^lOSANCE^ -< ^vJytUBRARYQ^ ^OFCALIfO/i^ ^OfCAllFOftij^ "^(^Aavaan-aJJ^ >&Aaviian# I- ^. .\\^EUNIVER% ^XiUOKVSOl^ ^lOSANCflfX^ "^/saaMNnav^ ^lOSANCElf/^ t so ^ ^ vl A^OFCALIFOff^ >&Aavaaiu^ ,5Jt\EUNIVERS//, ^AOJI1V3JO=^ ^JJUQNVSOV^ ^5J\EUNIVER%. '/?i.HV)jflii-:\v:^ I ^/Ja3AlNa-3WV^ ^IOSANCEI£;0> ^lUBRARYQc. ^AlUBRARYQ^, 5X\EUNIVER% ^OFCAUFOJK^ ^-KOinVDJO"^ ^J^IJONVSOA^^^ ^OFCAUFO/?^ ^5jt\EUNIVER%. ^^ ^OFCAIIFO/?^ ^OFCAllFOMj^ .\MEUNIVERy/A >^10SANCEI^>^ Vio I uwiinn •i\!JS' ^ <:^OFCALIFO% c-> c-> i, • o F0%, ^OFCA[IF0% 1 1 %:^\ s ^i ER% ^lOSANCFlfjv K9 ^(r .^,vN?^ -/■/."., .v:"»r' THE AUTHENTICATION, ACKNOWLEDGMENT AND PROOF OF WRITTEN INSTRUMENTS UNDER THE VARIOUS LAWS WHICH HAVE BEEN IN FORCE TEXAS HEU EARLIEST HISTORY THE PRESENT TIME BY RUSSELL WHITELAW HOUK Of the Houston Bar SAN FRANCISCO BANCROFT-WHITNEY COMPANY Law Publishera and Law Booksellers 1905 T 1905 Copyright, 1905, BY EUSSELL WHITELAW HOUK. San Francisco: Thb Filmer Brothers Electrotype Company, Typographers and Stereotypers. u. h TO MY MOTHER. i;: PREFACE. While so many books are being forced upon tlie pro- fession, an apology may be due it for offering another. The excuse is that we believed such a work would save much labor, and no such had been published. As the validity of authentication, under the Mexican laws and acknowledgments, etc., under Texas laws is tested by the laws in force at the time they are made, and as they have been constantly changed, it has been a difftcult task for attorneys to determine what laws were in force, what oflflcers were authorized, what cer- tificates were required, at a given time, and what de- fects have been validated, etc. For instance, there are in this state about ninety different laws affecting the authority of ofiflcers to take acknowledgments, etc.; about sixty different laws affecting the manner of tak- ing and cer-tifying to acknowledgments and proof ; about thirty-two validating statutes, etc., few of same being incorporated in the Revised Statutes, and the others scattered through the session laws of the different legis- latures, without any general index, during which time many different constitutions have been in force and many changes of government have taken place. The intention has been to afford a ready reference to the laws in force at any desired time, on any of the subjects treated, with the decisions affecting same, pointing out Avhat laws were in force at any desired time, when they were repealed, if ever, and what laws are now in force. A\'e would not ask more of the bar than that it show tlie same magnanimity in regard to the errors and defects in this work that it has so often shown toward our judges when they have erred. R. W. HOUK. Houston, Texas, December, 1005. TABLE OF CONTENTS. CHAPTER I. CONVEYANCES, AUTHENTICATION AND EEGISTEATTON PRIOR TO THE REGISTRATION ACT OF DECEMBER 20, 1836. § 1. Historical outline. § 2. How sale may be effected under Spanish and Mexican laws. Verbal sale of real estate valid. Form of contracts. Notice and priority of purchasers under Spanish and Mexi- can laws. § 3. Method of authentication and record prior to 1836. (a) By authorized ojfficers. (b) Spanish language to be used. (c) Stamped paper to be used. (d) Seals, signets, rubrics and notarial flourishes. (e) Signatures, names, residences, date, venue, terms, etc. (f) Assisting witnesses necessary to authentication, when. (g) Alterations, blanks, interlineations, forgeries, etc. (h) Presumptions— Proof— Antiquity. (i) Method for Austin colony. (j) Custom. § 4. Necessity, materiality and effect of authentication. § 5. OflScers authorized to authenticate. § 6. Notaries public. §§ 7-21. Judges and decrees relating to same. § 22. Authority of officers immaterial, when. CHAPTER II. THE EFFECT OF THE REGISTRATION ACT OF DECEMBER 20, 1836, AND SUBSEQUENT ACTS ON TITLES AND DEEDS EXECUTED PRIOR THERETO. § 23. Effect of said act and necessity of registration. § 24. Judges to deposit records with county clerk. § 25. Protocols and copies thereof. § 25a. Does this act apply to protocols of other ofiicers also? § 26. Admissible in evidence. (vii) viii TABLE OF CONTENTS. § 27. Proceedings of ayuntamiento should not be delivered to county clerk, nor protocols to the land commis- sioner. g 28. Protocol might be proved and recorded. § 29. Necessity of recording protocols. § 30. Certified copies by county clerks admissible. § 31. Certified copies by general land office admissible. § 32. Titles must be recorded. § 33. Testimonios. § 34. Idem. § 35. Public and authentic instruments. § 36. Private instruments. § 37. Copies of instruments in archives to be recorded. § 38. Certificate of legal custodian sufficient proof. § 39. Copies, admissible in evidence when. § 40. Idem. § 41. Archives. § 42. County clerks to be recorders — Acknowledgments and proof. § 43. Two subscribing witnesses required, when. § 44. Above provisions obscure. § 45. Acknowledgment by officer sufficient. § 46, Testimonio recorded on proof of handwriting. § 47. Where record is made, it is presumed proof was made. § 48. Proof must be indorsed on instrument, when. § 49. Chief justices ex-officio notaries public. § 50. No seal necessary where acknowledgment taken by county clerk, when. CHAPTER III. ACKNOWLEDGMENT AND PROOF. § 51. Nature. § 53. Object. § 54. Origin and necessity. § 55. Not necessary between the parties, when. § 56. Nor in case of assignment. § 57. Not necessary in case of a railroad company, when. § 58. Chattel mortgage need not be acknowledged when. § 59. Acknowledgment essential to married woman's deed. § 60. Wife abandoned by husband or he is insane. § 61. Married woman's oral agreement. § 62, Necessity in case of ancient instruments. § 63. Effect. § 64. Execution not proven by. § 65. Wife's defective acknowledgment harmless on husband's deed. § 66. Notice. § 67. Acknowledgment, how shown or proved. TABLE OF CONTEXTS. ix CHAPTER IV. HOW MADE AND TAKEN. § 68. Under what law. § 69. Prior to December 20, 1836. §§ 70-82. Act of December 20, 1836. § 70. Chief justices ex-officio notaries. § 71. Acknowledgment or proof by one witness. § 72. Time in which record was to be made. § 73. Acknowledgment or proof by two witnesses. § 74. No form prescribed. §§ 75-77. What acknowledgment and proof sufficient under above law. § 78. Acknowledgment and proof. § 79. What sufficient. § 80. No seal was necessary when. § 81. Not necessary for certificate to show grantor known to officer. § 82. Substantial compliance necessary. § 83. Act of January 19, 1839, required certificate. § 84. Act of February 5, 1840. § 85. Two justices of the peace. § 86. Eepealed when. g§ 87-88. Act of February 5, 1841. § 87. Validates want of authority of certain officers. § 88. Acknowledgment and proof certified. §§ 89-90. Act of May 8, 1846 — Commissioners of deeds. §§ 91-94. Act of May 12, 1846. §§ 91-92. Acknowledgment, how taken. § 93. If grantor or witness unknown, proof made. § 94. Substantial compliance only required. § 95. Acts of April 6, 1861, and January 14, 1862— Seal of railway company sufficient authentication. § 96. Act of March 6, 1863— Handwriting. § 97. Acts of November 13, 1866, August 8, 1870, August 13, 1870, May 6, 1871— Seal. § 98. Constitution of 1875— Errors. §§ 99-104. Kevised Statutes of 1879 and 1895. § 99. Single acknowledgment, how made. § 100. Identity. § 101. Certificate of officer. § 102. Form. § 103. Of married women, how taken. § 104. Form of certificate for married women. § 105. How made — Continued. TABLE OF CONTENTS. § 106. Through tlio tolcplioue. § 107. Final title— Revised Statutes of 1S79 and 1895-Con- struction of statutes. § lOS. Statutes not incorporated in Eevised Statutes repealed. § 109. Validating statutes not repealed. § 110. Statutes construed as continuation. By corporations, see post, § 553. By railway companies, see post, § 558. Proof by subscribing witnesses, see chapter 12. CHAPTER V. PLACE OF TAKING ACKNOWLEDGMENTS. § 111. General rule. § 112. County clerks not authorized where deed is to be recorded without their county, when. § 113. Chief justices of the county courts may not have been au- thorized where deed was to be recorded without their counties, wlien. § 114. Presumption is that officer acted within jurisdiction. § 115. Must be taken in compliance with laws of Texas. CHAPTER VI. TIME OF TAKING ACKNOWLEDGMENT. § 116. Generally. § 117. Incomplete deed. § 119. Acknowledgment relates back to execution of deed, when. § 120. Married woman's acknowledgment relates back, when. § 121. Husband and wife may acknowledge deeds at different times. § 122. On Sunday or legal holiday. § 123. Acknowledgment invalid at time made. CHAPTER VII. CERTIFICATE OF ACKNOWLEDGMENT. A. CERTIFICATE GENERALLY. § 124. Place of certificate. § 125. Language. 126-127. Time of making certificate. § 128. On Sunday or legal holiday valid. TABLE OF CONTENTS. xi § 129. Adopting form invalid at time used. § 130. Venue. § 131. Date. § 132, Signature. § 133. Official character. § 134. Certificate not showing official character aided by record. § 13.5. Not shown by reference to record, but by reference to deed. § 135a. Official character cannot be shown by extrinsic evi- dence. § 136. Official character shown by initials and caption of certificate and by seal. B. MUST CERTIFY WHAT. §§ 137-138. Generally. § 139. Grantor known or proved to officer. § 140. Known by introduction sufficient. § 14:1. Omission of "known to me" fatal. §§ 142-145. Acquaintance sufficiently shown. § 146. "Proved to me on oath of" surplusage. § 147. Identity of grantor and person acknowledging deed must appear. § 148. Omission of grantor's name, § 149. Variance in names. § 150. Parol evidence to show identity. § 151. Variance immaterial when. § 152. Middle initial immaterial. § 153. Omission of "to be the person," etc. § 154. Acknowledged execution to officer. § 155. Casual admission in officer's presence insufficient, § 156. Sufficiently shown. C. IRREGULAR CERTIFICATION. §§ 157-160. Sufficient certification, though irregular. § 161. Clerical errors not fatal. § 162. "The" instead of "they." § 163. "Contract" for "retract" and other mistakes. § 164. Insufficient certification — "The within instrument duly proved" insufficient, § 165. "He" for "they" defective. § 166, Omission of "they" fatal. § 167. Surplusage. § 168, Unnecessary words. § 169, Uncanceled words in printed certificate, § 170, Name out of place, §§ 171-173. Errors and omissions. xii TATU^E OF CONTENTS. D. PAKOL EVIDENCE. § 174. To aid certificate not admissible, when. § 176. Admissible, when. §§ 177-179. To correct , imperfect certificate of valid acknowl- edgment. • § ISO. Limitation. § 181. Where acknowledgment itself is defective, parol evidence inadmissible. § 182. Parol evidence — Inadmissible, when. § 183. Want of capacity in oflScer cannot be shown. § 184. Parol evidence to impeach certificate admissible, when— May show no acknowledgment made. § 185. Where purchaser is chargeable with notice, etc. §§ 186-187. Burden of proof— Where seeking to defeat certifi- cate. § 188. Burden of proof in case of equitable titles. § 189. Burden of proof in case of legal titles. § 190. Secondary evidence admissible when. § 191. Amendment of certificate — By officer. E. ^EETIFICATE AS EVIDENCE. §§ 194-195. Not evidence of execution of deed. § 196. Admissible to prove protest. § 197. Validates the deed. § 198. Protocols and copies admissible on certificate, when. • § 199. Copies of archives admissible. § 200. Copies from foreign jurisdictions. § 201. After act of December 20, 1836, proof of execution required. §§ 202-203. Copies filed prior to February, 1837, admissible when. § 204. Copy of deed not properly acknowledged not ad- missible as ancient instrument. § 205. Certificate of acknowledgment proven by second- ary evidence. F. CEETIFICATE OF MAGISTRACY AND CONFORMITY. § 206. Generally. § 207. Required in Texas, when. § 208. Remained in force how long. § 209. Not required thereafter. 6. CERTIFICATE MUST BE IN COMPLIANCE WITH LAWS OF TEXAS. § 210. Foreign oflScer must be authorized by laws of Texas. TABLE OF CONTENTS. xui K. CONCLUSIVENESS OF CERTIFICATE OF ACKNOWLEDG- MENT. § 211. Conclusive when. § 212. Conclusive as to capacity of officer, etc. § 213. Not where grantor never attempted to -acknowledge it. § 214. Nor unless grantee is an innocent purchaser for value. § 215. Presumptions. L CERTIFICATE AS NOTICE. § 216. Notice. J. FORM AND REQUIREMENTS OF CERTIFICATE. § 217. Must comply with law in force at time certificate is made. § 218. A substantial compliance with statute is all that is required. K. FORM AND REQUIREMENTS UNDER THE DIFFERENT STATUTES. § 219. Prior to act of December, 1836. § 220. Act of December 20, 1836. § 221. Certificate required when. § 222. Certificates by county clerks required when. § 223. Acknowledgment of signature of officer sufficient. § 224. Proof of signature of single witness sufficient. § 225. No seal necessary, when. § 226. When grantor is known to officer, it is not necessary to be certified. § 227. Act of January 19, 1839. § 228. Act of February 5, 1840. § 229. Act of February 5, 1841. § 230. Act of May 8, 1846. § 232. Act of May 12, 1846. § 233. The acts of April 6, 1861, January 14, 1862, November 13, 1866, and May % 1871. § 234. Act of March 6, 1863. § 235. Acts of November 13, 1866, August 8, 1870, August 13, 1870, and May 6, 1871. § 236. Constitution of 1875— Errors. § 237. Revised Statutes of 1879 and 1895— Identity. TABLE OF CONTENTS. CHAPTER VIII. ACKNOWLEDGMENT AND CONVEYANCE BY MAEKIED WOMEN PRICE TO THE ACT OF FEBRUARY 3, 1841. § 238. Not required as at present. § 239. Consent of husband required but not separate acknowledg- ment. § 240. Wife's acknowledgment taken in same manner as single person 's. § 241. After adoption of common law, no provision made until 1841. § 242. Convey her personal property without acknowledgment. CHAPTER IX. CONVEYANCES BY MARRIED WOMEN AFTER FEBRUARY 3, 1841. § 243. Wife's conveyance must be separately acknowledged. § 244. By agent or attorney. § 245. Executory contract for sale of homestead not binding. § 246. Executory contract for sale of wife's other property binding. CHAPTER X. ACKNOWLEDGMENT BY MARRIED WOMEN AFTER THE ACT OF FEBRUARY 3, 1841. § 247. The acknowledgment, not the signature, is the deed of married women. § 248. Held that deed without proper certificate of acknowl- edgment is void. § 249. Deed properly acknowledged but defectively certified, not void. § 250. First, it might be reacknowledged. § 251. Second, waived by estoppel. § 252. Third, validated by statute. § 253. Fourth, corrected by action. § 254. Idem. § 255. Acknowledgment of wife properly taken but defectively certified void as to vested rights. § 256. Acknowledgment improperly taken but properly certi- fied valid when. TABLE OF CONTENTS. xv §§ 257-269. Eeqnirements of valid aeknowledgnieut. §§ 257-258. Privj' examination essential. § 259. Prior to act of February 3, 1841. § 260. How corrected. §§ 261-262. Explanation essential. § 263. By interpreter valid. § 264. If she knew contents. § 265. Explanation where reference is made to an- other instrument. § 266. Free from compulsion. § 267. Eight to retract. § 268. Grantor known or proved to officer. § 269. Extent of acquaintance. § 270. May be taken at different times— One may be valid though other invalid. § 271. On legal holidays valid. § 272. Acknowledgment of married woman 's receipt not re- quired. § 273. Abandoned by husband or he is insane, she may convey as single person. § 273a. Schedule of married woman's separate property. (See ''Acknowledgment and Proof," chapter 3.) CHAPTER XI. CERTIFICATION OF ACKNOWLEDGMENTS OF MARRIED WOMEN. A. GENERAL TEXT. § 274. No separate acknowledgment required prior to 1841. § 275. Certificate of acknowledgment essential and conclusive. § 276. Conclusive if grantee innocent purchaser for value. § 277. Not conclusive if grantee is chargeable with notice. § 278. Not conclusive if grantor did not acknowledge. § 279. Defective certificate does not render deed void when. § 280. Wife's deed not complete without certificate of aclcnowledg- ment. g 281. Held wife's deed void until certificate corrected. § 282. Amendment. § 283. Certificate proven, how. § 284. Parol evidence, § 286. Form of certificate of married woman's acknowledgment. § 287. Substantial compliance with statute necessary. § 288. May be invalid as to husband but valid as to wife. § 289. Must certify what. ^,.i TABLE OF CONTENTS. § 290. Separate and privy examination. § 291. <' Separate" instead of "privily." § 292. "Apart from her husband" sufficient. § 293. Explanation. § 294^ Omission of "explained to her" fatal. § 295. Wife otherwise knew contents of deed. § 296. "Explained" equivalent to "fully explained." I 297. Certificate not defective for failing to show that deed was shown to wife. § 298. Free from compulsion. § 299. "Free" instead of "willingly." § 300. "Eetract." § 301. "Known to me." § 302. Acknowledgment must be personal to officer. § 304. Official character must be shown. § 305. Official seal. § 306. Signature of officer. § 307. Certain omissions immaterial. § 308. Identity of grantor and person acknowledging deed. § 309. Omissions and errors. § 310. Error clearly clerical not fatal. § 311. Material omissions fatal. § 312. Equivalent expressions. § 313. Estoppel and equities. § 314. In case of partition. § 315. Where wife's land is released. § 316. Where fraud is practiced by wife. § 317. Not estopped simply because she received the benefits. § 318. Defective certificate of valid acknowledgment. § 319. Conclusiveness of certificate of wife's acknowledgment. § 320. Same strictness does not apply to wife's as to husband's. § 321. Cannot show want of capacity in officer, etc. § 322. Officer cannot explain certificate, but may prove ac- knowledgment properly taken. § 323. May be avoided by her when. § 324. Presumption is that certificate recites the facts. B. STATUTOEY PROVISIONS CONCERNING ACKNOWLEDG- MENTS OF MARRIED WOMEN. § 325. Act of February 3, 1841 — Requirements and form. § 326. Idem— Annotated. § 327. Act of February 5, 1841— Validates want of authority in cer- tain officers. § 328. Act of April 29, 1846— Acknowledgment of schedule of wife's property. TABLE OF CONTENTS. xvii § 329. Act of April 30, 1846— Eequirements and form. § 330. Idem— Annotated. § 331. How taken -without the state. § 332. Above law applies to what property. § 333. Eepeals other laws. § 334. Act of May 8, 1846— Commissioners of deeds. § 335. Act of May 13, 1846— Notaries authorized. § 336. Act of May 12, 1846— Form and requirements not affected. § 337. Act of March 16, 1848— Form and requirements not affected. § 338. Act of December 18, 1849— Form and requirements not af- fected. § 339. Act of February 9, 1856— Validates. § 340. Act of February 9, 1860— Validates. § 341. Act of August 13, 1870— Validates. § 342. Act of April 27, 1874— Validates. § 343, Act of May 25, 1876 — ^Form and requirements not affected. § 344. Act of July 28, 1876— Validates. § 345. Eevised Statutes of 1879 and 1895— Eequirements of wife's acknowledgment. § 346. Husband must join wife in her conveyance. § 347. Conveyance of homestead must be acknowledged by wife. § 348. Form of certificate of wife's acknowledgment. § 348a. Act of March 26, 1897— Conveyance of homestead. § 348b. Conveyance of wife's separate property. For officers authorized, see chapters 20 to 27. For certificate prior to December 20, 1836, see ante, chapter 1. CHAPTER XII. FEOOF OF INSTEUMENTS BY WITNESSES. A. PEOOF AND WITNESSES GENEEALLY. § 349. Proof made under what law. § 350. Necessity of subscribing witnesses under Spanish law prior to 1836. § 351. Conveyance not full proof unless witnessed. § 352. Witnessed by notaries. § 353. Under colonization laws, title not witnessed must be proved. § 354. Necessity of subscribing witnesses subsequent to 1836. § 355. Married woman's deed cannot be proved by subscribing witnesses when. § 356. By subscribing witnesses not required in all cases. § 357. Act of December 20, 1836— How made under— Presumption as to proof. § 358. How far repealed. § 359. How proved under subsequent statutes. TABLE OF CONTENTS. B. HOW PROVED GENERALLY. § 360. Judge attesting is subscribing witness when. § 361. Acknowledgment of officer's signature to certificate suflEieient proof. § 362. Officer not competent without accounting for absence of wit- ness. § 363. Subscribing witness must be produced if possible. § 364. Sole subscribing witness sufficient when. § 365. Where witness signs by making his mark. § 366. Certificate that instrument was "duly proven before me" insufficient. § 367. Necessary to state that w'itness signed at request of grantor when. § 368. Signed at request of— Rule at present time. § 369. Not necessary to show witness' means of knowledge. § 370. Means of knowledge stated. § 371. Must show witness saw grantor sign or heard him acknowl- edge. § 372. Not necessary for witness to have seen execution. § 373. Saw firm name signed. § 374. Grantor's name instead of attorney's in certificate fatal. § 375. Clerical omission not fatal w^hen. C. PROOF BY WHOM TAKEN. § 376. Generally. § 377. Officer who is subscribing witness is qualified. D. PROOF OF INSTRUMENTS FOR RECORD BY WHOM MADE. § 378. By subscribing witnesses generally. § 379. Where there were no subscribing witnesses. § 380. Witness beyond jurisdiction of the court. § 381. Act of May 12, 1846. § 382. Act of March 6, 1863. § 383. Revised Statutes of 1879 and 1895. § 384. Number of witnesses to prove handwriting required. E. WHO MAY BE SUBSCRIBING WITNESSES. § 385. General rule. § 386. Held that grantee is incompetent witness. § 387. Interest disqualified witness when. § 388. Idem. § 389. Interest does not disqualify when. § 390. Where one witness incompetent, handwriting of other may be proved. § 391. Grantor's selection and volunteer witnesses. TABLE OF CONTENTS. xix F. WITNESS MUST BE KNOWN TO OFFICEE. § 392. Witness required to be known when. G. CERTIFICATE OF PROOF BY SUBSCRIBING WITNESSES. § 393. Must show that witness known. § 394. Idem. § 395. That witness was sworn. § 396. That witness saw execution, or heard acknowledgment and was requested to sign. § 397. Idem— Rule prior and subsequent to 1846. § 398. Where witness' name appears on deed, it is not necessary to certify that he was a subscribing witness. § 399. Alternative certificate. § 400. Irregular certificate. § 401, Official character. § 402, Seal, § 403, Signature. § 404. Purposes and considerations. § 405, "Execute" instead of "subscribe," § 406. Other requirements and force and effect of certificate. § 407. Form of certificate of proof controlled by what law. § 408. Substantial compliance with statute only required. H, STATUTORY REQUIREMENTS AND FORMS FOR PROOF BY SUBSCRIBING WITNESSES. § 409. Decree of April 18, 1834 — Judges to be assisted by witnesses. § 410. Act of December 20, 1836— Chief justices authorized to take proof. § 411, Clerk authorized to record on proof by one witness, § 412, Proof by two witnesses or handwriting of one, § 413, Certificates and form under this act. S 414. Act of January 19, 1839 — Required certificate, § 415. Act of January 18, 1840 — Statutes of frauds, § 416. Act of February 5, 1840— Two witnesses— Certificate, § 417. Act of February 5, 1841— Validates. § 418. Idem— Certificate and proof. § 419, Act of May 8, 1846 — Commissioners of deeds, § 420, Act of May 12, 1846 — Proof and acknowledgment, how made. § 421. Handwriting proved. § 422. Grantor unknown. § 423, Certificate attested. § 424. Presumption where no certificate of proof of identity. § 425. No form provided. § 426. Act of February 9, 1860— Validates. § 427. Acts of 1861, 1862, 1866 and 1871. XX TABLE OF CONTENTS. § 428. Act of 1863— Where grantor makes liis mark. § 429. Act of August 13, 1870— Validates. § 430. Act of May 19, 1871— Witness not disqualified by interest. § 431. Act of April 27, 1874— Validates. § 432. Eevised Statutes of 1879 and 1895— Proof by subscribing witness. § 433. Grantor know or proven. § 434. Prior to Eevised Statutes of 1879. § 435. Form of certificate. § 436. Proof of handwriting. § 437. Facts to be proven. § 438. Where instrument signed by mark. § 439. Number of witnesses. I. PEOOF OF INSTEUMENTS BY PEOOF OF HANDWEITING. § 440. What law in force. § 441. Proof must conform to statute in force at tinie proof is made. § 442. Proof for record by proof of handwriting. § 443. Must be proved by persons authorized by statute. § 444. Where witness is interested. § 445. Where witness is grantor or grantee. § 446. Ancient instrument. § 447. Predicate for secondary evidence. § 448. Most satisfactory proof. § 449. Proof of handwriting by comparison. § 450. Eule modified. § 451. Certificate of proof by proof of handwriting. § 452. Substantial compliance only necessary. § 453. Valid forms. § 454. Idem. J. STATUTES AND NOTES CONCEENING PEOOF BY PEOOF OF HANDWEITING. § 455. Act of December 20, 1836. § 456. Handwriting of whom— Certificate. § 457. Admissible in evidence but not of record. § 458. Act of January 19, 1839— Signature of signer. § 459. Act of January 18, 1840— Statute of frauds. § 460. Act of February 5, 1840— Proof by two witnesses. § 461. Act of February 5, 1841— By a subscribing witness. § 462. Act of May 12, 1846— Witness absent. § 463. Sufficient proof — Grantee prove absence of witnesses. § 464. Act of February 9, 1860— Validates. § 465. Act of March 6, 1863— Witness absent. § 466. Sufficient proof under this act. TABLE OF CONTEXTS. xxi § 467. Eevised Statutes of 1879 and 1895— Handwriting of grantor and one subscribing witness proved. § 468. Facts which must be proven. § 469. Signature by mark— Proof, how made. § 470. Proof made by whom. K. OTHEE MEANS OF PEOVIXG CONVEYANCES FOE EECOED. § 471. Obtaining and recording judgment. § 472. Curing certificates. L. PEOOF OF DEEDS OFFEEED IN EVIDENCE. § 473. Common-law rules of evidence. § 474. By subscribing witnesses. § 475. Subscribing witnesses not obtainable or adverse party. § 476. Where witness' handwriting cannot be proved. § 477. May be proved by grantee when. § 478. Proved by any competent witnesses when. § 479. No subscribing witnesses— Proof, how made. § 480. By other evidence. § 481. Primary and secondary evidence. § 482. General rule. § 483. Line drawn between primary and secondary evidence. CHAPTER XIII. SEALS. A. GENEEAL TEXT. § 484. Seals essential— Kind of seal to be used. § 485. Not constructive notice without seal. § 486. Not required when. § 487. Attachment of seal is question of fact, § 488. Eeference to seal unnecessary when attached. § 489. Presumption and statement as to seal. § 490. Eeference to seal on record affords presumption of proper seal. § 491. Statement in record "no seal on" ineffectual if original shows seal. § 492. No presumption that seal was attached where there is noth- ing to show it. § 493. Clerical omission of word "seal" not fatal. § 494. Parol evidence to aid seal. § 495. Omission of seal by mistake not aided by parol. § 496. Parol evidence to aid omission admissible when. xxi! TABLE OF CONTENTS. § 497. Seal may be attached when. § 498. Justices of the peace must use notarial seals. § 499. No form of seal for commissioners of deeds jjrescribed when. § 500. Forms of seals prescribed. § 501. Private seals or scrolls— Eailroad company's seals — Private seals in lievi of official. § 502. Conveyance without private seals not void, B. STATUTORY ENACTMENTS EELATING TO SEALS. § 503. Act of December 20, 1836— Seal of county court. § 504. Act of November 16, 1837 — Notaries shall use seal. § 505. Act of February 5, 1840— Use of seal required. § 506. Act of February 3, 1841— Use of seal required. § 507. Act of February 5, 1841 — Use of seal required. § 508. Act of January 10, 1845— Notarial seal. § 509. Act of April 29, 1846— Use of seal required. § 510. Act of April 30', 1846 — Judges and notaries to attach seals. § 511. Act of May 8, 1846— Commissioners of deeds to use seals. § 512. Act of May 11, 1846— Seal of district court. § 513. Act of May 13, 1846— Notarial seals. § 514. Act of May 12, 1846— Seals of county court. § 515. Act of May 13, 1846— Seals of county court. § 516. Act of March 16, 1848 — Seals of county court. § 517. Act of November 24, 1851— Validates seal used by Galveston county court. § 518. Acts of April 6, 1861, and January 14, 1862— Use of seals required. § 519. Act of December 31, 1861 — Seals of commissioners of deeds. § 520. All subsequent acts required the use of seals. § 521. Act of June 16, 1876— Seal of county court. § 522. Act of June 24, 1876— Seals of notaries. § 523. Act of August 18, 1876 — Seals of county court. § 524. Act of April 18, 1879— Validated certain notarial seals. § 525. Act of March 18, 1881— Validated certain notarial seals. § 526. Act of April 1, 1881— Notarial seals. § 527. Act of April 5, 1889— Validates certain notarial seals. (For necessity of seals prior to December 20, 1836, see ante, § 3 (d).) ' CHAPTER XIV. AUTHENTICATION WITHOUT THE STATE. § 528. Generally— Must be taken in compliance with Texas laws. § 529. Foreign language. § 530. Form and requirements of certificates and acknowledgments. TABLE OF CONTENTS. xxiii § 531. Authority shown by certificate of conformity when. § 532. Official character shown by certificate. § 533. Certificate must show that the court before whom acknowl- edgment is made is a court of record. § 534. Other rule in Illinois. § 535. Judges of courts of record no authority after 1879. § 536. Acknowledgment authorized without the state by act of February 5, 1841. § 537. As to acknowledgments of married women. § 538. Certificates of conformity. § 539. Continued in force. § 540. Acknowledgments of married women by act of April 30, 1846. § 541. Eepealed former laws. § 542. Certificate of conformity under above act. § 543. Authority continued. CHAPTER XV. WHO MAY MAKE ACKNOWLEDGMENTS. Generally. Officer's deputy. The law elsewhere. Agent or attorney. Attorney of married woman. Firm as attorney in fact. Irregular certificate of attorney's acknowledgment. Partner may acknowledge. Either partner may acknowledge in firm name. Corporations may acknowledge. Not necessary to state that it was the act of the corpora- tion. By vice-president. Attorney in fact not required to use corporate seal. Known to officer, etc. Railroad corporations— No acknowledgment required when. Acknowledgment required after 1871. Married women — Husband must join. Held that it must be acknowledged by husband also. Husband's acknowledgment not necessary. Acknowledgments by husband and wife need not be at aame time. When wife is abandoned by husband. When husband is insane. Married woman as agent. Wife cannot authorize husband to act for her. § 544. § 545. § 546. § 547. § 548. § 549. § 550. § 551. § 552. § 553. § 554. § 555. § 556. § 557. § 558. g 559. § 560. § 561. § 562. § 563. § 564. § 565. § 566. § 567. xxiv TABLE OF CONTENTS. § 568. Married woman may convey by attorney. § 569. Wife 's executory contracts. § 570. Idem. § 571, Special commissioner. § 572. Judge of first instance. (See "Proof by Subscribing Witnesses.") CHAPTER XVI. WHO MAY TAKE ACKNOWLEDGMENTS AND PKOOF-GEN- EEALLY. § 573. Interest disqualifies. § 574. Stockholder of corporation. § 575. Officers of corporation. § 576. Commission as trustee. § 577. Preferred creditor. § 578. Deputy of interested party. § 579. Agent or attorney. § 580. Idem. § 581. By partner of grantee, § 582. Eelationship. § 58B. Husband of grantee. § 584, Attesting witnesses. § 585. De facto officers. § 586, Ex-officio officers. § 587. Deputies may take when. § 588. Deputy county clerks. § 589. Deputy and "pro tem" county clerks. § 590. Deputy district clerks. § 591. Deputy justices of the peace. § 592. Deputy district clerks. § 593. Presumptions. § 594. Judicial knowledge of authority of officers. § 595. Extraterritorial authority. For authorized officers prior to December 20, 1836, see ante, §§ 5-21. For authorized officers subsequent to December 20, 1836, see chapters 17-27. TABLE OF CONTENTS. CHAPTER XVII. WHO MAY TAKE ACKNOWLEDGMENTS AND PEOOF WITHIN THE STATE, CONTINUED— THE VAEIOUS LAWS CON- CERNING THE AI'THOEITY OF OFFICEES SINCE AC- KNOWLEDGMENTS WEEE EEQUIEED DECEMBEE 20, 1836. § 596. Composition of courts in 1836— Judges remain in office. § 597. Act of December 20, 1836— County court. § 598. Chief justices ex-offieio notaries. § 599. Clerks authorized to take acknowledgments and proof. § 600. Clerk "pro tem" authorized. § 601. Proof by witnesses before county clerk or judge. § 602. Notes on above act. § 603. Act of June 12, 1837 — Associate justices. § 604. Act of November 16, 1837 — Notaries. § 605. Act of December 21, 1837— Deputies. § 606. Note. § 607. Act of May 15, 1838— Notaries. § 608. Act of January 19, 1839— Duties of recorder. § 609. Note. § 610. Act of January 26, 1839— Chief justices of county court. § 611. Act of February 5, 1840— Deeds to be by writing, sealed and delivered, and acknowledged or proved by two witnesses before the county court. § 612. When constructive notice. § 613. Clerks authorized to record on acknowledgment or proof, or on certificate of a district judge, chief justice or notary. § 614. Acknowledgment before two justices of the peace. § 615. Notes on above act. § 616. Act of January 22, 1841— Associate justices. § 617. Act of February 3, 1841— Acknowledgments of married women. § 618. Notes. § 619. Act of February 5, 1841— Validates. § 620. Idem— Deeds thereafter to be recorded. § 621. Note. § 622. 1. Did not revoke authority of officer previously authorized— Eepeal by implication. § 623. Idem— Eevising prior statute. § 624. Idem— Where latter is clearly intended as sub- stitute for former. § 625. Idem— Statutes relating to same subject mat- ter. xx\ ■ TABLE OF CONTENTS. § G'26. 2. Effect on authorit}' of officers previously author- ized to take wife's acknowledgment. § 627. 3. Authorized additional officers. § 628. Idem— Statutes should be construed so that both may stand. § 62i). Idem — Where both may stand parties have their election of remedies. § 630. Idem — Cases not decisive. § 631. Authority revoked when. § 632. Act of January 3, 1842 — Associate justices. § 633. Act of January 10, 1845 — Notaries. § 634. Construction of above statute. § 634a. Constitution of July 4, 1845— Laws continued in force. § 635. Act of April 29, 1846— Separate property of wife. § 636. Note. § 637. Act of April 30, 1846 — Acknowledgments of married ■ women within the state. § 638. Acknowledgments of married women without the state. § 639. Law applies to what property. § 640. Former laws repealed. § 641. Effect of above law. § 641a. Effect on prior acts. § 642. Act of May 2, 1846— Chief justices to hold over. § 643. Act of May 13, 1846— Notaries. § 644. Act of May 12, 1846— Officers authorized. § 645. Prior laws repealed. § 646. Effect of this act — First, as to its revocation of the authority of officers previously authorized to take acknowledgments of all persons except married women. §§ 647-651. Second, as to its revocation of the authority of offi- cers previously authorized to take acknowledg- ments of married women. § 648. Idem— Acts of April 30, 1846, and May 12, 1846, should be construed together. § 649. Idem — Acts passed by same legislature. § 650. Idem — General and special laws construed. § 651. Idem— Act of April 30, 1846, prescribed only mode for married women. § 652. Third, may officers named in act of May 12, 1846, take wife's acknowledgment? § 653. Idem — Acts passed at different legislatures. § 654. Idem — Statutes construed together. § 655. Idem— Act of April 30, 1846, not intended to name only officers to be authorized. § 656. Idem — Proper construction of above act. TABLE OF CONTENTS. xxvii § 657. Act of May 13, 1846— An act organizing county courts. § 658. Deputy clerk. § 659. Seal. § 660. Two county commissioners to act in absence of chief justice. § 661. Laws repealed. § 662. Effect of above act. § 663. Idem— Eepealed by implication. § 664. Idem— Statute revising subject matter of former. § 665. Statute intended as substitute for former. § 666. A law shall embrace but one subject matter. § 667. Deputies. § 668. Act of March 16, 1848- Deputy county clerks. § 669. Act of March 16, 1848— County courts. § 670. Deputy county clerk. § 671. "Clerk pro tern." § 672. Two county commissioners to act. § 673. Certificates. § 674. Chief justices take acknowledgments of married women. § 675. Effect of above act. § 676. Its constitutionality. § 677. Object of act must be single. § 678. Are chief justices authorized to take acknowl- edgments of married women? § 679. Authority as ex-officio notary. § 680. Were clerks "pro tern" authorized? § 681. Act of December 18, 1849— County clerks to take ac- knowledgments. § 682. Act of December 29, 1849— County commissioners to perform duties of chief justice. § 683. Act of February 9, 1856— Deputy clerks. § 684. Act of February 9, 1860— Validates. § 685. Authenticated as above, and afterward recorded. § 686. Act of April 6, 1861— Officers authorized. § 687. Effect of above act. § 688. Act of January 14, 1862— Officers authorized— Validates. § 689. Constitution of 1866- County court provided for. § 690. Act of October 25, 1866— County courts provided. § 691. Act of November 13, 1866— Officers authorized. § 692. Validity of above act— Amendment of repealed statute. § 693. Constitution of 1869-District and county clerks. § 694. Idem- Justices of the peace commissioned notaries. § 695. Act of August 8, 1870-Officers authorized. § 696. Not repealed. ii TABLE OF CONTENTS. § 697. Act of August 13, 1870— "An act to organize justice courts and county courts." § 698. Deputy justices of the peace authorized. § 699. County court. § 700. Eepealed, when. § 701. Act of August 13, 1870 — "An act to validate certain official acts of county judges." § 702. Validates. § 703. Act of May 6, 1871— Officers authorized. § 704. Act of May 31, 1871 — Repeals authority of deputy jus- tices of peace. § 705. Act of April 14, 1874 — Validates acts of district clerks. § 706. Act of April 20, 1874— District clerks. § 707. Act of May 2, 1874 — Validates acts of notaries. § 708. Constitution of 1875— County courts. § 709. Justices of the peace. § 710. Act of May 25, 1876— County clerks. § 711. Idem. § 712. Act of June 16, 1876 — County courts. § 713. Act of August 17, 1876 — Justices of peace. § 714. Eevised Statutes of 1879— Justices ex-officio notaries. § 715. Eevised Statutes of 1895 — Justices ex-officio notaries. § 716. Eevised Statutes of 1895— Officers authorized to take acknowledgments, etc. § 717. Effect of above statute. For the laws prior to 1836, see chapter 1, §§ 3 (a), 5-21. For acknowledgments taken without the state, see chapters 14, 18, 19. For the various officers considered separately, see chapters 20-28. For validating statutes, see chapter 28. CHAPTER XVIII. WHO MAY TAKE ACKNOVv LEDGMENTS AND PEOOF WITH- OUT THE STATE AND WITHIN THE UNITED STATES. § 718. Act of February 3, 1841— Did not authorize acknowledgments without the state. § 719. Act of February 5, 1841 — Acknowledgments without the state authorized. § 720. Query, as to acknowledgments and proof by married women. § 721. Certificate of conformity required. § 722. Act of April 30, 1846— Married women's acknowledgments authorized. TABLE OF CONTENTS. xxix § 723. Married women's acknowledgments authorized without the state. Property applied to. Former law repealed. As to repeal of law of February 5, 1841. Certificates of conformity not required. Authority revoked when. Act of May 8, 1846 — Commissioners of deeds authorized. Idem. Remained in force how long. Act of May 12, 1846— Acknowledgments without state again authorized. Eepealed conflicting laws. Certificates of conformity not required. Eemained in force how long. EfPect on prior acts. Act of April 6, 1861 — Acknowledgments without state again authorized. Conflicting laws repealed. Effect on prior laws. Act of December 31, 1861 — Commissioners of deeds. Eemained in force how long. Act of January 14, 1862— Acknowledgments without state again authorized. § 744. Act of November 13, 1866 — Judges and clerks of courts of record without the state authorized. § 745. Force and effect of above act. § 746. Act of August 8, 1870 — Are district clerks authorized? § 747. Act of May 6, 1871 — Acknowledgments without the state again authorized. § 748. Effect of this act. § 749. Act of April 27, 1874 — Validates acknowledgments taken be- fore officers now authorized. § 750. Force and effect of above act. § 751. Act of July 28, 1876— Validates defective certificates of ac- knowledgments of married women. § 752. Eevised Statutes of 1879 and 1895 — Acknowledgments with- out the state again authorized. § 753. Judges of courts of record omitted. § 754. Commissioners of deeds authorized. § 755. Act of March 23, 1885, and Eevised Statutes of 1895— Com- missioners of deeds again authorized. For acknowledgments and proof taken witliout the United States, see chapter 19. For roquiroments of acknowledgments and proof and cer- tificates thereof taken abroad, see ante, chapter 14. § 724. § 725. § 726. § 727. § 728. § 729. § 730. § 731. § 732. § 733. § 734. § 735. § 736. § 737. § 738. § 740. § 741. § 742. § 743. TABLE OF CONTEMTS. CHAPTER XIX. WHO MAY TAKE ACKNOWLEDGMENTS AND PROOF WITH- OUT THE UNITED STATES. § 756. Act of February 5, 1841— Acknowledgments without the United States authorized. § 757. Certificates of conformity required. § 758. Act of April 30, 1846— Acknowledgments of married women without United States. § 759. Former laws repealed. § 760. Act of May 12, 1846 — -Acknowledgments taken abroad again authorized. § 761. Act of April 6, 1861, and January 14, 1862— Prior act amended. § 762. Authority of others revoked. § 763. Act of November 13, 1866 — Prior act amended. § 764. Act of May 6, 1871— Prior act amended. § 765. Act of July 28, 1876 — Validates certain certificates of wife's acknowledgment. § 766. Revised Statutes of 1879 and 1895 — Acknowledgments abroad again authorized. § 767. Act of March 23, 1885, and Revised Statutes of 1895— Com- missioners of deeds authorized. For requirements of acknowledgments and proofs, and cer- tificates thereof, taken abroad, see ante, chapter 14. CHAPTER XX. WHO MAY TAKE ACKNOWLEDGMENTS AND PROOF- NOTARIES. § 768. Notaries generally. § 769. Character — De facto and de jure officers. § 770. Eligibility. § 771. Appointment and qualification. § 772. . Sufficient designation— " N. P." § 773. Jurisdiction and authority. § 774. Seals. § 775. Summary of statutes — Times when notaries were au- thorized to act. § 776. Decree of November 13, 1835 — First and second judgei ex-ofiicio notaries. § 777. Decree of January 20, 1836 — Primary judges ex-officio notaries. § 778. Constitution of 1836— Laws remain in force. TABLE OF CONTENTS. xxxi § 779. Act of December 20, 1836— Chief justices of county courts ex-officio notaries. § 780. Other notaries not authorized to take acknowledg- ments. § 781. Chief justices continued to act. § 782. Act of June 12, 1837— Associate justices might act ■when. § 783. Act of November 16, 1837— Notaries provided for. § 784. Act of May 15, 1838— Notaries provided for. § 785. Act of January 19, 1839— Notaries omitted. § 786. Act of January 26, 1839— Chief justices of county courts authorized to exercise powers of notaries. § 787. Act of February 5, 1840— Notaries authorized to take acknowledgments. § 788. Act of January 22, 1841— Associate justices to act when. § 789. Act of February 3, 1841 — Notaries omitted. § 790. Act of February 5, 1841— Validates want of authority. § 791. Act of January 3, 1842— Associate justices to act when. § 792. Act of February 5, 1844, January 10, 1845— Notaries provided for. § 793. Eesolution of February 1, 1845— Notaries provided for. § 794. Constitution of 1845— Notaries provided for. § 795. Act of April 30, 1846— Notaries authorized to take ac- knowledgments of married women. § 796. Act of May 12, 1846— Authorized notaries to take ac- knowledgments. § 797. Act of May 13, 1846— Notaries provided for. § 798. Act of March 16, 1846— Acknowledgments taken by chief and associate justices have same force as no- taries. § 799. Act of December 29, 1849— County commissioners to perform duties of chief justices. § 800. Act of February 9, 1860— Validates want of authority. § 801. Act of April 6, 1861, January 14, 1862, March 5, 1863, November 13, 1866— Notaries authorized to take ac- knowledgments. § 802. Constitution of 1869— Justices commissioned notaries. § 803. Act of August 8, 1870 — Notaries author! /.ed to take ac- knowledgments. § 804. Act of August 13, 1870— Justices and their deputies authorized. § 805. Act of August 13, 1870 — Validates. § 806. Act of May 6, 1871— Notaries authorized to act beyond state. § 807. Act of May 31, 1871 — Authority of deputy justices re- voked. 508-810. Act of April 27, 1874, May 2, 1874, March 13, 1875- Validates want of authority. TABLE OF CONTENTS. § 811. Constitution of 1875— Notaries provided for and jus- tices of tlie peace ex-officio notaries. § 812. Act of June 24, 1876 — Notaries authorized to take ac- knowledgments. § 813. Act of June 26, 1876— Office of notary public abolished. § 814. Act of July 28, 1876— Validates. § 815. Act of August 17, 1876 — Justices commissioned notaries. § 816. Act of April 11, 1879— Notaries provided for. § 817. Act of April 18, 1879— Validates certificates with de- fective seals. § 818. Eevised Statutes of 1879— Justices ex-officio notaries, § 819. Act of April 1, 1881— Notaries authorized to take ac- knowledgments. § 820. Act of February 20, 1885 — Notaries provided for. § 821. Act of April 1, 1887— Validates acts of William Veal. § 822. Act of April, 1889— Notaries provided for. § 823. ■ Eevised Statutes of 1895 — Justices ex-officio notaries. § 824. Notaries authorized to take acknowledgments. § 824a. Act of April 1, 1903— Notaries provided for. For authority of notaries prior to 1836, see ante, § 6. CHAPTER XXL WHO MAY TAKE ACKNOWLEDGMENTS AND PKOOF— JUS- TICES OF THE PEACE. § 825. Generally. § 826. Summary of statutes. § 827. Act of December 20, 1836— Justices of peace, associate jus- tices of county court. § 828. Act of February 5, 1840 — Two justices of the peace may take acknowledgments. § 829. Two justices must act together. § 830. Act of March 16, 1840— Common law adopted. § 831. Act of February 3, 1841— Justices omitted. § 832. Act of February 5, 1841 — Justices of peace omitted. § 833. Act of April 30, 1846— Justices of the peace omitted. § 834. Act of May 11, 1846— Election of. § 835. Act of May 12, 1846— Justices of peace omitted. § 836. Constitution of 1869 — ^Justices commissioned to act as notar- ies. § 837. Act of August 13, 1870 — Justices authorized to take ac- knowledgments. § 838. Justices authorized to appoint deputies. § 839. Act of May 6, 1871 — Justices omitted. § 840. Act of May 18, 1871— Validates. § 841. Act of May 25, 1871— Validates, § 842 § S43, s 844, § 84o. § 846. s 847. § S4:<. § S49. s SoO. § 8.51. TABLE OF CONTEXTS. xxxiii Act of May 31, 1871— Validates. Act of April 14, 1874— Validates. Act of April 20, 1874 — District clerks authorized to qualify as justices. Act of April, 1876 — Justices— Appointment of. Constitution of 1875 — Justices of the peace shall be ex-officio notaries. Act of July 28, 1876— Validates. Act of August 17, 1876 — -Justices commissioned notaries. Act of April 18, 1879— Validates. Revised Statutes of 1S79 — Justices commissioned notaries. Eevised Statutes of 1895 — Justices commissioned notaries. For authority prior to 1836, see ante, §§ 7-21. For acknowledgments without the state, see ante, §§ 718-767. CHAPTER XXII. WHO MAY TAKE ACKNOWLEDGMENTS; OFFICEES OF COUN- TY COURT, TO WIT, CHIEF AND ASSOCIATE JUSTICES, COUNTY JUDGES, COUNTY COMMISSIONERS AND COUN- TY COURTS. § 852. Summary of statutes — Chief justices of county courts. § 853. Idem— County judges. § 8-54. Idem — County courts. § 855. Idem — Associate justices. § 856. Idem — County commissioners. § .S57. Act of December 20, 1836 — Chief and associate justices. § 85s. Act of June 12, 1837 — Associate justices. § 859. Act of .January 19, 1839 — Chief justice and county court — Note. § 8(J0. Note. Act of January 26, 1839 — Chief justices. Act of February 5, 1840— Chief justice and county courts. Act of January 22, 1841 — Associate justices. Act of February 3, 1841— Chief ju^:tices. Act of February 5, 1841— Validates. Chief justices. Act of January 3, 1842— Associate justices. Act of April 29, 1846— Schedule of married woman's prop- erty. Act of April 30, 1846— Chief justices omitted. Note. Act of May 2, 1846— Chief justices. Act of May 12, 1846 — Chief justices omitted. Note. § S61. § 862. § 863. s 864. § 865, § 866. § 867. ^ 868. § SG9. § 870. § 871. § 872. j: 873. xxxiv TABLE OF CONTENTS. § S74. Act of May 13, 1846 — County courts and county commission- ers. ^ 875. Note. § 876. Act of March 16, 1S4S — County court established and chief justices authorized to take acknowledgments. 5 877. County commissioners. § 878. Note. 5: 879. Act of December 29, 1849 — County commissioners. § 880. Act of February 9, 1860— Validates. § 881. Act of April 6, 1861— Judges of courts of record authorized. § 882. Act of January 14, 1862 — ^Judges of courts of record author- ized. § 883. Constitution of 1866— County courts. § 884. Act of October 25, 1866 — County courts. § 885. Act of November 13, 1866— Judges omitted. § 886. Act of August 8, 1870— District clerks and deputies. § 887. Act of August 13, 1870 — County court composed of five jus- tices of the peace. § 888. Act of August 13, 1870— Validates. § 889. Act of May 6, 1871 — Omits county judges. § 890. Constitution of November 24, 1875 — County courts. § 891. Act of June 16, 1876— County courts. § 892. Act of July 28, 1876— Validates. § 893. Act of August 18, 1876— Seal. § 894. Eevised Statutes of 1879 and 1895— Officers authorized. CHAPTER XXIII. WHO MAY TAKE ACKNOWLEDGMENTS— DISTEICT JUDGES. § 895. Summary of statutes. § 896. Act of February 5, 1840 — District judges .authorized to take acknowledgments. § 897. Act of February 3, 1841 — District judges authorized to take acknowledgments of married women. § 898. Act of February 5, 1841— District judges omitted, but au- thorized as associate judges. § 899. Act of April 30, 1846— District judges authorized to take acknowledgments of married women. § 900. Note. S 901. Act of May 11, 1846— Seals. § 902. Act of May 12, 1846 — District judges omitted. § 903. Authority of district judges to take single acknowledg- ments revoked. § 904. Idem. § 90o. Authority of district judges to take acknowledgments of married women not revoked. TABLE OF CONTENTS. xxxv § 906. Act of December 18, 1849— County clerks authorized to take acknowledgments. § 907. Act of April 6, 1863 — Judges of courts of record authorized. § 90?. Act of January 14, 1862 — Judges of courts of record au- thorized. § 909. Act of November 13, 1866 — Authority of judges of court of record revoked. § 9r0. Idem. § 911. Act of August 8, 1870— District judges omitted. § 912. Act of May 6, 1871 — District judges authorized to take ac- knowledgments. u 913. Act of July 28, 1876— Validates. § 914. Kevised Statutes of 1879 — Authority of district judges re- voked. § 915. Eevised Statutes of 1879 and 1895— Idem. CHAPTER XXIV. WHO MAY TAKE ACKNOWLEDGMENTS— JUDGES OF THE SUPEEME COUET AND COUETS OF APPEAL. § 916. Summary of statutes. § 917. Act of February 5, 1840 — Supreme judges authorized to take acknowledgments. § 9K. Note. § 919. Act of April 30, 1846 — Supreme judges authorized to take acknowledgments of married women. § 920. Note. § 921. Act of May 12, 1846 — Authority of supreme judges to take single acknowledgment revoked. § 92^. Note. § 923. Act of April 6, 1861 — Judges of supreme court again au- thorized. § 924. Act of January 14, 1862 — Judges of sujn-eme court again authorized. § 925. Act of November 13, 1866— Authority of judges of supreme court revoked. § 926. Act of August 8, 1870 — Judges of supreme court omitted. § 927. Act of May 6, 1871 — Judges of supremo court again au- thorized. § 928. Act of May 6, 1876— Court of appeals. § 929. Act of July 28, 1876— Validates. § 930. Eevised Statutes of 1879— Authority of judges of supreme court revoked. § 931. Act of April 13, 1892— Court of civil appeals. xxxvi TAJBLE OF CONTENTS. CHAPTER XXV. WHO MAY TAKE ACKNOWLEDGMENTS— FEDEEAL JUDGES. § 932. Summary of statutes. § 933. Act of April 6, 1861 — ^Judges of courts of record authorized. § 934. Idem. § 935. Idem. § 936. Act of November 13, 1S66 — Authority of judges of courts of record revoked. CHAPTER XXVI. WHO MAY TAKE ACKNOWLEDGMENTS— COUNTY CLEEKS, THEIE DEPUTIES, AND PEO TEM CLEEKS. § 9S7. Summary of statutes. § 93S. Act of December 20, 1836— County clerks authorized— Note. § 939. Idem. § 94D. County clerks authorized to take proof of handwriting. § 941. '•'Pro tern" clerk. § 942. Acknowledgments by county clerks. § 943. Act of December 21, 1837 — Deputy county clerks. § 94'4. Idem. § 94'5. Act of January 19, 1839— County clerks authorized to take acknowledgments of deeds, to be recorded in their own counties. § 946. Validates. § 947. Act of February 5, 1840 — County clerks authorized to take acknowledgments of instriinients to be recorded in their own counties. § 94S. Validated. § 94P. Act of December 24, 1840 — Validates acts of Samuel Todd. § 950. Act of February 3, 1841 — County clerks omitted. § 951. Act of February 5, 1841— Validates. § 952. Idem. § 953. County clerks authorized to take acknowledgments of in- struments to be recorded in their own counties. § 954. Idem. § 95"5. Act of April 30, 1846 — County clerks omitted — Note. § 956. Idem. § 957. Act of May 12, 1846 — County clerks authorized to take ac- knowledgments. § 958. Authority of county clerks extended — Of certain other olficers revoked. TABLE OF CONTENTS. xxxvii § 9o9. Act of May 13, 1846— Deputies. § 960. Idem. § 961. Act of March 16, 1848— Deputies. § 962. Act of March 16, 1848— Deputies and pro tern clerks. § 963. Act of December 18, 1849— County clerks authorized to take acknowledgments of married women. § 964. Act of November 24, 1851 — Validates. § 965. Act of February 9, 1856— Deputy county clerks authorized to take acknowledgments. § 966. Act of August 19, 1856 — Validates. § 967. Act of February 9, 1860— Validates. § 968. Act of April 6, 1861 — County clerks authorized to take ac- knowledgments. § 969. Act of January 14, 1862 — County clerks and their deputies authorized to take acknowledgments. § 970. Act of November 13, 1866 — •County clerks again authorized. § 971. Constitution of 1869 — District clerks ex-officio county clerks. § 972. Act of August 8, 1870 — District clerks, their deputies and notaries authorized to take acknowledgments. § 973. Act of May 6, 1871 — District clerks again authorized. § 974. Act of May 25, 1871— Validates. § 975. Constitution of 1875— County and district clerks authorized when. § 976. Act of May 25, 1876— Deputy county cleiks authorized. § 977. Act of June 16, 1876— Validates. §.07S. Act of March 18, 1879— District and county clerks one per- son — Validates. § 979. Eevised Statutes of 1879 and 1895— Couuty and district clerks again authorized. § 980. Eemained in force. CHAPTER XXVII. WHO MAY TAKE ACKNOWLEDGMENTS AND PEOOF— DIS- TRICT CLEEKS AND THEIE DEPUTIES. § 981. Summary of statutes. § 982. Constitution of 1869 — District clerks ex-officio county clerks. § 983. Act of August 8, 1870— District clerks and deputies author- ized. § 984. Act of May 6, 1871 — District clerks and deputies authorized. § 985. Act of May 25, 1871— Validates. § 986. Act of April 14, 1874— Validates. § 987. Act of April 20, 1874— District clerks may qualify as justices of peace. >.^-viii TABLE OF CONTENTS. § 98S. Constitution of 1S75 — District and county clorlcships lield by- one person. S 989. Act of July 28, 1876— Validates. § 990. Act of March 13, 1879 — District and county clerkships held by one person— Validates. § 991. Revised Statutes of 1879 and 1895— District clerks authorized — Deputies omitted but authorized. CHAPTER XXVIII. CURING DEFECTIVE ACKNOWLEDGMENTS AND CERTIFI- CATES. A. GENERALLY. § 992. By officer — Officer may amend certificate when. § 993. In some other states held officer may correct certificate. § 994. The reverse held in most other states, § 995. By grantors — May be corrected by grantors. § 996. Exception to above rule, where husband fails to join until after her death. § 997. Wife may acknowledge after death of husband. § 998. By action at law — Prior to Revised Statutes of 1879. § 999. After Revised Statutes of 1879 acknowledgment may be cured. § 1000. Certificate only can be remedied, not acknowledgments when. § 1001. Acknowledgment defective on account of interest of officer. § 1002. Want of acknowledgment by single person cured, § 1003. Above acts constitutional. § 1004. Barred by limitation. § 1005. Proved by circumstantial evidence. § 1006. By statute — Constitutionality of. § 1007. Officer interested party. § 1008. In other states. § 1009. Idem. § 1010. Idem. § 1011. What acts constitutional, § 1012. What acts unconstitutional. § 1013. Idem. § 1014. Change of law will not effect validity of acknowledgments. § 1015. Validating statutes — How construed. B. STATUTORY ENACTMENTS— GENERAL. § 1016, Validating statutes not repealed. § 1017. Act of January 19, 1839 — Copies admitted to record when. TABLE OF CONTEXTS. xxxix § 1018. Act ot" February 5, 1841 — Registration of instruments ac- knowledged before certain officers validated. § 1019. Idem — How construed. § 1020. Idem. § 1021. Idem. § 1022. Act of April 29, 1846— Registration of wife's property validated. § 1023. Act of May 2, 1846— Acts of chief justices of county courts validated. § 1024. Act of May 12, 1846 —Certain instruments may be recorded. § 1025. Act of May 13, 1846— Certain copies admissible in evidence when. § 1026. Idem. § 1027. Act of November 24, 1851 — Seals used in Galveston county validated. § 1028. Act of February 9, 1856— Acknowledgments of deputy county clerks validated. § 1029. Act of February 9, 1860 — Registration of instruments ac- knowledged before certain officers validated. § 1030. When such instruments recorded, copies thereof admis- sible in evidence. § 1031. Acknowledgment before unauthorized notary validated. § 1(J32. Does it validate where the acknowledgment or certifi- cate is defective, or only the want of authority in the officer? § 1033. Idem. § 1034. Idem. § 1035. Idem. § 1036. Idem. § 1037. Idem. § 1038. Act of January 14, 1862 — Acknowledgments of county clerks validated. I 1039. Act of August 13, 1870— Acknowledgments before county judges validated. § 1040. Act of April 14, 1874— Acknowledgments of district clerks as justices of peace validated. § 1041. Act of April 27, 1874 — Acknowledgments taken without the state and within United States valid, if taken before an officer now authorized. § 1042. Cured want of authority in notary. § 1043. In case of married woman's acknowledgment. § 1044. Above act restricted to United States. § 1045. Act of May 2, 1874 — Acknowledgments of notaries vali- dated when. § 1046. Idem. § 1047. Constitution of 1875— Certain titles shall not be recorded, etc. xl TABLE OF CONTENTS. § 104S. Act of June 16, 1876 — Previous acts by county judges which would be authorized by this act, validated. § 1049. Act of July 28, 1876 — Cevtifieatos of married women's ac- knowledgments validated, § 1050. Note. § 1051. Act of March 13, 1879 — Acknowledgments by persons hold- ing both offices of district and county clerks validated. § 1052. Act of April 18, 1879— Acknowledgments of notaries using defective seals, validated. § 10^3. Eevised Statutes of 1879 and 1895— Legality of acknowl- edgment and proof depends on law in force at time same is made. § 1054. Acknowledgment cui'ed by 'action at law. § 1055. Idem. § 1056. Barred by limitation when. § 1057. Eevised Statutes of 1879 and 1895 — Validates want of au- thority in certain officers. § 1058. Act of March 18, 1881— Validates defective seal. § 1059. Act of April 5, 1889 — Acknowledgments by notaries using defective seals validated. § 1059a. Act of April 15, 1905— Attempts to validate want of corpo- rate seal in conveyances by attorney in fact. C. STATUTORY ENACTMENTS— SPECIAL. § 1060. Act of December 24, 1840— Validates the acts of Samuel Todd. § 1061. Act of August 19, 1856— Validates the official acts of Levy S. McMicken. § 1062. Act of August 30, 1856 — Validates the notarial acts of David P. Fearris. § 1063. Act of May IS, 1871— Validates the official acts of Silas Mc- Crary and Jerry Washington. § 1064. Act of May 25, 1871— Validates the official acts of L H. Steen as district clerk. § 1065. Act of May 25, 1871— Validates the official acts of I. H. Steen as justice of the peace. § 1066. Act of May 31, 1871 — Validates the official acts of I. A. Lee. § 1067. Act of May 13, 1875 — Validates the notarial acts of C. L. Thurmond. § 1068. Act of April 1, 18S7— Validates the notarial acts of Wm. Veal. For defective authentication prior to 1836, see ante, § 3. TABLE OF CONTENTS. xli CHAPTER XXIX. PLEADING ACKNOWLEDGMENTS AND PROOF. § 1069. Must allege acknowledgment when. { 1070. Idem. i 1071. Married woman seeking to avoid deed. § 1072. Must attack acknowledgment by affidavit when. CHAPTER XXX. EEVENUE STAMPS. A. GENERAL PRINCIPLES. § 1073. Laws which required the use of revenue stamps. j; 1074. Effect of omission under Spanish and Mexican laws. § 1075. Effect of omissions under United States laws. § 1076. Federal laws not binding on state courts. § 1077. Federal statutes do not apply to state courts. § 1078. Laws of England not binding here. B. STAMP LAWS OF SPAIN, MEXICO AND TEXAS. § 1079. Stamp laws prior to decree of 182.3. § lOBO. Decree of October 6, 1823 — Seals or stamps and their value and use. S 1081. Order of June 22, 1824— Form of stamps. § 10B2. Decree of October 2, 1824— Form of stamps. § 10^83. Decree of March 24, 1825 — New settlers exempt. § 1084. Instructions of May 31, 1827 — Record-book to be stamped. § 1085. Instructions of September 4, 1827 — Record-book to be stamped. § 1086. Decree of February 9, 1S28 — New settlers exempt. § 1087. Ordinance of November 13, 1835 — Use of stamps abolished. C. STAMP LAWS OF UNITED STATES. § 1088. Acts of 1864 and 1866. § 1089. Act of June 13, 1898 — Stamps— How attached and can- celed — Effect. § 1090. Provision that deeds are not admissible in evidence or of record, unless stamped. § IffOl. Kinds of stamps. g 1092. Exemptions. § 1093. Sr-hedule A — Stamp laws. TABLE OF CASES. [The References are to Pages.] Abrams v. Ervin, 9 Iowa, 87 240 Adams v. Pardne (Tex. Civ. App.), 36 S. W. 1017 74, 81, 86, 88, 121, 128, 135, 141, 143 Alabama Life Ins. Co. v. Boykin, 38 Ala. 510 414 Aldridge v. Mardoff, 32 Tex. 207 265, 278 Alex^mder v. Houghton, 86 Tex. 702, 26 S. W. 937 68, 208 Alexander v. Maverick, 18 Tex. 179, 67 Am. Dee. 693 361 Alk-n V. Hoxey, 37 Tex. 334 10, 13, 14, 16, 32, 160 Allen V. Urquhart, 19 Tex. 480 106 Anient v. Breunan, 1 Tenn. Ch. 431 , 240 Andrews v. Bonliam, 19 Tex. Civ. App. 179, 46 S. W. 902 120 Andrews v. Marshall, 26 Tex. 216 5, 7, 10, 13, 14, 16, 23, 26, 30, 32 Angier v. Coward, 79 Tex. 554, 15 S. W. 698 Ill, 145, 232 Arnold v. Attoway (Tex. Civ. App.), 35 S. W. 482 38 Atkinson v. Eeed (Tex. Civ. App.), 49 S. W. 262 86, 141 Attaway v. Carter, 1 U. C. 77 69 Aulenier v. Governor, 1 Tex. 666 238 Ayeoek v. Kinibrough, 71 Tex. 333, 10 Am. St. Rep. 743, 12 S. W. 71 39,139 Bailey v. Trammell, 27 Tex. 328 83, 130 Baird v. Evans, 58 Ga. 350 168, 237 Baker v. Westcott, 73 Tex. 129, 11 S. W. 157 43, 115, 219, 316, 413, 425 Baldwin v. Rifdiardson, 33 Tex. 16 167 Ballard v. Carmiehaei, 83 Tex. 355, 18 S. W. 734 108, 147, 228, 239, 345 Ballard v. Perry, 28 Tex. 347 72, 136, 167 Banning v. Banning, 80 Cal. 271, 13 Am. St. Rep. 156, 22 Pac. 210 56 Barnes v. .Jamison, 24 Tex. 365 88 Barnet v. Barnet, 16 Am. Dee. 520, note 414 Barrett v. Barrett, 120 N. C. 127, 26 S. E. 891, 36 L. R. A. 226. . 414 Bassett v. Martin, 83 Tex. 341, 18 S. W. 857 40 Baxter v, Howell (Tex. Civ. App.), 26 S. W. 453 236 Baylor v. Tillebaek, 20 Tex. Civ. App. 490, 49 S. W. 721 89, 94, 201, 202 Beaty v. Whitaker, 23 Tex. 526 22, 29, 34, 45, 92, 193 (xliii) xliv TABLE OF CASES. [The Eeferences are to Pages.] Beaumont Pasture Co. v. Preston & Smith, 65 Tex. 456 25, 30, 58, 66, 91, 193, 241, 326, 328, 390, 413, 421 Beitel v, Wagner, 11 Tex. Civ. App. 365, 32 S. W. 367 73 Belbaze v. Ratto, 69 Tex. 638, 7 S. W. 501 79 Belcher v. Weaver, 46 Tex. 294, 26 Am. Rep. 267 43, 79, 98, 120, 131, 134, 137, 177, 191, 209, 286 Bennett v. Viri-inia Ranch etc. Co., 1 Tex. Civ. App. 321, 21 S. W. 128 38 Bernier v. Becker, 37 Ohio St. 72 •. 238 Berry v. Childress, 32 Tex. 372 265, 277 Berry v. Donley, 26 Tex. 737 38, 107, 118, 131, 140, 145, 147, 275, 345 Betts V. Simmons (Tex. Civ. App.), 35 S. W. 50 39 Beville v. Jones, 74 Tex. 148, 11 S. W. 1128 120 Bexar Bldg. etc. Assn. v. Heady, 21 Tex. Civ. App. 154, 50 S. W. 1080 37, 85, 140, 235, 411, 413, 415, 425 Blencourt v. Parker, 27 Tex. 562 237, 238, 327 Bierer v. FrQtz, 32 Kan. 329, 4 Pac. 284 236 Biggerstaff v. Murphy, 3 Tex. Civ. App. 363, 22 S. W. 768 88 Birdseye v. Rogers (Tex. Civ. App.), 26 S. W. 841.. 43, 219, 316, 425 Black V. Garner (Tex. Civ. App.), 63 S. W. 920 121 Blackmore v. Dolan, 50 Ind. 194 294 Blanton v. Ray, 66 Tex. 61, 17 S. W. 264 89 Blythe v. Houston, 46 Ttex. 67 68, 71, 193 Boehl v. Hecker, 1 App. Civ. Cas. 761 69 Bohn V. Davis, 75 Tex. 26, 12 S. W. 837 160, 202 Bosley v. Pease (Tex. Civ. App.), 22 S. W. 516 66 Bounds V. Little, 75 Tex. 316, 12 S. W. 1109 89 Boykin v. Rosenfield & Co., 69 Tex. 119, 9 S. W. 318 38 Brand v. Col. S. Co., 70' S. W. 578 128 Breen v. Tex. etc. Ry. Co., 44 Tex. 306. 286 Breitling v. Chester, 88 Tex. 589, 32 S. W. 527 55, 61, 67, 77, 87, 96, 120, 124, 128, 142, 231, 410, 434 Bremer v. Case, 60 Tex. 151 89 Breneman v. Mayer (Tex. Civ. App.), 58 S. W. 725 134, 147, 152 Brereton v. Bennett, 15 Colo. 254, 25 Pac. 310 236 Broussard v. Dull, 3 Tex. Civ. App. 59, 21 S. W. 937 70, 78, 79, 138 Brown v. Chancellor, 61 Tex. 437 261 Brown v. Lunt, 37 Me. 423 238 Brown v. Moore, 38 Tex. 646 234, 236 Brown v. State, 43 Tex. 478 299, 328, 335, 338, 340, 426 Brownson v. Scanlan, 59 Tex. 222 52, 66, 77 Broxson v. MeDougal, 63 Tex. 197 25, 28 Bryan v. Sundberg, 5 Tex. 423 49, 251, 262, 273, 281, 287, 332, 346, 362, 371, 373 TABLE OF CASES. xlv [The References are to Pages.] Bull V. Coe, 77 Cal. 54, 11 Am. St. Rep. 235, 18 Pac. 808 120 Bullene v. Garrison, 1 Wash. Ter. 587 238, 327 Burkett & Murphy v. Scarborough, 59 Tex. 499 119, 133 Buse V. Bartlett, 1 Tex. Civ. App. 335, 21 S. W. 52 281 Butler V. Brown, 77 Tex. 344, 14 S. W. 136 81 Butler V. Dimagan, 19 Tex. 559 21, 43, 200, 238, 271, 331, 354, 390, 415 Byrnes v. Sampson, 74 Tex. 83, 11 S. W. 1073 259, 283, 286 Cain V. State, 20 Tex. 362 262 Cairrell v. Higgs, 1 U. C. 56 158, 165, 172, 189, 201 Callahan v. Houston, 78 Tex. 497, 14 S. W. 1027 113, 147 Callahan v. Patterson, 4 Tex. 65, 51 Am. Dec. 712 113, 147 Canypbell v. Wilcox, 10 Wall. (U. S.) 421, 19 L. ed. 973 436 Cannon v. Boutwell, 53 Tex. 627 110, 226, 230, 232 Cannon v. Hemphill, 7 Tex. 208 286 Carclwell v. Eogers, 76 Tex. 37, 12 S. W. 1006 232 Carolan v. McDonald, 15 Tex. 329 261, 282 Carothers v. Covington (Tex. Civ. App.), 27 S. W. 1041 7, 10, 14, 436 Carpenter v. Dexter, 75 U. S. (8 Wall.) 513, 19 L. ed. 426 95, 168, 220, 309, 311 Carpenter v. Snelling, 97 Mass. 452 437 Carrier v. Hampton, 11 Ired. 307 167" Cartwell v. Rogers, 76 Tex. 374, 13 S. W. 474, 8 L. R. A. 180. .. . 110 Cassidy v. Scottish Am. Mort. Co., 27 Tex. Civ. App. 211, 64 S. W. 1031 83 Caudle v. Williams (Tex. Civ. App.), 15 S. W. 562 14, 208 Cavasas v. Gonsales, 33 Tex, 134 437 Cavit V. Archer, 52 Tex. 169 79, 167 Central V. Tel. Co. v. Falley, 118 Ind. 194, 10 Am. St. Rep. 135, 20 X. E. 145 •'j'5 Chamberlain v. Pybus, 81 Tex. 511, 17 S. W. 50 68, 208 Chambers v. Fisk, 22 Tex. 536 7, 14 Chambers v. State, 25 Tex. 307 152 Chapman v. Allen, 15 Tex. 282 408 Chartier etc. Co. v. McNamara, 72 Pa. St. 336, 13 Am. Rep. 680 436 Cheek v. Bellows, 17 Tex. 617, 67 Am. Dec. 686 38 Cheek v. Herndon, 82 Tex. 14«, 17 S. W. 763 75, 83, 130 Chester v. Brcitling (Tex. Civ. App.), 30 S. W. 465 61, 123 Chicago etc. Ry. Co. v. Titterington, 84 Tex. 219, 31 Am. St. Rep. 39, 19 S. W. 472 239, 277, 283, 388, 394, 403 Christy v. Alford, 17 How. 604, 15 L. ed. 2o6 281 Citizens' etc. Parish v. Williams, 49 La. Ann. 422, 21 South. 647, 37 L. E. A. 761 263,277 City Bank v. Radtke, 87 Iowa, 363, 54 N. W. 435 236 xlvi TABLE OF CASES. [The References are to Pages.] City of Laredo v. Martin, 52 Tex. 562 275, 291. ?,U, ?A3 Clapp V. Engledow, 82 Tex. 296, 18 S. W. 146 37, 94. 107. 201, 203 Clark V. Finley, 93 Tex. 171, 54 S. W. 343 2S3 Clark V. Groce, 16 Tex. Civ. App. 453, 41 S. W. 668 79, 132, 134, 143 Clark V. Sanderson, 3 Binn. (Pa.) 192, 5 Am. Dec. 368 201 Clark V. AVickor (Tex. Civ. App.), 30 S. W. 1114 124, 231 Clay V. Holbert, 14 Tex. 189 3, 7, 11, 14, 9S, 160 Clayton v. Frazer, 33 Tex. 99 113 Clayton v. Eelim, 67 Tex. 53 28 Clements v. San Antonio, 34 Tex. 26 58 Cocke V. Halsey, 16 Pet. (U. S.) 71, 10 L. ed. 891 238 Coflfey V. Hendricks, 66 Tex. 677, 2 S. W. 47 37, 58, 69, 72, 86, 90, 96, US, 136. 208 Cole V. Bammell, 62 Tex. Ill 38, 85, 87, 113, 115, 119, 128, 139, 142, 143, 145, 147, 256, 265, 271, 275, 306 Coltrane v. Lamb, 109 N. C. 209, 13 S. E. 784 240 Commonwealth v. Kenneson, 143 Mass. 418, 9 N. E. 761 294 Cook V. Cook, 5 Tex. Civ. App. 30, 23 S. W. 927 182 Cook V. First Nat. Bank (Tex. Civ. App.), 33 S. W. 999 191 Cook V. Foster, 96 Mich. 610, 55 N. W. 1019 236 Cook V. Knott, 28 Tex. 90 239, 250, 283, 388 Coombes v. Thomas, 57 Tex. 322 79, 121, 132, 138, 143 Coombs V. State, 38 Tex. Cr. 648, 44 S. W. 858 261, 282, 283 Cooper V. Hamilton, 56 Am. St. Eep. 801, note 234 Copelin v. Sehuler (Tex.), 6 S. W. 670 76 Coryell v. Holmes, 2 U. C 674 165, 423 Cowan V. Williams, 49 Tex. 395 26, 98, 159, 160 Cowley V. Town of Eushville, 60i Ind. 327 294 Cox V. Enst (Tex. Civ. App.), 29 S. W. 807 89, 94, 175, 202, 203 Crabtree v. Whiteselle, 65 Tex. Ill 68 Craddock v. Merrill, 2 Tex. 495, 496 165, 201, 221 Crain v. Huntington, 81 Tex. 614, 17 S. W. 243 14, 89, 94, 412 Cravens v. Booth, 8 Tex. 243, 58 Am. Dec. 112 '. 140 Crayton v. Hamilton, 37 Tex. 269 388, 390, 417, 421 Cross V. Evarts, 28 Tex. 532 38, 113, 118, 275, 432 Dailey v. Coker, 33 Tex. 817, 7 Am. Eep. 279 437 Dalton V. Eust, 22 Tex. 151 139 Daniels v. Creekmore, 7 Tex. Civ. App. 573, 27 S. W. 149 14, 89, 412 Daniels v. Larendow, 49 Tex. 216 236 Daugherty v. Yates, 13 Tex. Civ. App. 647, 35 S. W. 937 207, 210, 343 Davidson v. State, 135 Ind. 254, 34 N. E. 972 238 Davidson v. Wallingsford, 88 Tex. 623, 32 S. W. 1030 72, 122, 135, 174 TABLE OF CASES. xlvii [The References are to Pages.] Davis V. Agiiew, 67 Tex. 206, 2 S. W. 43, 376 210, 412 Davis V. Agnew, 67 Tex. 210, 2 S. W. 43, 376 85, 121, 135, 140 Davis V. Kennedy, 58 Tex. 516 85, 87, 128, 142 Davis v. McCartney, 64 Tex. 585 121, 134 Davis v. Pearson. 6 Tex. Civ. App. 593, 26 S. W. 241 423 Davis V. Rankin, 50 Tex. 286 226 Davis V. Roosevelt, 53 Tex. 314 211 Davis V. State, 7 Md. 151, 61 Am. Dec. 331 262, 283, 286 Dean v. Gibson (Tex. Civ. App.), 48 S. W. 57 40 Deen v. Wills, 21 Tex. 645 43, 98, 103, 120, 131, 133, 166, 173, 175, 177, 181, 182, 191 De /^eon v. White, 9 Tex. 600 18, 35, 92 De/inis v. Sanger, 15 Tex. Civ. App. 411, 39 S. W. 998 40 Dickinson v. State, 38 Tex. Cr. Rep. 479, 41 S. W. 760... 261, 262, 281 Dobbin v. Cordiner, 41 Minn. 165, 16 Am. St. Rep. 683, 42 IN. W. 870, 4 L. R. A. 333 161, 165 Donovan v. St. Anthony etc. El. Co., 8 N. Dak. 585, 73 Am. St. Rep. 779, 80 N. W. 772, 46 L. R. A. 721 171 Dorn V. Best, 15 Tex. 62 78, 138, 166, 173, 176 Dowell V. Applegate, 7 Fed. 881 436 Downing v. Diaz, 80 Tex. 436, 16 S. W. 49 5 Downs V. Porter, 54 Tex. 59 166, 174, 175 Driscoll V. Morris, 2 Tex. Civ. App. 603. 21 S. W. 629, 1053 72, 122, 173, 182 Durst v. Dougherty, SI Tex. 650, 17 S. W. 388 79, 137 Eborn v. Zimpleman, 47 Tex. 518, 26 Am. Rep. 315 202 Edens v. Simpson (Tex.), 17 S. W. 788 119, 133 Edrington v. Mayfield, 5 Tex. 367 124 Edwards v. Dismukes, 53 Tex. 605 88 Edwards v. James, 7 Tex. 377 18, 29, 34, 45, 92, 100, 101, 161, 164 Elliott V. Peirsol, 1 Pet. 328, 7 L. ed. 164 409 Ellis V. Batts, 26 Tex. 704 275, 291, 311, 313 Elwood V. Elock^ 13 Barb. 50 409 Kmanuel v. Gates, 53 Fed. 775 90 Emigh V. State Ins. Co., 3 Wash. 122, 27 Pac. 1063 294 English V. Helms, 4 Tex. 231 213 Ennis v. < 'rump, 6 Tex. 35 28 / Equitable Mortgage Co. v. Kempner, 84 Tex. 102, 19 S. W. 358.. 209 Estes V. Turner, 30 Tex. Civ. App. 365, 70 S. W. 1009.. 132, 133, 135 Etheridgo v. Price, 73 Tex. 602, 11 S. W. 1039 39 Ktter V. Mo. Pac. Ry. Co., 2 Tex. Civ. App. 58 282 Ewing V. Vanncwitz, 8 Mo. App. 602 236 Ex parte Burkhanlt, 16 Tex. 470 :''61 Ex parte Fagg, 38 Tex. Cr. App. 573, 44 S. W. 294, 40 L. R. A. •jio 286 xlviii TABLE OF CASES. [The Eeferences are to Pages.] Farmers' Bank v. Chester, (i Tluiiiph. (Tenn.) 458, 44 Am. Dec. 318 238 Farrell v. Palestine Loan Assn. (Tex. Civ. App.), 30 S. W. 815. .74, 81 Fayette Co. v. Faires, 44 Tex. 514 287, 360 Fearn v. Beirne, 129 Ala. 453, 29 Soutli. 558 235 Ferguson v. Eieketts (Tex, Civ. App.), 55 S. W. 975 78, 79, 227 First Nat. Bank v. Hicks, 24 Tex. Civ. App. 269, 59 S. W. 842 68, 74 First Nat. Bank of Harrisonburo- v. Paul, 75 Va. 594, 40 Am. Eep. 740 409 Fisher v. Butcher, 19 Ohio, 406, 53 Am. Dec. 436 60 Fisher v. Vaughn, 75 Wis. 609, 44 N. W. 831, 833 221 Fitzgerahl v. Turner, 43 Tex. 87 118, 132, 140, 147 Flemming v. Keed, 37 Tex. 152 46, 79, 99, 166 Florida Sav. Bank etc. Exch. v. Eivers, 36 Fla. 575, 18 S. W. 850 235 Fogg V. Holcomb, 64 Iowa, 621, 21 N. W. Ill 221 Forbes v. Thamas (Tex. Civ. App.), 51 S. W. 1097 86, 96, 117, 127, 142 Fordtrau v. Perry (Tex. Civ. App.), 60 S. W. 1000 40 Franco-Texan Land Co. v. Laigle, 59 Tex. 344 238 Frank v. Frank (Tex. Civ. App.), 25 S. W. 819 37 Fraziu v. Moore, 11 Tex. 755 201 Freeman v. Preston (Tex. Civ. App.), 28 S. W. 495 135 Freiberg v. De Lamar, 7 Tex. Civ. App. 263, 27 S. W. 151 118,127,140 French v. Strumberg, 52 Tex. 93 124 Frizzell v. .Johnson, 30 Tex. 32 239, 250, 283, 388 Frost V. Erath Cattle Co., 81 Tex. 510, 26 Am. St. Eep. 831, 17 S. W. 52 73 Frost V. Wolf, 77 Tex. 460, 19 Am. St. Eep. 761, 14 S. W. 440. . . 26, 29, 39, 92, 212, 227 Fullerton v. Doyle, 18 Tex. 13 38 Fulton V. Bayne, 18 Tex. 50 232 Gainer v. Cotton, 49 Tex. 114 14, 25, 27, 28, 29, 34, 45, 91, 92, 100, 161, 168, 193, 200, 201 Gaines v. Ann, 26 Tex. 341 200 Galveston etc. Ey. Co. v. Matula, 79 Tex. 581, 15 S. W. 573 408 Galveston S. & N. G. E. E. Co. v. Gross, 47 Tex, 435 263, 274, 368, 371, 379 Gamble v. Butchee, 87 Tex. 643, 30 S. W. 862 171, 172, 189 Garcia v. Illg, 14 Tex. Civ. App. 482, 37 S. W. 472 113, 123, 230 Garton v. Hudson-Kimberly Pub. Co., 8 Okla. 631, 58 Pac. 946 263 Gibson v. Norway Sav. Bank, 69 Me. 579 237 Giddings v. Antonia, 47 Tex. 556, 26 Am. Eep. 321 286 Gilbough V. Stahl Bldg. Co., 16 Tex. Civ. App. 448, 41 S. W, 535. . 40 TABLE OF CASES. xlix [The Referenres are to Pages.] Gillelaud v. Drake, 36 Tex. 676 261, 328, 335, 337 Gleun V. Ashcrof t, 2 U. C. 449 328 Goff V. Jones, 70 Tex. 575, 8 Am. St. Kep. 619, 8 S. W. 525 121 Gonsales v. Eoos, 120 U. S. 605 7, 14 Goodykoontz v. Olsen, 54 Iowa, 174, 6 N. W. 263 238 Grant v. Olliver, 91 Cal. 158, 27 Pac. 596, 861 67 Gray v. Kaufman, 82 Tex. 69, 17 S. W. 513 74, 81, 82, 132, 138 Gray v. Shelby, 83 Tex. 407, 18 S. W. 809 86, 141, 433 Green v. Holway, 101 Mass. 243, 3 Am. Eep. 339 486 Green v. Hugo, 81 Tex. 457, 26 Am. St. Rep. 824, 17 S. W. 79. .40, 97 Green, v. Eugley, 23 Tex. 548 360 Greenwood v. Fontaine (Tex. Civ. App.), 34 S. W. 828 423 Gregg & Co. v. Fitzhugh, 36 Tex. 128 437 Gregory v. Van Vleck, 21 Tex. 41 147 Griffin v. Eanny, 35 Conn. 239 437 Griffith V. Ventress, 11 L. E. A. 193, note 409 Grimes v. Bastrap, 26 Tex. 312 10, 160 Groesbeck v. Bodman, 73 Tex. 292, 11 S. W. 322 106, 107, 118, 119, 132, 144 Grounds v. Ingram, 75 Tex. 514, 12 S. W. 1118 38 Grove v. Todd, 41 Md. 633, 20 Am. Eep. 76 414 Guilford v. Love, 49 Tex. 735 361 Gulf Coast etc. Ey. v. Carter, 5 Tex. Civ. App. 675, 24 S. W. 1083 70 Gulf, Col. & S. F. E. E. Co. v. Carter, 5 Tex. Civ. App. 678, 24 S. W. 1083 327 Gulf etc. Ey. Co. v. Eambolt, 67 Tex. 657, 4 S. W. 356 265, 278 Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 912 16, 61, 67, 106, 107, 115, 123, 231, 409 Halbert v. Brown, 9 Tex. Civ. App. 335, 31 S. W. 535 110, 226 Halbert v. De Bode, 15 Tex. Civ. App. 615, 40 S. W. 1011 88 Halbert v. Hendrix (Tex. Civ. App.), 26 S. W. 911, 912 61 Hall V. Redson, 10 Mich. 21 237 Hamilton v. Pitcher, 53 Mo. 334 238, 327 Hamman v. Krig\\'in, 39 Tex. 42 89 Hampshire v. Floyd, 39 Tex. 105 147 Hanley v. Gandy, 28 Tex. 211, 91 Am. Dec. 315 191, 202 Hanrick v. Cavanaugh, 60 Tex. 19 4, 5, 9, 11, 12, 16 Hanrick v. Dodd, 62 Tex. 87 4, 11 Hanrick v. Hanrick, 61 Tex. 601 261 Hardin v. Sparks, 70 Tex. 431, 7 S. W. 769 171, 189 Harlowe v. Hudgins, 84 Tex. 109, 31 Am. St. Eep. 21, 19 S. W. 364 78 Harmon v. McGee, 57 Miss. 410 408 Harper v. State, 109 Ala. 89, 19 South. 857 294 Harris v. Cato, 26 Tex. 339 213 1 TABLE OF CASES. [The Keferences are to Pages.] Harris v. Hoskins, 2 Tex. Civ. App. 4S6, 22 S. W. 251, 252 172, 188, 189 Harris v. Wells, 85 Tex. 312, 20 S. W. 68 38 Harrison v. Boring, 44 Tex. 263 89 Harrison v. Knight, 7 Tex. 47 49 Hartley v. Frosh, 6 Tex. 208, 55 Am. Dec. 772 86, 141 Harvey v. Cummiugs, 68 Tex. 599, 5 S. W. 513 175 Harvey v. Hill, 7 Tex. 591 16, 25, 31, 72, 79, 101, 106, 107, 119, 132, 173, 238 Harvey v. Thorpe, 65 Am. Dec. 346 203 Hatch v. Dunn, 11 Tex. 715 32 Hatchett v. Connor, 30 Tex. 108 13, 16, 27, 29, 30, 92 Hawley v. Bullock, 29 Tex. 222 25, 27 Hayden v. Moflfett, 74 Tex. 650, 15 Am. St. Rep. 866, 12 S. W. 820 37, 135, 210,412 Hays v. Tilson, 18 Tex. Civ. App. 610, 45 S. W. 479 76, 77, 79 Heidenheimer v. Thomas, 63 Tex. 287 124 Heintz v. O'Donnell, 17 Tex. Civ. App. 21, 42 S. W. 797. .79, 82, 97 Heintz v. Thayer, 92 Tex. 658, 50 S. W. 930, 51 S. W. 640. .89, 94, 202 Helena First Nat. Bank v. Roberts, 9 Mont, 323, 23 Pac. 718 237 Henderson v. Pilgrim, 22 Tex. 476 25 Henderson v. Terry, 62 Tex. 2.82 86, 88, 141 Henke v. Stacy, 25 Tex. Civ. App. 272, 61 S. W. 511 59, 60, 69 Herndon v. Cassiasso, 7 Tex. 324 18, 23, 30 Herndon v. Reed, 82 Tex. 651, 18 S. W. 665 239, 251, 261, 273, 282, 291, 296, 298, 313, 315, 321, 322, 332, 346, 347, 360, 362, 363, 370, 373, 378, 383, 401 Herring v. White, 6 Tex. Civ. App. 249, 25 S. W. 1017 86, 120, 141, 433 Hess V. Trigg, 8 Okla. 286, 57 Pac. 159 263 Hicks V. Roos, 71 Tex. 360, 9 S. W. 315 38 Hill V. Moore, 62 Tex. 610 88 Hill V. Smith, 6 Tex. Civ. App. 312, 25 S. W. 1080.. 72, 81, 122, 182 Hill v. Taylor, 77 Tex. 295, 14 S. W. 366 37, 93, 221 Hines v. Lmmpkin, 19 Tex. Civ. App. 556, 47 S. W. 818 72 Holdeman v. Knight, Dall. 568 227 Holden v. State, 1 Tex. App. 242 282 Holladay v. Dailey, 86 U. S. (19 Wall.) 606, 22 L. ed. 187 226 HoUiday v. (Jromwell, 26 Tex. 188 35, 46, 48, 98, 100, 102, 163, 166, 177, 178, 200, 354, 422 Hollis V. Dashiell, 52 Tex. 187 190 Holmes v. Coryell, 58 Tex. 685 165, 200 Hooper v. Hall, 35 Tex. 85 13, 16, 26, 28, 32 H. & L. C. Ry. Co. v. Ford, 53 Tex. 370 275 Hope V. Sawyer, 14 111. 254 240 Horback v. Tyrrell, 48 Neb. 131, 67 N. W. 485 235 Horton v. Col. Bldg. etc. Assn., 6 Week. Law Bull. (Ohio) 141.. 235 TABLE OF CASES. li [The References are to Pages.] Horton v. Crawford, 10 Tex. 390 281 Houston V. Blythe, 60 Tex. 513 28 Houston V. Jordan, 82 Tex. 253 12 Houston V. Perry, 5 Tex. 464 18 Houston V. Eobertson, 2 Tex. 18 203 Houston etc. Ey. Co. v. Ford, 53 Tex. 371 263 Howard v. Colquhoun, 28 Tex. 134 233 Howard v. Kellam (Tex.), 8 S. W. 96 60 Hubert v. Bartlett, 9 Tex. 102 28, 32, 93. 133, 419 Hurst V. Finley, 22 Tex. Civ. App. 605, 54 S. W. 1072 96, 127, 142 Hurst V. Finley, 22 Tex. Civ. App. 605, 55 S. W. 388 72, 73, 117, 122, 135, 152 Hussey v. Moser, 70 Tex. 45, 7 S. W. 606 40 Hutchins v. Bacon. 46 Tex. 415 7, 25, 26, 92 Ikard v. Thompson, 81 Tex. 291, 16 S. W. 1019 38 Illg V. Garcia (Tex. Civ. App.), 37 S. W. 472, 45 S. W. 857, 47 S. W. 717, 92 Tex. 252 230 lilies v. Frerichs, 11 Tex. Civ. App. 575, 32 S. W. 915 89 Irion v. Mills, 41 Tex. 310 231 Jacks V. Dillon, 6 Tex. Civ. App. 192, 25 S. W. 645 40 Jackson v. Waldron, 13 Wend. 178 167 Jackson v. Waldstein, 10 Tex. Civ. App. 156, 30 S. W. 47 89 Jester v. Steiner, 86 Tex. 420, 25 S. W. 411 202 Johnson v. Bryan, 62 Tex. 623 38, 113, 119 Johnson v. Franklin (Tex. Civ. App.), 76 S. W. 611 174 Johnson v. Luford, 9 Tex. Civ. App. 85, 29 S. W. 57 89 .Johnson v. Taylor, 60 Tex. 361 37, 38, 84, 114, 116, 119, 129, 133, 140, 145, 147, 200, 210, 411, 412, 413, 429 Johnson v. Thompson (Tex. Civ. App.), 50 S. W. 1057 72, 76, 78, 98, 122, 131, 134, 136, 143, 177, 191 Jones V. Goflf, 63 Tex. 253 110, 111, 121, 124, 232 Jones V. Montes, 15 Tex. 351 7, 14, 436, 438, 442 Jones V. Muisbach, 26 Tex. 237 5, 13 Jones V. Porter, 59 Miss. 628 236, 237 Jones V. Eobbins, 74 Tex. 615, 12 S. W. 824 110, 111, 119, 121, 138, 166, 173, 175, 226, 232 Jourdan v. Jourdaii, 9 Serg. & E. 268, 11 Am. Dec. 724 83 Keeney v. Leas, 14 Iowa, 464 327 Kimball v. Johnson, 14 Wis. 674 236, 237 Kimmarle & Ilirsli v. II. & T. C. Ey. Co., 76 Tex. 692, 12 S. W. 698 230 Kincaid v. Jones, 2 U. C. 534 118, 206 King v. Haley, 75 Tex. 169, 12 S. W. 1112 135 King v. Eussell, 40 Tex. 130 83, 96, 142, 209 lii TABLE OF CASES. [The References are to Pages.] Koc.nirok v. jMinak, 54 Tex. 205, 33 Am. Rep. 623 141 Kuniiieiiaeiser v. .Timcker, 28 La. Ann. 678 327 Kuteh V. lloUey, 77 Tex. 220, 14 S. W. 32 236 Lambert v. Weir, 27 Tex. 364 16, 31, 92, 281 Lang V. Dougherty, 74 Tex. 229, 12 S. W. 29 189 Langton v. Marshall, 59 Tex. 297 119, 133 Laugton v. Marshall, 59 Tex. 299 107, 144, 344, 345 Leach v. Dodson, 64 Tex. 189 116, 210, 277, 412 Lecomte v. Tondonze, 82 Tex. 213, 27 Am. St. Rep. 870, 17 S. W. 1047 39 Lee V. Wharton, 11 Tex. 74 32, 93, 419 Le Gierce v. Moore, 59 Tex. 473 124 Leland v. Eckert, 81 Tex. 229, 16 S. W. 897 75 Leon H. Blum Land Co. v. Dunlap, 4 Tex. Civ. App. 315, 23 S. W. 473 227 Lewis V. Aylott, 45 Tex. 201 170, 189 Lewis V. Cole, 60 Tex. 341 88 Lindley v. Lindley, 92 Tex. 446, 49 S. W. 573, (Tex. Civ. App.) 50 S. W. 159 73, 122, 123 Linton v. National L. Ins. Co., 104 Fed. '584 437 Little V. Weatherford, 63 Tex. 639 74 Livingston v. Jones, Harr. (Mich.) 165 432 Livingston v. Kettelle, 41 Am. Dec. 168, note 58, 59, 69, 76, 77, 82, 98, 131, 132, 134, 135, 177, 241 Locke v. Huling, 24 Tex. 313 239 Loftin V. Nally, 24 Tex. 574 200 Looney v. Adamson, 48 Tex. 619 38, 70, 83, 113, 129, 130, 131, 200, 327, 411 Louisville etc. Ry. Co. v. City of East St. Louis, 134 111. 656, 25 N. E. 962 294 Lovett V. Casey, 17 Tex. 596 263, 274 Lucas V. Larkin, 85 Tenn. 355, 3 S. W. 647 67 Lynch v. Livingston, 6 N. Y. 422 237 Lyttleton v. Giddings, 47 Tex. 114 27 Macey v. Stark, 116 Mo. 481, 21 S. W. 1094 238 Manley v. Culver, 20 Tex. 143 163 Mapes V. Leal, 27 Tex. 349 201 Markle v. Scott, 2 App. Civ. Cas. 674 68 Martin v. Burns, 80 Tex. 678, 16 S. W. 1072 361 Martin v. McAdams, 87 Tex. 225, 27 S. W. 255 170, 171, 172, 189 Martin v. Parker, 26 Tex. 258 5, 8, 10, 11, 13 Marx V. Hanthorn^ 30 Fed. 579 226 Masterson v. Harris (Tex. Civ. App.), 83 S. W. 429 135, 201 Masterson v. Todd, 6 Tex. Civ. App. 131, 24 S. W. 682 206 McCammon v. Beaupre, 25 TJ. C. Q. B. 419 221 TABLE OF CASES. liii [The References are to Pages.] McCartee v. Orphan Asylum Soc, 18 Am. Dec. 542 262 McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100 5, 13, 16, 25, 29, 32, 48, 91, 92, 100, 101, 102, 160, 161, 163, 178, 193, 241 McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691 251, 260, 271, 273, 291, 313, 316, 322,;j26, 331, 332, 346, 354, 357, 362, 383, 413, 415, 417, 421, 425 McCullough Land and Cattle Co. v. Whitiford', 21 Tex. Civ. App. 314, .50 S. W. 1043 226, 227 MeDaniel v. Garrett, 11 Tex. Civ. App. 57, 31 S. W. 721 118, 132 McDaniel v. Harold, 1 U. C. 521 115, 119, 137, 349, 374, 380, 402, 427 McDaniel v. Needham, 61 Tex. 272 76, 79, 164, 168, 172, 175 McDonald v. Morgan, 27 Tex. 505 35, 70, 390, 417 McFaddin v. Preston, 54 Tex. 407 37, 90, 200 McKay v. Speak, 8 Tex. 396 76, 79 McKeller v. Peck, 2 U. C. 194 206, 210 McKeller v. Peck, 39 Tex. 381 67, 83, 96, 129, 142, 206, 238, 327, 328, 329, 407, 408 McKenzie v. Jackson, 82 Ga. SO, 8 S. E. 77 221 McKenzie v. Stafford, 8 Tex. Civ. App. 121, 27 S. W. 790 75 McKie V. Anderson, 78 Tex. 207, 14 S. W. 576 72, 73, 122, 133, 174 McKinney v. Matthews (Tex.), 6 S. W. 795 139 McKissick v. Colquhoun, 18 Tex. 151 4, 5, 8, 10, 11, 13, 18, 20, 22, 26, 27, 34, 45, 91, 101, 161, 163, 164, 169, 193, 233, 240 McLain v. Canales (Tex. Civ. App.), 25 S. W. 29 37 McMahan v. McGraw, 26 Wis. 614 68 McNeil V. O'Connor, 79 Tex. 229, 14 S. W. 1058 75 McNnlty v. Ellison (Tex. Civ. App.), 71 S. W. 670 134, 135 McPhaiil V. Lapsley, 20 Wall. 286, 32 L. ed. 344 6, 30 Melllnger v. Houston, 68 Tex. 37, 3 S. W. 249 413 Merrett v. Yates, 71 111. 636, 23 Am. Eep. 128 409 Meuley v. Zeigler, 23 Tex. 93 160, 390 Mexia v. Oliver, 148 U. S. 664, 13 Sup. Ct. Rep. 754, 37 L. od. 602 110, 226, 232 Miller v. Alexander, 13 Tex. 506 226 Miller v. Yturria, 69 Tex. 552, 7 S. W. 206 87, 117, 127, 128, 141, 142, 277, 433 Millikin V. Smoot, 71 Tex. 760, 10 Am. St. Rep. 813, 12 S. W. 59. . 