person from or by whom a freehold estate or interest passes in or by any deed," authorize a husband, before issue born, to acknowledge his wife's deed of her separate real estate. Hayden v. Peirce, 165 Mass. 359 (43 N. E. Rep. 119).

Sec. 17. Who may take acknowledgments. The acknowledgment of a deed from a third person conveying land to a married woman as her separate estate may be taken by her husband. Nixon v. Post, 13 Wash. St. 181 (43 Pac. Rep. 23). Following the case of Horbach v. Tyrrell, 48 Neb. 514 (67 N. W. Rep. 485; 37 L. R. A. 434), it is held by a divided court that an attorney who is a notary public, is not disqualified from taking an acknowledgment of a mortgage made to his client merely because he holds for collection the claim secured by such mortgage, it not appearing that the attorney had any beneficial interest in having the mortgage made, nor that the amount of his compensation in any manner depended upon such mortgage being made. Havemeyer v. Dahn, 48 Neb. 536 (67 N. W. Rep. 489; 58 Am. St. Rep. 706; 33 L. R. A. 332). See opinions in both of these cases for exhaustive collation and review of conflicting authorities. It is held that the acknowledgment of a deed of assignment for the benefit of creditors may be taken by one who is a beneficiary thereunder. Reed Fertilizer Co. v. Thomas, 97 Tenn. 478 (37 S. W. Rep. 220). Construing and applying Ala. Code, § 795, cl. 6, it is held that the clerk of the probate court has no power to take acknowledgments in his own name. Pioneer Sav. & L. Co. v. Barclay, 108 Ala. 155 (19 So. Rep. 308). The acknowledgment of a deed cannot be taken by one interested in the transaction. Greenlee v. Smith, 4 Kan. App. 733 (46 Pac. Rep. 543). North Carolina Code, §§ 632, 640 applied-power of clerks of courts of record to take acknowledgments. Barcello v. Hapgood, 118 N. C. 712 (24 S. E. Rep. 124). Under Mill & V. Tenn. Code, § 2852, a notary public has no jurisdiction to take an acknowledgment outside of his county. Bostic v. Haynie

Tenn. (36 S. W. Rep. 856). For collation of conflicting authorities as to whether an officer taking an acknowledgment acts judicially or ministerially, see Horbach v. Terrell, 48 Neb. 514 (67 N. W. Rep. 485; 37 L. R. A. 434);

Cooper v. Hamilton Perpetual Bldg & L. Ass'n, 97 Tenn. 285 (37 S. W. Rep. 12; 33 L. R. A. 338; 56 Am. St. Rep.

795).

Sec. 18. Who may take acknowledgment of instruments executed to corporation. An acknowledgment of a mortgage executed to a corporation taken by an officer thereof is not necessarily invalid where it does not appear that the officer was a stockholder in such corporation; and there is no presumption that the officers of a corporation are stockholders therein. Florida Sav. Bank & Real Est. Exc. v. Rivers, 36 Fla. 575 (18 So. Rep. 850). Substantially the same is held by a divided court in the case of Hornbach v. Tyrell, 48 Neb. 514 (67 N. W. Rep. 485; 37 L. R. A. 434). In Tennessee it is held that an acknowledgment of a deed of trust to a corporation, taken by a stockholder and director of such corporation does not render the instrument invalid, in the absence of any improper conduct, bad faith, or undue influence arising out of his relation to the corporation. Cooper v. Hamilton Perpetual Bldg. & L. Ass'n., 97 Tenn. 285 (37 S. W. Rep. 12; 33 L. R. A. 338; 56 Am. St. Rep. 795). A trustee named in a deed of trust given to secure debts cannot take the acknowledgment of such deed; but it is held that a corporator of a charitable corporation is not disqualified from taking the acknowledgment of a deed given to secure a debt due such corporation, although he received a small fee per diem while attending to the business of such corporation. Nicholson v. Gloucester Charity School, 93 Va. 101 (24 S. E. Rep. 899).

Sec. 19. Form and sufficiency of the certificate. An erroneous statement in a certificate of acknowledgment made by a notary public, of the name of the county in which he is commissioned to act and in which the acknowledgment was taken, does not affect the validity of the deed between the parties thereto. Roberts v. Robinson, 49 Neb. 717 (68 N. W. Rep. 1035; 59 Am. St. Rep. 567). Under a statute (Pa. Act May 28, 1715, § 3) requiring the certificate to state 'the day and year when the same was made and by whom,” an instrument will not be held invalid because of the omission

of the day from the certificate, it clearly appearing from the instrument that it was dated, executed and recorded on the same day. In re Dahlem's Estate, 175 Pa. 454 (34 Atl. Rep. 807; 52 Am. St. Rep. 848). The acknowledgment of a deed, for a corporation, can only be made by some officer or representative who has authority to execute it for the corporation; and the certificate thereof must either follow the form prescribed by the statute, or, if some other form is used, it must appear prima facie from such certificate, when read in connection with the deed, that the person making the acknowledgment was authorized to execute the deed for the corporation. Bennett v. Knowles, 66 Minn. 4 (68 N. W. Rep. 111). See opinion for particular certificate held insufficient.

In the

Sec. 20. Conclusiveness of the certificate. absence of fraud or duress a certificate regular on its face cannot be impeached by parol evidence. American Freehold L. Mortg. Co. v. Thornton, 108 Ala. 258 (19 So. Rep. 529). Where a notary executed a certificate of acknowledgment to an unsigned deed and took it to the purported grantors for their signatures and failed to get one of them to sign it, and without making any correction in the certificate delivered it to the grantee who subsequently, in the absence of the notary, procured the signature of the grantor who had failed to sign it, it was held that such certificate could be impeached by parol evidence on account of lack of jurisdiction. Cheney v. Nathan, 110 Ala. 254 (20 So. Rep. 99; 55 Am. St. Rep. 26).

