Abstract of Proceedings in Foreclosure.

In Chancery, before the Vice-Chancellor. Afterwards, Supreme Court of the State of New York.

IX.

M. N.

against

O. P. and Mary his wife, G. C., T.Foreclosure.

J. O., D. R., and the F. and J.

Railroad Company.

1845, Aug. 6.-Bill filed to foreclose mortgage last mentioned; Nov. 8, answer of defendant, G. C.; Nov. 28, answer of O. P. and wife; Dec. 29, replication filed.

Notice of hearing for third Monday of July, 1846, and proof of service on attorneys who have appeared.

Order to close proofs, March 4, 1846, and proof of service.

1846, July 17.-Decree of sale to be made by one of the masters in Chancery.⚫

1850, Nov. 11.-Judgment of general term Supreme Court affirming decree of sale, and directing sale to be made by A. F. N., as referee.

1850, March 26.-Order taking bill as confessed as against T. J. O., D. R., and the F. and J. R. R. Co., made and filed as of 1st July, 1846.

Report of sale contains sales map referring to the Ewen map already mentioned, on which the premises to be sold are designated as lot No. 22.

X.

A. F. N., Referee,

to

Q. R.

Deed dated 20th March, 1850. Recorded 25th May, 1850, in Liber 506 of Convs., p. 21.

Recites decree of 1846 and order of 1850, and conveys lot No. 22, as described in the conveyance marked VII., above.

I now return to trace the title to the easterly lot No. 23, from the conveyance to M. N., numbered VI., above.

city of New York, distinguished on a map made by Daniel Ewen, city surveyor, of four hundred lots of land, in the city of New York, owned by G.

Abstract of Deed.

H. and K. L., as No. 23, and bounded as follows: On the north, by the southerly side of Fifty-first street; on the west, by lot numbered 22 on said map; on the south, by the centre line of the block; and on the east, by lot numbered 24 on said map, containing in breadth in front and rear twenty-five feet, and in length on each side one hundred feet five inches, be the same more or less.

Full covenants. Wife separately examined.

It appears that S. T. died intestate prior to Feb. 1, 1853, leaving his sons, James, Henry, and William, his heirs-at-law. I am reliably informed that neither of the sons was married at the date of the next-mentioned deed.

Recites the deed of last above mentioned, numbered XI., and the death of S. T., leaving the parties of the first part, his widow and heirs-at-law, and conveys the same lot as is described in the deed numbered XI., above, together with the buildings thereon.

Habendum in trust to sell and convey the same as soon as an advantageous price can be obtained, and invest the proceeds in dividend-paying stocks, for the benefit of Mrs. Ellen T., for her life, with remainder to the three

sons.

Mrs. T. is made a party for the purpose of relinquishing her right of dower.

U. V.

to Q. R.

XIII.

Deed dated August 16, 1854. Recorded Sept. 1, 1854, in Liber 540 of Convs., p. 307. Consid., $8,000.

Recites last-mentioned deed, and conveys same premises by same description.

Habendum in fee.

Covenants against grantors' acts only.

A mortgage for $5,000, part of the purchase money, recorded in Liber 159 of Mortgages, p. 200, has been discharged of record.

From this point, both lots will be considered together.

Q. R. appears to have been an alien; but any right in these lots which would have arisen to the people of the State, by escheat, was released to his son, by the following act:

Abstract of Statute.

XIV.

An Act to release the interest of the people of this State in certain lands in the city of New York, conveyed by N. J. and U. V. to Q. R., and which escheated, on his death, to his son, James Henry R.

Passed June 4, 1855, by a twothirds vote. Session Laws, ch. 210, p. 360.

Enacts that all the right, title, interest, and estate of the people of this State, acquired by escheat, upon the death of Q. R., late of the city of New York, in and to the premises described in the heading to this abstract, are released to his son, James Henry R.

I find no evidence of the alienage, marriage, or death of Q. R., except such inference as may be drawn from the above act. But assuming those facts to be true, it is evidently possible that his widow may be still living.

Inasmuch as, by laws of 1845, ch. 115, the wife of an alien is declared entitled to dower, and as the releasing act above mentioned purports to convey only the interest of the people, I am of opinion that the wife of Q. R., if she survived him, was dowable in these lands. It cannot well be contended that the act of release above mentioned, though later in date, overrides the provisions of the act of 1845. I find no release or transfer of this right.

XV.

Deed dated April 14, 1861. Recorded April, 1861, in Liber 610, Convs., p. 426. Consid., $12,000.

James Henry R., and Mary Julia his wife,

to

V. W.

Conveys the premises in question, with the buildings thereon, by the de-. scription employed at the head of this abstract.

Mortgage dated April 14, 1861. Recorded April 18, 1861, in Liber

James Henry R., and Mary Julia his 360, Mortg's, p. 212.

wife.

To secure $9,000 of the purchase-money mentioned in the conveyance last above specified. Mortgages the premises in question, and buildings

Acknowledgment (and Proof) of Deeds.

thereon. Contains the usual interest and insurance clauses. Bond for payment of principal in five years from date, with interest semi-annually.