408 Mills V. Waller, Dall. 419 * Minor v. Powers (Tex. Civ. App.), 38 S. W. 400 131, 208 Missouri Pac. Ry. Co. v. Parkhurst, 3 Tex. App. Civ., § 159. . .265, 278 Mitchell Co. V. City Nat. Bank, 91 Tex. 374, 43 S. W. 880.. .263, 274 Mitchell V. State, 19 Ind. 381 -'^ Monroe v. Arledge, 23 Tex. 480 50, 51, 81, 82, 98, 131, 177, 181, 191, 263, 275, 291, 310, 311, 312, 379 liv TABLE OF CASES. [The References are to Pages.] Montgomery v. Honiberger, IG Tex. Civ. App. 28, 40 S. W. 628. . 79, 121, 135, 137 Moore v. Carson, 12 Tex. 66 221 Moore v. Moore, 47 N. Y. 467, 7 Am. Eep. 468 436 Moores v. Linnej^, 2 Tex. Civ. App. 293, 21 S. W. 709 120, 121, 133, 135, 137, 138 Morris v. State, 62 Tex. 741 286 Moses V. DibroU, 3 Tex. Civ. App. 457, 21 S. W. 414 79, 80, 208 Mullens v. Weaver, 57 Tex. 5 82, 137 Muller V. Boone, 63 Tex. 93 228 Mimcie Nat. Bank v. Brown, 112 Ind. 477, 14 N. E. 358 206, 329 Munger v. Baldridge, 41 Kan. 236, 13 Am. St. Eep. 373, 21 Pac. 159 432 Murphy v. Eeynaud, 2 Tex. Civ. App. 470, 21 S. W. 991. .40, 121, 135 Newby v. Haltaman, 43 Tex. 314 89 New Hampshire Land Co. v. Tilton, 19 Fed. 73 238 Newman v. Samuels, 17 Iowa, 528 409 Newton v. Emerson, 66 Tex. 145, 18 S. W. 348 39, 91 Nichols V. Gordon, 25 Tex. Supp. 112 83, 130, 209, 275, 432 Nichols V. Hampton, 46 Ga. 253 236 Nichols V. Stewart, 15 Tex. 235 82, 83, 130, 209 Nicholson v. Gloucester Charity School, 93 Va. 101, 24 S. E. 899. . 235 Nicholson v. Horton, 23 Tex. 51 28 Nixon V. Post, 13 Wash. 181, 43 Pac. 23 237 Nolan V. Moore, 96 Tex. 341 110, 410 Norton v. Davis, 83 Tex. 32, 18 S. W. 430 78, 84, 96, 119, 129. 133, 138, 142, 265, 277, 412, 429 N. Y. etc. Ey. Go. v. Bridgeport Traction Co., 65 Conn. 410, 29 L. E. A. 368 263 Olcott v. Ferris (Tex. Civ. App.), 24 S. W. 850. Overand v. Menczer, 83 Tex. 130, 18 S. W. 301. . Page V. Arnim, 29 Tex. 73 76, 79 Parker v. Chancellor, 73 Tex. 475, 11 S. W. 503 93, 118 Parker v. Parker, 10 Tex. 86 286 Parker v. Wood, Call. (Pa.) 436, 1 L. ed. 312 238 Paschal v. Perez, 7 Tex. 357, 358 18, 29, 30, 34, 35, 46, 99, 100, 102, 161, 163, 169, 192, 233 Pattou V. King, 26 Tex. 686, 84 Am. Dec. 596 110, 226, 232 Peak V. Brinson, 71 Tex. 311, 11 S. W. 269 110, 226, 232 Pence v. Arbuckle, 22 Minn. 417 60 Penn v. Garvin, 56 Ark. 511, 20 S. W. 410 236, 237 People V. Board of County Commissioners, 77 Hun, 372, 28 N. Y. Supp. 871 293 People V. Fromme, 35 N. Y. App. Div. 459, 54 N. Y. Supp. 833. . . 437 TABLE OF CASES. Iv [The References are to Pages.] Peterson v. Lowrv, 4S Tex. 412 58, 59, 69, 86, 96, 142, 241, 328 Peterson v. McCauley (Tex. Civ. App.), 25 S. W. 829 88 Phoenix Assur. Co. v. Fire Department, 117 Ala. 631, 23 Soutli. 843, 42 L. E. A. 469 263, 277 Pierce v. Fort, 60 Tex. 464 85, 88, 141 Pilancl V. Taylor, 113 N. C. 521, 18 S. E. 70 236 Piper V. Chippewa Iron Co., 51 Minn. 495, 599, 53 X. W. 870 240 Pool V. Chase. 46 Tex. 207 85, 88, 141 Pool V. Jackson, 66 Tex. 382, 1 S. W. 75 167 Poor V. Boyce, 12 Tex. 447 107 Powell V. Fealy, 49 111. 143 436 Prescott V. Hayes, 42 X. H. 56 238 Price V. Horton, 4 Tex. Civ. App. 526, 23 S. W. 501 408 Pullum V. State, 78 Ala. 31, 56 Am. Eep. 21 231 Pyron v. Butler, 27 Tex. 271 90 Qiiiulan v. Houston etc. Ey. Co., 89 Tex. 356, 34 S. W. 738 293 Eailway Co. v. McEae, 82 Tex. 616, 27 Am. St. Eep. 926, 18 S. W. 672 168 Eeagan v. Farmers' Loan and Trust Co., 154 V. S. 389, 392, 38 L. ed. 1021, 14 Sup. Ct. Eep. 1062 383 Eeagan v. Holliman, 34 Tex. 412 110, 232 Eemington Paper Co. v. O 'Dougherty, 81 X. Y. 474 237 Eheinstrom v. Cone, 26 Wis. 163, 7 Am. Eep. 51 437 Ehine v. Hodge, 1 Tex. Civ. App. 368, 21 S. W. 140 113, 119, 133 Eidgley v. Howard, 3 Harr. & McH. (Md.) 321 344 Eiley v. Pool, 5 Tex. Civ. App. 346, 24 S. W. 85 175 Eindskoff v. Malone, 74 Am. Dec. 368 206 Eiviere v. Wilkens (Tex. Civ. App.), 72 S. W. 610. . .168, 207, 212, 423 Eobinson v. Mauldin, 11 Ala. 977 225 Eogers v. Burchard, 34 Tex. 453, 7 Am. Eep. 283 89 Rogers v. Pettus, 80 Tex. 426, 15 S. W. 1093 89 Rogers v. Watrous, 8 Tex. 62, 58 Am. Dec. 100 49, 251, 262, 282, 332, 358, 362, 371, 373 Eork V. Shields, 16 Tex. Civ. App. 640, 42 S. W. 1032 40, 73, 79, 80, 131, 134, 230 Rose v. Xewman, 26 Tex. 135, 80 Am. Dec. 646.239, 250, 283, 388, 394 Rothschild v. Daugher, 8o Tex. 333, 34 Am. St. Rep. 811, 20 S. W. 142, 16 L. R. A. 719 236 Roussian v. Xorton, 53 Minn. 560, 55 X. W. 747 60 Roy v. Bremond, 22 Tex. 629 107, 432 Ruis V. Chambers, 15 Tex. 587 10, 160 Ruleman v. Pritchett, 56 Tex. 483 119, 133, 265, 413 Runge V. Sabin (Tex. Civ. App.), 30 S. W. 568 118, 119, 133 Russell V. Farquhar, 55 Tex. 361 371, 379 Ryan v. Maxey, 43 Tex. 192 139 Ivi TABLE OF CASES. [The References are to Pages.] Salmon v. Huff, SO Tox. 133, 15 S. W. 257, 1047 73 Sample v. Irwin, 45 Tex. 573 189, 190, 191, 236 San Antonio v. Grandjean, 91 Tex. 435, 44 S. W. 476 109 Sartor v. Bolinger, 59 Tex. 411 6, 43, 66, 95, 219, 434 Sawyer v. Cox, 63 111. 130 235, 237 Schleicher v. Gatlin, 85 Tex. 273, 20 S. W. 120 74 Schleicher v. Pamge (Tex. Civ. App.), 37 S. W. 984 60 Schneider v. Sansom, 62 Tex. 201, 50 Am. Eep. 521 68 Schollenberger v. Schollenberger, 96 U. S. 369, 378, 24 L. ed. 853 382 Sehrairm v. Gentry, 63 Tex. 583 66, 74, 81 Scott V. Maynard, Ball. 548 16 Secrest v. Jones, 21 Tex. 123 18, 99 Secrist v. Green, 3 Wall. (U. S.) 744, 18 L. ed. 153 221 Selman v. Wolf, 27 Tex. 72 262, 263, 274, 371 Settegast v. Charpiot (Tex. Civ. App.), 28 S. W. 580 206, 221 Shelby v. Bnj-tis, 18 Tex. 645 86, 141 Sheldon v. Milmo, 90 Tex. 18-22, 36 S. W. 413 5, 13, 14 Shepherd v. Cnmmings, 44 Tex. 502 14 Shipman v. Fnlcrod, 42 Tex. 249 437 Shirbiirn v. Hunter, 21 Fed. Cas. No. 12,744 438 Sileock V. Baker, 25 Tex. Civ. App. 508, 61 S. W. 939 85, 235, 237, 412, 413, 415, 425 Simpson v. Edens, 14 Tex. Civ. App. 235, 38 S. W. 474 14, 84, 89, 130, 204, 412 Simpson v. Lovering, 3 Bush (Ky.), 458, 96 Am. Dec. 252 238 Slack V. Dawes, 3 Tex. Civ. App. 520," 22 S. W. 1053 72, 122 Sloan V. Thompson, 4 Tex. Civ. App. 426, 23 S. W. 613 51, 69, 72, 81, 122, 200, 201, 202 S. L. & S. W. Ey. Co. v. Kay, 85 Tex. 559, 22 S. W. 665. . . .262, 373 Small V. Field, 102 Mo. 104, 14 S. W. 815 240 Smith V. Adams, 4 Tex. Civ. App. 5, 23 S. W. 49 160 Smith V. Cavitt, 20 Tex. Civ. App. 558, 50 S. W. 168 39 Smith V. Elliott, 39 Tex. 209 121, 134, 138 Smith V. Gillon, 80 Tex. 125, 15 S. W. 794 75 Smith V. Townsend, Dall. 570 4, 29, 30, 91, 241 Smith V. Ward, 2 Boot, 378, 1 Am. Dec. 80 83 Snow^den v. Kush, 69 Tex. 593, 6 S. W. 767 66, 77 Sowers v. Peterson, 59 Tex. 219 72, 81, 122, 135, 166, 168 Stallings V. Hullum, 79 Tex. 421, 15 S. W. 677 85, 140 Stallings v. Hullum (Tex. Civ. App.), 33 S. W. 1033 231 Starnes v. Beitel, 20 Tex. Civ. App. 524, 50 S. W. 202 61, 85, 129, 200, 409, 411, 412 State V. Benton, 33 Neb. 834, 51 N. W. 144 294 State V. De Leon, 64 Tex. 559 10, 160 State V. Delesdenier, 7 Tex. 76 49, 346 State V. L & G. N. E. E., 57 Tex. 550 261 TABLE OF CASES. Ivii [The References are to Pages.] State V. Masse}', 4 L. B. A. 309, note 262, 277 State V. McCracken, 42 Tex. 383 152 State V. Purcell, 16 Tex. 307 354 State V. Travis Co., 85 Tex. 445, 21 S. W. 1029 262, 282 Stebbins v. State, 22 Tex. App. 32, 2 S. W. 618 261 Stephens v. Motl, 81 Tex. 115, 16 S. W. 731.14, 51, 68, 75, 81, 208, 215 Stephenson v. Stephenson, 6 Tex. Civ. App. 529, 25 S. W. 649.172,202 Stevens v. Martin, 18 Pa. St. 101 67 Stinnett v. House, 1 U. C. 486 76, 160, 166, 175 Stirman v. State, 21 Tex. 734 261, 281, 287, 370, 373 Stitzle v. Evans, 74 Tex. 599, 12 S. W. 326 121 St. Louis & S. W. By. Co. v. Kay, 85 Tex. 559, 22 S. W. 665. .. . 282,371 St. Louis etc. By. v. Harris, 73 Tex. 375, 11 S. W. 405 14 Stone v. Sledge (Tex. Civ. App.), 24 S. W. 697, 87 Tex. 49, 47 Am. St. Bep. 65, 26 S. W. 1069 ... .67, 70, 83, 119, 129, 130, 140, 210, 327, 329, 407, 408, 412, 429 Stooksberrv v. Swann, 12 Tex. Civ. App. 66, 21 S. W. 694, 22 S. W. 966, 34 S. W. 369 39, 108, 144, 207, 209, 327 Stott V. Harrison, 73 Ind. 20 408 Stramler v. Coe, 15 Tex. 212 103, 165, 326, 417 Stringer v. Swenson, 63 Tex. 7 132, 138 Stringfellow v. Thompson, 1 C. C. A. 565 215 Suddereth v. Smyth, 13 Ired. (K C.) 452 240 Summer v. Mitchell, 29 Fla. 179, 30 Am. St. Bep. 106, 10 South. .562, 14 L. B. A. 815 "-40 Summers v. Shearn (Tex. Civ. App.), 37 S. W. 246 86, 141 Swamscott Mac. Co. v. Walker, 22 N. H. 457, 55 Am. Dee. 172, 35 L. E. A. 321, note l''-'^ S. W. Mfg. Co. v. Hughes (Tex. Civ. App.), 60 S. W. 687 234 Talbert v. Dull, 70 Tex. 675, 8 S. W. 530 75, 78, 81, 131, 177, 191, 222, 273, 302, 809, 312, 314, 315, 317, 322, 374, 381, 399 Talbert' v. Stewart, 39 Cal. 602 225, 226 Talbot V. Dillard, 22 Tex. Civ. App. 361, 54 S. W. 407 191 Talkin v. Anderson (Tex.), 17 S. W. 361 139 Tate v. Stoolzfoos, 16 Am. Dec. 547, 548, note 414 Taylor v. Hall, 71 Tex. 218, 222, 9 S. W. 141 262, 282 Taylor v. Harrison, 47 Tex. 457, 26 Am. Bep. 304 37 Terrell v. Martin, 64 Tex. 127 --^^ Texas Land Co. v. Williams, 51 Tex. 51. . .62, 68, 95, 97, 131, 176 201, 202, 206, 220, 221, 223, 224, 306, 309, 311, 320, 321, 415 Texas Loan Agency v. Taylor, 88 Tex. 50, 29 S. W. 1057 88 Third \at Bank of Chattanooga v. Smith, Tenn. Ch. App. 1102. . 238, 327 Thomi)S()n v. Johnson, 84 Tex. 548, 19 S. W. 784 80, 120, 138, 146, 237, 239, 265, 271, 277, 391, 401, 403 Iviii TABLE OF CASES. [The References are to Pages.] Thompson v. Johnson, 92 Tex. 360, 51 S. W. 23 122, 134 Thompson v. Wilson, 24 Tex. Civ. App. 666, 60 S. W. 355 108 Thorn v. Frazcr, 60 Tex. 261 211, 291, 311 Thouvenin v. Kodrigiies, 24 Tex. 478. .261, 265, 278, 346, 358, 363, 373 Threadgill v. Biekorstaff, 7 Tex. Civ. App. 406, 26 S. W. 741 79, 82, 138 Threadgill v. Butler, 60 Tex. 601 60 Thulemeyer v. Jones, 37 Tex. 571 238 Tleman v. Cobb (Tex. Civ. App.), 80 S. W. 250 134 Tippett V. Brooks, 67 S. W. 512 118 Tipton V. Jones, 57 Tenn. (10 Heisk.) 564 236 Tittle V. Vaneer (Tex. Civ. App.), 27 S. W. 736 37, 236 Titus V. Johnson, 50 Tex. 240 69, 86, 96, 142, 234 Titus V. Kimbro, 8 Tex. 218 4, 5, 7, 8, 18, 26, 30, 32, 93, 419 Titus V. Latimer, 5 Tex. 436 348 Torrey v. Forbes, 94 Ala. 135, 10 South. 320, 17 L. E. A. 113 221 Towle V. Marrett, 14 Am. Dec 209 262 Townes v. Harris, 13 Tex, 512 226 Tracy v. Jenks, 15 Pick. (Mass.) 465 67 Trammel v. Neal, 1 U. C. 51 410 Trenwith v. Smallwood, 111 N. C. 132, 15 S. E. 1030 237 Trowbridge v. Addoms, 23 Colo. 518, 48 Pae. 535 436 Trueheart v. Adclicks, 2 Tex. 221 361 Tucker v. Carr, 39 Tex. 98 * 14o Tunstall v. Wormley, 54 Tex. 481 282 Uhl V. Masquez, 1 U. C. 658 25, 27 United States v. Bixby, 10 Bliss. 523 327 United States v. Griswold, 8 Fed. 556 436 United States Express Co. v, Haines, 48 111. 248 437 Utzfield V. Bodman, 76 Tex. 361, 13 S. W. 474 110, 161, 306 Van Clife v. Van Vichten, 55 Hun, 467, 8 N. Y. Supp. 760 293 Vasquez v. Tex. Loan Agency (Tex. Civ. App.), 45 S. W. 942.. 183,197 Vogelsang v. Null, 67 Tex. 467, 3 S. W. 451 39 Wadkius v. Watson, 86 Tex. 198, 24 S. W. 385, 22 L. R. A. 779. . 108, 113, 145, 147, 271, 275, 306 Wallace v. State, 33 Tex. 445 362 Wallerath v. Knapp, 31 Tex. 359 362 Waltee v. Weaver, 57 Tex. 569 8.5, 88, 117, 118, 120, 127, 140, 433 Wannell v. Kem, 51 Mo. 150 408 Wardlow v. Miller, 69 Tex. 397, 67 S. W. 292 139 Warren v. .Jones, 69 Tex. 465, 6 S. W. 775 110, 121, 226, 232 Waters v. Spofford, 58 Tex. 121 35, 47, 100, 101, 189, 192, 196, 207, 331 TABLE OF CASES. lis [The Beferences are to Pages.] Waters v. Waters, 33 Tex. oO 362 Watkins v. Edwards, 23 Tex. 447 89 Watkins v. Hall, 57 Tex. 1 51, 72, 81, 122, 173 Watrous v. McGrew, 16 Tex. 511 10, 26, 160, 241 Watson V. Chalk, 11 Tex. 93 27 Watson V. Lessee, 1 Binn. 470, 2 Am. Dec. 462 83 Watson V. Mercer, 33 U. S. (8 Pet.) 88, 8 L. ed. 876 414 Watson V. Mirike, 25 Tex. Civ. App. 527, 6 S. W. 541 437 Webb V. Burnev, 70 Tex. 323, 7 S. W. 841 85, 86, 117, 118. 127, 128, 140, 143 Webb V. Den, 17 How. 578, 15 L. ed. 35 116 Webb V. Hnfle, 61 Tex. 678 69, 81, 82, 207 Webb V. Mallard, 27 Tex. 83 265, 278 Webb V. State (Tex. Cr. App.), 40 S. W. 989 67 Wedel V. Herman, 59 Cal. 507 409 Welsh T. Lewis, 71 Ga. 387 237 Wert V. Schneider & Davis, 64 Tex. 330 240, 283 Wheeler v. Moody, 9 Tex. 375 28, 30 Wheelock v. Cavitt. 91 Tex. 682, 66 Am. St. Eep. 920, 45 S. W. 796 8^' 1^8 Whetstone v. Coffey, 48 Tex. 272 113, 147 White V. Burney, 27 Tex. 51 203 White V. Holliday, 20 Tex. 688 189 Whitehead v. Foley, 28 Tex. 272 69, 70 Wiggins V. Fleishel, 50 Tex. 57 37, 90, 189, 200, 203 Wiley V. Prince, 21 Tex. 637 85, 128, 141, 142 Williams v. Conger, 125 U. S. 397, 8 Sup. Ct. Eep. 933, 31 L. ed. 778 3, 7, 10, 13, 17, 191 Williams v. Conger, 49 Tex. 600 26, 92, 241 Williams v. Ellingsworth, 75 Tex. 480, 12 S. W. 746 115, 116, 129, 145, 200, 210, 411, 412 Williams v. Graves, 7 Tex. Civ. App. 365, 26 S. W. 338 121 Williams v. Pounds, 48 Tex. 141 85, 141 Williams v. Walker, 2 Eich. Eq. 291, 46 Am. Dec. 53 165 Willis V. Lewis, 28 Tex. 185 355 Wilson V. Kimmel, 109 Mo. 260, 19 S. W. 24 238 Wilson V. Simpson, 80 Tex. 279, 16 S. W. 40 78, 100, 121, 134, 137, 138, 207 Wilson V. Simpson, 68 Tex. 312, 4 S. W. 839 16.5, 222, 238, 265, 271, 277, 315, 328, 343, 353, 391 Wilson V. Traer, 20 Iowa, 231 237 Winbish v. Holt, 26 Tex. 676 213 Winn V. Winn, 23 Tex. Civ. App. 618, 07 S. W. 81 121 Winsted Sav. Bank v. Spences, 26 Conn. 195 23 < Witt v. Harlan, 66 Tex. 660, 2 S. W. 41 72, 136, 206, 208 Womack v. Womack, 8 Tex. 397, 58 Am. Dec. 119 118, 140 Wood V. Welder, 42 Tex. 408 25, 29, 48, 91, 92, 102 Ix TABLE OF CASES. [The References are to Pages.] Woodniff V. MeTIarry, 56 111. 218 238 Woolfolk V. Graniteville etc. Co., 22 S. C. 332 158 Word V. McKinney, 25 Tex. 268 18, 29, 35, 92 Workman's Mutual Aid Assn. v. Monroe (Tex. Civ. App.), 53 S. W. 1029 235 Wren v. Howlan.l (Tex. Civ. App.) 75 S. W. 894 173, 174, 181, 182, 185, 310 Wright V. Hayes, 10 Tex. 136, 60 Am. Dec. 200 38, 109, 120, 124 Wright V. Leath, 24 Tex. 33 354 York V. Gregg, 9 Tex. 85 23, 27, 93, 419 Zimpleman v. Stamps, 21 Tex. Civ. App. 129, 51 S. W. 341 229 AUTHENTICATION PROOF OF WRITTEN INSTRUMENTS, TEXAS THE AUTHENTICATION, ACKNOWLEDGMENT AND PROOF OP WRITTEN INSTRUMENTS. CHAPTER I. CONVEYANCES, AUTHENTICATION AND EEGISTRATION PRIOR TO THE REGISTRATION ACT OF DECEMBER 20, 1836. § 1. Historical outline. § 2. How sale may be effected under Spanish and Mexican laws. Verbal sale of real estate valid. Form of contracts. Notice and priority of purchasers under Spanish and Mexi- can laws. § 3. Method of authentication and record prior to 1836. (a) By authorized officers. (b) Spanish language to be used. (c) Stamped paper to be used. (d) Seals, signets, rubrics and notarial flourishes. (e) Signatures, names, residences, date, venue, terms, etc. (f ) Assisting witnesses necessary to authentication, when. (g) Alterations, blanks, interlineations, forgeries, etc. (h) Presumptions— Proof— Antiquity. (i) Method for Austin colony. (j) Custom. § 4. Necessity, materiality and effect of authentication. § 5. Officers authorized to authenticate. § 6. Notaries public. §§ 7-21. Judges and decrees relating to same. § 22. Authority of officers immaterial, when. 1 (1) §§ 1, 2 AUTHENTICATION PRIOR TO 1837. 2 § 1. Historical Outline — From the year 1727 to August 24, 1821, Texas was a colony of Spain and governed by the same laws. From that time until November 13, 1835, Coahuila and Texas (and New Leon until 1824) constituted one of the states of the Republic of Mexico, and Avere governed by her laws. At this time a pro- visional government was established by the inhabitants of Texas, which lasted until Texas declared her inde pendence, March 2, 1836. (A constitution was adopted March 17, 1836. ) ^ Texas remained a republic until July 4, 1845, when she became one of the states of the Union.^ She seceded in 1861, but again adopted a constitution acceptable to the federal government in September, 1869. Laws passed during the time of her secession were valid, however.^ During her history she adopted eight different constitutions, besides various amendments to same, to wit : Those of March 17, 1836, of July 4, 1845 (U. S.), of August 27, 1845, of March 2, 1861, of March 11, 1861 (Confederate), of October 8, 1866, of September (second Monday), 1869, and of November 24, 1875. Shortly after the adoption of the different constitutions the laws relating to registration and the authentication of written instruments were usually revised, modified and amended, as will be seen hereafter, under the vari- ous titles.* § 2. How Sale may be Effected Under Spanish and Mexican Law — ''Sale and purchase may be effected in two ways : One in writing, and the other without. In writing, v/hen the buyer says to the seller, 'I wish to have this sale reduced to writing.' A sale made in this manner is not perfect, although the parties are agreed upon the price, until the writing is made and executed ; for until then, either of them may retract. But after the writing 1 1 L. T. 61, 113; Sayles' Real Estate Laws, c, 1. 2 2 L. T. 1228. 3 Post, § 884, 4 See, also, Appendix. 3 AUTHENTICATION PRIOE TO 1837. § 2 is once made and perfected, in the presence of witnesses, neither party can retract and sue for a rescission of the sale. Without writing, when the seller and buyer have mutually agreed upon the price: the one being pleased with the price and the other with the thing, without mentioning any writing." "We say that a sale thus made would be perfect although no earnest had been given by the buyer to the seller, as they would be both bound for the fulfillment of the contract they had made." ^ Verbal Sale of Real Estate Valid. — Under the Roman, Spanish and Mexican law, verbal sales of real estate were valid. Only three things were necessary to make a valid contract: 1. A thing or subject matter of the contract; 2. A price; 3. The consent of the parties/' There was a Spanish decree, however, of September 30, 1791, to the effect that sales of real estate should be by a public writing; the decree providing that whereas frauds have been committed on the revenue by making secret parol sales of real estate, it is ordered that the alcabala be collected on such sales, because the con- tracts become perfect by the mere consent of the par- ties.'' Form of Contracts. — "The validity of contracts does not depend upon any external formality, unless in those cases in which the law expressly provides otherwise." ** Notice and Priority of Purchasers Under Spanish and Mexican Laws. — Prior to 1871, under the Mexican law, 5 Partida 3, title 5, published and sanctioned in Spain in 1348, and remained in force in Spain and Mexico prior to the code of March 1, 1871. Hall's Mexican Laws, sec. 1494, law 6. As to necessity of assisting witnesses, see Clay v. Holbert, 14 Tex. 193; post, §§ 3, 350- 354. As to sales by married women, see post, § 239. 6 Hall's Mexican Law, § 1555. 7 Hall's Mexican Law, § 1555. 8 Hall's Mexican Law, art. 1439, § 2468; Williams v. Conger, 125 U. S. 789, 8 Sup. Ct, E«p. 933, 31 L. ed. 778. § 3 AUTHENTICATION PRIOR TO 1837. 4 where the same property is sold to different parties at different times, the first person having paid the price, who obtains possession of it, will hold it.^ But if the purchaser knows that the property did not belong to the seller, he may lose not only the property purchased but also his improvements placed thereon.^** And Mr. Sayles, in his valuable work, gives as Spanish legal maxims: "No man can give to another a greater right to a thing than he has himself." And "a thing Avliich belongs to us cannot be transferred to another without our consent or act."^* It is also intimated in Mills V. Waller, Dall. 419, that a public or authentic instrument would be constructive notice. § 3. Method of Authentication and Registration Under the Spanish and Mexican laws in force in Texas prior to December 20, 1836, written conveyances, to be public or authentic, or proof of what they contain, and notice to the world, must be written in a register by a notary or other authorized officer, and signed by the parties, assisting witnesses, and by the officer under his official seal, with certain other requirements as will be seen below. This original deed, etc., so written by the officer m his register, remained in his custody as a public archive and was called the matrix or protocol. A copy of the protocol, called the testimonio or second original, was made by the officer and delivered to the purchaser as evidence of his title. The protocol being a public in- strument, no other acknowledgment or registration was necessary.*^ 9 Hall's Mexican Law, 1527; Sayles' Early Laws, art. 126, § 12. 10 Laws of California, Oregon and Texas, 1, p. 199. 11 Sayles' Early Laws, art. 129, §§ 12, 13. 12 Smith V. Townsend, Dall. 570; Titus v. Kimbro, 8 Tex. 218; Hall's Mexican Law, 1555; Land Laws of California, Oregon and Texas (White's New Recopilacion), vol. 1, pp. 296-299; Sayles' Early Laws, arts. 25, 71, 127, 128; Hanrick v. Cavanaugh, 60 Tex. 19; Han- rick V. Dodd, 62 Tex. 87; McKissick v. Colquhoun, 18 Tex. 151; Mills V. Waller, Dall. 419. And see post, §§ 25, 33. 5 AUTHENTICATION PRIOR TO 1837. § 3 As a general rule, a protocol, to be public or authen- tic, must be written and signed by an authorized officer, in the Spanish language, on stamped paper, with his official seal, signet, rubric or notarial flourish; must state the consideration and subject matter of the con- tract, be signed by the parties and at least two assisting witnesses, properly dated, with the name of the place where executed, and without blanks, alterations, eras- ures, interlineations or corrections in the substantial parts, unless the same are duly noted by the officer. ^^ A testimonio, to be public or authentic, must be a copy of the public or authentic protocol made by the officer keeping same. One of the axioms of the Spanish law is that a public instrument does not produce faith, if devoid of any solemnity. ^^ (o) By Authorized Officers . — The authentication must be by authorized officers who must sign the same.^^ It is not necessary in all cases that commissioner sign the protocol.*^ While the title extended must be duly authenticated by an authorized officer, to be full proof, where a person acts as such, his authority is sometimes presumed.*'' Where a primary judge acted in authenticating a sale in 1835, that raises at least a presumption of his author ity.** There is a Spanish authority to the effect that if the objection is made that the instrument offered was not made by the hand of a notary, ''that throws the burden on the party offering the instrument to prove 13 Hanrick v. Cavanaugh, 60 Tex. 19, and authorities below cited. 14 Laws of California, Oregon and Texas, vol. 1, p. 297. 15 Andrews v. Marshall, 26 Tex. 216; McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100; Laws of California, Oregon and Texas, vol. 1, p. 297; Sayles' Early Laws, art. 25; and post, § 22. As to oflSicers who were authorized, see post, §§ 5, 21. 16 Titus V. Kimbro, 8 Tex. 214; 2 White's Recopilacion, 57. 17 Martin v. Parker, 26 Tex. 258; Sheldon v. Milmo, 90 Tex. 18- 22, 36 S. W. 413; Downing v. Diaz, 80 Tex. 436, 16 S. W. 49; Jones V. Meisback, 26 Tex. 237. 18 McKissick v. Colquhoun, 18 Tex. 151. § 3 AUTHENTICATION PRIOR TO 1837. 6 he was a notary, except in five cases expressed by Pareja, tit. 1, resol. 3, sec. 2, 4 N., 50 al." ^^ But another au- thority says that the protocol or testimonio is full proof unless the instrumental witnesses contradict it.^" Where a notary dies, his minutes and register should be delivered to the notary appointed to succeed him, who may execute public acts from the minutes or reg- ister of his predecessor.^^ [b) Spanish Language to he Used. — Under the in- structions to the commissioner in Texas, of September 4, 1827, all public instruments, titles, or documents whatever, drawn by the commissioner, shall be written in the Spanish language.^^ (c) Stamped Paper. — From the Spanish authorities at hand, while it is not clear, it seems that under the Spanish law^s in force prior to Decree No. 11 of Coahuila and Texas, of October, 2, 1824, the use of stamped paper was essential to the authenticity of an instrument. The Spanish decree of September 30, 1791, provided that sales of real estate should be by a public writing; the decree providing that whereas frauds have been com- mitted on the revenue by making secret parol sales of real estate, it is ordered that the alcabala (taxes) be collected on such sales, because the contracts become perfect by the mere consent of the parties. ^^ In an early case before our supreme court, in discussing the law of September 4, 1827,^^* requiring the commissioner "to form a book in calf, of paper bearing the impres- sion of the third seal, whereon he shall write the titles of the lands which he distributes to the colonists, speci- 19 Laws of California, Oregon and Texas, vol. 1, p. 297. 20 4 Sala, 127, 130, 136; McPhaul v. Lapsley, 20 Wall. 286, 22 L. ed. 344. . 21 Sayles' Early Laws, art. 128. 22 1 L. T. 183. And see Sartor v. Bolinger, 59 Tex. 411. 23 Hall's Mexican Laws, § 1555. See post, §§ 1079-1086. 23a 1 L. T. 56. 7 AUTHENTICATION PEIOR TO 1837. § 3 tying their names, boundaries, and other requisites and legal circumstances; and he shall take from the said book attested copies ( testimonios) of each possession upon paper of the second seal, which he shall deliver to the person interested to serve him for title." Judge Hemphill says : "This instruction does not differ in sub- stance from the regulations by which, for centuries, in Spain notaries had been directed and governed in the execution of public instruments."^* The decrees of October 6, 1823, and October 2, 1824,25 required titles to be on stamped paper. Under these decrees the want of the stamps did not render the title void, but only its authentication void. Unless on stamped paper it would not be authentic, and proof of its issuance by the commissioner would be required be- fore it would be given effect.^^ Even stamps of the wrong date would render the authentication invalid. 2'' Ihese colonization laws required conveyances be- tween private parties as well as those issued by the commissioner, to be on stamped paper.^^ As seen above, the protocol requires one denomination of stamps and the testimonio another. This may some- times aid in distinguishing the instruments offered.^® (d) Seals, Signets^ Rubrics and Notarial Flourishes. There are two kinds of written instruments under the 24 Titus V. Kimbro, 8 Tex. 218. 25 Post, §§ 1079-1081. 26 Jones V. Montes, 15 Tex. 352; Sheldon v. Milmo, 90 Tex. 21, 36 S. W. 413; Titus v. Kimbro, 8 Tex. 218; Chambers v. Fisk, 22 Tex. 536; Clay v. Holhert, 14 Tex. 189; Gonzales v. Eoos, 120 U. S. 605, 7 Sup. Ct. Rep. 705, 30 L. ed. 801; Carothers v. Covington (Tex. Civ. App.), 27 S. W. 1042; Andrews v. Marshall, 26 Tex. 216. 27 Jones V. Montes, 15 Tex, 352. 28 Carothers v. Covington (Tex. Civ. App.), 27 S. W. 1042; An- drews V. Marshall, 26 Tex. 216; Williams v. Conger, 125 U. S. 397, 8 Sup. Ct. Rep. 933, 31 L. ed. 778; Titus v. Kimbro, 8 Tex. 219; and see post, §§ 1079-1036. 29 See Hutchins v. Bacon, 46 Tex. 415, § 3 AUTHENTICATION PRIOR TO 1837. 8 Spauish laws, which produce faith and full proof: one "public," made by the escribano or notary public, with the soloninities prescribed ; another, "authentic," which is that sealed by the kino-, bishops, prelates, and great men of the kingdom.^** And also those sealed by the city council, or abbot or master of an order of knight- hood, or count, of a council or any person having an authentic seal.^* From the Spanish authorities it will be seen that the seals of the king or other great men of the kingdom were essential to make the instrument au- thentic ; and that the notarial signet, rubric or notarial flourish was essential to make an instrument public, but the instrument would not be void without it.^^ And the requirements as to the seal would be the same whether it was the protocol or testimonio introduced.^^ There is an authority to the contrary, however, holding that want of seal does not make them null.^* The court says, in McKissick v. Colquhoun, 18 Tex. 151, that "the signature of a judge, alcalde, etc., acting in place of a notary, assisted by two witnesses, has all the force and effect of the signature and seal or rubric of a notary." But the question really decided w^as that the judge was authorized to act in place of a notary, and not that he could dispense with the use of a seal. Under the Spanish law, paper was stamped by means of a seal.^^ 30 Laws of California, Oregon and Texas (White's New Recopila- cion), vol. 1, p. 296, and vol. 2, p. 57; Sayles' Early Laws, art. 25. 31 Sayles' Early Laws, art. 128. 32 Laws of California, Oregon and Texas, vol. 1, pp. 297-299; Mar- tin V. Parker, 26 Tex. 261; McKissick v. Colquhoun, 18 Tex. 151; 1 Rose's Notes, p. 534. 33 Laws of California, Oregon and Texas, vol. 1, pp. 297-299; Mar- tin V. Parker, 26 Tex. 261; McKissick v. Colquhoun, j 18 Tex. 151; 1 Rose's Notes, p. 534. 34 Laws of California, Oregon and Texas, vol. 1, p. 299, and note 41. 35 See Titus v. Kimbro, 8 Tex. 218. 9 AUTHENTICATION PRIOR TO 1837. § 3 (e) Signatures^ Names, Residences, Date, Venue, Terms, Subject Matter, etc. — "Instruments or deeds in which are wanting the names of the contracting par- ties, the escribano, witnesses, signatures, signets, term of payment, day, month and year, and the matter upon which it hath been covenanted or delivered, are not valid or entitled to faith."^** And the place or town where the instrument is executed should be expressed as well as the names, surnames, dates, and residences of the parties and witnesses. The names of persons and towns should not be written with their initials alone, nor should any alterations or ciphers that in substantial things may produce obscurity, equivocation, or contention ; quantities and dates should be expressed in letters and not in numbers and figures, under pen- alty of nullity of the instrument, etc., and the terms and amount must be stated.^'' Without any of the above formalities the instrument would not be public or au- thentic. if) Assisting Witnesses JVecessary to Authentication When. — Under the Spanish and Mexican laws in force in Texas prior to December 20, 1836, acts of sale, etc., sealed with the king's seal, or that of an archbishop, bishop, city council (ayuntamiento), abbot, master of an order of knighthood, count, council or any person having an authentic seal, will be authentic, or make full proof of what they contain ; and that the act of a notary public ( escribano) in which is written the names of at least two witnesses is a public instrument, and makes full proof of what it contains; and that an act by some other person, signed by two witnesses in their own handwriting, will be valid during the lives of the witnesses.^*^ The residences of the witnesses must also be stated.^^ 36 Laws of California, Oregon and Texas, vol. 1, p. 298. 37 Hanrick v. Cavanaugh, 60 Tex. 19, 21. 38 Sayles' Early Laws, arts. 36, 128. 39 Hanrick v. Cavanaugh, 60 Tex. 19. § 3 AUTHENTICATION PEIOE TO 1837. 10 Decree No. 275, of April 18, 1834, provided that "judges shall perform judicial acts with assisting wit- nesses, even should there be a notary public in the dis- trict of their jurisdiction, provided that said notary be prevented by any occupation he may have in any of the courts of justice, performing the business of his oflSce therein at the time, or for any other reason wherein his default may impede the prompt adminis- tration of justice."'*^ Instructions to the commissioners of September 4, 1827, required all public instruments of possession, and attested copies signed by the commissioner to be at- tested by two assisting witnesses.*^ Under this in- struction titles extended without assisting witnesses were not authentic.*^ It was the protocol that should be signed by the wit- nesses, their names on the testimonio being usually written by the notary who makes the copy.^^ Where witnesses were required as seen by the above law, the w^ant of same does not render the instrument void, but its authentication only is rendered void. Such an instrument would not be full proof of what it con- tains, even where witnessed by one witness, but would have to be proven when offered in evidence.'*^ The above cases cited refer to grants, or titles extended by com- missioners under the colonization laws, but the same rule applies to conveyances between private persons.*' 40 1 L. T. 363; MeKissick v. Colquhoun, 18 Tex. 151. 41 1 L. T. 58. 42 Grimes v. Bastrop, 26 Tex. 312; Clay v. Holbert, 14 Tex. 201. 43 Sayles' Early Laws, arts. 127, 128. 44 Clay V. Holbert, 14 Tex. 200; Allen v. Hoxey, 37 Tex. 334; State V. DeLeon, 64 Tex. 559; Euis v. Chambers, 15 Tex. 587; Wat- rous V. McGre-w, 16 Tex. 512; Grimes v. Bastrop, 26 Tex. 312. 45 Andrews v. Marshall^ 26' Tex. 216; Carotbers v. Covington (Tex. Civ. App.), 27 S. W. 1042; Williams v. Conger, 125 U. S. 397, 8 Sup, Ct. Rep. 933, 31 L. ed. 778. See Martin v. Parker, 26 Tex. 261, and MeKissick v. Colquhoun, 18 Tex. 151. 11 AUTHENTICATION PRIOR TO 1837. § 3 The office of assisting witnesses is to authenticate the signature of the notary or other officer, while that of instrumental witnesses is to witness and prove the sig- natures of the parties. Instrumental witnesses were not essential to the authenticity of the instrument.^** In the case of Cowan v. Williams, 49 Tex. 395, the court does not note the distinction between assisting wit- nesses and instrumental witnesses, which may account for its intimating that instrumental witnesses are es- sential to the authenticity of an instrument. (g) Alterations, Blanks, Interlineations, Forgeries, etc. — In order that an instrument be considered public or authentic, and lawful, the following circumstances are required: That the document be clearly written, without blanks, erasures, obliterations, interlineations or corrections, especially in the substantial parts; for example, in the names and surnames of the parties, of the notary public and witnesses, in the terms and amount, and the thing in relation to which the writing is done, in the compact and conditions, and in the day, month and year of the date, and in the place where the instrument was executed ; and that, in case that any correction, obliteration or addition be made at the time of reading the instrument to the parties, the same be authenticated at the foot of it by the notary, previous to the signing in order to prevent suspicion of fraud. ^'' The above rule refers to the testimonio or instrument delivered to the purchaser. The rule is different where the alterations, etc., are found in the protocol or regis- ter kept by the notary. In this case, the alterations, interlineations, etc., only are void, while the protocol will still be valid.^* 46 Hartin v. Parker, 26 Tex. 261; McKissick v. Colquhoun, 18 Tex. 153; Clay v. Holbert, li Tex. 203. 47 Hanrick v. Cavanaugh, 60 Tex. 19. 48 Hanrick v. Cavanaugh, 60 Tex. 20; Hanrick v. Dodd, 62 Tex. 87. § 3 AUTHENTICATION PRIOR TO 1837. 12 An instrument may be valid under the Spanish law, though not autlientie or full proof, and notice. Where it has been ''scratched, corrected, underscored, written over, or torn, or cut in any of the substantial parts, .... it shall be unworthy of credit unless the party introduciufij it shall prove that it was done by force or accident."^^ But if the true meaning- of the deed can be obtained, although it is obliterated in other parts which are not substantial, it will produce entire proof. It is also seen from the institutes of the Civil Laws of Spain, book 3, title 7, that a copy from a protocol spoiled or faulty, or wanting solemnities, is null. But although an instrument is null in all its parts, its con- tents may be proved by witnesses or other legal evi- dence.^** In the case of Hanrick v. Cavanaugh, supra, as the corrections, etc., in the protocol of the grant w^ere not proved to have been made by "force or accident," tested by the Spanish law, the corrections, interlineations, etc., at least, would be null (or not public or authentic). But, as the contents of a deed, under the Spanish law, could be proven by witnesses or other legal evidence, where this proof was made, the authentication of the instrument would be immaterial, unless the question of notice or registration is involved. In the case of Hanrick v. Cavanaugh, supra, the protocol, tested by the Spanish law, with its erasures, etc., would not be evidence of the conveyance or grant to plaintiff, and the question of notice or registration not being in- volved, the question of the grant was properly submit- ted as a question of fact to the jury. But suppose the question had been, was a certified copy of said protocol, from the land office, which had been recorded in the county in which the land lies, constructive notice? As the protocol in its mutilated condition would not be 49 Hanrick v. Cavanaugh, 60 Tex. 19. 50 Laws of California, Oregon and Texas, vol. 1, p. 293. For rule under common law, see Houston v. Jordan, 82 Tex. 253. 13 AUTHENTICATION PKIOR TO 1837. § 3 authentic, should not the court instruct the jury that the record was not notice, that the protocol, though an archive,^^ was not such an authentic protocol as would entitle a copy thereof to be recorded? ^^ ( //) Presumption — Proof — • Antiqwity. — ^While au- thenticity is not presumed, certain essentials of it sometimes are. For instance, "copies made one hun- dred years before, the quality of the notary not being evident, nor in what year made, produce faith on ac- count of the difficulty of proving said quality." "But whenever the copy of the instrument is observed to be taken by the notary without any solemnity nor signa- ture, in which case the authentication does not produce faith, the presumption that it proceeds from this an- tiquity is destroyed by exhibiting the copy in which the requisites of a public deed do not appear to have oc- curred. "^^ The protocol is admissible as an ancient instrument, without authentication, though not the tes- timonio.^^ Again, it is held by our courts that where a person acts in a certain capacity in authenticating an instru- ment, that it raises a presumption of his authority.^^ It is also held that where an instrument is presented to the county clerk for record, it is his duty to see that it is attested with a proper seal; and where he recorded the instrument, and the record shows scroll for seal, "we must presume that it was attested with the proper seal, and that the officer so executing was authorized 51 Allen V. Hoxey, 37 Tex. 335. 52 Andrews v. Marshall, 2& Tex. 216; MeCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100; Hatehett v. Connor, 30 Tex. 109; 2 Rose's Notes, p. 45. 53 Laws of California, Oregon and Texas, vol. 1, p. 299. 54 Williams v. Conger, 125 U. S. 397, 8 Sup. Ct. Rep. 933, 31 L. ed. 778. 55 McKissick v. Colquhoun, 18 Tex. 151; Martin v. Parker, 26 Tex. 258; Sholdon v. Mil mo, 00 Tex. 18, 36 S. W. 413; Jones v. Muisbach, 26 Tex. 237; Hooper v. Hall, 35 Tex. 87. § 3 AUTHENTICATION PEIOE TO 1837. 14 to do so.'"^® And that his authority was shown by the seal.^' And where the certificate of the officer refers to his seal, as, "witness my official seal," it is pre- sumed that a proper seal was attached.^*^ And Avhere the authentication of an instrument un- der the laws in force prior to December 20, 1836, is not shown by the instrument, it is well settled that the validity of the conveyance may be proven by other evi- dence.^* And it seems also clear that it would be proper to prove by other evidence, the contrary not appearing, that the authentication was valid, and that the instru- ment had been duly deposited and recorded. Under the Spanish law, the official character of the notary, the execution of the instrument, etc., may be shown by parol.^** Both protocols and testimonios might be proven and recorded. *** And it is well settled that ac- knowledgments and certificates thereof, as well as the deeds, may be proven by secondary evidence, the best evidence — i, e., the certificate of the officer — not being obtainable. *^^ Also destroyed records may be proven "" 63 56 Caudle v. Williams (Tex. Civ. App.), 51 S. W. 562. 57 Stephens v. Motl, 81 Tex. 120, 16 S. W. 731. 58 Post, §§ 38, 489, 490. 59 Andrews v. Marshall, 26 Tex. 216; Clay v. Holbert, 14 Tex. 189; Jones v. Montes, 15 Tex. 352; Chambers v. Fisk, 22 Tex. 536; Sheldon v. Milmo, 90 Tex. 21, 36 S. W. 413; Gonzales v. Koos, 120 U. S. 605, 7 Sup. Ct. Eep. 705, 30 L. ed. 801; Carothers v. Covington (Tex. Civ. App.), 27 S. W. 1042; Williams v. Conger, 125 U. S. 422, 8 Sup. Ct. Eep. 933, 31 L. ed. 778; Allen v. Hoxey, 37 Tex. 334. 60 Laws of California, Oregon and Texas, vol. 1, p. 297; Sayles' Early Laws, art. 128. 61 Gainer v. Cotton, 49 Tex. 114; and post, § 33. 62 Simpson v. Edens, 14 Tex. Civ. App. 235, 38 S. W. 476; Grain V. Huntington, 31 Tex. 614; Daniels v. Creekmore, 7 Tex. Civ. App. 573, 27 S. W. 149. 63 St. Louis etc. Ey. v. Harris, 73 Tex. 375, 11 S. W. 405; Shepard V. Cummings, 44 Tex. 502; post, § 190. Also see § 38. 15 AUTHENTICATIOX PKIOE TO 1837. § 4 (i) Method for Austin Colony. — Under the decree of February 18, 1823, of the emperor, Stephen F. Austin was charged with the administration of justice for the Austin colony,*** and the governor of the state of Coa- huila and Texas on May 31, 1827, required him to keep a registration of the documents and titles of the Aus- tin colony, which documents shall be signed by the commissioner, empresario and alcalde of the town, with assisting witnesses. ^^ On September 4, 1827, the legislature required the commissioner to form a manuscript book of the paper of the third stamp in which shall be written the titles of the lands distributed to the colonists, specifying the names, boundaries and other requisites and legal cir- cumstances, and a certified copy of each title shall be taken from said book on paper of the second stamp, which shall be delivered to the interested person on his title. They shall be written in Spanish and attested by two witnesses.®^ (;*) Custom. — Under the Spanish law, a legitimate custom has the force of law, derogates the former law that is contrary to it, and interprets the doubtful law ; from whence it is said that there is a custom beyond the law, contrary to the law, and according to the law.«^ § 4. Necessity, Materiality and Effect. — Authenticity was not essential to the validity of an instrument un- der the Spanish law, its office being to dispense with the necessity of other proof of the contents of the in- strument, and make it a public record.^* 64 1 L. T. 32. 65 1 L. T. 38. See Clay v. Holbert, U Tex. 199. 66 1 L. T. 56, 58. 67 Laws of California, Oregon and Texas, vol. 1, p. 360. 68 Ante. § 3. § 4 AUTHENTICATION PRIOR TO 1837. 16 There was no distinction between conveyances of the husband and wife as to authenticity or necessity of same. The husband could convey his property and their community property without the wife joining therein, and while she might convey hers without his joining, his consent was required, and though it does not appear on the instrument, would be presumed after long delay. ^^ After the act of December 20, 1836, required the de- posit of protocols with county clerks and in the general land office,'^*^ it seems that it was necessary that the pro- tocol be authenticated, to entitle a copy thereof made by the keeper to registration or admission in evidence, under the laws of Texas, without other proof. '^^ But see Lambert v. Weir, 27 Tex. 364, where, in deciding that a testimonio was inadmissible as a recorded in- strument, in speaking of instruments in public archives (protocols), Judge Moore says: "These instruments could not be withdrawn from their place of deposit to be proved and recorded in the proper county. But the fact that they remained among the public archives, which was manifest by the certificate of the officer in charge of them, was sufficient evidence of their authen- ticity to admit to record the copy." It is also seen that a protocol may be a proper archive, though not properly authenticated.'^^ It seems that the authentication of the protocol would be immaterial where it was proven by other means (as in the case of Hanrick v. Cavanaugh, 60 Tex. 21), unless the question of notice or registration was 69 Post, § 239; Scott v. Maynard, Dall. 548; Harvey v. Hill, 7 Tex. 597; Halbert v. Bennett, 26 S. Vf. 912; Sayles' Early Laws, arts. 118, 125, 126. 70 Post, §§ 25-32. 71 Andrews v. Marshall, 26 Tex. 216; McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100; Hatchett v. Connor, 30 Tex. 109; Hooper V. Hall, 35 Tex. 85; 2 Rose's Notes, p. 45, 72 Allen v. Hoxey, 37 Tex. 335. 17 AUTHENTICATION PRIOR TO 1837. § 5 involved. For while the protocol might be an archive without being authentic, it seems that authentication is necessary to entitle a copy of same to registration.'^^ The authentication of the testimonio would likewise be immaterial, as in any event it would have to be proven or acknowledged under our laws before admit- ted to record or in evidence.''^ The original protocol would be admissible as an ancient instrument, though not authenticated.'^^ As seen above, the effect of authentication was : 1. To make the instrument full proof (under the Spanish laws) of its contents ; 2. To make it a public record and possibly constructive notice;''^ and 3. Where the pro- tocol had become a public archive under the laws of Texas,'^'' to entitle a copy thereof to registration, or ad- mission in evidence. '^^ Prior to the act of December 20, 1836, the protocol and testimonio were admissible in evidence without proof of execution, provided they were authenticated.''® § 5. Officers Authorized to Authenticate. — It seems that under the Spanish and Mexican laws the officers au- thorized to execute and authenticate conveyances be- tween private persons were royal clerks (escribano),^^ notaries public ^-"^ (but not ecclesiastical notaries),*^ judges. ^^ Also, the king, prince, archbishop, bishop, 73 Supra. 74 Post, §§ 33, 34. 75 Williams v. Conger, 125 U. S. 397, 8 Sup. Ct. Rep. 933, 31 L. ed. 778. 76 Ante, § 2. 77 Post, §§ 25-32. 78 Ante, § 3, 79 Ante, § 3; and 1 Dumat's Civil Law, p. 164. For effect of ac- knowledgments subsequent to December 20, 1836, see post, §§ 63, 64. 80 Sayles' Early Laws, art. 25. 81 Sayles' Early Laws, arts. 127, 128. 82 Laws of California, Oregon and Texas, vol. 1, p. 207. 83 Sayles' Early Laws, art. 71; 1 L. T. 363. 2 §§ 6-9 AUTHENTICATION PRIOR TO 1837. 18 (hike, coiiiit, marquis, or any other person in authority, "secretary of state," cabildo or ayuntamiento;^ and em- presarios.***"^ In absence of alcalde, first regidor,**® al- caldes,**'' commissioners.*® § 6. Notaries. — Act of February 25, 1824, provided that notaries shall not extend their functions beyond the limit of their municipality.®^ § 7. Judges. — Under the Spanish and Mexican laws in force in Texas prior to December 20, 1836, and after the act of April, 1834, the signature of a judge or al- calde acting in place of a notary, authenticated by two assisting witnesses, had the force and effect of a no- tarial act.?^** The first act in Texas authorizing "judges" to perform notarial acts (with assisting wit- nesses) was that of April, 1834.^* There is some ob- scurity as to what officials would be included under the term "judges," but the following summary is believed to include all acts under the different governments of Texas, since 1822. § 8. Supreme Court of Justice. — Act of January 21, 1824, of Mexican federation confides the administration of justice to a supreme court of justice, and to such tri- bunals as may be established in the separate states.^^ § 9. Judicial Power to Remain in Same Authorities. — Decree No. 1 of Coahuila and Texas, August 15, 1824, 84 Sayles' Early Laws, art. 128; Paschal v. Perez, 7 Tex. 361. 85 Houston V. Perry, 5 Tex. 464, arts. 1-4; 1 L. T. 38. 86 Edwards v. James, 7 Tex. 373. 87 Herndon v. Casiasso, 7 Tex. 324; Secrest v. Jones, 21 Tex. 123; Word V. McKinney, 25 Tex. 259. 88 Titus V. Kimbro, 8 Tex. 211; De Leon v. White, 9 Tex. 600; ante, § 3 (d). 89 1 L. T. 346. See "Notaries," chapter 20. 90 McKissick v. Colquhoun, 18 Tex. 151. 91 1 L. T. 363. 92 1 L. T. 64. 19 AUTHENTICATION PRIOR TO 1837. §§ 10-12 provides that the judicial power shall for the present be vested in the authorities b}^ which it is now exercised in the state.^^ § 10. Supreme, Circuit and District Courts. — Act of Oc- tober 4, 1824, the judicial power of the Union shall consist of the supreme court, which shall be composed of eleven ministers.®* The circuit court, of a judge and two associates, and the district court, of two dis- trict judges.'*^ And that the judicial power in each state shall be exercised by the tribunals established bv their constitutions. § 11. Judges of Responsibility. — Decree No. 18, of July 4, 1825, provided for judges of responsibility.^ 96 § 12. Alcaldes and Primary Judges. — It seems that the former laws of Mexico regulating the establishment of the judiciary of the state remained in force until decree No. 262, of Coahuila and Texas, was enacted March 4, 1834. This made alcaldes the executive officers of the peace and president of the ayuntamiento (city coun- cil). They then performed the functions exercised by both our justices of the peace and mayors.'^'' And in any town which the laws required to have an ayuntami- ento, where the population does not exceed five thou- sand, there shall be one primary judge ; in those of oveir five thousand to ten thousand, two shall be appointed ; in all others, three shall be appointed. The attributes of said judges shall be the same that the law regulating the administration of justice, and others concordant, intrusted to alcaldes, both for verbal demands and busi- 93 1 L. T. 114. 94 1 L. T. 88. 95 1 L. T. 90. 96 1 L. T. 135. 97 1 L. T. 347; Hallam's Middle Ages, p. 11, c. 4, p. 213. §§ 13-16 AUTHENTICATION PEIOE TO 1837. 20 iiess in writing. And alcaldes shall pass to them the records, etc.^^ § 13. Judges to Act with Assisting Witnesses. — On April 18, 1834, decree No. 275 authorized judges to perform judicial acts with assisting witnesses where a notary public is for any cause unable to perform same.®^ § 14. The Supreme Judicial Court of Texas. — Decree No. 277, April 17, 1834, provided that Texas shall be formed into one judicial circuit, which shall be denominated "The Superior Judicial Court of Texas," and shall be composed of one superior judge. ^®** § 15. Primary Judges and Commissarios Assisted by Wit- nesses. — And for the trial of civil cases there shall be in every municipality a tribunal for each primary judge, composed of one judge.^*^^ The official acts of judges and commissarios shall be attested by assisting mtnesses.***^ On October 5, 1835, a deed executed be- fore a second judge of the first instance with two in- strumental and two assisting witnesses was valid. *^^ § 16. First and Second Judges to be Notaries Public. — November 13, 1835, article 5, of the provisional govern- ment provided for a judiciary consisting of two judges, a first and second; the latter to act only in the absence or inability of the first. And article 6 of said act makes them a court of record for conveyances, and the notary public. And all other civil proceedings shall be suspended until the governor and general council shall otherwise direct. ^^■* 98 1 L. T. 347. 99 1 Lr. T. 363. 100 1 L. T. 364. 101 1 L. T. 364. 102 1 L. T. 366. 103 McKissick v. Colquhoim, 18 Tex. 151. 104 1 L. T. 540, 910. 21 AUTHENTICATION PEIOR TO 1837. §§ 17-20 § 17. First Judge to Execute Notarial Acts. — The act passed January 16, and approved January 22, 1836, section 4, provided that the first judge of each and every municipality shall hold probate courts on the first Mon- day in every month at the courthouse or clerk's ofiice; and for executing notarial acts, etc.*^^ § 18. Alcaldes, Commissarios and Primary Judges. — Sec- tion 6 provided "that all alcaldes and commissarios in the several municipalities of Texas shall have jurisdic- tion in civil cases where the matter in controversy does not exceed fifty dollars; nevertheless he shall have the right of appeal, if either party is dissatisfied, to the primary judge's court," etc. And the alcaldes and com- missarios shall have the same jurisdiction in arresting and committing offenders against the law as justices of the peace under the common law of England. 106 § 19. Judges of Courts. — Sections 16 and 18 provided that there shall be a clerk appointed for each municipal- ity by the first and second judge and alcalde. And that judges of the courts shall have two dollars for each time they sign their names as notary public.***" § 20. First Judge and Primary Judge. — "First judge" and "primary judge" and "judge of the first instance" are used synonymously.**** The signature of judge, al- calde, etc., acting in place of notary, authenticated by two assisting witnesses, has the force and effect of the 105 1 L. T. 1040. 106 1 L. T. 1041. 107 1 L. T. 1043, 1045. 108 Butler v. Dunagan, 19 Tex. 560, 565; and see H. I>., art. 280, requiring judges of the first and second instance of all counties to deliver records, etc., and as primary judges (first judges) were the notaries public and custodians of these records at the time of the passage of said act, it seems obvious that the terms are used inter- changeably. Prov. Gov., art. VI; 1 L. T. 540, and see Act Feb. 9, 1860; 4 L. T. 1437. §§ 21,22 AUTHENTICATION PKIOE TO 1837. 22 signatiiro and seal of a notary. **^^ On November 14, 1830, tlie aiithoritv of a prinuiry judne to authenticate instruments cannot be questioned.**^ § 21. Constitution of 1836.— The constitution of Mai'cli 17, 183(>, artick^ 4, provided for the appointment or election of supreme and district and county judges and justices of the peace.*** And the schedule provided that all laws now in force in Texas, and not inconsis- tent with this constitution, shall remain in full force until declared void, repealed, altered or expired by their own limitation. And that all judges, commissioners and other civil officers shall remain in office and in the discharge of their powers and duties of their respective offices until there shall be others appointed or elected under the constitution.**^ COURTS ORGANIZED. The supreme court was established by act of Decem- ber 15, 1836.**^ The justice court was established by act of Decem- ber 20, 1836.*** The inferior or county courts were established by act of December 20, 1836.**^ The district court was established by act of December 22, 1836.**^ § 22. Authority of Officers Immaterial, When. — It seems that it is now immaterial, in so far as the testimonio was concerned, whether or not a judge or other officer 109 McKissick v. Colquhoun, 18 Tex. 151. 110 Beatty v. Whitaker, 23 Tex. 528, 111 1 L. T. 1073, 1074. 112 1 L. T. 1077, 1078. 113 1 L. T. 1139. 114 1 L. T. 1201. 115 1 L. T. 1208. lie 1 L. T. 1258. ■ ,. , , ..,4 •. 23 AUTHENTICATIOISr PRIOR TO 1837. § 22 authenticating a deed or executing its testimonio prior to December 20, 1836, was authorized to do so by the Spanish and Mexican laws; for the reason that after the act of December 20, 1836, the testimonio was re- quired to be proven, before recorded or admitted in evi- dence, the same as though there had been no authenti- cation.**'' But the authority of the officer might be material in case of protocols, where they were depos- ited with the county clerk as archives. In that case, to be effective without other proof, they should be au- thenticated by authorized officers, otherwise proof of execution would be required.*** 117 Post, §§ 33, 75-77. 118 Ante, § 3; post, § 25; Herndon v. Casiano, 7 Tex. 333; York v. Gregg, 9 Tex. 85; Andrews v. Marshall, 26 Tex. 216, §23 EFFECT OF EEGTSTRATION ACT OF 1836. 24 CHAPTER II. THE EFFECT OF THE REGISTRATION ACT OF DECEMBER 20, 1836, AND SUBSEQUENT ACTS ON TITLES AND DEEDS EXECUTED PRIOR THERETO. S -o. Effect of said act and necessity of registration. 24. Judges to deposit records with county clerk. § 25. Protocols and copies thereof. § 25a. Does this act apply to protocols of other officers also? § 26. Admissible in evidence. § 2.1. Proceedings of ayuntamiento should not be delivered to county clerk, nor protocols to the land commis- sioner. § 28. -Protocol might be proved and recorded, § 29. Necessity of recording protocols. § 30. Certified copies by county clerks admissible. § 31. Certified copies by general land office admissible. § 32. Titles must be recorded. § 33. Testimonies. § 34. Idem. § 35. Public and authentic instruments. § 36. Private instruments. § 37. Copies of instruments in archives to be recorded. § 38. Certificate of legal custodian sufficient proof. § 39. Copies admissible in evidence when. § 40. Idem. § 41. Archives. § 42. County clerks to be recorders — Acknowledgments and proof. § 43. Two subscribing witnesses required, when. § 44. Above provisions obscure. § 45. Acknowledgment by officer sufficient. § 46. Testimonio recorded on proof of handwriting. § 47. Where record is made, it is presumed proof was made. § 48. Proof must be indorsed on instrument, when. § 49. Chief justices ex-officio notaries public. § 50. No seal necessary where acknowledgment taken by county clerk, when. § 23. Effect of Said Act and Necessity of Eegistration. — Prior to the act of December 20, 1836, there were usu ally two evidences of conveyances, to wit: Protocols, o»' 25 EFFECT OF EEGISTRATION ACT OF 1836. §§ 24, 25 the public records of the conveyance, and copies thereof given the purchaser, called the testimonio. The said registration act of 1836 made different requirements for their disposition; section 33 of said act^ applying to protocols, and section 37 of said act" applying to all titles. But to be constructive notice, all titles or copies thereof must be recorded in the office of the county clerk of the county wherein the land or a part thereof is lo- cated, whether the instrument be an archive in his office or not. If they are not registered they will meet with the consequences prescribed by law, and have no effect as to the rights and interests of third parties.^ § 24. Judges to Deposit Records with County Clerk. — Sec- tion 33 of act of December 20, 1836,^ made it the duty of judges of the first instance of each and every county to deposit in the office of the clerk of the county court of his county every record, paper, document or thing filed in the office not required to be delivered to the district clerk or justice of the peace. § 25. Protocols and Copies Thereof. — The above section included and applied to protocols in the archives of judges and notaries, and made them public archives of the county clerk ; certified copies of duly authenticated protocols^ made by him were admissible in evidence, and admissible to record in the county where the land lies.^ Titles in office of land commissioner were also 1 Post, § 24. 2 Post, § 32. 3 Hawley v. Bullock, 29 Tex. 222; Uhl v. Masqiiez, 1 U. C. 658; Beaumont Pasture Co. v. Preston & Smith, 65 Tex. 456; Henderson V. Pilgrim, 22 Tex. 476; also Harvey v. Hill, 7 Tex. 597. 4 1 L. T. 1215. 5 See ante, § 4. 6 Hutchins v. Bacon, 46 Tex. 415; McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100; Gainer v. Cotton, 49 Tex. 114; Beau- mont Pasture Co. v. Preston, 65 Tex. 453, 456; Wood v. Welder, 42 Tex. 408; Broxson v. McDougal, 63 Tex. 197. §"§ 25a-27 EFFECT OF REGISTRATION ACT OF 1836. 26 called protocols.' A transfer of land by act of sale of tliis character before a notary beyond the limits of Texas has long- been recognized by her courts as valid and bind- ing, and a duly certitied copy of the notary's record as admissible to prove such sale, even where the deed was executed after the passage of the act of December 20, 1836.** § 25a. Does This Act Apply to Protocols of Other Officers Also? — It is held that protocols executed by other offi- cers tlian judges of the first instance might be deposited with the county clerk and become archives , though the act does not so provide.^ § 26. Admissible in Evidence. — Protocols were admis- sible in evidence also prior to the registration laws of 1836, without proof of execution.^^ It is not fatal to a protocol that the officer failed to sign it if it be shown that it was his custom to write them in a book and sign at the end of the book, and that he so signed the book.^* Where certificate of county clerk shows that deed was an archive in his office it is not necessary to prove that it had been an archive in the office of an alcalde or judge prior to February, 1837.*^ § 27. Proceedings of Ayuntamiento Should not be Deliv- ered to County Clerk, nor Protocols to the Land Commissioner. But the documents containing the proceedings of ayun- 7 See post, § 31. 8 Williams v. Conger, 49 Tex. 600, 125 U. S. 397, 8 Sup. Ct. Rep. 933, 31 L. ed. 778; Watrous v. McGrew, 16 Tex. 512. But see Frost V. Wolf, 77 Tex. 459, 19 Am. St. Rep. 76, 14 S. W. 440, and post, §§ 33, 200; ante, § 4. 9 See Cowan v. Williams, 49 Tex. 395, 396; Hutchins v. Bacon, 46 Tex. 415. As to materiality of officers ' authority, see ante, § 22. As to authentication, see ante, § 4. 10 McKissick v. Colquhoun, 18 Tex. 152; ante, § 4. 11 Titus V. Kimbro, 8 Tex. 210; Andrews v. Marshall, 26 Tex. 216. 12 Hooper v. Hall, 35 Tex. 86. 27 EFFECT OF EEGISTRATION ACT OF 1836. §§ 28-30 tamiento (city council) should have been delivered to the commissioner of the general land office. A county clerk could have no legal custody of them, and certified copies of them made by him would not be held admissi- ble, although the original be deposited in his office/^ Neither is the commissioner of the general land office authorized to give copies of protocols and testimonios of sales between private parties, as he is not the legal custodian of them.-^'* § 28. Protocol Might be Proven and Recorded. — The pro- tocol or first original became an archive in charge of the judge before whom the sale was consummated, and by the act of December 20, 1836, was required to be depos- ited with the county clerk, where it should remain, but if it passed into the hands of the grantee, he might no doubt have proven it up for record, and had it recorded, and it would have been admissible in evidence.*^ § 29. Necessity of Recording Protocols. — The presence of the protocol as an archive, deposited with the county clerk, in compliance with section 33 of the said act of December 20, 1836, even though it be in the county where the land lies, is not effective as registry. The registration laws take no notice of the archive as a part of the records provided for by them. It is not construc- tive notice.*^ § 30. Certified Copies by County Clerks Admissible. — The act of 1846^'' also made certified copies of protocols in 13 York V. Gregg, 9 Tex. 92. 14 Hatchett v. Conner, 30 Tex. 110. See post, § 31. 15 Gainer v. Cotton, 49 Tex. 114; McKissick v. Colquhoun, 18 Tex. 148. 16 Uhl V. Musquez, 1 U. C. 658; Watson v. Chalk, 11 Tex. 93; Haw- ley V. Bullock, 29 Tex. 222; Lyttleton v. Giddings, 47 Tex. 114. 17 H, D., art. 746. §§ 31-33 EFFECT OF REGISTRATION ACT OF 1836. 28 the custody of the county clerks admissible in evi- dence.*^ § 31. Certified Copies by General Land Office Admissible — . It seems that titles issued by the commissioner under the colonization laws were also called protocols, and the second originals were called testimonies, and copies made by the general land commissioner, after tiie pro- tocols had become archives in his office, would be evi- dence under article 744, Hartley's Digest.*^ § 32. Titles Must be Recorded. — Section 37^** of said act required owners or claimants of land by deeds, liens or any other color of title to have the same proven in open court, and recorded in the office of the clerk of the county court in which said land is situate within twelve months from the first day of April, 1837 ; but if a tract of land lies on the county line, the title may be recorded in the county in which part of said land lies. Time Extended. — The act of May 10, 1838, provided that so much of the above section as requires recording before April 1, 1838, is repealed,^* § 33. Testimonios — It was the testimonio or second original, and not the protocol or first original, which section 37 of the act of 1836 contemplated should be proved and recorded in the county wherein the land lies.^^ This act authorized the registration of testi- monios, but it was held that some proof, to admit them 18 Hubert v. Bartlett, 9 Tex. 103; Broxon v. McDougal, 63 Tex. 197; Hooper v. Hall, 35 Tex. 86. 19 Wheeler v. Moody, 9 Tex. 375; Nicholson v. Horton, 23 Tex. 51; Houston V. Blythe, 60 Tex. 513; Clayton v. Rehm, 67 Tex. 53, 2 S. W. 45. But see ante, § 4, and post, § 41. See "Certificate as Evi- dence," post, § 194. 20 1 L. T. 1215; H. D. 2754. 21 1 L. T. 1478. 22 Gainer v. Cotton, 49 Tex. 114. 29 EFFECT OF REGISTKATION ACT OF 1836. § M to record, was indispensable.'^ It is well established that a testimonio was not admissible in evidence with- out proof of execution,^^ and that want of proof will not be cured by lapse of time."^ This rule was estab- lished by the adoption of the common-law rules of evi- dence in 1836.^® But it is held that simply the acknowl- edgment of his signature to the certificate on the testi- monio, by the officer who executed the same, before the county clerk, is sufficient to admit the testimonio to record, has been too long and well established by this court for question.-'' But it was also held that a testi- monio made in the state of Louisiana, duly proven, was not admissible to record nor in evidence owing to its being a copy.-® Its execution was after the act of De- cember 20, 1836, and consequently section 37 of said act might not have contemplated it. The reverse of this rule seems to have been held in the earlier cases. ^^ The testimonio should not be confused with copies of the protocol made by the keeper, after it had become an archive under the laws of Texas.^** § 34. Idem. — Where a testimonio is executed by an officer prior to the act of December 20, 1836, said officer may appear before a chief justice of the county court, as required by said act, and acknowledge the same, and 2.3 Beaumont Pasture Co. v. Preston & Smith, 65 Tex. 454; Wood v. Welder, 42 Tex. 408; Word v. McKinney, 25 Tex. 269; Hatchett v. Conner, 30 Tex. 110. But see Smitli v. Townsend, Dall. 570. 24 Wood V. Welder, 42 Tex. 408. 25 Hatchett v. Conner, 30 Tex. 108; Hutchins v. Bacon, 46 Tex. 415. 26 Paschal v. Perez, 7 Tex. 361. 27 Gainer v. Cotton, 49 Tex. 114; Edwards v. James, 7 Tex. 372; Beaty v. Whitaker, 23 Tex. 526; McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100. 28 Frost V. Wolf, 77 Tex. 459, 19 Am. St. Eep. 761, 14 S. W. 440. 29 See, also, ante, § 25, and post, § 34. As to materiality of au- thentication, see ante, § 4. 30 See ante, §§ 25-31. § 35 EFFECT OF REGISTRATION ACT OF 1836. 30 entitle it to registration.^^ A testimonio is an original, and if proven up under the common law, is admissible in evidence and of record.^'* Under the Spanish law, a testimonio executed without a protocol was a nullity.^* But no testimonio dated in 1835 or 1836 has, since the validating act of February 9, 1860, been held not prop- erly recorded, if registered in the proper county and authenticated by the proper judge.** The commis- sioner of the general land office is not authorized to give copies of testimonios and protocols, as he is not the le- gal custodian of them.^^ But the testimonio may be made from protocol by subsequent officer having legal custody of protocol.^*^ Where an instrument is found in the possession of a party, the presumption is that it is not the original or protocol.^'' § 35. Public and Authentic Instruments. — Prior to the registration law of 1836 there was a distinction made between authentic instruments and public instru- ments.^^ A public instrument was one written by a notary or escribano, with assisting witnesses and other formalities, while an authentic instrument was one sealed by the king, bishops, prelates, and great men of the kingdom.^^ While the effect is the same, the formal- ities as to their authentication is slightly different.^'* 31 Beaty v. Whitaker, 23 Tex. 527. 32 Herndon v. Casiano, 7 Tex. 332; Wheeler v. Moody, 9 Tex. 372; Titus V. Kimbro, 8 Tex. 213. 33 Titus V. Kimbro, 8 Tex. 219. 34 Beaumont Pasture Co. v. Preston & Smith, 65 Tex. 456. 35 Hatchett v. Conner, 30 Tex. 110. 36 Smith V. Townsend, Dall. 572. See McPhaul v. Lapsley, 20 "Wall. 285, 22 L. ed. 344; and see "Certificates as Evidence," post, § 194, and ' ' Curing Defective Acknowledgments, ' ' chapter 28. 37 Laws of California, Oregon and Texas, vol. 1, p. 298. 38 Paschal v. Perez, 7 Tex. 361. 39 Laws of California, Oregon and Texas, vol. 1, p. 296. 40 See ante, § 3 (d); Paschal v. Perez, 7 Tex. 361; Andrews v. Marshall, 26 Tex. 216. 31 EFFECT OF EEGISTEATION ACT OF 1836. §§ 36-39 § 36. Private Instruments. — Private instruments be- tween the parties themselves, without the intervention of a notary public, seem to have been principally in the contemplation of the legislature. Provision was made for their record. They were binding between the par- ties, and, on registry or notice, they were conclusive as against third parties.*^ § 37. Copies of Instruments in Archives to be Recorded. — Act of January 19, 1839,^^ provided that copies of all deeds, etc., when the originals remain in the public archives, and were executed in conformity with the laws existing at their dates, duly certified by the proper offi- cers, shall be admitted to record in the county where such land lies."*^ § 38. Certificate of Legal Custodian Sufficient Proof. — The certificate of the officer that they remained in the public archives was sufficient proof of their authenticity to ad- mit to record the copy.** § 39. Copies Admissible in Evidence, When. — Act of May 13, 1846,*^ provided that copies of all conveyances and other instruments of writing between private individ- uals, which were filed in the office of any alcalde or judge in Texas previous to the first Monday in Febru- ary, 1837, shall be admitted as evidence in like manner as the originals might be, and shall have the same force and effect as such originals ; provided such copies shall be certified to under the hand and seal of the officer with whom such conveyance and instrument of writing are now deposited. Under this act it was not necessary 41 Harvey v. Hill, 7 Tex. .597. 42 P. D. 4984; H. D. 2761. 43 And see ante, § 29. 44 Lambert v. Weir, 27 Tex. 364. See ante, §§ 3 (h), 5. As to necessity of recording, see ante, § 29. 45 2 L. T. 1694. §§ 40,41 EFFECT OF REGISTRATION ACT OF 1836. 3Si to prove the original was filed in the clerk's office prior to February, 1837.*« § 40. Idem. — A deed executed before a notary in Matamoras in 1828, and filed in the archives of Austin's colony in 1829, does not come within the provisions of this act.^'' A certified copy of a sale before the alcalde of Austin, certified by the county clerk of Austin county, was admissible under this section."*^ It seems to repu- diate testimonios delivered to the parties."*^ The au- thentic act must have been executed with due form to constitute it authentic.^** § 41. Archives. — Protocols in the custody of the judges were, by the act of December 20, 1836, required to be deposited with the county clerks, and became pub- lic archives under the laws of Texas.^^ By the same act, protocols of title issued by the land commissioner, under the colonization laws, became archives in the gen- eral land office. ^^ A grant or deed may be an archive, though not prop- erly authenticated.^^ But it seems that in that case it would not be admissible in evidence or to record with- out other proof. ^"^ Certificates as to archives or copies thereof by translators in the land office, are sufficient where the commissioner certifies as to the status of the translator.^^ 46 Hooper v. Hall, 35 Tex. 87. 47 Lee V. Wharton, 11 Tex. 74. 4 8 Hubert v. Bartlett, 9 Tex. 102; 1 Rose's Notes, p. 330. 49 Titus V. Kimbro, 8 Tex. 221. 50 Andrews v. Marshall, 26 Tex. 216; McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100. 51 Ante, §§ 24-30. 52 Ante, § 31. 53 Allen V. Hoxey, 37 Tex. 335. 54 Ante, § 4. 55 Hubert v. Bartlett, 9 Tex. 97; Hatch v. Dunn, 11 Tex. 715. Also see ante, §§ 25-31, and Rev. Stats. 1895, tit. 7. 33 EFFECT OF EEGISTRATION ACT OF 1836. §§ 42-44 § 42. County Clerks to be Recorders — Acknowledgments and Proof.— Section 35 of act of December 20, 1836,^*^* provides that county clerks shall be the recorders for their respective counties, and it shall be their duty to record all deeds, conveyances, mortgages, and other liens, and all other instruments of writing required by law to be recorded in their respective offices which are presented to them, provided one of the witnesses of the number required by law shall swear to the signature of the signer, or he himself shall acknowledge the same, which shall be certified by the recorder, and form part of the record; and all deeds, conveyances, mortgages and other liens shall be recorded in the county where the property is situated. § 43. Two Subscribing "Witnesses Required, When. — And section 38 of said act provides that all titles, liens, or other color of title, before they can be admitted upon record, must be proven by at least two subscribing wit- nesses, if living in the county, and if not so living in the county, then the handwriting shall be proven either be- fore some county judge or before the clerk of the county court in whose office such record is proposed to be made ; and in all cases the certificate of any judge, that the witness appeared before him and acknowledged his sig- nature, or that the handwriting of the same was duly proven, shall be sufiicient evidence to authorize the clerk of the county court to enter the title, lien, mortgage, or other color of title upon record; and said clerk for re- cording the same shall be entitled to charge and receive the sum of twenty-five cents for every hundred words. § 44. Above Provisions Obscure. — "The above provisions of the law of 1836 are not a little obscure. Section 35 authorizes record providing one of the witnesses of the number required by law shall swear to the signature of 56 1 L. T. 1215. §§45,46 EFFECT OF REGISTRATION ACT OF 1836. 34 the signer or he shall acknowledge the same. By sec- tion 38 it is declared that titles, etc., cannot be admitted to record unless proven by at least two subscribing wit- nesses if living in the county; if not so living in the county, that the handwriting shall be proven, and in all cases the certificate of any county judge that the witness appeared before him and acknowledged his signature, or that the handwriting of the same was duly proven, shall be sufficient evidence to authorize the clerk of the county court to enter such title, etc., upon record. The first section requires one witness to swear to the signature of the signer. The second requires proof by two sub- scribing witnesses, if living in the county ; if not so liv- ing, then the handwriting must be proven ; but the hand- writing of whom, whether of the witness or the signer, is not stated; and the phraseology is then immediately changed from the plural to the singular number, and the acknowledgment of the said witness or the proof of his handwriting is held to be sufficient. The first re- quires proof of the signature of the signer; the second, at least in its last provision, is satisfied with proof of the signature of the witness."^'^ § 45. Acknowledgment by Officer Sufficient. — Under said section 3.5, authorizing registration on the acknowledg- ment of the signer, it was held that where this officer who executed the protocol and issued to the grantee the testimonio or second original appeared before the county clerk and acknowledged his signature to the certificate authenticating the testimonio, it was sufficient to entitle it to registration.^® § 46. Testimonio Recorded on Proof of Handwriting. — The testimonio is within the provision of the act of 1836, and might be legally admitted to record upon 57 Paschal v. Perez, 7 Tex. 357. 58 Edwards v. James, 7 Tex. 377; Gainer v. Cotton, 49 Tex. 104; McKissick v. Colquhoun, 18 Tex. 151; Beaty v. Whitaker, 23 Tex. 528. 35 EFFECT OF EEGISTEATION ACT OF 1836. §§ 47-50 proof of the handwriting of the signer. ^^ It might also be proved for record by proof of the handwriting of the assisting witnesses and commissioner. , 60 § 47. Where Record is Made It is Presumed Proof was Made Under this act instruments were admissible to record upon proof of the handwriting of the signer ; and it seems that where the record was made tlie presump- tion is that proof was adduced.®^ It is not in all cases requisite that proof of the instrument for record should be made by a subscribing witness.^^ § 48. Proof Must be Indorsed on Instrument, When. — But under the act of January 19, 1839, which required a certificate of acknowledgment or proof to be indorsed on the instrument and become a part of the record, a deed executed in 1834 and recorded in 1841 without such certificate of acknowledgment of proof was not en- titled to record.^ § 49. Chief Justices Ex-oflicio Notaries Public. — Under this act chief justices of the county court were ex-ofdcio notaries public, and the seal of the county court was the notarial seal.^ § 50. No Seal Necessary Where Acknowledgment Taken by County Clerk, When — Prior to the act of May 12, 1846, where an acknowledgment or proof was made before the county clerk, in whose ofiice the instrument was to be recorded, or before the court, no seal was necessary to its authentication, but thereafter it was.**® 59 Word V. McKinney, 25 Tex. 269. 60 De Leon v. White, 9 Tex. 600. 61 Paschal v. Perez, 7 Tex. 357; McDonald v. Morgan, 27 Tex. 505. 62 Paschal v. Perez, 7 Tex. 357; McDonald v. Morgan, 27 Tex. 505. But see post, § 48. 63 Holliday v. Cromwell, 26 Tex. 194; and see post, § 414. 64 H. D. 241, 2588. For use of certified copies in evidence, see H. D., arts. 744, 746. 65 Waters v. Spofford, 58 Tex. 121. § 51 ACKNOWLEDGMENT AND PEOOF. 36 CHAPTER III. ACKNOWLEDGMENT AND PROOF. § 51. Nature. § 53. Object. § 54. Origin and necessity. § 55. Not necessary between the parties, when. § 56. Nor in case of assignment. § 57. Not necessary in case of a railroad company, when. § 58. Chattel mortgage need not be acknowledged when. § 59. Acknowledgment essential to married woman 's deed. § 60. Wife abandoned by husband or he is insane. § 61. Married woman's oral agreement. § 62. Necessity in case of ancient instruments. § 63. Effect.' § 64. Execution not proven by. § 65. Wife's defective acknowledgment harmless on husband's deed. § 66. Notice. § 67. Acknowledgment, how shown or proved. § 51. Nature. — Acknowledgment is the act of a per- son who has executed an instrument in writing, appear- ing before a competent officer, and acl^nowledging the same, with a view of entitling it to registration, or hav- ing it authenticated. The authorities of other states are about equally di- vided as to whether acknowledgments are ministerial or judicial acts.^ It seems that in Texas, as it does not make the instrument admissible in evidence without proof of execution (or filing in the court, etc.), and is no part of the conveyance, except in case of married women, it is only a ministerial act. But in the case of the acknowledgments of married women, whose deeds 1 For effect prior to 1836, see ante, § 4. 2 1 Am. & Eng. Ency. of Law, 2d ed., 487. 37 ACKNOWLEDGMENT AND PROOF. §§ 53-56 are void without proper acknowledgments, they are held to be quasi judicial acts.^ § 53. Object. — The object of the acknowledgment in Texas is to authenticate the instrument, and entitle it to registration. It is not taken as proof of execution in the courts."* § 54. Origin and Necessity. — The origin is statutory. They were designed to prevent fraud and litigation by providing proper proof of execution before the instru- ment was entitled to registration. Acknowledgment or proof is necessary to make the record constructive no- tice. Without such proper acknowledgment or proof the registration of instruments would not be construc- tive notice to subsequent purchasers and creditors.^ § 55. Not Necessary Between the Parties, When. — Ac- knowledgments, except in case of married women, are no part of the deed, and are not necessary between the parties and others affected with notice.® § 56. Nor in Case of Assignment. — Article 65f of Sayles' Civil Statutes of 1887,'' requiring assignments for ben- efit of creditors to be acknowledged, is not mandatory, but directory only.® 3 Johnson v. Taylor, 60 Tex. 364; Bexar Bldg. etc. Assn. v. Heady, 21 Tex. Civ. App. 154, 50 S. W. 1080, 57 S. W. 583. 4 Wiggins V. Fleishal, 50 Tex. 57; McFaddin v. Preston, 54 Tex. 407; Coffey v. Hendricks, 66 Tex. 677, 2 S. W. 47. 5 Taylor v. Harrison, 47 Tex. 457, 26 Am.' Rep. 304; Hill v. Tay- lor, 77 Tex. 295, 14 S. W. 366; Kalamazoo Nat. Bank v. Johnson, 5 Tex. Civ. App. 535, 24 S. W. 350; Hayden v. Moffett, 74 Tex. 647, 15 Am. St. Rep. 866, 12 S. W. 820. 6 Clapp V. Engledow, 82 Tex. 296, 18 S. W. 146; McLain v. Cana- les (Tex. Civ. App.), 25 S. W. 29; Frank v. Frank (Tex. Civ. App.), 25 S. W. 819. See post, § 59. 7 Rev. Stats. 1895, art. 76. 8 Tittle V. Vanlecr (Tex. Civ. App.), 27 S. W. 736. §§ 57-60 ACKNOWLEDGMENT AND PEOOF. 38 § 57. Not Necessary in Case of Railway Company, When. It was not uecessary in case of a railway corporation, incorporated under laws of Texas, attested by its cor- porate seal, to entitle it to registration, from April 16, 1861, to December 2, 1871.^ § 58. Chattel Mortgage Need not be Acknowledged, When. Where the original chattel mortgage is filed with the county clerk it is not necessary that it should be ac- knowledged ; but a copy can be filed only when the orig- inal has been acknowledged. ■'^** § 59. Acknowledgment Essential to Married Woman's Deed. The deed of a married woman to her separate property or her homestead, made after the passage of the act of Feb- ruary 3, 1841, without a proper acknowledgment, is a nullity.*^ But if it is properly acknowledged, though defectively certified, it is not void for all purposes.^^ § 60. Wife Abandoned by Husband, or He is Insane. — Where the wife is abandoned by her husband she may convey her property as a single person.*^ Also, when he is insane.** § 61. Married Woman's Oral Agreement. — The oral lo- cative contract of a married woman is valid without ac- knowledgment*® It is also held that married woman's 9 See post, §§ 558, 559. 10 Boykin v. Eosenfield & Co., 69 Tex. 119, 9 S. W. 318; Grounds V. Ingram, 75 Tex. 514, 12 S. W. 1118; Hicks v. Ross, 71 Tex. 360, 9 S. W. 315. 11 Berry v. Donley, 26 Tex. 737; Jonson v. Taylor, 60 Tex. 365; Harris v. Wells, 85 Tex. 312, 20 S. W. 68. 12 Berry v. Donley, 26 Tex. 737; Jonson v. Taylor, 60 Tex. 365; Harris v. Wells, 85 Tex. 312, 20 S. W. 68; Cross v. Everts, 28 Tex. 532; Looney v. Admanson, 48 Tex. 621; Johnson v. Bryan, 62 Tex. 623; Cole v. Bammel, 62 Tex. 109. See chapter 10. 13 Wright V. Hays, 10 Tex. 136, 60 Am. Dec. 200; Cheek v. Bel- lows, 17 Tex. 617, 67 Am. Dec. 686; Fnllerton v. Doyle, 18 Tex. 13. 14 See post, § 273. 15 Bennett v. Virginia Ranch etc. Co., 1 Tex. Civ. App. 321, 21 S. W. 128; Arnold v. Attoway (Tex. Civ. App.), 35 S. W. 482; Ikard 39 ACKNOWLEDGMENT AND PROOF. §§ 61-63 agreement to partition is not void because there is no privy acknowledgment.^^ § 62. Necessity in Case of Ancient Instruments. — It is held that the fact that a deed is not properly acknowl- edged, when offered in evidence as an ancient instru- ment, is immaterial ; but it will be noticed that in both cases cited, the grantors were not married women ; had they been, the rule would have probably been the re- verse. ■^'^ § 63. Effect. — The effect of acknowledgment gener- ally is to entitle the instrument to' registration. -"^^ In the case of a married woman, its effect is to vitalize her deed, as well as to entitle it to registration.^^ And it is held that under the law in force in 1871, the effect of the acknowledgment was to ratify and validate the deed, even though it was not written or signed by the grantor.^* The subsequent acknowledgment by the wife does not necessarily ratify fraudulent representa- tions made by the husband, in making the sale.^* An acknowledgment by an infant does not bind her, al- though she represented to the officer that she was twenty-one years of age, unless it be shown that the grantee was misled thereby.^^ A conveyance of the homestead without the acknowledgment of the wife is not color of title within the meaning of the three years V. Thompson, 81 Tex. 291, 16 S. W. 1019; Aycock v. Kimbrongh, 71 Tex. 330, 10 Am. St. Rep. 743, 12 S. W. 71; Lecomte v. Toudouze, 82 Tex. 213, 27 Am. St. Rep. 870, 17 S. W. 1047. 16 Betts V. Simmons (Tex. Civ. App.), 35 S. W. 50. 17 See Frost v. Wolf, 77 Tex. 461, 19 Am. St. Rep. 761, 14 S. W. 440; Smith v. Cavitt, 20 Tex. Civ. App. 558, 50 S. W, 168. 18 Ante, § 55. 19 Post, § 247. 20 Newton v. Emerson, 66 Tex. 145, 18 S. W. 348. And see Stooksberry v. Swann, 12 Tex. Civ. App. 66, 34 S. W. 369. 