Frederick Mortensen Hinch Edward Mills John.

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suit, and is the control which a court has, during the pendency
of an action, over the property involved. One who purchases
property pending an action takes title subject to the event of
the action.*

§ 234. Caveat Emptor. — Caveat emptor is a maxim em-
ployed in the law to signify that a purchaser, whether of
realty or personalty, is not only bound to discover obvious
defects for himself, but is confined to the warranties which
he has required, and cannot, in the absence of fraud, rely on
the statements of the seller.* It means let the buyer beware,
and applies particularly to judicial sales.

§ 236. Waiver. — ^Waiver is the voluntary surrender and
relinquishment of a right.*

t Sheppard v. Messenger, 107 4 Oyc. Law Diet.

Iowa 717, 77 N. W. 515. BQyc, Law Diet

»Cye. Law Diet. «C^c. Law Diet.

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128 N0TA£IB8 PUBLIC. [§ 236

§ 2S6. Releases and Assignments.— A release is the giving
ap or abandoning of a claim or right to the person against
whom the claim exists, or the right is to be exercised or en-
forced. With respect to conveyances, in the United States,
releases to real estate are executed by quitclaim deeds. An
assignment is commonly used to indicate any transfer or mak-
ing over to another of the whole of any property, real or per-
sonal, in possession or action, or of any estate or interest

§ 237. Leases. — ^A lease is a contract by which a person
owning or controlling lands or tenements permits another to
occupy the same for a period less than that to which the right
of the lessor extends. The person permitting the occupation
is called the **lessorj^" and the person contracting for pos-
session is called the '* lessee. '*• It is a contract for the posses-
sion and profits of lands and tenements, on the one side, and
a recompense of rent, or other income, on the other; it is a
conveyance for life, or years, or at will, in consideration of a
return of rent or other recompense. The person letting the
land is called the landlord, and the party to whom the lease
is made, the tenant.' If made for a term of years, it should
be placed on record. Facts suflScient to put a purchaser upon
inquiry are not suflBcient to affect him with actual notice of
an unrecorded instrument. The purchaser of property leased
for a term of five or seven years, where the lease is not on
record, are not sufiicient to charge him with notice of a lease.*'

§ 288. Wills.

§ 289. — ^In GtoneraL — ^A will is the legal declaration of a
man's intentions of what he wills to be performed after his
death. A holographic will is one written entirely by the testa-
tor, generally called ** olographic." An olographic will is de-
rived from the civil law. It must be entirely written, dated and
signed by the testator himself. No witnesses are necessary
and it. may be made anywhere. It is quite common in Lou-
isiana and Spanish-American countries. A nuncupative will
is an oral declaration by the testator, made before competent

7 Cyc. Law Diet Hareen, 7 Cow. (N. T.) 323.

8 C^c. Law Diet. 10 Toupin v. Peabody, 162
• Jackson ex dem. Webber y. 473, 39 N. E. 280.

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witnesses, declaring his wishes regarding the disposal of his
property.^^ Legatees are the persons mentioned in the will
to whom bequests or devises are given.

§ 240. — Codicils. — ^A codicil is a clause added to the will
after its execution, the purpose of which usually is to alter,
enlarge or restrain the provisions of the will, or to explain,
(»onfirm and republish it.**

§ 241. —Persons Who Oan Devise; What May Be Devised.

— Ordinarily, any person of sound mind, of full legal age,
capable of executing a valid contract can execute a will, and
any lands, tenements and hereditaments, and personal estate
owned by the testator, may be bequeathed or devised.

§ 242. — Execution of Wills; Fonn. — ^A will does not have
lo be in any special form, but is usually drawn in a certain or-
derly way. There is an introduction, stating that the testator
does makCj publish and declare the writing to be his last wUl,
thereby revoking all previous wills, a direction to the executor
to pay the funeral expenses and debts, an enumeration of the
devises and bequests, a residuary clause providing for the
disposal of the estate not specifically disposed of, a clause ap-
pointing an executor, and a conclusion stating that the tes-
tator affixes his name as of a certain date.*' The instrument
is signed by the testator, or by some one in his presence and
by his express direction, and is attested and subscribed to
by credible witnesses, in the presence of the testator and each
other, as required by the various statutory provisions. Such
requirements must be complied with.** A witness should not

11 Cyc. Law Diet Scott v. Hawk, 107 Iowa 723, 77

is Lamb v. Lamb, 11 Pick. N. W. 467, 70 Am. St. Bep. 228.
(Mass.) 371. In the absence of any evidence

It Bays' Commercial Law, vol. 9, of fraud, compulsion, or other im-

p. 166 et seq, proper conduct, a will may be

liMendell v. Dunbar, 169 Mass. signed by witnesses some distance

74, 47 N. E. 402, 61 Am. St. Bep. away from the testator but within

277. his sight. Soundness of mind is

Compliance with the statute is all presumed unless sufficient evidence

that is required. The testator may is established to prove otherwise,

sign by a mark if he cannot write In re Tobin, 196 Dl. 484, 63 N. E.

bis name. It is not necessary that 102L
subscribing witnesses sign for him.

