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faith, within the meaning of the statute, and cannot hold the land against the unrecorded title of the first purchaser.’ The proper officers to take and certify such acknowledgment or proof for California' are 1. In the state—some judge or clerk of a court having a seal, some notary public, or justice of the peace of the proper county, the county recorder of the county, and recorders and mayors of cities. Judges of the Supreme Court, of the district courts, and of the county courts, may act in any part of the state; justices of the peace and recorders within their respective counties; and mayors and recorders within their respective cities.” It is generally considered that justices of the peace, recorders, county and city, and mayors, can only take acknowledgments affecting lands lying within their respective counties or cities; and a question has been suggested by some practitioners, whether notaries do not come within the same restriction. The general opinion, however, in view of the whole tenor of the adjudications of the Supreme Court upon the matter of acknowledgments, is, that notaries may take the acknowledgment and proof of the execution of deeds and other instruments, affecting lands situated in any county of the state—and such is the usual practice with notaries. The acknowledgments of married women to instruments affecting their separate property, can only be taken before a justice of the Supreme Court, a judge of the District Court, a county judge or notary public." This does not apply to instruments affecting the homestead; they may be acknowledged by a married woman before a justice of the peace as well as the officers above named.” When she conveys by her sole deed, in consequence of the non-residence of her husband, the district judge of the county in which the land lies, must take the acknowledgment." 2. Out of the state, but within the United States—some judge or clerk of any court of the United States, or of any state or territory having a seal, or any commissioner appointed by the government of this state for that purpose.' o But acknowledgments of married women as to their separate property, out of the state, can only be taken before such a judge of a court of record or commissioner.” 3. (ht of the United States—some judge or clerk of any court, of any state, kingdom, or empire having a seal, or any notary public therein, or any minister, commissioner, or consul of the United States appointed to reside therein.” The proper officers to take acknowledgments for Oregon are as follows: 1. In the state—any judge of the district court, probate judge, justice of the peace, or notary public; and the deed must be witnessed by two subscribing witnesses." 2. Out of the state, but in the United States—any judge of a court of record, justice of the peace, or notary public, or other officer authorized by the local laws to take acknowledgments, or a commissioner appointed by the governor of Oregon for such purpose; and such deed may be executed according to the laws of the state, territory, or district. In such cases, the statute of Oregon provides as follows:
1 Hunter v. Watson, Jan. Term, 1859. 4 id. 2009. * Wood's Dig. arts, 841, 717, 2844, and 2997. * Goode v. Smith and Wife, Jan. Tarm, 1859. * id. * Wood's Dig. art. 2630.
SECTION 12. In the cases provided for in the last section, unless the acknowledgment be taken before a commissioner appointed by the governor of this state for that purpose, such deed shall have attached thereto a certificate of the clerk, or other proper Certifying officer of a court of record of the county or district within which such acknowledgmen twas taken, under the seal of this office, that the person whose name is subscribed to the certificate of acknowledgment was, at the date thereof, such officer as he is therein represented to be, and that he believes the signature of such person subscribed thereto to be genuine; and that the deed is executed and acknowledged according & the laws of such state, territory, or district's
3. In any foreign country—the officers mentioned in the following provision of the Oregon statute, are the proper officers to take acknowledgments:
SECTION 13. If such deed be executed in a foreign country, it may be executed according to the laws of such country, and the execution thereof may be acknowledged before any notary public therein, or before any minister plenipotentiary, minister extraordinary, minister resident, charge }}. commissioner or consul of the United States appointed to reside therein, which acknowledgment shall be certified thereon by the officer taking the same under his hand; and if taken before a notary public, his seal of office shall be affixed to such certificate.
* Wood's Dig, art. 341. 3 id. 341. *id. 2609, * Statutes of Oregon, p. 520.