21 Etheridge v. Price, 73 Tex. 602, 11 S. W. 1039. 22 Vogelsang v. Null, 67 Tex. 467, 3 S. W. 451. §§64-67 ACKNOWLEDGMENT AND PROOF. 40 statute of limitations.^^ An acknowledgment void as to the wife may be valid as to the husband.''* A eon- tract made between the husband and wife and another person is not binding on any party until acknowledged by the wife."'"^ A deed executed by the husband and wife conveying her separate estate, but not acknowl- edged by her, is a nullity, and its record is not construc- tive notice of its contents.^^ § 64. Execution not Proven by. — It does not prove the execution of the instrument.^'' § 65. Wife's Defective Acknowledgment Harmless on Hus- band's Deed. — The wife's defective acknowledgment on deed of her husband, where her acknowledgment is not required, is harmless.^* § 66. Notice. — Certificate of acknowledgment is no- tice of facts certified therein to all persons claiming under it.^^ Record of deed in which clerk fails to re- cord certificate of acknowledgment is not constructive notice,^** The registration of a deed acknowledged by one of several signers is not constructive notice of the conveyance by the others.^* § 67. Acknowledgment, How Shown or Proved. — The best evidence, and prior to September 1, 1879, the only 23 Hussey v. Moser, 70 Tex. 45, 7 S. W. 606. 24 Murphy v. Eeynaud, 2 Tex. Civ. App. 470, 21 S. W. 991; Jacka V. Dillon, 6 Tex. Civ. App. 192, 25 S. W. 645. 25 Gilbough V. Stahl Building Co., 16 Tex. Civ. App. 448, 41 S. W. 535. 2C Fordtran v. Perry (Tex. Civ. App.), 60 S. W. 1000. As to ef- fect of authentication prior to December 20, 1836, see ante, § 4. As to effect of certificates, see §§ 211-214, 275-278. 27 Dennis v. Sanger, 15 Tex. Civ. App. 411, 39 S. W. 998. Ante, §§ 53, 54. 28 Bassett v. Martin, 83 Tex. 341, 18 S. W. 587. 20 Green v. Hugo, 81 Tex. 457, 26 Am. St. Eep. 824, 17 S. W. 79. 30 Dean v. Gibson (Tex. Civ. App.), 48 S. W. 57. 31 See Rork v. Shields, 16 Tex. Civ. App. 640, 42 S. "W. 1062. 41 ACKNOWLEDGMENT AND PROOF. § 67 evidence, of acknowledgment and proof was the certifl- eate of same by the officer.^^ If lost or destroyed, the acknowledgment and certificate of same may be proved by secondary evidence.^^ 32 Post, §§ 211, 248-254, 275. 33 Post, § 190. HOW MADE AND TAKEN. 42 CHAPTER IV. HOW MADE AND TAKEN, Under what law. Prior to December 20, 1836. Act of December 20, 1836. Chief justices ex-officio notaries. Acknowledgment or proof by one witness. Time in which record was to be made. Acknowledgment or proof by two witnesses. No form prescribed. What acknowledgment and proof sufficient under above law. ■ Acknowledgment and proof. What sufficient. No seal was necessary when. Not necessary for certificate to show grantor known to officer. Substantial compliance necessary. Act of January 19, 1839, required certificate. Act of February 5, 1840'. Two justices of the peace. § 86. Eepealed when. §§ 87-88. Act of February 5, 1841. § 87. Validates want of authority of certain officers. § 88. Acknowledgment and proof certified. Act of May 8, 1846 — Commissioners of deeds. Act of May 12, 1846. Acknowledgment, how taken. If grantor or witness unknown, proof made. Substantial compliance only required. Acts of April 6, 1861, and January 14, 1862— Seal of railway company sufficient authentication. Act of March 6, 1863— Handwriting. Acts of November 13, 1866, August 8, 1870, August 13, 1870, May 6, 1871— Seal. Constitution of 1875— Errors. Eevised Statutes of 1879 and 1895. Single acknowledgment, how made. Identity. Certificate of officer. Form. § 68. § 69. 70- -82. § 70. § 71. § 72. § 73. § 74. 75- -77. § 78. § 79. § 80. § 81. § 82. § 83. § 84. § 85. §§ 89-90. §§ 91-94. §§ 91-92. § 93. § 94. § 95. § 96. § 97. § 98. §§ 99-104. § 99. § 100. § 101. § 102. 43 HOW MADE AND TAKEN. §§ 68, 69 § 103. Of married women, how taken. § 104. Form of certificate for married women. § 105. How made— Continued. § 106. Through the telephone. § 107. Final title— Eevised Statutes of 1879 and 1895— Con- struction of statutes. § 108. Statutes not incorporated in Eevised Statutes repealed. § 109. Validating statutes not repealed. § 110. Statutes construed as continuation. By corporations, see post, § 553. By railway companies, see post, § 558. Proof by subscribing witnesses, see chapter 12. § 68. Under What Law. — Acknowledgments and proof of instrument affecting land titles in this state must be made in compliance with the statutes of this state.^ And the acknowledgment must be taken in compliance with the statute in force at the time of acknowledg- ment.^ But a substantial compliance is all that is re- quired.^ And proof must be made in compliance with the law in force at the time the proof is made.* § 69. Prior to December 20, 1836.— Previous to the reg- istration act of December 20, 1836, no certificate of ac- knowledgment or proof was required. Conveyances of real property were made by a notary writing the convey- ance in a register which is signed by the parties, the notary and subscribing witnesses. This original deed written in the register was called the protocol, a copy of which protocol, called the testimonio or second original, was delivered to the purchaser as evidence of his title. The protocol being a public instrument, there was no other registration of same.® 1 Sartor v. Bolinger, 59 Tex. 411; Baker v. Westcott, 73 Tex. 129, 11 S. W. 157; Birdseye v. Eogers (Tex. Civ. App.), 26 S. W. 841. 2 Butler V. Dunagan, 19 Tex. 559; post, §§ 440, 441, 1053. 3 Deen v. Wills, 21 Tex. 646; Belcher v. Weaver, 46 Tex. 294, 26 A.m. Eep. 267; post, § 218. 4 Post, §§ 440, 441. 5 See ante, §§ 3, 25-34. §§ 70-73 HOW MADE AND TAKEN. 44 ACT OF DECEMBER 20, 1836 (TAKING EFFECT FROM PAP- SAGE). 6 § 70. Chief Justices Ex-oflicio Notaries, etc. — Section 34, in providing tliat the chief justices of the county court shall be the notary public, authorized them to receive proof or acknowledgment of deeds, etc., and attest the same under their seal of office — ^to wit, the seal of the county court. § 71. Acknowledgment or Proof by One Witness. — Sec- tion 35 provided that clerks of the county courts shall be the recorders for their respective counties, and shall record all deeds, etc., provided one of the witnesses of the number required by law shall swear to the signature of the signer or he himself shall acknowledge the same, which shall be certified by the recorder and form part of the record.'' § 72. Time in Which Record was to be Made. — Section 37 required proof and record of deeds, etc., within twelve months from April 1, 1837, but the part requir- ing record by April, 1838, was repealed by the act of May 10, 1838.« § 73. Acknowledgment or Proof by Two Witnesses. Sec- tion 38 provided that titles, etc., before they can be ad- mitted upon record, must be proven by at least two sub- scribing witnesses if living in the county ; if not so liv- ing in the county, then the handwriting shall be proven either before some county judge, or before the clerk of the county in whose office such record is proposed to be made; and in all cases the certificate of any county judge, that the said witness appeared before him and acknowledged his signature, or that the handwriting of 6 1 L. T. 1215. 7 H. D. 2752. 8 1 L. T. 1478; P. D. 4981, note. 45 HOW MADE AND TAKEN. §§ 74-77 the same was duly proven, shall be sufficient evidence to authorize the clerk of the county court to enter the same upon record.^ § 74. No Form Prescribed. — This act does not prescribe the form nor substance of what the certificate shall con- tain, nor clearly require one in all cases.^^ § 75. What Acknowledgment and Proof Sufficient Under Above Law. — Under section 35 it is held that if the of- ficer who had executed the protocol, and who had issued to the interested party the copy or second original, ap- peared before the county register and acknowledged his signature to the certificate authenticating the testi- monio, it would be sufficient to have authorized its rec- ord.*^ § 76. Idem — It is also held that this section contem- plates proof or acknowledgment of the signature of the signer. But that section 38, in some contingencies, would be satisfied by the proof of the signature of a single witness. ^^ It is not requisite in all cases that the proof of an instrument for record should be made by a subscribing witness. Besides, the officer authenticat- ing' the instrument may iDrove it as a subscribing wit- ness.*^ § 77. Idem. — In discussing these sections Judge Hemphill says that: "The thirty-fifth section requires one witness to swear to the signature of the signer. The thirty-eighth section requires proof by two sub- scribing witnesses, if living in the county; if not so liv- ing, then the handwriting must be proved; but the 9 H. D. 2755. 10 See post, §§ 220-222. 11 Edwards v. .James, 7 Tex. 377; Beaty v. Whitaker, 23 Tex. 526; Gainer v. Cotton, 49 Tex. 115. 12 McKissick v. Colquhoun, 18 Tex. 152. i:: McKissick v. Colqulioiin, 18 Tex. 1-52. §§78,79 HOW MADE AND TAKEN. 46 handwriting of whom, whether of the witnesses or of the signer, is not stated; and the phraseology is then immediately changed from the plural to the singular number, and the acknowledgment of the said witness or the proof of his handwriting is held to be sufficient The first requires proof of the signature of the signer. The second, at least in its provision, is satisfied with proof of the signature of the witness. In the first the witnesses are not specially described as subscribing wit- nesses; and it is probable that, upon this construction, proof was admitted by the clerk of the signature of the signer as sufficient proof to admit the paper to record. This may be deemed a departure from the literal import of the terms employed in the statute, but it accords with its spirit and intent. Its object or policy was to require evidences of claims to lands to be spread upon a public record, so that third persons might be satisfied of their existence and of the titles by which they were sup- ported; and if the instrument under which title is claimed be legal and authentic without subscribing Avitnesses, it would require language too plain to be mis- taken to exclude it from record for the want of proof by such witnesses, the signature of the signer being sub- stantiated by satisfactory proof. "-^^ § 78. Acknowledgment and Proof. — The act of Decem- ber 20, 1836, requires acknowledgment or proof, or if it is a public archive, there must be a certificate of the keeper to that effect.^^ § 79. What Sufficient It is held that where the chief justice of the county court certified "that the within in- strument was duly proven before me the twentieth day of February, 1838," it was not sufficient to entitle it to record. -^^ 14 Paschal v. Perez, 7 Tex. 357. 15 Holliday v. Cromwell, 26 Tex. 194. 16 Fleming v. Eeed, 37 Tex. 152. 47 HOW MADE AND TAKEN. §§ 80-83 § 80. No Seal was Necessary When. — It seems that where the acknowledgment or proof was made before the county clerk in whose office the instrument was to be recorded, or before the court, no seal was necessary to its authentication.*'' § 81. Not Necessary for Certificate to Show Grantor Known to Officer. — It was not necessary for the certificate to certify that the person acknowledging the instrument was known to the officer.*® § 82. Substantial Compliance Necessary. — A substantial compliance with the statute is all that is required.*® § 83. Act of January 19, 1839, Required Certificate. — The act of January 19, 1839 (taking effect from pas- sage),^** made it the duty of the county clerks to record all deeds, etc., presented to them for record, provided one of the subscribing witnesses shall swear to the sig- nature of the signer, or he himself shall acknowledge the same, which proof or acknowledgment shall be made either before some county court or chief justice of same, or before the clerk in whose office such instrument is proposed to be recorded, and a certificate of which shall be made upon such instrument by the proper officer and form part of the record. This act also provides that copies from deeds in public archives, executed in conformity with the laws existing at their dates, duly certified by the proper officers, shall be admitted to rec- ord in the county where such land lies. This act re- peals conflicting laws. It required a certificate of ac- 17 Waters v. Spofford, 58 Tex. 121. 18 See post, §§ 139-146. 19 See post, § 218, and "Validating Statutes," § 1006, etc. As to whether or not a certificate ia required by a county clerk under this law, see post, §§ 220-222. 20 P. D. 4974; 2 L. T. 52. §§ S4, 85 HOW MADE AND TAKEN. 48 knowledgment or proof to be indorsed on tlie instru- ment and become part of the record,^^ § 84. Act of February 5, 1840. — The Act of February 5, 1S40 (taking effect March 16, 1840),^^ authorized clerks of the county courts and their deputies to record deeds, etc., on the acknowledgment of the parties, or the proof, on oath, of the acknowledgment of the legal num- ber of witnesses thereto made, in the offices of the re- spective clerks; or upon the certificate of some district judge or chief justice, or notary public of a county, with the seal of his office thereunto annexed that such acknowledgment was made, or the execution of the in- strument proven as required, by two subscribing wit- nesses to be his, her or their act; and any conveyance so recorded shall have the same legal validity, in all respects, as if it were proven in open court. This act provided no form except for two justices of the peace, as seen in the next section. Did this act require certifi- cate by county clerk where acknowledgment or proof was made before him?^^ § 85. Two Justices of the Peace. — Section 6 of same act^^ further provided that "any deed may in like man- ner be admitted to record, upon the certificate, under seal, of any two justices of the peace, for any county in this Republic, annexed to such deeds and to their full effect, to wit: Republic of Texas, County of . We, A B and C D, justices of the peace in the county aforesaid, do hereby certify that E F, a party (or E G and G M, etc., parties) to a certain deed bearing date on the day of , and hereto annexed, person- ally appeared before us in our county aforesaid, and 21 HoUiday v. Cromwell, 26 Tex. 194; McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100; Wood v. Welder, 42 Tex. 409. 22 P. D. 4975; 2 L. T. 328. 23 See post, §§ 220, 222, 228. 24 P. D. 4976. 49 HOW MADE AND TAKEN. §§ 86-88 acknowledged the same to be his (or their) act or deed, but desired us to certify the said acknowledgment to the clerk of the county of , in order that the said deed may be given under our hands and seals this day of . A B. [L. S.] C D. [L. S.]" § 86. Repealed When. — This section was repealed by the act of May 12, 1846.^^ ACT OF FEBEUAEY .5, 1841. § 87. Validates Want of Authority of Certain Officers. — This act (taking effect from passage) ^^ validates the registration of all deeds, etc., heretofore registered, pro- vided they shall have been acknowledged by the grantor or grantors, maker or makers, before any chief justice of the county court, or before any notary public, or be- fore a clerk of the county in whose oflflce such record is proposed to be made or proven before such officer by one or more of the subscribing witnesses and certified by such officer, any obscurity in the existing laws to the contrary notwithstanding. § 88. Acknowledgment and Proof Certified. — Section 20 of this act provides that deeds, etc., hereafter to be re- corded shall be duly registered upon the acknowledg- ment of the grantor, before the register or clerk of the county court, or chief justice of the county, or notary public thereof, or any associate or chief justice of the supreme court, or proved by a subscribing witness be- fore any such officer, and certified by him for record, and if so acknowledged and certified, there need be no subscribing witnesses, and if executed abroad shall be 25 See Eogors v. Watroiis, 8 Tex. 62, .58 Am. Dec. 100; State v. Delesdenier, 7 Tex. 76; Harrison v. Knight, 7 Tex. 47; Bryan v. Sundberg, 5 Tex. 418. 26 2 L. T. 633. 4 §§ 89-91 now MADE AND TAKEN. 50 acknowledged or proven by two subscribing witnesses before any circuit or supreme judge, or cliancellor of the United States of North America, certified by him, with the certificate of the chief magistrate of the United States, as to the official character of him taking the acknowledgment, or probate, and the great seal of the United States thereto annexed, or if so acknowledged or proven before any judge of a supreme court of record, or in any such court of any other nation or kingdom, and certified by such judge, or the record thereof exem- plified, and either so counter certified by the chief mag- istrate or sovereign of such other nation or kingdom under the great seal or by the consul of this Republic, or minister resident there, the same shall be admitted to record, and shall be good and effectual as aforesaid, from and after its registration.-'' This act makes a certificate necessary, but provides no form of certifi- cate.^® ACT OF MAY 8, 1846 (TAKING EFFECT JUNE 22, 1846). 29 § 89. Commissioners of Deeds. — This act required com- missioners of deeds to take acknowledgments and proofs of instrument for record, in the manner directed by the laws of this state, and certified by the commissioner taking same under his seal, which certificate shall be indorsed on or annexed to said deed. But it provided no form of certificate. § 90. Not Repealed. — This act was not repealed by the act of May 12, 1846.3» ACT OF MAY 12^ 1846 (TAKING EFFECT JULY 13, 1846). 31 § 91. Acknowledgment, How Taken. — This act prescribes no form of certificate, but section 7 provides that the 27 Post, § 620. 28 See post, §§ 1000, 1006, 1018, 1021. 29 2 L. T. 1493. 30 Monroe v. Arledge, 23 Tex. 481. 31 2 L. T. 1543. 51 HOW MADE AND TAKEN. §§ 92-95 acknowledgments of deeds shall be by the person ap- pearing before any authorized officer, and ^'stating that he had executed the same for the considerations and purposes therein stated, and the officer taking such ac- knowledgment shall make a certificate thereof, sign and seal the same with his seal of office." § 92. Idem. — This section ( 7) is still in force, but the Eevised Statutes of 1879 provided a form of certificate also, which form used the clause "known to me (or proved to me on oath of ) to be the person whose name is subscribed to the foregoing instrument. "^^ § 93. If Grantor or Witness Unknown, Proof Made.^Sec- tion 10 of this act provides that if the grantor or person who executed such instrument, or subscribing witness, shall be unknown to the officer, his identity "shall be proven to such officer, which proof may be made by wit- nesses known to the officer, or the affidavit of the grantor, or person who executed the instrument, or subscribing witness, if such officer shall be satisfied therewith, which proof or affidavit shall also be in- dorsed in such instrument of writing."^^ § 94. A Substantial Compliance Only Required. — A lit- eral compliance with the statute is not required; only a substantial compliance. The material matter to be embraced in the acknowledgment is the execution of the deed.*^ § 95. Acts of April 6, 1861; January 14, 1862— Seal of Eailroad Company Sufficient Authentication. — The acts of April 6, 1861, and January 14, 1862 (both taking effect 32 Stephens v. Motl, 81 Tex. 119, 16 S. W. 731; Sloan v. Thompson, 4 Tex. Civ. App. 426, 23 S. W. 613; Watkins v. Hall, 57 Tex. 1; post, § 102. 3.3 See post, § 139. 34 Monroe v. Arledge, 23 Tex. 479. S§ 96-98 HOW MADE ANT) TAKEN. 52 from passaoje) ,^^ require certificates of acknowleds^ments or proof to be attested under the official seals of ofiQcers taking the same; but do not prescribe a form of cer- tificate. They both provide that conveyances executed by the president of any railroad company, which has been or may be incorporated by the laws of this state, shall be attested by the seal of said company, which shall be considered suflaciently authenticated to author- ize the clerk of the county court to record the same.^® § 96. Act of March 6, 1863— Handwriting.— The act of March 6, 1863 (taking effect from passage),^'' amended section 9 of act of May 12, 1846, by the addition of the clause providing that when the grantor or person who executed such instrument, signed by making his mark, proof of the handwriting of both of the subscribing wit- nesses shall be required. ( It provided no form.) § 97. Acts of November 13, 1866,3s August 8, 1870,^9 Au- gust 13, 1870,40 and May 6, 1871^1— Seal.— These acts re- quiring certificates of acknowledgment and proof to be attested under olBflcial seal, make no provision as to the form or substance of same. § 9'8. Constitution of 1875— Errors. — Article 13, section 4, of constitution of November 24, 1875, referring to titles issued prior to November 13, 1835, indicates that mere error in the certificate of registration or any in- formality not affecting the fairness and good faith of the holder thereof, with which the record was made, shall not be held to vitiate such record. 35 5 L. T. 373, 501. 36 Brownson v. Scanlan, 59 Tex. 229. 37 5 L. T. 614. 38 5 L. T. 1128. 39 6 L. T. 223. 40 6 L. T. 251. 41 6 L. T. 979. 53 HOW MADE AND TAKEN. §§99-102 REVISED STATUTES OF 1879, 1895. § 99. Single Acknowledgments, How Made. — Article 4308 of the Revised Statutes of 1879 and article 4616 of the Revised Statutes of 1895, are as follows: ''The ac- knowledgment of an instrument of writing for the pur- pose of being recorded shall be by the grantor or person who executed the same appearing before some ofiQcer authorized to take such acknowledgment, and stating that he had executed the same for the consideration and purposes therein stated ; and the oflacer taking such ac- knowledgment shall make a certificate thereof, sign and seal the same with his seal of offlce."^^ § 100. Identity Article 4309 of the Revised Stat- utes of 1879, and article 4617 of the Re\dsed Statutes of 1895 (taking effect September 1, 1879), provided that no acknowledgment of any instrument of writing "shall be taken unless the officer taking it knows, or has satis- factory evidence on the oath or affirmation of a credible witness, which shall be noted in his certificate, that the person making such acknowledgment is the individual who executed, and is described in the instrument. This is virtually the same as section 10 of May 12, 1846.' >43 § 101. Certificate of Officer.— Article 4619 of the Re- vised Statutes of 1895, and article 4311 of the Revised Statutes of 1879: "Any officer taking the acknowledg- ment of a deed or other instrument of writing must place thereon his oflQcial certificate, signed by him and given under his seal of office, substantially in form as hereinafter prescribed." § 102. Form.— Article 4620 of the Revised Statutes of 1895 and article 4312 of the Revised Statutes of 1879 : 42 Act of May 12, 1846. 43 See ante, § 93. §§103,104 HOW MADE AND TAKEN. 54 The form of an ordinary certificate of acknowledgment must be substantially as follows : "State of , County of Before me (here insert name and character of officer), on this day personally appeared , known to me ( or proved to me on the oath of ) to be the person whose name is subscribed to the forego- ing instrument, and acknowledged to me that he ex- ecuted the same for the purposes and consideration therein expressed. Given under my hand and seal of office this day of , A. D. [Seal] ' ." § 103. Of Married Women, How Taken.^* — Article 4618 of the Revised Statutes of 1895 : '^No acknowledgment of a married woman to any conveyance or other instru- ment purporting to be executed by her shall be taken unless she has had the same shown to her, and then and there fully explained by the officer taking the acknowl- edgment, on an examination privily and apart from her husband ; nor shall he certify to the same unless she thereupon acknowledges to such officer that the same is her act and deed, that she has willingly signed the same, and that she wishes not to retract it."^^ § 104. Form of Certificate for Married Women. — Article 4621: The certificate of acknowledgment of a married woman must be substantially in the following form : "State of , County of Before me (here insert the name and character of the officer) on this day personally appeared 44 See chapters 10 and 11. 45 Act of April 30, 1846. 55 HOW MADE AND TAKEN. §§ 105, 106 , wife of ■ — , known to me (or proved to me on oath of - — ■ ) to be the person whose name is subscribed to the foregoing instrument, and having been examined by me privily, and apart from her husband, and having the same fully explained to her, she, the said , acknowledged such in- strument to be her act and deed, and declared that she had willingly signed the same for the purposes and con- sideration therein expressed, and that she did not wish to retract it. Given under my hand and seal of office this day of — , A. D. [Seal] ." § 105. How Made — Continued. — An acknow^ledgment is made by a person appearing before an authorized of- ficer and acknowledging the same to the officer, for the purpose of entitling it to registration, and, in case of a married woman's, giving it authenticity. A casual admission in the presence of a notary by a person who has signed an instrument that he executed it does not authorize the officer to certify that he had acknowl- edged it. In order to call into exercise the authority of the officer to make the certificate, the grantor must appear before him for the purpose of acknowledging the instrument, and his admission that he executed it must be made with a view to give it authenticity, other- wise the act of the officer would be a nullity.*^ § 106. Through the Telephone. — In California, an ac- knowledgment of a married w^oman taken through a telephone was held to be valid. The objection was made that at the time the deeds were acknowledged the grantor was a married woman, and was not visibly, and therefore not personally, present before the notary at the time he took the acknowledgment through a tele- phone, she then being three miles distant from him. 46 Breitling v. Chester, 88 Tex. 589, 32 S. W. 527. §§ 107, 108 HOW MADE AND TAKEN. 56 The court says: "The answer to this objection is, that in the absence of fraud, duress, accident and mistake, the certijBlcate of the notary in due form of law is con- clusive of the material facts therein stated It is admitted that the certificate of the notary is in due form ; and it is not alleged or pretended by the defend- ant that she did not voluntaril}' sign and deliver the deeds; nor that she did not voluntarily, and without the hearing of her husband, acknowledge the execution of them through the telephone, after having been in- formed by the notary of their contents; nor that any deception or fraud was practiced to induce her to ex- ecute the deeds; nor even that the plaintiffs had notice of the manner in which it is alleged that she acknowl- edged the execution through the telephone These particulars are not stated for the purpose of maintain- ing that, under any circumstances, an acknowledgment of a deed may be taken through a telephone, but for the sole purpose of showing that there was no pretended fraud, duress, or mistake."*'' § 107. Final Title — Revised Statutes of 1879 and 1895 — Construction of Statutes. — Section 3 : That the rule of the common law that statutes in derogation thereof shall be strictly construed shall have no application to the Revised Statutes, but the said statutes shall constitute the law of this state respecting the subjects to which they relate, and the provisions thereof shall be liberally construed with a view to effect their objects and to pro- mote justice. § 108. Statutes not Incorporated in Revised Statutes Re- pealed. — Section 4: That all civil statutes of a general nature, in force when the Revised Statutes take effect, and which are not included herein, or which are not hereby expressly continued in force, are hereby repealed. 47 Banning v. Banning, 80 Cal. 271, 13 Am. St. Eep. 156, 22 Pac. 210. And see Central U. Tel. Co. v. Falley, 118 Ind. 194, 10 Am. St. Eep. 135, 20 N. E. 145. 57 HOW MADE AND TAKEN. §§ 109, 110 § 109. Validating Statutes not Repealed. — Section 7: That no general or special law heretofore enacted val- idating or legalizing the acts or omissions of any offi- cer, or any act or proceeding whatever, shall be affected by the repealing clause of this title; but all such vali- dating or legalizing statutes whatsoever now in force in this state are hereby continued in force, and the same shall be as effectual for all purposes after as before the Revised Statutes go into effect. § 110. Statutes Construed as Continuation. — Section 19 : That the provisions of the Revised Statutes, so far as they are substantially the same as the statutes of this state in force at the time when the Revised Statutes shall go into effect, or of the common law in force in this state at said time, shall be construed asi continua- tions thereof, and not as new enactments of the same. §§111-113 PLACE OF TAKING ACKNOWLEDGMENTS. 58 CHAPTER V. PLACE OF TAKING ACKNOWLEDGMENTS. § 111. General rule. § 112. County clerks not authorized where deed is to be recorded without their county, when. § 113. Chief justices of the county courts may not have been au- thorized where deed was to be recorded without their counties, when. § 114. Presumption is that officer acted within jurisdiction. § 115. Must be taken in compliance with laws of Texas. § 111. General Rule. — In this state, the general rule has been that officers may take acknowledgments within their jurisdictions of instruments to be recorded any- where/ but there are some exceptions to this rule.^ § 112. County Clerks not Authorized Where Deed is to be Recorded Without Their County, When. — From December 20, 1836, to July 13, 1846, county clerks were not au- thorized to take acknowledgments of instruments to be recorded without their counties.^ The same rule, of course, would apply to their deputies, § 113. Chief Justices of the County Courts may not have been Authorized Where Deed was to be Recorded Without Their Counties, When. — From March 17, 1841, to July 13, 1846, chief justices of the county courts may not have been authorized to take single acknowledgments of in- 1 Coffey V. Hendricks, 66 Tex. 679, 2 S. W. 47; Peterson v. Lowry, 48 Tex. 412. And see Clements v. San Antonio, 34 Tex. 26; post, § 595. 2 Beaumont Pasture Co. v. Preston, 65 Tex. 456; post, § 1021. For rule elsewhere, see Livingston v. Kettelle, 41 Am. Dec. 171, 172; 1 Cyc. 556. 3 Post, §§ 938-958. 69 PLACE OF TAKING ACKNOWLEDGMENTS. §§ 114, 115 struments to be recorded without their counties.'* The same rule would apply to associate justices of county courts.^ § 114. Presumption is that Officer Acted Within Juris- diction. — Where the contrary is not shown by the cer- tificate, the presumption is that the officer was acting within his jurisdiction.^ § 115. Must be Taken in Compliance with Laws of Texas. Acknowledgments taken without this state must be taken in accordance with the laws of this state, and be- fore the officers authorized by the laws of this state.'' 4 Post, § 866. 5 Post, § 866. 6 Peterson v. Lowry, 48 Tex. 412; Livingston v. Kettelle, 41 Am. Dec. 171; Henke v. Stacy, 25 Tex. Civ. App. 272, 26 Am. Eep. 310, note, 61 S. W. 511; post, § 130. 7 Ante, § 68. §§ 116-119 TIME OF TAKING ACKNOWLEDGMENT. 60 CHAPTER VI. TIME OF TAKING ACKNOWLEDGMENT. § 116. Generally. § 117. Incomplete deed. § 119. Acknowledgment relates back to execution of deed, when. § 120. Married woman's acknowledgment relates back, when. § 121. Husband and wife may acknowledge deeds at different times. § 122. On Sunday or legal holiday. § 123. Acknowledgment invalid at time made. § 116. Generally. — An instrument may be acknowl- edged at any time after its execution.^ § 117. Incomplete Deed. — It seems well settled in this state that the acknowledgment of an incomplete deed in some instances is valid ; as. where the grantee's name was omitted, and authority given an agent to supply the omission at some future time.^ Also where acknowl- edgment was taken and the description of the property was omitted with authority to insert afterward.^ While in the above cases the grantors were not married women, is there any reason for applying a different rule to deeds of married women? The same rule exists in the state of Minnesota.^ § 119. Acknowledgment Relates Back to Execution of Deed, When. — Acknowledgments of deeds of other per- sons than married women relate back to the execution 1 Fisher v. Butcher, 19 Ohio, 406, 53 Am. Dec. 436. 2 Threadgill v. Butler, 60 Tex. 601; Schleicher v. Kunge (Tex. Civ. App.), 37 S. W. 984. 3 Henke v. Stacy, 25 Tex. Civ. App. 272, 61 S. W. 511; Howard V. Kellam (Tex.), 8 S. W. 96. 4 Eoussian v. Norton, 53 Minn. 560, 55 N. W, 747; Pence v. Ar- buckle, 22 Minn. 417. 61 TIME OF TAKING ACKNOWLEDGMENT. §§ 120-122 and delivery of the deeds, unless rights of other persons have intervened.^ § 120. Married Woman's Acknowledgment Relates Back, "When. — When there is a defective acknowledgment and certificate of a wife's conveyance, a subsequent proper acknowledgment, in the absence of intervening rights, will relate back to the first acknowledgment and deliv- ery.® It has also been held that the acknowledgment of a married w' oman of a deed previously signed, though not previously acknowledged, relates back to the time of the delivery.'' § 121. Husband and Wife may Acknowledge Deeds at Dif- ferent Times. — It is not essential that husband and wife acknowledge the deed at the same time or before the same officer.^ But the husband must join therein dur- ing her lifetime, or it would be void.^ The wife, how- ever, may acknowledge deed after the death of hus- band;^® and it is held that it would relate back to the previous signing.** § 122. On Sunday or Legal Holiday.— It seems that an acknowledgment taken on Sunday or other legal holi- day is valid.** 5 1 Cyc. 560. 6 Halbert v. Hendrix (Tex. Civ. App.), 26 S. W. 912; Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 913. 7 Chester v. Ereitling (Tex. Civ. App.), 30 S. W. 465 (reversed on another point in 88 Tex. 586, 32 S. W. 527); and see Starnes v. Beitel, 20 Tex. Civ. App. 524, 50 S. W. 203. 8 Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 913; Halbert v. Hendrix (Tex. Civ. App.), 26 S. W. 911. 9 Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 913; Halbert v. Hendrix (Tex. Civ. App.), 26 S. W. 911; post, § 996. 10 Breitling v. Chester, 88 Tex. 589, 32 S. W. 527. n Chester v. Breitling (Tex. Civ. App.), 30 S. W. 465; post, § 925. 12 Post, § 128. § 123 TIME OF TAKING ACKNOWLEDGMENT, 62 § 123. Acknowledgment Invalid at Time Made. — An ac- knowledgment invalid at the time it is made is not aided by a eliange in the law adopting the form or mode nsed previously. ^^ 13 Texas Land Co. v. Williams, 51 Tex. 51. 63 CERTIFICATE OF ACKNOWLEDGMENT. CHAPTER YII. CERTIFICATE OF ACKNOWLEDGMENT. A. CERTIFICATE GENERALLY. § 124. Place of certificate. § 125. Langnage. |§ 126-127. Time of making certificate. § 128. On Sunday or legal holiday valid. § 129. Adopting form invalid at time used. § 130. Venue. § 131. . Date. § 132. Signature. § 133. Official character. § 134. Certificate not showing official character aided by record. § 135. Not shown by reference to record, but by reference to deed. § 135a. Official character cannot be shown by extrinsic evi- dence. § 136. Official character shown by initials and caption of certificate and by seal. B. MUST CERTIFY WHAT. |§ 137-138. Generally. § 139. Grantor known or proved to officer. § 140. Known by introduction sufficient. § 141. Omission of "known to me" fatal. §§ 142-145. Acquaintance sufficiently shown. § 146. "Proved to me on oath of" surplusage. § 147. Identity of grantor and person acknowledging deed must appear. § 148. Omission of grantor's name. § 149. Variance in names. § 150. Parol evidence to show identity. § 151. Variance immaterial when. § 152. Middle initial immaterial. § 153. Omission of "to be the person," etc. § 154. Acknowledged execution to officer. § 155. Casual admission in officer's presence insufficient. § 156. Sufficiently shown. CERTIFICATE OF ACKNOWLEDGMENT. 64 C. IRREGULAR CERTIFICATION. §§ 157-160. Sufficient certification, though irregular. § 161. Clerical errors not fatal. § 162. "The" instead of "they." § 163. "Contract" for "retract" and other mistakes. § 164. Insufficient certification — "The within instrument duly- proved" insufficient. § 165. "He" for "they" defective. § 166. Omission of "they" fatal. § 167. Surplusage. § 168. Unnecessary words. § 169. Uncanceled words in printed certificate. § 170. Name out of place. §§ 171-173. Errors and omissions. D. PAROL EVIDENCE. § 174. To aid certificate not admissible, when. § 176. Admissible, when. §§ 177-179. To correct imperfect certificate of valid acknowl- edgment. § 180. Limitation. § 181. Where acknowledgment itself is defective, parol evidence inadmissible. § 182. Parol evidence — Inadmissible, when. § 183. Want of capacity in officer cannot be shown. § 184, Parol evidence to impeach certificate admissible, when — May show no acknowledgment made. § 185. Where purchaser is chargeable with notice, etc. §§ 186-187. Burden of proof— Where seeking to defeat certifi- cate. •■ § 188. Burden of proof in case of equitable titles. § 189. Burden of proof in case of legal titles. § 190. Secondary evidence admissible when. § 191. Amendment of certificate — By officer. E. CERTIFICATE AS EVIDENCE. §§ 194—195. Not evidence of execution of deed. § 196. Admissible to prove protest. § 197. Validates the deed. § 198. Protocols and copies admissible on certificate, when. § 199. Copies of archives admissible. § 200. Copies from foreign jurisdictions. § 201. After act of December 20, 1836, proof of execution required. 65 OF SINGLE PEESONS. §§ 202-203. Copies filed prior to February, 1837, admissible when. § 204. Copy of deed not properly acknowledged not ad- missible as ancient instrument. § 205. Certificate of acknowledgment proven by second- ary evidence. F. CEETIFICATE OF MAGISTEACY AND CONFOKMITY. § 206. Generally. § 207. Eequired in Texas, when. § 208. Eemained in force how long. § 209. Not required thereafter. G. CEETIFICATE MUST BE IN COMPLIANCE WITH LAWS OF TEXAS. § 210. Foreign officer must be authorized by laws of Texas. H. CONCLUSIVENESS OF CEETIFICATE OF ACKNOWLEDG- MENT. § 211. Conclusive when. § 212. Conclusive as to capacity of officer, etc. § 213. Not where grantor never attempted to acknowledge it. § 214. Nor unless grantee is an innocent purchaser for value. § 215. Presumptions. L CEETIFICATE AS NOTICE. § 216, Notice. J. FOEM AND EEQUIEEMENTS OF CEETIFICATE. § 217. Must comply with law in force at time certificate is made. § 218. A substantial compliance with statute is all that is required. K. FOEM AND EEQUIEEMENTS UNDEE THE DIFFEEENT STATUTES. § 219. Prior to act of December, 1836. § 220. Act of December 20, 1836. § 221. Certificate required when. § 222. Certificates by county clerks required when. § 223, Acknowledgment of signature of officer sufficient. 5 §§ 124, 125 CERTIFICATE OF ACKNOWLEDGMENT. 66 § 224. Proof of signature of single witness sufficient. § 225. No seal necessary, when. § 226. When grantor is known to officer, it is not necessary to be certified. § 227. Act of January 19, 1839. § 228. Act of February 5, 1840. § 229. Act of February 5, 1841. § 230. Act of May 8, 1846. § 232. Act of May 12, 1846. § 233. The acts of April 6, 1861, 'January 14, 1862, November 13, 1866, and May 6, 1871. § 234. Act of March 6, 1863. § 235. Acts of November 13, 1866, August 8, 1870, August 13, 1870, and May 6, 1871. § 236. Constitution of 1875— Errors. § 237. Eevised Statutes of 1879 and 1895— Identity. A. CERTIFICATE GENERALLY. § 124. Place of Certificate. — The certificate should be written or printed on the deed, but in this state it is held that a certificate written on another piece of paper and pasted on the deed is sufficient.^ Also is a certifi- cate in the body of the instrument valid in this state.^ A contract for a mechanic's lien and note for price when both are written on the same piece of paper need not be separately acknowledged, but an acknowledg- ment at the end of the paper "of the foregoing instru- ment" is sufficient.^ § 125. Language. — ^The certificate should be in the English language or translated by one who is familiar with both.* Prior to December 20, 1836, the instru- ment, to be authentic, must be in the Spanish language.^ 1 Schramm v. Gentry, 63 Tex. 583; Beaumont Pasture Co. v. Preston, 65 Tex. 457. 2 Brownson v. Scanlan, 59 Tex. 222; Snowden v. Rush, 69 Tex. 593, 6 S. W. 767. 3 Bosley v. Pease (Tex. Civ. App.), 22 S. W. 516. 4 Sartor v. Bolinger, 59 Tex. 411. 5 Ante, § 3 (b). 67 OF SINGLE PERSONS. §§ 126-128 § 126. Time of Making Certificate. — A certificate of ac- knowledgment made many years after the acknowledg- ment is taken is held to be valid.® § 127. Idem. — It was held that if the ofacer taking the acknowledgment of a married woman is still in of- fice, he may amend his certificate by attaching his seal, provided she has not in the meantime withdrawn her acknowledgment, but under no other circumstances.'^ This doctrine was disapproved of in a later case by the court of civil appeals, but again approved by the su- preme court in the same case on writ of error ; the ques- tion, however, was not involved in the decision of the case.® It is not necessary that the certificates of ac- knowledgment be made at the same time or by the same officer; the wife may acknowledge it years later,*^ even after the death of her husband.^^ § 128. On Sunday or Legal Holiday Valid. — It seems that an acknowledgment and certificate made on Sun- day or a legal holiday are valid.^^ The provision,*^ that all public affairs of the state may be closed on a legal holiday is not mandatory, and an indictment on a legal holiday is not invalid on that account.^^ There is no law which makes a contract void or even voidable merely because made on Sunday, when the contract is in regard to a matter not made unlawful by statute. At common law, as to contracts, no distinction is made be- 6 Stevens v. Martin, 18 Pa. St. 101; Grant v. Olliver, 91 Cal. 158, 27 Pac. 596, 861. 7 McKeller v. Peck, 39 Tex. 388. 8 Stone V. Sledge (Tex. Civ. App.), 24 S. W. 697, 26 S. W. 1069. S Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 912. 10 Breitling v. Chester, 88 Tex. 589, 32 S. W. 527. And see chapter 28. 11 Lucas v. Larkin, 85 Tenn. 355, 3 S. W. 647; Tracy v. Jenks, 15 Pick. (Mass.) 465. 12 Texas Revised Statutes. 13 Webb V. State (Tex. Cr. App.), 40 S. W. 989. §§ 129, 130 CERTIFICATE OF ACKNOWLEDGMENT. 68 tween Simday and any other day.** A sale of real es- tate under execution may be made on a legal holiday.*'"* § 129. Adopting Form Invalid at Time Used. — If a cer- tificate is invalid at the time it is made, a subsequent law adopting the form used does not cure it.**^ § 130. Venue — While it is held in other states that the certificate must show where the acknowledgment was made,*''' in Texas the presumption is that all offi- cial acts have been performed within the limits of the officer's jurisdiction; and statement of the venue at the beginning of the certificate is sufficient, although the officer does not otherwise show in what county he acted and was authorized to act.** In case of a conflict in the statement of the venue in the caption with the state- ment under the signature and seal stating some other county, the latter statements prevail.*^ It is also held that the notarial seal may supply the omission of the certificate to state the venue. ^** And a certificate be- ginning, "State of Texas, County of Hopkins," but clos- ing as follows: "Witness my hand and official seal at Douglas, 6th day of Oct., 1854. John B. Olute, Notary Public, N. C," is not invalid on account of variance of venue stated.^* If the certificate appears regular on its face and from the instrument attached, parol evi- dence is inadmissible to show that the officer was act- 14 Markle v. Scott, 2 App. Civ. Cas. 674; Schneider v. Sansom, 62 Tex. 201, 50 Am. Eep. 521. 15 Crabtree v. Whiteselle, 65 Tex. 111. 16 Texas Land Co. v. Williams, 51 Tex. 51. 17 McMahan v. McGraw, 26 Wis. 614. 18 Chamberlain v. Pybus, 81 Tex. 511, 17 S. W. 50; Alexander v, Houghton, 86 Tex. 702, 26 S. W. 937. It) Alexander v. Houghton, 86 Tex. 702, 26 S. W. 937. 20 Stephens v. Motl, 81 Tex. 115, 16 S. W. 731. 21 Blythe v. Houston, 46 Tex. 67; First Nat. Bank v. Hicks, 24 Tex. Civ. App. 269, 59 S. W. 842. 69 OF SINGLE PERSONS. §§ 131-133 ing without the sphere of his duty, or without his juris- diction, or witliin tlie wrong county.^^ § 131. Date. — The omission of the date in the certifi- cate is not fatal.^^ The presumption is that the ac- Lnowledgment was taken some time between tlie date of the deed and its record.^'* Mistake of the year in the certificate is not serious where it is corrected by the statement that the acknowledgment is of the above deed.^^ § 132. Signature. — ^The signature of the officer is necessary to the validity of the certificate."** § 133. Official Character.— Official character of the offi- cer who makes the certificate should be shown in it, either in the body or appended to the signature, so that the recorder may know without extrinsic evidence that the statute is complied wdth, otherwise it is not entitled to registration.^''' Where the certificate does not show the official character of the officer, and the caption of the deed shows the county, and the certificate of ac- knowledgment bears the seal of the county court and is signed by one styling himself "recorder," it is suffi- ciently shown that the deed was acknowledged before the county clerk, who was also by law the county re- 22 Peterson v. Lowry, 48 Tex. 412; Henke v. Stacy, 25 Tex. Civ. App. 272, 61 S. W. 511; Livingston v. Kettelle, 41 Am. Dec. 171. See 26 Am. Rep. 310, note. For law prior to 1836, see ante, § 3 (e). 23 Webb V. Huff, 61 Tex. 678. 24 Sloan V. Thompson, 4 Tex. Civ. App. 426, 23 S. W. 613. 25 Attaway v. Carter, 1 U. C. 77; Livingston v. Kettelle, 41 Am. Dec. 173. For laws prior to December 20, 1836, see ante, § 3 (e). 26 1 Am. & Eng. Ency. of Law, new ed., 529. For law prior to 1836, see ante, § 3 (e). See Livingston v. Kettelle, 41 Am. Dec. 173. For signature by making his mark, see Boehl v. Hecker, 1 App. Civ. Cas. 761. For signature of grantor, see ante, § 63. 27 Coffee V. Hendricks, 66 Tex. 678, 2 S. W. 47; Whitehead v. Foley, 28 Tex. 272; Titus v. Johnson, 50 Tex. 224. §§ 134-135a CERTIFICATE OF ACKNOWLEDGMENT. 70 corder.^** It is held that the fact, appearing by the cer- tificate of the clerk, that the court had a clerk and seal, was sufficient evidence that it was a court of record.^ § 134. Certificate not Showing Official Character Aided by Record. — A deed was recorded in Liberty county on proof by affidavit of one of four subscribing witnesses in 1838 before "Geo. W. Miles, R. L. C." Following the affi- davit was a certificate of the record of the deed on May 4, 1838, with the caption "Republic of Texas, Liberty County," also subscribed "Geo. W. Miles, R. L. C." Under these circumstances it was held that it appears with reasonable certainty from the certificates attached to the deed that it was proved before the county clerk of Liberty county, where the record was made.^^ § 135. Not Shown by Reference to Record, but by Refer- ence to Deed — But in a later case it is held, with more reason it seems, that the failure of the certificate to show official character may not be aided by reference to the certificate of its record, although it might be aided by reference to the deed.^-"^ It is also presumed in some instances from record of deed.^^ § 135a. Official Character cannot be Shown by Extrinsic Evidence. — Since our registration acts have been in force, extrinsic evidence is not admissible to show official character. ^^ But under the Spanish law official char- acter might be shown by parol evidence.^'* 28 Broussard v. Dull, 3 Tex. Civ. App. 59, 21 S. W. 937. 29 Post, §§ 533, 534. 30 McDonald v. Morgan, 27 Tex. 503. 31 Gulf Coast etc. E. E. v. Carter, 5 Tex. Civ. App. 675, 24 S. W. 1083 5 Cofeee v. Hendricks, 66 Tex. 678, 2 S. W. 47. 32 See post, § 490. 33 Whitehead v. Foley, 28 Tex.' 272; Stone v. Sledge (Tex. Civ, App.), 24 S. W. 697; Looney v. Adamson, 48 Tex. 619. 34 Sayles' Early Laws, art. 128, § 11. 71 OF SINGLE PERSONS. §§ 136-138 § 136. OflScial Character Shown by Initials and Caption of Certificate and by Seal. — Where the county is stated in the caption and initials of a different county are appended to the signature, the certificate is not invalid on that account."^ B. MUST CERTIFY WHAT. § 137. Generally.^^ — The certificate must state all that is necessary to show a valid acknowledgment. It seems that the essentials to be stated are : 1. That the grantor, naming him, was known to the oflQcer, or proved to be the grantor or person who ex- ecuted the instrument, on the oath of a witness.^'' 2. That the grantor acknowledged to the officer the execution of the instrument.^* 3. The official character of the officer must be shown in the certificate, or appended to his signature, or shown by the seal, but they may be aided by reference to the deed.^^ 4. The official seal must be attached.'*^ 5. The signature of the officer must be appended.** § 138. Idem. — But it seems that the omission of the venue,"*^ the date,*^ the words "purposes and considera- tions,"*^ the reference to the seal,*^ and certain other words, as will be seen under the head of "omissions," 35 Blythe v. Houston, 46 Tex. 67. Shown by seal, see chapter 13. For official character and authority of nonresident officers, see chap- ters 18, 19. 36 For former requirements, see post, §§ 164-179. 37 See post, §§ 139-146. 38 See post, § 154. 39 See ante, § 133. 40 See chapter 13. 41 See ante, § 132. 42 See ante, § 130. 43 See ante, § 80. 44 See post, § 172. 45 See post, § 172. §§ 139, 140 CEKTIFICATE OF ACKNOWLEDGMENT. 72 will not invalidate the certificate. If the certificate certifies that the officer affixed his seal, the presumption is that he did affix it, even though the record or a cer- tified copy of it fails to show the characters usually used to represent the seal.^ § 139. Grantor Known or Proved to Officer. — Under the laws in force previous to the Kevised Statutes of Sep- tember 1, 1879, it was not necessary for the certificate of acknowledgment to state that the grantor was known or proved to the officer,^'' but only required the officer to attach to his certificate certain proof of identity in case the one making the acknowledgment was not known to him,"*^ and where no proof was attached, the presumption would be that the grantor was known to the officer.^^ The acknowledgment is all that is neces- sary, whether the grantor is known or not.^^ But since the taking effect of the Kevised Statutes of September 1, 1879, the certificate must show that the grantor was known to the officer, or that the proof of that fact was made.^* § 140. Known by Introduction Sufficient. — A certificate reciting that the officer knew the grantor by introduc- tion (by the grantee) does not invalidate the acknowl- 46 Coffey V. Hendricks, 66 Tex. 677, 2 S. W. 47; Witt v. Harlam, 66 Tex. 41, 2 S. W. 41; Ballard v. Perry, 28 Tex. 347. 47 Harvey v. Hill, 7 Tex. 593; Watkins v. Hall, 57 Tex. 4; Sowera V. Peterson, 59 Tex. 219, 220. 48 Slack V. Dawes, 3 Tex. Civ. App. 520, 22 S. W. 1053; Hill v. Smith, 6 Tex. Civ. App. 312, 25 S. W. 1080. 49 Driscoll V. Morris, 2 Tex. Civ. App. 603, 21 S. W. 629. 50 Sowers v. Peterson, 59 Tex. 218. 51 Davidson v. Wallingsford, 88 Tex. 623, 32 S. W. 1030; McKie v. Anderson, 78 Tex. 207, 14 S. W. 576; Johnson v. Thompson (Tex. Civ. App.), 50 S. W. 1057; Sloan v. Thompson, 4 Tex. Civ. App. 426, 23 S. W. 613; Watkins v. Hall, 57 Tex. 1; Hines v. Lumpkin, 19 Tex. Civ. App. 556, 47 S. W. 818; Hurst v. Pinley, 22 Tex. Civ. App. 605, 55 S. W. 388. 73 OF SINGLE PERSONS. §§ 141, 142 edgment.^^ The law does not prescribe the extent of the acquaintance which is necessary to justify the of- ficer in certifying that the person who presents himself is known to the officer to be the person who signed the instrument in question, but that question is, and neces- sarily must be, submitted to the decision of the officer under the facts as they exist at the time the act is done. When the officer certifies that the grantor was known to him, it will be taken as sufficient unless the certifi- cate shows on its face the fact that the grantor was un- known. And the words "by introduction" may be taken as surplusage. But the court does not hold that an in- troduction is sufficients^ The certificate must show that the grantor was known or "made known" to the officer.^-* § 141. Omission of "Known to Me" Fatal. — The omis- sion of "known to me" (since Kevised Statutes of 1879) is fatal to the certificate, unless "proved to me on oath of — shows the required fact,"^^ but the cer- tificate need not be in the exact words of the statute. ^^ § 142. Acquaintance Sufficiently Shown. — A certificate reciting that "personally appeared J. T. Bates, Tax Collector of said county, to me well known, and ac- knowledged," etc., the deed being signed "J. T. Bates, Tax Collector of Concho County," was a substantial 52 Lindley v. Lindley, 92 Tex. 446, 49 S. W. 573, (Tex. Civ. App.) 50 S. W. 159. 53 Lindley v. Lindley (Tex. Civ. App.), 50 S. W. 159, which is the same case certified to the supreme court. 54 Hurst V. Finley, 22 Tex. Civ. App. 605, 55 S. W. 388; Rork v. Shields, 16 Tex. Civ. App. 640, 42 S. W. 1032. 55 McKie V. Anderson, 78 Tex. 210, 14 S. W. 576; Salmon v. Huff, 80 Tex. 133, 15 S. W. 257, 1047; Frost v. Erath Cattle Co., 81 Tex. 510, 26 Am. St. Rep. 831, 17 S. W. 52. 56 Beitel v. Wagner, 11 Tex. Civ. App. 365, 32 S. W. 367. §§ 143-146 CEETIFICATE OF ACKNOWLEDGMENT. 74 compliance with the statute,^"'' it being implied that he was known to be the person who executed the deed.®* § 143. Idem. — The certificate of acknowledgment to a deed executed by agents stating that they, naming them, "were personally known to him, and that each of them had acknowledged the execution of the deed as agents," and being otherwise sufl&cient, is valid.®^ § 144. Idem.— Under the act of May 12, 1846 (re- maining in force until 1879), the certificate of the of- ficer stated that the grantor had been made known to him, but failed to indorse on the deed, as he should have done, the proof by which he was made known to him, is nevertheless valid.^^ § 145. Idem. — A certificate which certified "that the grantor was personally known to me (the officer), and that he declared to me that he had executed the deed,'* is a substantial compliance with the statute requiring the officer to know or have satisfactory proof on oath of a credible witness that the person making the ac- knowledgment is the individual w^ho executed the deed.®^ § 146. "Proved to Me on Oath of" Surplusage. — The words in brackets in article 4620 of the Revised Statutes of 1895, "proved to me on oath of ," with the line drawn in blank space for the name of witness, were not intended to be used, and may be treated as surplus- age. 62 57 Kev. Stats. 1879, art. 4309. 58 ScMeicher v. Gatlin, 85 Tex. 273, 20 S. W. 120. 59 Little V. Weatherford, 63 Tex. 639. 60 Sowers v. Peterson, 59 Tex. 217. 61 Schramm v. Gentry, 63 Tex. 583; First Nat. Bank v. Hicks, 24 Tex. Civ. App. 269, 59 S. W. 842. 62 Farrell v. Palestine Loan Co. (Tex. Civ. App.), 30 S. W. 815; Adams v. Pardue (Tex. Civ. App.), 36 S. W. 1017; Gray v. Kaufman, 75 OF SINGLE PEESONS. §§ 147-150 § 147. Identity of Grantor and Person Acknowledging Deed Must Appear. — Their identity must appear with rea- sonable certainty from the certificate and the deed. Identity of names is ordinarily sufficient proof of identity of persons.^ § 148. Omission of Grantor's Name. — It has generally been held that the omission of the name of the grantor from the certificate or a mistake in the name in the cer- tificate will not invalidate the certificate of acknowl- edgment, if it appears with reasonable certainty from the certificate and deed that the grantor in fact ac- knowledged it, as where the certificate certifies that he was "known to me to be the person whose name is sub- scribed to the foregoing instrument,"^ but that rule seems not to have been adopted in Texas. § 149. Variance in Names. — A deed signed by "Mc- lOnzie'' but purporting to have been acknowledged by "McKenzie" is inadmissible in the absence of proof of its execution or proof by the proper party,*^^ and an unexplained certificate that "James Butler" acknowl- edged the deed signed by "Jonas Butler" is insufficient to entitle it to record.^^ § 150. Parol Evidence to Show Identity. — It seems to be well established that parol evidence is admissible to aid the certificate in showing the identity of the grantor and person acknowledging the deed, as where parol evi- dence was admitted to prove that "James M. W." was intended for "Jaspar M. W."^'^ 82 Tex. 65, 17 S. W. 513; Talbert v. Dull, 70 Tex. 678, 8 S. W. 530. See post, § 237; ante, §§ 93, 139-146. 63 McNeil V. O'Connor, 79 Tex. 229, 14 S. W. 1058; Smith v. Gillon, 80 Tex. 125, 15 S. W. 794; Leland v. Eckert, 81 Tex. 229, 16 S. W. 897. See post, § 237; ante, §§ 93, 139-146. 64 1 Am. & Eng. Ency. of Law, 2d ed., p. 543. 65 McKinzie v. Stafford, 8 Tex. Civ, App. 121, 27 S. W. 790. 66 Stephens v. Motl, 81 Tex. 115, 16 S. W. 731. 67 Cheek v. Herndon, S2 Tex. 148, 17 S. W. 763. §§ 151-155 CERTIFICATE OF ACKNOWLEDGMENT. 76 § 151. Variance Immaterial When. — Where the deed is signed "R. M. Ilopkiiis'' and the certificate of acknowl- edgment certifies that ^'Richard M. Hopkins" acknowl- edged the same, the variance is immaterial, or not such as to avoid the acknowledgment.®® § 152. Middle Initial Immaterial. — Discrepancy in the middle name or initials is immaterial.®^ § 153. Omission of "to be the Person," etc. — Omission of the clause "to be the person whose name is sub- scribed to the foregoing instrument" after "to me well known," is not fatal as failing to identify the person ac- knowledging the deed as being the grantor.''^ § 154. Acknowledged Execution to Officer Ever since the act of May 12, 1846, the certificate of acknowledg- ment must certify that the grantor acknowledged the execution of the instrument to the officer ; it is not suf- ficient for the officer to certify" that the grantor ex- ecuted it for the purposes and consideration ex- pressed.'^^ But where the proof is made by a subscrib- ing witness, who swears that "the grantor signed, sealed and delivered the foregoing deed for the pur- poses therein expressed, and that he signed it as a wit- ness at the request of the grantor," is sufficient.''^ § 155. Casual Admission in Officer's Presence Insufficient. A casual admission in the presence of the notary, by a person who signed an instrument, that he executed it, 68 Copelin v. Schuler (Tex.), 6 S. W. 670. 69 Page V. Arnin, 29 Tex. 73; McKay v. Speak, 8 Tex. 396. See Livingston v. Kettelle, 41 Am. Dec. 175. 70 Hayes v. Tilson, 18 Tex. Civ. App. 610, 45 S. W. 481. See, also, "Sufficient Certification," post, § 157. 71 McDaniel v. Needham, 61 Tex. 272; Heintz v. O'Donnell, 17 Tex. Civ. App. 21, 42 S. W. 798; Johnson v. Thompson (Tex. Civ. App.), 50 S. W. 1055. 72 Stinnett v. House, 1 U. C. 486. 77 OF SINGLE PERSONS. §§ 156-158 does not authorize the officer to certify that he has ac- knowledged it In order to call into exercise the authority of the officer to make the certificate, the grantor must appear before him for the purpose of ac- knowledging the instrument, and his admission that he acknowledged it must be made with a view to give it authenticity, otherwise the act of the officer would be a nullity 7^ § 156. Sufficiently Shown — A certificate of acknowl- edgment to a deed, stating that before the officer "per- sonally came Wm. M. Campbell, to me well known, and acknowledged he signed and delivered the foregoing transfer for the purposes and considerations there stated," while not in the terms prescribed by the statute, is not defective for failing to identify the grantor as the person who executed the instrument, or failing to show that the grantor made the acknowledg- ment to the officer.''* C. lEREGULAE CERTIFICATION. § 157. Sufficient Certification, Though Irregular. — The following certificate taken in the state of Louisiana was held to be valid under the laws in force in 1874, or prior to 1879 : "In testimony whereof the said parties hereto sign their names, together with me, notary, and the undersigned competent witnesses, and I affix hereto my official seal on the 31st day of March, 1874, the date and year above written."''^ § 158. Idem. — A certificate stating that "came R- by his attorney, J., with whom I am acquainted, and 73 Brcitling v. Chester, 88 Tex. 589, 32 S. W. 527. See Livingston V. Kettellc, 41 Am. Dec. 177, note. 74 Hays V. Tilson, 18 Tex. Civ. App. 610, 45 S. W. 479. 75 Brownson v. Scanlan, 59 Tex. 229; and see Sjiowden v. Eush, 69 Tex. 597, 6 S. W. 767. §§159-162 CERTIFICATE OF ACKNOWLEDGMENT. 78 acknowledged that he signed, sealed and delivered the foregoing instrument," was not void for uncertainty.'^® § 159. Idem. — The following certificate made in 1874 was held to be valid : "State of Texas, County of Wash- ington. Before me, John Gray, clerk of the county court in and for the county aforesaid, came John M. Graham and acknowledged to me that he signed over the above deed as therein expressed. Given under my hand and official seal this 7th day of August, 1844. (L. S.) John Gray, C. 0. W. 0."'^^ § 160. Idem. — The recitation in certificate that "this day before me, F G, notary public, came A B and C D, to me well known, and acknowledged that they signed the foregoing deed," etc., fairly shows that they ac- knowledged the same to the officer.''* § 161. Clerical Errors not Fatal. — Where it appears from the certificate as a whole that the officer intended to write the proj^er word, and its omission was a cleri- cal error, the certificate is not vitiated by such error, such as "with" instead of "without."''® An inartificial or imperfect statement of a fact required to be stated should not vitiate the certificate.*^ Equivalent words may be used.*^ § 162. "The" Instead of "They."— A certificate is not invalidated because it states that the grantors acknowl- 76 Ferguson v. Eicketts (Tex. Civ. App.), 55 S. W. 975. 7 7 Harlowe v. Hudgins, 84 Tex. 109, 31 Am. St. Rep. 21, 19 S: W. 364. 78 Johnson v. Thompson (Tex. Civ. App.), 50 S. W. 1057. 79 Broussard v. Dull, 3 Tex. Civ. App. 59, 21 S. W. 937. 80 Talbert v. Dull, 70 Tex. 675, 8 S. W. 530. 81 Norton v. Davis, 83 Tex. 32, 18 S. W. 830; Dorn v. Best, 15 Tex. 62; Wilson v. Simpson, 80 Tex. 279, 16 S. W. 40; Belcher v. Weaver, 46 Tex. 293, 26 Am. Rep. 267. 79 OP SINGLE PEESONS. §§ 163-166 edged that "the" (instead of "they") acknowledged the deed.^2 § 163. "Contract" for "Retract," and Other Mistakes. — "Assigned" instead of "signed," is immaterial,^ also is "with" for "without";^ also is ''contract" instead of "retract";*^ also is the use of "I" instead of "before me."^^ Discrepancy in the middle name or initials is immaterial.*'^ § 164. Insufficient Certification — "The Within Instru- ment Duly Proved" Insufficient. — In 1838 the certificate of chief justice of the county court "that the within in- strument was duly proved before me the twentieth day of February, 1838," is not suflacient to entitle it to rec- ord.** § 165. "He" for "They" Defective. — ^Where there are several grantors of both sexes recited in the certificate, and it recites that "he" acknowledged, and that "he" executed the same, etc., it is fatally defective.*^ § 166. Omission of "They" Fatal — A certificate in the following form: "Before me, the undersigned author- 82 Montgomery v. Hornberger, 16 Tex. Civ. App. 28, 40 S. W. 628. 83 Broussard v. Dull, 3 Tex. Civ. App. 59, 21 S. W. 937. 84 Durst V. Dougherty, 81 Tex. 650, 17 S. W. 388. 85 Belcher v. Weaver, 46 Tex. 293, 26 Am. Eep. 267. 86 Belbaze v. Eatto, 69 Tex. 638, 7 S. W. 501. 87 Page V. Arnim, 29 Tex. 73; McKay v. Apeak, 8 Tex. 396. See post, §§ 309-312. See, also, Coombes v. Thomas, 57 Tex. 322; Eork V. Shields, 16 Tex. Civ. App. 640, 42 S. W. 1032; Clark v. Groce, 16 Tex. Civ. App. 453, 41 S. W. 668; Ferguson v. Eicketts (Tex. Civ. App.), 55 S. W. 975; Moses v. Dibrell, 2 Tex. Civ. App. 457, 21 S. W. 414; Harvey v. Hill, 7 Tex. 593; Hays v. Tilson, 18 Tex. Civ. App. 610, 45 S. W. 479. 88 Flemming v. Eeed, 37 Tex. 152. 80 Threadgill v. Bickerstaff, 7 Tex. Civ. App. 406, 26 S. W. 741. See, also, McDaniel v. Needham, 61 Tex. 271; Cavit v. Archer, 52 Tex. 169; Heintz v. O'Donnell, 17 Tex. Civ. App. 21, 42 S. W. 798. §§167-169 CEKTIFICATE OF ACKNOWLEDGMENT. 80 ity, persoually appeared R. and E., his wife, Avho are to me made known, and acknowledged that signed, executed and delivered the foregoing deed," etc., fol- lowed by the wife's acknowledgment in statutory form, though defective as to the husband, because it fails to show that he signed, executed and delivered the deed, is good as to the wife, and entitles the deed to be re- corded.®** § 167. Surplusage. — Unnecessary words in the certifi- cate may generally be treated as surplusage and re- jected. As where the officer signs himself "special deputy," the word "special" may be treated as surplus- age.®^ § 168. Unnecessary Words. — The unnecessary words in the following certificate were treated as surplusage and the certificate held to be valid, to wit: "This day came and personally appeared N., agent and attorney in fact for M. & S., of Pike county, to me well known, formerly of the county of Freestone, to me personally known, who signed the names of said M. & S. as their agent and attorney in fact, and being by me duly sworn, signed and acknowledged the execution of the forego- ing deed, and delivered the same as their binding act."®^ § 169. Uncanceled Words in Printed Certificate. — In a certificate made on a printed form where the words "proven to me on oath of " were in brackets, and not intended to be used, where the grantor was known to the officer, a line had been drawn through the blank space by the officer, but he had not canceled 90 Eork V. Shields, 16 Tex. Civ. App. 640, 42 S. W. 1032. See, post, §§ 171-173. 91 Thompson v. Johnson, 84 Tex. 548, 19 S. W. 784. 92 Moses V. Dibrell, 2 Tex. Civ. App. 457, 21 S. W. 416. 81 OF SIXGLE PEESOXS. §§ 170172 the other words in the brackets, they might be consid- ered as surplusage.®^ § 170. Name Out of Place. — The insertion of a name out of place may be treated as surplusage.®* § 171. Errors and Omissions,®^ — An imperfect statement of a fact required to be set forth in a certificate of ac- knowledgment will not vitiate it when it consists of the omission of a material word if the mistake is apparent from the context.®^ § 172. Idem. — Omission of both words "purposes and consideration" does not invalidate the certificate.®''' Nor the omission of "purposes."®^ Nor is the omission of the date.®^* The presumption is that the acknowl- edgment was taken some time between the date of the deed and its record.®® Nor the words "to me to be the person whose name is subscribed to the foregoing in- strument" after the expression "to me well known" had been used.^^ Nor is the omission of the words "to be the person whose name is subscribed to the fore- going instrument" fatal. *^^ N'or is it necessary for the 03 Farrell v. Palestine Loan Assn. (Tex. Civ. App.), 30 S. W. 815; Adams v. Pardue (Tex. Civ. App.), 3G S. W. 1017; Gray v. KauJBeman; 82 Tex. 65, 17 S. W. 513; Talbert v. Dull, 70 Tex. 678, 8 S. W. 530. 94 Gray v. Kauffman, 82 Tex. 69, 17 S. W. 513. 95 Married women, see post, §§ 309-312. "Proof of Instruments for Eecord, " chapter 12. 96 Talbert v. Dull, 70 Tex. 675, 8 S. W. 530. 97 Stephens v. Motl, 81 Tex. 119, 16 S. W. 731; Sowers v. Peter- son, 59 Tex. 219; Monroe v. Arledge, 23 Tex. 480. 98 Butler v. Brown, 77 Tex. 344, 14 S. W. 136. 98a Webb V. Huff, 61 Tex. 678. 99 Sloan V. Thompson, 4 Tex. Civ. App. 426, 23 S. W. 613. 100 Watkins v. Hall, 57 Tex. 3; Sloan v. Thompson, 4 Tex. Civ. App. 419, 23 S. W. 613; Hill v. Smith, 6 Tex. Civ. App. 312, 25 S. W. 1079. ' 101 Schramm v. Gentry, 63 Tex. 583. 6 §§ 173, 17-i CERTIFICATE OF ACKNOWLEDGMENT. 82 certificate to certify that the seal is attached. ^^^ Nor to certify that it was "Given under my hand and seal, etc."^*^ Omission of "sealed and delivered" not fatal if seal be attached. ^^* Nor is the omission of the word "ofiicial" before seal material. -^^^^ Nor is the omission of the word "fully" before explained. -"^^^ The omission of "known to me" in a certificate previous to Septem- ber 1, 1879, was not fatal; since that date, it is.^^'' Failure to state the official character of the officer is fatal.^*^^ The omission of "her" before "act and deed" is not fatal.^^^ § 173. Errors and Omissions Fatal. — ^But the omission of the statement that the "grantor acknowledged the execution of the instrument" is fatal. -"^-^^ Also is the omission of "he" in the clause "and acknowledged to me that he executed the same" fatal.-'^-'^^ Also is the use of "he" for "they" in a certificate where there are both sexes. **^ D. PAEOL EVIDENCE. § 174. To Aid Certificate not Admissible, When. — Prior to the adoption of the Revised Statutes of 1879, defec- tive certificates of acknowledgment could not generally be aided by parol evidence, though the decisions seem to be somewhat at variance. For instance, it is held that parol evidence is not admissible to show the official 102 Webb V. Hufle, 61 Tex. 678. 103 Webb V. Huff, 61 Tex. 678; Nichols v. Stewart, 15 Tex. 235. 104 Mullens v. Weaver, 57 Tex. 5. 105 Monroe v. Arledge, 23 Tex. 480. 106 Monroe v. Arledge, 23 Tex. 480. 107 See ante, § 141. 108 See ante, § 136. 109 Gray v. Kauffman, 82 Tex. 69, 17 S. W. 513. 110 Heintz v. O'Donnell, 17 Tex. Civ. App. 21, 42 S. W. 798. 111 Huff V. Webb, 64 Tex. 285. 112 Threadgill v. Bickerstoff, 7 Tex. Civ. App. 406, 26 S. W. 741. See Livingston v. Kettelle, 41 Am. Dec. 174, 176, note. 83 OF SINGLE PEESONS. §§ 176, 177 character of the officer taking the acknowledgment, it not appearing on the face of the instrument/*^ Nor that a deed was voluntarily executed by the wife, the of- ficer's certificate not showing that there had been a privy examination and acknowledgment.*** Nor are the ad- missions of a married woman admissible to show a con- veyance or sale of her property.**^ While a notary's testimony was admissible to cure the certificate of ac- knowledgment where the seal had been omitted, so as to validate the registration, and be notice.**® And it was held that it was error to allow the officer taking the ac- knowledgment to explain his mistake or vary his cer- tificate.**'' § 176. Admissible, When. — But parol evidence was held to be admissible to aid the certificate by shomng that the seal of the officer was undesignedly omitted.*** And it is held that parol evidence is admissible to prove that the signature to the deed, "J. M. W.," and the name in the certificate of acknowledgment, "James M. W.," were the same persons, and were intended for "Jasper M. W."**^ An officer may testify that he took the acknowledgment.*^^ § 177.- To Correct Imperfect Certificate of Valid Acknowl- edgment. — After the adoption of the Kevised Statutes 113 Stone V. Sledge (Tex. Civ, App.), 24 S. W. 697; Looney v. Adamson, 48 Tex. 619. 114 See post, § 177. 115 Bailey v. Trammel, 27 Tex. 328. 116 King V. Kussell, 40 Tex. 130. 117 McKeller v. Peck, 39 Tex. 382. See, also, Smith v. Ward, 2 Root, 378, 1 Am. Dee. 80, and note; Watson v. Lessee, 1 Binn. 470, 2 Am. Dec. 462; Jourdan v. Jourdan, 9 Serg. & E. 268, 11 Am. Dec. 724. 118 Nichols V. Stewart, 15 Tex. 235. And see Nichols v. Gordan, 25 Tex. Supp. 112. 119 Cheek v. Herndon, 82 Tex. 148, 17 S. W. 763. 120 Cassidy v. Scottish Am. Mort. Co., 27 Tex. Civ. App. 211, 64 S. W. 1031. §§ 178-180 CEETIFICATE OF ACKNOWLEDGMENT. 84 of 1879, parol e\idence was admissible to correct an im- perfect or defective certificate of a valid acknowledg- ment when suit was brought for that purpose. ^^* § 178. Idem. — The statute in effect provided that when the acknowledgment or proof of the execution of any instrument in writing may be properly made, but defectively certified, any party interested may have an action in the district court to obtain a judgment cor- recting the certificate. And any person interested un- der any instrument in writing entitled to be proved for record may institute action in the district court against the proper parties to obtain a judgment proving such instrument. *^^ § 179. Idem — Where an action is brought under the above statute parol evidence is admissible to prove that there was a valid acknowledgment for the purpose of correcting the defective certificate of same. Even a married woman's deed properly acknowledged, but de- fectively certified, is not void, but may be corrected by such suit, and parol evidence is admissible to prove such valid acknowledgment.*^^ This act acts pros- pectively as well as upon a pre-existing cause; it cre- ates no right, but only a new remedy — a means of proof; it creates no deed (the acknowledgment being the essence of a married woman's deed), but only an- other rule of evidence of it, or a method of establishing that w^hich already existed, and is constitutional.*^* § 180. Limitation.- — Parol evidence is admissible to correct a defective certificate of a valid acknowledg- ment, but such cause of action would be barred by the four year statute of limitations.*^^ 121 Post, §§ 1000-1005. 122 Eev. Stats. 1879, nrts. 4353-4356; post, §§ 1053-1057. 123 Johnson v. Taylor, 60 Tex. 361. 124 Johnson v. Taylor, 60 Tex. 361. 125 Norton v. Davis, 83 Tex. 32, 18 S. W. 430; Simpson v. Edens, 85 OF SINGLE PERSONS. §§ 181, 182 § 181. Where Acknowledgment Itself is Defective, Parol Evidence Inadmissible. — But where the acknowledgment itself, for any cause, is invalid, parol evidence is inad- missible to correct it, as where the acknowledgment is invalid because it is made before an officer who is an interested party — i. e., having stock in a building and loan association which is the grantor— it cannot be re- formed nor corrected. ^^^ Neither can the acknowledg- ment of a married woman taken by the husband of the grantor be cured by such action.*^'' § 182. Parol Evidence — Inadmissible, When. — Where the certificate appears regular on its face, parol evi- dence is inadmissible to impeach it for fraud, imposi- tion or mistake, unless the vendee had notice of the fraud, imposition or mistake, or was not a purchaser for value. Before such certificate can be impeached, it must be shown that the grantee had notice of the fraud, imposition or mistake, or that the circumstances were such as should have impelled him to inquiry which he neglected.^^^ That is, if the grantee paid a valuable consideration.*^ The certificate of acknowledgment is conclusive of the facts therein stated where the con- duct of the grantee is in good faith, and he pays a val- uable and adequate consideration for the land.*'"^^ And a pre-existing deed is such valuable consideration as 14 Tex. Civ. App. 235, 38 S. W. 476; Starnes v. Beitel, 20 Tex. Civ. App. 524, 50 S. W. 202; Silcock v. Baker, 25 Tex. Civ. App. 508, 61 S. W. 939. 126 Bexar etc. Assn. v. Heady, 21 Tex. Civ. App. 154, 50 S. W. 1081, 57 S. W. 583. 127 Silcock V. Baker, 25 Tex. Civ. App. 508, 61 S. W. 939. 128 Wiley V. Prince, 21 Tex. 637; Pool v. Chase, 46 Tex. 207; Pierce v. Fort, 60 Tex. 464. 129 Williams v. Pounds, 48 Tex. 141; Davis v. Kennedy, 58 Tex. 517; Cole v. Bammel, 62 Tex. 112. 130 Waltee v. Weaver, 57 Tex. 569; Webb v. Burney, 70 Tex. 325, .7 S. W. 841; Davis v. Agnew, 67 Tex. 210, 2 S. W. 43, 376; Stallings V. HuUum, 79 Tex. 421, 15 S. W. 677. §§183,184 CEETIFICATE OF ACKNOWLEDGMENT. 86 will sustain the deed.^^^ The certificate of acknowl- edgment of a married woman is conclusive in the ab- sence of fraud in the parties thereto. *^^ And the grantee must be a party to the fraud or it is not avail- able.*^^ A grantor claiming that he was misinformed that a deed was a mortgage by the interpreter, and not alleging fraud on the part of the grantee, was concluded by the certificate of acknowledgment, that doctrine be- ing well established.*^* § 183. Want of Capacity in Officer cannot he Shown. — If the certificate appears regular on its face and from the instrument attached, parol evidence is inadmissible to show want of capacity in the officer making the cer- tificate, or that he was not acting within the sphere of his duty;*^^ or that he had an interest in the land; or that he held at the time an incompatible oflfice;*^*^ or that he was acting without his jurisdiction or in the wrong county;*^'' or that the acknowledgment was not properly taken.*^* § 184. Parol Evidence to Impeach Certificate Admissible, When — May Show No Acknowledgment Made. — But the cer- tificate of acknowledgment does not preclude a party 131 Freiberg v. De Lamar, 7 Tex. Civ. App. 263, 27 S. W. 151; Webb V. Burney, 70 Tex. 325, 7 S. W. 841. 132 Hartly v. Frosh, 6 Tex. 208, 55 Am. Dec. 772; Adams v. Pardue (Tex. Civ. App.), 36 S. W. 1017; Summers v. Sheern (Tex. Civ. App.), 37 S. W. 246. 133 Shelby v. Burtis, 18 Tex. 645; Henderson v. Terry, 62 Tex. 282. 134 Herring v. White, 6 Tex. Civ. App. 249, 25 S. W. 1017; Sum- mers V. Sheern (Tex. Civ. App.), 37 S. W. 246; Gray v. Shelby, 83 Tex. 407, 18 S. W. 809; Atkinson v. Bead (Tex. Civ. App.), 49 S. W. 262. 135 Titus V. Johnson, 50 Tex. 240. 136 Coffey V. Hendricks, 66 Tex. 679, 2 S. W. 47. 137 Coffey V. Hendricks, 66 Tex. 679, 2 S. W. 47; Peterson v. Lowry, 48 Tex. 412. 138 Forbes v. Thomas (Tex. Civ. App.), 51 S. W. 1097; Hurst v. Finley (Tex. Civ. App.), 54 S. W. 1072, 87 OF SINGLE PERSONS. §§ 185-187 from showing that no acknowledgment was made by him, and the fact that he stated to an officer that he had executed the deed is not such an acknowledgment as is contemplated by law, unless he appeared before the officer and acknowledged its execution for the pur- poses of giving it authenticity.*^^ § 185. Where Purchaser is Chargeable With Notice, etc. A married woman's deed may have the proper certifi- cate of acknowledgment and yet be avoided by her if the certificate does not speak the truth, or the deed of acknowledgment was obtained by fraud or force, pro- vided the purchaser is charged with notice of these facts before the purchase money is paid."^ But if she never appeared before the officer, or attempted to ac- knowledge the same, his false certificate will be void and this may be shown by parol evidence, the officer having no more right to certify to an acknowledgment unauthorized than to forge her name.*** § 186. Burden of Proof — ^Where Seeking to Defeat Cer- tificate. — The doctrine is well established in this state that where a party seeks to impeach a certificate of ac- knowledgment on account of fraud, mistake or imposi- tion, the burden of proof is also upon him to show that these facts were known to the grantee, or that he was not a purchaser for value. § 187. Idem. — For instance, it is held that a married woman cannot defeat her deed by showing that she did not understand it or that the officer did not properly explain it to her, unless she also show that these facts were known to the grantee.**^ In another case the 139 Breitling v. Chester, 88 Tex. 589, 32 S. W. 527. 140 Cole V. Bammel, 62 Tex. 112; Davis v. Kennedy, 58 Tex. 516; Miller v. Yturria, 69 Tex. 552, 7 S. W. 206. 141 Wheelock v. Cavett, 91 Tex. 682, 66 Am. St. Eep. 920, 45 S. W. 796; Breitling v. Chester, 88 Tex. 589, 32 S. W. 527. 142 Miller v. Yturria, 69 Tex. 552, 7 S. W. 206. §§ 188, 189 CERTIFICATE OF ACKNOWLEDGMENT. 88 court holds that had there been evidence sufficient to show that grantee had notice of the imposition on the wife she could have recovered, thus throwing the bur- den on her to prove the notice to the grantee. ^*^ In another case it was held that the wife's testimony was inadmissible to show imposition, etc., because it was not shown that the grantor had notice of the imposition.*** In another case it was held that where Mrs. C, as a witness for herself, testified over objection of appellant that the officer who took the acknowledgment to the deed to Henderson told her at the time that it was a deed of trust; that he had not read over the deed and explained it to her. There was no pretense that Hen- derson knew anything of the statements of the officer to Mrs. C, or that he was aware of any omissions of duty upon the part of the officer in taking the acknowl- edgment. Under the case presented it is very clear that the evidence ought not to have been admitted.**^ § 188. Burden of Proof in Case of Equitable Titles. — The distinction should also be borne in mind between an equitable title or claim and a legal title. It is well es- tablished that the burden of proof is upon the party as- serting the prior equitable title to show either that the owner of the legal title knew of the prior equities or that he did not pay a valuable consideration for same.*** § 189. Burden of Proof in Case of Legal Titles. — But where a junior purchaser of the legal title seeks to de- 143 Edwards v. Dismukes, 53 Tex. 605. 144 Adams v. Pardue (Tex. Civ. App.), 36 S. W. 1017; Poole v. Chase, 46 Tex. 207. 145 Henderson v. Terry, 62 Tex. 282. See, also, Pierce v. Fort, 60 Tex. 471; Waltee v. Weaver, 57 Tex. 569. 146 Halbert v. De Bode, 15 Tex. Civ. App. 615, 40 S. W. 1011; Biggerstaff v. Murphy, 3 Tex. Civ. App. 363, 22 S. W. 768; Texas Loan Agency v. Taylor, 88 Tex. 50, 29 S. W. 1057; Barnes v. Jamison, 24 Tex. 365; Peterson v. McCauley (Tex. Civ. App.), 25 S. W. 829; Hill v. Moore, 62 Tex. 610; Lewis v. Cole, 60 Tex. 341. 89 OF SINGLE PERSONS. §§190,191 feat a prior unrecorded legal title on the ground of want of notice, it devolves upon the junior purchaser to prove that he was an innocent purchaser and for value. It is well settled that one who seeks to postpone a prior title upon the ground that he has acquired a subsequent title for value without notice has the burden of proving both those facts.^*'' And in Rogers v. Pet- tus, cited, it is held that there is no presumption from lapse of time, in the absence of proof that the second grantee paid a valuable consideration or bought with- out notice, but on his death the presumption would be that he bought without notice of the prior deed.*^^ § 190. Secondary Evidence Admissible, When. — Where the deed and certificate of acknowledgment are lost or destroyed, secondary or parol evidence is admissible to show a copy of the original deed or certificate of ac- knowledgment.**® And circumstantial evidence is ad- missible for such pui'pose. 150 § 191. Amendment of Certificate*^*— By Officer.— The question as to whether or not an ofiicer who correctly takes the acknowledgment of a single person, but by 147 lilies V. Frerichs, 11 Tex. Civ. App. 575, 32 S. W. 915; Olcott V. Ferris (Tex. Civ. App.), 24 S. W. 850; Bremer v. Case, 60 Tex. 151; Harrison v. Boring, 44 Tex. 263; Eogers v. Pettus, 80 Tex. 426, 15 S. W. 1093; Watkins v. Edwards, 23 Tex. 447; Rogers v. Burchard, 34 Tex. 453, 7 Am. Rep. 283; Hamman v. Krigwin, 39 Tex. 42; Jack- son V. Waldstein, 10 Tex. Civ. App, 156, 30 S. W. 47. 148 lilies v. Frerichs, 11 Tex. Civ. App. 575, 32 S. W. 915. 149 Grain v. Huntington, 81 Tex. 614, 17 S. W. 243; Daniels v. Cheekmore, 7 Tex. Civ. App. 573, 27 S. W. 148; Bounds v. Little, 75 Tex. 316, 12 S. W. 1109; Blanton v. Ray, 66 Tex. 61, 17 S. W. 264; Overand v. Menczer, 83 Tex. 130, 18 S. W. 301; Johnson v. Luford, 9 Tex. Civ. App. 85, 29 S. W. 57; Newby v. Haltaman, 43 Tex. 314; Simpson v. Edens, 11 Tex. Civ. App. 235, 38 S. W. 476. 150 Baylor v. Tillback, 20 Tex. Civ. App. 490, 49 S. W. 721; Cox V. Rust (Tex. Civ. App.), 29 S. W. 807; Heintz v. Thayer, 92 Tex. 658, 50 S. W. 930. 161 See "Curing Defective Acknowledgments," post, § 992, etc. §§194-196 CERTIFICATE OF ACKNOWLEDGMENT. 90 mistake or accident fails to make a proper certificate of it, may at any time amend his certificate so as to make it state the facts as they really were, seems to have been settled in the affirmative in this state. ^^^ E. CERTIFICATE AS EVIDENCE. § 194. Not Evidence of Execution of Deed — While in most states the certificate of acknowledgment is evi- dence, and in some states conclusive evidence of the ac- knowledgment and execution of the instrument and ren- ders it admissible in evidence without other proof of its execution,^^^ a different rule has been adopted in Texas. ^^^ § 195. Idem.— Article 2309 of the Revised Statutes of 1895, which has been in force since June 22, 1846,^®® provided that "all declarations and protests made and acknowledgments taken by notaries public, and certi- fied copies of their records and official papers, shall be received as evidence of the facts therein stated, in all the courts of this state." Our courts have held, even where the acknowledgment was taken by a notary pub- lic, that the certificate of acknowledgment was not in- tended to prove the execution of the deed, but to pre- pare it for record.