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b# a deriiet or legatee. Beneficiaries and trustees ondtr a
will art prohibited from testifying in its favor as against the
heirs at law who are contesting it.^* A will cannot be cor-
rected or reformed by a court of chancery. They have no
power. The intention, which is to be sought for in the con-
struction of a will, is not that which is expressed in the mind
of the testator, but that which is expressed by the language
of the will.i«

§ 243. — Executors and Admimstrators; Probate of Wills.
— ^An executor or executrix is appointed by the testator in his
will to manage the estate. An administrator or administratrix
is appointed by the court to manage the estate. Probate of a
will is the proof made before a court or an officer appointed
by law that the instrument offered is the last will and testa-
ment of the testator ; upon sufficient proof, and security given,
the officer issues letters testamentary.

§ 244. Acknowledgments.

§ 245. — ^Definition. — ^An acknowledgment is the act of one
who has executed a deed, by going before some competent
authorized officer or court, and declaring it to be his or her
act or deed. The acknowledgment is certified by the officer
or court, and the term is sometimes used to designate the cer-
tificate.*' It consists in an admission of the grantor that the
deed is his own, and was given freely and for the purposes
set forth in the deed.**

§ 246. — Certificate of Acknowledgment. — ^A certificate of
acknowledgment is the officer's statement on a document which
a party acknowledges. The officer states that on a certain
day named the grantor, who was personally known, or proved
to him by the testimony of a witness (giving name) to be
the person described in and who executed the deed, personally
appeared before him and acknowledged the instrument to be
his free act and deed. He signs his name and affixes his

15 In re Tobin, 196 DL 484, 63 man v. Wettig, 39 HI. 416; Har-
N. E. 1021. pington v. Fish, 10 Mich. 415.

16 Engelthaler v. Engelthaler, 18 The grantor must say and the
196 HI. 230, 63 N. E. 669. certificate must show that he eze-

iTCyc. Law Diet.; Bays' Com- cnted the deed. Short v. Conlee,
mercial Law, voL 9, p. 147; Bow- 28 HI. 219.

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cifSoial leal by impressing it upon the instrument. The deed
is then entitled to record. No officer shall take the acknowl-
edgment of the execution of a deed unless he shall know, or
have satisfactory evidence, that the person making the ac-
knowledgment is the individual named in and who executed
the conveyance. He is required to put his certificate upon
the deed to that effect.**

§ 247. — ^Necessity and Purpose. — ^A deed may be effective
between the parties without acknowledgment provided it was
really delivered, but acknowledgment is always desirable and
is necessary for certain purposes. In the first place, if a deed
is properly acknowledged, a trumped up charge of fraud on
the part of the grantor is difficult to sustain. Secondly, ac-
knowledgment is necessary in most states, in order that the
deed may be recorded and be effectual against third parties.
Thirdly, dower and homestead rights cannot be waived in a
deed unless it is acknowledged, and, in the fourth place, a
deed which is properly acknowledged is said to prove itself,
which means that it can go in as evidence without proof of
its execution which would otherwise be necessary.*® Deeds
that have been acknowledged are seldom required to have
witnesses, but deeds not so acknowledged and certified to are
required to have witnesses in order to prove their authenticity
or execution.**

Acknowledgment of sheriff's deed is essential to its validity
for land sold by him under an execution. The property is
conveyed against the will of the judgment debtor, the convey-
ance is not his act, but the act of law ; and the law, when ac-

19 Fryer v. Rockefeller, 63 N. T. As between the grantor and

268. grantee a deed neither acknowl-

tO Bays' Commercial Law, vol. 9, edged nor recorded will pass the

p. 147. title. Galligher v. Connell, 46 Neb.

A deed may be valid and bind- 372, 64 N. W. 965; 35 Neb. 517,

ing on the parties who execute it, 53 N. W. 383; Harrison v. Mc-

withont any acknowledgment. The Whirter, 12 Neb. 155, 10 N. W.

purpose of the certificate is to 545.

prove the execution, otherwise M Seaver v. Spink, 65 HI. 441 ;

other proof may be resorted to to Short v. Conlee, 28 HI. 219; Har-

make it binding on the parties. rington v. Fish, 10 Mich. 415.