The proper officers to take acknowledgments for the territory of Washington are, a judge of the Supreme Court, a judge of the Probate Court, a justice of the peace, a notary public, or a commissioner of deeds." Every certificate should show that the person making the acknowledgment or proof, is personally known to the officer, or is proved by a competent witness to be such person, and should be signed by the officer, with his seal of office affixed, if he have one. If he be a judge or clerk, the seal of the court must be affixed. It should also state his full title, and the true date of the act— and that the person executed the same fully and voluntarily for the uses and purposes therein mentioned.” In Oregon it should also state the residence of the witness. See post. In Washington no provision is made for proof of instrument by witness. When the acknowledgment is made by a married women it should show also that she was made acquainted with the contents of the conveyance, and acknowledge, on examination apart from and without the hearing of her husband, that she executed the same fully and voluntarily, without fear or compulsion, or undue influence of her husband, and that she does not wish to retract the execution of the same.’ For Oregon, if made in the state, it should show that the acknowledgment was taken separately and apart from her husband, and that she acknowledged that she executed such deed freely, and without fear or compulsion of any one. If made out of the state, the acknowledgment or proof may be the same as if she were sole." For Washington—it should state that the officer has examined her separate and apart from her husband, and made known to her the contents of the deed, and that she acknowledged that she did voluntarily, of her own flee-will, and without the fear of or coercion from her husband, execute the deed." In every case the husband joins with the wife in the execution of the instrument—excepting in California, the cases of a female sole-trader, and where the wife is allowed to make conveyance alone, in consequence of the non-residence of her husband; and probably in the case of an inventory of her separate property,’ although even in such case, the safer and usual course is for the husband to unite in the execution of the instrument.—See HUs. BAND AND WIFE—FoEMs. When the execution of instruments is proved by the testimony of a subscribing witness, the certificate should show that the witness is personally known to the officer to be the person whose name is subscribed to such instrument as a witness thereto, or was proved to be such, by the oath or affirmation of a reliable witness, whose name must be inserted in the certificate. The certificate must then set forth the proof given by such witness, of his residence, of the execution of the instrument, and of the facts that the person whose name is subscribed to such instrument as a party thereto, is the party who executed the same, and that such witness subscribed his name to such instrument as a witness thereof.” When, in the absence or death of the subscribing witnesses, the proof is made by evidence of handwriting, the certificate must show: 1. That the officer is satisfied that all the subscribing witnesses to the instrument are dead or cannot be had to prove its execution. 2. That A B, a competent and credible witness, stated on oath or affirmation, that he personally knew the individual whose name is subscribed to the instrument as a party, well knew his signature (stating his means of knowledge), and believes the name of the person subscribed thereto as a party, was subscribed by such person. 3. That CD, a competent and credible witnesss, gave the like proof as to the (or one of the) subcribing witnesses, setting it out at length." In Oregon, proof may be made by a subscribing witness before any officer authorized to take acknowledgments of deeds, who is personally acquainted with such witness, or has satisfactory evidence that he is the same person who was a subscribing witness; and the witness must state his own place of residence, and that he knew the person described and who executed such conveyance. When any grantor is dead, out of the state, or refuses to acknowledge, and all the subscribing witnesses are dead, or out of the state, proof may be made before the District Court, or any judge thereof, by proving the handwriting of the grantor and of any subscribing witness." Every certificate which substantially conforms to the requirements of the law will be valid, although the identical language of the statute may not be used.” All interlineations or erasures, if not noted before execution, should be mentioned in the certificate. A notary or other officer authorized to make and certify acknowledgments, and the proof of the execution of deeds, and other instruments, cannot alter or correct his certificate to reform the same, even to insert the statement of a fact inadvertently omitted, after some decisive act is done, showing that he has exercised his authority over the subject. After taking the acknowledgment, and making and delivering the return, his functions cease, and he is discharged from all further authority.” The satisfaction of a mortgage, or of a judgment, must be proved or acknowledged, and certified in the same manner as a conveyance, unless such satisfaction be entered upon the margin of the original record of the mortgage, when it is acknowledged in the presence of the recorder or his deputy, who signs the same as a witness." Upon application under oath that a witness residing in the county refuses to appear and testify to the execution of an instrument, and that the same cannot be proved without his evidence, the notary, or other officer, may issue a subpoena to the witness, who, in case of refusing to appear or to answer, will be liable to
1 Laws of Wash. 402,448. * id. 359: 9 Cal. 15. * Wood's Dig. art. 341, 344–350. * Laws O. p. 520.
* Laws Wash. 402. * Wood's Dig. art. 347–350. *Wood's Dig, art. 2609, 2680, and 2607; In *id. 351,852. goldsby t, Ricardo, Jan. Term, 1859.