*®^ § 196. Admissible to Prove Protest — Under this section it was held, however, that a notary's certificate of pro- test was admissible in evidence to prove the protest. 167 152 See chapter 28. 153 1 Am. & Eng. Ency. of Law, 2d ed., p. 555. 154 McFadden v. Preston, 54 Tex. 407; Wiggins v. Fleishel, 50 Tex. 57; CoflPey v. Hendricks, 66 Tex, 677, 2 S. W. 47. 155 2 L. T. 1649, 156 McFadden v, Preston, 54 Tex, 407; Wiggins v, Fleishel, 50 Tex. 57; Coffey v, Hendricks, 66 Tex. 677, 2 S. W, 47, See Emanuel V. Gates, 53 Fed. 775. 157 Pyron v. Butler, 27 Tex. 271. 91 OF SINGLE PEESOXS. §§ 197-199 § 197. Validates the Deed It is held that where grantor requests officer to certify, as he did, that he signed, executed and deliyered the deed, this validates it, even though it is not written nor signed by the grantor, under the law in force prior to ISTO.-*^^^ § 198. Protocols and Copies Admissible on Certificate, When. — Prior to the act of December 20, 1836, protocols and the copies of same issued by the notary to the pur- chaser as evidence of his title, called testimonios, or sec- ond originals, were admissible in evidence without other proof of execution than the officer's certificate/^^ The testimonio is not a copy, but second original, and at the time it was executed it would have been evidence of the sale without other proof.^^^ § 199. Copies of Archives Admissible After the act of December 20, 1836, the rule was changed. Section 33 of this act required protocols to be deposited with the county clerk and made them public archives, and cer- tified copies of them made by the county clerk having proper custody of same would be admissible in evidence, and of record, if the protocol was authentic. *^^ But if the protocol has passed into the hands of the grantee he might have no doubt proven it up for record and had it recorded, and it would have been admissible in evi- dence. *^^ 158 Newton v. Emerson, 66 Tex. 145, 18 S. W. 348. 159 McKissick v. Colquhoun, 18 Tex. 152; Hall's Mexican Laws, 1556; Sayles' Early Laws, arts. 25, 71, 127, 128; Smith v. Townsend, Dall. 570. 160 Gainer v. Cotton, 49 Tex. 114. See ante, § 25. 161 Hutchings v. Bacon, 46 Tex. 415; McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100; Gainer v. Cotton, 49 Tex. 114; Beaumont Pasture Co. v. Preston, 65 Tex. 456; Wood v. Welder, 42 Tex. 408. Ante, § 5. 162 Gainer v. Cotton, 49 Tex. 114; McKissick v. Colquhoun, 18 Tex. 148. See ante, § 25. §§200-202 CERTIFICATE OF ACKNOWLEDGMENT. 92 § 200. Copies from Foreign Jurisdictions. — Where the original protocol is iu the archive of a foreign or former iiovernment, tcstimonios thereof are not admissible without some proof of execution or evidence of their genuineness, otherwise a door would be open to fraud, as the original would be without the jurisdiction of our courts. ^*^^ A later case holds that a testimonio, or copy of the protocol made by a notary in the state of Lou- isiana, duly i)roven was not admissible in evidence ow ing to its being a copy.*^^ But a certified copy of a protocol which is a foreign archive, is held to be admis- sible.***^ § 201. After Act of December 20, 1836, Proof of Execu- tion Required. — Section 37 of said act of December 20, 1836, required owners of testimonios and other evi- dences of title to have them proven and recorded, and after this act was passed testimonios and other colors of title were not admissible in evidence without proof of execution,^®*' and that want of proof will not be cured by time.^^'' Simply the acknowledgment of his signature to the certificate on the testimonio by the officer who executed the same before the county clerk is sufficient to admit the testimonio to record, has been too long and well established by this court for question. ^^ § 202. Copies Filed Prior to February, 1837, Admissible When.— The act of May 13, 1846, taking effect June 163 Word V. McKinney, 25 Tex. 268; De Leon v. White, 9 Tex. 600; Lambert v. Weir, 27 Tex. 364. 164 Frost V. Wolf, 77 Tex. 459, 19 Am. St. Eep. 761, 14 S. W. 440. 165 Williams v. Conger, 49 Tex. 600. And ante, §§ 25, 33. 166 Wood V. Welder, 42 Tex. 408. 167 Hatchett v. Conner, 30 Tex. 108; Hutcliins v. Bacon, 46 Tex. 415. 168 Gainer v. Cotton, 49 Tex. 114; Edwards v. James, 7 Tex. 372; Beaty v. Whitaker, 23 Tex. 256; McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100. But see Frost v. Wolf, 77 Tex. 459, 19 Am. St. Rep. 761, 14 S. W. 440, above referred to. 93 OF SINGLE PEESONS. §§ 203, 204 22(j^i6» provided "that copies of all conveyances and other instruments of writing between private individ- uals, which were filed in the office of any alcalde or judge in Texas, previous to the first Monday in Febru- ary, 1837, shall be admitted as evidence in like manner as the originals; provided such copies shall be certified to under the hand and seal of the officer with whom such conveyance and instrument of writing are now depos- ited." § 203. Idem. — Under this act a certified copy of a sale before the alcalde of Austin, certified by the county clerk of Austin county, was held admissible.^'^*^ The instrument must have been executed with all the forms necessary to constitute it an authentic act.*''^ It is not void because it wants the signature of the officer if it is shown that the officer wrote the same in a book and signed, as was his custom, at the end of the book.-'^'^^ Testimonios which were delivered to the parties seem to have been repudiated by this act.^''^ And it was held that a deed executed before a notary in Matamoras in 1828 and filed in the archives of Austin's colony in 1829 does not come within the provisions of this act.-^"* § 204. Copy of Deed not Properly Acknowledged not Ad- missible as Ancient Instrument. — An ancient instrument after thirty years will be admissible in evidence with- out proof of execution if it comes from such custody as will not be suspicious,^'^ but no time will render ad- missible as an ancient instrument a certified copy of a deed which was not properly acknowledged.*'^^ 169 2 L. T. 1694. 170 Hubert v. Bartlett, 9 Tex. 102. 171 Andrews v. Marshall, 26 Tex. 216; York v. Gregg, 9 Tex. 85. 172 Andrews v. Marshall, 26 Tex. 216; Titus v. Kimbro, 8 Tex. 210. 173 Titus V. Kimbro, 8 Tex. 221. 174 Lee V. Wharton, 11 Tex. 74. 175 Parker v. Chancellor, 73 Tex. 475, 11 S. W. 503. 170 Hill V. Taylor, 7 Tex. 295, 14 S. W. 366. §§205-207 CERTITICATE OF ACKNOWLEDGMENT. 94 ^ 205. Certificate of Acknowledgment Proven by Second- ary Evidence. — Where the certificate of acknowledgment and deed are lost they may be established by parol or circumstantial evidence.^'"'' F. CEETIFICATE OF MAGISTEACY AND CONFOKMITY. § 206. Generally. — As a general rule certificates of magistracy and conformity are not necessary to the va- lidity of a certificate of acknowledgment and proof, un- less it is required by statute.^''* § 207. Required in Texas, When. — The first act in Texas requiring certificates of magistracy and conform- ity was that of February 5, 1841.*^'* It provided that if the instrument is executed abroad it "shall be ac- knowledged or proved by two subscribing witnesses, before any circuit or supreme judge or chancellor of the United States of America, certified by him with the certificate of the chief magistrate of the United States, as to the official character of him taking the acknowl- edgment, or probate; and the great seal of the United States thereto annexed, or if so acknowledged or proven before any judge of a supreme court of record, or in any such court of any other nation or kingdom, and certified by such judge, or the record thereof exempli- fied, and either so counter certified by the chief magis- trate or sovereign of such other nation or kingdom, un- der the great seal ; or by the consul of this republic, or minister resident there; the same shall be admitted to record, and shall be good and effectual, as aforesaid, from and after registration." 177 Grain v. Huntington, 81 Tex. 614, 17 S. W. 243; Clapp v. Engledow, 82 Tex. 296, 18 S. W. 146; Baylor v. Tilleback, 20 Tex. Civ. App. 490, 49 S. W. 721; Cox v. Eust (Tex. Civ. App.), 29 S. W. 807; Heintz v. Thayer, 92 Tex. 658, 50 S. W. 930, 51 S. W. 640. 178 1 Century Digest, 1000. 179 2 L. T. 631. 95 OF SINGLE PEESONS. §§ 208-211 § 208. Remained in Force How Long. — This act re- mained in force until July 13, 1846/®** when the act of May 12, 1846, took, effect. The certificate of conform- ity required under the former act was not required un- der the latter; such certificate was not necessary.*®^ § 209. Not Required Thereafter — It seems that no sub- sequent statute has required certificates of magistracy and conformity. G. CEETIFICATES MUST BE IN COMPLIANCE WITH LAWS OF TEXAS. § 210. Foreign Officer Must be Authorized by Laws of Texas. — Unless an of&cer in a foreign country is author- ized to take acknowledgments by the statutes of Texas, his certificate is not aided by a certificate showing that he was authorized by the laws of the foreign state to take the acknowledgment. Certificates must be in com- pliance with laws of Texas. *®^ H. CONCLUSIVENESS OF CEETIFICATE OF ACKNOWLEDG- MENT. § 211. Conclusive When. — If the grantor appears before the ofiacer for the purpose of acknowledging instrument and attempts to acknowledge it, and the offlcer makes a certificate of same, and the grantee without notice of any imposition on the grantor, relying on the recita- tions in the certificate, paid a valuable consideration for the property, the certificate will be conclusive of the facts therein recited, even though the acknowledg- ment may not have been properly taken. 183 180 2 L. T. 1549. 181 Texas Land Co. v. Williams, 51 Tex. 59; Carpenter v. Dexter, 75 U. S. (8 Wall.) 513, 19 L. ed. 426. 182 Sartor v. Bolinger, 59 Tex. 411; ante, § 68, 183 See post, §§ 319-324. §§ 212-214 CEETIFICATE OF ACKNOWLEDGMENT. 96 § 212, Conclusive as to Capacity of Officer, etc. — It is also held that the certificate is conclusive as to the capacity of the officer making the certificate when the same appears, and that extrinsic evidence is not admis- sible to show that the officer was not acting within the sphere of his duty^®* nor that he had an interest in the land, nor that he held at the time an incompatible office,^^^ nor that he was acting without his jurisdic- tion, nor in the wrong county ,*^^ nor that the acknowl- edgment was imperfectly taken. ^®'' Neither should an officer taking the acknowledgment be allowed to explain his mistake nor vary his certificate.*^* But such officer is a competent witness to prove that it was properly taken, in a suit brought for the purpose of correcting the certificate under articles 4353 to 4356, inclusive, of the Revised Statutes of 1879.**^ Previous to this act a notary's testimony Avas not admissible to cure the cer- tificate where the seal had been omitted, so as to vali- date the registration.*^® But under the Spanish law the certificate was not conclusive.*^* § 213. Not Where the Grantor Never Attempted to Ac- knowledge It — But if the grantor never appeared before the officer for the purpose of acknowledging the instru- ment, nor attempted to acknowledge it, the certificate would be void and could be impeached. *^^ § 214. Nor Unless Grantee is an Innocent Purchaser for Value — The certificate might also be impeached in case 184 Titus V. Johnson, 50 Tex. 240. 185 Coffey V. Hendricks, 66 Tex. 679, 2 S. W. 47. 186 Coffey V. Hendricks, 66 Tex. 679, 2 S. W. 47; Peterson v. Lowry, 48 Tex. 412. 187 Forbes v. Thomas (Tex. Civ. App.), 51 S. W. 1097; Hurst v. Pinley, 22 Tex. Civ. App. 605, 54 S. W. 1072. 188 McKeller v. Peck, 39 Tex. 382. 189 Norton v. Davis, 83 Tex. 36, 18 S. W. 430. 190 King v. Eussell, 40 Tex. 130. 191 Sayles' Early Laws, art. 128, §§ 11, 12. 192 Breitling v. Chester, 88 Tex. 589, 32 S. W. 527. 97 OF SINGLE PEESONS. §§ 215-218 of fraud or imposition on the grantor, if it were known to the grantee, or if he did not pay a valuable consider- ation.^^^ § 215. Presumptions. — Where the certificate of ac- knowledgment attached to an instrument fails to com- ply with the law, in that it omits to state that the grantor acknowledged the deed, lapse of time cannot raise the presumption of acknowledgment, so as to ren- der the record of the deed legal.^*** L CEETIFICATE AS NOTICE. § 216. Notice. — The certificate of acknowledgment is notice of the facts certified therein to all persons claim- ing under it.^^ J. FOEM AND EEQUIEEMENTS OF CEETIFICATE. ^ 217. Must Comply With Law in Force at Time Certificate is Made. — The form and substance of certificates of ac- knowledgments and proof are controlled by the statutes in force at the time the certificate of acknowledgment was made.^^** But if a certificate is invalid at the time it is made, subsequent laws adopting the form used will not cure it.^®'' § 218. A Substantial Compliance With Statute is All that is Required. — While our statutes, except the earlier ones, provide forms to be used for certificates, their use is not essential to valid certificates if the certificates con- tain all that is necessary to show a valid acknowledg- 193 See ante, §§ 182-185. 194 Heintz v. O'Donnell, 17 Tex. Civ. App. 21, 42 S. W. 797. 195 Green v. Hugo, 81 Tex. 457, 26 Am. St. Eep. 824, 17 S. W. 79. See ante, § 66. 196 Rev. Stats. 1895, art. 4661. See the statutory provisions, §§ 220-238. 197 Texas Land Co. v. Williams, 51 Tex. 51. 7 §§219,220 CERTIFICATE OF ACKNOWLEDGMENT. 98 ment. No material fact should be omitted, while a sub- stantial compliance with the statute is sufficient.^^^ The certificate must afford substantial evidence of the requisite acknowledgment or proof. ^^® K. FOEM AND REQUIREMENTS UNDER THE DIFFERENT STATUTES. § 219. Prior to Act of December, 1836. — Previous to the registration act of December 20, 1836, no certificate of acknowledgment or proof was required. Conveyances of real property were made by a notary writing the con- veyance in a register which was signed by the parties, the notary and subscribing witnesses. This original deed written in the register was called the protocol, a copy of which protocol, called the testimonio or second original, was delivered to the purchaser as evidence of his title. The protocol being a public instrument, there was no other registration of same.^^® Failure by no- tary in 1835 to note the instrumental witnesses did not render the instrument void.^**^ § 220. Act of December 20, 1836 The act of Decem- ber 20, 1836 (taking effect from passage),^^ provided no form of certificate nor the substance of what it should contain.^**^ Under this act there is some ob- scurity as to when and what certificates are required. Section 34 authorized chief justices of the county court to receive proofs and acknowledgments, and attest the same under their seals of office. Section 35 provided 198 Deen v. Wills, 21 Tex. 646; Monroe v. Arledge, 23 Tex. 480; Belcher v. Weaver, 46 Tex. 294, 26 Am. Rep. 267; Talbert v. Dull, 70 Tex. 675, 8 S. W. 530; Johnson v. Thompson (Tex. Civ. App.), 50 S. W. 1057. 199 Holliday v. Cromwell, 26 Tex. 188. See Livingston v. Kettelle, 41 Am. Dec. 168, note. 200 See ante, § 3. 201 Cowan v. Williams, 49 Tex. 395; Clay v. Holbert, 14 Tex. 203. 202 1 L. T. 1215. 203 See post, § 410 (§§ 34, 35), § 412 (§ 38), § 357. 99 OF SINGLE PEESONS. §§221,222 that proof or acknowledgment shall be certified by the clerk and form part of the record. Section 38 provides that proof may be made before a county judge or clerk, and that the certificate of a county judge that proof was made shall entitle the deed to registration. But it does not provide that a certificate shall be made where the proof is made before the county clerk. § 221. Certificate Required, When It is clear under the above act that where the proof or acknowledgment is made before any ofiicer except a county clerk, it must be shown by a certificate of such officer, to entitle it to registration.^*** § 222. Certificates by County Clerks Required, When. — It is not so clear, however, that a certificate of acknowl- edgment or proof is indispensable under this act where the acknowledgment or proof is made before the county clerk. When the grantor or witness appears before the clerk and acknowledges or proves the deed, sec- tion 35 makes it the duty of the clerk to do two things: 1. To record the deed; 2. To certify to the acknowledgment or proof which shall form part of the record. Section 38 does not provide for certificate by the clerk. In the case of Holliday v. Cromwell, 26 Tex. 189, the attorney for appellees insisted that under the act of December 20, 1836, where the clerk admitted an instrument to record, it would be presumed that it was acknowledged or proved before him in the absence of a certificate to that effect.^^^ The deed was recorded in June, 1841. The court, in discussing the acts of Decem- ber 20, 1836, and January 19, 1839, says : "The laws in force at that time concerning the registration of deeds required the acknowledgment or some proof of their execution ; or, where the original remained in the public 204 Flemming v. Keed, 37 Tex. 152. 205 Citing Paschal v. Perez, 7 Tex. 357, 358; Secrest v. Jones, 21 Tex. 123. § 222 CEETIFICATE OF ACKNOWLEDGMENT. 100 archives, a certificate of the keeper thereof, to authorize admitting them to record.'^ And the act of January 19, 1839, required tliat a certificate of the acknowledg- ment or proof be made upon the instrument, and be- come part of the record." This case holds that under the act of January 19, 1839, a certificate was required, but it leaves it undecided as to whether or not a cer- tificate by the clerk was indispensable under the act of December 20, 1836. Wood v. Welder, 42 Tex. 409, is to the same effect. In the case of McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1098, cited by Jus- tice W^illiams, holding a certificate of authentica- tion necessary to entitle to registration, it will be no- ticed that the deed was first recorded in Austin county in the Spanish records in 1838, and again in Harris county, where the land was located, in 1848, without certificate of acknowledgment or proof in either case. If it had been properly proven it could not have been properly recorded in Austin county, where the land did not lie, and the fact that it was recorded there could afford no presumption that it was properly proved be- fore the clerk in 1838, in the absence of a certificate. Again, when it was recorded in Harris county in 1848, a certificate was clearly required under the law then in force. This case seems not to be decisive of the neces- sity of certificates by the clerk under the act of 1836. It is well settled that proof or acknowledgment, or a certificate of the keeper of an archive, is necessary to entitle the instrument to registration, under the act of December 20, 1836,^**'^ but we have found no case holding, where a deed is recorded by a county clerk un- der the acknowledgment of 1836, without certificate of authentication, that it was improperly recorded.^^* 206 H. D., arts. 2752, 2755, 2760, 2761, 2768. 207 Holliday v. Cromwell, 26 Tex. 194; McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100; Gainer v. Cotton, 49 Tex. 115. 208 See Paschal v. Perez, 7 Tex. 357, 358; Edwards v. James, 7 Tex. 377; also Waters v. Spofford, 58 Tex. 121; Wilson v. Simpson, 80 Tex. 279, 16 S. W. 40. But see ante, § 66. 101 OF SINGLE PEESONS. §§ 223-226 This act was repealed by act of January 19, 1839, in so far as it authorized proof by any except subscribing witnesses.^^^ § 223. Acknowledgment of Signature of Officer Sufficient. Under section 35 it is held that if the officer who exe- cuted the protocol and who had issued to the interested party the copy or second original appeared before the county register and acknowledged his signature to the certificate authenticating the testimonio, it would be sufficient to have authorized its record.^^** § 224. Proof of Signature of Single Witness Sufficient.— It is also held that this section contemplates proof or acknowledgment of the signature of the signer. But that section 38, in some contingencies, would be satis- fied by the proof of the signature of a single witness.^^* It is not requisite in all cases that the proof of an in- strument for record should be made by a subscribing witness. Besides, the officer authenticating the instru- ment may prove it as a subscribing witness.^^^ § 225. No Seal Necessary, When. — It seems that where the acknowledgment or proof was made before the county clerk in whose office the instrument was to be recorded, or before the court, no seal was necessary to its authentication.^^^ § 226. When Grantor is Known to Officer it is not Neces- sary to be Certified — It was not necessary for the certifi- cate to certify under this act that the person acknowl- edging the instrument was known to the officer.^^* A 209 McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100. 210 Edwards v. James, 7 Tex. 377. 211 McKissick v. Colquhoun, 18 Tex. 152. 212 McKissick v. Colquhoun, 18 Tex. 152. 213 Waters v. Spofford, 58 Tex. 121. 214 Harvey v. Hill, 7 Tex. 591. §§227-229 CERTIFICATE OF ACKNOWLEDGMENT. 102 substantial compliance with the statute is all that is re- quired.^*^ § 227. The Act of January 19, 1839,2i6 provided for proof by one of the subscribing witnesses swearing to the signature of the signer, or he himself acknowledg- ing the same, a certificate of which shall be made upon the instrument by the officer and become part of the record, but provided no form of certificate. It required a certificate of acknowledgment or proof to be indorsed on the instrument and form part of the record. ^^'' § 228. The Act of Fehruary 5, 1840,2i8 required deeds to be acknowledged or proved by two witnesses. It provided no form of certificate of proof. ^^** Did it re- quire certificate where acknowledgment or proof was made before county clerk ?^^** In case of Wood v. Welder, 42 Tex. 409, the deed in question was recorded May 14, 1840 (February 14, 1840), while the act of February 5, 1840, was in force, and had probably re- pealed the act of January 19, 1839,^^^ but the court, not considering that, decided that under the provisions of the act of January 19, 1839, the said deed recorded by the clerk without certificate of acknowledgment or proof was improperly recorded. This case is evidently not decisive of the question.' 222 § 229. Act of February 5, 184:1.^^^— It validated proof made by one or more of the subscribing witnesses and 215 See ante, § 218; Val. Sts., c. 28. 216 2 L, T. 52. 217 See post, § 414; McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100; Holliday v. Cromwell, 26 Tex. 194; Wood v. Welder, 42 Tex. 402. 218 2 L. T. 327. 219 Post, § 416. 220 Ante, §§ 220-222. 221 See post, §§ 622-625. 222 See Paschal v. Perez, 7 Tex. 356. 223 2 L. T. 633. 103 OF SINGLE PEESONS. §§ 230-235 certified by the of&cer or two subscribing witnesses if executed abroad.^^* Under this act, where the witness signed by making his mark and swore "to the best of his knowledge and belief that he signed it," it was held sufficient proof."^ It requires the acknowledgment and proof to be certified but prescribes no form. § 230. Act of May 8, 1846,2^^ while authorizing com- missioners of deeds to certify to acknowledgments and proofs, provided no form.^'' § 232. Act of May 12, 1846. — It prescribed certain modes of proof, but no acknowledgment and form of certificate.^* The provisions as to proof under this act are still in force, and a form was provided by the Revised Statutes, 1879, which was the first and only form.^^ § 233. The Acts of AprH 6, 1861, January 14, 1862, No- vember 13, 1866, and May 6, 1871, do not change the mode of proof or acknowledgment. § 234. Act of March 6, 1863. — It amended section 9 of May 12, 1816, by adding the clause "or when the grantor or person who executed such instrument signed by making his mark, of the proof of the handwriting of both of the subscribing witnesses." It made no other change as to the certificate. ^ 235. Acts of November 13, 1866,^30 August 8, 1879,231 August 13, 1870,-32 May 6, 1871.233 _These ^^^.^g requiring 224 Post, § 418. 225 Stramler v. Coe, 15 Tex. 212. 226 2 L. T. 1493. 227 Post, § 419; Deen v. Wills, 21 Tex. 645. 228 See post, §§ 420-423; Deen v. Wills, 21 Tex. 645. 229 See post, § 435. 230 5 L. T. 1128. 231 6 L. T. 223. 232 6 L. T. 251. 233 6 L. T. 979. §§ 236-237 CEETIFICATE OF ACKNOWLEDGMENT. 104 certificates of acknowledgments and proof to be attested under official seals, make no provision as to the form or substance of same. § 236. Constitution of 1875 — Errors. — Article 13, sec- tion 4 of the constitution of 1875, referring to titles is- sued prior to November 13, 1835, indicates that mere error in the certificate of registration and any infor- mality not affecting the fairness and good faith of the holder thereof, with which the record was made, shall not be held to vitiate such record. § 237. Revised Statutes of 1879, 1895— Identity.— Ar- ticle 4309 of the Revised Statutes of 1879 and article 4617 of the Revised Statutes of 1895 (taking effect Sep- tember 1, 1879), provided that no acknowledgment shall be taken unless the officer taking it knows, or has satis- factory evidence on the oath or affirmation of a credible witness, which shall be noted in his certificate, that the person making such acknowledgment is the individual who executed and is described in the instrument. This is in effect the same as section 10 of the act of May 12, 1846.^^^ The certificate since the adoption of the Re- vised Statutes of 1879 must show the signer was known or proved to the officer. ^^^ Form. — Revised Statutes of 1879 and 1895, articles 4312, 4620 (taking effect September 1, 1879), provided: "That the form of an ordinary certificate of acknowl- edgment must be substantially as follows: State of — ' , ) County of — . ) Before me (here insert the name and character of the officer), on this day personally appeared , known to me (or proved to me on the oath of ), 234 See ante, § 93. 235 Ante, S 139. 105 OF SINGLE PERSONS. § 237 to be the person whose name is subscribed to the fore- going instrument, and acknowledged to me that he ex- ecuted the same for the purposes and consideration therein expressed. Given under my hand and seal of office this day of , A. D. [Seal] ."236 236 See ante, § 91. For construction, repeal, etc., see "Final Title," ante, § 107. §§ 236-237 CEETIFICATE OF ACKNOWLEDGMENT. 104 certificates of acknowledgments and proof to be attested under official seals, make no provision as to the form or substance of same. § 236. Constitution of 1875 — Errors. — Article 13, sec- tion 4 of the constitution of 1875, referring to titles is- sued prior to November 13, 1835, indicates that mere error in the certificate of registration and any infor- mality not affecting the fairness and good faith of the holder thereof, with which the record was made, shall not be held to vitiate such record. § 237. Revised Statutes of 1879, 1895— Identity.— Ar- ticle 4309 of the Revised Statutes of 1879 and article 4617 of the Revised Statutes of 1895 (taking effect Sep- tember 1, 1879), provided that no acknowledgment shall be taken unless the ofldcer taking it knows, or has satis- factory evidence on the oath or affirmation of a credible witness, which shall be noted in his certificate, that the person making such acknowledgment is the individual who executed and is described in the instrument. This is in effect the same as section 10 of the act of May 12, 1846.^^^ The certificate since the adoption of the Re- vised Statutes of 1879 must show the signer was known or proved to the officer. ^^^ Form. — Revised Statutes of 1879 and 1895, articles 4312, 4620 (taking effect September 1, 1879), provided: "That the form of an ordinary certificate of acknowl- edgment must be substantially as follows: State of — , County of Before me (here insert the name and character of the officer), on this day personally appeared , known to me (or proved to me on the oath of ), 234 See ante, § 93. 235 Ante, S 139. 105 OF SINGLE PERSONS. § 237 to be the person whose name is subscribed to the fore- going instrument, and acknowledged to me that he ex- ecuted the same for the purposes and consideration therein expressed. Given under my hand and seal of office this day of , A. D. [Seal] J5236 236 See ante, § 91. For construction, repeal, etc., see "Final Title," ante, § 107. §§238,239 CONVEYANCE BY MAEEIED WOMEN. 106 CHAPTER VIII. ACKNOWLEDGMENT AND CONVEYANCE BY MAEEIED WOMEN PEIOE TO THE ACT OF EEBEUAEY 3, 1841. § 238. Not required as at present. § 239. Consent of husband required but not separate acknowledg- ment. § 240. Wife's acknowledgment taken in same manner as single person's. § 241. After adoption of common law, no provision made until 1841. § 242. Convey her personal property without acknowledgment. § 238, Not Required as at Present. — Previous to the act of December 20, 1836, acknowledgment and regis- tration of a married woman's conveyance was not re- quired as at present.^ § 239. Consent of Husband Eequiied but not Separate Ac- knowledgment. — Under the Spanish and Mexican laws in force prior to the adoption of the common-law act of March 16, 1840,^ no separate acknowledgment of the wife was necessary to her conveyances, nor was her hus- band's consent under all circumstances necessary. As a general rule, the husband's consent was required, but this was for his benefit only and might be waived.^ A sale of the wife's slaves by the husband made with her consent was valid without her signature.^ Before the common-law act and the enactment of our statute regu- lating conveyances by married women (February 3, 1841), it was not necessary for the conveyance to show 1 See ante, § 3. 2 2 L. T. 177. 3 Harvey v. Hill, 7 Tex. 597; Groesbeck v. Bodman, 73 Tex. 292, 11 S. W. 322; Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 912. 4 Allen V. Urquhart, 19 Tex. 480. 107 PEIOE TO ACT OF 1841. §§ 240,241 on its face that the husband assented thereto, but it could be proven aliunde, and after a great lapse of time the assent of the husband might be presumed.^ § 240. Wife's Acknowledgment Taken in Same Manner as Single Person's. — It seems that from the registration act of December 30, 1836, to the adoption of the com- mon-law act March 16, 1840, proof or acknowledgment of a married woman's deed was made in the same man- ner as that of a single person ; the Spanish law in force at this time authorized the conyeyance by a married woman with the consent of her husband, and the regis- tration act of December 20, 1836, made no distinction between acknowledgments or proof by married women and single persons, and her deed without acknowledg- ment would no doubt be good between the parties, etc.^ § 241. After Adoption of Common Law, No Provision Made Until 1841 — After the adoption of the common law (March 16, 1840), a married woman could only convey her real estate, if at all, by fine and recovery, until the passage of the act of February 3, 1841. This was no doubt intended as a substitute for this inconvenient method of conveyance by fine and recovery.'' But see Ballard v. Carmichael, 83 Tex. 363, 18 S. W. 734, where it is held that the statute of frauds of January 18, 1840, required such conveyance to be in writing. It seems to be well settled that since the adoption of the acts of February 3, 1841, and April 30, 1846, to the present time, they have provided the only mode in which mar- 5 Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 912; Poor v. Boyce, 12 Tex. 447. 6 See ante, §§ 220-224; Harvey v. Hill, 7 Tex. 597; Groesbeck v. Bodman, 73 Tex. 292, 11 S. W. 322; Clapp v. Engledow, 82 Tex. 290, 18 S. W. 146. 7 Langton v. Marshall, 59 Tex. 299; Groesbeck v. Bodman, 73 Tex. 292, 11 S. W. 322; Berry v. Donley, 26 Tex. 745; Roy v. Bre- mont, 22 Tex. 629. § 242 CONVEYANCE BY MAEKIED WOMEN. lOS ried women can convey their separate property in lands.** § 242. Convey Her Personal Property Without Acknowl- edgment—Under the acts of February 3, 1841, and April 30, 1846,^ sales of a married woman's personal property was not necessarily required to be in writing and acknowledged by her.^^ She could transfer her personal property, except slaves, without separate ac- knowledgment, but her conveyances in writing must be privily acknowledged.*-' 8 Wadkins v. Watson, 86 Tex. 198, 24 S. W. 385, 22 L. E. A. 779. 9 Eev. Stats. 1879-1895. 10 Stooksberry v. Swann, 12 Tex. Civ. App. 74, 34 S. W. 369. 11 Ballard V. Carmichael, 83 Tex. 355, 18 S. W. 734; Thompson v. Wilson, 24 Tex. Civ. App. 666, 60 S. W. 355. 109 CONVEYANCES BY MARRIED WOMEN. § 243 CHAPTER IX. CONVEYANCES BY MARRIED WOMEN AETER FEBRUARY 3, 1841. § 243. Wife's conveyance must be separately acknowledged. § 244. By agent or attorney. § 245. Executory contract for sale of homestead not binding. § 246. Executory contract for sale of wife's other property binding. § 243. Wife's Conveyance Must be Separately Acknowl- edged. — The statute of frauds of January 18, 1840, re- quired conveyance of real property to be in writing, and the acts of February 3, 1811, and April 30, 1846, and Revised Statutes of 1879 and 1895, provided, with one exception (that is, where the wife is deserted, etc.),* the only methods by which a married woman may exe- cute a written conveyance of her property, to wit, by private examination and explanation by an authorized officer, and her voluntary acknowledgment and state- ment that she wished not to retract it.^ Articles 559 and 560 of the Revised Statutes of 1879 provided, that no conveyances of the homestead or the wife's separate property shall take effect until acknowledged by her in compliance with chapter 2, title 86, which provides for acknowledgments of deeds, etc. Articles 635 and 636 of the Revised Statutes of 1895 provided that no con- veyances of the homestead or the wife's separate prop- erty shall take effect until acknowledged by her in com- pliance with article 4643. This reference was evidently a mistake as that article had no application to acknowl- edgments. It seems that the above statutes would be 1 Wright V. Hayes, 10 Tex. 136, 60 Am. Dec. 200. 2 Ballard v. Carmichacl, 83 Tex. 3G3, 18 S. W. 734; San Autouio V. Grandjean, 91 Tex. 435, 44 S. W. 476; and see post, §§ 247, 346- 348b. §§244,245 CONVEYANCES BY MAEKIED WOMEN. 110 construed as though they referred to the proper articles.^ They were corrected by the acts of March 26, 1897.^ Proof by subscribing witness was not authorized.^ § 244. By Agent or Attorney. — A married woman can- not by power of attorney authorize her husband to con- vey her property.** But if the wife is joined by her husband she may give a valid power of attorney to an- other party to convey her separate property ,'^ and such an attorney in fact is competent to make the legal ac- knowledgment for registration of his deed.* It is also held that she may deed her homestead through an at- torney in fact, she, of course, having the right to re- tract at any time before her attorney executed the deed.** And a deed of a married woman's land, exe- cuted by her husband and an attorney in fact, who was acting under a power of attorney privily acknowledged by the wife, though she was not joined therein by her husband, is valid. -^^ § 245. Executory Contract for Sale of Homestead not Binding — Executory contract, however, i. e., a bond for title, for sale of homestead duly executed and acknowl- 3 Post, § 348. 4 Post, §§ 348a, 348b. 5 Utzfield V. Bodman, 76 Tex. 361, 13 S. W. 474. 6 Cannon v. Boutwell, 53 Tex. 627; Peak v. Brinson, 71 Tex. 311, 11 S. W. 269; Mexia v. Oliver, 148 JJ. S. 664, 13 Sup. Ct. Eep. 764, 37 L. ed. 602; Cartwell v. Eogers, 76 Tex. 374, 13 S. W. 474, 8 L. E. A. 180. But see Eegan v. Halleman, 34 Tex. 412; Halbert v. Brown (Tex. Civ. App.), 31 S. W. 535. 7 Patton V. King, 26 Tex. 686, 84 Am. Dec. 596; Warren v. Jones, 69 Tex. 465, 6 S. W. 775; Jones v. Eobbins, 74 Tex. 615, 12 S. W. 824. 8 Patton V. King, 26 Tex. 686, 84 Am. Dec. 596; Warren v. Jones, 69 Tex. 465, 6 S. W. 775; Jones v. Eobbins, 74 Tex. 615, 12 S. W. 824. 9 Jones V. Goff, 63 Tex. 249; Jones v. Eobbins, 74 Tex. 618, 12 S. W. 824. 10 Nolan V. Moore, 96 Tex. 341. Ill SUBSEQUENT TO ACT OF 1841. § 246 edged by the husband and wife cannot be enforced against her,^^ the reason being that she did not consent to an absolute conveyance, but only a contract for such conveyance, and she would be deprived of her right to retract in case the bond should be enforced.*^ § 246. Executory Contract for Sale of Wife-s Other Prop- erty Binding — But it is held that a bond for title for the separate property of the wife may be enforced, there being a distinction between separate property of the wife and the homestead. ^^ 11 Jones V. Goff, 63 Tex. 253. 12 Jones V. Bobbins, 74 Tex. 618, 12 S. W. 824. 13 Angler v. Coward, 79 Tex. 555, 15 S. W. 698. ACKNOWLEDGMENT BY MAERIED WOMEN. 112 CHAPTER X. ACKNOWLEDGMENT BY MARRIED WOMEN AFTER THE ACT OF FEBRUARY 3, 1841. § 247. The acknowledgment, not the signature, is the deed of married women. § 248. Held that deed without proper certificate of acknowl- edgment is void. § 249. Deed properly acknowledged but defectively certified, not void. § 250. First, it might be reacknowledged. § 251. Second, waived by estoppel. § 252. Third, validated by statute. § 253. Fourth, corrected by action. § 254. Idem. § 255. Acknowledgment of wife properly taken but defectively certified void as to vested rights. § 256. Acknowledgment improperly taken but properly certi- fied valid when. §§ 257-260. Requirements of valid acknowledgment. §§ 257-258. Privy examination essential. § 259. Prior to act of February 3, 1841. § 260. How corrected. §§ 261-262. Explanation essential. § 263. By interpreter valid. § 264. If she knew contents. § 265. Explanation where reference is made to an- other instrument. § 266. Free from compulsion. § 267. Right to retract. § 268. Grantor known or proved to officer. § 269. Extent of acquaintance. § 270. May be taken at different times— One may be valid though other invalid. § 271. On legal holidays valid. § 272. Acknowledgment of married woman's receipt not re- quired. § 273. Abandoned by husband or he is insane, she may convey as single person. § 273a. Schedule of married woman's separate property. (See "Acknowledgment and Proof," chapter 3.) 113 SUBSEQUENT TO ACT OF 1841. §§ 247,248 § 247. The Acknowledgment, not the Signature, is the Deed of Married Women. — After the passage of the acts of February 3, 1841, and April 30, 1846, they prescribed the only mode in which a married woman can convey her real estate.^ The acknowledgment and not the signature to the instrument is the deed of a married woman, and to constitute a valid acknowledgment there must be a privy examination and explanation by an authorized officer and statement that she willingly signed the same and did not wish to retract it. As a general rule, a deed by a married woman not properly acknowledged is void and conveys neither legal nor equitable title. It is the examination, explanation and acknowledgment that give it validity, and not the sig- nature.^ § 248. Held that Deed Without Proper Certificate of Ac- knowledgment is Void. — It is also held in this state by some decisions that a deed of a married woman without a proper certificate of acknowledgment is not complete so as to convey title to land; and that her proper ac- knowledgment could not be shown by parol evidence.* Previous to the adoption of article 4353 of the Revised Statutes of 1879, her acknowledgment could be shown in no other way than by the certificate of the officer. (Johnson v. Taylor, 60 Tex. 361.) In Starnes v. Beitel, 20 Tex. Civ. App. 524, 50 S. W. 202, the court goes so far as to hold that until a correction of the certificate, 2 Wadkins v. Watson, 86 Tex. 198, 24 S. W. 385, 22 L. E. A. 779; Cole V. Bammel, 62 Tex. 111. 3 Berry v. Donley, 26 Tex. 745; Cross v. Evarts, 28 Tex. 532; Cole V. Bammel, 62 Tex. Ill; Johnson v. Bryan, 62 Tex. 626; Whet- stone V. Coffey, 48 Tex. 272; Looney v. Adamson, 48 Tex. 619; Garcia V. Ulg (Tex. Civ. App.), 37 S. W. 471; Callahan v. Patterson, 4 Tex. 65, 51 Am. Dec. 712; Callahan v. Houston, 78 Tex. 497, 14 S. W. 1027; Hampshire v. Floyd, 39 Tex. 105 (Clayton v. Frazer, 33 Tex. 99, overruled); Rhine v. Hodge, 1 Tex. Civ. App. 368, 21 S. W. 140; post §§ 250, 254. 4 Looney v. Adamson, 48 Tex. 619. 8 §§ 249, 250 ACKNOWLEDGMENT BY MAEEIED WOMEN. 114 the deed of a married woman is void. In Looney v. Adamson the court refers to Berry v. Donley, 26 Tex. 747, as deciding "that the deed of a married woman is not complete so as to convey title to land without the cer- tificate of privy examination and acknowledgment," while the court in that case only decided that "the ex- amination, and not the signature, gives validity to deeds." The distinction is clear, for if it is the exam- ination, acknowledgment and declaration that is the es- sence of the deed, and the certificate only the evidence of same, it might be the basis of a right without the cer- tificate, and some cases hold that such a deed is a right even though there be no method of enforcing the right.'* § 249, Deed Properly Acknowledged, but Defectively Cer- tified, not Void. — As a deed of a married woman, properly acknowledged but defectively certified, is held to be a right between the parties and others with actual notice, it cannot be void, although there may be no legal evi- dence of its existence. The defective deed, not being void, might be or become the basis of a right in several ways. § 250. First, It Might be Reacknowledged. — It might be reacknowledged by the married woman and the second acknowledgment would relate back to the original deed. In Starnes v. Beitel, 20 Tex. Civ. App. 524, 50 S. W, 203, the opinion is expressed by the court that the husband and wife could correct their certificate of acknowledg- ment by reacknowledgment. In the case under discus- sion the acknowledgment was of a mechanic's lien on the homestead which, to be valid, must be fixed before the labor is performed. The original lien, the acknowl- edgment of which was improperly certified to, could not have been corrected by subsequent acknowledgment after the labor was performed, unless it is the acknowl- edgment, and not the certificate, which gives validity to 5 Johnson v. Taylor, 60 Tex. 367. See post, §§ 250, 254. 115 SUBSEQUENT TO ACT OF 1841. §§ 251-254 a married woman's deed, for otherwise it would permit the fixing of mechanic's lien on the homestead after the labor had been performed, which the constitution pro- hibits. Where the married woman's deed is defective on account of a defective acknowledgment, she may cure the defect by a subsequent acknowledgment, and in the absence of intervening rights it will relate back to the time of the original delivery of the deed, and no new delivery is required.^ § 251. Second, Waived by Estoppel — The defect in a married woman's deed on account of a defective ac- knowledgment may be waived by her.'^ § 252. Third, Validated by Statute. — The defective cer- tificate of acknowledgment may be validated by statute, such as the act of April 27, 1874, and July 28, 1876.^ § 253. Fourth, Corrected by Action. — It may be cor- rected by action authorized by statute changing the rules of evidence as by article 4353 of the Kevised Stat- utes of 1879.» § 254. Idem. — In discussing the correction of cer- tificates of acknowledgments by action under this ar- ticle. Judge Stayton says that article 4353 does not at- tempt to create a right where none before existed, but simply to permit parties to show, if they can, by a judg- ment of a court that which before the statute was en- acted could only be shown by the certificate of the des- ignated officer. That the legislature may alter the rules of evidence as it may other matters affecting solely the 6 Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 913; post §§ 995- 997. 7 Cole V. Bammel, 62 Tex. 117; and see "Estoppel," post, § 313. 8 Baker v. Westcott, 73 Tex. 131, 11 S. W. 157; McDaniel v. Harold, 1 U. C. 521; post, §§ 1006-1015. 9 Post, §§ 998-1006; Williams v. Ellingsworth, 75 Tex. 481, 12 S. W. 746. §254 ACKNOWLEDGMENT BY MAREIED WOMEN. 116 remedy, is well settled.^* But the above statements of the learned judge that the acknowledgment could "only be shown by the certificate of the designated officer" is evidently dicta, as it was not necessary for the court to determine whether or not there were other methods of establishing acknowledgments, but whether or not it could be validated or proven by action under article 4353. In Callahan v. Houston, 78 Tex. 497, 14 S. W. 1027, it seems that the supreme court did not consider parol evidence improper to correct the defective certifi- cate of a married woman's acknowledgment, but this was also after the enactment of article 4353 of the Re- vised Statutes. In commenting on the testimony as to her acknowledgment Judge Stayton says: "The certifi- cate was fatally defective, and the evidence of the offi- cer who made it did not show that the facts would have authorized him to make one sufficient." In another suit brought under article 4353 to correct the certificate of acknowledgment it was held that it was proper to prove a proper acknowledgment of the wife, although it was improperly certified.** Where an acknowledg- ment of a married woman is properly taken, but de- fectively certified to, the defect in certificate does not destroy the title of the purchaser, and an action may be maintained to correct the certificate.*^ In Starnes v. Beitel, 20 Tex. Civ. App. 524, 50 S. W. 203, it was held that the defective certificate of a married woman's acknowledgment properly taken might be reformed by an action brought within four years. This was equivalent to holding that it is the acknowledgment, and not the certificate of acknowledgment, which gives validity to a married woman's deed, for Hn that case the acknowledgment Avas of a mechanic's lien on the homestead, which must be fixed, to be 10 Johnson v. Taylor, 60 Tex. 362; Webb v. Den, 17 How. 578, 15 L. ed. 35. 11 Leach v. Dodson, 64 Tes. 189. 12 Williams v. Ellingsworth, 75 Tex. 481, 12 S. W. 71G. 117 SUBSEQUENT TO ACT OF 1841. §§ 255, 256 valid, before the labor is performed, and the court, by holding that the certificate could be reformed and validated by action at any time before four years had expired and after the labor was performed, in effect held that it was the acknowledgment, and not the cer- tificate of it, which must be made before the labor is per- formed. The court, however, expresses the opinion that until the certificate is corrected the deed or mort- gage is void even between the parties.^^ § 255. Acknowledgment of Wife Properly Taken but De- fectively Certified Void as to Vested Rights An acknowl- edgment of a married woman properly taken but de- fectively certified, it seems, would be void as to vested rights.^'* § 256. Acknowledgment Improperly Taken but Properly Certified Valid When. — An acknowledgment improperly taken but properly certified would be valid as to inno- cent purchasers for a valuable consideration without notice, provided the married woman had appeared be- fore the officer for the purpose of acknowledging the same and had attempted to acknowledge it.^^ A wife cannot defeat her deed by showing that she did not un- derstand its import unless the grantee knew it was not understood. ^^ And a certificate of her acknowledg- ment is conclusive of the facts therein stated where the conduct of the grantee is in good faith and he pays a valuable and adequate consideration for the land.*'' And a pre-existing deed is such valuable consideration 13 See "Parol Evidence," ante, §§ 174-185. 14 Am, & Eng. Ency. of Law, 2d ed., 568. 15 Forbes v. Thomas (Tex. Civ. App.), 51 S. W. 1097; Hurst v. Finley (Tex. Civ. App.), 54 S. W. 1072, 22 Tex. Civ. App, 605, 55 S. W. 388. 16 Miller v. Yturria, 69 Tex. 553, 7 S. W. 206. 17 Waltec V. Weaver, 57 Tex. 569; Webb v. Burney, 70 Tex. 325, 7 S. W. 841. §§257,258 ACKNOWLEDGMENT BY MAEEIED WOMEN. 118 as will sustain the deed.*^ But it is not valid nor con- clusive where the grantor did not attempt to acknowl- edge it.^'** § 257. Requirements of Valid Acknowledgment — ^Privy Examination Essential.*— It is well settled in this state that there must be a privy examination apart from her husband, or a married woman's deed passes no title; and where this has not been done she and those claim- ing under her may recover it by suit, unless estopped by some representation or act on her part, relied and acted upon so as to operate as a fraud upon a purchaser in the event of such recovery.^*^ § 258. Idem — An instrument of a married woman without privy examination is no deed, nor does age give it any validity.^^ Nor does such a deed convey any in- terest in the wife's separate property. ^^ This, how- ever, does not preclude equities from being set up and enforced when a proper case shall have been pre- sented.^^ The statement that "she was examined and interrogated by me touching the same" was insuffi- cient.^* The acknowledgment is not vitiated by mere presence of grantee at the examination.^^ 18 Waltee v. Weaver, 57 Tex. 569; Webb v. Burney, 70 Tex, 325, 7 S. W. 841; Freiberg v. De Lamar, 7 Tex. Civ. App. 263, 27 S. W. 151. 19 Ante, § 213. 20 Fitzgerald v. Turner, 43 Tex. 87; McDaniel v. Garrett, 11 Tex. Civ. App. 57, 31 S. W. 721. See ante, § 256. 21 Parker v. Chancellor, 73 Tex. 479, 11 S. W. 503; Kincaid v. Jones, 2 U. C. 534. 22 Coffey v. Hendricks, 66 Tex. 676, 2 S. W. 47; Cross v. Evarts, 28 Tex. 525; Berry v. Donley, 26 Tex, 738; Groesbeck v, Bodman, 73 Tex, 287, 11 S, W. 322. 23 Womack v. Womack, 8 Tex. 397, 58 Am. Dec. 119; Fitzgerald V. Turner, 43 Tex. 87; post, 313. 24 Eunge v. Sabin (Tex. Civ. App.), 30 S. W. 568. 25 Tippett v. Brooks, 67 S. W. 512. 119 SUBSEQUENT TO ACT OF 1841. §§ 259-262 § 259. Prior to Act of February 3, 1841 — Prior to the act of February 3, 1841, a separate examination of mar- ried women was not required, and her deed without it was good.^^ § 260. How Corrected. — A deed by a married woman defectively certified that passed from the custody of the notary who conducted the examination can be corrected by the notary without re-examination, and such a deed is not void.^'' The use of "separate" instead of "priv- ily" in a certificate of acknowledgment to a deed of a married woman is cured by the act of July 28, 1876."" 28 § 261. Explanation Essential. — As a general rule, an acknowledgment and deed of a married woman without a proper explanation of its contents is invalid and void- able, even though the certificate is in proper form.^^ If this defect is shown by the certificate of acknowledg- ment, the deed is void.^^ It is not sufficient that the wife declared that she fully understood the contents of her deed, but the certificate must show that the oflftcer fully explained the contents of the deed to her.^* § 262. Idem. — The omission of the word "explained" in a certificate of acknowledgment of a married woman 26 Harvey v. Hill, 7 Tex. 591; Groesbeck v. Bodman, 73 Tex. 292, 11 S. W. 322. 27 Stone V. Sledge, 87 Tex. 49, 24 S. W. 697. See chapter 28. 28 McDaniel v. Harold, 1 U. C. 526. 29 Cole V. Bammel, 62 Tex. 113; Ehine v. Hodge, 1 Tex. Civ. App. 368, 21 S. W. 140; Jones v. Bobbins, 74 Tex. 615, 12 S. W. 824; John- son V. Bryan, 62 Tex. 625; Kuleman v. Pritchett, 56 Tex. 483. 30 Norton v. Davis, 83 Tex. 36, 18 S. W. 430. For the exceptions to this rule, see ante, § 256. 31 Langton v. Marshall, 59 Tex. 297; Euleman v. Pritchett, 56 Tex. 485; Burkett & Murphy v. Scabborough, 59 Tex. 499; Eunge v. Sabin (Tex. Civ. App.), 30 S. W. 568; Edens v. Simpson (Tex.), 17 S. W. 788; Johnson v. Taylor, 60 Tex. 369. §§ 263-266 ACKNOWLEDGMENT BY MARRIED WOMEN. 120 without some equivalent expression is fatal to the cer- tifieat.e.32 § 263. By Interpreter Valid. — ^The explanation may be made by an interpreter selected by her, and when so made she will not be heard to say that the interpreter was incompetent and failed to make proper explana- tion. The proper practice would be to swear the inter- preter.^^ § 264. If She Knew Contents.— It is held that if it ap- pear from the certificate that the wife knew the con- tents of the deed that would be sufficient, and that it might be fairly presumed that it was explained to her. The explanation would be immaterial if it appeared that she had the knowledge.^'* § 265. Explanation Where Reference is Made to Another Instrument, etc. — ^Where a deed of a married woman re- fers to another instrument it is not necessary to ex- plain the other instrument to her.^^ Nor is it neces- sary to explain another instrument connected with the same transaction, though not signed by the wife.^® An explanation is not necessary where the wife has been abandoned by the husband.^'^ Nor is it necessary in case of a widow.^® Nor where husband is insane.^® § 266. Free from Compulsion — The deed of a married woman must be signed freely and willingly. ^^ As a 32 Moores v. Linney, 2 Tex. Civ. App. 293, 21 S. W. 709. 33 Waltee v. Weaver, 57 Tex. 569; Herring v. White, 6 Tex. Civ. App. 249, 25 S. W. 1016. 34 Deen v. Wills, 21 Tex. 646. 35 Bull V. Coe, 77 Cal. 54, 11 Am. St. Rep. 235, 18 Pac. 808. 36 Andrews v. Bonham, 19 Tex. Civ. App. 179, 46 S. W. 902. 37 Wright v. Hayes, 10 Tex. 130, 60 Am. Dec. 200; Breitling v. Chester, 88 Tex. 590, 32 S. W. 527. 38 Beville v. Jones, 74 Tex. 148, 11 S. W. 1128. 39 Post, § 273. 40 Belcher v. Weaver, 46 Tex. 295, 26 Am. Rep. 267; Thompson 121 SUBSEQITEA^T TO ACT OF 1841. § 267 general rule, without such willing assent her deed would be voidable, but her actions in many cases would estop her from setting it aside."** Under the act of April 30, 1846, a certificate of acknowledgment failing to show that the married woman mllingly signed the deed is a nullity."*^ The use of the words "free act," and the omission of the words "willingly signed the same," in the certificate of acknowledgment of a married woman is not fatal.*^ § 267. Right to Retract. — A married woman may up to the last moment before the title passes, by retracting what she contemplated doing, defeat the conveyance.'*^ The certificate must show that at the time of the ac- knowledgment the married woman declared that she did not wish to retract the deed.^^ Although the cer- tificate fails to show that the wife did not wish to re- tract it, yet if an equivalent expression is used, it will be sufiicient."*^ The omission of the word "it" in the ex- pression ''she did not wish to retract it" is immaterial.*'' The use of the word "contract" for "retract" in a mar- ried woman's certificate is not fatal.*^ A declaration V. Johnson, 84 Tex. 553, 19 S. W. 784; Black v. Garner (Tex. Civ. App.), 63 S. W. 920; Coombes v. Thomas, 57 Tex. 322; Davis v. Mc- Cartney, 64 Tex. 585. 41 See ante, § 256. 42 Smith V. Elliott, 39 Tex. 209. 43 Wilson V. Simpson, 80 Tex. 281, 16 S. W. 40. See post, § 298. 44 Jones V. Goff, 63 Tex. 255; GoflP v. Jones, 70 Tex. 575, 8 Am. St. Eep. 619, 8 S. W. 525; Williams v. Graves, 7 Tex. Civ. App. 365, 26 S. W. 338; Winn v. Winn, 23 Tex. Civ. App. 618, 57 S. W. 81. And see Warren v. Jones, 69 Tex. 466, 6 S. W. 776; Stitzle v. Evans, 74 Tex. 599, 12 S. W. 326; Jones v. Bobbins, 74 Tex. 618, 12 S. W. 824; Murphy v. Eeynaud, 2 Tex. Civ. 473, 21 S. W. 992. 45 Davis V. Agnew, 67 Tex. 210, 2 S. W. 43, 376. 46 Adams v. Pardue (Tex. Civ. App.), 36 S. W. 1018. 47 Moores v. Linney, 2 Tex. Civ. App. 293, 21 S. W. 709; Mont- gomery V. Hornburger, 16 Tex. Civ. App. 28, 40 S. W. 628. 48 Belcher v. Weaver, 46 Tex. 295, 26 Am. Kep. 267. See "Es- toppel," post, § 313, and ante, § 256. §§ 268, 269 ACKNOWLEDGMENT BY MAEEIED WOMEN. 122 in the acknowledgment by the wife that she consented that the deed be recorded was equivalent to a statement that she did not wish to retract it.^^ § 268. Grantor Known or Proved to Officer. — Under the laws in force until the Revised Statutes of 1879 went into effect, it was not necessary for the certifi- cate to state that the grantor was known to the officer.®** But under the present law in force since tjie adoption of the Revised Statutes of 1879 a stricter rule of construction is applied.®^ Since the Revised Stat- utes of September 1, 1879, went into effect the certifi- cate of acknowledgment must show that the grantor or person making the acknowledgment was known to the officer or that proof of identity was made before him.®^ The certificate under Revised Statutes since 1879 must show that grantor was known or made known to offi- cer.®^ § 269. Extent of Acquaintance. — A certificate reciting that the officer knew the grantor by introduction by the grantee does not invalidate the acknowledgment.®^ The law does not prescribe the extent of the acquaint- ance which is necessary, and justify the officer in cer- tifying the person who presents himself is known to the officer to be the person who signed the instrument 49 Masterson v. Harris, 6 Tex. L. J. 153. 50 Watkins v. Hall, 57 Tex. 4; Sowers v. Peterson, 59 Tex. 219; ante, § 139. 51 Watkins v. Hall, 57 Tex. 4; Sowers v. Peterson, 59 Tex. 219; Johnson v. Thompson (Tex. Civ. App.), 50 S. W. 1057; Thompson v. Johnson, 92 Tex. 358, 51 S. W. 23; Slack v. Dawes, 3 Tex. Civ. App. 520, 22 S. W. 1053; Sloan v. Thompson, 4 Tex. Civ. App. 426, 23 S. W. 613; Watkins v. Hall, 57 Tex. 1; DriscoU v. Morris, 2 Tex. Civ. App. 603, 21 S. W. 629; Hill v. Smith, 6 Tex. Civ. App. 316, 25 S. W. 1079. 52 Davidson v. Wallingford, 88 Tex. 623, 32 S. W. 1030; McKie v. Anderson, 78 Tex. 207, 14 S. W. 576. 53 Hurst V. Finley, 22 Tex. Civ. App. 605, 55 S. W. 388. 54 Lindley v. Lindley, 92 Tex. 446, 49 S. W. 573. 123 SUBSEQUENT TO ACT OF 1841. § 270 in question, but that question is, and necessarily must be, submitted to the decision of such officer under the facts as they exist at the time the act is taken.^^ When the officer certifies that grantor was known to him, it will be taken as sufficient unless the certificate shows on its face the fact that the grantor was unknown.^^ And the words ("by introduction by grantee") may be taken as surplusage, but the court does not hold that an introduction is sufficient.^'' § 270. May be Taken at Different Times — One may be Valid Though Other Invalid. — It is not necessary that the acknowledgment of a married woman be taken at the same time or by the same officer as that of the husband, but it may be made years later.^^ It is held in Illg v. Garcia (Tex. Civ. App.), 45 S. W. 857, that a deed of a married woman not acknowledged by her husband is void. It seems from the statement of facts that both husband and wife joined in the deed and that the acknowledg- ment of the wife was in proper form, but the court held that it was void as to her.^® It is doubtful if this doc- trine will be sustained; the contrary and seemingly the better rule is held in Rork v. Shields, 16 Tex. Civ. App. 640, 42 S. W. 1032, where, in a joint deed, the cer- tificate was bad as to the husband but good as to the wife, the registration as well as the deed was held good as to the wife. It is held in Chester v. Breitling (Tex. Civ. App.), 30 S. W. 464, that an acknowledgment by a married woman after her husband's death to a deed of her separate property executed by both husband and wife during coverture does not validate the deed, even 55 Lindley v. Lindley, 92 Tex. 446, 49 S. W. 573. 56 Lindley v. Lindley, 92 Tex. 446, 49 S. W. 573. 57 Lindley v. Lindley (Tex.), 57 S. W. 159, same case on appeal. And see ante, § 256. 68 Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 912. 59 See facts stated in Garcia v. Illg, 14 Tex. Civ. App. 482, 37 8. W. 472. §§ 271-273a ACKNOWLEDGMENT BY MAEEIED WOMEN. 124: as against herself, but this case is reversed and the cor- rect rule recognized in Breitling v. Chester, 88 Tex. 589, 32 S. W. 527. The wife may retract at any time before the title passes.^** § 271. On Legal Holidays Valid — Acknowledgments taken on Sunday or a legal holiday are valid.^^ § 272. Acknowledgment of Married Woman's Receipt not Required. — An acknowledgment is not required to a re- ceipt of a married woman admitting advances received and releasing a certain part of her father's estate.^^ § 273. When Abandoned by Husband or He is Insane, She may Convey as Single Person. — Where the wife has been abandoned by her husband, the statute requiring sepa- rate examination, etc., does not apply to her.^^ Nor where her husband is insane.®* § 273a. Schedule of Married Woman's Separate Property. Under the act of April 29, 1846, a married woman was permitted to acknowledge and record a schedule of her separate property.^ It was not required, however, and she waived no right by neglect to do so, but it might at some time serve as evidence of her right.®® It is not clear from said act how her acknowledgment should be taken, but it does not seem to require a joint acknowl- edgment of herself and husband, as her deed would.®'^ 60 Jones V. Goff, 63 Tex. 255. 61 See ante, § 128. 62 French v. Strumberg, 52 Tex. 93. 63 Wright V. Hayes, 10 Tex. 130, 60 Am. Dec. 200; Breitling v. Chester, 88 Tex. 586, 32 S. W. 527; Heidenheimer v. Thomas, 63 Tex. 287. 64 Clark V. Wicker (Tex. Civ. App.), 30 S. W. 1114. 65 Post, § 328. 66 Edrington v. Mayfield, 5 Tex. 367; Le Gierce v. Moore, 59 Tex. 473. 67 See 1 L. T. 1459. "Parol Evidence," ante, § 174. 125 CEETLPICATION OF ACKNOWLEDGMENTS. CHAPTER XI. €EETIFICATION OF ACKNOWLEDGMENTS OF MAEEIED WOMEN. A. GENEEAL TEXT. •§ 274. No separate acknowledgment required prior to 1841. § 275. Certificate of acknowledgment essential and conclusive. ■§ 276. Conclusive if grantee innocent purchaser for value. 5 277. Not conclusive if grantee is chargeable with notice. § 278. Not conclusive if grantor did not acknowledge. § 279. Defective certificate does not render deed void when. § 280. Wife's deed not complete without certificate of acknowledg- ment. § 281. Held wife's deed void until certificate corrected. § 282. Amendment. § 283. Certificate proven, how. 5 284. Parol evidence. § 286. Form of certificate of married woman's acknowledgment. -§ 287. Substantial compliance with statute necessary. ^ 288. May be invalid as to husband but valid as to wife. § 289. Must certify what. ■§ 290. Separate and privy examination. § 291. "Separate" instead of "privily." § 292. "Apart from her husband" suflicient. f 293. Explanation. § 294. Omission of "explained to her" fatal. § 295. Wife otherwise knew contents of deed. § 296. "Explained" equivalent to "fully explained." § 297. Certificate not defective for failing to show that deed was shown to wife, f 298. Free from compulsion. § 299. "Free" instead of "willingly." I 300. "Eetract." § 301. "Known to me." § 302. Acknowledgment must be personal to officer. § 304. Official character must be shown. § 305. Official seal. § 306. Signature of officer. § 307. Certain omissions immaterial. § 308. Identity of grantor and person acknowledging deed. § 309. Omissions and errors. § 310. § 311. § 312. § 313. § 314. § 315. § 316. § 317. § 318. § 319. § 320, § 321. § 322, § 323. § 324, CERTIFICATION OF ACKNOWLEDGMENTS. 126 Error clearly clerical not fatal. Material omissions fatal. Equivalent expressions. Estoppel and eqiiities. In case of partition. Where wife 's land is released. Where fraud is practiced by wife. Not estopped simply because she received the benefits. Defective certificate of valid acknowledgment. Conclusiveness of certificate of wife's acknowledgment. Same strictness does not apply to wife's as to husband's. Cannot show want of capacity in ofl&cer, etc. Officer cannot explain certificate, but may prove ac- knowledgment properly taken. May be avoided by her when. Presumption is that certificate recites the facts. B. STATUTORY PROVISIONS CONCERNING ACKNOWLEDG- MENTS OF MARRIED WOMEN. § 325. Act of February 3, 1841 — ^Requirements and form, § 326. Idem— Annotated. § 327. Act of February 5, 1841— Validates want of authority in cer- tain officers. § 328. Act of April 29, 1846 — Acknowledgment of schedule of wife's property. § 329. Act of April 30, 1846— Requirements and form. § 330. Idem— Annotated. § 331. How taken -vYithout the state. § 332. Above law applies to what property. § 333. Repeals other laws. § 334. Act of May 8, 1846— Commissioners of deeds. § 335. Act of May 13, 1846— Notaries authorized. § 336. Act of May 12, 1846— Form and requirements not affected. § 337. Act of March 16, 1848 — Form and requirements not affected. § 338. Act of December 18, 1849— Form and requirements not af- fected. § 339. Act of February 9, 1856— Validates. § 340. Act of February 9, 1860— Validates, § 341. Act of August 13, 1870— Validates. § 342. Act of April 27, 1874— Validates. § 343. Act of May 25, 1876 — ^Form and requirements not affected. § 344. Act of July 28, 1876— Validates. § 345. Revised Statutes of 1879 and 1895— Requirements of wife's acknowledgment. § 346. Husband must join wife in her conveyance. § 347. Conveyance of homestead must be acknowledged by wife. § 348. Form of certificate of wife's acknowledgment. 127 OF MAREIED WOMEN. §§ 274-276 § 348a. Act of March 26, 1897 — Conveyance of laomestead. § 348b. Conveyance of wife's separate property. For officers authorized, see chapters 20 to 27. For certificate prior to December 20, 1836, see ante, chapter 1. A. GENEEAL TEXT. § 274. No Separate Acknowledgment Required Prior to 1841.— From 1836 to February 3, 1841, the same certifi- cates of acknowledgment were required for married women as for single persons.^ During that time a deed of a married woman without an acknowledgment, or certificate of same, would be good between the parties, the acknowledgment not being the essence of her deed until after the act of February 3, 1841 § 275. Certificate of Acknowledgment Essential and Con- clusive.—Since the act of February 3, 1841, a certificate of acknowledgment in proper form has been essential to the conveyance,^ and conclusive of the facts recited, if relied on by innocent purchaser for value, and the married woman appeared before the officer and at- tempted to acknowledge the same, even though the ac- knowledgment was improperly taken.^ Her deed can- not be proved by subscribing mtnesses.^ § 276. Conclusive if Grantee Innocent Purchaser for Value.— It seems well settled that the wife cannot defeat her deed by showing that she did not understand it, or that the officer did not properly explain it to her, un- 1 Ante, §§ 238-242. 2 Ante, § 247. 3 Post, § 280. 4 Forbes v. Thomas (Tex. Civ. App.), 51 S. W. 1097; Hurst v. Fin- ley (Tex. Civ. App.), 54 S. W. 1072; Miller v. Yturria, 69 Tex. 553, 7 S. W. 206; Waltee v. W'caver, 57 Tex. 569; Webb v. Burney, 70 Tex. 325, 7 S. W. 841; Freiberg v. Do Lamar (Tex. Civ. App.), 27 S. W. 151. 5 Ante, § 243. §§ 277-279 CERTIFICATION OF ACKNOWLEDGMENTS. 128 less she also sllo^ys that these facts were known to the grantee.^ § 277. Not Conclusive if Grantee is Chargeable with No- tice. — But a married woman's deed may have the proper certificate and yet be avoided by her if the certificate does not speak the truth, or the deed or acknowledg- ment was obtained by fraud or force, provided the pur- chaser is charged with notice of these facts before the purchase money is paid.'^ § 278. Not Conclusive if Grantor did not Acknowledge. — Where a deed of the wife is regular in form and has a regular certificate of acknowledgment which shows on its face proper acknowledgment of the wife, if in truth the wife never appeared before the officer nor attempted to acknowledge same, his false certificate will be void, and this may be shown by parol evidence.® The officer has no more right to certify to an acknowledgment she did not make than to forge her name. But if she ap- pear before him for that purpose and attempts to ac- knowledge it, although the acknowledgment was not properly taken, his certificate would be conclusive as to innocent purchasers.^ § 279. Defective Certificate does not Render Deed Void When. — A defective certificate of a proper acknowledg- ment does not render the deed absolutely void, for it 6 Miller v. Yturria, 69 Tex. 552, 7 S. W. 206; Webb v. Burney, 70 Tex. 323, 7 S. W. 841; Adams v. Pardue (Tex. Civ, App.), 36 S. W. 1017. 7 Cole V. Bammel, 62 Tex. 112; Davis v. Kennedy, 58 Tex. 516; Wiley V. Prince, 21 Tex. 637; Miller v. Yturria, 69 Tex. 552, 7 S. W. 206. Conclusive in the absence of fraud: Brand v. Col. S. Co., 70 S. W. 578. 8 Wheelock v. Cavitt, 91 Tex. 682, 66 Am. St. Eep. 920, 45 S. W. 796. 9 Breitling v. Chester, 88 Tex. 589, 32 S. W. 527. 129 OF MAEEIED WOMEN. §§ 280-282 may be corrected in several ways.^^ A deed of a mar- ried woman properly acknowledged, but defectively certified, would be void as to vested rights. ^^ § 280. Wife's Deed not Complete Without Certificate of Acknowledgment. — A deed of a married woman is not complete without the certificate of acknowledgment, explanation, privy examination, etc., as prescribed by the statute. Not only is the acknowledgment required, but also the certificate of it.*^ § 281. Held, Wife's Deed Void Until Certificate Corrected. It is also held that while a defective certificate of a proper acknowledgment may be corrected by suit, or re- examination, until it is corrected, the deed is void even between the parties.^^ A defective acknowledgment shown by the certificate is, of course, void.' ' 14 § 282. Amendment, — A certificate may be amended by the officer after it has left his hands without a re- examination, if he is still in office and she has not with- drawn her consent/^ The reverse was held by the court of civil appeals in the same case. It is held that if the officer taking the acknowledgment of a married woman is still in office, he may amend his certificate by attaching his seal, provided she has not in the meantime withdrawn her acknowledgment, but under no other cir- cumstances.^® 10 See chapter 28. 11 Am. & Eng. Ency. of Law, 2d ed., 568. 12 Looney v. Adamson, 48 Tex. 622; Williams v. Ellinsworth, 75 Tex. 480, 12 S. W. 746. 13 Starnes v. Beitel, 20 Tex. Civ. App. 524, 50 S. W. 203; John- son V. Taylor, 60 Tex. 361; Kev. Stats. 1895, arts. 634, 635. 14 Norton v. Davis, 83 Tex. 36, 18 S. W. 430. 15 Stone V. Sledge, 87 Tex. 54, 47 Am. St. Kep. 65, 26 S. W. 1069. 16 McKellar v. Peck, 39 Tex. 388. See post, §§ 992-997. 9 §§ 283-286 CEETIFICATION OF ACKNOWLEDGMENTS. 130 § 283. Certificate Proven, How. — A certificate of ac- knowledgment of a married woman is part of the deed and may be shown or proven in the same manner as the rest of the deed.-*^'' § 284. Parol Evidence. — But parol evidence is not ad- missible to show official character of the officer taking the acknowledgment, his official character not appear- ing on the face of the instrument. ^^ Neither is parol evidence admissible to show that a deed was voluntarily executed by the wife, the officer's certificate not show- ing that there had been a privy examination and ac- knowledgment.^^ Nor are admissions of wife admissi- ble to show conveyance or sale of her property.^^ § 285. Idem. — But it is held that parol testimony is admissible to prove that the seal of the officer was un- designedly omitted.^^ And it was held that parol evi- dence was admissible to prove that the signature to the deed, "J. M. W.," and the name in the certificate of ac- knowledgment, "James M. W.," were the same persons and were intended for "Jasper M. W."^^ § 286. Porm of Certificate of Married Woman's Acknowl- edgment — The form and substance of certificates of ac- knowledgments and proof are controlled by the statutes in force at the time the certificate of acknowledgment was made.^^ If a certificate is invalid at the time it 17 Simpson v. Edens, 14 Tex. Civ. App. 235, 38 S. W. 474. 18 Stone V. Sledge (Tex. Civ. App.), 24 S. W. 697; Looney v. Adamson, 48 Tex. 619. 19 Stone V. Sledge (Tex. Civ. App.), 24 S. W. 697; Looney v. Adamson, 48 Tex. 619. 20 Bailey v. Trammel!, 27 Tex. 328. See ante, §§ 174-181. 21 Nichols V. Stewart, 15 Tex. 235; and see Nichols v. Gordon, 25 Tex. Supp. 112. 22 Cheek v. Herndon, 82 Tex. 148, 17 S. W. 763. See "Parol Evi- dence," ante, §§ 174-190. 23 Eev. Stats. 1895, art. 4661. See the statutory provisions, §§ 325-348. 131 OF MAEEIED WOMEN. §§ 287-290 is made, subsequent laws adopting the form used will not cure it.^* § 287. Substantial Compliance with Statute Necessary. — While our statutes, except the earlier ones, provide forms to be used for certificates, they are not essential to valid certificates if they contain all that is necessary to show a valid acknowledgment. No material fact should be omitted, but a substantial compliance with the statute is sufficient.^^ § 288. May be Invalid as to Husband but Valid as to Wife. — A certificate may be invalid as to husband but valid as to wife. For instance, a certificate in the fol- lowing form: "Before me, the undersigned authority, personally appeared E. and E., his wife, who are to me made known, and acknowledged that signed, executed and delivered the foregoing deed," etc., fol- lowed by the wife's acknowledgment in statutory form, though defective as to the husband, because it failed to show that he signed, executed and delivered the deed, is good as to the wife, and entitles the deed to be re- corded.^® § 289. Must Certify What.— The certificate must state all that is necessary to show a valid acknowledgment.^'' The essentials to be stated are shown in the following sections . § 290. Separate and Privy Examination. — The certifi- cate must show separate examination of the married woman or it is insufficient.^* But prior to the act of 24 Texas Land Co. v. Williams, 51 Tex. 51. 25 Deen v. Wills, 21 Tex. 646; Monroe v. Arledge, 23 Tex. 480; Belcher v. Weaver, 46 Tex. 294, 26 Am. Rep. 267; Talbert v. Dull, 70 Tex. 675, 8 S. W. 530; Johnson v. Thompson (Tex. Civ. App.), 50 S. W. 1057. See Livingston v. Kettelle, 41 Am. Dec. 179, note. 26 Kork v. Shields, 16 Tex. Civ. App. 640, 42 S. W. 1032. 27 Looney v. Adamson, 48 Tex. 622. 28 Berry v. Donley, 26 Tex. 737; Minor v. Powers (Tex. Civ. App.), §§ 297-299 CERTIFICATION OF ACKNOWLEDGMENTS. 134 C D. And the recitation that he explained the deed is equivalent to saying that he fully explained it.^® § 297. Certificate not Defective for Failing to Show that Deed was Shown to Wife. — It is not necessary for a valid conveyance by a married woman that an ofl&cer taking the acknowledgment show by his certificate that the in- strument was shown to her. Article 4620 of the Re- vised Statutes of 1895 prescribes a sufficient form of certificate.^^ § 298. Free from Compulsion. — The certificate must show that the married woman signed the deed willingly, and if it does not, it is a nullity.'**^ § 299. "Free" Instead of "Willingly." — The use of the word "free" act, and the omission of the words "will- ingly signed the same," in the certificate is not fatal.*^ The recitation that "she declared that exe- cuted the same freely and with constraint on the part of her said husband and that she did not wish to re- tract the same," sufficiently shows that she did it will- ingly, as it is clear that writing the w^ord "with" instead of "without" is a clerical error, and that notwithstand- ing the omission of "she" before "executed," the certifi- cate as a whole sufficiently shows that she acknowl- edged the execution thereof.^ 38 Clark V. Groce, 16 Tex. Civ. App. 453, 41 S. W. 668; Johnson. V. Thompson (Tex. Civ. App.), 50 S. W. 1057. 39 Belcher v. Weaver, 46 Tex. 294, 26 Am. Bep. 267; Brenneman V. Mayer, 24 Tex. Civ. App. 164, 58 S. W. 725. See Livingston v. Kettelle, 41 Am. Dec. 182. 40 Smith v. Elliott, 39 Tex. 209; Belcher v. Weaver, 46 Tex. 293, 26 Am. Eep. 267; Davis v. McCartney, 64 Tex. 585; McNulty v. Elli- son (Tex. Civ. App.), 71 S. W. 670; Tiemann v. Cobb (Tex. Civ. App.), 80 S. W. 250. 41 Wilson V. Simpson, 80 Tex. 281, 16 S. W. 40; Thompson v. John- son, 92 Tex. 360, 51 S. W. 23; Eork v. Shields, 16 Tex. Civ. App,, 640, 42 S. W. 1032. 42 Johnson v. Thompson (Tex. Civ. App.), 50 S. W. 1057. See ante, § 257, and also Livingston v. Kettelle, 41 Am. Dec. 181, note. 135 OF MAREIED WOMEN. §§ 300-303 § 300. "Retract." — The certificate must show that at the time of the acknowledgment, the married woman declared that she did not wish to retract it.*^ Al- though the certificate fails to certify that the wife "did not wish to retract it," yet if an equivalent expression is used it will be sufflcient.'*^ The omission of the word "it" in the expression "she did not wish to re- tract it" is immaterial."*^ Statement that she "con- sented that the same be recorded" was substantially equivalent to the statement that she did not wish to re- tract it.^« § 301. ''Known to Me." — Previous to the adoption of the Revised Statutes of 1879 it was not necessary for the certificate to show that the grantor was known to the officer, but since the adoption of this statute the certificate must show that the grantor was known to the officer, or it would be invalid.^'' § 302. Acknowledgment Must be Personal to Officer. — It must certify that the grantor acknowledged to the of- ficer the execution of the instrument.'** § 303. Idem. — The recitation in the certificate that "this day before me, F G, notary public, came A B and 43 Davis V. Agnew, 67 Tex. 210, 2 S. W. 43, 376; Freeman v. Pres- ton (Tex. Civ. App.), 28 S. W. 495; Murphy v. Eenaud, 2 Tex. Civ. App. 470, 21 S. W. 991; King v. Haley, 75 Tex. 169, 12 S. W. 1112; Hayden v. Moffatt, 74 Tex. 150, 15 Am. St. Rep. 866, 12 S. W. 820. 44 Adams v. Pardue (Tex. Civ. App.), 36 S. W. 1018. 45 Moores v. Linney, 2 Tex. Civ. App. 293, 21 S. W. 709; Mont- gomery V. Hornberger, 16 Tex. Civ. App. 28, 40 S. W. 628; Estes v. Turner, 30 Tex. Civ. App. 365, 70 S. W. 1009. See ante, § 257, and Livingston v. Kettelle, 41 Am. Dec. 183, note. 46 Masterson v. Harris (Tex. Civ. App.), 83 S. W. 429. 47 Davidson v. Wallingsford, 88 Tex. 623, 32 S. W. 1030; Hurst v. Finley, 22 Tex. Civ. App. 605, 55 S. W. 388; Sowers v. Peterson, 59 Tex. 219; McNuIty v. Ellison (Tex. Civ. App.), 71 S. W. 670; ante, §§ 139-146, 257, 268, 269. 48 See ante, §§ 154-156. §§ 304-307 CERTIFICATION OF ACKNOWLEDGMENTS. 136 C D, to me well known, and acknowledged that they signed the foregoino- deed," etc., fairly shows that they acknowledged the same to the officer. And the recita- tion that "C D, wife of A B, being examined privily and apart from her husband, and after having said deed fully explained to her," etc., will be construed to mean that the examination was conducted by the officer and that he explained the deed to her.*** § 304. Official Character Must be Shown. — The official character of the officer must be shown in the certificate, or appended to his signature, or shown by the seal, but they may be aided by reference to the deed.^ 50 § 305. Official Seal.— The official seal must be at- tached.^^ § 306. Signature of Officer. — The signature of the of- ficer must be appended. ^^ § 307. Certain Omissions Immaterial. — But it seems that the omission of the venue,^^ the date,^* the words "pur- poses and considerations,"^^ the reference to the seal,^^ and certain other words, as will be seen under the head of "omissions," will not invalidate the certificate. If the certificate certifies that the officer affixed his seal, the presumption is that he did affix it, even though the record or a certified copy of it fails to show the char- acters usually used to represent the seal. 57 4'9 Johnson v. Thompson (Tex. Civ. App.), 50 S. W. 1057. 50 See ante, § 133. 51 See chapter 13. 52 See ante, § 132. 53 See ante, § 130. 54 See ante, § 131. 55 See ante, § 172. 56 See post, § 488. 57 Coffey V. Hendricks, 66 Tex. 677, 2 S. W. 47; V^itt v. Harlam, 66 Tex. 660, 2 S. W. 41; Ballard v. Perry, 28 Tex. 347. 137 OF MABEIED WOMEN. §§ 308-310 § 308. Identity of Grantor and Person Acknowledging Deed. — Their identity must appear with reasonable cer- tainty from the certificate and deed.^* § 309. Omissions and Errors. ^^ — Immaterial omissions are not fatal. For instance, the omission of "it" in the closing clause of the certificate "she did not wish to re- tract it" is not fatal,®^ nor under the act of April 30, 1846, is the omission of the words "freely" and "seal" from the certificate, nor the use of "signed" for "exe- cuted," nor the words "and deed" in connection with "her act and deed," nor the words "delivered" and "shown to her," nor the use of the word "contract" for "retract" ; nor is the use of the expression "without any bribe, threat or compulsion" fatal.*^^ Nor is the omis- sion of the words "sealed and delivered" fatal. *^^ Nor is the use of the words "free act," and the omission of words "willingly signed the same" fatal. *^ Nor is the use of "separate" instead of "privily," it being cured by the act of July 28, 1876.^^ § 310. Error Clearly Clerical not Fatal. — Where it ap- pears from the certificate as a whole that the officer in- tended to write the proper word and its omission was a clerical error, the certificate is not vitiated by such error.^ So where the statute had evidently been com- plied with, writing "with" for "without" in such cer- tificate, is immaterial.®^ Also is "assigned" instead of 58 See ante, §§ 147-153. 59 See ante, §§ 171-173. 60 Moores v. Linney, 2 Tex. Civ. App. 294, 21 S. W. 709; Mont- gomery V. Hornberger, 16 Tex. Civ. App. 28, 40 S. W. 628. 61 Belcher v. Weaver, 46 Tex. 295, 26 Am. Eep. 267. 62 Mullens v. Weaver, 57 Tex. 5. 63 Wilson V. Simpson, 80 Tex. 281, 16 S. W. 40. 64 McDannell v. Harrell, 1 U. C. 526. 65 Durst V. Dougherty, 81 Tex. 650, 17 H. W. 388. 66 Durst V. Dougherty, 81 Tex. 650, 17 S. W. 388. §§311,312 CERTIFICATION OF ACKNOWLEDGMENTS. 138 "signed" imiiiaterial.*^' Under article 4313 of the Re- vised Statutes of 1879, wliere the certificate omitted to state that she had acknowledged the instrument "to be her act and deed," but showed that she had willingly' signed it and "wished not to retract it," it was held sufficient.**** The omission of "her" before "act and deed" is not fatal, and the insertion of a name ont of place in the certificate may be treated as surplusage.^^ The use of "separate and apart" is equivalent to "privily,"''^ and "she voluntary assents thereto" is equivalent to "she did not wish to retract it JJ71 § 311. Material Omissions Fatal. — But the omission of "explained" in the expression "having been fully ex- plained to her," is fatal.''^ And the omission of "signed" in the expression "signed, sealed and de- livered" is fatal.''^ And where there are several gran- tors of both sexes recited in the certificate, and it recites that "he" acknow^ledged that "he" executed the same, etc., it is fatally defective. '^'^ § 312. Equivalent Expressions.''^ — In a married wom- an's cerliificate of acknowledgment the use of "contract" for "retract" and without any "bribe, threat or compul- sion" is not fatal.''^ Equivalent words may be used, such as "executed" for "subscribed."^'' And the use of "separately" instead of "privily" is sufficient.'"* 67 Broussard v. Dull, 3 Tex. Civ. App. 59, 21 S. W. 937. 68 Thompson v. Johnson, 84 Tex. 548, 19 S. W. 784. 69 Gray v. Kaufman, 82 Tex. 69, 17 S. W. 513. 70 Coombes v. Thomas, 57 Tex. 321. 71 Norton v. Davis, 83 Tex. 32, 18 S. W. 430. 72 Moores v. Linney, 2 Tex. Civ. App. 294, 21 S. W. 709; Jones v. Robins, 74 Tex. 618, 15 S. W. 824. 73 Smith v. Elliott, 39 Tex. 209. 7 4 Threadgill v. Bickerstaff, 7 Tex. Civ. App. 406, 26 S. W. 741. 75 See ante, §§ 157-163. 76 Belcher v. Weaver, 46 Tex. 295, 26 Am. Eep. 267. 77 Norton v. Davis, 83 Tex. 32, 18 S. W. 430; Dorn v. Best, 15 Tex. 62; Wilson v. Simpson, 80 Tex. 279, 16 S. W. 40. 78 stringer v. Swenson, 63 Tex. 7. 139 OF MAERIED WOMEN. §§ 313-316 § 313. Estoppel and Equities. — A defect in a married woman's deed by reason of a defective acknowledgment may be waived by ber.''^ And where a husband and wife appear in probate court and ask that a tract of land be sold to satisfy balance of purchase money due on land for title, and the sale is made in accordance with their application, they will thereafter be estopped from setting up that the bond for title was void as to the wife on account of her acknowledgment being de- fective.^® § 314. In Case of Partition. — Where a married woman in a partition deed not properl}^ acknowledged by her, accepted the portion allotted to her, and afterward sells it to one not a party to the deed of partition, she and those claiming under her are estopped to assail the par- tition.**^ § 315. Where Wife's Land is Released. — While it is well settled that to pass the title of a married woman in the sale of her land it must be done in the mode pre- scribed by the statute, this does not preclude equities being adjusted and enforced. The law will not permit a married woman to avail herself of a defective certifi- cate of acknowledgment to her deed when such deed has served the purpose of releasing her land from other liens.*^ § 316. Where Fraud is Practiced by Wife. — Receiving all the benefits of a sale by a married woman and never objecting to improvements being made by the purchaser does not estop her or her heirs from claiming land on account of her acknowledgment being defective, but a 79 Cole V. Bammel, 62 Tex. 117. 