Notaries Public were authorized to the same effect by act of April 30, 1857, sec. 6.a

By act of 20th March, 1850, the governor of the State was authorized to appoint in each of the United States, and by amendment passed 11th February, 1858, also in each of the territories and districts of the United States, and in each foreign State, territory and colony, Commissioners of Deeds, to administer oaths and to take depositions and affidavits to be used in this State, and also to take the acknowledgment or proof of any deed, or other instrument to be recorded in this State, with the same force and effect in law, to all intents and purposes, as if done and certified by any officer within this State authorized by law to perform such acts.

ACKNOWLEDGMENT BY MARRIED WOMEN.

§ 54. The exception above alluded to, relates to the acknowledgment of the execution of deeds by married women. This has been provided for in the conveyancing act in the following manner :

66

Sec. 19. A married woman may convey any of her real estate by any conveyance thereof, executed and acknowledged by herself and her husband, and certified in the manner hereinafter provided, by the proper officer taking the ac knowledgment."

"Sec. 21. Any officer authorized by this act to take the proof or acknowledgment of any conveyance whereby any real estate is conveyed or may be affected, may take and certify the acknowledgment of a married woman to any such conveyance of real estate."

These officers are named in sec. 4, inserted in § 53.

55. "Sec. 22. No such acknowledgment shall be taken, unless such married woman 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

a Wood's Digest, art. 2844.

b Ibid. art. 300.

• That is, during the lifetime of the husband; acknowledgment by a widow does not differ from that by a single person.

proved to be such by a credible witness; nor unless such married woman shall be made acquainted with the contents of such conveyance, and shall acknowledge on an examination, apart from and without the hearing of her husband, that she executed the same freely 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."

§ 56. Acknowledgments under these provisions will be good and sufficient for all deeds by married women, including a conveyance of the homestead, but excepting deeds affecting their separate estate.

a

The form of the acknowledgment of the latter deeds, unless made under the act of 1855, noted below, is, like that of all other conveyances by married women, controlled by sec. 22, quoted above, but the officers by whom it may be taken, are not all the same.

57. The sixth section of the act of April 17, 1850, (passed subsequent to the conveyancing act,) as amended Feb. 11, 1858, provides that "no sale or other alienation of any part of the separate property of the wife can be made, nor any lien or encumbrance created thereon, unless by an instrument in writing, signed by the husband and wife, and acknowledged by her upon an examination separate and apart from her husband, before any judge of a court of record or notary public; or, if executed out of this State, then so acknowledged before some judge of a court of record, or before a commissioner appointed under the authority of this State to take acknowledgments of deeds; or before any minister, secretary of legation, or consul of the United States, appointed for and residing in the foreign country in which the said deed is to be acknowledged."

$58. The foregoing instructions apply to the execution of deeds by married women for the conveyance of their separate estate, where the husband joins in their execution. But married women, (when residing in California,) have been authorized by the first section of an act passed Feb. 14, 1855, to convey their separate estate as fully as if unmarried, where the husband has not been bona fide residing in this State for

a Pease v. Barbiers, 10 Cal. Rep. p. 436.

b Wood's Digest, art. 2630.

one year previous, (see § 77,) and the acknowledgment for a conveyance under this act is therein provided for as follows:

"Sec. 2. The execution of an instrument of conveyance by a married woman, independent of her husband, as provided in the preceding section, shall be acknowledged before the district judge of the county, in which the lands described in the conveyance are located, and the judge taking such acknowledgment, shall, before he certify the same, be satisfied by the oaths of at least two credible disinterested citizens of this State, that the husband of such married woman does not, and for one year next preceding the day of acknowledgment, has not resided in this State, which fact, and the names of the witnesses by whom the same was proved, shall be recited in the certificate of acknowledgment."

$59. Though, in general, deeds which are not, or have been defectively acknowledged, are binding between the parties thereto, and operate as notice to third parties aware of their existence, it is not so with deeds of married women. At common law the civil existence of the wife was merged in that of her husband; she could make no contract. The common law being the law of this State, except in so far as modified by its constitution or laws, the statute taking away this disability of married women, like any other statute changing the operation of the common law, must be strictly construed, and its provisions as strictly complied with.

The statute of April 17, 1850, constitutes the acknowledgment a necessary part of the conveyance of the estate of a

a But in equity, the right which the husband had at law, to his wife's real estate, might be effectually excluded by a limitation to her separate use. Though not absolutely necessary when there is a clear trust by a direct gift to the wife herself, real estate, limited to the separate use of a married woman, is more usually and properly secured to her by vesting it in trustees. Hill on Trustees, pp. *406, *407. Although this mode of proceeding has been rendered unnecessary in this State by the act of April 17, 1850, yet the wife's separate property is in many instances so conveyed in trust. The legal estate is thereby vested in the trustees, but the husband and wife should join in the execution of any deed affecting such separate property, to show their assent to the act of the trustees. The certificate of the acknowledgment by the latter, should state the fact that they acknowledged the execution of the deed as trustees to the separate use of the wife.

married woman.

Without it, or with a defective acknowl

edgment, the deed is absolutely void.a

$60. On account of the particular requirements of the law with reference to the acknowledgment of deeds conveying the estate of a married woman, the better opinion is that she cannot act by an attorney, but only direct.

Selover v. American Russian Comm. Co., 7 Cal. Rep. p. 266. Morrison v. Wilson, April T., 1859. Under the statute, no presumption of acknowledgment, on the part of a married woman, to a deed, arises from the fact of her executing it. Pease v. Barbiers, 10 Cal. Rep. p. 436. It is not in the power of a court of equity to compel a married woman to correct an insufficient acknowledgment. Barrett v. Tewksbury, 9 Cal. Rep. p. 13.

CHAPTER III.

PROMISSORY NOTE.-INTEREST.-MORTGAGE.— HOMESTEAD.

SEPARATE PROPERTY.-TAXES.-INSURANCE.

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PROMISSORY NOTE.

§ 61. The evidence of the debt, to be secured by mortgage, is generally a promissory note. Occasionally a bond under seal is used, but this is a more lengthy and a more formal instrument, whilst its use gives no advantages over the note. Mortgages are also made without either note or bond, constituting that document itself the sole evidence of debt. But, though no separate paper for the purpose of evidencing the debt is required this mode is seldom adopted, and seems less desirable. Occasionally mortgage deeds are handled, and the mortgagee, for instance, would have no written acknowledgment of the debt and its terms, in his possession, until the mortgage-deed is returned from the recorder's office.

In most cases the promissory note and mortgage are made to provide that the principal debt shall become due and payable, at the option of the mortgagee, upon any default in the payment of interest. The mortgagee thereby reserves the right to sue for interest separately, which he might prefer to a foreclosure upon principal and interest, in cases where payment of interest can be enforced independently of the premises pledged, and without disturbing his mortgage.

a Whitney v. Buchanan, April T. 1859.

The promissory note is often made payable at a specified place. In an action against the maker of such a note, it is not necessary to aver or prove presentment at maturity at that place, and refusal to pay. A failure to make such presentment could only be pleaded in defence, as to the question of costs and damages. Montgomery v. Tutt et al., 11 Cal. Rep. p. 307. But such presentment is necessary to hold endorsers liable on the note, and must be proved in an action against them.