instrument is not denied, evidence of the genuineness of the handwriting is not required, and an objection not taken at the time is deemed waived and unavailable on appeal. So in some of the states the denial of the authenticity of the instrument is required to be in writing2 verified by affidavit of the party. If he denies that he wrote or executed the instrument, its genuineness may be proved by the testimony of any competent witness who was present and saw him write it, or by evidence of his extra-judicial admissions made verbally or by conduct that he executed it, whether made before or perhaps after the action was begun. Such an admission is never conclusive unless fraudulently made, or unless it was relied and acted upon to the extent that it will constitute an estoppel in pais.1 6 § 134. When proof of handwriting may be dispensed with - Acknowledgments.-If, as is the case in many states, deeds or other instruments are made by statute prima facie evidence when duly acknowledged or recorded, proof of handwriting or execution by subscribing witnesses or others is unnecessary.8 ing and that such signature is precisely similar to the one disputed. Second Nat. Bank v. Wentzel, 151 Pa. St. 142. 1 Clark's Ex'rs v. Cochran, 3 Mart. (La.) 353, 360; National Union Bank of Swanton v. Marsh, 46 Vt. 443. This is the statute law in many states. Coler v. County (N. M., 1892), 27 Pac. Rep. 619. 2 Smith v. King (Iowa, 1893), 55 N. W. Rep. 88; Clark's Ex'rs v. Cochran, 3 Mart. (La.) 353, 360; National Union Bank of Swanton v. Marsh, 46 Vt. 443. 3 Bestor v. Roberts, 58 Ala. 331; Duncan v. Brown, 15 B. Mon. (Ky.) 186; Smith v. Elmert, 47 Wis. 479. 4 Bayly v. Fourchy, 32 La. Ann. 136; Robinson v. Arnet, 15 La. 262; Com. v. Nefus, 135 Mass. 533; Bank v. Marsh, 46 Vt. 443; Bowman v. Sanborn, 25 N. H. 87. 5 Shaver v. Ehle, 16 Johns. (N. Y.) 201; State v. Byrd, 93 N. C. 624; Glazier v. Streamer, 57 Ill. 91. 6 Philadelphia, etc. Co. v. Hickman, 28 Pa. St. 318. 7 See ante, §§ 82-84; Salem Bank v. Gloucester Bank, 17 Mass. 1, 27; Helmsley v. Loader, 2 Campb. 450; Bell v. Shields, 4 Harr. (19 N. J.) 93; Cohen v. Teller, 93 Pa. St. 123; Dow's Ex'rs v. Spinney's Ex'rs, 29 Mo. 386; Weed et al. v. Carpenter, 4 Wend. (N. Y.) 219; Hammond v. Varian, 54 N. Y. 398. 8" An acknowledgment regular on its face makes the instrument evidence without further proof. The exact words of the statute need not be followed; it is sufficient if the meaning be clearly and fully expressed." Wickersham v. Reeves, 1 Iowa, 417; Fenton v. Miller, 94 Mich. 204; Parroski v. Goldberg, 80 Wis If, as is the case in this country, a deed must be properly acknowledged to obtain record, one which is not so acknowledged will not be valid as against bona fide purchasers for value and without notice. But an unrecorded deed, or one improperly acknowledged, is always valid, as between the parties and all others having actual or constructive notice thereof,' and may be read in evidence in any action between the parties or their privies on proof by witnesses.2 2 Shaffer v. Hahn, 111 N. C. 1; Tren with v. Smallwood, 111 N. C. 132; Beaman v. Whitney, 20 Me. 413. 3 Woodruff v. McHarry, 56 Ill. 218; Hamilton v. Pitcher, 53 Mo. 354. § 135. Who may take acknowledgments.