Power to sell imports sale for cash. g 371. Sale on credit must be reasonable credit. g 372. Power to sell does not authorize gift. g 373. Exchange not authorized by power to sell. g 374. Discretion of attorney whether land is to be used for specified purposes, g 375. Revocation. g 376. Effect of sale by principal upon attorney's commissions, g 377. Execution of deeds by attorneys in fact, g 378. Belaxation of this strictness, g 379. Proper mode of signature, g 380. Comments, g 381. Some illustrations. § 352. Capacity to appoint an attorney. — A person who has the absolute dominion over property has, generally, as an inci- dent of this power, the right to dispose of it, and what he may do himself he may do by another. If he has the l^al capacity to execute a deed, he has also, as a rule of law, the privilege of delegating to another the power to do this for him. But per- sons who are under some legal disability are incapable, either 335 EXECUTION UNDER POWEES OP ATTOENEY. § 353 absolutely or partially, of appointing an attorney to execute a conveyance. Mr. Story says that infants, married women, idiots, lunatics, and other persons are thus incapable.' But Mr. Evans, referring to this statement of Mr. Story, says, with reference to the rule in England, that : " This cannot be accepted without qualification as the law of this country, for it has been distinctly laid down by the court of exchequer chamber, after a review of the cases, that when one of the parties to a contract is of unsound mind, and the fact is unknown to the other contracting party, no advantage having been taken of the lunatic, this unsoundness of mind will not vacate a contract, especially where the contract is not merely executory, but executed in whole or in part, and the parties cannot be restored altogether to their original position. It is conceived that the same result would take place, if the con- tract were made through another who acted upon the authority of the lunatic, without having been aware or taken advantage of his state of mind."^ But many of those who are disqualified from appointing agents are capable of acting as such in the execution of a naked authority to sell and convey.' § 353. Powers of attorney by married women ^Common-law rule. — A married woman can make a valid conveyance of her real estate only by executing a deed, either with or without the concurrence of her husband as may be provided by statute, and ' Story on Agency, g 6. ' Evans on Agency, 10, citing Milton v. Camroux, 4 Ex. 17; Beavan V. McDonnell, 10 Ex. 184. But on the general question, it is said by Mr. Justice Depue, in Mathiessen etc. Co. v. McMahon's Adm'r, 38 N. J. L. 536, 546 : " Notwithstanding the declaration of Chancellor Kent (2 Kent, 645), ' that the better opinion would seem to be that the fact of the existence of the lunacy must have been previously established by inquisition, before it could control the operation of the power,' the weight of authority, as weM as sound reasoning, lead to the conclusion that the after occurring insanity of the principal operates per se, as a revocation or suspension of the agency, except in cases where a consideration has previously been advanced in the transaction which was the subject-matter of the agency, so that the power became coupled with an interest, or where a consider- ation of value is given by a third person trusting to an apparent authority in ignorance of the principal's incapacity : Story on Agency, § 481 ; Bunco V. Gallagher, 5 Blatchf. 481 ; Davis v. Lane, 10 N. H. 156." See also Brown V. Goddrell, 3 Car. & P. 30 ; Baxter v. Earl of Portsmouth, 5 Barn. & C. .170, ' Story on Agency, i 7 ; Livermore on Agency, § 32. See Lyon v. Kent, 45 Ala. 656. § 353 EXECUTION UNDEE POWERS OP ATTOENEY. 336 acknowledging before some officer authorized to take acknowl- edgments, upon an examination separate and apart from her husband, that she executes the deed freely, without any compul- sion on the part of her husband. The law requires this private examination in order that she may be protected from coercion on the part of her husband, and makes her acknowledgment a part of the deed essential to its validity. In this private exami- nation, which is in its nature personal to her, another cannot act as her representative. It follows, therefore, that unless the statute confers such authority upon her, a married woman cannot execute a valid and effectual power of attorney to convey an interest in real estate, and this is the rule that prevails at com- mon law and in a large number, if not in a majority of the States.* A power of attorney executed by a husband authoriz- 1 Aiken v. Suttle, 4 Lea (Tenn.) 103; Sumner v. Conant, 10 Vt. 9; Hol- laday v. Daily, 19 Wall. 606 ; Holland v. Moon, 39 Arli. 120 ; Kearney v. Macomb, 16 N. J. Eq. 189 ; Clark v. Mumford, 62 Tex. 531 ; Earle v. Earle, 1 Spenc. 347; Lewis v. Coxe, 5 Har. 301. A married woman cannot acknowledge a deed by an attorney in fact : Dawson v. Shirley, 6 Blackf . 531. In Sumner ». Conant, 10 Vt. 9, 20, the court, per Royce, J., say : "At common law, a woman under coverture could make no conveyance of her lands, except through the agency of a court of record. She could neither convey directly by deed, nor authorize any one to convey for her ; all her present right to convey by deed is therefore conferred by statute. The requisites of a common deed of conveyance are prescribed by the fifth sec- tion of the act regulating conveyances. It must be ' signed and sealed by the party having good and lawful authority thereunto,' and signed by two or more witnesses, etc. The ninth section contemplates that such deed may be executed by attorney, and discloses some of the requisites of the power of attorney. The words are 'such power having been signed, sealed, and acknowledged before a justice of the peace, by the party having lawful right to make the same.' Thus far the statute is applicable to all persons having a legal right to act under it, whether by conveying their lands directly, or empowering agents to convey. No personal disabilities are as yet mentioned or provided for. But the twelfth section relates exclu- sively to the case of a/emme coi'ert attempting to convey her lands by deed. The right is there given or recognized to convey ' by deed of herself and baron,' and as a protection against any improper influence of the husband, her separate examination and acknowledgment are made necessary, and required to be certified upon the deed. The question now presents itself, whether this deed may not be executed through the instrumentality of a third person ? Though it is generally true that what a person has a right to do in his own affairs, he may authorize another to do for him, yet this is by no means universally true. An infant may execute and deliver a deed of his land, which will be effectual in law unless he afterwards elects to avoid it, whilst his authority to another to deed for him is merely void : 337 EXECUTION UNDER POWERS OP ATTORNEY. § 353 ing an agent to sell and convey his land, does not empower such agent, it is held, to join with the wife in a deed of land belong- ing to her. If it is necessary that the husband should join in the conveyance, a joint deed of such agent and the wife is treated as a nullity, so far as her land is concerned.^ Beeves' Domestic Relations, 251. The disability of a femme covert is not founded, like that of an infant, upon a supposed want of discretion, but results from a legal subjection to her husband, which is presumed to deprive her of that freedom of will which is essential to the validity of con- tracts, and that this disability emphatically applies to the delegation of powers, is shown by the familiar case of an attorney to defend a suit whom, it is everywhere said, the wife cannot appoint. It Is contended, however, that in this instance the statute has removed her disability. This proposition is defended on two grounds : First, that the power to convey and the deed executed by the agent being parts of one entire conveyance, constitute the deed which the statute has authorized; second, that the right to convey being expressly given, the power to create an intermedi- ate agency should be upheld as one of the necessary or usual means for exercising that right. The first ground here taken would lead to a very, free and loose construction of the statute. The power of attorney is strictly no part of the conveyance, but a mere qualification of the person wbo.is to. make it. Much less is it the deed of conveyance itself, of which alonathe statute speaks. It is known that the power and deed are distinct instru- ments, not merely executed iat different times, but acknowledged by dif- ferent persons ; the power by the party making it, and the deed by the agent who executes it. Such were the facts in this case, and how can it be maintained, except upon a subtle and strained construction of the act, that Martha Wentworth has ever executed and acknowledged the deed which professes to convey her estate ? In our opinion, the terms of the statute do not justify a conclusion so wide of their apparent import.. The remain- ing ground is open to most of the observations already made.. I shall sug- gest but a simple additional objection, which consists in the inability of the wife to revoke a power of this description, without the concurrence of her husband. Whether this consideration alone would be fatal, to the power in every case, it is certainly of great and decisive force in the pres- ent. The power in question extended to all the rights, granted.or reserved, to Gov. Wentworth throughout this State ; the property to he affected was consequently large, and the business of the agency was doubtless expected to continue through a course of years. To snstEun the power under such circumstances would be to place the valuable estate of a wiffe beyond her own control, and not unfrequently subject it to the waste of a faithless agent, or an unwise and improvident husband." And see Steele v. Lewis, 1 Mon. 48 ; Eslava v. Lepretre, 21 Ala. 504 ; 56 Am. Dec. 266 ; Butterfield v. Beall, 3 Ind. 203 ; Bocock v. Pavey, 8 Ohio St. 270; Graham ». Jackson, 6 Q. B. 811 ; Gillespie v. Worford, 2 Cold. 632 ; McDaniel u.. Grace, 15. Ark. 465 ; Wilkinson v. G«tty, 13 Iowa, 157. See also Hunt v. Johnson,J9 N. Y. 279 : Caldwell v. Walters, 6 Harris, 78 ; 55 Am. Dec. 592. 1 Toulmin v. Heidelberg, 32 Miss. 268. I. Deeds.— 22. § 354 EXECUTION UNDER POWERS OF ATTORNEY. 338 § 354 Common-law rule altered by statute. — The disability which the common law placed upon the wife has to a great extent been removed by legislation. In some States she is authorized by the express language of the statute to appoint an agent to convey her separate real estate, and in other States her power to do so is taken for granted, on the theory that what she is author- ized to. do for herself she may do by another. In Wisconsin, it was held that the husband might be the agent of the wife in transactions affecting her real estate, and under a power of attorney had authority to execute in her name a valid convey- ance of her land.* "If it is no violation of the common-law principle of the unity of husband aud wife, for the wife to act as the agent or attorney of her husband, the conclusion would seem irresistibly to follow, that it is no infringement of the same principle to allow the husband to act as the agent of the wife in cases where by law she is sui juris and capable of acting for herself. At common law, the separate exist-ence of the wife was for many purposes merged in that of the husband, and she could do no act. Incapable of acting for herself, she could not appoint another to act in her stead The disability of the wife has in many respects been removed by statute, and she is now capable of acting not only by herself, but by an agent, with no express limitation upon her power of appointment. If the doctrine of unity does not stand in the way, as it seems it can- not, then we see nothing to prevent her making her husband her agent, whenever she chooses to intrust him with the management of her affairs." ^ In California, before legislation on the subject, the common law prevailed that a married woman could not exe- cute a valid power of attorney.' But this power is now conferred by statute. Her power of attorney, however, is not valid unless acknowledged in the same manner as a deed of real property.* ' Weisbrod v. The Chicago & N. W. Ey. Co. 18 Wis. 35. ' Weisbrod v. The Chicago & N. W. Ry. Co. supra, per Dixon, C. J. SeeGridley v. Wynant, 23 How. 500; Roarty v. Mitchell, 7 Gray, 243; Hardenburg v. Larkin, 47 N. Y. 113. » Mott V. Smith, 16 Cal. 533. * Cal. Civil Code, § 1094. See also Dentzel v. Waldie, 30 Cal, 138 ; Dow V. Gould & Curry S. M. Co. 31 Cal. 629 ; Raoouillat v. Sansevain, 32 Cal. 376; Douglas u. Fulda, 50 Cal. 77, A power of attorney executed by an unmarried woman is revoked by her subsequent marriage: Judson v. Sierra, 22 Tex, 365 ; 2 Kent Com, 645 ; 3 Wash, Real Prop, 259. 339 EXECUTION UNDER POWERS OP ATTORNEY. §§ 355-356 § 355, Delegation of authority. — It is a familiar principle that an agent has no general power to delegate his authority. The trust is personal. Hence, unless the power of attorney authorizes the substitution, the attorney must execute the power himself, and cannot appoint another as a sub-agent.^ A gave B a power of attorney to sell certain lands in a certain county, with power to appoint other agents or attorneys. B afterwards executed a power of attorney to C to sell the same lands, which second power of attorney only authorized the latter to act in the name of B, and was signed by B in his own name, and contained no reference to his principal. C executed a deed by virtue of this power, but it was held in Virginia that the deed was a nullity, because the second power of attorney was not executed in the name of the principal. The decision was placed on the ground that the appointment of an attorney under the power should be executed with the same formalities, and in the same mode, as would be essential to the proper execution of a deed itself.^ § 356. Authority to execute a deed must be by deed. — The law requires that a power of attorney to execute a deed should be in writing and of the same solemnity as the deed itself. " No man shall be divested of his interest in real estate, but by his own acts and operation of law; if any authority by parol may be shown, a man may be made to convey all his estate, and the conveyance rest entirely in parol."' "An agent should not have the power to do an act where the instrument giving him the power is incomplete — where it lacks a requisite which would be essential in performing the act itself. His authority should be co-extensive with the act to be done, and the instrument clothing him with the authority as complete as the deed which he is to give. It should be executed with the same formalities as are required in carrying out the will of the principal."* 1 Bocock V. Pavey, 8 Ohio St. 270; Gillis v. Bailey, 21 N. H. 149; Lynn V. Burgoyne, 13 Mon. B. 400 ; Commercial Bank v. Norton, 1 Hill, 505. 2 Stinchoomb v. Marsh, 15 Gratt. 202. « Blood D. Goodrich, 9 Wend. 68; 24 Am. Dec. 121, per Chief Justice ' Gage V. Gage, 30 N. H. 420. See also Videau v. Griffin, 21 Cal. 389 -, Heinlin v. Martin, 53 Cal. 321 ; Smith v. Perry, 29 N. J. L. 74; Drumright V. Philpot, 16 Ga. 424; 60 Am. Dec. 738; Lawrence v. Taylor, 5 Hill, 113; § 357 EXECUTION UNDER POWEES OF ATTORNEY. 340 § 357. Contract of sale. — But the purchaser may acquire aa equitable estate where the power of attorney is defective for want of a seal.^ As a general rule, while a contract to sell real estate must be in writing, it may be executed by an agent whose authority is not under seal nor even in writing.^ But by statute Jackson v. Murray, 5 Mon. 184 ; 17 Am. Dec. 53 ; Clark v. Graham, 6 Wheat. 577 ; Rhode v. Louthain, 8 Blackf. 413 ; Gtordon v. Bulkeley, 14 Serg. & R. 331 ; Butterfield v. Beall, 3 Ind. 203 ; Rowe v. Ware, 30 Ga. 278 ; Shuetze v. Bailey, 40 Mo. 69 ; Smith v. Dickinson, 6 Humph. 261 ; 44 Am. Dec. 306 ; Maus V. Worthing, 4 111. 26 ; McMenty v. Frank, 4 Mon. 391 ; Kime v. Brooks, 9 Ired. 118 ; Wheeler v. Nevins, 34 Me. 54 ; Spofford v. Hobbs, 29 Me. 148; 48 Am. Dec. 521; Reed v. Van Ostrand, 1 Wend. 424; 19 Am. Dec. 529. 1 McDonald v. Bear River Co. 13 Cai. 220 ; Dutton o. Warschauer, 21 Cal. 609. » Brown v. Eaton, 21 Minn. 409 ; Dickerman v. Ashton, 21 Minn. 538 ; Riley v. Minor, 29 Mo. 439 ; Baum v. Dubois, 43 Pa. St. 260 ; Rottman v. Wasson, 5 Kan. 552; Lawrence v. Taylor, 5 Hill, 107; McWhorter -o. McMahon, 10 Paige, 386 ; Johnson v. Dodge, 17 111. 433. See also Clason V. Bailey, 14 Johns. 484 ; Worrall v. Munn, 5 N. Y. 229 ; 55 Am. Deo. 330 ; Champlin v. Parish, 11 Paige, 406 ; Moore v. Farrow, 3 Marsh. A. K. 41 ; Montgomery v. Dorian, 6 N. H. 250. In McWhorter v. McMahan, 10 Paige, 386, 393, the Chancellor says: "It is insisted by the appellant's counsel, that to constitute a lawfully authorized agent to make a contract for the sale of land he must have a written authority. Such, however, was not the construction which had been put upon the former statute of frauds, and the revised statutes have not changed the law in this respect. The ninth section of the Act of February, 1787, for the prevention of frauds (1 R. Ij. of 1831, p. 78), required conveyances and leases which were to transfer an interest in lands inpresemti, to be signed by the party, or by his agent lawfully authorized by writing, in order to render them valid, either at law or in equity. And the language of the tenth section was the same in this respect. But in the eleventh section, which related to executory con- tracts for the sale of lands, etc., the words ' by writing ' were left out, so that it was only necessary that the agreement should be signed by an agent lawfully authorized. Under this section, and under the correspond- ing provision in the English statute of frauds, it had long been settled that to make a valid executory contract for the sale of lands, or of an interest therein, it was not necessary that the authority of the agent should be in writing, but only that the agreement itself should be in writing, and should be signed by him as such agent : Coles v. Trecothick, 1 Smith Rep. 233 ; Barry v. Lord Barrymore, 1 Schoales & Li. 29 ; Clinan v. Cooke, 1 Schoales & L. 22 ; 1 Sugden on Vendors (10th Lond. ed.). There is cer- tainly some danger of fraud and perjury in permitting the authority of an agent to contract for the sale of the lands of another, to be established by parol. And the revisers proposed to remedy the supposed defect in the former law, by requiring that the agent who signed such a contract should be authorized by writing ; and they reported the ninth section of the title of the revised statutes respecting fraudulent conveyances and contracts 341 EXECUTION UNDEE POWERS OP ATTOENEY. § 358 in some of the States, the authority of the agent to execute a contract for the sale of real estate must be in writing, subscribed by the party sought to be charged.* And this requirement is not complied with by the fact that the owner has written letters to his son, showing merely that a certain real estate agent was employed by him to solicit and negotiate for prices, nor by the fact that the owner had sent a telegram to such agent requesting him "to hold on," in response to one from him asking if he would take a certain sum for the property.^ Where title is claimed under a deed made under a power of attorney, the authority of the attorney to execute the deed must be shown.* § 358. Construction of powers of attorney. — While the gen- eral rule governing the interpretation of all contracts or written instruments, that the intention of the parties is to be considered in construing their language, applies to the construction of "powers of attorney,^ yet powers of attorney are construed strictly, and the authority is never considered to be greater than that war- ranted by the language of the instrument, or indispensable to the effective operation of such authority. " Powers of attorney are, ordinarily, subject to a strict construction ; or, rather, the author- ity given is not extended beyond the meaning of the terms in which it is expressed. A distinction is carefully observed between such powers and other powers created by deed or will, for the accomplishment of particular purposes. The purpose to be accomplished is more regarded in the latter than in the former accordingly. But the legislature struck out the words 'authorized by writing,' which were contained in that section as it was reported by the revisers, and substituted the words 'lawfully authorized,' as contained in the previous statute on the subject. It is only necessary, therefore, to establish the fact by parol, that the person signing such a contract, as agent for the seller, was lawfully authorized to sign it as such agent. And the Supreme Court, in the recent case of Lawrence v. Taylor, 5 Hill, 107, consider this as the proper construction of the revised statutes." ' Cal. Code Civil Procedure, § 1973 ; Gen. Stats. Neb. 1873, p. 392, J 5 ; Morgan v. Burgen, 3 Neb. 213. 2 Albertson v. Ashton, 102 HI. 50. » Hager v. Spect, 52 Cal. 579. * Marr v. Given, 23 Me. 55 ; 39 Am. Dec. 600. § 359 EXECTJTION UNDER POWERS OF ATTORNEY. 342 class of powerSj and a more liberal interpretation of the words creating the powers is allowed." ^ § 359. General terms limited by particular words. — It results from the rules of interpretation applied to the construction of powers of attorney, that where authority is given to perform specific acts, and general terms are also employed, the latter are limited to the particular acts authorized by the power. For example, a person appointed an attorney with the following powers: "For me and in my name to superintend my real and personal estate, to make contracts, to settle outstanding debts, and generally to do all things that concern my interest in any way, real or personal whatsoever, giving my said attorney full power to use my name to release others or bind myself as he may deem proper and expedient; hereby making the said School- craft my general attorney and agent, and by these presents ratify- ing whatsoever my said attorney may do by virtue of this power." The court held that this instrument did not author- ize a sale of real estate.* A transfer of real estate, particularly that acquired subsequently, cannot be sustained under a power " to attend to all business affairs appertaining to real or personal estate." The language is too indefinite for such a purpose.* An attorney in fact is not authorized to sell real estate under a power ^ Brantley v. Southern Life Ins. Co. 53 Ala. 554. In Geiger v. BoUes, 1 Thomp. & C. 129, it is said : " Powers of attorney and all special powers are to be construed strictly, and the general words are to be construed in reference to the particular terms which form the subject-matter of the instrument, and in furtherance of, but in subordination to the general power conferred." ' BiUings v. Morrow, 7 Cal. 171 ; 68 Am. Dec. 235. Said Mr. Chief Justice Murray : "It requires but a glance at this instrument to perceive that no authorityis contained in it to convey real estate. The power is limited and special, and cannot be extended by implication to other acts more important in their character than those expressly pro rided in the body of the instru- ment. The rule may be thus stated ; that where the authority to perform specific acts is given in the power, and general words are also employed, such words are limited to the particular acts authorized." And see De Rutte v. Muldrow, 16 Cal. 505. ' Jjord V. Sherman, 2 Cal. 498. See also Washburn v. Alden, 5 Cal. 463 ; Johnson v. Wright, 6 Cal. 373 ; Rountree v. Denson, 59 Wis 522 ; School District v. ^tna Ins. Co. 62 Me. 330; Reynolds v. Rowley, 4 La. An. 396; 38 Am. Dec. 233 ; Boykin v. O'Hara, 6 La. An. 157 ; Maynard v. Mercer, 10 Nev. 33 ; Ferreira v. Depew, 17 How. Pr. 418 ; Wicks v. Hatch, 62 N. Y. 535 ; Lawrence v. Gebhard, 41 Barb. 575. 343 EXECUTION TJNDEH POWEES OF ATTOENEY.. § 360 "to attend to the business of the principal generally," or "to act for him with reference to all his business." * An authorization to the attorney to recover the maker's lawful part of a decedent's estate, "giving and granting thereby to his said attorney full power and authority to take, pursue, and follow such legal course for the recovery, receiving and obtaining the same, as he might or could do were he personally present; and upon the receipt thereof, acquittances and other sufficient discharges for him, and in his name to sign, seal, and deliver," does not enable the attorney to convey real estate.'' § 360. niustrations of construction placed npon powers of attorney. — An attorney was authorized "to bargain, sell, grant, release, and convey to such person or persons, and for such sum or sums of money as to my said attorney shall seem most for my advantage, and upon such sale or sales, convenient and proper deeds, with such covenant or covenants, general or special, of warranty or quit claim, or otherwise, as to my said attorney shall seem expedient, in due form of law, as my deed or deeds, to make, seal, and deliver, and acknowledge." The instrument, however, did not mention what was to be sold or conveyed. The attorney acting under this power conveyed land belonging to his principal, and the grantee entered into possession of it, and retained this possession for nearly twenty years. During all of the time the grantee was in possession under his deed, the grantor never claimed or asserted title to the land. It was held in an action demanding the premises against one who had no title under the grantor, that • it was the intention of the grantor to enable his attorney to sell and convey all the former's rights in any real estate owned by him.* An agent was appointed with these powers. "For me and in my name, to purchase all kinds I Coquillard's Administrator v. French, 19 lud. 274, 287. The power to acknowledge a deed for registration. Is conferred by implication under a power to execute it : Robinson v. Mauldin, 11 Ala. 977. ' Hay V. Mayer, 8 Watts, 203 ; 34 Am. Dec. 453. Authority to represent the principal in all that concerns his interests in the State of California, and letters subsequently written spealsing of the propriety of a sale of the land, do not authorize the attorney to bind the principal by a contract of sale : Treat v. De Cells, 41 Cal. 202. » Marr v. Given, 23 Me. 55 ; 39 Am. Deo. 600. § 36X EXECUTION TJlirDEE POWEES OF ATTOENEY.', 844 of goods, wares, and merchandise, to execute all kinds of notes, and obligations therefor ; also for me, and in my name, to sell goods or barter the same, and receive pay therefor ; to collect, deposit, draw for, and exchange money; also to buy and sell real estate, and in my name to receive and execute all necessary contracts and conveyances therefor. And further to do all things necessarj- to the transaction of a general mercantile trading, money loaning, and other lawful and proper business." It was held that this power did not authorize the attorney to sell and convey land to which, as disclosed by the records, the principal before the execution of the power had acquired title.^ A prin- cipal appointed a person to be "my true and lawful attorney, hereby confirming all sales, bargains, leases, or contracts of all descriptions whatsoever which he may make in my name and behalf, and empowering him to act in all cases in which I may be concerned as if I were present." It was held that this instrument conferred the power to sell land and execute deeds therefor.* § 361. Partition. — An attorney is not authorized to make partition of lands in which his principal holds an interest as tenant in common, under a power of attorney authorizing the attorney to sell the principal's lands, and to perform all acts to carry this power into execution.* But if the attorney does make such partition, the principal may subsequently give effect to the partition by executing deeds made on the basis of the ' Greve v. Coflan, 14 Minn. 345. The court, per Berry, J., said : "Tlie business was one in wtiich the attorney was to make the original invest- ments, and to sell the goods or real estate acquired by such investments. This appears to us to be the natural signification of the language used in the connection in which it is used : See Mills v. Carnley, 1 Bosw. 259. It is urged that this construction would furnish a bad and unreasonable rule, because it would require the purchaser to ascertain whether the attorney had bought the real estate which he assumed to sell, and that this is a matter which it would be almost if not quite impossible to determine with certainty. Whether this would be so in any instance, or not, we need not inquire. In cases like this which we are considering, no such difficulty would present itself, for the records of title (as appears by the finding) show that the premises in question were purchased by Levi Greve before the power of attorney was made." 2 Sullivan v. Davis, 4 Cal. 291. » Borel V. Rollins, 30 Cal. 408. 345 EXECUTION UNDER POWEES OF ATTORNEY. § 362 legal validity of the partition.* As in other cases, a principal may ratify the unauthorized acts of his agent in the sale of land, and such ratification may be inferred from long continued silence.* § 362. Special instances of construction. — It it held that an agent who has power to "sell" lands, has not merely as such agent the power to execute a deed. He has the power to bind his principal to convey, but cannot himself execute the convey- 1 Borel t>. Bollins, 30 Cal. 408. Chief Justice- Currey, in delivering the opinion^of the court, said : " The power of attorney from Tracy to Pratt did not in our judgment authorize the attorney to malse partition of lands in ■which Tracy had an interest as tenant in common. He was authorized under certain circumstances to sell any portion or all ot-the lands of the con- stituent, and the same to convey, and generally to do whatever in the prem- ises was necessary to carry the power granted into execution, even though the matters to be done should require more special authority than was comprised by the language employed. But, notwithstanding, the power of attorney when understood according to its language and obvious intent did not authorize the attorney to join in the partition in the name of his principal, we think there can be no question as to the power of the principal himself to give effect and confirmation to the acts of the attorney by his own acts and conduct of solemn significance, such as the execution of deeds of conveyance, which necessarily recognized the partition as of legal validity. It may be assumed that Pratt exceeded his power when he made partition with the others, claiming to be tenants in common of the block, as the attorney in fact of Tracy, but what he did though in excess of the power granted, it was proposed to prove his principal ratified and confirmed by acting in reference to and treating the partition as made by authority. In Jackson v. Rightmeyer, 13 Johns. 367, the court held that an agreement relating to a third person in the name of one of the parties, who if did not appear had any authority to execute it, was ratified by the subsequent acts of the party in whose name it was made. The judgment of the Supreme Court in this case was confirmed by the court of errors, in which Chancellor Kent delivered the opinion of the court : 16 John. 823-325. See, also, Baker v. Lorilland, 4 Comst. 257. It may be said that where the adoption of a particular form or mode is necessary to confer the authority in the first instance, there can be no valid ratification except in the same manner ; and therefore that, as the authority to exe- cute deeds upon partition must be under seal, there can be no parol ratifi- cation of a deed without authority under seal. This is certainly the doctrine of the law. But it is also the doctrine of the law that an act which oper- ates as an estoppel in pais, such as accepting the benefit of the partition attempted to be made, and dealing with the property allotted to the princi- pal by the partition as to his own by disposing of it by deeds, confirms the partition made by the attorney without legal authority : 1 Am. Lead. Cas. 574." ' Alexander v, Jones, 64 Iowa, 207; Hayes v, Steele, 32 Iowa, 44. § 362 EXECUTION UNDEE POWEES OF ATTORNEY. 346 ance, unless properly authorized hy a power of attorney.^ A power to sell does not authorize the execution of a deed of trust, with power to the trustees to sell the trust estate as they may deem advisable.^ A principal appointed a person, "my true aud lawful attorney in fact for me and in my name, to transact all my business of every kind and description, to collect and receipt for all moneys due and owing to me, and to sell and dispose of all my property, real and personal, for such price and on such terms as he may choose, whenever he may think it advisable to make such sale, hereby ratifying and confirming all such acts of my attorney." The attorney conveyed to a trustee all the property of the principal in trust to secure and pay off the creditors and sureties of the latter. It was held that the attorney had power to execute this trust deed, and hence, that the trustee took a good title to the property.® An attorney had 1 Force v. Butcher, 18 N. J. Eq. (3 Green, C. E.) 401. 2 Smith V. Morse, 2 Cal. 524. ' Lamy v. Burr, 36 Mo. 85. The court, per Wagner, J., said : " The general rule is that the power must be pursued with legal strictness, and the agent can neither go beyond it nor beside it ; in other words, the act done must be legally identical with that authorized to be done. But in aU cases, the authority should be construed and the intention of the princi- pal should be ascertained in reference to the purpose of the appointment, and a consideration of the object which the agent is directed to accomplish will either expand the powers specified as a means of executing it, or limit the exercise of the most general powers conferred. Accordingly, it is a general maxim, applicable to special and limited agencies, as well as to those which are more comprehensive and discretionary, that, in the absence of special instructions to the contrary, and in the absence of such prescription of the manner of doing the act as implies an exclusion of any other manner, and authority or direction to do an act or accomplish a particular end, implies and carries with it authority to use the necessary raeans and inducements, and to execute the usual, legal, and appropriate measures proper to perform it. The principal authority includes all mediate powers which are necessary to carry it into effect. A direction or authority to do a thing is a reasonable implication of the powers necessary to accomplish it, unless there is a special restriction, or unless an intention to the contrary is to be inferred from other parts of the authority : 1 Am. Lead. Cas. 563 ; Rogers v. Kneeland, 10 Wend. 218 ; Peck v. Harriott, 6 Serg. & R. 145 ; 9 Am. Deo. 415 ; Bayley u. Willdns, 7 Com. B. 886. It will be seen that the power of attorney in this case is of the most comprehensive character ; it gives the agent full authority to transact all business of every kind and description, to coHect and receipt for all moneys due, and to sell and dispose of all property, both real and personal, for such price, and on such terms, and at such time as he might deem advisable. The attendant circumstances leave little room to doubt what power was Intended to be 347 EXECUTION UNDER POWEES OF ATTORNEY. § 362 power to mortgage or convey land for the payment of debts. He, however, executed a deed transferring the land to a trustee, in trust, to secure certain specified creditors, and then to pay all the debts of the principal. A provision wasinserted in the trust deed excluding from its benefit all creditors who should com- mence actions on their claims. It was held that the provisions in the trust preferring certain creditors, and declaring a forfeit- ure for bringing suit, were in excess of the authority of the attorney and hence void. But the deed was held to be valid in other respects, and was construed as being for the benefit of all creditors pro rata} A power to sell land is not given by an authority to locate and survey land.^ The owner of an uncon- firmed Mexican grant executed a power of attorney, which after reciting the appointment, said : " I give him full, complete, and perfect power, as my said attorney in fact, to do any and every- thing to secure my title to said rancho, and to prosecute the pretension of the same in all the courts of the United States ; and by this I ratify, confirm, and approve all the doings of my said attorney in fact concerning said rancho." The court held that the agent did not have power under this authority to sell the land, or any part of it, or power to execute a contract which would obligate the principal to convey the rancho, or any portion of it.* given. Brand was absent from his home, with no intention or prospect of returning; he had left a large amount of business unsettled — property liable to go to decay, and be destroyed, and creditors anxious to secure their debts. He therefore executed a power of attorney, giving his agent full authority to transact all his business of every kind and description ; and this power must be interpreted, and the true intention arrived at, by a direct reference to the nature of the business to be transacted. There can be no doubt that the main business to be transacted was the applica- tion of the property to the payment of the debts. If there was no intention to vest the agent with authority to pay off the debts, why the enlarged and general power to transact all business in addition to the power to sell and dispose of property ? But if the power was given to pay debts, was the making of the deed of trust a proper execution of it ? We think it can be implied in this case without doing violence to any legal principle. The deed of trust was certainly just and equitable to the creditors, as it dis- tributed the proceeds of the property ratably among them. If it was a fit and appropriate mode of carrying out the purpose of transacting all the business, it was competent to resort to it." ! Gimmell v. Adams, 30 Tenn. (11 Humph.) 283. ' Moore v. Lockett, 2 Bibb, 67 ; 4 Am. Dec. 683. ' Blum V. Robertson, 24 Cal. 127. The court said: "In order to bind the principal in such case, it must appear that the act done by the agent was in the exercise of the power delegated, and within its limits : Meoh. § 363 EXECTTTION TJNDER POWEES OF ATTORNEY. 348 § 363. Continued. — A principal executed, as he supposed, a valid power of attorney to sell land, but the power was worthless. He then left the State, and subsequently wrote to his agent : " I have now an offer, and if it is come up to by the fellow, I shall close things very soon and be off, but shall go to Vermont first for a little while. I want you to sell same of my lots, or advance the means to meet this administration act before the year expires, which I send you by mail, accompanied by the vouchers, etc. You can sell such lots as you see fit, retaining enough to pay Judge G. for the first purchase money. It might be best to cut them up so as to sell in small lots. But you judge of this." It was held that by this letter the attorney was authorized to sell at his discretion, and that if a deed made by him w;as not good as a deed, it was good as a contract by the principal for a con- veyance.* An instrument signed "S. A. Phillips, Executrix," Bank v. Bank of Columbia, 5 Wheat. 326. No man can be bound by the act of another without or beyond his consent ; and where an agent acta under a special or express authority, whether verbal or written, the party dealing with him is bound to know at Ms peril what the power of the agent is, and to understand its legal efifect ; and if the agent exceed the boundary of his legal authority, the act, so far as it concerns the principal, is void. This is a rule of the common law,' and is indeed elementary in the doctrine of powers : Beals v. Allen, 18 John. 363 ; 9 Am. Dec. 221 ; Hubbard v. Elmer, 7 Wend. 446 ; 22 Am. Dec. 590 ; Rossiter v. Rossiter, 8 Wend. 494 ; 24 Am. Deo. 62 ; North River Bank v. Aymar, 8 Hill, 263 ; Cox v. Robinson, 2 Stewt. & P. 91; Stow v. Wise, 71 Conn. 214; 18 Am. Dec. 99. The power of attorney under consideration authorized Casimero to take all the necessary steps, and do all necessary things to secure the right, title, and claim of Mrs. Valencia to the ranch therein mentioned, and to employ lawyers, gather testimony, and to provide the necessary expenses for the same. A sale of the land, or part of it, does not appear to have been con- templated by Mrs. Valencia. If it was, she entirely failed to express any such intention, or to confer on her attorney any power to convey or con- tract in her name, or otherwise to convey any portion of it ; and it is not competent for courts to bind her by the acts of another to perform an obligation which she never incurred." ' McNeil V. Shirley, 33 Cal. 202. It was held in Fay v. Winchester, 4 Met. 513, that an attorney who is authorized to sell any of his principal's real estate is empowered to sell real estate which was acquired after the execu- tion of the power of attorney. Where an authority is conferred upon several persons, the general rule in all cases is that all mnst act to make the deed effectual, unless a contrary intention appears from the instrument which confers the poWer : Sinclair v. Jackson, 8 Cowen, 543 ; Green v. Miller, 6 Johns. 39 ; 5 Am. Dec. 184 ; Cedar Rapids R. R. Co. v. Stewart, 25 Iowa, 115 ; Franklin u. Osgood, 14 Johns. 553 ; White v. Davidson, 8 Md. 169 ; 63 Am. Deo. 699. But of course the rule is different when the power is given to several persons, jointly and severally. 349 EXECtTTION TJNDEE POWEES OP ATTORKEY. § 363 is valid as a power of attorney, which is in the form : " This is to certify that C. D. is appointed my legal and lawful agent to sell any of my lands in Tallapoosa County to M, G., and to sign my name to any deed or bond, and it shall stand good in law as though I had signed it myself."^ Where a power to sell is given, the power to convey is implied, if this construction is consistent with the whole instrument.^ A power to sell land is not conferred by a power of attorney " to act in all my business in all concerns as if I were present myself, and to stand good in law, in all my land and other business." ' Where conveyances have been made by the attorneys within the expressed terms of the power, the principal cannot contend, after sanctioning the sales by accepting the proceeds, that the sales were not author- ized by the power.^ A power of attorney executed by the owner of an unconfirmed Mexican grant, giving the attorney " full and complete power as my said attorney in fact, to do any and everything to secure my title to said rancho, and to prose- cute the pretension of the same in all the courts of the United States, and by this I ratify, confirm, and approve all the doings of my said attorney in fact concerning said rancho," does not authorize the attorney to sell any portion of it, or enter into a contract binding the principal to convey it.' If an agent is authorized to sell land for a specific sum, an agreement made by him purporting to bind his principal to sell for a less sum and to pay the taxes upon the land, will not bind his principal, unless he, with full knowledge of the material facts, consents to and ratifies the agreement.* If an attorney in fact has power to satisfy mortgages, and to make, execute, and deliver such written instruments as may be necessary for that purpose, he 1 Phillips V. Hornsby, 70 Ala. 414. 2 Hemstreet v. Burdick, 90 111. 444; Yalentlne v. Piper, 22 Pick. 85 ; 33 Am. Dec. 715. ' Ashley v. Bird, 1 Mo. 640 ; 14 Am. Deo. 313. For a case in which let- ters had passed between a principal and an agent concerning the sale of property, and in which it was held that under the circumstances of the case the agent had no power to make a sale without submitting the prop- osition to his principal, see Burlington, Cedar Bapids, etc. Ey. Co. v, Sherwood, 62 Iowa, 309. • Vaughn v. Sheridan, 50 Mich. 155. » Blum V. Robertson, 24 Cal. 127. • Holbrook v. McCarthy, 61 Cal. 216. §§ 364-365 EXECUTION itndek powees op attoeney. 350 has no authority to satisfy a mortgage until the debt, for ■which it is security, is paid.^ § 364 Warranty deed under power of attorney — Comments. — On the question whether an attomjey is authorized to execute a deed with covenants of warranty, under a power of attorney which does not expressly confer this authority upon him, the decisions are divided. Obviously, it is impossible to lay down any fixed and positive rules on the subject It perhaps will be universally conceded, that a mere naked power to convey does not authorize the execution of any deed but one conveying the legal title without covenants of warranty. But the difficulty arises where the language used in the power of attorney implies that the attorney has power to execute such conveyances as are in common use in the section of the country where the power of attorney is executed, It would seem to be a reasonable rule, that if it was the usual practice to execute deeds with clauses of warranty, and by fair construction the power to execute such deeds was conferred upon the agent, he should be held to possess such power, notwithstanding that by a stricter construction this power might be held not to have been given. In each case, regard must be paid to the language used, and hence it would be useless to attempt to formulate general rules. Without attempting to discuss this matter in any but a cursory manner, we call attention iii the following sections to some cases in which this question arose. § 365. Decisions that attorney has no power to execute warranty. — Two persons appointed an attorney in their names and to their use, to grant, bargain, sell, release, convey, and con- firm in fee, to any person, certain specified lots, and on such sale, to " execute, seal, and deliver in their names, such conveyances and assurances in the law of the premises, unto the purchaser, his, her, or their heirs or assigns forever, as should or might be needful or necessary, according to the judgment of the said attorney." The court held that the attorney had no power to execute a deed with the usual covenants so as to bind his principals. The court took the view that a conveyance is good > Hutobings v. Clark, 61 Cat, 228. 351 EXECUTION tTNDEE POWERS OF ATTOENEY. § 368 and operative without warranty or personal covenants, and hence, the power to insert them is not necessarily implied in an authority to convey, which must be strictly pursued, and does not warrant any varying in substance from it.^ A similar decision was made in New Jersey. The court held that if the power authorized the attorney to sell and convey and contained no authority to covenant, a deed executed by him must be con- sidered as against the grantor as a deed of bargain and sale with- out covenants, and w()uld not convey after-acquired property by estoppel.^ § 366. Cases holding attorney has such power. — But on the other hand, the principle applied in many cases is that if the grantor under an agreement to convey can be compelled to exe- cute a deed with covenants, an attorney under a power to sell and convey has authority to insert the usual covenants in a deed executed by him. Thus, an agent was authorized " to contract for the sale of and to sell, either in whole or in part, the lands and real estate so purchased," and "on such terms in all respects as he may deem most advantageous," and "for us, and in our names, to execute to the purchaser or purchasers thereof, the assignments, contracts, or deeds of conveyance necessary for the full and perfect transfer of all of our respective right, title, and interest, dower and right of dower, as sufficiently, in all respects, as we ourselves could do personally in the premises." The court held that these expressions, considered in conjunction with the situation of the parties and the property, the usages of the country and the acts of the parties themselves, justified the con- clusion that the agent had power to execute a deed with a cove- 1 Nixon V. Hyseratt, 5 Johns. 58. A person authorized his attorney, among other things, "for me and in my name, to grant any and all dis- charges by deed or otherwise, both personal and real, as he, my said attorney, shall deem proper, and to do all other things concerning the premises as fully as I myself could do if I were personally present, hereby ratifying and confirming all the lawful acts of him, the said attorney, or his substitute, by virtue of these present." It was held that this power of attorney could not be construed as enabling the attorney to convey the real estate of his principal by deed of warranty : Heath v. Nutter, 50 Me. 378. ^ Howe V. Harrington, 18 N. J. Eq. (3 Green, C. E.) 495. And see Ryder V. Jenny, 2 Rob. (N. Y.) 68 ; Van Eps v. Schneetady, 12 Johns. 436; Mead V. Johnson, 3 Conn. 592; Bodd v. Ejeymour, 21 Conn. 480. § 366 EXECUTION XJHTDEE POWERS OF ATTORNEY. 352 nant of seisin.* Under a power of attorney an agent was authorized to sell and convey all the real estate in a certain city 1 Le Boy v. Beard, 8 How. 451. Mr. Justice Woodbury delivered the opinion of the court, and said : "It would be difficult to select language stronger than this to justify the making of covenants without specifying them eo nomine. When this last is done, no question as to the extent of the power can arise, to be settled by any court. But when, as here, this last is not done, the extent of the power is to be settled by the language employed in the whole instrument (4 Moore, 448), aided by the situation of the parties and of the property, the usages of the country on such sub- jects, the acts of the parties themselves, and any other circumstance having a legal bearing and throwing light on the question. That the language above quoted from the power of attorney is sufficient to cover the execu- tion of such a covenant would seem naturally to be inferred, first, from its leaving the terms of the sale to be in all respects as Starr shall deem most advantageous. ' Terms ' is an expression applicable to the conveyances and covenants to be given, as much as the amount of, and the time of paying the consideration : Rogers v, Kneeland, 10 Wend. 219. To pre- vent misconception, this wide discretion is reiterated. The covenants or security as to the title would be likely to be among the terms agreed on, as they would influence the trade essentially, and in a new and unsettled country must be the chief reliance of the purchaser. To strengthen this view, the agent was also enabled to execute conveyances to transfer the title ' as sufficiently in all respects as we ourselves could do personally in the premises.' And it is manifest, that inserting cei-tain covenants which would run with the land, might transfer the title in some events more perfectly than it would pass without them ; and that if present ' person- ally ' he could make such covenants, and would be likely to it requested, unless an intention existed to sell a defective title for a good one, and for the price of a good one. It is hardly to be presumed that anything so censurable as this was contemplated. Again, his authority to sell ' on such terms in all respects as he may deem most eligible,' might well be meant to extend to a term or condition to make covenants of seisin or warranty, as without such he might not be able to make an eligible sale, and obtain nearly so large a price. Now, all these expressions united in the same instrument would, prima facie, in common acceptation, seem designed to convey full powers to make covenants like these. And although a grant of powers is sometimes to be construed strictly (Com. Dig. Poiar, B. 1, and C. 6 ; 1 Bl. R. 283), yet it does not seem fit to fritter it away in a case like this, by very nice and metaphysical distinctions, when the general tenor of the whole instrument is in favor of what was done under the power, and when the grantor has reaped the benefit of it, by receiving a large price that otherwise would probably never have been paid : Nind V. Marshall, 1 Brod. & B. 319 ; 10 Wend. 219, 252. This he must refund when the title fails, or be accessory to what seems fraudulent : 1 Marsh. J. J. 292. Another circumstance in support of the intent of the parties to the power of attorney to make it broad enough to cover warranties, is their position or situation as disclosed in the instrument itself : Solly v. Forbes, 4 Moore, 448. Le Roy resided in New York, and Starr was to act as his attorney in buying and selling lands in the ' Western States and 353 EXECUTIOK UNDER POWERS OP ATTORKEY. § 366 owned by his principal, and also to sell and convey all the principal's interest in said property, to make, execute, and deliver all necessary conveyances for this property. The power of attorney also authorized the agent "to pay all taxes on said estate, to lease said estate, and to do any and all other acts in relation to said estate that our interest may require, giving and hereby granting unto our said attorney full power and authority in and about the premises; and to use all due means, course, and process in the law, for the full, effectual, and com- plete execution of the business afore described ; and in our name to make and execute due acquittance and discharge ; . . . . also to submit any matter in dispute, respecting the premises, to arbitration or otherwise, with full power to make and substitute, for the purposes aforesaid, one or more attorneys under said attorney, and the same again at pleasure to revoke, and generally to say, do, act, transact, determine, accomplish, and finish all matters and things whatsoever relating to the premises, as fully, amply, and effectually, to all intents and jpurposes, as we, the said constituents, if present, ought, or might personally, although the matters should require more special authority than is herein comprised j we, the said constituents, ratifying, allowing, and holding firm and valid all and whatsoever our said attorney or our substitutes shall lawfully do, or cause to be done, in and about the premises, by virtue of these presents." The court held that the power in this case was broader than a mere power to sell, and that under it, he was authorized to execute a deed in the form usually adopted in conveying real estate and containing Territories,' and this very sale was as remote as Milwaukee, in Wisconsin. For aught which appears, Le Roy, Beard, and Starr were all strangers there, and the true title to the soU little known to them, and hence they would expect to be required to give warranties when selling, and would be likely to demand them when buying. The usages of the country are believed, also, to be very uniform to insert covenants in deeds. In the case of the Lessee of Clarke v. Courtney, 5 Peters, 345, Justice Story says : 'This is the common course of conveyances,' and in them 'covenants of title are usually inserted.' See also 6 Hill, 338. Now, if in this power of attorney no expression had been employed beyond giving an authority to sell and convey this land, saying nothing more extensive or more restrict- ive, there are cases which strongly sustain the doctrine that, from usage as well as otherwise, a warranty by the agent was proper, and would bo binding on the principal." I. Seeds.— 23. § 367 EXECUTION TTNDEE POWEES OF ATTORNEY. 354 the usual covenants.^ So it is held that where an attorney is authorized to execute a conveyance in as full and ample a man- ner as the principal can, he is authorized to execute a deed with covenants of general warranty.^ An agent was authorized under a power of attorney to sell the land of his constituent on the best terms possible, by public or private sale, as in his judgment might be most advantageous, and to execute such contracts, agreements, conveyances, and assurances, and perform such acts as might be necessary to perfect any sales made under this power. It was held that he had power to execute a deed with covenants of warranty.* § 367. Mr. Rawle's views. — Mr. Eawle, in his treatise on Covenants for Title, discusses the topic under consideration, and says : " The question of the purchaser's right to covenants for the title from an agent acting under a power of attorney from his principal, has often arisen in cases where, in a suit against the latter, upon covenants made in his behalf by the agent, the right so to bind the principal has been denied. In an early case in New York, it was assumed that as a deed without any cove- nants for title was sufficient to pass the estate to the purchaser, the latter had no right to demand these covenants, and hence it was said that a power of attorney to sell and convey land, ^ Bronson v. Coffin, 118 Mass. 156. ' Taggart v. Stanberry, 2 McLean, 543. In this case the court refers to "Nixon V. Hyserott, 5 Johns, 58, and says: "Between that case and the ene under consideration, a distinction may be drawn; but doubts are entertained, whether that case is sustainable on principle or authority. There was not merely an authority given to convey, but to malse such conveyances and assurances as miglit be needful or necessary, in the judgment of the attorney. Now, here was a reference to the judgment of the attorney, as to the nature of the conveyance to be executed ; and a bona fide exercise of his judgment in this respect, should have been held to bind the principal. That such was the intention of the power, as understood by all the parties, can scarcely be doubted. If such were not the case, why was the discretion of the attorney referred to in the power? It may well be supposed that he could not have sold the land for the price received, had he agreed to execute only a general release, or deed of quit claim." ' Peters v. Farnsworth, 15 Vt. 155 ; 40 Am. Dee. 671. And see Vanada's Heirs v. Hopkins' Administrators, 1 Marsh. J. J. 285 ; Ward v. Bartholo- mew, 6 Picls. 410 ; Ruoker d. Lowther, 6 Leigh, 259 ; Hedges v. Kerr, 4 Hon. B. 628. 355 EXECUTION UNDER POWERS OF ATTORNEY. § 368 expressed in the usual form, implied no power to covenant for the title; and in a subsequent case, the same rule was applied to the warranty of a chattel. It has, however, been held in Eng- land that an authority to sell a horse carries with it an authority to warrant him sound, as the warranty is, in general, a natural incident of the contract. This has been approved, and followed on this side of the Atlantic, and in many cases the correctness of the New York decisions has been denied, and it seems to be established by the weight of authority, that as the law recog^ nizes the right of a purchaser to covenants for the title from the principal, it will not suffer that right to be defeated by the mere delegation by him of authority to consummate the contract. Where, however, that authority is restricted in terms so express as to control that which the law otherwise implies, the rights of the purchaser will, of course, be limited by the letter of the instrument." ^ § 368. Conments. — The cases deciding that an attorney has power to execute a deed with covenants of warranty so as to bind his principal are based, for the most part, on the consider- ation that a deed of this nature is the one in common use, and that if such a deed were not given to the purchaser, the full price for the property could not be obtained ; hence, the lan- guage of the power tias been construed as giving the attorney power to execute such a deed, as the principal would be expected to execute if he had contracted directly with the purchaser. But, manifestly, this reasoning can have no weight, when the cus- tom of giving warranty deeds is not universal. We should think that wl;iere this is the case the rule that powers of attorney should be construed strictly would apply, and the attorney would have no authority to perform any act not expressly war- ranted by his power of attorney, or resulting as a necessary implication from the language employed. In California, how- ever, this matter has been settled by the Code, which declares : "An authority to sell and convey real property includes author- ity to give the usual covenants of warranty."^ > Bawle on Covenants, (4th ed.) pp. 47, 48. « Civil Code, Cal. § 2324. § 369 * EXECUTION UNDER POWERS OP ATTORNEY. 356 § 369. Description of property to be sold. — It is necessary that the land authorized to be sold under a power of attorney should be sufficiently described to enable it to be identified, unless it is shown alivmde that the land sold under the power is the only piece of land which the principal owned at the time the power of attorney was executed. Thus, an instrument giving " ample and sufficient power" to an agent "to use or dispose of any^ lot which I hold as may best seem to him," confers no power to sell any particular lot.* An attorney was authorized under his power of attorney to sell "one half" of a lot of land, but the particular half was not mentioned, nor was it provided whether he was to sell an undivided one half, or one half in severalty. It was held that he was authorized to sell in the exercise of his discretion any half he might select, in severalty. " The power of attorney," said Chief Justice Sawyer, "says 'the one half,' without saying the undioided one half, or the west half, or the east half, or the north half, or the south half — in short, without saying which half. We think the fair and true construction is, that the par- ticular half was left to the discretion of the agent. An estate in severalty is, certainly, ordinarily more advantageous and valuable to a party than an estate in common, and we see no good reason when the matter is thus left open, why the agent should not be regarded as vested with authority to sell in such way as to render the transaction most advantageous to both parties. He was authorized to sell one half of the lot, and he sold one half and no more. He was not in terms limited to any particular half, or to an undivided half of the whole. He would be much more likely to find a purchaser for, and the principal would be much more likely to desire to sell the whole interest in one half of the lot, than an undivided half of the whole ; and business men generally ' Stafford v. Lick, 13 Cal. 240. Said the court : " We think the paper is ■worthless for any purpose. A power of attorney in order to authorize the sale of real property, must contain some description of the property to be sold. The paper in question, if we admit it to contain a power to sell, designates no property whatever. 'By this present, I give ample and sufficient power to Don Josfe de Jesus Noe, to use or dispose of my lot.' What lot ? Where situated ? The paper would answer as well for a lot in San Jos6, Monterey, or Los Angeles, as in Yerba Buena. It is not shown that the premises in controversy is the only lot which was owned by Fer- nandez at the time, and we are not to presume in the absence of proof that such was the case." 357 ;execution uitdeb powees of attorney. §§ 370-371 would, at the first blush, be likely to understand from the terms of the power that the sale of the entire half of the whole lot was contemplated by the party making the power. Such a sale would ordinarily be most advantageous and most desirable to both seller and buyer. We do not think the agent exceeded his power."* A power of attorney authorizing the attorney to sell and convey all land which his principal had not previously etmveyed, has been held to authorize the attorney to convey such land as the princi- pal had prior to the execution of the power of attorney sold but not conveyed.^ A power of attorney, by which the attorney is authorized to sell all the land of his principal situated in a design nated locality, is perfectly valid. In such a case it is not essential that the property owned by the principal should be particularly described.* A party who is in possession of public land describes the same with sufficient certainty in a power of attorney by designating it his claim of land.* § 370. Power to sell imports a sale for cash. — Unless there is some language in the power of attorney justifying the inference that other than cash sales were contemplated by the parties, a power to sell imports that the sale is to be for cash. But when A authorizes B to sell land, and pay therewith the indebtedness of A to C, and B sells the land to C for the amount of a note held by C against A, which was all the land was worth in the market, and took the note in payment, this is a sale for cash within the rule we have just stated, and cannot be regarded as an accord and satisfaction.* § 371. Sale on credit must be on reasonable credit. — Where an attorney in fact is authorized to sell land on credit without specifying the time of such credit, he has power only to sell upon a reasonable credit. The question in any given case of whether the credit that the attorney has given is reasonable or not, is one » Alemany v. Daly, 36 Cal. 90, 93. 2 Mitchell V. Maupln, 3 Mon. 185. » Roper V. McPadden, 48 Cal. 346. ' Henley v. Hotaling, 41 Cal. 22. 5 McNeil V. Shirley, 33 Cal. 202. See Kenny v. Hazeltme, 2S Tenn. (6 Humph.) 62. And see Silverman v. Bnllock, 98 111. 11, where notes and mortgages were taken by the attorney and transferred to an innocent bolder, and the court held that he could enforce the security. §§ 372-373 EXECUTION under powbes of attoeney. 358 of fact, to be decided by the evidence. It will not be presumed that the principal intended to enter into an absurd contract, and thiat he intended to give the attorney unbounded discretion to sell on a credit unusual in the sale of real estate in the vicinity •where it is situated.* § 372. Power to sell does not auttorize gift. — A power to sell is special. In order that a deed purporting to be executed under a power of attorney may be valid, it must be executed iu pursuance of the power, and be within its terms. If this is not the case, the deed as a transfer of the constituent's title is inoper- ative. Hence, a power to sell does not authorize a gift of the property or the transfer of it for any purpose other than in com- pletion of a sale.^ A authorized B by a power of attorney to sell and convey certain property. B executed a deed to C, which on its face expressed a valuable consideration, but which in truth was not made in pursuance of any sale or for any real consideration. The only object the parties had in executing the deed was to enable C to control the property and protect it from trespassers. It was held that the grantee took no title under this deed because it was not executed in pursuance of the power. As between the attorney and grantee, it was without effect.* § 373. Exchange not anthorized by power to selL — On the same principle that au attorney's power to sell is special and limited, he cannot, under such power, exchange the property of his principal for other property. In one case, the power con- ferred upon an agent was " to bargain, sell, alien, enfeoff, trans- fer, and convey, by deed in fee-simple," a certain lot of land, and "to do and perform any and all acts and deeds necessary to be done in and about the premises." The attorney exchanged the lot for a stock of merchandise. The court held that under this power of attorney the agent could sell only for money, and having failed to do so, the deed made by him was void. " The agency was clearly special;" said the court, "it was confined to selling and conveying the lot. There were no directions or Brown v. Central Land Co. 42 Cal. 257. Dupont V. Wertheman, 10 Cal. 354 ; Mott v. Smith, 1(5 Cal. 533. Dupont V, Wertheman, 10 Cal. 354. 359 EXECUTION UNDER POWEES OP ATTORNEY. § 373 instructions beyond the selling and conveying, and the doing of such things as might be necessary to carry out the power. Under this power the agent had no right to sell and convey for any other consideration than for money."* And not only is this the proper construction to be placed upon the language itself authorizing a sale, but evidence is inadmissible to show that it is the practice of land agents, under a power to sell, to exchange the land of their principals for other property. Evidence of this character could have no other effect than to contravene the legal signification of the power of attorney.^ An attorney in fact sold land, and under an agreement made with a third per- son, at the time at which the deed was executed, by which such third person was to advance the money to enable the grantees to pay for the land, the attorney took notes and a mortgage from the grantees, and assigned them to such third person. The 1 Lumpkin v. Wilson, 5 Heisk. 555. ' Keese v. Medlock, 27 Tex. 120. Said th« court : " It is a well-settled, general principle that when an agency is created and conferred by a writ- ten instrument, the nature and extent of the authority given must be ascertained from the instrument itself, and cannot be enlarged by parol evidence of the usage of other agents in like cases, for that would be to contradict or vary the terms of the written instrument. There may, how- ever, be some qualifications and limitations properly belonging to this rule, whereby, especially in cases of general or implied agencies, the usages of a particular trade or business, or of a particular class of persons, are properly admissible, not, indeed, for the purpose of enlarging the powers of the agents employed therein, but for the means of interpreting and rightly understanding those powers which are actually given. The power of attorney under which the agent sold the land in controversy to the defendant Medlock did not authorize him to barter or exchange it for other property. It cannot surely be seriously insisted that there has become such a general and uniform custom or usage of trade by agents for sale of land in this State, in contravention to the legal import of the instru- ment under which they derive their authority, as to overturn and abrogate the well-established rules of legal construction, by which the courts would otherwise be governed. If, however, such was the fact, the testimony offered by the defendant falls far short of justifying the application in this case of such an exception to the general rule, to which reference has been made, and the court did not err in excluding it from the jury." A power to sell does not authorize the execution of a mortgage : Bloomer v. Wald- ron, 3 Hill, 361 ; Jeffrey v. Hursh, 49 Mich. 31. But a power of attorney to seU or lease property, or " to borrow money and pledge the property by way of mortgage," authorizes the borrowing of money on the property by conveying it in fee to the lender, and taking back a redeemable lease at a rent equivalent to the interest on the sum borrowed : Fosner v. Bayless, 69 Md. 66. § 374 EXECUTION UNDER POWERS OF ATTORNEY. 360 latter delivered the money necessary to pay for the land to a land agent who immediately paid it to the attorney. The trans- action was held to be a sale for cash as provided for by the terms of the power of attorney, and not a barter nor a sale on credit.' § 374. Discretion of attorney whether land is to be used for specified purposes. — Where a power of attorney authorizes tiie agent to sell land for specified purposes, the attorney is vested with discretion of judging whether a purchaser intends to use the land for such purposes or not, and his deed is valid, not- withstanding the land may not be used for such purposes, if there was no fraud on the part of the attorney or the purchaser. Thus, an attorney was authorized to sell certain lands " for the purpose of making actual settlement thereon," and was authorized to convey such land in fee-simple, and to execute "legal and suffi- cient deeds, with the several covenants and a general warranty." It was held that the attorney had the power of determining whether the purchaser intended to use the lands for the purpose of settlement, and that the efficacy of the deed would not be affected by the fact that it afterwards appeared that that the land was not purchased for the purposes of actual settlement but for purely speculative ends.^ Judge Tenney, who delivered the opinion of the court, said that if the owner had desired to make all conveyances himself without the intervention of an agent, his unconditional deeds made to such as satisfied him that they took the land for actual settlement, would pass the title, and it would be immaterial if it should afterwards appear that he had been deceived. In other words, as he had under- taken to judge of the evidence of their purpose, he would be concluded by the judgment he had formed. The learned justice then proceeded to say : "When he delegated the power to make conveyances to an attorney, with the restriction contained in the instrument, in which he engages to ratify and confirm his legal acts, is it to be supposed that he did not mean to intrust to his judgment and discretion, the evidence of the intention of those who proposed to be purchasers, and that he should exercise ' Plummer i>. Buck, 16 Neb. 322. " Spofford V. Hobtas, 29 Me. 148 j 48 Am. Dee. 521. 361 EXECUTION UNDER POWEES OF ATTORNEY. § 375 them in the same manner that the constituent would have exer- cised bis own judgment and discretion, if he had acted in the premises? The intention of the purchasers, in order to have effect, must have been judged of and determined by some one. No provision having been made for another mode in which the purpose of the purchasers could be ascertained, previous to the conveyances, the power to perform that duty must have been intended to be conferred upon the attorney."* So in a case in California, the attorney was authorized to sell and convey lots in a town " for purposes of actual improvement, for mercantile and other purposes." These words were held not to be a limit- ation upon his general power to sell.* § 375. Revocation. — A principal has power to revoke the authority of the attorney at anytime, unless the power is coupled with an interest, or has been conferred upon the attorney for a valuable consideration.' A principal employed a firm of brokers to secure a purchaser for his lands. He promised that he would pay them a certain sum, if they should find within a month from the time of the creation of the agency, a person willing and able to purchase the property at a specified price. The brokers succeeded in finding a purchaser before the expiration of the month, but the principal had previously to this revoked their agency. It was held that the principal had power to revoke their authority at any time, and hence they were not entitled to commissions.* When a power of attorney has been recorded, ' Spotford V. Hobbs, eiipra. ' Spect V. Gregg, 51 Cal. 198. ' Hartley's Appeal, 53 Pa. St. 212; Brown »> Pforr, 38 Cal, 550 ; Barr v, Schroeder, 32 Cal. 609. * Brown v. Pforr, 38 Cal. 550. Mr. Justice Sanderson, in delivering the opinion of the court, said : " It is a general rule, that an agency, whether to sell land or do any other act, unless coupled with an interest, or given for a valuable consideration, is revocable at any time. This general principle is not disputed by counsel for the plajntiffa, but it is insisted that this case is talsen without its operation by the peculiar terms of the con- tract, by which, as is claimed, the defendant has im pliedly , if not expressly, restricted his power of revocation, and made the contract continuous for a month. This seems to have been the construction put upon the contract by the court below, but we do not so understand it. Its terms, as stated in the complaint, are that the defendant employed the plaintiffs to find a purchaser for the real estate described in the complaint, ' and promised and § 376 EXECUTION TJNDEE POWEES OF ATTOBNEY. 362 the revocation of the power should also be recorded,* Of course the rules applicable to all classes of agency, that the death of the principal, or his insanity, operates as a revocation of the agency, apply with equal force to powers of attorney.'' A deed made after the death of the principal is void, although the attorney may have no knowledge of the death.' § 376. Effect of sale by prmcipal npon attorney's commissloiis. The principal may sell the land and convey a good title if he does so before the attorney acts under the power. He does not, by a mere execution of a power of attorney to another, deprive him- self of the right to sell. But if an owner of land give a power of attorney to a person to sell the land for a certain sum within a specified time, and agrees to give the attorney a certain per- centage of the amount for which the land is to be sold as commission for effecting a sale, the attorney is entitled to his commissions if he effects a sale within the time specified, and agreed to and with the plaintiffs, in consideration that the plainti£fs would undertake to seek, and should, within a month from that date succeed in finding a person who would be willing and able, and who would agree to purchase the said property at and for the sum of sixty-five thousand dollars in gold coin, he would pay them for such service the sum of seven hundred and fifty dollars in gold coin.' Counsel find the alleged restriction njwn the defendant's power of revocation in the words, by which the time within which the plaintiffs are required to perform is limited to one month from the date of the contract ; but, as it seems to us, the restriction is upon the power of plaintiffs, and not upon that of the defendant. It seems obvious to us that the restriction was intended for the benefit of the defendant, and not the plaintiffs. The force of the limitation is, that the defendant wUl pay them the stipulated price for the service if they com- pletely perform it within one month ; otherwise he will pay them nothing. There is nothing directly or impliedly affecting the question of revocation ; and, indeed, we are unable to perceive how, under any circumstances, a mere limit as to the time allowed for the performance of a contract of agency to sell land, can be construed into an agreement on the part of the principal not to revoke the power. The rule that in this class of contracts the principal may revoke at any time -before complete performance by the broker, unless he has expressly otherwise agreed, may be a harsh rule, as suggested by counsel ; but if it is, it would seem to be a very easy matter for the broker to protect himself against it. At all events, if he does not insert a covenant to that effect in his contract, the courts cannot do it for him." And see Neilson v. Lee, 60 Cal. 555. > Weile V. United States, 7 Ct. of CI. 535. » Doe ex dem. Smith v. Smith, 1 Jones (N. J.) 135; 59 Am. Deo. 581; Jenkins v. Atkins, 1 Humph. 294; 34 Am. Deo. 648. » Ferris v. Irving, 28 Cal. 645. 363 EXECunos under powees of attorney. §§ 377-378 although the principal has a right also to sell, he cannot by a sale defeat the attorney's claim to his commissions.^ § 377. Execution of deeds by attorneys in fact — In the early cases the execution of deeds by attorneys was viewed with much, and perhaps unnecessary strictness. It was asserted as a broad and general rule that in order to bind the principal the deed inust purport to be made by the principal in his name, and his name should be signed to the deed. Hence, if an agent exe- cuted a conveyance in his own name, the title of his principal w'as not thereby conveyed. The same result would follow if the agent Should declare that he was an agent, but purported to exe- cute the deed as his own act, and not that of the principal.^ " If an attorney has authority to convey lauds, he must do it in the name of the principal. The conveyance must be the act of the principal, and not of the attorney ; otherwise the conveyance is void. And it is not enough for the attorney, in the form of the conveyance, to declare that he does it as attorney; for he being in the place of the principal, it must be the act and deed of the principal, done and executed by the attorney in his name.'" § 378. Helaxation of this strictness. — Even at a very early day, courts endeavored to free themselves from the strict rules of the common law relative to the execution of deeds by attor- neys in fact, in order that by so doing they might effectuate the intention of the parties. Thus, in an early case in Massa- chusetts a deed, after reciting the power of attorney, pro- ceeded: "Now, know ye that I, the said Joshua, by virtue of 1 Blood V. Shannon, 29 Cal. 393. ' See, generally, Combe's Case, 9 Coke, 75 ; Clarke v. Courtney, 5 Peters, 319 ; 2 Kent Com. 631 ; Fowler v. Shearer, 7 Mass. 14 ; Stone v. Wood, 7 Cowen, 453 ; 17 Am. Deo. 529 ; Spencer v. Field, 10 Wend. 88 ; Appleton v. Binks, 5 East, 148 ; Stinchfleld v. Little, 1 Greenl. 231 ; Townsend v. Hub- bard, 4 Hill, 351 ; El well v. Shaw, 16 Mass. 42 ; 8 Am. Deo. 126 ; Copeland V. Mercantile Ins. Co. 6 Pick. 198 ; Bogart v. De Bussey, 6 Johns. 94 ; Tip- petts V. Walker, 4 Mass. 595 ; Locke v. Alexander, 2 Hawks, 155 ; 11 Am. Dec. 750 ; Martin v. Flowers, 8 Leigh, 158 ; Fetter v. Field, 1 La. An. 80 ; Appleton V. Binks, 5 East, 148; Sheldon v. Dnnlap, 1 Har. (N. J.) 245; Lutz V. Linthicnm, 8 Peters, 165 ; Story on Agency, J 148 ; Brinley v. Mann, 2 Cush. 337 ; 48 Am. Deo. 669 ; Hackney v. Butts, 41 Ark. 393. » Chief Justice Parsons, in Fowler v. Shearer, 7 Mass. 14, 19; Welsh v. Usher, 2 HiU Ch. 167 ; 29 Am. Dec. 63. § 378 EXECUTIOK UNDER POWEES OP ATTORNEY, 364 t the power aforesaid, in consideration of two hundred dollars paid me by J. S. and T. P. S., of, etc., the receipt whereof I do hereby acknowledge, do hereby bargain, grant, sell, and convey unto the said J. S. and T. P. S. a certain tract of land," etc., "to have and to hold to them, the said J. S. and T. P. S., their heirs and assigns forever; and I do covenant with the said J. S. and T. P. S. that I am duly empowered to make the grant and con- veyance aforesaid; that the said Jonathan [the principal], at the time of executing said power, was and now is lawfully seised of the premises, and that he will warrant and defend the same to the said J. S. and T. P. S. forever, against the lawful claims and demands of all persons. In testimony whereof I have here- unto set the name and seal of the said Jonathan, this," etc. The deed, however, was signed only by the attorney. Mr. Justice Wilde said : " We have examined the cases cited in the argument of this cause, with a strong wish to discover some ground, which would authorize a decision according to the apparent equity of the case. The objection made to the grant to the tenant is merely technical ; and it is impossible that any one should doubt as to the intention of the parties. Nevertheless, the objection is supported by all the adjudged cases relating to the point. It does not appear that the authority of Coombe's case is at all shaken by more modern decisions. All concur in laying it down as an indispensable requisite, to give validity to a deed executed by an attorney, that it should be made in the name of the principal." * In California, the Civil Code declares : "An instrument within the scope of his authority, by which an agent intends to bind his principal, does bind him if such intent is plainly inferable from the instrument itself."* But a deed executed by an agent in his own name is a nullity as to the principal.' Mr. Parsons, speaking of this subject, says : " The manner in which an agent should sign an instrument for his principal has given rise to some controversy. There has been a I Mwell V. Shaw, 16 Mass. 42, 46; 8 Am. Deo. 126. And see Hale v. Woods, 10 N. H. 470, 34 Am. Deo. 176, where it is held that whether a deed has been executed in the name of the principal, must be determined by the construction of the whole instrument, and not from the signature alone, or from any particular clause. " Civil Code Cal. ? 2337. > Fisher v. Salmon, 1 Cal. 413 ; 54 Am. Deo. 297. 365 EXECUTION UNDER POWEES OP ATTORNEY. § 379 tendency to discriminate in this respect, to say, for instance, that if A signs ' A for B,' this is the signature of A, and he is the contracting party, although he makes the contract at the instance and foi" the benefit of B. But if he signs ' B by A,' then it is the contract of B made by him through his instrument, A. In the first case, A is the principal ; in the second, B is the princi- pal, and A his agent. But the recent cases and the best reasons are for determining in each instance and with whatever techni- cal inaccuracy the signature is made, from the facts and the evidence that a party is an agent or a principal, in accordance with the intention of the parties to the contract, if the words are sufficient to bear the construction."* § 379. Proper mode of signature. — The most advisable mode for the agent to adopt is to sign the principal's name, adding his own as agent. Thus, the deed of A, when made by an attorney, should properly be signed "A by B, his attorney in fact," although this strictness is to a great extent dispensed with by the tendency of modern decisions. Some controversy has arisen over the question whether a signature of the principal's name by the agent without adding his own, and out of the principal's presence, is a proper signature. This is not the case of a deed signed by the grantor's direction in his presence which we have previously discussed. Upon the particular question to which we now advert, there is a division of opinion. It is held on one hand that it is not a valid execution of a deed for an attorney to sign the name of his principal without adding his own as such to a deed containing nothing to indicate that it was executed by attorney.^ But on the other hand, it is held that a deed is well ' 1 Parsons on Contracts, 54. And see Shanks v. Lancaster, 5 Gratt, 110 ; 50 Am. Dec. 108. ' Wood V. Goodridge, 6 Cush. 117 ; 52 Am. Deo. 771. Fletcher, J., delivered the opinion of the court, and said : " When one writes the name of another to a deed in his presence, at his request and by his direction, the act of writing Is regarded as the party's personal act, as much as if he had held the pen and signed and sealed the instrument with his own hand : Story on Agency, 51 ; Ball o. DunstervlUe, 4 Term Rep. 313 ; Lovelace's Case, Jones, W. 268 ; Hibblewhite v. M'Morine, 6 Meds. & W. 200, 214,215 ; Gardner v. Gardner, 5 Cush. 483. In the present instance, the deed and note were not executed by Benjamin personally, nor in his presence, but in his absence ; and so far as appears, without his knowledge. But upon § 379 EXECUTION TTNDEn POWEES OF ATTORNEY. 366 executed to which the attorney signs the principal's name only. " It would be useless to add the name and seal of the attorney, the face of the papers they appear to have been signed by him personally and with his own hand. In fact, they were signed by Levi ; but it does not appear upon the face of the papers that in signing the name of Ben- jamin, Levi acted as his agent, or intended to act under the power of attorney from Benjamin, or meant to execute the authority given by that power. The deed and note which thus appear to be signed by Benjamin personally, when in fact they were signed by Levi, are not such instru- ments as Levi was authorized to make. He was authorized to make instruments in the name of Benjamin ; not as made by Benjamin person- ally, but by Levi, in his name, as his attorney. It should appear upon the face of the instruments that they were executed by the attorney, and in virtue of the authority delegated to him for this purpose. It is not enough that an attorney in fact has authority, but it must appear by the instruments themselves which be executes, that he intends to execute this authority. The instruments should be made by the attorney expressly as such attorney ; and the exercise of his delegated authority should be distinctly avowed upon the instruments themselves. Whatever may be the secret intent and purpose of the attorney, or whatever may be his oral declaration or profession at the time, he does not in fact execute the instru- ments as attorney, and in the exercise of his power as attorney, unless it is so expressed in the instruments. The instruments must speak for themselves. Though the attorney should intend a deed to be the deed of his principal, yet it will not be the deed of the principal, unless the instru- ment purports on its face to be his deed. The authority given clearly is that the attorney shall execute the deed as attorney, but in the name of the principal. There is mnch learning and discussion in the books of the law as to the proper mode of executing authority by agents. In what form the agent should execute his authority so as to bind his principal and not bind himself, has been a subject largely considered in elementary works, and much discussed in numerous adjudged cases. The rule commonly laid down by all the authorities, is that to bind the principal, the instrument must purport on its face to be the instrument of the principal, and executed in his name ; or at least, that the tenor of the instrument should clearly show that the principal is intended to be bound thereby, and that the agent acts merely as his agent in executing it. But it is contended that it is nowhere laid down in any work of authority, or established by any adjudged case, that the agent may put the name of the principal as his own personal act and signature, the execution of the agent as agent, not being in any way disclosed. Such an execution does not appear to be warranted by the power delegated to execute the instrument as attorney, but in the name of the principal. If such a mode of execution is proper and legal, it seems most remarkable that it is nowhere stated or suggested in any work of authority. The execution of instruments by agents in this way would certainly be attended with great difSculties and dangers. If the agent might execute instruments in this mode, the principal, if he found his name signed to an instrument, would have no means of knowing by whom it had been signed, or whether he was bound or was not bound by such signature ; and other persons might be greatly deceived and defrauded by 367 EXECUTION TINDER POWEES OP ATTOENEY. § 380 for it is what it purports to be, the deed of the principal and not the attorney, and therefore does not require his name or seal, but the name and seal of the principal only." ' § 380. Comments. — It is obvious that as a method of pre- serving evidence, it is advisable that in all cases the attorney should add his own name after writing that of his principal, in order that the instrumept may show upon its face that it was executed by an attorney, and who such attorney was. Neverthe- less, if an attorney has precedent power to execute a deed in the name of his principal, it cannot be said that it is indispensable to the yalid execution of his power, that he should add his own name to the instrument which he executes for his principal. The principal authorizes him to act in the former's name instead, and he may,so far as his authority extends, be considered for all practical purposes as the principal himself. A person has power to sign the principal's name without written authority, if done at his request and in his presence. He can act for his principal relying upon sach signature as the personal act and signature of the prin- cipal, when the event might prove that it was put there by an agent, who had mistaken his authority, and consequently that the principal was not bound. When it should be discovered that the name of the principal was not written by him, as it purports to be, it might be wholly impossible to prove the execution by attorney, as there would be nothing on the note to indicate such an esecution. For authorities as to the form of execution of the mortgage and note, see Story on Agency, g§ 147, 148, 153, notes, ai\d cases cited ; Hoffman's Opinion, 3 Am. Jur. 71-85 ; WEks v. Back, 2 East, 142 ; Story on Notes, 11, 66, 71." The court said, however, that it was not necessary to place its decision on this ground. ' Devinney v. Keynolds, 1 Watts & 8. 328, 332, per Sogers, J. In Forsyth v. Day, 41 Me. 882, 391, in which case a note was signed by an agent writing the principal's name without his own, Bice, J., said: "No case, I apprehend, can be found in the books which will sustain the rule 60 broadly laid down by the learned judge in the case of Wood v. Goodrich, cited above. Nor can the doctrine be sustained on principle. It is diffi- cult to perceive any sound reason why, if one man may authorize another to act for him and bind him, he may not authorize him thus to act for and bind him in one name as well as in another. As matter of convenience in preserving testimony, it maybe well that the names of all parties who are in any way connected with a written instrument, should afipear upon the iustruments themselves. But the fact that the name of the agent by whom the signature of the principal is affixed to an instrument, appears upon the instrument itself, neither proves nor has any tendency to prove the author- ity of such agent. That must be established aliunde, whether his name appears as agent, or whether he simply places the name of his principal to the instrument to be recorded." § 381 EXECUTION UlsTJEE POWEES OP ATTORNEY. 368 in his abseuce only hy virtue of -written authority, but in either case he doas all that is requisite by signing his principal's name and acting in his stead. § 381. Some illustrations. — Without desiring to enter into an exhaustive examination and discussion of the various cases that have come before the courts, in which the form and manner in which the power of the attorney in executing a deed for his principal should be exercised, have been considered, we call the attention of the reader to a few of the cases in which the principles stated in the foregoing sections have been applied. Where articles of agreement for the sale of land were executed on one part by B, as the attorney of A, and were signed, " in witness whereof the said B, as attorney of the parties of the first part, and the said parties of the second part, have hereunto set their hands and seals," it was held that the agreement was not executed by the principal.* The language of a deed was, " I, the said Carey L. Clarke, attorney as aforesaid, do," etc., and was signed, "in witness whereof the said Carey L. Clarke, attor- ney as aforesaid, has hereunto subscribed his hand and seal," and was signed by the attorney in his own name. This was held not to be the deed of the principal. " This may savor of refinement," said Mr. Justice Story, in delivering the opinion of the court, "since it is apparent that the party intended to pass the interest and title of his principals. But the law looks not to the intent alone, but to the fact, whether that intent has been executed in such a manner as to possess a legal validity."' Where a deed purporting to be made by A, attorney in fact for B, proceeded, "that the said attorney in fact. A, doth release and quit claim," and concluded, " in testimony whereof the said B hath hereunto set his hand and seal," but was signed by the attorney alone, who did not add his designation as attorney, it was held not to be the deed of the principal.* So in California, 1 Townsend v. Hubbard, 4 Hill, 351. ' Lessee of Clark v, Courtney, 5 Peters, 318, 349, and cases cited. ' Martin v. Flowers, 8 Leigh, 158. Cabell, J., in delivering the opinion of the court, said : " The legal title to land cannot pass from him who has i< , but by his deed. Such deed may be executed by his attorney duly authorized for the purpose. But it must be so executed as to be the deed of his principal. It is not sufficient, therefore, that it shall be executed by the person who was authorized to make it ; buii it must be done by him as 369 EXECUTION UNDER POWEES OF ATTORNEY. § 381 it was held that neither under the Mexican nor the common law would a deed made by an attorney in fact, naming himself as attorney for his principal as the party of the first part, and sign- ing his own name as the attorney in fact of his principal, con- vey the title of the latter.* So a deed purporting to be made by " Stephen Smith," but signed " Stephen Henry Smith, attorney in fact of Stephen Smith," was held not to be the deed of the ostensible grantor.* If the attorney has power to execute a deed for his principal, and the deed which he executes or attempts to execute is defective for want of a formal execution in the name of the prin- cipal, occasioned by accident or mistake, it is binding in equity, and win be enforced against subsequent purchasers with notice.* attorney. For this purpose it is necessary that the attorney shall either sign the name of the principal, with a seal annexed, stating it to be done by him as attorney for the principal ; or he may sign his own name, with a seal annexed, stating it to be for the principal. In either of these forms, the deed becomes the deed of the principal ; and if everything else be cor- rect, it conveys the title of the principal. But if the deed be signed and sealed by the attorney, neither in the name of the principal nor in his own name as attorney for the principal, it is not the deed of the principal. This was decided as early as the sixtli year of Queen Elizabeth (Moore's Rep. 70) and has been uniformly recognized ever since : Combe's Case, 9 Code Rep. 75 ; 4 Bacon's Abr. tit. Leases, I, pi. 10, p. 140 ; Fronton v. Small, 2 Raym. Ld. 1418 ; White v. Cuyler, 6 Term Rep. 176. Similar decisions have been made in the courts of Massachusetts and New York, and also in the Supreme Court of the United States. I would refer particularly to the case of Lessee of Clarke et al. v. Courtney et al. 5 Peters, 349." > Echols V. Cheney, 28 Cal. 157. ' Morrison v. Bowman, 29 Cal. 337. In Thurman v. Cameron, 24 Wend. 87, Judge Cowen says: "The attorney is bound to use the name of his principal, both in the body of the deed and by way of signature, and for and in the name of his principal to affix the proper seal. If ho make the deed in his own name, it is his ow;n personal contract, and cannot oper- ate as against his principal for any purpose." And see Jones v. Carter, 4 Hen. & M. 196 ; Barger v. Miller, 4 Wash. C. C. 280 ; Townsend v. Corn- ing, 23 Wend. 438 ; Harper v. Hampton, 1 Har. & J. 709. • Love V. Sierra N. L. W. & M. Co. 32 Cal. 639. "We consider it as set- tled," said the court, "that an agreement under seal made by an attorney for his principal, though inoperative at law for want of a formal execution in the name of the principal, is binding in equity if the attorney had authority ; and if the instrument so defectively executed be a conveyance of real estate, it will be sustained in equity as an agreement to convey, and will be good against the principal, subsequent lien creditors, and subse- quent purchasers with notice." And see also Beatty v, Clark, 20 Cal. 12 ; Bodley v. Ferguson, 30 Cal. 511 ; Daggett v. Rankin, 31 Cal. 322 ; McNaughten v. Partridge, 11 Ohio, 223; 38 Am. Dec. 731 j Wilkinson v. Ctetty, 13 Iowa, 157 ; Yerby v. Giigsby, 9 Leigh, 387. I. Deeds.— 24. CHAPTER XVL DEEDS UNDER POWERS OP SALE IN TEUST DEEDS AND , MOETGAGES, i 382. Powers of sale in trust deeds and mortgages, g 383. Power of sale irrevocable, j 384. Subsequent disabilities. i 385. Effect of death upon power of sale. §386. Bule in. Texas, g 387. Appointment of new trustee. I 388. Power of sale a cumulative remedy, g 389. Provisions for sale. § 390. Effect of tender upon sale. I 391. Bule in Massachusetts. I 892. Sale by joint trustees. § 393. Sale under unrecorded mortgage, g 394. Statutory regulations. g 395. Powerof sale passing by assignment of mortgage. . § 39&. Sale by administrator of mortgagee, g 397. Conveyance of part of the premises, g 398. Compliance with the conditions of the power. I 399. What notice must be given, g 400. Publication of notice in newspaper, g 401. Extent of circulation, g 402. Time of publication, g 403. A matter of contract, g 404. Publication by posting notices, g 405. Authority for the sale, g 406. Designation of place of sale. . g 407. Designation of time of sale, g 408. Erroneous statements, g 409. Description of the property, g 410. Sales to bona fide purchasers, g 411. Sale should be beneficial to debtor, g 412. Sale for cash, g 413. Trustee's presence at sale, g 414. Power to adjourn sfde, g 415. Release of parcel from mortgage, g 416. Bequirement of deposit, g 417. Bight of mortgagee to purchase, g 418. Sale voidable only, g 419. Waiver. 371 DEEDS UNDER POWEIBB OF SALE. § 382 { 420. Mortgagee may execute a deed to himBelf. 2 421. By whom the deed should be made. 2 422. Deed to a person other thaa purchaser. 2 423. Beference in deed to power. 2 424. Death of purchaser. 2 425. Kecitals in deed. 2 426. Growing crops. 2 427. Sale before default in trust deed passes legal title. 2 428. Setting aside sale. 2 429. Agreements between mortgagor and mortgagee. 2 430. Enjoining sale. § 382. Powers ofsale in trust deeds and mortgages.— Though the validity of powers of sale in mortgages was at one time seri- ously cpiestioned,^ at the present day their validity is univers- ally recognized, and the expensive delays that must result from a suit of foreclosure have brought mortgages with power of sale into quite general use.'' When deeds of trust are beneficial to creditors, the assent of the latter to them will be presumed ; but if on the contrary their object is to hinder and delay the cred- itors, their assent must appear.' And it is competent to show such aoceptanoe on either the part of the trustee or cestui que trust by parol evidence.* The power ofsale may be contained in an instru- ment separate from the mortgage or trust deed;^ and a right to convey follows as an implication from a right to sell.' The terms of the instrument have sometimes been held to imply, necessarily, a power ofsale, although generally such power should be expressly > Croft V. Powell, 2 Comyn, 603 ; Powell on Mort. 19. ' Mitchell V. Began, 11 Rich. 686; Lydston v. Powell, 101 Mass. 77; Turner ». Johnson, 10 Ohio, 204; Kinsley v. Ames, 2 Met. 29; Brisbane v. Stoughton,170hio,482; Iiongwith d. Butler, 8 111, 32 ; Hyman b. Devereux, 63 N. C. 624. > Shearer v. Loftin, 26 Ala. 703 ; Manldin v. Armstead, 14 Ala. 702 ; Wis- wall V. Ross, 4 Port. 328. * Crocker ti. Lowenthal, 83 HI. 579 ; Pope v. Brandon, 2 Stewt. 410 ; 20 Am. Dec 49 ; Mayer v. Pulliam, 2 Head. 347 ; ScuU v. Reeves, 2 Green Ch. 84; 29 Am. Dec. 694; Flint v. Clinton Co. 12 N. H. 432; Brevard «. Neely, 2 Sneed, 164 ; Spencer v. Ford, 1 Rob. (Va.) 648 ; Skipwith v. Cun- ningham, 8 Leigh, 271 ; 31 Am. Deo. 642 ; Field ti. Arrowsmith, 3 Humph. 442; 39 Am. Dec. 185; Robertson v. Sublett, 6 Humph. 313; Hipp v. Huohett, 4 Tex. 20. ° Brisbane v. Stonghton, 17 Ohio, 482 ; Alexander v. CaldweU, 61 Ala. 643. • Fogarty v. Sawyer, 17 CaL £80; Williaxos v. Otey, 8 Humph. 663 ; 47 Am. Deo. 632. § 383 DEEDS UNDER POWEES OP SALE. 372 conferred.* The trustee should perform his duties 'with the utmost impartiality, occupying, as he does, the position of agent for both parties.* The power of sale may be dependent upon various circumstances ; default of the mortgagor in the payment of taxes may be selected as an instance.' A power of sale may be altered with consent of the parties by a writing of the same solemnity.* A married woman when competent to execute a mortgage has power to include therein a power of sale.* The fact that the name of the beneficiary is omitted from a trust deed, perfect in other respects, does not render the deed void. As against a purchaser from the trustee with notice of the trust, the provisions of the trust deed may be enforced by the real benefi- ciary whose name is supplied by the trustee.* In California, a trust deed conveys the legal title to the trustee, while a mortgage is a mere lien.' § 383. Power of sale irrevocable. — A mere naked power may be revoked at will, but the rule is that when a power is coupled with an interest it is irrevocable. As powers of sale in mort- gages and trust deeds are of this character, it follows that such powers are irrevocable. The power of sale is an essential and valuable part of the security, and follows it into whatever hands it may pass.* If, however, a debtor simply authorizes by a power of attorney a creditor to sell property, and after paying his claim to account for the balance of the proceeds, the power • Mundy v. Vawter, 3 Gratt. 518 ; Pnrdie v. Whitney, 20 Pick. 25. " Sherwood v. Saxton, 63 Mo. 78. " Pope V. Durant, 26 Iowa, 233. * Baldridge v. Walton, 1 Mo. 520. ' Barnes v. Ehrman, 74 111. 402. See also Young w. Graft; 28 lU. 20; Bartlett v. Bartlett, 4 Allen, 440. ' Sleeper v. Iselln, 62 Iowa, 583. ' Koch V. Briggs, 14 Cal. 257 ; 73 Am. Deo. 651 ; Comerais v. Genella, 22 Cal. 124 ; Grant v. Burr, 54 Cal. 298 : Bateman v. Burr, 57 Cal. 480 ; Fuquay V. Stickney, 41 Cal. 583. « Calloway v. People's Bank of Bellefontaine, 54 Ga. 441 ; Wilson v. Troup, 7 Johns. Ch. 25 ; Varnum v. Meserve, 8 Allen, 158 ; WiswaU v. Eose, 4 Port. 321 ; Hyde v. Warren, 46 Miss. 13 ; Walker v. Crowder, 2 Ired. Eq. 478 ; Bergen v. Bergen, 1 Caines Cas. in Er. 1 ; Doe v. Duval, 1 Ala. 745 ; Hannah v. Carrington, 18 Ark. 104 ; Wilbur v. Spofford, 4 Sneed, 698 ; Sthnpson v. Fries, 2 Jones Eq. 156 ; Bancroft v. Ashurst, 2 Grant Cas, 513 ; Beatie v. Butler, 21 Mo. 313 i 64 Am. Deo. 234 ; Buell v. Underwood, 65 Ala. 285 ; Berry v. Skinner, 80 Md. 667. 373 DEEDS TJIIDER POWERS OP SALE. § 384 is not connected with the estate, and may be revoked at any time.' § 384. Subsequent disabilities. — It being conceded that a power of sale is irrevocable, it follows conclusively that the validity of the power is not affected by any subsequent disability of the mortgagor. If he was laboring under no legal disability at the time the power of sale was executed, the power remains valid until it has been fully exercised. For instance, the sub- sequent bankruptcy of the mortgagor can have no effect upon the power. The assignee's rights are subject to those of the mortgagee.^ Nor is the power of sale revoked or suspended by the subsequent insanity of the mortgagor;' and the mortgagee cannot be deprived of this method of enforcing his claim by an application on the part of the guardian or committee of a lunatic for permission to dispose of the mortgaged property for the benefit of the creditors of such lunatic.^ Where in time of war 1 Mansfield v. Mansfield, 6 Conn. 559. In Calloway v. The People's Bank of Bellefontaine, 54 6a. 441, 449, Mr. Justice McKay, in delivering the opinion of the court, says, with reference to the effect of the provisions of the Code declaring that a mortgage does not pass a title, upon a power of sale, that : ■' The idea is, we think, a fanciful one, that such a power is not coupled with an interest. The mortgagee has, as we have seen, an inter- est, and an interest in the thing. It is pledged to him ; he is a purchaser of that interest, and a court of equity will protect him in it, and will pro- tect it for him. We see nothing in this declaration of the Code, that a mortgage is only a security ; that negatives the idea that a power to sell in a mortgage is a power coupled with an interest. The two ideas are just as consistent and harmonious as the idea of the English Chancery Court, as to the nature of a mortgage, was with a power of sale. Indeed, it is mainly in Chancery Courts, all of which treat a mortgage as only a security, and universally recognize the property to belong to the mort- gagee, that the whole doctrine of powers to sell, attached to a mortgage, is expounded and announced." ' HaOl V. Bliss, 118 Mass. 554 ; Dixon ». Ewart, 3 Mer. 321. ' Encking v. Simmons, 28 Wis. 272 ; Haggart v. Banger, 15 Fed. Kep. 860 ; Meyer v. Kuechler, 10 Mo. App. 371. * Davis V. Lane, 10 N. H. 156 ; Berry v. Skinner, 30 Md. 567. In the latter case, Alvey, J., in deliveriog the opinion of the court, said (p. 574) : "The mortgagee cannot be suspended in his rights, because of the mis- fortunes of the mortgagor, nor of his lunacy any more than any other misfortune, unless provided for in the contract. That a mere authority, not coupled with an interest, nor intended as a security, ceases or is sus- pended by the insanity of the principal, is clear beyond dispute ; but the principle that insanity operates as a revocation, cannot apply where the power is coupled with an interest, so that it can be executed in the name § 385 DEEDS TTNDEE POWEES OP SALE. 374 the mortgagor voluntarily leaves home and takes part with the enemy, the exercise of the power of sale is not affected by the fact that the mortgagor is at the time within the enemy's lines.