§ 44. The act also provides, that, when a conveyance or instrument, conveying or affecting real estate, is acknowledged or proved, certified, and recorded, as prescribed, "and it shall be shown to the court that such conveyance or instrument is lost, or not within the power of the party wishing to use the same, the record thereof, or the transcript of such record, certified by the Recorder under the seal of his office, may be read in evidence without further proof." (Sec. 30.) It may be rebutted, but then the burden of proof will rest on the party opposing.

In the above case, however, any other competent evidence is equally admissible.

845. Before entering upon the duties of their offices, the Recorders take the constitutional oath of office, and enter into bonds in sums varying in different counties, with two or more sufficient sureties, conditioned for the faithful performance of their duties as Recorders.

It is by law made the duty of the Recorders to make searches for conveyances, mortgages, and all other instruments or papers recorded or filed in their respective offices, and to furnish a certificate thereof.

SEARCH OF TITLE.

§ 46. Yet, though a much heavier expense is incurred, particularly when sent into another county, a Searcher of Records is usually employed in preference to a Recorder, (whose other duties besides, might often cause delay,) for the investigation of titles, on account of personal confidence in the ability and integrity of the Searcher, and his experience in such matters, which causes him to be very familiar with the details of a search. In fact, the business of searching records, on account of its importance for all transactions in real estate, and the vast amount of time involved, has grown to be a profession. The Searcher has to examine the records of the county in which the land is situated, and of any other county whereof such county may formerly have constituted a portion, or under which the land may formerly have belonged, and to prepare from such records an abstract, show

а

ing all changes of ownership from the origin of the title down to the present claimant, and containing all grants, patents, deeds, conveyances, mortgages, leases, attachments, liens, judgments, street assessments, etc., which may affect the property. For judgments he will also have to examine the judgment dockets of the courts, and, for tax sales and unpaid taxes, the books in the Tax Collector's office. This laborious work is performed with great care, the reputation and consequently the business of the Searcher depending on his accuracy.

This abstract is then submitted to an attorney or counsellor at law, to further determine the validity of the title of the mortgagor to the property offered as security, upon its legal merits, under the laws of the land, and the construction put upon them by the courts.

ACKNOWLEDGMENT OR PROOF.

With reference to the acknowledgment or proof of conveyances, the conveyancing act provides, in general:

§ 47. "Sec. 3. Every conveyance in writing, whereby

a Liens cannot be enforced unless action on the same be brought within certain periods of time, as in various cases by statute provided.

b With reference to our system of conveyancing, the greatest attention should be given to an exact compliance with the provisions of our legislative acts, though there are decisions of our courts which have given a liberal construction to these laws. Most of the embarrassments ordinarily occurring are the result of deviations, in apparently unimportant particulars, from the positive provisions of the acts governing conveyances of real estate. Informal certificates of acknowledgment, as well of documents executed at home, as of deeds, powers of attorney, etc., coming from the Eastern States or Europe, have often delayed the recovery of funds, or have led to the rejection of titles.

It has therefore been considered useful to insert here approved forms for the cases most generally occurring:

STATE OF

Certificate of Acknowledgment (see ÿÿ 47-49, 51, 53).

COUNTY OF .................

On this

before me, .........

day of

A. D. One Thousand Eight Hundred and ........... a Notary Public in and for said County, residing therein,

duly commissioned and sworn, personally appeared the within named

whose name is subscribed to the foregoing (or annexed, as the case may be) instrument, as a

any real estate is conveyed or may be affected, shall be acknowledged or proved and certified in the manner hereinafter provided."

"Sec. 5. Every officer that shall take the proof or acknowledgment of any conveyance affecting any real estate shall grant a certificate thereof, and cause such certificate to be endorsed or annexed to such conveyance; such certificate shall be,

1. When granted by any Judge or Clerk, under the hand of such Judge or Clerk, and the seal of the court;

2. When granted by an officer who has a seal of office, under the hand and official seal of such officer."

$48. "Sec. 6. No acknowledgment of any conveyance, whereby any real estate is conveyed or may be affected, shall be taken, unless the person offering to make such acknowledgment shall be personally known to the officer taking the same to be the person whose name is subscribed to such conveyance as a party thereto, or shall be proved to be such by the oath or affirmation of a credible witness."

party thereto, personally known to me to be the person described in, and who executed, the said foregoing (or annexed) instrument, and the said duly acknowledged to me, that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official the day and year in this

L. S.

Seal, at my office in the County of
Certificate first above written.