Robinson v. Robinson, 116 HI. 250, See post, S 272 et seq., Statutory

Ty N. E. 118. Requirements.

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[§ 248

knowledgment is requisite, must be strictly complied with.**

§ 248. —Nature of Taking of Acknowledgment; Care Re-
quired of Officers; Negligence. — While some courts have held
the taking of an acknowledgment to be a judicial act,** the
general opinion seems to be that such act is miiiisterial, rather
than judicial.** The distinction is important in a legal sense
as involving liability in case of negligence, because if an ac-
knowledgment is considered as a judicial conclusion, no lia-
bility is incurred in case of unintended falsity.**

As a general rule, in taking and certifying acknowledg-
ments, a notary must exercise reasonable care, such as a rea-
sonably prudent and competent man would exercise in the
performance of such duty.** At the common law, a notary
was bound to certify to acknowledgments with integrity be-
cause, by accepting the oflSce, he contracted with every one
who employed him to perform his duty with integrity, dili-

MWarvelle on Abstracts (4th
Ed.), { 275.

it "An officer who takes an ac-
knowledgment (of the execution of
a deed) acts in a judicial charac-
ter in determining whether the
person representing himself to be,
or represented by some one else
to be, the grantor named in the
conveyance, actually is the gran-
tor. He determines further
whether the person thus adjudged
to be the grantor does actuaUy and
truly acknowledge before him that
he executed the instrument."
Wasson v. Connor, 54 Miss. 352.

"It is well settled that the cer-
tificate • * * of the acknowl-
edgment of a deed or mortgage is
a judicial act." Com. v. Haines,
97 Pa. St 228, 39 Am. Rep. 805.

84 Barnard v. Schuler, 100 Minn.
289, 110 N. W. 966; State Nat.
Bank v. Mee, 39 Okla. 775, 136
Pac. 758; Ehlers v. United States
Fidelit.v & Guaranty Co., 87 Wash.
662, 152 Pac. 518. See In re

Huron, 58 Kan. 152, 48 Pac. 574,
36 L. R. A. 822, 62 Am. St Rep.
614; Opinion of Justices, 150 Mass.
586, 23 N. E. 850, 6 L. R. A. 842.

W Where a notary is considered
an executive or ministerial officer,
such officers are liable for wilful
or negligent misconduct, but where
the identity of a stranger may be
proved to a notary by witnesses, as
is permissible under the statutes of
some states, the notary 's certificate
concerning the identity of the
maker of an instrument is a ju-
dicial conclusion, similar to a judg-
ment, and no liability is incurred
iv case of unintended falsity. See
Bellport V. Harkins, 104 Kan. 543,
180 Pac. 220.

«e State V. Webber, 177 Mo. App.
60, 164 S. W. 184; Ehlers v. United
States Fidelity & Guaranty Co.,
87 Wash. 662, 152 Pac. 518. See
also Bellport v. Harkins, 104 Kan.
543, 180 Pac. 220; Baune v. Sol-
heim, 129 Ikfinn. 221, 152 N. W.

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gence and skill.*' This duty to certify acknowledgments with ,
integrity exists under statutes authorizing notaries to take
acknowledgments.** It arises also from the nature of the act,
as it is obvious that the act of taking an acknowledgment is a
matter of grave importance. Upon the fidelity with which
this duty is discharged depends the title to real estate and
the prevention of litigation. Great faith and credit is re-
posed in the certificates of notaries, and a corresponding duty
is imposed on them to exercise care and caution in the per-
formance of their duties.**

The notary is not a guarantor of the absolute correctness
of the certificate of acknowledgment, however, nor does he
undertake to certify that the person acknowledging the in-
strument owns or has any interest in the lands described ; but
he does undertake to certify that the person personally ap-
pearing before him is known to him to be the person described
in and who executed the instrument.** In rejecting the rule
making the notary a guarantor of the truth of his certificate,
the Supreme Court of one state said: '*A notary public or
other officer in taking an acknowledgment may be deceived,
no matter how careful he may be in investigating the identity
of a party who represents himself to be the person described
in and who executed the instrument; and to hold such an of-
ficer absolutely liable in case it should afterwards appear that
he was mistaken and his certificate was in fact untrue is too
rigid a rule to be practical or just."** Under other decisions
the question as to whether a notary and his bondsmen are
liable when an acknowledgment proves to be false has been
held to depend upon whether the notary followed the statute,
which prescribes what must be done. This really amounts
to holding the notary as an insurer or guarantor as to the