Conveys the premises in question, with the buildings thereon, by the description employed in the heading to this abstract.

Habendum in fee, but subject to the mortgage last above mentioned, which grantee assumes to pay.

Covenants of seizure; of power to convey; for quiet possession; against encumbrances, except said mortgage; for further assurance; and for warranty.

From an examination of the transfers above mentioned, and the affidavit and searches annexed, I am of opinion that X. Y. Z. is seized of a good estate, in fee-simple, in the premises in question, subject only to a right of dower in Mrs. Q. R., if living, and to the mortgage above mentioned, marked

[Date.]

[Signature of counsel.]

[Here may follow any affidavit or exhibit referred to in the abstract, and the official certificates of the register of deeds, county clerk, and other proper officers, showing the premises free from encumbrances, except as disclosed in the abstract. For forms of requisitions for these certificates, see chapter "Searches."]

CHAPTER III.

ACKNOWLEDGMENT AND PROOF OF DEEDS.

A DEED is said to be acknowledged, when the person executing it comes before a public officer who is authorized for the purpose, and admits to him that it is a genuine instrument, and voluntarily made, and the officer certifies the fact in proper form upon the deed.

A deed is said to be proved, when a witness comes before the officer and testifies to its genuineness, and the officer certifies thereto in the same way. These officers are usually justices of the peace, commissioners of deeds, notaries public, and judges of courts.

The certificate of the officer is commonly designated the Acknowledgment, or the Proof.

The mode and the effect of thus authenticating a deed of lands is governed by the law of the State or Territory where the lands lie, not by that of the

General Principles,

place where the parties may be when it is executed. For obvious reasons of convenience, however, it has recently been enacted in the statutes of several of the States, that a deed of lands therein, executed without the State, but within the United States, may be executed or acknowledged, or both, pursuant to the law of the place of its execution, with like effect as if it were done according to the law of the place of the property.

Where a deed is executed and acknowledged without the State, in pursuance of such a statute, there must be entire conformity with the one law or the other, both as to the officer, and as to the contents of the certificate. The laws of both States cannot be invoked to sustain an acknowledgment manifestly defective when tested by either. (a)

General Principles.-The following remarks will illustrate the general principles of American law upon this topic. It will be observed that these principles are subject, however, to numerous local exceptions, which, so far as they relate to the form of proceeding, are noticed at the head of the forms given for each State.

In general, the function of acknowledgment or proof is twofold-to entitle the deed to be recorded, and to entitle it to be read in evidence in courts of justice, without further proof of its authenticity. The act is not essential to the bare validity of a deed, although it is almost indispensable to the security of a purchaser. But in MARYLAND, NEW MEXICO, NORTH CAROLINA, and VIRGINIA, acknowledgment and record are necessary to pass the title, even as against the grantor; and in RHODE ISLAND deeds are void, except as between the parties and their heirs, unless acknowledged and recorded. (b)

The deeds of married women are a common exception to the general rule. The laws of many of the States provide that a wife's deed is not valid unless, upon a private examination made separate from her husband, she acknowledges that she executed it without fear or compulsion. This is not, however, required as to lands in ALABAMA, INDIANA, KANSAS, MAINE, MARYLAND, MASSACHUSETTS, VERMONT, or WISCONSIN. In some of the States where it is required as to married women resident within the State, it is dispensed with as to non-residents. This is so in the laws of DACOTAH, MICHIGAN, MINNESOTA, and OREGON. By the laws of NEW YORK, neither married women conveying their separate estate, acquired since the act of 1848, nor non-resident married women joining with their husbands in a deed, need be thus privately examined. By the laws of ILLINOIS, the private examination is dispensed with only in the case of residents without the State, over eighteen years of age.

Where a deed is executed by an attorney in fact, the more common practice is to have the power of attorney acknowledged or proved as the act of the principal, and to have the deed acknowledged or proved as the act of the attorney, and to have both recorded. (c)

In a great many of the States it is the rule that proof, by the oath of one or more subscribing witnesses (except as to a married woman's execution of a deed under the laws of those States which require her to be personally and separately examined), is equivalent to an acknowledgment by the grantor in person. In a number of the States, however, no provision is made for proof by witnesses, except in case an acknowledgment cannot be procured. In one or two of the States, on the other hand, it is not the practice to acknowledge deeds at all, but always to prove them by witnesses.

In most of the States it is the rule, that a deed executed by several grantors should be acknowledged by or proved as to each one of them. An acknowledgment by one of them may suffice to get the deed on record, but the

(a) Job v. Tibbetts, 4 Gilm., 148; Adams v. Bishop, 19 Ills., 895; Montag v. Linn, Id., 399; Farrell Foundry v. Dart, 26 Conn., 376.

(b) See also chapter of DEEDS.

(e) In the statutes of DELAWARE there is a provision for acknowledgment by attorney, by virtue of a power either contained in the deed or separate from it. Rev. Code (1852), 267.