of Columbia. In Kentucky, it is to be stated that she "consented the same might be recorded."2 In Nevada, it is required to be stated that "she does not wish to retract the execution of the same." The same form is required in Rhode Island, Texas, Virginia, and West Virginia.1 In Grove v. Zumbro, it was held that the omission in the certificate to state that she did not wish to retract what she had done, was a fatal defect. But, in Illinois, it has been decided that the words "does not wish to retract" do not properly constitute any part of the acknowledgment; they are inserted in the statute to afford a married woman an opportunity to avoid a deed conveying her interest, which she has voluntarily executed, if, at the time the officer takes the acknowledgment, she desires to retract what she has done. This decision, it appears to me, holds too liberal a construction of the statute, and would not, it is believed, be accepted as authority elsewhere. The present statute of Illinois does not require these words. § 47. Effect of the certificate against the wife. The certificate complying with the requirements of the law will conclude the wife, in the absence of fraud, imposition, or combination.7 In Louden v. Blythe, there was a very elaborate examination of this subject, and in the decision it is said: "A regard to the policy of the law for the security of titles and the protection of the rights of property which are passed by conveyances 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 evidence, 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, 1 Rev. Stat. Sec. 451. 2 Gen. Stat. 1873, p. 276. 4 See forms in Appendix. 514 Gratt. 501. So in Bartlett v. Fleming, 3 W. Va. 163. See Allen v. Shortridge, 1 Duvall, 34. 6 Hughes v. Lane, 11 Ill. 123. 7 Hartley v. Frosh, 6 Tex. 208; Hays v. Hays, 5 Rich. S. C. 31; Michener v. Cavender, 38 Penn. St. 334; Central Bank v. Copeland, 18 Md. 305. 8 16 Penn. St. 532. 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 ac knowledgment by the wife whose property was to be divested. Where the grantee has knowledge of facts to put him on that inquiry, if silent and inactive on the subject, it is at his peril, and he must abide the "1 consequences. But the failure of the husband to disclose to his wife the character of a mortgage which she executed at his request, and in entire ignorance of its contents, the grantee not being present, and having no reason to suspect imposition, does not constitute such fraud as will enable her to contradict, by parol, the certificate of acknowledgment.2 So a married woman cannot impeach for invalid acknowledgment in the hands of a bona fide grantee.3 § 48. Liability of notary for invalid acknowledgment. -Notaries are required to give bonds, in a majority of our States, for the true and faithful discharge of their official duties. The question will arise as to the nature and extent of this guarantee, and as to what particular acts or omissions it provides against. Does it assure one against the unskillfulness or the incapacity of the notary in the discharge of his official acts, or does it merely assure against his negligence? There can be. no question whatever that it does give a guarantee against his negligence; for it could hardly be maintained he discharges his duties faithfully when he is guilty of negligence in his official acts; but it is quite a different question whether he can be held liable, on his official bond, for incapacity or mistake, when he acts in good faith to the best of his ability. There is no doubt, if he assumes to act in a given case as one possessing the requisite ability or skill, he can be held as any other agent for any loss by reason of his incapacity, but then it can hardly be said he is guilty of unfaithfulness. For instance, suppose, in taking 1 See, to the same point, Schrader v. Decker, 9 Penn. St. 14. 2 Baldwin v. Snowden, 11 Ohio St. 203. 3 Kerr v. Russell, 69 Ill. 666. See, for a further examination of this question, the chapter on "Notarial Acts as Evidence." 4 See, for a further examination of this liability, Sec. 134, on negligence in reference to negotiable paper. an acknowledgment, he has put before him, as is frequently the case, a form of a certificate drawn by the attorney of one of the parties, and that he duly attests it with his signature and official seal, and that afterward it turns out the certificate is invalid for some omission or informality, and loss is sustained thereby. Is he liable on his official bond for the damages thus occasioned? We think this would depend on the nature of the omission, as whether he omitted to certify to a fact to which he must certify as having personal cognizance. It would hardly be fair to hold the notary to any stricter liability, for he is not to be considered a lawyer who warrants his skill and capacity unless he assumes to do so. A case in California1 illustrates the position laid down above, and, perhaps, holds the notary to a stricter liability than would be the case elsewhere; but it was based on the statute, which provided: "For any misconduct or neglect of duty, in any of the cases in which any notary public, appointed under the authority of this State, is authorized to act," etc., "he shall be liable on his official bond to the parties injured thereby for all damages sustained."2 In this case, the notary, Finlay, took the acknowledgment of a mortgagor, and omitted to state in his certificate, as the statute required, that the party acknowledging was known to