•7 State V. Ogden, 187 Mo. App. duty of a notary is not only to cer-

39, 172 S. W. 1172. tify to acknowledgments, but to do

«8 Where notaries are authorized so with integrity. State v. Ogden,

by statute to take acknowledg- 187 Mo. App. 89, 172 S. W. 1172.
ments, etc., and to certify under » State v. Webber, 177 Mo. App.

their official seals "concerning all 60, 164 S. W. 184.
matters by them 'done by virtue of SO Barnard v. Schuler, 100 Minn,

their offices," and are required to 289, 110 N. W. 966.
give bond which "may be sued on 81 Barnard v. Schuler, 100 Minn,

by any person injured," the official 289, 110 N. W. 966^

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truth of the certificate of identity of the pergon named im
the acknowledgment, and that he was the person who ap-
peared before him to acknowledge it.**

It will be noted from the foregoing that while there is con-
siderable conflict as to the extent of a notary's liability, such
officers are held to a high degree of care in taking and cer-
tifying acknowledgments. It may be added that there is also
considerable conflict in determining whether reasonable care
has been exercised by notaries, when their acts become in-
volved in litigation. The subject is so important as to re-
quire extended treatment in detail.

§ 249. — ^Essentials of Acknowledgments. — ^Two essentials
of acknowledgments which are matters of substance and can-
not be dispensed with are the matter of acknowledgment itself,
and the identity of the party or parties making the acknowl-
edgment. Defects in either of these matters will render the
certificate void.** Careful performance of the notary's duties
require certificates which are free from defects. While the
two matters stated are the most important, other defects are
sometimes considered fatal, and the certificate should fully
comply with the statute in all details.

§ 260. —Necessity of Knowledge of Identity of OranUn: or
Person Appearing; Introductions. — Reasonable care in the per-
formance of a notary's duties involves certainty of the iden-
tity of the person or persons making an acknowledgment.
Such personal knowledge is one of the essentials of an ac-
knowledgment.** A notary may only certify to the identity
of a person with whom he is acquainted, and that acquaint-
ance must be of sufficient duration and extent of familiarity
that the notary has reasonable grounds upon which to base
the recital in his certificate touching the identity of the person
who appeared before him and acknowledged the execution of
the instrument.** If the notary does not personally know the

tSBrittain v. Monsur, — Tex. Hartshorn v. Dawson, 79 m. 108;

Civ. App. — , 195 S. W. 911. State v. Byland, 163 Mo. 280, 63

SSWarvelle on Abstracti (4tli S. W. 819; Smith y. Gardon, 28

Ed.), S 210. Wis. 685.

•4 Joost V. Craig, 131 Cal. 504, »8Bellport ▼. Harking, 104 Kan.

ea Pae. 840, 82 Am. St. Rep. 374; 543, 180 Pac. 220.

Hayden v. Westcott, 11 Conn. 129; While a notary public ii not a

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S 1^0]



party appearing before him, he should proceed with caution,
and either decline to certify to the acknowledgment or in-
vestigate the question of the identity of the party with care
and prudence as the gravity of the case demands, and only
certify to his identity upon being clearly satisfied of the fact
as a result of such investigation.** If a notary certifies to an
acknowledgment without personal knowledge and investiga-
tion, he is guilty of negligence,*' and he and his sureties are

gaarantor or insurer of the iden-
tity of the person whose notarial
acknowledgment he administers
and certifies, he is bound, as aU
executive and ministerial officers
are generally bound, to exercise
reasonable diligence in the dis-
charge of his official duties. Be-
fore certifying that a certain
named person came before him and
executed and acknowledged the
execution ot a deed, he must at
least be reasonably sure of the
identity of such person. Bellport
V. Harkins, 104 Kan. 543, 180 Pac.

An officer taking acknowledg-
ment must be satisfied of the iden-
tity of person who executed the
instrument. In re H — C — , Jr.,
81 N. J. Eq. 8, 85 Atl. 336.

86 Barnard v. Schuler, 100 Minn.
289, 110 N. W. 966; State v. Web-
ber, 177 Mo. App. 60, 164 8. W.
184; State v. Meyer, 2 Mo. App.

"A notary is not justified in
taking an acknowledgment and
making a notarial certificate for a
stranger who comes into his office
and says: 'My name is John
Smith. I want to acknowledge a
deed and have you make your
notarial certificate to it.' Such
official conduct on the part of the
notary would be grossly negligent,
and he would undoubtedly be liable

in damages to any person who suf-
fered loss through reliance on the
purported facts negligently and
falsely recited in such notarial cer-
tificate." Dawson, J., in Bellport
V. Harkins, 104 Kan. 543, 180 Pac.