- Acknowledg ments are generally taken by notaries public, commissioners or other officials designated by statute. A de facto official,3 or a deputy acting for and signing in the name of his principal, and sometimes where he signs in his own name," may take an acknowledgment. So it has been held the fact that an official who possesses statutory authority to take acknowl edgments is also an attesting witness, a relative of or attorney for the grantor, or is himself the grantee, does not 399; Holbrook v. New Jersey Zinc Co., 57 N. Y. 624; N. Y. Phar. Ass'n v. Tilden, 14 Fed. Rep. 740; Houghton v. Jones, 1 Wall. (U. S.) 702. Cf. Blackman v. Riley, 63 Hun, 521; 28 Abb. N. C. 126. A state grant under seal is admissible as evidence without acknowledgment where no statute requires it. Chicago, etc. Co. v. Keegan, 31 N. E. Rep. 550. In the absence of statute an acknowledgment does not dispense with proof of execution (Mullis v. Cairns, 5 Blackf. (Ind.) 77), which may be shown by the testimony of the party before whom the acknowledgment was made. Kidd's Adm'r v. Alexander, 1 Rand. (Va.) 456; Eichelberger v. Sifford, 27 Md. 320. 1 Bacon v. Railroad Co., 131 U. S. 258; Shotwell v. Harrison, 22 Mich. 410; Banbury v. Sheerin (S. D., 1893), 55 N. W. Rep. 723; Mankin v. Emmons, 47 Mo. 306; Ellison v. Wilson, 36 Vt. 67; Cable v. Cable, 146 Pa. St. 451; Sicard v. Peters, 6 Pet. 136; Forrester v. Parker, 14 Daly, 208; Mann v. State, 46 Ind. 383, 4 Cook v. Knott, 28 Tex. 85; Gibbons v. Gentry, 20 Mo. 468; Hope v. Sawyer, 14 Ill. 254; Gordon v. Leech, 81 Ky. 229; Emmal v. Webb, 36 Cal. 203; Lynch v. Livingston, 8 Barb. (N. Y.) 463. 3 Talbot v. Houser, 12 Bush (Ky.), 408; Touchard v. Crow, 20 Cal. 150; McCraven v. McGuire, 23 Miss. 100; Herndon v. Reed, 82 Tex. 647; Summer v. Mitchell, 29 Fla. 179; Coltrane v. Lamb, 109 N. C. 209. 6 Baird v. Evans, 58 Ga. 350. 7 Lynch v. Livingston, 6 N. Y. 433; Remington Co. v. Dougherty, 81 id. 474. 8 Romanes v. Frazier, 16 Grant (U. C.), 97. 9 Bennett v. Shipley, 82 Mo. 448. Contra, Jones v. Porter, 59 Miss. 628; Tavener v. Barrett, 21 W. Va. 658. invalidate the acknowledgment. The majority of the cases hold, however, that an acknowledgment taken by an official who is personally interested is invalid.' An acknowledgment received by a notary or other official act done out of his territorial jurisdiction, or after his term of office has expired,3 is invalid. The venue should always appear in the body of the certificate, or in its caption or notarial seal, though if it is not stated the defect may be remedied by a reference to the instrument itself; and where no place is given, if the certificate is otherwise regular and the power of the notary to take acknowledgments is not disputed, it may be presumed that he acted within his jurisdiction.' § 136. The certificate. This, in the absence of fraud, duress or a failure to obey some express statutory requirement, is usually conclusive as to all facts stated in it, and fraud, if alleged, must be clearly shown." The body of the certificate,10 'Bank v. Radtke (Iowa, 1993), 54 N. W. Rep. 435; Davis v. Beazley, 75 Va. 491; Green v. Abraham, 43 Ark. 420; Hogans v. Caruth, 18 Fla. 587; Hammers v. Dole, 61 Ill. 307; Wasson v. Connor, 54 Miss. 352; Brown v. Moore, 38 Tex. 645; Dail v. Moore, 51 Mo. 589. The grantor cannot take his own acknowledgment. Beaman v. Whitney, 22 Me. 413; Davis v. Beazley, supra; Freeman v. Person, 106 N. C. 251. 2 Thurman v. Cameron, 24 Wend. (N. Y.) 91; Mut. Ins. Co. v. Carey, 54 Hun, 493; Hedges v. Ward, 15 B. Mon. (Ky.) 106; Jones v. Reardon, 3 Md. Ch. 57; Hughes v. Wilkinson, 37, Miss. 482; Harris v. Burton, 4 Harr. (Del.) 66. Carlisle v. Carlisle, 78 Ala. 542; Quimby v. Boyd, 8 Cal. 194; Galbraith v. Gallivan. 