* § 385. Effect of death upon power of sale. — With the excep- tion of Texas, there is in the different States a complete unanimity of opinion upon the effect that the death of the mortgagor exer- cises over a power of sale. As this power is coupled with an interest, no act of the mortgagor can suspend or invoke it. As stated in the preceding section, the disability of insanity or bank- ruptcy does not in any manner affect it. There can then be no reason for making the death of the mortgagor an exception. While the death of the mortgagor may take away the right of executing the power in his name, yet the right to exercise it on the contingency provided for by the parties still remains. These are the views taken by the authorities, and it may therefore be asserted as an established proposition that the death of the mortgagor does not operate as a revocation of the power.* of the donee or trustee, Kor can the proceedings in lunacy, and the application of the committee for an order to sell the mortgaged premises for the benefit of creditors generally, have the effect to suspend the exe- cution of the power by the mortgagee. He, the mortgagee, was con- stituted a trustee by the mortgage itself to sell the mortgaged property, on default of payment, and the court has no power tadeprive him of the sum- mary means of realizing his debt that formed a part of the security upon which he advanced his money. The. power, then, not being affected by the lunacy of the mortgagor, and all the prerequisites to its execution haying been complied with, it becomes the right of the purchaser, as well as the right of the mortgagee, that the sale should, be sustained. And in the absence of irregularity, fraud, or. unfairness in executing the power, the court has no alternative, however harsh and severe the proceediDg may appear to be^ but to ratify the sale." ' Ludlow V. Bamsey, U WaU. 581 ; Washington University o. Finch, 18 Wall. 106; De Jarnette «). Do GiverviUe, 56 Mo. 440. 2 Brewer v. Winchester, 2 Allen, 389 ; Wright •». Rose, 2 Sausse dc S. 323 ; Connors t). Holland, 113 Mass. 50 ; Hodges ti. Gill, 9 Baxt.(Tenn.) 378; Hunt V. Brousmanier, 8 Wheat. 174; Yamum v. Meserve, 8 Allen, 158 ; Corderi). Morgan, 18 Ves. 344;. Be Jamette v, De Giverville, 56 Mo. 440; Bell v. Twilight, 22 N. H. (2 Fost.) 500; 18 N. H. 159; 45 Am. Dec. 367; Hyde V. Warren, 46 Mass. 13. And see Strother «. Law, 54 lU. 413 ; Bradley v, Chester VaUey K. R. Co. 36 Pa. St. 141 -; Collins v. Hopkins, 7 Iowa, 463. In Vamnm v. Meserve, 8 Allen, 158, Hoar, J., delivering the opinion of the court, said : " When the power of sale is to be executed in the name of the mortgagee, we can have no doubt that it may be executed as well after the death of the mortgagor as before. It is a power coupled with an inter- 375 DEEDS TJNDEE POWEES OF SALE. § 386 Where it is provided in the trust deed that the sheriff may sell in the event of the death or disability of the trustee, the sheriff has power to sell, notwithstanding the death of the grantor, whenever the contingency upon which he is to sell arises.* § 386. In Texas. — But in Texas, a peculiar view is taken of the effect of the mortgagor's death. It is not denied that such a power, as a general rule of law, cannot be revoked, yet it is held that the probate law requiring liens upon property to be enforced in court, renders the execution of the power incompatible with the administration of the estate as provided for by statute. The coostruction placed upon the statutes of Texas by the courts of that State, give the mortgage creditor priority over such claims as he is entitled to in the course of administration, but deny to him the exercise of the power of sale upon the death of the mortgagor.* His claim is, however, postponed to the payment of the expenses of the last sickness, the expenses of administra- tion, allowances in lieu of homestead, property exempt from execu- tion, and the homestead, though the wife may have released it in the mortgage.' est, and not merely an interest in the proceeds of the property, for the sale of which the power is given, but in the property itself. Strictly speaking, a mortgage vests the whole legal estate in the mortgagee. His title to the land is complete as a legal title, and the power of sale is to relieve him of the equities attached to the mortgage. The power is to be executed out of the estate conveyed, and is not merely collateral to it." When a mortgage is foreclosed after the death of the mortgagor, and his estate is insolvent, the mortgagee is merely a trustee of the surplus, and cannot retain it in his possession for the purpose of paying another debt due to him from the mortgagor, as this would give him a preference over the other creditors : Talbot« V. Frere, Law R. 9 Ch. D. 568. If an assignee in bankruptcy is appointed, the surplus will go to him : Calloway v. People's Bank of Belle- fontaine, 54 Ga. 441. See as to the e£fect of death of grantor in a deed of trust for benefit of creditors, Spencer v. Lee, 19 W. Va. 179. ' White V. Stephens, 77 Mo. 452. ' Robertson v. Paul, 16 Tex. 472 ; Buchanan v. Monroe, 22 Tex. 537. ' Baits V. Scott, 37 Tex. 59 ; McLane v. Paschal, 47 Tex. 365. For the purpose of showing the law in that State, we quote the following from the opinion of the court in McLane v. Paschal, supra: "With whatever force of reason those who have sought to maintain a different conclusion have endeavored to impress their views, and however unsatisfactorily as it may seem to them their arguments may have been met, it must be admitted that it is now finally and definitely settled by this court that a deed of trust to secure the payment of a debt does not operate as an absolute transfer of the property to which it refers, to the trustee, upon the conditions therein stipn- § 387 DEEDS UNDER POWEES OF SALE. 376 § 387. Appointment of new trustee. — If the trustee named in the deed of trust dies, or refuses to accept, the court may a])point a new trustee at the suit of the parties interested.* Where a trustee has taken up a permanent residence in another State, and a railroad mortgage contains a clause that a major- ity of the bond-holders, upon the death, removal, or incapacity of the trustee, may select in writing a person to take his place, the new trustee so selected will be recognized by the courts, and the other will be restrained from performing any act as trustee.^ A person is not disqualified from acting as trustee because he acted as attorney in fact of the creditor in selling the property to the mortgagor.' Where a cestui que trust has the power to appoint a new trustee, the assignee of the former trustee cannot make the appointment, unless expressly authorized by the donor.* A trustee is not compelled to accept the trust, but if he does so he cannot abandon it without a decree of the court or the consent of the parties interested.' lated ; but that such instrument is in legal effect a mere mortgage with power to sell. And though the death of the mortgagor does not on general principles revoke this power, yet Its exercise by the trustee would be inconsistent and in conflict with our statutes governing the settlement of estates of deceased persons. It cannot, therefore, be executed by the trustee after the death of the constituent. And whatever rights may be secured to the creditor by such deed, they can only be enforced after the death of the debtor, through and by the aid of the court. It naturally if not inevitably follows, that such deed instead of operating as an absolute and unconditional security for the payment of the debt for which it purports to be given, has this effect only during the life of the debtor. And after his death it only secures the creditor priority over such claims against the debtor's estate as by the statute it is entitled to in the due course of adminis- tration. And it is not now open to controversy that funeral expenses, expenses of last sickness, expenses of administration, and those incurred in the preservation and management of the estate, as well as the allowances authorized to be made to the widow and children in lieu of a homestead, and other property exempt from forced sale, where such property does not exist in kind, have preference over specific liens credited in tlie life- time of the decedent, except where such lien is a security for the purchase money of the property to which it is attached." And see Lathrop v. Brown, 65 Ga. 312. 1 Clark V. Wilson, 53 Miss. 119. See Glenn v. Busey, 4 McAr. 464, ' Farmers' Loan and Trust Co. v. Hughes, 11 Hun, 130. ' Sternberg v. Valentine, 6 Mo. App. 176. * Clark V. "Wilson, 53 Miss. 119. " Drane v. Gunter, 19 Ala. 731 ; Sargent v. Howe, 21 111. 148. Said the court, in the latter case : "A court of equity has jurisdiction of trusts and 377 DEEDS UNDER POWEES OF SALE. § 388 § 388. Power of sale a CTUmilative remedy. — A power of sale is a cumulative remedy, and does not deprive a party of the right to foreclose in equity, as he might do in the absence of any power of sale.^ When a power of sale upon the death of the trustee is enforced by the court, the sale is considered as being made by virtue of the power and not of the decree.^ The court cannot nullify the terms of the deed of trust when simply enforc- ing it, and if it appoints a commissioner to make the sale in place of the trustee, he must follow the deed as to the condi- tions of sale and the manner in which it is to be conducted.* A sale may be made under the power, although a bill for foreclosure may have been filed, and the bill is at the time stUl pending.* trustees ; and rather than a trust shall fail, from death, or the disability ot a trustee to act, or when he is not a proper person to execute the trust, will appoint a suitable trustee. And a court of equity, in case of neglect or refusal of a trustee to perform the duties devolving upon him under the trust, will, upon a proper application, compel him to execute It. Such a jurisdiction is peculiar to a court of equity, and doubtless originated from the necessity of preventing fraud and injustice. When confidence has beeu reposed in the trustee, and he has undertalien to perform the trust, it would be manifestly unjust to permit him to deprive the parties in interest of all benefit in the trust fund.. If the trustee, after receiving title to property in trust, as a pledge for the payment of a debt of a third party, might refuse to apply it according to the terms of the trust deed, and the court were not to afliord relief, It would be to tolerate great injus- tice. But such is not the law." ' Pogarty v. Sawyer, 17 Cal. 589 ; Comerais v. GeneUa, 22 Cal. 116 ; Green V. Gaston, 56 Miss. 748 ; McGowan v. Branch Bank at Mobile, 7 Ala. 823 ; Youngman v. Elmira & WiUiamsport K. R. Co. 65 Pa. St. 278 ; McAllister V. Plant, 54 Miss. 106 ; Wayne v. Hanham, 9 Hare, 62 ; S. C. 20 Law J. 530 ; Atwater v. Einman, Har. (Mich.) 243 ; State Bank of Bay City v. Chapelle, 40 Mich. 447 ; McDonald v. Vinson, 56 Miss. 497 ; Carradine v. O'Connor, 21 Ala. 573 ; Vaughan v. Marable, 64 Ala. 60 ; Marriott v. Givens, 8 Ala. 694 ; Myers v. Esfcell, 48 Miss. 372; Morrison v. Bean, 15 Tex. 267; Frierson v. Blanton, 1 Baxt. (Tenn.) 272; Woflford «. Board of Police of Holmes Co. 44 Miss. 579 ; Webb v. Haefifer, 53 Md. 187. ' Kioe V. Brown, 77 111. 549 ; Doolittle v. Lewis, 7 Johns. Ch. 45 ; 11 Am. Dec. 389 ; Holden v. Stiokney, 2 McAr. 141 ; Staats v. Bigelow, 2 McAr. 367. See Wilkins v. Gordon, 11 Leigh, 547. ' CreD.shaw v. Seigfried, 24 Gratt. 272. * Brisbane v. Stoughton, 17 Ohio, 482. A mortgagee or trustee cannot, unless the instrument so provides, claim compensation for his services on making the sale : Allen v. Bobbins, 7 R. I. 33. See Catlin v. Glover, 4 Tex. 151 ; Myer v. Hart, 40 Mich. 517 ; Keptune Ins. Co. v. Dorsey, 3 Md. Ch. 334 ; Lime Rock Bank v, Phettaplace, 8' R. I. 56. § 389 DEEDS UNDER PO-VTEES OF SALE. 378 ^ 389. Provisions for sale. — It is not necessary to use any particular word or form of words to create the power. The sale must be made in conformity with the provisions of the instru- ment, and as to these, the parties may make any regulations which they see proper. They may impose conditions upon the exercise of the power, and the title of the purchaser at a sale under the power will depend upon the faithful compliance with these conditions.* A power of sale may be inserted in a deed from the grantor, and be exercised without the existence of any separate mortgage or trust deed. Thus, when the promissory notes of the grantee are taken for the purchase money, the deed may provide that if the grantee fail to pay the notes at maturity, the sheriff of the county shall sell the land, convey the title to the purchaser at the sale, and deliver the proceeds of the sale to the grantor or the holder of the notes. Although the title of the land passes by the deed to the grantee, the sheriff has in such case the power to sell and convey.^ When the sheriff of the county or any other person is designated in the deed of trust, as the substitute of the trustee in case of his death or absence, a third person cannot, by an ex parte proceeding instituted by the holder of the obligation, be appointed trustee.' When the inten- tion to confer a power of sale upon the mortgagee can be collected from the whole instrument, the power is not nullified by describ- ing the person having the power to sell as the party of the first part, who, as the term was used in the mortgage, was the mort- gagor.* It is customary in all deeds of trust to name the place where the sale is to be made, and to prescribe the kind and length of notice the trustee is to give of the sale. But if the duties of the trustee in these matters are not defined in the deed, he may exercise his discretion, and the court will uphold a sale made by him, when he honestly uses his best judgment in these matters.' ' Graeme v. Cullen, 23 Gratt. 266. 2 Moore v. Lackey, 53 Miss. 85. ' Bacigalupo v. Lallement, 7 Mo. App. 595. * Gaines v. Allen, 58 Mo. 537. 5 Ingle V. Culbertson, 43 Iowa, 265. In this case the opinion of the court ■was delivered by Mr. Chief Justice Seevers, who said : "When the trust was executed the grantor resided in Iowa, the trustees in the District of Columbia, and the beneficiary in the State of Virginia, and it is insisted that the grantor had the right to presume the trustees, under the discretion 379 DEEDS UNDEE POWEES OF SALE. § 390 § 390. Effect of tender upon sale. — With respect to the effect that a tender of the amount due has upon the mortgage after a breach « of the condition, and before a sale has been effected under the power, the rule adopted in England, and in some of the States of the Union, is that the mortgagee is compelled to abandon the sale.* By the principles of the common law, a mortgage is not discharged by a tender after the breach of the condition. To be of advantage the tender must be kept good, and its effect is simply to prevent the running of interest in the future, to preserve the right to redeem, or to save the debtor from the costs of a suit for redemption.* In some of the States, the rule is that the lien of the mortgage is discharged as fully as if payment were made, by a tender of the amount due upon the mortgage after the time agreed upon for payment. Of course, vested in them, would sell the property, if such sale became necessary to satisfy the trust, in the county where situated, and that the notice of sale would be simUar to those required in judicial sales of real estate. It must be presumed the trustees were mutually selected by the parties and were satisfactory to them. Hence, there were reposed in the trustees large dis- cretionary powers, which should be reasonably executed. It was compe- tent, and is perhaps usual, to more clearly define and limit the discretion of the trustees, and in the exercise of this right it could have been provided that the sale of the premises should take place in the county where the property was situate, and the kind and character of the notice to be given strictly prescribed. But that the presumption can be indulged as claimed by counsel is at least doubtful, and which we deem it unnecessary to deter- mine It is undoubtedly true that, as a general rule, where a power directs that a given thing must be done in a particular and specified manner, and there has been a total failure to comply, the execution of the power in such manner is void. Where a discretion is vested, as in this case, in trustees, as to the mode and manner the power shall be executed, and there is no testimony showing or tending to show actual fraud, but an honest though mistaken exercise of judgment in the determination of the discretionary power vested in them, we are of opinion, and so hold, that the sale is not absolutely void, but voidable only at the election of the parties interested. " As to sufficiency of language to confer a power of sale, see Hyman v. Devereux, 63 N. C. 624. 1 Jenkins v. Jones, 2 Giflf. 99 ; S. C. 6 Jur. N. S. 391 ; Cameron v. Irwin, 5 Hill, 272 ; Burnet v. Denniston, 5 Johns. Oh; 35 ; Whitworth v. Rhodes, 20 Law J. N. S. 104. * Currier v. Gale, 9 Allen, 522 ; Shields v. liozear, 34 N. J. L. 496 ; May- nard i;. Hunt, 5 Pick. 240 ; Grain o. McGoon, 86 111. 531 ; Phelps v. Sage, 2 Day, 151 ; Storey v. Krewson, 55 Ind. 397; Greer v. Turner, 36 Ark. 17; Schearff D. Dodge, 33 Ark. 340; Eowell v. Mitchell, 68 Me. 21 ; Alexander I). Caldwell, 61 Ala. 543; Holman v. Bailey, 3 Met. 55; Erskine v. Town- send, 2 Mass. 493. § 390 DEEDS UKDEK POWEES OF SALE. 380 the personal responsibility of the debtor is not affected, but the tender has the effect of discharging the lien, and it is not essential to bring the money, or keep the tender good.^ But when a mortgagor comes into a court of equity asking relief, he must do equity by paying the mortgage debt, but may avail himself of the tender for discharging the interest.^ To obtain the benefit of this rule, that a mortgage is discharged by a tender, the proof as to the making and refusal of the tgnder must be clear, aod the full amount must be unconditionally tendered.' If a deed • This is the rule in New York : Kortright v. Cady, 21 N. Y. 343 ; 78 Am. Deo. 145; Hartley v. Tatbam, 1 Keyes, 222; Jackson v. Crafts, 18 Johns. 110 ; Houbie v. Volkening, 49 How. Pr. 169 ; Edwards v. Farmers' etc. Co. 21 Wend. 467 ; S. C. 26 Wend. 541. In Missouri : Thornton v. Nat. Exchange Bank, 71 Mo. 221. In Michigan : Ferguson v. Popp, 42 Mich. 115 ; Van Husen v. Kanouse, 13 Mich. 303 ; Potts v. Plaisted, 30 Mich. 149 ; Caruthers v. Humphrey, 12 Mich. 270 ; Moynahan v. Moore, 9 Mich. 9 ; 77 Am. Dee. 468. See also Olmstead v. Tarsney, 69 Mo. 396 ; Cupples v. Galli- gan, 6 Mo. App. 62 ; Swett v. Horn, 1 N. H. 332 ; Bailey v. Metcalf , 6 N. H. 156 ; Robinson v. Leavitt, 7 N. H. 73 ; Harris v. Jex, 66 Barb. 232 ; S. C. 55 N.Y.421; Frost D.Yonkers Savings Bank, 70 N.Y. 553; Graham t». Linden, 50 N. Y. 547. 2 Cowles V. Marble, 37 Mich. 158. » Parks V. Allen, 42 Mich. 482 ; Tuthill v. Morris, 81 N. Y. 94 ; Canfield V. Conkling, 41 Mich. 371. In TuthiU v. Morris, supra, the court, per Bapallo, J., said: "In view of the serious consequences resulting from the refusal of such a tender, the proof should be very clear that it was fairly made, and deliberately and intentionally refused by the mortgagee, or some one duly authorized by him, and that sufBcient opportunity was afforded to ascertain the amount due. At aU events, it should appear that a sum was absolutely and unconditionally tendered, sufficient to cover the whole amount due. The burden of that proof is on the party alleging the tender. But even if a sufficient tender had been made out, this action could not, in our judgment, be maintained. Although the authorities cited sustain the proposition that when a tender has been made of the full amount due, it will discharge the lien, and be a good defense against its enforcement, without the tender being kept good, yet we are clearly of opinion that it should be kept good in order to entitle the mortgagor to the affimative relief which he seeks in this action, and which the judgment awards him, viz., the extinguishment of the mortgage. A party coming into equity for affirmative relief must himself do equity, and this would require that he pay the debt secured by the mortgage, and the costs and interest, at least up to the time of the tender. There can be no pretense of any equity in depriving the creditor of his security for his entire debt, by way of penalty, for having declined to receive payment when offered. The most that could be equitably claimed would be to relieve the debtor from the payment of interests and costs subsequently accruing, and to entitle him to this relief, he should have kept his tender good from the time it was made. If any further advantage is gained by a tender of the amount 381 DEEDS UNDER POWEES OF SALE. §§ 391-392 of trust provides that the whole amount of the principal and interest shall become due upon any default, and that the trustee shall thereupon have authority to sell, if the debtor makes a tender of the amount due with costs before the sale, he is entitled in equity to have the proceedings tor a sale stayed ; and a sale made by the trustee may be set aside.^ § 391. In Massaclmsetts. — In Massachusetts, however, the trustee's right to sell under the power is not taken away by a tendel" of the amount due, after a breach of the condition and before the sale. The courts of that State take the view that the right to sell being a power coupled with an interest, attaches at once and cannot be revoked, and a tender is allowed to have merely the effect of a foundation for a suit in equity to redeem. By giving the purchaser notice before or at the sale of the prior tender, the mortgagor may retain against him his right to redeem ; but a sale under the power transfers the legal title and possession which the mortgagor must again obtain by a decree of a court of equity, before he can obtain or defend a writ of entry against persons claiming under the mortgage. The fact that the pur- chaser had notice before the sale of the tender does not affect his title.* § 392. Sale by joint trustees. — Where two or more persons have power under a mortgage or trust deed to sell, the power should be exercised by all.' Trustees may act separately if the instrument so provides, but if they elect to act jointly, as by joining in the notice of sale, one cannot act alone.* "It is a general rule that trustees have equal power, interest, and author- ity with respect to the trust estate. They cannot, therefore, act of the mortgage debt, it must rest on strict legal rather than on equitable principles. The circumstance that a security has become or is invalid in law, and could not be enforced, even in equity, does not entitle a party to come into a court of equity, and have it decreed to be surrendered or extinguished, without paying the amount equitably due thereon." • Whelan v. KeiUy, 61 Mo. 565 ; Flower v. Elwood, 66 111. 438. ' Cranston v. Crane, 97 Mass. 459. See Montague v. Dawes, 12 Allen, 397. " Black t/. Smith, 4 MoAr. 338; Powell v. Tuttle, 3 Comst. 396; Wilson V. Troup, 2 Cowen, 195 ; 14 Am. Deo. 458. And see Bobinson v. Childs, 74 Ala. 254. * W^hite V. Watkins, 23 Mo. 423. § 393 DEKDS UNDER POWEBS OF SALE. 382 separately ; but they miist all join in any sale, lease, or other disposition of the trust property, and alsa in receipt of money payable to them in respect of their office. It is true that the deed gave the trustees authority to act separately or jointly in making the sale. But it seems they elected to act jointly, and accordingly gave notice of the sale in their joint names; and having so made their election, it was not competent for one of them afterwards to deny the authority of his co-trustee and act alone.* " " Where two or more persons are authorized to execute a trust or power jointly^ of course they are not authorized to execute it severally, unless such authority be also given by the instrument creating the trust or power. That instrument being the only source of the authority, of course there can be no authority which does not flow from that source. A trust or power given to two or more is joint only, unless words be added making it several also. But while one or two or more joint trustees cannot execute the trust severally, it is perfectly compe- tent for the author of the trust to empower the trustees to act severally, as well as jointly; and in that case the act of one of the trustees, in pursuance of the trust, is just as valid as if he only had been appointed to execute it."* Though the deed does not so expressly provide, yet where there are several trustees under a deed of trust, the survivors, upon the death of one or more of them, may execute the trust.' § 393. Sale tinder unrecorded mortgage. — A mortgagor can- not object to the validity or regularity of sale on the ground that the power of sale has not been recorded. " The power to the mortgagee to sell contained in the mortgage, must be^recorded before the deed to the purchaser under the power be executed; 1 White V. Watkins, 23 Mo. 430, per Scott, J. » Graeme v. CuUen, 28 Gratt. 266, 276. And see Taylor v. Dickinson, 15 Iowa, 483 ; Townsend v. Wilson, 3 Madd. 261 ; Franklin v. Osgood, 14 Johns. 527 ; Hind v. Poole, 1 Kay & J. 383 ; 41 Jur. N. S. 371. » Hannah v. Carrington, 18 Ark. 85 ; Franklin v. Osgood, 14 Johns. 527. And see Goss v. Singleton, 6 Gill, 487; Greenleaf v. Queen, 1 Peters, 138; Gibbs V. Marsh, 2 Met. 243 ; Goss v. Singleton, 2 Head, 267 ; Maudlin v. Armistead, 14 Ala. 702. If there is a provision that the mortgagee may retain all expenses and costs of sale, he is entitled to a reasonable sum for legal advice and for his own time and attention : Arnum v. Meserve, 8 Allen, 158. See Marsh v. Morton, 75 111. 621. 383 DEEDS UNDEE POWEES OP SALE. §§ 394-395 but that is for the benefit of the purchaser only, to perpetuate the evidence of the authority by which the sale was made ; and the mortgagor cannot impeach the sale, if the power is not recorded." ^ The assignee of a mortgage containing a power of sale has power to sell, and the fact that he omits to record the assignment will not prevent him from selling, or invalidate the sale when nobody is misled by such omission.* § 394. Statutory regnlations. — But it is now provided in some of the States, that before a valid sale can be made under a power of sale in a mortgage, the latter must be recorded. In New York, where the premises embraced in the mortgage con- sist of distinct farms or tracts of land situated in different counties, the mortgage must be recorded in the clerk's office of each of the counties. If the mortgage is not so recorded, a sale of the premises in the county in which it is unrecorded will not be valid.* § 395. Power of sale passing by assignment of mortgage.— Where no words of restriction are used, a power of sale passes to ' Wilson V. Troup, 2 Cowen, 195, 235 ; 14 Am. Deo. 458, per Sutherland, J. See also Jackson v. Colden, 4 Cowen, 266 ; Bergen v. Bennett, 1 Caines Cas. in Er. 1, 17, 18 ; Berry v, Mut. Ins. Co. 2 Johns.. Ch. 611 ; Jackson v. Dubois, 4 Johns. 216. » In Montague v. Dawes, 12 Allen, 397, Colt, J., said : " It seems that the assignment from Rue to Dawes was not recorded until after the sale, but we can see no good reason why this fact alone, unaccompanied with the suggestion that it was not recorded from improper motives, or that in some way the circumstance actually affected the sale by misleading purchasers or otherwise, should operate to defeat a title acquired under it, and in favor of this plaintiff, who it seems had actual notice of the unrecorded assignment, and as appears by the answer and recorded proofs of the sale, personal notice, in addition to the public notice by advertisement of the time and place of sale. Indeed, if the necessities of the case required, it might be well contended that, under the circumstances, it was the mani- fest duty of the plaintiff, if he intended to rely on his right to redeem the premises against a purchaser at the sale, to attend the sale and give notice of his purpose, and that in equity he will not now be entitled to relief, having neglected with reasonable diligence to assert his equi- table title, and waited until the owner may have added largely to the estate, or it has increased in value by a general rise, before bringing his bill." a Wells V. Wells, 47 Barb. 416. § 395 DEEDS UNDER POWEES OP SA.I4B. 384 the assignee by a legal assignment of the mortgage.* An assign- ment, to be effectual as a transfer of the power of sale, must comply with the provisions of the statute when the matter has been- regulated by statute, or be made in such a mode as would be considered operative at common law. A mortgagee does not divest himself of a power of sale by an assignment consisting of aji informal indorsement without any transfer of the note. The power of sale does not thereby pass to the assignee.* A sale is void where the advertisement has been commenced by the mort- gagee, and he before the sale assigns the mortgage to another, and the assignee continues the advertisement in the name of the mortgagee instead of commencing again.* In regard to deeds of trust, the rule-is that the trust cannot be delegated except in compliance with the terms of the trust deed. " A power is con- ferred upon the trustee, upon the happening of the contingency named, to sell the property ; and to effectuate the object in view, he is clothed with the legal estate in the premises for the pur- pose of passing it to the purchaser. The substantial part of the deed is the equitable interest in the property which is acquired by the cestui que trust, whilst the trustee is the mere instrument selected by the grantor to make the sale and transfer. Being, therefore, a mere instrument to execute the purpose of the grantor, he^cannot delegate his power to another without express authority conferred by the deed itself."* Accordingly, it is held that where two persons, or the survivor of them, and the heirs and assigns of the survivor, are clothed with a trust, it can- not be executed by a third person to whom the survivor had 1 Bush V. Sherman, 80 111. 160 ; Pease v. Pilot Enob Iron Co. 49 Mo. 124 ; Harnickell v. Orndorff, 35 Md. 341 ; Cohoes Co. v. Goss, 13 Barb. 137 ; MoG-uire v. Van Pelt, 55 Ala. 344 ; Slee v. Manhattan Co. 1 Paige, 48 ; Pick- ett V. Jones, 63 Mo. 195 ; Brown v. Delaney, 22 Minn, 349. And see Titley V. Wolstenholme, 7 Beav. 425 ; Bradford v. Belfleld, 2 Sim. 264 ; Wilson v. Bennett, 5 De Gex Dyer v. Shurtlefi^ 112 Mass. 165, 170. § 407 DEEDS UKDEE POWERS OP SALE. 394 not be held insafficient to uphold the saW^ A deed of trast provided that the sale should be made at the "coart-house door." It was held that while the court-house building was undergoing repair, a sale might be made at the door of a building which was in the mean time used as a court-house, and such a sale would be upheld.^ Where a trust deed provides that the sale shall take place at the eourt-house of the county, and subsequently a new county is created, from a part of the old, and the new county contains the land described in the trust deed, the power is prop- erly exercised by selling at the court-house of the new county.' If a deed of trust provides that a sale may be made at the north door of the court-house, and the court-house is subsequently destroyed, the sale, after such destruction, may be made on that portion of the ground that would have been in front of the court- house door had the building remained in the condition in which it was at the execution of the deed.* But a sale is void where the notice of sale specifies the place of sale as " the front door of the court-house " in a certain town, and there is no court- house there, nor any place known by that name." § 407. Designation of time of sale. — The same rule applying to the designation of the place of sale, applies also to the time of sale. They both must be definitely specified.* But a notice of sale which omitted the year, stating that it would take place on the '"^Sth of December next^'was held to be good.' But where the year was mentiObed and a mistake made, the sale being advertised to take place in February, 1858, though it was intended to be made and in fact was made in 1859, the notice ' Golclier v. Brisbiiij 20 Minn. 453, 459, per Berry, J. So a notice stating the time and place of sale as, " at the front door of the court-house, in the city of St. Paul, on Thursday, the tenth day of May, 1880," was held suffi- ciently definite in these particulars. ' Hambright v. Brockman, 59 Mo. 52. » Williams v. Pouns, 48 Tex. 141. * Chandler v. White, 84 111. 435 ; WaUer v. Arnold, 71 HI. 350. See Alden v. Goldie, 82 lU. 581 ; Gregory v. Clarke, 75 111. 485 ; Wilhelm v. Schmidt, 84 111. 183 ; Hornby ». Cramer, 12 How. Pr. 490 ; Rice v. Brown, 77 111. 549. 6 Bottineau v. iEtna Iiife Ins. Co. 31 Minn. 125. ' Burnet v. Deuniston, 5 Johns. Ch. 35. ' Gray v. Shaw, 14 Mo. 341. 395 DEEDS UNDEE POWBES OP BALE. § 408 was held to be fatally defective.^ If the day advertised for a sale falls upon Sunday, it does not follow for this reason that the proceedings are void.^ A notice of sale stated that it would be made on the 23d of May, but subsequently the date, without the debtor's knowledge^ was changed to the 25th. He attended at the place designated at the time first stated, but the sale was not made until the latter day, and this sale, the court decided void.* In a notice of sale it was stated that the sale would occur on Friday, the 17th. It happened that Friday was the 16th, and the correction was made on that day, but the proceedings nevertheless were held to be void.* In the absence of any provi- sion in the deed of trust as to the time, place, or terms of sale, and if there is no statute prescribing a specified mode of proced- ure, these matters are left to the discretion of the trustee, and the sale will be held valid if he fairly and honestly exercises that descretion.* § 408. Erroneous statements. — The notice should correctly state all matters of which it is the duty of the party selling under the power to give notice. But it is not necessary that it should be dated, as the date will be taken to be the time when publication is first made.' Where there is no fraud, and the owner of the land has not been prejudiced, a sale will not be invalidated by the fact that the attorney's fee stipulated for in the mortgage has not been correctly stated.^ It was stated in a notice that the property would be sold for cash, at the court- house door in a certain town, but the county was not mentioned, nor was it stated that the sale would be at public vendue to the highest bidder. These omissions, however, were not considered as misleading.* But a statement that the property will be » Fenner v. Tucker, 6 E. I. 551. » Sayles v. Smith, 12 Wend. 57 ; 27 Am. Dec. 117 ; Westgateti. Handlin, 7 How. Pr. 372. » Dana v. Farrington, 4 Minn. 433. * Wellman v. Lawrence, 15 Mass. 326. ' Olcott V. Bynum, 17 Wall. 44. Under the statute of Minnesota, an omission to designate the hour of sale does not necessarily make the sale invalid: Menard v. Crowe, 20 Minn. 448; Butterfield v. Farnham, 19 Minn. 85. * Eamsey v. M«rriam, 6 Minn. 168. 1 Swenson v. Halberg, 1 Fed. Rep. 444. * Powers V, Kueckoff, 41 Mo. 425, § 408 DEEDS UNDER POWEES OF SALE. 39& sold for default of three mortgages, when there are but two, the third affecting other land, is misleading, and will render the sale irregular and void.* A recital, however, in general terms of a default is not subject to the objection of being misleading, because it fails to state that all the notes but one have been paid.^ Where the mortgagee acts in good faith, and it is usual and reasonable to require a deposit, a sale is not invalidated because a deposit was required, and this prevented a person from bid- ding.* While the notice should show that a default has occurred within the terms of the mortgage,* yet it has been held that this is not necessary, for the reason that the occurrence of the default is a necessary implication from the statement, that the sale is made by virtue of the power.* A mortgagor was not allowed to avoid a sale where the notice of sale fell on Sunday, and a new notice fixing a different day for the sale, and claiming a different amount as due, was given.* When an iadjournment of .the sale is had to a future time, and the notice of it as published is for a different date, the sale cannot be upheld.^ It is not necessary to state the amount due for the payment of which the sale is to be made, unless this is required by statute, or is one of the terms of the deed.* And when the statute does require the statement of this fact, it is sufficient to give the amount claimed to be due at some prior date, and that the mortgagee claims that sum with interest thereon from that date.* ^ Burnett v. Deuniston, 6 Johns. Ch. 3&. * Bush V. Sherman, 80 111. 160. ' Model Lodging House Assoc, v. Boston, 114 Mass, 133 ; Pope v. Bur- rage, 115 Mass. 282; Goodale v. Wheeler, 11 N. H. 424. * Bush V. Sherman, 80 111. 160. ' Model Lodging House Asaoc. v. Boston, 114 Mass. 133. " Banning v. Armstrong, 7 Minn. 46. ' Miller V. Hull, 4 Denio, 104. See also on this subject, Hubbell v. Sibley, 50 N. Y. 468 ; Chandler v. Cook, 2 MoAr. 176 ; O'Connell v. Kelly, 114 Mass. 97 ; Alden v. Wilkins, 117 Mass. 216 ; Gray v. Shaw, 14 Me. 341 ; Pope V. Burrage, 115 Mass. 282 ; Hornby v. Cramer, 12 How. Pr. 490 ; King V. Brouson, 122 Mass. 122 ; Fowle v. Merrill, 10 Allen, 350 ; Cook v. Basley, 123 Mass. 396 : Donohue v. Chase, 130 Mass. 137 ; Morton v. Hill, 118 Mass. 511. ' Jenkins v. Pierce, 98 111. 646. ' Judd V. O'Brien, 21 N. Y. 186. See also Spencer v. Annan, 4 Minn. 542; Fairman v. Peck, 87 111. 156; Jencks v. Alexander, 11 Paige, 619; Bailey v. Merritt, 7 Minn. 159 ; Klock v. Cronkhite, 1 Hill, 107 ; Butterfield V. Parnham, 19 Minn. 85 ; Hamilton v, Lubukee, 51 111. 415 ; Bennett «. 397 DEEDS UNDER POWEES OF SALE. § 409 § 409. Description of the property. — The property to be sold under the power should be properly described. But if the street number of the building has been changed since the execu- tion of the mortgage, a notice describing the property as it is described in the mortgage is not defective, when it does not appear that the mortgagee had knowledge of the change, and when the mortgage does not give the number, it appearing only upon a plan referred to in the mortgage.^ And a description of the property as "a certain lot of land, with the buildings and improvements thereon, sitaate in the northerly part of the city of Providence, being the lot of land numbered 10 (ten), on a plat of the land of Samuel Whelden, surveyed and platted by H. F. Wal- ling, July 7, 1845," the plat being recorded, has been held suffi- cient.* Although the description may include the land sold, yet if it contains double the area of the property mortgaged, the sale will not be valid.® In New York, under the statute, a notice was required to state the date of the mortgage and where it was recorded. It was held that the place where the mortgage was recorded was sufficiently specified by mentioning the clerk's office and the date of record, though it erroneously stated the number of the book in which the mortgage was recorded.^ The Healey, 6 Minn, 240 ; Bailey v. Merritt, 7 Minn. 159. The mortgagee may waive the proceedings, and advertise over again, or may resort to a fore- closure suit in equity, in case a mistake is made in the advertisement of such a character as would cause a sale to be irregular or voidable : Atwater V. Kinnan, Har. (Mich.) 243. For a case where a sale was set aside for erroneous statements contained in the notice, see Wicks v. Westcott, 59 Md. 270, 1 Model liodging House Assoc, v. Boston, 114 Mass. 133. » Fitzpatrick v. Fitzpatrick, 6 R. I. 64; 75 Am. Dec. 681. In Robinson V. Amateur Association, 14 S. C. 148, it is said by McGowan, A. J. : " It is said again that the property was not suflaoiently described to attract pur- chasers. It would seem to be a full answer to this that the advertise- ment described the premises in the identical terms by which they were described in the mortgage by the plaintiff himself, with the omission only of the words ' with the buildings thereon.' The land included whatever buildings were on it, and the words 'buildings thereon,' would have been mere surplusage, unless the omission was with a corrupt motive, which is not charged." 5 Fenner v. Tucker, 6 R. 1. 551 ; Hoffman v. Anthony, 6 R. I. 282. » Judd V. O'Brien, 21 N. Y. 186. Said Denio, J. : "If there had been no reference to the number and page of the book, but only a statement of the time of recording in the proper clerk's o£9ce, I think there would have been a substantial compliance with the requirbment of the statute. Con-. § 410 DEEDS UKDEE POWEES OP SALE. 398 notice sufficiently describes the property, if.it follows the descrip- tion of the property by metes and bounds contained in the mortgage, and refers by book and page to the registry of deeds, and by book and page to a plan recorded in the office of the superintendent of public land.* The objection that the precise parcel to be sold is not designated, cannot be made to a notice which states that the premises will be sold, "or so much thereof as may be necessary." A notice of this kind is in the usual and proper form.^ § 410. Sales to bona fide purchasers. — Abonafde purchaser is entitled to the same protection as if he had purchased at a sale under a decree of foreclosure.' A purchaser without notice will obtain a good title when the record shows the mortgage to be valid.* A bona fde purchaser will be protected although the mortgage has been paid, when it is not discharged of record.' veyances are required to be recorded in the order of time of delivery to the clerk for record : 1 Kev. Stats. 760, §24. A person being thus informed of the place in the series of recorded mortgages, where the one of which he is in quest might be found, would never be at a loss in laying his hand on it. This would not be a sufficient answer if the act had required the volume and page to be stated ; but it is not so precise in its requirements. The place where recorded would be sufficiently indicated by naming the office and the date of the record, and possibly by the mention of the office alone. But here is a positive error, and the question is whether it is one calculated to mislead ; or rather, whether the notice, considering the error which entered into it, fails to accomplish the object intended by the statute. We think it does not. There being no book in the office of as high a number as the one mentioned, an inquirer would immediately recur to the other test of locality, the date, and could not fail immediately to And the record. The case is within the maxim falsa demonstratio non nocet." ' Stickney v. Evans, 127 Mass. 202. See also Jackson v. Harris, 3 Cowen, 241 ; Hoffman v. Anthony, 6 B. I. 282 ; 75 Am. Dec. 701 ; Rathbone v. Clark, 9 Abb. Pr. 66, n.; Marsh «. Morton, 75 111. 621 ; Callaghan u. O'Brien, 136 Mass. 378 ; Colcord v. Bettinson, 131 Mass. 233. ' Snyder v. Hemmingway, 47 Mich. 549. ' Slee V. Manhattan Co. 1 Paige, 48 ; Jackson v. Henry, 10 Johns. 185 ; 6 Am. Dec. 328. * Ledyard v. Chapin, 6Ind. 320; Cameron v. Irwin, 5 Hill, 272; Wade V. Harper, 8 Yerg. 888 ; Warner v. Blakeman, 36 Barb. 501 ; Penny v. Cook, 19 Iowa, 538. ' Merchant v. Woods, 27 Minn. 396 ; Warner v. Blakeman, 36 Barb. 501. In the former case, the court, per Cornell, J., said : "The statutory pro- visions relating to recording conveyances of any estate or interest in real estate by which the title may be affected, are especially designed for the 399 DEEDS UNDER POWEES OP SALE. § 410 If an agreement is made between the owner of the land which has been sold under a deed of trust and the purchaser at the benefit and protection of parties dealing in that kind of property. The leading object is to provide full, truthful, and reliable Information respect- ing titles, easily accessible to all, and upon which any one may safely act in making a purchase when he has no knowledge or notice of any fact suf- ficient to put hiin upon inquiry, or to excite suspicion as to the fullness or accuracy of the record title ; Wade on Law of Notice, g 96. To this end, every such conveyance by deed, mortgage, or otherwise, is required to be recorded in the office of the register of deeds of the county where the real estate is situated, and if not, it is declared to be void as against any subse- quent purchaser of the same in good faith and for a valuable consider- ation, -vshose conveyance in whatever form is first duly recorded : Gen. Stats. 1878, ch. 40, g 21. Within the meaning of this section, a release by a mortgagee of his interest and estate in mortgaged premises, whether done by an entry on the margin of the record, by a certificate of discharge as authorized by section 36, or by a decree of court under section 37, is a con- veyance, as that term is defined by section 26. Such was the ruling of this court in Palmer v. Bates, 22 Minn. 532, where it was also held that an unrecorded release of a portion of the mortgaged premises was of no avaU. as against an innocent purchaser for value, acquiring title under a statutory foreclosure by advertisement of the mortgage upon the entire tract, and a certificate of sale duly executed and recorded, with the usual affidavits of sale and publication of the foreclosure notice. In the case at bar, the fore- closure proceedings under which defendant claims title were had in strict conformity with the requirements of statute, and without objection from any source. The foreclosure notice was duly published, the mortgage was undischarged of record, and it and the note, for default in the payment of which the foreclosure was had, both purported upon their face to be unsatisfied, and were so held by the mortgagee at the time, of which facts the defendant had knowledge prior to bis purchase. The certificate of sale and the affidavits of publication and sale were duly made and recorded, and it is not questioned that the defendant in entire good faith bought and paid a valuable consideration for the property, which was vacant and unoccupied at the time. In view of these facts it is difficult to distinguish the present case in principle from that decided in Palmer v. Bates, supra. The additional fact which exists in this case, but did not in that, that the whole mortgage debt was paid prior to the foreclosure, is only important as showing the extent of the relinquishment of the mortgage security as between the parties thereto and their assigns ; but it does not affect the question as to the effect of such relinquishment against third parties, hav- ing no notice thereof, actual or constructive. As between the former, such payment would operate to extinguish the entire mortgage, and all rights under it, and would equitably entitle the mortgagor or the holder of the equity of redemption to a deed of release from the mortgagee, releasing and relinquishing all his interest and rights under the mortgage. But no greater effect could be given to such a payment than would be accorded to a full deed of release, founded upon any valid consideration, covering and relinquishing all the rights of the mortgagee under his mortgage. If such a release, unrecorded, would be ineffectual to defeat the title of an innocent § 410 DEEDS TTIfDEE POWEES OF SALE. 400 sale, that the latter will reconvey the premises to the former,- when a debt due to such purchaser is discharged from the rents, and such purchaser subsequently conveys the property to another who has bought without notice of this agreement, paid a sub- stantial part of the purchase money in cash, and given his nego- tiable promissory notes for the remainder, the agreement for- a reconveyance cannot be enforced against such subsequent grantee.* But a purchaser cannot acquire a valid title when he is fully aware of any fraud or unfair dealing in the sale.* A purchaser under a deed of trust who is also a beneficiary under it, is not made a trustee of the property by a remark casually made that he wished to purchase the property only for the purpose of securing purchaser without notice, acquired under a subsequent and apparently valid foreclosure of the mortgage, clearly a payment of the mortgage debt, unaccompanied by any written release whatever, would be equally ineffectual under like circumstances. The invalidity under the registry laws of such an unrecorded release as respects the rights of such a pur- chaser, follows as a logical sequence from the decision in Palmer v. Bates, supra. Though the release in that case only covered a part of the mort- gaged premises, the decision was not put upon that ground, but upon the ground that the statute makes every unrecorded instrument of that char- acter, without regard to the extent of the interest released, void as against any purchaser in good faith and for a valuable consideration, whose con- veyance is first duly recorded. The principle, and the reason for it, is this : Whenever the lien of a recorded mortgage containing a power of sale is in fact discharged, in whole or in part, by payment or otherwise, the law makes it the duty of the mortgagor or the holder of the equity of redemp- tion, as between him and third parties having no notice thereof, to procure the evidence of the discharge to be properly put upon record. A failure so to do leaves the mortgage apparently a subsisting security, and the mortgagee apparently still clothed with the authority originally conferred by the power ; and if in the exercise of such apparent authority, a fore- closure is regularly had, and a sale is effected upon the faith of the appear- ances, the innocent purchaser will be protected in his. title, if first recorded, as against the party through whose fault and negligence the apparently valid foreclosure and sale were rendered possible." 1 Digby V. Jones, 67 Mo. 104. " Mann v. Best, 62 Mo. 491 ; Jackson v. Crafts, 18 Johns. 110. .Although an owner might on account of irregularities have a sale set aside, still if he, with full knowledge of these irregularities, stands by and sees the pur- chaser sell the property to a third person without notice, and interposing no objection allows such third person to pay out his money, and expend money in improvements, the second purchaser will be protected against any claim by the former owner : Jenkins v. Pierce, 98 111. 646. See also Hosmer v. Campbell, 98 111. 572 ; Jackson v. Bominiok, 14 Johns. 435 ; Jackson v. Henry, 10 Johns. 185 ; 6 Am. Dec. 328 ; Elliott v. Wood, 53 Barb. 285 ; Hoit v. Bussell, 56 N. H. 559. 401 DEEDS UNDEE POWEES OP SAXiE. § 411 his debt, and that when he was paid he intended to reconvey the property thus purchased.* It may be presumed from the lapse of time and acquiescenoe in the possession taken by the pur- chaser, that a sale under a power was regular, and that due notice as required by the power was given .'^ § 411. Sale shOTild be beneficial to debtor. — It is the duty of the trustee under a deed of trust to cause the sale of the property to result as beneficially to the debtor as possible. The trustee should exercise a sound discretion, and when the land will sell as a whole for a larger price than it would bring if sold in parcels, he should pursue the former course.' But if the prop- erty can readily be divided into lots, and will bring more by such division, or if the debt will be satisfied by a sale of a part of the property, the trustee should be guided by these consider- ations, and if he fails to do so, the party injured may have the sale set aside.* But still it remains generally true that a mort- gagee is not compelled to sell in parcels for the purpose of obtaining a better price.* But it is to be remembered that where a trustee is authorized to sell the premises without divi- sion, or in parcels, as he should think best, his discretion in this respect is not arbitrary, and a sale in gross will be set aside ' Mansur v. Willard, 57 Mo. 347. Where there is no provision that the whole debt shall become due upon the payment of a part, and the property is sold to satisfy one instalment before the others become due, any surplus remaining in the hands of the trustee is subject to the same lien to which the land was subject : Standish v. Vosberg, 27 Minn. 175 ; Huflfard v. Gott- berg, 54 Mo. 271 ; Fowler v. Johnson, 26 Minn. 3S8. And see Beard v. Fitz- gerald, 105 Mass. 134 j Princeton Loan . Scott, 11 Iowa, 589; Carter v. Abshire, 48 .Mo. 300; Terry V. Fitzgerald, 32 Gratt. 843. * Tatum V. Holliday, 59 Mo. 422; Olcott v. Bynum, 17 WaU. 44; Tay- lor's Heirs v. Elliott, 32 Mo. 172 ; Gray v. Shaw, 14 Mo. 341 ; Goode v. Com- fort, 39 Mo. 313. s Adams v. Scott, 7 Week. E. 213. See Charter v. Stevens, 3 Denio, 33 ; 45 Am. Deo. 444 ; Grover v. Fox, 36 Mich. 461 ; Rowley v. Brown, 1 Binn. 61 ; Kline o. Vogel, 11 Mo. App. 211 ; Chesley v. Chesley, 49 Mo. 540 ; Sam- rail V. Chaflan, 48 Mo. 402 ; Clark v. Stillson, 36 Mich. 482 ; German Bank 1). Stumpf, 73 Mo. 311 ; Larzelere v. Starkweather, 38 Mich. 96. I. Deeds.— 26. § 412 DEEDS TJNDEE POWEES OF SALE. 402 when it is clearly manifest that a better price would have been obtained if the land had been sold in parcels.^ Where a statute requires a sale of the property in parcels, and any one having an interest in the equity of redemption asks for a sale in parcels, and offers in good faith, for a part of the property that may conven- iently be sold separately, an amount sufficient to pay the mort- gage debt and expenses, the mortgagee is not justified in selling the entire property in one lot.^ It is usual to insert in a mort- gage a clause that upon default in the payment of interest or any instalment of the principal, the whole of the debt shall become due and payable. But it seems that even when a clause of this nature is not inserted, the whole mortgaged estate may, upon default in the payment of an instalment of interest or prin- cipal, be sold, if the whole would be greatly impaired by the sale of a payt.' In order to set a sale aside because the property was not sold in parcelsj it must appear that the rights of the debtor were sacrificed, or that there was fraud or unfairness.* Where a trustee agreed at the sale with the owner of the equity to post- pone the sale for one hour, until the latter could give the trustee a certified check sufficient to pay the whole encumbrance, but the trustee, instead of waiting, sold the land within the hour for less than that sum, it was held that the sale should be annulled for fraud." § 412. Sale for casL — When the mortgagee has the power 'io sell for cash or on credit, in his discretion, he must exercise ithis discretion not for his own interest, merely, but for the benefit 1 Cassldy v. Cook, 99 111. 385. ' Ellsworth V. Lookwood, 42 N. Y. 89. See also Slater v, Max-vrell, 6 "WaU. 268 ; Wells v. Wells, 47 Barb. 416 ; Grlswold v. Fowler, 24 Barb. 135 ; ■Lalor V. McCarthy, 24 Minn. 417. » Oloott V. Bynum, 17 Wall. 44; Salmon v. Clagett, 3 Bland, 125; Pbpe *. Durant, 26 Iowa, 233 ; Cox v. Wheeler, 7 Paige, 24S; Barber v. Cary, 11 Barb. 549 ; McLean v. Presley, 56 Ala. 211 ; WUmer v. Atlanta & Richmond Air Line R. R. Co. 2 Woods, 447 ; Fowler v. Johnson, 26 Minn. 338 ; John- son V. Williams, 4 Minn. 260; Standish t>. Vosberg, 27 Minn. 175; Bunqe V. Reed, 16 Barb. 347. * Gillespie v. Smith, 29 HI. 473 ; Benkendorf v. Yincenz, 52 Mo. 441 ; Shine v. HiU, 23 Iowa, 264 ; Ingle v. Jones, 43 Iowa, 286 ; Chesley v. Ches- ley, 54 Mo. 847; Fairman v. Peck, 87111. 166. » Ventres v. Cobb, 105 111. 83. 403 DEEDS UNDER POWEES' OF SALE. § 413 of all concerned.^ Nobody can object if the mortgagee in making the sale takes the risk of the payment of the purchase money upon himself, for this course enables him to make a better sale, and he may give credit for so much as would come to him, notwith- standing that the deed provides a sale for cash.'' The sale may be for cash, when the terms of sale are not provided for by the power.* Substantial compliance with the requirement that- a sale shall be for cash is all that is requisite, and a sale cannot be objected to, if the mortgagor has not been injured, when there has not been a literal compliance with such requirement.'* Thus, under a power to sell "for cash" a sale is valid if made to one who gives his check for the price bid, which would have been paid if presented for payment.® A defect in the conduct of the sale may be cured by the mortgagor's acquiescence.' § 413. Trustee's presence at sale. — A special confidence is reposed in the trustee as to all duties which are not mechanical ' Markey v. Langley, 92 TJ. S. 142. ' Strother o. Law, 54 111. 413 ; Crenshaw v. Seigfried, 24 Gratt. 272 ; Bailey v. Mtna Ins. Co. 10 Allen, 286 ; Parker v. Banks, 79 N. C. 480 ; Davey v. Durrant, 1 De Gex & J. 535. See Cox v. Wheeler, 7 Paige, 248 ; Tliurlow V. Mackeson, Law B. 4 Q. B. 97 ; Muhlig v. Flske, 131 Mass. 110 ; Stanford v. Andrews, 12 Helsk. 664 ; Powell v. Hopkins, 38 Md. 1. ' Olcott V. Bynum, 17 Wall. 44. * Ballinger v. Bourland, 87 111. 513. See Wood v. Krebs, 33 Gratt. 685 ; Johnson v. Watson, 87 HI. 535 ; Fall Kiver Savings Bank v. Sullivan, 131 Mass. 537. ' MoConneaughey v. Bogardus, 106 111. 321. " Markey v. Langley, 92 U. S. 142; Olcott v. Bynum, 17 Wall. 44; Taylor v. Chowning, 3 Leigh, 654. But see Sloan v. Frotfaingham, 65 Ala. 503. Saits may be brought by different -claimants of the surplus money to determine their respective rights, against the mortgagee for money had and received : Cope v. Wheeler, 41 N. Y. 303; Webster v. Singley, 53 Ala. 208 ; Matthews v. Dnryee, 45 Barb. 69 ; Cook v. Basley, 123 Mass. 396 ; Bevier v. Schoonmaker, 29 How. Pr. 411. Or by a bill of interpleader he may bring the claimants into court : Bevier v. Schoonmaker, 29 How. Pr. 411 ; Bleeker v. Graham, 2 Edw. Ch. 647 ; People v. Ulster Com. Pleas, 18 Wend. 628. A cestui gue.fmst who bids more than sufficient to pay the debt, is legally bound for the balance of bis bid, and after his death the claim may be enforced against his personal representatives : Laughlin v, Heer, 89 lU. 119. And see Skilton v. Roberts, 129 Mass. 306 ; Andrews v. Fiske, 101 Mass. 422; O'ConneU v. KeUy, 114 Mass. 97; Morton v. Hall, 118 Mass. 511 ; Story v. Hamilton, 20 Hun, 183 ; Mathison 7'. Clark, 25 Law J. Ch. N. S. 29; Alden v. Wilkins, 117 Mass. 216; Winslow v. McCall, 32 Barb. 241. § 414 DEEDS TJNDEK POWEES OF SALE. 404 or ministerial;* and hence, he should be personally present at the sale, and a sale may be vitiated by the fact of his absence.* But where there are tw Dexter v. Shepard, 117 Mass. 480. 405 DEEDS UNDER POWEE8 OF SALE. §§ 415-416 published.^ In Illinois, however, it was held that when a trustee adjourns a sale, a new notice for the same time as origin- ally required must be given.^ A sale will be void if made before the time fixed in the notice of adjournment.* It is usual to allow a purchaser a certain time to examine the title, and time in this case is not generally regarded as being of the essence of the contract.* § 415. Release of parcel from mortgage. — If a parcel of land covered by a mortgage is released from the operation of the mortgage, the right to sell the rest of the mortgaged premises under a power of sale is not affected by such release.* And where the land has after the execution of the mortgage been subdivided by the mortgagor into parcels without the mort- gagee's' concurrence, and the parties have joined in obtaining the release of a parcel, the rest being left in distinct parcels, the sale is not void if made in parcels.' § 416. Requirement of deposit — The trustee has the power to require a reasonable deposit at the time of the sale, and if the deposit required is not unreasonably large, and the purchaser has not the money to make the deposit, and does not ask for a delay, the property may be put up for sale again.^ But a sale will not be upheld, if against the remonstrance of the persons who attend the sale, the whole amount of the purchase money is required to be paid at the time of the sale or within an hour thereafter.* ' Bennett v. Bnindage, 8 Minn. 432 ; Jackson v . Clark, 7 Johns. 217 ; Westgate v. Handlin, 7 How. Pr. 372 ; Dana v, Farrington, 4 Minn. 433 ; Sayles v. Smith, 12 Wend. 57; 27 Am. Deo. 117. See Allen v. Cole, 9 N. J. Eq. (1 Stookt.) 286 ; Hosmer v. Sargent, 8 Allen, 97 ; Stearns v. Welsh, 7 Hun, 676. 2 Thornton v. Boyden, 31 111. 200 ; Grifiln v. Marine Co. of Chicago, 52 111. 130. » Miller v. Hull, 4 Denio, 104. ' Hobson V. Bell, 2 Beav. 17. > Durm V. Pish, 46 Mich. 312. • Durm V. Pish, 46 Mich. 312. ' Wing V. Hayford, 124 Mass. 249. » Goldsmith v. Osborne, 1 Edw. Ch. 560. See Horsey v. Hough, 38 Md. 130; Maryland L. & B. S. v. Smith, 41 Md. 516. § 417 DEEDS UNDER POWBES OF SALE. 406 § 417. Bight of mortgagee to pnrcliase. — The general rule is, that unless the instrument confers the power of purchasing upon the mortgagee, he is not allowed to become a purchaser at his own sale, the law, in the absence of a special stipulation, not permitting him to occupy the position of vendor and vendee at the same time. " In such a sale there is every temptation to promote his own interest, at the sacrifice of that of the owner. The law will neither subject nor suffer him to be tempted to act unjustly. It is believed to be a rule of universal application, that the officer or person charged with the sale of property at auction, whether by authority of law or under a power derived from the owner, is prohibited from becoming the purchaser. If sanctioned, it would lead to oppression, wrong, and fraud, highly injurious to the owner. When such a purchase has been made, it is not necessary to show that wrong has resulted, as the law will not recognize such a bidder as capable of becoming a purchaser."* Where the mortgagee thus becomes the purchaser, the equity of redemption in favor of the mortgagor still attaches to the property.^ A trustee under a deed of trust labors under the same disability as a mortgagee, as to his power to purchase at his own sale.' It is held in Texas, that if the sale is con- ducted fairly, the mortgagee may become a purchaser at his own sale under a power.* And in New York it is held like- ' Mapps V. Sharpe, 32 111. 13, 22, per Walker, J. Watson v. Sherman, 84 111. 263 ; Phares v. Barbour, 49 HI. 370 ; Waite v. Dennison, 51 111. 319 ; Koss V. Demoss, 45 111. 447 ; WUtehead v. Hellen, 76 N. C. 99 ; Howard V. Ames, 3 Met. 308 ; McLean v. Presley, 56 Ala. 211 ; Lockett v. Hill, 1 Woods, 552 ; Roberts v. Fleming, 53 111. 196 ; Griffin v. Marine Co. of Chi- cago, 52 111. 130 ; Michoud v. Girod, 4 How. 503 ; Robinson v. Amateur Assoc. 14 S. C. 148 ; Parmenter v. Walker, 9 R. I. 225 ; Benham v. Rowe, 2 Cal. 387 ; 56 Am. Dec. 342 ; Kornegay v. Spicer, 76 N. C. 95 ; Hyndman v. Hyndman, 19 Vt. 9 ; 46 Am. Deo. 171 ; Downes v. Grazebrook, 3 Mer. 200 ; Rutherford v. Williams, 42 Mo. 18 ; Korns v . Shaffer, 27 Md. 83. But see Dawkius v. Patterson, 87 N. C. 384; Mills v. Williams, 16 S. C. 593. - Benham v. Rowe, 2 Cal. 887. Stephen v. Beall, 22 Wall. 329 ; Lass v. Sternberg, 50 Mo. 124. Where in compliance with the statute a sale is made in good faith by the sheriff, the mortgagee may purchase under a power running to himself : Ramsey V. Merriam, 6 Minn. 168. But he has not this privilege if his own agent is the auctioneer, and makes the certificate and affidavit : Allen v. Chatfield, •8 Minn. 435. * ConneUy v. Hammond, 51 Tex. 635 ; Howards v. Davis, 6 Tex. 174. See Marsh v. Hubbard, 50 Tex. 203. 407 DEEDS UNDER POWEES OF SALE. § 418 wise.* When a sale is made to the mortgagee, the mortgage debt is extinguished to the extent of the bid.^ A second mort- gagee may buy at a sale under a power contained in a prior mort- gage.' The wife of the mortgagor has the right of purchasing at a sale under the power;* and so has the mortgagor himself." § 418. Sale voidable only. — Such a sale is not void but void- able only.' " The sale, if otherwise regular, is voidable only at the election of the party whose interests are prejudiced thereby. It is not absolutely void. The title passes. The party injured may defeat and avoid it. But if, before he exercises that right, the estate has been conveyed to another, who has purchased in good faith, upon adequate consideration and without notice, such purchaser will hold the estate." ^ Such a sale is, of course, suf- ficient to enable the purchaser to maintain an action of ejectment.* But in North Carolina, it is held that the title docs not pass by such a sale.' If the property has been sold to another with a prior understanding that the purchaser should reconvey to the mortgagee, this is attempting to do indirectly what the law pro- hibits when done directly, and hence the mortgagee will acquire • Bergen v. Bennett, 1 Caines Cas. 1 ; Elliott v. Wood, 53 Barb. 285 ; Hubbell V. Sibley, 5 Lans. 51. This power is now expressly conferred by statute in that State : 3 Bev. Stats. (6th ed.) 847, § 7. Se& also Bloom v. Van Rensselaer, 15 HI. 503 ; Richards v. Holmes, 18 How. 143 ; Nat. Fire Ins. Co. V. Loomis, 11 Paige, 431. » Harris v. Miller, 71 Ala. 26. ' Parkinson v. Hanbnry, 2 De Gfex, J. . Fisher, 46 Mich. 812. » Sugden v. Beasley, 9 111. App. 71. ' Chicago, Bock Island & B. B. Co. v. Kennedy, 70 HI. 350. But see Long V. Long, 79 Mo. 644 ; Poster v, Boston, 133 Mass. 143. 413 DEEDS UNDER POWBES OF SALE. § 428 " By the terms of the trust deed, however, the legal title to the premises was vested in the trustee. At law, a sale and convey- ance by him would operate to transfer the legal title. Whether the sale was made in compliance with the power contained in the trust deed or not, was not a proper subject of inquiry in an action of ejectment. If the trustee sold contrary to the terms of the trust deed, the remedy was in equity." * § 428. Setting aside sale. — The validity- of a sale cannot be questioned by a stranger. This can be done only by the mort- gagor or some one who claims under him.* The trustee or mortgagee in exercising the power of sale, must act with fairness and good faith.' He must sell for the best price possible, and if a purchaser knows that the mortgagee is sacrificing the prop- erty, he is not an innocent purchaser, and acquires no rights other than those of an assignee of the mortgage.* A secret arrangement entered into between the mortgagee and a purchaser is a good ground for setting the sale aside.' But the party who thus charges collusion between the purchaser and the person sell- ing under the power has the burden of proof of showing it.* And weighty reasons should be produced for setting the sale aside." A sale will be invalidated by the fact that the pur- chaser forms a combination with other bidders to secure the prop- erty at a price less than its value.* If a sale has been conducted in good faith and fairly in every respect, it cannot be vacated because the price paid is inadequate.* But the price for which the property is sold, may be so grossly inadequate as to lead to ' Koester v. Burke, 81 III. 436, 439, per Craig, J. See Graham v. Ander- son, 42 111. 514 ; Dawson v. Hayden, 67 111. 62. ' Wormell v. Nason, 83 N. C. 32. > Longvrith v. Butler, 8 111. (3 Oilm.) 32; Mlsworth v. Loekwood, 42 N. Y. 89 ; Jencks v. Alexander, 11 Paige, 619. See latteU v. Grady, 38 Ark. 684. * Bunkle v. Gaylord, 1 Nev. 123. * Thompson v. Heywood, 129 Mass. 409. • Bush V. Sherman, 80 HI. 160 ; Mann v. Surges, 70 111. 604. ' Carrothers v. Harris, 23 W. Va. 177. • Dover v. Kennerly, 44 Mo. 145. » Kline v. Vogel, 11 Mo. App. 211 ; Kennedy v. Dunn, 58 Cal. 839 ; Hood V. Adams, 128 Mass. 207. See Hubbard v, Jarrell, 23 Md. 66; Lalor v. McCarthy, 24 Minn. 417; StoflFel v. Schroeder, 62 Mo. 147; Meyer v. Jefifer- Bon Ins. Co. 6 Mo. App. 245 ; Shine v. Hill, 23 Iowa, 264 ; Dryden v. Stephens, 19 W. Va. 1 ; Parmly v. Walker, 102 111. 617. § 428 DEEDS UNDER POWEES OF SALE. 414 the inference of fraud,' A sale will be set aside when the owner is insane, and the mortgagee having full cognizance of the fact, buys the land for less than half what it is worth, and a pur- chaser from the mortgagee who possesses the same knowledge occupies no better position than the mortgagee.* A court of equity will not interfere with a sale, because the mortgagor through mistake or negligence failed to attend the sale, when the proper notices have been given, and no bad faith can be shown on the part of the mortgagee,' If the owner of the equity of redemption becomes bankrupt, the proceedings for sale must be by permission of the court of bankruptcy,* For the purpose of preventing competition, the assignee of a mortgage who acted as auctioneer, sold the property to his own brother, as soon as he saw the owner of the equity of redemption approaching the place where the sale was being conducted. The sale was held fraudu- lent and void,* If the statute requires an affidavit of sale to be > Horsey V, Hough, 38 Md, 130; King v. Bronson, 122 Mass. 122; Elein Glass, 53 Tex. 37; Iiandram v. Union Bank of Mo. 63 Mo. 48; Wing v. Hayford, 124 Mass. 249 ; Harnickell v. OmdorfT, 35 Md. 341 ; Equitable Trust Co. V. Fisher, 106 111. 189. This is the same rule that applies to a sale under a decree of foreclosure : Gould v. Libby, 24 How. Pr. 440 ; Strong t>. Catton, 1 Wis. 471 ; Littell v. Zuntz, 2 Ala, 256 ; Am, Ins, Co, v. Oakley, 9 Paige, 259; 38 Am. Dee. 561; KeUogg v. HoweU, 62 Barb. 280; Lefevrew. Laraway, 22 Barb. 167 ; Hill v. Hoover, 5 Wis. 354 ; 68 Am. Deo. 70 ; Boyd V. Hudson City Acad. Soc. 24 N. J. Bq. 349 ; Northrop v. Cooper, 23 Kan. 432 ; Allis V. Sabin, 17 Wis. 626 ; Tripp v. Cook, 26 Wend. 143 ; Whitbeok V. Bowe, 25 How. Pr. 403 ; Eleventh Ward Sav. Bank v. Hay, 55 How. Pr. 444 ; Thompson v. Mount, 1 Barb. Ch. 607 ; Warren v. Foreman, 19 Wis. 35 ; Benton v. Shreve, 4 Ind. 66 ; Henderson v. Lowry, 5 Yerg. 230 ; West v. Davis, 4 McLean, 241 ; Martin v. Swofford, 59 Miss. 328 ; Kneeland ». Smith, 13 Wis. 691 ; Mahone v. Williams, 39 Ala. 202, See on the question of acquiescence, Sloan v. Frahingham, 65 Ala. 693. 2 Enoking v. Simmons, 28 Wis, 272. King V. Bronson, 122 Mass. 122. ' Hatchings v. Muzzy Iron Works, 6 Ch. L. N. 27; In re Brinkman, 7 TSai. Bank. Reg. 421. The bankruptcy of a subsequent mortgagee does not, however, interfere with the execution of a power of sale in a prior mort- gage : Long V. Rogers, 6 Biss. 416. 6 Jackson v. Crafts, 18 Johns. 110. And see Loeber v. Eckes, 65 Md. 1 ; Banta v. MaxweU, 12 How. Pr. 479 ; Leet v. McMaster, 51 Barb. 236; Vail V. Jacobs, 62 Mo. 130 ; Walker v. Carleton, 97 Hill, 582 ; Bigler v. Waller, 14 Wall. 297 ; Mann v. Best, 62 Mo. 491 ; Hurd v. Case, 32 111. 45 ; Soule v, Ludlow, 6 Thomp. & C. 424 ; Murdook v. Bmpie, 19 How. Pr. 79 ; St. Joseph Manufacturing Co, v. Daggett, 84 III. 556 ; Fenner v. Tucker, 6 R. I. 551 ; Robinson v. Amateur Assoc. 98 111. 646 ; Sternberg v. Valentine, 6 Mo, App. 176, See Helm v. Yerger, 61 Miss, 44. 415 BEiaJS UNDER POWERS OF SALE. § 429 made and filed, neglect to do so does not invalidate the sale. Such a provision is merely directory.^ The mortgagor, or those claiming under him, may show the falsity of the facts stated in the affidavits, even when they are made presumptive evidence of such facts.^ And to entitle the affidavit to the effect of pre- sumptive evidence, it must be made within a reasonable time after the sale.* § 429. Agreements between mortgagor and mortgagee. — The iact that an agreement existed between the parties to a mort- gage, that a sale should not be made without giving the mort- gagor personal notice, does not affect the title of a bona fde purchaser in good faith under the power.* If the property is offered by the auctioneer as free from encumbrances, and the purchaser, on that understanding, offers an amount which is the full value of the property, and the property is in fact encumbered by prior mortgages which are not discharged before the tender of the deed, the purchaser has sufficient reason for refusing to take the deed and complete his purchase.* An agreement between the parties to defer a sale in consideration of the pay- ment of the interest due, does not affect the title of a 60710 fde purchaser." An invalid sale cannot operate as an assignment of the mortgage, when the sale is made by a person who possesses no authority to act for the mortgagee." If a bona fide purchaser ' Field V. Gooding, 106 Mass. 310 ; Menard v. Crowe, 20 Minn. 448 ; Iieamed v. Foster, 117 Mass. 365 ; Barns v. Thayer, 115 Mass. 89 ; Tnthlll V. Tracy, 31 N. T. 157; Frink v. Thompson, 4 Lans. 489; Wilkerson v. Allen, 67 Mo. 502 ; Howard v. Hatch, 29 Barb. 297. See Bunoe v. Beed, 16 Barb. 347 ; Mowry v. Sanborn, 72 N. Y. 534. In Smith v. Provin, 4 AUen, 516, it was held that a sale would be considered void where it was provided in a mortgage that an affidavit of the proceedings under the power should be recorded in a certain county within one year, and the affidavit was not made and filed within such specified period. » Mowry v. Sanborn, 68 N. T. 153 ; 72 N. Y. 534 ; Amot v. MoClure, 4 Denio, 41 ; Sherman v. Willett, 42 N. Y. 146. See Dwight v. Phillips, 48 Barb. 116; Bume v. Beed, 16 Barb. 347; Alden v. Wilkins, 117 Mass. 216; Childs V. Dolan, 6 Allen, 319. 9 Mundy v. Monroe, 1 Mich. 68. < Kandall v. Hazleton, 12 Allen, 412. 5 Mayer v. Adrian, 77 N. C. 83. • Beatie v. Butler, 21 Mo. 313. See Montague v. Dawes, 12 AUe%397. But see Redmond v. Packeuham, 66 111. 434. ' Hayes v. Leinlokken, 48 Wis. 509. § 429 DEEDS UNDEB POWERS OF SALE. 416 buys the whole of the mortgaged property without notice that a part of it has been released from the operation of the mortgage, and the release is not recorded, the release does not affect his title, and he will hold the entire property.* If the purchaser at the sale under the power neglects to record his deed, a person who subsequently takes a deed from the mortgagor acquires no equity of redemption. By the registration of the mortgage, all persons are put upon inquiry as to the proceedings taken under the power.^ If an agreement is made between the purchaser and the mortgagor to allow the latter to redeem the estate, the foreclosure may be opened, or the court may enforce the specific performance of the agreement.' If during the time allowed by law for redemption, a mortgagee who has purchased the premises at his own sale stipulates with the mortgagor for an extension of the time of redemption, beyond that given by the statute, and takes money from the mortgagor in pursuance of this agreement, the sale becomes ineffectual. The mortgagee is not permitted subsequently to abide by the sale and to derive title under the sheriff's deed.* 1 Palmer v. Bates, 22 Minn. 532. If a purchaser at a sale regnlarly con- ducted declines to complete the purchase, he may he compelled to do so by a hill in equity for a specific performance. A suit may be had against him for damages : Sherwood v. Saxton, 63 Mo. 78 ; Gardner v. Armstrong, 31 Mo. 535 ; Dover v. Kennerly, 38 Mo. 469. A mortgagee or beneficiary will acquire no title by a sale under a mortgage or trust deed, securing a note tainted with usury, and for this reason declared by the statute to be void : Penny «.. Cook, 19 Iowa, 538 ; Hylaud ti. Stafford, 10 Barb. 558 ; Jackson v. Dominick, 14 Johns. 435. If a mortgagee purchases at his own sale, and the sale is void, he acquires no rights by such sale : Queen Oity Perpetual BuUdmg Assoc. ». Price, 53 Md. 397, See Wittowski v. Watkins, 84 K. C. 456. ' Parrar v. Payne, 73 lU. 82 ; Heaton v. Prather, 84 111. 330. And see Wood V. Augustine, 61 Mo. 46 ; Demarest v. Wynkoop, 3 Johns. Ch. 129.; 8 Am.. Deo. 487. » Lockwood V. Mitchell, 7 Ohio St. 387 ; Orme v, Wright, 3 Jar. 19. But see Emmons v. Hawn, 75 Ind. 356. ♦ Dodge Pearce v. Gardner, 10 Hare, 287; Smith v. Keimey, 33 Tex, 283; Cuff V. Hall, 1 Jur. N. S. 783 ; Shatter's Appeal, 4 Pa. St. 83. « Booraem v. Wells, 4 Green Ch. 87. ' Johnstone v. Baber, 8 Beav. 233. See Mills v, Dngmore, 30 Beav. 104 ; In re Brown, Law R. 10 Eq. 319. * McCarogher v. Whielcjon, 34 Beav. 107. If the purchase money can- not be ratably apportioned, or if the sale has not been advantageous to the cestui que trust, the purchaser will not be compelled to accept the title : Kede v. Oakes, 32 Beav. 555. The tenant for life and trustees for the remainderman may join in a conveyance and transfer a good title : Clark V, Seymour, 7 Sim. 67. 425 DEEDS BY TETTSTEES FOE SALE. §§ 440-441 § 440. How the sale may be made. — The trustees may make separate divisions of the property, and sell the lots at various times.^ They also have the power of combining several parcels into one where they form a single farm.^ But a trustee under a power of sale has no power to sell the timber separately from the land ; nor can he sell the land without the timber.' Where the trustees possess the power of selling at the written request and direction of another, specific performance will not be decreed of a sale made by them in the absence of such writing; and this is true even in the case of part performance.^ So if the power to sell and convey is subject to the approval of the cestui que trust, the legal title, without the approval of the cestui que trust, will not pass by the deed of the trustee to a purchaser.^ § 441. Pnvate sale or auction. — Where the power contams no express directions as to the manner in which the sale shall be conducted, the trustee has the option of determining whether a private sale or a public auction will best promote the inter&sts of the trust estate.' Where land was conveyed to the defendant in trust to sell it " at auction, or otherwise, in whole or in parcels, on giving three weeks' notice thereof," it was held that the direction as to the notice to be given had reference only to a sale 1 Gray v. Shaw, 14 Mo. 341 ; Carter v. Abshire, 48 Mo. 300 ; Ord v. Noel, 5 Madd. 438 ; Lessee of Stall v. Macalester, 9 Ohio, 19 ; Ex parte Lewis, 1 GiU & J. 69 ; Ewing v. Higby, 7 Ohio, 486 ; 28 Am. Deo. 633 ; Bloomer v. Waldron, 3 Hill, 372 ; Delaplaine v. Lawrence, 3 Comst. 301 ; Sumrall v. ehatiin, 48 Mo. 402 ; Miller v. Evans, 35 Mo. 45 ; Gillespie v. Smith, 29 111. 472. ' Kellogg V. Carrico, 47 Mo. 157. » Cholmeley v. Paxton, 3 Bing. 207. See as to separate sale of minerals, Buckley v. Howell, 29 Beav. 546 ; Cadwalader's Appeal, 64 Pa. St. 293. * Sykes v. Sheard, 33 Beav. 114; Adams v. Broke, 1 Younge & C. Ch. 627 ; Phillips v. Edwards, 33 Beav. 440 ; Blackwood v. Burrowes, 2 Con. & L. 459. 5 Sprague v. Edwards, 48 Cal. 239, and eases cited. " Davey v. Durant, 1 De Gex & J. 535 ; Ex parte Hurley, 1 D. & Ch. 631 ; Harper v. Hayes, 2 Giff. 210 ; Ex parte Dunman, 2 Bose, 66 ; Ex parte Ladbroke, 1 Mont. . De Boom, 48 Cal. 681. 5 Devinney v, Reynolds, 1 Watts & S. 332. 429 DEEDS BY TRUSTEES FOB SALE. § 446 Where the condition annexed to a power of sale is that it shall be exercised only when the income from the property is insufficient to support the testator's wife comfortably, a valid sale can be made only in that event.^ Where it is provided that the sale shall be made with the consent of the tenant for life, his consent is necessary to an effectual execution of the power.^ If the grantor or donor annex a condition to the trust for sale that his consent in writing shall first be obtained, a sale is inoperative without this consent, and the power is destroyed by the grantor's death.* Where the power is to sell after the death of a tenant for life, a sale cannot be made before.* As the limitation placed upon the power of sale, that it shall not be exercised until the death of the tenant for life, is made generally for the benefit of the latter, he may waive this provision in his favor by joining in the convey- ance.* But where this limitation is not imposed for the benefit ' Minot V. Prescott, 14 Mass. 495. See Harlan v. Brown, 2 Gill, 475 ; 41 Am. Deo. 436 ; Ormsby v. Tarascon, 3 Litt. 411 ; ChampUn v. Champlin, 3 Edw. Ch. 571 ; Greer v. MoBeth, 12 Rich. Eq. 254 ; Bunner v. Storm, 1 Sand. Ch. 357 ; Slooum v. Slooum, 4 Edw. Ch. 613 ; Cresson v. Ferree, 70 Pa. St. 446. And see, generally, Hill v. Den, 54 Cal. 6 ; Ord v. De la Guerra, 18 Cal. 67. ' Bateman v. Davis, 3 Madd. 98 ; Rickett's Trusts, 1 Johns. & H. 70. See Tyson v. Mioklo, 3 Gill, 376 ; Spraguo v. Edwards, 48 Cal. 239. ' Kissam v. Dierkes, 49 N. Y. 602. * Blacklow V. Laws, 2 Hare, 40 ; Davis v. Howoott, 1 Dev. & B. Ch. 460 ; Jackson v. Lignon, 3 Leigh, 161 ; Styer v. Freas, 15 Pa. St. 339. 5 Styer v. Freas, 15 Pa. St. 339 ; Gast v. Porter, 13 Pa. St. 533 : Truell v. •Tysson, 21 Beav. 439. See Welton v. Palmer, 39 Cal. 456. But see Davis V. Howeote, 1 Dev. Knaggs V. Mastin, 9 Kan. 532. * Ayres v. Probasco, 14 Kan, 175, 190. § 460 FTLLTSGt UP BLANKS. 444 saw it afterwards, and did not redeliver the deed after the description, and the other matter had been written in it.* So where the grantee fraudulently adds the name of the grantor's wife as a party signing the same for the purpose of releasing dower, the deed is not rendered invalid thereby.* § 460. Alteration of deeds. — It has always been a diflScult matter to say exactly what effect an alteration has upon the effect of a deed. The true rule seems to be that if the deed is altered after execution by a party claiming some benefit under it, or by his privity, its operation as an executed contract is not affected. Titles vested by it are not disturbed, but the party making the alteration is deprived of all future benefits that he might have derived from it, and cannot enforce any executory obligation contained in it.' Thus, if after the execution of a lease, the lessee fraudulently alters it in some material respect, his future rights under the lease, either to retain possession of the premises or to prevent the re-entry of the lessor, are lost.* The principle is that it is the instrument and not the estate which is rendered void, "When the title has passed by the delivery of the deed, it is immaterial what becomes of the deed afterwards, so far as the title itself is concerned. But if the deed is altered by the parly in a material respect, he loses all remedy on any covenants which it may contain.^ It requires, confessedly, a new deed to reconvey the title to the grantor. Its alteration or complete destruction, ' Furnas v. Durgin, 119 Mass. 501. ' KendaU v. KendaU, 12 Allen, 92. ' Bliss V. Molntyre, 18 Vt. 466; 46 Am. Deo. 165; Herrick v. Malin, 22 Wend. 388 ; People v. Muzzy, 1 Denio, 240 ; Barrett v, Thorndike, 1 Greenl. 1 ; Briggs v. Glenn, 7 Mo. 572 ; Waring v. Smith, 2 Barb. Ch. 133 ; 47 Am. Deo. 299 ; Hatch v. Hatch, 9 Ma.s8. 307 ; 6 Am. Deo. 67 ; Withers v. Atkins, 1 Watts, 237 ; Lewis v. Payn, 8 Cowen, 71 ; 18 Am. Dec. 427. And see also Hetfelfinger v. Shutz, 16 Serg. Hney v. Van Wie, 23 Wis. 613, 618. ' Kelly V. Dunlap, 8 Fa. 136. Ss^s HDtaton, J. : "Oar acts of assembly for recording deeds preseribe the mode in which a deed shall be acknowl- edged or proved, in order that it may be legally recorded; if not so TKjknowledged or proved, the recording is of no effect; if duly. acknowl- edged or proved, and recorded, 'the copy, certified under the seal of the proper office, which the recorder is required to afSx thereto, shall be A'eceived in all courts where produced, and are hereby declared and enacted to be as good evidence, and as valid and effectual in law, as the original deeds themselves,' etc. A deed beiitg generally necessary to show title to land, passes with it, and may be required, when the grantor and witnesses are dead; it is generally necessary to exhibit it in all suits respecting that land ; and these suits may be with different people and in different courts ; it was wise, tben, to provide a mode by. which the deed could be authenticated, so that it could be read in all suits, in all courts, against all people. Our act of assembly has done so, and as the act makes no difference whether the deed has been acknowledged or proved before or after a particular suit was instituted, so the courts have made none ; it is to be 'allowed and read in all courts where produced.'" And see Fisher «. Butcher, 19 Ohio, 406 ; 53 Am. Dec. 436. ' Pierce v. Brown, 24 Vt. 165. See also Harrington v. Oage, 6 Vt. 532. * Johnson v. McGehee, 1 Ala. 186. 459 ACKNOWIiEDGMENT OP DEEDS. § 469 or that their acknowledgments should be certified by a single certificate.^ When there is a defective acknowledgment and certificate of a wife's signature and assent to the conveyance of a homestead, it is held that she may make a new acknowledg- ment with intent to cure the defect; and where the acknowledg- ment is properly made and certified, it will, in the absence of intervening rights of third persons, relate back to the time at wliich the deed was originally delivered, and no new delivery is required.^ And as the true date of a deed may always be shown, 1 Ludlow V. O'Neil, 29 Ohio St. 181. Speaking of the statute, Welch,C. J., in delivering the opinion ol the court, observes: "It nowhere requires that the acknowledgment of a deed by husband and wife shall be made in the presence of each other, or be made at the same time or place. The first section requires all grantors, other than married women, to acknowlr edge the 'signing and sealing' of the deed. The second section, as we understand it, simply requires that the wife, 'in addition thereto' — that is, in addition to what is required of other grantors — shall 'declare' on separate examination, and the contents of the deed being made known to her, that she voluntarily signed, sealed, and acknowledged it, and that she is still content therewith. It no more requires a simultaneous acknowl- edgment by husband and wife than by any two or more grantors. The provision requiring her separate examination is express and explicit- Had it been the legislative intent that the husband should be present at the time of her acknowledgment, it is but reasonable to suppose that there would have been a provision equally express and explicit to that effect. Nothing but a far-fetched iniplication can engraft any such meaning upon the statute, and there is no reason or necessity for it to rest upon. The husband can render the wife every needed protection by himself refusing to sign and acknowledge the deed. If she acknowledges it before the hus- band, it is presented to him with the wife's signature and acknowledg- ment, and he has only to refuse to acknowledge. If he acknowledges it ■first, he acknowledges it as a deed, to be executed by them both. Of course, the deed is not binding on her till executed by both, and, of course, the certificate must show, both that she acknowledged the ' sign- ing and sealing,' and al^, that she was separately examined and made the declaration required by the statute. ' Gahall V. Gitiiiens' Mutual Building Association, 61 Ala. 232. The court, after speaking of other conveyances, says : " The same rule should be applied to the homesteads. Neither the Constitution nor the statutes appoint any particular time within wjtiich the wife shall give her assent and signature to the conveyance of the husband, nor does the statute appoint any particular time in which her privy examination and acknowl- edgment shall be taken and certified. The delivery of the conveyance by the husband may precede or may be subsequent or cotemporaneous with the signature and assent of the wife, and her examination and acknowledg- ment. If it precedes, it is necessarily in its nature, whether so expressed or not, conditional, dependent for its effect and operation on the subsequent signature and assent of the wife, the privy examination, acknowledgment, § 470 ACKNOWLEDGMENT OF DEEDS, 460 the fact that the acknowledgment bears date before the deed itself is not a substantial objection to the deed.* § 470. Qualification of oflcers. — The statutes of the various States designate certain persons by whom acknowledgments may be taken. It is not intended to give these statutes in detail, as it would subserve no useful purpose. But it may be worth the while to refer to a few decisions in which statutes of this kind have been construed. In Illinois, a statute provided that acknowledgments might be made before certain officers, among them a " mayor of a city or notary public." It was held that an acknowledgment before a mayor of a town, no such officer being named in the statute, was insufficient.^ In Massachusetts, the statute then in force required a deed to be "acknowledged by the grantor before a justice of the peace in this State, or before a justice of the peace or magistrate of some other of the United States, or in any other State or kingdom wherein the grantor or vendor may reside at the time of making and executing the deed." An American consul at a foreign port was held to be a magistrate, within the meaning of the statute, and authorized as such to take acknowledgments.' In Vermont, under a provision of the Con- and certificate by the proper officer. When these are obtained, the deliv- ery becomes absolute, the conveyance is perfect, and has relation, the rights of third persons not having intervened, to the delivery by the hus- band: Johnson v. McGehee, 1 Ala. 186; Nelson v. HoUy, 50 Ala. 3; Hendon v. White, 52 Ala. 97." 1 Gest V. PlocJ£, 2 N. J. Eq. (1 Green) 108. > Dundy v. Chambers, 23 111. 369. See also Chotean v. Jones, 11 111. 300 ; 60 Am. Deo. 460. » Soanlan v. Wright, 13 Pick. 523 ; 25 Am. Deo. 344. Chief Justice Shaw delivered the opinion of the court, and remarked : " It is difficult to fix any definite meaning to the word ' magistrate,' a generic term importing a pub- lic oflicer, exercising a public authority ; it was intended, we think, to use a term sufS.oiently broad to indicate a class of of&cers, exercising an author- ity similar to that of justices of the peace in our own State, or as nearly so as the difference in the forms of their governments and Institutions would permit. It was to provide for the execution and acknowledgments of deeds in all foreign countries. It may be remarked as a circumstance of some consideration that the acknowledgment is to be before some justice of the peace or magistrate in any other State or kingdom, not of any other State. There is nothing to indicate what kind of magistrate was intended, except the nature of the act to be done, and the connection in which the term is used. The act is a ministerial one ; it is to be before a justice of peace or magistrate. The maxim nosdtur a sociis applies. It must, then, 461 ACKNOWLEDGMENT OF DEEDS. § 471 stitution making every judge of the Supreme Court ex offida justice of the peace, throughout the State, it was held that he might take an acknowledgment under a statute conferring this authority upon justices of the peace, and it was not necessary for him in signing the certificate to call himself a justice of the peace.^ In California, the general designation of any notary public, or any consul of the United States, was held to embrace notaries and consuls of every grade, whether their office was known as principal or inferior notary, or consul-general or vice-consul.* § 471. Acknowledgment before an officer de facto. — An acknowledgment taken before an officer de facto is valid and be a ministerial officer, exercising like powers witli those of a justice of peace in this commonwealth when acting in his ministerial capacity. Such an officer, we think, is a consul in a foreign country, at least in respect to the persons and interests of the country from which he is sent. An American consul in France derives his authority, in eflfect, from both governments; he has his commission from the United States, but his exequatur from France; and it is, in truth, in virtue of the authority vested in him by the latter, that he exercises any official authority within the territorial limits of the latter : The Belle Corrunes, 6 Wheat. 156, n. ; 1 Chitty's Common Law, 48. This view is somewhat confirmed by the statute law of the United States (Act of Congress, 1792, ch. 24, § 2), which provides that consuls shall have right, in the pests or places to which they are appointed, of receiving the protests and declarations which masters, etc., who are citizens of the United States, may choose to make there, and also such as any foreigner may choose to make before them relative to the personal interest of any citizen of the United States. The same stat- ute, section 9, provides that the specific enumeration of powers therein expressed shall not be deemed to exclude such others as result from the nature of the office. An officer authorized by the concurrence of both governments to exercise such powers in France is, we think, a magistrate competent to take in France, and authenticate by his official act the dec- laration of the grantor of a deed, that he has executed the same freely as his act and deed, and that such acknowledgment so authenticated is sufficient to warrant the register of deeds in this commonwealth to record it." See also Palmer v. Stevens, 11 Cush. 152 ; Learned v. Blley, 14 Allen, 113. In the latter case it was held that a justice of the peace might take an acknowledgment out of his county. 1 Middlebury College v. Cheney, 1 Vt. 336, 350. > Mott V. Smith, 16 Cal. 533. But see McMinn v. O'Connor, 27 Cal. 238 ; Ingoldsby v, Juan, 12 Cal. 564 ; Hopkins v. Delaney, 8 Cal. 85 ; Muller v. Boggs, 25 Cal. 175 ; Lord v. Sherman, 2 Cal. 498 ; Emmal v. Webb, 36 Cal. 197 ; Kimball v. Semple, 25 Cal. 440 ; Colton v. Seavey, 22 Cal. 496. And for the construction of other special statutes as to the power of certain offi- cers to take acknowledgments, see Shanks v. Lancaster, 5 Gratt, 110 ; 50 Am. Dec. 108 ; James v. Fisk, 9 Smedes & M. 144 ; 47 Am. Dec. 111. § 471 ACKNOWLEDGMENT OP DEEDS. 462 cannot be attacked. Thus, where an acknowledgment was taken before a magistrate whose commission had expired before the acknowledgment was made, it was held that it was sufficient. *' Though at the expiration of his commission, an officer may be disqualified from acting officially, yet it may not be so plain and obvious as to deprive him of an apparent right to exercise the office. Others are not required to ascertain at their peril, whether he is legally qualified, before yielding to his authority, or call- ing upon him to perform official acts, proper and necessary to be done. They are not obliged to demand or test his authority, or to ascertain the date or duration of his commission ; nor is there a necessity upon him, ordinarily, to proclaim or exhibit the tenure or character of his official authority His office and authority may be valid as to others, though invalid as to himself. These doctrines are held to be founded in public policy and con- venience, and necessary to the maintenance of the supremacy and execution of the laws, and for the protection and security of indi- vidual rights. Hence the law favors the official acts of those in reputed authority, and the rights of those claiming title or interest through these proceedings."* The rule is that when a person • Brown v. Lunt, 37 Me. 423, 431, 438. The court entered into an exten- sive discussion concerning the acts of officers de facto, and after stating that the officer was not one dejure, said : " ' An ofScer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law ' (Parker v. Kett, 1 Raym. Ld. 658 ; The King V. The Corporation of Bedford Level, 6 East, 368); or one who actually per- forms the duties of an office with apparent right, and under claim and color of an appointment or election. He is not an officer dejure, because not in all respects qualified and authorized to exercise the office ; nor an usurper who presumes to act officially without any just pretense or color of right. A mere claim to be a public officer, and exercising the office, will not con- stitute one an officer de facto; there must be, at least, a fair color of right; or an acquiescence by the public in his official acts, so long that he maybe presumed to act as an officer by right of appointment or election : The King V. Lisle, 2 Strange, 1090 ; Wilcox v. Smith, 5 Wend. 231 ; 21 Am. Dec. 213 ; Plymouth v. Painter, 17 Conn. 588 ; 44 Am. Dec. 574 ; Baird v. The Bank of Washington, 11 Serg. & B. 411. The distinotion between officers de facto, acting colore officii, and officers de jwre, has been recognized in England from an early period, and seems to have been applied to officers of every grade, from the king to the lowest incumbent of office. In statute of Edw. rv., ch. 1, Henry IV., V., and VI., were styled 'late kings of Eng- land successively in dede and not of ryghW And in charters granted by King Edw. IV., he describes the line of Lancaster as nuper de facto, et noii de Jwre, repea Anglice. Henry VI. was regarded as king de facto, although 463 AOKNOWIiEDGMENT OP DEEDS. § 471 assumes to act in an official position, and he has a color of title to the office he claims to hold, his acts, when they are questioned he had been declared an usurper by act of Parliament ; and treasons against him were punishable as capital offenses, during the reign of his successor: 1 Blackst. Com. 204, 371 ; 1 Hale P. C. 60, 61 ; Foster, 397, 398. The same distinction has been made in the courts of England, in respect to the office of an abbott (L'Abbe De Fontein's Year Book, 9 Heni^ VI., S3) ; of a bishdpandof a steward of a manor (Harris «. Jays, Cro. Ellz. 699 ; Parker v. Kett, 1 Raym. Ld. 660) ; of a mayor (Knight v. The Corporation of Wells, Lntw. 580; The King v. Lisle, 2 Strange, 1090); of a deputy col- lector of customs (Leach v. Howell, Cro. Eliz. 533); oif a registrar of a corpor- ation (The King ti. The Corporation of Bedford Level, 6 East, 368); and of a justice of the peace who had not taken the oath of office before assuming its duties (Proprietorsof Pierv.Haunam, 3 Barn. &Adol. 266); and his acts were held valid, although he had not complied with the requirements of the statute (Geo. II. ch. 20) in taking the oath of qualification ; on the ground that the interest of the public at large required that the act^done should be sustained, Abbott, C. J., remarking that many persons acting as justices of the peace in virtue of offices in corporations, have been ousted of their offices from some defect in their election or appointment ; and although all acts properly corporate and official, done by such persons, are void, yet acts done by them as justices, or in a judicial character, have in no instance been thought invalid. This distinction is well known. The same distinction is equally well known in this country, and has been applied in numerous cases, and to a great variety of offices, where persons have claimed to act colore officii, though not qualified according to the requirements of law, and where their acts as officers rfe facto have been upheld. It is familiar doctrine in the courts of onr own State, and i9 sustained by the cases following : Fowler v. Beebe, 9 Mass. 231 ; 6 Am. Dec. 62 ; ]!7ason v. Dillingham, 15 Mass. 170 ; Bucknam v. Buggies, 15 Mass, 180; 8 Am. Deo. 98; Commonw. «. Kirby, 2 Cush. 577 ; Plymouth d. Painter, 17 Conn. 585, where it was held that a grand juror, though legally dis- qualified by a refusal to take the requisite oath, might be regarded as an officer de facto; Smith v. State, 19 Conn. 493; The People v. Colling, 7 Johns.549; Mclnstry d. Tanner, 9 Johns. 135; Trustees of Vermont Society V. Hills, 6 Cowen, 23 ; 16 Am. Dec. 429 ; Wilcox v. Smith, 5 Wend. 231 ; 21 Am. Dec. 213 ; The People v. Bartlett et als. 6 Wend. 422, in which case it was held that the trustees of a village holding over beyond the term fot which they were elected by their own neglect, were liable to be ousted on quo warranto; but that they were officers de faelo: that their acts for certain purposes were valid, and that their title to the office could not be inquired into collaterally ; The People v. White, 24 Wend. 527 ; The People V. Covert, 1 Hill, 674 ; The People v. Stevens, 5 Hill, 616, 630, 631 ; The People V. Hopson, 1 Denio, 574 ; Greenleaf v. Low, 4 Denio, 168 ; McGregor V. Balch, 14 Vt. 428; Moore v. Graves, 3 N. H. 408; Tucker v. Aiken, 7 N. H. 113, where the rule was held to be applicable to town officers ; Cocke V. Halsey, 16 Peters, 81 ; Allen v. McKeen, 1 Sum. 312 In this case, as it appears by the report, the magistrate whose official character and authority is in question, had been an acting justice of the peace, ' con- stantly and frequently,' for forty years succesBiyely under commisBion, § 471 ACKNOWLEDGMENT OP DEEDS. 464 in a proceeding to which he is not a party, are effectual. He may be liable to punishment for his assumption of official power, yet third persons cannot be affected by his want of power when there exists a color of title to the office. A duly appointed, commissioned, and qualified justice of the peace for a certain county had acted in that capacity for a number of years, but subsequently, during the term for which he had been appointed, removed to another State. He, however, had an office and continued in business in the county for which he was originally appointed, and continued to act as a justice of the peace for that county, and as one of such acts took an acknowledgment of a deed. It was held that he was an officer de faeto, and that as to third persons having an interest in his and qualified as we must understand ; and was well known as such officer to the parties to the deed, and consequently, from the nature of his official acts and duties, was well known to the public. He was not an intruder, and did not usurp the office ; but was in by appointment, and acting with color of title, though holding over the time, limited by his commission, and without legal authority. He had been admitted to the legal posses- sion and enjoyment of the office by taking the requisite oath of qualifica- tion, as seems to be conceded : 1 Strange, 638 ; Bex. v. Ellis, 9 East, 252, n. The acts in question were within the jurisdiction of a justice of the peace, and among the ordinary duties ot such officers. It does not appear that his official character had ever been questioned. And while it must be admitted that there may be cases in which it might be difficult to deter- mine whether a person exercised a particular office by color of right, or as a mere usurper, yet this in our opinion is not one of that character. Here the evidence justifies and requires the conclusion that the magistrate appeared to have had a right and colorable title to the office which he assumed to exercise when he took the acknowledgment, and made upon the deed the certificate in question. He being in reputed authority as a magis- trate of long standing, third persons requiring his official services were not bound to ascertain whether or not he had a commission in force ; nor are they chargeable with notice of the date or termination of his commission. It is not reasonable to suppose that he would put the parties or the public on the inquiry into bis official authority, so long as he was exercising the office, 'believing that he was a justice of the peace,' as he testified. The case shows that neither the magistrate, nor the parties to the deed, nor the public, by fair presumption, knew or supposed that his commission had expired. He had been duly accredited by the government, and was assuming to act in his official capacity, as of right, and with at least a colorable right ; and the public and third persons might well regard him as continuing in authority, until it became apparent that his official char- acter was lost or changed. He must be regarded, therefore, as a justice of the peace, de facto, when he took and certified the acknowledgment of the deed to Mrs. Lunt." 465 ACKNOWLEDGMENT OF DEEDS. § 472 acts, they were valid and could not in a collateral action be inquired into.^ § 472. Contmaed. — An acknowledgment before a person who describes himself in his certificate as a clerk pro tempore of a court is sufficient, if the person taking the acknowledgment is clerk de fado. The temporary character of his appointment does not affect the question.^ In a case in Missouri, a deed offered in evidence was objected to, because the notary who took the acknowledgment, though acting as such, had not been duly commissioned. The lower court gave this declaration of law : "The court declares the law to be, that the conveyance from Samuel D. Pitcher and wife, being acknowledged before acfe Jado officer, was good and sufficient, although there may have been a defect in his commission." The Supreme Court said that in this, "the court was clearly right. Whether the notary was commissioned or not, could not be inquired into, in a col- > Frescott v. Hayes, 42 N. H. 56. Sargent, J., said : "Snch am officer may act under those who hare a legal right to appoint, but by an. irregular or informal appointment ; or he may have a regular and sufficient appoint- ment, but may not have been duly qualified to perform his duties under it; or he may have removed, as in this case, and became, perhaps,. dis- qualified to act, if his authority was being inquired into by the State,.who.' gave him his commission, in a proceeding directly against him ; yet so long as he has not been removed, nor his authority revoked, and when he is doing business in the county, and acting as magistrate, claiming author- ity under his commission, which is stUl in life, this must be construed to give him some color of title ; and when such an officer acts under color of title, his acts, when not expressly declared void by statute, though the per- formance of them may be punishable by a penalty, are in all cases, when coming in question incidentally, and as to third persons held to be valid : Jones V. Gibson, 1 N. H. 266 ; Johnston v. Wilson, 2 N. H. 205 ; 9 Am. Dec. 50 ; Londonderry I). Chester, 2 N. H. 268 ; 9 Am. Dec. 61 ; Moore v. Graves, 3 N. H. 408 ; Morse v. CaUey, 5 N. H. 222 ; Home v. Whittiar, 6 N. H. 93 ; Tucker v. Aiken, 7 N. H. 113 ; State v. "Wilson, 7 N. H. 545 ; Cavis v. Robert, son, 9 5f. H. 528; Merrill v. Palmer, 13 N. H. 184; Portsmouth's Petition- 19 N. H. 115 ; Bean v. Thompson, 19 N. H. 290 ; 49 Am. Dec. 1-54 ; Baker v. Shepard, 24 N. H. 212 ; Fowler v. Beebe, 9 Mass. 231 ; Commonw. v. Fowler, 10 Mass. 290 ; Nason v. Dillingham, 15 Mass. 170 ; Bucknam v. Ruggles, 15 Mass. 180 ; 8 Am. Dec. 98 ; Doty v. Gorham, 5 Pick. 487 ; 16 Am. Dec. 417 ; Potter V. Luther, 3 Johns. 481 ; People v. Collins, 7 Johns. 549 ; Mclnstry V. Tanner, 9 Johns. 135 ; Reed v. Gillett, 12 Johns. 296 ; Wilcox v. Smith, 5 Wend. 231 ; 21 Am. Dec. 213 ; Doe v. Brown, 5 Bai-n. &, Aid. 243 ; Leonard V. Soadding, Ad. & B. N. S. 706." 2 Woodruff «. McHarry, 56 HI. 218. I. Deeds.— 30. § 473 ACKNOWLEDGMENT OP DEEDS. 466 lateral proceeding. His official acts as a notary were good, not- withstanding he might have usurped the office." ^ And where commissioners were empowered to convey public land of a State, it was held that after their authority had been revoked, they might acknowledge a deed executed by them.* Nor is the acknowledgment impaired by the fact that it was made by a commissioner appointed by the governor, and his term of office had expired at the time the acknowledgment was taken.* A person, however, who has formerly filled the office of a justice of peace in a county, but has ceased to fill that office in the county, though filling that office in another county, does not possess authority to sign his name to a blank or defective cer- tificate of acknowledgment, so as to cause the certificate to oper- ate by relation as of the day inserted in it as its date.* § 473. Acknowledgment before deptrty. — It is a general rule that when an officer having power to take an acknowledgment is authorized to appoint a deputy, the deputy also has power to take and certify an acknowledgment.