..........................

NOTARY PUBLIC.

Certificate of Acknowledgment by Husband and Wife (see § 47-49, 51, 54-57).

On this before me,

day of

............

CONSULATE OF THE UNITED STATES OF AMERICA,

At.......

A. D. One Thousand Eight Hundred and ............. a Consul of the United States of America for

appointed to reside at .................................................. personally appeared the within named and ............ his wife, whose names are subscribed to the foregoing (or annexed, as the case may be) instrument as parties thereto, severally personally known to me to be the same persons described in, and who executed, the said instrument, and they severally duly acknowledged to me that they executed the same freely and voluntarily, for the uses and purposes therein mentioned.

wife of said

And the said who is personally known to me to be the person whose name is subscribed to the foregoing (or annexed) instrument as a party thereto, having been by me first made acquainted with the contents of said instrument, duly acknowledged to me, on an examination apart from and without the hearing of her said husband, that she executed the same freely and voluntarily, for the uses and purposes therein mentioned, without fear or compulsion, or undue influence of her said husband, and that she does not wish to retract the execution of the same.

8.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
Seal, at my office in the City of.
......the day and year in this
Certificate first above written.

UNITED STATES CONSUL

.................

§ 49. "Sec. 7. The certificate of such acknowledgment shall state the fact of acknowledgment, and that the person making the same was personally known to the officer granting the certificate, to be the person whose name is subscribed to the conveyance as a party thereto, or was proved to be such by the oath or affirmation of a credible witness, whose name shall be inserted in the certificate."

$ 50. It will be noted that the nature of the document occasions no change in the form of the certificate, but the latter varies according to the character of the party who executed the instrument.

The following instructions on the same subjects are also general in their nature, but subject to one exception, which will be noted hereafter.

§ 51. "Sec. 8. Such certificate shall be substantially in the following form, to wit: 'State of California, county of

on this day of

A. D.

personally appeared before me, a notary public (or judge, or officer, as the case may be) in and for the said county, A. B., known to me to be the person described in, and who executed the foregoing instrument, who acknowledged to me that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned.'"

"Sec. 9. When the grantor is unknown to the court, or officer, taking the acknowledgment, the certificate may be in the following form, to wit: 'State of California, county of on this - day of A. D. personally appeared before me, a notary public (or officer as the case may be) in and for the said county, A. B., satisfactorily proved to me to be the person described in, and who executed the within conveyance, by the oath of C. D., a competent and credible witness for that purpose, by me duly sworn, and he the said A. B. acknowledged that he executed the same freely and voluntarily, for the uses and purposes therein mentioned.""

§ 52. "Sec. 10. The proof of the execution of any conveyance whereby any real estate is conveyed or may be af fected, shall be: 1. By the testimony of a subscribing witness; or, 2. When all the subscribing witnesses are dead, or cannot be had, by evidence of the hand-writing of the

party, and of at least one subscribing witness, given by a credible witness, to each signature."

Sec. 11-17 relate at large the circumstances under which, and the manner how, proof of execution may be taken and certified to.

§ 53. The officers by whom either acknowledgment or proof may be taken, subject likewise to the one exception named hereafter, are indicated by the following acts:

Sec. 4, of the statute above referred to, provides: "The proof or acknowledgment of every conveyance affecting any real estate shall be taken by some one of the following officers :

1. If acknowledged or proved within this State, by some judge or clerk of a court having a seal, or some notary public or justice of the peace of the proper county.

2. If acknowledged or proved without this State, and within the United States, by some judge or clerk of any court of the United States, or of any State or Territory having a a seal, or by any commissioner appointed by the government of this State for that purpose."

3. If acknowledged or proved without the United States by some judge or clerk of any court of any State, Kingdom or Empire, having a seal, or by any notary public therein, or by any minister, commissioner or consul of the United States appointed to reside therein.”

By act of 19th May, 1853, sec. 107, power was conferred upon the Judges of the Supreme Court, of the district courts, of the Superior Court of San Francisco, and of the county courts in any part of the State, upon Justices of the Peace and Recorders within their respective counties, and upon Recorders and Mayors within their respective cities, to take and certify the proof and acknowledgment of a conveyance of real property, or of any other written instrument.

a Wood's Digest, art. 717.

b This court has since been abolished.

The terms "respective counties" and "respective cities" are generally considered to require that the acknowledgment by these officers must be taken in such county or city, and that they are only allowed to take the acknowledgment of deeds affecting real property, if the property be situated within their respective counties or cities.