78 Mo. 452; Goodykoontz v. Olsen, 54 Iowa, 174. 4 Willard v. Cramer, 36 Iowa, 22; Dunlap v. Dougherty, 20 Ill. 397. 5 Chiniquy v. Catholic Bishop, 41 Ill 148; Adams v. Medsker, 25 W. Va. 128; Sidwell v. Birney, 69 Mo. 144; Wright v. Wilson, 17 Mich. 192. 6 Trulick v. Peeples, 1 Ga. 3; Brooks v. Chaplin, 3 Vt. 281; Fuhrman v. London, 13 S. & R. 386. 7 See post, §§ 231, 232; Morrison v. White, 16 La. Ann. 100; Sidwell v. Birney, 69 Mo. 144; Carpenter v. Dexter, 8 Wall. (U. S.) 513; Douglas v. Carmean, 49 Kan. 674; Chamberlain v. Pybas, 81 Tex. 511. 8 Oppenheimer v. Wright, 106 Pa. St. 569; Hill v. Bacon, 43 Ill. 477; Smith v. McGuire, 67 Ala. 34; Allen v. Lenoir, 53 Miss. 321; Cox v. Gill, 83 Ky. 669; Tooker v. Sloan, 30 N. J. Eq. 94; Hitt v. Jenks, 123 U. S. 301; Young v. Duval, 109 U. S. 573. Cf. Jackson v. Cairns, 20 Johns. (N. Y.) 300; Davis v. Agnew, 67 Tex. 210; Linsley v. Brown, 13 Conn. 192; Marsh v. Mitchell, 26 N. J. Eq. 497; Russell v. Seminary, 75 Ill. 337; Cover v. Manaway, 115 Pa. St. 345; Greene v. Godfrey, 44 Me. 25. 9 Stevens v. Hampton, 46 Mo. 104; Meyer v. Gassett, 38 Ark. 377, and cases in last note. 10 Trustees v. McKechnie, 90 N. Y. 618; Brown v. Farrar, 3 Ohio, 140; Wright v. Bundy, 11 Ind. 398; Evans 4 McDaniel v. Needham, 61 Tex 269: Knighton v. Smith, 1 Oreg. 276; Buell v. Irwin, 24 Mich. 145; Jacoway v. Gault, 20 Ark. 190; Rogers v. Adams, 66 Ala. 600; Dewey v. Campau, 4 Mich. 565; Wickersham v. Reeves, 1 Iowa, 413; Trammel v. Thurmond, 17 Ark. 203. its official seal1 or signature must show the character of the official certifying to the acknowledgment, and where this appears he will be presumed to have possessed adequate authority and to have acted within his jurisdiction. But when his official character does not appear it may be shown by extrinsic evidence. But generally if a form or mode of acknowledgment is prescribed by statute, a substantial, if not a strict, compliance will be required to be observed both by the notary and by the party executing the conveyance, though the omission of the date," or of immaterial words, the insertion of those which are vague and equivocal,' redundant and superfluous or ungrammatical' will not vitiate a certificate otherv. Lee, 11 Nev. 194; Baze v. Arper, 6 Minn. 220; Carpenter v. Dexter, 8 Wall. 513; Belo v. Mayer, 79 Mo. 67. 1 Harding v. Curtis, 45 Ill. 252. Where a statute prescribes the form of the official seal it must be strictly followed (Holbrook v. Nichol, 36 Ill. 161; Dail v. Moore, 51 Mo. 589; Hewitt v. Morgan (Iowa, 1893), 55 N. W. Rep. 478; Fleming v. Richardson, 13 La. Ann. 414; Buel v. Irvin, 24 Mich. 145; Pitts v. Seavey (Iowa, 1893), 55 N. W. Rep. 480; Meskimen v. Day, 35 Kan. 46), or the deed will not be received in evidence. Where no special form of sealing is required, its omission or the use of a scroll or other informal device is not material. Limberger v. Tidwell, 104 N. C. 506; Harrison v. Simmons, 55 Ala. 510; Equitable M. Co. v. Kempner, 84 Tex. 102; Cole v. Wright, 70 Ind. 179; Commissioners v. Glass, 17 Ohio, 342; Summer v. Mitchell, 29 Fla. 179; Mitchmer v. Holmes (Mo., 1893), 20 N. W. Rep. 1070. 2 Summer v. Mitchell, 29 Fla. 179; Cassell v. Cooke, 8 Serg. & R. 368; Johnson v. Haines, 2 Ohio, 278; Carlisle v. Carlisle, 78 Ala. 542. 