^ This question has been quite fully discussed in California. In one case an acknowledg- ment was taken before a deputy recorder, and certified in the name and as the act of his principal. The recorder was authorized by law to appoint a deputy, but nothing was said about the latter's duties, except in a section which provided that "in case of a vacancy in the office of recorder, or his absence or inability to perform the. duties of his office, the deputy shall perform the duties of recorder during the continuance of such vacancy, absence, or inability." It was claimed that the deputy had no power other than that conferred by this section, and that a vacancy in the office, or the absence or inability of the recorder, ' Hamilton v. Pitcher, 53 Mo. 334, 335. ' New Hampshire Land Co. v. Tilton, 19 Fed, Rep. 73. s Thorn v. Frazer, 60 Tex. 259. ' Carlisle v. Carlisle, 78 Ala. 542. 5 Touchard v. Crow, 20 Cal. 150; Mulleri). Boggs, 25 Cal. 175, 186; Bab- bitt V. Johnson, 15 Kan. 252 ; Beaumont v. Yeatman, 8 Humph. 542; Kemp V. Porter, 7 Ala. 138 ; Hope v. Sawyer, 14 111. 254 ; Moore v. Furrow, 3 Marsh. A. K. 41 ; Gibbons v. Gentry, 20 Mo. 468 ; Rose v. Newmann, 26 Tex. 131 ; 80 Am. Deo. 646 ; Cook v. Knott, 28 Tex. 85 ; Abrams ». Ervin, 9 Iowa, 87 J Gordon v. Leech, 81 Ky. 229 ; Drye v. Cook, 14 Bush, 459 ; Lynch V. Livingston, 8 Barb. 463. 467 ACKNOWLEDGMENT OF DEEDS. § 473 was a condition precedent to the exercise of any power on the part of the deputy. But the court said : " We do not so read the statute. In our judgment the legislature do not intend to define what shall be the duties of the deputy, except in the con- tingencies named in the ninth section, leaving the measure of his power under other circumstances to the common law. The ninth section should be read as an enlargement of his powers, and not as a restriction upon them. To guard against the inconvenience which might result -to the public in case of a vacancy in the office of recorder, or his absence or inability, was the design of the ninth section, and to that end it makes the Jeputy, in the contingencies named, recorder de facto. Under the construction contended for, the recorder would be unable to avail himself of the services of a deputy, except as provided in the ninth section, which might not unfr^uently result in great detriment to the interests of the public, from mere inability on his part to perform the amount of labor necessitated by the business of the office. If a vacancy in the office, or the absence or inability of the recorder, are conditions precedent to the exercise of power by the deputy, such conditions would have to be recited in every official act of the deputy in order to impart to it any validity. In the absence of language to that effect, so clear and explicit as not to admit of doubt, we cannot intend that the legislature designed consequences so unusual and absurd. The power to appoint a deputy is expressly conferred upon the recorder, and the duties of the deputy not being prescribed, as we hold, except in the contingencies named in the ninth section, it follows that his official power is to be ascertained by a resort to the common law. At common law, there can be no question but that the deputy, where the power to appoint one exists, has full power to do any and all acts which his principal may per- form by virtue of his office." ' In Iowa, on the ground that a clerk is a ipinisterial officer, it is held that an acknowledgment may be taken by his deputy. " Where the duties of a public officer are of a ministerial character, they may be discharged by deputy. Duties of a judicial character cannot be so discharged. The clerk is a ministerial officer. When the law gives him > Mnller v. Boggs, 25 Cal. 175, 185. See also Touchard v. Crow, 20 CaL, 150 ; Emmal v. Webb, 36 Cal. 203. § 474; ACKNOWLEDGMENT OP DEEDS. 468 power to appoint a deputy, such deputy, when created, may do any act that the principal might do. He cannot have less power than his principal. He has the right to subscribe the name of hia principal ; and the act of the deputy, in the name of the principal, within the scope of his authority, is the act of his principal."* § 474. Deputy taking acknowMgineiit in his own name. — Some contrariety of opinion exists as to the proper manner in which the deputy should certify the acknowledgment. In Ken- tucky, the proper practice is to have the certificate in the usual form, reading precisely as if the clerk in proper person had taken and certified the acknowledgment.* On the other hand, it ' Abrams v. Ervin, 9 Iowa, 87, 90, per Stockton, J. In Texas, in the ease of Miller v. Thatcher, 9 Tex. 482, a dictum is found that a deputy has no power to take an acknowledgment. But this is corrected in the later cases of Rose v. Hewman'n, 26 Tex. 131, and Cook v. Knott, 28 Tex. 85, in the latter of which it is said : " The appellant's counsel states that it was contended below that the deed was not duly registered, from the fact that it had been authenticated for record, and recorded by the deputy clerk of the County Court. In the case of Miller v. Thatcher, 9 Tex. 482, this lan- guage is used : ' The deed does not appear to have been authenticated by any person known to the -law, authorized to make such authentication. It was made by the deputy clerk of the Probate Court.' Nothing in tliat cause demanded the decision of the question as stated in the opinion. In the case of Rose v. Newmann, at Austin, 1862, 26 Tex. 131, the contrary doc- trine has been announced, and it was, that the deputy clerk of the County Court did have all the power and authority of the clerk himself to take proof of the execution of instruments, authenticate and record them. We find the following in the opinion delivered in the case of Rose v. Newmann : ' The business of a deputy is to perform the duties of his principal ; taking proof of instruments for record in his county being one of the duties of the clerk of the County CoTirt, his deputy had authority to perform it.' In this opinion we fully concur." See McRaven v. MoGuire, 9 Smedes & M. (17 Miss.) 84, where this same view is held, but where Chief Justice Sharkey files a dissenting opinion. ' Talbott's Devisees v. Hooser, 12 Bush, 408. Judge Cotfer, delivering the opinion of the court, said : " Whatever ofilcial act is done by a deputy should be done in. the name of the principal, and not in the name of the deputy. The authority given by law to a ministerial of&cer is given to the incumbent of the oflBce. Authority is not given to the deputy, but to the principal, and is exercised by the principal, either by himself or his deputy, so that whether the deed was acknowledged before B. M. Harrison in proper person, or before R. E. Harrison, it was, in contemplation of law, acknowledged before the former in his oflBcial capacity ; and it was not only lawful, but entirely proper that the body of the certificate should read precisely as if the clerk in proper person had taken and certified the acknowledgment, the only irregularity being that the deputy omitted, aiter signing his principal's name, to add ' by R. E. Harrison, D. C" 469 ACKNOWLEDGMENT OF DEEDS. § 475 is stated that the certificate should be made by the deputy in his own name, without naming the principal.* A certificate which stated that " befiDre me, the undersigned, county clerk of Sonoma County, personally appeared," etc., and was signed "John A. Brewster, Deputy County Clerk of Sonoma County," the princi- pal's name not appearing, was held valid.* While the signature by the deputy alone does not afiect or invalidate the acknowl- edgment, yet as was said in a case where a deputy was held authorized to take the acknowledgment in his own name, "it is certainly more regular in point of form, that the disputy should perform all official acts in the name of his principal." ' The better practice, undoubtedly, in our opinion is for the deputy to sign the name of the principal, by himself as deputy. § 475. Prestunption as to appointment of deputy. — In Illi- nois, an acknowledgment made out of the State which was signed ' Beaumont v. Yeatman, 8 Humph. 542. Turley, J., delivering the opinion of the court, said : "Now, how this acknowledgment of the exe- cution of the mortgage made before the deputy clerk, could have been taken in the name of the principal clerk, It seems very diflScult to con- ceive. How would the entry of the acknowledgment be Indorsed ? ' This day personally appeared before A B, the principal clerk of the County Court of Montgomery, by his deputy, C D.' This is not so, for an appear- ance before the deputy is not an appearance before the principal, and can- not possibly be. Well, let us see again. ' This day personally appeared before A B, the deputy, and acknowledged to C D, the principal.' This will not do, for an acknowledgment to A B is not, and cannot be, an acknowledgment to C. D ; it not being a case where the acknowledgment inures upon the relation of principal and agent, there being nothing acknowledged for the benefit of the principal. Well, again: 'This day personally appeared before A B, the principal clerk, C D, and acknowl- edged. Test, E F, deputy.' This is not true ; the appearance was not for A B, the principal, but E F, deputy ; and if it had been before the princi- pal, the principal must have certified. Then it seems to us that an acknowledgment of a deed can only be taken in the name of the person before whom the acknowledgment is made, and that there is no sense in talking about taking it in the name of a person before whom it is not made. It is true the signature to the certificate might be A B, principal clerk, by his deputy C. D ; but cui bono* The signature by the principal binds the principal to nothing ; it is not like a contract where the agent must bind the principal by his signature, or there is no obligation on his part ; the act is merely ministerial on the part of the deputy, and is good by law, independent of the statute, which makes no new rule except it be (as is contended) by implication." » Touchard v. Crow, 20 Cal. 150. » McCraven v. McGuire, 23 Miss. 100. See also Cook v. Knott, 28 Tex. 85. § 476 ^CKNOTTLEDGMENT OP DEEDS. 470 "Archibald Gamble, Clerk, by E. Baker, Deputy Clerk," and authenticated by the seal of a court of record, was held to be prima fcusie sufficient.^ The presumption in such a case is that by the laws of the State in which the acknowledgment is taken, the appointment of a deputy clerk is permitted, and that the seal was affixed by the proper officer. And it would be further presumed that the person who signed the certificate in the relation of a deputy was regularly appointed as such.^ § 476. Officer cannot tak& acknowledgment of deed in wMch lie is Interested. — Aside from the question as to whether an officer in taking an acknowledgment acts in a judicial or in a ministerial capacity, it is settled that he cannot take-the acknowl- edgment of a deed to which he is a paHy or in which he 'is directly interested.' " We should have no hesitation in holding that a person could not take the acknowledgment of a deed made to himself. Such a point is too plain for doubt."* A 1 Hope V. Sawyer, 14 lU. 254. ' Hope V. Sawyer, 14 lU. 254. Says- Treat, C. J.: "The acknowledg- ment purports to have been taken by the clerk ; and it is certified in his name, and under the seal of the court. Prima fade, this is sufficient. The seal ol the court proves itself, and we must presume that It was affixed by the proper officer. The presumption is that the clerk was authorized by the laws of Missouri to act through a deputy, and that Baker was regularly appointed as such. The deputy had the power to use the name of the clerk, and attach the seal of the court. The act of an agent within the scope of his authority, and iu the name of his principal, is as binding on the principal and third persons, as if performed by the principal personally. It is the act of the principal, and not of the agent. The certificate in ques- tion was none the less the act of the clerk, because made by his authorized deputy." » Hogans v. Carruth, 18 Fla» 587 ; Wilson v. Traer, 20 Iowa, 231 ; Bea- man V. Whitney, 20 Me. 420 ; G-roesbeck v. Seeley, 13 Mich. 829 ; Tavenner V. Barrett, 21 W. Va. fi56 ; Brown v. Moore, 38 Tex. 645 ; Wasson v. Conner, 54 Miss. 352 ; Withers v. Baird, 7 Watts, 227 ; 32 Am. Dec. 754 ; Stevens v. Hampton, 46 Mo. 404 ; Green v. Abraham, 43 Ark. 420 ; West v. Krebaum, 88 111. 263 ; Hammer v. Dole, 61 111. 307. * CampbeU, J., in delivering the opinion of the court, in Groesbeck v. Seeley, 13 Mich. 329, 345. The learned editor of the American Decisions says, in a note to Withers v. Baird, 32 Am. Dec. 757: "An acknowledg- ment is an authentication of an instrument that enables it to be used for purposes of evidence in a manner different from what it could have been previously. The duties of an officer taking an acknowledgment seem to be at the same time judicial and ministerial. Judicial in that the officer has to determine upon the identity of parties, eta, and ministerial in that be has to give a certificate of the facts found. Begarding his duties a» 471 ACKNOWLEDaMENT OP DEEDSi § 477 person is not, because he owns an interest in a parcel of land, so far inter^ted in the whole tract as to preclude him from taking, in his official character, the acknowledgment of a deed, by which another and distinct interest in the same land is conveyed to a third party. Nor would the fact that there was an agreement or understanding between the grantee in the deed and the per- son who took the acknowledgment be of itself sufficient to invalidate the deed. It might possibly be a circumstance tend- ing to show fraud or a predetermined combination to impose upon the grantors.* It is no objection to a sheriff's deed that it was acknowledged in a court over which one of the grantees presided as judge.* But a clerk of a court cannot take his own acknowledgment of a deed executed by him so as to make it operative as a deed admitted to record, against a subsequent purchaser for value from him." § 477. Where the officer taMng the acknowledgment Is a trustee. — It is held that the interest a trustee has in the com- mission for his services is sufficient to disqualify him from taking the acknowledgment of a deed of trust.* In a case in Missouri, Judge Bliss refers to the authorities in which acknowl- edgments have been held invalid because taken byj)arties in interest, and says : " I have found no case where it was taken by a trustee ; and perhaps there might be ground for holding that where the grantee was a mere naked trustee, the title, by the statute of uses, vesting at once in the beneficiary, the acknowl- edgment should be held to be valid. But trustees to hold in pledge, with power of sale, stand in a very different relation. The objection to the party in interest is analogous to the one forbidding a judge to pass upon his own case. Though the act may not be strictly judicial, it is of a judicial nature, and requires disinterested fidelity. We know that in practice this kind of judicial, no officer may take an acknowledgment of a deed in which he is interested, for no one may be a judge in his own case ; besides, it would be an attempt to create evidence in one's own favor ; an attempt, too, which must, in the majority of cases, be altogether irresponsible." 1 Dnssaume v. Burnett, 5 Iowa, 95. ' Lewis V. Curry, 74 Mo. 49. » Davis V. Beazley, 75 Va. 491. ' Brown v. Moore, 38 Tex. 64&; Dail v. Moore, 51 Mo. 589; Black v. Gregg, 58 Mo. 565. § 478 ACKNOWLEDGMENT OF DEEDS. 472 trustee is always selected by the beneficiary ; he is controlled by the beneficiary in fixing the time of the sale, and its proceeds come into his hands. There is such an interest that, as to the requisites of the deed itself, he should be placed upon a level with the other parties, and be incapacitated from holding any official relation to its execution." ^ The acknowledgment of a deed by one of a number of trustees empowered to act separately and in the alternative, that is, if one was unable to act, another might act in his place, is void as to the trustee taking the acknowledgment. But the execution of the deed may be proven aliunde? And if a married woman acknowledges before a per- son who holds a deed of trust from her a deed to his wife in satisfaction of the trust deed, it is void.^ If the execution of a trust deed is otherwise duly proved, it is good between the parties and those claiming under them, notwithstanding that it was acknowledged before the trustee.* § 478. Effect of taking acknowledgment by party. — The fact that an acknowledgment is taken by a party to-the conveyance does > See Stevens v. Hampton, 46 Mo. 404, 407. » Darst V. Gale, 83 111. 136. In Gibson v. Norway Savings Bank, 69 Me. 579, the question was raised that the treasurer of a savings bank could not take the acknowledgment of a grantor's deed to the bank. But the court did not decide the question, holding that there was no evidence that the officer was treasurer at the time the acknowledgment was taken. Says Virgin, J. : "It is urged that the plaintiff is not chargeable with the con- structive notice derivable from a legally registered mortgage, for the alleged reason that the certifying justice at the date of the acknowledg- ment was treasurer of the bank. To be sure, a grantee cannot lawfully take the acknowledgment of his grantor : Beaman v. Whitney, 20 Me. 413. Bat the statute does not in terms require an acknowledgment to be made before a disinterested justice of the peace. And the authorities concur in declaring the act purely ministerial, and In no wise judicial : Lynch v. Levingston, 6 N. Y. 422. But without passing upon the question whether an officer of a corporation may take the acknowledgment of its grantor, but assuming that the legal conclusion contended for will follow, the objection cannot avail the plaintiff, for the reason that there is no evidence that the justice was treasurer at the date of his certificate. We therefore perceived no legal objection to the mortgage or its registration." An acknowledg- ment may be taken by an officer of a corporation whose duty is to counter- sign and register its deeds : Sawyer v. Cox, 63 HI. 130. » Jones ji. Porter, 59 Miss. 628. And see Tavenner v. Barrett, 21 W. Va. 656. * Bennett v. Shipley, 82 Mo. 448. See also Black v. Gregg, 58 Mo. 565 ; Siemers v, Kleeburg, 56 Mo. 196. 473 ACKNOWLEDGMENT OP DEEDS. § 479 not invalidate the deed. It is good between the parties, and those who have actual notice of its ezistence.^ But such a deed is not properly acknowledged, and this affects its right to registration. A deed must be properly acknowledged before it is entitled to be recorded, and if not so acknowledged the fact that it may be spread upon the records, is not sufficient to charge subsequent purchasers with constructive notice.* Upon the question of the acknowledgment as affecting the right of record, and the extent to which a deed acknowledged before a party to it is, when recorded, constructive notice, the Supreme Court of Missouri lays down the following as a reasonable rule: "When the recorded instrument shows upon its face that the acknowledg- ment was taken by a party, or party in interest, it is improperly recorded, and is no constructive notice; but when it is fair upon its face it is the duty of the register to receive and record it, and its record operates as notice, notwithstanding there may be some hidden defect."* § 479. Length of acquaintance with person making acknowl- edgment. — The officer taking the acknowledgment is required to certify that the person executing the instrument is known to him. But the question of acquaintance is one to be determined solely by the officer's conscience. If the party who makes the acknowledgment is introduced to the officer by a mutual acquaint- ance, the introduction, if it satisfies the conscience of the officer, is sufficient to authorize him to take and certify the acknowl- edgment.* It is said by Cardozo, J.: "The statute requires ' Beaman v. Whitney, 20 Me. 413; Hogans «. Carruth, 18 Pla. 587; Dnssaume v. Burnett, 5 Iowa, 103 ; Stevens v. Hampton, 46 Mo. 404, 408 ; 10 Am. Law Beg. (N. S.) 107; Caldwell v. Head, 17 Mo. 561; Cooley v. Bankin, 11 Mo. 647 ; Hainey v. Alberry, 73 Mo. 427 ; Black v. Gregg, 58 Mo. 565. ' Lessee of Schutz v. Moore, 1 McLean, 520 ; Stevens v. Hampton, 46 Mo. 404 : Hastings v. Vanghn, 5 Cal. 315 ; Dussanme v. Burnett, 5 Iowa, 95 ; Barney v. Sutton, 2 Watts, 31 ; Johns v. Scott, 5 Md. 81. s Stevens v. Hampton, 46 Mo. 404, 408. ' Wood V. Bach, 54 Barb. 134 ; NeppeU v. Hammond, 4 Colo. 211. And Bee Watson v. Campbell, 28 Barb. 422 ; Jones v. Bach, 48 Barb. 568. In the latter case it was held that a mere introduction at the time is not sufficient to enable an officer to say that he knows the person who makes the acknowledgment ; and that where the officer had no previous knowledge of the party, it was necessary for him to take satisfactory evidence under § 479 ACKNOWIiEDGMENT OP DEEDS. 474 that an officer taking an acknowledgment shall know, or have satisfactory evidence that the person making such acknowledg- ment is the individual described in and who executed the con- veyance; but it nowhere prescribes either how such knowledge shall have been acquired, nor that it must have existed for any definite period of time. That being so, who shall fix a rule by which it shall be determined whether the commissioner was justified either by the length of his acquaintance, or the method of forming it, in certifying that he knew the party? Must it not necessarily be a question for the conscience of the officer taking the acknowledgment, and is not that just where the statute meant to leave it, if there was anything at all upon which the officer's conscience could be called upon to act? As no specific period of prior acquaintance is fixed by the statute, who shall say that one month would not be sufficient, if the officer taking the acknowledgment so regarded it? And if one month, why not an hour, or the moment at which the acknowledgment is taken ? it is clear that the right to take the acknowledgment does not depend upon the length of the officer's acquaintance with the person. Is that right dependent on the manner in which the officer's knowledge is acquired? The statute does not say so. The means through which the officer obtains knowledge of the person's identity are not material. One officer might consider a person known to him through a method that another might entirely reject. But in this case the usual means of knowledge were acted on, and received by the officer as sufficient. Knowl- edge of persons and their identity is most frequently acquired by introduction through mutual friends, and when such intro- duction has taken place, the parties certainly know each other. Every day men, in social life, thus become known to each other, and I never heard that such an introduction was not sufficient, or that any length of time after it must elapse to justify a state- ment or certificate that they were acquainted. When an intro'- duction does not proceed from such a source as satisfies the officer's conscience, undoubtedly he should not certify that he the solemnity of an oath of the identity of such person. But it was decided in the same case under the name of Wood v. Bach, 54 Barb. 143, that a mere introduction was sufficient, and the decision made in the case of Jones V. Bach was overruled. 475 ACKNOWLEDGMENT OP DEEDS. § 480 knows the party, but should require 'evidence/ which of course must be on oath ; but where the character of the introducer — "whom the officer knows — conveys knowledge to the officer's conscience, he may well be satisfied, and may properly give his certificate." ^ § 480. Comments on this role. — We have given the quotation in the preceding section because in our opinion it is a concise and forcible presentation of the proper rule. The means that the officer takes to ascertain the identity of the person appearing before him to acknowledge the execution of an instrument, can make no difierence to any one, unless he should commit an error as to identity. But so far as the validity of the acknowledgment is concerned, and that is the question which we are now con- sidering, it is immaterial how he acquires his knowledge of the pei-son making the acknowledgment. Another and different question may arise as to the extent of an officer's liability, who had certified that he knew a person from a simple introduction, without attempting to obtain further assurance by declarations made under the sanction of an oath. He has the right to require that the identity of a person shall be established to his satisfaction by the oath of a credible witness. If he chooses to act upon the statement of an acquaintance without compelling him to testify, and thus having the right to subject him to punishment if he testifies falsely, it might be well said that the officer is guilty of negligence, and should be liable for any injury which might result in case he had been imposed upon. ^ Wood V. Bach, 54 Barb. 134. To the objection that this rule might lead to fraud and imposition upon the officer, the learned justice responded : "I do not think the suggestion that allowing acknowledgments to be taken under such circumstances may lead to frauds and false personations, entitled to much weight. Certainly when the officer relies upon the intro- duction made by a friend whom he knows, there is not more danger of imposition than when he acts upon oath, as he may do of an entire stranger. If parties desire to personate others, there is much more probability of it being done through the medium of an oath of a stranger, experience having shown that persons willing to commit perjury for such purposes are not difficult to be found, than that it will be accomplished through the instrumentality of an introduction by a respectable friend to a reputable officer ; while, again, if the officer himself be corrupt, requiring that he shall take evidence, will not prove much more of a safeguard than if he certified without proof." § 481 ACKNOWliEDGMENT OF DEEDS. 476 But however this may be, it is certain that if he is satisfied that he knows a person, and is willing to so state in his certificate, it is immaterial during what length of time the acquaintance existed. Supporting, also, this view is a case where the husband and notary were well acquainted with each other, and the wife was introduced to the officer by the husband at the latter's house, it was held that it was not necessary to prove the iden- tity of the wife to the officer, but that if he had Imowledge from a source that satisfied his conscience, it was sufficient.* § 481. Omission of date does not invalidate acknowledgment. — If the certificate of acknowledgment is sufficient in other respects, the want of a date will not vitiate it.'' Where a statute pre- scribes the time within which a deed shall be recorded, and the deed is recorded within the statutory time, but the year in which the deed was acknowledged is omitted from the certifi- cate, the legal inference was said to be that it was legally acknowledged.' In the absence of all proof to the contrary, it will , be presumed that a deed was acknowledged at the place at which it purports to have been executed and at the time it bears date.* In Maryland, the Code which makes an acknowledgment essential to the validity of a mortgage, declares that the certifi- cate of acknowledgment shall, among other things, state "the time when it was taken." In a late case in that State it was held that when attack is made upon a deed for want of definite- ness in this particular, reference may be had not only to the certificate, but to the entire instrument, or to any part of it, and that the certificate of the clerk and the indorsement of the 1 Nippel V. Hammond, 4 Colo. 211. 2 Irving V. Brownell, 11 111. 402 ; Webb v. Huff, 61 Tex. 677 ; RacldeflF«. Norton, 19 Me. 274; Doe ex dem. Trulock v. Peeples, 1 Ga. 3; Wiokes v. Caulk, 5 Har. & J. 36, » Wickes V. Caulk, 5 Har. & J. 36, * Doe ex dem. Trulock v. Peeples, 1 Ga. 3 j BackleS v. Norton, 19 Me. 274. In the former case, Warner, J., delivering the opinion of the court, said: "This court will presume the acknowledgment was made in the county where the deed purports to have been made, and at the time it purports to bear date, in the absence of aU proof to the contrary. We shaU not voluntarily impute malpractice to the officer before whom the acknowledgment was made, by presuming it was taken at a time and place when and where he had no authority to take it." See Hobson v. Kissam, 8 Ala, 357. 477 ACKNOWIyEDGMENT OP DEEDS. § 482 recording officer are to be regarded as parts of the instrument, to ■which the court may refer.* § 482. Omission to state the place of taking the acknowledg- ment. — It is not absolutely essential that the place where the 1 Kelly V. Bosenstock, 45 Md. 389. The court said : " On its face the mortgage bears date the 6th of August, 1872, professes to have been exe- cuted on that day, is duly attested, the attesting witness being the magis- trate before whom the acknowledgment was taken, and it refers to the lease as bearing even date with it. The acknowledgment was before a magistrate in Baltimore City, who therein certifies ' that on this day of August, A. D. 1872, before me, the subscriber, a justice of the peace of the State of Maryland, in and for the city of Baltimore, personally ax>peared David W. Caskey, and acknowledged the foregoing mortgage to be his act,' and that at the same time, also personally appeared before him the mortgagees, and made oath that the consideration of the mortgage 'is true and hona fide as therein set forth.' Then fol- lows a certificate of the clerk of the Superior Court, dated the 6th of August, 1872, that the party ' before whom the annexed a^kTwwledgment amd affidavit were made was, at the time of so doing,'' a duly commissioned and sworn justice of the peace of the State, in and for the city of Baltimore. The instrument also bears the indorsement, 'recorded August 6, 1872, and examined,' placed thereon by the derk of the Circuit Court for Balti- more County, in which county the lots were situated. From these facta appearing on the face of the instrument itself, it is clear the acknowledg- ment could have been taken on no other day than the 6th of August, 1872. They definitely establish the fact, that it could not have been made before or after that date. By the Code acknowledgment is made essential to the validity of a mortgage, and article 24, section 8, declares that the certificate o( acknowledgment ' shall contain,' among other things, 'the time when it was taken.' But when a deed is attacked, for want of definiteness on this subject, the court is not confined to the certificate, but may refer to the entire instrument, or to any part of it. This principle was clearly laid down by the Supreme Court in Carpenter v. Dexter, 8 Wall. 526. 'In aid of the certificate (say the court in that case), reference may be had to the instrument itself, or to any part of it.' To determine whether it conforms to the law, it is to be 'read in connection with the deed itself.' The certifi- cate of the clerk, in a case like this, and recording, are made by the same article of the Code just as essential as acknowledgment. We therefore regard the certificate of the clerk and the indorsement of recording as forming parts of the instrument to which reference may be thus made. By reading the acknowledgment in tliis connection, the day of taking it appears as certainly as if it were written out in the certificate itself ; and this, in our opinion, gratifies the requirements of the law. In so deciding, we in no wise disturb any previous adjudications in this State upon that or like questions. Confining, as we do, our decision to the case before us, we by no means intimate an opinion that evidence, extrinsic to the deed, could be resorted to in order to fix the date, or that the acknowledgment would be valid, if from the face of the instrument there was room for any uncertainty as to the day on which it was taken." See also Bradford v. Dawson, 2 Ala. 203 ; Dickerson's Heirs v, Talbot, 14 Mon. B. 60. § 482 ACKNOWLEDGMENT OP DEEDS, 478 acknowledgment is taken should appear from the certificate itself. If an inspection of the whole instrument will enable this fact to be ascertained, it is sufficient.^ A certificate of acknowl- edgment, for instance, did not show in what State the acknowl- edgment was taken, but in the deed the grantor was described as a " resident of Suffield, in the county of Hartford, and State of Con- necticut." The acknowledgment which was made two days after the date of the deed simply gave the name of the county, omit- ting that of the State. The court said : " It is not indispensable that the place of taking should fully appear from the-acknowledg- ment itself, provided it can be discovered with sufficient certainty by inspection of the whole instrument. And if we can infer beyond reasonable doubt that the acknowledgment indorsed upon this deed was taken in the county of Hartford, and State of Connecticut, it is to be regarded as a legal acknowledgment, it being in proper form, and taken by a magistrate of competent authority by the laws of that State. We deem it a fair pre- sumption, in the absence of all evidence to the contrary, that the deed was executed at the time it bears date, and at the place of the grantor's residence. And finding the acknowledgment taken so soon afterwards in the county of Hartford, we can intend no other than the same county of Hartford, in which the deed is supposed to have been executed. Questions of this sort have frequently arisen, and have always received a similar determi- nation, when the instrument has furnished equal means for ascer- taining the place of acknowledgment."^ Where the grantors are described in the body of the deed as of a particular county, a certificate of acknowledgment which purports to be made by a justice of the peace of said cownty, but without mentioning the county by name, is good.' But in order tliat a deed may be ' Fuhrman v. Loudon, 13 Serg. & E. 386; 15 Am. Deo. 608; Brooks v. ChapUn, 3 Vt. 281 ; 23 Am. Dec. 209 ; Tralook v. Koe, 1 Ga. 3 ; Rackleff v. Norton, 19 Me. 274. » Per Royoe, J., in Brooks v. Chaplin, 3 Vt. 281 ; 23 Am. Dec. 209. This case is cited with approval in Carpenter v. Dexter, 8 Wall. 513, 529, and Judge Field, in delivering the opinion of the court in the latter case, says : " There is good sense in this decision." ' Fuhrman v. Loudon, 13 Serg. & R. 386 ; 15 Am. Dec 608. The opinion of the court was delivered by Tilghman, C. 3., who said: "In order to show that no right of dower was outstanding, the plaintiff produced a deed from Roop and wife, acknowledged before John Adams, styling 479 ACKNOWLEDGMENT OF DEEDS, § 483 read in evidence without proof of its execution, it is essential that the certificate should contain some assignable locality of which the court can take judicial notice ; and a defect of this character, it is held, is not cured by the notarial seal.* § 483. When certificate does not show in what State acknowl- edgment was made. — In a case in Illinois, where the venue to the certificate of acknowledgment was simply "county of New York," and there was nothing in the body of the deed to indicate in what State the acknowledgment was taken, it was held that the acknowledgment was insufficient.* The court in that case was of the opinion that it either must appear from the acknowledgment itself where it was made and certified, or by a comparison of the himself a justice of the peace, to which the defendant's counsel objected, because it was not said in the certificate of the acknowledgment of what county or State Adams was a justice. But the court overruled the objec- tion and admitted the deed in evidence. The certificate was headed County, as., and then went on to say : ' Before me, one of the jus- tices of the peace for said county, personally came the above named Jacob Roop and Susanna, his wife, and acknowledged the above indenture,' etc. Now, it would seem that the words ' for the said county ' were intended to refer to the county mentioned in the body of the deed ; because in another part of the certificate, where it is said that the above named Jacob Hoop and Susanna, his wife, appeared before the justice, reference must certainly have been intended to the body of the deed, no mention of Boop and wife having previously been made in any other place. The exception is not to be favored, as it cannot be seriously supposed that Adams would have undertaken to receive the acknowledgment of a deed relating to lands in Pennsylvania, if he had not been a justice of the peace for some county in the State, and if a justice of any county, it was sufficient. At the time of taking this acknowledgment, any justice of the peace was authorized to take the acknowledgment of a deed afiEecting lands in any part of the State. I am of opinion, therefore, that the exception was not good, and the deed was properly admitted in evidence." See also Danlap v. Daugh- erty, 20 111. 397. 1 Vance v. Schuyler, 1 Gilm. 160. In that case the acknowledgment was in the following form: "Lincoln, ss., Wiseassett, July 22, 1818. Personally appeared before me, Seth Tinkham, Notary Public, by legal authority appointed and sworn, dwelling in Wiseassett, aforesaid, Spencer Nelson, and acknowledged the above instrument in writing by him sub- scribed to be his free act and deed, for the purpose therein mentioned ; and requested that the same might be received and taken as such ; and also made oath that he is the same person to whom the within patent was granted. In testimony whereof I have hereunto set my hand and affixed my seal of office, the day and year first above written. Seth Tinkham, Notary PubUc. [Seal.]" The court said: "« Lincoln, ss., Wiseassett,' judicially have no assignable locality, and the seal affixed will not help it." ' Hardin v. Kirk, 49 111. 153. § 484 ACKNOWLEDGMENT OF DEEDS. 480 deed and acknowledgment, the court must be able to presume in what State it was taken. But in a later case the same acknowl- edgment came before the court, and on this occasion there was a certificate of a magistrate which was entitled, "State of New York, city and county of New York, ss.," and to the effect that "the officer at the time of taking the acknowledgment was a commissioner of deeds for the city and county residing therein, commissioned, sworn, and duly authorized to take acknowledg- ments, and that his signature was genuine." The court while adhering to its former decision held that this second certificate cured the defect, observing : " By force of the two certificates we must presume that the acknowledgment was taken in the State of New York, and in the county of New York. There the commissioner. resided, and the legal presumption is that he acted in the place where he had jurisdiction. It would be an unreasonable and violent conclusion, that an officer attempted the discharge of his duty in some other State other than the one in which he was authorized to act." * § 484. Proof of loeaJity in wMeh officer had jurisdiction. — If the certificate of acknowledgment does not state the place where it was taken, and this fact cannot be gathered from other parts of the deed, it may be supplied by parol proof that he was an acting officer at the place at the time when the acknowledg- ment was taken.^ Where the certificate of the acknowledgment of a deed, purporting to have been made by the clerk of a court of record, was formal in every other respect than the omission of the name of the county in the caption or margin, and which stated that it was given under the hand of the officer and the seal of the court, the seal containing the name of the county being affixed, it was held that the acknowledgment appeared to have been taken in the proper county, and the omission of the name of the county in the certificate did not vitiate the certificate.* > Hardin v. Osborne, 60 111. 93, 96, per Thornton, J. ' Scott V. Gallagher, 11 Serg. & R. 347 ; 16 Am. Deo. 508 ; Graham v. Anderson, 42 lU. 514. And see Irving v. Brownell, 11 111. 402 ; Shattuck v. The People, 4 Scam. 481. ' Chinquy v. Catholic Bishop of Chifeigo, 41 111. 148. In that case the conclusion of the certificate was " given under my hand and seal of said court, this twelfth day of July, A. D. 1861," and the seal contained the words, "Will county seal." 481 ACKNOWLEDGMENT OP DEEDS. §§ 485-486 § 485. Treating two certificates as one. — It is proper in some cases to treat two certificates as one, where they appear to have been made at the same time and for the same purpose, and the defects of one may be thus supplied by reference to the other. For example, two certificates were attached to a deed, one of which was made by the grantor, and the other, which was placed directly under it, was made by his wife. Both certificates were in proper form with the exception that the signature of the justice who took the acknowledgment appeared only on the bottom of the lower one, and that they failed to state the county for which he was a justice, although each contained the caption of the State and* county. The court held that the two certificates were to be treated as one, and that such olHcer was a justice was evident from the caption and signature.' § 486. Presamption that acknowledgment was taken within jurisdiction of officer. — It is not necessary that the certificate should state that the acknowledgment was taken within the jurisdiction of the officer. Where a conveyance is acknowl- edged before an officer who has authority to take the same within a particular locality, it will be presumed that he took the acknowledgment within the limits of his jurisdiction.^ " This ' Wright V. Wilson, 17 Mich. 192. ChrisUancy, J., delivered the opinion of the court, and said : " The circuit judge held the certificates of acknowl- edgment to be in effect one certificate only, and the signature at the end of the last as intended to be a signature to both, and that the caption of the certificate and the signature, import that such officer was an officer In ahd for the county named in the caption. In this we see no error. The strong probability is that the blank for the deed was one which had the acknowl- edgment of the wife in form separate from that of the husband ; and the former being placed directly under the latter, was treated by the justice as in effect but a single certificate, the signature to the last being considered by him as a signature to the whole. The fact that such certificates of acknowledgment are generally made as one, that the blank for the date in the first was filled as in the last, and with the same date, and that the justice appears to have signed as a subscribing witness to the execution by both, all tend to confirm this view. And we think the court was entirely right in holding that when the county is named in the caption of such cer- tificate, and it is signed officially as justice of the peace, the caption la connection with such official signature imports that he is such officer in and for the county named in the caption." Bradley v. West, CO Mo. 33; Sidwell v. Bimey, 69 Mo. 144; Morrison u. White, 16 La. An. 100; Carpenter v. Dexter, 8 Wall. 513; Raokleflf i». Norton, 19 Me. 274 ; Dnnlap v. Daugherty, 20 111. 397 ; Thurman v. Cam- eron, 24 Wend. 87. I. Deeds.— SI. § 487 ACKNOWLEDGMENT OF DEEDS. 482 officer was entitled to take the acknowledgment, and it must be presumed that he did it within the limits of his jurisdiction, even though that is not stated to have been the case in the cer- tificate which he made, for the legal presumption is in favor of tthe validity of the acts of public officers, where nothing appears warranting a different conclusion."* A certificate of acknowl- edgment to a deed was in this form: "State of Missouri, Schuyler County, ss. : Be it remembered that before the under- signed, circuit clerk, comes Lyttleton H. Conklin," etc. An objection was made to the acknowledgment that it did not appear of what county the officer making it was circuit clerk, but the court held that it sufficiently appeared that the acknowl- edgment was taken in Schuyler County by the clerk of the Circuit Court, and that it would be presumed that he exercised his functions within his jurisdiction.^ § 487. Jurisdiction of officer. — The matters required to be stated in the certificate of acknowledgment, and the extent of territory in which the officer is authorized to act, are matters for statutory regulation. In a case where it was held that after taking the acknowledgment, and making and delivering the return, the functions of the officer ceased, and he had no author- I The People v. Snyder, 41 N. Y. 397, 402, per Daniels, J. ' Sidwell V. Birney, 69 Mo. 144. Hough, J., speaking for the court, said : "The objection to the acknowledgment is, that it does not appear to have been taken before any officer known to the laws of this State ; and that it does not appear of what county the officer making the certificate was circuit clerk. ' Circuit clerk ' is the title by which the clerk of the Circuit Court is ordinarily designated, both by lawyers and laymen, and while, as an official designation, it is not rigorously exact, yet being in common use and reasonably certain, we are of opinion that it sufficiently identifies the officer taking the acknowledgment as the clerk of the Circuit Court. We are also of the opinion that it sufficiently appears from the face of the certificate, that the person taking the certificate was circuit clerk of Schuyler County. The venue of the certificate is ' State of Mis- souri, Schuyler County.' This shows that the certificate was granted in Schuyler County, and the presumption is that the officer exercised his functions within the limits of his jurisdiction." A notary public who took an acknowledgment of a deed conveying land in Livingston County, described himself in the certificate as a notary public, within and for the county of Livingston, but to his signature added the words "Notary Public, Howard County." The deed was held to be admissible in evi- dence : Merchants Bank of St. Louis «. Harrison, 39 Mo. 433. 483 ACKNOWIiEDGMENT OF DEEDS. § 487 ity to amend or alter his certificate, it was remarked, as a reason for the decision: "A notary derives his power from the statute over these subjects. The special duty and authority of taking and certifying acknowledgments is given him. But he acts as an officer with a special authority for each particular case. He is, in other words, acting as under a special commission for that case — clothed with a limited statutory power."* Hence, to determine whether an officer can take an acknowledgment out- side of his county or not, reference must be had to the statutes of the State in which he acts. In the various statutes defining the powers and duties of officers authorized to take acknowl- ed^ents, provisions may be found that the acknowledgment shall be taken in the county where the land is situated, or where the grantor resides, or in the county or district for which the officer is appointed. In order that the acknowledgment may be valid, compliance with these statutory provisions is essential.* But it is held in other States that the right to take an acknowl- edgment is personal to the officer, and not dependent upon his being in the county for which he was appointed. And where ' Bours V. Zackariah, 11 Cal. 281, 292 ; 70 Am. Dec. 779. ' McCullock V. Myers, 1 Dana, 522 ; Johns v. Beardon, 3 Md. Ch. 57 ; Gittings V. Hall, 1 Har. & J. 14 ; 2 Am. Dec. 502 ; Grarrison v. Haydon, 1 Marsh. A. K. 222; 19 Am. Dec. 70; Dickeraon's Heirs v. Talbot's Exec- utors, 14 Mon. B. 60; Hedger v. Ward, 15 Mon. B. 106. In Hughes v. Wilkinson's Lessee, 37 Miss. 482,489, the court say: "The acknowledg- ment was made in the year 1831, and by the statute then existing, a justice of the peace was not empowered to take an acknowledgment of a deed of conveyance of lands, unless they were situate wholly or in part in the county in which he held his office : Hutch. Code, 605, §1. Notaries public were afterwards authorized by the Act of 1833, to take acknowledgments out of the county of their residence (Hutch. Code, 617) ; and by the Act of 1836, justices of the peace were authorized to exercise all the powers pre- viously belonging to notaries public : Hutch. Code, 704, art. 15. But these last two statutes were passed after the acknowledgment under consider- ation was made, and of course can have no effect upon it ; and the con- clusion is unavoidable, that the acknowledgment was not according to law, and consequently that the power of attorney was not properly recorded, so as to give the record the force of evidence." In Hedger V. Ward, 15 Mon. B. 106, it was held that prior to the Act of 1810, clerks of County Courts had no authority to take the acknowledgment of deeds for land which did not lie in their counties; but as the deed in question was nearly fifty years old, permission was given to read it as evidence in favor of the heir of the grantee, without proof of its execution. See Colton v. Seavey, 22 Cal. 496. ^§ 488-489 ACKNOWLEDGMENT OF DEEDS, 484 this view prevails, an acknowledgment may be taken by an officer out of his county.' § 488. Comments. — As the question of whether an officer can take an acknowledgment out of his county or not is one of statu- tory construction, dependent for determination upon the language of the statute itself, it is impossible to lay down any rule of general application. Where the statute declares in so many words that an officer can take an acknowledgment only within certain limits, there is, of course, no room for construction. But where the statute confers upon him a general power without pre- scribing the territory within which it is to be exercised, or desig- nates the territory without declaring that his power shall not (extend beyond it, it seems to us that the power should be con- sidered personal, and that he may exercise it wherever he may happen to be. If a bond be required of him he would be liable to as great an extent for a violation of his official duties for an act performed out of his county, as he would be for one done within it. No good reason presents itself to our mind why peculiar dignity should attach to the taking of an acknowledg- ment within a particular locality by one who possesses the power to take it, and no effect whatever be given to it when taken else- where. The act of taking an acknowledgment is, as we have seen, purely ministerial, and possesses no feature of a judicial nature. Therefore, we think that where the language of the statute is not plain and prohibitory, an officer may take an acknowledgment outside of the district in which he resides, or for which he is appointed. § 489. Officer if reqtiired by statute must attach seal to cer- tificate. — Wherever an officer is required to have a seal, and to attach it to his official acts, a certificate of acknowledgment without the seal of the officer before whom the acknowledgment 1 Learned v. EUey, 14 Alien, 109 ; Bisooe v. Byrd, 15 Ark. 655 ; Crum- baugh V. Kugler, 2 Ohio St. 373; Lessee of Moore v. Vance, 1 Ohio, 1; Lessee of Kinsman v. Loomis, 11 Ohio, 475 ; Moore v. Moore, 3 Ohio St. 154; Odiorne v. Mason, 9 N. H. 24. But see Jackson v. Humphrey, 1 Johns. 498 ; Share v. Anderson, 7 Serg. Booth V. Cook, 20 111. 129, 132. In Ballard v. Perry, 28 Tex. 347, 36'',^ the court say : " The deed was also objected to for want of a seal to the notary's certificate of probate. The objection, if established, should have been sus- tained. The instrument offered in evidence was not the deed itself, but a certified copy of it, from the records of the office of the county clerk. The fact cannot, therefore, be determined by an inspection of the paper pre- sented to the court. But as the certificate of the notary declares that he has affixed his official seal to it, and the clerk should not have recorded the deed unless this were the case, we think that it may be presumed that the seal was properly attached, although in the copy from the record its place is not indicated by a scroll, and the initial letters ' L. S.,' as is custom- ary in copies of sealed instruments. The clerk who recorded this deed may not have supposed this necessary or proper." » Hastings v. Vaughn, 5 Cal. 315, 318. But the deed should be admitted in evidence with proper instructions to the jury as to its effect in giving notice to third persons. § 490 ACKNOWLEDGMENT OF DEEDS. 486 error issued Jrom this court which was not under the seal of the court would be valid, as to say that a certificate of acknowledg- ment by a notary need not be evidenced by his notarial seal. The same authority that requires the process to be under the seal of the court, directs the certificate to be under the official seal of the notary. The courts have no more power to dispense with the requirements of the statute in the one case than in the other. It is only by force of the statute that the certificate of a notary has any effect as evidence of the execution of a deed ; and the statute requires it to be under the official seal of the officer. A certificate which is not verified by his seal of office, derives no force or efficacy from the statute. We cannot say that the seal is a mere formality and adds nothing to the dignity or solemnity of the instrument. It is enough that the law positively requires it. The propriety of the requisition rests with the legislature." ^ § 490. Where there is no statutory provision. — Where, how- ever, there is no provision in the statute requiring that a seal shall be affixed to the certificate of acknowledgment, none is necessary. Mr. Justice Wilde, in a case in which this point was raised, said: "The statute requires no notarial feeal to the notary's certificate of the acknowledgment, and none, we think, was necessary. The notary derived his authority from the statute, and it is no good objection to the validity of the certifi- cate, that by the common law or law merchant, notaries public are required to certify their acts and doings under their notarial seal."^ "It is not necessary," says the Supreme Court of Min- nesota, "that these official certificates of acknowledgment should be under seal unless the statute authorizing them expressly requires it. If the certificate styles the officer taking it as an officer authorized by statute to perform the act, it will be prima fade evidence of his official character. No seal was required by our act."' ' In Mason v. Brook, 12 111. 273, 276; 52 Am. Deo. 490. See Davis v. Roosvelt, 53 Tex. 305. 2 Farnum v. Buffum, 4 Cush. 260, 264. ' Haze V. Arper, 6 Minn. 220, 229. And see Thompson v. Morgan, 6 Minn. 292 ; Powers v. Bryant, 7 Port. 9 ; JaCqUes v. Weeks, 7 Watts, 261 ; Harrison v. Simons, 55 Ala. 510 ; Irving v. Brownell, 11 HI. 402 ; Thomp- son V. Bobertson, 9 Mon. B. 383. In Fund Commissioners of Maskingoxn 487 ACKNOWLEDGMENT OF DEEDS. § 491 § 491. Reference to official seal — If the official seal is in fact attached to the certificate, it is immaterial whether the Co. V. Glass, 17 Ohio, 542, Hitchcock, J., delivering the opinion of the court, said : " The only question raised in this case is whether, where a deed is acknowledged before a notary public, the acknowledgment is void, unless the same is certified under the official seal of the officer taking the acknowledgment. That such acknowledgment is Toid, is earnestly insisted upon by the counsel for the defendant, and they base their argu- ment upon the act 'for the appointment of notaries public,' which took effect May 1, 1816 : Swan's Stat. 601. The third section of this act pro- vides that ' each notary shall provide a notarial seal, with which he shall authenticate his official acts,' etc., 'which seal, together with the registers and, official documents, shall not be liable to be seised in by execution.' The duties to be performed by the notary are not by the statute prescribed in express terms, but at the close of the second section it is prescribed that ' due faith and credit shall be given to his protestations, attestations, and other instruments of publication. ' Taking the -vghole act together, it is apparent that the duty to be performed by this officer was like the duties to be performed by other officers of the same name, in other parts of the commercial world. He was to keep a register of his proceedings ; faith and credit were to be given to his protestations, attestations, and other instruments of publication, and all these were to be 'authenticated by his official seal.' There is nothing in this act about the acknowledgment of deeds. This was no part of ihe duties to be by the notary performed. By an amendatory act, which took effect February 29, 1836, it is enacted ' that every notary public may hereafter demand and receive for every attestation, protestation, or other instrument of publication, under the seal of his office, the sum of fifty cents, and no more ; and for recording in a book to be kept for that purpose, each attestation, protestation, or other instrument of publication, fifty cents, and not more.' This amendatory act, as well as the one to which it is amendatory, shows sufficiently for what purpose the seal was to be used. We have been referred to two cases in Indiana, one reported 4 Blackf. 185, and the other, 6 Blackf. 356, which are supposed to have a bearing upon this case, and to be conclusive to show that this acknowledgment is defective. Those cases were decided under the statute of Indiana, and counsel suppose the statute of that State is like our own, but from the cases referred to, and especially the one in 4 BlacM., I should take them to be materially different. By our statute, heretofore referred to, all the certificates of the notary, as to the acts therein contemplated to be done, must be under his official seal. But, as before said, taking the acknowledgment of a deed is not one of those acts. By that law he had no power to perform any such act. This power was conferred upon a notary public by the ' act to provide for the proof, acknowledgment, and recording of deeds and other instruments of writ- ing,' which took effect June 1, 1831 : Swan's Stat. 265. The first section of this act, after specifying the manner in which a deed shall be executed, by signing, sealing, etc., provides that 'such signing and sealing shall be acknowledged by such grantor or grantors, maker or makers, before a judge of the Supreme Court, or of the court of common pleas, a justice of the peace, notary public, mayor, or other presiding officer of an incorpor- I 491 ACKNOTCLEDGMENT OP DEEDS, 488 officer so declares in the attestation clause or not. In such a case the whole instrument would purport to be an official and not a private act. Thus, a certificate of acknowledgment which says "witness my hand and seal" instead of official seal, is, if impressed with the notarial seal and purporting to be an official act, sufficient.^ Where the word "seal" before the words "of office" was omitted, making the attestation clause read, "given under my hand and of office," the omission was held to be immaterial. On the exception taken to the sufficiency of the cer- tificate of acknowledgment for this omission, the court observe : " It is so evident that it was an accidental omission to put in the word 'seal' between 'and of office' that the reader would always supply the omission to make sense of the following words of office. It was so evidently an omission of the officer, whose duty it was to maKe the authentication, that no one could be deceived by it, and the most ordinary understanding would have known the word 'seal' was intended to have filled up the hiatus, that we should have regarded the exception as not sustainable."^ ated town or oity ; who shall certify such ackno-wledgment on the same sheet on which such deed, mortgage, or other instrument of writing may be printed or written, and shall subscribe his name to said certificate.' Under this law the acknowledgment of this deed was taken, and to the certificate of ackno-wledgment the ofl&cer taking it did ' subscribe his name.' This was all which the law under which he was acting required him to do. I cannot see why we should add anything to this requisition. If the general assembly of 1816 had power, and saw fit to declare that a notary public should verify certain certificates, which he should make, or all he should make, by his official seal, the general assembly of 1831 had equal power to declare that in a glyeh case he might verify a certificate by the mere signature of his name. This has been done in the case of certi- fying to the acknowledgment of a deed." > Monroe v. Arledge, 23 Tex. 478 ; Moore v. Titman, 83 HI. 358. In the latter case the court held that a default admitted the sufficiency of the acknowledgment, but said on this point: "It is insisted that the notaiy public before whom the mortgage was acknowledged failed to affix his official seal. It appears that in the body of his certificate he describes himself as notary publio, and a seal is annexed. It is true that in the test- ing clause to the certificate he says: 'Given under my hand and seal.' If»when the instrument was produced, it appeared that it was his official seal which was annexed, that would be sufficient, as the seal imports verity, and that the act is official and not individual." * Nichols V. Stewart, 15 Tex. 226, 235. And see Harrington v. Fish, 10 Mich. 416 ; Webb v. Huff, 61 Tex. 677. 489 ACKNOWIiEDGMENT OF DEEDS. '§§ 492-49J § 492. Same subject — It is proper in this connection to call attention to what apparently is a decision in conflict with the law as stated in the previous section. The attesting clause to the notary's certificate of an acknowledgment of a deed was : "Witness my hand and seal this day," etc. The certified copy before the court contained merely a scrawl. Blodgett, J., said upon the sufficiency of this acknowledgment: "Plaintiff con- tended that when a notary public says ' witness my hand and seal,' he means his notarial seal. But after an examination of the authorities touching this question, I have come to the con- clusion that nothing should be presumed in favor of a notary public's certificate of acknowledgment to a deed of conveyance; he must state all the facts necessary to show a valid official act on his part, and inasmuch as the statute expressly provides that a notary public must authenticate his certificate of acknowl- edgment to a deed by his notarial seal, it seems clear to me that the certificate itself must expressly affirm and show that he has so authenticated it; in other words, he must state he has affixed his official or notarial seal, and it must appear from the inspec- tion of the original paper that there is such a seal affixed to the deed. In this case, inasmuch as only a certified copy was used, and as the recorder has probably not made a jwa simile of that seal on the record book of the deed, we are of course in the dark as to just what the original deed did express on its face. It may have had merely a scrawl; it may have had a regularly cut, engraved, or stamped seal of the notary public; but be that as it may, I do not think you are to stand by the seal alone. I think you must have also the certificate of the officer that what purports to be his seal is his official seal. Inasmuch as this deed is wholly barren of any statement of this kind, and fails to show affirmatively that the seal affixed to the instrument is his notarial or official seal, I think it was erroneously received in evidence by the court."* § 493. Comments. — It is true that the law relating to acknowledgments is purely statutory, and it may be said that the certificate should show that every requirement of the statute has been fuUy and strictly complied with. But we believe that » Wetmore v. Laixd, 5 Bias. 160, 161. §§ 494-495 ACKNOWLEDGMENT OF DEEDS* 490 a reasonable construction should be given to statutes upon this subject, and that officers empowered to take acknowledgments should not be held to a greater degree of responsibility than officers authorized to perform other official acts. Nor should an acknowledgment, where there has been a substantial observ- ance of the provisions of the statute, be invalidated, in our opinion, on account of some slight informality of expression. It certainly seems just and reasonable to say that a certificate of acknowledgment is under the official seal of the officer who took the acknowledgment, without an express declaration to that effect, if the seal is in fact attached to the certificate. § 494. Use of a private seal — The general rule is that a notary public or other officer required to have a seal, cannot authenticate his official acts, to which it is necessary to attach his seal of office, by using his private seal. But it is sometimes provided by statute that the acknowledgment of a notary taken under his private seal, is valid if it is stated in the acknowledg- ment that the notary has not obtained an official seal.* But in the absence of such a statute, the general rule on this subject is correctly stated by Chief Justice Treat : "A notary is empowered to take the acknowledgment of a deed and certify the same under his official seal. He has no power to do it in any other manner. If he has no notarial seal with which to authenticate his official acts, he is destitute of any authority to certify the acknowledg- ment of a deed. He must procure an official seal before the authority conferred on him to take the acknowledgment of deeds attaches. He cannot make use of a scrawl or private seal, for the purpose of authenticating a certificate of acknowledgment. The provision of law allowing certain officers to use their private seals, until they should be provided with public seals, had no application to a notary. He has to provide himself with an official seal. It is not furnished him by the public." ^ § 495. What will constitute an official seal — The form of the officer's seal is generally prescribed by statute. In such case 1 Fogarty v. Sawyer, 23 Cal. 570. See Ingoldsby v. Jnan, 12 Cal. 564. " In Mason v. Brock, 12 111. 273, 276 ; 52 Am. Dec.'490. But see Collins V. Boyd, 5 Dana, 316. 491 ACKNOWLEDGMENT OF DEEDS. § 49S a substantial compliance ■with the statute, of course, is necessary. But in the absence of statutory regulation, the notary may adopt any seal descriptive of his office, and designating the locality within which he exercises his functions.* Mr. Bump in his treatise on Bankruptcy, on the authority of the case cited in the above note, says : " The requisites of a notarial seal are determined by the law of the locality from which he derives his authority. In the absence of legislation, an official seal need not contain the name of the official whose seal it purports to be. An impression on the paper directly, or on wax or wafer attached thereto, made by the official as and for his seal, is entitled to judicial sanction as evidence of the official character of the individual who signs the jurat, and the presumption is that the seal is his official seal." * To adopt the language of a learned j udge : " He may adopt a seal with such an inscription as his judgment may dictate, or his fancy may suggest. It must, however, be capable of making a definite and uniform impression on the paper on which a certificate is written, or on some tenacious substance attached thereto, so that when a question arises as to the genuineness of an authentication, it may be determined by reference to the seal of the officer." ' ' In re Phillips, 14 Nat. Bank. Reg. 219. ' Bump on Iiaw and Prao., Bank'y (10th ed.) 86. » Chief Justice Treat, in Mason v. Brook, 12 111. 273, 276. But in the case of In re Nebe, 11 Nat. Bank. Reg. 289, where it was held concerning a deposi- tion that it must appear from the impression of the seal that it is the seal of the notary who employs it to authenticate his acts, it is said by the register : " The statute requires the act of the notary to be authenticated by his signa- ture and his official seal. There is nothing from which it can be inferred that one of these is of less importance than the other, and therefore an authentication by either would be imperfect without the other. But what is an ' official seal ' ? A seal at common law was an Impression upon wax. By statute in this State, and by statute or usage in many others, a scroll made with a pen will serve the purpose of a private seal. But this, so far as I know, has never beeu extended to corporate or official seals. As regards these, it has required no little litigation to settle the question that an impression on wax is unnecessary; but all the cases held that an impression on paper is indispensable. But an impression of what ? Pub- lic seals — and a notary ^s seal is a public seal — are held to prove them- selves. Is any stamp which a notary chooses to affix to his signature entitled to recognition as his official seal ? Such a construction strikes me as a burlesque upon the provisions of the act of Congress, which makes both signature and seal necessary to the authentication of the notary's act. And if as a public seal it proves itself, must it not show on its face what it is that it proves ; not only that it is a seal, but that it is the seal of a notary public ; and in order to show that it is the seal of the notary who employs § 496 ACKNOWI^EDGMENT OP DEEDS. 492 § 496. Signature of officer must be attached to certificate. — To make the certificate of acknowledgment complete, the officer must sign it. Writing his name in the body of the certificate is not such a signature as the law demands. In a case where this principle was announced it was contended that a certificate is lawfully signed, if the name is inserted in it by the officer, without any technical subscribing, on the same principle w|iich regards a signing good under the statute of frauds without an actual subscription. The court observed that the practice was common among conveyancers to insert the name as well as the title of the acknowledging officer in the body of the certificate beforehand, so that nothing remained for the officer to do but to attach his signature; and justly remarked that there could be no security against additions to the certificate, if the officer's name were placed at the head only, and as the records were prima Jade evidence, and the original could not always be obtained, fraud could be practiced with comparative immunity.^ "Giving a mere recital of the name of the officer and style of office in the body of the certificate, though written by him, the force of an official signature, would tend to render titles insecure, and induce litigationj which it is the purpose of the statutes to prevent."^ it, that it must bear his name. If it be admitted that the seal in this case is the seal of a notary public, it is just as clearly the seal of every other of the notaries public, in number about one thousand, who hold office in the county of Wayne ; and what, then, becomes of the provisions of the law which require the notary's act to be attested by 'ftis official seal ' ? In the case of Gage v. Dubuque and Pacific Railroad Company, 11 Iowa, p. 314 [310 J, the court holds 'that unless the name of a notary public, and the State in which he acts, are engraved upon his seal so that an impression can be made therefrom, his seal would not be received as evidence.' This was held to render invalid a seal where a part only of it was written, and not impressed upon the paper. The court says in addition : 'If a portion of the words necessary to be used in the body of the seal may be written, the whole may be.' I do not see how this rule can be departed from without introducing a laxity in practice which wiU. defeat entirely the object contemplated by the statute, which requires the notary's act to be authenticated ' by his official seal.' " The conclusions of the register were approved by Longyear, J. ' Marston v. Bradshaw, 18 Mich. 81. But see Wright v. Wilson, 17 Mich. 192, where of two separate certificates of husband and wife only one was signed, it was held sufficient. See g 485, ante. And see, also, Watson v. Clendinin, 6 Blackf. 477 ; Duncan v. Duncan, 1 Watts, 322. ' Carlisle v. Carlisle, 78 Ala. 542, 545, per Clopton, J. See, also, Jefferson County Building Assoc, v. Heil, 78 Ala, 613. 493 .ACKNOWLEDGMENT OP DEEDS. §§ 497-498 § 497. Certificate of foreign officer is prima facie evidence of conformity to law. — The validiiy of the certificate of an oiBcer of the State, before a court of which it is questioned, is a matter of law. But the conformity of a certificate of a foreign ofiicer to the foreign law is a question of fact to be established by evi- dence. But where the certificate of such foreign officer is made, the certificate itself is prima fade evidence of its conformity to law. Hence, in Mississippi, under a statute of that State which declared that " where the parties or witnesses to a deed reside in a foreign kingdom, state, nation, or colony, the acknowledg- ment or proof made before any court of law, or mayor, etc., cer- tified by the said court, mayor, etc., in the manner such acts are usually authenticated by them, or him, shall be sufficient," it was held that an acknowledgment taken before the mayor of Liverpool, purporting to be under his official signature, and bear- ing the corporate seal, but which was signed, not by him, but by the town clerk, was valid; the presumption is that this was the usual mode of authenticating the official acts of the mayor.* § 498. Taking an acknowledgment is a ministerial act — The current of authority is to the effect that the taking of an acknowledgment is an act purely ministerial in its character, and not in any sense judicial. "It involves no compulsion or summons of any person who does not appear of his own accord, and rarely, if ever, requires an investigation of the circumstances under which the deed was executed."* On the ground that an officer in taking an acknowledgment acts ministerially, it is held ■ Sessions v. Reynolds, 7 Smedes Euss V. Wingate, 30 Miss. 440. » Final v. Baclzus, 18 Mich. 218. » Kawley v. Berrian, 12 111. 198, 200. * Scott V. Gallagher, 14 Serg. & R. 333 ; 16 Am. Dec. 508 ; Bennett ». Paine, 7 Watts, 834; 82 Am. Deo. 765; Shults v. Moore, 1 McLean, 520; Van Ness v. Bank of United States, 13 Peters, 17. And see Rhodes v. Selin, 4 Wash. C. 0. 718 ; JeflEi«ys v. Collis. 4 Dana, 470 ; Byer v. Etnyre, 2 Gill, 150 : 41 Am. Deo. 410. 499 ACKNOWLEDGMENT OF DEEDS, § 503 by them in their official capacity, and when their official char- acters are sufficiently shown by parol evidence, or by the admis- sions of the parties, we see no reason for requiring more where the acts of the legislature have not prescribed it. On the con- trary, the soundest principles of justice and policy would seem to demand that every reasonable intendment should be made to support the titles of the bona fide purchasers of real property ; and this court is not disposed to impair their safety by insisting upon matters of form, unless they were evidently required by legislative authority."^ § 503. Stating the name of the grantor in the certificate. — The name of the party acknowledging the deed should always appear in the certificate. And in some cases the omission to do ' Van Ness v. The Bank of the United States, 13 Peters, 17, 21. In Ben- nett V. Paine, 7 Watts, 334, 32 Am. Den. 765, a certificate of acknowledg- ment contained no declaration of the official character of the person who took it. A copy of the commission of the officer taken from the records of his county and certified to by the recorder that it was a true copy, was ofiered to supply the defect. Upon this point the court say: "The cer- tificate of acknowledgment certainly contains no assertion of magisterial character. It is not affirmative of either office or place; but may not proof of these, as in the Commissioners v. Ross, 3 Binn. 539 [5 Am. Dec. 383] be supplied oMMnde? Inthatoaseadeposition, in the caption of which it was neither stated nor apparent that the examiner was a justice for the county, was received on the authentication of the fact by the prothonotary 'a certificate ; and in what does it differ from the present ? In nothing, per- haps, but that the identity of the person was more distinctly disclosed ; and that the supplemental certificate was given by the prothonotary instead of the recorder. The evidence that the act was done within the jurisdiction of him who is thus proved to have been a magistrate, is equal, if not greater, in the present, for we have the exemplification of a com- mission to a person of the same name who was commissioner for the county in which the grantors reside. In Dunn v. The Commonw. 14 Serg. e made by a judge or the County Court, that the deed and the accomi)anying documents should be registered. The com- mission and certificates are required to be registered, that the court may at all times See that everything required by law to divest the femme covert ot her title had been complied with ; and also, that the vendee, or those § 510 AOKNOWIiEDGMENT OP DEEDS. 508 § 510. Certificate sufficient if equivalent words to those men- tioned In the statute are used. — The statutes relating to acknowl- edgments generally contain certain forms which are declared to be sufficient. But it is well settled that it is not necessary to pur- sue the exact language of the statute, provided it is substantially complied with. Though the statute may contain certain words, yet if equivalent words are used in the certificate it will be sufficient.^ "It is well settled that the exact form of the certifi- cate given in the statute need not be followed. All that ig necessary is a substantial compliance with the statute,"* As said by Judge Burnet of the Supreme Court of Ohio; " It will not be seriously contended that the magistrate is bound to use the same language that he finds in the statute. The legislature have not undertaken to prescribe a form of acknowledgment that is to be literally pursued. If the certificate contains the substance of the law, though in the language of the officer, it is sufficient. On any other principle it is a matter of doubt whether the records of the State contain a solitary deed with a valid acknowledgment. It is, however, safe and prudent to adopt the language of the act with but little if any variation, and yet it would be attended with destructive consequences to consider such an adherence as essential to the validity of an acknowledgment. It may become a question, then, how far the magistrate may deviate from the words of the act. I would answer the inquiry by saying that his certificate must contain who claim under him, may be always enabled, when they ofifer the deed in evidence, to show to the court that the title had passed from the femme covert according to all the requirements of the statute." But see Newcomb ti. Smith, Wright, 208. 1 Barton v. Morris, 15 Ohio, 408 ; Vance «. Schuyler, 1 Gilm. (6 lU.) 160 ; Alexander v. Merry, 9 Mo. 510 ; Young v. State, 7 Gill & J. 260 ; Wiley v. Bean, 6 111. 302 ; Davar v. CardweU, 27 Ind. 478 ; Doe v. Reed, 3 111. 371 ; Johnson v. Badger etc. Co. 13 Nev. 351 ; Morse v. Clayton, 21 Miss. 373 ; Carpenter v. Dexter, 8 Wall. 513 ; Bradford v. Dawson, 2 Ala. 203 ; Warner V. Hardy, 6 Md. 525 ; Hollingsworth v: McDonald, 2 Har. & J. 230 ; 3 Am. Deo. 545 ; Jaooway v. Gault, 20 Ark. 190 ; WeUs v. Atkinson, 24 Minn. 161 ; Halls V. Thompson, 1 Smedes Belcher v. Weaver, 46 Tex. 293, 298, citing Monroe v. Arledge, 6 HI. 476,'478 ; Dennis v. Tarpenny, 20 Barb. 376 ; Owen v. Norris, 5 Blackf. 479 ; Pardun v. Dobesburger, 3 Port. (Ind.) 389; Gregory's Heirs v. Ford, 5 Mon. B. 481 ; Langhome v. Hobson, 4 Leigh, 224. 2 Wells V. Atkinson, 24 Minn. 161. See Frostbnig Mut. Building Assoc. V. Brace, 51 Md. 508. 9 Todd V. Jones, 22 Iowa, 146; Bosentbal v. Griffin, 23 Iowa, 263; Hop- kins V. Delaney, 8 Cal. 85 ; Welch v, Sullivan, 8 Cal. 511 ; Davis v. Bogle, 11 Heisk. 315 ; Hunt v. Johnson, 19 N. Y. 279 ; Sheldon v. Stryker, 42 Barb. 284 ; Jackson v. Gumaer, 2 Cowen, 552 ; Thurman v. Cameron, 24 Wend. 87 ; TuUy v. Davis, 30 111. 103 ; Warner v. Hardy, 6 Md. 525. But see Gould v. Woodward, 4 Greene, G. 82. § 512 ACKKOWLEDGMENT OP DEEDS. 512 edge, uncoupled with that epithet. Instances may be stated wherein the difference is apparent; others may be imagined, ■where the distinction is not so easily drawn. No doubt the law intended, that as the officer acted under oath in taking proof of deeds, he should have knowledge of the identity of the grantor, or of the subscribing witness, as would enable him to swear that the grantor or witness was the person he represented himself to be. Its object was to prevent one person from fraudulently personating another. It is much to be desired that every officer who takes the acknowledgment of a deed would conform literally to the law. But we know that the convenience of our people require that the taking of the acknowledgment of deeds should be intrusted to those who are ignorant of the forms of the law who will take a proper acknowledgment and blunder in certify- ing it. Did it follow as a necessary consequence that any acknowledgment improperly certified, had been iu fact taken under such circumstances as were unwarranted by law, there would be no difficulty in settling this question. Because an officer omits to certify that the grantor was personally known to him, but merely says he was known, it cannot be inferred that the grantor was not personally known. The construction of certificates of acknowledgment have frequently engaged the attention of courts, and they all seem impressed with the import- ance of extending a liberal construction to these instruments."* * Alexander v. Merry, 9 Mo. 514, 525, per Scott, J. This case is cited and followed in Robson v. Thomas, 55 Mo. 581. In Jackson v. Gumaer, 2 Cowen, 552, the officer certified that the grantor was known to him, but did not add that he knew him to be "the person described in and who executed the deed." Chief Justice Savage, speaking for the court, said: "Were we called on to establish a form for such certificate, I should cer- tainly be for inserting that the grantor was known to the judge, or other officer taking the acknowledgment, to be the person described in the deed ; but the legislature could not expect the officer to know that the grantor described in the deed actually executed it, otherwise than by his acknowledgment, or proof by a witness. The form used in this case has been in very general use, and the practice in this respect may, perhaps, amount to a construction of the act. At all events, I am unwilling to say that titles which depend for proof upon certificates thus drawn, are to be put in jeopardy by the allowance of such a technical objection, for I can- not but consider the acknowledging officer drawing such a certificate as possessing all the knowledge required by the statute." In Sheldon v. Stryker, 42 Barb. 284, Lett, J., delivering the opinion of the court, says con- cerning a certificate when the word " personally " was omitted : "He says 513 acknowIjEdgment of dekds. § 513 § 513. Surplusage does not vitiate certificate. — A certificate that contains all that the law requires is not rendered invalid because it contains more than is necessary. The certificate is unaffected by the surplusage. If a certificate of proof by a sub- scribing witness of the execution of a deed shows a substantial compliance with the provisions of the statute, it is not vitiated by the fact that the witness adds his signature to the certificate and the oflScer appends a jurat in the form attached to an affi- davit.^ So, in Illinois, where the words "and does not wish to retract" are not necessary to a certificate of acknowledgment by a married woman, their insertion being superfluous, does not vitiate a certificate.^ And in the same State, where an acknowl- edgment by a wife to convey the fee of her separate estate, con- tained all that was required for that purpose, and also all that was required to release her dower, the court held that the redundancy did not vitiate the acknowledgment and aptly remarked: "Redundancy is a very uncommon objection to a that such witness was known to him. That is a substantial compliance ■with the requirement of the law. It is not necessary that the precise language of the statute should be used, and the officer cannot properly certify that he knows the person making the acknowledgment unless he ia personally acquainted with him." See Shaller v. Brand, 6 Binn. 478 ; 6 Am. Dec. 489. 1 Whitney v. Arnold, 10 Cal. 531. The certificate was in this form : "State of California, county of Sacramento. On this twenty-third day of December 1856, before me, a justice of the peace, m and for said county, personally appeared Eli Mayo, known to me to be the person whose name appears as a subscribing witness to the foregoing instrument, who being by me first duly sworn, declared that Henry A. Caulfield, known to affiant personally as the person described in, and who executed the fore- going conveyance, executed the same in the presence of affiant, and declared that he executed the same freely and voluntarily for the uses and purposes therein mentioned, whereupon affiant became a subscribing witness. In witness whereof I have hereunto set my hand. Eli Mayo. Subscribed and sworn to before me this twenty-third day of December, A. D. 1856. James Alexander, Justice of the Peace." Mr. Justice Field delivered the opinion of the court and said : " The form in which the proof of the execution of the deed to the defendant is presented is objected to. It is contended that it is not the certificate of the officer, but merely the affidavit of the subscribing witness. We do not think the objection well taken. The signature of the witness, and the addition of the usual jurat to an affidavit, were unnecessary, and may be rejected as mere sur- plusage. They cannot vitiate, by their presence, the certificate, if without them, it shows a substantial compliance with the requirements of the statute. Ko particular form is necessary to the certificate of the officer." 2 Stuart u. Dutton, 39 lU. 91. I. Deeds.— 33. § 513 ACKNOWLEDGMENT OF DEEDS. 514 certificate of acknowledgment. The complaint has been gen- erally, if not universally, that essential parts required by the statute have been omitted. But where all which the statute does require to effectuate the purpose claimed for the deed is in the acknowledgment, and also something else is put in which the statute does not require, we cannot believe that we should be administering the spirit of the statute or the principles of justice to hold that the useless redundancy in the acknowledgment invalidated the deed. It should simply be regarded as surplus- age."* So, where the law only requires that the clerk shall indorse a certificate of acknowledgment upon a sheriff's deed, the fact that he also adds a copy of the entry which he is required to make on his record, does not vitiate the certificate. It is superfluous matter and will be disregarded.^ If a clerk's certificate in authenticating the execution and acknowledgment of a deed states, " I further certify that the said instrument is executed, and proved or acknowledged according to the laws of this State," it is not so ambiguous as to exclude the deed from admission in evidence.' The objection urged against this certifi- cate was that the conjunction "or" between the word "proved" and the word "acknowledged" left it entirely uncertain which was done, and consequently there was no authentication in favor of either. But the court approved the rule that "courts will uphold a certificate if possible, and for that purpose will resort to the instrument to which it is attached,"* and added, "it is only needful to apply this rule to demonstrate that the clerk in using the word 'proved' where it appears was simply guilty of tautology. He meant by it precisely what the word ' acknowl- edged' fully and sufficiently expressed. He referred to the certificate of acknowledgment which appeared before him on the deed, and not to a certificate of 'proof,' which did not appear. There was nothing else to which his authentication could apply, and it is only necessary to refer to it as he did to the certificate of acknowledgment to uphold the proceeding."* 1 Chester v. Rumsey, 26 111. 97, 99. 2 Crowley v. Wallace, 12 Mo. 143. See also Bradford v. Dawson, 2 Ala. 203 ; Draper v. Bryson, 17 Mo. 71 j 57 Am. Dec. 257 ; Tourville v. Pierson, 39 111. 440. ' Nelson v. Graff, 44 Mich. 433. * As given in Carpenter v. Dexter, 8 Wall. 513. ' Nelson v. Graff, 44 Mich. 433, per Graves, J. 515 ACKNOWI^BGMENT OP DEEDS. § 514 § 514 Clerical mistakes in the certificate. — The courts attempt to give a liberal construction to certificates of acknowledgment. Acknowledgments are frequently taken before persons of limited skill and knowledge, and -while all the requirements of the law have been carefully and scrupulously complied with, yet errors will creep into the certificate, which manifestly are clerical. To scrutinize these certificates with severity and declare them insuf- ficient for slight variations, or evident errors, where they sub- stantially comply with the statute, would subserve no desirable end. As an illustration of these remarks, and also of the care- lessness with which these certificates are sometimes written, attention may be directed to a case where the certificate of acknowledgment of a married woman, stated that "the contents and meaning of said husband were fully explained and made known to her," instead of using the word "deed" in place of "hus- band." The word "husband" was considered a mere clerical error, and the certificate was held sufficient as a substantial compliance with the statute.* So where the certificate of acknowl- 1 Calument and Chicago Canal Co. v. Bussell, 68 111. 426. Mr. Chief Justice Breese delivered the opinion of the court, and said : " But appellee says it was not the contents and meaning of this deed which was explained to her by the magistrate, but 'the contents and meaning of my husband.' She insists that the contents and meaning of the deed were not explained to her. This certificate must be regarded in a common-sense view ; all its parts must be taken together, and a meaning given to it which it is qnaliiied to bear. The only question is, taken as a whole, is it in substantial com- pliance with the statute? It is not denied the certificate is completely formal in every respect, save and except that, instead of the contents and meaning of the deed being explained to her, the meaning and contents of her husband were so explained to her. This is arrant nonsense, but it does not necessarily vitiate and render void the acknowledgment. The mean- ing and contents of something were explained to the wife, and made known to her, and what that something was, is apparent from other por- tions of the certificate, and shows how the blank should have been filled, filling it with the word ' husband ' renders the subsequent portion of the acknowledgment senseless and unmeaning. Placing there the proper word, or leaving it a blank, the vacancy is supplied by the subsequent tenor of the certificate. The magistrate certifies she acknowledged she executed the same — what same ? Why the paper or instrument brought to the notice of the magistrate, the execution of which the parties appeared before him to acknowledge. She also relinquished her dower in the premises therein described, ' freely and voluntarily, and without the fear or compulsion of her said husband.' Described in what? Was this a farce being enacted before this officer? No, the parties were rational beings, of business habits, selling real estate every day. To what did § 515" ACKNOWLEDGMENT OP DEEDS., §16 edgment is full and complete in all its parts, except that the word "his" is omitted before the statement "free and voluntary- act," the omission is immaterial, and does not affect the validity of the certificate.^ § 515. Other iUttstrations. — In a mortgage executed by a corporation, the word "be" was omitted in the certificate, caus- ing it to read "personally appeared H. G. Rollins, known to me to — the president of the Badger Mill and Mining Company," etc. This was held a clerical error, which should be disregarded.* In a certificate of acknowledgment of a mortgage executed by a cor- poration, by its attorney duly appointed for that purpose, it was stated that the attorney appeared before the oflBcer, and " acknowl- edged the foregoing mortgage to be his act and deed." The she allude when she 'relinquished her dower to the premises therein described ? ' Certainly to nothing else but the deed, the execution of which they had come before the oflScer to acknowledge. Where were the premises described, and what did she mean when she said 'therein described 7 ' Could anything else be meant or understood but the deed ? These all make certain what word was intended to be put in the blank, but which, by the carelessness of the oflcer, was not inserted. The doc- trine of this court is, that a certificate of acknowledgment need not be in literal compliance with the statute, but is su£Bicient if there be a substantial compliance. It is very apparent from this certificate, that the officer per- formed every act essential to make a valid acknowledgment by the wife. , There can be no doubt it was a deed conveying these lands, signed by her, the contents known to her, its execution her free and voluntary act, done without the fear or compulsion of her husband, and to which lands she fully and freely relinquished all right of dower." 1 Dickerson v. Davis, 12 Iowa, 353. "From the record," say the court, '^we should judge that the notary had a printed form, and in filling it up failed to insert this personal pronoun, there being a space left therefor in the acknowledgment. It is very manifest, however, that the mortgagor acknowledged the instrument to be Ms free and voluntary act, and not that of another ; and equally clear that the acknowledgment was by Davis, the proper party, and not by a third party. The statute requires, among other things, that the certificate shall show that the party acknowledged the instrument to be his voluntary act and deed. This may be shown, however, by the tenor and form of the certificate, so as to admit the instru- . ment to record, and impart constructive notice thereof to third persons, as weU as by the use of the very words, and all of the words of the statute. , Of this character was this certificate, and there was no error, therefore, in overruling the objection to the evidence: Bell v, Evans, 10 Iowa, 853; Wickersham v. Beeves, 1 Iowa, 413 ; Pickett v. Doe, 5 Smedes & M. 470 ; 43 Am. Dec. 523 ; Owen v. Norris, 5 Blackf. 479 ; Vance v, Schuyler, 1 Gilm. 160 ; Merriam v. Harsen, 2 Barb. Ch. 232." 2 Johnson _». Badger MiU Co. 13 Nev. 851. 517 AGENOWIiEDGMENT OP DEEDS. § 515 court held that although the certificate stated that the attorney- acknowledged the instrument as his act, yet the import of it was that the deed was acknowledged to be the act of the corporation.* The omission of the word "appeared" in the place in which it is usually inserted, is a clerical error, and does not vitiate the certificate.* A certificate of acknowledgment of a deed made by a married woman complied with the law in all respects, except instead of saying that the contents were made known to her, it stated " the contents of said indenture being first made fully to her," the word "known" being omitted. The certificate was held to be in substantial compliance with the statute, unaffected by the clerical omission.* A certificate of acknowledgment to a deed in which the instrument is described as "the foregoing mortgage," is a clerical error, and does not impair the sufficiency of the certificate.* But where a deed was executed by the sheriff who made the sale, and appeared to have been acknowledged by his predecessor in office who made the levy, it was held that the court could not assume that the certificate of acknowledgment ' Frostbnrg Mut. Building Assoc, v. Brace, 51 Md. 508. ' Scharfenburg v. Bishop, 35 Iowa, 60. ' Hornbeck v. Building Association, 88 Pa. St. 64. Mr. Justice Mercur, who delivered the opinion of the court, said : " The certificate in the present case, states the separate examination of the wife, and that she declared that she signed, sealed, and delivered the same without any coercion or com- pulsion of her said husband. To be valid as against her, it must also state substantially, that the contents were made known to her. Does it do this, ' the contents of said indenture being first made fully to her ? ' We should so construe these words as to give some effect to them, rather than discard them as void of all meaning. It certainly was not a violent presumption to infer that the word ' known ' was inadvertently omitted after the word 'fully,' which the learned judge appears to have done. To rebut such presumption, he admitted parol evidence to show that the con- tents were not made known to her, and that she did not know them. The correctness of this ruling is not now before us, and we indicate no opinion thereon. We prefer to sustain the certificate by giving full effect to the meaning of the language used, without the addition of a single word. The contents being ' made fully ' to her is equivalent to saying they were ' fully made ' to her. To say they were fully made to her, clearly implies they were communicated to her. If communicated they were made known to her. If the certificate stated that the contents were ' fully communicated to her,' it would have removed all cavil as to their import. The words used are substantially of the same signification and tantamount thereto." * Ives V. KimbaU, 1 Mich. 308. See also Hughes v. Laine, 11 111. 123 ; 50 Am. Dec. 486 ; Stevens v. Doe, 6 Blackf. 475 ; Owen v. Norris, 5 Blackf, 479 ; Belcher v. Weaver, 46 Tex. 293 ; 26 Am. Rep. 267. §§ 516-517 ACKNOWLEDGMENT OF DEEDS. 518 contained a clerical error, and that thp deed was acknowledged by the same sheriff who executed it.' § 516. Omission to state immaterial facts. — A statute in Ala- bama provides that "any deed of conveyance of real estate may be admitted to record if acknowledged by the makers thereof, or be proved by any of the subscribing witnesses thereto, and^the following sball be the form of the certificate of acknowledg- ment or probate of all deeds: "Personally appeared before me, etc., the above named A B, who acknowledged that he signed, sealed, and delivered the foregoing deed, on the day and year therein mentioned, to the aforesaid C D." A certificate to a deed proper in other respects omitted the clause "on the day and year therein mentioned." This was held to be an imma- terial fact, whose omission did not invalidate the certificate. "The deed is to be registered," say the court, "to give notice of its existence, and is to be acknowledged or proved to have been executed before it is recorded, merely to prevent a spurious instrument from being placed upon the records of the county. That is all that the statute requires, and the entire object of the registry being notice, it would be most unreasonable to infer, in the absence of any statute requiring it, that the certificate of the officer taking the probate or acknowledgment should state any- thing which the statute had not made a prerequisite to such registration. Whether the deed was executed on the day of its date, and all other matters necessary to its validity, must be established by those claiming under the deed, if their title is questioned. The statement of these facts would be there- fore wholly useltss, to say the least, in the certificate of the niagistrate."^ § 517. Comments. — It certainly seems reasonable that courts should go no farther than to say that an inartificial or imperfect statement of a fact required to be stated should not vitiate a cer- tificate. But when they go beyond this, and declare that any- thing specified in the statute is an immaterial fact, they let 1 Lincoln v. Thompson, 75 Mo. 613. 2 Hobsou V. Kissam, 8 Ala. (N. 8.) 357, 363. See Bradford v. Dawson, 2 Ala. 203 ; Carter v. Cbaudron, 21 Ala. 72. 519 ACENOWliEDGMENT OP DEEDS. § 518 down the barriers that the law has thrown around the execution of conveyances. If one fact can be declared to be immaterial, so can another. The safer rule, undoubtedly, is to hold that every fact mentioned in the statute should be stated in some manner, but to extend the utmost liberality of construction to imperfect statements where there has been substantial compliance with the statute. This course might, in a few particular instances, be attended with hardship, but on the whole would be preferable to attempting to separate what is material from what is not, when the statute makes no such distinction. §• 518. Pact must appear that grantor was known to officer, or Ms identity established. — The acknowledgment of deeds is one of the means provided by law for the proof of their execu- cution. In an ordinary certificate of acknowledgment there are two essential facts to be stated. One of these is that the person who acknowledges the instrument is known to the officer taking the acknowledgment, or is proven by the oath of a credible wit- ness to be such person. The other is that the person so known or identified to the officer acknowledged the instrument. The law accepts the certificate of the officer that a certain person is known to him by a certain name as evidence that that is his true name. Hence, if the certificate fail to show in some manner that the person who' acknowledges the instrument is known to the officer, it is insufficient.' The ^t that the person was known > Gove V. Gather, 23 HI. 634 ; 76 Am. Deo. 711 ; Pogarty v. Finlay, 10 Cal. 239 ; 70 Am. Dec. 714 ; Kimball v. Semple, 25 Gal. 440 ; Hayden v. Westeott, 11 Gonn. 129 ; Fall i;. Boper, 3 Head, 485 ; Smith v. Garden, 28 Wis. 685; Lindley v. Smith, 46 111. 523; Gamier v. Barry, 28 Mo. 438; Brinton v. Seevers, 12 Iowa, 389 ; Becker v. Quigg, 54 111. 390 ; Miller v. Link, 2 Thomp. officer states that the grantor is " personally known " to him is a compliance with the statute.* did not show that the grantors were personally known to the officer as the persons who executed the deed. In Peacock v. Tompkins, 1 Humph. 135, the court, per Judge Reese, say : " The certificate is certainly defective in omitting to state that the clerk was acquainted with the bargainer, and perhaps in other particulars. The forms of certificate prescribed by the statutes in cases of probate and acknowledgment must be substantially complied with by the clerk to make the registration effective." « Kelly V. Calhoun, 95 U. S. (5 Otto) 710. But see Hiles v. La Flesh, 59 Wis. 465. In California, under the statute which requires that the knowl- edge or proof of identity shall be stated in the certificate of acknowledg- ment, Mr. Justice Terry, in delivering the opinion of the court, said, in the case of Wolf v. Fogarty, 6 Cal. 224, 65 Am. Dee. 509 : " The importance and necessity of this strictness in regard to conveyances is obvious. The certificate under consideration does not comply with the statute, inas- much as it does not state that the person making the acknowledgment was either known to the notary or proven to be the person whose name was signed to the conveyance. It is contended that the certificate sub- stantially complies with the law, as it contains a positive averment that the party making the acknowledgment was the party whose name was subscribed to the conveyance, and this averment must be construed to be upon the personal knowledge of the officer. According to our under- :ste.nding of the language, the certificate does not contain such a statement ; the words are ' personally. Constant A. Duprey to be the person,' etc ; there is evidently an omission in the certificate which may be supplied as well by claiming or representing himself as by known or proved. We think the record of a conveyance with a certificate so defective is not notice of title to third parties." See Henderson v. GreweU, 8 Cal. 581. In Reynolds v. Kingsbury, 15 Iowa, 238, where the omission of the word 'known' was held to vitiate the certificate, the court say : "A certificate of acknowledgment is good, though not in the language of the statute, provided the words used substantially comply with the object and- meaning of the law : Cavender v. Heirs of Smith, 5 Iowa, 157. It is sufficient if the words used have the same force and import ; Wickersham v. Reeves and Miller, 1 Iowa, 413. Not so, however, where the certificate is wanting in language which approximately or otherwise meets the requirements of the statute." In Tnlly v. Davis, 30 111. 103, the certificate had a blank space where the word " known " usually appears, the certificate reading : "This day per- sonally appeared before the undersigned, a justice of the peace in and for said county, Henry M. Trabue, who is personally to said justice to 521 ACKNOWIiEDGMENT OF DEEDS. § 519 g 519. Statement that officer is satisfied of identity insuffi- cient. — The officer is required to state that the grantor is known to him, or his identity has been proven by credible testimony. Any other statement will not suffice. A certificate of acknowl- edgment stated that the officer was saHsjkd that the person acknowledging the instrument w^ the grantor named in the deed. This, however, was held insufficient. " The certificate, by whomsoever made, must state that the maker of the instru- ment was known to him, or proven to him to be the person who executed the instrument. If he is 'satisfied,' he must state how, whether by personal knowledge or by the sworn testimony of a credible witness, whose name is inserted in the certificate."* Similar language is used by Mr. Justice Breese of Illinois, in a case where a certificate was held insufficient for the officer's omission to state his knowledge of the identity of the person. " He does not certify that the person executing the power of attorney is personally known to him as the real person in whose name it is executed. 'I am satisfied,' are not equivalent wordg. How satisfied? This should be made apparent in the mode to be the real person who executed the foregoing deed, and who there before said justice acknowledged that he signed, sealed, and delivered said deed," etc. The certificate was held insufficient. Chief Justice Caton said : " The objection to the certificate is that the word ' known ' is omitted after the word ' personally,' and in its place a blank is left ; that is to say, the officer does not certify that he personally knew that the person who made the acknowledgment was the grantor named in the deed. We must undoubtedly be able to learn this fact from the certificate or it is defective. It is certainly true that the officer has not stated this fact in this certificate, It is the statement of this knowledge which he has omitted. Whether he omitted this because he had not such knowledge, or because of careless- ness, we cannot know. Even if it were impossible to fill this blank with any other word or set of words, and make sense, except the word ' known,' we should not be authorized so to fill the blank, for then we should do what the law has required the certifying officer to do. But it is, in fact, as easy to fill the blank so as to make the cei'tificate and acknowledgment void as to so fiU it as to make them good. Who shall say that if the officer had filled the blank with a statement of the truth, he would not have inserted words negativing the fact that he had a personal knowledge of the identity of the grantor? But the simple tjuth is, we have no right to fill the blank at all. We might as well help out any other important part of the certificate by a favorable supposition or intendment as this." And see Jackson v. Osbom, 2 Wend. 555 j 20 Am. Dec. 649 ; Livingston v. Kettelle, 1 Gilm. 116; 41 Am. Dec. 166. I KimbaU v. Semple, 25 Cal. 440, 446, per Bhodes, J. §§ 520-521 ACKNOWLEDGMENT OP DEEDS. 522 there [in the statute] pointed out, either by personal knowledge or by proof by a credible witness. The certificate not furnish- ing this most necessary proof, is defective." ^ But where the form given in the statute was that the grantor, " known to me to be the person whose name is subscribed to the foregoing instrument, acknowledged," and the certificate stated that the grantor, "to me well known, acknowledged," it was held sufficient.