80 Dalton v. Eust, 22 Tex. 151. 81 Talkin v. Anderson (Tex.), 17 S. W. 361; and see Wardlow v. Miller, 69 Tex. 397, 67 S. W. 292; Aycock v. Kimbrough, 71 Tex, 333, 10 Am. St. Rep. 745, 12 S. W. 71; Ryan v. Maxey, 43 Tex. 192. 82 McKinney v. Matthews (Tex.), 6 S. W. 795. §§ 317-319 CERTIFICATION OF ACKNOWLEDGMENTS. 140 fraud practiced by her which is relied on and acted upon by the purchaser would estop her.^"'* As claiming that the land belonged to her husband.^* § 317. Not Estopped Simply Because She Received the Benefits. — Where a mortgage given by a husband and wife to a building and loan association to secure a loan made by said association for the erection of improve- ments on their homestead was acknowledged before an oflflcer, who was a stockholder or interested party, and although the husband and wife received the money and erected the improvements, they are not estopped from setting up the defense of the failure of her acknowledg- ment.^ § 318. Defective Certificate of Valid Acknowledgment. — While a deed of a married woman properly acknowl- edged, but defectively certified, will not pass title, it does not follow that it is absolutely void.^^ § 319. Conclusiveness of Certificate of Wife's Acknowl- edgment.^'' — A certificate of acknowledgment of a mar- ried woman cannot be impeached, and is conclusive of the facts therein stated where the conduct of the grantee is in good faith and he pays a valuable and adequate consideration for the land;** and a pre-existing deed is such valuable consideration as will sustain the deed.*^ The doctrine is well settled that a grantor cannot de- 83 Fitzgerald v. Turner, 43 Tex. 84; Stone v. Sledge, 87 Tex. 49, 47 Am. St. Eep. 65, 26 S. W. 1069. 84 Berry v. Donley, 26 Tex. 746; Cravens v. Booth, 8 Tex. 243, 58 Am. Dec. 112. 85 Bexar Bldg. etc. Assn. v. Heady, 21 Tex. Civ. App. 154, 50 S. W. 1081, 57 S. W. 583. 86 Johnson v. Taylor, 60 Tex. 365; Womack v. Womack, 8 Tex. 397, 58 Am. Dec. 119. 87 See ante, § 211. 88 Waltee v. Weaver, 57 Tex. 569; Davis v. Agnew, 67 Tex. 210, 2 S. W. 43, 376; Stallings v. Hiillum, 79 Tex. 421, 16 S. W. 677. 89 Webb V. Burney, 70 Tex. 325, 7 S. W. 841; Freiberg v. De La- mar, 7 Tex. Civ. App. 263, 27 S. W. 151. 141 OF MAEEIED WOMEN. §§ 320, 321 feat her deed by claiming that she was misinformed by the interpreter that the deed was a mortgage, as the certificate of acknowledgment would be conclusive un- less fraud was shown on the part of the gi'antee.®^ The wife cannot defeat her deed by showing that she did not understand its import unless grantee knew it was not understood.^^ The certificate of the wife's acknowl- edgment is conclusive in the absence of fraud between the parties thereto,^^ and the grantee must be a party to the fraud or it is not available.^^ The grantee must have knowledge of the fraud, mistake or imposition, or the circumstances must have been such as would have impelled him to inquiry which he neglected;®* that is, in case the grantee paid a valuable consider- ation.®^ ^ 320. Same Strictness does not Apply to Wife's as to Hus- band's. — But it is held that the same strictness as to what would constitute legal duress or imposition on the part of the husband in ordinary conveyances does not apply against the wife by reason of their peculiar relationship. Threat of separation or taking the chil- dren is sufiicient.®^ § 321. Cannot Show Want of Capacity in Officer, etc. — If it appear regular on its face and from the instrument attached, parol evidence is inadmissible to show want of capacit}^ in the officer making the certificate, or that 00 Herring v. White, 6 Tex. Civ. App. 249, 25 S. W. 1017, and cases cited; Summers v. Shearn (Tex. Civ. App.), 37 S. W. 246; Grey v. Shelby, 83 Tex. 407, 18 S. W. 809; Atkinson v. Keed (Tex. Civ. App.), 49 S. W. 262. 01 Miller v. Yturria, 69 Tex. 553, 7 S. W. 206. 92 Hartley v. Frosh, 6 Tex. 208, 55 Am. Dec. 772; Adams v. Par- due (Tex. Civ. App.), 36 S. W. 10-17. 93 Shelby v. Burtis, 18 Tex. 645; Henderson v. Terry, 62 Tex. 282. 84 Wiley V. Prince, 21 Tex. 637; Pool v. Chase, 46 Tex. 207; Pierce V. Fort, 60 Tex. 464. 95 Williams v. Pounds, 48 Tex. 141; Davis v. Kennedy, 58 Tex. 517. 96 Kocourck v. Marak, 54 Tex. 205, 33 Am. Rep. 623. §§ 322, 323 CERTIFICATION OF ACKNOWLEDGMENTS. 142 he was not acting within the sphere of his duty,^'' or that he was acting without his jurisdiction, or in the wrong county,®* or that the acknowledgment was im- properly taken.^ § 322. Officer cannot Explain Certificate, but may Prove Acknowledgment Properly Taken. — It is error to allow an ojBacer taking an acknowledgment to explain his mis- take or vary his certificate.*^*^ But such officer is a competent witness to prove that it was properly taken where suit was brought for the correction of the certifi- cate.*^* The notary's testimony is admissible to prove the execution of the deed, but not to cure the certificate where the seal had been omitted, so as to validate the registration.*^^ This was before the statute of 1879 providing for the correction of certificates by action.***^ § 323. May be Avoided by Her When. — A married woman's deed may have the proper certificate of ac- knowledgment and yet be avoided by her, if she did not attempt to acknowledge it;***'* or if the certificate does not speak the truth, or the deed or acknowledgment was obtained by fraud or force, provided that the purchaser is charged with notice of these facts before the pur- chase money is paid.***^ Where she is deceived as to the amount of the consideration received by placing a larger amount in the deed, such deed would pass no 97 Titus V. Johnson, 50 Tex. 240. 98 Peterson v. Lowry, 48 Tex. 412. 99 Forbes v. Thomas (Tex. Civ. App.), 51 S. W. 1097; Hurst v. Finley (Tex. Civ. App.), 54 S. W. 1072. This last-mentioned case was reversed on other grounds in 22 Tex. Civ. App. 605, 55 S. W. 388. 100 McKellar v. Peck, 39 Tex. 382. 101 Norton v. Davis, 83 Tex. 36, 18 S. W. 430. 102 King V. Eussell, 40 Tex. 130. 103 Post, § 998. 104 Breitling v. Chester, 88 Tex. 589, 32 S. W. 527. 105 Cole V. Bammell, 62 Tex. 112; Davis v. Kennedy, 58 Tex. 516; Wiley v. Prince, 21 Tex. 637; Miller v. Yturria, 69 Tex. 552, 7 S. W. 206. 143 OF MAEEIED WOMEN. §§ 324, 325 title.***^ She cannot defeat her deed by showing that she did not understand its contents unless she also shows that this fact was known to the grantee. 107 § 324. Presumption is that Certificate Recites the Facts. — The presumption is that the certificate recites what transpired between the oflflcer and the married woman at the time such acknowledgment was taken. ^^® But, of course, this presumption would be disputable; for instance, where she never attempted to acknowledge the deed, etc.^**^ B. STATUTOEY PEOVISIONS CONCEENING ACKNOWLEDG- MEXTS OF MAEEIED WOMEN. § 325. Act of February 3, 1841— Requirements and Form. The first act providing a means for the conveyance of the wife's separate property after the adoption of the common law was the act of February 3, 1841 (taking effect from passage),*^^ to wit: "H. D., art. 173: "Be it enacted by the Senate and House of Representa- tives of the Republic of Texas, in Congress assembled, that from and after the passage or approval of this act, when a husband and his wife have sealed and delivered a writing purporting to be a conveyance of any estate, or interest in any land, slave or slaves, or other effects, the separate property of the wife, if she appear before any judge of the district court, or chief justice of the county court, and being examined privily and apart from her husband, shall declare that she did freely and willingly seal and deliver the said writing (to be then shown and explained to her), and wishes not to retract 106 Cole V. Bammell, 62 Tex. 108. 107 Webb V. Burney, 70 Tex. 323, 7 S. W. 841; Adams v. Pardue (Tex. Civ. App.), 36 S. W. 1017. 108 Johnson v. Thompson (Tex. Civ. App.), 50 S. W. 1057; Clark V. Groce, 16 Tex. Civ. App. 453, 41 S. W. 669; Coombes v. Thomas, 57 Tex. 322. 109 Ante, § 323. 110 2 L. T. 608. 326 CEKTIFICATION OF ACKNOWLEDGMENTS. 144 it, and shall acknowledge the said writing so again shown to her, to be her act; such privy examination, acknowledgment and declaration the said judge or chief justice shall certify under his hand and seal by a cer- tificate annexed to said writing, and to the following effect, or substance thereof, that is to say: "Republic of Texas,) County of . ) I, A. B., chief justice of the county aforesaid, do hereby certify that E F, the wife of G H, parties to a certain deed, bearing date on the day of , and hereunto annexed, personally appeared before me, the chief justice of the county aforesaid, and having been examined by me privily and apart from her hus- band, and having the deed aforesaid fully explained to her, she, the said E F, acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed and delivered the same, and that she wished not to retract it. "Given under my hand and seal, this day of "— . [Seal] "But any certificate showing that the requisitions of the law have been complied with, shall be as valid as the form here prescribed ; and such conveyance shall pass all the right, title and interest which the husband and wife, or either of them, may have in or to the prop- erty therein conveyed." § 326. Idem — Annotated. — This act remained in force until June 22, 1846. It was a substitute for the method of conveying wife's property by the common-law method of fine and recovery.**^ Under the above act the sale of the wife's personal property was not necessarily re- quired to be in writing and acknowledged by her.^^^ 111 Langton v. Marshall, 59 Tex. 299; Grosbeck v. Bodman, 73 Tex. 292, 11 S. W. 322. 112 Stooksberry v. Swann, 12 Tex. Civ. App. 74, 34 S. W. 369. 145 OF MAEEIED WOMEN. §§ 327-329 But her deed not in compliance with this act conveyed neither legal nor equitable title.^*^ It provided the only method in which a married woman could convey her real estate.*^* § 327. Act of February 5, 1841— Validates Want of Au- thority in Certain Officers. — The validating statute of Feb- ruary 5, 1841, validates the want of authority of chief justices and clerks of the county court and notaries pub- lic in certain cases. It is very questionable if this would cure such want of authority in officers taking ac- knowledgments of married women.*^^ § 328. Act of April 29, 1846— Acknowledgment of Sched- ule of Wife's Property.— The act of April 29, 1846 (tak- ing effect June 22, 1816),"*^ authorized any officers qual- ified to probate deeds, to take the acknowledgments of married women to the schedule of her separate prop- erty, and give a certificate of the facts under his hand and seal of office, which certificate shall be sufficient evidence for the recorder of any county to register said schedule.**'' ACT OF APEIL 30, 1846 (TOOK EFFECT JUNE 22, 1846).ll8 § 329. Requirements and Form.- -H. D., art. 174: "Be it enacted by the legislature of the state of Texas that when a husband and his wife have sigiied and sealed any deed or other writing purporting to be a con- veyance of any estate or interest in any land, slave or slaves, or other effects, the separate property of the 113 Berry v. Donley, 26 Tex. 737; .Tohnson v. Taylor, 60 Tex. 361; Williams v. Ellensworth, 75 Tex. 482, 12 S. W. 746; Angier V. Coward, 79 Tex. 5.54, 15 S. W. 698. But see Tucker v. Carr, 39 Tex. 98. 114 Wadkins v. Watson, 86 Tex. 198, 24 S. W. 385, 22 L. R. A. 779; Cole v. Bammel, 62 Tex. 111. 115 Post, §§ 1006, 1007, 1018-1021. lie 2 L. T. 1459. 117 Ante, § 273a. 118 2 L. T. 1462. 10 § 330 CERTIFICATION OF ACKNOWLEDGMENTS. 146 wife, or of the homestead of the family, or other prop- erty exempted by laAV from execution, if tlie wife ap- pear before any jiidoe of the supreme or district court or notary public, and being privily examined by such ofl&cer, apart from her husband, shall declare that she did freely and willingly sign and seal the said writing, to be then shown and explained to her, and wishes not to retract it, and shall acknowledge the said deed or writing, so again shown to her to be her act, thereupon such judge or notary shall certify such privy examina- tion, acknowledgment and declaration, under his hand and seal, by a certificate annexed to said writing to the following effect or substance, viz. : "State of Texas, County of "Before me, judge of, or notary public of county, personally appeared ' , wife of parties to a certain deed or writing bearing date on the — ■ — ^day of ; and hereto annexed, and having been examined by me privily and apart from her husband and having the same fully explained to her, she, the said , acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed and delivered the same, and that she wished not to retract it ; to certify which, I hereto sign my name and affix my seal, this day of , A. D. . "But any certificate showing that the requisites of the law have been complied with shall be as valid as the form here prescribed; and such deed or conveyance, so certified, shall pass all the right, title and interest which the husband and wife, or either of them, may have in or to the property therein conveyed." § 330. Idem — Annotated. — This form of acknowledg- ment and conveyance remained in force until the adop- tion of the Revised Statutes of 1879, September 1st.**® 119 Ballard v. Carmichael, 83 Tex. 362, 18 S. W. 734; Thompson v. Johnson, 84 Tex. 548, 19 S. W. 784. 147 OF MAEEIED WOMEN. § 331 Under this act it was not necessary for the certificate to show that the instrument was shown to the married woman. ^^** The wife could transfer her personal prop- erty except slaves without separate acknowledg- ments/^^ but her conveyance in writing- must be ac- knowledged.*^^ Without it, her deed is void.*^^ Re- ceipt of benefit from proceeds would not estop her from recovering. -^^^ After the taking effect of this act it prescribed the only mode in which a married woman can convey her real estate. *^^ § 331. How Taken Without the State.i26_H. D., art. 175 : "Be it further enacted that when a husband and wife have signed and sealed any deed, of the character described in the first section of this act, out of this state, but within the United States, or any of their ter- ritories, if the wife apj)ear before any judge of a court of record having a seal, in any of said states or terri- tories, and be examined, and make the declarations and acknowledgments provided for in said section, and such judge shall make a certificate thereof in the manner provided for in said section, and attest the same under his hand and the seal of his court, such deed shall have the same force and effect as if the same had been done in this state, before any of the officers named in said section ; and when any such deed shall have been signed and sealed out of the United States, such examinations, declarations, and acknowledgments may be taken or 120 Breneman v. Mayer (Tex. Civ. App.), 58 S. W. 725. 121 Ballard v. Carmichael, 83 Tex. 355, 18 S, W. 734. 122 Ballard v. Carmichael, 83 Tex. 355, 18 S. W. 734. 123 Callahan v. Patterson, 4 Tex. 65, 51 Am. Dee. 712; Hampshire V. Floyd, 39 Tex. 105; Whetstone v. Coflfey, 48 Tex. 278; Callahan v. Houston, 78 Tex. 497, 14 S. W. 1027; Berry v. Donly, 26 Tex. 737; Gregory v. Van Vleck, 21 Tex. 41. 124 Fitzgerald v. Turner, 43 Tex. 79. See Johnson v. Taylor, 60 Tex. 361. 125 Wadkins v. Watson, 86 Tex. 198, 24 S. W. 385, 22 L. R. A. 779; Cole v. Bammel, 62 Tex. Ill, 126 See chapters 14, 18, 19. §§ 332-336 CEETITICATION OF ACKNOWLEDGMENTS. 148 made before any public minister, charge d'affaires, or consul of the United States, and the certificate of such minister, chargxS d'affaires, or consul, in the manner and form provided for in said section, and attested un- der their hand and official seal, shall have the same force and effect as if such examination, declaration and acknowledgment had been taken or made and certified in this state, before any of the officers named in said first section." § 332. Above Law Applies to What Property. — H. D., art. 176 : "Be it further enacted that this act is intended to apply to the property mentioned in the twenty-second section of the seventh article of the constitution, as well as to the property owned or claimed by the wife before marriage, and that acquired afterward by pur- chase, gift, devise or descent." § 333. Repeals Other Laws. — H. D., art. 177: "Be it further enacted, that all former laws and parts of laws, concerning the mode of conveyance of property in which the wife has an interest, be and the same are hereby repealed." § 334. Act of May 8, 1846 — Commissioners of Deeds. — The act of May 8, 1816 (taking effect June 22, 1846),*^^ authorized commissioners of deeds of the United States or District of Columbia to take the acknowledgments of married women. ^^* § 335. Act of May 13, 1846— Notaries Authorized.— The act of May 13, 1846 (taking effect June 22, 1846),*^^ au- thorized notaries public to take the acknowledgments of married women, but did not affect the requirements or form of certificate. § 336. Act of May 12, 1846 — Form and Requirements not 127 2 L. T. 1493. 128 Also see chapter 14, and post, §§ 729-731. 129 2 L. T. 1647. 149 OF MAEEIED WOMEN. §§ 337-341 Affected.— Act of May 12, 1846, applied only to single acknowledgments and authority of officers, which are considered elsewhere.*^** § 337. Act of March 16, 1848 — Form and Requirements not Affected.— Act of March 16, 1848 (taking effect Au- gust 7, 1848),*^^ authorized chief justices of the county court to take the acknowledgments of married women, under the same rules as are provided for notaries. *^^ § 338. Act of December 18, 1849 — Form and Requirements not Affected.— The act of December 18, 1849 (taking ef- fect from passage),^^^ authorized clerks of the county courts to take the acknowledgments of married women under the same rules prescribed for judges of the su- preme or district courts and notaries.*^"* § 339. Act of February 9, 1856— Validates.— Act of Feb- ruary 9, 1856,*^^ authorized deputy county clerks to take the acknowledgments of married women, and ac- knowledgments previously taken by such deputy clerks were declared to be as valid as if done by said prin- cipal clerks.*^® § 340. Act of February 9, 1860— Validates.— Act of Feb- ruary 9, 1860,^^'' validates certain certificates of ac- knowledgments of married women.^^* Act of January 14, 1862, validates acknowledgment made before a dep- uty clerk after April 6, 1861.*^^ § 341. Act of August 13, 1870— Validates.— The act of 130 See ante, §§ 91-93; post, §§ 644-656. 131 3 L. T. 119. 132 See ante, § 329; and post, §§ 674-679. 133 3 L. T. 449. 134 See ante, § 329, post, § 681. 135 4 L. T. 262. 136 See post, §§ 1000-1010. 137 4 L. T. 1437. 138 See post, §§ 959-962. 139 See post, §§ 1000-1010, 1038. §§ 342-345 CERTIFICATION OF ACKNOWLEDGMENTS. 150 August 13, 1870/^** validates certain acknowledgments made before county judges.^"** § 342. Act of April 27, 1874— Validates.— The act of April 27, 1874,^'*^ validates certain acknowledgments without the state and within the United States, before any officer in such cases now authorized to take such ac- knowledgments. ^■*^ § 343. Act of May 25, 1876 — Form and Requirements not Affected.— The act of May 25, 1876,^"*-* authorized county clerks and their deputies to take the acknowledgments of married women, but did not affect requirements of acknowledgment. § 344. Act of July 28, 1876— Validates.— The act of July 28, 1876, validates acknowledgments of married women taken before a chief justice of county court, district clerk, notary public or other authorized officer, provided the certificate shall show on its face that the married woman was examined by the officer taking the acknowl- edgment separate and apart from her husband, and hav- ing the same fully explained to her, she declared that she had willingly signed the same, and that she did not wish to retract it, or words to that effect. ^'*^ § 345. Revised Statutes of 1879 and 1895 (Took Effect September 1, 1879) — Requirements of Wife's Acknowledg- ment. — Article 4618 (4310), revising act of April 30, 1846, provided that "no acknowledgment of a married woman to any conveyance or other instrument purport- ing to be executed by her shall be taken unless she has had the same shown to her, and then and there fully explained by the officer taking the acknowledgment, on 140 6 L. T. 251. 141 See post, §§ 1000-1010, 1039. 142 8 L. T. 154. 143 See post, §§ 1000-1010, 1041. 144 8 L. T. 846. 145 See post, §§ 1000-1010, 1049, 1050. 151 OF MARRIED WOMEN. ?§ 346, 347 the examination privily and apart from her husband; nor shall he certify to the same unless she thereupon certifies to such officer that the same is her act and deed, that she has willingly signed the same, and that she wishes not to retract it." It is not necessary for the certificate to show that deed was shown to the wife.*^® § 346. Husband Must Join Wife in Her Conveyance- Article 635 (559), Revised Statutes of 1895 (1879): "The husband and wife shall join in the conveyance of real estate the separate property of the wife; and no such conveyance shall take effect until the same shall have been acknowledged by her privily and apart from her husband, before some officer authorized by law to take acknowledgments to deeds, for the purpose of be- ing recorded and certified to, in the mode pointed out in article 4643." It should be noted that article 4643, aforesaid, of Re- vised Statutes of 1895, does not prescribe the manner in which a married woman's acknowledgment may be taken, and the reference was evidently a mistake. It was corrected by the act of 1897. This mistake does not occur in Revised Statutes of 1879.**'' § 347. Conveyance of Homestead Must be Acknowledged by Vife.— Article 636 (560) , Revised Statutes of 1895 (1879): "The homestead of a family shall not be sold and conveyed by the owner, if a married man, without the consent of the wife. Such consent shall be evi- denced by the wife joining in the conveyance and sign- ing her name thereto, and by her separate acknowledg- ment thereto taken and certified to before the proper officer and in the mode pointed out in article 4643." The reference to "article 4643," in the above statutee, was evidently a mistake, whicli was corrected by the act of March 26, 1897. The mistake being obvious, and 146 Ante, § 297. 147 See post, § 347. §§ 348, 348a CERTIFICATION OF ACKNOWLEDGMENTS. 152 it being apparent that article 4621 was intended, it seems from the authorities that the court would inter- pret the statute as referring to the proper article. ^^'^ § 348. Form of Certificate of Wife's Acknowledgment.— The certificate of acknowledgment of a married woman must be substantially in the following form : "State of , County of "Before me [here insert the name and character of the officer], on this day personally appeared ', wife of , known to me [or proved to me on the oath of • ] to be the person whose name is subscribed to the foregoing instrument, and having been exam- ined by me privily and apart from her husband, and having the same fully explained to iier, she, the said , acknowledged such instrument to be her act and deed, and declared that she had willingly signed the same for the purposes and consideration therein expressed, and that she did not wish to retract it. "Given under my hand and seal of office this day of , A. D. . "[Seal] •" It is not necessary for the certificate to show that the instrument was shown to her.^^^ Certificate must show that she was known or made known to oflficer.^^® § 348a. Act of March 26, 1897 — Conveyance of the Home- stead. — "Section 1. Be it enacted by the legislature of the state of Texas : That article 636, title 20, of the Re- vised Civil Statutes of the state of Texas, be and the same is hereby amended so as to read as follows : "Article 636. The homestead of the family shall not be sold and conveyed by the owner, if a married man, 148 State V. McCracken, 42 Tex. 383; Chambers v. State, 25 Tex. 307; Am. & Eng. Ency. of Law, 2d ed., 655, 656. 149 Breneman v. Mayer (Tex. Civ. App.), 58 S. W. 733. 150 Hurst V. Finley (Tex. Civ. App.), 55 S. W. 388. 153 OF MAEEIED WOMEN. § 348b without the consent of the wife. Such consent shall be evidenced by the wife joining in the conveyance and signing her name thereto, and by her separate acknowl- edgment thereof taken and certified to before the proper officer and in the mode pointed out in article 4621."^^-'^ § 348b. Conveyance of Wife's Separate Property. — "Sec- tion 1. Be it enacted by the legislature of the state of Texas: That article 635, title 20, of the Revised Civil Statutes of the state of Texas, be and the same is hereby amended so as to read as follows: "Article 635. The husband and wife shall join in the conveyance of real estate, the separate property of the wife; and no such conveyance shall take effect until the same shall have been acknowledged by her privily and apart from her husband before some officer author- ized by law to take acknowledgments to deeds for the purpose of being recorded, and certified to in the mode pointed out in article 4621."^^^ 151 10 L. T. 1094. 152 10 L. T. 1095. PROOF OF INSTRUMENTS BY WITNESSES. 154 CHAPTER XII. PROOF OF INSTRUMENTS BY WITNESSES. A. PROOF AND WITNESSES GENERALLY. § 349. Proof made under what law. § 350. Necessity of subscribing witnesses under Spanish law prior to 1836. § 351. Conveyance not full proof unless witnessed. § 352. Witnessed by notaries. § 353. Under colonization laws, title not witnessed must be proved. § 354. Necessity of subscribing witnesses subsequent to 1836. § 355. Married woman's deed cannot be proved by subscribing witnesses when. § 356. By subscribing witnesses not required in all cases. § 357. Act of December 20, 1836 — How made under — Presumption as to proof. § 358. How far repealed. § 359. How proved under subsequent statutes. B. HOW PROVED GENERALLY. § 360. Judge attesting is subscribing witness when. § 361. Acknowledgment of officer's signature to certificate sufficient proof. § 362. Officer not competent without accounting for absence of wit- ness. § 363. Subscribing witness must be produced if possible. § 364. Sole subscribing witness sufficient when. § 365. Where witness signs by making his mark. § 366. Certificate that instrument was "duly proven before me" insufficient. § 367. Necessary to state that witness signed at request of grantor when. § 368. Signed at request of — Rule at present time. § 369. Not necessary to show witness' means of knowledge. § 370. Means of knowledge stated. § 371. Must show witness saw grantor sign or heard him acknowl- edge. § 372. Not necessary for witness to have seen execution. § 373. Saw firm name signed. § 374. Grantor's name instead of attorney's in certificate fatal. § 375. Clerical omission not fatal when. 155 PROOF OF INSTRUMENTS BY WITNESSES. C. PROOF BY WHOM TAKEN. § 376. Generally. § 377. Officer who is subscribing witness is qualified. D. PROOF OF INSTRUMENTS FOR RECORD BY WHOM MADE. § 378. By subscribing witnesses generally. § 379. Where there were no subscribing witnesses. § 380. Witness beyond jurisdiction of the court. § 381. Act of May 12, 1846. § 382. Act of March 6, 1863. § 383. Revised Statutes of 1879 and 1895. § 384. Number of witnesses to prove handwriting required. E. WHO MAY BE SUBSCRIBING WITNESSES. § 385. General rule. § 386. Held that grantee is incompetent witness. § 387. Interest disqualified witness when. § 388. Idem. § 389. Interest does not disqualify when. § 390. Where one witness incompetent, handwriting of other may be proved. § 391. Grantor's selection and volunteer witnesses. F. WITNESS MUST BE KNOWN TO OFFICER. § 392. Witness required to be known when. G. CERTIFICATE OF PROOF BY SUBSCRIBING WITNESSES. § 393. Must show that witness known. § 394. Idem. § 395. That witness was sworn. § 396. That witness saw execution, or heard acknowledgment and was requested to sign. § 397. Idem— Rule prior and subsequent to 1846. § 398. Where witness' name appears on deed, it is not necessary to certify that he was a subscribing witness. § 399. Alternative certificate. § 400. Irregular certificate. § 401. Ofiicial character. § 402. Seal. § 403. Signature. § 404. Purposes and considerations. § 405. "Execute" instead of "subscribe." § 406. Other requirements and force and effect of certificate. § 407. Form of certificate of proof controlled by what law. § 408. Substantial compliance with statute only required. PROOF OF INSTRUMENTS BY WITNESSES. 156 H. STATUTORY REQUIREMENTS AND FORMS FOR PROOF BY SUBSCRIBING WITNESSES. § 409. Decree of April 18, 1834 — Judges to be assisted by witnesses. § 410. Act of December 20^ 1836— Chief justices authorized to take proof. § 411. Clerlv authorized to record on proof by one witness. § 412. Proof by two witnesses or handwriting of one. § 413. Certificates and form under this act. § 414. Act of January 19, 1839— Required certificate. § 415. Act of January 18, 1840 — Statutes of frauds. § 416. Act of February 5, 1840— Two witnesses— Certificate. § 417. Act of February 5, 1841— Validates. § 418. Idem— Certificate and proof. § 419. Act of May 8, 1846 — Commissioners of deeds. § 420. Act of May 12, 1846 — Proof and acknowledgment, how made. § 421. Handwriting proved. § 422. Grantor unknown. § 423. Certificate attested. § 424. Presumption where no certificate of proof of identity. § 425. No form provided. § 426. Act of February 9, 1860— Validates. § 427. Acts of 1861, 1862, 1866 and 1871. § 428. Act of 1863— Where grantor makes his mark. § 429. Act of August 13, 1870— Validates. § 430. Act of May 19, 1871— Witness not disqualified by interest. § 431. Act of April' 27, 1874— Validates. § 432. Revised Statutes of 1879 and 1895— Proof by subscribing witness. § 433. Grantor know or proven. § 434. Prior to Revised Statutes of 1879. § 435. Form of certificate. § 436. Proof of handwriting. § 437. Facts to be proven. § 438. Where instrument signed by mark. § 439. Number of witnesses. I. PROOF OF INSTRUMENTS BY PROOF OF HANDWRITING. § 440. What law in force. § 441. Proof must conform to statute in force at time proof is made. § 442. Proof for record by proof of handwriting. § 443. Must be proved by persons authorized by statute. § 444. Where witness is interested. § 445. Where witness is grantor or grantee. § 446. Ancient instrument. § 447. Predicate for secondary evidence. § 448. Most satisfactory proof. 157 PEOOF OF INSTRUMENTS BY WITNESSES. § 349 § 449. Proof of handwriting by comparison. § 450. Rule modified. § 451. Certificate of proof by proof of handwriting. § 452. Substantial compliance only necessary. § 453. Valid forms. § 454. Idem. J. STATUTES AND NOTES CONCERNING PROOF BY PROOF OF HANDWRITING. § 455. Act of December 20, 1836. § 456. Handwriting of whom— Certificate. § 457. Admissible in evidence but not of record. § 458. Act of January 19, 1839— Signature of signer. § 459. Act of January 18, 1840— Statute of frauds. § 460. Act of February 5, 1840— Proof by two witnesses. § 461. Act of February 5, 1841— By a subscribing witness. § 462. Act of May 12, 1846 — Witness absent. § 463. Sufficient proof— Grantee prove absence of witnesses. § 464. Act of February 9, 1860— Validates. § 465. Act of March 6, 1863 — Witness absent. § 466. Sufficient proof under this act. § 467. Revised Statutes of 1879 and 1895— Handwriting of grantor and one subscribing witness proved. § 468. Facts which must be proven. § 469. Signature by mark— Proof, how made. § 470. Proof made by whom. K. OTHER MEANS OF PROVING CONVEYANCES FOR RECORD. § 471. Obtaining and recording judgment. § 472. Curing certificates. L. PROOF OF DEEDS OFFERED IN EVIDENCE. § 473. Common-law rules of evidence. § 474. By subscribing witnesses. § 475. Subscribing witnesses not obtainable or adverse party. § 476. Where witness' handwriting cannot be proved. § 477. May be proved by grantee when. § 478. Proved by any competent witnesses when. § 479. No subscribing witnesses — Proof, how made. § 480. By other evidence. § 481. Primary and secondary evidence. § 482. General rule. § 483. Line drawn between primary and secondary evidence. A. PROOF AND WITNESSES, GENERALLY. § 349. Proof Made Under What Law. — Proof of instru- ments for record must be made in compliance with the §§ 350, 351 PROOF OF INSTRUMENTS BY WITNESSES. 158 statutory provisions of this state relating to same, the common-law modes of proof having no application to proof for registration.* And must be made in com- pliance with law in force at time proof is made.^ 2 § 350. Necessity of Subscribing Witnesses Under Spanish Law Prior to 1836. — Prior to the act of December 20, 1836, the Spanish civil law was in force in Texas, ex- cept so far as it was modified by the decrees of Mexico, and of Coahuila and Texas. Under the Spanish law prior to said date, "every act sealed with the king's seal, with that of an archbishop, bishop, or city council, or abbot, or master of an order of knighthood ; or sealed with the seal of a count, of a council, or of any person having an authentic seal, will make full proof of what it contains ; likewise the act made by the hand of a no- tary public in which is written the names of at least two witnesses, the day, month, year and place when and where it was made, makes proof of what it contains. And so we say, that any writing not executed by the hand of a notary public, but by some other person, and signed by two witnesses in their own handwriting, will be valid during the lives of the witnesses, on their at- testing that the contract was made as set forth in such writing; provided it were a contract which could be proved by the testimony of two witnesses." The names of the witnesses should be written by themselves, or by the hand of the notary who executed the act, according to the customs of the country.^ § 351. Conveyance not Full Proof Unless Witnessed. — "If anyone execute any writing against himself with his own hand, or cause it to be executed by another, or put his seal thereto, it will be proof in any suit against him, or for anything lent him ; as for bread or money, or any 1 Currell v. Higgs, 1 U. C. 61; Woolfolk v. Graniteville etc. Co., 22 S. C. 332; ante, § 68. 2 Ante, § 68. 3 Sayles' Early Laws, arts. 127, 128; ante, chapter 1, § 3 (f). 159 PEOOF OF INSTEUMENTS BY WITNESSES. §§ 352, 353 other movable thing which can be counted, weighed or measured; but if he whose name is written in the in- strument denies it, no faith shall be given to it, unless the other party prove that it was made by him or his his order. Yet if the handwriting concern any specific thing, as the sale or exchange of a house, vineyard, or other object, it would not be full proof thereof, though it would afford a presumption, because writings of this nature ought to be executed by the hand of a notary public or other notary and signed by respectable wit- nesses, in order to prevent all fraud or forgery."* § 352. Witnessed by Notaries. — After a deed is written by a notary he should subscribe his mark and name. "It is sufficient that all public acts be witnessed by two notaries public, who shall subscribe their names thereto, independent of the notary by whom it was written. And if so many notaries cannot be had in the place, then it will be sufficient for three, or at least two, good men to subscribe as witnesses, writing their names at the end of the instrument before the notary subscribes his."^ It is intimated that unless there were instru- mental witnesses, when the sale is made before a no- tary in 1835, the instrument is not a complete and per- fect public instrument ; and while they may not furnish full proof, but slight additional proof will be required.^ But the court fails to note the distinction between as- sisting and instrumental, which accounts for this state- ment, no doubt. '^ § 353. Under Colonization Laws, Title not Witnessed Must be Proved. — Under the instructions to the land commis- sioner, by the colonization laws of September 4, 1827, requiring all titles, etc., signed by the commissioner to be attested by two assisting witnesses, it is held that the 4 Saylcs' Early Laws, arts. 127, 128. See ante, § 3 (f). 5 Sayles' Early Laws, arts. 127, 128. gee ante, § 3 (f). 6 Cowan V. Williams, 49 Tex, 395. 7 See ante, § 3 (f). § 354 PROOF OF INSTRUMENTS BY WITNESSES. 160 Avant of one or both of the assisting witnesses does not render the instrument null or void, but only the authen- tication of it defective, and that the authentication or proof of execution may be proven by other evi- dence.^ The object of the requiring assisting wit- nesses Avas to render other proof unnecessary.* The omission of instrumental witnesses in an act of sale before notary public in 1835 did not render instrument void.^** Title executed by commissioner without either instrumental or assisting witnesses was not an au- thentic act, but might be proved by other evidence.*^ § 354. Necessity of Subscribing Witnesses Subsequent to 1836.— After the act of December 20, 1836, subscribing witnesses were not essential to the validity of an in- strument, or its proper registration, but only serve as a safeguard, so that in case the instrument is not ac- knowledged, or not properly acknowledged, proof for registration, except in cases of married women, may be made by one of the subscribing witnesses;*^ even by a sole subscribing witness. ^^ A deed acknowledged be- fore a notary without subscribing witnesses is admissi- ble in evidence. Or proof of such deed may be made by the grantor.^* A trustee making a deed to himself, there being no witnesses and no acknowledgment, may testify to its execution. ■'^^ 8 Clay V. Holbert, 14 Tex. 201; Allen v. Hoxey, 37 Tex. 334; Ruis V, Chambers, 15 Tex. 587; Jones v. Monies, 15 Tex. 351; Watrous v. McGrew, 16 Tex. 511; Grimes v. Bastrap, 26 Tex. 312; State v. De Leon, 64 Tex. 559. 9 Clay V. Holbert, 14 Tex. 201; Allen v. Hoxey, 37 Tex. 334; Ruis V. Chambers, 15 Tex. 587; Jones v. Montes, 15 Tex. 351; Watrous v. McGrew, 16 Tex. 511; Grimes v. Bastrap, 26 Tex. 312; State v. De Leon, 64 Tex. 559. 10 Cowan V. Williams, 49 Tex. 395. 11 Grimes v. Bastrap, 26 Tex. 312. And see ante, § 3 (f). 12 Stinnett v. House, 1 U. C. 486; Smith v. Adams, 4 Tex. Civ. App. 5, 23 S. W. 49. 13 See post, § 364. 14 Meuley v. Zeigler, 23 Tex. 89, 93; McCarthy v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100. 15 Bohn V. Davis, 75 Tex. 26, 12 S. W. 837. See "Acknowledg. 161 PEOOF OF INSTRUMENTS BY WITNESSES. §§ 355-357 § 355. Married Woman's Deed cannot be Proved by Sub- scribing Witnesses When. — A married woman's deed can- not be j)roved for registration by subscribing witnesses unless her husband has deserted her or he is insane. It is void unless properly acknowledged, as a general rule, but the acknowledgment and certificate, as well as the deed, might be proven in certain cases by parol evi- dence. ^^ § 356. By Subscribing Witnesses not Required in All Cases. — Under the act of December 20, 1836, authorizing registration on the acknowledgment of the deed or his signature by the signer, it was held that where the officer who executed the protocol and issued to the grantee the testimonio or second original, appeared be- fore the county clerk and acknowledged his signature to the certificate authenticating the testimonio, was suf- ficient to entitle it to record. ^'^ Proof by subscribing witnesses was not in all cases required. In some in- stances, proof of the handwriting of the signer, where there were no subscribing witnesses, would be sufficient to entitle the instrument to record.^* § 357. Act of December 20, 1836— How Made Under— Pre- sumption as to Proof. — In discussing this act in Paschal V. Perez, Judge Hemphill says: "The provisions of the law of 1836, under which this title was registered, are not a little obscure; and such interpretation, consistent with the intent of the act, should be given as would se- cure the registration of the titles under which persons owned or claimed their lands. The thirty-fifth section ments, " "Origin and Necessity," ante, and Dobbin v. Cordiner, 41 Minn. 165, 16 Am. St. Rep. 683, 42 N. W. 870, 4 L. R. A. 334. ic Utzfield V. Bodman, 76 Tex. 361, 13 S. W. 474. And ante, §§ 243, 245, 273, 283. 17 Edwards v. James, 7 Tex. 377. 18 Paschal v. Perez, 7 Tex. 358; McKissick v. Colquhoun, 18 Tex. 152; Gainer v. Cotton, 49 Tex. 104; McCarthy v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100. 11 § 357 PEOOF OF INSTEUMENTS BY WITNESSES. 162 authorizes the record of any instrument required to be recorded, provided one of the witnesses of the number required by law shall SAvear to the signature of the signer or he shall acknowledge the same. By section 38, it is declared that titles, etc., cannot be admitted to record unless proved by at least two subscribing witnesses, if living in the county ; if not so living in the county, that the handwriting shall be proven, and in all cases the certificates of any county judge, that the witness appeared before him and acknowledged his sig- nature, or that the handwriting of the same was duly proved, shall be sufficient evidence to authorize the clerk of the county court to enter such title, etc., upon record. The first section requires one witness to swear to the siguature of the signer. The second requires proof by two subscribing witnesses, if living in the county; if not so living, then the handwriting must be proven; but the handwriting of whom, whether of the witnesses or of the signer, is not stated ; and the phrase- ology is then immediately changed from the plural to the singular number, and the acknowledgment of the said witness or the proof of his handwriting is held to be sufficient. The first requires proof of the signature of the signer. The second, at least in its last provision, is satisfied with the proof of the signature of the wit- ness. "In the first, the witnesses are not specially described as subscribing witnesses; and it is probable that, upon this construction, proof was admitted by the clerk of the signature of the signer as a sufficient proof to admit the paper to record. This may be deemed a departure from the literal import of the terms employed in the statute, but it accords with its spirit and intent. Its object and policy was to require evidence of claims to lands to be spread upon a public record so that third persons might be satisfied of their existence and of the titles by which they were supported ; and if the instrument under which title is claimed is legal and authentic without subscrib- ing witnesses, it would require language too plain to 163 PEOOF OF INSTEUMENTS BY WITNESSES. §§ 358, 359 be mistaken to exclude it from record for the want of proof by such witnesses, the signature of the signer being substantiated by satisfactory proof."^^ This case is again affirmed in the case of McKessick v. Colquhoun, 18 Tex. 152, where it is held that it is not requisite in all cases that proof for record should be made by sub- scribing witnesses. Held, that where record is made presumption is that proof was made before the county clerk under above act.'^ § 358. How Far Repealed. — This act, in so far as it au- thorizes proof by others than subscribing witnesses, was repealed by the act of January 19, 1839.^* § 359. How Proved Under Subsequent Statutes. — Under the act of January 9, 1839,^^ proof must be made by a subscribing witness, who shall swear to the signature of the signer, a certificate of which shall be made upon the instrument.^^ Under the act of January 18, 1840, a conveyance of personal property for a consideration other than valuable, where possession does not remain with the grantee, must be proven for record by two or more witnesses.^^ This section was virtually repealed by the acts of February 5, 1841, and May 13, 1846.^^ The act of February 5, March 16, 1840,^** required proof to be made by two subscribing witnesses.^'' The act of February 5, 1841,^^ validates certain proofs.^^ It also provided for proof within the state by a sub- 19 Paschal v. Perez, 7 Tex. 358. 20 Ante, § 47. 21 McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100; post, § 414. 22 2 L. T. 52. 23 McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100; Holliday v. Cromwell, 26 Tex. 194; post, § 415. 24 2 L. T. 203. 25 Manley v. Culver, 20 Tex. 143. 26 2 L. T. 327. 27 Post, § 416. 28 2 L. T. 633. 29 See post, § 417. §§ 360-362 PROOF OF INSTRUMENTS BY WITNESSES. 164 soribiiiii' witness and for proof without the state by two subscribing witnesses.^** The act of May 12, July 13, 1816,^^ is now in force.^^ B. HOW PROVED, GENERALLY. § 360. Judge Attesting is Subscribing Witness When. — A judi>e who signs an instrument and thus attests the fact of the signature of the maker is not the less a sub- scribing witness because his signature not only attested such fact, but under the laws then existing gave the act a force and effect in evidence which could not be im- parted to it by the signature of a merely private wit- ness. ^^ But the reverse is held in a later case under the act of 1846.^* § 361. Acknowledgment of Officer's Signature to Certificate Sufficient Proof.— Where the officer who had executed the protocol, and issued the testimonio or second original to the purchaser, appeared before the county clerk and acknowledged his signature to the certificate authenti- cating the testimonio, it was held that this was suffi- cient proof of execution to entitle the instrument to reg- istration, under section 35 of the act of 1836.^^ § 362. Officer not Competent Without Accounting for Ab- sence of Witness — ^But it was held in an earlier case that, where a bond was executed in the state of Arkansas be- fore two subscribing witnesses, and also acknowledged and certified before a judge of the county court of that state that the said county judge was not competent to prove the bond for record without first accounting for the absence of the subscribing witnesses. In this case he made oath before a notary in Texas that it was ac- 30 Post, § 418. 31 2 L. T. 1544. 32 Post, §§ 420-425. 33 McKissick v. Colquhoun, 18 Tex. 153. 34 McDaniel v. Needham, 61 Tex. 272. 35 Edwards v. James, 7 Tex. 377, 378. 165 PROOF OF INSTEUMENTS BY WITNESSES. §§ 363-365 kno'wleds^ed before liim, and that his certificate was genuine, and upon this affidavit it was admitted to rec- ord in Lamar company, Texas, and the same witness gave his deposition on interrogatories to the same fact, and further stated that he saw the makers of the bond ex- ecute the same, the subscribing witnesses not being sworn nor their absence accounted for ; it was held that the instrument was not properly admitted to record, nor was it legally proven before the jury.^® § 363. Subscribing^ Witness Must be Produced if Possible. The subscribing witnesses, or one of them, must be pro- duced, if possible, to prove the deed; but the party de- siring to prove it may impeach the witness though called by himself.^" § 364. Sole Subscribing Witness Sufficient When It is held that under the validating act of February 5, March 17, 1841, a sole subscribing witness might prove a deed for record; that it being clear that one of sev- eral subscribing witnesses might prove an instrument for record, there seems to be no good reason why several dumb witnesses should be indispensable to the valid registration of an instrument, when the oath of only one of them is required to prove the deed.^* § 365. Where Witness Signs by Making His Mark. — Un- der the act of February 5, March 17, 1811, where a wit ness who made his mark swore "to the best of his knowl- edge and belief" that he signed as a subscribing witness, it was held sufficient to entitle the instrument to rec- ord.^» 36 Craddock v. Merrill, 2 Tex. 495, 496. .37 Williams v. Walker, 2 Rich. Eq. 291, 46 Am. Dec. 53. See Swamscott Mac. Co. v. Walker, 22 N. H. 457, 55 Am. Dec. 172, 35 L. R. A. 321, note. And see post, §§ 378-391. 38 Coryell v. Holmes, 2 U. C. 674; Craddock v. Merrill, 2 Tex. 496. The reverse is held in Hendricks v. Huffmaster, 27 S. W. 778. See, also, Cairrell v. Higgs, 1 U. C. 56; Dobbin v. Cordiner, 41 Minn. 165, 16 Am. St. Rep. 683, 42 N. W. 870, 4 L. R. A. 333; Holmes V. Coryell, 58 Tex. 685; Wilson v. Simpson, 68 Tex. 312, 4 S. W. 839. 39 Stramler v. Coe, 15 Tex, 213. §§ 366-369 PKOOF OF INSTRUMENTS BY WITNESSES. 166 § 366. Certificate that Instrument was "Duly Proven Be- fore Me" Insufficient — But where the chief justice of the county certifies that the within instrument was "duly proven before me the twentieth day of February, 1836," it was not sufficient to entitle it to record.^^ § 367. Necessary to State that Witness Signed at Request of Grantor When. — Before the act of May 12, July 13, 1846, it was not necessary for a subscribing witness to swear that he signed at request of grantor."*^ § 368. Signed at Request — Rule at Present .Time — Sec- tion 8 of the act of May 12, 1846,*^ which is still in force, makes a distinction in those cases where the witness is present and sees the instrument signed, and those where he was not present at the time and was subsequently re- quested to witness the acknowledgment of the grantor. In the former it was not necessary that he should swear that he signed it at the request of the grantor; in the latter it is.^'** The presumption is that the subscribing witness signed at the request of the grantor.*^ § 369. Not Necessary to Show Witness' Means of Knowl- edge — Where a subscribing witness swears that the grantor sealed, signed and delivered the deed for the purposes and considerations therein expressed, and tliat he signed it as a witness at the request of the grantor, it was held sufficient, although it does not state the wit- ness' means of knowledge of the fact, whether from his seeing the grantor sign or his acknowledging it.*^ 40 Flemming v. Eeed, 37 Tex. 152. But see Holliday v. Cromwell, 26 Tex. 194. 41 Downs V. Porter, 54 Tex. 59. 42 P. D. 5008; H. D. 279; Eev. Stats., art. 4622. 43 Jones V. Bobbins, 74 Tex. 619, 12 S. W. 824; Downs v. Porter, 54 Tex. 59; Sowers v. Peterson, 59 Tex. 216; Dorn v. Best, 15 Tex. 65; Deen v. Wills, 21 Tex. 645. 44 Jones V. Eobbins, 74 Tex. 619, 12 S. W. S24; Downs v. Porter, 54 Tex. 59; Sowers v. Peterson, 59 Tex. 216; Dorn v. Best, 15 Tex. 65; Deen v. Wills, 21 Tex. 645. 45 Stinnett v. House. 1 U. C. 486. 167 PEOOF OF INSTEUMENTS BY WITNESSES. §§ 370-375 § 370. Means of Knowledge Stated. — It has been held elsewhere that the witness should state his means of knowledge of the grantor's signature; the bare state- ment that the signature is in the grantor's handwriting has been held not suflficient.'*^ § 371. Must Show Witness Saw Grantor Sign or Heard Him Acknowledge. — But it is held that proof which does not show that the witness either saw the grantor sign the deed or heard him acknowledge its execution is not in compliance with our statute, and was properly ruled out of evidence as a recorded instrument.'*'' § 372, Not Necessary for Witness to have Seen Execution. It is not necessary for the witness to see the execution of the instrument if the grantor acknowledges it to him afterward ; and the witness is not required to testify to its date or the date of his signature as a witness ; neither does its second acknowledgment impair its validity.** § 373. Saw Firm Name Signed. — Proof that the witness saw the firm name signed without stating which member signed it is not sufficient.*^ § 374. Grantor's Name Instead of Attorney's in Certificate Fatal Where a deed is executed by A through his at- torney in fact B, and the proof of acknowledgment is by a subscribing witness, who swears that he saw A execute the deed as attorney in fact for B, the proof is fatally defective, the error not being such clerical error as can be considered immaterial.^* § 375. Clerical Omission not Fatal When. — In 1873, a subscribing witness who proved up a deed for record 46 Jackson v. V^aldron, 13 Wend. 178; Carrier v. Hampton, 11 Ired, 307. 47 Pool V. .Jackson, 66 Tex. 382, 1 S. W. 75. See post, § 397. 48 Ballard v. Perry, 28 Tex. 350. See post, § 397. 49 Baldwin v. Richardson, 33 Tex. 16. 50 Cavit V. Archer, 52 Tex. 169. §§ 376-378 PEOOF OF INSTEUMENTS BY WITNESSES. 168 stated that lie signod as a witness at the request of ', and does not disch)se that it was the s^rantor who made the request, it was held that under the act of May 12, 1846 (which is still in force), that the certificate was valid, the error being clerical.^^ C. PEOOF, BY WHOM TAKEN. § 376. Generally. — It will be seen by referring to the statutes that the same ofiflcers who are authorized to take acknowledgments are also authorized to take the proof of instruments.^^ § 377. Officer Who is Subscribing Witness is Qualified — An officer who is also a subscribing witness is not dis- qualified from taking the proof of the instrument by the other subscribing witness.®^ D. PEOOF OF INSTEUMENTS FOE EECOED, BY WHOM MADE. § 378. By Subscribing Witnesses Generally.— Proof of in- struments for record must be made by the subscribing witnesses, or one of them if within the jurisdiction of the court and can be procured.^* A bystander is not au- thorized to prove a deed ; it must be done by a subscrib- ing witness^^ — ^that is, unless the witnesses are beyond the jurisdiction of the court. ^^ By sole subscribing wit- ness held sufflcient.^'' Judge attesting is subscribing witness.^* 51 Sowers v. Peterson, 59 Tex. 220. 52 See chapters 20-27. 53 Carpenter v. Dexter, 75 U. S. (8 Wall.) 513, 19 L. ed. 426; Baird v. Evans, 58 Ga. 350. 54 Gainer v. Cotton, 49 Tex. 117; ante, § 363; Eiviere v. Wilkins, 72 S. W. 608. See post, §§ 409-439. 55 McDaniel v. Needham, 61 Tex. 271. 56 McDaniel v. Needham, 61 Tex. 271; Eailway Co. v. McEae, 82 Tex. 616, 27 Am. St. Eep. 926, 18 S. W. 672. See, also, 35 L. E. A. 321, note. 57 Ante, § 364. 58 Ante, §§ 360-362. 169 PEOOF OF INSTRUMENTS BY WITNESSES. §§ 379-383 § 379. Where There were No Subscribing Witnesses. — Un- der the act of December 20, 1836, proof by subscribing witnesses was not in all cases required. In some in- stances proof of the handwriting of the signer, where there were no subscribing witnesses, by any person who could testify to same, would be sufficient to entitle the instrument to record.^® § 380. Witness Beyond Jurisdiction of the Court. — Under the act of December 20, 1836, proof of the handwriting of either the signer (the notary) or one of the subscrib- ing witnesses, where the subscribing witnesses were beyond the jurisdiction of the court or officer, by any person not disqualified by law, was sufficient proof to entitle the deed to record.®^ § 381. Act of May 12, 1846.— Under the act of May 12, 1846, proof of the handwriting of the grantor and one of the subscribing witnesses was sufficient.^^ § 382. Act of March 6, 1863.— Under the act of March 6, 1863, proof of the handwriting of the grantor and one of the subscribing witnesses was sufficient if the grantor signed his name, but if he made his mark, then proof of the handwritings of both of the subscribing witnesses was required.®^ § 383. Revised Statutes of 1879 and 1895.— Since the adoption of the Revised Statutes of 1879, proof of the handwriting both of the grantor and one of the subscrib- ing witnesses was sufficient if the grantor signed his name, but if he signed by making his mark, execution may be established by proof of the handwriting of two 09 Paschal v. Perez, 7 Tex. 358; McKissick v. Colquhoiin, 18 Tex. 152. 60 Paschal v. Perez, 7 Tex. 358. For proof by proof of handwrit- ing, see post, § 440. 61 See post, § 420. 62 See post, § 465. §§ 384-386 PROOF OF INSTRUMENTS BY WITNESSES. 170 subscribing witnesses and the place of residence of such witnesses testifying. ^^ § 384. Number of Witnesses to Prove Handwriting Re- quired — Under the above statutes any competent wit- nesses familiar with the facts to be proven could testify to same, but since the passage of the act of May 12, 1846, two witnesses have been required to prove instruments for record by proof of handwriting, which witnesses, prior to the act of May 19, 1871, had to be disinterested witnesses, and possibly so still.**^ But where the deed was to be proven for admission in evidence in the courts, it might be proven also by the common-law methods, by the testimony of one witness, or even by circumstantial evidence, and since the act of February 5, 1840 , a judg- ment so obtained would be entitled to registration.®^ E. WHO MAY BE SUBSCRIBING WITNESSES. § 385. General Rule. — The general rule seems to be that persons competent to testify to the facts concern- ing the execution of the instrument are qualified to act as subscribing witnesses. In those states where interest in the transaction is a disqualification of the witness to testify, an interested party cannot be a subscribing witness ; if the interest does not disqualify him, he may be a subscribing witness. ®® § 386. Held that Grantee is Incompetent Witness It is held in the case of Donovan v. St. Anthony etc. Co., 8 N. Dak. 585, 73 Am. St. Rep. 779, 80 N. W. 772, 46 L. R. A. 721, that the grantee is disqualified from being one of the subscribing witnesses by reason of being an im- 63 See "Handwriting," post, §§ 440-470. 64 See Lewis v. Aylott, 45 Tex, 201; Martin v. McAdams, 87 Tex. 225, 27 S. W. 255. 65 See post, §§ 455-470; H. D., art. 2771. 66 Devlin on Deeds, 2d ed., 259. Attesting judge as subscribing witness, see ante, §§ 360, 362; post, §§ 387, 389. 171 PROOF OF INSTRUMENTS BY WITNESSES. §§ 387-389 mediate party, and record of a mortgage witnessed by him does not operate as notice. ^^ § 387. Interest Disqualified "Witness When. — In Texas, previous to the act of May 19, 1871 (which provided that "in the courts of this state there shall be no exclu- sion of any witness on account of color, nor in civil ac- tions, because he is a party to, or interested in, the issue tried"), interest in the transaction disqualified wit- nesses from testifying, and they would not be competent subscribing witnesses.*^ § 388. Idem. — Where a deed executed and proven for record in 1868, and recorded in 1874, the proof being made by a subscribing witness who was the husband of the grantee, was objected to when offered in evidence, on the ground that it was not properly authenticated for record, it being proved for record prior to the act of May 19, 1871, the witness being an interested party, the deed being practically to himself, it was held that as he would not be competent to testify in court, he was not qualified as a subscribing witness ; the deed was not properly proved for record, nor admissible as a recorded instrument. The court found it unnecessary to decide in this case whether or not since the act of May 19, 1871, a grantee could be a subscribing witness.*^^ Interest disqualifies witness to testify to handwriting of deceased subscribing witnesses where proof is made for record.'^** § 389. Interest does not Disqualify When. — But subse- quent to this act interest would not disqualify a witness from testifying, except as to transaction with a deceased person,''^ and it seems that a subscribing witness would 67 See this case for a full brief and discussion of the question. 68 Hardin v. Sparks, 70 Tex. 431, 7 S. W. 769. 69 Hardin v. Sparks, 70 Tex. 431, 7 S. W. 769; Donovan v. St. Anthony etc. El. Co., 8 N. Dak. ,585, 73 Am. St. Rep. 779, 80 N. W. 772, 46 L. R. A. 721. 70 See post, §§ 443, 462, 465, 470. 71 Gamble v. Butchee, 87 Tex. 643, 30 S. W. 862; Martin v. Mc- §§ 390, 391 PROOF OF INSTRUMENTS BY WITNESSES. 172 not be disqualified by reason of interest in the transac- tion. In the first of these cases it was held that the wives, as snliscribing witnesses to a will devising prop- erty to their husbands, were competent. In the case of Lewis V. Aylott, 45 Tex. 201, the court says : "The better view seems to be that the act (^lay, 19, 1871) was only intended to apply to ordinary suits in courts of the state, and that it cannot be so construed to apply to ex parte proceedings, or proofs of wills, deeds, mort- gages, etc." But this view is dicta and the doctrine stated is limited in later cases to apply only to nuncupa- tive wills, where the interested party would attempt to testify as to transactions with the deceased. '^^ § 390. Where One Witness Incompetent, Handwriting of Other may be Proved — Where a deed was executed and witnessed in 1858 (or before the act of May 19, 1871), it was held that the husband of the grantee was incom- petent to act as a subscribing witness. And that where one of the subscribing witnesses is incompetent to prove the deed, the handwriting of the deceased witness may be proved to entitle the instrument to record. '^^ § 391. Grantor's Selection and Volunteer Witnesses. — It is clear that the statute contemplates that only a per- son of grantor's selection is a competent subscribing wit- ness.''* The certificate should show that witness signed at request of grantor, though it seems, for public policy, the courts have limited this requirement to instances where the witness does not see the execution of the in- strument, holding that if the witness sees the execution, Adams, 87 Tex. 225, 27 S. W. 255; Stephenson v. Stephenson, 6 Tex. Civ. App. 529, 25 S. W. 649. 72 Martin v. McAdams, 87 Tex. 225, 27 S. W. 255; Gamble v. Butchee, 87 Tex. 643, 30 S. W. 862. Handwriting must be proved by- disinterested parties, when, post, § 443. Grantee could testify as to absence of witnesses, post, § 463. 73 Cairrell v. Higgs, 1 U. C. 56; Harris v. Hoskins, 2 Tex. Civ. App. 486, 22 S. W. 252. 74 Rev. Stats., § 4622; McDaniel v. Needham, 61 Tex. 272. 173 PEOOF OF INSTRUMENTS BY WITNESSES. §§ 392-394 it is not necessary for him to swear that he signed at the request of the grantor.'^ This construction would permit a volunteer who saw the execution to sign as a witness and prove the same for registration without the knowledge or consent of the grantor/^ F. WITNESS MUST BE KNOWN TO OFFICEE. § 392. Witness Required to be Known When. — Since the act of May 12, 1846, the statute required subscribing witnesses to be known to the officer taking the proof, or his identity must be proved on oath of a credible wit- ness.'"'' Though prior to Revised Statutes of 1879, where proof was made by a subscribing witness the pre- sumption would be that he was known to officer, even though the certificate did not so certify.'^* G. CERTIFICATE OF PEOOF BY SUBSCRIBING WITNESSES. § 393. Must Show that Witness Known. — 1. That the witness, naming him, was known to the officer or proved to the officer on oath of 7^ Prior to act of May 12, 1846, the statute in force did not require the certificate to show that the witness or grantor was known to officer.**' § 394. Idem.—Under the act of May 12, 1846,** it was not necessary for the certificate to certify that the witness was known to the officer.*^ But since the tak- ing effect of the Revised Statutes of 1879 (re-enacting 75 Dorn V. Best, 15 Tex. 62; Been v. Wills, 21 Tex. 642; Jones v. Robbins, 74 Tex. 619, 12 S. W. 824. 76 See ante, §§ L54-156. 77 Driscoll V. Morris, 2 Tex. Civ. App. 603, 22 S. W. 629, 10.53; Wren v. Rowland (Tex. Civ. App.), 75 S. W. 894. See post, §§ 393, 394. 78 Post, § 394. 79 Rev. Stats. 1895, art. 4623. 80 See Harvey v. Hill, 7 Tex. 593; post, §§ 410-419; Watkins v. Hall, 57 Tex. 4; ante, § 139. 81 Post, § 422. 82 Wren v. Howland (Tex. Civ. App.), 75 S. W. 894; ante, § 139. §§ 395-397 PROOF OF INSTRUMENTS BY WITNESSES. 174 the said act of May 12, 1846, and adding a form of cer- tificate, certifying as to the identity of the grantor or subscribing witness), it is settled that the certificate must show that the grantor was known or proved to oflScer.®^ And it seems apparent that the same rule of construction Avould hold as to the certificate where proof is made by subscribing witnesses ; i. e., that prior to the Kevised Statutes of 1879, it would not be neces- sary for the certificate to show that the witness was known or proved to the officer, but that thereafter it would be.®^ § 395. That Witness was Sworn. — 2. That the witness was duly sworn by the officer. ^^ § 396. That Witness Saw Execution, or Heard Acknowl- edgment and was Requested to Sign. — 3. That the witness stated on oath that he saw the grantor execute the in- strument, or that the grantor acknowledged in his pres- ence that he executed the same for the purposes and consideration therein expressed and that he had signed the same as ai witness at the request of the grantor.®^ § 397. Idem— Rule Prior and Subsequent to 1846. — Pre- vious to the taking effect of the act of May 12, 1846, it was not necessary for the certificate to show that the witness swore that he signed as a witness at the request of the grantor.^'^ But subsequent to that time, where, the certificate shows that the witness swore that he saw the grantor execute the instrument, it is not necessary for it to show that he signed at the request of the grantor; otherwise it is. Article 4622 of the Revised Statutes of 1895 makes a distinction in those cases 83 Davidson v. Wallingford, 88 Tex. 623, 32 S. W. 1030; McKie V. Anderson, 78 Tex. 207, 14 S. W. 576; ante, § 139. 84 Wren v. Howland (Tex. Civ. App.), 75 S. W. 894. 85 Rev. Stats., art. 4622. 86 Johnson v. Franklin (Tex. Civ. App.), 76 S. W. 611. 87 Downs V. Porter, 54 Tex. 59. 175 PEOOF OF INSTRUMENTS BY WITNESSES. §§ 398-400 where the witness is present and sees the instrument signed, and those where he was not present at the time and was subsequently requested to witness the acknowl- edgment of the grantor. In the former it is not neces- sary that he should swear that he signed it at the re- quest of the grantor; in the latter it is.** And where the witness swears that the grantor "executed the same (deed) in his presence," that is taken as being equiv- alent to the witness swearing that he saw the execu- tion of the deed.*^ § 398. Where Witness' Name Appears on Deed It is not Necessary to Certify that He was a Subscribing Witness. — Where a party appeared before an officer and made oath, etc., but did not say he was subscribing witness, yet it appearing on inspection of the deed that he was one of the subscribing witnesses, it was held to be substantially good.**^ But if the oath fails to show the presence of the witness at the signing of the deed, it should show that the witness signed at the request of the grantor.^^ § 399. Alternative Certificate. — But the certificate must not be in the alternative.^^ § 400. Irregular Certificate. — Proof made by a subscrib- ing witness who swears that "the grantor signed, sealed and delivered the foregoing deed for the purposes therein expressed, and that he signed it as a witness at the request of grantor," is sufficient.®^ 88 Jones V. Eobbins, 74 Tex. 619, 12 S. W. 824; Downs v. Porter, 54 Tex. 64; Dorn v. Best, 15 Tex. 65; Been v. Wills, 21 Tex. 645. 89 Jones V. Bobbins, 74 Tex. 619, 12 S. W. 824; Downs v. Porter, 54 Tex. 64; Dorn v. Best, 15 Tex. 65; Deen v. Wills, 21 Tex. 645. And see McDaniel v. Needbam, 61 Tex'. 271. 00 Deen v. Wills, 21 Tex. 646. 91 Cox V. Bust (Tex. Civ. App.), 29 S. W. 808. 92 Riley V. Pool, 5 Tex. Civ. App. 346, 24 S. W. 85; Harvey v. Cummings, 68 Tex. 599, 5 S. W. 513. 93 Stinnett v. House, 1 U. C. 486. See ante, §§ 157-164. §§ 401-408 PEOOF OF INSTRUMENTS BY WITNESSES. 176 § 401. Official Character. — 4. Official character of the officer iiuist bo shown.'"^"* § 402. Seal. — 5. Official seal must be attached.®^ § 403. Signature. — G. Signature of the officer must be appended.^^ § 404. Purposes and Considerations. — Omission of "pur- poses and considerations, etc.," not fatal. ^'' § 405. "Execute" Instead of "Subscribe." — ^"Execute" in- stead of "subscribe" is immaterial.^* § 406. Other Requirements and Force and Effect of Cer- tificate. — For time, place of certificate, language, venue, date, signature, official character, parol evidence, amend- ment of certificate, certificate as evidence, certificate of magistracy and conformity and conclusiveness, errors and omissions, etc., see "Certificate of Acknowledg- ment," ante, chapter 7. § 407. Form of Certificate of Proof Controlled by What Law — The form and substance of certificates of proof are controlled by the statutes in force at the time the certificate was made.^® But if a certificate is invalid at the time it is made, subsequent laws adopting the form used will not cure it.-^^** § 408. Substantial Compliance with Statute Only Required. While our statutes, except the earlier ones, provide forms to be used for certificates, their use is not es- 94 Ante, § 133. 95 Ante, chapter 13. 96 Ante, § 132. 97 Ante, § 172. 98 Dorn V. Best, 15 Tex. 62. 99 Eev. Stats. 1895, art. 4661. 100 Texas Land Co. v. Williams, 51 Tex. 51. For forms under dif- ferent acts, see post, §§ 413-416, 418, 419, 424, 426-428, 435, 453, 454. 177 PEOOF OF INSTRUMENTS BY WITNESSES. §§ 409-411 sential to valid certificates, if the certificates contain all that is necessary to show a valid acknowledgment. No material fact should be omitted. A substantial com- pliance with the statute is sufficient.^^* H. STATUTORY REQUIREMENTS AND FORMS FOR PROOF BY SUBSCRIBING WITNESSES.102 § 409. Decree of April 18, 1834 — Judges to be Assisted by Witnesses— Decree No. 275 of April 18, 1834, of Congress of Coahuila and Texas^^^ required judges to perform ju- dicial acts with assisting witnesses, even should there be a notary public in the district of their jurisdiction, provided the notary is unable to perform said act. This act remained in force until the act of December 20, 1836. § 410. Act of December 20, 1836io4— Chief Justices Author- ized to Take Proof. — Section 31, in providing that the chief justices of the county court shall be the notaries public authorized them to receive proof or acknowledg- ments of deeds, etc., and attest the same under their seals of office, to wit — the seal of the county court, § 411. Clerk Authorized to Record on Proof by One Wit- ness — Section 35 provided that clerks of the county courts shall be the recorders for their respective coun- ties, and shall record all deeds, etc., provided one of the witnesses of the number required by law shall swear to the signature of the signer, or he himself shall acknowl- edge the same, which shall be certified by the recorder and form part of the record. *^^ Section 37 required proof and record of deeds, etc., within twelve months 101 Deen v. Wills, 21 Tex. 646; Monroe v. Arleclge, 23 Tex. 480; Belcher v. Weaver, 46 Tex. 294, 26 Am. Rep. 267; Talbert v. Dull, 70 Tex. 675, 8 S. W. 530; Johnsoii v. Thompson (Tex. Civ. App.), 50 S. W. 1057; Holliday v. Cromwell, 26 Tex. 194; Livingston v. Ket- telle, 41 Am. Dec. 168, note. See ante, §§ 365-370, 372-375. 102 For proof by handwriting, see post, §§ 440-470. 103 1 L. T. 363. 104 1 L. T. 1215. 105 H. D. 2752. 12 §§ 412-414 TEOOF OF TNSTEUMENTS BY WITNESSES. 178 from April 1, 1837, but the part requiring record by- April 1, 1838, was repealed by the act of May 10, 1838.*^« § 412. Proof by Two Witnesses or Handwriting of One Section 38^^'' provided that deeds, etc., before they can be admitted upon record must be proven by at least two subscribing witnesses if living in the county, and if not so living in the county, then the handwriting shall be proven either before some county judge or before the clerk of the county court in whose office such record is proposed to be made, and in all such cases the certificate of any county judge that the witness appeared before him and acknowledged his signature, or that the hand- writing of the same was duly proven, shall be sufficient evidence to authorize the clerk of the county court to enter such deed upon record. § 413. Certificates and Form Under This Act. — There is some obscurity as to when certificates are required un- der this act.**** No form was prescribed for proof. § 414. Act of January 19, 1839 — Required Certificate. — The act of January 19, 1839 (taking effect from pas- sage),*^** made it the duty of county clerks to record deeds, etc., to immovable property situated in their counties ; provided one of the subscribing witnesses shall swear to the signature of the signer, or he himself shall acknowledge the same, which proof or acknowledgment shall be made either before some county court or chief justice of the same, or before a clerk in whose office such instrument is proposed to be recorded, a certificate of which shall be made upon such instrument by the proper officer and become a part of the record. A certificate was required but no form was prescribed.**** 106 1 L. T. 1478. 107 H. D. 2755. 108 See ante, §§ 220-224. 109 2 L. T. 52. 110 See ante, § 227; Holliday v. Cromwell, 26 Tex. 194; McCarthy V. Jolinson, 20 Tex. Civ. App. 184, 49 S. W. 1100; post, §§ 608, 609. 179 PEOOF OF INSTEUMENTS BY WITNESSES. §§ 415-417 § 415. Act of January 18, 1840— Statute of Frauds.— The statute of frauds of January 18, 1840, required convey- ances of real estate, unless upon a valuable considera- tion or possession remains with donee, to be acknowl- edged or proven for record in the manner required by law, but if personal property only is conveyed, then by two or more witnesses and recorded, or it will be pre- sumed to be fraudulent.*^^ No form of certificate was prescribed. § 416. Act of February 5, 1840 — Two Witnesses — Certifi- cate.— Act of February 5, 1840 (taking efPect March 16, 1840),**^ required deeds, etc., to be acknowledged, or proved by two witnesses before the county court of the county in which the land conveyed or a part thereof lieth; and the clerks of the several county courts and their deputies shall admit to record any conveyances upon the acknowledgment or proof on oath of ac- knowledgment by the legal number of witnesses there- to made in the offices of the respective clerks; or upon the certificate of some district judge, or chief justice or notary public of the county, with the seal of his office annexed that the execution of such instrument was so proven. No form was provided for proof. Section 6 of same act authorized acknowledgment before two jus- tices of the peace, but not proof before them.^^^ Query, was certificate required where proof was made before county clerk ?**^ § 417. Act of February 5, 1841— Validates. — The act of February 5, 1841 (taking effect March 17, 1841)*^® sec- tion 20, validates the registration of conveyances, pro- vided the same shall have been proven before any chief justice of the county court or before any notary public 111 2 L. T. 203. 112 2 L. T. 327. 113 See post, §§ 614, 615. 114 See ante, g" 228. 115 2 L. T. 633. §§ 418, 419 PEOOr OF INSTRUMENTS BY WITNESSES. 180 or the clerk of the county court in whose office such rec- ord is proposed to be made, by one or more of the sub- scribing witnesses and certified by such officer, any con- flict in existing laws to the contrary notwithstanding. § 418. Idem — Certificate and Proof — Section 21 of said act provided that every deed, etc., hereafter to be made and recorded shall be duly registered in the office of the proper county upon acknowledgment or proof by a sub- scribing witness before the register or clerk of the county court of that county, or chief justice or notary public thereof, or any associate or chief justice of the supreme court, and certified by him for record; and if any such instrument executed abroad shall be proved by two sub- scribing witnesses or any circuit or supreme judge, or chancellor of the United States of North America, cer- tified by him with the certificate of the chief magistrate of the United States as to the official character of him taking the proof, and the great seal of the United States thereto annexed; or if so proven before any judge of a superior court of record, or any such court of any other nation or kingdom, or certified by such judge or the rec- ord thereof exemplified, and either so counter certified by the chief magistrate of such other nation, under the great seal, or by the consul of this republic or minister resident there, the same shall be admitted to record. It required acknowledgments and proof to be certified but prescribed no form.*-"^® § 419. Act of May 8, 1846 — Commissioners of Deeds. — Act of May 8, 1846 (taking effect June 22, 1846),^^^ re- quired commissioners of deeds to take acknowledgments and proofs of instruments for record in the manner di- rected by the laws of this state, and certified by the commissioner taking same under his seal, which certifi- cate shall be indorsed on or annexed to said deed. But 116 See ante, § 229. 117 2 L. T. 1493. 181 PEOOF OF INSTEUMENTS BY WITNESSES. §§ 420, 421 it provided no form of certificate.*^* This act was not repealed by the act of May 12, 1846."^ § 420. Act of May 12, 1846— Proof and Acknowledgment, How Made — Section 8 of the act of May 12, 1846 (taking effect July 13, 1846)/^^ provided that the proof of an instrument shall be made by one or more of the sub- scribing witnesses personally appearing before some of- ficer authorized to take such proof, and stating on oath that he or they saw the grantor or person who executed such instrument subscribe the same, or that the grantor or person who executed such instrument of writing ac- knowledged in his or their presence that he had sub- scribed and executed the same for the purpose and con- sideration therein stated, and that he or they had signed the same as a witness at the request of the grantor or person who executed such instrument; and the officer taking such proof shall make a certificate thereof, sign and seal the same with his official seal. This section is still in force, with the words "subscribed and" omitted in Eevised Statutes of 1879. § 421. Handwriting Proved. — Section 9 provided that if the subscribing witnesses are dead, or their place of residence unknown, or when they reside out of the state, an aC^davit thereof may be made and attached to such instruncent ; after which it may be proved for record, by proof of the handwriting of the grantor and at least one of the subscribing witnesses, by depositions of two or more disinterested persons in T\Titing attached to such instruments, and the officer shall make a certificate thereof. The act of March 6, 1863, amended this by adding, "The grantor or person who executed such in- strument signed by making his mark, by the proof of the handwriting of both the subscribing witnesses."*^* 118 Deen v. Wills, 21 Tex. 645. 119 Monroe v. Arledge, 23 Tex. 481; Wren v. Rowland (Tex. Civ. App.), 75 S. W. 894. 120 2 L. T. 1544. 121 See post, §§ 440-453. §§ 422-425 PROOF OF INSTRUMENTS BY WITNESSES. 182 § 422. Grantor Unknown — Sectioii 10 of said act pro- yides that if the grantor or subscribing witnesses ap- pearing to acknowledge or prove the deed, etc., is un- known to the officer, his identity shall be proven to such officer , which proof may be made by witnesses known to the officer, or affidavit of grantor or subscribing witr nesses, such officer shall be satisfied therewith. Which proof shall be indorsed on the instrument. •'^^^ § 423. Certificate Attested — Section 2 provided that proof of every instrument for record shall be taken by some one of the following officers : 1. Within the state before some notary public, or clerk of the county court of any county in the state. 2. Within United States or their territories, before some judge of a court of record having a seal. 3. When without the United States, before some public minister, charge d'affaires or consul of the United States, and in all cases the certificate of proof shall be attested under the official seal of the officer tak- ing same. § 424. Presumption Where No Certificate of Proof of Iden- tity. — Where no certificate of proof of identity is at- tached, the presumption would be, it seems, that the witness was known to the officer. ^^^ Not necessary for certificate to state that grantor was known to officer un- der this article.*^* Signed at request of grantor.^^^ § 425. No Form Provided — This act provided no form of certificate of proof. ^^^ 122 See ante, § 393. 123 Driscoll V. Morris, 2 Tex. Civ. App. 603, 22 S. W. 629, 1053; Hill V. Smith, 6 Tex. Civ. App. 312, 25 S. W. 1080; Cook v. Cook, 5 Tex. Civ. App. 30, 23 S. W. 927. 124 Wren v. Howland (Tex. Civ. App.), 75 S. W. 894. 125 See ante, § 397. 126 Deen v. Willa, 21 Tex. 645. 183 PROOF OF INSTRUMENTS BY WITNESSES. §§ 426-429 § 426. Act of February 9, 1860— Validates. — The act of February 9, 1860, validates all deeds, etc., which shall have been proven by one or more of the subscribing wit- nesses before any chief justice, or associate justice or clerk of the county court, or notary public in any county in Texas, or judge of the department of the Brazos; or any primary judge or judge of the first instance in 1835 and 1836 ; and certified by such officer whether the proof was made before such officer of the county where such instrument should have been recorded or not. And all such instruments so proved or acknowledged and after- ward recorded or certified copies thereof shall be evi- dence in all the courts of this state.^^'' § 427. Acts of 1861, 1862, 1866, 1871.— The acts of April 6, 1861,'-^ January 11, 1862,^^ November 13, 1866,^^^ and May 6, 1871,^^^ did not change the mode of proof by witnesses, but designates different officers be- fore whom proof may be made. § 428. Act of 1863— Where Grantor Makes His Mark The act of March 6, 1863 (taking effect from passage),^^^ amended section 9 of act of May 12, 1846, by adding the clause, "Or when the grantor or person who executed such instrument signed by making his mark of the proof of the handwriting by both of the subscribing wit- nesses. JJ133 § 429. The Act of August 13, 1870i34_Validates.— This act validates proof of instruments made by one or more of the subscribing witnesses before any county judge in any county in the state. 127 As to effect of this act, see post, §§ 1032-1037. 128 5 L. T. 373. 129 5 L. T. 501. 130 5 L. T. 1128. 131 6 L. T. 979. 132 5 L. T. 614. 133 See Vasquez v. Texas Loan Agency (Tex. Civ. App.), 45 S. W, 942. 134 6 L. T. 251. §§ 430-433 PEOOF OF INSTRUMENTS BY WITNESSES. 184 § 430. Act of May 19, 1871i35_witness not Disqualified by Interest. — This act provides that in the courts of this state there sliall be no exclusion of any witness on ac- count of color, nor in civil actions, because he is a party to, or interested in, the issue tried. § 431. Act of April 27, 1874i=^«— Validates.— This act validates the registration of instruments if proven in the manner prescribed by law without the state, and within the United States and their territories, before any one of the officers in such cases now authorized by law to make such proof. § 432. Revised Statutes of 1879 and 1895— Proof by Sub- scribing Witness — Section 8 of act of 1846, re-enacted as article 4622 of the Revised Statutes of 1895 and article 4314 of the Revised Statutes of 1879 1^^'' "The proof of any instrument of writing for the purpose of being re- corded shall be by one or more of the subscribing wit- nesses personally appearing before some officer author- ized to take such proof, and stating on oath that he or they saw the grantor or person who executed such in- strument subscribe the same, or that the grantor or person who executed such instrument of writing ac- knowledged in his or their presence that he had executed the same for the purposes and consideration therein stated, and that he or they had signed the same as wit- nesses at the request of the grantor or person who ex- ecuted such instrument; and the officer taking such proof shall make a certificate thereof, sign and seal the same with his official seal." § 433. Grantor Known or Proven — Revised Statutes of 1879 and 1895, re-enacted as section 10 of the act of May 12, 1846, but the verbiage of section 10 is changed to read as follows : "The proof by a subscribing witness 135 6 L. T. 1010. 136 P. D. 152. 137 P. D. 5008. 185 PEOOF OF INSTRUMENTS BY WITNESSES. §§ 434, 435 must be by some one personally known to the officer taking the proof to be the person whose name is sub- scribed to the instrument as a witness, or must be proved to be such by the oath of a credible witness, which fact shall be noted in the certificate."-^^* § 434. Prior to Revised Statutes of 1879. — Previous to the adoption of the Revised Statutes of September 1, 1879, it was not necessary for the certificate to show that the witness was known to the officer,^^^ but since then it is.*^*^ § 435. Form of Certificate — The first form of certifi- cate provided is the present statutory form adopted September 1, 1879, article 4316 of the Revised Statutes of 1879 and article 4624 of the Revised Statutes of 1895, to wit: "The certificate of the officer, where the execution of the instrument is proved by a witness, must be sub- stantially in the following form : "State of , County of "Before me — • [here insert the name and char- acter of the officer], on this day personally appeared — — ; known to me [or proven to me on oath of -], to be the person whose name is subscribed a.s a witness to the foregoing instrument of writing, and after being duly sworn by me stated on oath that he gaw , the grantor or person who executed the foregoing instrument, subscribe the same [or that the grantor or person who executed such instrument of writing acknowledged in his presence that he had exe- cuted the same for the purposes and consideration therein expressed], and that he had signed the same as a 138 See ante, § 422. 