* ' When a man appears before an
officer, introduces himself, pro-
duces an instrument which he says
he desires to execute, if then the
officer takes and certifies an ac-
knowledgment, certifies that he is
satisfied that a perfect stranger is
the identical grantor named in
the instrument, he solemnly certi-
fies to an untruth, and should be
deprived of his office, or otherwise
appropriately punished.'' In re
H — C —, Jr., 81 N. J. Eq. 8,
85 Atl. 336.

87 Barnard v. Schuler, 100 Minn.
289, 110 N. W. 966; State Nat.
Bank v. Mee, 39 Okla. 775, 136
Pac. 758.

Where a person impersonated an
owner of land, and requested the
acknowledgment of a deed pre-
pared by an attorney, and the no-
tary by mistake certified the in-
strument, thinking that he was
acquainted with the man, the act
was characterized as "gross neg-
ligence." Peterson v. Mahon, 27
N. D. 92, 145 N. W. 596. See
Baune v. Solheim, 129 Minn. 221,
152 N. W. 267 (where a woman

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[§ 250

liable for all damages proximately resulting therefrom.** In
Bueh cases, where there is a specific act of negligence, it is
immaterial and of no importance that the notary was ordi-
narily careful.** A notary who takes an acknowledgment to
a deed executed in blank by an impostor will not be permitted
to escape liability because the name of the grantee was

A notary public is also guilty of negligence if he certifies
that he knows a person who is merely introduced to him, and
there is no further proof or inquiry as to his identity,** or, at
least, such conduct raises a question of fact as to whether the
notary was reasonably careful.** In a case where a notary
was induced to take the acknowledgment of a man unknown
to him, being induced to do so by the fact that he was in-
troduced to the man by a member of a commission firm of pre-
vious good standing, wiiich commission firm was the payee
of a chattel mortgage and note, it could not be contended sub-
sequently that there was no negligence on the part of the
notary. When the notary certified that such person, naming
him, was the person who acknowledged the execution of the
instrument involved, he had to personally know at his peril
that the person introduced was the person named.**

impersonated a grantor's wife, and
the verdict acquitted the notarj
of negligence).

88 Barnard v. Schnler, 100 Minn.
289, 110 N. W. 966.

88Kangley v. Rogers, 85 Wash.
250, 147 Pac. 898.

iOBellport V. Harkins, 104 Kan.
543, 180 Pac. 220.

41 State Nat. Bank y. Mee, 39
Okla. 776, 136 Pac. 758. See also
Joost V. Craig, 131 Cal. 504, 63
Pac. 840, 82 Am. St. Rep. 374.

48 Where an acknowledgment is
taken upon a mere introduction
without further proof, and dam-
ages result, the question whether
the notary exercised reasonable
care and diligence is for the jury.
Com. V. Johnson, 123 Ky. 437, 96
8. W. 801, 124 Am. St. Rep. 368,

13 Ann. Cas. 716; Ehlers v. United
States Fidelity & Guaranty Co., 87
Wash. 662, 152 Pac 518.

48 State V. Parmer (Mo. App.),
201 S. W. 965.

Where a live stock commission
firm sold a note secured by a chat-
tel mortgage, purporting to be exe-
cuted by another, and it later ap
peared that such other person did
not exist, and that the cattle se-
cured by the mortgage did not ex-
ist, and it appeared that the no-
tary was negligent in that she did
not know the man 'vdio acknowl-
edged the instrument, and ac-
cepted an introduction of a mem-
ber of the commission firm to such
man, the act of the notary was
not the proximate cause of the
loss, and the notary and bonds-

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§ 261]



§ 261. —False Certiflcates.— The making of a false certifi-
cate of acknowledgment is a breach of the notary's bond, sub-
jecting him and his sureties to liability, in case of injury.**
It may also result in criminal proceedings,** the imposition of
penalties, or removal of the officer.*® The officer has no right
to certify anything that he does not know,*'' and a person has
the right to rely upon a notary's certificate as true, and that

men were liable only for nominal
damages. State v. Packard, 199
Mo. App. 53, 201 S. W. 953; State
V. Farmer (Mo. App.), 201 S. W.
955. But see State v. Byland, 163
Mo. 280, 63 8. W. 819; State v.
Gnindon, 90 Mo. App. 266; State
V. Balmer, 77 Mo. App. 463; State
V. Meyer, 2 Mo. App. 413, where
the property was in fact owned by
the person who the notary negli-
gently and nntruly certified had
acknowledged the instrument, and

Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 16 of 50)