^ § 520. In some States officer not required to certify to personal identity. — In Connecticut, the rule seems to be that the pre- sumption that the officer who took the acknowledgment acted rightly is deemed sufficient, and he is not required to certify his actual knowledge of the identity of the person.' Formerly in New York, all that the statute required to entitle a deed to registration was that the grantor should acknowledge it, a,nd by this act all that the officer was required to do was to certify the fact of acknowledgment. The^tatute, however, was subsequently amended so as to require the officer to certify his personal knowl- edge of the grantor.* § 521. Pact of acknowledgment must appear. — In the statutes relating to acknowledgments, there is one fact that they all require should exist and should appear in the certificate; that is, that the grantor acknowledged that he executed the instrument. It is not indispensable that the word " acknowledge " should be used, if the fact is made to appear by equivalent expressions that the deed was in fact acknowledged. Unless tiiis fact does appear, the requirements of the statute are not satisfied and the certifi- cate is insufficient.' The omission of the word " acknowledged " is not one of those clerical errors which do not affect the certifi- cate, but the failure to insert it, or an equivalent expression, is a fatal defect, and the omission cannot be filled by intendment or • Shephard v. Carriel, 19 lU. 313, 319. But see Pinokney v. Burrage, 31 N. J. L. 21. 2 Watkins v. HaU, 57 Tex. 1. ' Sanford v. Bulkley,^0 Conn. 344, 348. * Bradstreet v. Clarke, 12 Wend. 602, 673 ; Crowderi). Hopkins, 10 Paige, 183, 189 ; Nortlirop v. Wriglit, 7 Hill, 476. 6 Stanton v. Button, 2 Conn. 527 ; Blyan v. Ramirez, 8 Cal. 461 ; 68 Am. Dec. 340 ; Short v. Conlee, 28 111. 219 ; OabeU v. Grubbs, 48 Mo. 353 ; Dewey V. Campau, 4 Mich. 565. 523 ACKNOWLEDGMENT OP DEEDS. § 522 construction. "A court cannot," says Chief Justice Swift, "by intendment or construction, fill a blank or supply a word. They can only decide on the meaning and import of the words made use of. Here the words made use of can only import that the person appearing before the justice of the peace was the signer and sealer of the deed ; they do not import that he acknowledged it, nor are they equivalent to such word. The certificate, theu^ cannot be made to contain an acknowledgment of the deed, without supplying the word, or supposing the blank to be filled with the word 'acknowledged.'"' One of the objects of the statute is to have the acknowledgment opei-ate as an estoppel, and in otder that it may have that effect, it is required that the cer^- tificate should state the fact of acknowledgment.^ Hence it is held that a certificate of acknowledgment is void when made simply on the assurance that the grantor acknowledged the deed." § 522. Equivalent words indicating acknowledgment may be used. — The law looks to substance and not to form. It requires that the fact of acknowledgment must be stated, but it does not prescribe any particular language which shall express this fact. Naturally, the most convenient and acceptable method of declar- ing that an instrument was acknowledged is to use the word "acknowledge." Then, there is left nothing to construe, and all ' Stanton v. Button, 2 Conn. 527. » Bryan v. Ramirez, 8 Cal. 461, 464 ; 68 Am. Deo. 340. " It is ' the fact of acknowledgment' that forever afterwards binds the party. Although a man may not execute the instrument freely, in point of fact, yet if he make the acknowledgment properly, he is afterwards estopped to deny it, as against subsequent innocent parties." See Henderson v. Grewell, 8 Cal. 581. In CabaU v. Grubbs, 48 Mo. 353, 356, it is said by Currier, J.: "The acknowledgment was e.ssential and the proof of it is wanting. The sheriff appeared before the court, apparently for the purpose of acknowledging the deed, but that he did so does not appear. The paper read in evidence as the certificate of acknowledgment fails to show what was done, beyond the fact that the sheriff appeared before the court. The certificate not only omits the word ' acknowledged,' but contains no word or words expressive of any equivalent idea. To hold this acknowledgment good, would be equivalent to holding a sheriff's deed good without any acknowledgment. The omission may have been the merest inadvertence, but it is an omis- sion which the court cannot supply. It constituted the vital part of the acknowledgment, and no rational liberality of construction can cure the defect. In a word, the certificate contains nothing on the point in ques- tion to construe." » Mays V. Hedges, 79 Ind. 288. § 523 ACKNOWLEDGMENT OF DEEDS. '524 doubt about other terms being equivalent is dispersed. But if other words are used of equivalent import, the certificate will be sufficient. A certificate that the grantor made oath that he signed, sealed, and delivered the deed, is valid as a certificate of an acknowledgment, though placed in the form of an affidavit;^ In a certificate of acknowledgment to a deed by a corporation, the officer certified that the president appeared, and being duly sworn, deposed and said, that the seal affixed to the instrument was the corporate seal of the company, and was so affixed by authority of the board of directors of the company for the uses and purposes therein expressed, and that he by like authority did subscribe his name as president. Although the certificate did not contain the word "acknowledge" it was held to contain words of equivalent import.^ Where the statute requires the officer to certify that the grantor "acknowledged that he signed, sealed, and delivered the foregoing deed," a certificate that he "acknowledged the foregoing instrument to be his act and deed," is sufficient.' A certificate of acknowledgment which states that the grantor of an annexed deed " acknowledged it," is a sufficient compliance with a statute which requires him to "acknowledge the execution of the annexed deed." "An acknowledgment," says Gregory, J., " of the deed is an acknowledgment of its exe- cution ; it cannot be a deed unless it is executed, and therefore we think that the certificate in question is in substantial com- pliance with the statute."* But it is held that the word "stated " is not the equivalent of the word "acknowledged."* § 523. Omission of the word "voluntary." — In Iowa, it is held that under the statute of that State the word "voluntary" ' Ingraham v. G*igg, 13 Smedes & M. (21 Miss.) 22 ; Chouteau v. Allen, 70 Mo. 290. ' Chouteau v. Allen, 70 Mo. 290. » Halls V. Thompson, 1 Smedes & M. (9 Miss.) 443. On page 489, the court say : " This is, in efifect, a good acknowledgment. A deed is a writ- ing signed, sealed, and delivered. The words used by the justice mean then everything that the statute requires. It is in legal effect a certificate that he acknowledged that he signed, sealed, and delivered the deed— for it was not his deed unless he had done all these things." See also Kainey V. Gordon, 6 Humph. (25 Tenn.) 345 ; Smith v. Williams, 38 Miss. 48 ; Dora «. Best, 15 Tex. 62. ' Davar v. Cardwell, 27 Ind. 4 ° Dewey v. Campaa, 4 Mich. 5 325 ACKNOWLEDGMENT OP DEEDS. §. 524 in the acknowledgment of a deed is of the essence of the acknowl- ment and its omission fatal. A certificate showed that a deed was acknowledged to be the act and deed of the party, but did not state that it was his voluntary act and deed. The court said: "The word 'voluntary,' under our statute, is made an important word, and is, in fact, of the essence of the acknowledg- ment. Have there been words used in the acknowledgment before us of like import? There have not. There is a clear, legal distinction, which has ever existed between a man's deed and his voluntary deed."* In Nebraska, under the statutory requirement, that the grantor must acknowledge the instrument to be his voluntary act and deed, it is held that a simple state- ment that the grantors appeared before the officer " and acknowl- edged that they executed the same" renders the certificate of acknowledgment invalid, but that there is a substantial compli- ance with the statute if the certificate states that the grantors acknowledged the instrument to be "their voluntary act."* § 524. Omission of certain words nnder particnlar statutes. — With the exception of the statement that the person was known to the officer, and that the instrument was acknowledged, it is impossible to lay down any rule that will harmonize the decis- ions upon what words may be omitted. Without invalidating the certificate we believe that all facts required by the statute should be stated, and their omission held fatal. But clauses are found in the statutes descriptive of certain acts, and the conflict arises among the decisions as to what omissions will invalidate the certificate and what will not. In Arkansas, it is held that the omission of the words " for the consideration and purposes therein set forth," vitiates a certificate of acknowl- edgment, for the reason advanced by the court that "we must suppose that these words were used in the statute for 1 Wickersham v. Beeves, 1 Iowa, 413, 417; Newman v. Samuels, 17 Iowa, 528 ; DJokerson v. Davis, 12 Iowa, 353. But in Henderson v. Grewell, 8 Cal. 581, 584, the court say : "The certificate in this case sufficiently states the identity of the party. The fact of acknowledgment is also sufficiently stated. It is true that it does not state that the party executed the instru- ment ' freely and voluntarily ' ; but this is not essential, and the voluntary execution of the instrument must be presumed, from the fact that he acknowledged that he ' executed the same.' " ' Spitznagle v. Van Hessch, 13 Neb. 338. I 524 ACKNOWLEDGMENT OF DEEDS. 526 some useful purpose, and we have been able to find no author- ity to warrant their omission." ^ In Texas, the statute prescribed that a married woman should declare that she " did freely and willingly sign and seal the said writing, to be then shown and explained to her, and shall acknowledge the said deed or writing so again shown to her to be her act." ^ A certificate of acknowl- edgment stated that " she declared she had willingly sealed and delivered the same, and that she wished not to retract it," etc. The court held that though the certificate was correct in other respects, it was fatally defective in omitting to state that she willingly signed the instrument.^ The statute in that State also provides that the grantor shall declare that he executed the deed ' Jacoway v. Ganlt, 20 Ark. 190, 194. In the same State, in the later case of Little V. Dodge, 32 Ark. 453, Chief Justice English says on page 458 : " The notary puts the husband and wife together in the commencement of the certlfioate, and says that they ' acknowledged that they had signed and sealed the same (the deed) as their act and deed,' and then he drops the husband and takes up the wife. As to the husband, the words, 'for the consideration and purposes tlbierein mentioned and se| forth,' are wholly wanting, and such an omission was held to be fatal for the jiurposes of registration, in Jacoway v. Gault, Adm'r. In this case the certificate of the notary as to the life's acknowledgment omits the words of the- statute, ' for the purposes therein contained and set forth,' and no words of similar import are used. The wife is not required to declare that she had executed the instrument for any consideration, for that may go to the husband, but she must declare that she executed it for the ' purposes therein contained and set forth ' in the language of the statute, or in words of similar import, for she thereby indicates that she Is acquainted with, or understands the nature of the conveyance, whether it be an absolute deed, a mortgage, or a lease, etc. It is important that she should know the purposes and con- tents of the instrument which she is asked to execute, and the certificate of the ofllcer taking the acknowledgment should, by words substantially equivalent to the language of the statute, show that fact. It is safer and better to follow the language of the statute, and to use approved forms. The guards which the law-makers have placed around the wife to protect her against imposition in the disposition of her estate, are not to be dis- regarded or displaced by the courts, but to be maintained, and the spirit and intention of the statute enforced." 2 Smith V. Elliott, 39 Tex. 201, 208. The court said : " It will be observed that the certificate does not show that she wiUingly signed the instrument ; nor is there in the acknowledgment any equivalent word or expression. There is a clear omission of a material substantive part of the necessary acknowledgment to bind a married woman, whether the conveyance be 6f her separate property or of a homestead It is true the very form of words laid down in the statuto need not be followed, but no form that leaves out any substantive ingredient of the form laid down will be sufficient." 527 ACKNOWLEDGMENT OF DEEDS. § 52& "for the consideration and purposes therein stated." But the omission of the word "consideration" in the certificate of acknowledgment does not affect its validity.^ In Ohio, a cer- tificate of the acknowledgment of a married woman stated that she declared " that she signed the same without the fear or com- pulsion of her said husband," omitting the word " sealed " found in the statute. The court, however, considered that this omission did not affect the certificate.'' § 525. FresTuning an acknowledgment. — As the fact of acknowledgment is one of the most essential things to a valid acknowledgment; a certificate which omits to state this fact is invalid. It cannot be presumed, but must either appear by the words used in the statute, or expressions equivalent in meaning. Decisions, however, may be found which do not sup- ' Monroe v. Arledge, 23 Tex. 478. "A Literal compliance with the statute," says the court, " is not required in authenticating instruments for record, provided there has been a substantial compliance. There must always be such a compliance as meets the objects of the requirements in the statute. The object sought to be attained mainly in the authentication of an instrument for record, is the ascertainment of the fact that the grantor did execute it. When it is authenticated by the proof of a witness, who saw it executed, it is only necessary for him to state on oath that he saw the grantor 'subscribe the same' : Hart Dig. art. 2791. It is not necessary to the validity of a deed, that the real consideration upon which it is made, should be ' therein stated ' ; and indeed such is very often not the case- Nor would an acknowledgment by him for record, in strict compliance with the statute, preclude him from showing that the consideration and purposes of the deed were other and different from those therein stated. The material matter then embraced in the acknowledgment is the execu- tion of the deed. In this case the grantor is shown by the certificate to have acknowledged that he executed the deed for the purposes therein stated. The deed itself must import a consideration if none be expressed ; and if one be expressed, it is not material that the one expressed be the one upon which it was actually made. This, then, is a formal part of the certificate, which for the sake of regularity should be inserted, but its omission does not invalidate the certificate." And see ajso Belcher v. Weaver, 46 Tex. 294. 2 Barton's Lessees v. Morris' Heirs, 15 Ohio, 408. On page 423, the court say : " The signing and sealing and delivery were all done at the same time. This appears from the testatum clause of the deed, and from the attestations of the subscribing witnesses. The signing and sealing are one act, done at the same time. The signature adopted the seal already prefixed, and made the same the seal of the grantor, so that in point of fact there could be no separation. If the signing was done voluntarily, it is impossible the sealing was qot equally so." But see Toulmin v. Heidel- berg, 32 Miss. 268. § 525 ACaKNOT^IiEDGMENT OF DEEDS. 528 port this view, and althougli they do not, in our opinion, state the law outside of the State in which they were rendered, and are opposed by the great mass of authority, it is proper that they should be noticed. In a late case in Maryland, a mortgage executed by a corporation, appointed in its last clause a certain person its attorney " for it, and in its name, and as its act and deed, to acknowledge the mortgage before any person having authority by the laws of the State to take said acknowledgment, in order that the same may be duly recorded." On the same day that the mortgage was executed, the attorney appeared before an officer who certified that " personally appeared W. S., he being known to me to be the person who is named and described as and professing to be the attorney named in the let- ter or power of attorney contained in the foregoing mortgage or instrument of writing to be the act and deed of," etc., omitting after the word "writing" the words "and acknowledged said mortgage." The court held that the omitted words were sup- plied with positive certainty by the context, and that what might be clearly implied was of the same effect as if it had been expressed in terms.^ In an early case in New York, where ' Bashor v. Stewart, 54 Md. 376. In its opinion the court said : " In aid of ttiis certificate, we are required to read it in connection with the other parts of the instrument ; and we must, moreover, bear in mind that every reasonable intendment should be made in support of the certificate and the instrument to which it is attached. And so reading the certificate, is there a doubt left in the mind as to what was done by the attorney before the justice, and what act was intended to be certified by that officer ? The attorney was authorized by the deed itself to make the acknowledgment, and nothing else. It is but fair to presume that he did what he was authorized to do, and nothing to the contrary. He was certainly before the justice, and it is equally certain that he performed some act there whereby he affirmed the mortgage ' to be the act and deed of the Mary- land Inebriate Asylum.' What other act than the acknowledgment of tke instrument according to the authority? If from the face of the whole writing, including the certificate, we have enough before us to enable us to determine with certainty what was done, and that the act done was in accordance with the authority delegated, we cannot consistently, with any fair intendment in support of the acknowledgment, declare it invalid. Here the reading of the acknowledgment, in view of the other evidence furnished by the deed, leaves no doubt as to the act that was done, and the words omitted, by mere clerical misprision, are supplied by the context with positive certainty. What may be clearly and fairly understood or implied, in reading the acknowledgment in connection with the deed, is of the same effect as if it had been in terms expressed. In the case of 629 ACKNOWLEDGMENT OP DEEDS. § 526 a certificate made in 1711 of an acknowledgment of a deed stated that the grantor and his wife came before the officer " to acknowledge this indenture to be their acts and deed," it was held that the certificate did not import alone that the parties came before the officer to acknowledge the deed, or with that intent, but also that they did acknowledge it, and that it would be presumed, after such a lapse of time, that the wife was privately examined.* § 526. GOBUnents. — These decisions, if they go to the extent that a certificate may be sufficient, which omits to state that the grantor acknowledged the execution of the deed, are in direct conflict with the cases cited in other portions of the treatise, and cannot, by either reason or authority, be supported. While in the case cited from Maryland, it would seem that the facts war- ranted a different conclusion from that reached by the court, yet the decision itself proceeds upon the ground that the certificate bore internal evidence that the deed was in fact acknowledged, and the court places its ruling on that ground, observing: "Of course, we are not to be understood as giving sanction to any Wickes V. Caolk, 5 Har. & J. 36, the deed offered in evidence' was dSitedi the 6th of October, 1707, and the acknowledgment was certified: to have been made ou the 6th of October, but omitted to state the year, and the deed was recorded on the 8th of Jamiary, 1707. There, by inference and intendment, the time of recording was made to correct the date of the deed, and to supply the particular year in the acknowledgment. So, in the case of Kelly & Martin v. Rosenstock & Stein, 45 Md. 389, the mort- gage bore date the 6th of August, 1872, but the particular day of the month of August, 1872, upon which the acknowledgment was made, was omitted to be stated ; and this court held that by looking to the date of the mort- gage, and the clerk's certificate indorsed thereon of the time when it was filed for record, the particular day of the month when the acknowledgment was made was with certainty supplied." • Jackson v. Gilchrist, 15 Johns. 89. The court said : " The inference drawn by the counsel from the form of the certificate of acknowledgment (that the parties came before the magistrate to acknowledge, etc.), that no acknowledgment in fact was made, cannot be correct. An acknowledg- ment was deemed necessary, and the parties went before the officer for the purpose of making it ; and it would be a most unreasonable conclu- sion that it was not, in fact, done. The officer could hardly have been guilty of so absurd and nugatory an act as to give a formal certificate that the parties came before him to acknowledge the deed, if they did not actually acknowledge it." I. Deeds.— 34. § 526 ACKNOWIiEDGMENT OP DEEDS. 630 loose construction of these certificates. On the contrary, if we perceived that there was reasonable doubt as to the meaning and real import of the certificate in question, we should feel bound to declare it invalid." This case may then, perhaps, be consid- ered not an affirmance of the proposition that the omission to state the fact of acknowledgment is a mere clerical error, but merely that under the particular circumstances of the case, it appeared from the certificate and mortgage that the instrument was actually acknowledged. In the case in New York, the deed was an ancient conveyance, and the portion of the decision relative to the separate examination of the wife was a dictum as a curative statute enacted in 1771, providing that no claim to real estate of which a person was in possession should be defeated by the pretense that the wife had not been separately examined. As an ancient deed, it was fair to indulge the pre- sumption of a proper acknowledgment, and the case then becomes similar to one in New Jersey, where, on a deed made in 1784, a judge, in accordance with the statute then in force, indorsed a certificate that the party "signed, sealed, and deliv- ered the within deed, in the presence of one Petrus Haring, have perused the same, find no erasures or interlineations, and allow the same to be recoi"ded." The statute did not prescribe any particular form of acknowledgment. The court held the cer- tificate sufficient, Elmer, J., who delivered the opinion of the court, saying: "Nearly eighty years have elapsed since the making and recording of it, and the premises therein decribed, -or at least a considerable part thereof, had been held under it by the grantee and his heirs or assigns. The certificate plainly imports that the deed was acknowledged, if not in words, by significant and unmistakable signs. An acknowledgment in "words from the mouth was not essential ; if it was, a deaf and dumb grantor could not have made one. By actually signing, sealing, and delivering the deed in the presence of the judge, the grantor just as plainly acknowledged it to be.his deed as if he Jiad so declared by vocal sounds, And if a verbal acknowledg- ment was necessary, I think it ought now to be presumed to have been made."^ » Hoboken land and Improvement Co. ti. Kerrigan, 81 N. J. L. 13. 531 ACKNOWLEDGMENT OP DEEDS. § 527 § 527. Certifying admowledgment on same paper on whicli deed is printed or written. — Generally, it is not necessary to certify the acknowledgment on the same paper on which the deed is written. The general practice is for the officer to attach his certificate on a separate sheet of paper to the conveyance. But where a statute requires the certificate to be written on the same paper on which the deed is printed or written, the require- ment must be observed, or else the certificate will be deficient. In Ohio, the statute required the officer to "certify such acknowl- edgment on the same sheet on which such deed is printed or written." A certificate of acknowledgment made by a com- missioner of deeds in New York, appointed by the governor of Ohio, was made upon a separate strip of paper attached to the deed by a wafer, with the officer's seal upon the same. This certificate was held to be invalid.^ For the purpose of showing the views of the court and the grounds upon which this conclu- sion was based, we quote this language from the opinion, where the court, after referring to the statute, observes : " The object of the provision was, evidently, to prevent mistakes and fraud, and to give greater certainty to titles within the State. Certain officers »f the State are particularly designated to take the acknowledgment of deeds. The parties are required to acknowl- edge the execution of the instrument before those persons ; and none others are authorized to act in their stead. But if a cer- tificate of acknowledgment might be attached to a deed, as a postage-stamp is to a letter, what would there be to prevent the official duty being performed by a deputy only? The justice or other officer intrusted with that duty, might deliver his certificate to a stranger to attach to a deed, thus obviat- ing the necessity of any acknowledgment of a deed ; in fact, before the officer designated and invested with the official trust. The certificates, when so prepared, would also be liable to be fraudulently obtained and used in certain cases without the knowledge or consent of the commissioner. In such cases as the one under consideration, it is evident, that to hold the attaching of a certificate of acknowledgment, made upon a distinct piece of paper, sufficient evidence of an acknowledg- 1 Winkler v. Higgins, 9 Ohio St. 599. § 528 ACKNOWLEDGMENT OP DEEDS. 532 ment, would be throwing the door wide open for mistake, fraud, and mischief to enter. The statute referred to authorizes the governor to appoint one or more commissioners in any other of the United States, to take acknowledgment and proof of the execution of any deed or other conveyance, or lease of any lands lying in this State, to be used and recorded in this State. It is presumed that the governor will have respect to the personal qualifications of the one appointed and com- missioned by him for the discharge of the important duty. But if that duty may be discharged by barely attaching his cer- tificate to the instrument, what is there to prevent his constitut- ing any scrivener, attorney, or clerk his depuiy, and furnishing them with his certificates to be attached. Again, it is obvious that other mischiefs than those, resulting necessarily from the discharge of the duty by careless or incompetent deputies, might be expected from such disregard of the express provisions of the statute. The facility with which such a certificate of acknowl- edgment might be removed from one instrument and attached to others would greatly impair the public security against inten- tional frauds. Indeed, such a certificate of acknowledgment upon a separate piece of paper is alike in contravention of the express language and the undoubted meaning of the statute." * § 528. Officer cannot Impeacli Ms own certificate. — On grounds of public policy the officer who took the acknowledgment is not permitted to impeach his certificate.^ He is required to take an oath that he will faithfully discharge his duties, and generally is compelled to give a bond for the proper performance of his official duties. In certifying to the fiict that a deed was acknowl- edged, he performs a solemn official act. To permit him after- wards to controvert his certificate, would render title to property uncertain and almost worthless. It would place dangerous temptations before weak or corrupt men, and make every title dependent not upon recorded evidence, but upon the treachery of memory, and liable to be overcome by the false testimony of those who solemnly certified to the regularity and legality of ' Winkler v. Higgins, supra, per Sutliff, J. ' Central Bank v. Copeland, 18 Md. 305 ; Stone v. Montgomery, 35 Miss. 83, 533 ACKNOWLEDGMENT OP DEEDS. § 529 their acts. For these reasons, public policy demands that what- ever other evidence may be admitted, the lips of the oflBcer shall not be allowed to affect the title of others by attempting to falsify what he certified to be true.-^ For this reason, testimony that the officer had said that the person making the acknowl- edgment did not appear before him, but he certified to the acknowledgment because he knew the grantor's handwriting, is inadmissible, both because it is hearsay, and because it impeaches the certificate of the officer.* Want of recollection on the part of the grantor or the commissioner who took the acknowledg- ment, as to the transaction, does not invalidate the certificate.' § 529. Between the parties the acknowledgment may be impeached for fraud. — Between the immediate parties to a con- ' In Central Bank v. Copeland, 18 Md. 305, 318, Mr. Justice Cochran, in delivering the opinion of the court, said : "In our opinion the testimony of Hays, taken to contradict or impeach his certificate of Mrs. Copeland's acknowledgment of the mortgage, was not admissible. That the statements contained in the certificate, under the circumstances, and as between the parties in the case, were open to contradiction by proper and competent proof, cannot be doubted, but it does not follow that a public officer, after the performance of an act required by law, should be permitted to defeat its effect by impeaching his official certificate of the manner in which he performed it. From considerations of public policy, if from no other, he must be held an incompetent witness for such a purpose : Harkins v. Forsyth, 11 Leigh, 294." 2 Allen V. Lenoir, 53 Miss. 321. ' Tooker v. Sloan, 30 N. J. Eq. (3 Stew.) 394. The Chancellor said : "The certificate contains all the statutory requisites. The acknowledg- ment was made before a duly authorized person in New York, and the certificate required by law as to the authority of the person by whom the acknowledgment was taken, accompanied the certificate of acknowledg- ment. There is no evidence to overthrow the certificate of acknowledg- ment. That the officer by whom the acknowledgment was taken cannot recollect that he examined her separate and apart from her husband, and that she cannot remember whether she was so examined or not, of course cannot countervail the certificate." In Wright v. Bundy, 11 Ind. 398, the acknowledgment of a mortgage appeared to have been made before Samuel Stokes, and the mortgagor delivered it to the mortgagee as genuine. The acknowledgment bore the impress of a notarial seal. A Samuel Stokes, however, testified that he did not, to the best of his recollection, take the acknowledgment, and that he knew of no other notary in the same place of his name. There was also a certificate of the secretary of State that but one Samuel Stokes had been appointed a notary. It was held, however, that this testimony did not disprove the acknowledgment. § 529 ACKNOWLEDGMENT OP DEEDg. 534 veyance, or those who have notice, the certificate of acknowledg- ment may be impeached for fraud, imposition, or collusion.' But it cannot be impeached merely for irregularity where there is no element of imposition or coercion.^ The officer's certificate of acknowledgment, if made in proper form, will prevail over the unsupported testimony of the grantor that his signature was forged, in the absence of proof of fraud and collusion on the part of the officer taking and certifying the acknowledgment of the deed.' ' KoUins V. Menager, 22 W. Va. 461 ; Schraeder v. Decker, 9 Barr. 14 ; Jamison v. Jamison, 3 Wliart. 457 ; 31 Am. Deo. 536 ; Barnet v. Barnet, 15 Serg. & R. 72 ; 16 Am. Dec. 516 ; Williams v. Baker, 71 Pa. St. 476 ; Heetor V. Glasgow, 79 Pa. St. 79; Michener v. Cavender, 38 Pa. St. 334. See Hartley v. Frosh, 6 Tex. 208; 55 Am. Dec. 772; Worrell v. McDonald, 66 Ala. 572. ' Miller v. Wentworth, 82 Pa. St. 280; Shields v. Netherland, 5 Lea (Tenn.), 193. In the former case, Chief Justice Agnew said : "As to the first, it is to be observed the evidence discloses only irregularity, and no imposition, coercion, or other element of frand or duress in procuring the acknowledgment. The defendant is a bona fide purchaser, for a full con- sideration, without notice of any irregularity, relying on the certificate of the magistrate, there being nothing on its face to put him upon inquiry. In such a case the certificate is conclusive of the facts stated in it, and parol evidence will not be received to impugn it : Barnet v. Barnet, 15 Serg. & R. 72; Jamison v. Jamison, 3 Whart. 457; 31 Am. Dec. 536; Louden v. Blythe, 3 Casey, 22 ; WiUiams v. Baker, 21 Smith, P. P. 476 ; Heeler v. Glasgow, 2 Week. Notes, 1. The cases supporting the excep- tions of fraud and duress prove the rule : Louden v. Blythe, i Harris, 532 ; Michener and Wife v. Cavender, 2 Wright, 334 ; Hall v. Patterson, Smith, P. F. 289 ; McCandles v. Engle, 1 Smith, P. F. 309. ' Lickman v. Harding, 65 111. 505 ; Russell v. Baptist Theological Union, 73 111. 337. In the former case, Mr. Justice Breese delivered the opinion of the court, and said : " The only point in this case is, shall the acknowl- edgment of the execution of a deed, made and taken before a magistrate in proper form in pursuance of the statute, prevail over the unsupported testimony of the party grantor, he alleging the same to be false and forged ? We have no hesitation in answering the question in the affirmative, as it was answered by the Circuit Court. 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. No fraud or combination between any party and the officer taking the acknowl- edgment is shown. The magistrate in taking the acknowledgment acts judicially. The duty is imposed upon him by the law, of ascertaining the truth of the matters about which he Is to certify. Parties act on the faith of his certificate, and in the absence of fraud and collusion, it must be entitled to full credit. There is an entire absence of fraud and collusion in this case, which can vitiate the deed : Graham v. Anderson, 42 111. 514." That a certificate is only prima facie evidence of compliance with the law 535 ACKNOWLEDGMENT OP DEEDS. § 530 § 530. Grantee must have knowledge of fraud or of facts suf- ficient to put him upon inquiry. — While the certificate of acknowl- edgment may be impeached for fraud or imposition, yet to affect the title of the grantor he must have knowledge of such fraud, or the facts within his knowledge must be sufficient to put him upon inquiry. He has ordinarily a right to rely upon the officer taking the acknowledgment. On this point, Mr. Justice Cham- bers, in a case where the certificate of acknowledgment of a married woman was attacked, pertinently observes: "A regard to the policy of the law, for the security of titles and the pro- tsction of the rights of property which are passed by convey- ances, and assurances of which these acknowledgments and certificates are a common part, will restrain this court from allowing such acknowledgments to be impeached by parol evi- dence, contradicting the facts certified in the absence of fraud and imposition; and where there are fraud and imposition alleged, the knowledge of it ought to be brought home to the grantee, or of such circumstances within his knowledge of the want of free will and consent on the part of the wife, as should lead him to inform himself of the reality of a free execution and acknowledgment by the wife whose property was to be divested. Where the grantee has knowledge of facts to put him upon inquiry, if silent and inactive on the subject, it is at his peril, and he must abide the consequences."* A false certificate of on the part of the officer, see Dodge v. Hollingshead, 6 Minn. 25 ; Anan V. Folsom, 6 Minn. 500 ; Edgerton v. Jones, 10 Minn. 429 ; Hutchison v. Rust, 2 Gratt, 394; Jackson v. Schoonmaker, 4 Johns. 161. But see, also. Hartley v. Frosh, 6 Tex. 208 ; 55 Am. Dec. 772 ; Bissett v. Bissett, 1 Har. Mr. Justice Scholfleld, in Marston v. Brittenham, 76 HI. 611, 614. Tlie court quotes with approval the language in Monroe v. Poorman, 62 111. 526 : "If the testimony of a wife, who may or may not become a widow, is to prevail over her own deliberate act, done knowingly, and over the testimony of a disinterested officer taking the acknowledgment, there will be but frail securities to titles ; for if such evidence is to prevail in one case, it must prevail in all cases ; and whenever a woman can be found, and they are numerous, to swear against her own act, there is really no security in titles derived in whole or in part from them." See Johnson V. Van Velsor, 43 Mich. 208 ; Smith v. McGuire, 67 Ala. 34 ; Waltee v. Weaver, 57 Tex. 569; Davis v. Kennedy, 58 Tex. 516; Shields v. Nether- lands, 5 Lea (Tenn.) 193 ; Worrell v. McDonald, 66 Ala. 572; Groten Kem- per V. Carver, 9 Lea (Tenn.) 280 ; Riecke ?'. Westenhofif, 10 Mo. App. 358. ' Hourtienne v. Schnoor, 33 Mich. 274, per Campbell, J. And see Bailey V. Landingham, 53 Iowa, 722. In Canal and Dock Co. v. Russell, 68 III. 426, Mr. Chief Justice Breese delivered the opinion of the court, and on page 430 said: "The case stands upon the unsupported testimony of appellee of physical inability, by reason of her absence on the thirtieth day of May, 1837, in which absence she is not corroborated by any witness, to execute and acknowledge the deed in question. The question is thus again presented to this court, shall the uncorroborated testimony of a grantor be allowed to prevail over the solemn act of an officer, appointed by law to take the acknowledgment of deeds, and who has certified under the solemn sanctions of his oath, that he did take the acknowledgment? The question was before this court at the September Term, 1872, and received our most serious consideration, and we then said that we had no hesitation in answering the question ; that the certificate must prevail over the unsupported testimony of an uninterested party, otherwise there would be but slight security in land titles ; that public policy demanded such a rule, when no fraud or combination is alleged or proved. The magistrate, in taking the acknowledgment, acts judicially. A duty is imposed upon him by the law of ascertaining the truth of the matter about which he is § 532 ACKNOWLEDGMENT OF DEEDS. 538 the court that there was fraud or imposition practiced, the cer- tificate must be held for naught.^ § 532. Evidence. — The notary is a competent witness for the purpose of showing that the deed was duly executed when its execution is denied.^ A married woman has the right to show agaiust all the world that she never acknowledged the _ exe- cution of a deed, and that the certificate of acknowledgment is a fabrication on the part of the officer. But if the fact is that she made some kind of an acknowledgment, the officer's certificate is conclusive as to the terms of the acknowledgment and the concomitant circumstances, in favor of innocent pur- chasers, who have acted on the faith of the certificate.' to certify. Parties act upon the faith of his certificate, and in the absence of fraud and delusion, his certificate must be entitled to the fullest credit, only to be overcome by the strongest and most unequivocal testimony : Lickman, Ex'r, v. Harding, 65 111. 505. A reference is made in the opinion to Graham v. Anderson et al. 42 lU. 514, where it was held, in an action of ejectment, that parol evidence was not admissible to impeach a certificate of acknowledgment to a deed. The certificate of the officer as to the aeknowl. McCahill, 22 Cal. 563. ' Donahue v. Mills, 41 Ark. 421. Mr. Justice Eakin, speaking for the court, said: "The doctrine rests upon public policy, whilst she, as all other persons are, wUl be protected against a mere forgery, or the fraudu- lent machinations of those persons, or their agents, who seek to derive a 539 ACKNOWUEaOGMENT OF DEEDS. § 533 § 533. Dlustratioiis. — In an action to foreclose a mortgage purporting to have been executed by a husband and wife, the husband at the time the action was brought being dead, the wife denied that she executed or acknowledged the instrument. She testified that she was ill at the time the instrument appeared to have been executed, and that she was not away from home. Her physician testified to her ill health at the time the mortgage was said to have been executed. The evidence on the other side con- sisted of the testimony of the notary public, who gave the cer- tificate of acknowledgment, and of experts who testified to the genuineness of her signature upon a comparison with other signa- tures made by her. The notary did not pretend to state that she appeared before him and acknowledged the instrument, having no recollection whatever on the subject, and at the time the acknowledgment was made he had no personal acquaintance with her. His opinion, however, based upon his habit of giving cer- tificates only when the parties did appear before him, was that she actually did acknowledge the mortgage. But in some cases where he was well acquainted with the parties, or in the case of his partners in business, he thought he might have given certifi- cates when the parties did not appear before him, but did not remember any such cases. Throughout his testimony he stated no fact showing that she did really acknowledge the instrument, but gave his reasons for his opinion that she did. The lower benefit from their dishonesty; yet, if she does appear before theoflBcer, and make any acknowledgment with regard to the instrument, he is authorized to give assurance by his certificate to all innocent persons, of what the terms of the acknowledgment were, and of the fact that it was made on privy examination. To open any wider door for proof would put a vast amount of property adrift. The law prescribes no set terms in which acknowledgments must be formulated. They are orally made. The oflScer must judge of their meaning and effect. Manner and gesture, even, may aid him in that, and he must judge whether the husband is far enough away to enable him to certify that the examination was privy. Obviously it would not do to allow the wife herself, or any bystanders, to show in opposition to the certificate, and to the rights of innocent persons relying upon it, that the language properly construed did not amount to a negation of undue infiuence, or confess free and voluntary action ; or that her husband was actually so close at hand as to be able to influence her representations or responses. Human memory is too unreliable for that, even if there were not still greater dangers from human caprice, and the bias of human interests. The public must be reasonably protected in the confidence which it is compelled to extend to official action." § 533 ACKNOWLEDGMENT OF DEEDS. 640 court found for the wife, and the Supreme Court affirmed its decision.* In a suit to enjoin a sale under a deed of trust on the ground that a wife's signature had been obtained by fraud, the deed of trust purported to have been executed by the husband and wife, and acknowledged before a notary public. She testi- fied, however, that she never executed the deed ; that her husband brought her a paper for her signature, and on her inquiring what it was, she not being able to read, he told her that it was a mere matter of form, and she thereupon made her mark, and that her husband delivered the instrument to the cestui que trust who was present ; that she was not asked by any one whether she acknowl- edged or executed the deed. Her testimony was corroborated by her husband and three witnesses who had no interest in the result. This evidence was held sufficient to overcome the cer- 1 Borland v. Walrath, 33 Iowa, 130. Beck, J., who delivered the opinion of the court, said : " The certificate of acknowledgment, we concede, is to have weight in determining the question. It certainly makes a prima facie case. This is the least that can be claimed for it. At aU events, a party seeking to defeat his deed because it was not acknowledged by him, ought to make a clear case against the certificate of the officer in order to overthrow the instrument. Public policy demands that instruments in writing pertaining to the titles of real estate, which are authenticated in the manner pointed out by the law, should not be lightly set aside. But they cannot be sustained against the positive and explicit evidence of credible witnesses. The evidence as to the genuineness of the signature, based upon the comparison of handwriting, and of the opinion of experts, is entitled to proper consideration and weight. It must be confessed, however, that it is of the lowest order of evidence, or of the most unsatis- factory character. It cannot be claimed that it ought to overthrow positive and direct evidence of credible witnesses who testify from their personal knowledge. It is most used and is most useful in cases of conflict between witnesses as corroborating testimony. On the one hand, we have the signa- ture to the mortgage sustained as genuine by the certificate of acknowl- edgment, and by the comparison of handwritings, upon which are based opinions of experts ; on the other, we have the positive evidence of the defendant, whose credibility is not doubted, corroborated in a degree by other testimony. In our opinion the preponderance is in favor of the defendant. We are free to admit that we are not without doubts, and it is probable that questions of this character can never be determined with absolute convictions of certainty. We feel, however, that it is safer to give credit to the positive evidence of a credible witness than to disregard it upon presumptions that are not of the highest order. We may say Just here that a comparison made by us of the signature in question with defenda,nt's genuine writing, used for that purpose before the referee, all of which is before us, has had a tendency to strengthen the conclusion we have just announced in the minds of some members of this court." 541 ACKNOWLEDGMENT OF DEEDS. § 533 tificate of acknowledgment.^ A mortgage made in June, 1837, appeared to have been executed and acknowledged by both hus- band and wife. The mortgage was foreclosed, and the husband having died, the wife subsequently filed her petition for allot- ment of dower in the premises on the ground that she had not joined in the execution of the mortgage. She testified that she was absent from the State from the latter part of the year 1836, to the early part of 1838, and that it was impossible for her to have signed or acknowledged the mortgage at or near its date. Several other witnesses testified that they remembered she was absent about that time, and witnesses who were acquainted with the handwriting of her husband, gave it as their opinion that he wrote both signatures. The court, however, held that the evi- dence was insufficient to overcome the certificate, and that it would presume that the husband had authority to sign the wife's name, rather than that her signature was a forgery.^ 1 Lowell V. Wren, 80 111. 238. ' Kussell V. Baptist Theological Union, 73 111. 337. Mr. Chief Justice Walker, In delivering the opinion of the court, said : "When carefully examined, this evidence, aside from that of appellant, is loose, indefinite, and unsatisfactory. The witnesses, exclusive of appellant, do not swear positively that appellant was absent at the date of the deed, but say she was East on a visit that summer, and they do not remember of ha ving seen her in June of that year. This may all be true, and appellant have been there and directed her husband to sign her name to the mortgage, and have acknowledged it before the justice of the peace ; and she may have been in Philadelphia in the early part of June, and yet returned to Chicago by the 20th of that month. Again a married woman may, as well as others, execute any instrument by having another sign her name to it, if she adopts it and acknowledges it as her own ; hence, if it were conceded that her name was written by her husband, we would presume it done by authority, rather than impute what would be a forgery. A man has no more right to sign his wife's name to a paper, by which she can be bound and her rights affected, than he has that of any other person. Then to decree appellant dower in these premises, we must hold that Capt. Kussell and the justice of the peace committed forgery. To so hold we must believe he wrongfully, and to defraud Hubbard [the mortgagee], signed his wife's name to the mortgage, and the justice of the peace made a false certificate of her acknowledgment. Before we can find such facts we must have the most clear and satisfactory evidence, whilst here we must hold that the evidence is not of that character." For other cases see Crane v. Crane, 81 111. 165 ; Kerr v. Russell, 69 lU. 666 ; Spurgin v. Traub, 65 111. 170 ; Monroe v. Poorman, 62 HI. 523 ; Tunison v. Chamblin, 88 111. 379 ; Graham V. Anderson, 42 111. 514. And see, also, Hartley v. Frosh, 6 Tex. 208 ; 55 Am. Dec. 772 ; Hays v. Hays, 5 Kich. 31 ; WanneU v. Kem, 57 Mo. 478 ; Mont- gomery V. Hobson, Meigs, 437 ; WUliams v. Robson, 6 Ohio St. 510. §§ 534-535 ACKNOWLKDGMENT OP DEEDS. 542 § 534. Comments. — The rule which requires that the evi- dence to overcome the certificate shall be clear, satisfactory, and convincing, is founded on the soundest legal reason and the most salutary principles of public policy. The certificate standing by itself, without other proof, is prima fade evidence of all that it rightfully contains. While not conclusive, it is entitled to the utmost consideration. To say that it does not speak the truth, the evidence ought to be sufficient to leave a clear conviction in the mind of that fact. To allow the certificate to be impeached on slight grounds would be to open the door to perjury. Prop^ erty might increase in value, and then after a number of years, if the grantor's own statement could impeach the certificate, the greatest injustice might be done to innocent purchasers who would be powerless to supply other evidence than that contained in the certificate itself. Yet, while the evidence should be clear, we do not suppose that a party is held to any greater degree of proof than he is when attempting to set aside an instrument for fraud. Courts frequently, in emphasizing the necessity of the proof being clear, use expressions which in their strict literal sense do not state the law. Thus, in one case, the court said that " the evidence must be clear and convincing beyond a rea- sonable doubt." ^ By this is not meant, it is conceived, that the fact that no acknowledgment was made must be proved beyond a "reasonable doubt," within the technical meaning of these words, for to require this would be to deny relief in most cases altogether, because it is probable that in none could the fact of non-acknowledgment be proved beyond a reasonable doubt. But we regard it as sufficient proof, if afl«r weighing all the probabilities, the evidence shall clearly and strongly preponder- ate in favor of the party attacking the acknowledgment. If, however, the probabilities balance each other, the soundest prin- ciples of public policy and respect for the security of land titles demand that the certificate of acknowledgment should not be set aside. § 535. Lmocent grantee protected. — As to the facts which the officer is bound to certify, his certificate is conclusive in favor of an innocent grantee who has become such for value and without ' Knssell v. Baptist Theological Union, 73 HI. 337, 341. 543 ACKNOWLEDGMENT OF DEEDS. § 535 notice. As stated by the Supreme Court of Pennsylvania, the certificate "is not conclusive as between the parties in cases of fraud and imposition, or of duress, and may be overcome by parol evidence ; it is conclusive as to subsequent purchasers for a valuable consideration without notice. But it is conclusive of such fact only as the magistrate is bound to record and certify, not of facts which he is not required to certify under the pro- visions of the statute."' Mr. Wharton thus states the law: "The true view is that the certificate of acknowledgment is 'prima facie proof of the facts it contains, if within the officer's range, but is open to rebuttal between the parties by proof, gross, concurrent mistake, or fraud. In favor of purchasers for valu- able consideration without notice, it is conclusive as to all mat- ters which it is the duty of the acknowledging officer to certify if he has jurisdiction."* 1 Williams v. Baker, 71 Pa. St. 476, 482; Sohrader v. Decker, 9 Barr. (9 Pa. St.) 14 ; 49 Am. Dec. 538 ; Hall v. Patterson, 1 Smith, P. F. (Pa.) 289; Miller v. Wentworth, 82 Pa. St. 280. ' 2 Wharton on Law of Evidence, § 1052 ; and he cites in support of this statement the following authorities: 3 Wash. Real Prop. (4th ed.) 326; Smith V. Ward, 2 Root, 374 ; Jackson v. Schoonmaker, 4 Johns. 161 ; Thur- man v. Cameron, 24 Wend. 87 ; Schrader v. Decker, 9 Barr. 14 ; 49 Am. Deo. 538; Hall v. Patterson, 51 Pa St. 289; Williams v. Baker, 71 Pa. St. 482 ; Dnflf v. Wynkoop, 74 Pa. St. 300 ; Heeter v. Glasgow, 79 Pa. St. 79 ; Miller v. Wentworth, 4 Week. Notes, 88 (82 Pa. St. 280) ; Eyster v. Hatha- way, 50 m. 521 ; Wannell v. Kem, 57 Mo. 478 ; Tatum v. Goforth, 9 Iowa, 247; Borland ».. Walrath, 33 Iowa, 130; Pringle v. Dunn, 37 Wis. 449; Dodge V. Hollingshead, 6 Minn. 25; Edgerton v. Jones, 10 Minn. 427; Fisher v. Meister, 24 Mich. 447; Hourtienne v. Schnoor, 33 Mich. 274; Johnson v. Pendergrass, 4 Jones (N. C.) 479; Ford v. Teal, 7 Bush, 156; Woodhead v. Foulis, 7 Bush, 222; Hughes v. Colman, 10 Bush, 246 ; Bledsoe v. Wiley, 7 Humph. 507 ; Westbrooks v. Jefifers, 33 Tex. 86 ; Landers v. Bolton, 26 Cal. 406. But in Mlchener v. Cavender, 38 Pa. St. 334, Woodward, J., who delivered the opinion of the court, said that "this court has held theof&eial certificate of acknowledgment con- clusive of every fact appearing on the face of the certificate, and has excluded parol evidence of what passed at the time of the acknowl- edgment, except in cases of fraud and duress. But in cases of fraud and imposition, or of duress, parol evidence has been freely admitted to overthrow the certificate, as in Schrader v. Decker, 9 Barr. 14, and Louden v. Blythe, 4 Harris, 532, and S. C. 3 Casey, 25. And where fraud and duress have been practiced in obtaining the acknowledgment, knowl- edge of it is to be brought home to the grantee, or of such circumstances as would lead him to inquiry upon the point. Such is the doctrine of the cases in our books, and on the strength of it the learned judge ruled that the gross blunder, if not fraud, of the alderman in certifying to the § 538 ACKNOWLEDGMENT OF DEEDS. 544 § 536. Omission of essential word not cured by insertion in record. — The case may occur where the certificate of acknowl- separate examination and acknowledgment of a wife who had not signed the mortgage or appeared before him, could not affect Cavender, the rnort- gagee, because he was not present when the mortgage was acknowledged, and was never informed of what passed, and that he was presumed to be a bona fide purchaser. If the doctrine of notice is to be applied in this manner, no married woman's estate is safe, and the statutes that have been passed for her protection are as worthless as waste paper ; for when- ever her husband goes into a conspiracy to strip her of her lands, the transaction is not likely to be attended with any circumstances of notice that are susceptible of proof. Here, for instance, is a mortgage made upon Mrs. Michener's separate estate, made to a conveyancer and duly witnessed and acknowledged, which,"for aught that appears of record, she never saw nor heard of until she was sued upon it by this scire facias. Her namie appears to the printed copy in our paper books, but when and by whom it was susbcribed to the original instrument does not appear. It certainly was not there when the alderman witnessed and acknowledged the mortgage. The statute requires the signature to precede the acknowl- edgment, and without signature and acknowledgment, according to the statute, it is not, and cannot be, a mortgage of her estate To call the mortgagee a bona fide purchaser, and to put her to proof that she knew she had been cheated, would be like making her right to reclaim stolen goods dependent on the receiver's knowledge of the felony. Suppose the mortgage was a forgery out and out, and Cavender chose to invest his money in a purchase of it, must it be enforced because he did not know that he was buying a forged instrument ? An instrument known to be forged would not be purchased, and would, therefore, be worthless to the forger. Counterfeit notes would never be issued if a herald went before to proclaim their spuriousness. But because they are taken without notice, do they become genuine ? Is every bank and individual to redeem whatever obligations bona fide holders may obtain against them, without regard to the question whether the obligation was ever issued or not ? To carry the doctrine of notice to such extent would subvert all law and jus- tice. A purchaser of real estate who finds the deeds in the channel of the title all duly acknowledged, is certainly not required to go up the stream and inquire of every married woman, if she executed her deed voluntarily and acknowledged It according to law ; and if he pay his money on the faith of such title deeds, he is to be protected, and this is probably all that was meant by what judges have said about purchasing without notice. But a mortgagee is not a purchaser of an estate, though for the purpose of the recording acts he is sometimes treated as one. He acquires neither an equitable nor a legal estate in the premises mortgaged. He is simply a lien-holder, a holder of a security for money. His assignee takes the mortgage subject to sUl defenses, unless he inquire of the mortgagor and learn that there are none. And he is in no better condition than his assignee. It is not usual I know for mortgagees to watch the execution and acknowledgment of the instrument. They generally rely on the integrity of the judicial officer who certifies the acknowledgment. But where the estate is that of a married woman, and the mortgagee himself a 545 ACKNOWLEDGMESfT OP DEEDS. § 537 edgment omits to state some material fact, but the recording officer either accidentally through habit, or by design, inserts the proper word or clause in the record. If a person who has no actual knowledge of a conveyance thus defectively acknowledged, subsequently purchases the property, the question arises is he charged with constructive notice of the deed spread out on the records? It is held that he is not. Thus in Iowa, the inser- tion of the word "voluntary" or its equivalent is essential to a certificate of acknowledgment, and its omission is a fatal defect. The recorder, however, inserted the word in the record book, although it was omitted in the certificate ; but to the argument that the defect had been obviated by this act of the recording officer, the court said : " It would be unsafe and dangerous to establish the precedent, that the recorder could change the language of instruments filed for record, and thereby make them read differently from what they did when made and entered into by the parties." * Nor can the omission of a material fact be supplied by parol evidence.^ § 537. Acknowledgment throngli interpreter. — An interest- ing question arises when the person who desires to acknowledge the execution of a deed is unable to speak the language of the country in which the officer acts, and the officer himself can only become acquainted with the intention of such person through the aid of an interpreter. The question whether the officer may act upon information imparted to him by an inter- preter sworn by him, or may explain the contents of the deed by such interpreter, has been before different courts, and upon such question conflicting decisions have been rendered. In one conveyancer, and holds, as from the revelations of this mortgage we per- ceive Mr. Cavender holds, other mortgages against the same married woman, we are of opinion that before he advanced more money on the faith of her estate, It was his duty to consult her. The doctrine of notice, as deduced from the adjudged cases, does not apply here. It was never intended for such a case as this." A defective acknowledgment can be taken advantage of only by a purchaser for a, valuable consideration: Bishop V. Schneider, 46 Mo. 472; Mastin v. Halley, 61 Mo. 196; Choteau v. Burlando, 20 Mo. 482. 1 Newman ». Samuels, 17 Iowa, 528, 549. ' Jourdan v. Jourdau, 9 Serg. & K. 268 ; 11 Am. Dec. 724 ; Watson v. Bailey, 1 Binn. 470 ; 2 Am. Deo. 462 ; Ennor v. Thompson, 46 HI. 214 ; Harty v. Ladd, 3 Or. 353. I. Dbeds. — 35. I 537 ACKNOWLEDGMENT OP DEEDS. 546 case, an acknowledgment of a deed of an Indian woman was taken by means of an interpreter, and the court held that there was no law authorizing this course, and that the certificate was, therefore, defective.* Mr. Justice Wilson, who delivered the opinion of the court, said upon this point : " But the most palpable error on the face of the certificate is that the notary public took the acknowledgment in a manner entirely unauthorized by law. There is no law authorizing the notary to swear an interpreter in a case of an acknowledgment. It was, in fact, taking an acknowledgment by mere hearsay. This error is too manifest to admit of discussion. If the circumstance that the notary did not understand the vernacular language of the squaw would justify the intervention of an interpreter, no man would feel safe in any property, a claim to which might be supported by proof so easily obtained. Such a practice would lead to endless frauds, and cannot be sanctioned." But in another case, where the cer- tificate sta,ted that a married woman, on an examination separate and apart, without the hearing of her husband, on being made acquainted with the contents of the conveyance through "Frank Alzine, an interpreter duly sworn," acknowledged its execution, it was held that this was sufficient, and that it was not essential that the contents of the deed should be made known to her by the officer himself.^ Mr. Justice Field said : " The certificate is sufficient in all particulars. The officer taking the acknowl- edgment of a married woman to a conveyance is directed to see that she is made acquainted with the contents of the instrument. He is thus authorized and required to use the ordinary and customary mode of communicating the information to her. If she understands our language, that would be the appropriate vehicle of communication ; if a foreigner, ignorant of our lan- guage, the employment of a sworn interpreter would be the natural means in analogy to the course pursued in taking testi- mony in the courts of justice; if deaf, and she reads writing, the information might be given by the pen ; or, if she understood them, by the signs employed by mutes. The officer will comply with the law when he avails himself of the common means used • Dewey v. Campau, 4 Mich. 565. ' Norton ti. Header, 4 Sawy. 603, 547 ACKNOWLEDGMENT OF DEEDS. § 537 by men in the ordinary transactions of life, exacting from the agents employed the security of an oath. It is not necessary, however, for him to state in his certificate in what manner the information is imparted."* In' a late case in California, where a deed had been made by a husband and wife, the answer of the wife alleged and the court found that her acknowledgment to ^ In the case of Chestnnt v. Shane's Lessee, 16 Ohio, 599, Birchard, C. J., speaking of the language of the statute of thslt State, requiring the officer to inform a married woman of the contents of the instrument, or "otherwise make known" the same to her by way of illustration as dicta, said : " The object of the separate examination of the wife being in part to enaMe the officer to make known to her the contents and legal effect of the deed upon her rights, it being necessary that he should be satisfied that this object has been attained before he could lawfully take and certify her acknowledgments, it is manifest that the means he must employ would require to be varied to accommodate the capacity or condition of the grantor. These words 'otherwise make known' are directory, manda- tory, and very comprehensive, admitting and requiring the employment of aU the means of communicating knowledge that the necessity of any case might require. In 'many cases the private examination would fail entirely in accomplishing the object of the law without the intervention of an interpreter. No form for certifying the examination is prescribed. The nature of the officer's duty is such that neither the legislature nor an intelligent lawyer would ever attempt to furnish a form that would meet all cases and answer the object in view, if the statute in fact contemplated a certificate of the facts done, and explanations given, so full that the courts in after times can judge whether the requisitions of the act in this respect were complied with, as was held by a majority of the court in Meddock v. Williams, 12 Ohio, 377. Upon such a construction we should repeat what was well said by Judge Burnet, in Brown v. Farran, 3 Ohio, 140 : ' If this is the true construction, it is not probable that a legal certifi- cate of acknowledgment can be found or was ever made in this State.' The magistrate's certificate that he read the deed is not sufficient to answer the objects of the law under such a construction. Beading the deed may or may not have made the wife acquainted with the contants of it. If of G«rman, Welsh, French, or any foreign extraction unacquainted with the English language, reading of the deed to her would have been a mere farce without the aid of an interpreter. It would have been a fraud upon the woman, and a fraud committed against the spirit of the law. And again, how could any one judge that in the case supposed, with the aid of an interpreter, the contents of the deed were made known, unless it appeared from the certificate that the interpreter was sworn, and what he did and said, and how he interpreted into the foreign language the con- tents of an English deed of conveyance. This view of the subject need not be dwelt upon in order to prove that the legislature contemplated relying upon the official oath of the officer, for his faithful performance of the portion of the statute which is directory to him, or to prove that they did not mean to require a full statement of the means by which he had made known to the/emme covert the contents of a deed." §i 538-539 acknowledgment op deeds. 548 the deed "was taken through an interpreter, who did not give to her a correct interpretation of the instrument, but informed her that it was a mortgage. But it was not alleged or found that the grantee had any knowledge of these facts, and the court held that the certificate of the notary was conclusive as to the facts it stated.^ § 538. Comments. — If an interpreter may not be employed in a proper case, it perhaps would be impossible for a large number of persons to acknowledge the execution of any convey- ance. If a foreigner in this country is unable to find an officer who understands his language, to say that his acknowledgment may not be taken by means of an interpreter is to say, in effect, that it cannot be taken at all. It may, however, be objected, that the statute should provide for an interpretation, and that as the law concerning acknowledgments is purely statutory, the omission, if it be such, to authorize the employment of an inter- preter is in reality a negation of the poweV to take an acknowl- edgment in this mode. But we do not so view the law. The officer complies with the law when he uses the ordinary means of imparting information or acquiring knowledge. There can in reason be no more objection to informing a person, unable to speak the language of the officer, of the contents of an instru- ment, by means of an interpreter, than there can be by writing the same on a piece of paper and reading it. There is, of course, the possibility that the interpreter may interpret falsely. But if he acts under oath, this possibility, unless there is evidence that he in fact fraudulently misinterpreted, should, in the writer's opinion, be entitled to little weight. § 539. Amendment of certifieate — Decisions tnat snch power exists. — Can an officer amend his certificate, when as written, it fails to state some essential fact? On this question there is a conflict of authority. In a case in Indiana, it was held that the officer could at any time correct his certificate of acknowledg- ment. In the case cited the acknowledgments were those of married women, and the certificates omitted to state that the 1 De Amaz v. Escandon, 59 Cal. 486. See also Waltee v. Weaver, 67 Tex. 569, See Cal. Civil Code, g 1201. 549 ACKNOWLEDGMENT OF DEEDS. § 540 acknowledgments were made out of the hearing of their husbands. The lower court decided that the officers who took the acknowl- edgments could not correct the certificates so as to insert the fact that they were examined without the hearing of their hus- bands.* But the Supreme Court considered this ruling erro- neous, saying: "We think that the officers had the right, and indeed that it was their duty, to correct at any time any mistake in their certificates. Such a certificate is an act in pais, which may be altered at any time by the officer who made it.^ The certificate does not depend for its validity upon its being made matter of record. A deed without such a certificate as the stat- ute requires cannot be recorded. If the acknowledgments were really made by said married women without the hearing of their husbands, that fact might have been inserted in the cer- tificates, at the trial, nunc pro tune, by the officers who made them. The certificates, after such amendment, would have had the same effect, as respects this cause, as if they had at first been properly made." This case is still recognized as authority in Indiana, and in a recent case in that State in which it was cited it was said, of a notary's certificate : " If in truth he had not stamped the certificate with his official seal, he still had the power to do it."* § 540. In Mississippi, a deed intended as a mortgage was properly executed by husband and wife, and acknowledged. The officer who took the acknowledgment failed at the time to sign the certificate of the wife's acknowledgment, but the certifi- cate was written out and appended to the deed. The deed was recorded, and ten months later the officer discovered the omission and informed the wife of the fact. She admitted that she had appeared before him and acknowledged the deed ten months before, and he then appended an additional certificate to that effect. The court, speaking of the acknowledgment, and the officer's power to amend it, said : " The officer who takes it per- forms a judicial act in determining whether it was acknowledged in the mode and manner required by law ; and he is required by • Jordan v. Corey, 2 Ind. 385 ; 52 Am. Dec. 516. » Citing Elliot v. Piersol, 1 Peters, 328. * Stott V. Harrison, 73 Ind. 17, 20. §§ 541-542 ACKNOWLEDGMENT OF DEEDS. 550 his certificate to authenticate the judicial conclusion to which he has arrived. This certificate he must sign; and if he fails to do so, the instrument cannot be recorded, or if recorded, will not constitute notice to third persons. But there is no requirement in the statute that the certificate shall be made, much less signed, in the presence of the woman. We apprehend that in practice it frequently, if not usually, happens that the certificate is written out and signed after she has retired. If an hour elapses, or a day, is the instrument thereby avoided? We think not. The judicial act has been performed when she has made, and the officer has received her separate acknowledgment. The memo- rial of it, the making up of the record, so to speak, which follows afterwards, is a ministerial or clerical act, and where the rights of third persons have not intervened, may be done at any time while the officer remains in office."* § 541. In Missouri, another case of this class was decided, where it was held that an officer may amend his certificate volun- tarily or execute a proper certificate when he has made a defect- ive one, if such action is warranted by facts which really exist; and that he may be compelled by mandamus to execute a proper certificate, in case of his refusal.^ § 542. Decisions that sacli power does not exist — But the decisions referred to in the preceding sections are not generally accepted as authority. In a case in California, the court said it deemed it unnecessary to criticise the case of Jordan v. Corey,' as it thought it wholly unsupported by authority.* Mr. Justice Baldwin, in delivering the opinion of the court, thus forcibly presented the question : " It is contended, however, that this cer- tificate may, when completed and recorded, and after it has left the hands of the officer, be altered or amended, or an entirely new certificate be made, and this we presume — for we see no limitation to the principle — at any distance of time, at least, so 1 Harmon v. Magee, 57 Miss. 410, 415, per Chalmers, J. See under Tennessee Code, Brinkley v. Tomeny, 9 Baxt. 275 ; Grotenkemper v. Car- ver, 4 Lea (Tenn.) 375. => Wannall v. Kem, 51 Mo. 151. But see Gilbraith v. Gallivan, 78 Mo. 452. » 2 Ind. 385. * Bours V. Zachariah, 11 Cal. 281, 298 ; 70 Am. Dec. 779. 551 ACKNOWLEDGMENT OF DEEDS. § 542 long as he continues in office. The statute seems to contemplate but one certificate. It speaks of but one. That certificate is evidence for certain purposes ; but what would be the efiect if several certificates were allowed, some qualifying' or contradict- ing the rest, might not be so easy to determine. If two could be given, why not a dozen? If within six months, why not within six year?? If the certificate amendatory of the former, why not in contradiction of it, denying all acknowledgment of the deed? If in respect to one class of deeds, why not to all? And what would this lead to but the putting all land titles in the power of unscrupulous notaries, or leaving them to the mergies of their memories? These certainly are serious ques- tions. We should have some very strong reasons or weighty authorities to sustain a proposition out of which such results may grow. We have been furnished with only two cases which seem to approach the principle codtended for by the appellants. This, itself, is no inconsiderable argument against the pretension. Very many controversies have grown out of the alleged defective acknowledgments, and most of these have been, perhaps, in con- sequence of misprision or fault of the notaries or other officers certifying. Some of these have been hard cases upon purchasers. The rights of the wife have often, indeed, in most of the cases, been recognized and maintained. If the sense of the profession and the bench had not been decidedly against the power of the officer to amend the certificate, it is very strange that the attempt had not been made to amend it; especially as will be shown here- after, as it has been frequently attempted to prove the facts omitted by parol ; and that, too, by the evidence of the notary. By how much speedier a process could all this have been effected, if a notary's certificate could at once have been amended, or a new one made out. The ground upon which the power in ques- tion is rested, is that the certificate of a notary is an act in pais, which he may exercise by virtue of his office, and at any time while in office; and that the amending of his acts is in pursuance of the same general authority which enables him to do them. But we think this is not correct. A notary derives his power from the statute over these subjects. The special duty and authority of taking and certifying acknowledgments is given him. But he acts as an officer with a special authority for each § 542 ACKNOWLEDGMENT OP DEEDS, 552 particular case. He is, in other words, acting as under a special commission for that case, clothed with a limited statutory power. He is to take the acknowledgment and certify it as parts of the same transaction. After taking the acknowledgment and mak- ing and delivering the return, his functions cease, and he is dis- charged from all further authority. He has exhausted his whole power over the subject, as much as a special commissioner, created for a particular purpose after the adjournment, or a court after the lapse of the term. If we were to look to analogies, we see nothing which upholds this pretension. If, as in some of the States, particular officers clothed with authority to take deposi- tions return them to court, it would scarcely be contended that they had the power months afterwards to amend them, or to make return of new facts not appearing on the return, when they closed the commission; nor could any other officer, except by virtue of some statutory power, after he had made return of his proceedings; nor officers charged with special inquisitions." This is settled law in California. In a recent case where the principle was affirmed and this case cited, Mr. Justice McKee observed : " In taking the acknowledgment the officer acts judi- cially; and if he blunders in certifying to an acknowledgment duly made, or makes a defective or false certificate, he cannot alter or amend it, because after taking the acknowledgment and delivering the return, his functions cease and he is discharged from all further authority."' ' Wedel V. Herman, 59 Cal. 507, 514. In Elwood v. Klock, 13 Barb. 50, the court, per Allen, J., after referring to the various acts concerning the acknowledgment of deeds by married women, said : "In each of the acts referred to, the certificate of the officer that the acknowledgment of the execution of the conveyance was made upon a private examination of the wife apart from her husband, was made essential to the operation of the deed. Without this certificate no estate of a femme covert could pass by deed. The law required not only the private examination, but it also required the certificate of the fact to be made at the time, and as a part of the transaction, and the fact could not under these statutes be made to appear except by the certificate. The certificate took the place of the record of the examination in open court, and performed the same office : See Elliott v. Pierson, 1 Peters, 328. In the revision of the Laws of 1830, the same provision was substantially re-enacted. The language employed is slightly difilsrent, and the provision in relation to a certificate is placed in a section by itself. It is provided : (1) That no estate of a married woman shall pass by any conveyance not acknowledged as required by the act; 553 ACKNOWLEDGM_ENT OF DEEDS. § 543 § 543. In Illinois, a mistakcj in a certificate of aclinowledg- ment can be corrected only by the parties reacknowledging the deed. The officer cannot himself alter or amend his certificate.* In that case it was contended that a subsequent certificate of the acknowledgment of a married woman, written by the officers some years after the making of the first, cured the defective certificate, even if there was no reacknowledgment of the deed. But the court responded : " We have been referred to no precedent for such action, aud we would confidently expect that none could be found. Anciently, such acknowledgments could only be taken in and (2) that the oflScer who shall take such acknowledgment shall indorse -a certfflcate thereof, signed by himself on the conveyance, and in such cer- tificate shall set forth the matters therein before required to be done : 1 Rev. Stats. 758, JJ 10, 15. The statute still looks to the certificate as con- taining the evidence that its requirements have been complied with to enable the deed to become operative. The execution of a deed by one not under disabilities may be operative to pass an estate without an acknowl- edgment, and the execution may be proved by any competent evidence. Not so of a deed of a femme covert. No estate passes except the conveyance is apknowledged as required by law. The disabilities of the wife are only removed by a strict compliance with the statute. Aano deed can be recorded except upon a proper certificate of acknowledgment, a deed of a femrnie covert cannot take effect for any purpose except upon a like certificate. A deed cannot be recorded upon parol proof of its proper acknowledgment ; neither can the estate of a married woman pass by parol evidence of the acknowledgment of the execution. If the acknowledgment can be estab- lished by the examination of the officer as a witness, years after the trans- action, it may be established by the testimony of any other credible witness who may have knowledge of it, and perhaps by the admission of the wife herself to a third person that the requirements of the statute had been complied with ; thus substituting parol evidence, or a verbal admis- sion, for the solemn and formal Written evidence required by statute. There is no evidence that the revisers or the legislature designed to change the effect of the former statutes upon this subject. The change in the language does not necessarily imply a change in the statutes revised : Crosswell r. Crane, 7 Barb. 191, and cases cited at page 195. I think that a conveyance of a married woman can only become operative upon her private examina- tion before a proper officer, duly certified by him, and that it cannot be established by parol : See 2 Cowen & Hill's Notes (1st ed.), 1247, n. 874. A deed duly acknowledged may be read in evidence upon the certificate of the acknowledgment, without further evidence of its execution ; but I apprehend that if the certificate omitted to state some essential faet— as for instance, that the ofiicer knew the grantor or the subscribing witness, if the execution was proved by him — it could not be helped out by evidence of the fact omitted, so as to entitle the deed to be read in virtue of the certifi- cate thus fortified. The acknowledgment is a nullity unless properly certified." 1 Merritt v. Yates, 71 m. 639. § 543 ACKNOWLEDGMENT OP DEEDS. 554 open court, and entered on the records of the court in proceed- ings tedious, expensive, and encumbered with much form. It was at that time regarded of too much moment to be left to the loose and uncertain action of unskillful persons, and the title to property held by married women was guarded with such care as only to permit it to be divested by the judgment of a court of record. Justices of the peace and the other enumerated officers have, however, under our laws, been intrusted with the power to take and certify such acknowledgments, and when in con- formity with the statute, the act is clothed with the same force and effect that was anciently produced by a court of record. It is said that courts of record permit amendments to their records, sheriffs to amend their returns, and compel officers by man- damus to perform legal duties. There is no rule more rigidly enforced, than that the opposite party must have notice in all cases of amendments of records in matters of substance, and the amendment here is of the very essence of the conveyance itself. And it is true that the court in a proper case, and on notice to the opposite party, will permit the sheriff to amend ' his return.^ But we are aware of no statute or common-law practice which authorizes or in any manner sanctions the rights of justices of the peace to amend their records after they once have been made. To allow a justice to make alterations and changes in his records at will, and according to his whim, would be fraught with evil and wrong that would be oppressive. Such a power had not been intrusted to the higher courts, and cannot be exercised by these inferior jurisdictions. The case supposed of compelling a justice of the peace who refuses to make any certificate by mandamus, is not parallel with this case. Here, the justice of the peace, at the time, granted his certificate, and it imports verity. We do not concede that the Circuit Court has power to compel a justice of the peace, by mandamus, to correct a judgment when entered, by mistake, for too large or too small a sum, or to correct a certificate of acknowledgment in which a mistake has occured. Such a process cannot be used to correct judgments of inferior courts, and the acknowledgment and certifi- cate take the place of the judgment of fornjer times, and import I Citing O'Conner v. Wilson, 57 111. 226. 555 ACKNOWLEDGMENT OP DEEDS. §§ 544-545 verity, and cannot be contradicted any more than^san a judgment. It may be, that the carelessness of the justice has produced hardship and wrong, but that is not a ground for violating rules that have governed the purchase and sale of real estate from the' organization of our State. The defendant must be left to his action against thejustice, or on the covenants in the deed, or any other remedy he may have in law or in equity." ^ § 544. In Virginia, a suit was brought by a widow to have her dower assigned to her in certain lands conveyed in a previous deed, but the certificate of acknowledgment of which, so far as it related to her, was defective. One of the defendants filed an answer in which it was alleged that she had really made a perfect acknowledgment, but that the certificate through accident and mistake did not set out the true facts. The answer was rejected because it was sought to prove by parol testimony what could only be proved by the record. The defendant then offered to file an answer, in which it was stated that since the filing of the former answer, that application had been made to the clerk who took the acknowledgment to make a full record of his action, which he did of the date of the former certificate, and that the deed with the subsequent certificate had again been recorded. But the court rejected the answer, holding that the certificate could not be amended, and that the amended certificate was not an official act.^ § 545. In the Supreme Gonrt of the United States, it was said, relative to the power of an officer to amend the certificate of acknowledgment of a married woman : " Had the clerk authority to alter the record of his certificate of the acknowl- edgment of the deed at any time after the record of the deed was made? We are of opinion he had not. We are of opinion he acted ministerially, and not judicially, in the matter. Until his certificate of the acknowledgment of Elliott and wife was recorded, it was, in its nature, but an act in pais, and alterable at the pleasure of the officer. But the authority of the clerk to ' Merritt v. Yates, supra, per Walker, J. And to the same effect, see Enterprise Transit Co. v. Sheedy, 103 Pa. St. 492 ; 49 Am. Kep. 130. » Mrst National Bank of Harrisonburg v. Paul, 75 Va. 594, 600 ; 40 Am. Bep. 740. See, also, McMullen v. Eagan, 21 W. Va. 233. § 546 ACKNOWIiEDGMENT OF DEEDS. 556 make and record a certificate of the acknowledgment of the deed was functus officio, as soon as the record was made. By the exertion of his authority, the authority itself became exhausted. The act had become matter of record, fixed, permanent, and unalterable ; and the remaining powers and duties of the clerk were only to keep and preserve the record safely. If the clerk may, after a deed together with the acknowledgment or probate thereof have been committed to record, under color of amend- ment, add anything to the record of the acknowledgment, we can see no just reason why he may not also subtract from it. The doctrine that a clerk may, at any time, without limitation, alter the record of the acknowledgment of a deed made in his office, would be, in practice, of very dangerous consequence to the land titles of the county, and cannot receive the sanction of this court."* § 546. Comments. — We have presented the principal decisions on either side of this question at considerable length, because the question is one of importance. In most of the cases, the ques- tion has been raised in relation to the certificates of married women, but the rule must affect and govern all acknowledg- ments. As the acknowledgment of a married woman is a part of the deed, one of the acts essential to the validity and oper- ation of her conveyance, a defect in the certificate of acknowledg- ment is a defect in the deed itself. Hence, in the case of an acknowledgment of a married woman, the right to amend a defective certificate is the right to amend the deed. To say that such a power exists in the officer who took the acknowledgment is to say that he possesses the power of giving efficacy to the inoperative act of a married woman, without her consent. It must be obvious, therefore, that, at least so far as the certificate of acknowledgment of a married woman is concerned, a defect- ive certificate cannot be amended. The same rule, we con- ceive, must apply to the acknowledgments of persons sid juris. Between the parties, the deed is valid and effectual with a defect- ive acknowledgment or with none at all. But if the certificate of acknowledgment does not substantially comply with the > Elliott V. Piersol, 1 Peters, 328, 341. 557 ACKNOWLEDGMENT OF DEEDS. § 547 statute, the deed when recorded does not impart notice, and can- not, without proof of its execution, be introduced in evidence. It certainly would be a dangerous practice to allow the certifi- cate of acknowledgment to be amended by inserting some essen- tial statement that had been omitted, so as to convert a defective and ineffectual certificate of acknowledgment into a valid and operative one. If such a power exists, the rights of third per- sons acquired before the amendment might be seriously affected. Besides, as was observed in one case, the right to add a statement to the certificate carries with it the right to detract from it, to strike out some material statement essential to its validity. For if the right to amend exists at all, the officer must have the unqualified power of determining in what particulars the cer- tificate requires alteration or correction. In the opinion of the writer, therefore, the safest and soundest rule is that after the certificate has left the officer's hands, he possesses no power, widiout a new acknowledgment, to amend or alter his certificate. As long as the instrument remains in his hands he can write a dozen certificates if he desires, and correct them in any manner that he pleases, but after he has given a certificate, and the papers have passed out of his hands, his power over them ceases. This is a reasonable rule, for in all cases a new acknowledgment can be made if the grantor himself desires to correct a defective certificate, and if he does not desire to do so, the officer should not be given the right of his own volition to effect the result. There is oue consideration that does not seem to have been noticed, and that is this: Suppose there has been no new acknowledgment, but the officer has corrected the certificate with the grantor's consent, has, for instance, informed him of the fact, and the grantor assented to it. It might be said in a case of this kind, it seems to us, if the rights of others had inter- vened, that the grantor would be estopped from attacking the certificate for the reason that it would not have been amended, save for his consent. § 547. Proof by subscribing witness. — It is generally pro- vided that the execution of an instrument may be proven by the oath of a subscribing witness. The certificate should state that the witness was present at the time at which the deed was exe- § 547 ACKNOWLEDGMENT OF DEEDS. 558 cuted.^ Where a deed is attested by two witnesses, an affidavit stating that the witness saw the grantor sign, seal, and deliver the deed at the time and for the purposes therein mentioned, that he saw the other sign as a witness, and that he also signed as a witness, each in the presence of the other, is sufficient proof of its execution.^ But an affidavit that the witness saw the grantor "assign" the deed, meaning, of course, sign, is not sufficient, as it is silent on the question of delivery.* Grenerally, the subscrib- ing witness must be personally known to the officer taking the acknowledgment to be the person whose name is subscribed as a witness, or it must be proven that he is such by the oath of some credible witness.* But in some cases it is held that it is not necessary for the certificate to state either of these facts, but that it will be presumed that the officer taking the acknowledg- ment had satisfactory evidence of the identity of the person purporting to be the subscribing witness.* A certificate stating that the witness " testified that he saw the within grantor sign the same," but which fails to show that the witness stated that he knew the person who executed the deed, is not sufficient.* 1 Norman v. Wells, 17 Wend. 136. " Green v. Glass, 29 Ga. 246. ' Doe V. Lewis, 29 Ga. 45. ' See Cal. Civil Code, § 1196. 6 See Jackson v. Harrow, 11 Johns. 434 ; Kellogg v. Vickory, 1 Wend. 406 ; Johnson v. Prewitt, 32 Mo. 553 ; Jackson v. Phillips, 9 Cowen, 94. ' Jackson v. Osborn, 2 Wend. 555. And see Gillett v. Stanley, 1 Hill, 121. See as to a sufficient compliance with the North Carolina statute, Starke v. Etheridge, 71 N. C. 243. CHAPTER XX. ACKNOWLEDGMENT OP DEEDS BY MAEEIED WOMEN. § 548. Acknowledgment an essential part of the deed. J 549. The law in California. § 550. Comments. i 551. Separate examination of wife. § 552. Examination private if husband is excluded. § 553. Comments. § 554. Husband hearing examination. i 555. Construction of particular certificates. g 556. Presumption of private examination. \ 557. Comments. \ 558. Identity should appear. § 559. Statement of wish not to retract. I 560. Explanation of contents of deed. I 561. Explanation in presence of husband g 662. Where ofBcer himself not required to explain. § 563. Omission of explanation. \ 564. Aclinowledgment by deaf mutes. g 565. Execution voluntary. g 566. Equivalent words for voluntary act — Comments. g 567. Instances. ? 568. Omission of theword "fear" — Conflicting decisions. \ 569. Comments. g 570. Other cases in which certificates have been construed. § 571. Substantial compliance with the statute sufficient. \ 572. Surplusage. g 573. Community property. g 574. Married woman acting asfemme sole. g 575. Comments. § 548. Acknowledgment an essential part of tbe deed. — At common law, a married woman had no power to make a con- veyance unless by some matter of record. The only methods by which at common law she could convey her property were by a fine or common recovery. While now by statute she is per- mitted to convey her estate, in some States the concurrence of her husband being necessary, and in others not, yet to mgJse her conveyance effective, the statutory provisions concerning the § 548 ACKNOWIiEDGMENT BY MAEEIED WOMEN. 660 form and mode of her conveyance must be complied with.^ In nearly all of the States, the certificate of acknowledgment of a married woman of her deed is a material part of it and absolutely essential to its validity. The common-law restriction on her right to convey has been relaxed, but still it results from such statutes as regard her acknowledgment as a part of the con- veyance that the deed is void without ^ch acknowledgment. In a case in Illinois, Mr.' Justice Caton correctly stated the rule which generally prevails, and observed : " Without such acknowl- edgment the deed was absolutely void, and had no more vitality than a piece of blank paper. Only by virtue of such acknowl- edgment certificate could the deed become operative. Its exe- cution could be proved in no other possible way, and in no other way could she convey. The certificate of acknowledg- ment of a deed from a femme covert to convey her own lands, is as much an essential part of the execution of the deed as her seal or signature, and without it the law presumes that it was obtained by fraud or coercion."^ Not even an equi- ' See for a general discussion of this subject, 2 Kent Com. 151. ' Mariner v. Saunders, 5 Gilm. 113, 125. See, also, to the same effect, Hoskinson v. Adkins, 77 Mo. 537; Mason «. Brock, 12 111. 273; 52 Am. Deo. 490; Ewald v. Corbett, 32 Cal. 493 ; Bagby v. Emberson, 79 Mo. 139; McLeran v. Benton, 43 Cal. 467 ; Wambole v. Foote, 2 Dakota, 1 ; Terry V. Hammond, 47 Cal. 32; Malloy v. Bruden, 88 N. C. 305; Morrison V. Wilson, 13 Cal. 498 ; McLawrin v. WUson, 16 S. C. 402 ; Dugger v. Collins, 69 Ala. 324 ; Johnson v. Bryan, 62 Tex. 623. In Mason v. Brock, supra, the court say: "A married woman can be divested only of her real estate in the mode prescribed by statute." In Martin v. D welly, 6 Wend. 9, 21 Am. Deo. 245, Mr, Justice Sutherland says : " By the common law, a femme covert could not, by uniting with her husband in any deed or conveyance, bar herself or her heirs of any estate of which she was seised in her own right, or of her right of dower in the real estate of her husband. This disability is supposed to be founded on the principle that the separate legal existence of the wife is suspended during the marriage, and is strengthened by the consideration that from the nature of the connection there is danger that the influence of the husband may be improperly exerted, for the purpose of forcing the wife to part with her rights in his favor. The law, therefore, considers any such deed or con- veyance as the act of the husband only, although the wife may have united in it, and restrained its operation to the husband's interest in the premises, and gives to it the same effect as though he alone had executed the con- veyance. The only mode in which a femme covert could at common law convey her real estate, was by uniting with her husband in levying a fine. This is a solemn proceeding of record in the face of the court, and the judges are supposed to watch over and protect the rights of the wife, and 561 ACKNOWI^EDGMENT BY wattrtttt^ WOMEN. § 549 table title passes by the deed of a married woman defectively acknowledged.* § 549. The law in CaJifomia. — A recent decision in Cali- fornia has left "in some doubt, whether a deed of a married woman is invalid or not, because the certificate of acknowledg- ment is defective. Prior to the adoption of the Codes, the same rule prevailed as to the necessity for the acknowledgment by a married woman of her conveyance as obtains elsewhere. It was- in the early cases held that her conveyance was invalid if not executed according to the provisions of the statute, and that her title did not pass, if the certificate of acknowledgment was defect- ive in any substantial respect.^ In one case that was decided! after the adoption of the Code, the court held, in conformity with the early decisions, that the certificate of acknowledgment is a material part of a married woman's deed, and essential to make it an operative transfer of title. Mr. Justice Morrison, after examining the cases, said, in delivering the opinion of the court : " We have thus seen that there is but one mode- by which a married woman can convey her separate estote, and that is prescribed by statute. All the cases hold that the provisions of to ascertain by a private examinatioii that her participation, in. the^act is- volnntaiy and unconstrained. This is the principle npon which^ the- efBcacy of a fine is put by most of the authorities : 3 Cru. Dig. 153, tit..3o,. ch. 10 ; 2 Inst. 515 ; 1 Vent. 121 a. But whatever may be the foundation! of the doctrine, it is now folly established. Our statute declares that no. estate of afemme covert residing in this State shall pass by her deed, with- out a previous acknowledgment made by her before a proper officer apart from her husband, that she executed such deed freely, without fear or compulsion of her husband : 1 Rev. Laws, 369. This provision, it will be observed, is an enlargement, and not a restraint of the common-law powers of a fe-mme covert. It authorizes a less formal mode of conveyance than was known to the common law. It gives to her deed, when duly acknowl- edged, the same power and effect as a fine ; but if not acknowledged accord- ing to the directions of the statute, it declares that no estate shall pass by it. It leaves it as it would have stood at the common law, if the statute had never been passed, absolutely void and inoperative." But see Hawes v. Mann, S Biss. 21. • Bagby v. Emberson, 79 Mo. 139. See Wambole v. Foote, 2 Dakota, 1. =■ Morrison v. Wilson, 13 Cal. 498; Terry v. Hammond, 47 Cal. 32; Mcl/eran v. Benton, 43 Cal. 467 ; Ewald v. Corbett, 32 Cal. 493 ; Pease t>. Barbier, 10 Cal. 436 ; Judson v. Porter, 53 Cal. 482. And see Selover v. A. K. Com. Co. 7 Cal. 266 ; Barrett v. Tewksbury, 9 Cal. 13 ; Salmon v. Wilson, 41 Cal. 595. I. Deeds. — 36. § 549 ACKNOWLEDGMENT BY MAEEIED WOMEN. 6G2 the statute must be sabstantially complied with; and if the certificate of acknowledgment is insufficient, the conveyance is absolutely void."* But in a later case, the court held that a different rule was laid down in the Civil Code from what formerly prevailed. The question was whether a defective certificate of acknowledgment to the deed of a married woman could be reformed in a court of equity. In determining this question 'the court considered the provisions of the statute relative to the acknowledgment of deeds by married women. It was decided that it was necessary as before, for a married woman to acknowl- edge the execution of her deed, but that the certificate of acknowl- edgment was no part of the conveyance. In other words, her deed would not be void for any defect that might appear ia ■the certificate of acknowledgment, if in fact she had properly acknowledged it.^ Mr. Justice McKee, in speaking of the first law enacted in the State concerning the conveyances of married women, which required that her deed should be executed and acknowledged by her husband, and certified in accordance with the statute, said: "Execution, acknowledgment, and certifica- tion were, therefore, made by the law, essentials of the convey- ance of the estate of a married woman ; and each was required to be made and done in the mode and according to the form .which the law prescribed. Her acknowledgment had to be made to an officer, qualified by the law to take it, to whom she was personally known to be the person whose name was sub- scribed to the conveyance, as a party thereto, or proved to be such by a credible witness; and upon being made acquainted with the contents of the instrument subscribed by her, she was required to acknowledge, on an examination separate and apart from and without the hearing of her husband, that she executed the conyeyance freely and voluntarily, without fear or compul- sion, or undue iflfluence of her husband, and that she did not wish to retract the execution of the same. In construing the fprovisions of the statute, the Supreme Court regarded a married -woman quoad her separate property as a femrne sole, with power to dispose of her property, whether real or personal, in the mode prescribed, but in no other. Accordingly, they held that not 1 Leonis v. Lazzarovioh, 55 Cal. 52, 69. » Wedel V. Herman, 59 Cal. 607. 563 ACKNOWLEDGMENT BY MAEEIED WOMEN. § 549 only signing and acknowledgment by her of the execution of a conveyance, according to the statute, before an officer qualified by law to take the acknowledgment, but the certification by the officer of the execution and acknowledgment of the conveyance, were each and all necessary parts of the conveyance ; and that any instrument in writing purporting to convey her real or per- sonal separate property, which was not acknowledged and certi- fied, or which was defectively acknowledged and certified, was absolutely void — a piece of blank paper, which could not be corrected or reformed in any particular in a Court of Chancery, ' because,' says the court, ' her consent to contracts must be per- fectly^ free. She can make no contract to bind her, except in the manner prescribed by law. The provisions of the statute must be strictly pursued.'"^ The learned justice then referred to certain sections of the Civil Code, bearing upon the conveyances of married women, and proceeded to say: "But the legal effect of these forms of procedure was changed. Joint execution of a conveyance by the husband and wife, and a separate acknowl- edgment by each, according to the forms prescribed, were still required for the disposition of her estate. But execution, acknowledgment, and certification of acknowledgment were no longer necessary to the validity of her conveyance. It was suf- ficient to pass her estate if she executed and acknowledged a conveyance thereof, according to the requirements of the Civil Code.^ When thus executed and acknowledged, her conveyance had the same effect as the deed of a feimme soleJ' Therefore, the certificate of acknowledgment is not an essential part of her con- veyance. That, under the CodeS, is regarded simply as record proof of the fact of acknowledgment. Where acknowledgment has been made, according to law, before an officer qualified by law to take it, the party making it has done all that the law requires to make the instrument her act and deed. Her deed thus executed and acknowledged may be valid, though defect- ively certified. The embodiment of the fact of acknowledg- ment, in the form of the certificate prescribed by law, devolves upon the officer who has taken the proof of it, and not upon 1 CitingBaiTett®.Tewksbury,9Cal.l4j Seloverw.A.R.C. Co.7CaL267. ■' Civil Code, ? 1093. » CivU Code, ? 1187. § 550 ACKNOWLEDGMENT BY MAEEIED WOMEN. 564 the party making it." The court held under a section of the Civil Code, which provides that when an instrument has been properly acknowledged, but defectively certified, the court may correct the certificate, that the certificate of acknowledgment of a married woman was within the purview of the statute ; and that a defect in her certificate of acknowledgment might, by a judg- ment, be rectified.^ But a defective certificate of acknowledg- ment of the deed of a married woman cannot be corrected under this provision of the Code, when the defective certificate was ijiade prior to the enactment of the Code.^ § 550. Comments. — In the case of Wedel v. Herman,* the question before the court was whether a defective certificate of acknowledgment of a married woman ciould be corrected. The right to have the defect rectified was based upon a provision of the Code, which declares : "When the acknowledgment or proof of the execution of an instrument is properly made, but defect- ively certified, any party interested may have an action in the District Court to obtain a judgment correcting the certificate." * Th&<30urt held that a certificate of acknowledgment of a married ^ See Civil Code, § 1202. The court said that the case of IJeonis v. Lazzarovich, 55 Cal. 62, was not in conflict with the views expressed, and observed : " Every judgment of every court must, of course, be considered with reference to the facts which were before the court for determination. In the facts and the principles of law applicable to them, the two cases are entirely dissimilar. In that case the object of the action was to correct an alleged mistake in the deed of a married woman. The deed had been duly executed, acknowledged, and certified, and the court held, that it could not be reformed by adding to it any other property than what was described in it, because a married woman cannot be divested of her real estate, except in the mode presoribed by the Codes. Therefore, the judg- ment of the lower court, directing a married woman defendant, to execute and acknowledge within a certain time, another deed conveying other lands than those described in her original deed, was adjudged erroneous. Certain expressions in the opinion as to the power of the court to correct a defective certificate of acknowledgment to such a deed, though sustained by authorities of other States, and by the decisions in our own State prior to the adoption of the Codes, went beyond the facts of the case, and are not applicable to the facts of this case; for in this, the execution and acknowledgment of the conveyance were complete, but the certificate of the ofl&cer was defective." And see Durfee v. Garvey, 65 Cal. 406; 3 West C. Kep. 356. 