him, or was identified by the testimony of a witness examined for that purpose. The certificate was partly filled up by a person who acted as attorney for both the mortgagor and mortgagee, but space was left for this requisite. The mortgage thus recorded was held insufficient to give notice to a subsequent incumbrancer, and the result was that the party lost the security of his debt, as the mortgagor was insolvent. The notary was held liable on his official bond for the amount of the debt and interest. In giving the decision the Court said: "The neglect is not excused by the fact that the certificate had been partially filled by the attorney for the grantee. The certificate, upon its face, is unfinished; the date and the name of the grantor had been inserted, leaving it for the notary to insert his knowledge, or the 1 Fogarty v. Finlay, 10 Cal. 239. 2 The present Political Code, Sec. 801, has substantially the same provision. It provides: "For the official misconduct or neglect of a notary public, he and the sureties on his official bond are liable to the parties injured thereby for all the damages sustained." evidence received of the identity of the party making the acknowledgment. If the notary read the certificate before signing it, this omission must have been known to him; if he did not, he is equally guilty of negligence, for an officer who affixes his official signature and seal to a document (thereby giving to it the character of evidence) without examining it to find whether the facts certified are true, can scarcely be said to faithfully perform his duty according to law." § 49. Statutory provisions in reference to acknowledgments.—The following is a synopsis of the statutory pro visions of the various States in reference to the execution and acknowledgments of conveyances: ALABAMA.-Execution-By grantor, and attested by one witness. If the grantor be unable to write, then by two witnesses, who must write their names. Acknowledgment dispenses with witnesses. (Code, Secs. 1535, 1536.) Acknowledgment-Within the State may be made before judges of the Supreme and Circuit Courts, and their clerks, chancellors, registers in chancery, judges of the Court of Probate, justices of the peace, and notaries public. (Code, Sec. 1545. See form of acknowledgment in Appendix.) Married women-Conveyances of a wife's property, made in writing by husband and wife jointly, and acknowledged before some officer authorized to take acknowledgments of conveyances, are as valid and adequate to pass the wife's estate as if the same were attested by two witnesses. (Code, Sec. 1552.) Dower-No private examination required to relinquish. ARKANSAS.-Execution-In the presence of two disinterested witnesses, or, in default thereof, shall be acknowledged by the grantor in the presence of two such witnesses, who shall affix their names and dates of signing. Acknowledgment—When acknowledged or proved in the State, before the Supreme Court, the Circuit Court, or either of the judges thereof, or the clerk of any Court of Record, or before any justice of the peace or notary public. (Gantt's Dig. Secs. 840-1.) Married womenTo have private examination. (See form in Appendix.) CALIFORNIA. - Execution-Witnesses not necessary, but usual. Acknowledgment-Within the State, before a judge or a clerk of a Court of Record, a mayor or recorder of a city, a Court commissioner, a county recorder, a notary public, or a justice of the peace. (Civil Code, Sec. 1181.) Married woman-Must be made acquainted by the officer with the contents of the instrument, on an examination without the hearing of her husband; and must thereupon acknowledge to the officer that she executed the instrument, and that she does not wish to retract such execution. (Civil Code, Sec. 1186. For form, see Appendix.) COLORADO.-Execution-No witnesses required. Acknowl edgment-Within the State, before any justice of the Supreme or District Courts, before a clerk of the same or his deputy, probate judge of any county, such clerks or probate judge to certify by seal; before the clerk and recorder of any county, before any notary public, he certifying the same by his notarial seal. (Rev. Stat. p. 108.) Married women-Separate examination required for, and officer to make known contents of instru ment. CONNECTICUT.-Execution-By grantor in presence of two witnesses, who must sign as such. (Rev. Stat. 1875, p. 352.) Acknowledgment-May be made in the State before a judge of a Court of Record in this State, or of the United States, justice of the peace, commissioner of the school fund, commissioner of the Superior Court, notary public, either with or without his official seal, town clerk or assistant town clerk. In any other State or Territory, by a commissioner appointed by the governor of the State, and residing therein, or any other officer authorized to take the acknowledgment of deeds in such State or Territory. In a foreign country, by any consul of the United States, or notary public, or justice of the peace. Married women -No private acknowledgment required. Dower exists, but only in the real estate of which the husband is owner at his death (p. 377). DELAWARE.-Execution-Witnesses may attest, but are not necessary. Acknowledgment-May be made in any county in the Superior Court, or before the chancellor, or any judge, or notary public, or before two justices of the peace for the same county. Such deed may also be acknowledged in the said Superior Court by attorney by virtue of a power contained in NOTARIES-4. т |