« ForrigeFortsett »
add to or subtract from them. That part of the sixty-ninth section of the act of May 15th, 1854, is inoperative as applying to the judges of the supreme court. Houston v. Williams, January T., 1859.
77. The fourth section of article six of the constitution, providing, among other things, that the supreme court shall have jurisdiction, where the "amount in dispute exceeds two hundred dollars," is intended to apply to cases where the amount exceeds two hundred dollars exclusive of costs. Hildreth v. Gwindon, et al., January T, 1859.
78. The thirteenth section of article eleven of the constitution does not restrict the legislature either in the amount of tax which may be imposed, or the purposes to which it may be applied. The people ex rel. v. E. W. Burr et al., composing the Board of Fund Commissioners, April T, 1859.
79. The thirty-seventh section of article four of the constitution, is not a restriction upon the actual control of the legislature over the whole subject of municipal taxation at all times. Id.
80. The act of April 20th, 1S58, providing of the funding and payment of outstanding claims against the city and county of San Francisco, is constitutional. Id.
81. The seventeenth section of article first of the constitution, providing that foreigners who are bona jide residents, may inherit, etc., does not restrict the power of the legislature to confer additional privileges. The People ex rel. v. R. C. Rogers, admin
istrator, et al. April T, 1859.
, concerning escheated estates
is constitutional. Id.
ACKNOWLEDGMENT AND PROOF OF INSTRUMENTS TO BE RECORDED, AND OF SATISFACTION AND DISCHARGE OF JUDGMENTS AND OTHER LIENS.
By the laws of the states of California and Oregon, and of the territory of Washington, deeds, mortgages, and other instruments, must be recorded in the county in which any lands affected by such instrument lie, in order to give notice to all other parties of the transfer made, or other act performed by such instrument.
In California and Oregon, these instruments are recorded in the office of the county recorder, and in Washington in the office of the auditor. In California, the office of county recorder is in some counties united with that of county clerk.
The proper time for recording instruments, in California, is immediately after they are executed and delivered; in Oregon within thirty days; and in Washington within six months.
As a prerequisite to such recording, the instrument muBt be acknowledged or proved before the proper officer, and such acknowledgment or proof must be certified by the officer in the proper form; or the purposes of such recording will not be effected.
If such deed or other instrument be not lawfully acknowledged and recorded, it will still be valid between the parties to the same and their representatives—but will not hold good as against the title of a subsequent purchaser in good faith, and for a valuable consideration, whose deed shall have been duly acknowledged and recorded.
In California it is decided that open notorious possession of real estate by one having an unrecorded deed for it, at the time of the acquisition of title or deed by the subsequent vendee from the common vendor, is notice to the subsequent vendee; and such subsequent vendee or purchaser is not a purchaser in good 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, n 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.'
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. Out 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 pz-oper 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 conrt 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:
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 cerfificate 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 to the laws of such state, territory, or district.'
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 d'affaires, 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.
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.1
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 st ate 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.4
For Washington—it should state that the officer has examined her separate and apart from her husband, and made known to