2 Judson V. Porter, 53 Cal. 482 5 59 Cal. 507. * CivU Code Cal. § 1202. 565 ACKNOWLEDGMENT BY MAEEIED WOMEN. § 550 woman might be corrected under this section. It, however, conceded that an acknowledgment was still necessary to the validity of a married woman's conveyance, but decided that a proper certification of it was not. Some interesting questions may arise under this view of the law. Suppose that a deed of a married woman had been in fact properly acknowledged, but the acknowledgment is defectively certified, and it becomes necessary to introduce this deed in evidence as one of the links in the chain of title. Presumptively the certificate states the truth. If the statement of any material fact is omitted, the presumption is that it did not occur. If, for instance, the deed was acknowledged by a married woman as though she were a fern'me sole, it would convey no title, as recently decided by the Supreme Court of that State.^ Now, in the case supposed, could the party seeking to introduce the defectively certified deed in evidence prove, in a case in which the married woman was not a party, for the purpose of rendering it admissible, that it was properly acknowledged? It may be plausibly urged that he could. That the deed as between the parties and all the world, except bona fide purchasers in good faith, without notice, is valid, is the conclusion reached in Wedel v. Herman. This being assumed, it may be said that the certificate of acknowledg- ment is to be treated simply as one mode of proof of its execu- tion, and that if the certificate is defective, its execution may be proved by other means. But it is conceived that this cannot be done. If such a practice were permitted, aside from other objections to it, the title of a married woman might be divested without her consent in a case to which she was not a party. Under the section quoted her deed would be inadmissible in evi- dence, in our opinion, until the defective certificate had been corrected by the judgment of a competent court.^ 1 Duriee v. Garvey, 65 Cal. 406; 3 West C. Rep. 356. 2 In Bank of Healdsburg v. Bailhaohe, 65 Cal. 327, 3 West C. Kep. 140, It was said, arguendo: "The contention of the plaintiff that the deed was delivered when Mrs. Bailhache signed it in the presence of the notary, and silently passed it to Bloom, cannot be successfully maintained ; for although signed, the deed was not acknowledged and certified according to law ; and until the deed of a married woman is acknowledged and cer- tified according to the formalities prescribed by sections 1186 and 1191 of the CivU Code, it has no validity, and is not in a condition to be delivered or accepted." § 551 ACKNOWLEDGMENT BY MAKEIED WOMEN. 566 § 551. Separate examination of wife. — In most of the States, the statute relating to acknowledgments requires that there shall be a private and separate examination of the wife. The general rule under these statutes, is that the certificate of acknowledg- ment must show the fact of such private examination or it will be void.* Accordingly, where a certificate of a married woman recited that she appeared before the officer "and acknowledged herself party to the annexed deed of trust,' and being examined and apart from her husband, acknowledged that she signed, sealed, and delivered the same for the purposes and considera- tion therein expressed, and that she wished not to retract it," the certificate was held defective and worthless, because it failed to show that she was examined separate and apart from her hus- band, or the person by whom she was examined. All the recitals contained in the instrument may have been true, and yet they were not inconsistent with the idea that she might have never acknowledged to the officer her willingness to sign the instru- ment.^ So in West Virginia, the certificate of the notary stated • Kendall v. Miller, 9 Cal. 591 ; McMullen v. Eagan, 21 W. Va. 233; Selover v. Russian Am. Com. Co. 7 Cal. 266 ; Sibley v. Johnson, 1 Mich. 380 ; Jonrdan v. Jourdan, 9 Serg. & R. 268 ; 11 Am. Dec. 724 ; McLerau v. Benton, 43 Cal. 467 ; Laidley v. Knight, 23 W. Va. 735 ; Pratt v. Battels, 28 Vt. 685 ; Graham v. Long, 65 Pa. St. 386 ; Watson v. Michael, 21 W. Va. 568 ; Steele v. Lewis, 1 Mon. 48 ; Clayton v. Rose, 87 N. C. 106 ; Phillips v. Green, 3 Marsh. A. K. 7; 13 Am. Deo. 124; Harty v. Ladd, 3 Or. 353; Bagby v. Emerson, 79 Mo. 139 ; Clayton v. Rose, 87 N. C. 106 ; Garrett v. Moss, 22 111. 363 ; Tate v. Stooltzfoos, 16 Serg. & R. 35 ; 16 Am. Dec. 546 ; Edgerton u. Jones, 10 Minn. 427 ; Marsh v. Mitchell, 26 N. J. Eq. 497 ; Armstrong v. Ross, 20 N. J. Eq. 109 ; Lyon v. Kain, 36 111. 362 ; Rice v. Peacock, 87 Tex. 392 ; Stillwell v. Adams, 29 Ark. 346 ; Shryrock v. Can- non, 39 Ark. 434 ; Hartley v. FerreU, 9 Ela. 374. See Ellett v. Richardson, 9 Baxt. (Tenn.) 293. 2 Rice V. Peacock, 37 Tex. 392. In Jourdan v. Jourdan, 9 Serg. & R. 268, 11 Am. Dec. 724, the opinion of the court was delivered by Tilghman, C. J., who said: "This deed was acknowledged by both the grantors before James M. Gibbons, a justice of the peace of Chester County, as appeared by his certificate; but it did not appear that the wife was examined separate and apart from her husband, and that was the reason of the rejection. As to the acknowledgment of deeds by married women, the principle now firmly established is, that the requisites of the act of assembly by which the mode of conveyance byfemmes covert is prescribed, must appear to have been substantially complied with on the face of the certificate made by the magistrate by whom the acknowledgment was taken : Watson v. Bailey is the leading case, 1 Binn. 470 ; 2 Am. Dec. 462 ; since which have been the cases of Mclntyre v. Ward, 5 Binn. 296 ; 6 Am. 667 ACKNOWLEDGMENT BY MAilEIED WOMEN. § 551 that "personally appeared before me, the undersigned notary public for said county, Abby Tream, the wife of said J. Tream, whose names are signed to the foregoing assignment, and being by me, in accordance with the law in that case, made and pro- Dec. 417; Shaller v. Brand, 6 Binn. 435; 6 Am. Deo. 482; Evana v. The Cominonw. 4 Serg. & B. 49 ; 8 Am. Deo. 711 ; Watson v. Moreen, 6 Serg. . Randolph, 12 Leigh, 445 ; Lef twich v. Neal, 7 W. Va. 569 ; Harvey v. Peck, 1 Munf . 518. 2 Garrett v. Moss, 22 111. 363, 364 ; Elliott v. Peirsol, 1 Peters, 328 ; Board of Trustees v. Davison, 65 111. 124 ; Healey v. Rowan, 5 Gratt. 414 ; 52 Am. Dec. 94 ; StUlweU v. Adams, 29 Ark. 346 ; Jordan v. Corey, 2 Ind. 385 ; 52 Am. Dec. 516; McCann v. Edwards, 6 Mon. B. 208; Dewey v. Campau, 4 Mich. 565; Russ v. Wlngate, 30 Miss. 440; Den ex dem. Etheridge v. Ashbee, 9 Ired. 353 ; WUlis v, Gattman, 53 Miss. 721 ; Warren v. Brown 25 Miss. 66 ; 57 Am. Dec. 191. ' Harrisonburg Bank v. Paul, 75 Va. 594 ; 40 Am. Rep. 740. * McMullen v. Eagan, 21 W. Va, 233 ; Watson v, Michael, 21 W. Va. 568, 569 ACENOWLEDGMENT BY MAEKIED WOMEN. § 552 nation. It has been contended that a private examination signifies that not only the husband but all other persons should be excluded when this examination occurs. And in one case it was decided that the examination would be vitiated, if any other person than the officer and the wife were present, for such examination, it was said, would not be private.* But shortly after, in the same court, this question received the most careful examination and consideration, and this case after a re-examina- tion was overruled, the court observing: "It appears to be almost universally held that a literal conformity to the words of the statute, in such cases, is not required, and that if -the requisites are substantially complied with, it is sufficient. What, then, is a substantial compliance with the statute ? In order to settle this, we must consider what particular evil was intended to be prevented, and what object was intended to be promoted. There is no difficulty in declaring that the object intended to be promoted was the free, voluntary, and unconstrained act of the wife; and that the evil intended to be obviated was the undue influence of the husband. It was presumed that his presence imposed constraint upon her, and that influence was intended to be removed by placing her out of its immediate operation, and where she would be presumed to act ' freely, voluntarily, and without any fear, threats, or compulsion of her husband.' The undue influence of others does not appear to have been contem- plated, nor does it seem to have been in the mind of the legisla- ture, that the influence of the husband might be excited through other persons present at the examination; for had this been the case, the provision doubtless would have been ' apart from her husband ' and all other persons. Great force is given to this view when we refer to what she is required by the statute to acknowledge, and which has reference entirely to her husband, namely, that she acted 'without fear, threats, or compulsion of 1 Warren v. Brown, 25 Miss. 66. " The acknowledgment made by the complainant, " said the court, "is not in accordance with the statute, but is defective in an essential particular. It is true that it states that it was made 'separate and apart from the husband,' but it does not purport to have been made on ' a private examination.' This is as essential a requi- sition of the statute as an examination 'apart from the husband.' For it will be readily seen that the objects of the statute might be easily defeated, if the examination was not made in private, as if made in the presence of the husband." § 552 ACKNOWLEDGMENT BY MAEEIED WOMEN. 570 her husband.' But it is urged that the terms of the statute require that it should be shown that her examination was both private and apart from her husband; that these terms were employed ex industria; that they are significant and must be complied with; and that the statute must be construed so as to give effect to all the words used. But words are to be construed with reference to the whole statute, its general scope and ol^ect, and the particular evil intended to be provided against; and the terms used must yield to the obvious intention to be collected from the whole act. We have above adverted to the evil intended to be prevented, and the reasons of this statute. Keep- ing these objects in view, what, then, are we to understand by the words ' private examination'? If it was intended that it should be out of the presence of all persons whatever, the words ' apart from her husband ' become useless, for that was already embraced by the words 'private examination' under the construction con- tended for. Suppose the words ' apart from her husband ' were omitted, can we attach any definite and practical understanding to the words 'private examination'? Do they necessarily exclude the husband's presence, and if they do not, as is most certainly true, do they necessarily exclude the presence of all other persons ? If not, what number and character of persons may b* present, and still the examination be 'private'? These considerations present great diificulties in deducing any practical rule from the statute upon the construction contended for. And these difficulties can only be avoided by applying the reason of the statute in its exposition. Otherwise it is vague and impracticable. That reason manifestly has reference only to the presence and the presumed influence of the husband. "When, therefore, the statute provides that the wife shall make the acknowledgment on a 'private examination,' 'apart from her husband, ' the latter clause was intended merely to explain and define what was meant by the words ' private examination,' which were too general and uncertain for any practical purpose. The substantial thing required to be done by her was to declare that she acted '^freely, without any fear, threats, or compulsion of her husband,' and this out of his presence, and apart from all lia- bility to his constraint."* The rule is now generally under- ' Love V. Taylor, 26 Miss. 567, 575, per Handy, J. 571 ACKNOWLEDGMENT BY MAEEIED WOMEN. §§ 553-554 stood as requiring that the husband is the only person who need be excluded from the examination. The presence of other per- sons does not make the examination less private.^ § 553. Comments. — It has been generally assumed that all that the statute requires is that the examination shall be separate and apart from the husband, and the very iufrequency with which the question has been raised shows that this has been the practical construction placed upon the statute. The word " pri- vate" is qualified by the words "apart from her husband." If this construction were not to be adopted, it would be useless to emjdoy the words "apart from her husband," as the term * pri- vate," in excluding all, would necessarily exclude the husband among the rest. That an influence of coercion might be exerted by a third party is not contemplated by the statute, the design of which is to secure the wife from the control or interference of her husband only. In fact, to the objection that an improper influence might be exerted by a third party, if allowed to be present, it may be answered that the examining officer may as readily be supposed to use intimidation. The law considers the wife sufficiently protected if she is examined where her husband can exercise no control over her wilL § 554. Husband must not be able to hear examination. — As the whole law relating to the acknowledgments of married women depends upon the supposition that the husband will unduly influence the wife, it follows that to make the examination the private one intended by statute, she must be free from all visible compulsion on his part. The acknowledgment must be taken out of his presence, where he cannot see or hear any indication of unwillingness which she may manifest in executing or acknowl- edging the instrument. If this be not done, she is not affisrded an opportunity to escape the coercion against which the law attempts to guard her.* And where a married woman objects to executing a deed, and her husband then speaks to her in threatening and abusive language, though the officer is not » Dennis v. Tarpenny, 20 Barb. 371 ; Thayer v. Tony, 37 N. J. L. 339. And see Den v. Gelger, 4 Halst. 233 j Nanty v. Bailey, 3 Dana, 111. » McCandless v. Engle, 51 Pa. St. 309. § 555 ACKNOWLEDGMENT BY MAEEIED WOMEN. 572 present, and immediately thereafter in her husband's presence she acknowledges the conveyance to be her voluntary act, it is held that the presence of her husband is coercive. In such a case the instrument is ineffectual to pass her title, as the acknowl- edgment is not taken apart from her husband.' The husband should be so far away that he cannot communicate to the wife by word, look, or motion.* § 555. Construction of partictilar certificates. — Where a stat- ute of Maryland required that a married woman should be examined "out of the presence" of her husband, it was held by the Supreme Court of the United States, that a certificate that she was "privately examined apart from and out of the hearing of her husband," was a sufficient compliance with the statute. "Now, although the words 'out of the presence' are not used here," said Mr. Justice Miller, " we are of opinion that the words which are used show necessarily and conclusively that the examination was had out of the presence of the husband. In the first place, it was had privately. As the object of the statute was not to provide for strict privacy from all persons, but only privacy from the husband, it is to be supposed that it was in this sense the justices used the word. It is also stated that she was examined apart from her husband. This expression is still stronger, and can mean nothing less than that the husband was not present when she was examined ; and to make it still clearer that this examinatipn, private and apart from her husband, was out of his presence, it is further certified that it was out of his hearing. Some decisions of the Supreme Court of Maryland have been cited to show that the rule there is a strict one as to the agreement between the certificate and the statute, but none which overturns the doctrine recognized by that court, as it has been by all others, that equivalent words, or words which con- ' Edgerton v. Jones, 10 Minn. 427. "Whatever other or further con- struction," said the court, "it may be necessary in a proper case to put upon the statute, it is clear that the object was to secure to the wife freedom of action, especially from the influence of her husband, in executing deeds of real property. We are clear that in this case his presence under the oircumstances was not permitted by the statute. It was a coercive presence." 8 Belo V. Mayes, 79 Mo. 67. 573 acknowIlEDGment by haeeied women. § 555 vey the same meaning, may be used instead of those to be found in the statute."* In Colorado, the statute provides that the officer taking the acknowledgment of a married woman shall certify "that the same was made upon examination separate and apart from, and out of the presence of the husband of such woman ; that the contents, meaning, and effect of such deed were by him fully explained to her."^ The certificate declared that the wife " having been by me examined separate and apart, and out of hearing of her husband, and the contents and meaning of said trust deed having been by me made known, and fully explained to her, acknowledged that she had fully and volun- tarily executed the same." It will be noticed that the officer uses the words " out of hearing," instead of those in the statute, "out of the presence," and omits the word "effect" contained in the statute, after the words " contents and meaning." But it was held that the certificate substantially complied with the law, and was sufficient.' Where it is required that she should be examined "privily and apart from her husband," a certificate that the commissioner took " the private examination," and that she acknowledged that "she executed the deed without any compulsion from her husband, or any other person," is regarded as sufficient.* A certificate of acknowledgment after reciting 1 Deery v. Cray, 5 Wall. 795, 807. » Rev. Stats. Colo. p. Ill, § 17. ■' Nippel V. Hammond, 4 Colo. 21 1 . The court, per Thatcher, C. J., said : " Is the omission of the words ' out of the presence of ' fatal to the acknowl- edgment ? There must be a substantial, though not necessarily a literal compliance with the statute. If the substituted words employed, con- sidered in connection with the entire acknowledgment, do not reasonably import that Mrs. Bohlscheid was examined ' out of the presence ' of her husband, the acknowledgment would be insufficient. Within the intent of the section just quoted the words 'separate and apart from' evidently include in their meaning 'out of the presence,' The section in terms declares that the married woman shall acknowledge the deed 'separate and apart from her husband,' omitting the words ' out of the presence.' That the legislature intended by this language that the acknowledgment should be taken in the absence of the husband, is apparent from the subsequent part of the section, which directs that the officer taking such acknowledgment shall certify that the same was made upon examination, separate and apart from, and out of the presence of the husband. By no rational construction can it be said that when a husband is in the presence of his wife, that she is separate and apart from him." * Skinner v. Fletcher, 1 Ired. 313. § 556 - ACKNOWLEDGMENT BY MAEEIED WOMEN. 574 the appearance of the wife continued, "who after a private examination, separate and apart from her said husband, acknowl- edges that she signed, sealed, and delivered the foregoing deed as her voluntary act, freely and for the purposes therein expressed, without any fear, threat, or compulsion of her said husband." To this certificate the objection was made, that although it stated that the wife was examined separately, yet it did not state that she acknowledged the instrument separately. But the court characterized the objection as hypercritical, and held the certifi- cate sufficient.^ § 556. Presumption of private examination. — Under some of the early statutes, all that the officer was required to certify was the fact of acknowledgment, and although he was compelled to examine the wife separately and apart from her husband, and ' to explain to her the full contents of the deed, yet it was not necessary that these facts should affirmatively appear from his certificate. Under these statutes, it would be presumed that he did his duty, and complied with these requirements of the statute, without a statement that he did so.'' In Indiana, with reference to the statute in force, when the acknowledgment was made, it was said : " It is the officer's duty, by this statute, before he takes the acknowledgment of a femme covert, to examine her apart from her husband, and make known to her the contents of the deed; and if, upon such examination, she declares, either expressly or in language implying it, that she had executed the deed voluntarily, etc., the officer must, under his hand and seal, and on the deed, certify the same; that is, he must certify that such declaration or acknowledgment of the voluntary execution of the deed was made before him. But the statute does not require, as we understand it, the certificate to show anything ' Kenneday v. Price, 57 Miss. 771. And see Bernard v. Elder, 50 Hiss. 336, where a certificate of acknowledgment omitting the words "as her voluntary act and deed," " freely," but containing the words "fear, threats, or compulsion of husband," was held sufficient. See also Pardun v. -Dobesberger, 3 Ind. 389; Webster's Lessee v. Hall, 2 Har. & McH. 19; 1 Am. Dec. 370. ' Coleman v. BiUings, 89 111. 183 ; Hughes v. Lane, 11 111. 123 ; 50 Am. Dec. 436 ; Kussell v. Admr's of Whiteside, 4 Scam. 7 ; Jordan v. Corey, 2 Ind. 385 ; Fleming v. Potter, 14 Ind. 486 ; RufCher v. McLennan, 16 Ohio, 639. And see Allen v. Reynolds, 4 Jones & S. (86 N. Y. Sup. Ct.) 297. 575 ACKNOWLEDGMENT BY MAEEIED WOMEN. §§ 557-558 more on the subject than the declaration or acknowledgment of the wife that she had voluntarily executed the deed. It will be presumed, the contrary not appearing, that the officer did his duty as to the separate examination of the wife, and making her acquainted with the contents of the deed. It is the acknowledg- ment only, not the circumstances under which it was made, that is required to be certified." * § 557. Comments. — The decisions referred to in the preced- ing section were based on special statutes, which, in the opinion of the court, required the officer to certify nothing more than the mere fact of acknowledgment, and under which it would be presumed that all antecedent acts had been duly performed. They do not, therefore, impugn the general rule that the cer- tificate of acknowledgment must show on its face, either by using the words of the statute, or other equivalent expressions, every act essential to its validity. Every essential act that it is not made by the certificate to appear will, as we understand the law, be presumed not to have occurred. § 558. Identity should appear. — The general rule, of course, prevails in reference to the certificates of married women, that it should appear that she was known to the officer taking the acknowledgment.^ A certificate of acknowledgment declared that the husband was personally known to the officer, and also that his wife appeared and acknowledged the deed. But the certificate did not state that she was personally known to the officer. A majority of the court held that the acknowledgment was insufficient. "A deed cannot be said to be acknowledged," said Mr. Justice Walker, in delivering the opinion of the court, "until it appears that it was the grantor himself, and not some person who may have personated him, who was before the offi- cer and made the acknowledgment. This provision is wise and salutary in its operation. If no such requirement existed, for- geries would be easily perpetrated, and it would be hard in all ' Stevens v. Doe, 6 Blaekf. 475, 476. ' Keynolds v. Kingsbury, 15 Iowa, 238 ; Gove v. Gather, 23 HI. 634 ; 76 Am. Dec. 711 ; Lindley v. Smith, 46 111. 623. But see Mount v, Kesterson, 6 Cold. 452. § 558 ACKNOWLEDGMENT BY MAEEIED WOMEN. 576 cases, and impossible in many, to prove the fact. Remove this safeguard, and titles to real estate would be held by a slender and brittle, tenure." * Chief Justice Breese, however, dissented from the opinion of the majority of the court, and said : " I think the statutory form of acknowledgment has been substantially complied with, as the magistrate certified the husband was per- sonally known to him, and his wife appeared and acknowledged the deed. And it is impossible he could certify she was the wife if he did not personally know her. The former includes the latter, and makes the acknowledgment a substantial compliance with the statute, which is all that is necessary. The objection is very technical, and defeats the right." ^ We think the opin- ion of the majority of the court founded on the soundest reason. It is true there is some ground for the assertion that the objec- tion is technical. But so, perhaps, is every objection that a cer- tificate of acknowledgment is defective. It is always dangerous to attempt to supply material matters by construction, and the rule ought not to be carried further than is necessary. Where the certificate omitted the name of the wife altogether, so that it read: "And the said , wife of said , having been by me examined," etc., it was held that the certificate was defective, and that the deed could not be received in evidence.' ' Lindley v. Smith, 46 111. 523, 527. ' Lindley v. Smith, supra. In that case the certificate was in the follow- ing form : "State of lUlnois, Clark County, ss. I, William 0. Whitlock, a justice of the peace in and for the said county, in the State aforesaid, do hereby certify that Joseph HoUenbeck, personally known to me as the same person whose name is subscribed to the foregoing warranty deed, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument as his free and voluntary act, for the uses and purposes therein set forth. And the said Hannah M. Hol- lenbeck, wife of said Joseph M. HoUenbeck, having been by me examined separate and apart, and out of the hearing of her husband, and the con- tents and meaning of the said instrument in writing having been by me made known and fully explained to her, acknowledged that she had freely and voluntarily executed the same, without compulsion of her said hus- band, and that she does not wish to retract the same. Given under my hand and seal this fourteenth day of January, A. D. 1859." That the fact that the person is known to the officer is required to be stated, see Tully V. Davis, 80 111. 103 j Shepherd v. Carrel, 19 111. 313 : Adams v. Bishop, 19 lU. 395. • Merritt v. Yates, 71 111. 636; 22 Am. Rep. 128. 577 ACKNOWLEDGMENT BY MAEEIED WOMEN. § 559 § 559. Statement of wish not to retract — The statutes rela- tive to the acknowledgment of deeds by married women gener- ally require that she should state that she does not wish to retract the execution of the deed. She has even at the very last moment still the right of retraction if she is not perfectly satis- fied. Whenever the statute contains a provision of this char- acter, the certificate must show that she stated that she did not wish to retract.^ In a case in Virginia, Mr. Justice Moncure speaks of the necessity of this statement appearing, and says : " This certificate wholly omits any declaration of the wife that she imshed not to retract what she had done, and contains nothing which tends to show that she made any such declaration. Her wish to retract what she had done is perfectly consistent with everything contained in the certificate. The law, as we have seen, expressed this declaration to be made and entered of rec- ord, and the requisition is very material. I am, therefore, com- pelled to say that in my opinion the certificate is fatally defective in this respect, and that the privy examination and acknowledg- ment of the wife were not duly taken."* A certificate, after stating that the wife acknowledged the deed, proceeded to declare "and that she does not wish to contract the same." The court held that the mistake obviously appeared that the word "con- tract" was written fijr "retract," and that it did not affect the certificate.* In Ohio, the statute provided that if a married woman, after the contents of the deed are explained to her, shall, upon her separate examination, "declare that she did voluntary sign, seal, and acknowledge the same, and that she is still satis- fied therewith, such officer shall certify such examination and declaration of the wife, together with the acknowledgment as aforesaid on such deed." Under this statute, it was held that a certificate of acknowledgment which omitted the statement "that she is still satisfied therewith," is defective.* In Rhode 1 Landers v. Bolton, 26 Cal. 393, 408 ; Belcher v. Weaver, 46 Tex. 293 ; 26 Am. Rep. 267; Linn v. Patton, 10 W. Va. 187; Bateman's Petition, 11 R. I. 585 ; Ruleman v. Pritchett, 56 Tex. 482. * Grove v. Zumbro, 14 Gratt. 501, 516. See, also, Chauvin v. Wagner, 18 Mo. 531 ; Le Bourgeoise v. McKamara, 5 Mo. App. 576, appendix. » Belcher v. Weaver, 46 Tex. 293, 297 ; 26 Am. Rep. 267. * Ward V. Mcintosh, 12 Ohio St. 231. In this case, Peck, J., delivered the opinion of the court, and said : " At common law the wife could not, I. Deeds.— 87. § 559 ACKNOWLEDGMENT BY MAEEIED WOMEN. 578 Island, the statute provided that the wife should be examined privily and apart from her husband, and should declare to the during coverture, transfer her interest in real estate by any ordinary con- veyance, and this enabling statute only authorizes its being done, under certain guards and restrictions, designed to obviate aily undue influence or persuasion o( the husband, and leave her free and untrammeled. It would seem, therefore, that every precaution which the statute enjoins should be substantially complied with before an instrument executed by her shall have the effect of encumbering or divesting her estate. Promi- nent among these safeguards is the provision requiring a declaration by the wife to the ofllcer taldng the acknowledgment, in the absence of the husband, and after explanation of the effect of the instrument, not only that she did voluntarily sign, seal, and acknowledge it, which was sub- stantially complied with in the above certificate, but also that she is still satisfied therevnth, and willing to part with the interest it purports to oon- -vey. The husband, without resorting to coercive measures, may induce a .dependent and confiding wife to consent to a sacrifice of her true interests — a sacrifice to which she may have voluntarily, though reluctantly, con- sented. This provision was designed to confer upon a wife thus circum- stanced a locus penitential — an opportunity to withdraw before becoming irrevocably bound. To this end, she is to be removed temporarily from the presence and direct influence of her husband, and informed of the legal effect of the instrument she has executed, and required to declare :her continued satisfaction with or dissent from the projected contract. In vview of the extraordinary influence which an embarrassed or unscrupu- lous husband may exercise over one in such intimate relations with him, such a provision seems eminently just and appropriate Courts liave, certainly, gone great lengths in sustaining conveyances of married women, which have been defectively acknowledged. They were, no doubt, stimulated to do so by the fact that otherwise the parties aggrieved ■would be without remedy ; but this is no longer true, as the Constitution and the law at this day, in all proper cases, afford- a remedy against such persons. A somewhat similar question arose in the States of Illinois and Missouri, under statutes of those States by which the deed of a fenvme covert is made obligatory upon her, if she, upon separate examination, shallacknowledge that she executed the deed voluntarily, etc., amd does nut wish to retract, the certificate failing to state that she did not vrish to retract. In each of those States the courts were divided on the question ■whether a fair construction of the statutes, under which the acknowledg- jnents were taken, required the officer to certify that she did not wish to retract ; but all the judges seem to concur in holding that if it was so required, the objection would be fatal : Hughes et al. v. Liane et al. 11 111. 123 J Chauvin et al. v. Wagner, 18 Mo. 531. The question which divided the courts of those States could not arise under our statute, which impera- tively requires the declaration to be made, and if made, to be certified upon the deed itself. We are aware that the views here expressed are in conflict with the case of Card v. Patterson, 5 Ohio St. 319. In that case, which arose under the Act of 1831 , a certificate by a justice of the peace, ' that the said Maria (the wife), being by me examined, separate from her hus- band, declared that she signed the same of her own free -will and accord,' 579 ACKKOWUEDGMEirT BY MAKBIED WOMEN. § 559 officer taking such acknowledgment that the deed shown and explained to her by the officer is her voluntary act, and that she does not wish to retract the same. A certificate of acknowledg- ment stated that the husband acknowledged the deed to be his voluntary act and deed, and the wife "being examined separately and apart from her husband, acknowledged the same before me." The court said that the fair construction of the language was that she was examined separate and apart from her husband in reference to the deed, but added : " The result of that examina- tion is but imperfectly given, when it is added, she acknowl- edged the same. The object of the privy examination is not merely that she should declare to the magistrate that she had executed the deed, but that she might declare whetlier she had executed it freely, without constraint, and that it is at the moment of examination, her firee and voluntary act. The magistrate may have intended this by his certificate. But preceded by the joint acknowledgment of the deed by her and her hus- band, was held effective to transfer her interest in the lands conveyed. This certificate, it is true, varies from the certificate of Mrs. Mcintosh in this, that it is preceded by a joint acknowledgment of husband and wife, and renders the inference that she thereby expressed her satisfaction, less forced than in the case at bar. Still it is not to be disguised that under our conceptions of the statute, the certificate was insufficient. The declaration of continued satisfaction to which we attach such Importance does not appear to have been noticed by the court or the counsel managing the cause. The court refer to the statute of 1818, and the decisions under it, and the earlier Jaws, and after contrasting the certificate before them with one adjudged to be sufficient under the Act of 1818, in Vattier v. Chessel- dine, 16 Ohio, 661, arrive at the conclusion ' that the certificate iu question, under the adjudications of this court, substantially complies with the requirements of the Act of 1831. None of the statutes under which the adjudications referred to were made, contain the same or any similar pro- vision, it having been introduced for the first time into the Act of 1831, to protect the estates of married women from hasty and ill-advised alien- ations. While we entertain profound respect for the learning and ability of the court making the decision in that case, we are constrained to think it was decided upon its supposed analogy to adjudications under statutes essentially variant, and without properly estimating the change effected or intended to be effected by the Act of 1831. We are also sensible of the impolicy of disturbing decisions in reference to alienations of real estate ; but we regard the decision in Card v. Patterson as a substantial repeal of an express statutory provision, and a majority of the court are fain to believe that a speedy retraction will be productive of less injustice than is likely to ensue from a blind adherence to a solitary decision made in direct contravention of the statute." But see, also, Etheridge v. Ferebee, 9 Ired. 312. § 560 ACiKNOWLEDGMBNT BY MAEKIED WOMEN. 580 the question is not what the magistrate intended, but what the words of the certificate by fair construction expressly or neces- sarily imply. We cannot extend these words by construction, without taking for granted the very fact which it was the design of the statute that the magistrate should certify. But for this we may as well assume that the words imply that she acknowl- edged it to be an instrument executed by constraint, as that it was her free and voluntary act. The certificate, therefore, is insufficient as it stands, and cannot be extended by construction without taking for granted the fact, which it was the intent of the statute that the certificate should ascertain, to wit, whether the deed was her willing or unwUling act at the time of taking the acknowledgment. It 4s upon the deed, as the present act of her will, that the statute emphatically insists, when it requires that she should declare that she doth not wish to retract the same." ^ In a later case in the same State, where the certificate omitted the statement of a wish not to retract, it was argued that it might be presumed that she did not after signing change her mind. But the court responded: "Undoubtedly we may presume so, and yet the fact may be otherwise. And because it may be otherwise, the statute requires the more plenary proof afibrded by the declaration. "We have no right to dispense with BO positive a requirement Of course, it is not necessary, however desirable it may be, for the certificate to follow the language of the statute. But it is necessary for it to show, either expressly or by intendment, that the acknowledgment or declaration prescribed has been given in substance if not in form.'"' § 560. Explanation of contents of deed. — Another require- ment generally found running through all the statutes is that the officer shall explain or make known to the married woman seeking to acknowledge the deed, the contents of the instrument. This is generally regarded as an essential requirement, and the fact of such explanation should be stated in the certificate. In a case in California, where the certificate of acknowledgment was defective in this respect, and where the wife was unable to write, > ChurchUl v. Moore, 1 R. I. 209, 211, per Durfee, C. J. ? Bateman's Petition, 11 R. I. 585, 587. 581 ACKNOWLEDGMENT BY MARRIED WOMEN. § 560 Chief Justice Terry, in speaking of this provision of the statute, observed: "TJie legislature designed bj these provisions to pre- vent the execution of any conveyance by a married woman from being procured by deceit or misrepresentation, and this object could be effectually accomplished only by requiring the instru- ment to be explained to her before being acknowledged, in order that the execution might be retracted if procured by improper influences. Under our law, no presumption of knowledge on the part of a married woman of the contents of a deed, arises from the fact of executing it, and especially could no such pre- sumption arise in the present case, as it appears from the instru- ment itself that the wife was unable to write." * This question was very elaborately discussed in a case that arose in Virginia, and the conclusion was reached that this requirement of the statute was indispensable to a valid acknowledgment, and a certificate which omitted to state that it had been done was defective.^ Allen, J., said: "The certificate in the case under consideration varies from the form prescribed in several respects ; but enough appears upon its face to show that the law was sub- stantially complied with except in one particular; the justices do not certify that the deed was fully explained to the femme, nor is there anything in the certificate from which, in my opinion, we are authorized to infer that at the time of the acknowledg- ment of the deed she had knowledge of its contents. It has been argued with much ingenuity that, as it appears from the certificate that she had acknowledged that she had willingly executed said deed on her part, that implies a consent, and that she could not consent to that of which she was ignorant. The argument strikes me as more specious than sound. We can ^ In Pease v. Barbiers, 10 Cal. 436, 440. See, also, Hatchinson v. Ains- worth, 63 Cal. 286 ; Langton v. Marshall, 59 Tex. 296 ; Morman v. Board, II Bush, 135; Burnett v. McClney, 78 Mo. 676; Bateman's Petition, II R. I. 585; Boiling v. Teel, 76 Va. 487rBarnet v. Bamet, 15 Serg. & R. 72; 16 Am. Dee. 516 ; O'Ferrall -u. Simplot, 4 Greene, G. 162 ; S. C. 4 Iowa, 381 ; Ruleman v. Pritchett, 56 Tex. 482 ; Johnson v. Bryan, 62 Tex. 623. In Bamet v. Bamet, supra, it was said : "It does not appear by the certificate of this acknowledgment that the contents of the deed were made known to the wife, or that she did, in fact, know them. It has been expressly decided by this court that this is an incurable defect, and, therefore, the opinion of the court below was correct." 2 Hairston v. Randolph, 12 Leigh, 445. § 560 ACKNOWLEDGMENT BY MAEEIED WOMEN. 582 easily imagine that a wife might be readily brought to yield her consent to an act of this kind desired by her husband, though ignorant of its character. But with the plain requisitions of the statute before us, such speculations are unnecessary. At common law, she could not convey. The statute points out a mode by which a valid conveyance may be made. It is an innovation on the common law, and its terms must be sub- stantially complied with. By it, the certificate must in some form show, not only that she acknowledged the conveyance, and that she willingly signed, sealed, and delivered the same, and wished not to retract it, but that it was explained to her. The explanation is to be made that she may have knowledge of the contents ; but if the acknowledgment implies consent, and con- sent implies knowledge, then the simple acknowledgment would have been sufficient, and the other requirements would be super- erogatory Whilst a compliance with all the terms of the law is required to appear on the face of the certificate, we have a reasonable assurance that the leading object of the statute will be assured ; that is, the providing the wife with an opportunity, after a full understanding of the nature of the act she is about to do, of exercising her own free will. The certificate in the pres- ent case does not, in terms, state that the deed was explained to the wife; and there is nothing on the face of it to the same efiect, which justifies the inference that it was explained, or that she had knowledge of the nature of the act she was doing ; on the contrary, every word of the certificate may be true, and yet she may never have read the deed or heard its contents. There- fore, I think the certificate is defective and the deed not valid as to her." And Mr. Justice Cabell said : " In the case of a deed executed by a person not under the disability of coverture, the law infers, prima fade, that the party executing it had sufficient knowledge of the nature and effect of the deed, and that he acted freely and voluntarily. Therefore,^othing further is required than proof of the mere execution of the deed. But the law makes no such inference in the case of married women, who, being under the power and dominion of their husbands, may be sometimes coerced to do that which they would not willingly do ; and even where there is no coercion, they may be deceived as to the nature and effect of the act proposed to be done, by 583 ACKNOWLEDGMENT BY MAERIED WOMEN. § 561 the representations of their husbands, in which they generally repose an unsuspecting confidence. To guard the wife against these dangers, the law is not satisfied with her mere acknowl- edgment of the deed. Such acknowledgment does not and ought not to imply, that she acted either voluntarily or with proper knowledge. It may, in fact, have been made in terror of her husband, or in ignorance of the nature and effect of the deed. The law, therefore, has wisely ordained that, to give validity to the deed of a married woman, it must appear that in executing the deed she acted both understandingly and willingly. The certificate before us is fatally defective. It does not appear that^Mrs. Randolph was acquainted with the nature and effect of the deed. The certificate does not state that the deed was explained to her by the justices; nor does it state any circum- stance from which her knowledge of its contents can be fairly inferred." * § 561. Explanation in presence of husband.— It might seem that everything connected with the acknowledgment of a deed by a married woman should occur or be performed out of the pres- ence of the husband. It has been so repeatedly said, that the acknowledgment is meant to take the place of the ancient fine, and that the law has thrown around the wife all the safeguards to prevent any imposition or coercion on the part of her husband, that it would seem to follow as a natural conclusion that none of the elements of a perfect acknowledgment should be interfered with by the presence of her husband, who the law generally pre- sumes will exercise an undue influence over her. But it has been decided that an explanation of the contents of the deed in the presence of the husband does not affect the acknowledgment.^ 1 Hairston v. Randolph, supra; Boiling v. Teel, 76 Va. 487. But see Tod V. Baylor, 4 Leigh, 498. ' Moorman v. Board, 11 Bush, 135. In that case it was said by Lindsay, J., who delivered the opinion of the court (p. 139) : "The decided weight of the testimony is in favor of the conclusion that Board was not in the room, nor in sight of his wife at the time the clerk took the acknowledg- ment to the deed. Instead of coatradicting the presumption of law that she was examined separately and apart from him, it rather supports said presumption. But it is proved by the clerk, if he be a competent witness to prove such a fact, that he did not then and there, nor in fact at any time, explain to her the contents of the instrument. Appellants insist that it is equally as essential to the validity of a conveyance executed by a married § 562 ACKNOWLEDGMENT BY MAKEIED WOMEN. 584 § 562. Where officer himself not required to explain. — If the statute does not require that the officer shall himself explain the -woman that the clerk shall explain its contents and its eSeet to her sepa- rately and apart from her husband, as that her acknowledgment and con- sent shall be so given. The acknowledgment and the consent that the conveyance maybe recorded must be the free and unconstrained act of the wife. Unless the one Is made and the other given separately and apart from the husband, the presumption that she did not act freely and without constraint, arises as matter of law, and is conclusive of the ques- tion. While the law presumes, for the protection of the wife, that the presence of the husband puts her in moral duress, at least as to her actions, there is no such presumption as to the acquisition of Information by her, touching the contents and legal effect of a written instrument by which her rights are to be affected. The Information may be imparted in the presence of the husband. The wife may, in point of fact, draft the instru- ment herself, and may comprehend it more fully than the husband. To insure her an opportunity for free inquiry, the law directs the clerk to explain the deed to her separate and apart from her husband ; but as it is the information as to the contents and legal effect of the Instrument, and not the time, place, and mode in which it is imparted, nor the person who imparts it, that constitutes the essence of the legal requisition, it cannot be regarded as indispensably necessary that the deed shall have bfeen explained by the clerk in the absence of the husband in order to make it valid. That it was so explained, and therefore, that Mrs. Board did under- stand its contents and legal effect, is to bo presumed from the certificate of the clerk. Appellants seek to overcome this last and essential presump- tion by showing not that she did not understand the deed, but that the clerk did not explain it to her. We need not intimate what our decision would be if the proof left the case in this attitude. But it is proved beyond question that the attorney who prepared the conveyance, and who in the matter may be said to have represented as well Mrs. Board as her husband, did read the deed to her, and did explain to her its contents and legal effect. It is objected, however, that when this explanation was made the husband was present, and therefore Mrs. Board did not have an oppor- tunity to make full and free inquiry. The evidence does not very clearly show that the husband was present at the time of the explanation ; but if it be true thut he was, it is still manifest that Mrs. Board made all the inquiries that she desired to make. When the clerk in the absence of her husband offered to make the necessary explanation, she failed to avail herself of the opportunity to make further inquiry, and declined to listen to the tendered explanation, upon the ground that she had heard the deed read and understood it. Another circumstance worthy of note is that the conveyance accords exactly with the desire and intention of Mrs. Board as expressed to Heston, when in the absence of her husband she requested him to accept the conveyance, in order that she might reconvey to the appellee. We are asked in this case upon oral testimony, to disregard the presumption of law arising from the certificate of the clerk that Mrs. Board understood the contents and effect of the deed when she acknowledged it, and consented that it should be recorded. This oral testimony not only fails to contradict this presumption, but in fact shows that it is true. Such being the case, the presumption must control." 685 ACKNOWLEDGMENT BY MAEEIED WOMEN. § 563 contents of the deed to the wife, it is sufficient if she is made acquainted with the contents by any person, that the officer is cognizant of this fact and duly certifies to it in his certificate.' A certificate of acknowledgment stated that a married woman "acknowledged and declared that she was well acquainted with the contents of the deed." Although the certificate did not state that the contents of the conveyance were made known to her by the officer, it was considered sufficient.^ § 563. Omission of explanation. — A statute in Missouri, authorizing the acknowledgments of a married woman to be taken before certain courts, required that the certificate should set forth that the contents were "made known and explained to her." In a case before the court the certificate stated that the married woman was made acquainted with the contents of the deed but did not state that they were eayplained to her. The court held that this omission did not vitiate the certificate of acknowledgment.' " The duty enjoined upon the officer," said the court, " is to see that the woman understands the nature and effect of the instrument she has executed. It would clearly be superfluous for the court to attempt an explanation of the con- tents of a deed, if the woman should so state her own under- sta,nding of its effect as to show that she already understood it perfectly, and the certificate would be false, if it said that the con- tents of the deed were made known and explained to her, when the court took the acknowledgment upon ascertaining that she already knew and understood the contents.* Suppose a certificate should state that the woman appeared before the court and presented • Jaasen v. McCahill, 22 Cal. 563, 565 ; French Bank v. Beard, 54 Cal. 480. ' Thomas v. Meir, 18 Mo. 573. Concerning the objection that it did not appear that the oflBcer acquainted the wife with the contents of the deed. Gamble J., in delivering the opinion of the court, said : "The first objec- tion wiU not be considered in this case, but will be dismissed with the remark that when a married woman, on examination apart from her hus- band, declares that she is well acquainted with the content of the deed, the case ought to be considered as entirely unlike one in which the certificate is silent about her acquaintance with the contents of the deed. The certifi- cate should receive the most liberal construction in favor of supporting the conveyance." ' Chauvin v. Wagner, 18 Mo. 541. * Citing Mclntyre v. Ward, 5 Binn. 301 ; Talbot v, Simpson, 1 Peters C. C. 190. § 563 ACKNOWLEDOMKNT BY MAEEIED WOMEN. 586 * the deed for acknowledgment, stating that it was a deed for her own property, conveying it to the grantee for a consideration, which she named, and which was the consideration in th^ deed, and that the grantee was to receive the absolute estate in fee- simple, and that she described the property just as it was described in the deed.. If her statement, thus made to the court, corresponded with the language and legal effect of the deed, it is not doubted that she had already such acquaintance with the contents of the instrument as would dispense with any attempt on the part of the court to explain the contents to her. The design of the law would be accomplished, although the officer imparted no information to her. It would be a question of casuistry, whether the officer could certify that he made her acquainted with the contents of the deed, or explained the con- tents to her, when she knew them perfectly l)efore she came before him. The courts and officers intrusted with the duty must be supposed to understand the object of the statute in requiring them to see that the woman knows the effect of her act, and the certificate is only required to show that the duty enjoined upon the officer has been performed. In some cases, as where the instrument is in a language with which the woman is not acquainted, it would be necessary to explain the meaning of the words employed in the instrument. In some cases where there are complicated limitations, there may be a necessity for an explanation of the effect of such parts of the instrument. In such cases, the officer or court would -explain the instrument, and the law requires the explanation to be made, unless the woman had the requisite knowledge without the explanation. The certificate in the present case states that the woman was made acquainted with the contents of the deed, and this may be regarded as a statement that she understood the nature and effect of the instrument. There are many cases in different courts in which such strictness is required as would render this acknowledgment ineffectual, because the fact is not stated that the contents of the deed were explained to Mrs. Chauvin ; but we are not disposed to require any such literal compliance with the statute. It is said in the certificate that the contents were familiarly known to her, because that is the meaning of the words that she was made 'acquainted with the contents,' and 587 ACKNOWLEDGMENT BY MABBIED WOMEN. §§ 564r-565 we will intend that there was a case before the court taking the acknowledgment, which did not require any explanation to be made to the woman." ^ § 564. Acknowledgment by deaf mutes. — The information required to be given to a married woman concerning the contents and purport of a deed, may be done by signs, if she is a deaf, mute. And she may also signify her willingness to execute the deed, and the iact that she fully understands it, in the same mode.^ § 565. Execntion of deed must be voluntary and free from compulsion. — The very essence of the acknowledgment of a martied woman is that the execution of the deed is her volun- tary act, performed understand ingly and without coercion. Hence, to render the certificate valid, this fact must appear either by using the words of the statute or words of equivalent signification.* " The essential thing to be accomplished in effect- ing a conveyance by femmes covert is the privy examination, whereby it is ascertained that her execution of the instrument was voluntary, free, and without fear, compulsion, or undue influence. This was the essential thing in a conveyance by fine 1 Chauvin v. Wagner, supra. See, also, Ray v. Crouch, 10 App. Mo. 321 ; Talbot V. Simpson, 1 Peters C. C. 188 ; Martin v. Davidson, 3 Bush, 572 ; Nantz V. Bailey, 3 Dana, 111 ; Gregory v. Ford, 5 Mon. B. 471 ; Eavanaugh V. Day, 10 R. I. 393, 397 ; Hughes v. Lane, 11 HI. 123 ; 50 Am. Dec. 436 ; Nlppel V. Hammond, 4 Colo. 211. In Talbot v. Simpson, sr^ipra, Washington, J., said : " As to her knowledge of the contents of the deed, it is manifest, that unless the magistrate made them known to her, or she to him, he has certified a falsehood, for he states it as a fact, that she knew the contents, which he could not truly certify unless be had in some way satisfied himself that she did know them. And of what importance would it be, whether she obtained this knowledge from the magistrate, from her own examination of the deed, or even from the information of her husband, if the fact certified be true that she knew the contents." Whether the certifi- cate must state that the deed was explained to the wife is for the most part matter of special statutory regulation. In some Instances it has held unnecessary : Stevens v. Doe, 6 Blackf. 475 ; Gregory v. Ford, 5 Mon. B. 471 ; Chestnut v. Shane, 16 Ohio, 599 ; 47 Am. Dec. 387 ; Card v. Patterson, 5 Ohio St. 319. But see Good v. Zecher, 12 Ohio, 364 ; Connell v. Oonnell, 6 Ohio, 358 ; SUliman v. Cummins, 13 Ohio, 116 ; Meddock v. Williams, 12 Ohio, 377. » In the Matter of Harper, 6 Man. & G. 732. » Garrett v. Moss, 22 HI. 363; Bartlett v. Fleming, 3 W. Va. 163; Still- well V. Adams, 29 Ark. 346 ; Louden v. Blythe, 27 Pa. St. 22 j 67 Am. Dec. 442. § 566 ACKNOWLEDGMENT BY MAEEIED WOMEN. 588 in England ; and in all the varying legislation upon this subject in this State, and in all the States of the Union, this has been the one primary object in view. Whatever statutory provisions have reference to the complete accomplishment of that object, and the protection of the /emme covert, must be regarded as man- datory. But general provisions of the statute in regard to the mode of executing or authenticating such deeds, not having reference to this essential condition, need not be considered as mandatory, unless circumstances or the obvious intent of the legislature so indicate." * Where a certificate of acknowledg- ment stated that the married woman " acknowledged to me that she executed the same freely and voluntarily, and for the uses and purposes therein mentioned, without fear or compulsion, and that she did not wish to retract the same, well knowing the con- tents thereof, after due explanation by me made," it was held sufficient, although it omitted the words "undue influence" con- tained in the statute.* § 566. Comments — Equivalent words for voliintary act— It is manifestly impossible to lay down any universal rule by which it can be said that any particular word or phrase is the equiva- lent of the words used in the statute, requiring that the act of the/emTwe amert shall be voluntary and without compulsion. All that we can do is to bring to the attention of the reader gome of the cases in which the question has been decided, whether particular words are or are not of equivalent import with other words, and leave him to make the application to any particular case he may have under investigation. In some courts the rule • Mount V. Kesterson, 6 Cold. 452, 459, per Andrews, J. See, also, Gill v. Fanntleroy, 8 Hon. B. 177 ; Blackbam v. Pennington, 8 Mon. B. 217 ; Jones V. Lewis, 8 Ired. 70 ; Lucas v. Cobbs, 1 Dev. & B. 228 ; Pratt v. Battels, 28 Vt. 685. ^ Goode V. Smith, 13 Cal. 81. Baldwin, J., in delivering the opinion of the court, said : " We think that the acknowledgment was sufficient as to the husband and wife. It is true that it does not foUow the word of the statute, but this is not necessary. The certificate shows a privy examina- tion of the wife — that the deed was freely and voluntarily executed without threats, fear, or compulsion. It is true that it does not state that it was executed without undue influence ; but it is difficult to see how a deed, freely and voluntarily executed, without fear, threats, or compulsion, could be executed under undue influence, or Indeed any extraneous influence at all," 589 ACKNOWLEDGMENT BY MAEEIED WOMEN. § 567 that prevails is to uphold the certificate by all possible rules of construction. In others, a disposition is evinced to view the cer- tificate with strictness, and to require a literal compliance with every requirement of the statute. This fact may account in some measure for the conflicting decisions that are found upon the various topics relating to acknowledgments, while at the same time it shows the difficulty of formulating general rules. § 567. Instances. — In an early case in Maryland, a certifi- cate of acknowledgment stated that the wife being examined privately and out of the hearing of her husband, acknowledged that, she executed the same " of her own free will, and not through any threats of her said husband, or fear of his displeasure," but omitted the words " ill usage." It was held that this omission invalidated the deed.^ But it was held where the certificate stated that a married woman acknowledged the deed "freely without any fear, threats, or compulsion of her husband," that the omission of the word "voluntarily" was immaterial, as its place was substantially supplied by the other expression.* It has been held that the words " without undue influence or com- pulsion of her husband," are equivalent in signification to the clause, " of her own free will, without undue influence or com- pulsion of her husband." Said Harrison, J.: "The wife is under subjection to no one except her husband, and her freedom from the constraint and control of all other persons is presumed and need not be shown, and the free will with which she is required to act in the disposal of her real estate is freedom from the constraint and undue influence of her husband."* ' Hawkins v. Burress, 1 Har. & J. 513. Said Chase, C. J.: " It is not for the court to say what the words of the law ought to be, they must take them as they are. The court think the acknowledgment certified is defect- ive, and does not divest the estate of the femme covert, who was in this case grantor. They think the words ' ill usage by ' are material ; therefore, the court are of opinion, and so direct the jury, that the acknowledgment of the femme covert is defective, the words ' iU usage ' not being inserted in the certificate of the justices who took the said acknowledgment ; and that the said deed is inoperative to pass and transfer her interest in the said land." ' Lessee of Battin v. Bigelow, 1 Peters C. C. 452. ' ' Tubbs V. Gatewood, 26 Ark. 128. The statute then in force providing for the authentication of the certificates of married women was as follows : "The conveyance of any real estate by any married woman, or the relin- § 568 ACKNOWLEDGMENT BY MAEEIED .WOMEN. 590 § 568. Omission of the word "fear" — Conflicting decisions. — It was held in Alabama, that a certificate of acknowledgment stating that a married woman "signed, sealed, and delivered the above instrument, of her own free will and accord, and without any force, persuasion, or threats from her said husband, and for the express purposes therein stated," did not substantially com- ply with the statute requiring an acknowledgment that she signed, sealed, and delivered the deed " as her voluntary act and deed, freely, without any fear, threats, or compulsion of her said hus- band," for the reason that it omitted to state that she acknowl- edged the deed without any fear} In a later case in the same quishment of dower in any of her husband's real estate, shall be authenti- cated, and the title passed by such married woman voluntarily appearing before the proper court or officer, and in the absence of her husband, declaring that she had, of her own free will, executed the deed or instru- ment in question, or that she had signed and sealed the relinquishment of dower for the purposes therein contained and set forth, without compul- sion or undue influence of her husband." 1 Boykin v. Bain, 28 Ala. 332 ; 65 Am. Dec. 349. Mr. Justice Rice said : "It was essential that she should acknowledge, amongst other things, that she executed the mortgage ' without any fear.' She has not acknowl- edged this, nor anything in substance the same. It wUl not do to say she has acknowledged something like it. Kesemblance is not identity. Fear may exist on the part of the wife, ' without any force, persuasion, or threats ' from the husband. Her acknowledgment, that she executed the deed of her own free will and accord, is not identical in substance with an acknowl- edgment that she executed it freely, without any fear of her husband. Fear may exist, and often does exist, in a degree so moderate as not to destroy the freedom of the will. Thus, 'by faith, Noah, being warned of God of things not seen as yet, moved with fear, prepared an ark to the saving of his house : ' Hebrews xi. 7. A deed, executed with very slight fear, by a person sui juris, could not for that cause only be set aside. Fear may exist to a degree which amounte to undue influence, or moral coercion. But it may exist in a much more moderate degree, and fall far short of undue influence or moral coercion. It need not, and may not be the predominant motive. If the words contained in the acknowl- edgment by a married woman of the execution of a deed purporting to convey her land, do not exclude or negative the idea, that at the time she executed the deed any fear of her husband existed, the acknowledgment is insufficient, without regard to the degree of that fear. Her acknowledg- ment that she executed it of her own free will and accord, does not negative the existence of fear in its mildest and most moderate degree. We cannot dispense with any requirement of the law (Bright v. Boyd, 1 Story, 486 ; 1 Story's Eq. ?§ 97, 117) ; and as the acknowledgment under consideration is not such as was prescribed, the mortgage did not pass the estate of Mrs. Hazard in the land: HoUingsworth «. McDonald, 2 Har. & J. 230 ; Chauvin V. "Wagner, 18 Mo. 531 ; Elliott v. Piersol, 1 Peters, 338 ; Gill v. Fauntleroy, 591 ACKNOWLEDGMENT BY MAEEIED WOMEN. § 568 State, this certificate of acknowledgment again came before the same tribunal. There was at this time a change in the members of the court, and a majority of the court said they were not satisfied with the former decision, but would adhere to it, to avoid the injury that would ensue from overruling it.^ Mr. Justice Stone, with whom concurred Mr. Justice R. W. Walker, said, speaking of the former case of Boykin v. Rain : " In that case the court held, that the certificate was not a substantial compliance with the requirements of the statute, and that con- sequently the title did not pass. The case was decided before I became a member of the court; but an application for a rehear- ing was submitted to the court after my election. The majority overruled the application, but I did not concur in their con- clusion. That decision has stood for seven years; and although I am not convinced of its correctness, I think more evil would result from overturning it now, than from adhering to it. Few deeds, if any, will be found so entirely like the one there con- strued, as to constitute that case a dangerous precedent; and uniformity of decision in cases affecting rights of property, is one of the benefits that result from a well regulated judicial system. I adhere to that decision." But A. J. Walker, C. J., said : " I was on the bench when the opinion in Boykin v, Rain,^ was delivered. That opinion has the full sanction of my judg- ment. The argument and investigation on this appeal has not shaken, but has served to confirm the conviction previously entertained. I hold, that the opinion in Boykin v. Rain was right; and I base my assent to an affirmance upon the intrinsic merits of the questions involved, and not upon the doctrine of stare deems." * These decisions, however, are in direct conflict with those on similar certificates of acknowledgment in other States. In Ohio, the statute required that if the married woman, upon an examination separate and apart from her husband, shall 8 Mon. B. 178; Jourdan v. Jourdan, 9 Serg. & K. 274; 11 Am. Deo. 724; Flanagan v. Young, 2 Har. & McH. 38 ; Martin v. Dwelly, 6 Wend. 9 ; '21 Am. Deo. 245 ; Green v. Branton, 1 Dev. Eq. 500 ; Bright v. Boyd, 1 Story, 487; 1 Story's Eq. Juris. g§ 96, 177; Moreau v. Detchemendy, 18 Mo. 522; Warren o. Brown, 25 Miss. 66." 1 Alabama Life Ins. & Trust Co. v. Boykin, 38 Ala. 510. 2 28 Ala. 332; 65 Am. Deo. 349. ' See Motes v. Carter, 73 Ala. 553. § 568 ACKNOWLEDCfMENT BY MAEEIED WOMEN. 592 declare "that she doth volnntarily, and of her own free will and accord, without any fear or coercion of her husband, did and doth now acknowledge the signing and sealing thereof," the officer shall certify the facts. The certificate of acknowledg- ment stated that the husband and wife appeared before the officer, and " having been made acquainted with the contents and being examined separate and apart, the wife, from the husband, aclsy owl- edged the above indenture to be their voluntary act and deed, for the uses and purposes therein mentioned," omitting the word "fear." The court held that this certificate substantially com- plied with the statute, and was sufficient.* Speaking of the objection that it did not appear from the certificate, that the wife acted without jear and coercion of the husband, Mr. Jus- tice Burnet, delivering the opinion of the court, said : " It is true that it does not appear from the certificate, that the wife acted without any fear or coercion of her husband. It is true that those words are not contained in the certificate, but the jus- tice certifies that she acknowledged the deed to be her voluntary act, and if voluntary, it could not have been done under the influence of fear or coercion. The term 'voluntary' is defined to be, acting without compulsion, acting by choice, willing, of one's own accord. The declaration of the wife then on her separate examination, excludes the idea of fear or force. If she executed the instrument willingly, of choice, and of her own accord, as her admission before the justice imports, she could not have been under the influence of fear, much less of coercion. An act done in consequence of fear, cannot be done willingly and of choice. The one unavoidably excludes the other, so that the magistrate, although he has not used all the words given in the statute, has taken one, which includes the substance of all the others." This decision has been affirmed in later cases." ' Brown «. Farran, 3 Ohio, 140, 153. ' Ruffner v. McLenan, 16 Ohio, 639 ; Bengenhart v. Cracrat t, 36 Ohio, St. 549, 573. In the former case Hitchcock, J., referring to Brown v. Parran, said (p. 652) : " I assented to the principles settled in this case, and think they should have never been departed from. Any other decision would have shaken the titles to many millions of property, which had been acquired by the then present holders, by fair and hona fide purchase. A contrary decision, it is true, might have enabled many widows to reclaim property, which had been by their consent sold and conveyed, for an 593 ACKNOWIiEDGMENT BY MAEEIEB WOMEN. § 568 In New Jersey, the statute provided that the estate of a married woman should not pass by her deed, unless on a private exami- nation she acknowledged that she "signed, sealed, and delivered the same as her voluntary act and deed, freely, without any fear, threats, or compulsion of her husband, and a certificate thereof written on or under the said deed or conveyance, and signed by the officer before whom it is made." A certificate of acknowl- edgment stated that the wife being "examined, separate and apart from her husband, did acknowledge that she signed, sealed, and delivered the same, freely and voluntarily, and without any threats or compulsion from her said husband." The court held that Qie certificate was not vitiated by the omission of the ^^jord: "fear." "The censure cast on this acknowledgment," said the court, "for the want of the word 'fear,' is entirely too severe a criticism, if a substantial compliance satisfies the act. It is very possible, as remarked by counsel on the argument, that fear-may exist without threats, but is not very easy to suppose there can be fear if there be no compulsion ; and if the wife executed! the deed 'freely and voluntarily,' she must necessarily have beam without fear. These expressions negative, in the most unequivo- cal and exclusive manner, the presence of fear." ^ ample consideration, or it might have efiabled them to enforce claims f6r - dower in premises, for the conveyance of which they had joined with their hasband, and done all on their part that could be done to make such con- veyance effective. And if such conveyances are not to be held effective, it is for the sole reason that an officer whose duty it was to take an acknowl- edgment of the conveyance, has omitted some technical formality, in reducing the certificate of acknowledgment to writing. Another reason why I assented to the principle of this decision, and why I am stiU willing to adhere to those principles, is that I am unwilling to adopt auy rule of construction to a statute, or to recognize as principle a law which will encourage any portion of the community, whether male or female, in fraud or dishonesty." " Den V. Geiger, 4 Halst. (9 N. J. L.) 225, 233. In Dundas v. Hitchcock, 12 How. 256, 269, Mr. Justice Grier said : " It is objected also that this acknowl- edgment is not in the very words of the statute. In the place of the words, ' as her voluntary act and deed,' it substitutes the words, ' freely and of her own accord.' That the words of the acknowledgment have the same mean- ing, and are in substance the same with those used in the statute, it needs no ai-gnment to demonstrate ; and that such an acknowledgment is a suf- ficient compliance with the statute to give validity to the deed of the wife, is not only consonant with reason, but as the cases cited by counsel show, supported by very numerous authorities. The act requires a private examination of the wife to ascertain that she acts freely and not. by com- J. Deeds.— 88 §§ 569-570 ACKNOWLEDGMENT BY MAEEIED WOMEN. 594 § 569. Comments. — There can be little doubt but that the decisions made in Alabama, in the cases cited, where the word "fear" was omitted, would not be accepted as authority else- where. Indeed, the very court that rendered the decision was convinced of its incorrectness, and only adhered to it on the doctrine of stare deems and because its overthrow would be followed by disastrous results. "While a compliance with the requirements of the statute should always be insisted upon, it should be a substantial, E^nd not a strictly literal compliance. Eegard should be had to the intention of the legislature, and if it is manifest that the conveyance of the married woman has been executed conformably to the provisions of the statute, and this fact is made reasonably to appear, the certificate should not be set aside, merely because there is a possibility that a state of fear might have existed on her part, which though not entirely excluded by the words employed, yet from them cannot be fairly implied.' § 570. Other cases in wMch certificates liave been construed. . — Where the statute required the certificate to state that she executed the deed "freely, voluntarily, without compulsion, constraint, or coercion by her husband," a certificate omitting these words and simply declaring that she had acknowledged the deed, and " had willingly signed, sealed, and delivered the same, and that she wished not to retract it," is a nullity.^ In West Virginia, the statute requires that the wife shall in pulsion of her husband, but it prescribes no precise form of words to be used in the certificate, nor requires that it should contain all the synonyms used in the statute to express the meaning of the legislature. In other acts of the same legislature, where a precise form of acknowledgment of certain deeds is prescribed, it is provided that 'any certificate of probate or acknowledgment of any such deed shall be good and effectual if it contain the substa,nce, whether it be in the form or not, of that set forth in the first section of the act : Clay's Dig. 153. The legislature have thus shown a laudable anxiety to hinder a construction of their statutes, which would require a stringent adherence to a mere form of words without regard to their meaning or substance, and make the validity of titles to depend on the verbal accuracy of careless scriveners." • But if the statute requires the word "fear" to be inserted in the cer- tificate, that word or one of similar import must be used, or the certificate will be held defective : HoUingsworth v. McDonald, 2 Har. & J. 230 ; 3 Am. Dec. 645. ^ Henderson v. Bice, 1 Cold. 223. 695 ACSKNOWXEDGMENT BY MAEEIED WOMEN. § 570 acknowledging her deed declare that "she had willingly exe- cuted the same, and does not wish to retract it." A certificate omitted the words that " she had willingly executed the same," although it contained the phrase, "and does not wish to retract it." The certificate, on account of this omission, was held fatally defective.' But a certificate of acknowledgment which shows 1 Leftwich v. Neal, 7 W. Va. 569. Paull, J., said: "In the certificate now under consideration, the declaration of the wife that she had willingly executed the deed is entirely omitted, but it does contain the words ' that she does not wish to retract it.' The certificate recites that she declared the same to be her act, and this is required by the statute ; but this by no means implies a compliance with the additional requirement of the statute immediately following, to wit : ' And declared that she had willingly exe- cuted the same, and does not wish to retract it.' If authority is needed on this proposition, it is found in Blackburn's Heirs v. Pennington, 8 Mon. B. 217. There the certificate showed that the grantors, including the wife, acknowledged the deed to be their act, and that she was privily examined. But the court held that this certificate must show that her acknowledg- ment was voluntary, and that it could not be inferred from the fact of her privy examination ; in other words, a certificate merely, that a deed was acknowledged to be her act, did not prove or show that it was a voluntary acknowledgment. And if under our statute the fact that a certificate showing that a femme acknowledged a deed to be her act, does not imply a compliance with the further requirement of the statute that she will- ingly executed the same, that these are in fact equivalent expressions, no more, we think, does the fact that the words, ' that she did not wish to retract it,' found in the certificate, prove or show that she willingly executed the deed. We do not think that it cau be necessarily inferred, because a femme acknowledged that she doth wish to retract what she has done, that, therefore, she willingly executed the deed. The execution might have been at one period and under duress or coercion, while theaoknowledgment that she did not wish to retract it is made at a subsequent time and under difiier- ent influences. It cannot be said, at least, that this is impossible. But here is the express provision of the statute requiring her declaration that she willingly executed the deed and does not wish to retract it to be certified and recorded. The two phrases are connected by the copulative conjunc- tion and, not by the disjunctive conjunction or; in the latter case they might have been construed as equivalent expressions, and the presence of the last might be construed as dispensing with that of the former. But the legislature has expressly inserted them both, and both, or an equivalent for both, must be embraced in a certificate, to make the deed operative. This we think is essential, in order that we may not, in the language of Judge Tucker, ' dispense with any part of the law,' and in the language of Judge Allen, ' there' is good reason for requiring a substantial compliance with all the requisites of the statute.' The legislature does not seem to have regarded these phrases as being of the same import, and the rules of interpretation require that the courts shall give effect to every part of the act. It has been contended that the case of GiU and Simpson v. Fauntleroy's Heirs, 8 Mon. B. 177, authorizes a different effect or construction to the language § 570 ACSKNOWLEDGMENT BY MAKEEED "WOMEN. 596 that the wife acknowledged the execution of the deed "without any fear, threats, or compulsion'' on the part of the husband, upon an examination separate and apart from him, is not rendered defective by the omission of the words " freely and voluntarily." * Where a statute required that the certificate should show that she had "of her own free will executed the deed, without com- pulsion or undue influence of her husband," it is a substantial compliance to state in the certificate that she acknowledged that she " signed said deed freely and of her own consent, but not by the persuasion or compulsion of her said husband," which latter expression is equivalent to the former.^ Where the statute requires that a deed shall be fully explained to the wife by the officer taking her acknowledgment, a certificate of acknowledg- ment reciting that the wife "being examined by me privily and apart from her husband, declared that she fully understood the contents of said deed, and that she signed it freely and without fear of her husband, and did not wish to retract it," is insuffi- cient.* So the omission of the words, "and for the purposes used is this certificate, and decides that the phrase, ' and does not wish to retract it,' is equivalent to the language 'that she willingly executed the same.' We observe that we have not seen the Kentucky statute, but we infer from the language of the courts, in the cases we have examined, that their statute does not contain the provision in the same form as ours, requiring the certificate of two independent facts connected together. Moreover, the certificate in this case of Gill & Simpson v. Fauntleroy's Heirs, states other matters not embraced in ours, and the judgment of the court is founded, seemingly, upon them all. The court say: 'The declara- tion that she did not wish to retract, is equivalent to a declaration that she wished the deed to stand as her deed ; and she further evinces this desire by again acknowledging it, and consenting that it might be recorded. It seems to us that this should be regarded as tantamount to a declaration that she fully acknowledged the deed.' We do not think this case, upon a careful examination, justifies the full effect which has been claimed for it, and cannot, we think, be allowed to override an express requirement of our statute. Upon the whole, we think the certificate is fatally defect- ive, in the particular to which reference has been made." 1 Allen V. Denoir, 53 Miss. 321. " liittle V. Dodge, 32 Ark. 453. See, also, for further cases. Belcher v. Weaver, 46 Tex. 293 ; 26 Am. Rep. 267 ; Dennis v. Tarpenny, 20 Barb. 371 ; Bernard v. Elder, 50 Miss. 336 j Stuart v. Dutton, 39 111. 91 ; Gorman v. Stanton, 5 Mo. App. 585 ; Meriam •«. Harsen, 2 Barb. Ch. 232 ; Bartlett v. Fleming, 3 W. Va. 163 ; Solyer v. Romanet, 52 Tex. 562; Lucas v. Cobbs, 1 Dev. & B. 228 ; Laird v. Scott, 5 Heisk. 314. ' Langton v. Marshall, 59 Tex. 296. 597 ACKNOWLEDGMENT BY MAEEIED "WOMEN. § 571 therein expressed," has been held to render the certificate defective/ § 571. Substantial compliance with the statute sufficient. — As the certificate of acknowledgment of a married woman is gener- ally considered an essential part of her deed, it is evident that there must be a compliance with all the statutory provisions on the subject. But, as is apparent from what has been said in pre- vious sections, it is not necessary that there should be a literal com- pliance with these provisions. The cases that have already been cited are authority for the statement that slight deviations from the language of the statute will not vitiate an acknowledgment. It is sufficient if the requirements of the statute have been sub- stantially observed. Without entering into details, we may quote as a correct exposition of the law upon this subject the remarks of Mr, Justice Breese : " It has been often held by this court that in the acknowledgment of a deed by a married woman, it is sufficient if it appears the statute has been substan- tially observed and followed, A mere literal compliance is not demanded or expected. The great object which the legislature seems to have had in view in prescribing the mode by which a married woman may be divested of her interest in land, seems to be that she should not be imposed upon or coerced by her husband, and to protect her from imposition and coercion, the officer shall examine her separate and apart from her husband, that he shall explain to her the nature of the act she is about to consummate, and this, by explaining to her the contents of the deed she has executed, and, if it is her own estate she is convey- ing, that she may retract if she desires to do so, for any cause then operating upon her. It is the design of the law she should be informed of her true position and of the real nature of her interest in the land, and this is presumed to be done by the offi- cer, by his certificate that he fully explained to her the contents of the deed. When all these appear from the certificate, slight departures from the words of the law will not prejudice; so long as the substance is preserved, mere technical objections will 1 Cnrrie v. Keir, 11 Lea (Tenn.) 138. § 572 ACKNOWLEDGMENT BY SIA3EIED WOMEIT. 598 not be favored."* Where the certificate states that the wife acknowledged that she "signed" the deed, this is a substantial compliance with a statute using the additional words "sealed and delivered." ^ Where the statute requires that the acknowl- edgment shall be " on examination apart from and without the hearing of her husband," and provides that- every certificate which substantially conforms to the requirements of the statute shall be valid, a certificate which states that the acknowledg- ment was made "on a private examination separate and apart from her husband" substantially complies with the statute.* § 572. Surplusage. — A certificate of acknowledgment that complies with all the requirements of the statute is not invali- dated by the fact that it states more than is necessary. This principle is frequently illustrated in cases where a clause is added relinquishing the right of dower when no such statement is necessary. It may not be inappropriate to give as a pertinent illustration of this principle a case which occurred in Mississppi, where the certificate of acknowledgment, after stating that the husband and wife acknowledged that they signed, sealed, and delivered the deed as their act and deed, proceeded to state that the wife "did, on a private examination made of her apart from her husband, acknowledge that she signed, sealed, and deliv- ered the same as her voluntary act and deed, and without any fear, threats, or compulsion of her said husband, and in bar of her dower." The property conveyed was the separate property of the wife, and, therefore, it was unnecessary to say anything about dower. It was urged before the court that these last words, "and in bar of her dower," should be understood as qualifying all that preceded them in the certificate of acknowl- edgment, and that the efiect of the whole acknowledgment was 1 In Stuart v. Dutton, 39 III. 91, 93. See, also, Muir v. Galloway, 61 Cal. 498; Kottman v. Ayer, 1 Strob. 552; Thayer v. Torrey, 37 N. J. L. 339; Keynolds v. Kingsbury, 15 Iowa, 238; Merriam v. Harsen, 2 Barb. Ch. 232 ; Young v. State, 7 Gill & J. 253 ; Langhorne v. Hobson, 4 Leigh, 224 ; Owen V. Norris, 5 Blackf. 479 ; Allen v. Lenoir, 53 Miss. .321 ; Johns v. Keardon, 11 Md. 465 ; Hughes v. Lane, 11 111. 123 ; 50 Am. Deo. 436 ; Hol- lingsworth v. McDonald, 2 Har. & J. 230 ; 3 Am. Dec. 545 ; Mclntire v. Ward, 5 Binn. 296 ; 6 Am. Deo. 417 ; Coombes v. Thomas, 57 Tex. 321. ' Mullins V. Weaver, 57 Tex. 5. * Muir V. Galloway, 61 Cal. 498. 599 ACKNOWLEDGMENT BY MAEEIED WOMEN. § 572 but a relinquishment of the wife's right of dower. But the court held that this clause was surplusage, and did not invalidate the certificate. In the words of the court : " The language of the latter clause must be taken with reference to the preceding clause, and also with reference to the interest intended to be conveyed, as shown by the deed itself; and so considered, it is not justly susceptible of any other construction than that on the private examination, she acknowledged that she executed the instrument as her act and deed, for the uses and purposes therein named, which appear by the deed to be a conveyance of the property as belonging to her. As the property was her separate estate, she, therefore, acknowledged that she conveyed it as such, according to the purport of the deed. This was manifestly the object which the parties intended to effect, and the words of the acknowledgment are sufficient for the purpose. The super- added words 'and in bar of her dower' do not restrict or impair the acknowledgment already made, but must be understood as intended to release her right of dower, in additicm to the estate already conveyed. This is the fair construction of the language used, and these concluding words were, doubtleSvS, used under the impression that her right of dower had to be released in terms, in addition to her acknowledgment that she conveyed her sepa- rate estate. But being useless, under the circumstances in which the title to the property stood, and merely in addition to what was previously stated, they are mere surplusage, and cannot limit or affect her acknowledgment as to the conveyance of her sole and separate estate, which was complete without them."* Where the statute requires that an express relinquishment of dower shall be inserted -in the certificate of acknowledgment of a married woman to bar her right of dower, to give the deed this effect, the statute must be complied with. The statement that she acknowledged the execution of the deed is not sufficient.^ • stone V. Montgomery, 35 Miss. 83, 106. See, also, Barker v. Circle, 60 Mo. 258 ; Chauvin v. Wagner, 18 Mo. 531 ; Perkins v. Carter, 20 Mo. 465 ; Chester v. Bumsey, 26 111. 97; Stuart v. Button, 39 111. 91 ; Moore v. Tit- man, 33 lU. 358 ; Delassus v. Poston, 19 Mo. 425 ; Hartley v. Ferrel, 9 Fla. 374. But see Lane v. Dolick, 6 McLean, 200 ; McDaniel v. Priest, 12 Mo. 644. ' Thomas v. Meier, 18 Mo. 573 ; Lindley v. Smith, 46 Hi, 524 ; Becker v. Quigg, 54 Dl. 390. §§ 573-574 ACKNOWLEDGMENT BY MARRIED WOMEN. 600 § 573. Commimity property. — In California, all property of either husband or wife, owned before marriage or acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits, is the separate property of such husband or wife. All other property acquired after njarriage by either hus- band or wife, or both, is community property, of which the hus- band has the management and control with the same absplute power of disposition that he possesses of his own separate estate.* The presumption is that all property acquired by either husband or wife after marriage is community property, and this presump- tion can only be overcome by evidence establishing its character as separate property.* Accordingly, though the property may stand in the name of the wife, yet, if required afl«r marriage, it may be, and will be presumed to be, community property, of which the husband has the power of disposition. If the wife should join in the deed with her husband, of property stending, in her name, but which is community property, the fact that the certificate of acknowledgment is defective, cannot afiect the valid- ity of the conveyance, for the reason that her signature is unneces- sary. "As the property belonged to the community, it was subject to the disposition of the husband. He was possessed of the same absolute power over it as over his separate estate. He could sell it without the concurrence or consent of his wife. It is of no moment, therefore, that the deed to the plaintiff was recorded with the defective certificate of her acknowledgment. Her signature to the instrument was unnecessary, for it could add nothing to the validity or completeness of the transfer. The entire estate passed upon the execution of the deed by the husband alone." ' § 574. Married woman acting as a femme sole. — As it is an established rule that a married woman cannot be divested of her » See Cal. Civil Code, g§ 162, 163, 164, 172. See voL 2, ?? 865-880. 2 Smith V. Smith, 12 Cal. 216; 73 Am. Deo. 533 ; Burton v. Lies, 21 Cal. 87 ; Althof v. Conheim, 38 Cal. 230; Meyer v. Kinzer, 12 Cal. 247; 73 Am. Dec. 538 ; Ramsdell v. Fuller, 28 Cal. 37 ; Adams v. Knowlton, 22 Cal. 283 ; Eiley v. Pehl, 23 Cal. 70 ; Peck v. Brumagim, 31 Cal. 440 ; Nott v. Smith, 16 Cal. 533; Lewis v, Lewis, 18 Cal. 654; Parry v. Kelly, 52 Cal. 334; Eslinger v. Eslinger, 47 Cal. 62. ' Pixley V. Huggins, 15 Cal. 127, 131, per Field, C. J. See Landers v. Bolton, 26 Cal. 420. 601 ACKNOWLEDGMENT BY MAKBIED WOMEN. § 574 title to land by an estoppel in pais, the question of the effect of her deed, executed and acknowledged by her in the character of afemme sole, when she is in reality a married woman, is one that is not free from difficulty. Where she is guilty of no positive, express misrepresentation, and the party with whom she is deal- ing has the means of ascertaining her status, it is difficult to see what element of fraud or deceit enters into the transaction to bind her by her act. Still it is manifestly unjust where she holds herself out as an unmarried woman to allow her to claim against an innocent purchaser, that a deed acknowledged by her in the capacity of a femme sole, is void because she, at the time of its execution, was married. This latter view is the one that has found favor with the courts, as being best supported by reason. Accordingly, where a decree of divorce is obtained by a married woman, which is void, but she takes her maiden name, acts as and represents herself for a long period of time to be a married woman, and lives apart from her husband, a deed of her separate Teal estate, acknowledged by her as an unmarried woman, it has been decided is sufficient to pass her title.^ So where a married woman left her husband in England, and formed a meretricious union in CaKfomia, and for fifteen years lived with her paramour, and executed to him deeds of certain lots of land, to which deeds the certificate of acknowledgment was in the form of that of a femme sole, and not in that prescribed by the statute for the acknowledgment of deeds executed by married women, it was held that she had estopped herself by her conduct from calling to her aid the statutes relating to the acknowledgment of deeds by married women, for the purpose of defeating her deeds, in an ' Beis V. liawrence, 63 Cal. 129. Said Ross, J., in delivering the opinion of the majority of the court : "Of course, under such circumstances, the reason for the rule that requires, in eases of married women, the certificate of acknowledgment to recite an examination without the hearing of her husband, does not exist. At least as early as July, 1872, the defendant Fanny lived apart from and independent of her husband. Later on, in 1873, she resumed her maiden name, and thence hitherto acted and repre- sented herself as a single woman. In that character, she executed the instruments in question, and in that character, in our opinion, a court of equity ought to regard her in the construction of them. As giving support to these views, see Bicheson v. Simmons, 47 Mo. 20 ; Bosenthal v. Mayhugh, 33 Ohio St. 155 ; Patterson v. liawrence, 90 lU. 174. " Justices HcKee and Thornton, dissented. § 575 ACKNOWLKDGMENT BY MAEKDED WOMEN. 602 action to quiet title.* If ejectment may be maintained, the purchase money should be first tendered back.^ § 575. Conunents, — In both of these cases dissenting opinions were filed, and it seems to us that these, considered with reference to the language of the statutes, are best supported by legal reason- ing. It, indeed, is hard to say that a conveyance of a woman representing herself to be unmarried, is void, because shels in fact married, although the grantee may not have the slightest knowledge or intimation of this fact. Yet the law has seen fit to say that a married woman shall convey her property in one way and in no other. The only question that should be solved is, is she a married woman? When her status is determined, her deed to have effect must, it seems to us, under the statute, be acknowledged in the manner prescribed. Without this acknoAvl- edgment, it is a nullity. While it is manifestly unjust to deprive a man acting in good faith of his property by an arbitrary rule of law, yet if that is the law, the hardship of an individual case ought not to be considered. It, perhaps, is only a question ot time when all restrictions on the power of married women to convey will be removed. She should be allowed to convey as if she were unmarried. But until thisse restrictive statutes have been repealed, they should be upheld and enforced. ^ Hand v. Hand, 8 West C. Kep. 344. Ross, J., concurring, said : " I agree that the plaintiff should be regarded as a single woman. The prop- erty to which she asserts title was acquired by her in this State. Her hus- band has never been within the United States. For twenty odd years she has repudiated her marital relations, and conducted herself without regard to them. Under such circumstances to permit her to fall back upon them, and render void her deed on the ground that the certificate of the notary does not recite that she was examined ' separate and apart ' from her hus- band, with whom she has held no relations for more than twenty years, and who has never been in this country, seems to me to be beyond all reason." Mr. Justice McEee filed a dissenting opinion. » Banner v, Berthold, 11 Mo. App. 351. CHAPTEE XXI. EEGISTRY liAWS OF THE SBVERAIi STATES. § 576. Statutory provisions. § 577. Alabama. § 578. Arizona Territory. I 579. Arkansas. I 580. California. I 581. Colorado. g 582. Oonnecticut. I 583. Dakota Territory. \ 584. Delaware. I 585. District of Columbia. i 586. Florida. \ 587. Georgia. \ 588. Idaho Territory. \ 589. Illinois. g 590. Indiana. g 591. Iowa. I 592. Kansas. I 593. Kentucky. I 594. Louisiana. \ 595. Maine. I 596. Maryland. \ 597. Massachusetts. g 598. Michigan. g 599. Minnesota. g 600. Mississippi. g 601. Missouri. g 602. Montana Territory. g 603. Nebraska. g 604. Nevada. g 605. New Hampshire. g 606. New Jersey. g 607. New Mexico T^erritory. g 608. New York. g 609. North Carolina. g 610. Ohio. g 611. Oregon. g 612. Pennsylvania. g 613. Bhode Island. g 614. South Carolina. g 615. Tennessee. §§ 576-577 REGISTBY LAWS. 604 g 616. Texas. i 617. Utah Territory. i 618. Vermont. I 619. Virginia. g 620. Washington Territory. g 621. West Virginia. I 622. Wisconsin. g 623. Wyoming Territory; I 624. Effect of statutes giving time to record deed— Valid from delivery. g 625. Protection of grantee. § 576. Statutory provisions. — The statutes of the different States are not uniform as to the time prescribed within which conveyances should be or are required to be recorded. In some of the States, it is provided by statute that the registration of a deed is effective as constructive notice from the time only when it is filed for record. In other States, the statutes allow a pur- chaser a specified time after the execution of the deed in which to have it recorded. The subject of registration is an important one, and many decisions are based alone upon the particular language of the statute. For the purpose of enabling the reader to determine whether a decision is founded upon the peculiar phraseology, or some special provision of a statute of a particu- lar State, as well as to furnish him with an idea of the reason for the conflict among the decisions that will frequently be found in the various questions arising from the registry laws, it has been considered advisable to give an abstract of the statutes of the different States relative to the registration of deeds. § 577. Alabama. — Unless recorded within three months from their date, all conveyances of unconditional estates and mortgages, or instruments in the nature of mortgages of real property, to secure any debt created at their date, are void as against pur- chasers for a valuable consideration, mortgagees, and judgment creditors without notice.* But all other conveyances of real property, mortgages, or deeds of trust, to secure any debts other than those above enumerated, are, as to purchasers for a valuable consideration, mortgagees, and judgment creditors without notice, inoperative and void, unless recorded before the accrual of the ' Rev. Code, 1867, p. 364, g 1557. 605 EEGISTBY LAWS. §§ 578-579 rights of such persons,^ But all such conveyances are perfectly valid without registration as between the parties themselves and against creditors, whose claims have not been put into judg- ments,* Conveyances must be recorded in the county in which the land lies,' in the office of the judge of probate.* The con- veyance is operative as a record from the day on which it is delivered to the judge.* And the recording in the proper office of any deed or conveyance of property which may be legally admitted to record, operates as notice of such conveyance, without any acknowledgment or probate.' § 578. Arizona Territory. — Conveyances are valid between the parties without registration, and are required to be recorded in the county in which the land is situated. The record when duly made imparts notice to all of the contents of the deed from the time it is delivered to the recorder, and all subsequent pur- chasers and mortgagees are considered purchasers with notice.^ § 579. Arkansas. — Every deed or instrument affecting the title in law or in equity to any property which is entitled to record, is constructive notice to all persons from the time such conveyance is filed for record in the office of the recorder of the proper county. The recorder is required to indorse on the instrument the precise time when it was filed for record.* No conveyance is good or valid against subsequent purchasers for valuable consideration, without actual notice, or against any creditor of the grantor, obtaining a judgment or decree, which may be a lien upon the real estate described in such conveyance, unless such conveyance shall be filed, after acknowledgment, for ' Rev. Code, 1867, p. 364, ? 1558. And see Gray's Adm'rs v. Cruise, 36 Ala. 559; Coster v. Bank of Ga. 24 Ala. 37; Jordan v. Mead, 12 Ala. 247; Wyatt ti. Stewart, 34 Ala. 716 ; De Yendal v. Malone, 25 Ala. 272 ; WaUis v. Rhea, 10 Ala. 451; Boyd «. Beck, 29 Ala. 703 ; Dearing«. Watkins, 10Ala.20. 2 Ohio Life Ins. & Trust Co. v. Ledyard, 8 Ala. 866 ; Andrews v. Burns, 11 Ala. 691; Center v. P. & M. Bank, 22 Ala. 473; Daniel v. Sorrells, 9 Ala. 436 ; Smith v. Branch Bank of Mobile, 21 Ala. 125. » Rev. Code, 1867, p. 362, g 1542. « Rev. Code, 1867, p. 361, g 1537. s Rev. Code, 1867, ? 1539. • Rev. Code, 1867, ? 1543. ' Compiled Laws, 1877, ?§ 2268, 2269. » Dig. of Stets. 1874, p. 275, i 860. § 580 REGISTRY LAWS. 606 record in the recorder's office of the county where such land is situated.^ A mortgage is a lien on the mortgaged property from the time the same is filed in the recorder's office and not before.* § 580. California. — A deed is conclusive against the grantor and all persons subsequently claiming under him, except pur- chasers or encumbrancers, acquiring in good faith and for a valuable consideration, a title or lien by an instrument which is first duly recorded.' A conveyance is constructive notice of the contents to subsequent purchasers and mortgagees from the time it is filed with the recorder for record.* A deed is void against subsequent purchasers or mortgagees of the same property, or any part thereof in good faith and for value whose conveyances are first duly recorded.^ Unrecorded instruments, however, are valid between the parties and those having notice.' And powers of attorney when recorded can be revoked only by an instrument recorded in the same office in which the power of attorney is recorded.' An assignment of a mortgage may be recorded, and the record operates as notice to all persons subsequently acquir- ing title from the assignor.' When a deed absolute in form is intended as a mortgage or to be defeasible on the performance of certain conditions, the deed is not defeated or affected as against any other persons than the grantee, his heirs or devisees, or per- sons having actual notice, unless the defeasance is recorded in the office of the recorder of the county where the land lies.' The recording of an assignment of a mortgage is not of itself notice to the mortgagor so as to invalidate any payment made by him to the mortgagee.'* 1 Dig. of stats. 1874, p. 275, § 861. See Hamilton v. Fowlkes, 16 Ark. 840 ; Byers v. Engles, 16 Ark. 543. » Dig. of Stats. 1874, p. 770, i 4288. See Jacoway v. Ganlt, 20 Ark. 190. » Civil Code, g 1107. * Civil Code, ? 1213. s Civil Code, ? 1214. « Civil Code, g 1217. ' Civil Code, ? 1216. 8 Civil Code, 1 2934. » Civil Code, §2950. '» Civil Code, g 2935. See generally on the subject of registration, Bird V. Dennison, 7 Cal. 297 ; Woodworth v. Guzman, 1 Cal. 203 ; Landers v. Bolton, 26 Cal. 893 ; Jones v. Marks, 47 Cal. 242 ; Fogarty v. Sawyer, 23 Cal. 607 EEGISTRY LAWS. §§ 581-582 § 581. Colorado. — Conveyances are recorded in the oiEce of the recorder of the county in which the land is situated, and take effect as to subsequent bona fde purchasers and encum- brancers by mortgage, judgment, or otherwise, not having notice thereof from the time of filing for record, and not before.* Deeds and other conveyances are deemed, from the time of filing for record, notice to subsequent purchasers or encumbrancers, though not acknowledged or proven according to law. But neither they nor the record can be read in evidenccj unless such conveyances are subsequently acknowledged or proved according to law, or their execution be proved in the same manner as other writings." § 582. Oonnectieat — No conveyance, unless recorded in the records of the town in which the land is situated, is effectual against any other person than the grantor and his heirs. The town clerk is required to note on the deed the day and year when he received it. When once received it shall not be delivered up again imtil it is recorded. If a deed is executed under a power of attorney the latter must be recorded with the deed,' When a conveyance of land lying in two or more towns is recorded in one or more of such towns, and is afterwards lost, a certified copy of the record may be recorded in the other towns, and haye the same effect as a record of the original.