139 See ante, § 139. 140 Wren v. Howland (Tex. Civ. App.), 75 S. W. 894. See ante, § 393. §§ 436, 437 PROOF OF INSTRUMENTS BY WITNESSES. 186 witness at the request of the grantor [or person who executed the same]. ^'Given under my hand and seal of office this day of — , A. D. . "[Seal] _."i4i § 436. Proof of Handwriting. — Revised Statutes of 1879, article 4317 (took effect September 1, 1879), and Revised Statutes of 1895, article 4625 : "The execution of an instrument may be established for record by proof of the lianchvritmg of the grantor, and at least one of the subscribing witnesses in the following cases : "1. When the grantor and all the subscribing wit- nesses are dead. "2. When the grantor and all the subscribing wit- nesses are nonresidents of this state. "3. When the place of their residence is unknotvn to the party desiring the proof, and cannot be ascertained. "4. When the subscribing witnesses have been con- victed of felony y or have become of unsound mind, or have otherwise become incompetent to testify. "5. When all the subscribing witnesses to an instru- ment are dead or are nonresidents of this state, or when their residence is unknown, or when they are incompe- tent to testify, and the grantor in such instrument re- fuses to acknowledge the execution of the same for rec- ord." § 437. Facts to be Proven. — Revised Statutes of 1879, article 4318 and Revised Statutes of 1895, article 4626 : "The evidence taken under the preceding article must satisfactorily prove to the officer the following facts : "1. The existence of one or more of the conditions mentioned therein; and, "2. That the tvitness testifying knew the person 141 For construction and repeal of statutes, see "Final Title," ante, §§ 107-110. 187 PROOF OF INSTRUMENTS BY WITNESSES. §§ 438-440 whose name purports to be subscribed to the instrument as a party, and is well acquainted with his signature, and that it is genuine; and, "3. That the ivitness testifying personally knew the person who subscribed the instrument as a tcitness, and is well acquainted with his signature^ and that it is genuine; and, "4. The place of residence of the loitness testify- ing.'^'' § 438. Where Instrument Signed by Mark. — Act of March 6, 1863, Revised Statutes of 1879, article 4319, and Revised Statutes of 1895, article 4627 : "When the grantor or person who executed the instrument signed the same by making his mark, and when also one or more of the conditions mentioned in article 4625 exists, the execution of any such instrument may be estab- lished by proof of the handvyriting of two subscribing imtnesses and of the place of residence of such witnesses testifying." § 439. Number of Witnesses.— Act of March 6, 1863, Revised Statutes of 1879, article 4320, and Revised Stat- utes of 1895, article 4628 : "The 'proof mentioned in the three preceding articles must be made by the deposition or aflQdavit of two or more disinterested persons in writ- ing; and the officer taking such proof shall make a cer- tificate thereof, and sign and seal the same with his official seal, which proofs and certificate shall be at- tached to such instrument."*^ I. PROOF OF INSTRUMENTS BY PROOF OF HANDWRITING. § 440. What Law in Force. — The proof of instruments for record by subscribing witnesses not usually being made contemporaneously with the signing of the instru- ment, it often happens that it will be signed while one 142 For construction and repeal of statutes, sec "Final Title, ante, §§ 107-110. §§ 441-443 PROOF OF INSTRUMENTS BY WITNESSES. 188 law is in force and proven for registration under an- other law. A statute changing the mode of proof of an instrument would not affect the right but only the rem- edy for it, and would be valid if a reasonable remedy remained. While it is not at all times clear whether these statutes requiring proof, by certain proofs of hand- writing, are repealed by subsequent ones, it appears that the courts have considered the former repealed where another method of proof is provided in a later statute, and require the proof to conform to the latter. ^*^ § 441. Proof Must Conform to Statute in Force at Time Proof Made. — In the case of Harris v. Hoskins, 2 Tex. Civ. App. 486, 22 S. W. 251, where the witnesses signed while the act of 1836 was in force, and the deed was proven for record while the present law was in force by proof of the handwriting of a single witness, it was held that it was not properly proven for record, but admis- sible in evidence. And in the case of Waters v. Spof- ford, 58 Tex. 121, where a deed was witnessed while the law of 1836 was in force, and proven while the law of 1846 was in force, the proof made in compliance with the latter law was held sufficient.*"*^ § 442. Proof for Record by Proof of Handwriting. — When the proof is made for registration the statute must be complied with as to the number of signatures and the particular signatures and the character of evidence, etc., that are required to be proven. When it is made for admission in evidence the common-law method of proof is sufficient. *^^ § 443. Must be Proved by Persons Authorized by Statute. Where the instrument is proven for record, proof of handwriting must be made by the person so authorized by the statute. For instance, since the taking effect of 143 Post, §§ 441, 1053. 144 Post, § 1053. 145 Harris v. HoskinSj 2 Tex. Civ. App. 486, 22 S. W. 251. 189 PEOOF OF IXSTEUMENTS BY WITNESSES. §§444,445 the act of May 12, July 13, 1846, proof of the handwrit- ing of the grantor and at least one of the subscribing witnesses must be made, and made by at least two disin- terested witnesses.**® While, to make it admissible in evidence, proof of the single signature of the grantor or one of the witnesses by an interested party, the proper predicate being laid, would be sufficient.*'*'' § 444. Where Witness is Interested. — The act of May 19, 1871,*^** provided that "No person shall be incompetent to testify on account of color, nor because he is a party to a suit or proceeding, or interested in the issue tried." Query, Did this apply to testimony in the courts only or did it also authorize proof for registration by inter- ested witnesses?**^ § 445. Where Witness is Grantor or Grantee. — Where the grantor had no interest, it was held that he was a com- petent witness to prove the execution of the instrument when offered in evidence without accounting for the ab- sence of the subscribing witnesses.*^® Under the pres- ent law,*®* since interest no longer disqualifies, it seems that for admission in evidence it might be proven by the grantor, unless it be a transaction with a deceased under some circumstances. But the grantee cannot tes- tify as to the execution of an instrument without ac- counting for the absence of the subscribing witnesses.*®^ Where one witness was disqualified, the handwriting of the deceased witness might be proven to entitle the in- strument to record.*®^ 146 Waters v. Spofford, 58 Tex. 122. 147 Harris v. Hoskins, 2 Tex. Civ. App. 486, 22 S. W. 251; Lang V. Dougherty, 74 Tex. 229, 12 S. W. 29. 148 6 L. T. 1010; P. D. 6826. 149 See Hardin v. Sparks, 70 Tex. 431, 7 S. W. 769; Lewis v. Aylott, 45 Tex. 201; Martin v. McAdams, 87 Tex. 225, 27 S. W. 255; Gamble v. Butchee, 87 Tex. 643, 30 S. W. 862. 150 White V. Ilolliday, 20 Tex. 688; Sample v. Irwin, 45 Tex. 573. 151 Act of May 19, 1871, p. 108. 152 Wiggins V. Fleishel, 50 Tex. 62. See notes, 35 L. E. A. 321. 153 Cairrell v. Higgs, 1 U. C. 56. §§ 446-449 PROOF OF INSTRUMENTS BY WITNESSES. 190 § 446. Ancient Instrument. — Where a deed is over thirtj-five years old, the death of the subscribing wit- nesses will be presumed so as to admit proof of hand- writing.*^* § 447. Predicate for Secondary Evidence. — An affidavit that the residence of the subscribing witness was un- known, without stating that diligent inquiry had been made, was insufficient as a predicate for the secondary evidence of proof of handwriting.*^^ § 448. Most Satisfactory Proof. — In Hanley v. Gaudy, 28 Tex. 211, 91 Am. Dec. 315, decided in the year 1866, it was held that the most satisfactory proof of the sig- nature or handwriting, where the grantor is not compe- tent to testify, is proof by a (subscribing) witness who saw him sign it and is able to identify it; the next is where the witness is familiar with the grantor's signa- ture by having seen him write or received letters from him. But proofs by experts from comparison of hand- writings where the witness has had no previous ac- quaintance with it through having seen him write, etc., is inadmissible. This is the English rule and the one adopted in many of the states. It was also held in that case that copies, admitted or proven to be genuine by the most satisfactory evidence, may go to the jury for them to make the comparison of the handwritings. § 449. Proof of Handwriting by Comparison. — At this time and ever since the act of August 28, 1856, took effect February 1, 1857,*^** the Code of Criminal Pro- cedure has provided that: "It is competent in every case to give evidence of handwriting by comparison made by experts or by the jury ; but proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath." 154 Hollis V. Dashiell, 52 Tex. 187. 155 Sample v. Irwin, 45 Tex. 573. 156 Rev. Stats., Code Grim. Proc. 794. 191 PEOOF OF INSTRUMENTS BY WITNESSES. §§ 450-453 This rule, from the decisions, seems not to have been applicable to civil cases.*^'' § 450. Rule Modified. — But this above rule, estab- lished in Hanley v. Gandy, has been somewhat modified by the later Texas cases. It is held in Kennedy v. Up- shaw, G4 Tex. 420, that experts may give opinion on handwriting by comparison with genuine papers al- ready in evidence. Also, in Wagoner v. Euply, 69 Tex. 704, 7 S. W. 80, and Smith v. Caswell, 67 Tex. 573, 4 S. W. 80. But papers not connected with the case were not allowed for the purpose of comparison. ^^^ § 451. Certificates of Proof by Proof of Handwriting.— For time, place of certificate, language, venue, date, signature, official character, parol evidence, amendment of certificate, certificate as evidence, certificates of mag- istracy and conformity and conclusiveness of certificate, see "Certificates of Acknowledgments," ante, chapter 7. § 452. Substantial Compliance only Necessary. — The statutes have provided no forms of certificates of proof by proof of handwritings. And a substantial compli- ance with the statute is sufficient.^^^ § 453. Valid Forms.— The following forms of certifi- cate were held to be sufficient under the law in force in 1854 (which was in force from July 1, 1846, to the pres- ent time, except as to witnesses who signed by making their marks), to wit: 157 Sample v. Irwin, 45 Tex. 573; Hanley v. Gandy, 28 Tex. 211. 158 Talbot V. Dillard, 22 Tex. Civ. 361, 54 S. W. 407; Cook v. First Nat. Bank (Tex. Civ. App.), 33 S. W. 999. For notes on expert testimony as to handwriting, see 12 L. E. A. 456. And Williams v. Conger, 125 U. S. 397, 8 Sup. Ct. Kep. 933, 31 L. ed. 778. 159 Deen v. Wills, 21 Tex. 646; Monroe v. Arledge, 23 Tex. 480; Belcher v. Weaver, 46 Tex. 294, 26 Am. Rep. 267; Talbert v. Dull, 70 Tex. 675, 8 S. W. 530; Johnson v. Thompson (Tex. Civ. App.), 50 S. W. 1057. See "Statutory Requirements," post, §§ 455-470. § 454 PEOOF OF INSTRUMENTS BY WITNESSES. 192 "State of Texas, i County of San Augustine. C "Before me, the undersigned notary public, in and for the said county and state, personally came Otis M. Wheeler, to me well known, and made oath that Henry G. Richardson, one of the subscribing witnesses to the annexed deed, has departed this life, and that the other witness, D. N. Marange, if living, he believes resides out of the state of Texas, the place of his residence be- ing unknown to him. "OTIS M. WHEELER. "Sworn to and subscribed before me this 8th day of July, 1854, certifying hereto witness my hand and offi- cial seal. "[Seal] P. N. McKEE, Not. Pub. S. A. 0." § 454. Idem. "The State of Texas, County of San Augustine. "Before me, the undersigned notary public in and for said county and state aforesaid, personally came Travis G. Brooks and James A. Chaffin, to me well known, made oath that they were well acquainted with the handwriting and signature of Charles M. Gould, the grantor, and Henry G. Richardson, one of the sub- scribing witnesses to the annexed deed, from having frequently seen them write and sign their names, and that they verily believe the signatures of the said Gould and the said Richardson as subscribed to said deed to be true and veritable and genuine handwriting and signa- tures. "J. A. CHAFFIN. "T. G. BROOKS. "Sworn to and subscribed before me this 8th day of July, 1854."^«*> 160 Waters v. Spofford, 58 Tex. 122. And see post, §§ 466-469. 193 PROOF OF INSTEUMENTS BY WITNESSES. §§455,456 J. STATUTES AND NOTES CONCERNING PROOF BY PROOF OF HANDWRITING. § 455. The Act of December 20, 1836 (Taking Effect from Passage). ^*^* — This act provided that titles, etc., for rec- ord must be proven by at least two subscribing wit- nesses, if living in the county, and if not living in the county, then the handwriting shall be proven either be- fore some county judge or before the clerk of the county court in whose office such record is proposed to be made; and in all cases the certificate of any county judge that the witness appeared before him and ac- knowledged his signature, or that the handwriting of the same was duly proven, shall entitle it to record. § 456. Handwriting of Whom — Certificate. — Under this act, it is difficult to determine whether the handwriting of the signer or the witnesses must be proven. Under the last clause, proof of the handwriting of a single wit- ness would be sufficient; under the first, proof of the handwriting of the grantor would be sufficient. ^^^ Testimonios (second originals), etc., were admitted on proof of the signatures of the judge and witnesses.*^^ Proof of the signature of the maker of deed entitles it to record. ^^ It seems from section 38 of this act that it is not necessary for the certificate of proof to show that the subscribing witnesses reside out of the county, or were dead, where proof is made by proving their handwrit- ings. The latter part contains the clause, "and in all cases the certificate of any county judge that the hand- 161 1 L. T. 1215; P. D. 4982. 182 Paschal v. Perez, 7 Tex. 357, 358. 1G3 Gainer v. Cotton, 49 Tex. 115; Beaty v. Whitaker, 23 Tex. 526; Beaumont Pasture Co. v. Preston, 65 Tex. 454; McCarty v, Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100. 1C4 McKissick v. Colquhoun, 18 Tex. 148; Beaumont Pasture Co. V. Preston, 65 Tex. 456. And for proof of handwriting by parol, Bee Blythe v. Houston, 46 Tex. 67. 1.'} §§ 457-459 PKOOF OF INSTRUMENTS BY WITNESSES. 194 writing of the witness was duly proved shall be suffi- cient evidence to authorize the clerk of the county court to enter such title," etc., upon record. And see Paschal V. Perez, 7 Tex. 357, where Justice Hemphill says that section 38, at least in its last provision, is satisfied with proof of a single witness. Also McKissick v. Colqu- houn, 18 Tex. 152. § 457. Admissible in Evidence, but not of Record. — In Harris v. Hoskins, 2 Tex. Civ. App. 486, 22 S. W. 251, it was held that an ancient document transferring a headright certificate free from suspicion, and over thirty 3^ears old, found in the county clerk's office, should be admitted in evidence, when accompanied with an offer to prove the genuineness of the signature of one of the subscribing witnesses, though the said office is not the proper depository for such instruments. This was signed by the witnesses while the act of December 20, 1836, was in force, and proven for record while the present law was in force by proof of the handwriting of a single witness, and it was held that it was not properly proven for record, but admissible in evidence. § 458. Act of January 19, 1839^^-^ — Signature of Signer. — This act provides that it shall be the duty of the clerks of the county courts to record deeds, etc., provided one of the witnesses shall sw^ear to the signature of the signer, or he himself shall acknowledge the same, etc. While it does not provide for proof by proof of hand- writing (unless the witnesses swear to the signature of the grantor from their knowledge of his handwriting), it does not declare the methods provided for therein shall be the only methods of proving an instrument, and probably does not repeal the earlier provision for proof by proof of handwriting. ^*^^ § 459. Act of January 18, 1840*<'''— Statute of Frauds.— This act provided that (to be valid against creditors, 165 2 L. T. 52. 166 See ante, § 222; post, §§ 662-666. 167 2 L. T. 203. 195 PKOOF OF INSTRUMENTS BY WITNESSES. §§460,461 etc.) deeds of land must be acknowledged or proved in such manner as conveyances are directed by law to be acknowledged or proven, or if it be of goods, chattels or slaves, then acknowledged or proved by two or more witnesses. But this does not apply to sales, etc., for a good consideration. This does not seem to repeal the provision authorizing proof, by proof of handwriting, in certain contingencies. § 460. Act of February 5, 1840i<58_proof by Two Wit- nesses. — This act required deeds to be acknowledged or proved by Uco witnesses before the county court in the county where the land or a part thereof lieth. It makes no provision as to proof by handwriting. It provides: "Nor shall such conveyance be good against a pur- chaser," etc., "unless it be in writing, acknowledged or proved by tioo ivitncsses to be his, her, or their act."^^^ Does this repeal the former act authorizing proof of handwriting? It does not state that the witnesses must be subscribing witnesses. Under this act it is possible that proof of the handwriting of the grantor by two witnesses would be suflflcient, but not proof of the hand- writing of the subscribing witnesses. § 461. Act of February 5, ISU^'^^—Bj a Subscribing Wit- ness. — This act provided that every deed, etc., hereafter to be made and recorded shall be duly registered, etc., upon acknowledgment or proof by a subscribing wit- ness, etc. It does not provide how the proof by the sub- scribing witness shall be made — whether or not he might prove it by swearing to the signature or hand- writing of the signer or the signature or handwriting of the other witness, nor does it provide that this shall be the only method of proof. It also validates previous registrations where the instrument was acknowledged 168 2 L. T. 327. 169 Post, §§ 611-613. 170 2 L. T. 633. §§462-464 PEOOF OF INSTRUMENTS BY WITNESSES. 198 or proven before certain officers by a subscribing wit- ness. It does not, in terms at least, repeal former modes of proof.*''* § 462. Act of May 12, 1846i''2— Witness' Absence.— This act provided that when the subscribing witnesses may be dead or their place of residence unknown, or where they reside out of the state, an affidavit thereof may be made and attached to the instrument; after which it may be proved for the purpose of being recorded, by the evidence of the handwriting of the grantor or per- son who executed same, and at least one of the sub- scribing witnesses, which evidence shall consist of the depositions of two or more disinterested persons, in writing attached to such instrument. And the officer taking such proof shall make a certificate thereof, sign and seal the same with his official seal. If the person appearing is unknown to the officer, his identity shall be proven. And it provides that all laws and parts of laws conflicting with the provisions of this act be, and the same are hereby, repealed. § 463. Sufficient Proof— Grantee Prove Absence of Wit- nesses.— A deed executed in 1844 and proved in 1856, by proof of handwriting of the grantor and one subscrib- ing witness, and the absence of the subscribing wit- nesses, was properly proven,*''^ and the grantee is com- petent to prove the absence of subscribing witnesses. Under the above act, it seems that it was not necessary for the certificate to show that the witnesses were dis- interested witnesses.*'''* § 464. Act of February 9, 1860— Validates.— This act val- idates proof before certain officers, when made by one or more of the subscribing witnesses, but does not state 171 Post, §§ 621-631. 172 2 L. T. 1544; H. D. 2792. 173 Waters v. Spofford, 58 Tex. 121. 174 See ante, §§ 453, 454; post, § 466. 197 PEOOF OF INSTRUMENTS BY WITNESSES. §§465,466 how the proof had to be made, or whether or not it might be made by the proof of the handwriting of the signer, or of one or more of the other witnesses. This act is still in force. ^'^^ § 465. Act of March 6, 1 863 1''*'— Witness Absent.— This act, amending act of May 12, 1846, provided that when the subscribing witnesses to any instrument of writing may be dead, or their place of residence unknown, or when they reside out of the state, an affidavit thereof may be made and attached to such instrument, after which it may be proved for record by the evidence of the handwriting of the grantor and at least one of the subscribing witnesses; or when the grantor signed by making his mark, by proof of the handwriting of both of the subscribing witnesses; which evidence shall con- sist of the deposition or affidavit of two or more disin- terested persons, in writing attached to such instru- ment; and the officer taking such proof shall make a certificate thereof, sign and seal the same with his offi- cial seal. This remained in force until the adoption of the Revised Statutes of 1879, which is still in force. § 466. Sufficient Proof Under this Act. — Under this aet, where an affidavit of one witness, attached to the deed, states that the subscribing witnesses are dead, and iden- tifies one of their signatures, and affidavits by two other witnesses, stating that the other witness and grantor were both deceased, and that their signatures were genu- ine, and that affiants were not interested in the matter, the deed was properly proven for record.^'^'' It seems that the certificate would not be void for failing to show that the witnesses were disinterested.*'^® 175 See Code Crim. Proc, Act Aug. 28, 1856; P. D. 3132; Eev. Stats.; Code Crim. Proc, art. 794; post, §§ 684, 685. 176 5 L. T. 614; P. D. 5009. 177 Vasquez v. Texas Loan Agency (Tex. Civ. App.), 45 S. W. 942. 178 Ante, §§ 453, 454. §§ 467, 468 PROOF OF INSTRUMENTS BY WITNESSES. 198 § 467. Revised Statutes of 1879 and 1895 (Taking Effect September 1, 1879) — Handwriting of Grantor and One Sub- scribing Witness Proved. — Article 4625 of the Revised Statutes of 1895, and article 4317 of the Revised Stat- utes of 1879 : "The execution of an instrument may be established for record by proof of the handwriting of the grantor, and of at least one of the subscribing wit- nesses in the following cases: "1. When the grantor and all the subscribing wit- nesses are dead. "2. When the grantor and all the subscribing wit> nesses are nonresidents of this state. "3. When the place of their residence is unknown to the party desiring the proof, and cannot be ascer- tained. "4. When the subscribing witnesses have been con- victed of felony, or have become of unsound mind, or have otherwise become incompetent to testify. "5. When all the subscribing witnesses to an in- strument are dead or are nonresidents of this state, or when their residence is unknown, or when they are in- competent to testify, and the grantor in such instru- ment refuses to acknowledge the execution of the same for record." § 468. Facts Which Must be Proven.— Article 4626 : ''The evidence taken under the preceding article must satis- factorily prove to the officer the following facts: "1. The existence of one or more of the conditions mentioned therein; and, "2. That the witness testifying knew the person whose name purports to be subscribed to the instru- ment as a party, and is well acquainted with his sig- nature, and that it is genuine; and, "3. That the witness testifying personally knew the person who subscribed the instrument as a witness, and is well acquainted with his signature, and that it is genuine; and, "4. The place of residence of the witness testifying." 199 PROOF OF INSTRUMENTS BY WITNESSES. §§ 469-471 § 469. Signature by Mark — Proof, How Made. — Article 4627 (4319) : "When the grantor or person who executed the instrument signed the same by making his mark, and when, also, one of the conditions mentioned in ar- ticle 4625 exists, the execution of any such instrument may be established by proof of the handwriting of two subscribing witnesses, and of the place of residence of such witnesses testifying." § 470. Proof Made by Whom.— Article 4628 (4320): "The proof mentioned in the three preceding articles must be made by the deposition or affidavit of two or more disinterested persons in writing; and the officer taking such proof shall make a certificate, sign and seal the same with his official seal, which proofs and certifi- cate shall be attached to such instrument."^''^ K. OTHER MEANS OF PROVING CONVEYANCES FOR RECORD. § 471. Obtaining and Recording Judgment. — While the first two methods are the direct methods of proving instru- ments for registration, and require certain statutory evi- dence, our statutes also allow us an indirect method of proving instruments for record, and making such proof by the common-law rules of evidence, to wit : By suit in court establishing the validity of the instrument, and then recording the judgment in the records of deeds. Such proof and registration has been authorized since the act of February 5, 1840.**^ It seems that before this time record of a judgment in the record of deeds was not authorized or required. From this time to the adoption of our Revised Statutes of 1879, it seems that all instruments, except those of married women, could be so established for record by suit, whether acknowl- edged or witnessed or not, but that a married woman's deed could not be so cured if not properly acknowl- edged, and possibly not, even though properly acknowl- 179 As to necessity of certificate stating that witness was disin- terested, see ante, §§ 453, 454, 466. 180 H. D. 2771. §§ 472, 473 PEOOF OF INSTRUMENTS BY WITNESSES. 200 edged, if defectively certified, unless some equity or the doctrine of estoppel would aid such action. It has been sometimes held by our courts that such deeds without proper certificates are void.^*^^ Yet we found no case where such correction of a married woman's deed, de- fective owing to the defective certificate of a valid ac- knowledgment, was attempted in a direct proceeding during the above pej*iod.**^ § 472. Curing Certificates. — After the adoption of the Revised Statutes of 1879 (articles 4351 to 4355), such action was authorized to cure, in addition to the in- struments which previously might have been cured, de- fective certificates of valid acknowledgments of mar- ried women. **^ L. PROOF OF DEEDS OFFERED IN EVIDENCE. § 473. Common-law Rules of Evidence. — Since the abro- gation of the civil law and the adoption of the common law in Texas (January 20, 1840),*^* the common-law rules of evidence have generally controlled the proof of written instruments offered as evidence in the courts, unless properly recorded and filed for three days with the papers of the cause, etc., as provided by statute. ^^^ Where the deed is lost, it is not necessary to prove its contents by subscribing witnesses, as would be required 181 See "Equity and Estoppel" and §§ 998-1005; Looney v. Adam- son, 48 Tex. 622; Williams v. Ellingsworth, 75 Tex. 480, 12 S. W. 746; Starnes v. Beitel, 20 Tex. Civ. App. 425, 50 S. W. 203; Johnson V. Taylor, 60 Tex. 361. 182 For proving lost or destroyed instruments, see ante, §§ 67a, 190. 183 See "Curing Defective Acknowledgments and Certificates," chapter 28. 184 2 L. T. 177. 185 Sloan V. Thompson, 4 Tex. Civ. App. 419, 23 S. W. 616; Holmes v. Coryell, 58 Tex. 688; Gainer v. Cotton, 49 Tex. 116; Loftin v. Nally, 24 Tex. 574; Butler v. Dunagan, 19 Tex. 565; Holliday v. Cromwell, 26 Tex. 193; Wiggins v. Fleishel, 50 Tex. 62; McFadden V. Preston, 54 Tex. 407; Gaines v. Ann, 26 Tex. 341. See ante, §§ 445-451, 457. 201 PROOF OF INSTRUMENTS BY WITNESSES. §§474-476 if the deed were in existence, but secondary evidence was admissible for that purpose.*^^ § 474. By Subscribing Witnesses. — Under the common law such instruments must be proven by the best or primary evidence, if obtainable, to wit : By one or more of the subscribing witnesses, if there be any, and he is within the jurisdiction of the court; if not obtainable, or he has become the advei-se party, other or secondary evidence is admissible.*®'' The common-law rule per- mitted the witness to prove the execution by swearing to the signature of the signer or to his handwriting. *®® § 475. Subscribing Witnesses not Obtainable or Adverse Party.— If the witnesses are not obtainable, nor compe- tent, or have become the adverse party, proof of the instrument should be made by proof of the handwriting of the witnesses, or at least one of them.*®^ But some cases hold that proof of the signature of the grantor is preferable. *^^ § 476. Where Witness' Handwriting cannot be Proved. — If proof of the handwriting of the subscribing witness cannot be made, proof of the handwriting of the grantor is acceptable;*^* also, is other evidence, such as proof of execution by comparison of signatures and hand- writing,*^^ and admissions and circumstantial evidence even, where the deed is lost or destroyed.***^ 186 Masterson v. Harris (Tex. Civ. App.), 83 S. W. 429. 187 Abbott's Trial Evidence, 1st ed., 505, 506; Greenleaf on Evi- dence, 13th ed., 572; Cairrell v. Higgs, 1 U. C. 60; Craddock v. Mir- rell, 2 Tex. 496; Mapes v. Leal, 27 Tex. 349; Texas Land Co. v. Williams, 51 Tex. 60. 188 Sloan V. Thompson, 4 Tex. Civ. App. 419, 23 S. W. 616; Ab- bott's Trial Evidence, 393; Greenleaf on Evidence, 572. 189 Gainer v. Cotton, 49 Tex. 117; Greenleaf on p]vidence, 13th ed., 575; Abbott's Trial Evidence, 391. 190 Greenleaf on Evidence, 575; Frazin v. Moore, 11 Tex. 755. 191 Cairrell v. Higgs, 1 U. C. 60; Clark v. Sanderson, 3 Binn. (Pa.) 192, 5 Am. Dec. 368. 192 Greenleaf on Evidence, 576-582. 193 Baylor v. Tilleback, 20 Tex. Civ. App. 490, 49 S. W. 721; Clapp §§ 477-480 PROOF OF INSTRUMENTS BY WITNESSES. 202 § 477. May be Proved by Grantee When. — A grantee may prove an examined copy of a deed, the original being lost and the subscribing v^dtnesses being dead or out of the state.**^* A trustee making deed to him- self, there being no subscribing witnesses nor acknowl- edgment, may testify to its execution. ^**^ § 478. Proved by any Competent Witnesses When. — If the subscribing witness' testimony leaves the execution in doubt, it may be proven by those present at the execu- tion, who saw the grantor execute it or heard him ad- mit it, or it may be proven by any competent witness who knows the handwriting of the grantor.^'*** § 479. No Subscribing Witnesses — Proof, How Made. — Where there are no subscribing witnesses, proof of exe- cution must be made by proof of the signature of the signer, if it can be made, and such proof may be by the signer, or other person who saw him sign it, heard him acknowledge it, or knows his signature,*^'' or by comparison of handwritings.*^* § 480. By Other Evidence. — If the proof of the signa- ture cannot be made, other or secondary evidence is ad- missible to prove the execution or the former existence of the deed, to wit, admissions, circumstantial evidence, etc.*^^ V. Engledow, 82 Tex. 296, 18 S. W. 146; Heintz v. Thayer, 92 Tex. 658, 50 S. W. 930; Cox v. Rust (Tex. Civ. App.), 29 S. W. 807. 194 Texas Land Co. v. Williams, 51 Tex. 51. 195 Bohn V. Davis, 75 Tex. 26, 12 S. W. 837. 196 Abbott's Trial Evidence, 391; Miller's Estate, 3 Rawle, 312, 24 Am. Dec. 345; Steplienson v. Stephenson, 6 Tex. Civ. App. 529, 25 S. W. 649. See ante, §§ 445-451, 457. 197 Abbott's Trial Evidence, 391, 393; Greenleaf on Evidence, 575, 569, note; Sloan v. Thompson, 4 Tex. Civ. App. 419, 23 S. W. 616. 198 Abbott's Trial Evidence, 369; Greenleaf on Evidence, 576-582; Jester v. Steiner, 86 Tex. 420, 25 S. W. 411; Eborn v. Zimpelman, 47 Tex. 518, 26 Am. Rep. 315; Hanley v. Gandy, 28 Tex. 213, 91 Am. Dec. 315. See "Handwriting," §§ 440-450. 199 Texas Land Co. v. Williams, 51 Tex. 59; Baylor v. Tilleback, 20 Tex. Civ. App. 490, 49 S. W. 721; Heintz v. Thayer, 92 Tex. 658, 203 PEOOF OF INSTRUMENTS BY WITNESSES. §§481,482 § 481. Primary and Secondary Evidence. — In so far as the proof of written instruments is concerned, it is diffi- cult to tell from the authorities where and when the line between primary and secondary evidence should be drawn ; for instance, the best or primary evidence of the proof of execution of a written instrument, if there be subscribing witnesses, is proof of its execution by the testimony of the witnesses. It is held that the grantee in a deed could not be called to prove its execution without accounting for the absence of the subscribing witnesses, or otherwise laying the foundation for the introduction of secondary evidence.-**® The next best or secondary is the proof of the signatures of the wit- nesses.^®^ The next best is the proof of the execution (by the grantor) by the testimony of others than sub- scribing witnesses, who testify to their having seen the execution, its acknowledgment in their presence, or their knowledge of the grantor's handwriting;"®^ and the next is where the instrument is lost or destroyed, proof of its existence by admissions, copies, circumstan- tial evidence, etc.^®^ § 482. General Rule. — The general rule adopted seems to be, in this state, that there are no degrees of secondary evidence.^®* This follows the English rule, while the weight of the American authorities have adopted a dif- ferent rule and require a party to produce the best kind of secondary evidence. ^®^ 50 S. W. 930; Clapp v. Engledow, 82 Tex. 296, 18 S. W. 146; Cox v. Eust (Tex. Civ. App.), 29 S. W. 807. 200 Texas Land Co. v. Williams, 51 Tex. 59; Wiggins v. Fleishel, 50 Tex. 57; Greenleaf on Evidence, 13th ed., 84. 201 Ante, § 475. 202 Ante, § 448. 203 Ante, § 480. 204 Texas Land Co. v. Williams, 51 Tex. 59; White v. Burney, 27 Tex. 51; Houston v. Robertson, 2 Tex. 18; Greenleaf on Evidence, 582, 584, note. 205 Harvey v. Thorpe, 65 Am. Dec. 346, and cases cited. § 483 PKOOF OF INSTRUMENTS BY WITNESSES. 204 § 483. Line Drawn Between Primary and Secondary Evi- dence. — It becomes important to know what is the pri- nuiry evidence in a given case, and where the line is drawn between that and secondary. For instance, sup- pose it is shown that the subscribing witnesses are dead, and consequently the best evidence^^*^ cannot be produced, could the proof of the signatures of the sub- scribing witnesses, being the next best evidence, be dis- pensed with, and proof of the execution be made by proof of the signature of the grantor, or by a lower de- gree of evidence? If there were no subscribing wit- nesses, proof of the signature of the grantor or signer would be the best evidence, and a lower degree could not be given without proper excuses for the absence of the higher. In this case the line would be drawn be- tween the proof of the signature of the signer and the lower grade of evidence. ^^''' Would the fact that the deed, etc., was witnessed and the witnesses dead dis- pense w^ith the necessity of proving the signature of the grantor and permit, without other showing, the intro- duction of a lower degree of evidence? It does not seem to have been decided in this state. ^^^ 206 Ante, §§ 456, 481. 207 Ante, §§ 454, 455. 208 See Simpson v. Edens (Tex. Civ. App.), 38 S. W. 476. 205 SEALS. CHAPTER XIII. SEALS. A. GENERAL TEXT. § 484. Seals essential— Kind of seal to be used. § 485. Not constructive notice without seal. § 486. Not required when. § 487. Attachment of seal is question of fact. § 488. Reference to seal unnecessary when attached. § 489. Presumption and statement as to seal. § 490. Reference to seal on record affords presumption of proper seal. § 491. Statement in record "no seal on" ineffectual if original shows seal. § 492. No presumption that seal was attached where there is noth- ing to show it. § 493. Clerical omission of word "seal" not fatal. § 494. Parol evidence to aid seal. § 495. Omission of seal by mistake not aided by parol. § 496. Parol evidence to aid omission admissible when. § 497. Seal may be attached when. § 498. Justices of the peace must use notarial seals. § 499. No form of seal for commissioners of deeds prescribed when. § 500. Forms of seals prescribed. § 501. Private seals or scrolls— Railroad company's seals — Private seals in lieu of official. § 502. Conveyance without private seals not void. B. STATUTORY ENACTMENTS RELATING TO SEALS. § 503. Act of December 20, 1836— Seal of county court. § 504. Act of November 16, 1837 — Notaries shall use seal. § 505. Act of February 5, 1840— Use of seal required. § 506. Act of February 3, 1841— Use of seal required. § 507. Act of February 5, 1841 — Use of seal required. § 508. Act of January 10, 1845— Notarial seal. § 509. Act of April 29, 1846— Use of seal required. § 510. Act of April 30, 1846 — Judges and notaries to attach seals. § 511. Act of May 8, 1846— Commissioners of deeds to use seals. § 512. Act of May 11, 1846— Seal of district court. § 513. Act of May 13, 1846— Notarial seals. § 514. Act of May 12, 1846— Seals of county court. § 484 SEALS. 206 § 515. Act of May 13, 1846— Seals of county court. § 516. Act of March 16, 1848 — Seals of couuty court. § 517. Act of November 24, 1851— Validates seal used by Galveston county court. § 518. Acts of April 6, 1861, and January 14, 1862— Use of seals required. § 519. Act of December 31, 1861 — Seals of commissioners of deeds. § 520. All subsequent acts required the use of seals. § 521. Act of June 16, 1876— Seal of county court. § 522. Act of June 24, 1876— Seals of notaries. § 523. Act of August 18, 1876 — Seals of county court. § 524. Act of April 18, 1879— Validated certain notarial seals. § 525. Act of March 18, 1881 — Validated certain notarial seals. § 526. Act of April 1, 1881— Notarial seals. § 527. Act of April 5, 1889— Validates certain notarial seals. (For necessity of seals prior to December 20, 1836, see ante, § 3 (d).) ' A. GENERAL TEXT. § 484. Seals Essential — ^Kind of Seal to be Used. — Where a seal is required by statute it is essential to the valid- ity of the certificate. Under the act of 1846, which is still in force, the certificate must be authenticated by the oflfi-cial seal/ No notarial act is valid without the seal, and the use of the seal of the county court by mis- take is fatal to the certificate, and it seems that the acts requiring particular seals are mandatory.^ And the seal being evidence of the fact of the examination of a married woman, it was error to admit parol evi- dence to show such examination.^ But it is held else- where that the use of an irregular notarial seal will not vitiate the certificate of a notary.'* Omission of seal of notary was not fatal under the common law.^ 1 Texas Land Co. v. Williams, 51 Tex. 51; Settegast v. Charpiot (Tex. Civ. App.), 28 S. W. 580; Witt v. Harlan, 66 Tex. 660, 2 S. W. 41; Ballard v. Perry, 28 Tex. 366. 2 McKeller v. Peck, 39 Tex. 387; Masterson v. Todd, 6 Tex. Civ. App. 131, 24 S. W. 682; Kincaid v. Jones, 2 U. C. 534. 3 McKeller v. Peck, 2 U. C. 194. 4 Muncie Nat. Bank v. Brown, 112 Ind. 477, 14 N. E. 358. 5 RindskofE v. Malone, 74 Am. Dee. 368. See note for fuU dis- cussion. 207 SEALS. §§485-489 § 485. Not Constructive Notice Without Seal. — Where the execution of the deed is proven as at common law, its registration will not be deemed constructive notice on appeal unless it appears from the record that the seal of the officer before whom it was acknowledged was af- fixed to his certificate.^ § 486. Not Required When.— The law of December 20, 1836, did not require, as later laws on this subject seem to do, that the certificate of the recorder to the registra- tion of the deed should be authenticated by his official seal.''' Seals to the certificate of the county clerk seem not to have been required under the laws of 1836, and March 16, 1810, but were required by the act of May 12, 1846.* § 487. Attachment of Seal is a Question of Fact. — The question as to whether or not a seal was used on an in- strument is a question of fact to be established by proof. If a seal was in fact used, but has since become obliter- ated, the instrument is not invalid on that accoiunt. And it is not necessary that the seal make an impres- sion on the paper; if it be made on wax spread on the paper, that is sufficient.^ ^ 488. Reference to Seal Unnecessary When Attached. — If it is attached, it is not necessary for the certificate to certify that it is attached.^^ § 489. Presumption and Statement as to Seal. — If the certificate of the notary declares that he has affixed his official seal, though the record made by the county clerk fails to indicate seal by scroll or the initials "(L. S.)," it 6 Daugherty v. Yates, 13 Tex. Civ. App. 647, 35 S. W. 937. 7 Wilson V. Simpson, 80 Tex. 279, 16 S. W. 40. 8 Waters v, Spofford, 58 Tex. 121; Eiviere v. Wilkens (Tex. Civ. App.), 72 S. W. 610. 9 Stooksberry v. Swann (Tex. Civ. App.), 21 S. W. 695. 10 Webb V. Huff, 61 Tex. 678. §§490,491 SEALS. 208 may be presumed that the seal was properly attached/^ and the rule applies where the record is offered instead of a certified copy/^ And it is not essential, to the ad- mission in evidence of the record copy of a deed, that anything should appear in the copy to represent the seal required to accompany the certificate of acknowledg- ment.*^ ;< 490. Reference to Seal on Record Affords Presumption of Proper Seal. — \\ here the certificate on record or copy recites that the seal is attached, as "witness my hand and official seal," or where the word "seal" or the ini- tials "L. S." are written in the record or copy to indi- cate the seal, the presumption is that a proper seal was attached.** In the case of Stephens v. Motl, it is held that after a gTeat lapse of time it would be presumed that the seal showed that the certificate was made by an officer of the proper county, and could be properly looked to by the officer who made the record, to aid the certificate of acknowledgment.*^ § 491. Statement in Record "No Seal on" Ineffectual if Original Shows Seal. — After the record of a mortgage, on the record-book at usual place for the seal was written by the officer making the record, "no seal on," the orig- inal of the mortgage was produced wdth the impression thereon of the official seal. The officer testified that he had attached the seal at the time he made the certifi- 11 Ballard v. Perry, 28 Tex. 366; Coffey v. Hendricks, 66 Tex. 677, 2 S. W. 47. 12 Ballard v. Perry, 28 Tex. 366; Coffey v. Hendricks, 66 Tex. 677, 2 S. W. 47. 13 Witt V. Harlan, 66 Tex. 661, 2 S. W. 41; Minor v. Powers (Tex. Civ. App.), 38 S. W. 400; Moses v. Debrell, 2 Tex. Civ. App. 457, 21 S. W. 414. 14 Alexander v. Houghton, 86 Tex. 705, 26 S. W. 937; Chamberlain V. Pybas, 81 Tex. 514, 17 S. W. 50; Stephens v. Motl, 81 Tex. 120, 16 S. W. 731; Ballard v. Perry, 28 Tex. 366; Coffey v. Hendricks, 66 Tex. 676, 2 S. W. 47. 15 Candle v. Williams (Tex. Civ. App.), 51 S. W. 562. Also see 41 Am. Dec. 173, note, and 30 Am. St. Rep. 122, for briefs. 209 SEALS. §§ 492-495 cate, and it was held that the mortgage was duly re- corded.-'^^ § 492. No Presumption that Seal was Attached Where There is Nothing to Show It. — Where the acknowledgment did not purport to be under the notary's official or notarial seal, and it was impossible to tell from the paper whether such seal had been in fact used, it was error to instruct the jury that acts done by public offi- cers are generally presumed to be regular, as would re- quire the jury to infer that a seal had been attached.^'' It will be noted that the certificate did not recite that the seal had been attached. § 493. Clerical Omission of Word "Seal" not Fatal — The omission of the word "seal" in the clause, "and of office," is not fatal to the certificate, as it is apparent what word was omitted, and it can easily be supplied by the reader.** § 494. Parol Evidence to Aid Seal. — It is competent to show by parol evidence that the official seal was at- tached.*® § 495. Omissions of Seal by Mistake not Aided by Parol. — As the omission of the seal makes the certificate invalid for the purpose of registration, parol evidence that the seal was omitted by mistake is inadmissible to fix notice or make the certificate operative as constructive notice, but such evidence would be admissible for the purpose of proving the execution of the deed by a per- son other than a married woman.^** 16 Equitable Mortgage Co. v. Kempner, 84 Tex. 102, 19 S. W. 358. 17 Stooksberry v. Swann, 12 Tex. Civ. App. 66, 21 S. W. 694, 22 S. W. 966. 18 Nichols V. Stewart, 15 Tex. 235; Nichols v. Gordon, 25 Tex, Supp. 112; Belcher v. Weaver, 46 Tex. 298, 26 Am. Kep. 267. 19 Equitable Mortgage Co. v. Kempner, 84 Tex. 102, 19 S. W. 358; Stooksberry v. Swann, 12 Tex. Civ. App. 66, 21 S. W. 695, 22 S. W. 966. 20 King V. Eussell, 40 Tex. 126. 14 §§ 496-498 SEALS. 210 § 496. Parol Evidence to Aid Omission Admissible When. Where the seal has been omitted from the eertificate of a married woman's acknoAvledji;ment, it was held that as the certificate concludes the wife's interest, and can- not be attacked save for fraud, on the same principle it should not be aided by parol. ^^ In the above cases it will be noticed that the causes of action arose and were tried before the Revised Statutes of 1879 were adopted, providing for the curing of defective certifi- cates of acknowledgments by action, where they were properly taken, but defectively certified. Under this statute it would be proper to cure the absence of seal by such action. ^^ § 497. Seal may be Attached When. — It is intimated in McKeller v. Peck, 39 Tex. 382, that where a notary omits the seal by mistake, he may cure the same at any time while in ofiice by attaching the seal, provided the mar- ried woman has not in the meantime withdrawn her ac- knowledgment. But this rule has not been uniformly adhered to in later cases. It was decided by the court of civil appeals that where the instrument has passed out of the officer's hands he cannot amend it without a re-examination f^ but the supreme court dissented from that view, following McKeller v. Peck, supra.^^ § 498. Justices of the Peace Must Use Notarial Seals. — Justices of the peace, as ex-officio notaries public, must use the seal of notaries.^^ 21 McKeller v. Peek, 2 U. C. 194. 22 Johnson v. Taylor, 60 Tex. 361; Leach v. Dodson, 64 Tex. 189; Davis V. Agnew, 67 Tex. 206, 2 S. W. 43, 376; Hayden v. Moffett, 74 Tex. 650, 15 Am. St. Eep. 866, 12 S. W. 820; Williams v. Ellingsworth, 75 Tex. 482, 12 S. V7. 746. 23 Stone V. Sledge (Tex. Civ. App.), 24 S. W. 697, 87 Tex. 49, 47 Am. St. Eep. 65, 26 S. W. 1069. 24 See post, § 992. 25 Daugherty v. Yates, 13 Tex. Civ. App. 647, 35 S. W. 939. 211 SEALS. §§499-501 § 499. No Form of Seal Prescribed for Commissioners of Deeds When.— Under the act of May 8, 1846,'^ providing for the appointment of commissioners of deeds to take acknowledgments beyond the limits of this state, did not require any particular form of seal to be used.^'' In 1868, under the statute requiring no particular form of seal for commissioners of deeds, the omission of the star is not fatal to the certificate of acknowledgment. The law in force did not require commissioners of deeds for other states to provide themselves with seals, with a star of five points in the center. There was a statute making such requirement for the commissioners of the Choctaw, Chickasaw, Cherokee and Creek nations of Indians at that time. And there is now (since the adoption of the Revised Statutes of 1879, article 517) such a statute in regard to commissioners generally. (It seems that the act of December 31, 1861,^^ only ap- plied to the seals of the commissioners for the Indian nations, previous to its incorporation in the Revised Statutes of 1879, and that the Revised Statutes of 1879 for the first time made that section apply to commission- ers generally.) § 500. Forms of Seals Prescribed. — The acts requiring and specifying the forms of seals will be noted in sections 503-527, post. As to the effect of failing to use proper form, see ante, § 484. § 501. Private Seals or Scrolls — ^Railroad Companies' Seals — Private Seals in Lieu of Official.— Private seals were required by all persons from March 16, 1840, to February 2, 1858,^^ and by married women from February 3, 1841, to February 2, 1858.^* They might be used in lieu of 26 P. D., art. 3762. 27 Thorn v. Frazier, 60 Tex. 261. 28 Davis V. Koosevelt, 53 Tex. 314. 29 P. D. 3771. 30 Post, § 505. 31 Post, § 506. •§§ 502-505 SEALS. 212 official in some cases. ^^ Railway company's private seal sufficients^ § 502. Conveyance Without Private Seals not Void. — ^Dur- ing this time, while conveyance without such seal did not pass title, it was not void, but good as a contract or passed equitable interest.^^ B. STATUTOEY ENACTMENTS EELATING- TO SEALS. § 503, Act of December 20, 1836— Seal of County Court. This act (taking effect from passage)^^ required county clerks to procure a seal for the use of their respective courts, with the seal of the court around the margin thereof, and a star of five points in the center; that this seal shall be the notarial seal, and shall be fixed to all instruments and attestations of the respective notaries. This act made county clerks recorders, authorized them to receive proof and acknowledgments of instruments and certify to them, which shall form part of the record, but does not require them to use a seal.^^ § 504. Act of November 16, 1837— Notaries Shall Use Seal. — This act (taking effect from passage)^'' provided that notaries shall use a seal of office, which shall be affixed to all certificates by them, but it does not pre- scribe the form of same. § 505. Act of February 5, 1840— Use of Seal Required.— This act (taking effect March 16, 1840f^ required dis- trict judges, chief justices, notaries public, and two jus- tices of the peace to attach the seal of his office to cer- tificates of acknowledgment and proof. It also required 32 See post, §§ 512, 515. 33 Post, § 518. 34 Frost V. V^olf, 77 Tex. 460, 19 Am. St. Eep. 76, 14 S. W. 440; Torn V. Sayers, 64 Tex. 342. 35 1 L. T. 1211. See H. D. 2752, 2755. 36 Eiviere v. Wilkens, 72 S. W. 608. 37 1 L. T. 1358. 38 2 L. T. 329. ' 213 . SEALS. S^SOe-SOg" the use of private seals or scrolls by grantors, but pri- vate seals and scrolls were again abrogated by the acts of February 2, 1858,^^ and April 28, 1873.^^ § 606. Act of February 3, 1841 — Use of Seal Required. — This act (taking effect from passage) *^ required dis- trict judges and chief justices of the county court to certify to acknowledgments of married women under seal. It also required married women to use private seals on their deeds.**^ § 507. Act of February 5, 1841 — Use of Seal Required. — This act (taking effect March 17, 1841)*^ provided that when deeds, etc., are acknowledged or proven abroad before any circuit or supreme judge or chancellor of the United States of America, and certified by him, and the certificate of the chief magistrate of the nation as to his official character under the great seal of United States, or before any judge of the superior court or any other nation or kingdom, and certified by such judge and countersigned by the chief magistrate or sovereign of such other nation, under the great seal or by the consul or minister of Texas, resident there, shall be entitled to record. § 508. Act of January 10, 1845— Notarial Seal. — This act (taking effect March 15, 1845) *^ required notaries pub- lic to have a seal of office with the words "notary pub- lic" and the county around the margin, with a star of five points in the center, and that no act shall be valid unless the seal of office of such notary is appended. 39 4 L. T. 968. 40 7 L. T. 503. See English v. Helms, 4 Tex. 231; Harris v. Cato, 26 Tex, 339; Winbish v. Holt, 26 Tex. 676. As to use of seals by county clerks, see ante, § 486. 41 2 L. T. 608. 42 See ante, § 505. 43 2 L. T. 1633. 44 2 L. T. 1059. §§509-513 SEALS. 214= § 509. Act of April 29, 1846— Use of Seal Required. — This act (taking effect June 22, 1846)"*^ required officers to attach their seals of office to certificates to schedule of the wife's separate property. § 510. Act of April 30, 1846— Judges and Notaries to At- tach Seals.— This act (taking effect June 22, 1846)*^ re- quired the judges of the supreme or district courts or notary public to attach his seal to certificates of ac- knowledgments of married women, and if acknowledged out of this state, but within the United States or their territories, judges of the courts of record shall use their seals; and if out of United States, public ministers, charg6 d'affaires or consuls shall attest their certificates Avith their seals. § 511. Act of May 8, 1846 — Commissioners of Deeds to Use Seals.— This act (taking effect June 22, 1846),*^ pro- viding for commissioners of deeds of other states, re- quires them to use seals, but does not prescribe the form of same. § 512. Act of May 11, 1846^*^— Seal of District Court.— This act required district courts to have a seal with a star of five points in the center, and the words "District court of county, Texas," engTaved thereon, which shall be attached to certificates, etc., but that private seals may be used until others are procured. § 513. Act of May 13, 1846— Notarial Seals.— This act (taking eft'ect June 22, 1846)'*'* required notaries public to provide a seal of office whereon shall be engraved in the center a star of five points, and the words "Notary public, county of — — — , Texas," around the margin, 45 2 L. T. 1459. 46 2 L. T. 1462. 47 2 L. T. 1493. 48 2 L. T. 150. 49 2 L. T. 1647. 215 SEALS. §§ 514-518 and he shall authenticate his official acts therewith.^** Placing "Texas" between points of star on notary seal does not invalidate it.®^ § 514. Act of May 12, 1846 — Seals of County Court.— This act (taking effect July 13, 1846)^^ made the seal of the county court the seal of the recorder, and again re- quired officers authenticating deeds, etc., to use seals of their offices. § 515. Act of May 13, 1846— Seals of County Court.— This act ( taking effect July 13, 1846) ^^ required county clerks to provide a seal, whereon shall be engraved the words, "County court, county, Texas," which shall be used in the authentication of official acts of said court, the clerks and chief justices thereof, and until such seals are procured private seals may be used. § 516. Act of March 16, 1848— Seals of County Court.— This act (taking effect August 7, 1848),®* required county courts to have a seal whereon shall be engraved the words, "County court, county, Texas," the blank to be filled with the name of the county, which shall be used in the authentication of official acts of said court or county commissioners, when performing the duties of the chief justices. § 517. Act of November 24, 1851— Validates Seal Used by Galveston County Court.— This act validates certain seals used by county officers of Galveston County. ®® § 518. Acts of April 6, 1861, and January 14, 1862— Use of Seals Required.— These acts (taking effect from pas- 50 Stephens v. Motl, 81 Tex. 120, 16 S. W. 731. 51 Stringfellow v. Thomijson, 1 C. A. 565. 52 2 L. T. 15-12. 53 2 L. T. 1640. 64 3 L. T. 113. 55 Post, § 1027. §§ 519-522 SEALS. 216 sage)*'® again required all officers to attest acknowledg- ments and proof under their official seals. They also provided that deeds of railroad companies by their presi- dents, attested by the seal of the company, shall be en- titled to registration without other certificate. § 519. Act of December 31, 1861— Seals of Commissioners of Deeds.— This act (taking effect from passage),^'' pro- viding for appointment of commissioners for the Choc- taw, Chickasaw, Cherokee and Creek nations of In- dians, required the commissioners to procure a seal with a star of five points in the center, and the words "Com- missioner of the state of Texas" engraved thereon, with- out which their acts shall be void. § 520. All Subsequent Acts Required the Use of Seals. — The acts of March 6, 1863, November 13, 1866, August 8, 1870, May 6, 1871, Kevised Statutes of 1879, April 1, 1881, and Revised Statutes of 1895, required officers to attest their certificates of acknowledgment and proof with their official seal.^® § 521. Act of June 16, 1876— Seal of County Court.— This act (taking effect from passage) ^^ provides that county courts of each county in this state shall have a seal with a star of five points in the center, and the words "County court of [insert the name of the county] county, Texas," engraved thereon , an impression of which seal shall be used in the authentication of all official acts of the clerk. § 522. Act of June 24, 18766o_Seals of Notaries.— This act provides for seal of notary whereon shall be en- graved a star of five points, and the words "Notary pub- 56 5 L. T. 373, 501. 57 5 L. T. 465. 58 5 L. T. 614, 1128; 6 L. T. 223, 980; Rev. Stats. 1879, art. 4308; 9 L. T. 187; Rev. Stats. 1895, art. 4616. 59 8 L. T. 859. 60 8 L. T. 865. 217 SEALS. §§ 523-526 lie, Co. of , Texas," around the margin, the blank to be filled with name of county of officer. § 523. Act of August 18, 1876— Seals of County Court.— This act (taking effect from passage),®* amending sec- tion 22 of act of June 16, 1876, provides that county courts of each county in this state shall have a seal with a star of five points in the center, and the words "County court [insert the name of the county] county, Texas," engraved thereon, an impression of which shall be used in the authentication of official acts of the clerk. § 524. Act of April 18, 1879«2_Validated Certain Notarial Seals. — This act provided that the acts of notaries pub- lic appointed by the authority of the laws of Texas, evi- denced by the impression of a notarial seal having the word "Texas" engraved between the points of the star thereon, shall be, and they are hereby, made as valid and binding as though the word "Texas" had been en- graved on the margin of the seal. § 525. Act of March 18, 1881«3— Validated Certain No- tarial Seals. — This act provided that all acts of notaries public appointed by authority of the laws of the State of Texas, evidenced by the impression of a notarial seal, having the word "Texas" engraved just over the points of the star thereon, also where the word "Texas" is en- graved between the points of the star, and county of the residence of the authenticating officer under the star; all seals having the words " — county, Texas," in- stead of "The county of , Texas," are hereby made as valid and binding as though the word "Texas" had been engraLved on the margin of the seal. § 526. Act of April 1, 1881— Notarial Seal.— This act (taking effect from passage) *** required notaries to pro- 61 8 L. T. 1009. 62 8 L. T. 1408. 63 9 L. T. 143. 64 9 L. T. 187. § 527 SEALS. 218 vide a seal of office wherein shall be engraved in the center a star of five points and the words "Notary pub- lic, county of , Texas," around the margin (the blank to be filled with the name of the county and their authenticating official acts therewith). § 527. Act of April 5, 1889«"^— Validated Certain Notarial Seals. — This act provided that all official acts of no- taries public, appointed by authority of the laws of the state of Texas, as evidenced by the impress of the no- tarial seal, having the words "Texas" engraved just over the points of the star thereof, also where the word "Texas" is engraved between the points of the star, and the county of, and the residence of the authenticating officer under the star or seal having the words " county, Texas," instead of "The county of , Texas," are hereby made as valid and binding as though the word "Texas" had been engraved on the margin of the seal, shall be held thereafter to be notice, and cop- ies from the records shall be admissible in evidence, the same as if the seal had been used in strict conformity with law.^^ 65 9 L. T. 1149. 66 See "Validating Statutes," post, §§ 1016-1068. 219 AUTHENTICATION WITHOUT THE STATE. § 528 CHAPTER XIV. AUTHENTICATION WITHOUT THE STATE. § 528. Generally — Must be taken in compliance with Texas laws. § 529. Foreign language. § 530. Form and requirements of certificates and acknowledgments. § 531. Authority shown by certificate of conformity when. § 532. Official character shown by certificate. § 533. Certificate must show that the court before whom acknowl- edgment is made is a court of record. § 534. Other rule in Illinois. § 535. Judges of courts of record no authority after 1879. § 536. Acknowledgment authorized without the state by act of February 5, 1841. § 537. As to acknowledgments of married women. § 538. Certificates of conformity. § 539. Continued in force. § 540. Acknowledgments of married women by act of April 30, 1846. § 541. Eepealed former laws. § 542. Certificate of conformity under above act. f 543. Authority continued. § 528. Generally — Must be Taken in Compliance with Texas Laws. — It is well settled that acknowledgments and proof of instruments of writing for record, and certificates of same made in foreign jurisdictions or states, concerning Texas lands, to be valid must be made in compliance with the laws of Texas. In other words, the same manner of taking the acknowledgment and same form of certificate used within the state shall be used without it, and unless the officer in the for- eign country or state is authorized to take acknowledg- ments or proof by the statutes of Texas, his certificate is not aided by a certificate showing that he was au- thorized to take acknowledgments or proof by the laws of the foreign state or country.* 1 Sartor v. Bolingcr, 59 Tex. 411; Baker v. Wescott, 73 Tex. 129, 11 S. W. 157 J Birdseye v. Rogers (Tex. Civ. App.), 26 S. W. 841. §§ 529-532 AUTHENTICATION WITHOUT THE STATE. 220 § 529. Foreign Language.— It is held in Sartor v. Bol- inger that the court will not take judicial knowledge of the meaning of a certificate in a foreign language; it should be translated.^ § 530. Form and Requirements of Certificates and Ac- knowledgments. — For the form and requirements of cer- tificates of acknowledgments and j) roofs taken in ju- risdictions without this state, they being the same as those within, for the conveyance of Texas lands, see ante, §§ 125-238, 274-348, 349-483. § 531. Authority Shown by Certificate of Conformity When. — Certificates of conformity, to wit, by the chief magistrate or sovereign, as to ofiicer's authority, were required from February 5, 1841, to July 13, 1846 (the time of the taking effect of the act of May 12, 1846), but not afterward.^ The general rule is that certifi- cates of conformity are not necessary unless required by statute.^ § 532. Official Character Shown by Certificate. — While certificates of conformity were not required after the act of May 12, 1846, the oflacial character and author- ity of the officer should be shown by his certificate; for instance, that he is a judge or clerk of a court of record having a seal, etc., if such is the case.^ It is held that when there was nothing in the certificate of acknowledgment to a deed in 1842, purporting to con- vey land in Texas, which shows that the person who certified to the acknowledgment as a judge of one of the superior courts of the several American states was a judge of a superior court of record in such state, the authentication was not in accordance with the statute 2 Ante, § 528. 3 Texas Land Co. v. Williams, 51 Tex. 51; Carpenter v. Dexter, 75 U. S. (8 Wall.) 513, 19 L. ed. 426. 4 See 1 Century Digest, 1000. 5 Ante, §§ 133-136. 221 AUTHENTICATION WITHOUT THE STATE. §§ 533, 534 then existing. It cannot be judicially known that an associate judge of the sixth judicial district in the state of Maryland was a judge of a superior court of record in 1842.® Under the act of 1846 it was not shown by the certificate that the presiding judge of the county court in the state of Arkansas was a judge of a court of record, and it was held not properly registered, and that the testimony of the officer that it was properly taken by him does not validate the acknowledgment^ § 533. Certificate Must Show that the Court Before Which Acknowledgment is Made is a Court of Record. — Under a statute authorizing instruments acknowledged in other states before officers holding seals of courts of record, a certificate of acknowledgment under the seal of a court of another state, failing to state that such court was a court of record, or that the officer was the holder of the seal, and it being not otherwise shown, is defective.* But it is held in Texas, where an affidavit was made before a judge of a court in North Carolina, that the fact, appearing by the certificate of the clerk, that the court had a clerk and a seal, was sufficient evidence that it was a court of record.^ § 534. Other Rule in Illinois. — But it is held in Illinois that in the absence of a statute requiring it, the cer- tificate of acknowledgment taken by an officer of an- other state need not contain evidence of his official char- acter.*^ 6 Hill V. Taylor, 77 Tex. 295, 14 S. W. 366; Texas Land Co. v. Williams, 51 Tex. 58; Settegast v. Charpiot (Tex. Civ. App.), 28 S. W. 580. 7 Craddock v. Merrill, 2 Tex. 496. 8 Ante, § 532; Fogg v. Holcomb, 64 Iowa, 621, 21 N. W. Ill; Mc- Cammon v. Beaupre, 25 U. C. Q. B. 419; Torrey v. Forbes, 94 Ala. 135, 10 South. 320, 17 L, R. A. 113; McKenzie v. Jackson, 82 Ga. 80, 8 S. E. 77; Fisher v. Vaughn, 75 Wis. 609, 44 N. W. 831, 833. Moore v. Carson, 12 Tex. 66. See ante, § 133. 10 Secrist v. Green, 3 Wall. (U. S.) 744, 18 L. ed. 153. See Car- penter V. Dexter, 8 Wall. (U. S.) 513, 19 L. ed. 426. 535-537 AUTHENTICATION WITHOUT THE STATE. 222 § 535. Judges of Courts of Record had No Authority After 1879— A jiido-e of a court of record out of this state (in Alabama) had no authority to take acknowledg- ments after the adoption of the Revised Statutes of 1879, for conveyance of Texas lands.** An acknowledg- ment taken in Louisiana before recorder and ex-officio notary in 1878, though not signed as notary, is suf- ficient.*^ § 536. Acknowledgments Authorized Without the State by Act of February 5, 1841.— Previous to the act of February 5 (March 17), 1841,*^ there was no provision made for the acknowledgment or proof of conveyances without the state of Texas for lands located within said state. This act provided that every deed, etc., hereafter to be made and recorded shall be duly registered if executed abroad, if acknowledged or proved by two subscribing witnesses before any circuit or supreme judge or chancellor of the United States of North America, certified by him, with the certificate of the chief magistrate of the nation as to the official character of him taking the acknowledg- ment or probate, and the seal of the United States there- to annexed. Or if so acknowledged or proved before any judge of a supreme court of record, or in any such court of any other nation or kingdom and certified by such judge, or the record thereof exemplified, and either so counter-certified by the chief magistrate or sovereign of such other nation or kingdom, under the great seal, or by the consul of this republic, or minister resident there, the same shall be admitted to record, and shall be good and effectual, as aforesaid, from and after regis- tration. § 537. As to Acknowledgments of Married Women. — There may be some question of this act authorizing ac- 11 Talbert v. Dull, 70 Tex. 679, 8 S. W. 530. 12 Wilson V. Simpson, 68 Tex. 313, 4 S. W. 839. Eor authority of officers, see post, ehaptors 18, 19. 13 2 L. T. 633. 223 AUTHENTICATION WITHOUT THE STATE. §§ 538-540 knowledgments by married women without the state, although its terms are general enough to include hers; the doubt arising from the fact that the law passed by the same legislature providing for the taking of her ac- knowledgments makes no provision for same to be taken without the state. ^'* § 538. Certificates of Conformity. — Certificates by the chief magistrate or sovereign of the foreign nation as to the official character and qualification of the officer tak- ing the acknowledgment were required by this act.^^ § 539'. Continued in Force — ^At all times after the tak- ing effect of this act, single acknowledgments, at least, were authorized to be taken without the state, but the requirements of the certificate and authority of officers was changed from time to time. § 540. Acknowledgments of Married Women by Act of April 30, 1846— The act of April 30 (June 22), 1846,*« providing the method of conveying property in which the wife has an interest, provides that when the husband and wife have signed and sealed any deed or other in- strument out of this state but within the United States or any of their territories, if the wife appear before any judge of a court of record having a seal in any of said states or territories, and be examined and make the dec- larations and acknowledgments provided for in section 1 of this act,*'' and such judge shall make a certificate thereof in the manner provided for in said section and attest the same under his hand and the seal of his court, such deed shall have the same force and effect as if the same had been done in this state, before any of the of- ficers named in said section; and when any such deed shall have been signed and sealed out of the United 14 See post, § 627. 15 Texas Land Co. v. Williams, 51 Tex. 51. 16 2 L. T. 1462. 17 See post, § 637; P. D. 1003. §§ 541-543 AUTHENTICATION WITHOUT THE STATE. 224 States such examinationiS, declarations and acknowledg- ments, may be taken or made before any public minister, charge d'affaires, or consul of the United States and the certificate of such minister, charg6 d'affaires or consul in the manner and form provided for in said section, and attested under their hand and official seal, shall have the same force and effect as if such examination, declaration and acknowledgment had been taken or made and certified in this state before any of the officers named in the said first section/* § 541. Repealed Former Laws. — This act repealed all former laws concerning the mode of conveyance in which the wife has an interest.^^ § 542. Certificate of Conformity Under Above Act. — By this act, and subsequent to this time, no certificate of conformity was required.^** It remained in force until the adoption of the Revised Statutes of 1879, but the authority was in the meantime extended to still other officers, by the acts of May 8, June 22, December 31, 1861, November 13, 1866, and May 6, 1871.^^ § 543. Authority Continued. — At all times after the taking effect of this act (June 22, 1846), acknowledg- ments of married women were authorized to be taken abroad, and possibly from the taking effect of the act of February 5, 1841.^2 18 Post, §§ 637, 638. 19 As to its effect on the authority of officers previously named, Bee post, §§ 627-631, 641. 20 Texas Land Co. v. Williams, 51 Tex. 51. 21 For authority of the different officers, see chapters 18, 19. 22 See post, § 627. For officers authorized to act within the United States, see post, §§ 718-755. Officers authorized to act without the United States, see post, §§ 756-767. How made and taken, ante, §§ 68-110. Certification, ante, §§ 125-238. Acknowledgments of married women, ante, §§ 238-273. Certification of acknowledgments of mar- ried women, ante, §§ 274-348. Proof of instruments for record, ante, §§ 349-483. Seals, ante, §§ 484-527. Who may make acknowledgments, post, §§ 544-572. Who may take acknowledgments, post, §§ 573-595. Curing defective acknowledgments, post, § 992. 225 WHO MAY MAKE ACKNOWLEDGMENTS. §§ 544, 545 CHAPTER XV. WHO MAY MAKE ACKNOWLEDGMENTS. § 544. Generally. § 545. Officer's deputy. § 546. The law elsewhere. § 547. Agent or attorney. § 548. Attorney of married woman. § 549. Firm as attorney in fact. § 550. Irregular certificate of attorney's acknowledgment. § 551. Partner may acknowledge. § 552. Either partner may acknowledge in firm name. § 553. Corporations may acknowledge. § 5.54. Not necessary to state that it was the act of the corpora- tion. § 555. By vice-president. § 556. Attorney in fact not required to use corporate seal. § 557. Known to officer, etc. § 558. Eailroad corporations — No acknowledgment required when. § 559. Acknowledgment required after 1871. § 560. Married women — Husband must join. § 561. Held that it must be acknowledged by husband also. § 562. Husband's acknowledgment not necessary. § 563. Acknowledgments by husband and wife need not Be at same time. § 564. When wife is abandoned by husband. § 565. When husband is insane. § 566. Married woman as agent. § 567. Wife cannot authorize husband to act for her. § 568. Married woman may convey by attorney. § 569. Wife's executory contracts. § 570. Idem. § 571. Special commissioner. § 572. Judge of first instance. (See "Proof by Subscribing Witnesses.") § 544. Generally. — Any person authorized to make the conveyance may acknowledge the same.* § 545. Officer's Deputy.— In this state a sheriff's dep- uty, being an officer recognized by law, could make the 1 Eobinson v. Mauldin, 11 Ala. 977; Talbert v. Stewart, 39 Cal. 612. 15 §§ 546-549 WHO MAY MAKE ACKNOWLEDGMENTS. 226 sale and conveyance in his own name. In which case he is the proper person to acknowledge the deed.^ Or he conld make the deed and acknowleclgment in the name of his principal by himself as depnty.^ § 546. The Law Elsewhere. — Bnt elsewhere it has been held that the deputy sheriff's deed must be acknowl- edged by him in the name of and for his principal.* § 547. Agent or Attorney. — Authority given to an agent or attorney to execute an instrument implies the authority to acknowledge the same.^ § 548. Attorney of Married Woman. — A husband can- not be authorized by power of attorney executed by his wife to dispose of her property.*^ But a married woman joined by her husband may give a valid power of attor- ney, acknowledged in the manner prescribed by law for the execution of her deeds, to another party to convey her lands. And such party could make a valid acknowl- edgment of his deeds.'' § 549. Firm as Attorney in Fact. — Where a power is conferred on a firm to execute a deed, a member of the firm is authorized, as the agent of the firm, to execute and acknowledge the deed.** 2 Davis V. Eankin, 50 Tex. 286; Miller v. Alexander, 13 Tex. 506; Townes v. Harris, 13 Tex. 512. 3 Terrell v. Martin, 64 Tex. 127. 4 Marx V. Hanthorn, 30 Fed. 579. 5 Talbert v. Stewart, 39 Cal. 602. 6 Cannon v. Boutwell, 53 Tex. 627; Peak v. Brinson, 71 Tex. 311, 11 S. W. 269; Halbert v. Brown, 9 Tex. Civ. App. 335, 31 S. W. 535. 7 Patton V. King, 26 Tex. 686, 84 Am. Dec. 596; Warren v. Jones, 69 Tex. 465, 6 S. W. 775; Jones v. Bobbins, 74 Tex. 615, 12 S. W. 824; Mexia v. Oliver, 148 U. S. 664, 13 Sup. Ct. Eep. 754,. 37 L. ed. 602. Ante, § 244. But see contra, Holladay v. Dailey, 86 U. S. (19 Wall.) 606, 22 L. ed. 187. 8 McCullough Land and Cattle Co. v. Whitiford, 21 Tex. Civ. App. 314, 50 S. W. 1043. 227 WHO MAY MAKE ACKNOWLEDGMENTS. §§ 550-553 § 550. Irreg-ular Certificate of Attorney's Acknowledg- ment. — A certificate of acknowledgment stating, "Came R., by his attorney, J., the grantor, with whom I am personally acquainted, acknowledged that he signed, sealed and delivered the foregoing instrument," is not insufficient for uncertainty; the meaning being reason- ably clear that J, appeared for the gTantor, and thus ac- knowledged he executed the instrument.^ § 551. Partner may Acknowledge. — In this state one partner may execute and acknowledge an instrument for the firm. The acknowledgment of a deed of Leon Blum, Sylvan Blum and Hyman Blum, composing the firm of Leon & H. Blum, signed with the firm name "Leon & H. Blum," and acknowledged by one of the partners, was sufficient. In that case the notary certi- fied "that personally appeared before me Leon & H. Blum by Sylvan Blum, partner of said firm, known to me to be the person whose name is subscribed to the fore- going instrument and acknowledged to me that he exe- cuted the same for the purposes and considerations therein expressed. "^^ § 552. Either Partner may Acknowledge in Firm Name. — Where partners as a firm are authorized to execute a deed under a power of attorney, either may execute and acknowledge it in the name of the firm.** Where part- ner executes deed in firm name, his authority will be presumed after thirty years.*^ § 553. Corporations may Acknowledge. — The act of De- cember 2, 1871,*^ provided that a deed sealed with the corporate seal and signed by the president or presiding 9 Ferguson v. Eicketts (Tex. Civ. App.), 55 S. W. 975. 10 Leon & H. Blum Land Co. v. Dunlap, 4 Tex. Civ. App. 315, 23 S. W. 473; Holdeman v. Knight, Dall. 568. 11 McCullough Land and Cattle Co. v. Whitiford, 21 Tex. Civ. App. 314, 50 S. W. 1043. 12 Frost V. Wolf, 77 Tex. 461, 19 Am. St. Eep. 76, 14 S. W. 440. 13 Rev. Stats. 1895, art. 676. §§ 554-556 WHO MAY MAKE ACKNOWLEDGMENTS. 228 member or trustee, and acknoAvledged by such officer to be the act of the corporation, or proved in the man- ner prescribed for other conveyances, may be recorded, etc. And that copies of records authenticated by the signature of the president and secretary shall be com- petent evidence. This act was re-enacted in 1874, 1879 and 1895. § 554. Not Necessary to State that It was Act of Corpora- tion — Under the above act (requiring a deed of a cor- poration to be acknowledged by the president, to be the act of the corporation), a certificate of acknowledgment (to a deed executed by the First National Bank) which certifies "that this day personally appeared A. B., presi- dent of 1st N. B., and R. P., cashier, both of whom are to me well known, and severally acknowledged that they executed the above and foregoing instrument for the purposes and considerations therein contained," was valid.*"* It being held that the statement that he exe- cuted it for the purposes therein expressed was equiva- lent to acknowledging that he executed it as the act of the corporation. § 555. By Vice-president. — A deed signed by the vice- president, sealed and acknowledged as the deed of the corporation, is valid; the presumption being that the contingency which would authorize him to act had arisen.*^ § 556. Attorney in Fact not Eequired to Use Corporate Seal— The act of April 15, 1905 (taking effect Septem- ber 18, 1905), provided that where a power of attorney is duly executed and sealed by a corporation, the at- torney may convey and acknowledge in common form without seal. It further provided that all conveyances 14 Muller V. Boone, 63 Tex. 93; Ballard v. Carmichael, 83 Tex. 368, 18 S. W. 734. 15 Muller V. Boone, 63 Tex. 93; Ballard v. Carmichael, 83 Tex. 368, 18 S. W. 734. 229 WHO MAY MAKE ACKNOWLEDGMENTS. §§ 557-559 by corporations heretofore executed in the manner herein set forth shall be held valid so far as regards the manner of execution. As the validating clause is not indicated in the title of the act, and as the said act contains two subject matters, the validating clause is probably of no effect. -^^ § 557. Known to Officer, etc. — Under Sayles' Revised Statutes of 1895, article 4617, providing that the certifi- cate of acknowledgment to the deed shall certify that the person making it is the individual who executed and is described in the instrument, a certificate of acknowledg- ment by a corporation by its vice-president and secre- tary, stating that J., vice-president, and E., secretary, were well known to such officer taking the acknowledg- ment, and that each acknowledged that he executed the deed, was a substantial compliance with the statute. ^"^ § 558. Railroad Corporations — No Acknowledgment Re- quired When.— The act of April 6, 1861,^^ provided that any deed, etc., executed by the president of any rail- road company which has or may be incorporated by the laws of this state shall be attested by the seal of said company, and it shall be considered sufficiently authen- ticated to authorize the county clerk to record the same. This clause was again enacted January 14, 1862. § 559. Acknowledgment Required After 1871. — It seems that the above act was repealed by the act of December 2, 1871,*® requiring the acknowledgments of corporations to be by its president. The court held that under this act (a deed by a railroad company being under con- sideration) the acknowledgment or proof of execution of a conveyance by a corporation was made necessary be- fore such conveyance could be admitted to record, just 16 See post, §§ 676, 677, Session Laws of 29 Leg., p. 230. 17 Zimpleman v. Stamps, 21 Tex. Civ. App. 129, 51 S. W. 341. 18 5 L. T. 373. 19 Eev. Stats. 1895, art. 676. §§560-563 WHO MAY MAKE ACKNOWLEDGMENTS. 230 as such acknowledgment or proof of execution is re- quired before a conveyance by a natural person can be recorded.^* § 560. Married Women — Husband Must Join. — As a gen- eral rule, a married wonmn's acknowledgment of an in- strument affecting the title to property in which she is personally interested would be ineffectual and in- operative unless her husband joined in such instru- ment.^* § 561. Held that It Must be Acknowledged by Husband Also. — It has been held that the deed of a married woman not acknowledged by her husband is void.^^ It seems from the statement of facts that the husband and wife joined in the deed, and that the acknowledgment of the wife was in proper form, but the court held it void because not acknowledged by the husband.^^ The above case was reversed by the supreme court and remanded on other grounds, the question under consideration not being discussed by the supreme court.^* § 562. Husband's Acknowledgment not Necessary. — The contrary, and it seems the better, doctrine is held in Rork V. Shields, 16 Tex. Civ. App. 640, 42 S. W. 1032, where in a joint deed the certificate of acknowledgment was bad as to the husband but good as to the wife, the registration as well as the deed was held good as to the wife. § 563. Acknowledgments by Husband and Wife Need not be at Same Time. — It is not necessary that the husband and wife acknowledge the instrument at the same time. 20 Kimmarle & Hirsh v. H. & T. C. Ey. Co., 76 Tex. 692, 12 S. W. 698. 21 Eev. Stats. 1895, arts. 635, 636; ante, chapters 10, 11; Cannon V. Boutwell, 53 Tex. 626. 22 Illg V. Garcia (Tex. Civ. App.), 45 S. W. 857. 23 See facts stated in Garcia v. Illg (Tex. Civ. App.), 37 S. W. 472. 24 See Illg V. Garcia, 92 Tex. 252, 47 S. W. 717. See § 562. 231 WHO MAY MAKE ACKNOWLEDGMENTS. §§ 564-566 She may acknowledge it at any time, even after the death of her husband, while he would have to execute it during her lifetime ;^^ the reason being that the con- veyance not having devested the wife of her title in her lifetime, at her death it descended to her heirs, and the husband could no longer render the conveyance valid. It is clear that the same reason would not prevent her from acknowledging his joint deed at any time, for if it were her separate estate being conveyed, no title would vest in his heirs on his death.^® And if it were the community homestead being conveyed, his convey- ance devests him of his interest and would estop his legal representatives from claiming the same in case of his death. ^'' § 564. When Wife is Abandoned by Husband. — If the married woman has been abandoned by her husband she may convey her property without his joinder, in which case an acknowledginent made as by a single per- son would be sufficient, no separate examination or ex- planation being necessary.^* Either form of certificate would be sufficient.^^ § 565. When Husband is Insane. — She has the same right to convey her property when her husband is in- sane as in case of his abandonment of her.*^® § 566. Married Woman as Agent. — In her capacity as agent, attorney, trustee, etc., she may execute and ac- knowledge an instrument as a single person. ^^ 25 Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 913; Breitling V. Chester, 88 Tex. 589, 32 S. W. 527. 26 Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 913; Breitling V. Chester, 88 Tex. 589, 32 S. W. 527. 27 Irion V. Mills, 41 Tex. 310; Stallings v. Hulluni (Tex. Civ. App.), 33 S. W. 1033, and post, § 997. 28 Wright V. Hays, 10 Tex. 130, 60 Am. Dec. 200. 29 Breitling v. Chester, 88 Tex. 590, 32 S. W. 527. 30 Clark v. Wicker (Tex. Civ. App.), 30 S. W. 1114. 31 Pullam V. State, 78 Ala. 31, 56 Am. Rep. 21. §§ 567-571 WHO MAY MAKE ACKNOWLEDGMENTS. 232 § 667. Wife cannot Authorize Husband to Act for Her. — The wife cannot, by jiower of attorney, authorize her husband to convey her property.^^ § 568. Married Woman may Convey by Attorney A married woman can, jointly with her husband, author- ize an attorney in fact to make a valid acknowledgment and conveyance of her separate property.