In construing N. Y. Code Civ. Proc., § 935, which provides that "a conveyance, acknowledged or proved, and certified in the manner prescribed by law to entitle it to be recorded in the county where it is offered, is evidence, without further proof thereof," and § 936 which provides that the certificate "is not conclusive, and it may be rebutted and the effect thereof contested by a party affected thereby," it is held that a certificate of acknowledgment is evidence of such a character as, standing alone, to send a case to the jury, so that they may decide between the probative force of the certificate, supported by the presumption that it states the truth, on the one hand, and the evidence produced in rebuttal, whatever it may be, on the other. Albany . Sav. Bank v. McCarty, 149

6

"The pro

N. Y. 71 (43 N. E. Rep. 427). The court say: visions of the Revised Statutes upon the subject were similar, but not identical, as they authorized every conveyance acknowledged or proved according to law to be read in evidence with. out further proof thereof.' The certificate, however, was not to be conclusive, but might be rebutted, and the force and effect thereof contested by any party affected thereby.' 3 Pev. St. (5th Ed.), p. 54, §§ 40, 41, The Revised Laws were b the same effect as the Revised Statutes. 1 Rev. Laws, p. 871, ch. 97, §§ 6, 7. We find but few decisions under these statutes that bear upon the question. In Jackson v. Schoonmaker, 4 Johns. 161, the defendant offered to show that one of several grantors, at the time he made the acknowledgment certified on a deed,' was non compos mentis, but the evidence was rejected. This was held error, the court, in a per curiam opinion, saying: 'The acknowledgment and proof of deeds is merely for the purpose of recording them, and is not conclusive on the opposite party. The proof or acknowledgment is necessarily ex parte, and the party who is to be affected by the deed ought, at any time, to be allowed to question its validity, and the force and effect of the formal proof. To consider the certificate of the judge as conclusive on this subject would produce manifest injustice.' In Thurman v. Cameron, 24 Wend. 87, 92, the court said: The practice is to take a certificate, which appears on its face to be in conformity with the statutes, as proof of its own genuineness. * ** Certificates of this character are not treated by the statutes as more than prima facie evidence, nor are they more, either in respect to their own regularity or the facts which they are adduced to prove. They are open to attack in a great variety of ways. They are, however, by recent statutes, made receivable to authenticate almost every kind of instrument; and to consider them less than prima facie evidence per se would render them literally useless.' In Paper Co. v. O'Dougherty, 81 N. Y. 474, 483, it was declared that the statute makes a deed duly acknowledged or proved and certified by any officer authorized to take the acknowledgment of deeds, evidence, without further proof of execution.' To the same effect are Sudlow v. Warshing, 108 N. Y. 520, 522 (15 N. E. Rep. 532); and Morris v. Keyes, 1 Hill 540, 542. See, also, as

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bearing upon the subject, more or less directly, Clark v. Clark, 47 N. Y. 664; Holbrook v. Zinc Co., 57 N. Y. 616, 624; Irving v. Campbell, 121 N. Y. 353, 859 (24 N. E. Rep. 821).

"The rule governing the action of trial courts, as well as appellate courts, with power to review the facts, seems to be uniform in all the states to the extent of requiring that a certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear and convincing as to amount to a moral certainty. Young v. Duvall, 109 U. S. 573 (3 Sup. Ct. Rep. 414); Lickman v. Harding, 65 Ill. 505; Pringle v. Dunn, 37 Wis. 449 (19 Am. Rep. 772); Shields v. Netherland, 5 Lea 193; Grotenkemper v. Carver, 9 Lea 280; Riecke v. Westenhoff, 10 Mo. App. 358; William v. Robson, 6 O. St. 510; Johnson v. Van Velsor, 43 Mich. 208 (5 N. W. Rep. 265); Phillips v. Bishop, 35 Neb. 487 (53 N. W. Rep. 375); Landers v. Bolton, 26 Cal. 406; Waltee v. Weaver, 57 Tex. 569. In some jurisdictions it is held to be conclusive in the absence of fraud or duress, in others absolutely conclusive, as a judicial act, and others still as prima facie evidence. Insurance Co. v. Marshall, 32 N. J. Eq. 103, and notes on pages 104-111; 2 Phil. Ev. (Cow. & H. Notes) 494."

In the recent case of Brady v. Cole, 164 Ill. 116 (45 N. E. Rep. 438), the supreme court of Illinois say: "It is a rule that the acknowledgment of a deed cannot be impeached for anything but fraud, and in such cases the evidence must be clear and convincing beyond a reasonable doubt. The mere evidence of the party purporting to have made the acknowledgment cannot overcome the officer's certificate, nor will it with slight corroboration. Russell v. Thcological Union, 73 Ill. 337. To impeach such a certificate, the evidence should. do more than produce a mere preponderance against its integrity in the balancing of probabilities. It should, by its completeness and reliable character, fully and clearly satisfy the court that the certificate is untrue and fraudulent.' Monroe v. Poorman, 62 Ill. 524; McPherson v. Sanborn, 88 Ill. 150; Marston v. Brittenham, 76 Ill. 611. The authorities very clearly lay down the rule that evidence offered to impeach a certificate of this character must fully and clearly satisfy the