* " An acknowledged deed, and any instrument intended as a conveyance of lands, but which, by reason of a formal defect, shall operate only as a con- veyance of an equitable interest in such lands, and contracts for the conveyance of lands, or of any interest therein, and all iustru- 570 ; Vassault v. Austin, 36 Cal. 691 ; Patterson v. Donner, 48 Cal. 369 ; Smith V. Yule, 31 Cal. 180 ; Odd Fellows' Sav. Banli v. Banton, 46 Cal. 603 ; liawton V. Gordon, 37 Cal. 202 ; Hunter v. Watson, 12 Cal. 863 ; 73 Am. Dee. 543 ; O'Rourke v. O'Connor, 39 Cal. 442 ; Snodgrass v. Bioketts, 13 Cal. 359 ; Thompson v. Koche, 44 Cal. 808 ; Mahoney v. Middleton, 41 Cal. 41 ; Fair r. Stevenot, 29 Cal. 486 ; Wilcoxson v. Donner, 49 Cal. 198 ; Frey v. Clifford, 44 Cal. 335 ; Dennis v. Burritt, 6 Cal. 670 ; Long v. DoUarhide, 24 Cal. 218 ; Packard v. Johnson, 51 Cal. 545 ; McMinn v. O'Connor, 27 Cal. 238 ; Call v, Hastings, 3 Cal. 179; Chamberlin v. Bell, 7 Cal. 292; 68 Am. Dec. 260 J MoCabe v. Grey, 20 Cal. 509. 1 Gen. Laws, 1877, p. 139, ? 176 (ch. 18, § 17) » Gen. Laws, 1877, p. 140, ? 178. » Gen. Stats. Revision of 1875, p. 353, § 11. * Gen. Stats. Revision of 1875, p. 354, j 12. § 583 EEGISTRY LAWS. 608 ments by which an equitable interest in lands is created, in which such lands are particularly described, may be recorded in the records of the town in which such lands are; and such record shall be notice to all the world of the equitable interest thus cre- ated." * All conveyances of which the grantor is ousted by the possession of another are void unless made to the person in actual possession.^ But the possession by a mortgagee is not considered as being adverse.* Although a deed may not be recorded till after the death of the grantor, it is good as against a purchaser from his heir.* An action lies against the clerk for delivering up a deed before it is recorded.* § 583. Dakota Territory. — Every conveyance except a lease for a term not exceeding one year, is void as against subsequent purchasers whose conveyances are first duly recorded.' Under the term "conveyance" is included every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or encumbered, or by which the title to any real property may be affected, but excepting wills, executory con- tracts for the sale or purchase of real property, and powers of attorney.' A revocation of a power of attorney duly recorded must, to be effective, be acknowledged and recorded in the same office in which the instrument containing the power is recorded. The registration of an instrument makes it constructive notice of its execution to all subsequent purchasers.* "An instrament is deemed to be recprded when, being duly acknowledged or ' Bevision of 1875, p. 354, g 13. ' Revision of 1875, p. 854, 1 15. ' Sanford v. Washburn, 2 Boot, 499. See generally Ray v. Bnsh, 1 Root, 81; Franklin v. Cannon, 1 Root, 600; Hartmeyer v. Gates, 1 Root, 61; Beers v. Hawley, 2 Conn. 467 ; Hine v. Robbins, 8 Conn. 342 ; Wheaton v. Dyer, 15 Conn. 307 ; Hlnman v. Hinman, 4 Conn. 575 ; Welch v. Gould, 2 Root, 287 : Judd v. Woodruff, 2 Root, 298 ; HaU's Heirs v. HaU, 2 Root, 383; Dickenson v. Glenney, 27 Conn. 104; Summer v. Rhoda, 14 Conn. 135 ; Watson v. WeUs, 5 Conn. 468 ; Carter v. Champion, 8 Conn. 549 ; 21 Am. Doc. 695. * Hill V. Meeker, 24 Conn. 211. ' WeUs V. Hutchinson, 2 Root, 85. See Hine v. Bobbins, 8 Conn. 342. 8 Rev. Code, 1877, § 671. ' Rev. Code, 1877, § 672. « Rev. Code, 1877, ?§ 673, 674. 609 EEGISTEY LAWS. §§ 584-585 proved and certified, it is deposited in the register's office with the proper officer for record." * § 584. Delaware. — Deeds shall be recorded in the recorder's office for the county in which the land is situated, if lodged in such office within one year after the day of the sealing and delivery of such deed.^ The registration of a deed in one county has effect only to lands mentioned in the deed situate in such county.' If a deed is not recorded in the proper office within one year afl«r the day of the sealing and delivery, it "shall not avail against a subsequent fair creditor, mortgagee, or purchaser for a .valuable consideration," unless it shall be shown that the creditor when giving the credit, or the mortgagee or purchaser when advancing the consideration, had notice of such deed.*' A purchase money mortgage recorded within sixty days after its execution, has preference over any judgment against the mort- gagor, or any other lien created by him, although the same may be of a date prior to the mortgage.^ Where there is an absolute conveyance and a defeasance or reconveyance, the person to. whom such conveyance is made shall cause to be indorsed thereon and recorded with it, a note stating that there is such, a defeasance and its general purport, else the recording of such, conveyance shall be of no effect; and such defeasance must be duly acknowl- edged and recorded in the recorder's office of the county in which the land lies, within sixty days after the day of making the same, or it shall be of no avail against a fair creditor, mortgagee, or purchaser for a valuable consideration, from the person to whom the conveyance is made, unless such persons had notice at the time of giving credit or parting with the coosideratibni,® § 585. District of Golmnbia. — Deeds arerecorded'in the office of the recorder. All deeds which are recorded within six months afifir delivery, with the exception of trust deeds and mortgages, take effect as to all persons from the time of their acknowledg- 1 Rev. Code, 1877, ? 651, suM. 2.. » Laws, Rev. Code, p. 504, g 14. » Laws, Rev. Code, p. 503, g 15.. * Laws, Rev. Code, p. 504, 1 17. 5 Laws, Rev. Code, p. 505, 1 21. • Laws, Rev. Code, 1874, p. 504, ? 18.. I. Deeds.— 39 §§ 586-587 EEGISTBY LAWS. 610 ment or proof. Deeds of trust and mortgages, without regard to the time at which they are delivered for record, and all other conveyances which are delivered after the expiration of six months from the time of their delivery, take effect as against subsequent purchasers for a valuable consideration without notice and creditors only from the time that such deed of trust, mort- gage, or other conveyance, shall have been delivered to the recorder for record after its proper acknowledgment. When two or more deeds embracing the same land are filed for record en the same day, the one first sealed and delivered has the preference.^ § -586. Florida. — No conveyance is good or effectual in law or in equity against creditors or subsequent purchasers for a valu- able •consideration and without notice, unless it is recorded in the office assigned by law for that purpose. No conveyance of any character niade by virtue of a power of attorney, is good or effectual in law or in equity against creditors or subsequent pur- chasers for a valuable consideration and without notice, unless the execution of such power of attorney is duly proved before the recording officer of the county in which the land is situated, and recorded at the time of recording the deed made in pursu- ance of it. But the recorder is not authorized to refuse to record any conveyance offered for record, the execution of which is duly proved.* § 587. CreoTgia. — "Every deed conveying lands shall be recorded in the office of the clerk of the Superior Court where the land lies, within one year from the date of such deed. On failure to record within this time, the record may be made at any time thereafter ; but such deed loses its priority over a subse- quent deed from the same vendor, recorded in time, and taken without notice of the existence of the first." * A registered deed is admitted in evidence without further proof, unless the grantor, or one of his heirs, or the adverse party in the suit, will file an ^davit that the deed to the best of his knowledge and belief is ' Eev. Stats. 1874, pp. 52, 53. ' Bush Dig. p. 151. * Code, 1873. MatliewB, 59 Ga. 466 ; Myers v. Picquet, 61 Ga. 260. 6 Kev. Laws, 1875, p. 601, § 24. « Rev. Laws, 1875, g 25. ' Rev. Laws, 1875, 1 28. §§ 589-590 KEGISTRY LAWS. 612 record in the same office in which the power of attorney is recorded.* § 589. Illinois. — Deeds, mortgages, and other conveyances authorized to be recorded, take effect from the time they are filed for record and not before, as to creditors and purchasers without notice. Although deeds may not be acknowledged according to law, they are deemed from the time of being filed for record, notice to subsequent purchasers and encumbrancers, but they are not entitled to be read in evidence, unless their execution be proved in the mode required by the rules of evi- dence, so as to supply the defects of such acknowledgment.* § 590. Indiana. — Conveyances are recorded in the recorder's office of the county where the land lies, and if not recorded within forty-five days from their execution they are fraudulent and void as against any subsequent purchaser, lessee, or mortgagee in good faith and for a valuable consideration.* When a deed absolute in form is intended as a mortgage, the original deed is not defeated as against any person other than the maker, or his heirs or devisees, or persons having actual notice, unless the defeasance shall have been recorded according to law within ninety days after the date of the deed.* Each recorder is required to keep a book, each page of which shall be divided into five columns, with the following heads: — Date of Keoeption. Names of Grantors. Names of Grantees. Description of Latids. Vol. and page where recorded. The recorder is required to enter in this book all deeds left with him for record, noting in the first 6olumn the day and hour the deed was received, and the other particulars in the other columns. Every deed is considered as recorded at the time so noted.^ ' Kev. Laws, 1875, ? 28. ' Kev. Stats. 1845, p. 109, ?? 23, 28 j Rev. Stats. 1877, ch. 30, ^ 30, 31 j Rev. Stats, by Hurd (1880), p. 271, 1 30 ; Bev. Stats, by Hard (1883), p. 284, ? 2831. ° Stats. Revision of 1876, p. 365, g 16. See Reasoner v. Edmundson, 5 Ind. 393 ; Wright v. Shepherd, 47 Ind. 176, 179 ; Faulkner v. Overturf,. 49 Ind. 265 ; Tresler v. Tresler, 38 Ind. 282, 285 ; Brannan v. May, 42 Ind. 92, 96. * Stats. Revision of 1876, p. 365, § 17. •* Stats. Revision of i876, p. 367, ? 29; 1881, g 2931. 613 KEGISTEY I-AWS. §§ 591-593 § 591. Iowa. — Deeds are recbrded in the county in which the land lies, and are of no validity as against subsequent pur- chasers without notice, unless so recorded. To entitle them to registration they must be duly acknowledged or proved.* § 592. Kansas. — Deeds are recorded in the office of the register of deeds of the county in which the real estate is situated. A deed imparts notice to all persons of its contents from the time it is filed with the register of deeds for record, subsequent pur- chasers being deemed to purchase with notice.^ A deed is not valid except as between the parties thereto, and such as have actual notice, until it is deposited with the register of deeds for record.' A power of attorney should be recorded previous to the sale or the execution of the deed made under it, and when once recorded shall not be deemed to be revoked by any act of the party by whom it was made, until the instrument of revoca- tion is filed in the recorder's office for record.* § 593. Eentacky. — Where a conveyance made by virtue of a power is required to be recorded to make it valid against creditors and purchasers, the power must be recorded in the same manner.® Where the power of attorney is not recorded, the registration of the deed will not operate as constructive notice.* "Deeds made by residents of Kentucky, other than > Code of 1873, ?? 1941, 1942, and Kev. Code of 1880, by MiUer (1880), § 1941 ; 1884, p. 1941, g 194. On the question of notice find subsequent pur- chasers, see MiUer v. Bradford, 12 Iowa, 14 ; Stewart v. Huff, 19 Iowa, 557 ; Calvin t). Bowman, 10 Iowa, 529; Suiter v. Turner, 10 Iowa, 517; Willard V. Cramer, 36 Iowa, 22 ; Goyfer v. Doheney, 33 Iowa, 36 ; Scoles v. Wilsey, 11 Iowa, 261 ; Brinton v. Seevers, 12 Iowa, 389 ; Bostwick v. Powers, 12 Iowa, 456 ; Breed v. Conley, 14 Iowa, 269 ; Haynes v. Seaehrest, 13 Iowa, 455 ; Stewart, v. HufiF, 19 Iowa, 557 ; Dargin v. Beeker, 10 Iowa, 571 ; Bring- holff V. Munzenmaier, 20 Iowa, 513 ; Koons v. Grooves, 20 Iowa, 373 ; Gardner v. Cole, 21 Iowa, 205. 2 Compiled Laws by F. W. Dassler, p. 212, ?? 1042, 1043. See Simpson V. Mundee, 3 Kan. 172 ; Brown v. Simpson, 4 Kan. 76 ; Claggett v. Crall, 12 Kan. 397 ; Wickersham v. Zinc Co. 18 Kan. 487. ' Comp. Laws (Dassler), p. 212, ? 1044. See Coon v. Browning, 10 Kan. 85 ; Simpson v. Mundee, 3 Kan. 172 ; Gray v. Ulrich, 8 Kan. 112 ; Swartz ». Stees, 2 Kan. 236 ; School District v. Taylor, 19 Kan. 287 ; Johnson v. Clark, 18 Kan. 157, 164 ; Jones v. Lapham, 15 Kan. 140. * Comp. Laws (Dassler), §§ 1046, 1047. 6 Gen. Stats. 1873 (Bullock & Johnson), p. 256, i 13. • Graves v. Ward, 2 Duval, 301. §§ 594-596 EEGISTEY LAWS. 614 deeds of trust and mortgages, shall not be good against a pur- chaser for a valuable consideration not having notice thereof, or any creditor, except from the time the same shall be legally lodged for record, unless the same be so lodged within sixty days from the date thereof. If made by persons residing out of Kentucky, and in the United -States, within four months; if out of the United States, within twelve months." ^ Although a deed be not filed for record within eight months, it is still good against a subsequent purchaser with notice, and if the purchaser be a married woman, notice to her husband is likewise notice to her.? § 594. Loidsiaaia. — Conveyances, while valid between the parties and their heirs, are void as to third persons, unless pub- licly inscribed on the records of the parish, and they become operative as to such persons from the time they are filed for rec- ord.' For the purpose of rendering a search for mortgages for a period further back than ten years unnecessary, it is required that before the expiration of this time the inscription shall be renewed.* § 595. Maine. — A deed is not effectual as against any person except the grantor, his heirs and devisees, and persons having actual notice, unless it is recorded.® A deed absolute in form cannot be defeated by a defeasance, as against any other person than the maker, his heirs and devisees, unless such defeasance is recorded in the same office as the deed.* , § 596. Maryland. — Deeds mustbe recorded within six months from their date in the county in which the land lies, and when it lies in more than one county, or the city of Baltimore and a " Gen. Stats. 1873, p. 257, § 14; Gen. Stats. 1883, p. 257, ? 14. ' Bennett v. Tetherington, 6 Bush, 192. 8 Rev. Code, 1875, p. 417, § 2266. * Rev. Code, 1876, i 3342. 5 Rev. Stats. 1871, p. 560, § 8 ; Rev. Stats. 1883, p. 604, ? 8. See Merrill V. Ireland, 40 Me. 569 ; Lawrence v. Tucker, 7 Me. 195 ; Porter v. Sevey, 43 Me. 519 ; Kent v. Plummer, 7 Me. 464 ; Goodwin v. Cloudman, 43 Me. 577 ; Pierce v. Taylor, 23 Me. 246 ; Raokleff v. Norton, 19 Me. 274 ■ Hanly v. Morse, 32 Me. 287; Veazie v. Parker, 23 Me. 170; SpofiFord a. Weston, 29 Me. 140 ; Butler v. Stevens, 26 Me. 484 ; Roberts v. Bourne, 23 Me. 165. « Rev. Stats. 1871, p. 560, § 9. 615 REGISTEY LAWS. § 596 county, then in all the counties in which it is situated.^ Every deed after due acknowledgment and registration takes effect as between the parties from its date, and no deed is valid for the purpose of passing title, unless acknowledged and recorded as provided by statute.^ When there are two or more deeds for the same land, the deed first recorded according to law is preferred, if made bona fide and upon a good and valuable consideration.' If the recording oflficer should die, and during the interim between his death and the qualification of his successor the time for recording a deed should expire, the successor of the deceased clerk shall record the same at any time within one month after his qualification, and such record will have the same effect as if the deed were recorded within the prescribed time. The succeeding clerk shall, however, indorse thereon the time of the death of the former clerk, and the date of his own qualifica- tion, and this indorsement shall be recorded with the deed.* Conveyances, except deeds or conveyances by way of mortgages, may be recorded after the time prescribed by statute, and when so recorded, have as against the grantor, his heirs or executors, and against all purchasers with notice and against creditors, who shall become so after the recording of such conveyance, the same effect as if recorded within the prescribed time.* Where posses- sion is taken, a deed after being recorded (though not recorded within six months), has against all persons from the time of taking possession, the same effect as if recorded in proper time;* but as against all creditors who have become so before the record- ing of the deed, and without notice of its existence, it has effect only as a contract to convey.' ' Rev. Code, 1878, p. 385, 1 16. 2 Rev. Code, 1878, §? 17, 18. See Bylea v. Tome, 39 Md. 461 ; Hoopes V. Knell, 31 Md. 550 ; Building Assoc, v. Willson, 41 Md. 614 ; Cooke's Lessee v. Kell, 13 Md. 469. » Rev. Code, 1878, p. 385, ? 19. ' Rev. Code, 1878, ? 21. ' Rev. Code, 1878, § 22. « Rev. Code, 1878, ? 23. ' Rev. Code, 1878, g 24. See generally on these sections, Abrams v. Sheehan, 40 Md. 446; Walsh v. Boyle, 30 Md. 267; Owens v. Miller, 29 Md. 144; Glenn v. Davis, 35 Md. 215; Estate of Leiman, 82 Md. 225; Adm'rs of Carson v. Phelps, 40 Md. 97 ; Nelson v. Hagerstown Bank, 27 Md. 51; Lester v. Hardesty, 29 Md. 50; WiUard's Ex'rs v. Ramsburg, 22 §i 597-598 EEGISTEY LAWS. 616 § 597. Massacliusetts. — Deedsarenotvalidas against persons other than the grantor, his heirs and devisees, and persons hav- ing actual notice, unless they are recorded in the registry of deeds for the county in which the land is situated.* An absolute deed is not affected by a defeasance as against any other person than the maker of the defeasance, his heirs and devisees, and persons having actual notice, unless such defeasance is recorded in the registry of deeds for the county in which the real estate is situated.* § 598. MicMgan. — Every register of deeds is required to keep an entry book of deeds, divided into six columns, as shown in the note.^ Every conveyance which is not recorded as provided by statute is void as against subsequent purchasers in good faith and for a valuable consideration, whose conveyances are first duly recorded.* An absolute deed, defeasible on the performance of certain conditions, is not affected as against any person other than the maker of the defeasance, or his heirs or devisees, or persona having actual notice, unless such defeasance Md. 206; Horner v. Grosholz, 38 Md. 521; Kane v. Roberts, 40 Md. 590; Leppoc V. National Union Bank, 32 Md. 136 ; Cockey v. MUne's Lessee, 16 Md. 207 ; Busey v. Reese, 38 Md. 264. 1 Pub. Stats. 1882, p. 732, g 4 ; Gen. Stats. 1860, p. 466, 1 3. See Stetson v. Gulliver, 2 Cush. 494 ; Lawrence v. Stratton, 6 Cush. 163 ; Parker v. Osgood, 3 Allen, 487 ; Sibley v. Lefflngwell, 8 Allen, 584 ; George v. Kent, 7 Allen, 16 ; Lamb v. Pierce, 113 Mass. 72 ; Faxon «. WaUaoe, 101 Mass. 444 ; Earle «. Fiske, 103 Mass. 491 ; State of Connecticut v. Bradish, 14 Mass. 296 ; Adams V. Cuddy, 13 Pick. 460 ; Glidden v. Hunt, 24 Pick. 221 ; Plynt v. Arnold, 2 Met. 619 ; Dole v. Thurlow, 12 Met. 157, 163 ; Pomroy v. Stevens, 11 Met. 244 ; Curtis v. Mundy, 3 Met. 405 ; Marshall v. Fish, 6 Mass. 24 ; 4 Am. Dec. 76 ; Stewart v. Clark, 13 Met. 79. 2 Pub. Stats. 1882, p. 734, J 23 ; Gen. Stats. 1860, ch. 89, g 15. See Foote v. Hartford Ins. Co. 119 Mass. 259 ; Bayley v. Bailey, 5 Gray, 505. » HoweU's Annotated Stats. 1882, vol. 2, p. 1469, ch. 216, g 5674. The form prescribed is as follows : — Date of Beception. Township where the land lies. To whom delivered [after being recorded^ and date [of deliv' ery]. Fees received * Howell's Annotated Stats. 1882, vol. 2, p. 1473, g 29 ; Comp. Laws, 1871, pp. 1345, 1346. (517 EEGISTEY LAWS. §§ 599-600 is properly recorded.* A revocation of a recorded power of attorney must also be recorded.* § 599. Minnesota. — Deeds are recorded in the oflfice of the register of deeds where the real estate is situated; and every deed not so recorded is void as against any subsequent purchaser, in good faith and for a valuable consideration, whose conveyance is first duly recorded, or as against any attachment levied on the property, or any judgment lawfully obtained at the suit of one, against the person, in whose name the record title was, prior to the recording of the conveyance.' The term "purchaser" includes every person to whom any interest in real estate is con- veyed for a valuable consideration, and also every assignee of a mortgage, lease, or other conditional estate.* A certified copy of the record of a deed may be recorded in any county in the State, with the same force and effect as the original conveyance would have, if so recorded.^ § 600. Mississippi. — Conveyances are void as to all creditors and subsequent purchasers for a valuable consideration without notice, unless acknowledged or proved and lodged with the clerk of the Chancery Court of the proper county for record ; but they are valid and binding as between the parties and their heirs, and as to all subsequent purchasers with notice, or without valuable consideration.' Every conveyance, except deeds of trust and mortgages, which are properly acknowledged and delivered to the clerk of the proper county to be recorded within three months after its execution, takes effect from the date of its deliv- ery ; but deeds of trust and mortgages, whenever they shall be delivered for record, and deeds not acknowledged and delivered 1 Howell's Annotated Stats. 1882, vol. 2, 1 5686. ' Howell's Annotated Stats. 1882, vol. 2, g 5692. See Doyle v. Stevens, 4 Mich. 87 ; Barrows i;. Baughman, 9 Mich. 213 ;- Godfrey v. Disbrow, H Mich. 260 ; Warner v. Whittaker, 6 Mich. 133 ; 52 Am. Deo. 65 ; Willoox v. Hill, 11 Mich. 256, 263 ; Warner v. Whittaker, 6 Mich. 133 ; 52 Am. Dec. 65 ; Rood v. Chapin, Walk. Ch. 79. » Stats. 1878, p. 537, § 21. * Stats. 1878, 1 26. 5 Stats. 1878, \ 33. See Smith v. Gibson, 15 Minn. 89, 99; Coy ». Coy, 15 Minn. 119, 126. 6 Kev. Code, 1871, p. 503, g 2304. §§ 601-603 EBGISTEY LAWS. 618 for record within three months after execution, take effect as to all subsequent purchasers for a valuable consideration without notice, and as to all creditors, only from the time when delivered to the clerk to be recorded. A deed which is admitted to record without proper acknowledgment does not furnish notice to subsequent purchasers for a valuable consideration.^ § 601. Missouri. — Every deed which is duly acknowledged and recorded, imparts notice from the time of filing the same for record to all persons of its contents, and all subsequent pur- chasers and mortgagees are deemed in law and in equity to pur- chase with notice.^ No deed is valid except between the parties and those who have actual notice, until it is deposited with the recorder for record.^ A power of attorney when recorded can be revoked only by an instrument in writing duly recorded.* If a deed is recorded before a sale on execution, it is good as against a judgment, although not recorded until after the judgment was rendered.* § 602. Montana Territoiy. — Conveyances are valid between the parties without recording. Every deed from the time it is filed with the recorder for record, imparts notice to all persons of its contents, and subsequent purchasers and mortgagees are deemed to take with notice.* Every deed which is not recorded is deemed void as against subsequent purchasers in good faith and for a valuable consideration, whose conveyances are first duly recorded.^ A revocation of a recorded power of attorney must also be recorded.* § 603. Nebraska. — Every deed is considered recorded from the time of delivery to the clerk, and takes effect from such ' Kev. Code, 1871, ?J 2306, 2308. See Rev. Code, 1880, §§ 1209, 1212. ' Rev. Stats. 1879, vol. 1, p. 114, J 692 ; Wagner's Stats. 1872, vol. 1, p. 277, §25. » Rev. Stats. 1879, vol. 1, p. 114, g 693 ; Wagner's Stats. 1872, vol. 1, p. 277, §26. * Rev. Stats. 1879, vol. 1, p. 114, § 695 ; Wagner's Stats. 1872, vol. 1, p. 277, ?28. 6 Davis V. Ownsby, 14 Mo. 170 ; 55 Am. Dec. 105 ; Valentine v. Havener, 20 Mo. 133. • Rev. Stats. 1879, p. 442, ?? 200, 201 ; Laws, 1871, 1872, p. 400, §? 28, 24. ' Rev. Stats. 1879, p. 442, § 202 ; Laws, 1871, 1872, p. 400, § 25. « Rev. Stats. 1879, p. 442, § 204; Laws 1871, 1872, p. 400, J 27. 619 KEGISTRY liAWS. § 604 time, and not before, as to all creditors and subsequent pur- chasers, in good faith without notice, and is adjudged void as to all such creditors and subsequent purchasers -without notice, whose conveyances are first recorded, provided that these con- veyances are valid between the parties.^ A deed is not con- sidered lawfiiUy recorded unless previously it has been duly acknowledged or proved.* It is no objection to the record of a deed that no official seal is appended to the recorded acknowl- edgment of it, "if, when the acknowledgment or proof purports to have been taken by an officer having an official seal, there be a statement in the certificate of acknowledgment or proof that the same is made under his hand and seal of office, and such statement shall be presumptive evidence that the affixed seal was attached to the original instrument."* The copy of a record or of a recorded deed authenticated in such manner as to entitle it to be read in evidence, may, when the loss of the original deed and of the record is proved, be again recorded, and such record has the same effect as the original.^ An unrecorded mortgage is entitled to priority over a subsequent conveyance made by the mortgagor without consideration.* Where through mistake, there is an omission of a part of the lands in the record described in a mortgage, and a judgment is recovered subse- quently against the mortgagor, the lien of the judgment creditor must be postponed to the equity of the mortgagee.' § 604. Nevada. — Conveyances to operate as notice to third persons must be recorded in the office of the recorder of the county where the land is situated, but are valid and binding between the parties without registration. Aconvey- 1 Comp. stats. 1881 (Brown), p. 389, ?§ 15, 16; Comp. Stats. 1885, p. 477, ?16. » Comp. Stats. 1881 (Brown), p. 390, § 17 ; Comp. Stats. 1885, p. 478, § 17. ' Comp. Stats. 1881 (Brown), p. 390, ? 20 ; 1885, p. 478, § 20. * Comp. Stats. 1881 (Brown), g 21 ; Comp. Stats. 1885, p. 477, § 21 " Merrlman v. Hyde, 9 Neb. 120. " 6 Galway v. Malohow, 7 Neb. 289, overmling Bennett v, Fooks, 1 Neb, 465, See generally Mansfield v. Gregory, 8 Neb. 435 ; Berkley v. Lamb, 8 Neb. 392 ; Harral v. Gray, 10 Neb. 189 ; Edminster v. Higgins, 6 Neb. 269 ; Metz V. State Bank etc. 7 Neb. 171 ; Jones v. Johnsoa Harvester Co. 8 Neb. 451 ; Lincoln etc. Association v. Haas, 10 Neb. 583 ; Hooker v, Hammill, 7 Neb. 234 ; Colt v. Du Bois, 7 Neb. 394; Dorsey v. HaU, 7 Neb. 465. §§ 605-606 EEGISTRY LAWS. 620 anee from the time it is filed with the rfecorder for record imparts notice to all persons of its contents, and subsequent pur- chasers and mortgagees are deemed to purchase with notice.* Every conveyance which is not thus recorded is void as against any subsequent purchaser in good faith and for a valuable con- sideration, whose conveyance is first duly recorded.* A power of attorney when once recorded can be revoked only by an instru- ment of revocation duly recorded.* By filing such a revocation for record, it becomes absolute without actual notice to the attorney. It operates as notice to all persons dealing with him.* § 605. New HampsMre. — No deed of real estate is valid to hold the same against any person but the grantor and his heirs only, unless attested, acknowledged, and recorded as provided by statute.® " Any deed not acknowledged by the grantor, but in other respects duly executed, may be recorded, and for sixty days after such recording shall be as efiectual as if duly acknowl- edged." ® If a person who has a deed neglects or refuses to allow it to be recorded for the space of thirty days, aft«r being requested to do so in writing by any person having an interest in the estate, any justice upon complaint may issue his warrant and cause such person to be brought before him for examination ; and if suflS- cient cause for this neglect or refusal is not shoAvn, the justice may order such deed to be recorded, and may commit the holder to jail until the order is performed.' § 606. New Jersey. — A deed is void and of no effect against a subsequent judgment creditor or bona fde purchaser or mort- gagee for a valuable consideration without notice, unless the deed is recorded, or filed for record with the clerk of the court of common pleas of the county containing the land, within fifteen days after the time the deed is signed, sealed, and delivered; but 1 Comp. Laws, 1873, vol. 1, p. 82, ?g 252, 253. See Crosier v. McLaugh- lin, 1 Nev. 348 ; Virgin v. Brubaker, 4 Nev. 31 ; Grellett v. Heilshom, 4 Nev. 526. * Comp. Laws, 1873, vol. 1, g 254. » Comp. Laws, 1873, vol. 1, ? 256. * Arnold v. Stevenson, 2 Nev. 234. = Gen. Laws, 1878, p. 323, eh. 135, 1 4. * Gen. Laws, 1878, \ 7. ' Gen. Laws, 1878, \ 11. 621 BEGJSTEY LAWS. §§ 607-608 the deed is nevertheless valid and operative between the parties apd their heirs.^ Where by reason of a failure to record a deed within fifteen days after its delivery, title to the property is acquired by a third party, the documentary evidence will entitle such party to recover the premises, unless the . party claiming under the first deed can show that the other had notice of it. The burden of proof rests upon the party who claims under the first deed.^ Where there are two deeds, if the one which was given is recorded within fifteen days afl«r its delivery, it will have priority over the second, although the second was recorded first.' A deed which is not recorded is valid as against an attaching creditor having notice thereof before judgment.* § 607. New Mexico Territory. — Deeds are recorded in the office of the archives of the county where the real estate is situated. After registration a deed gives notice of the time of its being registered to all persons mentioned in it, and all pur- chasers and mortgagees are considered as having purchased under such notice. A deed is not valid except as to the parties inter- ested and those who have actual notice, until it is deposited in the office of the clerk to be registered.* A power of attorney which has been recorded can be revoked only by a revocation duly recorded.* § 608. New York. — Deeds are conclusive as against subse? quent purchasers from the grantor or from his heirs claiming as such, except against subsequent purchasers in good faith and for a valuable consideration, who shall acquire a superior title by a > Revision of 1877, p. 155, § 14. 2 Coleman v. Barklew, B Dutch. 357; Lewis v. Hall, 3 Halst. Ch. 107; Freeman v. Elmendorf, 3 Halst. Ch. 475 ; Vreeland v. Claflin, 9 Green, C. E. 313 ; Blair v. Ward, 2 Stockt. Ch. 119 ; Holmes v. Stout, 2 Stocist. Ch. 419. 5 Den V. Bechman, 1 Green (13 N. J. L.) 43. * Garwood v. Garwood, 4 Halst. 193. See, also, Diehl v. Page, 2 Green Ch. 143 ; Cornelius v. Giberson, 1 Dutch. 1 ; Losey v. Simpson, 3 Stockt. Ch. 246 ; Lee v. Woodworth, 2 Green Ch. 37 ; Hoy v. Bramhall, 4 Green, C. E. 564; Nichols i». Peak, 1 Beasl. 70; WeUs v. Wright, 7 Halst. 131; Van Doren v. Eobinson, 1 Green, C. E. 256 ; Mellon v. Mulvey, 8 Green, C. E. 198 ; Annin v. Annin, 9 Green, C. E. 185. » Gen. Laws, 1880, p. 236, ch. 44, JJ 14-16. • Gen. Laws, 1880, 1 19. § 609 EEGISTEY LAWS. 822 conveyance that shall have been first duly recorded.' Different sets of books are provided for the recording of deeds and mort- gages ; in one of these, all conveyances absolute in their terms and not intended as mortgages, or as securities in the nature of mortgages, are to be recorded, and in the other set, such mort- gages and securities shall be recorded. A deed, which by any other instrument in writing shall be intended only as a mort-; gage, though it may be an absolute conveyance in form, shall be treated as a mortgage ; and the person for whose benefit the deed is made will not derive any advantage from its registration, unless every writing operating as a defeasance or explanatory of its character as a mortgage, is also recorded with the deed and at the same time.^ A copy of a record, or of a recorded deed, attested in such manner as would entitle it to be read in evidence, may, if the loss of the original and the record be proven, be again recorded, and such re-record shall have the same effect as the original record.* § 609. North Carolina. — A deed is not good and available in law unless it is acknowledged and proved in the manner required by law, and registered in the county where the land lies within two years after the date of the deed. All deeds thus executed and registered are valid without livery of seisin or other ceremony.* 1 Bev. Stats, vol. 2, p. 1119, ? 165 ; Rev. Stats, vol. 2, p. 1138, § 1 ; Fay's Dig. of Laws, 1876, vol. 1, p. 580. ' Rev. Stats, vol. 2, p. 1138, §§ 2, 3. » Rev. Stats, vol. 2, p. 1148, ? 51 ; Fay's Dig. vol. 1, p. 586, g 50. See generally Newton v. McLean, 41 Barb. 285 ; Fort v. Burch, 6 Barb. 60 ; Sclintt V. Large, 6 Barb. 373 j Trusoott v. King, 6 Barb. 346 ; Westbrook v. Gleason, 79 N. Y. 23 ; Lacustrine etc. Co. v. Lake Guano etc. Co. 82 N. Y. 476 ; Hoyt v. Thiompson, 5 N. Y, 347 ; Judson v. Dada, 79 N. Y. 373 ; Page V. "Waring, 76 N. Y. 463. * Code of March 2, 1883, vol. 1, p. 490, § 1245. See Morris v. Ford, 2 Dev. Eq. 412 ; Walker v. Coltraine, 6 Ired. Eq. 79 ; Doak v. State Bank, 6 Ired. 309 ; Osborne v. BaUew, 7 Ired. 415 ; Williams v. Griffin, 4 Jones, 31 ; Walston V. BrassweU, 1 Jones Eq. 137 ; Freeman v. Hatley, 3 Jones, 115 ; Johnson v.Pendergrass, 4 Jones, 479; Latham «. Bowen, 7 Jones, 337 ; Hare ?j. Jern!gan,76N.C.471; K:ing«.Portis,81N.C.382; McMillan u. Edwards, 75 N. C. 81 ; Salms v. Martin, 63 N. C. 608 ; Linker v. Long, 64 N. C. 296 ; Hogan V. Strayhom, 65 N. C. 279 ; Love's Executors v. Habbin, 87 N. C. 249 ; Ivevy v. Granberry, 66 N. C. 223 ; Triplett v. Witherspoon, 74 N. C. 475 J Riggan v. Green, 80 N. C. 236 ; Henley v. Wilson, 81 N. C. 405 ; Davis V, Inscoe, 84 N. C. 396; Mosely v. Mosely, 87 N. C. 69; Isler v. Foy, 66 623 EEGISTRY LAWS. § 610 Deeds of gift must also be registered -within two years after execation, else they are void.^ A deed of trust or mortgage is not valid at law to pass any property as against creditors or pur- chasers for a valuable consideration from the donor or mortgagor, but from the time of registration of such deed of trust or mort- gage in the county in which the land is situated.^ An error in the registration of an instrument may be corrected by the clerk of the Superior Court, upon petition.* § 610. Ohio. — Powers of attorney must be recorded in the office of the recorder of the county where the land lies, prior to the execution of the deed made in pursuance of it.* A deed must be recorded within six months from its date. If not so recorded, it is deemed fraudulent, so far as relates to any subsequent bona fide purchaser, having at the time of pur- chase no knowledge of the existence of the deed. The deed may, however, be recorded after the expiration of this time, and from the date of such record, shall be notice to any subsequent purchaser.' N. C. 547 ; Paul v. Carpenter, 70 N. C. 502 ; Wilson v. Sparks, 72 N. 0. 208 ; Starke v. Etheridge, 71 N. C. 240 ; Holmes v. Marshall, 72 N. C. 37 ; Buie v. Carver, 75 N. C. 559. 1 Code of 1883, vol. 1, p. 490, § 1252. 2 Code of 1883, vol. 1, \ 1254. See Smith v, Washington, 1 Dev. Eq. 818 ; Skinner v. Cox, 4 Bev. 59 ; Leggett v. Bullock, Busb. 283 ; Moore v. Collins, 4 Dev. 384; Dewey v. Littlejohn, 2 Ired. Eq. 495 ; McKinnon v. McLean, 2 Dev. & B. 79 ; Metts v. Bright, 4 Dev. & B. 173 ; 32 Am. Dec. 683 ; Norwood V. Marrow, 4 Dev.'tfc B. 442 ; Barnett v. Bamett, 1 Jones Eq. 221 ; Simpson V, Morris, 3 Jones, 411 ; Barrett v. Cole, 4 Jones, 40 ; Green v. Kornegay, 4 Jones, 66 ; 67 Am. Dec. 261 ; Dukes v. Jones, 6 Jones, 14 ; Newell v. Taylor, 3 Jones Eq. 374 ; Saunders v. Ferrell, 1 Ired. 97 ; Halcombe v. Ray, 1 Ired. 340 ; Doak V. State Bank, 6 Ired. 309 ; Johnson v. Malcolm, 6 Jones Eq. 120 ; Moring v. Dickerson, 85 N. C. 466 ; Parker v. Scott, 64 N. C. 118 j McCoy v. Wood, 70 N. C. 125 ; Robinson v. Willoughby, 70 N. C. 358 ; Blevins v. Barker, 75 N. C. 436 ; Edwards v. Thompson, 71 N. C. 177 ; Moore v. Rag- land, 74 N. C. 343 ; Starke v. Etheridge, 71 N. C. 840 ; Harris v. Jones, 83 N. C. 317; King v. Portis, 77 N. C. 25 ; Todd v. Outlaw, 79 N. C. 235; Cape- hart V. Biggs, 77 N. C. 261 ; Pumell v. Vaughan, 77 N. C. 268 ; Beaman v. Simmons, 76 N. C. 43. » Code of 1883, vol. 1, g 1266. See Jones v. Physioe, 1 Dev. & B. 178 ; Oldham v. Bank, 85 N. C. 240. * Rev. Stats. 1880, vol. 1, p. 1038, ? 4182. 5 Rev. Stats. 1880, vol. 1, p. ia34, § 4134. See Doe v. Bank of Cleveland, 3 McLean, 140 ; Lessee of Cunningham v. Buckingham, 1 Ohio, 265 ; Les- see of Allen V. Parish, 3 Ohio, 107 ; Smith v. Smith, 13 Ohio St. 632 ; North- §§ 611-612 REGISTRY LAWS. 624 § 611. Oregon. — A deed is considered as recorded at the time it is received by the recorder for record.' Every deed which is not recorded within five days after its execution is void against any subsequent purchaser in good faith and for a valuable consideration, whose conveyance is first duly recorded.^ A deed absolute in terms, defeasible by a deed of defeasance, is not affected as against any person other than the maker of the defeasance, or his heirs or devisees, or persons having actual notice, unless the defeasance is recorded in the office of the recorder of the county where the land lies.* § 612. Pennsylvania. — Deeds executed within the State should be recorded in the office for recording deeds in the county in which the land is situated within six months after execution ; and if not so recorded they will be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless recorded before the proving and record- ing of the deed or conveyance under which the subsequent purchaser or mortgagee claims.* If executed without the State, they must be so recorded within twelve months after their execution.^ rup's Leasee v. Brehmer, 8 Ohio, 392 ; Leiby's Executors v. Wolf, 10 Ohio, 83 ; Stansell v. Roberts, 13 Ohio, 148 ; 42 Am. Deo. 193 ; Mayham v. Coombs, 14 Ohio, 428; Lessee of Irvin o. Smith, 17 Ohio, 226; Price V. Methodist Episcopal Church, 4 Ohio, 515 ; Spader v. Lawler, 17 Ohio, 871; 49 Am. Deo. 46; Bloom v. Noggle, 4 Ohio St. 45; Bercaw v. Cock- erill, 20 Ohio St. 163. > Gen. Laws, p. 518, §24. " Gen. Laws, g 26. ' Gen. Laws, §28. « Purdon'a Dig. (Brightley) p. 321, § 71. 5 Purdon's Dig. (Brightley) § 72. See on the question of notice, Chew V. Barnett, 11 Serg. & E. 389 ; Harris v. Bell, 10 Serg. & K. 39 ■ Krider v, Lafierty, 1 Whart. 303 ; Randall v. Silverthom, 4 Barr. 173 ; Hetherington V. Clark, 6 Casey, 393; Boggs v. Varner, 6 Watts & S. 469; Mil er v. Cres- Bon, 1 Watts & S. 284 ; Green v. Drinker, 7 Watts & S. 440 ; Parke v. Chad- Wiok, 8 Watts Laws of 1877, p. 312. » Code, 1870, ch. 74, §? 5, 8, 9. » Kev. Stats, 1878, p. 641, § 2241. See Everts v. Agnes, 4 Wis. 343 ; Everts V. Agnes, 6 "Wis. 453 ; Hodson v. Treat, 7 Wis. 263 ; Myriok v. McMillan, 13 Wis. 188 ; Deuster v. McCamus, 14 Wis. 307 ; Stewart v. McSweeney, 14 Wis. 468 ; Straight v. Harris, 14 Wis. 509 ; Gee v. Bolton, 17 Wis. 604 ; Fery V. Pfeiffer, 18 Wis. 510 ; Wyman v. Carter, 20 Wis. 107 ; Ely v. Wilcox, 20 Wis. 523; Shove v. Larsen, 22 Wis. 142; Schnee v. Schnee, 23 Wis. 377; Hay V. Hill, 24 Wis. 235 ; Stevens v. Brooks, 24 Wis. 326 ; Wickes v. Lake, 25 Wis. 71 ; The International Life Ins. Co. v. Scales, 27 Wis. 640 ; Smith V. Garden, 28 Wis. 685 ; Fallas v. Pierce, 30 Wis. 443 ; Gilbert v. Jess, 31 Wis. 110 ; Hoyt v. Jones, 31 Wis. 389 ; Ehle v. Brown, 31 Wis. 405 j Anstin V. Holt,'32 Wis. 478 ; Quinlan v. Pierce, 34 Wis. 304. * Rev. Stats. J 2248. « Rev. Stats. 1 2246. 629 REGISTRY LAWS. § 624 recorded in the office of the register of deeds of the county in ■which the land is situated, within three months from the date of the instrument. All conveyances so recorded are notice to any subsequent purchaser, from the time the instrument is delivered at the office of the register of deeds for registration.^ § 624. Effect of statutes giving time to record deeds — Valid from delivery. — Where, by the provisions of the statute, a pur- chaser is allowed a specified time after the execution of the deed in which to procure its registration, the deed takes efifect as it would if such statutes did not exist, that is, from its delivery. It is valid from delivery as against subsequent purchasers. A deed thus recorded within the statutory period will prevail over the deed of a person who purchased the property after the execution of the former deed, but before it was filed for registra- tion.^ Speaking of the statute of Mississippi, which allows three months afl«r execution for the registration of convey- ances, except deeds of trust and mortgages, and provides that if so recorded they shall be valid from delivery, the court say : " The lodging with the clerk of any of the instruments enumer- ated in the act for record (except deeds of trust and mortgages), within three months aft«r execution, makes such instruments valid from date of delivery, so as to prevail against a purchaser or creditor who has acquired a right subsequent to the date of delivery, although prior to the time of deposit of the instrument with the clerk. In other words, filing the deed with the clerk within three months, makes the benefit of registration relate back to the day of delivery, so as to prevail against intermediate con- veyances or encumbrancers. Deeds of trust and' mortgages, however, have no relation back to any act or date; and notice to subsequent purchasers and creditors begins from the time they are filed with the clerk for record. If the instnmients to which three months are allowed for record are not registered within the time, they operate to give notice from the time they are lodged with the clerk."* 1 Compaed Laws, 1876, p. 284, ch. 40, §? 1, 3. 2 Dale V. Arnold, 2 Bibb, 605 ; Claibome v. Holmes, 51 Miss. 146. See, also, Stansell v. Roberts, 13 Ohio, 148 ; Majrham v. Coombs, 14 Ohio, 428. P Claiborne v. Holmes, 51 Miss. 146, 150, per SimraU, J. § 625 KEGISTET liAWS. 630 § 625. Protection of grantee. — These statutes are intended for the benefit of the grantee. He may by recording his deed within the stipulated time have it take effect from its execution. If he neglects to file it for record within this time, it is not void. In a case in Indiana, it was contended that a deed should not go upon the records unless placed there within the time specified by statute, and that it would not be notice to one who should purchase the property after it was recorded. But the court answered: "This construction we cannot adopt; we think a man could not be considered as standing in the position of a purchaser in good faith, who should buy and take a title in view of a recorded deed of an already outstanding title; but that he would be buying with notice, that is, the record would be notice to subsequent purchasers." ' 1 Meni v. Rathbone, 21 Ind. 454. See, also, Delane v. Moore, 14 How. 253 ; Balk v. Massey,"ll Rich. 614 ; Irvin v. Smith, 17 Ohio, 226 ; Steele v. Mansell, 6 Richt 437 ; Mallory v. Stodder, 6 Ala. 801. In Steele v. Mansell, 6 Rich. 437, 454, it is said : "In the confidence wliich parties repose in each other, hundreds ot deeds are never registered, and thousand are not regis- tered within six months. It a deed was registered before the right of a creditor or purchaser arose, of what consequence can it be, that the regis- tration was delayed untU the six months had expired ? Being without registration good as to the party who made it, the deed might, as to all other persons, be considered as if it had been executed on the day it was registered — in other words, as if it had been re-executed or acknowledged on the day. So if that party should have been dead on the day of regis- tration, the deed good as to his heirs, might be considered as if it had been then confirmed by them. Even if infancy, coverture, or other disability, should prevent the supposition of confirmation on the day of registration, why should not the deed, binding as to all the world then existing, acquire by such registration such Indef easibility, as thence arises, against that part of the world which afterwards sets up opposing rights subsequently acquired ? By delaying beyond a prescribed time, the grantee in a deed has lost the right to insist that the tardy registration shall have relation to the date of the deed so as to prevail against intervenmg claims, bixt why should he lose the benefit of registration from the day it was made ? As regards notice to be obtained by search of a registry, the same search which would disclose a deed registered within a prescribed time, would dis- close one registered after the expiration of the time ; and the same fraud or disappointment of past expectation, which would arise from a first deed being registered between the search and the execution of a second one, might ensue, whether the registration of the first one was or was not within a prescribed time from its date. If it should be decided that regLs- tration after the time does not avail against a subsequent deed executed after this registration and registered in time, a bona fide purchaser, whose conveyance was registered after the expiration of six months, say only 631 EEGISTRY LAWS. § 625 seven months from its date, and whose grantor had afterwards lived many years solvent and honest, might, when these years were past, be deprived of his land, because at last his grantor had fallen into embarrassment and under execution against him the land bad been sold. If it should be held that the judgment against the grantor had not preference over the con- veyance tardily registered, and that notice to a purchaser at sheriff's sale under the judgment would as to him stand in the place of » regular registration, then the right of the fair owner by former purchase to hold his land, would depend upon his vigilance in giving actual notice of his conveyance whenever the land was offered for sale by the sheriff, until it might happen that a sale could be made, when notice could not be brought home to a purchaser, who would probably have got a bargain by reason of the very e£forts the owner had made to save his rights. Human sagacity could not foretell the extent of disastrous influence, which such a decision would have upon the land titles of the State." CHAPTEE XXn. EEGISTRATION OP DEEDS. § 626. In general. I 627. In England. § 628. Begistration in the United States. g 629. Begistration not necessary between the parties, § 630. Begistration ot mortgages in book of deeds. g 631. Mortgagee considered a purchaser. g 682. Pre-existing debt. g 633. Assignee of mortgage considered a purchaser. i 634. Judgment creditors. g 635. In some States judgment creditor considered within the registry acts. i 636. Actual notice subsequent to the'lien in these States. g 637. Purchasers at execution sale. g 638. Purchasers at such sale with notice. f 639. Bights of judgment creditor as purchaser — Comments. g 640. General rule — Judgment creditor is not bona fide purchaser. g 641. Contrary rule in Iowa. g 642. Comments. g 643. Mortgage for purchase money. g 644. Administrator's deed and prior unrecorded mortgage. S 645. Compliance with preliminary requirements. g 646. Illustrations — Attesting witnesses. g 647. Attachment at time of acknowledgment, g 648. Incapacity to take acknowledgment, g 649. Omission of name of grantee. j: 650. Description of land. g 651. Illustrations of description insufficient to give constructive notice. g 652. Illustrations where purchaser bound, though description inaccu- rate. g 653. Description by impossible sectional number. g 654. Distinction between description in deed and in .mortgage. g 655. Comments. g 656. Instruments not entitled to registration, g 657. Illustrations. g 658. Want of delivery. g 659. Equitable mortgages. g 660. Assignment of mortgage. g 661. In some States, defective dfeeds if recorded impart notice. g 662. In Kansas. g 663. Begistration in wrong county. 633 :registration op deeds. § 664. Land in two counties. ? 665. Registration of copy of deed in proper cotmty. § 666. Certified copy of deed recorded in -wrong county as evidence. § 667. Presumption of actual notice from examination of records, ? 668. Comments. t 669. Change of boundaries of county. 2 670. Purchaser under quit-claim deed — Comments. ? 671. View that such purchaser is not entitled to the protection of the registry acts. I 672, View that such purchaser is entitled to the full protection of the registry laws. i 673. Comments. § 674. Intention in quit-claim deed to pass grantor's interest only. J 675. Another illustration. ? 676. Reservation in quit-claim deed as affecting prior void or voidable deed, g 677. Record partly printed, g 678. Interest of recording officer. ? 679. Time at which deed is held to be recorded. g 680. Mistake of copying deed in record — Conflicting views — Comments. § 681. View that gi-antee is not affected by mistake in copying deed, g 682. Reasonable precaution, g 683. Contrary view that purchaser is bound by what appears upon record, g 684. Fuller presentation of this view, g 685. Views of Mr. Pomeroy, g 686. Comments, g 687. Effect of mistake in copying deed when considered recorded as soon as filed, g 688. Effect of mistake where opposite view prevails. i 689. Continued, g 690. Destruction of record. g 691. Proof of deed where record is destroyed, g 692. Index as part of the record — Comments, g 693. View that deed improperly indexed does not give constmctive notice. g 694. Decisions in Iowa on this question. g 695. View that mistake in index has no effect upon record. g 696. Comments. g 697. Liability of recording officer for error; g 698. Correction of mistake in record. g 699. Reformation of deed — Correcting record, g 700. Copy of seal. g 701. Filing deed with person in charge of office, g 702. Comments. g 703. Registration of deeds when State is in rebeUion. g 704. Payment of fees. g 705. Proof of time at which deed is recorded, g 706. Withdrawing deed filed for record, g 707. Constructive notice. . g 708. Deposit subject to further order, g 709. Priority between deeds recorded on same day. § 626 EEGflSTEATION OF DEEDS. 634 2 710. Facts of wbioh the record gives notice. g 711. Notice of unrecorded deed from notice of power of sale. g 712. Beeord is not notice to prior parties. g 713. Beeord is notice only to purchasers under the same grantor. g 714. Illustrations. g 715. Beeord of deed subsequent to mortgage not notice to mortgagee. g 716. Subsequent purchaser should notify mortgagee. g 717. Actual notice. I 718. Notice of unrecorded deed. g 719. Unrecorded deed and recorded purchase money mortgage, § 720. Comments. g 721. Subsequently acquired title inuring to benefit of grantee. g 722. Comments. g 723. How far back purchaser must search. g 724. Correct rule. § 626. In general — The design of the registration acts is to afFord a convenient means of giving knowledge of the contents of conveyances affecting the title to real property. The title to personal property is transferred by a change of possession. The title to real estate is conveyed by deed. But the owner of the legal title may not be in the possession of the premises, and the record supplies notice to all of his rights. Although a pur- chaser may have no actual notice of previously recorded deeds, yet he is bound to take notice. The record is open to his inspection, and priority of title is determined, aside from the question of notice to be hereafter considered, by priority of record. The conveyance which is first recorded takes preced- ence, although it may not have been the deed first executed. Between the original parties, except in a few States, the force and validity of deeds are not affected by registration. But in contemplation of law, every one has notice of all deeds convey- ing from one person to another any interest in land, and any rights subsequently acquired must be subordinate to those which the records disclose. It is presumed that the records will show every claim, title, or encumbrance upon every piece of land within the jurisdiction of the recording office. An oppor- tunity is thus given to every intending purchaser to ascertain in whom the legal title lies, and to what encumbrances it is sub- ject, and if he sees fit to rely upon the representations of others without consulting the record, he does so at his own peril. He cannot be considered an innocent purchaser in law, although he may be so in fact, for " the registry laws would be useless, unless 635 JIEGISTRATION OP DEEDS. § 627 subsequent "purchasers were bound to take notice of a deed previously recorded."^ § 627. In England. — In England there is no general system of registration that prevails throughout the entire kingdom. In certain counties, systems of registration have been provided by different acts of Parliament. By the statute of seventh of Anne, which provides for the registration of conveyances in the county of Middlesex, it is declared that every deed shall be "adjudged fraudulent and void against any subsequent purchaser or mort- gagee, for valuable consideration, unless such memorial be regis- tered, as by this act is directed, before the registering of the memorial of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim.'" At an early day it was determined under the English registry acts that their object was to prevent imposition upon subsequent purchasers and mortgagees by setting up prior secret conveyances and fraudulent encum- brances, but that if the purchaser had notice of a prior convey- ance, then that was a secret conveyance by which he was not injured, and against which it was not the object of the act to protect him.' But by this was meant actual notice. Nothing is said in the statutes about notice, and the rule became estab- lished that a subsequent purchaser who has acquired the legal estate was not charged with notice of a prior conveyance from 1 Bnchanan v. International Bank, 78 m. 500, 503 ; Hager v. Spect, 52 Cal. 579 ; Call v. Hastings, 3 Cal. 179 ; Mesiok v. Sunderland, 6 Cal. 297. And see Chamberlain v. Bell, 7 Cal. 292 ; 68 Am. Dec. 260 ; Woodworth v. Guzman, 1 Cal. 203 ; Bird v. Dennison, 7 Cal. 297. ' The different registry acts in England are. West Riding of Yorkshire, 5 Anne, oh. 18 ; East Riding of Yorksliire and Kingston on HuU, 6 Anne, ch. 85 ; North Biding of Yorkshire, 8 George II. ch. 6 ; Middlesex, 7 Anne, eh. 20 ; Irish Act, 6 Anne, ch. 2. ' Le Neve v. ILe Neve, 1 Amb. 436. Speaking of this doctrine of notice. Lord Eldon in this case says, that " the ground of it is plainly this, that the taking of a legal estate after notice of a prior right makes a person Tnala fide purchaser ; and not that he is not a purchaser for a valuable consid- eration in every respect. This is a species of fraud and doliis malus itself ; for he knew the first purchaser had the clear right of the estate, and after knowing ttiat he takes away the right of another person by getting the legal estate ." See, also, TanstaU v. Trappes, 3 Sim. 301 : Hine v. Dodd, i Atk. 275 ; Cheral v. Nichols, Strange, 664. § 628 EEGISTEATION OP DEEDS. 636 its registry alone.* In England, the notice must be so clearly proved as to render the act of taking and registering a convey- ance in prejudice to the known title of another an act of fraud. And Sir William Grant regretted that the rule had been even extended that far, "It has been much doubted," said he, " whether courts ought ever to have suffered the question of notice to be agitated as against a party who has duly registered his conveyance."^ But the courts in that country have held that in certain cases actual notice of a prior registered conveyance may be presumed on the part of a subsequent purchaser, when it is proven that he has made an examination of the proper records.' § 628, Registration in the United States, — In this country, in all of the States, there are statutes which provide for the regis- tration of conveyances affecting the title to real property, after they have been properly acknowledged. An abstract of these was given in the preceding chapter. These statutes have been looked upon with favor by the courts. They embrace equitable estates-and interest in land, as well as legaL* The record gives ' Wiseman v. Westland, 1 Ybunge & J. 117 ; Ford v. White, 16 Beav. 120 ; Hodgdon v. Dean, 2 Sim. & St. 221 ; Morecock v. Dickens, Amb. 678 ; Underwood v. Lord Courtown, 2 Sohoales . Walker, 77 Va. 92. * Jackson v. West, 10 Johns. 466. 639 EEGISTRATION OF DEEDS. § 630 the grantor and his heirs." * Where the genuineness of the deed was admitted "it proved," said Mr. Justice Marshall of Ken- tucky, "a transfer of the title from the grantor to the grantee, and was good evidence of this fact, not only between the imme- diate parties, but against all the world except purchasers for a valuable consideration without notice and creditors."^ But if registration is necessary to the validity of the conveyance, as is sometimes required by statute in the case of proceedings in the sale of land for taxes, then recording becomes a condition pre- cedent and no title passes, unless there has been a strict com- pliance with the statute.' § 630. Registration of mortgages in book of deeds. — If the statute requires that separate books shall be kept for the registra- tion of mortgages, subsequent bonafde purchasers or mortgagees are not bound by the notice given by the registration of a mort- gage recorded in a book of deeds.* A conveyed land to B as security for a loan, subject to a mortgage to C, the conveyance being recorded as a deed, and a short time afterwards, and after the payment of the loan, B purchased the land from A, and on the latter's securing a satisfaction from C of his mortgage, B paid A the whole price of the land; C had before this time > Chief Justice Kent, in Jackson v. Burgott, 10 Johns. 457 ; 6 Am. Dec. 349 ; Fitzhugh v. Croghan, 2 Marsh. J. J. 429 ; 19 Am. Dec. 140 ; Gruerrant V. Anderson, 4 Rand. 208 ; Sicard v. Davis, 6 Peters, 124 ; Phillips v. Green, 3 Marsh. A. K. 7 ; 13 Am. Deo. 124 ; Smith v. Starkweather, 5 Day, 207 ; \ Whittemore v. Bean, 6 N. H. 47 ; KoUs v. Graham, 6 Mon. B. 120 ; French V. Gray, 2 Conn. 92; Boling v. Ewing, 9 Dana, 76; Hancock v. Beverly, 6 Mon. B. 531 ; Wade v. Greenwood, 2 Rob. (Va.) 474 ; 40 Am. Dec. 759 ; Vose V. Morton, 4 Cush. 27; 50 Am. Dec. 750. In Martin v. Quattlebam, 3 McCord, 205, it is said : " On the second question, it is not necessary to the validity of a deed that it should be recorded. Recording only becomes necessaiy in particular, when there are double conveyances. If the same grantor convey to two, he whose deed is duly recorded shall hold." ' Boling V. Ewing, 9 Dana, 76. » Clark V. Tucker, 6 Vt. 181 ; Giddings v. Smith, 15 Vt. 344 ; Morton v. Edwin, 19 Vt. 81. ■* James v. Morey, 2 Cowen, 246; 6 Johns. Ch. 417; 14 Am. Dec. 475; Calder v. Chapman, 52 Pa. St. 359 ; White v. Moore, 1 Paige, 551 ; Clute v. Robison, 2 Johns. 595 ; Warner v. Winslow, 1 Sand. Ch. 430 ; CordevioUe V. Dawson, 26 La. An. 534 ; Brown v. Dean, 3 Wend. 208 ; Grimstone v. Carter, 3 Paige, 421 ; 24 Am. Deo. 230 ; Dey v. Dunham, 2 Johns. Ch. 182 ; MoLanaiian v. Reeside, 9 Watts, 508 ; 36 Am. Deo. 136 ; Fisher v. Tumiard, 25 La. An. 179 ; Colomer v. Morgan, 13 La. An, 202. § 630 EEGISTEATION OF DEEDS. 640 assigned his mortgage to another, D, but the latter had neglected to have his assignment recorded; C received no consideration for executing the release of the mortgage, but B had no notice of this fact or of the assignment to D. It was held that the lands in the hands of B, and purchasers from him, were discharged from the mortgage, and that although the recording of the deed t6 B was a nullity in the first instance, yet after he purchased and paid for A's equity in the land, the record of the deed became operative, and the transaction might be considered as equivalent to the delivery of a deed which had been recorded in expectation of a future sale. But it was also held that if the assignment of the mortgage had been recorded while the deed remained as security for A's loan, the land in the hands of B would have been subject to the mortgage thus assigned.* But it is held in Nevada, that the statute of that State concerning conveyances has no provisions similar to those of the statutes of New York, under which it is held in the latter State, that the record of a deed absolute upon its face, but intended as a morlgage, gives no notice to subsequent purchasers. In Nevada, subsequent pur- chasers and encumbrancers are deemed to have constructive notice under the statute of every conveyance affecting real estate^ * Warner v. Winslaw, 1 Sand. Ch. 430. In Deyw. Dnnliam, 2 Johns. Ch. 182, 189, the Chancellor says : "The deed to the defendant of the fifty- lots was on its face an absolute deed in fee, with full covenants, and it was acknowledged and recorded as a deed on the day of its date. It is admitted, however, that the deed was taken in the first instance as a security for the payment of three notes, to the amount of ten thousand dollars, payable in six months, and bearing date about the same time with the deed in January, 1810. Afterwards, on the 27th of July, 1810, and about the time that the notes became due, other notes were given in lieu of them, and an agreement under seal executed by the defendant, admitting that the deed of the fifty lots was only held as a security, and that if the substituted notes were paid, the deed was to be given up and the lots reconveyed. This agreement operating as a defeasance or explanation of the design of the deed, was never registered, yet it is to be considered in connection with the deed, and relates back to its date, so as to render the deed from its com- mencement what it was intended to be by the parties, a mere mortgage, securing the payment of the notes. As a mortgage, the deed and the subsequent agreement ought to have been registered to protect the land against the title of a subsequent bonaflde purchaser. This is the language of the statute concerning the registry of mortgages; and recording the deed as a deed was of no avail in this case, for the plaintiff was not bound to search the record of deeds, in order to be protected against the operation of a mortgage." 641 EEGISTEATION OF DEEDS. § 631 properly recorded.* In Ohio, the statute requiring^ mortgages to be recorded in a set of books denominated " record of mortgages," is considered to be merely directory to the recorder. It was therefore held that a mortgage deed delivered to the officer for registration, and recorded in a record book called the " record of deeds," and indexed in both the index to the volume and the general index, with the letters "mtg." annexed, is operative as a mortgage-against a subsequent purchaser for value, although he had no actual notice of such mortgage.^ § 631. A mortgagee is «oiisidered a pnrcliaser. — A mort- gagee' or a trustee in a deed of trust ^ is a purchaser, as the term is used in the recording acts. Two persons purchased for their joint benefit a quantity of land, contributing equal parts of the purchase money. They mutually agreed that conveyances of the property should be executed to one of them, who, subse- quently with the knowledge and consent of the other, obtained from a bank a number of loans. The money thus obtained was expended in improving the property. These loans were secured by trust deeds executed by the party who had the legal title, and he afterwards secured a sum of money from another bank giving a mortgage therefor. The other partner in the joint purchase never exercised any authority or control over the propc erty, and his rights were not evidenced by any writing. He brought an action to obtain a sale of the property, and to have the proceeds distributed among the parties entitled. It appeared that his partner, whom he made one of the defendants, paid the taxes on the property, it being assessed to him, and from the time of the original conveyance until after the commencement * Grellett V. HeiUhorn, 4 Nov. 526. * Smith Ex'r v. Smith, 13 Ohio St. 532. Although the reqniTement of the- statute that a deed intended as a mortgage shall be recorded as a mort- gage is not complied with, it is valid between the parties : James v. Morey, 2 Cowen, 246 ; 14 Am. Dee. 475. The record becomes operative if, however, the mortgagee subsequently purchases theequity of redemption or obtains it by any other means : Warner v. Winslow, 1 Sand. Ch. 430. » Moore v. Walker, 3 Lea (Tenn.) 656 ; Whelan v. McCreary, 64 Ala. 319 ; Haynsworth v. Bischoff, 6 S. C. 159 ; Jordan v. McNeil, 25 Kan. 459 ; Pat- ton V. Eberhsrt, 52 Iowa, 67 ; Chapman v. Miller, 130 Mass. 289 ; Bass r. Wheeless, 2 Tenn. Ch. 531 ; Weinberg v. Bempe, 15 W. Va. 829. * Kesner v. Trigg, 98 U. S. 50 ; New Orleans Canal etc. Co. v. Montgom- ery, 95 U. S. 16. I. DE£DS. — 41. § 632 REGISTRATION OF DEEDS. 642 of the action, always dealt with the property as though he were the sole owner. The bank mortgagee had no notice of any interest in plaintiff, and made the loan to his partner upon the faith of the latter's apparent title by deed, under the impression that the property was solely his. The court held that the claims of the plaintiff should be postponed to those of the mortgagee bank.* § 632. Pre-existing debt — But a mortgage to secure a pre- existing debt is not generally considered as a purchase for a valuable consideration. Such a mortgagee, where this is held to be the law, is not entitled to protection against prior equities, although when he took his mortgage he had no notice of them.* " Although the plaintiff was a purchaser without notice, he was not a purchaser for value, and his conscience was as much bound by the prior equity of the defendant Jacks, as were the con- sciences of liis mortgagors. In fact, he occupied no better posi- 1 Salter v. Baker, 54 Cal. 140. Said the court, per Boss, J. : " There can be no doubt that the equities of the bank are superior to those of the plaintiff, who voluntarily permitted the title to the property to be placed io the name of Baker, and for a long series of years allowed him to appear ;as its absolute legal and equitable owner, and in all respects to deal with dt as his own. The bank, ignorant of any interest in plaintiff, and relying upon the apparent ownership of Baker, loaned him' its money, and should in good conscience be protected against the now asserted claim of plaintiff : Eice V. Rice, 2 Drew. 73 ; Richard v. Sears, 6 Ad. & E. 469 ; McNeU v. Tenth National Bank, 46 N. Y. 325 ; Code Civ. Proc. g 3543." See, also, dinger Manufacturing Co. «;. Chalmers, 2 Utah, 542; Porter v. Green, 4 Jowa, 571 ; Seevers v. Delashmutt, 11 Iowa, 174 ; 77 Am. Dec. 139. 2 Withers v. Little, 56 Cal. 370 ; De Lancey v. Stearns, 66 N. Y. 157 ; West- ■ervelt v. Hoff, 2 Sandf. Ch, 98 ; Union Dime Savings Inst. v. Duryea, 67 -N. Y. 84 ; Manhattan Co. v. Evertson, 6 Paige, 457 ; Diokerson v. Tilling- ihast, 4 Paige, 215 ; 25 Am. Dec. 528 ; Padgett v. Lawrence, 10 Paige, 170 ; 40 Am. Dec. 232 ; Van Heusen v. Kadcliff, 17 N. Y. 580 ; 72 Am. Dec. 480 ; ■Gary v. White, 7 Lans. 1 ; S. C. 52 N. Y. 138 ; Coddington v. Bay, 20 Johns. '637 ; 11 Am. Dec. 342 ; Stalker v. McDonald, 6 Hill, 93 ; 40 Am. Dec. 389 ; 3:inds V. Pugh, 48 Miss. 268 ; Bartlett v. Varner, 56 Ala. 580 ; Panooast V. Duval, 28 N. J. Eq. 445 ; Morse v. Grodf rey, 3 Story, 364 ; Mingus v. Condit, 23 N. J. Eq. 313 ; Spurlock v. Sullivan, 36 Tex. 511 ; Wilson v. Knight, 59 Ala. 172 ; Gaflbrd v. Stearns, 51 Ala. 434 ; Short v. Battle, 52 Ala. 456 ; Pickett v. Barron, 29 Barb. 505 ; Thurman v. Stoddart, 63 Ala. 336 ; Coleman v. Smith, 55 Ala. 368 ; Cook v. Parham, 63 Ala. 456 ; Alex- ander V. Caldwell, 55 Ala. 517 ; Schumpert v. Dillard, 55 Miss. 348 ; Per- kins V. Swank, 43 Miss. 349, 360 ; Lawrence v. Clark, 36 N. Y. 128 ; Webster V. Van Steenbergh, 46 Barb. 211. But a mortgage of this kind is valid between the parties : Turner v. McFee, 61 Ala. 468 ; Steiner v. MoCall, 61 Ala. 413. 643 EEGISTBATION OP DEEDS. § 633 tion than his mortgagors." * But this rule is not universally accepted, and in some cases it is held that a mortgagee who in good faith takes a mortgage to secure a pre-existing debt, is entitled to be regarded as a purchaser for a valuable considera- tion, and to receive all the protestion that results from this relation. But this latter view is not sustained by the weight of authority. A mortgagee who has not parted with value is considered to be in no worse position than he was before, and to be bound by the same equities that bound his mortgagor.^ § 633. Assignee of a mortgage is considered a parchaser. — A person who purchases a mortgage is considered as coming within the operation of the registry acts, and is entitled to full » Withers v. Little, 56 Cal. 370, 373. ' Babcook v. Jordan, 24 Ind. 14. Elliott, C. J., said in this case : " The question raised by the reply is this, viz. : Is the mortgagee of a mortgage taken in good faith to secure a pre-existing debt regarded as a purchaser for a valuable consideration and protected as such ? The replication under consideration assumes .the negative ; but the same question has been ruled affirmatively by this court, in the case of Work v. Brayton, 5 Ind. 896. Perkins, J., in delivering the opinion of the court in that case, says : ' The question whether a mortgagee, in a mortgage given for the security of a j^re-existing debt, is to be regarded as a purchaser for a valu- able consideration, has been decided differently by different courts ; and there has been a like diversity of opinion upon the analogous question, whether the holder of commercial paper assigned as collateral security for a pre-existing debt. Is to be treated as a holder for a valuable consider- ation. The latter of these questwns this court decided In the affirmative iu Valette v. Mason, 1 Ind. 288 ; and it would seem that the principle of that case applied to a mortgage of real estate to secure a like Indebtedness, would require that to be regarded as a purchaser for a valuable consider- ation It it is not to be so regarded, the titles of purchasers and mortgagees for such a consideration, must be of comparatively little value, as they may, at any time, be unexpectedly overrode by secret Invisible liens for unpaid purchase money to some former grantors, or by some other, till then unknown, alleged equitable claims, which might in their origin have been without trouble made secure by open recorded instruments that would have been notice to all the world. .... A pre- existing debt is held to be a valuable consideration by Story in the second volume of his Equity Jurisprudence, pp. 657, 658, and he cites for the doc- trine Metford v. Metford, 9 Ves. 100, and Bayley v. Greenleaf, 7 Wheat. 46. In vol. 2, pt. 1, p. 73, of White and Tudor's Leading Cases in Equity, they say : ' Similar decisions were ruade in Kicheson v. Richeson, 2 Gratt. 497, and in Dey v. Dunham, 2 Johns. Ch. 182 ; though this latter case has not been followed in New York, Kent, in the fourth volume of his Commen- taries, p. 154, approves the doctrine, and expresses the conviction that it rests on grounds that will command general assent.' " § 633 EEGISTEATION OP DEEDS. 644 protection as a 6ona fde purchaser. The fact that his assignor had notice of prior encumbrances upon the property described in the mortgage, does not affect him if he purchases in good faith and for a valuable consideration, and has his assignment recorded before the registration of the prior deed or encumbrance.* The assignee of a mortgage is entitled to the same consideration and as ample protection under the registy acts as a person who buys the equity of redemption.^ If there is a prior outstanding mort- gage at the time the assignment is made, of which the assignor had notice, and it is recorded before the assignment, it will take precedence over the latter. This would also be the case if the prior mortgage was recorded before the assignment was made, but after the registration of the assigned mortgage," While an assignee of a mortgage is not chargeable with notice possessed by his assignor, he is bound by the constructive notice of the record and by the notice supplied by the possession and occupa- tion of another of the premises embraced in the mortgage.* In case two assignments of the same mortgage are made, the general rule applies, and priority is given to the one who first records his assignment. In case he paid only a part of the consideration, he is entitled to precedence only to such part.* But generally the mortgagee would transfer the note to the assignee, and its absence would be a fact sufficient to put the second purchaser upon inquiry.* ' Decker v. Boice, 83 N. Y. 215. 2 Westbrook v. Gleason, 79 N. T. 23 ; Smyth v. Enickerbocker L. Ins. Co. 84N. Y. 589. 3 Fort V. Burch, 5 Denio, 187 ; De Lancey v. Steams, 66 N. Y. 157. * Bush V. Lathrop, 22 N. Y. 535, 549 ; Jackson v. Van Valkenburgh, 8 Cowen, 260 ; Jackson v. Given, 8 Johns. 137 ; 5 Am. Dec. 328 ; Trustees of Union College v. Wheeler, 59 Barb. 585. 5 Wiley V. Williamson, 68 Me. 71; Pickett v. Barron, 29 Barb. 505; Potter V. Stransky, 48 Wis. 235 ; Purdy v. Huntington, 46 Barb. 389. s Kellogg V. Smith, 26 N. Y. 18. See Brown v. Blydenbergh, 7 N. Y. 141 ; 57 Am. Deo. 506. If a part of the mortgaged property is released from the operation of the mortgage, the release to have full effect should be recorded. It is considered as a conveyance affecting title to real estate. In case such a release is not recorded, a subsequent assignee of the mort- gage, for a valuable consideration and without notice, is not affected by it : Mutual Life Ins. Co. v. Wilcox, 55 How. Pr. 43. The same rule manifestly applies in the case of an unrecorded agreement to release the mortgaged premises, or a part of them : St. John v. Spalding, 1 Thomp. & C. 483. 645 EEGISTKATION OP DEEDS. § 634 § 634. Judgment creditors. — By the rules of the common l&w, a judgment creditor was not regarded as a purchaser within the recording laws.^ Unless this construction has been changed by statute, the same rule would obtain.'' An attachment lien stands upon the same ground, so far as this question is concerned, as a judgment lien.' And generally a judgment or attaching creditor is not entitled to protection against an unrecorded deed.* Where a judgment creditor is not considered a purchaser, an unrecorded mortgage which is valid except as against bona fide purchasers and mortgagees for value and without notice, it has been decided a number of times, has preference over a judgment lien.* Speaking of the effect of a judgment lien upon the real estate of a debtor, Chief Justice Wright of Iowa observed : " It is the jiroperly of the debtor, which is bound by the attachment from the time of service, and not the property of another. So, also the judgment is a lien upon the real estate owned by the defendant at the time of its rendition, and not upon that owned by another. It is true that the phrase 'real estate' includes lands, tenements, and hereditaments, land all rights thereto and interests therein, equitable as well as legal, but the judgment • Brace v. Marlborough, 2 P. Wins. 491 ; ■ Pinch v. Winehelsea, 1 P. Wms. 277. ' Rodgers v. Gibson, 4 Teates, 111 ; Heistner v. Fortner, 2 Binn. 40 ; 4 Am. Dec. 417 ; Cover v. Black, 1 Pa. St. 493. » Plant V. Smythe, 45 Cal. 161 ; Le Clert v. Callahan, 52 Cal. 252 ; Hackett V. Callender, 32 Vt. 97 ; Hoag v. Howard, 55 Cal. 564 ; Hart v. Farmers' . Caldwell, 10 Cal. 380 ; 70 Am. Deo. 740 ; Allen v. Hawley, 66 111. 164 ; New England Jewelry Co. v. Merriam, 2 Allen, 390 ; Lane v. CoUier, 46 Ga. 580 ; Amph- lett V. Hibbard, 29 Mich. 298 ; Magee v. Magee, 51 HI. 500 ; Nichols-u. Over- acker, 16 Kan. 54. And see, also, Greeno v. Barnard, 18 Kan. 518 ; Pratt v. Topeka Bank, 12 Kan. 570 ; Hopper v. Parkinson, 5 Nev. 233 ; Hand v. Savannah etc. R. R. 12 S. C. 314„ * Stephenson v. Haines, 16 Ohio St. 478. ' Houston V. Houston, 67 Ind. 276. Priorty is given to a mortgage for purchase money recorded with the deed of purchase over a mortgage made by the purchaser, before the completion of the purchase- to secure a loan to be used for making the cash payment, even if this prior mortgage was recorded before the purchase money mortgage to the grantor was recorded : Turk v. Funk, 68 Mo. 18 ; City Nat. Bank Appeal, 91 Pa. St. 163. 659 EEGISTEATION OP DEEDS. § €44 the purchaser.* While such a mortgage bars a wife of her right of dower,'* yet she is not barred by the fact that the mort- gage recites it to be a mortgage for the purchase money, when, by reason of the lapse of time between the deed and the mort- gage, it is not.* But where the mortgage for the purchase money is- not recorded, a deed from the grantor to a third party will not prevail against a subsequent recorded deed from the grantee to a party having no notice of the mortgage or the grantor's second deed.^ § 644. Administrator's sale and prior unrecorded conveyance. — An unrecorded deed or mortgage binds the mortgagor and his administrator.® The administrator is a trustee, and succeeds to such rights as the intestate possessed and no other. An interesting case in which this principle was applied occurred in Indiana. An intestate executed a mortgage on certain real estate to secure the purchase money. This mortgage was not recorded, and the administrator having no knowledge of its exist- ence, sold the land under an order of court, for the purpose of producing assets to meet claims against the estate, the estate .being insolvent. The purchaser at this sale was also ignorant of this mortgage, paid the whole of the purchase money, which was a fiill and fair price for the property, and took a proper conveyance. The question presented to the court for decision was whether the mortgagee, whose mortgage was not recorded, was entitled to payment out of the proceeds of the real estate in preference to general creditors. The court held that the pro- ceeds of the sale were subject to the mortgagee's lien, and that he was entitled to such preference.* The court discussed the questions in its various aspects at considerable length. " It is only subsequent purchasers and encumbrancers in good faith who 1 Q-uy V. Camere, 5 Cal. 511 ; Strong v. Van Denrsen, 23 N. J. Eq. 369; Iiamb V. Cannon, 38 N. J. L. 362 ; Macintosh v. Thurston, 25 N. J. Eq. 369 ; Virgin v. Brubaker, 4 Nev. 31. But see Tanner v. Bell, 61 Ga. 584. 2 Jones V. Parker, 51 Wis. 218 ; George v. Cooper, 15 W. Va. 666. » Tibbetts v. Langley Manufacturing Co. 12 S. 0. 465. A deed of trust is considered to be a mortgage : Summers v. Dame, 31 Gratt. 791 ; Curtis v. Root, 20111. 53 ; Austin v. Underwood, 37 ni.,438. * Thompson v. Westbrook, 56 Tex. 265. ' Andrews v. Bums, 11 Ala. 691. « Kirkpatrick v. CaldweU, 32 Ind. 299. § 644 EEGISTEATION OP DEEDS. 660 are protected against an unrecorded mortgage. As against all the world besides, the registry imparts no virtue or force what- ever to the instrument. As against the mortgagor and the estate while it remains in his hands, the lien is as perfect without regis- try as it is with it. It is so, also, against his general creditors, whUe he lives, and after his death. No change was wrought in the rights of the mortgagee with respect to the other creditors by his decease. The administrator was his personal representative, and, of course, tookno better right than the intestate had. Indeed, he took no estate whatever in the lands mortgaged, but a duty with reference thereto fell upon him in the performance of his trust, when it was discovered that its sale would be necessary to satisfy indebtedness. This was to file a petition for such sale, stating, amongst other things, the nature of the intestate's title. This implies some diligence to ascertain the precise fact. Mere ignorance is no excuse for him. It is his duty to know the truth ; and, indeed, he is unfaithful to his trust if he fails to inform himself of the entire condition of the whole estate, unless, indeed, proper diligence fails to discover it. This record merely discloses his want of knowledge, and we are not able to perceive why that circumstance should, in any manner, influence the decision of the question before us. Why should general credit- ors derive an advantage from the administrator's ignorance of a fact? They have not acted upon it to their injury. If this ignorance was the result of his negligence in making inquiry, and shall profit one creditor at the expense of another, then the rights of creditors in the fund would depend much upon the care and attention which the administrator brings to the per- formance of his duties; and we suppose this cannot be. We are of the opinion that the fact that the administrator did not know of the existence of the mortgage, may be laid out of the case as an element wholly immaterial." "It certainly cannot be of avail to the general creditors that they had no notice of the mortgage. They are not in a position to avail themselves of such want of notice, not being purchasers or encumbrancers." To the argument that if the mortgagor had sold the land to an innocent purchaser and received the purchase money during his lifetime, the mortgagee would not be permitted to pursue the fund in his hands, but must have rested content, with tlie result 661 EBGflSTRATrON OP DEEDS, § 645 of his remedy at law in personam, and hence, as a logical result, could not follow the proceeds in the hands of the administrator, the court replied: "The argument has apparent force, and, indeed, would be convincing if the administrator held the fund as the mortgagor would hold it in the case supposed. In the absence of fraud, the latter would hold it in his own right, but the administrator holds it as a mere trustee, to be disposed of under the control of the court, in the payment of debts, and any surplus by distribution. If the existence of the mortgage had been stated in the petition for the sale of the land, as it should have been, if known, the court would have ordered the sale sub- ject "to the mortgage, or else for the payment thereof, as might have been adjudged best. In the latter case, the administrator's duty would have required him to apply the proceeds of the sale, so far as necessary, to the payment of the mortgage debt; and the court would have enforced this duty. But in the present case the administrator, in applying for power to sell, did not inform the court of the mortgage, and consequently the decree made no provision for it, and the purchaser, being without notice, took title free from the mortgage, paying a correspond- ing priccw The money is in the hands of the administrator, and no equities have intervened in behalf of other creditors. There is no reason, therefore, why the court should not, for the pur- poses of justice, follow the proceeds, stiU in reach, and subject them to the lien which originally subsisted against the land, as is habitually done in other cases of trusts, where the trustee has either wilfully or ignorantly violated his duty by disposing of the trust estate." ' § 645. CompliaaTO with preliminary requirements. — To entitle a deed to be recorded, all preliminary requirements must be com- plied with. It must be properly executed and acknowledged. If the deed is defective in any of these particulars, the rule is firmly established, that spreading it upon the record does not give constructive notice of its contents.^ " Without an acknowl- 1 Kirkpatrick v. Caldwell, supra, per Frazer, C. J. And see Stewart v. Mathews, 19 Fla. 752. * Pope V. Henry, 2i Vt. 560 ; Stevens v. Hampton, 46 Mo. 408 ; Gait v. Dibrell, 10 Yerg. 146 ; Lewis v. Baird, 3 McLean, 56 j MoMinu v. O'Connor, 27 Cal. 238 ; Holliday v. Cromwell, 26 Tex. 188 ; Chouteau v. Jones, 11 111. § 645 EEGISTKATION OF DEEDS. 662 edgmentj the recording of the deed could have no effect as to notice, for the statute requires the deed to be executed and acknowledged and then recorded, to operate as constructive notice And if this acknowledgment be defective in not showing that the person who took the acknowledgment had a right to take it, the act does not appear to be official, and is not a compliance with the statute. And where a purchaser is to be charged with constructive notice from the mere registration of a deed, all the substantial requisites of the law should be complied withi As well might it be contended that a recorded deed without an acknowledgment would be notice, as that it would be notice with a defective acknowledgment." ^ An instrument 300 ; 50 Am. Dee. 460 ; Whitehead v. Foley, 28 Tex. 268 ; Walker v. Gilbert, 1 Freem. Ch. 85 ; Blood v. Blood, 23 Pick. 80 ; Hemdon v. Kimball, 7 Ga. 432 ; 50 Am. Dec. 406 ; Isham v. Bennington Iron Co. 19 Vt. 230 ; Suiter v. Turner, 10 Iowa, 517 ; Reynolds v. Kingsbury, 15 Iowa, 238 ; Bishop v. Schneider, 46 Mo. 472 ; Brinton v. Seevers, 12 Iowa, 389 ; Mummy v. John- son, 3 Marsh. A. K. 220 ; Schults v. Moore, 1 Mcljean, 523; Ely v. WUeox, 20 Wis. 523 ; Brown.«. Lunt, 37 Me. 423 ; Edwards v. Briuker, 9 Dana, 69 ; Pringlo V. Dunn, 37 Wis. 449 ; Johns v. Reardon, 3 Md. Ch. 57 ; Dewitt v, Moulton, 17 Me. 418 ;. Stevens v. Morse, 47 N. H. 532 ; Harper v. Reno, 1 Freem. Ch. 323 ; Graham v. Samuel, 1 Dana, 166 ; Barneys. Little, 15 Iowa, 527 ; Cockey v. Milne, 16 Md. 200 ; White v. Denman, 1 Ohio St. 110 ; Hodg- son V. Butts, 3 Cranch, 140 ; Sumner v. Rhodes, 14 Conn. 135 ; Carter v. Champion, 8 Conn. 548 ; 21 Am. Deo. 695 ; Work v. Harper, 24 Miss. 517 ; Thomas v. Grand etc. Bank, 9 Smedes & M. 201 ; Strong v. Smith, 3 McLean, 362 ; Green v. Drinker, 7 Watts & S. 440 ; Parkist v. Alexander, 1 Johns. Ch. 394 ; Heistner v. Fortner, 2 Binn. 40 ; 4 Am. Dec. 417. See, also, Kerns v. Swope, 2 Watts, 75 ; Graves v. Graves, 6 Gray, 391 ; Shaw v. Poor, 6 Pick. 88 ; Harper v. Barsh, 10 Rich. Eq. 149 ; Cheney v. Watkins, 1 Har. & J. 527 ; 2 Ana. Dec. 530 ; Tillman v. Cowand, 12 Smedes & M. 262 ; Burn- ham V. Chandler, 15 Tex. 441 ; Bossard v. White, 9 Rich. Eq. 483 ; Brydoa V. Campbell, 40 Md. 331 ; Bass v. Estill, 50 Miss. 300 ; Fleming v. Ervin, 6 W. Va. 215 J Dussaume v. Burnett, 5 Iowa, 95 ; McKean v. Mitchell, 35 Pa. St. 269 ; 78 Am. Deo. 335 ; Galpin v. Abbott, 6 Mich. 17. 1 Schults V. Moore, 1 McLean, 520, 527 ; Wood v. Cochrane, 39 Vt. 544 ; Jones V. Berkshire, 15 Iowa, 248 ; Todd v. Outlaw, 79 N. C. 235. And see McMinn v. O'Connor, 27 Cal. 238. Where it is necessary that a conveyance should be sealed, an instrument to which a seal is not affixed is not entitled to be recorded : Racouillat v. Sansevain, 32 Cal. 376 ; Racouillat v. Rene, 32 Cal. 450. In the latter case, Sawyer, J., said : " The instrument of April 13, 1851, is not under seal, and whether properly acknowledged in other respects or not, was not entitled to record under the act concerning con- veyances as it stood at the date of the instrument. The record, therefore, did not impart constructive notice of its contents to anybody ; and unless Rene had actual notice of the contract embraced in the instrument, he was not affected by it." But see Wallace v. Moody, 26 Cal. 387. If the instru- 663, BEaiSTEATION OP DEEDS. § 646 IS not entitled to record when it purports to have been signed and acknowledged by a firm, and in a firm name. It must appear by which member of the firm this was done.* § 646. Blustrations — Attesting witnesses. — This principle is most often applied in the case of defective acknowledgments. But all other requirements of the statute antecedent to regis- tration must be complied with to make the record notice. If, for instance, a niortgage with only one subscribing witness is by the provisions of a statute void as a legal mortgage, the regis- tration of such an instrument will not raise the presumption of notice to a purchaser from the mortgagor.'' In Connecticut the same question was similarly decided. The court carefully considered the question, and held that the registration of a deed, defective in having but one legal witness, was not constructive notice of such conveyance. The considerations by which the court was governed in arriving at this conclusion are fully stated in the portion of the opinion quoted in the note.* ment, however, was sealed in a proper manner when it was executed, it is not invalidated by a subsequent loss of the seal, unless the seal was removed before it was presented for registration, and the party who attempts to Invalidate the instrument has the burden of proof : Van Ris- wick V. Goodhue, 50 Md. 57. If the statute requires a conveyance to be attested by two witnesses to entitle it to registration, and a conveyance is thus witnessed, but is recorded by mistake without copying the attestation, the record, as it is, is not constructive notice : Pringle v. Dunn, 37 Wis. 449. A record of a mortgage is notice to subsequent purchasers in favor of a person who holds an assignment of the m.ortgage duly recorded, If the acknowledgment is in proper form and the defect is not apparent, as where the officer who took it acted out of his jurisdiction : Heilbrun v. Ham- mond, 13 Han, 474. ' Sloan V. Owens etc. Machine Co. 70 Mo. 206. ' Harper v. Barsh, 10 Rich. Eq. 149 ; Thompson v. Morgan 6 Mmn. 292 ; White V. Denman, 16 Ohio, 59; Van Thorniley v. Peters, 26 Ohio St. 471 ; Hodgson V. Butts, 1 Cranch, 488 ; New York Life Ins. etc. Co. v. Staats, 21 Barb. 570 ; Frostbnrg Mut. Building Assoc, v. Brace, 51 Md. 503 ; Grardner V. Moore, 51 Ga. 268 ; Van Riswick v. Goodhue, 50 Md. 57 ; Ross v. Worth- ington, 11 Minn. 438. 3 Carter v. Champion, 8 Conn. 549 ; 21 Am. Deo. 695. Said WiUimas, J. : "The question then comes to this: is the registering of a defective deed constructive notice so as to bind third persons ? Here it is to be remarked, that the registering of a deed is a legislative regulation, founded indeed upon the best principles of policy for the security of titles, but still depend- ing for its effect upon the true construction of the statute. Our statute has prescribed the manner in which deeds of land shall "be executed ; that § 647 EEGISTEATION OF DEEDS. 664 § 647. Attaclmieiit at time of acknowledgment. — A deed was acknowledged before a register of deeds and given to him to be they shall be attested by two witnesses, acknowledged before a magistrate, and to make them effectual against third persons, shall be recorded. The deed to be recorded, then, is the deed spoken of in the statute ; that is, a deed executed according to the statute, not the instrument, merely, which the common law would denominate a deed, but the instrument which has the statute requisites to give it validity as a deed ; because no other instruments are recognized as grants and deeds of 'houses and lands,' the statute being express that no grant or deed of land shall be valid unless written, subscribed, witnessed, and acknowledged as aforesaid. In one case only, a provision is made for a deed not completed according to the requisites of the statute ; and that is, where the grantor refuses to make an acknowledgment. Then, in conformity to a similar provision in the civil law, the grantee may leave a copy of his deed, with a claim of title, with the register, which secures his title until a legal trial has been had. This exception shows that in all other cases, the deeds completed in the manner required by statute were intended. That this is not a deed of that character, the whole object of the bill shows. Is the recording, then, of such an instrument of any effect 1 It may, indeed, be evidence tending to prove actual notice ; but when the fact of actual notice is negated, as it is in this case, can the record have any effect upon third persons ? Now, if this be a rule of policy, adopted by the legislature, the court is not to extend it to the cases not within its provisions, and should it be extended to the case on trial, I know not where we are to stop, or what line to draw. If it be said that no prudent man will stop without looking at the record, that may be said as truly in any other case as in this, and would be equally applicable to any other defect. But in point of fact, we know purchases are often made, where from the distance of the record, or a reliance upon the integrity of the grantor, no such examination is made, and although this is no excuse for a party, where his case is within the act, yet it may have been the reason why the legislature did not extend the provisions of the act to oases of this kind. But whatever may have been their reasons, it is sufilcient for me that they have not done so." Where an instrument is required to be acknowledged before two justices of the peace, the record of an instrument acknowledged before one justice only is not notice : Dufphey v. Frenaye, 5 Stewt. & P. 215. The record of a conveyance of a married woman is not notice when the acknowledg- ment is not taken separate and apart from her husband: Armstrong o. Eoss, 20 N. J. Eq. 109. If a statute requires that a certificate of the ofi^cial character of the ofi&cer shall accompany the certificate of acknowledg- ment, this must be done to make the record notice ; but the certificate may be obtained afterwards, and if properly recorded the conveyance is con- sidered as recorded from the time at which this certificate is filed : Rea- soned;. Edmundson, 5 Tnd. 393; Ely a. Wilcox, 20 Wis. 523. Aniustrument is not entitled to registration where the certificate of acknowledgment designates the persons who make the acknowledgment as "grantors of the within indenture," omitting the statement that they are known to the oflloer to be the persons who executed the conveyance : Fryer v. Bocke- feUer, 63 N. Y. 268. 665 REGISTRATION OF DEEDS. § 648 recorded. At the same instant, the real estate described in the deed was attached by a creditor of the grantor. On the ground that the deed could not be recorded without a certificate of the acknowledgment, and it must haove required some time to write out the certificate, the attachment was held to have priority over the deed.^ The court said : " It was not in a state to be con- sidered as recorded until after the attachment was made. It should not only be acknowledged, but the certificate of acknowl- edgment should be completed before the delivery to the register, in order that such delivery shall constitute a record. The cer- tificate of acknowledgment is to be a part of the record. It is not sufficient that the register is informed of the acknowledgment ; the object of recording is to give notice to others. Until this certificate was affixed, the fact that the deed was acknowledged and in the register's hands could not be noticed."^ § 648. Incapacity to take acknowledgment. — Under the statute in Missouri, a justice of the peace in one county has no power to take and certify the acknowledgment of an instru- ment conveying lands in another county. If an acknowledg- ment is taken by such an officer under these conditions, the acknowledgment is a nullity and the deed imparts no notice, although it may have been recorded.' As has been explained in ^ Sigoumey v. Lamed, 10 Pick. 72. ^ Sigoumey v. Lamed, supra. Continuing the court said: "By the statute (Stats. 1783, ch. 37, J 4), a deed to have eflfect against any but the grantor and his heirs, and to entitle it to be recorded, must be acknowl- edged by such grantor before a justice of the peace. Here Mr. Ward acted in the double capacity of justice of the peace and register of deeds. He could not consider the deed as in his official custody in the latter capacity until he had done his office in taking the acknowledgment of the grantor in the former, which must necessarily take some time. The exact time when the certificate was made does not distinctly appear ; but the proba- bility is that it was not done till the next mornlag. But we do not decide the case upon that ground; had the magistrate proceeded instantly to write the certificate of acknowledgment, it must have taken some time during which the attachment took effect. Where in a controverted ques- tion of property, the parties stand upon equal grounds in point of equity, the legal title shall prevail ; and in such cases slight circumstances are sufficient to determine that priority upon which we think the preferable legal title depends. Here we think the attachment was prior in time, and the maxim prior in tempore, potior in jure, must decide in favor of the attaching creditor." 3 Bishop V. Schneider, 46 Mo. 472. § 649 EEGnBTRATION OP DEEDS. 666 a previous section, a party in interest is disqualified from taking an acknowledgment. If, however, he does take the acknowledg- ment, and the instrument shows upon its face the fact that he is interested, its registration is improper and does not impart notice. But it is held that when the instrument upon its fece does. not disclose this fact, it is the duty of the register to receive and record it. Under this state of facts, it will, notwithstandine there may be some hidden defect, operate as notice.* § 649. Omission of name of grantee. — A conveyance, although it has been recorded, in which the name of the grantee is omitted, is not constructive notice to subsequent purchasers. As an illus- tration of this rule, a case may be cited where the name of the mortgagee was left blank in a mortgage, and the court said with reference to this defect : " The question in this case is not as to whether there might be an implied authority between the mort- gagor and the mortgagee to fill up the blank and make the instrument complete. The question is as to the efiect of the record of the instrument in its imperfect condition, as construct- ive notice, to a subsequent purchaser of the property. It has been frequently held that slight omissions in the acknowledg- ment of a deed destroy the effect of the record as constructive notice. A fortiori, it seems to us, should so important and vital an omission as that of the name of the grantee have that effect." * ' Stevens v. Hampton, 46 Mo. 404. A eoijrt of equity cannot correct a mistake in a certificate of acknowledgment, in which the grantee instead of the grantor appeared to be the person who made the acknowledgment, so as to make the record of the deed operative from the beginning. It is impossible in such a case to determine whether the mistake was committed in writing the wrong name in the certificate, or in taking the acknowledg- ment of the wrong person : Wood ». Cochrane, 39 Vt. 544 * Disque v. Wright, 49 Iowa, 538, 540, per Day, J. The court cited the case of Chauncey v. Arnold, 24 N. Y. 330, as being'in point.- If a convey- ance is recorded without the signature of the grantor, though it may in fact have been signed and the omission to record it an error, yet the record in such a case is not constructive notice : Shepherd v. Burkhalter, 13 Ga. 443 ; 58 Am. Dec. 523. If the transposition of the name of the parties is apparent, as where the mortgagee's name is by mistake written in the blank for the mortgagor, and the latter's name in the blank for the mortgagee, but it is signed by the proper party, and purports to secure a debt from the party who signs to the other, and is properly acknowledged by the person who signs it, subsequent purchasers from the mortgagor by its record are charged with notice of the mistake : Beaver v. Slanker, 94 111. 175. The 667 EEGISTEATION OP DEEDS. §§ 650-651 § 650. Description of land. — As the object of the registry acts is to enable purchasers to obtain accurate information respecting the title to any particular piece of land, it is essential to the accomplishment of this object that the description of the land in the conveyance should be reasonably certain and sufB- cient to enable subsequent purchasers to identify the premises intended to be conveyed.^ In many cases the description is so inaccurate or misleading that courts have no hesitancy in declar- ing it insufficient to charge purchasers with constructive notice. In others, while the description is erroneous, yet it may be expressed in such a manner, or may be connected with such attendant circumstances, that a purchaser is deemed to be put upon inquiry, and if he fails to prosecute this inquiry, he is chargeable with all the notice he might have obtained had he done so. We call attention in the following sections to instances in which these principles have been applied. § 651. lUastratioiis of description insufficient to give constmc- tiVB notice. — The description in a deed of land was : " Lying as follows, viz., beginning at a servisberry corner, thence north to white oak, thence east to white oak, thence south to limestone quarry, thence to a white oak ; all these trees are marked for the purpose of running off the above described land." The description omitted all reference to the township, county, or State in which the land was situated. The court conceded that this deed and an actual transfer of possession would pass a good title, but held that the record of it was not notice to a purchaser at a judicial sale, nor sufficient to put him upon inquiry." A record of a oonveyanoe is a nullity, -where the certificate of acknowledg- ment fails to state that the^fficer is personally acquainted with the party acknowledging, if such a statement is required by statute : Kelsey v. Dunlap, 7 Cal. 160 ; Peyton v. Peacock, 1 Humph. 135. See, also,'Thurman V. Cameron, 24 Wend. 87; Johnson v. Walton, 1 Sneed, 258. 1 Kodgers v. Kavanaugh, 24 111. 583 ; Port v. Embree, 54 Iowa, 14; Bar- rows V. Baughman, 9 Mich. 213; Eggleston v. Watson, 53 Miss. 339. ' Ban]^ V. Ammon, 27 Pa. St. (3 Casey) 172. The opinion of the court ■was delivered by Knox, J., who on this point said : "The rule of caveat emptor applies to a purchaser at a judicial sale, but he is not bound to see what is not to be seen. He is protected by the recording acts, and secret defects in a title apparently good, are for him no defects at aU. Notice may be by record, by possession, or it may be given directly to the person sought to be charged with it, either by writing or verbally. In the case § 651 EEGISTEATION OP DEEDS. 668 purchaser is not charged with constractive notice of a mort- gage, describing certain lots upon a town plat which had not been recorded, when the lots were described by different num- bers in a plat recorded afterwards, and the mortgagee was not in possession of the premises. A party is not put upon inquiry by the absence of a town plat from the record till after the date and record of a conveyance of lots contained in it, so as to charge him with a knowledge of the facts that it was possible for him to ascertain by continuing such inquiry.* Certain prop- erty should have been described as "lot one in block six." It was, however, by mistake described in the deed as "lot and six," a part of the words of the correct description being omitted. A purchaser at a judicial sale, it was held, would take priority over a senior purchaser holding a deed in which the property was thus inaccurately described, unless at the time of his pur- chase he had such notice as would put a reasonably prudent man upon inquiry.* A conveyance of "all the estate, both real before us, at the time of the Orphan's Court sale, the possession was in the heirs at law of Joseph Hutchison, and there was no proof of actual notice to the purchaser that Andrew Banks held a life estate in the premises sold. Was the record of the deed of 14th August, 1832, notice of the estate of Banks? We think not. There is nothing in the description to bring home notice to the purchaser of the identity of the land. Neither town- ship, county, nor State is given for its locality ; nor is the number of the tract or the amount of acres mentioned. No boundaries, courses, or dis- tances referred to ; all that is required to fill the description is to find one servisbgrry, three white oaks, a limestone quarry, with the trees marked in some manner. One about to purchase at a judicial sale, finding such a deed upon record, might safely assume that it did not apply to land of which the grantor died seised." 1 Stewart v. Huff, 19 Iowa, 557. Said Cole, J. : "The plaintiffs might have protected themselves perfectly, and secured a priority for their mortgage by causing the plat of Dyersville then in existence to be duly recorded. Without such recorded plat there was one link wanting in their chain of title upon the record. The only means of supplying this defect in their record title was to take possession of the property, or other- wise bring actual or constructive notice to the defendant, of the existence of the missing link. There is no finding of such fact, nor could the mort- gage of certain lots in a town plat not upon record be construed into a notice of a claim upon other lots in a plat afterwards made and recorded ; nor can the absence from record of a town plat till after the" date and record of a mortgage of lots therein, in any just or legal sense, be held to put a party upon inquiry so as to charge him with knowledge of facts within the possible range of such inquiry." 2 Nelson v. Wade, 21 Iowa, 49. See Jones v. Bamford, 21 Iowa, 217. 669 BEGISTRATION OP DEED^ § 651 and personal," to which the grantor " is entitled in law or in equity, in possession, remainder, or reversion," is operative as a transfer of the grantor's whole estate. But it is held that the registry of a deed in which the land conveyed is described in such general terms is not notice in law to a subsequent pur- chaser from the grantor of the existence of the deed; such a purchaser is not affected by actual notice of a deed of this char- acter, and of its contents, unless he had notice also that the deed embraced the land purchased by him. It is also held that the proof of such notice must be sufficient to affect the conscience of the purchaser, and not merely to put hini upon inquiry.* In Minnesota, under certain provisions of the statute, a mortgage may be foreclosed by " advertisement." But it is essential to the exercise of this right that the mortgage shall be "duly recorded."^ Certain premises were described in a mortgage as the "west half of the southeast quarter of section 14." But the premises were described in the registry as the "west half of the northeast quarter of section 14." It was held that the mortgage was not "duly recorded," on account of the error in the record, and that a foreclosure of the same could not be had by advertisement.' A mortgage was executed to the State of Indiana for a loan of school funds. The premises affected were described by subdivisions, but the county and State in which they were situated were not named. The mortgagor brought an action to quiet title against a purchaser at a sale made by the county auditor. The court held that the mortgage was void for uncertainty in the description of the land, and that a sale by the auditor was consequently a nullity and conveyed no title to the purchaser.* ' Mundy w. Vawter, 3 Gratt. 518. ' Gren. Stat. Minn. cb. 81, Jg 1, 2. » Thorp V. Menill, 21 Minn. 336. And see Eoss v. Worthington, 11 Minn. 438, 443 ; Morrison v. Mendenhall, 18 Minn. 232, 236. * Murphy v. Hendricks, 57 Ind. 593. Said Biddle, C. J., for the court; : " The vast territory lying northwest of the Ohio River was surveyed upon a system of base and meridian lines, under various acts of Congress, and this congressional survey is part of the public law which we must notice. Without naming the State or county, or without something by which the State and county could be ascertained, the description of the land in this mortgage would be just as applicable to the same township and range in reference to any other baseband meridian line in the several States north- § 652 EEGISTEATION OF DEEDS. 670 § 652. inastrations where piircliaser bound, though descrip- tion inaccnrate. — In a conveyance filed for record, the land was desaribed as "the south half of the southeast quarter of section 15, town 8 north, range 43 east, of the fourth principal merid- ian." The correct description should have been "the south half of the southeast quarter of section 15, in town 43 north, range 8 east, of the third principal meridian," the numbers of the town- ship and range having been transposed, and there being no land in the county corresponding to the description in the deed. It was held, however, that notwithstanding the misdescription, the registry laws were applicable, and that a purchaser was put upon inquiry and charged with knowledge of the conveyance of the premises.