^^ § 569. Wife's Executory Contracts. — ^An executory con- tract for the sale of the homestead, duly executed and acknowledged by the husband and wife, cannot be en- forced against her. The reason being that she did not consent to an absolute conveyance but only a contract for such conveyance, and that she would be deprived of her right to retract in case the bond should be en- forced.^* § 570. Idem. — But it is held that a bond for title for the wife's separate property may be enforced against her, the court stating that there "is a broad distinction" between the principle applicable to her separate prop- erty and her homestead.^^ § 571. Special Commissioner. — A special commissioner appointed in 1834 to issue title to land under a special concession, on the 19th of June, 1838, appeared before the proper officer and acknowledged his signature to the testimonio of title made by him. It was held to be duly probated.^^ 32 Cannon v. Boutwell, 53 Tex. 627; Peak v. Brinson, 71 Tex. 311, 11 S. W. 269; Mexia v. OUiver, 148 U, S. 664, 13 Sup. Ct. Kep. 754, 37 L. ed. 602; Cardwell v. Eogers, 76 Tex. 37, 12 S. W. 1006. But see Eeagan v. Holliman, 34 Tex. 412. 33 Patton V. King, 26 Tex. 686, 84 Am. Dec. 596; Warren v. Jones, 69 Tex. 465, 6 S. W. 775; Jones v. Bobbins, 74 Tex. 615, 12 S. W. 824. And see ante, § 244. 34 Jones V. Goff, 63 Tex. 253; Jones v. Bobbins, 74 Tex. 618, 12 S. W. 824; Warren v. Jones, 69 Tex. 467, 6 S. W. 775. 35 Angier v. Coward, 79 Tex. 555, 15 S. W. 698. 36 Fulton V. Bayne, 18 Tex. 50. 233 WHO MAY MAKE ACKNOWLEDGMENTS. § 572 § 572. Judge of First Instance — Where a deed was ex- ecuted in 1835 before "A," as second judge of the first instance, acting with two instrumental and two assist- ing witnesses, appeared before the county clerk of Milam county on the 3d of April, 1839, and acknowl- edged his own signature, and made oath to the signa- ture of the grantor, it was held that the deed was duly probated for record. It seems that it was upon the theory that the judge who acknowledged his signature was a subscribing witness under the law then in force.^'' 37 McKissick v. Colquhoun, 18 Tex. 152; Howard v. Colquhoun, 28 Tex. 134; Paschal v. Perez, 7 Tex. 357. See "Proof by Subscrib- ing Witnesses," chapter 12. § 573 WHO MAY TAKE ACKNOWLEDGMENTS. 234 CHAPTER XVI. WHO MAY TAKE ACKNOWLEDGMENTS AND PROOF- GEN- BEALLY. § 573. Interest disqualifies. § 574. Stockholder of corporation. § 575. Officers of corporation. § 576. Commission as trustee. § 577. Preferred creditor. § 578. Deputy of interested party. § 579. Agent or attorney. § 580. Idem. § 581. By partner of grantee. § 582. Eelatio-nship. § 5SB. Husband of grantee. § 584. Attesting witnesses. § 585. De facto officers. § 586. Ex-officio officers. § 587. Deputies may take wken. § 588. Deputy county clerks. § 589. Deputy and "pro tem" county clerks. § 590. Deputy district clerks. § 591. Deputy justices of the peace. § 592. Deputy district clerks. § 593. Presumptions. § 594. Judicial knowledge of authority of officers. § 595. Extraterritorial authority. For authorized officers prior to December 20, 1836, see ante, §§ 5-21. For authorized officers subsequent to December 20, 1836, see chapters 17-27. § 573. Interest Disqualifies. — As a general rule, an ac- knowledgment taken by an interested party is a null- ity.* But where the rights of others have intervened, interest will not disqualify the officer unless his inter- est is shown by the certificate and deed. It cannot be shown by parol evidence, after the rights of others have intervened, that the record is a nullity.^ It is held in 1 Brown v. Moore, 38 Tex. 646. 2 Titus V. Johnson, 50 Tex. 240; S. W. Mfg. Co. v. Hughes (Tex. Civ. App.), 60 S. W. 687; Cooper v. Hamilton, 56 Am. St. Rep. 801, 235 WHO MAY TAKE ACKNOWLEDGMENTS. §§ 574-576 Alabama that acknowledgment taken by grantee is not void, and cannot be assailed in a collateral attack.^ § 574. Stockholder of Corporation. — A notary who is a stockholder in a building and loan association is dis- qualified from taking an acknowledgment of a mortgage to it by reason of his interest. And an acknowledg- ment invalid for such reason is not one which can be reformed or corrected.^ An acknowledgment before a notary, who is a director of a corporation which is the grantee, is void.^ In these cases rights of other parties had not intervened.® § 575. Officers of Corporation. — In other states it is held that an officer of a corporation is not disqualified un- less he is also a stockholder.'' Where it is unnecessary for a deed of a corporation by its president to be at- tested, yet it is attested by another officer, the latter of- ficer is not thereby disqualified from taking the ac- knowledgment.^ Still more latitude is given an officer in Ohio, where it is held that acknowledgment of a mort- gage to a corporation taken by a notary who is an of- ficer and stockholder of the same is valid.*^ § 576. Commission of Trustee. — The commission to be received by a trustee is sufficient to disqualify him from note. See ante, §§ 211-214, "Certificate, How Far Conclusive," and post, §§ 574-578; Silcock v. Baker, 25 Tex. Civ. App. 508, 61 S. W. 939. 3 Fearn v. Beirne, 129 Ala. 435. 29 South. 558; but see next sec- tion. 4 Bexar Bldg. etc. Assn. v. Heady, 21 Tex. Civ. App. 154, 50 S. W. 1081. 5 Workman's Mutual Aid Assn. v. Monroe (Tex. Civ. App.), 53 S. W. 1029. 6 See ante, § 573. 7 Florida Sav. Bank etc. Exch. v. Rivers, 36 Fla. 575, 18 South. 850; Horback v. Tyrrell, 48 Neb. 131, 67 N. W. 485. 8 Sawyer v. Cox, 63 HI. 130. Horton v. Col. Bldg. etc. Assn., 6 Week. Law Bull. (Ohio) 141. And sec Nicholson v. Gloucester Charity School, 93 Va. 101, 24 S. E. 899. §§ 577-581 WHO MAY TAKE ACKNOWLEDGMENTS. 236 takiiio; the acknowledgment of the deed of trust.*^ And all siil)so(inent refusals to accept the trust will not cure the want of authority.-^* § 577. Preferred Creditor.— An acknowledgment taken by a preferred creditor is a nullity.*^ § 578. Deputy of Interested Party.— The deputy of an interested party is not competent, on account of inter- est, to take the acknowledgment.^® § 579. Agent or Attorney.— One who identifies himself by placing his name upon the face of the instrument as the avowed agent or attorney of one of the parties is not competent, as an ofiicer, to give it authority. ■^'* § 580. Idem. — A married woman's acknowledgment taken by the notary who was the attorney of her hus- band, but not beneficially interested in the deed, his name not appearing in the deed as the agent of either party, is valid. ^® § 581. By Partner of Grantee. — The acknowledgment of an instrument given to secure a firm or copartnership taken by a partner of the grantee, is invalid.^® 10 Rothschild V. Daugher, 85 Tex. 333, 34 Am. St. Rep. 811, 20 8. W. 142, 16 L. R. A. 719; Brown v. Moore, 38 Tex. 646. 11 Rothschild v. Daugher, 85 Tex. 333, 34 Am. St. Rep. 811, 20 S. W, 142, 16 L. R. A. 719; Brown v. Moore, 38 Tex. 646. 12 Tittle V. Vanleer (Tex. Civ. App.), 27 S. W. 736. Also see Jones V. Porter, 59 Miss. 628; Kimball v. Johnson, 14 Wis. 674; ante, § 573. 13 Ewing V. Vannewitz, 8 Mo. App. 602; Tipton v. Jones, 57 Tenn. (10 Heisk.) 564; Cook v. Foster, 96 Mich. 610, 55 N. W. 1019; Piland v. Taylor, 113 N. C. 521, 18 S. E. 70. See ante, § 573. 14 Rothschild V. Daugher, 85 Tex. 333, 34 Am. St. Rep. 811, 20 S. W. 142, 16 L. R. A. 719; Sample v. Irwin, 45 Tex. 567; Nichols V. Hampton, 46 Ga. 253; Bierer v. Fretz, 32 Kan. 329, 4 Pac. 284; Penn v. Garvin, 56 Ark. 511, 20 S. W. 410; Brereton v. Bennett, 15 Colo. 254, 25 Pac. 310. 15 Kutch V. Holley, 77 Tex. 220, 14 S. W. 32; Daniels v. Laren- dow, 49 Tex. 216. 16 Baxter v. Howell (Tex. Civ. App.), 26 S. W. 453; City Bank v. Radtke, 87 Iowa, 363, 54 N. W. 435. 287 WHO MAY TAKE ACKNOWLEDGMENTS. §§ 582-585 § 582. Relationship. — As a general rule, relationship of the officer to the parties does not invalidate the ac- knowledgment.*'' In some states, where property is con- veyed to wife as her separate estate, her husband may take acknowledgment of grantor.*® But where officer would be beneficially interested, the acknowledgment would be void.*^ § 583. Husband of Grantee. — In Texas the husband of the grantee is not qualified to take the acknowledg- ment of a married woman, by reason of interest in the transaction,^^ and such defect cannot be cured by ac- tion.2* § 584. Attesting Witnesses. — Attesting witnesses are not disqualified from taking acknowledgments.^^ § 585. De Facto Officers. — An acknowledginent by a de facto officer is good if it would be so if he were an offi- cer de jure, as between third parties, but possibly not so in his own behalf. ^^ And a special deputy district clerk under an oral appointment, recognized as an offi- cer by the parties is a de facto officer.^* But there must be some election and induction in office.^^ A notary who accepts an incompatible office is not a de facto no- 17 Penn v. Garvin, 56 Ark. 511, 20 S. W. 410; Gibson v. Norway Sav. Bank, 69 Me. 579. See Wilson v. Traer, 20 Iowa, 231; Lynch V. Livingston, 6 N. Y. 422; Eemington Paper Co. v. O 'Dougherty, 81 N. Y. 474; Welsh v. Lewis, 71 Ga. 387; Helena First Nat. Bank V. Koberts, 9 Mont. 323, 23 Pac. 718. 18 Nixon V. Post, 13 Wash. 181, 43 Pac. 23; Kimball v. Johnson, 14 Wis. 674. 19 Jones V. Porter, 59 Miss. 628. 20 Silcock V. Baker, 25 Tex. Civ. App. 508, 61 S. W. 939. 21 Silcock v. Baker, 25 Tex. Civ. App. 508, 61 S. W. 939. 22 Baird v. Evans, 58 Ga. 350; Sawyer v. Cox, 63 111. 130; Tren- with V. Smallwoofl, 111 N. C. 132, 15 S. E. 1030. See Hall v. Red- son, 10 Mich. 21; Winsted Sav. Bank v. Spencer, 26 Conn. 195. 23 Thompson v. Johnson, 84 Tex. 548, 19 S. W. 784. 24 Thompson v. Johnson, 84 Tex. 548, 19 S. W. 784. 2a Biencourt v. Parker, 27 Tex. 562. §§ 586, 587 WHO MAY TAKE ACKNOWLEDGMENTS. 23.8 tary."^ A de facto female notary may take acknowl- edgments.^'^ An ojBScer with a defective commission is a de facto ofl&cer.^^ An alien officer is a de facto offi- cer.^ Officer pro tempore is.^** Also is an officer re- moving to another state.^^ But an officer under an un- recognized government is not.^^ Nor an officer after the exph-ation of his term of office. ^^ § 586. Ex-oflGicio Officers. — The acknowledgment of a deed before an officer of another state who is ex-officio notary public, if in proper form, is valid, and, it seems, quite as ample as if he were a notary by direct appoint- ment.^^ It is also held that an acknowledgment before a primary judge was good by reason of his being ex- officio notary public, although the statute did not in terms authorize primary judges to take such acknowl- edgments, and the officer did not sign as notary public.^^ § 587. Deputies may Take When.^^ — Where an officer has the authority to take acknowledgments, and also the authority to appoint a deputy to perform his duties, 26 Biencourt v. Parker, 27 Tex. 562. And see Thulemeyer v. Jones, 37 Tex. 571; Franco-Tex. Land Co. v. Laigle, 59 Tex. 344; Aulenier v. Governor^ 1 Tex. 666. 27 Third Nat. Bank of Chattanooga v. Smith, Tenn. Ch. App. 1102; and see Davidson v. State, 135 Ind. 254, 34 N. E. 972; Brown v. Lunt, 37 Me. 423; Farmers' Bank v. Chester, 6 Humph. (Tenn.) 458, 44 Am. Dec. 318; Bullene v. Garrison, 1 Wash. Ter. 587. 28 Hamilton v. Pitcher, 53 Mo. 334. 29 Wilson V. Kimmel, 109 Mo. 260, 19 S. W. 24. 30 Woodruff V. McHarry, 56 HI. "218. See Cocke v. Halsey, 16 Pet. (U. S.) 71, 10 L. ed. 891. 31 Prescott V. Hayes, 42 N. H. 56. 32 Simpson v. Lovering, 3 Bush (Ky.), 458, 96 Am. Dec. 252. 33 McKellar v. Peck, 39 Tex. 381; Bernier v. Becker, 37 Ohio St. 72; Parker v. Wood, Dall. (Pa.) 436, 1 L. ed. 312; New Hampshire Land Co. v. Tilton, 19 Fed. 73. After resignation, see Macey v. Stark, 116 Mo. 481, 21 S. W. 1094. After abolition of office, see Goodykoontz v. Olsen, 54 Iowa, 174, 6 N. W. 263. 34 Wilson V. Simpson, 68 Tex. 312, 4 S. W. 839. 35 Butler V. Dunagun, 19 Tex. 559; Harvey v. Hill, 7 Tex, 592. 36 See title, "Who may Make Acknowledgments." 239 WHO MAY TAKE ACKXOWLEDGMENTS. §§ 588-590 an acknowledgment taken by such a deputy would be valid, even though he should sign as special deputy and his appointment was irregular, and he was only a de facto officer.^' And a certificate of acknowledgment of a married woman made by an officer styling himself special deputy county clerk was held to be valid, as deputy county clerks were authorized; the addition of the word "special" would not vitiate it.^* A notary cannot delegate his authority to a deputy. 39 § 588. Deputy County Clerks. — Under the act of Decem- ber 21, 1837, clerks of the county and district courts were authorized to appoint deputies to discharge the duties of their offices; and taking proof of instruments for record being one of the duties of the county clerk, his deputy had authority to perform it.^® § 589. Deputies and "Pro Tern"— County Clerks. — The act of March 16, 1818 (taking effect August 7, 1818),^^ also provided for deputy county clerks, and also for ap- pointment of clerks pro tem. by the chief justice of the county court for a term of not more than thirty days. § 590. Deputy District Clerks. — By the act of August 8, 1870, district clerks and their deputies were authorized to take acknowledgments. It is held that under this act it would be proper for a deputy clerk to certify to acknowledgments in his own name or official title.*^ This act was not repealed by the act of May 6, 1871.*^ 37 Thompson v. Johnson, 84 Tex. 548, 19 S. W. 784. .38 Chicago etc. Ey. Co. v. Titterington, 84 Tex.- 219, 31 Am. St. Eep. 39, 19 S. W. 472. 39 Locke V. Huling, 24 Tex. 313. See post, § 588. 40 Kose V. Newman, 26 Tex. 135, 80 Am. Dec. 646; Cook v. Knott, 28 Tex. 90; Frizzell v. Johnson, 30 Tex. 32. 41 3 L. T. 117. 42 Herndon v. Eeed, 82 Tex. .560, 18 S. W. 665. 43 Herndon v. Eeed, 82 Tex. 560, 18 S. W. 665, and Ballard v. Carmichael, 83 Tex. 356, 18 S. W. 734. §§ 591-594 WHO MAY TAKE ACKNOWLEDGMENTS. 240 § 591. Deputy Justices of the Peace. — The act of August 13, 1870, provided that justices of the peace should be commissioned notaries public, and authorized them to take acknowledgments and to appoint deputies to act as notaries, etc.^* This act took effect from passage, and was repealed by the act of May 31, 1871.*® § 592. Deputy District Clerks. — By the act of May 6, 1871,^*** district clerks were again authorized to take ac- knowledgments. And it is held that deputies were au- thorized to perform all such official acts as may be done by his principal.*'' Also the acts of December 20, 1836,** May 13, 1846,*^ February 9, 1856,^^ January 14, 1862,^^ and May 25, 1876,^^ authorized deputies. § 593. Presumptions. — It is generally held that one who acts as deputy is presumed to be so authorized by law and his principal.^^ And that where the princi- pal's name is signed by deputy, the presumption is that the acknowledgment was made before the principal, and that the deputy only wrote the name and certificate.^* And where P. acted as primary judge in 1835, it raises the presumption of his authority. ^^ § 594. Judicial Knowledge of Authority of Officers. — It should be judicially known what persons held the offices 44 6 L. T. 278. 45 6 L. T. 1038. 46 Kev. Stats. 1895, art. 4613. 47 Wert V. Schneider & Davis, 64 Tex. 330, and supra. 48 Post, § 947. 49 Post, § 959. 50 Post, § 965. 51 Post, § 969. 52 Post, § 978. 53 Hope V. Sawyer, 14 111. 254; Piper v. Chippewa Iron Co., 51 Minn. 495, 599, 53 N. W. 870; Small v. Field, 102 Mo. 104, 14 S. W. 815; Summer v. Mitchell, 29 Fla. 179, 30 Am. St. Eep. 106, 10 South. 562, 14 L. R. A. 815, and Coltrane v. Lamb, 109 N. C. 209, 13 S. E. 784; Suddereth v. Smyth, 13 Ired. (N. C.) 452; Ament v. Brennan, 1 Tenn. Ch. 431. 54 Abrams v. Ervin, 9 Iowa, 87. 55 McKissick v. Colquhoun, 18 Tex. 151. See ante, § 114. 241 WHO MAY TAKE ACKNOWLEDGMENTS. § 595 of primary and secondary judges under the former gov- ernment ; also a notorious historical fact should be taken cognizance of by the courts without proof. 56 § 595. Extraterritorial Authority. — An officer may prop- erly take acknowledgments of deeds to property lo- cated without his jurisdiction, provided he acts within his jurisdiction.^'' It is held that a record would not be rendered invalid as notice by showing that the deed was acknowledged before a notary outside of his county. ^^ But other states sometimes hold that the ac- knowledgments must be by an officer of the county where the land is located. A transfer of land by act of sale before a notary beyond the limits of Texas has long been recognized by this court as valid and binding, and a duly certified copy of the notary's record admissible to prove such sale.®^ 56 McCarthy v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1100; Smith V. Townsend, Dall. 572. 57 Beaumont Pasture Co. v. Preston & Smith, 65 ' Tex. 456. 58 Peterson v. Lowry, 48 Tex. 408. 59 Williams v. Conger, 49 Tex. 600; Watrous v. McGrew, 16 Tex. 512; post, § 773. For authority of different officers, see post, chap- ters 18-27, where it will be seen that in some cases the officers could not act where the land was without their counties. Officers gener- ally, see Livingston v. Kettelle, 41 Am. Dec. 169. 16 LAWS CONCERNING AUTHORITY OF OFFICERS. 242 CHAPTER XVII. WHO MAY TAKE ACKNOWLEDGMENTS AND PROOF WITHIN THE STATE, CONTINUED— THE VARIOUS LAWS CON- CERNING THE AUTHORITY OF OFFICERS SINCE AC- KNOWLEDGMENTS WERE REQUIRED DECEMBER 20, 1836. § 596. Composition of courts in 1836— Judges remain in office. § 597. Act of December 20, 1836— County court. § 598. Chief justices ex-officio notaries. § 599. Clerks authorized to take acknowledgments and proof. § 600. Clerk "pro tem'^ authorized. § 601. Proof by witnesses before county clerk or judge. § 602. ' Notes on above act. § 603. Act of June 12, 1837 — Associate justices. § 604. Act of November 16, 1837— Notaries. § 605. Act of December 21, 1837— Deputies. § 606. Note. § 607. Act of May 15, 1838— Notaries. § 608. Act of January 19, 1839— Duties of recorder. § 609. Note. § 610. Act of January 26, 1839 — Chief justices of county court. § 611. Act of February 5, 1840— Deeds to be by writing, sealed and delivered, and acknowledged or proved by two witnesses before the county court. § 612. When constructive notice. § 613. Clerks authorized to record on acknowledgment or proof, or on certificate of a district judge, chief justice or notary. § 614. Acknowledgment before two justices of the peace. § 615. Notes on above act. § 616. Act of January 22, 1841 — Associate justices. § 617. Act of February 3, 1841 — Acknowledgments of married women. § 618. Notes. § 619, Act of February 5, 1841— Validates. § 620. Idem— Deeds thereafter to be recorded. § 621. Note. § 622. 1. Did not revoke authority of officer previously authorized— Repeal by implication. § 623. Idem— Revising prior statute. § 624. Idem— Where latter is clearly intended as sub- stitute for former. 243 LAWS CONCEENING AUTHORITY OF OFFICERS. § 625. Idem— Statutes relating to same subject mat- ter. § 626. 2. Effect on authority of officers previously author- ized to take wife's acknowledgment. § 627. 3. Authorized additional officers. § 628. Idem— Statutes should he construed so that both may stand. § 629. Idem — Where both may stand parties have their election of remedies. § 630. Idem— Cases not decisive. § 631. Authority revoked when. § 632. Act of January 3, 1842— Associate justices. § 633. Act of January 10, 1845— Notaries. § 634. Construction of above statute. § 634a. Constitution of July 4, 1845— Laws continued in force. § 635. Act of April 29, 1846— Separate property of wife. § 636. Note. § 637. Act of April 30, 1846— Acknowledgments of married women within the state. § 638. Acknowledgments of married women without the state. § 639. • Law applies to what property. § 640. Former laws repealed. § 641. Effect of above law. § 641a. Effect on prior acts. § 642. Act of May 2, 1846— Chief justices to hold over. § 643. Act of May 13, 1846— Notaries. § 644. Act of May 12, 1846— Officers authorized. § 645. Prior laws repealed. § 646. Effect of this act— First, as to its revocation of the authority of officers previously authorized to take acknowledgments of all persons except married women. §§ 647-651. Second, as to its revocation of the authority of offi- cers previously authorized to take acknowledg- ments of married women. § 648. Idem— Acts of April 30, 1846, and May 12, 1846, should be construed together. § 649. Idem — Acts passed by same legislature. § 650. Idem— General and special laws construed. § 651. Idem— Act of April 30, 1846, prescribed only mode for married women. § 652. Third, may officers named in act of May 12, 1846, take wife's acknowledgment? § 653. Idem — Acts passed at different legislatures. § 654. Idem— Statutes construed together. § 655. Idem— Act of April 30, 1846, not intended to name only officers to be authorized. LAWS CONCERNINa AUTHOEITY OF OFFICEES. 244 § 656. Idem — Proper construction of above act. § 657. Act of May 13, 1846— An act organizing county courts. § 658. Deputy clerk. § 659. Seal. § 660. Two county commissioners to act in absence of chief justice. § 661. Laws repealed. § 662. Effect of above act. § 663. Idem — Eepealed by implication. § 664. Idem— Statute revising subject matter of former. § 665. Statute intended as substitute for former. § 666. A law shall embrace but one subject matter. § 667. Deputies. § 668. Act of March 16, 1848— Deputy county clerks. § 669. Act of March 16, 1848— County courts. § 670. Deputy county clerk. § 671. "Clerk pro tern." § 672. Two county commissioners to act. § 673. Certificates. § 674. Chief justices take acknowledgments of married women. § 675. Effect of above act. § 676. Its constitutionality. § 677. Object of act must be single. § 678. Are chief justices authorized to take acknowl- edgments of married women? § 679. Authority as ex-officio notary. § 680. Were clerks "pro tem" authorized? § 681. Act of December 18, 1849 — County clerks to take ac- knowledgments. § 682. Act of December 29, 1849— County commissioners to perform duties of chief justice. § 683. Act of February 9, 1856— Deputy clerks. § 684. Act of February 9, 1860— Validates. § 685. Authenticated as above, and afterward recorded. § 686. Act of April 6, 1861— Officers authorized. § 687. Effect of above act. § 688. Act of January 14, 1862— Officers authorized — Validates. § 689. Constitution of 1866— County court provided for. § 690. Act of October 25, 1866 — County courts provided. § 691. Act of November 13, 1866— Officers authorized. 5 692. Validity of above act— Amendment of repealed statute. § 693. Constitution of 1869— District and county clerks. § 694. Idem — Justices of the peace commissioned notaries. S 695. Act of August 8, 1870— Officers authorized. § 696. Not repealed. 245 LAWS CONCEENTNG- AUTHOEITY OF OFFICEES. § 596 § 697. Act of August 13, 1870 — "An act to organize justice courts and county courts." § 698. Deputy justices of the peace authorized. § 699. County court. § 700. Eepealed, when. § 701. Act of August 13, 1870 — "An act to validate certain official acts of county judges." § 702. Validates. § 703. Act of May 6, 1871— Officers authorized. § 704. Act of May 31, 1871— Eepeals authority of deputy jus- tices of peace. § 705. Act of April 14, 1874 — Validates acts of district clerks. § 706. Act of April 20, 1874— District clerks. § 707. Act of May 2, 1874— Validates acts of notaries. § 708. Constitution of 1875 — County courts. § 709. Justices of the peace. § 710. Act of May 25, 1876— County clerks. § 711. Idem. § 712. Act of June 16, 1876— County courts. § 713. Act of August 17, 1876 — Justices of peace. § 714. Eevised Statutes of 1879— Justices ex-officio notaries. § 715. Eevised Statutes of 1895 — Justices ex-officio notaries. § 716. Eevised Statutes of 1895 — Officers authorized to take acknowledgments, etc. § 717. Effect of above statute. For the laws prior to 1836, see chapter 1, §§ 3 (a), 5-21. For acknowledgments taken without the state, see chapters 14, 18, 19. For the various officers considered separately, see chapters 20-28. For validating statutes, see chapter 28. § 596. Composition of Courts in 1836 — Judges Remain in Office.— Under the constitution of March 17, 183G, ar- ticle 4, section 7,^ the supreme court shall consist of a chief justice and associate judges; the district judges shall compose the associate judges, a majority of whom, with the chief justice, shall constitute a quorum. And section 8 of the schedule of same provided that all judges, etc., shall remain in office in discharge of the powers and duties of their respective offices until there shall be others appointed or elected under the consti- 1 1 L. T. 1074. §§597,598 LAWS CONCERNING AUTHORITY OF OFFICERS. 246 tiition.^ This constitution remained in force until the constitution of July 4, 1845, was ratified August 27, 1845.^ § 597. Act of December 20, 18364— County Court.— "An act organizing the inferior courts, and defining the powers and jurisdiction of the same" (^ taking effect from passage). Section 1 provides that the county court shall be composed ot one chief justice, who shall be elected by joint ballot of both houses of Congress and two associate justices, who shall be selected by a ma- jority of the justices of the peace of each county from among their own body at the beginning of each and every year. § 598. Chief Justices Ex-officio Notaries. — Section 34^ provides that the chief justices of the several county courts shall be ex-oflflcio notaries public for their re- spective counties; they shall have power to administer oaths and affirmations in all matters relating to their notarial office; shall have power to receive proof or ac- knowledgments of all instruments of writing relating to commerce or navigation, and also to make declara- tions and testify to the truth thereof, under the seal of office, concerning all matters done by them in virtue of their offices; they shall keep a register of all official acts done by virtue of their offices, and, when required, shall give a certified copy of any record of their offices to anyone applying for the same; and for all acts done by them, as notary, they shall receive such fees as may be provided by law; the seal of the county court shall be the notarial seal; and shall be fixed to all instru- ments and attestations of the respective notaries. 2 See chapter 1. 3 2 L. T. 1301. 4 1 L. T. 1215. 5 H. D. 2588; P. D. 4678. 247 LAWS CONCEKNING AUTHOEITY OF OFFICERS. §§ 599-601 § 599. Clerks Authorized to Take Acknowledgments and Proof. — Section 35® provides that the clerks of the county courts shall be the recorders for their respective counties, and it shall be their duty to record all deeds, conveyances, mortgages, and other liens, and all other instruments of writing required by law to be recorded in their offices, which are presented to them: Provided, one of the witnesses, of the number required by law, shall swear to the signature of the signer, or he himself shall acknowledge the same; w^hich shall be certified by the recorder, form part of the record ; and all deeds, conveyances, mortgages and other liens shall be re- corded in the county where the property is situated. § 600. Clerks "Pro Tern" Authorized.— Section G'' pro- vides that in case of a vacancy in the office of clerk of the county court, or during the unavoidable absence of such clerk, the court in term time, and the chief jus- tices thereto in vacation, may appoint a clerk pro tem, who shall discharge the same duties and have the same authority as a regularly elected clerk. § 601. Proof by Witnesses Before County Clerk or Judge. Section 58^ provides that all titles, liens, mortgages or other color of title, before they can be admitted upon record, must be proven by at least two subscribing wit- nesses^ if living in the county, and if not so living in the county, then the handivritvng shall be proven either before some county judge, or before the clerk of the county court in whose office such record is proposed to be made; and in all cases the certificate of any county judge, that the witness appeared before him and ac- knowledged his signature, or that the handwriting of the same w^as duly proven, shall be sufficient evidence to authorize the clerk of the county court to enter such title, lien, mortgage or other color of title upon record ; 6 H. D. 2752; P. D. 4973. 7 H. D. 2.38. 8 P. D. 4982; H. D. 2755. §§ 602, 603 LAWS CONCERNING AUTHORITY OF OFFICERS. 248 and said clerk for recording the same shall be entitled to charge and receive the sum of twenty-five cents for every hundred words. § 602. Notes on Above Act. — This act authorized chief justices of the county court to take acknowledgments and proof of instruments to be recorded anywhere ; and county clerks and pro tem county clerks of instruments to be recorded in their offices.*^ And county judges were authorized to take proof of instruments by sub- scribing witnesses to be recorded anywhere, and county clerks of such instruments to be recorded within their own counties.*^ It is not clear whether or not asso- ciate justices of the county court were authorized to act.^^ No other officers were authorized. Acknowl- edgments of single and married persons were taken alike until the adoption of the common law March 16, 1840.^^ Thereafter there was no provision made for married women's acknowledgments, until after Febru- ary 3, 1841.*^ There was no change as to authorized officers until the act of June 12, 1837, which provided for acknowledgments and proof by associate justices of the county court, in certain cases. Other acts fol- lowing authorized additional officers. The authority of none of the above officers was revoked until the act of January 19, 1839, took effect. 14 § 603. Act of June 12, 1837^^ — Associate Justices. — "An act to authorize justices of county courts to act as judges of probate and notaries public in certain cases [taking effect from passage]. Be it enacted by the Sen- 9 §§ 34 and 35. 10 § 38. 11 See post, § 857, and 1 L. T. 1208. 12 2 L. T. 797. 13 Post, § 617. 14 Post, §§ 608, 609. As to when the above act was repealed, sew post, §§ 662-666, and ante, § 222. 16 1 L.. T. 1333; H. D. 2589. 249 LAWS CONCEENING AUTHOKITY OF OFFICERS. §§ 604, 605 ate and House of Representatives of the republic of Texas, in Congress assembled, that in cases in which the chief justices of the county courts may be interested, and in case of the absence or inability of the chief justices to act, the associate justices of the county court shall be authorized to act as judges of probate; and either of the said associate justices may act as notary public in such cases and during such period." There was no fur- ther addition or change as to authorized ofificers until November 16, 1837, when notaries were provided for. § 604. Act of November 16, ISST^''— Notaries.— "An act to provide for the appointment of notaries public [tak- ing effect from passage]. Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, that there shall be a notary pub- lic for each of the ports of entry of this republic, to be appointed by the President, by and with the advice and consent of the Senate ; who shall hold his office for two years, unless sooner removed by the President, and shall receive the same fees as are now allowed by law to the several chief justices for the performance of notarial acts." It does not state what are notarial acts. Note. — The next addition to authorized officers was December 31, 1837, authorizing deputy county clerks. § 605. Act of December 21, IBS?**— Deputies.— "An act to authorize the clerks of the several courts to appoint deputies and requiring them to keep their offices at the county seat. Section 1. Be it enacted by the Senate and House of Representatives of the republic of Texas, in Congress assembled, that the clerks of the several county and district courts of this republic be author- ized to appoint a deputy, to whom they shall administer an oath, faithfully to discharge the duties of their of- fice, and they shall in all cases be responsible for the conduct of their deputies." 17 1 L. T. 3358; H. D. 2590. 18 1 L. T. 1453. §§ 606-608 LAWS CONCERNING AUTHORITY OF OFFICERS. 250 § 606. Note. — Under this act deputies would have au- thority to take acknowledgments under the same condi- tions that their principals would have. 19 § 607. Act of May 15, ISSS^O— Notaries.— "An act au- thorizing the President to appoint notaries public [tak- ing effect from passage]. Be it enacted by the Senate and House of Representatives of the republic of Texas, in Congress assembled, that there shall be appointed for the county where the seat of government is or shall be located, two notaries public in addition to the chief justice of said county; and also one additional notary in each countj^ of the republic; which appointments shall be made by the President, by and with the advice and consent, of the Senate." § 608. Act of January 19, 1839^^ — Duties of Recorders. — "An act, the better to define the duties of recorders [took effect from passage]. It shall be the duty of the clerks of the county courts to record all deeds, convey- ances, mortgages and other liens, affecting the titles to land and immovable property, situated within the same, which shall be presented to them for record; provided one of the siihscribing loitnesses shall swear to the sig- nature of the signer, or he himself shall acknowledge the same ; which proof or acknowledgment shall be made either before some county court, or chief justice of the same, or before the clerk in whose office such instrument is proposed to be recorded, a certificate of which shall be made upon such instrument by the proper officer and become a part of the record. And all laws contrary to or conflicting with this act be, and the same are hereby repealed, so far as they conflict with or are con- trary to the same." 19 Rose V. Newman, 26 Tex. 135, 80 Am. Dec. 646; Cook v. Knott, 28 Tex. 90; Frizzell v. Johnson, 30 Tex. 32; Chicago etc. Ry. Co. V. Titterington, 84 Tex. 219, 31 Am. St. Rep. 39, 19 S. W. 472; ante, § 587. 20 1 L. T. 1480; H. D. 2592. 21 2 L. T. 52; P. D. 4974; H. D. 2760. 251 LAWS CONCEENING AUTHORITY OF OFFICERS. §§ 609-611 § 609. Note.— After this act went into effect only the county court, or chief justice of same, or county clerks in whose office the instrument was to be recorded, were authorized to take acknowledgments and proof.^^ This act remained in force until the act of February 5, 1840, took effect.2^ § 610. Act of January 26, 18392*— Chief justices of County Court.— "An act entitled 'an act to repeal certain parts of an act organizing the inferior courts, and defining the powers and jurisdiction of she same.' Section 1. Be it enacted by the Senate and House of Kepresenta- tives of the republic of Texas in Congress assembled, that the sixth section of the aforesaid act be, and the same is hereby repealed, and that from and after the passage of this act, the chief justices of the respective counties of this republic shall sit and exercise the pow- ers of probate judges, conservators of the peace, com- missioners of roads and revenues, and notaries puhlicy This repeals section 6 of act of December 20, 1836.^^ While it authorized chief justices of the county courts to exercise "the powers of notaries public," it seems that at this time they would not include the taking of acknowledgments.^** It does not, however, affect the authority to take acknowledgments given chief justices of the county courts by the act of January 19, 1839.^'^ § 611. Act of February 5, 184028— Deeds to be by Writ- ing, Sealed and Delivered, and Acknowledged or Proved by Two Witnesses Before the County Court. — "An act concern- 22 McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691; Bryan v. Sundberg, 5 Tex. 423; Rogers v. Watrous, 8 Tex. 65, 58 Am. Dec. 100; Herndon v. Reed, 82 Tex. 651, 18 S. W. 665; post, §§ 622-625. 23 Post, §§ 623, 624. As to its effect on authority of associate justices of county court, see post, § 855. 24 2 L. T. 91. 25 See 1 L. T. 1209. 26 Ante, § 609. 27 As to the repeal of the act of .January 26, 1839, see post, § 662. 28 2 L. T. .327; P. D. 997; H. D. 2765. § 612 LAWS CONCERNING AUTHORITY OF OFFICERS. 252 ing conveyances [taking effect March 16, 1840]. Sec- tion 1. Be it enacted by the Senate and House of Rep- resentatives of the republic of Texas, in Congress as- sembled, that no estate of inheritance or freehold, or for a term of more than five years, in lands and tene- ments, shall be conveyed from one to another, unless the conveyance be declared by writing, sealed and de- livered; and any instrument to which the person mak- ing the same shall affix a scroll^ by way of seal, shall be adjudged and holden to be of the same force and ob- ligation as if it were actually sealed ; provided, the per- son making the same shall, in the body of the instru- ment^ recognize such scroll as having been fixed by way of seal; nor shall such convey^ance be good against a purchaser for valuable consideration, not having notice thereof, nor any creditor, unless the same writing be acknowledged by the party or parties who shall have sealed and delivered it, or proved by tivo witnesses to be his, or their act, before the county court of the county in which the land conveyed, or some part thereof, lieth ; or in the manner hereinafter directed; and be lodged with the clerk of the county court to be recorded." § 612. When Constructive Notice Section 2.^^ No covenant or agreement made in consideration of mar- riage, shall be good against a purchaser for a valuable consideration, having notice thereof, or any creditor un- less the same covenant or agreement be acknowledged by the party to be bound thereby, or proved by tivo sub- scribing witnesses to be his, her or their act — if land be charged, before the court of the county in which the land, or part thereof, lieth — or of personal estate only be settled, or covenanted or agreed to be paid or settled, before the court of that county in which such personal estate shall remain, and before the court in which the married parties may reside (if they reside in another county), or in the manner hereinafter directed, and be lodged with the clerk of the county court in which such 29 P. D. 4987; H. D. 2766. 253 LAWS CONCEENING AUTHORITY OF OFFICEES. §§ 613,614 property may remain, and in which such married par- ties may reside, to be recorded; and all the provisions of this act shall be complied with, notwithstanding any- thing that may be contained in the eighth section of the act to adopt the common law, etc., approved Janu- ary 20, 1840." § 613. Clerks Authorized to Record on Acknowledgment or Proof, or on Certificate of a District Judge, Chief Justice or Notary. — "^Section o.^^ The clerks of the several county courts of this republic, and their deputies shall be, and they are hereby authorized and required to admit to record, at any time, in any form required by this act, any conveyance, either on the acknowledgment of the party or parties, or the proof on oath, of such acknowl- edgment by the legal number of witnesses thereto made, in the offices of the respective clerks; or upon the cer- tificate of some district judge or chief justice^ or notary public of the county, with the seal of his office there- unto annexed, that such acknowledgment was made, or the execution of the instrument proven, as required above; and any conveyance so recorded, shall have the same legal validitj^ in all respects as if it were proven- in open court." § 614. Acknowledgment Before Two Justices of the Peace. "Section 6.^^ Any deed may in like manner be admit- ted to record upon the certificate, under seal, of any two justices of the peace for any county in this republic, annexed to such deeds, and to the following effect, to wit: " 'Republic of Texas, County of . " 'We, A B and C D, justices of the peace, in the coun-' ties aforesaid, do hereby certify that E F, a party (or E G or G M, etc., parties) to a certain deed bearing date 30 P. D. 4975; H. D. 2768. 31 P. D. 4976; H. D. 2769. §§ 615, 616 LAWS CONCERNING AUTHORITY OF OFFICERS. 254 on the — — day of , and hereto annexed, per- sonally appeared before n,s, m our county aforesaid, and aoknowledji'cd the same to be his (or their) act or deed, and desired us to certify the said acknowledgment to the clerk of the county of — • — , in order that the said deed may be recorded. " 'Given under our hands and seals this — • — day of "'A B. (L. S.) "'C D. (L. S.)'" § 615. Note on Above Act. — This act seems to limit the authority to the officers named therein, as it provides that no conveyance shall be good against an innocent purchaser, etc., unless the same is acknowledged or proved before them.^^ The officers mentioned therein (with the addition of associate justices of the county court by act of January 22, 1841), were authorized to take such acknowledgments and proof, at least until the acts of February 3, 1841, and February 5, 1841, and probably until the acts of April 30, 1846, and May 12, 1846. (After the adoption of the common law, March 16, 1840, married women could not convey their real property until February 3, 1841.) It still limits county clerks to instruments to be recorded in their own coun- ties. It probably repeals the act of January 19, 1839.^* § 616. Act of January 22, 1841^* — Associate Justices of County Court. — "Be it enacted that in all cases in which the chief justice of any county in this republic shall be interested, absent or unable to perform his duties, the associate justice of the county court shall be authorized and empowered to act in his stead. Be it further en- acted that so much of the first section of an act organiz- ing the inferior courts and defining the powers and ju- risdiction of the same as requires the associate justices 32 Post, § 646. 33 Post, §§ 623, 624. 34 2 L. T. 532; H. D. 272, 273. 255 LAWS CONCERNING AUTHORITY OF OFFICERS. § 617 of the county courts to be selected at the beginning of each and every year be, and the same is hereby re- pealed." § 617. Act of February 3, 1841^^ — Acknowledgments of Married Women. — "An act prescribing the mode in which married persons may dispose of their separate property [took effect from passage]. Be it enacted by the Senate and House of Eepresentatives of the republic of Texas, in Congress assembled, that from and after the passage or approval of this act, when a husband and his wife have sealed and delivered a writing purporting to be a conveyance of any estate or interest in any land, slave or slaves, or other effects, the separate property of the wife, if she appear before any judge of the district courts or chief justice of the county court, and being examined privily and apart from her husband, shall declare that she did freely and willingly seal and deliver the said writing (to be then shown and explained to her), and wishes not to retract it, and shall acknowledge the said writing so again shown to her, to be her act ; such privy examination, acknow^ledgment and declaration the said judge or chief justice shall certify under his hand and seal by a certificate annexed to said writing, and to the following effect, or substance thereof, that is to say : " 'Kepublic of Texas, County of , " 'I, A B, chief justice of the county aforesaid, do hereby certify, that E F, the wife of G H, parties to a certain deed, bearing date on the day of , and hereunto annexed, personally appeared before me, the chief justice of the county aforesaid, and having been examined by me privily and apart from her hus- band, and having the deed aforesaid fully explained to her, she, the said E F, acknowledged the same to be her act and deed, and declared that she had willingly 35 2 L. T. 608; H. D. 173. §§ 618, 619 LAWS CONCEENING AUTHOEITY OF OFFICERS. 256 signed, sealed and delivered the same, and that she wished not to retract it. " ^Given under my hand and seal, this day of "'(Seal.)' ''But any certificate showing that the requisition^ of the law have been complied with, shall be as valid as the form here prescribed; and such conveyance shall pass all the right, title, and interest, which the husband and wife, or either of them, may have in or to the prop- erty therein conveyed." § 618. Note. — At this time district judges were also the associate justices of the supreme court.^^ This act did not affect the authority of oflftcers as to any ac- knowledgments except those of married women. It provided the only means in which a married woman can convey her real estate.^'' § 619. Act of February 5, 1841^^— Validates.— "An act of limitations [took effect from passage]. Section 20. Any grant, deed or instrument for the reconveyance of real estate, or personal, or both, or for the settlement thereof in marriage, or separate property or conveyance of the same in mortgage, on trust to uses, or on condi- tions, as well as any and every other deed or instrument required, or permitted by law to be registered, and which shall have been therefore registered, shall, from the passage of this act, be held to have been duly regis- tered, with the full effects and consequences of the ex- isting laws : Provided, the same shall have been acknowl- edged by the grantor or grantors, maker or makers, be- fore any chief justice of the county court, or before any notary public, or before the clerk of the county court in whose office such record is proposed to be made, or proved before such officer by one or more of the suh- 86 Con3t. 1836, art. 4, § 7; ante, § 596; 1 L. T. 1074. 37 Post, § 641; Cole v. Bammell, 62 Tex. 111. 38 2 L. T. 633; P. D. 4977; H. D. 2776. 257 LAWS CONCERNING AUTHORITY OF OFFICERS. § 620 scribing witnesses, and certified by such officer; any obscurity or conflict in the existing laws to the contrary notwithstanding." § 620. Idem — Deeds Thereafter to be Recorded. — "Sec- tion 21.^^ Every grant, deed or instrument mentioned in the twentieth section of this act, hereafter to be made and recorded, shall be duly registered in the office of the proper county, upon the acknowledgment of the parties or party signing the same before the register, or clerk of the county court of that county, or chief justice of the county, or a notary public thereof, or any associate or chief justice of the supreme court, or proved by a subscribing witness before any such officer, and certi- fied by him for record; and if it be so acknowledged and certified, there need be no subscribing witnesses; and the register shall certify thereon the day when the same shall be delivered for registration, give a receipt therefor, if required, and record the same within one month thereafter, under the forfeiture to the party in- jured, for neglecting either particular, of five hundred dollars, and accumulative liability to such party, for recovery of vindictive damages; and such grant, deed or instrument, so delivered for registration, shall, ac- cording to its nature and character, have full effect, validity, and priority, from and after its date of presen- tation or delivery for registration, against subsequent purclmsers and creditors ; and such acknowledgment or probate certificate and registration, or either, as be- tween the parties and their legal representatives, and all subsequent purchasers and creditors, with actual notice, or reasonable information of the grant, deed, or instrument, shall not be deemed requisite in order to its full effect, validity and priority, according to its intrinsic nature; if any such grant, deed or instrument, executed abroad, shall be acknowledged or proved by two subscribing ivitnesses, before any circuit or supreme 39 P. D. 4978; H. D. 2777. 17 § 621 LAWS CONCERNING AUTHORITY OF OFFICERS. 258 ju(l(/(\ or chancellor of the United States of North America, certified by him, with the certificate of tlie chief magistrate of the nation as to the official character of him taking the acknowledgment or probate; and the great seal of the United States, thereto annexed, or if so acknowledged or proved before any judge of a su- preme court of record, or in any snch court of an,y other nation or kingdom, and certified by such judge, or the record thereof exemplified, and either so counter-cer- tified by the chief magistrate or sovereign of such other nation or kingdom, under the great seal; or by the con- sul of this republic, or minister resident there; the same shall be admitted to record, and shall be good and effectual, as aforesaid, from and after registration." § 621. Note. — Section 20 of this act validates certain acknowledgments and proof taken before chief justices of the county court or notaries public, or county clerk in whose office the record is proposed to be made.^^ This act differs from the act of February 5, 1840, in that that act authorizes (in addition to county clerks in their counties) chief justices of the county court, dis- trict judges, notaries public and two justices of the peace of any county, to take acknowledgments and proof; while this act, February 5, 1841, seems to require the chief justices and notaries public to be of the county where the instrument is to be registered, omits two justices of peace, and while district judges are not men- tioned therein, it authorizes any associate and chief justice of the supreme court to act, and as the associate judges were composed of the district judges, they would still be authorized.^^ It may be material to determine how far the acts of February 5, 1840, and February 3, 1841, are affected by the act of February 5, 1841, i. e., first, whether or not the authority of the officers men- tioned in the act of February 5, 1840, was revoked; second, whether or not the officers authorized by the 40 Post, § 1019. 41 Ante, § 596. 259 LAWS CONCEENING AUTHOEITY OF OFFICERS. § 622 act of February 3, 1841, to take acknowledgments were disqualified by the act of February 5, 1841; and third, whether or not the officers mentioned in the act of Feb- ruary 5, 1841, were authorized to take acknowledgments of married women. The effect of the act of February 5, 1841, besides validating all acknowledgments (if properly taken and certified) made before any chief justice of the county court or notary public, or county clerk in whose office the record is proposed to be made, appears to be: § 622. 1. Did not Revoke the Authority of the Officers Pre- viously Authorized — Repeal by Implication. — The act of February 5, 1840, is an act concerning conveyances, reg- istration, etc. The act of February 5, 1841, is an act of limitations, validations, etc., and does not purport to revise or repeal the former act, and it is not clear that it was intended to repeal the former. The latter, it appears, was intended to validate acts of certain offi- cers previously made, and provide against obscurity in the future by prescribing what officers could take them both within and without the state. It provides that any and every instrument shall be duly registered — upon the acknowledgment of the party — before certain officers named. The question as to whether or not this revokes the authority of the officers authorized, by the former act (February 5, 1840) does not seem to have been decided."*^ In oiie case it was held that the act of January 19, 1839, which provided that it shall be the duty of clerks to record instruments presented to them for record provided the grantor shall ac- knowledge the same — which proof or acknowledgment shall be made either before some county court or chief justice thereof, or before the clerk in whose office the record is proposed to be made — and repealed all laws contrary thereto, revoked the authority of notaries to take acknowledgments, by omitting them from its pro- 42 For a soincwhat analogous case, see Byrnes v. Sampson, 74 Tex. 83. § 622 LAWS CONCEENING AUTHORITY OF OFFICERS. 260 visions."*^ But it will be noticed that the act of Jan- uary 19, 1839, differs from the act of February 5, 1841, in that the former provides that all laws contrary thereto are repealed, while the latter does not purport to repeal others. Again, where the act of August 8, 1870, authorized district clerks and their deputies to take acknowledgments, and the act of May 6, 1871, was passed providing that the same may be taken by cer- tain officers named, omitting deputies, it was held that the latter did not repeal the former, and that deputies were still authorized , Justice Gaines, saying of the lat- ter act, that "It contains no repealing clause, and if it be repealed, it must be by implication. Such repeals are not favored." "In Wood V. United States,"** Mr. Justice Story uses this language : 'We say necessary implication, for it is not sufficient to establish that subsequent laws cover some, or even all, of the cases provided for by it; for they may be merely affirmative, cumulative or auxili- ary. There must be a positive repugnance between the provisions of the new law and those of the old ; and even then the old law is repealed by implication only pro tanto to the extent of the repugnancy.' Mr. Bishop, in course of a discussion of the doctrine of repeal by im- plication, says: 'Hence, in principle, and equally on the better American authorities, and on the English, the just doctrine is that without exception a statute in affirmative terms, without intimation of an intent to repeal prior laws, does not repeal them unless the new and old are irreconcilably in conflict.'"*^ Here, then, is no irreconcilable conflict. The language of the later act is not that the proof or acknowledgment 'shall be taken,' but that it 'may be taken' before 'some one' of the officers named, and it seems to me is perfectly con- 4.3 McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691. 44 16 Pet. 363, 10 L. ed. 897. 45 Bishop's Written Laws, sec. 760. 261 LAWS CONCERNING AUTHOEITY OF OFFICEES. §§ 623, 624 sistent with the former law which permitted other offi- cers to exercise the power."^^ § 623. Idem — Revising Prior Statute. — The rule is well settled that though the law does not favor repeals by im- plicatiou, vet a subsequent statute revising the subject matter of the former one and intended as a substitute for it, although it contains no express words to that ef- fect, will operate a repeal of the former, to the extent to which its provisions are supplied or reijealed.*'^ But the latter (February 5, 1841) does not revise the subject matter of the former (February 5, 1840). A new statute which comprehends the entire subject mat- ter of the previous one, and enacts a new and independ- ent system respecting it, repeals and supersedes all prior systems and laws upon the same subject matter."*^ But the latter (Februar}' 5, 1841) does not comprehend the entire subject matter of the former (February 5, 1840). Again, the constitution of 1869 authorized the creation of certain criminal courts. This provision was omitted from the constitution of 1876, and it is held by an unbroken line of decisions that by reason of said omission, said provision was repealed, and said court abrogated, and could no longer form part of the judicial system of the state. And that the rules of interpreta- tion are the same whether applied to statutes or consti- tutions.^^ § 624. Idem — Where Latter is Clearly Intended as Substi- tute for Former. — In a leading case on this question in 46 Herndon v. Reed, 82 Tex. 651, 18 S. W. 665; Gilleland v. Drake, 36 Tex. 676; Brown v. Chancellor, 61 Tex. 437; and see Carolan v. McDonald, 15 Tex. 329; Thouvenin v. Rodregues, 24 Tex. 479. 47 Stirman v. State, 21 Tex. 736; State v. I. & G. N. E. R., 57 Tex. 550; Hanrick v. Hanriek, 61 Tex. 601; Dickinson v. State, 38 Tex. Cr. 479, 41 S. W. 760; Coombs v. State, 38 Tex. Cr. 648, 44 S. W. 858. 48 Sutherland on Statutory Construction, 133, 154, and note; Steb- bins V. State, 22 Tex. App. 32, 2 S. W. 618. 4» Coombs V. State, 38 Tex. Cr. 648, 44 S. W. 858. §§ 625, 626 LAWS CONCERNING AUTHORITY OF OFFICERS. 262 this state it is held that if a subsequent statute be not repugnant in all its provisions to a prior one, yet if the latter statute was clearly intended to prescribe the only rule which should govern, it repeals the prior one.^® But it does not seem clear that the latter (1841) was intended to prescribe the only rule. § 625. Idem — Statutes Relating to Same Subject Matter. Statutes in pari materia and relating to the same sub- ject matter are to be construed together, because it is to be inferred that they had but one object in view, and are intended to be considered as constituting one en- tire and harmonious system. And again, "when there are different statutes in pari materia, though made at different times, or expired, and not referring to each other, they shall be taken and considered as one system and as explanatory of each other."^* A statute revis- ing the subject matter of a former repeals it to the ex- tent that its provisions are supplied.^^ Is it evident that the latter act (February 5, 1841) was clearly in- tended as a substitute for the former (February 5, 1840), and was to prescribe the only officers who could take acknowledgments and proof? If so, it repeals the former to that exent. If it is not clear that such was the intention, it does not.^^ § 626. 2. Effect on Authority of Officers Previously Author- ized to Take Wife's Acknowledgement. — It seems that the authority of judges of the district court and chief jus- tices of the county court, authorized by the act of Feb- ruary 3, 1841, to take acknowledgments of married 50 Bryan v. Sundberg, 5 Tex. 423; Rogers v. Watrous, 8 Tex. oo, 58 Am. Dec. 100; S. L. & S. W. Ry. Co. v. Kay, 85 Tex. 559, 22 S. W. 665; State v. Travis Co., 85 Tex. 445, 21 S. W. 1029. 51 Selman v. Wolfe, 27 Tex. 72; Cain v. State, 20 Tex. 362; Taylor V. Hall, 71 Tex. 218, 222, 9 S. W. 141. 52 Dickinson v. State^ 38 Tex. Cr. 479, 41 S. W. 760. 53 See Towle v. Marrett, 14 Am. Dec. 209; McCartee v. Orphan Asylum Soc, 18 Am. Dee. 542; Davis v. State, 61 Am. Dec. 338, note; State V. Massey, 4 L. R. A. 309, note. 263 LAWS CONCEENING AUTHOEITY OF OFFICEKS. § 627 women was not revoked by the act of February 5, 1841. The acts of February 3 and February 5, 1841, were passed by the same legislature, and should be consid- ered together and as but one law.®'* In the first case mentioned the court said "that the same legislature is supposed to be actuated in all that it does by the same mind, spirit and intention, and to have at all times the same governing policy. The artificial being is sup- posed to be of but one mind, and that a rational and in- telligent one, and all acts in pari materia are to be taken together and as if they were but one law." In Monroe v. Arledge, 23 Tex. 481, it is held that the act of May 8, 1846, authorizing commissioners of deeds to authenticate instruments of writing for record, being passed at the same legislature as the act of May 12, 1846, was not repealed by it, although by its terms the latter act seemed to limit the authentication of instru- ments to notaries and county clerks, the court saying that "both acts were passed at the same session and also that one of the acts was special and the other gen- eral. Under these circumstances it required very plain inconsistency or contradiction between the two to au- thorize the opinion that the latter act repealed the former. Such, we think, does not exist in this case."®^ ^ 627. 3. Authorized Additional Ofiicers. — While the ques- tion is still in doubt, it seems that the act of February 5, 1841, authorized, in addition to the ofiicers previously authorized, "first, the register or clerk of the county court of the county in which the record is to be made, 54 G. S. & N. G. R. W. Co. V. Gross, 47 Tex. 435; Lovett v. Casey, 17 Tex. 596; Selman v. Wolfe, 27 Tex. 72; Houston etc. Ey. Co. v. Ford, 53 Tex. 371; Mitchell Co. v. City Nat. Bank, 91 Tex. 374, 43 S. W. 880. 55 See, also, Garton v. Hudson-Kiniborly Pub. Co., 8 Okla. 631, 58 Pac. 946; Hess v. Trigrg, 8 Okla. 286, 57 Pac. 159; New York etc. Ry. Co. V. Bridgeport Traction Co., 65 Conn. 410, 29 L. E. A. 368; Phoenix Assur. Co. v. Fire Department, 117 Ala. 631, 23 South. 843, 42 L. R. A. 469; Citizens' etc. Parish v. Williams, 49 La. Ann. 422, 21 South. 647, 37 L. R. A. 761. § 627 LAWS CONCEENING AUTHORITY OF OFFICERS. 264 or chief justice of the coimtv, or notary public thereof, or any associate or chief justice of the supreme court" (within the state), and second, any circuit or supreme judge or chancellor of the United States (without the state and within the United States), and third, any judge of a supreme court of record or any such court (of any other nation), to take acknowledgments of both single and married persons. It is clear that the officers named in the act of Feb- ruary 5, 1841, were authorized to take single acknowl- edgments, the only question being as to their authority to take acknowledgments of married women. The terms of this statute are evidently broad enough to in- clude them,, and it seems that this was the intention of the legislature. Unless these officers were authorized to take all acknowledgments there would have been no officers beyond the limits of the state authorized to take a married woman's acknowledgment until the act of April 30, 1846, and it seems that the legislature in- tended to provide for the taking of married women's ac- knowledgments abroad, as well as those of others. It seems that the only reason for questioning the above conclusion is that both the acts of February 3 and Feb- ruary 5, 1841, were passed by the same legislature, and should be construed together,^*^ and that the former, be- sides providing how acknowledgments of married women must be taken, authorized certain officers to take them ; but that would not necessarily prevent other offi- cers being authorized also. Again, it might be argued, against their authority, that the latter act provided that the instruments referred to therein may be acknowl- edged or proved before any of said officers, and as a married woman's deed could not be proved by sub- scribing witnesses, the said act did not contemplate their deeds. But we take it that these reasons would weigh little against the plain language used in the said act of February 5, 1841, and the apparent intent of the legislature to make it apply to all acknowledg- 56 Post, § 647. 265 LAWS CONCERNING AUTHOEITY OF OFFICERS. §§ 628-631 ments. These acts of February 3, 1841, and February 5, 1841, are not repugnant nor inconsistent, the prior authorizing judge of the district court and chief jus- tices of the county court to take acknowledgments of married women, the latter authorizing other and addi- tional oflQcers to take any and every acknowledgment. If the latter had been passed by a subsequent legisla- ture, the authority of the ofiflcers named to take both single and joint acknowledgments could not be ques- tioned.^'^ § 628. Idem — Statutes Should be Construed so that Both may Stand. — Again, statutes should be construed so that both may stand,^^ and give effect to each and all parts,^® and when there are repugnant provisions in a statute the latter in position controls.^® § 629. Idem — Where Both may Stand, Parties have Their Election of Remedies. — Again, where prior and subsequent statutes are not repugnant, both stand, and parties have election of their remedy.®^ § 630. Idem — Cases not Decisive. — The cases of Cole v. Bammel, 62 Tex. Ill, and AVadkins v. Watson, 86 Tex. 194, 24 S. W. 385, 22 L. R. A. 779, seem to refer only to the manner of taking married women's acknowledg- ments, and not to the authority of officers taking them.**^ § 631. Authority Revoked When. — The authority of the officers named in the above act, as to acknowledgments of married women, was probably revoked by the act of 57 Post, §§ 652-656; Thompson v. .Johnson, 84 Tex. 358, 19 S. W. 784; Norton v. Davis, 83 Tex. 32, 18 S. W. 430; Ruleman v. Pritchett, 56 Tex. 483; Wilson v. Simpson, 68 Tex. 312, 4 S. W. 839. 58 Berry v. Childress, 32 Tex. 372. 59 Aldridge v. Mardoff, 32 Tex. 207. 60 Gulf etc. Ry. Co. v. Rambolt, 67 Tex. 657, 4 S. W. 356. 61 Thouvenin v. Rodrigues, 24 Tex. 478; Webb v. Mallard, 27 Tex. 83; Missouri Pac. Ry. v. Barkhurst, 3 Tex. App. Civ. 199. 62 See post, §§ 652-656. §§ 632-634 LAWS CONCERNING AUTHORITY OF OFFICERS. 266 April 30, 1846,^* and as to those of other persons by the act of May 12, 1846.^ § 632. Act of January 3, 1842''^ — Associate Justices. — ''An act to extend the duties of associate justices of the county courts. Section 1. Be it enacted by the Sen- ate and House of Eepresentatives of the republic of Texas, in Congress assembled, that hereafter it shall be lawful, and it is hereby made the duty of the associate justices of the county court, in case of a vacancy of the office of chief justice of the county court, or inability of that officer, from any cause whatever, to discharge the duties of his office, to discharge the duties of the said chief justice, until such inability shall be removed, or the vacancy filled. "Sec. 2. Be it further enacted, that this act shall take effect from and after its passage." § 633. Act of January 10, 1845«6_Notaries.— "An act allowing two additional notaries public for Montgom- ery and other counties [taking effect November 15, 1845] . Section 5. Be it further enacted, that notaries public be authorized to perform all such duties as chief justices of county courts are required to perform, by virtue of their office as ex-officio notaries public." § 634. Construction of Above Statute. — The duties of notaries public are defined in Hartley's Digest, section 2588, act of December 20, 1836.*^'' At this time (March 15, 1845) notaries were authorized to take single ac- knowledgments, and probably joint acknowledgments, by virtue of the act of February 5, 1841.^* As chief justices of county courts were at this time authorized 63 Post, § 641. 64 Post, §§ 644-646. 65 2 L. T. 701. 66 2 L. T. 1059. 67 Ante, § 597. . ' 68 Ante, § 627. 267 LAWS CONCERNING ATJTHOETTY OF OFFICERS. §§ 634a, 635 directly to take acknowledgments of married women (by act of February 3, 1841), and possibly indirectly as ex-ofiacio notaries public (by the act of December 20, 1836),^** there is some doubt as to what the legislature meant in the above act, by "all such duties as chief jus- tices of county courts are required to perform, by virtue of their office as ex-officio notaries public." It seems, however, that the intention was to distinguish between his official acts as judge of the county court and other acts usually performed by notaries. If this is the cor- rect construction, the above act would authorize no- taries to take the acknowledgments of married women as well as other acknowledgments.''^ § 634a. Constitution of July 4 (August 27), 1845''*-, Laws Continued in Force. — "Section 10. That no incou venience may result from the change of government, it is declared that the laws of this republic, relative to the duties of officers, both civil and military, of the same, shall remain in full force ; and the duties of their several offices shall be performed in conformity with the existing law, until the organization of the govern- ment of the state, under this constitution, or until the first day of the meeting of the legislature; that then the officers of president, vice-president, of the presi- dents, cabinet, foreign ministers, charg(^s, and agents, and others repugnant to this constitution, shall be su- perseded by the same; and all others shall be hoiden and exercised, until they expire by their own limitation, or be superseded by the authority of this constitution or laws made in pursuance thereof." § 635. Act of April 29, 1846'2— Separate Property of Wife. "To provide for the registration of the separate prop- erty of married women [taking effect June 22, 1846]. 69 Post, § 663. 70 Post, § 652, etc. 71 2 L. T. 1301. 72 2 L. T. 1459; P. D. 4996. §§ 636, 637 LAWS CONCERNING AUTHORITY OF OFFICERS. 268 Section 2. Be it further enacted, that each ivoman now ))iarric(l, or who may be hereafter married, may jjre- sent to aiti/ officer nnthorized by law to prol)ate deeds, or other instruments for record, a schedule, particularly describing all the property, real and personal, which she now owns and possesses, or which she may own and possess at the time of her marriage, and make acknowl- edgment before such officer, that the property described in the schedule is her separate property ; and upon such acknowledgment, the officer aforesaid, shall give a cer- tificate of the fact under his hand and seal of office, which certificate shall be sufficient evidence for the re- corder of any county to register the said schedule." § 636. Note. — This act seems broad enough to au- thorize officers, w^ho Avere authorized to take single as well as joint acknowledgments, to take her acknowledg- ment to her schedule. § 637. Act of April 30, 1846"^— Acknowledgments of Mar- ried Women Within the State.— "An act defining the mode of conveying property in which the wife has an interest [took effect June 22, 1846]. Section 1. Be it enacted by the legislature of the state of Texas, that when a husband and his wife have signed and sealed any deed or other writing purporting to be a conveyance of any estate or interest in any land, slave or slaves, or other effects, the separate property of the wife, or of the homestead of the family, or other property exempted by law from execution, if the wife appear before any judge of the supreme or district court or notary public^ and being privily examined, by such officer, apart from her husband, shall declare that she did freely and ivill- ingly sign and seal the said writing to be then shown and explained to her, and wishes not to retract it, and shall acknowledge the said deed or writing, so again shown to her to be her act, thereupon such judge or notary shall certify such privy examination, acknowl- 73 2 L. T. 1462; P. D. 1003; H. D. 174. 269 LAWS CONCEENING AUTHORITY OF OFFICERS. § 638 edgment and declaration, under his hand and seal, by a certificate annexed to said writing to the following ef- fect or substance, viz. : " 'State of Texas, | County of . \ " 'Before me, judge of, or notary public of county, personally appeared , wife of parties to a certain deed or writing bearing date on the day of , and hereto annexed, and hav- ing been examined by me privily and apart from her husband, and having the same fully explained to her, she, the said •, acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed and delivered the same, and that she wished not to retract it ; to certify which I hereto sign my name and affix my seal, this day of , A. D. — .' "But any certificate showing that the requisites of the law have been complied with, shall be as valid as the form here prescribed; and such deed or conveyance, so certified, shall pass all the right, title and interest which the husband and wife, or either of them, may have in or to the property therein conveyed." § 638. Acknowledgments of Married Women Without the State. — "Section 2'^ Be it further enacted that when a husband and ivife have signed and sealed any deed, of the character described in the first section of this act, out of this state, but within the United states, or any of their territories, if the wife appear before any judge of a court of record having a seal, in any of said states or territories, and be examined, and make the declara- tions and acknowledgments provided for in said section, and such judge shall make a certificate thereof in the manner provided for in said section, and attest the same under his hand and seal of his court, such deed shall have the same force and effect as if the same had 74 H. D. 175; p. D. 1004. §§ 639-641 LAWS CONCERNING AUTHORITY OF OFFICERS. 270 been done in this state, before any of tbe officers named in said section; and where any such deed shall have been sij^ned and sealed out of the United States, such examinations, declarations and acknowledgments, may be taken or made before any puhlic minister, cliarqe d'aff aires, or consul of the United States, and the cer- tificate of such minister, charge d'affaires, or consul, in the manner and form provided for in said section, and attested under their hand and official seal, shall have the same force and effect as if such examination, declaration and acknowledgment had been taken or made and cer- tified in this state, before any of the officers named in said first section." § 639. Law Applies to What Property. — "Section Z7^ Be it further enacted that this act is intended to apply to the property mentioned in the twenty-second section of the seventh article of the constitution, as well as to the property owned or claimed by the wife before mar- riage, and that acquired afterward by purchase, gift, devise or descent." § 640. Former Laws Repealed. — "Section 4.''^ Be it fur- ther enacted, that all former laws and parts of laws, concerning the mode of conveyance of property in which the wife has an interest, be and the same are hereby re- pealed." § 641. Effect of Above Law. — It seems that this act be- ing a substitute for, and repealing all former laws and parts of laws concerning the mode of conveyance by the wife, and naming judges of the supreme and district courts and notaries public as the authorized officers, may limit the authority to take the wife's acknowledg- ment to those officers, and possibly chief and associate justices of the county courts as ex-officio notaries.'''' It 75 H. D. 176. 76 H. D. 177. 77 Post, §§ 662-666 and 860. 271 LAWS CONCERNING AUTHORITY OF OFFICERS. § 641a is held that the act of April 30, 1846, prescribed the ouly mode in which a married woman can convey her real estate.'^ In Cole v. Bammel the court says: "Our statutes, in their watchful care over the rights of mar- ried women, have prescribed the only manner in which their separate property may be conveyed by deed, and any conveyance not executed in strict conformity with the statute is an absolute nullity." "Reposing con- fidence in certain officers named for that purpose it re- quires that one of them shall examine the wife privily and apart from her husband," etc. But the question at issue in that case was the manner in which a married woman's acknowledgment must be taken, and not the authority of the officers taking same. The case of Wadkins v. Watson refers also to the manner of its taking, and. not to the officers authorized to take the acknowledgments, as many other officers have been so authorized since the passage of said act. and were so au- thorized at the date of the said decisions.''® As to when the authority of the different officers was revoked, see them considered separately hereafter.^^ § 641a. Effect on Prior Acts. — It should also be noted that under the acts of December 20, 1836, and January 26, 1839, chief justices of the county courts were ex- officio notaries public, and by virtue of their offices, au- thorized to act as such.^^ It is questionable whether or not these acts of December 20, 1836, and January 26, 1839, were repealed (on July 13, 1846), by the act of May 13, 1846, entitled "An act organizing county courts."*^ 78 Wadkins v. Watson, 86 Tex. 198, 24 S. W. 385, 22 L. E. A. 779; Cole V. Bammel, 62 Tex. 3. 79 See post, §§ 674, 681, 683, 686, 688, 691, 695, 703, and Revised Statutes of 1895, article 4613, and Thompson v. Johnson, 84 Tex. 553, 19 S. W. 784; McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691. Also see post, §§ 647-656, 662. 80 Chapters 21-27. 81 Butler V. Dunagan, 19 Tex. 559; Wilson v. Simpson, 68 Tex, 313, 4 S. W. 839. 82 Post, §§ 662-666. §§ 642-644 LAWS CONCERNING AUTHOEITY OF OFFICERS. 272 § 642. The Act of May 2, 1846-^*^— Chief Justices to Hold Over. — ^This act authorized chief justices of the county court elected on the first Monday in February, 1846, to perform the duties of their office, until their successors are elected and qualified, and validated their acts. § 643. Act of May 13 (June 22), 18468^— Notaries.— This act provided that notaries public may take the ac- knowledgments or proof of all instruments of writing in the manner provided for by law, to entitle them to regis- tration in the office of the county recorder, and give certificate of all such acknowledgments and proofs, un- der their hands and official seals ; they may take the ex- amination and acknowledgments of married women to all deeds and instruments of writing, conveying their separate property and their interest in the homestead in the manner provided by law. (This is the same in effect as acts of April 30, and May 12, 1846.) . § 644. Act of May 12, 1846*=5_officers Authorized. — '^\n act to provide for the registry of deeds and other instru- ments of writing [took effect July 13, 1846]. Section 11. Proof or acknowledgment of every instrument of writing for record, shaU be taken by some one of the following officers : First, when acknowledged or proven within the state, before some notary puhllc or clerk of the county court of any county in the state; second, when acknowledged or proven without this state, and within the United States or their territories, before some judge of a court of record having a seal; third, when acknowledged or proven without the United States, before some public minister, charge d'affaires, or consul of the United States; and in all cases the certificate of such acknowledgment or proof shall be attested under the official seal of the officer taking the same." 83 2 L. T. 1471. 84 2 L. T. 1647; H. D. 2606. 85 2 L. T. 1544; P. D. 5011; H. D. 2794. 273 LAWS CONCEENING AUTHOEITY OF OFFICERS. §§ 645-647 § 645. Prior Laws Repealed. — "Section 19. All laws and parts of laws conflicting with the provisions of this act be, and the same are hereby, repealed." § 646. Effect of This Act — First, as to Its Revocation of the Authority of Officers Previously Authorized to Take Ac- knowledgments of All Persons Except Married Women. — To wit: Under the act of February 5, 1841, county clerks and their deputies,^** chief justices of the county court and notaries public, of the county where the land lieth ; and any chief or associate justice of the supreme court. And under the act of February 5, 1840, county courts and county clerks and their deputies in the counties where the land lies ; and any district judge, chief justice of the county court, notary public, and two justices of the peace of any county. The provisions of the act of May 12, 1846 (that "acknowledgments of every instru- ment of writing shall be taken before some one of the fol- lowing officers, to wit: A notary public or clerk of the county court of any county in the state," and that con- fliicting laws are repealed), revokes the authority of all officers except county clerks and notaries public, to take all acknowledgments except those of married women.®'"' "Notaries public" include chief justices of the county court who were ex-ofificio notaries public under the acts of December 20, 183G, and January 26, 1839,^® unless these acts were repealed by the act of May 13, 1846, or- ganizing county courts.®^ § 647. Second, as to Its Revocation of the Authority of Officers Previously Authorized to Take Acknowledgments of Married Women. — To wit: Any judge of the supreme or district court, notary public and cliief justice of the 86 See § 606. 87 Ante, §§ 622-631; McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691; Bryan v. Sundberg, 5 Tex. 423; Talbert v. Dull, 70 Tex. 679, 8 S. W. 530; Herndon v. Eeed, 82 Tex. 667, 18 S. W. 665. 88 Wilson V. Simpson, 68 Tex. 313, 4 S. W. 839. 89 Post, §§ 662-664. 18 §§ 648, 649 LAWS CONCERNING AUTHORITY OF OFFICERS. 274 ooiiiUy court as ex-officio notary public, under the act of April 30, 1840).^*^ It seems that the act of May 12, 1S4(), (loos not revoke nor affect the authority of the offi- cers authorized by the act of April 30, 1846, to take ac- knowledgments of married Avomen.^* § 648. Idem— Acts of April 30, 1846, and May 13, 1846, Should be Construed Together. — These two acts were passed by the same legislature, and should be considered to- gether and as but one complete law.^^ In the first case referred to, the court said: "That the same legislature is supposed to be actuated in all that it does by the same mind, spirit and intention, and to have at all times the same governing policy. The artificial being is supposed to be of but one mind, and that a rational and intelligent one, and all acts in pari materia are to be taken together as if they were but one law." In Monroe v. Arledge, 23 Tex. 481, it is held that the act of May 8, 1846, authorizing commissioners of deeds to authenticate instruments of writing for record, being passed at the same legislature as the act of May 12, 1846, was not repealed by it, although by its terms the latter act seemed to limit the authentication of instru- ments to notaries and county clerks, the court saying that "both acts were passed at the same session, and also that one of the acts was special and the other gen- eral. Under these circumstances it required very plain inconsistency or contradiction between the two to au- thorize the opinion that the latter act repealed the for- mer. Such, we think, does not exist in this case." § 649. Idem — Acts Passed by Same Legislature. — Again, it is held that a more liberal rule of construction should be allowed against the repeal of one statute by another by implication, when both are passed by the same legis- 90 See § 641. 91 § 648. 92 Galveston S. & N. G. R. W. Co. v. Gross, 47 Tex. 435; Lovett V. Casey, 17 Tex. 596; Salman v. Wolfe, 27 Tex. 72; Mitchell Co. v. City Nat. Bank, 91 Tex. 374, 43 S. W. 880. 275 LAWS CONCERNING AUTHOEITT OF OFFICEES. §§ 650, 651 lature, than would prevail if the last act were passed at a subsequent session. Both of the acts referred to contemplated the same subject matter, and the court said: "We are not advised why the legislature at the same session passed two separate acts so similar in their provisions," etc.^* § 650. Idem — General and Special Laws Construed. — Again, the act of June 30, 1846, is, in one sense, a spe- cial law, applving- only to acknowledgments of married women, while the act of May 12, 1846, is a general law. A general law will not be held to repeal a special law on the same subject.^* § 651. Idem— Act of April 30, 1846, Prescribed Only Mode for Married Women.— The act of April 30, 1846, pre- scribed the only mode in which a married woman can convey her real estate. ^^ It seems that the effect of these decisions is to hold that the act of May 12, 1846, did not affect the act of April 30, 1846, nor change the mode in which a married woman's deed could be au- thenticated, nor revoke the authority of the officers au- thorized by the act of April 30, 1846. In Cole v. Bam- mel,^** the court says: "Our statutes, in their watchful care over the rights of married women, have prescribed the only manner in which their separate property may be conveyed by deed, and any conveyance not executed in strict conformity with the statute is an absolute nullity." "Reposing confidence in certain officers named for the purpose, it requires that one of them shall examine the wife privily and apart from her hus- band," etc.^^ 93 H. & L. C. Ey. Co. v. Ford, 53 Tex. 370. 94 Ellis V. Batts, 26 Tex. 704; City of Laredo v. Martin, 52 Tex. 562; Monroe v. Arledge, 23 Tex. 481. 95 Wadkins v. Watson, 86 Tex. 198, 24 S. W. 385, 22 L. E. A. 779; Cole v. Bammel, 62 Tex. Ill; Nichols v, Gordon, 25 Tex. Supp. J 09; Berry v. Donley, 26 Tex. 743; Cross v. Evarts, 28 Tex. 534. 96 62 Tex. 111. 97 Ante, § 641. § 652 LAWS CONCERNING AUTHORITY OF OFFICERS. 276 § 662. Third, May Officers Named in Act of May 12, 1846, Take Wife's Acknowledgment? — As to the authority of the officers named in the act of May 12, 1846, to take ac- knowledgments of both single and married persons. The only question is as to those of married women. The language of said statute is broad enough to include her acknowledgments also, and was probably so intended. If that is not the proper construction to put upon it, the reason for not so construing it w^ould seem to be: (a) That this act and that of April 30, 1846, were passed at the same session of the legislature, and should be construed together as forming one complete law,^* and that the act of April 30, 1846 (or the first part of the complete law), provided what officers could take the wife's acknowledgments, wiiich might exclude other officers, (b) That the act of April 30, 1846, w^as "an act defining the mode of conveying property in which the wife has an interest," while the act of May 12, 1846, was "an act to provide for the registry of deeds and other instruments of writing," and that as the acknowl- edgment is the wife's deed,®^ it might be held that the latter act, pertaining to the registration of deeds, did not contemplate the execution of the wife's deed, and that the officers mentioned in the latter had no author- ity to authenticate or validate her deeds. This seemed to be the offhand opinion of the court in the case of Cole V. Bammel,^^^ but that question was not before the court.*^^ (c) The legislature considered the author- ity of county clerks, under said act of May 12, 1846, to take acknowledgments of married women, at least doubtful, for it provided for same by a special act of December 14, 1849.