3 Shults v. Moore, 1 McLean (U.S.), 520; Bennet v. Paine, 7 Watts, 334; Vanness v. Bank, 13 Pet. 21; Scott v. Gallagher, 11 S. & R. 347. See post, § 220. 5 Huxley v. Harrold, 62 Mo. 616; Rackleff v. Norton, 19 Me. 274; Kelly v. Rosenstock, 45 Md. 389; Yorty v. Paine, 62 Wis. 154; Brooks v. Chaplin, 3 Vt. 281. Todd v. Jones, 22 Iowa, 146; Hiles v. La Flesh, 59 Wis. 465; Magness v. Arnold, 31 Ark. 103; Wilcoxon v. Osborn, 77 Mo. 621; Solyer v. Romanet, 52 Tex. 562; Harrington v. Fish, 10 Mich. 415; Hartshorn v. Dawson, 79 Ill. 108; Gorman v. Stanton, 5 Mo. App. 585; Gordon v. Leech, 81 Ky. 229; Donahue v. Mills, 41 Ark. 421. Gray v. Kauffman, 82 Tex. 65; Hurt v. McCartney, 18 Ill. 129; Belcher v. Weaver, 46 Tex. 293. 8 Tourville v. Pierson, 39 Ill. 446; Bradford v. Dawson, 2 Ala. 203; Thompson v. Johnson, 84 Tex. 548; Gray v. Kauffman, 82 id. 65; Nelson v. Graff, 44 Mich. 433; Whitney v. Arnold, 10 Cal. 531. 9 Frostburg, etc. v. Brace, 51 Md. 508. wise complete and regular. A notary public may amend his incorrect certificate, and the amendment will operate as of the date of the acknowledgment. The taking of an acknowledgment is a ministerial act, and in a proper case a mandamus will lie to compel any official to correct his clerical mistakes, though it seems that he will not be allowed to do so after he is out of office. If the official is dead or cannot be found, or if his term of office has expired, the aid of equity may be invoked to correct the mistake by reforming the certificate of acknowledgment so that it will conform to the facts in the case.1 The omission of recitals of essential facts, such as the personal appearance of the grantor, or his name, or the personal acquaintance of the notary with him, as tending to identify him, or the fact that he acknowledges or executes the deed, may invalidate the certificate as evidence of execution, for these data cannot be supplied by parol evidence. But an invalid certificate of acknowledgment does not necessarily destroy the value of the writing as evidence, for the defective acknowledgment will then be regarded as an attestation, and the officer may prove the deed as a subscribing witness. On 1 See, also, Chouteau v. Allen, 70 Mo. 290; Durst v. Daugherty, 81 Tex. 650; Sharp v. Hamilton, 12 N. J. L. 109; Smith v. Williams, 38 Miss. 48; Dundas v. Hitchcock, 12 How. (U. S.) 256; 2 Hutchinson v. Ainsworth, 63 Cal. 286; Fall v. Roper, 3 Head (Tenn.), 285; Ralston v. Moore, 83 Ky. 571; Skinner v. Fulton, 39 Ill. 484; Jordan v. Corey, 2 Ind. 385; Elliott v. Peirsol, 1 Pet. 328; Miller v. Powell, 53 Mo. 252. 3 Gilbraith v. Gallivan, 78 Mo. 452. 4 Cressena v. Sowers, 26 W. N. C. 133; Simpson v. Montgomery, 25 Ark. 365; Gilbraith v. Gallivan, 78 Mo. 452; Johnson v. Taylor, 60 Tex. 360. Contra, Miller v. Powell, 53 Mo. 352; Hand v. Weidner, 151 Pa. St. 362; Stodolka v. Novotus (Ill., 1893), 33 N. E. Rep. 534. 5 Frost v. Cattle Co., 81 Tex. 505; Ennor v. Thompson, 46 Ill. 215; Rollins v. Menager, 22 W. Va. 461; Williams v. Baker, 71 Pa. St. 476; Leckman v. Harding, 65 Ill. 505; Ridgely v. Howard, 3 Har. & McH. (Md.) 321; Hayden v. Westcott, 11 Conn. 129: Newman v. Samuels, 17 Iowa, 528; Jacoway v. Gault, 20 Ark. 190; Gaines v. Catron, 1 Humph. (Tenn.) 514; Fryer v. Rockefeller, 63 N. Y. 268. And see § 205, 209. 6 Hewitt v. Morgan (Iowa, 1893), 55 N. W. Rep. 478; Carlisle v. Carlisle, 78 Ala. 542; Torrey v. Forbes, 94 id. 135; Merch. Bank v. Harrison, 39 |