^ The owner of a northeast corner of a lot of land sold it, but in the deed it was described as the northwest corner of the lot, which was the property of another. The grantee sub- sequently sold the land to third persons in payment of an ante- cedent debt, but following the description in his deed, made the same mistake in his conveyance to the second grantees. When the mistake was discovered, the grantor and the grantee in the first deed, for the purpose of correcting the error in the former deeds, joined in a deed to the second grantees, of the northeast corner of the lot, its correct description. It was held that the second grantees were entitled to the land in equity as against a person who had purchased it, with notice of the error, under a judgment obtained against the original grantor, after the execu- west of the Ohio Biver, as it is to the base and meridian lines by which the survey of the lands in the State of Indiana were [was] made. It is impos- sible to ascertain, therefore, from the face of the mortgage, or from any- thing to which the mortgage refers, in what State or county the land described therein lies. As the mortgage is the basis of title in the appel- lants, we think it too uncertain to uphold their claim. In addition to the case cited, which we regard as being in point, the following authorities fully support the same principle : Porter v. Byne, 10 Ind. 146 ; 71 Am. Dec. 305 ; The Eel Biver Drainiog Association v. Topp, 16 Ind. 242 ; Hun- ger V. Green, 20 Ind. 38 ; Gano v. Aldridge, 27 Ind. 294 ; Key w. Ostrander, 29 Ind. 1; The German etc. Ins. Co. v. Grim, 82 Ind. 249; Harding v. Strong, 42 HI. 148 ; and 3 Wash. Beal Prop. (4th ed.) pp. 384.412." See, also, Cochran v. Utt, 42 Ind. 267. For other cases involving similar ques- tions to those mentioned in this section, the reader is referred to Galway V. Malohow, 7 Neb. 285; Brotherton v. Levingston, 3 Watts & S. 334^ Lally V. Holland, 1 Swan, 396 ; Martindale v. Price, 14. Ind. 115. 1 Partridge v. Smith, 2 Biss. 183. 671 jEffiCflSTKATION OF DEEDS. § 652 tion of the first deed, but before the second deed correcting the error was made.* A lot was described in a mortgage by the number " eighteen," instead of its correct number " eight." A subsequent mortgage was executed, in which the lot was cor- rectly described, but the second mortgagee had notice of the mis- take in the first mortgage. It was held that the lien of the first mortgage attached to lot "eight," and that it was entitled to priority over the subsequent mortgage.^ A mortgage was exe- cuted which .described the land affected as "beginning two hun- dreds north of the southwest quarter of section number 34," but omitted by mistake the word "rods," after the word "hun- dreds." But the deed by which the mortgagor held the land, and which was recorded, contained a correct description of the land, describing it as beginning two hundred rods from the same corner mentioned in the mortgage. A subsequent mort- gagee had knowledge that the land was occupied by the mort- gagor as his homestead for a long period of time. It was held that the record, with the other facts, charged the subsequent mortgagee with notice of the prior mortgage and of the land intended to be affected.' • Gouvemenr v. Titus, 6 Paige, 347. ' Warburton v. Laimiaii, 2 Greene, 420, 424. » Bent V. Coleman, 89 HI. 364 ; 7 Am. Bep.^S&. Said Mr. Justice Breese : "A person about to purchase this tract of land would naturally inquire into the title of the vendor ; he would ascertain his source of title. This is the ordinary and usually the first inquiry. By turning to the records be would discover his ven.dor purchased the land of James Corunda, and received a deed therefor on April 11, 1855, in which the land was described as follows : Commencing two hundred rods north of the soutlvtrost corner, etc., containing forty acres of land. This deed was filed for record on April 13, 1855, and recorded May 4, 1855, and thereby open to the inspec- tion of all persons. This reference, which a person of the most ordinary prudence would make, would have satified a seacher for the truth that there was a mistake in the description, and in this case the more especially, as all the mortgagees holding by mortgages subsequent, knew the land mortgaged was the homestead of their grantor. It was a weU improved tract, enclosed by a growing hedge, with a comfortable dwelling and other structures of a permanent and valuable character. The mortgagor occupied it from the time of his purchase from Corunda to the date of the last mort- gage, something like twenty years. Appellant was familiar with the place, being a frequent visitor there, and knew when she took her mortgage it was his home place, and the record would have told her it was the forty acres he purchased of James Corunda." A court of equity may reform a mortgage which omits a parcel of land which the parties intend to include, and the parcel omitted will be free §§ 653-654 JlEGflSTEATION OF DEEDS. 672 § 653. Description by an impossible sectional number, — If the premises are described by an impossible sectional number, the record of the deed, it follows in accord with the foregoing decisions, is sufficient to put a purchaser from the same grantor upon inquiry. He might by pursuing such inquiry obtain actual knowledge of the prior deed. "Let it be granted," said Mr. Justice Breese, " that it was inaccurately recorded, the point we then make is the record disclosed the fact that a deed for a tract of land with an impossible sectional number, in township thirty-four north, range three east, of the third principal meridian, was recorded, the names of the parties thereto distinctly appearing. Now, a party dealing with the grantor in such a deed would have his attention arrested by this singular description, and he would naturally be led to inquiry. The record afforded him abundant data, which properly used and diligently inquired into, would inevitably lead him to the fact of the existence of the deed."^ § 654. Distinction between description tn deed and mori;gage. — In Connecticut, it was intimated that a distinction exists between the sufficiency of a description of land in a deed, and from a judgment lien created after the execution of the mortgage : White V. Wilson, 6 Blackf. 448. A conveyance described the land as "lot four of block one of the La Fontaine farm, lying south of the river road, and fronting on Detroit River, being now used and occupied with the steam saw-mill thereon, by the parties of the first part." It appeared, however, that that portion of the La Fontaine farm had been platted into four lots or blocks, which had not been subdivided ; the mill was situated on the one numbered four on the plat ; the others were fenced in and occupied with the mill. The court held that the words " of block one," of the above description, should be rejected, and that when the error in a conveyance is apparent, the record is notice to subsequent purchasers : Anderson v. Baughman, 7 Mich. 69; 74 Am, Dec. 669, See Tousley v. Tousley, 5 Ohio St. 78, A subsequent judgment lien is not entitled to priority because there has been an error in the description of a prior deed or mortgage : Welton V. Tizzard, 15 Iowa, 495; GUlespie v. Moon, 2 Johns. Ch, 584; 7 Am, Dee, 559; Sevarts v. Stees, 2 Kan, 236, For various instances on which omissions and inaccuracies in the description have been held immaterial and not to affect the validity of a conveyance because the land was sufiaciently described to enable it to be identified, see Thomhill v. Burthe, 29 La, An, 639 ; Consol. Assoc. Planters v. Mason, 24 La. An. 518; Ellis V. Sims, 2 La, An, 251 : Boon o. Pierpont, 28 N, J, Eq, 7 ; Slater v. Breese, 36 Mich, 77; Shepard v. Shepard, 36 Mich. 173; Baker v. Bank, 2 La, An. 371 ; Bank v. Barrows, 21 La. An. 396; Marootte v. Coco, 12 Eob. (La,) 167 ; Bank v. Denham, 7 Rob. (La,) 39. » Merrick v. Wallace, 19 111. 486,. 498. 673 KEOISTEATION OF DEEDS. § 654 that of land in a mortgage. In the case in which this sugges- tion was made there were several mortgagors, and some of the parcels of land belonged to one of the signers, and some were the property of others. The mortgage described the land conveyed as "four certain farms situated in the town of Canaan, and bounded and described as follows," the farms being then sepa- rately described, and the description concluding in this language : "Also all such other lands as we, the grantors, or either of us, own or have any interest in, situate in said town of Canaan; reference being at all times had to the land records of said Canaan, and to the probate records for the district of Sharon, for more particular description of the same." There was another piece of land belonging to one of the grantors not adjacent to or connected with the farms described in the conveyance. On a bill to foreclose the mortgage, it was held by a majority of the court, the court standing three to two, that this last mentioned piece was not conveyed by the mortgage.* Mr. Justice Pardee, who spoke for the majority of the court, said : " Whatever might be held with regard to the sufficiency of such a description in an ordinary deed intended merely to convey title, yet we think; such a description clearly insufficient in the case of a mortgage. It is a fixed principle of our law that mortgage deeds should give subsequent creditors of the mortgagor definite information as to the debt due to the mortgagee, and as to the particular property pledged for its payment. It is only by knowing what the prop- erty is that they can learn its value, and it is as important to them to know its value as to know the amount of the debt for which it is mortgaged ; and they are entitled to the law of regis- tration in obtaining this information. To be told that the mort- gage covers all the real estate which the grantor owns in the town of Hartford, is to impose upon them the examination of many thousand pages of records ; for it is to be borne in mind that the grantor himself may have received his titles by the same general description, and from many different grantors. The recognition by the courts of such a mortgage as valid would be equivalent to the abrogation of the recording system,, so far as mortgages are concerned. It is not unreasonable to require of 1 Heiman t>. Deming, 44 Conn. 124. I. Deeds.— 43. § 654 REGISTRATION OP DEEDS. 674 iihe mortgagee that his deed should mention a name, or a locality, or point to a monument, or a particular deed, or refer to some book or page. It would be only his proper contribution to the upholding of a system which confers great benefits upon the public. We are of opinion, therefore, that the general descrip- tion in this mortgage was not sufficient to convey the interest of Mrs. Scott, the owner, to the mortgagees. We are not prepared to say that we should apply the same rule without qualification, to a deed that was intended only as a conveyance of title. The policy of our law with regard to the definite information to be given to creditors and purchasers by mortgages, does not apply to ordinary conveyances. Here, however, comes in the policy of the law with regard to records of titles, which is applicable to .all recorded conveyances, whether by absolute deed or mortgage." * ' Herman v. Deming, supra. Continuing the Justice said : "In Noitli «. Beiden, 13 Conn. 380, 35 Am. Deo. 83, this court said : ' It has ever been the policy of our law that the title to real estate should appear upon record, that it might be easily and accurately traced. This policy has added greatly to the security of our land titles, and has prevented much litigation which would otherwise have arisen.' And Swift in his Digest, vol. 1, p. 122, lays it down that ' it is essential that the land to be conveyed should be so .located, butted, bounded, and described in the deed, as that it can be .known where it lies, and be distinguished from any other tract of land, or there must be such reference to some known and certain description as will reduce the matter to certainty.' If we were to give judicial sanction to this form of conveyance, we should practically put an end to the record- ing system. If we say that such general language, following as here a particular description, does more than strengthen and secure what has gone before It, that it is sufficiently descriptive to support a distinct and independent grant of additional estate, and that it meets the requirements •of that system, we should establish a precedent upon which grantees would hereafter rely, and from which the court would find it difficult to recede. -After a succession of such conveyances, land records would cease to furnish any infer Atation ; the same confusion would result as would come from the removal of all fences, mere-stones, and other monuments, which indicate the location of separating lines. The rule of law which declares that to be certain whiohican be made certain is not complied with in such a deed. The rule demands a reference and pointing to particular documents or records. If we say that such a reference is sufficiently explicit forthe town of Canaan, and the probate district of Sharon, we say that it is proper for the town and probate district of Hartford, with its fifty thousand pages of records. A search through and an examination of these does not come within any rea- sonable interpretation of the rule. We are aware that courts have confirmed grants made in this general form ; for instance, in 1814, in Jackson v. De Lancey, 11 Johns. 365, the court subjected to the operation of a deed made in 1770, a tract of Jand which was not otherwise described therein than in the 675 EEGISTRATION OF DEEDS, §§ 655-65ft § 655. Comments. — "We have not been able to find any other decision in any other State where this precise question has arisen. But -we doubt that any valid ground exists for the distinction sought to be made. Certainly a correct description of the land affected would seem to be as essential in one case as in the other, and whenever language is used which is sufficient to show the intention of the parties, it should receive the same construction, whether the land to which it is applied is conveyed by an abso- lute deed or is mortgaged. § 656. InstnrmeEts not entitled to registration. — The regis- try a^ts authorize the recording of certain specified instmments, and their registration operates as notice. But the fact that an instrument is recorded is not sufficient to raise the presumption of notice, unless it be an instrument whose registration is author- ized by statute. Otherwise the voluntary recording of it would be a nullity. The law on this subject is aptly stated by Mr. Justice Flandrau : " It is competent for the government to pre- scribe rules for the conveyance of lands within its jurisdiction, whether by deed, will, or otherwise, and it can impose such restrictions as are deemed for the best interests of its subjects. It may provide that the title to lands shall not pass unless the foUawiug claase; 'and al}. other lands, tenements, and hereditaments belonging to said William Alexander, Earl of Stirling, within the province of New York.' This was made to rest upon the principlethat grantors and grantees may make and take sach conveyances as are satisfactory to them- selves; and the principle is doubtless deduced from English decisions made -without reference to any system of recording the transfer of title to real estate, made in cases where there was an actual delivery of possession by the grantor to the grantee in the presence of freeholders of the county. This gave actual notice to the public and stood in the place of constructive notice by a record ; the open, corporeal investiture upon the land itself, was equivalent to a record of specific boundaries. And the principle is not of universal application ; as a matter of fact the law does put some limita- tions upon the freedom of grantors and grantees in the matter of trans- ferring the title to real estate ; for instance, there must be two witnesses to the signature of the grantor ; he must acknowledge that it is bis free act or deed before a magistrate, and the magistrate must certify to this fact. These may be considered as invasions of the absolute right of the owner to make the conveyance in a form satisfactory to himself. Bat as it is not necessary to the disposition of the case that we decide this point, we leave it open for future consideration, if any case shall arise that shall caU for a decision of it. We are of the opinion that the mortgage in question did not convey to the petitioners any title to or interest in the lot of land belong- ing to Mrs. Scott, and that there is error in the judgment complained of." § 656 EEGISTEATION OF DEEDS. 676 deed or will is upon paper, stamped by the State. It may declare that the instrument shall be attested by one, two, or more witnesses ; and none of these reqiiirements involve a greater exercise of authority than to say that the conveyance shall be in writing, as there is no reason except the statutes why a man should not pass his real as well as his personal estate by parol merely. The statutes requiring certain solemnities to attend the execution of conveyances are imperative, and must be com- plied with to give validity to them, is illustrated by the action of courts in annulling wills and conveyances of land frequently for the want of a seal or other essential formality. That our legislature has always considered a departure from the statute forms as invalidating conveyances, is found in the fact that a series of acts have been passed year after year, to save such as are defectively executed, while the same legislatures have steadily adhered to the forms first prescribed, and even added greater restrictions. When a party desires to purchase or take an encumbrance upon land, his guide as to the title is the records of the county, and it is a well-settled rule that the record of a deed is notice only of its contents so far as the record discloses it. If the record contain any instrument which is not authorized to be recorded either from the nature of its subject-matter or a defect in its execution, it is a mere nullity, and is not notice for any purpose."^ 1 In Parret v. Shanbhtrt, 5 Minn. 323, 328 ; 80 Am. Deo. 424 ; Bumham V. Chandler, 15 Tex. 441 ; Commonw. v. Rhodes, 6 Mon. B. 171, 181 ; Moore V. Hunter, 6 111. (1 Gilm.) 317; Bossard v. White, 9 Rich. Eq. 483 ; Reed v. Coale, 4 Ind. 283; Brown v. Budd, 2 Cart. 442; Lewis v. Baird, 3 McLean, 56; Galpin v. Abbott, 6 Mich. 17; Mott v. Clark, 9 Barr. 400; Graves v. Graves, 7 Gray, 391 ; Pringle v. Dunn, 37 Wis. 449 ; Ludlow v. Van Ness, 8 Bosw. 178 ; Villard v. Robert, 1 Strob. Eq. 393 ; Monroe v. Hamilton, 60 Ala. 227. In Moore v. Hunter, supra, it is said : " The United States are the owners of all the vacant lands in this State, and until they have sold and received the price stipulated to be paid for any particular tract of land belonging to them, the recording acts of this State have no application. A contrary doctrine would lead to great injustice. Until the United States have parted with their title to the public lands, no purchaser would think of seeking for equities or encumbrances affecting the title, in any other place than those offices where the lands were subject to entry or sale. When Dnnnegan executed the deed to Bates, only part of the consider- ation for the land had been paid, and whether the land might not revert to the United States was altogether uncertain. To record the deed of Dun- negan was a useless act, not required by law, and the record, consequently, was not notice to any one." 677 EEGISTEATION OP DEEDS. § 657 § 657. Slnstrations. — One partner conveyed to his copartner his entire interest in the partnership property as security for a debt. It was held that the registration of the mortgage would operate as constructive notice as against subsequent creditors and purchasers of the lien created on the interest of the mortgagor in the property. But the court held that it could not have this effect, so far as any restraint or limitation was imposed by it on the authority of the mortgagor as a partner.^ " This principle of constructive notice from registration, is confined to instru- ments which the statute authorizes to be registered. It can- not be extended to any and every instrument which parties may think proper to register. There must be a statute author- izing the registration, or mere registration will not operate as notice.* Nor will registration operate as constructive notice of any and every provision which may be introduced into an instrument, of which it is required, A conveyance of per- sonal property may include a transfer of choses in action, and while operating as constructive notice of the transfer of the particular personal property described, it would not oper- ate as a notice of the transfer of the choses in action.^ The reason is obvious ; the law does not authorize the registration of transfers of choses in action, and, therefore, does not cast on those dealing with him, who has the possession, and the apparent legal title, the duty to ascertain whether there has been an assignment of them. We have no statute (except as to limited partnerships), which authorizes the registration of articles of partnership, or of limitations or restraints which by agreement may be placed on the power and authority of a partner. While, so far as the mortgage is a conveyance of Hamilton's undivided share of the joint crops, its registration is constructive notice thereof; so far as it is a restraint or limit- ation of his authority as partner, the registration is not con- structive notice."* Where both real and personal estate are conveyed by the same deed, the registry of the deed is not of » Monroe v. Hamilton, 60 Ala. 227. > Citing Mitchell v. Mitchell, 3 Stewt. & P. 81 ; Dnfphey ». Freenaye, 5 Stewt. & P. 215 ; Baker v. Washington, 5 Stewt. & P. 142 j Tatum v. Young, 1 Port. 298. » Citing McCain v. Wood, 4 Ala. 258 ; Stewart v. Eirkland, 19 Ala. 162. • Per Brickell, C. J., in Monroe v. Hamilton, supra. § 658 EEGISTEATION OF DEEDS, 678 itself constracfcive notice of the assignment of the personal estate.* A recital in a deed is evidence that the purchaser had notice of the fact recited. But this is true only so far at it concerns the title to the land purchased. The recital will not affect him with notice in regard to the title of any other land than that conveyed by the deed.^ A deed of assignment when not authorized to be recorded does not impart notice because it is recorded.* Subse- quent purchasers are not charged with constructive notice of the facts appearing from the entry of lands sold by the United States, upon the land book in the county clerk's office, as such entry is required only for the purposes of taxation.* The registration of executory agreements for the sale of real property, if not authorized by statute, does not impart notice.* If the statute does not authorize the registration of a certified copy of a record of a deed, such registration is a nullity.* § 658. Want of delivery. — If a conveyance has not been delivered, the fact that it is registered does not cause it to pre- vail over a conveyance subsequently made, or a lien subsequently acquired. Thus, a judgment against a mortgagor was given the preference over a mortgage, which was in the absence and with- out the knowledge of the mortgagee delivered by the mortgagor to the recorder of the proper county to be recorded, where the judgment was obtained before the mortgagee had assented to the 1 Pitchers. Barrows, 17 Pick. 361. Said Shaw, C. J.: "But we think this is not constructive notice, any further than the statute has made it so, to wit, of the transfer of real estate. The fact that the assignment of the personal estate was in the same deed with the real, was merely accidental. If the plaintiff had had occasion to take a deed of Walcott, of real estate, the registry would have been conclusive evidence of constructive notice, whether in fact he examiued the registry or not. But if he had no occasion to take a conveyance of real estate, he had no occasion to examine the registry, and the law does not presume that he did do it. As to that part of its contents relating to personal estate, there is no legal presumption that its contents were known to the plaintiff." * Boggs V. Varner, 6 Watts & S. 469. o Burnham v. Chandler, 15 Tex. 441. * Betser v. Rankin, 77 111. 289. ' Mesick v. Sunderland, 6 Cal. 297. ' Lundv. Rice, 9 Minn. 230; Stevens v. Brown, 3 Vt. 420; Pollard f». Lively, 2 G-ratt. 216 ; Lewis v. Baird, 3 McLean, 56 ; Oatman v. Fowler, 43 Vt. 462. 679 EEGISTEATION OP DEEDS, § *59 mortgage.^ Where a deed has been unconditionally delivered to the grantee, irrespective of the question whether the consider- ation has been paid or secured, the deed may be recorded without the grantor's consent.^ This principle relates more to the valid- ity of the instrument than it does to the effect of the record. The instrument is not operative until delivery. " A deed takes effect by delivery. An execution and registration of a deed, and a delivery of it to the register for that purpose, do not vest the title in the grantee. Nothing passes by it."' This topic has been fully discussed in the chapter on delivery.* § 659. Equitable mortgages. — At one time it was considered that a mortgage of an equity was not within the purview of the registry acts, and hence that the registration of such a mortgage was not constructive notice.* But it is now established that the policy of these statutes requires all liens and encumbrances, whether legal or equitable, affecting the title to real estate, to be recorded, and therefore, as a general proposition, a mortgage of an equitable interest in land, taken without notice, is, if first recorded, preferred to any conveyance of, or encumbrance upon such land.* It is held that a person in possession of land under a parol contract of sale may mortgage his interest, and although the mortgagor may not have acquired the absolute fee, such mortgage is entitled to registration, and if recorded, is notice to subsequent purchasers and encumbrancers.' But it is held in Illinois, where one has only an equitable title derived &om a bond for a deed which is not recorded, that the record of a mortgage given by him is not notice to a subsequent pur- chaser of the legal title from one in possession of the land. The title of a purchaser of this description is not derived through the title of the mortgagor. Hence, he will not take, it is held, 1 Goodsell V. Stinson, 7 Blackf . 437. ' Ronan v. Meyer, 84 Ind. 390. » Samson V. Thornton, 3 Met. 275, 281. • See ?? 290-298. See, also, Woodbury v. Fisher, 20 Ind. 387; Hedge v. Drew, 12 Pick. 141 ; 22 Am. Deo. 416. ' DosweU V. Buchanan, 3 Leigh, ^65. « Parldst V. Alexander, 1 Johns. Ch. 394 ; Jarvis v. Dtitcher, 16 Wis. 307 ; General Ins. Co. v. United States Ins. Co. 10 Md. 517 ; 49 Am. Dec 174 ; Crane v. Turner, 7 Hun, 357 ; Boyce s. Shiver, 3 S. 0. 515. ' Crane v. Tvu^er, 7 Hun, 357. § 660 EEGISTRA-TION OP DEEDS. 680 subject to the mortgage, notwithstanding the fact that it is recorded.* § 660. Assignment of mortgage. — Under some of the early statutes, it was held that an assignment of a mortgage was not entitled to registration. Thus, in Indiana, before the passage of the statute allowing the registration of the assignments of mortgages, it was held that recording them did not give notice.^ But in that State, a statute now exists, which permits the regis- tration of such assignments.' And generally, at the present day, either by the express provision of a statute or by judical construction of the registry acts, assignments of mortgages are considered as instruments entitled to registration.* But the mort- gagor himself is not bound by the registration of the assignment of the mortgage. He should have actual notice to prevent him from claiming the benefit of payments made to the mortgagee.* This principle has been expressly declared by statutes in several States. Thus selecting California, as an instance, it is provided by the Code : " When the mortgage is executed as security for money due, or to become due, on a promissory note, bond, or other instrument, designated in the mortgage, the record of the assignment of the mortgage is not, of itself, notice to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them, or either of them, to the person holding 1 Irish V. Sharp, 89 111. 261. See Halsteads v. Bank of Ky. 4 Marsh. 3, J. 554 ; Bank of Greensboro v. Clapp, 76 N. Y. 482. ' Hasselman v. McKeman, 50 Ind. 441 ; Dixon v. Hunter, 57 Ind. 278. » Acts of 1877, Ind. ch. 58, § 1. * Bank of the State of Indiana v. Anderson, 14 Iowa, 544 ; Bowling v. Cook, 39 Iowa, 200 ; Tradesmen's etc. Association v. Thompson, 31 N. J. Eq. 536 ; Stein v. Sullivan, 31 N. J. Eq. 409 ; Fort v. Bureh, 5 Denio, 187 ; James v. Morey, 2 Cowen, 246 ; 14 Am. Deo. 475 ; Belden v. Meeker, 47 N. Y. 307 ; Turpin v. Ogle, 4 Bradw. (111.) 611 ; Smith v. Keohane, 6 Bradw. (III.) 585 ; Cornog v. Fuller, 30 Iowa, 212 ; McClure v. Burris, 16 Iowa, 591 ; Vanderkemp v. Sbelton, 11 Paige, 28 ; Campbell v. Vedder, 1 Abb. N. Y. App. 295 ; James v. Johnson, 6 Johns. Ch. 417 ; St. Johns v. Spalding, 1 Thomp. & C. 483; Pepper's Appeal, 77 Pa. St. 373 j Leech v. Bonsall, 9 PhUa. 204; Neide v. Pennypaoker, 9 PhUa. 86; Maryland R. Code, 1878, art. xliv. g? 37, 38 ; Cal. CivU Code, g 2934. In Belden v. Meeker, the earlier case of Hoyt v. Hoyt, 8 Bosw. 511, was overruled. ' N. Y. Life Ins. etc. Co. v. Smith, 2 Barb. Ch. 82 ; Ely v. Scofield, 35 Barb. 330 ; Jones v. Gibbons, 9 Ves. 407, 410. 681 KKGISTRATION OF DEEDS. § 660 such note, "bond, or other instrument." ^ But the mortgagor is entitled to this protection only when he makes a payment. If the mortgagee release the mortgage without the payment of any consideration, the release is inoperative against the assignee of the mortgage, who has his assignment recorded.* The mortgagor is not entitled to this protection of making a payment to the mortgagee when the mortgage is given as security for the payment of a negotiable note, and this has been transferred before maturity.' A conveyance of the premises to the mort- gagee, after the assignment of the mortgage, will not cause a merger of the mortgage title.* But of course as against all -other persons than the mortgagor, who claim title other than through the mortgagee, the registration of the assignment of the mortgage is unnecessary. The original mortgage still stands, and is not, so far as priority of record is concerned, affected by the assignment.* In New York, it has been held that a power of attorney to assign a mortgage is not an instrument whose registration is provided for by the recording acts. The record of such an instrument is not notice.* And in the same State a similar decision was made with reference to a power of attorney to collect the amount due on a mortgage and to release ' Cal. CivQ Code, J 2935. For other States in which similar provisions exist, see New York, Fay's Dig. of Laws, 1874, vol. 1. p. 585 ; Minnesota, Gen. Stats. 1878, ch. 40, § 24 ; Kansas, Dassler's Stats. 1876, ch. 68, g 3 ; Nebraska, Gen. Stots. 1873, ch. 61, § 39 ; Comp. Stats. 1881, p. 392 ; Wiscon- sin, Rev. Stats. 1878, p. 641, | 2244 ; Oregon, Gen. Laws, 1872, p. 519 ; Mich- igan, Comp. Liaws, 1871, p. 1847; "Wyoming Ty. Comp. Laws, 1876, ch. 3, §17. » Belden v. Meeker, 47 N. T. 307 ; Viele v. Judson, 82 N. Y. 32. But in Massachusetts it is held otherwise : Wolcott v. Winchester, 15 Gray, 461 ; Welch V. Priest, 8 AUen, 165 ; Blunt v. Norris, 123 Mass. 55. 3 Jones V. Smith, 22 Mich. 360. * Campbell v. Vedder, 3 Keyes, 174 ; S. C. 1 Abb. N. Y. App. Deo. 295; Purdy V. Huntington, 42 N. Y. aS4. ' Sprague v. Rockwell, 51 Vt. 401 ; Campbell v. Vedder, 3 Keyes, 174 ; Viele V. Judson, 82 N. Y. 32. A person who afterwards purchases from the mortgagee is required to ascertain whether the mortgage has not been previously assigned. If he does not make this search, he cannot claim protection as a bona fide purchaser. See on this subject, GUlig v. Maass, 28 N. Y. 191 ; Oregon Trust Co. v. Shaw, 5 Sawy. 336 ; Warner v. Winslow, 1 Sand Ch. 430 ; Purdy v. Huntington, 42 N. Y. 334 ; Burhans v. Hutcheson, 25 Kan. 625 ; Van Keuren v. Corkins, 6 Thomp. & C. 355. e Williams v. Birbeck, Hofflu. 359. § 661 EEGISTEATION OP DEEDS, 682 it.* An unrecorded agreement between the mortgagbi* and the mortgagee, that the latter should release from the operation of the mortgage a part of the land, upon receiving the payment of a specified sura, does not bind the assignee of the mortgage.^ § 661. In some States defective deeds if recorded impart notice. — In a few of the States, the rule seems to prevail that a deed defectively executed or unacknowledged is, if actually recorded, sufficient notice of the equities created thereby. In Illinois, where this rule obtains, Scates, C. J., cites a number of authorities in opposition to the rule he proceeds to lay down, and observes : " I have referred to these decisions to show that they were made upon statutes differing from ours ; some exclud- ing from registration and record, deeds, etc., which were too defective to pass the estate; others, for want of compliance with the law in relation to acknowledgments. Our statute has intro- duced a very different policy both as to the kinds and character of the instruments and the acknowledgments. In its language it comprehends everything that may relate to or affect the title, and requires all such to be recorded without any qualification as to whether they be sufficient in law or not, to effectuate the object purported on their face. It Avould seem to us to be the inten- tion of the legislature, in general, to make the registry and recording books, and the filing of levies, etc.,. as complete a depository as possible of the State, of land titles, as they may be presented and affected by conveyances, contracts, encumbrances, and liens." ' In that State, in accordance with this construction of the statute, it is held that though a dded of trust executed by a married woman to secure the purchase money due on the premises, may be void as a conveyance because her husband does not unite with her in it, yet, nevertheless, it is an instru- ment in writing relating to real estate, and after registration is constructive notice to all subsequent purchasers of the lien of the vendor for the unpaid price.* " It is, undoubtedly," said Mr. Justice Dickey,, " the policy of our recording laws that every ' Jackson v. Kichards, 6 Cowen, 617. ' Warner v. Winslow, 1 Sand. Ch. 430 ; St. John v. Spalding, 1 Thomp. & C. 483. » Keed v. Kemp, 16 lU. 445, 451. ♦ Morrison v. Brown, 83 lU. 562. 683 KEGISTRATION OF DEEDS. § ^62 instrument in writing relating to land when once recorded sh&U be notice to the world of everything stated in such instrumellt, and of everything which is necessarily implied from the worfls of the recorded instrument. Those appellants claiming as stiB- sequent bona fide purchasers or encumbrancers occupy the sanje position in this case as they would have done had this instrU^ ment (not having been recorded) been read aloud to them hf the appellee, before they became in any way interested in this question. As against her grantee, there can be no doubt of her right to assert a vendor's lien. As to the others, they have constructive notice of her equities. This deed of trust by a femvme covert (her husband not joining with her in its execution) has no validity as a conveyance. It has no force or power to create a lien. A married woman can, however, without the aid her husband, accept a deed and hold title to land. She can also tell the truth, and there is no law to render its utterance ineffectual. Under our statute, as to the effect, as notice of recording instruments in writing relating to land, the execu- tion and recording of this instrument becomes equivalent to a personal declaration of her equitable rights to each of appellants claiming as bona fide purchasers."* § 662. In Kansas, the same construction is placed upon the statute of that State. The statute provides that " no instrument affecting real estate is of any validity against subsequent pur- chasers for a valuable consideration without notice, unless recorded." The court considered this to mean that any instru- ment, affecting real estate, would be good against subsequent purchasers if recorded. It said: "The statute nowhere makes an acknowledgment necessary to the validity of a deed. If it be sufficient to affect real estate without acknowledgment, then it may be recorded, and if it be recorded, then subsequent pur- chasers are charged with notice. The statute only goes to the extent of providing that if a deed be acknowledged and certified in the manner prescribed, the original may be read in evidence, without proof of the execution ; or if recorded, a certified copy of the record, upon proper proof of inability to produce the > Morrison v. Brown, supra^ §§ 663-664 JIEGISTRATION OF DEEDS. 684. original, may be read." The court accordingly held that a deed having been in fact recorded in the proper ofSce, although not acknowledged, was constructive notice.^ ! § 663. Registration in wrong coimty. — The various statutes require that a deed shall be recorded in the county in which the land conveyed by it is situated, A person desirous of ascertain- ing the condition of the title to a particular piece of land, is not J compelled to search the records of every county in the State to accomplish this result. If he examines the records of the county in which the land lies, he does all that the law demands, and he may safely act upon the information thus disclosed. If a deed is recorded in a different county from that in which the land is situated, the record cannot operate as constructive notice.^ And, of course, it is immaterial that the deed is recorded in the wrong county under a mistake as to the true locality of the land.* § 664. Land in two connties. — "Where the land embraced in a deed is situated in more counties than one, the deed should be recorded in every county in which any part of the land lies.^ " The object of the registry acts was to enable a person about to purchase lands, to ascertain whether they had been conveyed. In order to do this, the place where he must reasonably be led to make the inquiry, is the probate clerk's office of the county where the land lies. That is the place intended by law for recording the deed of conveyance ; and if, upon examination, he finds no conveyance there, he is justified in acting upon the belief that none has been made. If this were not true, a person could not safely purchase land lying in any particular county, without an examination of the probate clerk's office of every county in the State; for the land which he is about to purchase ' Simpson v. Brown, 3 Kan. 172 ; Brown v. Simpson, 4 Kan. 76. ' Kingi). Portis, 77 N. C. 25 ; Harper v. Tapley, 35 Miss. 506, 510 ; Adams V. Hayden, 60 Tex. 223 ; Perrin v. Keed, 35 Vt. 2 ; Stewart i>. McSweeney, 14 Wis. 468, 471. ' Adams v. Hayden, 60 Tex. 223. * Perrin v. Keed, 35 Vt. 2 ; Stevens v. Brown, 3 Vt. 420 ; 23 Am. Deo. 215 ; Horsley v. Garth, 2 Gratt. 471 ; 44 Am. Deo. 393 ; Astor v. Wells, 4 Wheat. 466 ; Stewart v. MoSweeney, 14 Wis. 468 ; Crosby v. Huston, 1 Tex. 203j Hundley w. Mount, 8 Smedes & M. 387. See Hill v. Wilson, 4 Kioh. 521 ; 55 Am. Dec. 696. 685 EEGISTEATION OP DEEDS. § 665 might be embraced in a deed, conveying, also, land in some other county, and recorded in that county." * The deed is properly recorded in any county in which a part of the land is situated. A deed so recorded in one county is considered as admissible in evidence, under the Michigan statute, in any other county as to any of the lands described in it that lie within the State.* § 665. Registration of copy of deed in proper connty.^If a deed has been recorded in the wrong county, and a copy of such record has been recorded in the proper county, the record of the copy cannot avail as notice to subsequent purchasers. This rule rests upon the ground that such copy is not entitled to be recorded and hence conveys no notice.* In a case where it was insisted that a record in one county of a copy of a deed from another county was sufficient to put subsequent purchasers upon inquiry, the court said: "To hold that parties ought to have been put upon inquiry by this record, would be precisely the same thing as holding them affected with notice. This would be giving to tlie record of an instrument not entitled to be recorded the same force, as to notice, that we give to one legally reduced to record. We do not think any authority can be found in support of this proposition. On the contrary, the familiar rule, and one laid down by this court, is, that the record of an instrument not entitled by law to be recorded is of no avail as notice.* It is said that a purchaser, as a matter of fact, receives the same information from the record of a copy as from the record of an original instrument. That may be true. But the broad differ- ence is this : The statute only authorizes the record of original instruments, and it makes that record conclusive evidence of notice. It matters not that a subsequent purchaser has not, as a matter of fact, seen the record. If the instrument has been legally recorded, the law presumes him to have seen it, and holds him to the consequences of such knowledge. Not so as to the registry of a copy. It may be that if a party can be clearly proven to have read the record, he should be held to have derived ' Harper Vi Tapley, 35 Miss. 506, 509, per Handy, J. " Wilt V. Cutler, 38 Mich. 189. ' Lewis V. Baird, 3 McLean, 56 j Pollard v, Livaly, 2 Oratt. 216. * Citing Moore v. Hunter, 1 Gilm. 317. §§ 666-667 EEGISTEATION OF DEED^ 686 from it the same degree of actual knowledge that he would have derived from seeing a copy of an instrument in the hands of a private individual. He might be considered as put upon inquiry. But the law does not presume him to have read the record of an instrument not authorized to be recorded." ^ § 666. Certifled copy of deed recorded in wrong comity, as evidence. — Related to the subject we are now considering is the question whether a certified copy of a deed recorded in a county other than that in which the land is situated, can be received in evidence in the proper county to affect the title to the premises described in the deed. It is held that where deeds embrace lands lying in two counties, and are recorded in only one of them, exemplifications of the records are competent evidence upon the proof of the loss of original deeds to prove their contents in an action of ejectment for the recovery of the premises which lie in that county where the deeds were not recorded.^ But it is also held that an authenticated copy of a deed recorded in a county in which the land does not lie, is not competent evidence of the original, for the reason that "where the law gives no , authority for the reception of such acknowledgment or proof and admission to recordation, the record of those acts, and the certificate of the ptdjlic custodier of the record, are entitled to no more respect than if the same had been performed by a private individual," * § 667. Presnmptian of actual notice from examination of records. — In a case in Pennsylvania, the land conveyed by a ' St. John V. Conger, 40 111, 535, 536, per Lawrence, J., delivering the opinion of the court. ' Jackson v. Rice, 3 Wend. 180 ;■ Scott v. Leather, 3 Yeates, 184. And see Lessee of Delancey v. McKeen, 1 Wash. C. 0. 364 ; Conn v. Manifee, 2 Marsh. A. K. 896 ; Simms v. Bead, Cooke, 34S. ' Pollard V. Lively, 2 Gratt. 216, 218. In Lewis v. Baird, 3 McLean, 56, 63, it is said : "But if the deed were a conveyance in fee of these militarv lands, a record of it in Kentucky, though duly certified, would not make the copy evidence in this State. The deed is required to be recorded in this State, after it has been duly acknowledged, and a certified copy of the record thus made is evidence under the statute. The recording of the deed, therefore, in Kentucky, if clearly shown, would not make either a certified or sworn copy from the record evidence. The original being lost, a sworn copy of it is the next best proof." 687 BBQISTRATION OF DEEDS. § 667 deed was situated in two counties, but the deed was recorded in one of them only. Attached to the deed, written under the cer- tificate of acknowledgment, was a memorandum stating that part of the land had been sold. It was not satisfactorily shown that the memorandum referred to was written before the execution of the deed, but the deed with the memorandum was recorded. The lower court instructed the jury that the memorandum on the original deed, if it was there at the time of the execution of the deed, constituted a part of the deed and was legally recorded ; and as part of the land conveyed by the deed was situated in the county in which the deed was recorded and in which the plaint- iff resided, that such record was notice to him of the contents of the memorandum, and bound him also as to the part situated in the other county in which the deed was not recorded. The Supreme Court held that it was a reasonable presumption that the plaintiff inspected the registry in the proper county and thus acquired actual notice of the conveyance, but reversed the case because the registry was defective in the fact that the memoran- dum was not acknowledged, and hence was not entitled to be recorded.^ Chief Justice Gibson on the first point, after advert- ing to previous decisions that the registry of a deed defectively acknowledged is not constructive notice as to land in the proper county, and is deemed no evidence of notice whatever, said: " These authorities are not controverted ; but it has been intimated that a presumption may arise of actual inspection of the defective registry, which is said to amount to actual notice of the contents of the original paper. The ground of the supposed presump- tion is the fact that the plaintiff purchased along with the tracts in dispute, certain other tracts included in the conveyance to the bank, which are situate in Huntingdon County, where the con- veyance and what purports to be the memorandum containing a recital of the material facts were registered together; and as the original was lost, it is supposed to be a reasonable presumption that the plaintiff purchased on the faith of the registry in that county, and actually inspected it. Nothing is more reason- able."* In New Hampshire, under the statute in force at the ' Kerns v. Swope, 2 Watta, 75. ' Kerns v. Swope, supra. The learned Justice said, however, that the registry was defective. "The memorandum of the recital, thought to be § 667 EEGISTEATION OP DEEDS. 688 time the decision was rendered, it was necessary that a deed should be attested by two witnesses. A deed, however, with one witness, or none at all, was good between the parties. A deed witnessed by one witness only was recorded. The court held that the material, purports according to the registry to have been indorsed on the conveyance, but underneath the certificate of the acknowledgment, which contains neither reference nor allusion to it ; and the original was therefore destitute of the evidence of authentication required by the law to entitle it to be registered. The registration, therefore, being without the authority of the law, was the unofficial act of the officer, which could give the copy no greater validity than the original, deprived of legal evidence of execu- tion; nor even so much for an original deed exhibited to a purchaser would affect him though it were unaccompanied with the evidence of its execution. But here the registry was no better than a copy made by a private person in a memorandum booli, from vfhich a purchaser would be unable to determine whether there were, in fact, an indorsement on the deed, or whether it had been truly copied, especially when neither the copy nor an exemplification of it would be legal evidence of the fact in a court of justice. Unquestionably a purchaser would not be affected by having seen the copy of a conveyance among the papers of another, or an abstract of it in a private book. The whole effect of a registry, whether as evidence of the original or as raising a legal presumption, that the copy thus made equipollent to the original had been actually inspected by the party to be affected, is derived from the positive provisions of the law ; and when unsustained by these, a registry can have no operation what- ever. Stripped of artificial effect, it is but the written declaration of the person who was officer at the time, that he had seen a paper in the words of the copy which purported to be an original. But to say nothing in this place of the incompetency of such a declaration as evidence of the fact, on what principle would a purchaser be bound to attend the hearsay informa- tion of one who is not qualified to give it. Since the decision in Corn- wallia' Case, Toth. 254, and "Wildgoose v. Wayland, Goulds. 147, pi. 67, it has been considered a settled principle that the vagne reports of strangers, or information given by a person not interested in the property, are insuf- ficient. It has been held even that a general claim may be disregarded. There certainly are eases which seem to cast a doubt on the principle. But as is properly remarked by Mr. Sugden in his treatise on Vendors, the point of notice to which the remark of Chief Baron Hale was directed, in Fry V. Porter, 1 Mod. 300, did not relate to a purchaser. In Butcher v. Stapely, 1 Vern. 364, the purchaser was affected with notice, of which it is said, there was no other direct evidence than what might have been gleaned from the conversation of some neighbors, who said that they had heard that the vendor had sold the estate to the plaintiff. It is obvious that to decree on parol evidence of loose conversations in the presence of the party, which may not have been heard or understood by him, would be attended with extreme danger of injustice ; and notwithstanding this decis- ion, the rule seems to be established as I have stated it, having been recog- nized by this court in Peebles v. Beading, 8 Serg. & R. 480, and Ripple v. Ripple, 1 Rawle, 386." 689 EEGKTEATION OP DEEDS. § 668 grantee iu such a deed is entitled to the land against a subse- quent attachment and extent, if the creditor at the time of his attachment had notice of the deed, and that actual notice of the record Tvill be regarded as actual notice of the prior deed.* "As the deed in this case,^' said Perley, J., "was not executed accord- ing to the statute, the registration as such is inoperative; that is to say, the registration is not constructive notice of the convey- ance. But if by means of that registration of the defective deed, the defendants had actual notice of the plaintiff's title, they are charged with the notice as in other cases. The defendants, when they found the copy of the plaintiff's deed on record, must have understood that the intended record was to give information that such a deed had been made, and that the plaintiff claimed the land under it. This must be regarded as actual notice, such as every reasonable and honest man would feel bound to act upon." ^ § 668. ConunentB. — The case of Kerns «. Swope,* can scarcely be regarded as an authority for the proposition that a presump- tion of fact exists, that a purchaser inspects the records, and thus obtains notice of the contents of conveyances spread upon the records, affecting the title not only to lands situated in the county in which the records are, but also of lands situated in that and other counties. The court declares, it is true, that this is a reasonable presumption, but the case was decided on the point that the portion of the deed in question was not acknowledged, and hence not entitled to registration. The remarks of the court, therefore, upon the question of presumption may be treated as obiter dicta. The rule indicated by the court in that case can rest upon no sound reason. Whether a purchaser inspects or does not inspect the records of the county in which the land he is about to purchase is situated, cannot be made a matter of presumption. It is a matter of fact, of evidence. To adopt the rule that actual notice should in such a case be presumed is, in the opinion of the author, to establish a doctrine in direct con- flict with the spirit and intent of the whole system of registra- tion laws. Constructive notice can seldom be equivalent to ■ » Hastings v. Cutler, 4 Fost. (24 N. H.) 481. ' Hastings v. Cutler, supra, » 2 Watts, 75. I Deeds.— 44. § 669 EEGISTEATION OP DEEDS. 690 actual notice. Yet if the statutes relative to registration are complied with, a subsequent purchaser is bound by the informa- tion contained in the records, whether he has actual knowledge of the facts or not^ But the whole current of decision is to the effect that to give the record this character of affording con- structive notice, every requirement of the statute must be observed. A failure in any essential respect renders the record ineffectual as constructive notice. In Hastings v. Cutler,* a more reasonable rule is laid down, yet one to which objection may be raised. It is not, however, unreasonable to require a person who has actual knowledge that there is a deed, valid between the parties in existence, to make inquiry to ascertain the rights of the grantee. But it is presumed that under this decision it would first be necessary to show such actual knowl- ledge by competent evidence. No presumption can result that a purchaser had such knowledge. § 669. Change of boundaries of comrty. — If a deed has been registered in the county in which the land lies, it is not neces- sary to record it again in a new or other county into which the former county may be divided, or to which it may be annexed. "We are not apprised of any statute which would require an owner of land having his deed properly registered in the county where the land lies, to have his conveyance again recorded as often as by subdivisions and changes the land may fall into a new or different county. Very prudent men may use such pre- cautions. But it is not necessary for the protection of their rights, the first registry being amply sufficient." ^ If the land at the date of the deed lies in one county, but if at the time it is pre- sented for registration a new county has been carved out of the old one, which includes the land described in the deed, the con- veyance must be recorded in the new county and not in the old.' • 4 Fost. 481. ' McKissick v. Colquhoun, 18 Tex. 148. ' Garrison v. Hayden, 1 Marsh. J. J. 222 ; 19 Am. Dec. 70. This case ■was an action of ejectment, and the pl&intiff in deraigning title offered a deed certified by the clerk of the County Court of Fayette for the land, acknowledged and recorded in that county. The land, at the date of the deed, was in Fayette County, but at the time it was acknowledged was in Jessamine, which county had, in the interval between the date and acknowledgment, been established. The nisi prms court rejected the cer- 691 JSEGISTEATION OP DEEDS. §§ 670-671 § 670. Purchaser under quit-claim deed — Comments. — The law is not uniform on the question whether a grantee under a quit^claim deed is to be considered a bonafde purchaser, entitled to the protection of the registry laws. By a conveyance of this character he succeeds to such title only as the grantor possesses at the time the deed is executed. He cannot claim the benefit of any title subsequently acquired by his grantor. It has in some States been held that as he obtains the grantor's title only, he acquires nothing at all, if the grantor has previously trans- ferred this title to another, and that it is immaterial whether he has notice of this fact or not. On the other hand, it is con- sidered in other States, that this conveyance is effectual to con- vey such title as the grantor possesses, and such title as under the registry laws, the grantee has a right to assume, is vested in the grantor. § 671. View that such purchaser is not entitled to the protec- tion of the registry acts. — The doctrine that a purchaser under a quit-claim deed is not a bona fde purchaser without notice prevails in many courts, and is supported by eminent authority. By the Supreme Court of the United States it is held, that " a purchaser by a deed of quit claim, without any covenant of warranty, is not entitled to protection in a court of equity as a purchaser for a valuable consideration without notice ; and he tified copy of the deed, and this was claimed to toe error. The conrt said : " A proper construction of either the letter or object of the act of assembly, ■which requires deeds for land to be recorded In the county in which the land lies, must sustain the opinion of the Circuit Conrt. The deed must be recorded in the county in which the land lies at the time the deed is deposited for registration. When a, party is about to deposit his deed to be recorded, the act of assembly addresses him, in this language : ' Have it recorded in the county in wtiioh the land lies ; that is, the county in which the land lies now, when you make the deposit.' The object of this requisition is to give notice in the county of the transference of the title to the land. As, therefore, the clerk of Fayette had no legal right to receive the acknowledgment, his certificate of the fact of acknowledgment is no authentication of the deed. The recording of a deed not being necessary to pass the title, as between the parties to it, proof of the orignal by the subscribing witnesses would have been sufficient for the plaintiff in this case. But as he chose not to offer such proof and relied on the certifi- cate of the Fayette clerk, he must abide the consequence of his error." See also Bell v. Fry, 5 Dana, 344. § 671 EEGISTEATION OF DEEDS. 692 takes only what the vendor could lawfully convey."' This is the rule also in Iowa : "One holding title under such a deed is not to be regarded as a bona fide purchaser without notice of equities held by others."^ But language to a contrary effect is found in a previous decision in that State^* The court, however, subsequentlyclaimed that in that case the question was not pre- sented, and that the only point decided was that, under the recording laws, a purchaser under a quit-claim deed acquired a prior right to one claiming under an unrecorded bond for a deed of which he had no notice, because the quit-claim deed conveyed the legal title.^ In Minnesota, the statute declared that: "A deed of quit claim and release, of the form in common use, shall be sufficient to pass all the estate which the grantor could lawr fully convey by deed of bargain and sale." Commenting upon this language, the court said : " If the legislature intended by the use of the term 'lawfully convey,' to limit the estate con- veyed to such as the grantor had a: legal right to convey, then, as he may not lawfully convey land which he has already con- veyed to another, but may release any real or fancied interest remainiflg in him, nothing passes beyond his actual interest at the time of the conveyance, whatever that may be. When, therefore, a person relies on a mere quit claim of the interest which a party may have in property, he does so at his peril, and must see to it, that there is an interest to convey. He is pre- sumed to know what he is purchasing, and takes his own risk."^ And hence in that State, a purchaser under a quit-claim deed is not regarded as a purchaser entitled to the benefits of the registration acts," This is also the rule in Missouri,^ Texas,* and Alabama.' 1 OKveri). Ratt, 3 How. 333. See, ftlso^ Mayo. Le Claire, 11 Wall. 217, 232. " Watson V. Phelps, 40 Iowa,- 482, 483 ; Baymond v. Morrison, 59 Iowa, 371 ; Smith v. Dunton, -42 Iowa, 48 ; Springer ik Bartle, 46 Iowa, 688 ; Beeore v. Dosh, 43 Iowa, 211, 212. 8 PettingiU v. Devin, 35 Iowa, 353. * Springer v. Bartle, 46 Iowa, 690. 5 Ma,rtin v. Brown, 4 Minn. 282, 292, per Emmett, 0. J. " Marshall v. Roberts, 18 Minn. 405 ; Everest v. Ferris, 16 Minn. 26. See, also, Hope v. Stone, 10 Minn. 152. ' Stoffel V, Schroeder, 62 .Mo. 147; EadgeWay u. Holliday, 59 Mo. 444. 8 Bodgers v. Burohard, 34 Tex. 441. » Smith's Heirs v. Bank of Mobile,.21 Ala. 125 ; Walker c. Miller, 11 Ala. 1067, 1082, 1084. See, also, Bragg «. Paulk, 42 Me. 502 ; Boon v. Chiles, 10 Peters, 177 j Vattier v. Hinde, 7 Peters, 252 ; Nash v. Bean, 74 Me. 340. 693 EEGISTEATION OF DEEDS. § 672 § 672. View that sucli purcliaser is entitled to the foil pro- tection of the recording laws. — But in other States, and more reasonably, as it seems to us, it is held that a purchaser under a quit-claim deed who becomes such in good faith and for a valu- able consideration, may claim the benefit of the recording laws, and that his conveyance, if first recorded, will prevail over a prior deed of bargain and sale. This is the rule adopted in Califor- nia. In that State, Mr. Justice Belcher said : " There can be no doubt upon the question presented, if real estate, or an inter- est in real estate, can be aliened or assigned by a quit-claim deed. To alien or alienate means simply to convey or transfer title to another. In this State, from the earliest times, quit- claim deeds have been in every-day use for the purpose of transferring title to land, and have been considered as effectual for that purpose as deeds of bargain and sale. It is true, they transfer only such interest as the seller then has, and do not pur- port to convey the property in fee-simple absolute, so as to pass an after-acquired title, but to the extent the seller has an inter- est, they divest him of it and vest it in the purchaser. We con- sider, therefore, that a quit-claim deed received in good faith and for a valuable consideration, which is first recorded, will prevail over a deed of older execution which is subsequently recorded." ^ This view was also at an early day adopted in Illinois. " Prior to the passage of the statutes made for the purpose of facilitating the manner of transferring lands, it was essential to the operation of a deed of release that the grantee should have some estate or interest in the land released ; but many of the subtle distinctions and ceremonious fi)rms peculiar to the ancient modes of transfer- ring titles are abolished, and the policy of the law now requires that we should look rather to the intention of the parties than to the form in which it is expressed. A deed of release and quit claim is as effectual for the purpose of transferring title to land as a deed of bargain and sale; and the prior recording of such deed will give it a preference over one previously executed, but which was subsequently recorded. In this respect there is no distinc- tion between different forms of conveyance. As a general rule, > In GiaS V. Middleton, 4& Cal. 341. This case was sabsequently approved in Frey v. Clifford, 44 Cal. 335^ 343. See, also, Willingham v. Hardin, 75 Mo. 429 ; Boogber v. Keece, 75 Mo. 383. § 672 EEGISTEATION OF DEEDS. 694 the one first recorded must prevail over one of older execution, when made in good faith, and when it appears to have been the intention of the parties to convey again the same lands which had been previously conveyed." * In a recent case in Missis- sippi, the cases are reviewed by Mr. Justice Campbell at consid- erable length, and as the result of his examination, he says : " We conclude that there is no authority for the proposition that a quit-claim deed in the chain of title deprives him who claims under it of the character of a bona fide purchaser. There are dida and suggestions and inferences to that effect. But we deny and repudiate the proposition as unsound and insupport- able on authority, principle, or policy. We concede that under some circumstances a quit-claim deed may be a ' significant cir-* cumstance,' in the consideration of a combination of circum- stances of which it may be a part, but this is the greatest force it can possibly have in any case." ^ 1 McConnel v. Beed, 4 Scam. (5 111.) 117, 121, per Chief Justice Wilson. And to the same efltect see Brown v. Banner Coal and Oil Co. 97 111. 214 ; 37 Am. Rep. 105 ; Fox v. Hall, 74 Mo. 315 ; 41 Am. Hep. 316 ; White ». MeGarry, 2 Flipp. C. C. 572. 2 Chapman v. Sims, 53 Miss. 163. The court, in that case, in discussing that question, said : "The deed from McPherson to Sims is a mere quit- claim deed, and it is said that, as there is such a deed in the chain of Anderson's title, he cannot be held to occupy the position of a iona fide purchaser. The cases cited in support of this legal proposition are : Smith V. Winston, 2 How. (Miss.) 601 ; Kerr v. Freeman, 33 Miss. 292 ; Learned V. Corley, 43 Miss. 687 ; Oliver v. Piatt, 3 How. 333, 410 ; May v. LeClaire, 11 Wall. 217, 232 ; Woodfolk v. Blount, 3 Hayw. (Tenn.) 147. In Smith v. Winston, the point under consideration was, whether the failure of con- sideration could be set up by a vendee under deed, without covenants of warranty, as a defense to the recovery of the purchase money he had promised. It would seem that to suggest the question was to indicate the proper answer to it ; but the learned judge, delivering the opinion, dis- cussed the question at length, and among many other things said: 'In a quit-claim deed, the party does nothing more than to acquit the grantee from any title or right of action which he may have; and the fact of taking nothing more than a quit claim would, in general, imply a knowledge of doubtful title.' Again, he remarked : ' The law seems to be well settled that a purchaser without covenants takes all the risk of title.' The remark last quoted was pertinent, and all that was necessary to dis- pose of the point. It is indisputable that a purchaser without covenants takes all the risk of title, so far as any right to call on his vendor to indem- nify him for a failure of title is involved. We are not able to perceive the appropriateness of the above quoted statement, that ' the fact of taking noth- ing more than a quit-claim would, in general, imply a knowledge of doubt- ful title.' Knowledge, or want of it, could in no way affect the question 695 EEGISTRATION OP DEEDS. § 673 § 673. Comments. — We thiuk that it is unreasonable to deprive a purchaser under a quit-claim deed of the benefits of being discussed. It was not the case of one claiming as a bona fide pur- chaser. That case is not an authority in support of the proposition for which it has been invoked. The case of Kerr v. Freeman is that of a com- plainant claiming land under a quit-claim deed, seeking the cancellation of certain deeds operating as clouds on his title. The judge delivering the opinion, speaking of the complainant's quit-claim deed, said : ' His deed merely shows a doubtful title ; ' but it was not said that because the com- plainant held under a quit claim, he could not maintain his bill. On the contrary, the question, ' whether the decree is sustained by the evidence in the cause,' was minutely discussed, and the conclusion announced that it was insufficient to warrant the decree. If it be true, as a legal proposition, that a title evidenced only by a quit-claim deed is not sufficient to sup- port a claim to have clouds removed from it, the announcement of that proposition was enough to dispose of the case and render an examination of the evidence unnecessary. This case is not an authority for the propo- sition that a vendee by quit claim cannot be regarded as a bona fide pur- chaser. Learned v. Corley contains this expression : • A quit-claim deed implies a doubtful title.' But that was not pronounced sufficient, of itself, to deprive the grantee of his claim to be a bona fide purchaser. It seems, rather, to have been treated as a significant circumstance in the history of the case fit to be considered, with other circumstances, all of which combined were held to deprive the holder of his claim as a purchaser in good faith. In Oliver v. Fiatt this language is found : • Another signifi- cant circumstance is, that this very agreement contained a stipulation that Oliver should give a quit-claim deed only for the tracts ; and the sub- sequent deeds given by Oliver to him, accordingly, were drawn up with- out any covenants of warranty, except against persons claiming under Oliver, or his heirs and assigns. In legal effect, therefore, they did convey no more than Oliver's right, title, and interest in the property; and under such circumstances it is difficult to conceive how he can claim protection as a bona fide purchaser,' etc. It is observable that the quit-claim deed, in pursuance of a previous stipulation for such a one, was declared to be a ' significant circumstance,' in connection with others, in themselves suffi- cient, to deprive the grantee of his claim to be treated as a bona fide pur- chaser. The quit-claim deed is not pronounced to be perse enough to rob its holder of the character of a bona fide purchaser. In May v. Le Claire this language is used : ' The evidence satisfies us that Cook had full notice of the frauds of Powers, and of the infirmities of Dessaint's title. Whether this were so or not, having acquired his title by a quit-claim deed, he cannot be regarded as a bona fide purchaser without notice. In such cases, the convey- ance passes the title as the grantor held it, and the grantee takes only what the grantor could lawfully convey.' And Oliver v. Piatt, 3 How. 333, is referred to in support of the proposition. No other authority is cited. After declaring 'that Cook had full notice of the frauds of Powers, and of the infirmities of Dessaint's title,' it was surely unnecessary to say more, and the remark about the quit-claim deed is as perfect a specimen of an obiter dictum as the books afibrd. We have above shown that the single case cited in support of this dictum merely treated the quit claim in that case as a 'sig- § 673 EEGISTBATION OP DEEDS. 696 the registration laws. A conveyance of this character is suffi- cient to convey all the title the grantor possesses at the time of its execution. If he has already executed a prior conveyance, a subsequent grantee, whether by a quit-claim deed or a deed containing every covenant, can acquire no title unless it be by. virtue of some principle of estoppel, or by force of some positive provision of the statute relative to registration. There is, to our mind, no force in the argument that a purchaser by a quit-claim deed can succeed to no rights save those possessed by his grantor. The same is true of a purchaser under any other kind of a deed. The latter succeeds by the conveyance only to the title of the grantor, although he may be entitled to the benefit of the sub- sequent title of his grantor by operation of the doctrine of estoppel, and may have a right to resort to his grantor on the covenants contained in the deed for any breach of, or defect in, the title he has purchased. Nor should, the fact that a purchaser accepts a quit claim be regarded, in our judgment, as a "signifi- cant circumstance," in. charging him with notice of a prior or paramount title. Mr. Rawle very properly says with reference to this suggestion : " But there would appear to be equal reason for the opposite argument, that a deed with general warranty was as significant a circumstancer-7-that unless there had been something wrong about the title, the purchaser would not have demanded a general covenant, and that he intended to run the nificant circumstance,' and did not announce that it alone was in itself a bar to the claim to be a bona fide purchaser. In Woodfolk v. Blount, the coui-t hesitatingly and doubtfully suggested that, x>erhaps, 'the vendee in all cases, when he receives but a special warranty or quit-claim convey- ance, takes the estate subject to all the disadvantages that it was liable to in the hands of the vendor, and the law will presume notice of all encum- brances, either legal or equitable. The circumstance of a vendor refusing to make a full and ordinary assurance is sufficient to excite suspicion, and put the party upon inquiry.' Not a single authority is referred to, except cases on the subject of ' indorsement of a bill without recourse after it is due,' which hold that the indorsee takes subject to all equities. The lan- guage immediately afterwards used in the opinion is : ' The principles in relation to conveyances of real property with special warranty, perhaps, will be found equally applicable. However, it is not necessary to give a positive opinion on this subject.' It is just to assume that the judge delivering that opinion would have cited some text-book or adjudication, if he could have found one to sustain the view he expressed. His citation of cases of indorsements of bills after maturity shows his anxiety on the subject, and suggests his inability to find any authority in point." 697 EEGISTRATION OF DEEDS. § 673 risk of the defect, and rely upon the covenant for his protection. In the absence of local usage it would seem that no presumption of notice can properly arise, either from the absence or presence of unlimited covenants, and where itis> as some of the cases say, the invariable usage in a State to insert general covenants, the presence in the deed of limited covenants is only a ground of presumption of mutual knowledge, or at least, of suspicion, ot some defect of title."* The theory of the registry laws is that the records truly disclose the state of every title. If an intend- ing purchaser, after a careful examination of the records, finds the legal title lodged in his grantor, and has no actual notice of any outstanding claim, and obtains all of his grantor's interest, why should his right to precedence over a prior unrecorded conr veyance of which he had no notice depend upon the form of his deed ? Quit-claim deeds in many States are not unusual forms of conveyance. The grantor may have the best of reasons for not desiring to execute a deed with covenants, or even to agree, impliedly, that the grantee shall succeed to any title the former may subsequently acquire. The grantee may be thoroughly satisfied with the validity of the grantor's title, and may in his confidence, consider himself fully protected by acquiring that title without the exaction of covenants for his reparation in case of its failure. The fact that his deed contains no covenants, and that the grantor conveys to him nothing but his title, should not, in our opinion, be entitled to consideration in the determination of the question whether he is to be regarded as a bona fide pur- chaser or not. This question should be decided with reference to other considerations as want of consideration or purchase with notice. It might, perhaps, as a question of evidence, on the issue- of notice, be conceded that a party should be permitted to show, that one of the reasons why the grantee took a quit-claim deed was because both he and the grantor were aware of a prior conveyance, or a defect in the title. But, as we havf stated, we can see no reason for the doctrine that a quit-claini deed should, of itself, aside from any other suspicious circumstance, be suffi- cient to deprive its holder of occupying the character of a 6ona fde purchaser. I Rawle on Covenants (4th ed.) 35, 86, citing Miller v. Fialey, 23 Axk. 743 ; liowry v. Brown, 1 Cold. 459. § 674 EEGISTEATION OP DEEDS. 698' § 674. Intention in quit claim to pass grantor's interest only. — But even in the States where a quit-claim deed is recognized as an effectual mode of transferring the title of the grantor, and is accorded the same privileges under the registry law as a deed of bargain and sale, yet if it appears by the deed of quit claim that the grantor intended to convey only such land as he owned at the time of its execution, the lands embraced in a prior oper- ative conveyance are reserved from the operation of the quit- claim deed, and title to such previously conveyed lands will not pass by the deed of quit claim, notwithstanding that the prior deed remains unrecorded. As an illustration of this principle a case may be cited where the description of the property intended to be conveyed by the quit claim deed was: ''AH lots, blocks, lands, and fractional blocks, or any interest therein, in the town of Pekin, county of Tazewell, State of Illinois, that I have; also all my right and interest, or in any wise appertaining, together with the right of ways. This deed is intended to convey all the interest the said Peter Menard has in the town of Pekin, now city, in said county." The court held that this language embraced only such land as the grantor owned at the time of the execution of the deed.^ The court said : " The language used clearly manifests the intention of the grantor, to limit the Operation of the conveyance to such lands as he then owned, and the title to which was still in him. Whilst a quit-claim deed is as effectual to pass title as a deed of bargain and sale, still it, like all other contracts and agreements, must be expounded and enforced according to the intention of the parties. In this deed the intention of Menard appears to have been to sell such lands only as had not been conveyed by him to other parties previous to that time."^ A grantor conveyed land, specifically describ- ing himself as the devisee of Alexander Skinner, by whom the, land was owned in his lifetime. By a subsequent deed, which was first recorded, he conveyed to another "all the right, title, and claim which he, the said Alexander Skinner, had, and all the right, title, and interest which the said Lee [grantor] holds as legatee and representative to said Alexander Skinner, 1 Hamilton v. Doollttle, 37 lU. 473. ' Chief Justice Walker, in Hamilton v. CooUttle, supra. 699 EEGISTRATION OP DEEDS. § 675 deceased, of all land lying and being in the State of Kentucky, which cannot at this time be particularly described, -whether they be by deed, patent, mortgage, survey, location, contract, or other- wise." The deed also contained a covenant against all persons claiming under the grantor, his heirs and assigns. The court held that the latter conveyance operated only upon the lands and the interest which he possessed at its execution, and there- fore could not by a prior registration obtain precedence over or defeat the operation of the first deed, by which the same land was specifically conveyed.* §,675. Another illustration. — The same construction was given to another deed, which was in the usual form of a quit-claim deed, conveying all the right, title, and interest of the grantor in certain lands, but after the description contained the clause : "Intending to convey such only as are now owned by said Walker, and not any that may have been conveyed to any one else." " Such a deed, " said Mr. Justice Trumbull, ■' is just as effect- ual for the purpose of transferring real estate as a deed of bargain and sale ; and had there been no words in the deed under considr eration, showing an intention on the part of the grantor not to con- vey the land in question, there can be no doubt that the plaintiff would have been entitled to recover. The deed, however, con- ' Brown v. Jackson, 3 Wheat. 449. Mr. Justice Todd delivered the opinion of the court, and said: "A conveyance of the right, title, and interest in land is certainly sufficient to pass the land itself, if the party conveying has an estate therein at the time of the conveyance; hut it passes no estate which was not then possessed by the party.' If the deed to Banks had stopped after the words ' all the right, title, and claim which Alexander Skinner had,' there might be strong ground to contend, that it embraced all the lands to which Alexander Skinner had any right, title, or claim, at the time of his death, and thus have included the lands in controversy. But the court is of the opinion that those words are quali- fied by the succeeding clause, which limits the conveyance to the right, title, and claim which Alexander Skinner had at the time of his decease, and which Lee also held at the time of his conveyance, and coupling both clauses together, the conveyance operated only upon lands, the right, title, and interest of which was then in Lee, and which he derived from Skinner. This construction is, in the opinion of the court, a reasonable one, founded on the apparent intent of the parties, and corroborated by the terms of the covenant of warranty. Upon any other construction, the deed must be deemed a fraud upon the prior purchaser ; but in this way both deeds may well stand together consistent with the innocence of aU parties." § 676 EEOISTEATION OP DEKDS. 70Q tains a clause showing that the grantor did not transfer by it any interest in lands which lie had previously conveyed. It was competent for the grantor to insert such, a limitation in the deed ; and the grantee^ by accepting such a deed, is bound by all the limitations it contains. The intention of. the parties is the polar star by which courts are always to be guided in the construction of contracts ; and can there be any question that Walker did not intend by his quit-claim deed to convey any land which he did not then own, or which might have been con- veyed to any one else, when he has expressed that intention in the deed itself, as clearly as language could make it? It is clear, therefore, that no interest in the land in question passed by the quit-claim deed, because Walker had previously conveyed the same land to Taylor and others. He says that it was his intention to convey only such lands described in the quit-claim deed as he then owned, and his ownership over the land in con- troversy was as effectually parted with, as to him, as it would have been if Taylor and others had immediately placed their deed upon record. To construe the clause under consideration as extending only to such lands as Walker had previously con- veyed to persons who had put their deeds upon record, would be to give it no meaning whatever. His second conveyance could in no way affect their rights. It is probable that Walker, being at the time a large operator in lands, did not precisely recollect what tracts he had sold, and hence inserted a clause in his quit- claim deed that would protect all who had purchased from him, whethier their deeds were recorded or not, even though he should make a second conveyance of the same land." ^ § 676. Beservatioii ia qnit-claim deed as affecting a prior void or voidable deed. — But although a quit-claim deed may show by proper words of reservation that the grantor did not intend to convey lands previously transferred by him, yet it is held that a prior void deed is not within such a reservation, and that a subsequent quit-claim deed, with a reservation of this nature, will pass the title as against the prior conveyance.^ "By fair construction, the language must be restricted to previous con- 1 Butterfield v. Smith, 11 ni. 485, 486. See Harpham «. LitUe, 59 HI. 509. » Hamilton v, Doolittle, 37 lU. 473. 701 EEQISTEATION OF DEEDS. § 677 veyances, legally executed, and operative as such. A conveyance void under tbelaw, or even voidable, at the time of executing the subsequent conveyance, could not be held to be embraced within the reservation. It not unfrequently happens, that the subse- quent deed is designed to avoid a prior deed which the graUtor has the legal right to avoid, and such conveyances are upheld as binding, and sufficient to pass the title. Again, the language should be restricted so as not to embrace any conveyance which is so imperfectly executed that the law will refuse to give it effect as a conveyance of title. If it has been so executed that it cannot be proved so as to be admitted in evidence as a convey- ance, it cannot have effect, and cannot be held to constitute a con- veyance. If from want of proof, or from other defect, it cannot be used in the assertion of the right to hold the title, it cannot be said to be a conveyance of the title to the land. In such a case, the legal title does not pass from the vendor, but remains in him at the time the subsequent conveyance is made, and falls fully within the operation of the language of such a deed."* § &77. Record partly printed. — The law is satisfied if the record contains a true copy of the instrument to be recorded. The record of a conveyance is not defective, because, instead of being entirely written, a portion of.it is printed. The statute of Wisconsin requires that instruments shall be recorded "in a plain and distinct handwriting."^ A book in which a mortgage was recorded was composed of printed blanks in the form of farm mortgages. When a mortgage of this kind was recorded, the blanks were filled in, and this was the only handwriting shown by the record. It was declared by statute in that State that "the words 'written' and 'in writing,' may be construed to include printing, lithographing, and any other mode of repre- senting words and letters."* The court held that the objection that a part of the record was printed was invalid.* " There is no claim that this copy of the record was not complete and per- fect. We cannot hold that this record is defective because a ' Hamilton v. DooUttle, supra, ' Kev. Stats. I 758, subd. 2. " Kev. Stats, g 4971, subd. 19, * Maxwell v. Hartmann, 50 Wis. 660. §§ 678-679 EBGISTEATION OF DEEDS. 702 portion of it is printed. Certainly a printed record is as effect- ive to protect bonafde purchasers as one wholly in writing. It is also just as beneficial to parties and those in privity with them. The objects of the recording acts are as fully complied with by a printed as by a written record. There is no question but that the book in which the record was made was a part of the public records in the register's office of Ozankee County." ' § 678. Interest of recording officer. — The registration of a deed is purely a ministerial act. The record is not vitiated by the fact that the clerk by whom it is recorded is a party to the instrument.* § 679. Time at wMch deed is held to be recorded. — The statute may prescribe that the depositing of a deed within a specified period shall have a retroactive effect, so that its regis- tration may, when it is filed within this limited time, relate back to the time of its execution. In many States it is expressly pro- vided that a deed is considered as recorded at the time it is filed for record. In the absence of legislation on the subject, it is generally conceded, so far as the question of priority and kindred questions are concerned, that a deed is considered in law to be recorded at the time at which it is deposited with the proper officer for registration.* "When a deed," said the Supreme Court of Rhode Island, "which has never been recorded, is lodged with a town clerk, the act of lodging it, unaccompanied with any counter-declarations, is itself an implied direction to record ; and other things equal, the title is complete upon its being lodged with such implied directions ; for, by the terms of our statute, the lodging of a deed to be recorded is equivalent to an actual entry of it upon the record, so far forth as is necessary to perfect the title. The title being made complete by such lodg- inent, the subsequent neglect of the town clerk cannot affect the grantee's rights under the deed. The deed remaining on file in ' Mr. Justice Cassoday, in Maxwell v. Hartmann, aiipra. ' Brookenborough v. Melton, 55 Tex. 493. ' Cal. Civ. Code, § 1170 ;. Keslerw. State, 24 Ind. 315 ; Harrold v. Simonds 9 Mo. 326 ; Mallory v. Stodder, 6 Ala. 801 ; Poplin v. Mundell, 27 Kan. 138 \ Duboae v. Young, 10 Ala. 365; Horsley v. Gaith, 2 Gratt. 471 ; 44 Am. Deo'. 893. 703 REGISTEATION OF DEEDS. § 679 the clerk's office and open to inspection, is notice to all the world of a conveyance of the land, either absolute or conditional." * A deed that has been so filed for record, is sufficient to charge sub- sequent purchasers with constructive notice from that time of its existence and execution, and is, of course, entitled to priority over any other deed subsequently filed for record.* 1 Nichols V. Reynolds, 1 R. I. 30, 35 ; 36 Am. Deo. 238. See, also, Gide v. Fauntleroy, 8 Mon. B. 177 ; Horsley v. Garth, 2 Gratt. 471 ; 44 Am. Dec. 393. ' Bigelow V. Topllff, 25 Vt. 274 ; 60 Am. Dec. 264. In that case, Isham, J., in delivering the opinion of the court, said : " What will be a sufficient record for that purpose, depends upon the object and general provisions of the act. In some cases, the instrument must be recorded at length upon the boolc of records, and it will have no effect until it is so recorded. This is true in all cases where the enrollment is necessary to the investing of the title. In such case, it is made a condition precedent, and no right or title passes until the statute is strictly complied with. This rule prevails where recording is required of the proceedings of the collector in sales of land for taxes : Clark v. Tuclier, 6 Vt. 181 ; Giddings v. Smith, 15 Vt. 344. So in the levy of executions upon real estate, the record of the execution and levy is necessary to pass the title : Morton v. Edwin, 19 Vt. 81. In these cases, the object of the record is not simply notice, but it is an essential link in the chain of evidence in the proof of title to the estate. Where the object of the record is notice merely, the statute is complied with when the party has left the instrument with the recording officer for that purpose, with directions for its immediate record. This construction is not to be considered as an open question, but as settled by the decisions of this court, as well as by that practical construction which it has received since the passage of the act. This principle was recognized by this court in the case of Ferris v. Smith, 24 Vt. 27. In that case, the act required ' the deputation and certificate of the oath of office of a deputy sheriff to be recorded in the county clerk's office, and until recorded, the official acts of such deputy were not valid.' The object of the act was notice, and lodging that depu- tation and certificate with the county clerk for record, was held a sufficient compliance with the act to invest him with the prerogatives of the office, and render valid his official acts, though the deputation and certificate had not been recorded in extenso upon the records. In Connecticut, the same rule prevails, and leaving the deed for record with the certificate of the clerk thereon, that it was so left is sufficient to protect the title as against the grantor, as well as subsequent purchasers and creditors: Hine v. Roberts, 8 Conn. 347. The difference in phraseology between our statute and theirs, is not such as to justify a different construction, particularly where the practical construction of the act has been uniformly the same." Chancellor Kent, in a note to his Commentaries, says ; " The statute of New York gives priority to the conveyance which 'shall be first duly recorded ' ; but it adds that it shall be ' considered as recorded from the time of the delivery to the clerk for that purpose.' A provision to the same effect is in the Massachusetts Revised Statutes for 1836, though no doubt the previously existing rule of law was the same. This prevents the ques- tion which Mr. Bell says has arisen in Scotland, between a sasine first § 680 EEGISTEATION OP DEEDS. 704 § 680. Mistake of copying deed In record — Conflicting views. — A de(;d may be executed in every particular as required by law, may be properly acknowledged, deposited with the proper officer for registration, yet may not be correctly copied by the record- ing officer into the record books. In such a case, a searcher of the records is compelled to assume that the information they contain is true. He rarely has an opportunity to inspect the original deed, and, even if he has such an opportunity, deems an inspection of the original unnecessary. At the same time, the person who has recorded his eonveyanoe has done all in his power to secure a proper registration. If a mistake is made in the copying of the deeds, the fault is not his. A very interest-r ing question arises when a mistake has been made by the officer in spreading the deed on the record. Shall the purchaser who acted in good faith and acquired his rights in the honest belief that the records correctly showed the various claims upon the property, suffer because the officer failed to do his duty, or shall the person who presented his conveyance for registration bear the consequences of the officer's nejgligence? The decisions are contradictory on this question. On one side it is asserted that the person who files a deed for record is not responsible for the transcribed, though' last presented, and a sasine which by the minute book is proved to havebeen first presented, though last transcribed. He admits, however, the better construction of the stattite to be that the minute book of the time of the presentation of tile instrument, was intended to be the regulator of the order of preference by priority: 1 Bell's Com. 679." 4 Kent Oom. (12th ed.) star page 459. In Ferris v. Smith, 24 Vt. 27, 32, the court said with reference to convey- ances, where the title is passed or the right acquired by act of the parties as in the conveyance of real estate by deed, that " though a record is necessary in order to give full effect to the transaction for collateral purposes, it is made so as the medium of general nbtiee. And as a public recording office is a place where all persons have the right to apply for information, as Well in regard to Instruments lodged there for record as to the records already made, the act of the party in lodging the evidence of his title in such an office, for the bona fide purpose of having it recorded without delay, and the reception of it by the recording officer for the same purpose, are held to operate like the record itself as notice to third perscms. In other words, the deed or instmmeht thus deposited and received is deemed to be of record or recorded : Marbury v. Madison, 1 U. S. Cond. E. 273, 274. This is on condition, to be sure, that a full and proper record be ultimately made, and that the party shiaU in no way interfere to prevent or delay the making It : Sawyer & Sogers v. Adams, 8 Vt. 172 ; 30 Am. Deo. 459." See, also, Davis v. Ownsby, 14 Mo. 170 ; 55 Am, Deo. 105. 705 REGISTRATION OF DEEDS. § 681 officer's neglect, and on the other, it is declared with equal confi- dence that the records do not give notice of what they do not contain. § &81. View that the grantee is not affected by mistake In copying the deed, — On one hand, on the ground that a deed is considered as recorded, when it is left with the officer for the purpose of registration, it is held that by depositing the deed with the proper officer, the grantee has done all that is required of him, and although the officer records only a portion of the instrument or omits to record it at all, the rights of the grantee cannot th^eby be injuriously affected.^ A statute in Illinois provided that after a specified date " all deeds and other title papers which are required to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all subsequent creditors and purchasers without notice, and all such deeds and title papers shall be adjudged void, as to all such creditors and subsequent pur* chasers without notice, until the same shall be filed for record' in the county where the said lands may lie." The recorder in recording a deed misdescribed the premises in his record. The court held that the grantee performed his duty by leaving his deed for record with the proper officer ; and the mistake in the record did not affect the question of notice given by filing the deed for record.? Commenting on the statute above quoted, Mr. Justice Breese said : " This was the law in force at the time of the execution of the deed to Hugunin, and under it, all the duty he had to perform to make it available against the world. ' Riggs V. Boylan, 4 Biss. 445 ; Polk v, Gosgrove, 4 Biss. 437 ; Marigold V. Barlow, 61 Miss. 593; 48 Am. Rep. 84; Kiser v. Heustoih. 38 lU. 252; Bedford v. Tupper, 30 Hun, 174; Merriot v. Wallace, 19 I1L486; Wood's Appeal, 82 Pa. St. 116; S. C. 13 Am. Law Reg. 255; Flowers (<.. Wilkes, 1 Swan, 408; Lee v. Berlulngham, 30 Kan. 312 ; Bank pf Kentucky v..Haggin, 1 Marsh. A. K. 306 ; Brooke's Appeal, 64 Pa. St. 127 ; Nichols «. Reynolds, 1 R. I. SO ; 36 Am. Dec. 238 ; Musser v. Hyde, 2 Watts & S. 314 ; Oats v. Walls, 28 Ark. 244 ; Mims v. Mims, 35 Ala. 23 ; Throckmorton v. Price, 2S Tex. 605 ; Beverly v. Ellis, 1 Rand. 202. See, also, Franklin v. Cannon, 1 Root, 500 ; Hartmyer v. Gates, 1 Root, 61 ; Judd v. Woodruff, 2 Root, 298 ; McDonald v. Leach, KIrby, 72 ; McGregor v. Hill, 8 Stewt. & P. 397. And see Clader v. Thomas, 89 Pa. St. 843 ; Gaskill v. Badge, 8 Lea (Tenn.) 144. ' Merrick v. Wallace, 19 111. 486. I. Di:£DS.— 45. § 682 EEGISTEATION OP DEEDS. 706 ■was to place it with the recorder to be filed for record. Before that time it had effect only as against the grantors — after that time, it took effect and was in force against all persons. It is only by virtue of this law that the plaintiff can claim to post- pone defendant's deed, and destroy its effect as against his pur- chase at the sheriff's sale. He is, in effect, claiming to enforce a statute penalty imposed upon the grantee in the deed, by rea- son of his having omitted to do something the law required him to do to protect himself and preserve his rights. The law never intended a grantee should suffer this forfeiture, if he has con- formed to its provisions. The plaintiff claiming the benefit of this statute being, as it is, in derogation of the common law, and conferring a right before unknown, he must find in the pro- visions of the statute itself, the letter which gives him that right. To the statute alone must we look for a purely statutory right. All that this law required of the grantee in the deed was that he should file his deed for record in the recorder's office, in order to secure his rights under the deed. When he does that, the requirements of the law are satisfied, and no right to claim this forfeiture can be set up by a subsequent purchaser. The statute does not give to the subsequent purchaser the right to have the first .deed postponed to his, if the deed is not actually recorded, but only if it is not filed for record. If it was not properly recorded after the grantee had left it to be filed for record, and by reason thereof a subsequent purchaser is misled, he surely has no right to say, that the first purchaser shall suffer by this omission of the recorder to perform his duty rather than him- self. The statute leaves such a loss to fall, where the common law left it. In such a case, the subsequent purchaser cannot call in aid the statute, because his case does not come within its pro- visions. In such a case the statute is silent, and the common law must take its course. He must seek his remedy against the recorder." ' § 682. Reasonable precaution. — Where, under the registra- tion laws the filing of a deed is equivalent to its actual regis- tration, the fact that a subsequent bona fide purchaser for value Merrick v, Wallace, 19 HL 486, 497. 707 EEGISTEATION OP DEEDS. § 682 and without notice took every reasonable precaution to ascertain the condition of the title, and bought and paid for the land only on the assurance of the recording officer that there was in his office no evidence of a conflicting right to the property., cannot give his deed precedence over such prior deed filed for record, but not actually recorded.' In Virginia, it is held that although ^ Throckmorton v. Price, 28 Tex. 605. Said the court: "In whatever manner the question presented in this case is decided it must operate to the injury of innocent parties ; there is, therefore, no equitable consider- ation favoring a preference of the parties on one side over those on the other. The point in issue between them must be determined by an application of the provisions of the registration laws to the facts of the case. When this is done, there cannot be the slightest doubt as to a correct decision of the question before us, and that the instruction given to the jury was errone- ous. But for the registration law, the older title would obviously convey the better right. And it is the uniform provisions of these laws that such instruments as must be recorded shall be valid as to all subsequent pur- chasers for a valuable consideration without notice, and as to creditors from the date when such instrument shall be properly acknowledged, proved, or certified and delivered to the clerk for record, and from that time only. (O. . Adams, 8 Vt. 172, 176, 30 Am. Deo. 459, the court, per WiUlama, C. J., say : " In such cases, the purchaser may be wholly free from fault or negligence. He may 711 EEGISTEATION OF DEEDS. § 684 of 1839, was that an instrument in writing, properly certified and acknowledged, " shall from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof, and all subsequent purchasers and mortgagees shall be deemed in law and equity to purchase with notice."^ The Supreme Court of that S^ate placed an entirely difierent con- struction upon this statute from that given in Illinois to one of similar import.* Wright, J., delivered the opinion of the court, and referring to this statute said : " This statute in our opinion was only intended to fix the Ume from which notice to subsequent purchasers was to commence, and not to make such filing or depositing notice of the contents after the same was recorded. After the record of the deed, the record itself is the constructive notice of its contents, and it never was the inten- tion of the legislature to hold a subsequent purchaser, buying after the recording, bound by the contents of a deed, ever so improperly and incorrectly recorded, because at some time, a deliver his deed to the proper ofacer, and it may be returned to him as recorded, but through accident or design it is not truly recorded. Subse- quent purchasers or creditors haying no other means of knowledge of the contents of the deed than by resorting to the records, cannot be considered as having notice of any other conveyance than such as appeared on record. The object of recording, as has already been noticed, is for the purpose of notice to after purchasers and creditors. In considering what is necessary to complete a record, it will not answer to say that the record may be so made as entirely to defeat the object for which it was designed. The pur- chaser may fairly deliver his deed to the town clerk. The clerk may return it to him with a regular certificate that it has been recorded ; and if he does nothing more, if he does not record it in fact, there is no actual or constructive notice to purchasers of the existence of snoh deed. The clerk is guilty of fraud, and the person who left the deed for record is deceived ; still his deed is not recorded and no title passes thereby, except as against the grantor and his heirs. In such a case there can be no doubt that the purchaser will lose his title through the fault or fraud of the town clerk." See, also, Huntington v. Cobleigh, 5 Vt. 49 ; Skinner v. McDaniel, 5 Vt. 539. In Jenning's Lessee v. Wood, 20 Ohio, 261, 266, it is said by Caldwell, J., delivering the opinion of the court: "The obligation rests on the party holding the title to give the notice. He controls the deed ; he can put it on record or not at his pleasure. If from any cause he falls short of giving the legal notice, the consequences must fall on himself. It is his own busi- ness, and he must suffer the consequences of its being imperfectly per- formed." See Curtis v. Koot, 28 111. 367. ' Miller v. Bradford, 12 Iowa, 14. 2 For case in Illinois, see Merrick v. Wallace, 19 lU. 486, g 681. i 685 KEGISTRATION OF DEEDS. 712 deed correct in the description of the property, was filed with the recorder."* § 685. Views of Mr. Pomeroy. — Mr. Pomeroy, in his treatise on Equity Jurisprudence, takes the view that a record is con- structive notice only to the extent that it is a true copy of the original instrument, and that a subsequent purchaser may act upon the information disclosed by the records, irrespective of the question whether they set out the original deed correctly or not. He says : " A record is a constructive notice, only when, and so far as, it is a true copy, substantially even if not absolutely correct, of the instrument which purports to be registered, and of all its provisions. Any material omission or alteration will certainly, prevent the record from being a constructive notice of the original instrument, although it may appear on the registry books to be an instrument perfect and operative in all its parts. The test is a plain and simple one. It is, whether .the record, if examined and read by the party dealing with the premises, would be an actual notice to him of the original instrument, and ' MUler V. Bradford, 12 Iowa, 19. See, also, Miller «. Ware, 31 Iowa, 524^ Bisque v. Wright, 49 Iowa, 538. In Frost v. Beekman, 1 Jobns. Cii. 288, the Chancellor said : "The true construction of the act appears to be that the registry Is notice of the contents of it and no more, and that the pur- chaser is not to be charged with notice of the contents of the mortgage, any further than they may be contained in the registry. The purchaser is not bound to attend to the correctness of the registry. It is the business of the mortgagee, and if a mistake occurs to his prejudice, the consequences of it lie between him and the clerk, and not between him and the bona fide pur- chaser. The act in providing that all persons might have recourse to the registry, intended that as the correct and sufficient source of information ; and it would be a doctrine productive of immense mischief to oblige the purchaser to look, at his peril, to the contents of every mortgage, and to be bound by them, when diflferent from the contents as declared in the registry. The registry might prove only a snare to the purchaser, and no person could be safe in his purchase without hunting out and inspecting the original mortgage, a task of great toil and difficulty. I am satisfied that was not the intention, as it certainly Is not the sound policy of the statute ; nor is it repugnant to the doctrine contained in the books, that notice to a purchaser of the existence of a lease, is .notice of its contents." See, also. Peck v. Mallams, 10 N. Y. 518 ; Ford v, James, 4 Keyes, 300. But it was held in Simonson v, Falihee, 25 Hun, 570, that a release of mortgaged land is complete when It is left with the clerk for record, and that where there is no fraud or collusion, the party is not responsible for an error of the clerk in recording it, and the erroneous record in such a case does not bind the party executing the release. 713 EEGflSTKATION OF DEEDS. ' § 686 of all its parts and provisions. By the policy of the recording acts such a party is called upon to search the records, and he has a right to rely upon what he finds there entered as a true aud complete transcript of any and every instrument affecting the title to the lands with respect to which he is dealing, A record- can only be a constructive notice, at most, of whatever is contained with itself."* And again : "Furthermore, the record of an instrument which is itself duly executed and entitled to be registered, does not operate as a constructive notice, unless it is made in the proper form and manner, in the proper book, as required by the statute. The policy of the recording acts is that those persons who are affected with constructive . notice should be able to obtain an actual notice and even full knowledge by means of a search. A search could not, ordinarily, be success- ful and lead the party to the knowledge which he seeks, if the instrument were recorded in a wrong book. This rule, there- fore, instead of being arbitrary and technical, is absolutely essential to any effective, working of the statutory system."' § 686. Oomments. — The author is compelled to dissent from the views expressed by Mr. Pomeroy, and from the doctrine which prevails in several of the States that a grantee is held responsible for defects in the record not caused by his act or througli his procurance, but by an oflScer over whom he can exercise no control. The grantee by depositing his deed with the recording officer does all that he can do. He complies with every requirement of the statute. It is universally conceded, when his deed is correctly copied into the records, that notice is given from at least the time the conveyance is deposited with the proper officer. We can see no reason for the restriction that notice shall be thus given only on condition that the deed is subsequently correctly copied. If the grantee by depositing the deed with the recorder has given the notice required of him by the statute, and has by this step obtained all the priority and acquired all the rights of a purchaser whose deed is first recorded, why should his title afterwards become, by the carelessness or perhaps fraudulent design of the recording offijcer, subordinate 1 2 Pomeroys Equity Juris, g 654. > 2 Pomeroy's Equity Juris. I 653. § 686 EEGISTEATION OF DEEDS. 714 to that of another who on equitable grounds, aside from the arbitrary provisions of the statute, can be entitled ,to no more favorable consideration than he? It cannot be said that the permanent and continued existence of the record is essential to preserve the priority that a purchaser obtains by the due record of his instrument. For as we point out, in a following section, the subsequent destruction of the book in which the deed is recorded, by fire, the mad caprice of a mob, the mishaps of war, or the hand of some person who desires its destruction for selfish and fraudulent purposes, cannot deprive the record of the effect of giving constructive notice, acquired by the original regis- tration^ When the record is destroyed, as a matter of fact, it must cease to give notice. Still it is considered, on the soundest logic and reason, that when a person has filed his deed for record, he has complied with the law and cannot be affected by the destruction afterwards of the record. Why, then, should he be held responsible when the record is not totally destroyed, but rendered imperfect by the act of a public officer, whose acts he cannot supervise? Again, the recording acts are intended for the benefit of subsfequent purchasers ani encumbrancers. The first grantee requires no protection. By the principles of the common law, in the absence of statutory regulation, he succeeds by his deed to all the title of his grantor, and unless the law places upon him the obligation of doing some particular act, his deed on common-law principles is good against everybody. The second purchaser can succeed, so far as the question of title alone is concerned, only to the interest of his grantor, and if that has been antecedently conveyed, he, by a second conveyance, can acquire nothing. But for the protection of the subsequent purchaser, the law requires the first grantee to give notice of his deed by procuring its registration or to suffer the consequence of its postponement to the conveyance of another, who deals with the same grantor in good faith and without notice of such prior deed. Now, it is obvious that the regis- tration laws are intended for the benefU of the svhsequeni pur- chaser, and it seems to us a reasonable rule, that if the first grantee does all that he has the power to do to secure to sub- sequent purchasers the benefit of this notice by the record, he should not be held responsible because a public officer failed to 715 EEGISTEATION OP DEEDS. § 687 do his duty. It is true, that it may be hard to declare that a purchaser who has parted with his money, on the assurance given by the records tfcat the grantor possessed title, acquires nothing because the records are incorrect, and do not show a prior conveyance. It may, indeed, be said that to declare such a rule will cause purchasers to lose faith in the records, and will retard the sale of property. But it must be remembered, that it is equally hard to say that the £rst purchaser must lose the property that he has purchased when he has complied strictly with every provision of the statute, and has not been guilty of the slightest negligence. One of two innocent persons must, of necessity, be damaged, and in our judgment,. the loss should fall upon the second purchaser rather than upon the first. And this loss is not as severe as at first glance it may be seen. He can recover back the purchase money for a failure of consider- ation, and he has his remedy against the recording officer for his dereliction of duty, and in several of the States severe penalties are prescribed for the execution of a second deed of the same property by the same grantor with intent to defraud a prior purchaser. On the whole, while on this question the authorities are divided, and either view is supported by a number of well considered cases, yet we think the most reasonable rule is the one we have stated. While this is our opinion, still it must be confessed that neither view can be said to be supported by the preponderance of authority, § 687. Effect of mistake in copying deed when considered recorded as soon as filed. — In those States in which the rule prevails that a deed is considered in law recorded, the moment it is deposited with a proper office for registration, it follows, as a natural conclusion, that any error in transcribing the deed cannot injure the grantee. A married woman conveyed land by deed, and the deed was acknowledged and recorded. Twelve years after it was recorded, it was supposed to have a defective acknowledgment, and a copy of the deed was obtained from the recorder's office, which the grantor acknowledged to be her act aud deed for the purposes therein mentioned, she then being a widow. The copy of the deed was returned properly acknowl- edged and given to the recorder to be recorded. The recorder § 688 EEaiSTEATION OP DEEDS. 716 did not transcribe this copy and- the certificate of acknowledge, ment in their entirety, but acting under the impression that the original deed was already recorded, he deemed it unnecessary to re-record that, but simply added upon the record, the certificates annexed to the deed with a reference to the original deed. The court held that if a widow by re-acknowledging a void deed executed by her while married gives it validity, that it is suffi- cient if she acknowledge it to be' her deed, without. re-sighing it; and when the deed is left for record, the grantee's rights-are pro- tected though the officer records only a portion of it.' A mis- take in transcribing a mortgage, by which it is made to appear as security for a smaller amount than that named in it, does not, as against subsequent purchasers and encumbrancers, impair its efficiency.* § 688. Effect of mistake where opposite view prevails. — Where it is held to be the duty of a grantee to see that his deed is properly spread upon the records, subsequent purchasers are charged with such notice only as they actually have or obtain from an inspection of the records. If, for instance, the recorder, by mistake, writes in the record the name of another person as the grantor in the deed in the place of the true grantor, the deed in Ohio is not considered duly recorded, and will not charge a subsequent purchaser with notice.' In the case cited, the recorder's mistake in recording the deed, consisted in recording the name of the grantor as Samuel Granger, when the name in the deed, and the true name, was LemMel Granger.* Where a mort- ^ Riggsv. Boylaii,4Biss.445. Saidtbecourt; "The duty of the recorder ■was to re-record the deed that was handed to him in 1839 with the added cer- tificates, and I think that the deed having been given to him to be recorded, and his duty being to record it, and he having recorded nothing but the certificates with a reference to the original, that the rights of the purchaser must be considered as having the shield of the law thrown upon them, and the deed did transfer the title." 2 Mims v. Mims, 35 Ala. 23 ; Dubose v. Young, 10 Ala. 365. See Musser V. Hyde, 2 Watts & 8. 314 ; Wood's Appeal, 82 Pa. St. 116 ; S. C. 16 Am. Law Reg. 255; Brooke's Appeal, 64 Pa. St. 127, and oases cited. 8 Jennings v. Wood, 20 Ohio, 261. * Jennings v. Wobd, supra. The court on this point said : " Did Jen- nings have notice of his title placed on record ? He did not. The deed put on record purported to be a deed from a different person. It is only by the names of the parties conveying that a claim of title can be traced. 717 KEGISTEATION OP DEEDS. § 689 gage is given as security for the payment of three thonsand dol- lars, but upon the record it appears by mistake to have been given for three hundred dollars, it is notice to subsequent purchasers only for the sum expressed in the registry.' Where a deed was executed for four tenths of an interest in land, but by mistake in the registration it appeared on the records to be for a fourteenth interest only, it was held that constructive notice was given of the conveyance of the land to the extent of one-fourteenth part only.^ It has also been decided that if a town clerk copies a deed deliv- ered to him for registration in a book in which no deeds had been recorded for upwards of twelve years, and for the purpose of cencealment and fraud, does not insert the names of the par- ties to the deed in the index, such a deed is not recorded, and it is held that no notice is given thereby to subsequent purchasers and attaching creditors.* § 689. Continued. — And if a deed for the east half of a lot is recorded as a deed of the west half, a subsequent purchaser of the east half, who has no notice that an error has been com- mitted in the registration of the deed, will under this view be Take the title in controversy as an illustration. If a person had gone to the record to ascertain the situation of this title ; if commencing at the source of titles, he had traced it down from grantee to grantee, until he should have found that the title had passed to Lemuel Granger, then all that he would have to do to ascertain whether the record showed any con- veyance from Lemuel Granger would be to examine the index to ascertain whether any conveyance had been made by Lemuel Granger ; if none such appeared, then the record would give notice of no such conveyance. It would give him notice, however, that the title wasstUl in Lemuel Granger. The reason that a party is chargeable with constructive notice, is that by an examination of the record, he'will have actual notice. The deed act- ually shown on record was by a person who had nothing to do with the title, and was to all intents and purposes, a different conveyance from the one by which Jenning's claims. But it is said that Jennings had a good deed, and that he had done all that it was necessary for him to do ; that the mistake was that of the recorder, and that he should not suffer for the default of the officer. It may be a hardship on Jennings, it no doubt is ; but here one of two innocent persons must suffer ; and whenever this is the case, the rule is that the misfortune must lie where it has fallen, it must rest on the person in whose business and under whose control it happened." ' Frost V. Beekman, 1 Johns. Ch. 288. ' Brydon v. Camplaell, 40 Md. 331, s Sawyer v. Adams, 8 Vt. 172 ; 30 Am. Dec. 459. § 690 BEGISTRATTOIT OP DEEDS. 718 fully protected.* So, -where a deed conveys one half of the grantor's indimdual right, title, and interest, into and to a certain piece of land, but by mistake of the recorder, it is registered as a conveyance of one half of the grantor's undivided right, subse- quent bonafde purchasers are charged with notice of the convey- ance of only the estate shown by the records.* Under the Wisconsin statute, a deed must be attested by two witnesses to entitle it to be recorded. It is held in that State that if an error is made in recording a conveyance at length, by omitting to copy the attestation, subsequent purchasers and mortgagees are not charged with constructive notice.* Under this view, where a mortgage covering the northwest quarter of a tract of land was made to appear in the record as a mortgage of the northeast quarter, it was held that a grantee in a subsequent deed of the northwest quarter was not afiected by the mortgage.* § 690. Destnictlon of record. — After a deed has been once properly recorded, the destruction of the book in which it is recorded does not affect the constructive notice afforded by the original record.* When a party has placed his deed upon record, he has complied with all the requirements of the law. After the record has been destroyed by fire, he is not compelled to record his deed a second time, or to do any other act to notify subse- • Sanger v. Craigue, 10 Vt. 555. ' Miller v. Bradford, 12 Iowa, 14. " Pringle v. Dnnn, 37 Wis. 449. It appeared in this ease, however, in a suit upon a mortgage defectively recorded in this respect, that one of the defendants at the time he purchased a part of the mortgaged premises "had heard-that there was a defective railroad mortgage upon them, hut did not look for it, because his abstract did not show it." The court held that under such circumstances, he must be deemed to have had actual notice of the mortgage. * White V. McGarry, 2 Flipp. C. C. 572. "> Steele v. Boone, 75 lU. 457; Armentrout v. Gibbons, 30 Gratt. 632; Gammon v. Hodges, 73 HI. 140 ; Heaton v. Frather, 84 HI. 330 ; Curyea v. Berry, 84 lU. 600 ; Myers v. Buchanan, 46 Miss. 397. In the last cited case the court said : "We have, however, no hesitation in affirming the general proposition propounded by the complainant, and hold the deed of trust in favor of Myers, in 1861, constructive notice to all the world, not- withstanding the disordered condition of the records in 1865. It would be monstrous to declare a lien, acquired by a duly recorded mortgage, lost by a subsequent partial or total destruction of the records. Such a rule would subject every lien in the State to the hazards of accidental fire, the caprice of incendiaries, and the casualties of war." 719 KEGISTEATION OF DEEDS. § 691 quent purchasers, in order to be protected in his rights under his deed.* "It is true," said Mr, Justice Craig, "a party who owns real estate in Cook County, may, if he thinks proper, in case the record of his title has been destroyed, again record his title papers ; yet he is under no legal obligation to incur that expense. It is no doubt true that a large number of deeds and other instru- ments of writing, relating to land in Cook County, which were recorded previous to the fire, have been lost or destroyed, and could not be produced. To hold, therefore, that the owner of property was required to again record the title papers, or be liable at any moment to lose the title, would be establishing a precedent of the most dangerous character. The result of the doctrine contended for by appellant would compel, in numerous instances, parties who owned real estate in Cook County to take immediate possession, or otherwise their titles would be at the mercy of subsequent purchasers."* § 691. Proof of deed where record destroyed. — Where the record has been destroyed and it becomes material to prove the exe- cution of the deed, it may be proved, in most instances, by the production of the deed itself, and hence little difficulty will gener- ally be experienced. But when the record has been destroyed and the deed lost, its execution must be proven like that of any other lost paper by secondary evidence. What evidence will suffice to prove this fact is a matter to be determined by the court or jury, and of course it is impossible to lay down a universal rule as to the amount of evidence that will be required to establish this fact. It has been decided, however, where a deed and its record had both been destroyed by fire, that its execution is sufficiently proven by the testimony of a clerk of an abstract firni, that the deed had been filed for record and that the day after its execu- tion he had inade a minute of it which he produced, and the testimony of a partner of the person claiming to be grantee that the deed was in his opinion executed in his office and was taken away for the purpose of acknowledgment. Such testimony will 1 Gammon ti. Hodges, 73 HI. 140. See Hyatt v. Cochran, 69 Ind. 436. ' See Gammon v. Hodges, supra. See, also, Shannon v. Hall, 72 111. 354 ; Alvis V. Morrison, 63 111. 181, §§ 692-693 BECnSTEATION OP DEEDS. 720 prevail against the posdtive denials of the grantors that they at any time had executed such a deed.* § 692. Index as part of the record — Comments. — The index is a very important aid to searchers in enabling them to ascertain whether a particular individual has conveyed his title. Without the assistance furnished by the index, it would be practically impossible for an ordinar}' person, with no peculiar means of information, to learn from the inspection of the records the con- dition of a title. The index is generally required by the regis- try laws to be kept as one of the official records. In connection with the question we have just discussed, the inquiry arises, is an index placed on the same footing as the record book itself, and what consequence, if any, results from a mistake in the index by which an innocent purchaser may be misled? On this question, we shall encounter to some extent the same conflict in the decisions, that we found existed on the question as to the person who should suffer for an error in the transcription of the original deed into the records. § 693. View that deed improperly indexed does not give con- structive notice. — In Pennsylvania, in one case, the court held that a conveyance not correctly indexed was not constructive notice." But as the case was decided on the ground that the subsequent purchaser had actual notice of the prior conveyance, it was unnecessary to pass upon this question. Mr. Chief Justice Woodward, however, remarked: "But it was not duly indexed, and not, therefore, constructive notice to third parties. As a guide to inquirers, the iudes is an indispensable part of the recording, and without it, the record affects no party with notice." ' In a later case in the same State this question inci- dentally arose, but the court did not decide it. The deed had been properly indexed in the separate index, but not in a general index, which the officer kept for convenience of searchers. The law did not require the recorder to keep a general index. The court held that as the deed was indexed in the particular index required by law to be kept, it was sufficient to give notice, but * Heaoook v. Lubuke, 107 HI. 89&. » Speer v. Evans, 47 Pa. St. 141. ' Speer v. Evans, supra. 721 EEGISTEATION OP DEEDS. § 694 observed: "Whether his title can be taken from him by the omission to enter his recorded and certified deed in the particular index, may admit of question, but we give no opinion on this point." * The view that a deed incorrectly indexed does not give notice is to some extent sanctioned in some other States.^ § 694. Decisions in Iowa on this question. — In Iowa, sev- eral decisions have been rendered on this question, base5 upon » Sohell V. Stein, 76 Pa. St. 398. Mr. Chief Justice Agnew delivered tlie opinion of the court, and said : "The question presented by tl^e record in this case is, whether a deed regularly acknowledged or proved, and recorded in the proper book, and indexed in the separate index appro- priated to the book, but not in the general index of all the deed books, is not defectively recorded. If it be, the conceded principle is that a deed defectively registered is a nullity as to subsequent purchasers or mortgagees. There is no law which requires the recorder to keep a general index to all the deed or mortgage books in his office. That it is a great convenience, and in the populous counties of the State has become a necessity, is evident, but it is the province of the legislature, and not of this court, to make this convenience or the necessity the subject of law. The registration of deeds is purely a system of legal institution, andnot of common right or abstract justice. At common law in England, therje was no system of registration, and the rule between claimants of ttie same title was found in the maxim, prior in tempore potior est in jure. lathis State the system has been one of growth. The original Act of 1715 did. not even require the record to be a book. The recorder was to provide parch- ment or good large books, and his certificate was to give the number of the book or rpU. No provision was made for indexing until the Act of 1827, which was applicable to other officers as well as that of the recorder. But so early as 1775, the law required a bond of the recorder with sufficient sureties, which was to be held for the use of ' parties that shall be indemni- fied or aggrieved' in the same manner as sheriff's bonds. Thedutyof searches is that of the officer, not of parties, and he must see to, it that no mistakes are made in searching. The Act of 1827 imposed no duty as to indexes, except to have one for each and every book. If gre^«r con- venience induces the recorder to keep a general index, to save the handling of different books, and he omits to index a deed in it, and thereby, over- looks a deed regularly recorded and duly indexed in the proper book, his certificate makes hun liable to the party who is injured by it. But surely the one who has had his deed duly acknowledged or proved, recorded, in the proper book, and certified under the hand and seal of the office of the recorder in due form, has done all the law requires of him. On what principle of law or sound reason shall he be required to supervise the officer's gratuitous indexing of deeds in an index not required by law ? He is not to be presumed to be familiar, and as a fact, nine out of ten persons are not familiar with the system of the office. All the citizen can be bound to know is the law, and he is warned by no law that there- must be kept a general index." " See Barney «. McCarty, 15 Iowa, 510 ; Whalley v. Small, 25 Iowa, 188. See, also, Handley w. Howe, 22 Me. 560 ; McLaren v. Thompson, 40 Me. 284. I. Deeds.— 46. § 694 EEGISTEATION OF DEEDS. 722 the statutes in force in that State. In one case^ the court said that an analysis of the statute showed that the recorder was required to perform the following acts with respect to all instru- ments required to be recorded: "1. File all deeds, etc., pre- sented to him for record, and note on the back of the same the hour and day they were presented for record." "2. Keep a fair book on which he shall immediately make an entry of every deed, giving date, parties, description of land, dating it on the day when it was filed in his office." " 3. Record all instru- ments in regular succession." "4. Make and keep a complete alphabetical index to each record book, showing page on which each instrument is recorded, with the names of the parties thereto." The opinion of the court was delivered by Mr. Justice Dillon, who said that reading this statute with the others on the same subject, the court was of the opinion that in order to constitute a compliance with their requirements, it was necessary that each of the following steps should be sub- stantially observed : "1. The instrument must be deposited or filed with the recorder for record. He thereupon notes the fact, and 'the hour and day,' on the back thereof, and the day on 'the fair book,' as it is styled, and retaias the instrument in his office. The instrument itself thus remaining on file in his office with the indorsement upon it, and the entries in the 'fair book,' which are required to be immediately made, constitute the notice until the instrument is actually extended upon the records. 2. The next step in the process is the recording, that is,, the copying of the instrument at large into the ' record book,' and noting in it the precise time when it was filed for record. The object of this noting is that the record may show on its face when the notice commences. 3. The third and final step is the index- ing of the instrument so recorded. The statute prescribes the requisites of the index. It shall be a complete alphabetical index to each record book, and shall give the names of the parties, and show the page where each instrument is recorded. The paging cannot, of course, be given until the deed is actually transcribed into the record book, and up to this time it remains on file. When recorded and indexed the deed may be with- 1 Barney «..McCarty, 15 Iowa, 510. 723 EEGISTRATION OP DEEDS. § 694 drawn, and the record takes its place, and constructively imparts notice to the world of its existence and contents." The justice then remarked : " Keeping in view alike the well-known objects and the enlightened policy on which the registry acts are based, as well as the language and requirements of the several statutes above cited, the court are of the opinion that all three of these steps are essential, integral parts of a complete, valid registra- tion." He then examined several cases cited by the counsel for the respective parties, and concluded the opinion by observing : " To hold that an index is not essentially part of a valid and complete registration in this State, would overlook the uniform practice of relying wholly upon it to find the names of the vari- ous owners in tracing titles, and would also ignore the funda- mental design of the recording acts, which is to give certainty and security to titles, by requiring all deeds and liens to be made matters of public record, and thus discoverable by all persons who are interested in ascertaining their existence, and who will examine the records in the mode which the law has pointed out." It was accordingly held that the omission to index a conveyance deprived the record of imparting construct- ive notice of its contents.' But where a conveyance was filed in the proper office, and entered of record on page "546" of the proper book, but the index entry, while showing the names of the grantor and grantee, and substantially the " nature of the instru- ment," and the book in which the record was made, stated the page of the record as " 596," it was held that the index was operative as constructive notice of the acts which would be dis- closed by an examination of the record.* In another case • Barney v, MoCarty, 15 Iowa, 510. ' Barney v. Little, 15 Iowa, 527. The court cited with approval the former case of Barney v. McCarty, 15 Iowa, 510, and said : " It is a pur- chaser's duty to examine the records. The law places this means at his disposal. It requires all matters affecting titles to appear of record. If he omits to examine, he is to impute the loss, if any, to his own indolence or folly : Astor v. WeUs, 4 Wheat. 466. Assuiaing the instrument to be one which may properly be registered, the law charges him with a knowledge of all facts which an ordinarily careful examination of the records would have made him cognizant of. Having thus settled the rule which is to be applied, the contt cannot avoid the conclusion that if the appellants, in the case under consideration, had made an ordinary, diligent, skillful, and careful examination of the records, the mortgage in question would have been discovered to them." § 695 EEGISTEATION OF DEEDS. 724 a deed had been filed for record, and had remained in the recorder's office from the time it was filed, but it had never been actually recorded or indexed. The court held that the mere filing was not sufficient to impart constructive notice.* The court decided this case on the authority of Barney v. McCarty, and said: "The only point of difference between the facts in that case and the one at bar is, that while the instrument there was copied upon the record, and taken from the recorder's office, here it was not copied, and remained in the office. The doc- trine of that case is clearly applicable to this. If the recording of an instrument duly filed is insufficient without an index thereof, certainly filing without either the index or the record- ing would under that decision fail to impart notice."^ A pur- chaser of a piece of land executed a mortgage back as security for the payment of the purchase money. But by mistake the land that was described was an entirely different tract. It was held that a subsequent purchaser was not charged with con- structive notice of the recitals in the deed, which might be suffi- cient to place him upon inquiry, when the index required by law to be kept did not contain such recitals.' But a description in the proper column in the index as " certain lots of land," the record being complete in other respects, was held sufficient to convey constructive notice to subsequent purchasers.* And it was also held that where the words "see record" were written in the column in which the description of the lands should have been placed, a subsequent purchaser was charged with notice.^ § 695. View tliat mistake in index has no effect upon record. — In Missouri, although the rule prevails that a deed does not impart constructive notice if a mistake has been made in the record,® yet it is established that this result does not follow from 1 Whalley v. Small, 25 Iowa, 184. ' WhaUey v. Small, supra. ' Sooles V. Wilsey, 11 Iowa, 261. * Bostwiok V. Powers, 12 Iowa, 456. s White V. Hampton, 13 Iowa, 259. For other cases in Iowa upon this question, see Calvin v. Bowman, 10 Iowa, 529 ; Noyes v. Horr, 13 Iowa, 570 ; Barney v. little, 15 Iowa, 527 ; Gwynn v. Turner, 18 Iowa, 1 ; Howe v, Thayer, 49 Iowa, 154. 6 Terrell v. Andrew County, 44 Mo. 809. 725 EEGISTEATION OP DEEDS.. § 695 a mistake or omission in the index.^ Wagner, J., referring to the registry act of that State, said : " The general nature, object, and scope of the whole act, taken together, is to point out the duty of the clerk, not only in the making of a proper record of con- veyances, but also in furnishing facilities for their discovery, examination, and use, by all persons interested in them; and to secure the due performance of these duties the clerk is made liable to the party injured for the neglect of them. The index, which it is the duty of the clerk to make out and preserve in a book for that purpose, seems to be one of the facilities to be used in making search for the record, but not a part of the record itself. It is his duty to have an index, and to enter upon it a proper reference to every record of a conveyance, and for any neglect to do so, he is liable to the party aggrieved for double the amount of damages sustained. But it is not certain that any one will be injured by the neglect, and therefore the record itself should not be held void. The purchaser may take his deed, relying solely upon the representations or covenants of his grantor, without desiring to examine the records. An index or the want of it will obviously be of no importance to him. So, if without making any search, or causing any to be made, a per- son should rely alone upon the representations of the clerk, that the title was clear, and these representations should be know- ingly false, could it with reasonable propriety and fairness be said that he was injured by want of an index? Yet in these cases, if the argument advanced be correct, though no one is injured by the failure of the clerk to perform his duty as to indexing, and though the purchaser has had his deed correctly transcribed and spread upon the record, stiU the recording should be held void. In my opinion, the proper office of the index is what its name imports — to point to the record — but that it forms and constitutes no part of the record. The statute states, without reserve or qualification, that when an instrument is filed with the recorder and transcribed on the record, it shall be considered as recorded from the time it was delivered. From that time forth it is constructive notice of what was actually copied. A subsequent section for the purpose of facilitating 1 Bishop V. Schneider, 46 Mo. 472. § 696 EEaiSTEAIION OF DEEDS. 726 resiearch, besides recording, devolves a separate, distinct, and independent duty upon the recorder, and in the event of a non- compliance with that duty the party injured has his redress. The purchaser or grantee, when he has delivered his deed and seen that it was correctly copied, has done all the law requires of him for his protection; and if any other person is injured by the fault of the recorder in not making the proper index, he must pursue his remedy against that officer for his injury."* In Georgia, the court considered that the index was intended for the convenience of the searcher. "If the clerk fails to do his duty, he injures those who desire to search. The duty is, there- fore, to the searcher and to the public, and not to the holder of the deed. And this ^has^ as we think, always been the under- standing of the law in this State."* The rule that generally prevails is that the index is not a part of the record, and that a grantee cannot suffer for any mistake in it.* § 696. Conunents. — In those States where a mistake in the record does not affect its power of imparting constructive notice, a mistake in the index cannot injure the grantee. In Iowa, the decisions are founded upon the express language of the statutes of that State. We think that whether the law requires an index to be kept or not, a grantee who has deposited his deed for record should not suffer for a mistake of the officer. As we have already said, we consider the true principle to be, unless the language of ^ In Bishop v. Schneider, 46 Mo. 472. = Chatham v. Bradford, 50 Ga. 327. ' Gilchrist v. Gough, 63 Ind. 576 ; Musgrove v. Bonser, 5 Or. 313 ; Board of Commissioners v. Babcocl;, 5 Or. 472 ; Green v. Carrington, 16 Ohio St. 54S ; Lincoln Building & Saving Ass'n v. Hass, 10 Neb. 581 ; Curtis v. Lyman, 24 Vt. 338 ; Mutual Life Ins. Co. v. Dake, 1 Abb. N. C. 381. In the latter case Mr. Justice Smith, after stating this rule, said : "In reaching this conclusion, I have not overlooked the practical inconveniences that may result from it in searching records. But the duty of the court is only to declare the law as the legislature has laid it down. Arguments ab in convenienti may sometimes throw light upon the construction of ambig- uous or doubtful words ; but where, as here, the language of the law makes it plain, they are out of place. Inconveniences in practice will result, whichever way the question shall be decided. The power to remedy them is in the legislature and not in the courts. Even as the law now stands, the party injured by the omission of the clerk is not without remedy, for he has his action against the clerk." As to what an index of records should contain, see Smith v. Boyalton', 53 Vt. 604. 727 EEGKTEATION OF DEEDS, § 697 the statute necessarily leads to a different conclusion, that the obligation of the grantee as to giving notice ceases when he has filed his deed for record. For any mistake made in the index or record by the officer, the grantee should not be held responsible, but the loss should fall upon the subsequent pur- chaser, who may have his remedy against the recording officer, for the negligent performance of an official duty. § 697. Liabililyof recording officer for error. — As it is the duty of the recording officer to duly index and record the deed, he is liable in damages to the party injured for a breach of this duty. The only- question that can arise is who is the party aggrieved? It would probably be held in those States where it is considered that a deed is not duly recorded unless properly copied upon the record book, that it would be the grantee, who by this view is the one sustaining the injury.-' But generally the claim to damages would accrue to the party who purchased upon the assurance that the records were correct.^ The statute of Missouri requires the recorder to keep an index, and declares that if he fails or refuses to provide and keep in his office an index of the character required, he shall pay to the aggrieved party double the damages caused thereby. But the court intimated that if a purchaser takes his deed, without attempting to examine the records, relying exclusively upon the representations or covenants of his grantor, or should rely solely upon the represen- tations of the officer that the title was perfect and free from encumbrances, it could not with reasonable propriety and fairness be said that such purchaser was injured by the want of an index.' In Indiana, where the view obtains that the record of a deed is notice of the existence and record of the deed, and not of the original instrument, a deed containing an agreement on the part of the grantee to assume and pay the sum of five hundred dollars as a part of the mortgage debt on the land conveyed, was by the recorder's mistake recorded in such a manner as to show the assumption, on the part of the grantee ' of only two hundred ' See Terrell v. Andrew County, 44 Mo. 309. ' Board of Commissioners v. Babcock, 5 Or. 472 ; Mutnal Life Ins, Co. v. Dake, 1 Abb. N. C. 381 ; Bishop v. Schneider, 46 Mo. 472. * Bishop V. Schneider, 46 Mo. 472, 479. §§ 698-699 EBGISTEATION OP DEEDS. 728 dollars of such mortgage debt. The recorder and his sureties •were held to be liable upon the officer's official bond for the damages which the grantor sustained by such mistake.^ § 698. CorrectioB of mistake in record. — The officer who has recorded a deed has the power to correct any mistake made in copying the deed into the record book.* But where the view prevails that subsequent purchasers are charged with notice of such facts only as the records disclose, the correction cannot affect the rights of a purchaser without notice of the mistake, who became such before the correction was made. Thus, where a grantee had his deed recorded, but by mistake the number and description of the lots conveyed were omitted in the record, and another person afterwards bought the same lots of the same grantor, and subsequently the record of the first grantee's deed was amended by interlineatidli of the description, it was held that the interlineation could impart notice only from the time it was made, and hence that the second grantee had no notice of the previous conveyance of the property.' But under the statute in California, providing for the filing in the office of the recorder a duplicate of a sheriff's certificate of sale, it was held where such duplicate was deposited by the sheriff with the recorder and marked as filed by the latter, but was recorded in a book of deeds as a deed, and regularly indexed as such, and afterwards placed in a file of recorded deeds, where it remained for a num- ber of years, that it imparted notice to subsequent purchasers.* § 699. Reformatioii of deed — Correcting record. — A court has not power to order the erasure of words from a deed, or to order the recorder to alter his record when he has correctly copied the deed. This is not the proper mode of reforming a deed. If words are inserted in a deed which the parties did not intend to insert, or if words are omitted which the parties intended to insert, the court should find that there was a mistake, and in what it consisted.* The usual and most appropriate method of correcting a deed, is for the court in its decree of reformation to I state V. Davis, 96 Ind. 639. » Chamberlain v. Bell, 7 Gal. 292 ; Baldwin v. Marshall, 2 Humph. 116. " Chamberlain v. Bell, 7 Cal. 292. See Barnard v. Campau, 29 Mich. 162. ' Page V. Rogers, 31 Cal. 293. Mr. Justice Shatter, however, dissented. 5 Toops V. Snyder, 47 Ind. 91. 729 REGISTRATION OF DEEDS. § 700 require the grantor to make a new deed in accordance with the decree. If, however, this course is inconvenient, a commissioner should be appointed to cany out the decree. When the new deed is recorded, a note should be made on the margin of the record of the first deed, stating the reformation and showing in what place upon the record the new deed can be found.* § 700. Copy of seal — A record is not vitiated by the omission to record the seal or to indicate in some manner that a seal was attached to the instrument.* "The object of registration of a deed is to give notice to the public of the fact that the title to the property has passed from the vendor, and thereby prevent others from dealing with him as the owner. The conveyance itself is required to be copied into the record, in order that parties may determine its suflSciency and the character of the estate con- veyed. To accomplish this end it is not necessary that the seal should be copied upon the book; it is enough it it appear from the record that the instrument copied is under seal." ' A certi- fied copy of a deed from the recorder's office contained in the margin of the certificate of acknowledgment taken before a notary, and in the place where a seal is usually affixed, the words " no seal," written in brackets in this manner : [No seal.] The con- cluding clause of the certificate was in the usual form: "In witness whereof, I have hereunto set my hand and affixed my official seal, the day and year first above written." The lower court refused to receive the copy of the ddcd in evidence, on the ground that the certificate did not contain the seal of the notary. But on appeal, the Supreme Court held that this ruling was error, and that the words " no seal " did not imply that no seal was affixed, but were a mere note by the recorder of the place of the notary's seal, which he was unable to copy.^ Under the > King V. Bales, 44 Ind. 219. ' Greary v. City of Kansas, 61 Mo. 373. » Smith V. Dall, 13 Cal. 510, per Terry, C. J. * Jones V. Martin, 16 Cal. 166. This case is cited in Geary v. City of Kansas, 61 Mo. 378, and the court say of it : " We think there was no error in this ruling." See, also, Hedden v. Overton, 4 Bibb, 406 ; Griffin v. Shef- field, 38 Miss. 359 ; 77 Am. Dec. 646 ; Sneed v. Ward, 5 Dana, 187 ; Ingoldsby t>. Juan, 12 Cal. 564. But see Switzer v. Knapps, 10 Iowa, 72, 74 Am. Deo. 375, where it is held that " where the record of a deed does not show a copy of the seal, as such copies are usually made in records, the presumption is that there was no seal in the original." § 701 EEGISTEATION OP DEEDS. 730 statute in Missouri, the registration of a mortgage, although no seal or scrawl is attached, nevertheless imparts notice. The regis- tration law in that State is considered as intending to embrace not only legal conveyances, but also every instrument in w?"iting affecting the legal or equitable title to land.* § 701. Filing deed wltb person in charge of o£Q[ce. — A person who causes his deed to be placed on file for record in the office provided for the registration of deeds, by depositing it with the person in charge of the office, and paying the legal fee, does all that the, law requires. It is not necessary that the deed should be delivered to the recorder or a regular deputy. It is sufficient that the deed was deposited with the person who has the actual control of the office, as the recording officer is responsible for the acts of one thus permitted to assume possession of the keys and papers of his office." The agent of a grantee was directed to take the deed to the recorder's office for record. This was done, and the deed was delivered to a person who was acting as recorder. The latter made the proper indorsements upon the deed, three days before the entry of .judgment against the grantor in the deed. It was held that the delivery to the person in charge of the office was sufficient and the deed was entitled to precedence over the judgment.* Mr. Justice Treat said of this delivery that "this was all a prudent man would deem neces- sary or advisable. No laches can be imputed to the grantees. They were not required to ascertain who was the recorder de jure. It was sufficient to ascertain who was in possession of the records and discharging the duties of the office." * » McCluTg V. PhlUips, 57 Mo. 214. = Dodge V. Protter, 18 Barb. 193, 202^ Cook v. HaU, 1 Gilm. (6 111.) 575 ; Oats V. Walls, 28 Ark. 244; Bishop v. Cook, 13 Barb. 326. SeeBosleyv. V. Forquar, 2 Blackf. 61, 63. ' Cook V. Hall, 1 GUm. (6 lU.) 575. ♦ Cook V. Hall, supra. In Bishop «. Cook, 13 Barb. 328, Welles J., with reference to a chattel mortgage which the statute declared should be void as against creditors, unless it or a true copy of it should be filed in the office of the town derk, said: "The filing consisted in presenting the mortgage at the office and leaving it there, and depositing it in the proper place with the papers in the office. This was done in the proper case, and was all the appellant under the circumstances could do, and all the law required of him. Although there was no town clerk de Jure, there was a town clerk's office and a town clerk de facto." 731 EEGISTEATION OF DEEDS. §§ 702-703 § 702. Gommeiits. — The reason for this rule is manifest. A person is not compelled to enter into an examination of the appointment of one acting as a deputy. He is not required to ascertain whether such person has taken the oath of office, filed a bond if necessary, or complied with other provisions of the statute. The officei' by placing him in charge becomes account- able for his acts. Even if the officer is not allowed by law to appoint a deputy, the punishment for a neglect to attend person- ally to the duties of his position should be against him, and should not be placed upon a person doing business with the office. Prac- tically, if the person in charge actually files the instrument and it is subsequently correctly copied into the record, no incon- venience can arise or damage be done. But a case may be imagined, though it does not seem to have arisen, or at least has not come within our observation, where the person in charge failed to record the instrument at all, and subsequent purchasers are thus misled. It would probably be held that in such an event the same rule should apply as would were such person the officer himself. § 703. Registration of deeds when State is in reheUion.^— Where a person is acting under a de facto government, if it is of paramount force in the county within which he performs the duties of his office, his official acts, notwithstanding that such government is unlawfiil and revolutionary, are valid and bind- ing, if not done for the purpose of assisting the war power of the unlawful government. • Hence, the registration of a deed by an officer, who continued to act as such after the State had passed an ordinance of secession, and while the county in which he exercised his functions was under the military power of the confederate government, is a valid recordation.* Chief Justice Waite, without attempting to give any exact definitions within which the acts of the government of a State in rebellion should be treated as valid or invalid, observed, upon the general subject : " It may be said, perhaps, with sufficient accuracy, that acts neces- sary to peace and good order among citizens, such, for example, as acts sanctioning and protecting marriage and the domestic ' Henning v. Fisher, 6 W. Va. 238. But see the earlier cases in that State of Brown v. Wylle, 2 W. Va. 502 ; Calf ee v. Burgess, 3 W. Va. 274. §§ 704-705 EEGISTEATION OP DEEDS. 732 relations, governing the course of descents, regulating the con- veyance and transfer of property, real and personal, and provid- ing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful govern- ment, must be regarded in general as valid when proceeding from an actual, though unlawful government; and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void."* § 704. Payment of fees. — An officer is not required to receive a deed, or to permit it to be filed in his office for regis- tration, until all fees he is authorized to collect have been paid. But if he sees proper to permit a deed to be deposited with him without the payment of the tax upon it, he must riecord it, and must look for the payment of the tax to the person for whom he records the deed. By receiving the deed for record without objection, it is presumed that he dispenses with the previous payment of the tax, and the person depositing the instrument has a right to assume that it will be duly recorded.^ A pro- vision y in a statute that "no deed shall be admitted to record until the tax is paid thereon," is merely directory. If the offi- cer records the deed without the payment of the tax, the record is not invalidated, but he assumes the tax.^ § 705. Proof of time at wMcli deed is recorded. — The certifi- cate of the recorder is generally regarded as conclusive proof of the time at which a deed is deposited for record. "It is the date of the reception and record, and not the order in which the entry is made, that is to be relied upon as giving notice of pri- ority. The record is the instrument of notice to subsequent purchasers of the state of the title; and to permit it in any manner to be affected by parol or extraneous evidence would not only destroy its value for that purpose, but would convert it into an instrument for deception. It would be dangerous to 1 In Texas v. White, 7 WaU. 700, 733. See, also, Harrisons v. Farmers' Bank of Virginia, 6 W. Va. 1 ; Griffin v. Cunningham, 20 Gratt. 31 ; Sherfy V. Argenbright, 1 Heisk. 128 ; Thorington v. Smith, 8 WaU. 1. ' Bussing V. Grain, 8 Mon. B. 593. » Lucas V. Clafflin, 76 Va. 269. 733 REGISTBATION OP DEEDS. §§ 706-707 the rights of all subsequent purchasers, and contrary to the established rules of evidence, to admit any of the testimony offered to explain or vary the record." ^ But the certificate is not conclusive of the fact that the instrument has been properly recorded, but only of the time of its receipt by the recording officer.* But when the register has failed to note the time at which it was received for record, such time may be proved by parol evidence.* § 706. Withdrawing deed filed for record. — If a deed is with- drawn from the office of the recorder before it is actually recorded, its priority is lost.* A person executed a mortgage and filed it for record the same day. He afterwards obtained possession of it before it was actually spread upon the records, and while it was out of the recorder's possession he sold the premises described in the mortgage. The purchaser had his deed recorded, and sub- sequently the mortgage was returned to the recorder's office. The court held that the deed was entitled to priority, if the pur- chaser had paid a valuable consideration.* § 707. Constractive notice. — But the purchaser may have sufficient information to put him upon inquiry and charge him with constructive notice. Thus, if a person when about to pur- ' Hatch V. Haakins, 17 Me. 391, 395, per Shepley, J. See, also. Puller v. Cunningham, 105 Mass. 442 ; Buboae v. Young, 10 Ala. 365 ; Tracy v. Jenka, 15 Pick. 465 ; Ames v. Phelpa, 18 Pick. 314 ; AVing v. HaU, 47 Vt. 182. But see Horsely v. Garth, 2 Gratt. 471, 44 Am. Deo. 393, where it was held that parol evidence is admissible to show when a deed was recorded. « Thorp V. Merrill, 21 Minn. 336 ; N. Y. Life Ins. Co. v. White, 17 N. Y. 469 Where the entry in the index book in the recorder's office shows upon its face that it was not made at the time at which it was received, the presumption as to the correctness of the certificate is destroyed : Hay v. Hill, 24 Wis. 235. » Metts V. Bright, 4 Dev. & B. 173 ; 32 Am. Deo. 683. ' Hickman v. Perrin, 6 Cold. 135. ' Kiser v. Houston, 38 HI. 252. Where a deed of trust is presented to the recorder and is indorsed, " filed for record, " and immediately afterwards and before any entry concerning it is made, is withdrawn for the purpose of having a government stamp placed upon it, and is not returned for a month or more afterwards, the first filing is not sufficient to give construc- tive notice of the existence of the deed : Worcester Nat. Bank v, Cheeney, 87 HI. 602. See, also, Glamorgan v. Lane, 9 Mo. 446. § 707 BEGISTEATION OF DEEDS. 734 chase a piece of property, is informed by the recorder that the vendor has already executed a deed of the same property to another person, which was filed for record, but was withdrawn before being recorded, this information is sufficient to put such intending purchaser upon inquiry.' To constitute notice of an adverse title to the property it is not essential that such informa- tion should be given by a person interested in the property.* ' Lawton v. Gordon, 37 Cal. 202. ' Lawton v. Gordon, supra. In that case Mr. Justice Rhodes, delivering the opinion of the coart, said : " The purchaser received definite and cer- tain information of the existence of Beed's deed, and this information was worthy of credit, for it came from one who had seen the deed and filed it tor record. Would anyreasonable man, who was contemplating the pur- chase of property, after having received that information, doubt as to his duty to pursue the inquiry, in order to ascertain the true condition of the title? He certainly would not hesitate, unless he was laboring under the mistake of law, that a recorded deed always took precedence of an unrecorded deed. The information itself being sufficient in all respects to put. the purchaser upon his inquiry, the only remaining question is, whether the information must come from a person interested in the prop- erty ? Upon this question the plaintiff cites Leading Cases in Equity, notes to Le Neve v. Le Neve, in which the writer says : ' And this rule has been stated so positively, and in such unqualified terms, under the sanction of names of great authority, as to lead to the Inference that notice cannot be binding unless it proceed from a person interested in the property and in the course of a treaty for its purchase.' The rule alluded to was, that the notice must be certain ; and the rule, it was said, applied emphatically to all statements which do not proceed directly from parties in interest or their agents. 'But this doctrine' he continues, 'must be understood as applying to notice in its limited sense, as distinguished from knowledge or such information as is substantially equivalent to knowledge. It is evi- dent that, if it be shown that the purchaser knew of the existence of an adverse claim or title, it cannot be necessary to prove notice, and that it must be immaterial whether his knowledge was obtained from the parties interested or from third persons. The true rule, therefore, with regard to the statements of strangers and of parties In interest, would seem to be that the general statement of the existence of an adverse title, to which no weight would be due when proceeding from a stranger, will be notice when coming from the party interested ; and not that distinct and positive infor- mation can be disregarded because the person who gives it has no interest in the property to which it relates. A purchaser cannot go on with safety to complete a purchase after learning the existence of a prior conveyance of the property by the vendor, from a person present as a witness, or even as a bystander, at the execution of the deed by which it was conveyed. And it can hardly be doubted that the same result will foUow from the statement of any fact within the knowledge of the pafty who stated it, which shows that the title purchased is subject to the legal or equitable claims of other persons,' " 735 EEGISTEATION OP DEEDS. §§ 708-709 § 708. Deposit subject to fortlier order. — If a conveyance is left with the recording officer with instructions not to record it until he is so directed, it should not be recorded until such directions are given. This may be illustrated by a case where a mortgage was given to the recorder with directions not to place it on record until he received further directions, and the record- er's clerk recorded it without such directions having been received. It was held that under these circumstances, the placing of the mortgage upon the record book, was not a registration which entitled it to priority over conveyances and encumbrances subse- quently filed for record. If such directions were received, the instrument should be recorded as of that time, and not as of the time when it was left with the recorder.^ And still more clear is the proposition that a deed left with the recorder with such instructions does not, before registration, afibrd constructive notice of its contents as though recorded.^ § 709. Priority between deeds recorded on the same day. — Generally, of two deeds, the one first filed for record is given the preference. Two deeds of trust embracing the same property were delivered to the recorder on the same day by the same per- son, one after the other, and they were recorded in the order in which they were delivered. It was held that where nothing appeared that one of the trust deeds was entitled to priority over the other as to the time for filing, the deed first recorded took precedence.' But where two deeds were so defectively acknowlr ^ Brigham v. Brown, 44 Mich. 59. » Haworfch v. Taylor, 108 m. 275. > Brookfield v. Goodrich, 32 HI. 363. Said Mr. Chief Justice Caton : " In the absence of proof to the contrary, the presumption is that the deeds were filed for record in the order in which they were handed to the recorder as the law made it his duty to do, and upon this presumption, the purchasers of the several classes of bonds secured by these deeds had a right to act. The trustee in these cases is not the true purchaser, and to be protected by the recording laws, but the purchasers of the bonds are the true purchasers. It was their right and their duty to examine the record of these deeds, and there they found that the deed securing the one thou- sand dollar bonds was first recorded, and by our recording laws was entitled to a preference, and upon this law they could securely repose in purchasing this class of bonds, knowing. that the law gave them a prefer- ence ; and so, too, the purchasers of the other bonds were in duty bound to examine the same record by which they were told that these bonds were secured by a second lien upon the premises, and that they must be § 710 EEGISTEATIOH OF DEEDS. 730 edged 'that neither was entitled to registration, it was held that the effect of a curative act passed subsequently was to record both deeds at the same instant of time, and hence left them to operate as at common law, by which the deed first executed would pass the title to the land described in it.^ It may be shown by parol evidence which of two mortgages, signed, acknowledged, and deposited for record on the same day, was first filed for record.^ § 710. Pacts of which the record gives notice. — When a con- veyance has been properly recorded, the record is constructive notice of its contents, and of all interests, legal and equitable, created by its terms.' A sold land to B, and executed a bond for a conveyance upon payment of the purchase money; in the same manner B sold a ijortion of the land to C, and subse- quently sold the residue at the same time, to two persons, giv- ing to each a bond for a title. Afterwards B obtained a deed for the whole tract from A, and for the purpose of securing a part of the purchase money, executed at the same time a mort- gage upon that portion of the premises which had been sold to one of the two persons purchasing last, such purchaser being postponed until all the bonds secured by the deed first recorded were all paid. If they took the assurance of the seller, that these bonds were secured by a first lien, that was their own foUy. To make good that assur- ance would be a fraud upon the purchasers of the first bonds, who had a right to rely upon the law and the record, which declare that they are entitled to a first lien." " Deininger v. MoConnel, 41 HI. 228. ' Spaulding v. Scanland, 6 Mon, B. 353. The court will take notice of the fractional parts of a day: Lemon v. Staats, 1 Cowen, 592; Boone v, TeUes, 2 Bradw. (lU.) 539. ' Grandin v. Anderson, 15 Ohio St. 286 ; Humphreys v. Newman, 51 Me. 40 ; Bancroft v. Consen, IS Allen, 50 ; George v. Kent, 7 Allen, 16 ; Oi-vis V. Newell, 17 Conn. 97 ; BoUes v. Chauncey, 8 Conn. 389 ; Clabaugh v. Byerly, 7 GiU, 354 ; 48 Am. Dec. 575 j Bush v. Golden, 17 Conn. 594 ; Thom- son V. Wilcox, 7 Lans. 376 ; Peters v. Goodrich, 3 Conn. 146 ; Harrison v. Caohelln, 23 Mo. 117; Kyle v. Thompson, 11 Ohio St. 616; Buchanan v. International Bank, 78 111. 500; Souder v. Morrow, 33 Pa. St. 83; Hetiher- ington V. Clark, 30 Pa. St. 393 ; Barbour v. Nichols, 3 R. 1. 187 ; Youngs v. Wilson, 27 N. Y. 351 ; Dimon v. Dunn, 15 N. Y. 498 ; Ogden v. Walters, 12 Kan. 282 ; Dennis v. Burtritt, 6 Cal. 670 ; Mesick v. Sunderland, 6 Cal. 297 ; McCabe v. Grey, 20 Cal. 509; Montefiore v. Browne, 7 H. L. Cas. 341; Parkest v. Alexander, 1 Johns. Ch. 394 ; Leach v. Beattie, 33 Vt. 195. And see Johnson v. Stagg, 2 Johns. 510 ; Doyle v. Stevens, 4 Mich. 87 ; Tripe v. Marcy, 39 N. H. 439; Leiby v. Wolf, 10 Ohio, 83. 737 EEGISTEATION OP DEEDS. ,§ 710 then indebted on his purchase in an amount exceeding the mort- gage debt. The mortgage was duly recorded, and the pur- chasers of the unencumbered portions of the land paid the several amounts due by them, and received deeds froiii B, and several years afterwards the purchaser of the mortgaged premises who had no actual notice of the mortgage, paid the sum remain- ing due upon his agreement, and received also a deed from B. A suit was brought to foreclose the mortgage, and the court held that the grantee of the mortgaged premises held the same in subjection to the full encumbrance of the mortgage, and that there was no vendor's lien which would render any other por- tion of the land liable to contribute to the discharge of the debt secured by the mortgage.* Where the whole of a lot of land is subject to a mortgage, one who takes a subsequent mort- gage, with notice of a prior unrecorded deed of warranty of an adjoining portion of the same lot from the mortgagor to a third person, cannot enforce contribution from the latter towards redeeming the mortgage; and a direct reference in the mortgage to such third person as owning the adjoining land is equivalent to notice.^ A purchaser received a deed for the undivided one half of a church and lot, "together with all and singular the rights, liberties, privileges, hereditaments, and appurtenances thereunto belonging, in as full and ample a manner, and with all the same rights and conditions, authorities and agreements, with which Hugh Bellas, and Esther, his wife [the vendors], now hold the said premises as regards all or any assemblies for divine worship." Subsequently the vendee purchased the other half of the premises from the same vendor. It was held in an action of covenant to recover the purchase money, in which the vendee claimed there was a defect of title, that the first deed gave legal notice of a valid subsisting right in an assembly for divine worship.' If the conveyances under which a grantee holds refer to previous deeds containing restrictions as to the use of the property, and those deeds are recorded, he will, although he may not have express notice of these restrictions, be deemed, in law to have such notice, and will be boimd in the 1 Grandin v. Anderson, 15 Ohio St, 286, * George v, Kent, 7 Allen, 16. 8 Bellas V, Lloyd, 2 Watts, 401, I. Deeds.— 47. ;§ .710 KEGISTBATION OF DEEDS. 738 same manned as though the restrictions were contained in the (deed made to liim,* * Gilbert v. Peteler, 88 Barb. 488. The facts of the case cited pertinent to this point are thus stated by the court : " The premises to which this controversy relates consists of two parcels ; one, the westerly portion, designated in the report of the referees the hotel plat ; the other, or east- erly part, designated the Bartlett plat. There is no question of the ability of the plaintiff to convey a good title to the former of these. The two par- cels were contracted to be sold together, however, and as one piece of land. They are not distinguished in the contract, but Gilbert agrees to sell and convey to Peteler, lands in New Brighton lying between certain streets, and including all these premises. The plaintiff's title to the whole prop- erty is derived from one Fox. Fox obtained his title by two conveyances. One was from a person named Davis, dated October 14, 1846, of the hotel plat. This was an absolute deed, and' conveyed a perfect and unqualified title. This Davis was originally the owner of the whole, and his title was absolute in fee. But 6n the 14th of September, 1846, before his deed to Fox, Davis had conveyed what was afterwards known as the Bartlett plat to Edwin Bartlett. The deed from Davis to Bartlett was absolute, like the other, and contained no restriction. But it appears that Bartlett took this title at the request of one John C. Green, who was the owner of certain adjoining premises which he desired to protect. Green advanced the purchase money, and Bartlett held the title for him, and subject to his direction, although there was no written evidence of the arrangement. On the 30th of October, 1846, Bartlett, at Green's request, and by his direc- tion, conveyed the strip of which he thus held the title to Fox, who was already by Davis' deed the owner of the residue. This deed of Bartlett contained a provision in the form of a covenajit by the party of the second part (Fox), his heirs, executors, administrators, and assigns, to and with Bartlett, his heirs and assigns, not to erect or permit to be erected at any time thereafter, on any part of the premises, any building whereby the view or prospect of the bay from the dwelling-house of John 0. Green could be obstructed or impaired, unless Green should first destroy his own prospect by building on his own lot. The deed added a clause of forfeit- ure in favor of Green in the event of a breach of this covenant. It was not signed or executed by Fox. Fox afterwards conveyed to Theodosins O. Fowler, subject to this cpvenant, and to an express stipulation by Fowler to observe It. Fowler conveyed to Victor Forgeaud, subject to the same covenant and stipulation, Forgeaud obtained also a release and quit claim of title from Green, but with a olanse preserving the restriction as to building, etc. At or about this time there was erected a stone cottage upon the Bartlett lot, and Green afterwards, by a deed recit- ing that he was the person for whose benefit the restriction was imposed, released Forgeaud from the restriction as to the land occupied by this cot- tage, but with a proviso that this should not remove the restriction or impair his rights as to the residue of the premises. After this Forgeaud conveyed to August Belmont, by a deed containing an express covenant on the part of Belmont to abide by the restrictions in the deed to Forgeaud ; this latter deed, however, like the others, not being signed by the grantee. Belmont conveyed to Vanderbilt by a deed In similar terms. From Van- 739 REGISTRATION OP DEEDS. §§ 711-712 § 711. Notice of tmrecorded deed from notice of power of sale. — Where a trust deed or a mortgage with a power of sale is recorded, subsequent purchasers are compelled to inquire if any sale has been made under the power. If a sale has been made by virtue of the power, although the deed has not been recorded, a subsequent purchaser from the mortgagor does not acquire the estate. The equity of redemption is cut off by the sale, notwith- standing the deed may not be recorded.* "The recording of the* trust deed gave notice of its existence to subsequent claimants of the equity of redemption, and pointed out the source of informa- tion of what might be done in pursuance of the deed, and they were bound to take notice of the proceedings thereunder."^ Where the provisions of a mortgage or trust deed require for their execution that the trustees should have an estate in fee- simple, and such mortgage or trust deed has been recorded in full, the record, though words of inheritance have been inad- vertently omitted from the instrument, is notice that it was intended to pass the fee.' § 712. Record is not notice to prior parties. — The rule to be deduced from the authorities, is that only those whose duty it is to search for a deed are charged with notice by its record. The expression is frequently used that the record of a deed is a con- structive notice "to all the world." But Mr. Justice Sharswood very justly says that this assertion is " too broad and unqualified an enunciation of the doctrine. It is constructive notice only to those who are bound to search for it; thus subsequent purchasers derbilt the title passed to the plaintiff by various mesne conveyances, none of which contained any express covenant or restriction, but all of which referred to the deed from VanderbUt to his next grantee, which latter deed referred to the deed from Belmont to Vauderbllt, which contained the restriction." The court accordingly held that plaintiff must be charged with notice of such restriction and Its consequences. See, also, White V. Foster, 102 Mass. 375 ; Jacques v. Short, 20 Barb. 269 ; Acer v. Westcott, 46 N. Y. 384 ; Hamilton v. Nntt, 34 Conn. 501 ; Sigourney v. Munn, 7 Conn. 324 ; Baker v. Mather, 25 Mich. 51 ; Cambridge Valley Bank v. Delano, 48 N. Y. 326 ; Anderson v. Layton, 3 Bush, 87. And see Bazemore v. Davis, 55 Ga. 504 ; Bell v. Twilight, 18 N. H. 159 ; 45 Am. Deo. 367. 1 Heaton v. Prather, 84 111. 330. » Farrar v. Payne, 73 111. 82, 88, per Sheldon, J. » Randolph v. N. J. West Line R. R. Co. 28 N. J. Eq. (1 Stewt.) 49. § 712 REGISTRATION OP DEEDS. 740 and mortgagees, and perhaps all others who deal with or on the credit of the title, in the line of which the recorded deed belongs. But strangers to the title are in no way affected by it." ^ Hence a purchaser at a sheriff's sale, who does not claim under a deed made between third persons, is not affected with notice by the registration of such deed.^ "If conveyances from one stranger to another would be notice to all the world, miserable would be the situation of the purchaser. The registering act would afford him no protection because it would give him no notice." ' If a mortgage of land is executed and a right of way is reserved in a deed of the same land made subsequently, the right is held sub- ject to the title of the mortgagee. It is destroyed by a sale under the mortgage.* " The whole object of the recording acts is to protect subsequent purchasers and encumbrancers against pre- vious deeds, mortgages, etc., which are not recorded, and to •deprive the holder of the prior unregistered conveyance or mort- gage of the right which his priority would have given him at the common law. The recording of a deed or mortgage, therefore, is constructive notice only to those who have subsequently acquired some interest or right in the property under the grantor or mort- gagor."® The actual possession of land by a purchaser holding a bond for a deed, is notice to all of his rights. The recording of a subsequent deed or mortgage affords no notice whatever to .such prior purchaser. If he has no actual notice of a subsequent i Maul V. Rider, 59 Pa. St. 167, 171. 2 Keller v. Nutz, 5 Serg. & R. 245. ' Duncan, J., in Keller v. Nutz, supra, * King V. McCuUy, 38 ta. St. 76 5 Chancellor Walworth in Stuy^esant v. Hall, 2 Barb. Ch. 151, 158. See, talso, James v. Brown, 11 Mich. 25 ; Straight v. Harris, 14 Wis. 509 ; Deuster V. McCamus, 14 Wis. 307 ; Birnie v. Main, 29 Ark. 591 ; Kyle v. Thompson, 11 Ohio St. 616 ; Howard Ins. Co. v. Halsey, 8 N. Y. 271 ; 59 Am. Dee. 478 ; Doolittle V. Cook, 75 111. 354 ; Hoy v. Bramhall, 19 N. J. Eq. 563 ; HiU v, JHcCarter, 27 N. J. Eq. 41 ; Blair v. Ward, 2 Stookt. Ch. 126; Halstead v. Bank of Kentucky, 4 Marsh. J. J. 558 ; Dennis v. Burritt, 6 Cal. 670 ; Taylor V. Maris, 5 Kawle, 51 ; Iglehart v. Crane, 42 111. 261 ; George v. Wood, 9 Allen, 80; Ward's Ex'r v. Hague, 25 N, J.,Eq. 397; McjCabe v. Grey, 20 Cal. 509 i Leiby v. Wolf, 10 Ohio, 83 ; Cooper v. Bigly, 13 Mich. 463 ; King V. MoViokar, 3 Sand. 392 ; Westbrook v. Gleason, 14 Hun, 245 ; Truscott v. King, 6 Barb. 346 ; Raynor v. Wilson, 6 Hill, 469 ; Van Orden t>. Johnson, 14 N. J. Eq. 376 ; Wheelwright v. De Peyster, 4 Edw. Ch. 232 ; 8 Am. Deo. 845 ; Tarbell v. West, 86 N. Y. 280 ; Stuyvesant v. Hone, 1 Sand. Ch. 419. 741 EEGISTEATION OP DEEDS. § 713 coiiveyance, he may -without incurring any liability to a subser quent vendee or mortgagee, make the payment agreed upon to his vendor.* § 713. Record is notice only to pnretasers raider same grantor. — Courts, frequently, in cases where it is not necessary that they should speak with precision of what persons are embraced under the category of subsequent purchasers, declare in somewhat com- prehensive ternis that subsequent purchasers are bound by all the information they might obtain from an examination of the records. But the subsequent purchasers of whom the law speaks are jihose claiming title imder the same grantor, and it is to these only that the record is constructive notice.^ If a purchaser of land actually knows that another person has a prior deed for the same land, this mere fact is- not sufficient to put him upon inquiry as to the title of the grantor of such prior purchaser. When he has , no other information, the subsequent purchaser may rely on the presumption that the title of the prior pur- chaser, whatever it may be, is on record, as the law requires it should be, and may act on the assumption that such prior pur- chaser has no title if the records disclose none.® Hence, where > Doolitfle V. Cook, 75 lU. 854. ' Greorge v. Wood, 9 Allen, 80 ; Calder v. Chapman, 52 Pa. St. 359 ; Long V. DoUarhide, 24 Cal. 218 ; Hager v. Spect, 52 Cal. 579 ; Kerfoot v. Oronin, 105 lU. 609 ; Baker v. GrifQn, 50 Miss. 158 ; Wood v. Farmere, 7 Watts, 382 ; Losey v. Simpson, 3 Stockt. Oh. 246 ; Odle v. Odle, 73 Mo. 289 ; Tilton v. Hunter, 24 Me. 29; Brook v. Headen, 13 Ala. 370; Blake v. Graham, 6 Ohio St. 580 ; 67 Am. Deo. 360 ; Lightner v. Mooney, 10 Watts, 407 ; Bates V. Noroross, 14 Pick. 224 ; Embury v. Conner, 2,Saudf. 98 ; Keller v. Nutz, 5 Serg. & B. 246 ; Murray v. Ballou, 1 Johns. Ch. 566 ; Hetherington v. Clark, 30 Pa. St. (6 Casey) 393 ; Crockett v. Maguire, 10 Mo. 34 ; Stuyvesant v. Hall, 2 Barb. Ch. 151 ; Hoy v. BramhaU, 19 N. J. Eq. (4 Green, C. E.) 563 ; Iglehart v. Crane, 42 111. 261 ; Leiby v. Wolf, 10 Ohio, 80 ; Blake v. Graham, 6 Ohio St. 580 ; Whittington v. Wright, 9 Ga. 23 ; Dolin v. Gardner, 15 Ala. 758 ; Farmers' etc. Co. v. Maltby, 8 Paige, 361 ; Cook v. Travis, 20 N. Y. 402 ; Page V. Waring, 76 N. Y. 463 ; Roberts v. Bourne, 23 Me. 165 ; 39 Am. Dec. 614. ' St. John V. Conger, 40 111. 537. Mr. Justice Lawrence, who delivered the opinion of the court, said : "It is also urged that the subsequent deed from Sehenok to Whittemore should have put the defendant, and those under whom he claims, upon inquiry as to whatever title Schenck had. This proposition in effect is, that if a person has made a deed of a tract of land having no recorded title, he must, nevertheless, be supposed to have had some title, and subsequent purchasers must take notice of whatever § 714 EEGISTEATION OF DEEDS. 742 a person has no right to the land, the registry of a deed made and acknowledged by him, is not constructive notice of its exe- cution to the true owner. " It is only notice to after purchasers under the same grantor. To hold the proprietors of land to take notice of the record of deeds, to determine whether some stranger has without right made conveyance of their lands, would be a most dangerous doctrine, and cannot be sustained with any color of reason or authority."* The grantee in an unrecorded deed placed on record a deed of trust from himself to a third person, reciting that it was made for the purpose of securing two notes to his grantor. After the registration of the trust deed the grantor in the unrecorded deed conveyed to innocent purchasers for value, and it was held that as the trust deed was not in the chain of their title, the recording of it was not notice to them.^ In thie absence of fraud or actual notice, a grantee is not affected with notice of a deed fraudulently executed and recorded by a married woman under her maiden name.' § 714. Illustrations. — Accmveyedto B two tracts of landby an absolute deed, taking a portion of the consideration in money and the balance in the notes of the purchaser. Subsequently B sold and conveyed one of these tracts to C, by a deed which was likewise absolute. But in this latter transfer no money was paid, B taking the notes of C, who had notice that B was still indebted to A. A year afterwards, B, with the consent and approval of C, executed a trust deed which embraced both these trusts, to secure title he had. Much as registry laws have been frittered away by the doctrine of putting parties upon inquiry, we do not think any court has ever gone to the extent of adopting this rule ; it would substantially defeat the object of the registry laws. TUeir object is to provide a public record,' which shall furnish, to all persons interested, authentic information as to titles to real estate, and enable them to act on the information thus acquired. This iTile would require a person purchasing from one who has the title on record, to take, subject to the unrecorded deeds of persons claiming under a chain of title having no connection of record with the true source of title. If such purchaser is to be held to notice of such a chain of title at all, he has the right to presume, in the absence of any other information, that whatever title the persons claiming under such chain have, is on record, as the law requires it to be, and that they have no title if the record shows none." ^ Bates V. Noroross, 14 Pick. 224, 231. ' Kerfoot v. Cronin, 105 111. 609. " Draude v. Rohrer Christian Manuf. Co. 9 Mo. App. 249. 743 EEGI8TRATION OF DEEDS. § 714 to A the amount of the purchase money remaining due him. Although C had agreed to join in this deed of trust, as a matter of fact, he did not do so. After the execution of the trust deed, C sold and conveyed the one tract he had purchased to D. The latter made no search in the recorder's office and had no actual knowledge of the trust deed, and it was held that he was a bona jvde purchaser, unaffected by the trust deed. "The rule upon this state of facts, " said the court, " is understood to be, that the purchaser of the legal title is not bound to take notice of a registered lien or encumbrance of an estate, created by any person other than those through whom he is compelled to deraign his title."* A purchaser from A, a trustee, is not charged with notice of the trust from the fact that B executed a deed to C, reciting the execution of a declaration of trust on the part of A.* Nor is the registration of a deed between third per- sons, notice to a purchaser at an execution sale who does not claim under such deed.* Following out the principle that a pur- chaser of land is not charged with constructive notice of any fact which is not connected with the course of his title, it is held that he is not presumed to know of the registry of a will containing a devise of the land which he claims by a superior title.* It is said that a judgment debtor, who retains possession of land sold under execution against him, may be presumed to hold under the title of the purchaser at the sale. But in a case where a judgment debtor remained in possession for a long period of time, claiming that he was holding as the life tenant of a pur- chaser under a senior judgment, the deed to whom had never been filed for record, it was held that his possession could not be considered as constructive notice to a subsequent mortgagee, under Jhe junior judgment of such asserted title, or of the title of the one, who, he claimed, was his lessor.* Where a subsequent purchaser has no actual knowledge of prior equities, he is not charged with constructive notice of such equities because they are expressed in the recitals of an unauthorized deed duly 1 Baker v. Griffin, 50 Miss. 158, 163. See, also, Harper v. Hopkins, 34 Hiss. 472. 2 Murrry v. BaUou, 1 Johns. Ch. 566. » Keller v. Nntz, 5 Serg. & R. 245. * Woods V. Farmere, 7 Watts, 382. s Cook V. Travis, 20 N. Y. 400. §. 715 EEGIST3ATI0N OF DEEDS. 744 recorded, from the executors of an individtial through whose heirs the subsequent purchaser derives his title.' § 715. Record of deeds sabseqaent to mortgage not notice to mortgagee. — It results from the principle we have just stated that after the registration of a mortgage, the mortgagee is not charged with notice of deeds or mortgages subsequently made by the mortgagor.^ " The effect of recording a mortgage or other conveyance is not retrospective, or its object to affect rights already vested and secured, and a mortgagee, after having his deed recorded, is not required to search the record from time to time to see whether other encumbrances have been put upon the land with which he is in no wise concerned.'" Where there are two mortgages, the court may prevent the first mortgagee, in case he has released lands primarily liable for his claim to the prejudice of the second mortgagee, whose lien extends to only part of the lands affected by the first mortgage, from enforcing his mortgage upon the land included in both mortgages, until he makes a deduction of the value of the land released from this debt. But this action will not be takeii unless the first mort- gagee has knowingly prejudiced the rights of the other. He is not liable to these consequences if he releases without notice, and 1 Blako V. Grraham, 6 Ohio St. 580. The court said that this rule rested on the reason, "that a searcher can be fairly supposed to be made sicquainted with the contents of such deeds only as, in the proce&s of trac- ing, link by link, his chain of title on the record, necessarily pass under his inspection. ' Iglehart v. Crane, 42 111. 261 ; King v. MeVickar, 3 Sand. Ch. 192 • Birnie u. Main, 29 Ark. 591; Cooper v. Bigly, 13 Mich. 463; Heaton v. Prather, 84 111. 330 ; James v. Brown, 11 Mich. 25 ; Stuyvesant v. Hone, 1 Sand. Ch. 419 ; George v. Wood, 9 Allen, 80 ; Deaster v. McCamus, 14 Wis. 307; Howard Ins. Co. v. Halsey, 8 N. Y. 271; Straight v. Harris, 14 Wis. 509 ; Doolittle v. Cook, 75 111. 354 ; Westbrook v. GHeason, 14 Hun, 245 ; Van Orden v. Johnson, 14 N. J. Eq. 376 ; Halstead v. Bank of Ken- tuelcy, 4 Marsh. J. J. 555 ; Wheelwright v. lie Peyster, 4 Edw. Ch. 232 ; 3 Am. Dec. 345 ; Truscott v. King, 6 Barb. 346 ; Blair v. Ward, 10 N. J. Eq. (2 Btockt. Ch.) 119; Talmage v. WUgers, 4 Edw. Ch. 239, n; Hoy v. Bram- haU, 19 N. J. Eq. 563 ; Taylor v. Maris, 5 Rawie, 51 ; Leiby v. Wolf, 10 Ohio, 83 ; Hill v. McCarter, 27 N. J. Eq. 41 ; Raynor v. Wilson, 6 Hill, 469; Patty V. Pease, 8 Paige, 277 ; 35 Am. Dec. 683 ; Kipp v. Merselis, 30 N. J. Eq. 99 ; Meacham v. Steele, 93 111. 135 ; Cogswell v. Stout, 32 N. J. Eq. 240 ; Guiou V. Knapp, 6 Paige, 35 ; 29 Am. Dec. 741 ; Brown v. Simons. 44 N. H. 475. 8 Birnie v. Main, 29 Aak. 591, 595, per Harrison, J. 745 EEGISTEATION OP DEEDS. § 716 the record is not notice for this purpose.* "The law requires every man so to deal with his own as not unnecessarily to injure another. He may sell his property to whom he pleases, without consulting his neighbor, or inquiring how it may affect his interests. And if he take a mortgage of A to-day, he may to-morrow or next week release a part or the whole of the mort- gaged premises, on the request of the mortgagor, without troub- ling himself to inquire whether in the mean time some one has not taken a subsequent mortgage, and if so, whether it would be agreeable to such person that he should release. It is the duty of a subsequent mortgagee,, if he intends to claim any rights through the first mortgage, or that may affect the rights of the mortgagee under it, to give the holder thereof notice of his mortgage, that the first mortgagee may act with liis own under- standingly. If he does not, and the first mortgagee does with his mortgage what it was lawful for him to do before the second mortgage was given, without knowledge of its existence, the injury is the result of the second mortgagee's negligence in not giving notice. While the law requires every man to deal witli his own so as not to injure another, it imposes a greater obliga- tion on the other to take care of his own property than on 3. stranger to take care of it for him. And to make it the duty of the first mortgagee to inquire before he acts, lest he may injure some one, would reverse this rule, and make it his duty to do for the second mortgagee what the latter should do for himself. To affect the conscience, therefore, of the first mortgagee — for this whole doctrine is one of equity jurisprudence, and not of positive law — it would seem that he should have actual knowl- edge of the second mortgage. We do not say notice from the second mortgagee is absolutely necessary to enable him to claim the rights of which we have been speaking; but we do think that the existence of the second mortgage should clearly be brought home to the knowledge of the first mortgagee, in such a way as to show an intentional disregard by him of the interests of the subsequent mortgagee."* § 716. Subsequent purchaser should notify mortgagee. — If subsequent purchasers or lien-holders desire to obtain any equity 1 Blair v. Ward, 19 N. J. Eq. (2 Stockt. Ch.) 119. James v. Brown, 11 Mich. 25, 80, per Manning, J. § 717 EEGISTEATION OP DEEDS. 746 which they may compel a prior mortgagee to respect, they must give him actual notice of their claims.* Hence, when a whole lot of land is covered by a prior mortgage, the fectthat a builder has possession of one part of it for the erection of a building, and is actually engaged in its construction, is not sufficient to charge the mortgagee with notice that the builder has a lien, and does not place on the mortgagee the obligation of inquiring as to the existence of the lien, or invest the builder with the equitable right to ask for a reduction of the mortgage debt in proportion to the value of other lots released from the operation of the mortgage.^ But it was held in Michigan, that where the land mortgaged was situated on one of the main streets of the village in which the mortgagee resided, and a purchaser of a part of the land had promptly placed his deed on record, and went into actual possession of the premises and made improvements to them as a place of residence, the knowledge of these facts on the part of the mortgagee was sufficient to put him upon inquiry before releasing from the operation of the lien of the mortgage other parts of the whole tract.' § 717. Actaal notice. — If the deed ofthe purchaser is recorded and the mortgagee is notified by letter of the sale and the name of the buyer, he cannot release any part of the land to the preju- dice of such purchaser.* A mortgagee has a right to presume, when he has no express notice of anything to put him upon inquiry, that the condition of affiiirs is the same as when his mortgage was executed, and that the mortgagor is still the owner; and mere possession by itself alone, without the mortgagee's knowledge of who has possession or knowledge of any facts to excite inquiry, does not amount to notice.* But if he has actual notice of a subsequent deed, a release of a part of the mortgaged premises to the prejudice of the grantee, will have the effect of discharging his lien to theextent of the value of the land removed from the operation of the mortgage.* ' Cheever v. Fair, 5 Cal. 337 ; MoIlTain v. Mutual Assurance Co. 93 Pa. St. 30. * Mollvaln v. Mutual Assurance Co. 93 Pa. St. 30. ' Dewey v. Ingersoll, 42 Mich. 17. * Hall V. Edwards, 43 Mich. 473. 6 Cogswell V. Stout, 82 N. J. Eq. 240. « Cogswell V, Stout, supra. See Gilbert v. Haire, 43 Mich. 283. 747 EEGISTRATIOII OP DEEDS. § 718 § 718. Notice of mirecorded deed. — If succeeding deeds con- tain proper recitals, a party may be charged with constructive notice of prior unrecorded deeds. But if a grantee in an unre- corded deed conveys the land described therein to a party, and the latter to another, and neither of the two deeds last executed contains any reference to the unrecorded deed, the record of these latter deeds gives no notice of the unrecorded deed.^ And in this connection it may be observed that a purchaser is not charged with notice that there exists an adverse unrecorded deed of the land purchased by him, from the mere fact that before the purchase, in an interview with his grantor, he was informed by him that he was not able to make a good title, but would be in a short time.^ Both parties claimed title from a common . source. One claimed under a deed to A, which was first executed, but was not recorded until after the record of a deed to B, under whom the other party claimed. It was held that it was imma- terial that the deed from A was recorded before the deed to B. If the latter deed had acquired priority by reason of its pre- cedence on the record, no valid title against it could be obtained from A. It was also held to be immaterial that A's deed was recorded prior to a deed from B or from the latter's grantee, for if the latter is protected by the recording laws, so are all claiming under him.* When a person has notice of an ' The City of Chicago v. Witt, 75 lU. 211, ' The City of Chicago y. Witt, supra. ' Page V. Waring, 76 N. Y. 463. See, also, Roberta v. Bourne, 23 Me. 165; Felton v. Pitman, 14 Ga. 536; Calder v. Chapman, 52 Pa. St. 359; Fenno v. Sayre, 3 Ala. 458; Harris v. Arnold, 1 R. I. 125; Lightner v. Mooney, 10 Watts, 407 ; Cook v. Travis, 22 Barb. 338. "An open and con- tinued possession of land by a person having an unrecorded deed, and claiming the land as his own, is not presumptive notice of the existence of such a deed, to a subsequent purchaser. If a deed could be presumed from possession, it would not be necessary to record it. Possession, though evidence of some title, is not necessarily evidence of any paHicra- lar title, but should put the party on inquiry; and the intent of the registry act is to protect purchasers from secret or concealed conveyances, by requiring every deed to be recorded, on the peril of forfeiture of the estate." Harris v. Arnold, supra. In Felton v. Pitman, supra, the court say: "Mr. Pitman is about to purchase lot No. 374, in Sumter County, of Allen Marshall, who informs him that he derived title from Mrs. Jane Carlisle, the only heir at law of Benjamin Carlisle, deceased, and also from the estate. of said deceased. How could the registration of deeds from Sullivan to Marshall, and from §§ 719-721 BEGISTEATION OP DEEDS. 748 unrecorded deed he is considered as having notice also of its contents.^ § 719. Unrecorded deed, and recorded pnrcliase money mort- gage. — If a person sells a piece of land executing a deed there- for, and the grantee makes a mortgage back, the deed being unrecorded, the registration of the mortgage is not notice of the existence of the unrecorded deed.^ § 720. Comments. — In such a case, the title upon the records would appear to be in the grantor, and if a third person should execute a mortgage to him, its record could not of itself alone give any notice that the mortgagor had title under a prior unre- corded deed. It is possible, however, that if it could be shown that.a subsequent purchaser had actual knowledge of this mort- gage, aside from the presumption of constructive notice from the fact of its registration, he might be deemed to have information of sufficient facts to put him upon inquiry, and might be charged with notice if he failed to prosecute it. But this is extremely doubtful. § 721. Subsequently acquired title innring to benefit of grantee to prejudice of purchaser. — If a person, who has no title at the time, conveys or mortgages a piece of land to another with war- ranty, any title he may subsequently acquire will inure to the benefit of the grantee or mortgagee, and in some States, this rule prevails by force of statute, even in the absence of an express warranty in the instrument itself. It is held that this principle Marshall to Eusliin, put Mr. Pitman upon inquiry as to the ownership ot this land? He searches the records alphabetically to see whether the Carlisles, husband or wife, his original grantors, have conveyed. He finds no deed passing out of them. What is there upon the books to direct his attention or inquiry to deeds, executed by other persons having no connection with the Carlisles ? We look to the index for the names of the grantor and grantee, and not to the body of the deed, to see what property they convey. Such a rule as this would devolve upon every citizen for his safety and security, to search the books in the clerk's office, almost as diligently as his Bible, to see what property was passing from hand to hand, throughout the entire community. It would be practically to convert him into that most odious of characters, a busybody into other people's matters." 1 Hill V. Murray, 58 Vt. 177. 2 Veazie v, Parker, 23 Me. 170 ; Pierce v. Taylor, 23 Me. 246, 749 EEaiSTRlTION OF DEEDS. § 721 applies to a case -where the grantor procures title and at the same time conveys or mortgages the premises to another. The title thus acquired inures to the benefit of the first grantee under the deed made prior to the acquisition of title.' A person purchased a piece of land and put his son into possession, who forged a deed of the land from his father to himself and placed it upon recoid. Subsequently the son, for the purpose of securing a loan, executed a mortgage with covenants of warranty. Some years afterwards the father made a deed to his son, and this was placed upon record. Afterwards the son conveyed the land to another, who purchased it for a full consideration without notice of the mortgage. It was held by a majority of the court that the record of the mortgage was constructive notice to such sub- sequent purchaser, and under the recording laws was entitled to priority over his title.^ Commissioner Earl, who spoke for the majority of the court, said : "It is a principle of law, not now open to doubt, that ordinarily, if one who has no title to lauds, nevertheless makes a deed of conveyance with warranty, and afterward himself purchases and receives the title, the same will vest immediately in his grantee, who holds his deed with warranty as against such grantor by estoppel. In such case the estoppel is held to bind the land, and to create an estate and interest in it. The grantor in such case, being at the same time the warrantor of the title, which he has assumed the right to convey, will not, in a court of justice, be heard to set up a title in himself against his own prior grant ; he will not be heard to say that he had not the title at the date of the conveyance, or that it did not pass to his grantee in virtue of his deed.' And the doctrine, as will be seen by these authorities, is equally well settled that the estoppel binds not only the parties, but all privies in estate, privies in blood, and privies in law; and in such case, the title is treated 1 Jarvis v. Aikens, 25 Vt. 635 ; Wark v. waiard, 13 N. H. 389; Teffi v. Munson, 57 N. Y. 97 ; Doyle v. Peerless etc. Co. 44 Barb. 239 ; Pike v. Gal- vin, 29 Me. 183 ; Kimball v. Blaisdell, 5 N. H. 533 ; 22 Am. Dec. 476 ; Somea V. Skinner, 3 Pick. 52 ; Framers' L. & T. Co. v. Maltby, 8 Paige, 361 ; Salis- bury Savings Society v. Catting, 50 Conn. 113. » Teflft V. Munson, 57 N. T . 97. " Citing Wark v. Willard, 13 N. H. 389 ; Kimball v. Blaisdell, 5 N. H. 583 ; Somes v. Skinner, 3 Pick. 52 ; The Bank of Utica v. Mesereau, 3 Barb, Ch. 528, 567 ; Jackson v. Bull, 1 Johns. Cas. 81, 90 ; White v. Fatten, 24 Pick. 324 ; Pike v. Galvin, 29 Me. 183. § 721 JtEGISTEATION OF DEBpS. 750 as having been previously vested in the grantorj and as having passed immediately upon the execution of his deed, by way of estoppel Assuming it to be the rule that the record of a conveyance made by one having no title is ordinarily a nullity, and constructive notice to no one, the plaintiff can- not avail himself of this rule, as he is estopped from denying that the mortgagor had the title at the date of the mort- gage." But Commissioner Reynolds, with whom concurred Chief Commissioner Lott, dissented from these views, and said : "The forged deed was, of course, a nullity, and could not in the eye of the law have any effect by way of constructive notice or otherwise. It conveyed nothing, and was not a 'conveyance' within the meaning of the recording acts, and did not affect the title to the land 'in law or in equity.' It may be assumed-, therefore, that the loan commissioners took the mortgage know- ing that Martin B. Perkins had no title, it being very clear that they acquired no legal rights by being imposed upon, against any one save Martin B. Perkins. They got no interest in the land, either in law or equity. It is not in principle unlike the case of a forged negotiable promissory note, -where a 6ono fde holder for value can have no protection. It follows, therefore, that the entry of the mortgage in the books of the loan office at the time it was made was of no legal consequence whatever, except as against the mortgagor. It was no notice under the recording acts, for it did not in the remotest degree affect the title to the land described in it It is urged that there was no neces- sity of making any further record of the mortgage, because the title in the mortgagees comes under the warranty by way of rebutter or estoppel. This will not do. It is sufficient to say, that by virtue of the transactions under which the defendants look to enforce the lien of the mortgage, the title to the land is affected, and such a paper must be properly put on record to bind subsequent purchasers in good faith. If this be not so, it is impossible to see how a subsequent bona fide purchaser can have any protection, and when it is said to be impossible to record the estoppel which gave the mortgage vitality, it may be answered, that until the estoppel became operative, the mortgage was a nullity, and the record of it no notice whatever. When, how- ever, Martin B. Perkins obtained the title to the premises, it 751 EEGHSTBATION OF DEEDS. § 722 became by some operation of law valid against him, but it was of no greater force or effect, than if he had on that day given it to the loan commissioners. It then for the first time affected the title to the land, and in order to bind subsequent purchasers, in good faith, must be duly recorded, and this was not done in any such way as to operate as constructive notice under the record- ing acts. It is not questioned, but that the plaintiff is to be pro- tected as a bona fde purchaser, for value, unless the mortgage given in 1850, and then entered in proper order in the books of the loan office, which, at the time, did not affect the title to the land in any way, was constructive notice of the lien. It is well settled that a conveyance that is not duly recorded according to law, even when the actual title has passed, is not effectual as constructive notice. Much less can it be, that a conveyance which does not affect the title, can give any legal notice what- ever. In the very best aspect of the defendant's case, the record of the mortgage was made out of the order required by law, and failed to give notice to anybody dealing with the title to the land. In this view the deed of the plaintiff was first recorded, and he is entitled to protection in his title." ' § 722. Comments. — Of course, the legal principle that an after-acquired title of the grantor, when there is an express or implied covenant of warranty, inures to the benefit of the grantee, cannot be disputed. This rule is founded on the principle of estoppel, and it cannot be contended that such estoppel does not bind privies as well as the grantor himself. But it does seem that some way should be provided for giving notice of this after- acquired title by the record. The theory of our registration laws is that the records disclose all interests and claims affecting title to real estate. It is against their policy to allow claims to be set up founded on facts or transactions of which the records give no information. And it is essential to the security of land titles and to their marketable value, that the community should know that they may deal with perfect confidence on the assump- tion that the title is such as the records show it to be. A person taking a chain of title and following it down until he finds the title in a certain person, may generally act on the belief that such > Tefft V. Munson, 57 N. Y. 101. § 723 KEGISTEATION OP DEEDS. 752 person is the owner of the title. But in the case we have been considering in the previous section, he cannot always safely do this. Suppose that A is the owner of a piece of land, and B has no title whatever to it, but nevertheless conveys it by deed with covenant of warranty to C, who has his deed recorded. A person searching the records would find the title in A, and if A conveyed his title to B, he would find that A's title had passed to B, and would naturally conclude that B was the owner, if he found no subsequent conveyances from B. But if B had pre- viously conveyed the land to C, with covenant of warranty as we have supposed, his title would by the doctrine of estoppel inure at once to the benefit of C. ' If B, after acquiring the title, should convey to D, the latter would obtain no title, because his grantor had none to convey, whatever he had having passed to C. There is no escape from this conclusion. Yet it must be appar- ent that a person who relied upon the records alone for the chain of title would be misled. It certainly is desirable that some method should be provided of having the record show all the rights of the parties. This might be partially attained in the case under consideration, by giving the grantee under the prior deed a specified time after knowledge of the acquisition of title by the grantor in which to re-record his deed. § 723. How far back purchaser must search. — In ordinary practice, a person who relies upon his own examination of the records will feel perfectly satisfied with the grantor's title, if he finds that title vested in him at a particular date, and nothing occurring subsequently to affect it. Such purchaser will not generally search the records to ascertain if anterior to the acqui- sition of title, the grantor had not made some transfer of it. The interesting question presents itself of how far back it is the duty of an intending purchaser to search for conveyances from his grantor. May he act on the assumption that no conveyances have been made by the grantor previously to the time that he obtained title, or is he compelled to search beyond this period? The authorities do not afford a positive and unanimous answer to this question. On one hand, the rule announced by the Supreme Court of Missouri is that a purchaser must at his risk inquire into the condition of the record title of his grantor, and will be 753 REGISTRATION OP DEEDS. § 723 charged with constructive notice of all conveyances made by him affecting the title, which have been duly recorded. The court applied this rule in a case where a person having a bond for a deed sold and assigned it to another, who in turn conveyed it to a third person, whom we will designate as A. The second holder of the bond, however, conveyed in trust all his right, title, and interest in the premises to secure a portion of money due to his immediate grantor before he conveyed his interests to A, the third party. This deed of trust was duly recorded prior to the purchase by A. The latter paid the amount due upon the bond to the original grantor and obtained a deed. A sale was had upder the trust deed, and the premises were purchased by a per- son whom we will designate as .B. The controversy was between A and B. B, the purchaser at the trustee's sale, tendered to A the amount paid by him to the original grantor with the accrued interest, and asked that A might be divested of title, and the same be vested in him. The court held that although at the time the deed of trust was made, the grantor therein had vested in himself no title, still subsequent purchasers were charged with constructive notice from the fact that it was recorded, and said of A that if he had "searched the records as a prudent man should, he must have acquired actual knowledge of the deed and its con- tents, as shown by the record. If he neglected this reasonable pre- cautionary search, the consequences of that neglect he must bear. It would be unjust to visit them upon an innocent third party. "^ ' Bigman v. McCoUum, 47 Mo. 372, 377. Currier, J., delivered the opinion of the court and remarked : " The deed was on record, and the defendant, according to the plaintiff's view, must be presumed to have searched the records and come to a knowledge of the contents of the deed. The defend- ant is sought to be afiCected with constructive notice from the fact that the instrument was duly recorded. The general rule on this subject undoubt- edly is, that a purchaser must at bis own perU inquire into the state of the grantor's title, since be will be affected with constructive notice of all duly recorded conveyances by his grantor affecting that title. I am aware of no exception to this rule, although it has repeatedly been decided that a pur- chaser is not affected with constructive notice of anything that does not lie within the course of the title with which he is dealing, or that is not in some way connected with it; or as Judge Scott expressed it in Crockett v. Maguire, 10 Mo. 34, the 'registry of a deed is only evidence of notice to after purchasers from the same grantor ; ' that is, from the grantor in the registered deed. In the case now before the court, Williams, the grantor in the recorded deed of trust, was the defendant's vendor, a,s respects the I. Deeds.— 48. § 724 KEGISTEATION OF DEEDS. 754 § 724. Correct rule. — On the other hand, it is held that a purchaser is not charged with constructive notice of deeds made by his grantor before he, acquired title. This rule, we believe, is sustained by the weight of authority, and may be declared to be the general principle supported by the decided cases.* One having an unrecorded contract for the purchase of a tract of land executed a mortgage, which was placed on record. The mortgagor subsequently acquired the title by deed from his vendor, and then sold the premises to another, who had his deed duly recorded. It was held that the registration of the mort- gage having occurred before the records disclosed title in the mortgagor j was not constructive notice to the second grantee who purchased the property after the title had been transferred to his grantor." equitable title to tlie premises in contest. That title passed from him to the defendant in virtue of the transaction between them ; that is, by the sale, receipt of the purchase money, and delivery of the bond. Had Wil- liams pas!3ed the titie by deed, he would have been the defendant's tech- nical grantor as well as vendor. But the form of the conveyance does not affect the substance of the transaction. Williams had an interest in the property to convey. He still held the equitable title, subject to theencum- branee.s, tor the deed of trust had not then been foreclosed. That title he passed to and vested in the defendant. Is he not to be regarded as the grantor of that interest ? As between Williams and the defendant, they were dealing with the equitable title and nothing else. As respected the recorded condition of that title, was it not as much the business of the pur- chaser to search the record as though he had been negotiating for the legal title ? Where is the difference in principle If the defendant searched the record of deeds with common prudence and care, he must have found the deed of trust under which the plaintiff claims, and thus come to a knowledge of its contents. It is no objection to this view that Williams had vested in himseH no title of record. That happens more or less frequently in regard to legal as well as equitable estates. Titles are acquired as well by adverse possession as by deed. So, a party may hold a title in fee under an unrecorded deed. If a party has in fact a title, whether of record or not, he may encumber it, and that may be shown by the record. Prudent men will make the proper search preliminary to their purchases. The law presumes that they do so, and courts, as has already been remarked, act upon that presumption. This is the undisputed doc- trine in relation to legal titles, and we are furnished with no decided case, dictum, or reason, against applying the rule to equitable as well as legal titles and interests." ' Farmers' Loan and Trust Co. v. Maltby, 8 Paige, 361 ; Losey v. Simp- son, 3 Stookt. Ch. 246 ; Calder v. Chapman, 52 Pa. St. 359 ; Page v. Waring, 76 N. Y. 463 ; Buckingham v. Hanna, 2 Ohio St. 551 ; Doswell v. Buchanan, 3 Leigh, 365 ; 23 Am. Dec. 280 ; Hetzel v. Barber, 69 N. Y. 1. ' Farmers' Loan and Trust Co. v. Maltby, 8 Paige, N. Y. 361.