^^^ Again, the language used in section 27 of the act of March 16, 1848,^**'* indicates 98 Ante, § 648. 99 Ante, § 247. 100 62 Tex. 111. 101 Ante, § 641. 102 Post, § 681. 103 Post, § 674. 277 LAWS CONCEENING AUTHOEITY OF OFFICEES. §§ 653,654 that the legislature distinguished between the taking of acknowledgments for the purposes of registration and taking the wife's examination and acknowledgment. § 653. Idem — Acts Passed at Different Legislatures. — On the other hand, it is clear that if the latter act had been passed at a subsequent instead of at the same legisla- ture, its provisions would have clearly authorized the officers named therein to take both single and joint ac- knowledgments, for its terms are broad enough to in- clude acknowledgments of all persons; and subsequent statutes in practically identical terms have been held to authorize the ofBcers named therein to take the wife's as well as all other acknowledgments, as in case of the act of May 6, 1871/^^ The courts, in holding the two statutes passed at the same legislature are to be con- strued as constituting one complete law, have evidently had in mind the effect of the subsequent upon the prior statute, rather than the effect of prior upon the subse- quent. And it seems that the object is to save the prior, and prevent its being repealed by the subsequent conflicting statute, rather than to limit the operation of the latter, for where there is irreconcilable conflict the latter always repeals the former. -^^^^ § 654. Idem — Statutes Construed Tog-ether. — Statutes should be construed so that both may stand,^**^ and to 104 Thompson v. Johnson, 84 Tex. 553, 19 S. W. 784; Wilson v. Simpson, 68 Tex. 312, 4 S. W. 839; Chicago etc. Ey. Co. v. Tittering- ton, 84 Tex. 219, 31 Am. St. Eep. 39, 19 S. W. 472; Leach v. Dodson, 64 Tex. 189; Miller v. Yturria, 69 Tex. 552, 7 S. W. 206; Norton v. Davis, 83 Tex. 32, 18 S. W. 430. See acts of April 6, 1861 (post, § 686), January 14, 1862 (post, § 688), November 13, 1866 (post, § 691), August 8, 1870 (post, § 695), May 6, 1871 (post, § 703); Eev. Stats. 1895, art. 4613. 105 Ante, §§ 622-631; State v. Massey, 4 L. E. A. 309, note; Citi- zens' etc. Parish v. Williams, 49 La. Ann. 422, 21 South. 647, 37 L. E. A. 761; Phoenix Assur. Co. v. Fire Department, 117 Ala. 631, 32 South. 843, 42 L. E. A. 469. 106 Berry v. Childress, 32 Tex. 372. §§ 655-6;-7 LAWS CONCERNING AUTHOEITY OF OFFICEES. 278 give effect to each and all parts.**^'' And where there are repugnant provisions in a statute the latter in posi- tion controls.**** § 655. Idem— Act of April 30, 1846, not Intended to Name Only Officers to be Authorized. — Again, it is clear that the legislature did not intend that the officers named in the act of April 30, 1846, should be the only officers authorized to authenticate deeds of married women, as it also provided for commissioners of deeds for other states, and authorized them to take her ac- knowledgments by the act of May 8, 1846.*<*^ § 656. Idem — Proper Construction of Above Act. — It seems that the construction which would most nearly permit both acts to stand in entirety would be to con- strue the act of April 30, 1846, as authorizing the offi- cers therein named to take only joint acknowledgments, and the act of May 12, 1846, as authorizing the officers therein named to take all acknowledgments, both joint and single, but it seems to be still an open question.*** Where the new and the old statutes are not repugnant, parties have the election of their remedy.*** § 657. The Act of May 13, 1846.ii2_a^jj g^^^ organizing county courts [taking effect July 13, 1846; repealed August 7, 1848]. Section 1. Be it enacted by the legis- lature of the state of Texas, that there shall be in each county in this state, an inferior court, to be styled the 'County court of county,' which shall be com- posed of one chief justice and four commissioners, who shall be styled county commissioners." if)7 Aldridge v. Mardoff, 32 Tex. 207. 108 Gulf etc. By. Co. v. Eambolt, 67 Tex. 657, 4 S. W. 356. 109 Post, §§ 729-731. no Ante, § 627. 111 Thouvenin v. Eodrigues, 24 Tex. 478; Webb v. Mallard, 27 Tex. 83; Missouri Pac. Ry. Co. v. Parkliurst, 3 Tex. App. Civ., § 159. 112 2 L. T. 1640; H. D. 285. 279 LAWS CONCERNING AUTHOEITY OF OFFICEES. §§ 658-660 § 658. Deputy Clerk.iiS— "Section 5. Be it further en- acted, that the clerks of the county courts shall have power, by writing, under their hand and seal, to appoint a deputy, for whose official acts they shall be responsi- ble; and such appointment shall be recorded with the county records; and every clerk of the county court, when he shall vacate his office, shall deliver over to his successor in office, all books, papers, records, and effects belonging to his office; and any clerk who shall fail or refuse so to do, shall be fined in a sum not less than fifty nor more than five hundred dollars, to be recovered on motion of the chief justice of the county in the dis- trict court, such clerk having three days' notice of such motion; and every other clerk of the county court who shall be guilty of any neglect of duty or misdemeanor in office, may be indicted for the same by a grand jury in the district court, and on conviction thereof shall be removed from office." § 659. Seal."4_agg(.tiojj j g^ j^ further enacted, that every county court shall procure, at the expense of the county, a seal, whereon shall be engraved the words 'County court, — county, Texas,' which seal shall be kept in the clerk's office, and shall be used in the authentication of all official acts of said court or of said chief justice, or of said county commissioners, or of said clerk. Until such seal shall be procured, pri- vate seals may be used." § 660. Two County Commissioners to Act in Absence of Chief Justice.!*-'— '^Section D. Be it further enacted, that the chief justice and any two of the county commission- ers shall form a quorum for the transaction of business; and whenever the office of chief justice is vacant, or whenever the chief justice is absent from the county, or incapable from any cause to hold court, any three of 113 H. D. 289. 114 H. D. 291. 115 H. D. 293. §§ 661-663 LAWS CONCEENING AUTTIOKITY OF OFFICERS. 280 the ooimty commissioners shall form a quorum of said court." § 661. Laws Repealed.!!*'— "Section 10. Be it further enacted, that this act shall take effect and be in force from and after the second Monday in July, 184fi, and from and after that time all laws and parts of laws conflicting- with the provisions of this act, be and the same are hereby repealed." § 662. Effect of Above Act.— It is not clear that chief justices of the county courts were not still ex-ofiflcio no- taries public after the passage of the above act. The act of December 20, 1836, entitled "An act organizing the inferior courts, and defining the powers and jurisdic- tion of the same,"^*'' amended January 26, 1839,*** em- braced several distinct subject matters, to wit: First, the organization of the county court, fixing its jurisdiction, its officers and their duties as officers of such court; second, the organization of probate courts; third, the office of notary public, with its powers ; fourth, the reg- istration of deeds; fifth, limitation of actions for land; sixth, common-law rules of evidence, to be followed in all courts of the republic. (Note. — The above law is not objectionable under the constitution of 1836, on account of containing subjects not expressed in the title, etc.)**^ § 663. Idem — Repealed by Implication. — There is no law directly repealing the act of 1836, but most of its pro- visions have been repealed by implication; not by one law revising the whole subject matter of said act, and intended as a substitute for it, but by several different acts, each being a substitute for a part. Part of it still remains in force. The first subject matter men- 116 H. D. 303. 117 1 L. T. 1208. 118 Ante, § 571. 119 Post, §§ 666, 676. 281 LAWS CONOEENING AUTHOEITY OF OVFICEES. § 664 tioned above is evidently repealed by aot of May 13, 1846, organizing county courts,^^** it being a substitute, however, only for that part of the said act of December 20, 183G. The second subject matter was repealed by act of May 11, 1846, organizing probate courts. ^^^ The fourth subject matter was repealed by the act of May 12, 1846,^" providing for the registry of deeds. The fifth subject matter (limitations) questionably by the act of limitations of February 5, 1841.*--* The sixth subject matter (common-law rules of evidence) has never been repealed/^^ The third subject matter (sec- tion 35 of said act December 20, 1836) provides for the oflSce of notary, the powers and duties of same, and provides that the chief justices of the county courts shall be ex-officio notaries public. The act which might be held to be a substitute for the said section 35 is the act of May 13, 1846.*^^ This act provides for the ap- pointment of notaries, and their powers and duties, but does not purport to repeal any previous law, nor is it inconsistent with said section 35, which makes chief justices of the county courts ex-offlcio notaries public, no more than is the present law authorizing notaries inconsistent with tlie laAv making justices of the peace ex-officio notaries public. § 664. Idem — Statute Revising Subject Matter of Former. — A subsequent statute revising the subject matter of a former, and intended as a substitute for it, although it contains no express words to that effect, will operate a repeal of the former to the extent to which its pro- visions are supplied or repealed. ^'^ But it is held in 120 2 L. T. 1640. 121 2 L. T. 1614. 122 2 L. T. 1544. 123 2 L. T. 633; Lambert v. Weir, 27 Tex. 364; Horton v. Crawford. 10 Tex. 390; Christy v. Alford, 17 How. 604, 15 L. ed. 256 124 See Eev. Stats. 1895, art. 2299; P. D. 3706. 125 2 L. T. 1649. 126 Buse V. Bartlett, 1 Tex. Civ. App. 335, 21 S. W. 54; Stirman V. State, 21 Tex. 736; Bryan v. Sundberg, 5 Tex. 423; Dickinson v. §§ 0G5, 666 LAAVS CONCERNING AUTHORITY OF OFFICERS. 282 Herndon v. Eeed*^'' that the better rule is that unless there is a positive repugnance, or unless the statements are irreconcilably in conflict, or an intimation of in- tent to repeal is expressed, the latter does not repeal the former. ^^* § 665. Statute Intended as Substitute for Former. — It does not appear that the said act of May 13, 1846, organiz- ing county courts*^'-* was intended as a complete substi- tute for said section 35, making chief justices of the county court ex-officio notaries public, nor is it in con- flict therewith, as it makes no mention of the office of notary public. Again, the repealing clause of the said latter act organizing county courts repeals all laws and parts of laws conflicting with the provisions of same. And it is held that "when a general revising act ex- pressly repeals all inconsistent acts and parts of acts, this implies that if there are parts of former acts not embraced in the new act and not inconsistent with it, they are not repealed. "^^** § 666. A Law Shall Embrace but One Subject Matter.— Again, the title of the act of May 13, 1846, is "An act organizing county courts." Section 24, article 7, of the constitution of 1845, in force at that time, provided that "every law enacted by the legislature shall embrace State, 38 Tex. Cr. 479, 41 S. W. 760; Coombs v. State, 38 Tex. Cr. 648, 44 S. W. 858; Carolan v. McDonald, 15 Tex. 329; Tunstall v. Wormley, 54 Tex. 481; Taylor v. Hall, 71 Tex. 218, 9 S. W. 141; State V. Travis Co., 85 Tex. 445, 21 S. W. 1029; Holden v. State, 1 Tex. App. 242; St. Louis etc. Ry. Co. v. Kay, 85 Tex. 559, 22 S. W. 665; Rogers v. Watrous, 8 Tex. 62, 58 Am. Dec. 100; and Rose's Notes under same. 127 82 Tex. 651, 18 S. W. 665. 128 See notes in the following cases where the question is more fully briefed: 14 Am. Dec. 209; 18 Am. Dec. 542; 61 Am. Dec. 337; 82 Am. Dec. 167; 86 Am. Dec. 193; 12 Am. St. Rep. 695. See, also, ante, § 622. 129 2 L. T. 1640. 130 Buse V. Bartlett, 1 Tex. Civ. App. 340, 21 S. W. 52-54; Etter v. Missouri Pac. Ry., 2 Tex. App. Civ. § 58. 283 LAWS CONCERNING AUTHOEITY OF OFFICERS. §§ 667-669 but one subject, and that shall be expressed in the title." It seems that the organization of county courts, and the revocation of the authority of county judges to act as notaries public might be two objects, one of which was not expressed in the title of the act, as the duties of notaries are in no way connected with the courts. If this is the case, would the said act be void in so far as it might attempt to revoke the authority of county judges to act as notaries ?*^^ This provision of the con- stitution, however, does not apply to repeals by impli- cation.*"^^ If chief justices of county courts w^re authorized, were county commissioners also authorized by this act?*«» § 667. Deputies. — Deputies of county clerks would, by virtue of their authorized appointment, have authority to take acknowledgments and proof under the same con- ditions that their principals would. *^^ § 668. Act of March 16, 18481^^— Deputy County Clerks.— "Section 2. That in all cases where the said sheriff and clerks do not reside at the county seats of their respec- tive counties, they shall be, and are hereby, required to have deputies in their several offices, residing at said county seats." § 669. Act of March 16, 1848 ^•■'«— County Courts.— "An act to organize county courts [taking effect Aug. 17, 131 Byrnes v. Sampson, 74 Tex. 83, 11 S. W. 1073; also, post, § 675. But see Coombs v. State, 38 Tex. Cr. 648, 44 S. W. 858, and ante, § 622. 132 Clark V. Finley, 93 Tex. 171, 54 S. W. 343; Davis v. State, 7 Md. 151, 61 Am. Dec. 331. 133 Post, §§ 675-679. 134 Rose V. Newman, 26 Tex. 135, 80 Am. Dec. 646; Cook v. Knott, 28 Tex. 90; Frizzell v. .Tohnson, 30 Tex. 32; Chicago etc. Ey. v. Tittorington, 84 Tex. 219, 31 Am. St. Rep. 39, 19 S. W. 472; Wert V. Schneider, 64 Tex. 327. 135 3 L. T. ]28; H. D. 305. 136 3 L. T. 113; H. D. 307. §§ 670-672 LAWS CONCERNING AUTHORITY OF OFPICERS. 284 1848]. Section 1. Be it enacted by the legislature of the state of Texas, that there shall be in each county of this state an inferior court to be styled ^The county court/ which shall be composed of one chief justice." § 670. Deputy County Clerks. ^»''— "Section 16. That the clerks of the several county courts of this state shall have power, by writing, under their hand and seal, to aj^point a deputy, for whose official acts they shall be responsible; and such deputy shall take and subscribe the oath of office prescribed by the constitution, before some officer authorized to administer oaths, which shall be indorsed on or attached to the appointment, to- gether with the certificate of the officer who adminis- tered the sahie; and such appointment and oath shall be recorded with the county records, and deposited with the clerk of the district court of the county." § 671. Clerk "Pro Teiri."i3s_ugg(.^iQj^ yj rpj^^t if from any cause the clerk of the county court is absent from the county seat, or is unable or unwilling to at- tend to the duties of his office, and he has no deputy, or if any duties are required to be done in the office of said clerk, before an election can be had to fill a vacancy, the chief justice may, by an order entered on the minutes of the court, either in vacation or term time, appoint a clerk pro tem for said court ; and any person appointed shall take the oath, and give bond in like manner as herein provided for clerks who are elected; but such appointment shall in no case continue in force for more than thirty days." § 672. Two County Commissioners to Act.^^^ — "Section 23. That during any vacancy in the office of chief jus- tice, any two of the county commissioners shall have power to hold all such courts, as the chief justice can 137 H. D. 322. 138 H. D. 323. 139 H. D. 329. 285 LAWS CONCERNING AUTHORITY OF OFFICERS. §§ 673-675 hold ; and to do and perform all such official acts as he can do and perform." § 673. Certificates.— "Section 26. That the chief jus- tices, county commissioners, clerks of the county courts, and their deputies, shall have power to administer oaths of office, and all other oaths and affirmations, and give certificates thereof." § 674. Chief Justices Take Acknowledgments of Married Women.i-*o_"Section 26. That the chief justice of the county court shall have power to take acknowledgment and proof of all instruments of writing for the purpose of being recorded, and they shall also have power to examine and take the acknowledgment of married tvomeri to all deeds of their separate property, and all deeds to property for the sale of which their consent is required, in like manner and under the same rules and regulations as are provided for notaries public: and all acts so done by the chief justice of a county court in this state, shall have the same force and effect as if done by a notary public." Section 29 rept^als act of May 13, 1846. § 675. Effect of Above Act.— To the officers authorized under the act of ^May 12, 1846, to take acknowledgments and proof, to wit, notaries public and county clerks, and under the act of April 30, 1846, to take acknowledg- ments of married women, to wit, judges of supreme and district courts and notaries public, this act (March 16, 1848) added chief justices of county court, and during any vacancy in the office of the chief justice of county court, any two county commissioners. It repeals the act of May 13, 1846 (entitled "An act organizing county courts") authorizing county clerks to appoint deputies; but section 26 of this act (March 16, 1848) still author- ized the appointment of deputies. 140 P. D. 2.52; H. D. 2801. §§ 676-678 LAWS CONCEENING AUTHORITY OF OFFICERS. 286 § 676. Its Constitutionality. — It is questionable whether or not this act (March 16, 1848), in so far as it author- ized acknnwledQ;ments by chief justices of county courts, was constitutional. Section 24, article 7, of the con- stitution of 1845 (and all constitutions since, though not the constitution of 1836), provided that "Every law enacted by the legislature shall embrace but one ob- ject, and that shall be expressed in the title." Does the title of the act, "An act organizing county courts," sufficiently indicate that the duties of county judges shall include the taking of acknowledgments, they not being in any way connected with proceedings in court ?^** § 677. Object of Act Must be Single. — It is held that an act entitled "An act to regulate proceedings of the district court" was void in so far as it attempted to regulate proceedings in the supreme court. The court saying: "The object of this act is single and is expressed in the title, and its provisions cannot be construed to regulate proceedings in any other than the district courts." And this provision of the constitution is man- datory.^*^ It should be liberally congtrued.**^ § 678. Are Chief Justices Authorized to Take Acknowledg- ments of Married Women? — It seems that by the terms of this act a chief justice of the county court, besides be- ing authorized to take acknowledgments, would be ex- officio notary public. While the question as to the au- thority of the chief justice of the county court to take a married woman's acknowledgment is not raised in the case of Belcher v. Weaver,^'** the court holds the ac- knowledgment taken by him is valid. 141 See ante, § 666. 142 Cannon v. Hemphill, 7 Tex. 208; Byrnes v. Sampson, 74 Tex." 83, 11 S. W. 1073; Parker v. Parker, 10 Tex. 86; Breen v. Texas etc. Ey. Co., 44 Tex. 306; Giddings v. Antonia, 47 Tex. 556, 26 Am. Eep. 321; Morris v. State, 62 Tex. 741; Ex parte Fagg, 38 Tex. Cr. App. 573, 44 S. W. 294, 40 L. E. A. 212. 143 For brief, see Davis v. State, 61 Am. Dee. 337, note. 144 46 Tex. 295, 26 Am. Eep. 267. 287 LAWS CONCERNING AUTHOEITY OF OFFICERS. §§679-681 § 679. Authority as Ex-officio Notary. — Again, if the above act does not confer the authority on chief jus- tices of the county courts, it is doubtful if they did not still have that authority as ex-officio notaries public.**^ This act repealed the acts of December 20, 1836, Jan- uary 26, 1839, and May 13, 1846, organizing county courts; the first two by implication, the last by direct provision. ^4*^ And while the act of March 16, 1848, at- tempts to continue to make chief justices of the county court ex-officio notaries public, as this is not expressed in the title, there is some doubt as to whether or not this part of the statute is operative. As it is a virtual re- enactment of the substance of the old provisions, it seems that it might be operative.^*'' § 680. Were Clerks "Pro Tern" Authorized? — It is not clear whether or not a "pro tern" clerk was authorized by this act to take acknowledgments. § 681. Act of December 18, 1849'^*— County Clerks to Take Acknowledgments. — "An act to authorize the several clerks of the county courts in the state of Texas to take the separate acknowledgment of married women to deeds executed by them [took effect from passage]. Be it enacted by the legislature of the state of Texas, that the several clerks of the county courts be, and they are hereby autliorized to take the separate acknowledgment of deeds executed by married women, under the same rules and regulations as are prescribed for judges of the supreme or district courts, or notaries public, in an act entitled 'An act defining the mode of conveying property in which the wife has an interest,' approved April 30, 1846." 145 Ante, §§ 662-664. 146 Bryan v. Sundberg, 5 Tex. 42.3; Stirman v. State, 21 Tex. 736; Fayette Co. v. Faires, 44 Tex. 514; ante, §§ 623-625. 147 Ennis v. Crump, 6 Tex. 35. 148 3 L. T. 449; H. D. 178. §§ 682-684 LAWS CONCERNING AUTHORITY OF OFFICERS. 288 ^ 682. Act of December 29, 1849^49 (Taking Effect from Passag-e) — County Commissioners to Perform Duties of Chief Justice. — ''1. Be it euacted by the legislature of the state of Texas, that whenever the office of chief justice of any county court in this state is vacant, or whenever the chief justice of any county court in this state shall be absent from the county, or unable to discharge the duties of his office, or shall be disqualified from attend- ing to the duties of his office, by reason of interest, or from any other cause, then any two of the county com- missioners of such county shall have power to do and perform all the duties of chief justice of the county court." § 683. Act of February 9, 1856i5<>— Deputy Clerks.— "An act more particularly declaring the duties of deputy clerks. Section 2. Be it further enacted, that the dep- uties regularly appointed by the several clerks of the county courts of this state, have power to take the sep- arate acknowledgments of married women, acknowledg- ing the execution of deeds and other instruments of conveyance, executed by them, in the same manner as the same may be taken by said principal clerks, and that such deputy clerks have power to take proof of the execution of all deeds, mortgages and other instruments of writing that are^ by law required or allowed to be recorded. And to take the acknowledgments of the persons executing such deeds, mortgages, and other in- struments of writing, and to do and perform all other acts required to be done by said principal clerks. And that all such acts heretofore done by such deputy clerks are hereby declared to be as valid as if done by said principal clerks. And that this act take effect and be in force from and after its passage." § 684. Act of February 9, 18601^1— Validates.— "Section 2. Any grant, deed or other instrument of writing for 149 3 L. T. 459; H. D. 336. 150 4 L. T. 262. 151 4 L. T. 1437; Rev. Stats. 1895, art. 4666; P. D. 5021. 289 LAWS CONCERNING AUTHOEITY OF OFFICERS. § 685 the conveyance of real estate or personal property, or both, or for the settlement thereof in marriage, or sep- arate property, or conveyance of the same in mortgage, or trust to uses, or in conditions, as well as any or every other deed or instrument required or permitted by law to be registered, and which shall have been prior to the ninth day of February, 1860, registered or re- corded, shall be held to have been lawfully registered, with the full effect and consequences of existing laws; provided the same shall have been acknowledged by the grantor or grantors before any chief justice, or asso^ ciate justice, or clerk of the county court, or notary public in any county within the late republic or the now state of Texas, or judge of the department of Bra- zos, or any primary judge or judge of the first instance in 1835 or 1836, or proven before any such olficer by one or more of the subscribing witnesses thereto, and certified by such officer; whether such acknowledgment or proof shall have been made before any such ofidcer of the county where such instrument should have been recorded or not."^^^ § 685. Authenticated as Above and Afterward Recorded.*^* "Section 3. All such instruments which shall have been acknowledged or proven before any officer named in the preceding article, and shall have been afterward recorded in the proper county, or certified copies thereof, shall be evidence in the courts, as full and sufficient as if such acknowledgment had been taken or proof made in accordance with existing laws; but this article and the article preceding shall not be construed so as to effect or bind, in any manner, any person or party with constructive notice of the existence of any deed or othei instrument of writing as a recorded deed or instrument except in the future, and after the taking effect of this act, unless such pei*son or party would have been so 152 Post, §§ 1032-1037. IRS Rev. Stats. 1895, art. 4667; P. D. 5022. 19 §§ 6S6, 6S7 LAWS CONCEENING AUTIIOKITY OF OFFICERS. 290 affected, or boniul with snc-li notice, had this act never been passed. "^^* § 686. Act of April 6, 1861^ "•"•—Officers Authorized.— '^Vn act prescribiui;- the manner of authenticating' instru- ments for record [taking effect from passage]. Sec- tion 1. Be it enacted by the Legislature of the State of Texas, That the proof of every instrument of writing for record shall be by some one of the following oflflcers : First, when acknowledged or proven within the State before some Notary Public, Clerk of the County Court, or Judge of a Court of Record; second, when acknowl- edged or proven without this State, and within the Con- federate States of America, or their territories, or the United States or their territories, before some Judge of a, Court of Record having a seal ; third, when acknowl- edged or proven without the United States, or Confed- erate States, before some public Minister, Charge d'Af- faires, or Consul of the Confederate States. And in all cases the certificate of such acknowledgment or proof shall be attested under the official seal of the officer taking the same. That when any deed, transfer or other instrument of writing executed by the president of any railroad company, which has or may be incor- porated by the laws of this state, shall be attested by the seal of said company, it shall be considered suffi- ciently authenticated to authorize the Clerk of the County Court to record the same. "Section 2. That the provisions of all law^s so far as they can conflict with this act be and they are hereby repealed. "Section 3. That this act take effect and be in force from and after its passage." § 687. Effect of Above Act. — This act repealed the au- thority of all officers authorized by previous general 154 As to effect, see post, §§ 1032-1037. 155 5 L. T. 373. 291 LAWS CONCEENING AUTHORITY OF OFFICERS. § 688 acts,^^*' but probably not the special acts such as the act of May 8, 1846, authorizing- commissioners of deeds. ^^'^ While the question as to the authority of commissioners to act during the year 1868 was not raised nor discussed in the case of Davis y. Rooseyelt^^* the court said that "the law in force in 1868 did not re- quire a commissioner of deeds for another state to pro- vide himself with a seal," etc. In another case, it was held that a commissioner once appointed under this act would be perpetually qualified until recalled by a governor of Texas. *^® Again, a general law will not repeal a special law on the same subject.^®** Laws passed during secession were valid.*^* ^ 688. Act of January 14, 1862i«2_officers Authorized— Validates. — "An act supplemental and amendatory of an act entitled 'An act prescribing the manner of authen- ticating instruments for record,' approved April 6, 1861 [took effect from passage]. The proof of every instru- ment of writing for record, shall be taken by some one of the following ofiicers: First, when acknowledged or proven within the State before some Xotary Public, Clerk of the County Court, or his deputy, or Judge of a Court of Record ; when acknowledged or proven without this State and within the Confederate States of America, or their Territories, or the United States of America, or their Territories, before some Judge of a Court of Record having a seal; tliird, when acknowledged or proven "wdthout the Confederate States or United States be- fore some public minister. Charge d'Affaires, or Consul of the Confederate States; and in all cases the certifl- 156 Hernrlon v. Reed, 82 Tex. 6.51, 18 S. W. 66.5; McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691; ante, §§ 622-625, 648. 157 Post, § 729. 158 53 Tex. 314. 159 Thorn v. Frazer, 60 Tex. 261. 160 Monroe v. Arledge, 23 Tex. 481; Ellis v. Batts, 26 Tex. 704; City of Laredo v. Martin, 52 Tex. 562; ante, §§ 622-625. 161 Post, § 884. 162 5 L. T. 501; P. D. 5024. §§ 689-691 LAWS CONCEENING AUTHORITY OF OFFICERS. 292 cate of acknowledgment, or proof, shall be attested nn der the official seal of the officer taking the same; that when any deed, transfer, or other instrument of writ- ing, executed by the president of any railroad company which has been or may be incorporated by the laws of this State, shall be attested by the seal of said company ; it shall be considered sufficiently authenticated to au- thorize the Clerk of the County Court to record the same." Validates. — ^(2) All acts of deputy county clerks in taking acknowledgments or proofs of instruments of writing for record, since the passage of the act of April 6, 1861, are hereby made valid. Repeals.— P. D., art. 5025. The provisions of all laws, so far as they conflict with this act, be, and they are hereby, repealed. § 689. Constitution of ISGe^^*^— County Court Provided for.— The constitution of 1866, ratified on first Monday in June, 1866, provided for a court in each county, styled the "County Court," the judge of which shall be elected by the people. § 690. Act of October 25, 1866i64_county Courts Provided. The act of October 25, 1866, taking effect December 31, 1866, repealed by implication the previous acts making county judges ex-officio notaries public, but not the acts expressly authorizing them to take acknowledgments.^®^ It comprehends the whole subject matter of the organ- ization of county courts, and consequently, by implica- tion, repeals previous laws organizing same.^*^^^ This was a valid law.*®'^ § 691. Act of November 13, 1866i68_oflacers Authorized. "An act to amend the eleventh section of an act to pro- 163 5 L. T. 868. 164 5 L. T. 961. 165 Post, § 884. 166 Ante, §§ 633, 624. 167 Post, § 884. 168 5 L. T. 1128. 293 LAWS CONCEBNING AUTHORITY OF OFFICEES. § 692 vide for the registry of deeds, and other instruments in writing, approved May 12, 1846. Section 1. Be it en- acted by the legislature of the state of Texas, that sec- tion eleven of the above recited act, be so amended that it will hereafter read as follows: Proof, or acknowledg- ment of every instrument of writing for record, shall be taken by some one of the following officers: First, When acknowledged, or proven within the State, be- fore some Notary Public, or Clerk of the County Court of any County in the State. Second, When acknowl- edged, or proven without this State, and within the United States, or their Territories, before some Judge or Clerk of a Court of Record having a seal. Third, When acknowledged or proven without the United States before some Public Minister, Charge d'Affaires, or Consul of the United States, and in all cases the cer- tificate of such acknowledgment shall be attested under the official seal of the officer taking the same." § 692. Validity of Above Act — Amendment of Repealed Statute. — This purports to amend section 11 of act of March 12, 1846, which was repealed by the act of April 6, 1861. In this state it seems not to have been decided whether or not the amendment of a repealed statute is valid, and the decisions of other states are at variance. The difference may arise from the effect of their differ- ent constitutions. In Herndon v. Reed, 82 Tex. 650, while the above question was not raised, the court treated the amendment of said section 11 of said act of May 12, 1846, as valid.^*^'^ In New York, a statute purporting to amend a repealed statute "so as to read as follows" is operative without regard to the former statute.*'^® The legislature may amend an original act which has been amended and repealed, disregarding the 169 See, also, Quinlan v. Houston etc. Ry. Co., 89 Tex. 356, 34 S. W. 738. 170 Van Cliff v. Van Vichten, 55 Hun, 467, 8 N. Y. Supp. 760; People V. Board of County Commissioners, 77 Hun, 372, 28 N. Y. Supp. 871. § 693 LAWS CONCERNING AUTHOETTY OF OFFICEES. 294 amendatory and repealing; aet^^^ Act of March 22, 1890, enacting- that a bill of exceptions may be made a part of the record, "as provided by chapter 19 of the code," and repealing the act of February 3, 1886, which changed chapter 19, indicates an intention on the part of the legislature to revive chapter 19.*''^ On the other hand, it is held that the amendment of an unconstitu- tional act is void.*''^ And under the Indiana consti- tution an amendment must be of some existing statute, and a statute which purports to amend a section already amended or repealed, is void.^''* The same rule is held in lUinois,^''^ in Massachusetts,^''^ and in Nebraska.*'"'' § 693. Constitution of 1869^''*— (Ratified on First Monday in July, 1869)— District and County Clerks.— "Section 9. A clerk of the district court for each county shall be elected by the qualified electors in each county, who shall hold his office for four years, subject to removal by the judge of said court for cause, spread upon the min- utes of the court. The said clerk shall exercise such powers, and perform such duties, appertaining to the estates of deceased persons, lunatics, idiots, minors and persons of unsound mind, in vacation as may be pre- scribed by law; provided, that all contested issues of law or fact shall be determined by the district court. And the clerk of the district court shall be recorder for the county of all deeds, bonds and other instruments required by law to be recorded, and also ex-officio clerk of the police or county court; and by virtue of his office 171 Harper v. State, 109 Ala. 89, 19 South. 857. 172 Emigh V. State Ins. Co., 3 Wash. 122, 27 Pae. 106.3. 173 Cowley V. Town of Eushville, 60 Ind. 327. See Mitchell v. State, 19 Ind. 381. 174 Blackmore v. Dolan, 50 Ind. 194. 175 Louisville etc. Ey. Co. v. City of East St. Louis, 134 111. 656, 25 N. E. 962. 176 Commonwealth v. Kenneson, 143 Mass. 418, 9 N. E. 761. 177 State V. Benton, 33 Neb. 8.34, 51 N. W. 144. And see post, § 884. 178 7 L. T. 412. 295 LAWS CONCERNING AUTHOEITY OF OFFICERS. §§ 694,695 shall liave control of the records, papers, and books of the district and county or police court, and shall gen- erally perform the duties heretofore required of county and district clerks." § 694. Idem — Justices of Peace Commissioned Notaries. — "Section 20. Justices of the peace shall have such civil and criminal jurisdiction as shall be provided by law. And the justices of the peace in each county, or any three of them shall, constitute a court having such ju- risdiction, similar to that heretofore exercised by county commissioners and police courts, as may be pre- scril)ed by law. And when sitting as such court, the justice who resides at the county seat shall be the pre- siding justice. The times and manner of holding said courts shall be prescribed by law. Justices of the peace shall also be commissioned to act as notaries public. Justices of the peace shall also discharge all the duties of coroner, except such as by section twenty-one of this article are devolved upon constables." § 695. Act of August 8, ISTOi'**— Officers Authorized.— "An act authorizing clerks of the district courts, their deputies and notaries public, to take acknowledgments of deeds and other written instruments [taking effect from passage]. Section 1. Be it enacted by the legis- lature of the State of Texas, That clerks of the District Courts, their deputies and notaries public, are hereby authorized and empowered to take the acknowledgment of deeds and other written instruments required by law to 1)6 recorded in this State, and the certificate of any such officer over his official signature and seal of office that such instrument has been so acknowledged shall entitle the same to registration. "Section 2. That all laws in conflict herewith are hereby repealed, and that this act shall take effect from and after its passage." 17» 6 L. T. 223. §§ 696-700 LAWS CONCERNING AUTHORITY OF OFFICERS. 296 § 696. Not Repealed. — This act was not repealed by act of May 0, ISTl.'^^^ ^ 697. Act of August 13, 1870.^'^*— "An act to organize justice courts and connty courts. Section 16. Justices of the peace shall be commissioned by the governor to act as justices of the peace, in their respective pre- cincts, and also to act as notaries public. They shall also be authorized to take the acknowledgment of deeds and other instruments required by law to be recorded and certify the same for record. This act shall take effect from passage." § 698. Deputy Justices of the Peace Authorized. — "Section 29. It shall be lawful for justices of the peace to ap- point deputies to transact business and to sign their name to any documents pertaining to their business, either as justices or notaries public ; provided, however, that such deputies shall not sit in the trial of cases." § 699. County Court.— "Section 32. The county courts of this state shall be composed of the five justices of the peace, or any three of them elected in each county, who shall discharge the duties when sitting as such court, as were heretofore discharged by the county commission- ers and county courts of this state; and when sitting as such courts, the justices residing at the county seats of their respective counties shall be the presiding jus- tices thereof." § 700. Repealed When. — Section 29 was repealed April 4, 1871. ^'^^ The remainder of the above act was no doubt repealed by the act of June 16, 1876, in so far as it applied to county courts,^*'^ and by the act of August 17, 1876, as to justices' courts.*** 180 Herndon v. Reed, 82 Tex. 651, 18 S. W. 665. 181 6 L. T. 278. 182 6 L. T. 1038. 183 8 L. T. 853; and ante, §§ 622-625. 184 8 L. T. 990. 297 LAWS CONCERNING AUTHORITY OF OFFICERS. §§ 701-703 § 701. Act of August 13, 1870.is5_a^jj ^^^ ^^ validate certain official acts of county judges [taking effect from passage]. Section 1. Be it enacted by the legis- lature of the state of Texas, that every grant, deed, mort- gage, deed of trust, power of attorney, or other instru- ments required or permitted by law to be registered, that shall have been heretofore acknowledged by the grantor or grantors, maker or makers, before any county judge of any county in this state, or proven before such officer, by one or more of the subscribing witnesses, and certified by such officer be held to have been duly ac- knowledged or proved, with the full effects and conse- quences of existing laws." § 702. Validates.— "Section 2. Be it further enacted, that every such instrument required or permitted by law to be registered, which shall have been acknowl- edged or proven before such county judge, and which shall have been heretofore registered, shall be held to have been duly registered ; and all depositions taken be- fore a county judge shall be as valid as if taken before an officer authorized to take depositions. "Section 3. Be it further enacted, that this act take effect and be in force from and after its passage." This does not cover the period from August 13, 1870, to September 1, 1879. § 703. Act of May 6, 1 871 ^^<^— Officers Authorized.— "An act to further amend the eleventh section of 'an act to provide for the registration of deeds and other instru- ments of writing,' approved May 12, 1846 [taking ef- fect from passage]. Section 1. Be it enacted by the legislature of the state of Texas, that section 11 of the above recited act be so amended that it will hereafter read as follows : Proof or acknowledgment of every in- strument of writing for record may be taken before some one of the following officers; first, when acknowl- 185 6 L. T. 251. 180 6 L. T. 979. §§ 704, 705 LAWS CONCERNING AUTHORITY OF OFFICERS. 298 edood or proven within the state, before some notary pnblic, district cderk, or jnds^e of the supreme or district court in tlie state; second, when acknowledged or proven without the state, and within the United States or their territories, before some notary public, commissioner of deeds for this state, or before some judoe or clerk of a court of record having a seal ; third, when acknowledged or proven without the United States before some public minister, charge d'affaires, or consul or consular agent, agent of the United States, or notary public, and in all cases the certificate of such acknowl- edgment or proof, shall be attested under the official seal of the officer taking the same." This does not repeal act of August 8, 1870.*®'' ^ 704. Act of May 31, 1871 iss_itepeals Authority of Jus- tices of Peace. — "An act to repeal section twenty-nine of 'an act to organize the court of justices of the peace, and county courts, and to define their jurisdiction and duties,' approved August 13, 1870 [taking effect from passage]. Section 1. Be it enacted by the legislature of the state of Texas, that section twenty-nine of 'an act to organize courts of justices of the peace, and county courts, and to define their jurisdiction and du- ties,' approved August 13, 1870, which reads as follows, viz. : 'It shall be lawful for justices of the peace to ap- point deputies to transact business, and sign their names to any documents pertaining" to their business, either as justices or notaries public ; provided, however, that such deputies shall not sit on the trial of cases,' be, and the same is hereby repealed." § 705. Act of April 14, 1874i«» (Took Effect from Passage) — Validates Acts of District Clerks. — This act provided that all oflicial acts of clerks of the district courts, as justices 187 Herndon v. Reed, 82 Tex. 651, 18 S. W. 665. As to amend- ment of repealed statute, see ante, § 692. 188 6 L. T. 1038. 189 8 L. T. 94. 299 LAWS CONCEENIXG AUTHOEITY OF OFFICERS. §§ 706-709 of the peace, by virtue of an election held on the 2d day of December, 1873, heretofore done and performed by them in conformity with the law be, and the same are hereby, declared to be valid, etc. § 706. Act of April 20, 1874i»*>— District Clerks.— This act authorized clerks of the district courts elected jus- tices of the peace at the "late general election" to qual- ify and hold the office. § 707. Act of May 3, 1874*^^— (Took Effect Six Months After Passage) — Validates Acts of Notaries. — This act pro- vides that the acts of all duly appointed notaries in this state heretofore done and performed in pursuance to law shall be as valid and binding as though said no- taries had been duly commissioned by the governor and confirmed by the Senate. ^^^ § 708. Constitution of 1875i»-**— County Courts.— "Article 5, section 15. There shall be established in each county in this state a county court, which shall be a court of record ; and there shall be elected in each county, by the qualified voters, a county judge, who shall be well in- formed in the law of the state ; shall be a conservator of the peace, and shall hold his office for two years and until his successor sliall be elected and qualified, etc." § 709. Justices of Peace. — "Article 5, section 19. Jus- tices of the peace shall have jurisdiction in criminal matters of all cases where the penalty or fine to be im- posfMl by law may not be more than for two hundred dollars, and in civil matters of all cases where the amount in controversy is two hundred dollars or less, ex- clusive of interest, of which exclusive original juris- diction is not given to the district or county courts, and 190 8 L. T. 111. 191 8 L, T. 198. 192 Brown v. State, 43 Tex. 478. 193 8 L. T. 804; adopted September 6, 1875; ratified February 15. 1876. §§ 710, 711 LAWS CONCEENTNG AUTHORITY OF OFFICERS. 300 such otlier jurisdiction, criminal and civil, as may be pvovidod by laAv; and appeals to the county court, shall be allowed in all casi^s decided in justices' courts where the judgment is for more than twenty dollars, exclusive of costs, and in all criminal cases, under such regula- lations as may be prescribed by law. And the justices of the peace shall be ex-officio notaries public ; and they shall hold their courts at such times and places as may be provided by law." § 710. Act of May 25, 1876i»^— County Clerks.— «An act to define and regulate the duties of county clerks throughout the state [taking effect from passage]. Sec- tion 4, That the county clerks are hereby required to keep the oflfices at the county seats of their respective counties, and give their personal labor, attendance and supervision to the duties of said office, and in all cases where the said clerks do not reside at the county seats of their respective counties, they are hereby required to have one or more of their deputies residing at said county seats, and all deputies appointed in accordance with this act, shall have power to do and perform all other acts that may be lawfully performed by the county clerks." § 711. Idem. — "Section 5. That the county clerks of the several counties of this state, or their deputy or deputies, shall have power, and it shall be their duty, when applied to for that purpose, to take the separate acknowledgment of married women, in all cases where such acknowledgment is required by law to be taken, to the execution of any deed or other instrument in writ- ing, or conveyance executed by them, and to take the acknowledgment of all other persons to deeds or other written instruments or conveyances, and to take proof by witnesses of all such deeds, written instruments or conveyances, which are required or permitted by law to be so acknowledged or proven for record; and it 194 8 L. T. 846. 301 LAWS CONCERNING AUTHORITY OF OFFICERS. §§ 712-716 shall also be their duty to record, in accordance with the registration laws now or hereafter in force, all such deeds, mortgages, deeds of trust or any other instru- ments in writing, or judgments, which may be permit- ted or required by law to be recorded." § 712. Act of June 16, 1876i»''— County Courts.— The act of June 16, 1876, organizing county courts, re-enacting article 5, section 15, of the constitution of 1875^^^ pro- vided for a county court in each county (which shall be a court of record), with one judge. It does not provide for his taking acknowledgments and proof of deeds, etc. § 713. Act of August 17, 1876^^'' — Justices of Peace.— Sec- tion 28 of this act provided that "justices of the peace shall be commissioned by the governor to act as justices of the peace in their respective precincts, and also to act as notaries public." § 714. Revised Statutes of 1879, Article 1535— Justices Ex- officio Notaries. — "Each justice of the peace shall be com- missioned as justice of the peace of his precinct and ex- officio notary public of his county, and shall take the oath of ofl&ce prescribed in the constitution, and give the bond elsewhere prescribed for notaries public." § 715. Revised Statutes of 1895, Article 1564 — Justices Ex- officio Notaries. — "Each justice of the peace shall be com- missioned as justice of the peace of his precinct and ex- officio notary public of his county, and shall take the oath of office prescribed in the constitution and give the bond prescribed by law." ^ 716. Revised Statutes of 1 89 5 ^o**— Officers Authorized to Take Acknowledgments, etc. — The acknowledgment or proof of an instrument of writing for record may be 105 8 L. T. 853. 196 Ante, § 708. 107 8 L. T. 1001. 108 Article 4613; Act of May 6, 1871; P. D. 7418. § 717 LAWS CONCEENING AUTHOETTY OF OFFICEES. 302 made within this state before either: 1. A clerk of the district court; 2. A judge or clerk of the county court; 3. A notai'y public. (Also a justice of the peace as ex-officio notary public.)*^^ § 717. Effect of Above Statute. — While this is desig- nated as the act of May 6, 1871, in Revised Statutes, it is not identical with it.^**** The authority of other offi- cers is revoked by section 4, of Final Title to Revised Statutes of 1879 and 1895, which repeals all laws of a general nature not included in Revised Statutes (with exceptions contained in sections 5 to 18 of said Final Title).^^* 199 Ante, § 715. For officers authorized to act without the state, see chapters 18 and 19. 200 See ante, § 703. 201 Talbert v. Dull, 70 Tex. 679, 8 S. W. 530. For construction of statutes, see ante, §§ 107-110. 303 WHO MAY TAKE ACKNOWLEDGMENTS. CHAPTER XVIII. WHO MAY TAKE ACKNOWLEDGMENTS AND PROOF WITH- OUT THE STATE AND WITHIN THE UNITED STATES. § 718. Act of February 3, 1841— Did not authorize aeknowledgments without the state. § 719. Act of February 5, 1841 — Ackuowledgmeuts without the state authorized. § 720. Query, as to aeknowledgments and proof by married women. § 721. Certificate of conformity required. § 722. Act of April 30, 1846 — Married women's acknowledgments authorized. § 723. Married women 's acknowledgments authorized without the state. § 724. Property applied to. § 725. Former law repealed. § 726. As to repeal of law of February 5, 1841. § 727. Certificates of conformity not required. § 728. Authority revoked when. § 729. Act of May 8, 1846 — Commissioners of deeds authorized. ' g 730. Idem. § 731. Remained in force how long. § 732. Act of Ma}' 12, 1846— Acknowledgments without state again authorized. § 733. Repealed conflicting laws. § 734. Certificates of conformity not required. § 735. Remained in force how long. § 736. Effect on prior acts. § 737. Act of April 6, 1861 — Acknowledgments without state again authorized. § 738. Conflicting laws repealed. § 740. Effect on prior laws. § 741. Act of December 31, 1861 — Commissioners of deeds. § 742. Remained in force how long. § 743. Act of January 14, 1862— Acknowledgments without state again authorized. § 744. Act of November 13, 1866— Judges and clerks of courts of record without the state authorized. § 745. Force and effect of above act. § 746. Act of August 8, 1870 — Are district clerks authorized? § 747. Act of May 6, 1871— Acknowledgments without the stato again authorized. §§ 718, 719 WHO MAY TAKE ACKNOWLEDGMENTS. 304 § 748. Efifect of this act. § 749. Act of April 27, 1874 — Validates acknowledgments taken be- fore officers now authorized. § 750. Force and effect of above act. § 751. Act of July 28, 1876— Validates defective certificates of ac- knowledgments of married women. § 752. Kevised Statutes of 1879 and 189.5— Acknowledgments with- out the state again authorized. § 753. Judges of courts of record omitted. § 754. Commissioners of deeds authorized. § 755. Act of March 23, 1885, and Eevised Statutes of 1895— Com- missioners of deeds again authorized. For acknowledgments and proof taken without the United States, see chapter 19. For requirements of acknowledgments and proof and cer- tificates thereof taken abroad, see ante, chapter 14, § 718. Act of February 3, 1841— Did not Authorize Ac- knowledgments Without the State.— The act of February 3, 1841, was the first act providing for separate acknowl- edgments of married women, but it made no provision for the taking of their acknowledgments without the state. * § 719. Act of February 5, 1841^ (Taking Effect from Pas- sage)— Acknowledgments Without the State Authorized.— This act, entitled "An act of limitations," was the first act to provide for the taking of acknowledgments and proof without the state. Section 21 is as follows : "Ev- ery grant, deed, or instrument, mentioned in the twen- tieth section of this act, hereafter to be made and re- corded, shall be duly registered in the office of the proper county, upon the acknowledgment of the parties or party signing the same before the register, or clerk of the county court of that county, or chief justice of the county or notary public thereof, or any associate or chief justice of the supreme court, or proved by a sub- scribing witness before any such officer, and certified by him for record; and if it be so acknowledged and cer- tified, there need be no subscribing witnesses; and the 1 Ante, § 617. 2 2 L. T. 633; P. D. 4978; H. D. 2777. 305 AUTHORITY WITHOUT THE STATE. § 720 register shall certify thereon the day when the same shall be delivered for registration, give a receipt there- for if required, and record the same within one month thereafter, under the forfeiture to the party injured, for neglecting either particular, of five hundred dollars, and accumulative liability to such party, for recovery of vin- dictive damages; and such grant, deed or instrument, so delivered for registration, shall, according to its na- ture and character, have full effect, validity, and pri- ority, from and after its date of presentation or delivery for registration, against subsequent purchasers and creditoi-s; and such acknowledgment or probate certifi- cate and registration, or either, as between the parties and their legal representatives, and all subsequent pur- chasers and creditors with actual notice, or reasonable information of the grant, deed or instrument, shall not be deemed requisite in order to its full effect, validity and priority, according to its intrinsic nature; if any such grant, deed or instrument, executed abroad, shall be acknowledged or proved by two subscribing wit- nesses, before any circuit or supreme judge, or chan- cellor of the United States of North America certified by him, with the certificate of the chief magistrate of the nation as to the official character of him taking the acknowledgment or probate; and the great seal of the United States, thereto annexed, or if so acknowledged or proved before any judge of a supreme court of rec- ord, or in any such court of any other nation or king- dom, and certified by such judge, or the record thereof exemplified, and either so counter-certified by the chief magistrate or sovereign of such other nation or king- dom, under the great seal ; or by the consul of this re- public, or minister resident there; the same shall be ad- mitted to record, and shall be good and effectual, as aforesaid, from and after registration." § 720. Query, as to Acknowledgments and Proof by Mar- ried Women. — There is a question as to whether or not this act authorized the taking of acknowledgments of 20 T §§ 721, 722 WHO MAY TAKE ACKNOAVLEDGMENTS. 306 married women without the state. It is broad enough in its terms, not only to include acknowledgments of married women abroad, but also proof of their instru- ments by subscribing witnesses. xVnd while it is very questionable if their acknowledgments taken abroad under this act would be valid,^ it seems clear that proof of their instruments, under this act, by subscribing wit- nesses, would be invalid.'* We have found no case di- rectly in point. If such proof had been authorized, it would have been revoked by act of April 30, 1846.^ § 721. Certificates of Conformity Required. — Certificates of conformity by the President of the United States as to the official character of the officer was required by this act.® It remained in force as to single persons until the taking effect of the act of May 12 (July 13), 1846, and as to married women, if it applied to them, until the act of April 30 (June 22), 1846, took effect. § 722. Act of April 30, 1846* (Taking Effect from Passage) — Married Women's Acknowledgments Authorized. — "Section 1. Be it enacted by the legislature of the state of Texas, that when a husband and his wife have signed and sealed any deed or other writing purporting to be a convey- ance of any estate or interest in any land, slave or slaves, or other effects, the separate property of the wife, or of the homestead, of the family, or other property exempted by law from execution, if the wife appear be- fore the judge of any supreme or district court or notary public, and being privately examined by such officer apart from her husband, shall declare that she did freely and Avillingly sign and seal the said writing, to be then 3 Ante, §§ 627-631, 652-656. 4 Utzfield V. Bodman, 76 Tex. 361, 13 S. W. 474; Cole v. Bammel, 62 Tex. Ill; Wadkins v. Watson, 86 Tex. 198, 24 S. W. 385, 22 L. E. A. 779; 4 Eose's Notes, p. 616. 5 Post, § 725. 6 Texas Land Co. v. Williams, 51 Tex. 51; ante, §§ 206-210. 7 See ante, §§ 627-631. 8 2 L. T. 1462; P. D. 1003; H. D. 174. 307 AUTHORITY WITHOUT THE STATU. § 723 shown and explained to her, and wishes not to retract it, and shall acknowledge the said deed or writing so again shown to her to be her act, thereupon such judge or notary shall certify such priyy examination, acknowl- edginent and declaration, under his hand and seal, by a certificate annexed to said writing to the following effect or substance, yiz. : " 'State of Texas, County of " 'Before me. judge of, or notary public of county, personally appeared , wife of parties to a certain deed or writing bearing date on the day of , and hereto annexed, and haying been examined by me priyily and apart from her hus- band, and haying the same fully explained to her, she, the said — ■ , acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed and deliyered the same, and that she wished not to retract it; to certify which, I hereto sign my name and affix my seal, this day of , A. D. .' "But any certificates showing that the requisites of the law haye been complied with shall be as yalid as the form here prescribed ; and such deed or conyeyance, so certified, shall pass all the right, title and interest which the husband and wife, or either of them, may haye in or to the property therein conveyed." § 723. Married Women's Acknowledgments Authorized Without the State.— "Section 2.® Be it further enacted that when a husband and wife haye signed and sealed any deed, of the character described in the first section of this act, out of this state, but within the United States or any of their territories, if the wife appear before the judge of any court of record haying a seal, in any of said states or territories, and be examined, and make the declarations and acknowledgments provided for in said section, and such judge shall make a certificate 9 H. D., art. 175. §§ 724-726 WHO MAY TAKE ACKNOWLEDGMENTS. 308 thereof in the manner provided for in said section, and attest the same under his hand and the seal of his court, such deed shall have the same force and effect as if the same had been done in this state, before any of the oflfl- cers named in said section; and when any such deed shall have been signed and sealed out of the United States, such examinations, declarations and acknowl- edgments may be taken or made before any public min- ister, charg^ d'affaires, or consul of the United States, and the certificate of such minister, charg^ d'af- faires, or consul, in the manner and form provided for in said section, and attested under their hand and official seal, shall have the force and effect as if such examination, declaration and acknowl- edgment had been taken or made and certified in this state, before any of the officers named in said first sec- tion." § 724. Property Applied to.— "Section 3.*^ Be it fur- ther enacted that this act is intended to apply to the property mentioned in the twenty-second section of the seventh article of the constitution, as well as to the property owned or claimed by the wife before marriage, and that acquired afterward by purchase, gift, devise or descent." § 725. Former Laws Repealed. — "Section L^^ Be it further enacted, that all former laws and parts of laws concerning the mode of conveyance of property in which the wife has an interest, be and the same are hereby re- pealed." § 726. As to the Repeal of the Act of February 5, 1841.— It is not clear whether or not this act repeals the act of February 5, 1841, in so far as that act may authorize any circuit or supreme judge or chancellor of the United 10 H. D., art. 176. 11 H. D., art. 177. 309 AUTHOEITY WITHOUT THE STATE. §§ 727-729 States to take acknowledgments of married women without the state. ^^ § 727. Certificates of Conformity not Required. — By this act (April 30, 1846), and subsequent to this time, no cer- tificate of conformity was required.^^ § 728. Authority Revoked When. — The authority of the oflBcers authorized by this act to take acknowledgments of married women without the state and within the United States, to wit, judges of courts of record, was not revoked until the adoption of Kevised Statutes of 1879, September 1st, but in the meantime the power was extended to additional officers by the acts of May 8, 1846, November 13, 1866, and May 6, 1871.** After the adoption of Revised Statutes of 1879, judges were not authorized to authenticate instruments executed abroad.*** § 729. Act of May 8, 1846i« (Taking Effect June 22, 1846) — Commissioners of Deeds Authorized. — "Section 1. Be it enacted by the state of Texas, that the governor of the state of Texas is hereby authorized to appoint and com- mission one or more persons in each or such of the other states of the United States, or the District of Co- lumbia, as he may deem expedient, which commission- ers shall continue in office during the pleasure of the governor, and shall have the authority to take the ac- knowledgments and proofs of the execution of any deed, mortgage, or other conveyance of lands, tenements, or hereditaments, and also to take the examination of mar- ried women as to their relinquishment of any right, title 12 See ante, §§ 641 and 627-631. 13 Texas Land Co. v. Williams, 51 Tex. 51; Carpenter v. Dexter, 75 U. S. (8 Wall.) 513, 19 L. ed. 426; Century Digest, vol. 1, p. 1000, See ante, §§ 206-210. 14 Ante, §§ 652-656. 16 Talbert v. Dull, 70 Tex. 679, 8 S. W. 530. 16 2 L. T. 1493; P. D. 3762; H. D. 120. §§730,731 WHO MAY TAKE ACKNOWLEDGMENTS. 310 or interest which they may have in any lands lying or being in this state." § 730. Idem.— "Section 2.^^ Be it further enacted, that any contract, letter of attorney or other writing, under seal, to be used or recorded in this state, and such acknowledgment or proof taken or made in the manner directed by the laws of this state, and certified by any one of said commissioners, before whom the same shall be taken or made, under his seal, which cer- tificate shall be indorsed on or annexed to said deed or instrument aforesaid, — shall have the same effect and be as good and valid in law for all purposes as if the same had been made or taken as now required by law." § 731. Remained in Force How Long. — This act was not repealed by the act of May 12 (July 13), 1846.^^ It re- mained in force and authorized commissioners to act at least to the taking effect of the act of April 6, 1861, and probably to the adoption of the Revised Statutes of 1879. ^'^ The said act of April 6, 1861, provided that proof of every instrument, etc., shall be (when taken from without this state and within the United States and Confederate states) before some judge of a court of record having a seal. While the question as to the au- thority of commissioners to act during the year 1868 was not discussed or raised, in the case of Davis v. Roosevelt, 53 Tex. 314, it seems to have been taken for granted, the court saying, that "the law in force in 1868 did not require a commissioner of deeds for other states to provide himself with a seal," etc. In another case it was held that a commissioner once appointed un- der this act, would be perpetually qualified until re- called by a governor of Texas, his term not expiring with that of the governor who appointed him. In this 17 H. D. 121. 18 Monroe v. Arledge, 23 Tex. 481; Wren v. Howland (Tex. Civ. App.), 75 S. W. 894. 19 Article 542. 311 AUTHOEITY WITHOUT THE STATE. §§ 732-734 case a commissioner for the state of Georgia had taken the acknowledgment in the year 1860.^^ Again, this act, May 8, 1846, is a special act, and the act of April 6, 1861, is a general act. A general law will not be held to repeal a special law on same subject.^^ Under this act no certificate of conformity was required.^^ § 732. Act of May 12, 184623 (Took Effect July 13, 1848), — Acknowledgment Without the State Again Authorized. — "Section 11. Proof or acknowledgment of every instru- ment of writing for record, shall be taken by some one of the following officers : First, when acknowledged or proven within the state, before some notary public or clerk of the county court of any county in the state. Second, when acknowledged or proven without this state, and within the United States or their territories, before some judge of a court of record having a seal. Third, when acknowledged or proved without the United States, before some public minister, charge d'affaires, or consul of the United States; and in all cases the cer- tificate of such acknowledgment or proof, shall be at- tested under the official seal of the officer taking the same." § 733. Repealed Conflicting Laws.— "Section 19. All laws and parts of laws coutlicting with the provision of this act, be, and the same are hereby, repealed." § 734. Certificates of Confoimity not Required. — Under this act (and thereafter) certificates of confoi'iuity were not required.^* 20 Thorn v. Frazer, 60 Tex. 261. 21 Ellis V. Batts, 26 Tex. 704; City of Laredo v. Martin, 52 Tex. 562; Monroe v. Arleclge, 23 Tex. 481. But see December 3, 1861; post, § 742. 22 See ante, §§ 206-210. 23 2 L. T. 1549; P. D. .5011; H. D. 2794. 24 Texas Land Co. v. Williams, 51 Tex. 51; Carpenter v. Dextor, 75 U. S. (8 Wall.) 513, 19 L. ed. 42G; Century Digest, vol. 1, p. 1000. §§ 735-737 WHO MAY TAKE ACKNOWLEDGMENTS. 312 § 735. Remained in Force How Long. — It remained io force and antliorized judges of courts of record to act nntil adoption of Revised Statutes of 1879, which omit- ted them, but the authority was in the meantime ex- tended to other officers by the acts of November 13, 18C(i, and May 6, 1871.^^ After the adoption of the Revised Statutes of 1879 judges were not authorized to authenti- cate instruments executed abroad.^ § 736. Effect on Prior Acts. — It does not repeal the act of May 8, 1846, authorizing commissioners of deeds.^'' For acknowledgments without the state and within the United States it authorized the same officers as the act of April 30, 1846. With the above exceptions, it revokes the authority of all other officers than those named therein.^^ § 737. Act of April 6, ISBl^^ (Taking Effect from Passage) — Acknowledgments Without the State Again Authorized. — "Section 1. Be it enacted by the legislature of the state of Texas, that the proof of every instrument of writing for record shall be by some one of the following officers: First, when acknowledged or proven within the state by some notary public, clerk of the county court, or judge of a court of record; second, when ac- knowledged or proven without this state and within the Confederate states of America, or their territories, or the United States of America or their territories, be- fore some judge of a court of record having a seal ; third, when acknowledged or proven without the United States or Confederate states, before some public minis- ter, charge d'affaires or consul of the Confederate states : And in all cases the certificate of such acknowl- edgment or proof shall be attested under the official 25 See ante, §§ 652-656. 26 Talbert v. Dull, 70 Tex. 679, 8 S. W. 530. 27 Monroe v. Arledge, 23 Tex. 481. 28 Ante, §§ 622-626, 646. 29 5 L. T. 373. 313 AUTHORITY WITHOUT THE STATE. §§ 738-742 seal of the officer taking the same. That when any deed, transfer, or any other instrument of writing exe- cuted by the president of any railroad company, which has or may be incorporated by the laws of this state, shall be attested by the seal of said company, it shall be considered sufficiently authenticated to authorize the clerk of the county court to record the same." § 738. Conflicting Laws Repealed. — "Section 2. That the provisions of all laws, so far as they conflict with this act, be and are hereby repealed." § 740. Effect on Prior Laws. — This act repealed the au- thority of all officers authorized by previous general acts, but probably not by special acts such as the act of May 8, 1846.^® And it seems from the case of Monroe V. Arledge, 23 Tex. 481, that the act of May 8, 1846, would be a special act. § 741. Act of December 31, 1861"^ (Taking Effect from Passage) — Commissioners of Deeds for Indian Territory. — This act authorized the governor of Texas to appoint a suit- able number of persons in the Choctaw, Chickasaw, Cherokee and Creek nations of Indians not to exceed four in each nation, commissioners of deeds, etc., who shall be authorized to take acknowledgments of deeds, etc., including acknowledgments of married women, as required by the laws of this state. They shall procure and use a seal with a star of five points in the center, and the words "Commissioners of the state of Texas" engraved thereon. § 742. Remained in Force How Long. — It seems that this act remained in force until the adoption of the Revised Statutes of 1879, and was repealed by not being incor- 30 Ante, § 687; McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691; Herndon v. Reed, 82 Tex. 651, 18 S. W. 665; Ellis v. Batts, 26 Tex. 704; City of Laredo v. Martin, 52 Tex. 562. 31 5 L. T. 545. §§ 743-745 WHO MAY TAKE ACKNOWLEDGMENTS. 314 porated therein. ^^ In the ease of Davis v. Roosevelt,^^ in disenssino- this act, tlie court says : "There was such a statute in force in 1868, in regard to commissioners for the Choctaw, etc., Indians, and there is now such a statute in regard to commissioners generally." (This decision was rendered in 1880.) Final Title, section 4, of the Revised Statutes, repeals only laws of a general nature, not incorporated therein, and if the above act was repealed, it must be because it was of a general na- ture. A similar act was held to be a special act in Mon- roe V. Arledge.^"* § 743. Act of January 14, 1862^^ — Acknowledgments Without the State Again Authorized. — This act is identical with, and a re-enactment of, the act of April 6, 1861, in so far as it affects acknowledgments taken without the state. ^® § 744. Act of November 13, 1866 (Taking Effect from Passage)-*^' — Judges and Clerks of Courts of Record Without the State Authorized. — This act amending section 11 of act of May 12, 1846, provided that every instrument of writing for record shall be acknowledged or proven for record without this state and within the United States or their territories before some judge or clerk of a court of record having a seal. § 745. Force and Effect of the Above Act. — By this act it is seen that a clerk as well as a judge may act. It remained in force to the adoption of Revised Statutes of 1879, but the authority was extended in the mean- time to other ofllcers by act of May 6, 1871. It amends a repealed statute.^* 32 Final Title, Revised Statutes of 1879, § 4; Talbert v. Dull, 70 Tex. 679, 8 S. W. 530. 33 53 Tex. 314. 34 23 Tex. 481. See ante, § 731. 35 P. D. 5024; 5 L. T. 501. 36 See ante, § 737. 37 5 L. T. 1128. 38 For effect of same, see ante, § 692. 315 AUTHOKITY WITHOUT THE STATE. §§ 746-749 § 746. Act of August 8, ISTO^^— Are District Clerks Au- thorized ?— This act authorizing district clerks, their dep- uties and notaries, in general terms to take acknowledg- ments and proof, probably does not apply to such offi- cers without this state. Though district clerks gener- ally, being clerks of courts of record, were no doubt au- thorized to take acknowledgments without this state, by the above act of 1866. § 747. Act of May 6, 1871 (Taking Effect from Passage) ^o — Acknowledgments Without the State Again Authorized. — This act provides that acknowledgments or proof of in- struments for record may be taken without this state and within the United States and their territories before a notary public, commissioner of deeds for this state, or before a judge or clerk of a court of record having a seal. § 748. Effect of This Act.— Under this act an acknowl- edgment taken in the state of Louisiana before a re- corder and ex-offlcio notary public, in 1878, was suffi- cient, though not signed as notary.^^ It does not repeal previous laws.^^ It was amended by article 4306 of the Revised Statutes of 1879.^^ § 749. Act of April 27, 1874 (Taking Effect from Pas- sage) ^^ — Validates Acknowledgments Taken Before Officers Now Authorized. — This act provided that every deed, etc., permitted by law to be recorded that shall have been ac- knowledged or proven in the manner prescribed by law, without the state and within the United States and their territories, before any one of the officers in such cases now authorized by law to take such acknowledg- ments or proofs, and which shall have been duly certi- 39 6 L. T. 223. 40 6 L. T. 979. 41 Wilson V. Simpson, 68 Tex. 313, 4 S. W. 839. 42 Herndon v. Reed, 82 Tex. 6.51, 18 S. W, 665. 43 Talbert v. Dull, 70 Tex. 679, 8 S. W. .530. 44 8 L. T. 154. §§ 750-752 WHO MAY TAKE ACKNOWLEDGMENTS. 316 fied by siicli officer, shall be held to have been duly ac- kuowledo-ed or proven; and if heretofore registered, shall be held to be duly registered ; but shall not be con- strued as to give it any right acquired prior to its pas- sage. § 750. Force and Effect of Above Act. — This act contin- ues in force.*^ It cures former want of authority in no- tary. ^^ In 1847 a notary residing in Mexico was not authorized to take acknowledgments, and the validating statute of 1874 only validated acknowledgments of offi- cers residing in the United States.*'' § 751. Act of July 28, 1876 (Taking Effect November 19, 18764S— Validates Defective Certificates of Acknowledgments of Married Women.— This act provided that any certifi- cates of conveyances of property in which a married woman has an interest heretofore taken by any officer authorized by the laws of this state to take acknowledg- ments, when such certificate is invalid, because the same is wanting in any word or words necessary to be con- tained in such certificate by the requirements of stat- utes, shall nevertheless be as valid and binding as if in conformity to law ; provided, that such certificate shall show on its face that the married woman was exam- ined by the officer taking the acknowledgment, separate and apart from her husband, having the same fully ex- plained to her, she declared that she had willingly signed the same, and that she did not wish to retract it. It continues in force.*^ § 752. Revised Statutes of 1879 and 18955»— Acknowledg- ments Without the State Again Authorized. — By this act 45 See Final Title, section 7, Eevised Statutes of 1895. 46 Baker v. Wescott, 73 Tex. 131, 11 S. W. 157; McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691. 47 Birdseye v. Eogers (Tex. Civ. App.), 26 S. W. 843. 48 8 L. T. 897. 49 See Final Title, section 7, Eevised Statutes of 1895. 50 Articles 4306 and 4614; P. D. 7418. 317 AUTHORITY WITHOUT THE STATE. §§ 753-755 proof of acknowledgment of an instrument of writing for record may be made without this state and within United States or their territories before either a clerk of a court of record having a seal, a commissioner of deeds duly appointed under the laws of this state, and a notary public. § 753. Judges of Courts of Record Omitted. — It is seen that judges of courts of record are omitted, and that the act authorizing judges of courts of record to take ac- knowledgments being of a general nature, and not in- corporated in Revised Statutes of 1879 and 1895, was repealed by Final Title, section 4.^^ § 754. Article 542, Revised Statutes of 1879 (Taking Ef- fect September 1, 1879)^- — Commissioners of Deeds Authorized. The governor of the state of Texas is hereby authorized to name, appoint and commission one or more persons in each or any of the other states of the United States, or the District of Columbia, or in each or any of the territories of the United States, upon the recommenda- tion of the executive authority of said states, District of Columbia or said territories, as he may deem expe- dient, which commissioners shall hold office for two years or until their successors are qualified, and shall have authority to take the acknowledgments and proofs of the execution of any deed, mortgage or other convey- ance of any lands, tenements, or hereditaments, and also to take the privy examination, acknowledgment and declaration of married women as to all such instru- ments when executed by them. § 755. Act of March 23, 1885-'^-'* — Commissioners of Deeds Again Authorized. — The governor of the state of Texas is hereby authorized to name, appoint, and commission one 51 Ante, § 108; Talbert v. Dull, 70 Tex. 679, 8 S. W. 530. See ante, § 731. 52 P, D. 3762. 53 9 L. T. 718; article 618, Revised Statutes of 1895. § 755 WHO MAY TAKE ACKNOWLEDGMENTS. 318 or more persons in each or any of the other states of the United States, the District of Columbia, or in each or any of the territories of the United States, or in each or any foreign country, upon the recommendation of the executive authority of said states, District of Colum- bia, or territories or foreign country, as he may deem expedient, which commissioners shall hold office for two year's or until their successors are qualified, and shall have the authority to take acknowledgments and proofs of the execution of any deed, mortgage or other convey- ance of any lands, tenements, or hereditaments and dec- laration of married women as to all such instruments when executed by them. 319 WHO MAY TAKE ACKNOWLEDGMENTS. § 756 CHAPTER XIX. WHO MAY TAKE ACKNOWLEDGMENTS AND PEOOF WITH- OUT THE UNITED STATES. § 756. Act of February 5, 1841 — Acknowledgments without the United States authorized. § 757. Certificates of conformity required. § 758. Act of April 30, 1846— Acknowledgments of married women without United States. § 759. Former laws repealed. § 760. Act of May 12, 1846 — Acknowledgments taken abroad again authorized. § 761. Act of April 6, 1861, and January 14, 1862— Prior act amended. § 762. Authority of others revoked. § 763. Act of November 13, 1866 — Prior act amended. § 764. Act of May 6, 1871— Prior act amended. § 765. Act of July 28, 1876— Validates certain certificates of wife's acknowledgment. § 766. Eevised Statutes of 1879 and 1895— Acknowledgments abroad again authorized. § 767. Act of March 23, 1885, and Eevised Statutes of 1895 — Com- missioners of deeds authorized. For requirements of acknowledgments and proofs, and cer- tificates thereof, taken abroad, see ante, chapter 14. § 756. Act of February 5, 1841— Acknowledgments With- out United States Authorized. — The act of February 5 (March 17), 1841/ was the first to provide for acknowl- edgments and proof of conveyances of Texas lands ex- ecuted in foreign countries. This act provided that every deed hereafter to be made and recorded shall be duly registered, if acknowledged or proved by two sub- scribing witnesses without the United States, before any judge of a supreme court of record or in any such court of any other nation or kingdom, and certified by such judge, or the record thereof exemplified, and either so counter-certified by the chief magistrate or sovereign 1 H. D. 2777; P. D. 4978; 2 L. T. 633. §§ 757, 758 WHO MAY TAKE ACKNOWLEDGMENTS. 320 of such other nation or kingdom under the great seal, or bj the consul of this republic, or minister resident there; the same shall be admitted to record, and shall be good and effectual, as aforesaid, from and after registration.^ § 757. Certificates of Conformity Required. — Certificates of conformity were required by this act.^ It remained in force as to single acknowledgments until the act of May 12 (July 13), 1846, took effect extending the author- ity to all judges of courts of record having a seal. And it remained in force as to acknowledgments of married women, if it applied to them,* until the act of April 30 (June 22), 1846, took effect. § 758. Act of April 30, 1846— Acknowledgments of Mar- ried Women Without United States. — The act of April 30 (June 22), 1846,^ providing a method of conveying prop- erty in which the wife has an interest, provides that when a husband and wife have signed and sealed any deed out of the United States, the wife appeared before any public minister, charge d'affaires, or consul of the United States, and be privately examined by such of- ficer apart from her husband, and she declared that she did freely and willingly sign and seal the said writing to be then shown and explained to her and wishes not to retract it, and shall acknowledge the said deed or writing, so again shown to her, to be her act, and the certificate of such minister, charge d'affaires, or consul in the manner and form provided for in the first section of this act,** and attested under their hand and official seal, shall have the same force and effect as if made be- fore the proper officer in this state. '^ 2 Ante, §§ 719, 720. 3 Texas Land Co. v. Williams, 51 Tex. 51. 4 Ante, §§ 627-631, 652-656, 720. 5 H. D. 175; P. D. 1004; 2 L. T. 1462. 6 Ante, § 722. 7 See ante, § 723. 321 WITHOUT UNITED STATES. §§ 759-762 § 759. Former Laws Repealed — This repeals all former laws concerning the conveyance of property in which the wife has an interest, but quaere, Does it repeal the act of February 5, 1841?^ By this act and subsequent to this time no certificate of conformity was required,^ It remained in force until the Revised Statutes of 1879 went into force.^^ § 760. Act of May 12, 1846 — Acknowledgments Taken Abroad Ag-ain Authorized. — The act of May 12, 1846 ( tak- ing- effect July 13, 1846),^^ provided that proof of every instrument of writing for record shall be taken with- out the United States, before some public minister, charge d'affaires or consul of United States, and in all cases the certificate of acknowledgment or proof shall be attested under the oflftcial seal of such oflftcer. Such officers v>'ere authorized under this act until the passage of the act of April 16, 1861.*^ After the passage of this act certificates of conformity were not required.*^ § 761. Acts of April 6, 1861, and January 14, 1861— Prior Act Amended. — The acts of April 6, 1861, and January 14, 1862, amending act of May 12, 1846 (taking effect from passage),*^ provided that proof of eveiy instrument of writing for record shall be taken without the United States or Confederate states, before some public minis- ter, charge d'affaires or consul of the Confederate states, and a certificate of such acknowledgment or proof thereby attested by the official seal of such oflftcer. § 762. Authority of Others Revoked. — These acts re- voked the authority of the officers authorized by pre- vious acts, and authorized, instead of the foreign repre- 8 See ante, § 726. Texas Land Co. v. Williams, .51 Tex. 51; autc, § 727. 10 Ante, § 728. 11 2 L. T. 1544. 12 Herndon v. Eeed, 82 Tex. 651, 18 S. W. 665. 13 Texas Land Co. v. Williams, 51 Tex. 51; ante, § 734. 14 5 L. T. 373, 501. 21 §§ 763-765 WHO MAY TAKE ACKNOWLEDGMENTS. 322 seutatives of the United States, those of the Confederate states.^^ § 763. Act of November 13, 1866— Prior Act Amended.— The act of November 13, 18G6, taking effect from pas- sage,^« amending section 11 of act of May 12, 1846, pro- vided that proof of every instrument for record shall be taken by some one of the following officers: When without the United States, before some public minister, charge d'affaires, or consul of the United States, at- tested by certificate under seal. § 764. Act of May 6, 1871 — Prior Act Amended. — The act of May 6, 1871, taking effect from passage,^'' amend- ing section 11 of act of May 12, 1846, provided that proof or acknowledgment of every instrument for rec- ord may be taken without the United States before some public minister, charge d'affaires, consul or consular agent of the United States, or notary public, and at- tested under his official seal. § 765. Act of July 28, 1876— Validates Certain Certificates of Wife's Acknowledgments — The act of July 28, 1876, taking effect November 19, 1876,** provided that any certificate of acknowledgment or proof of conveyance of property in which a married woman has an interest heretofore taken by any officer authorized by the laws of this state to take acknowledgments and proofs, when- ever such certificate is invalid because the same is want- ing in any word or words necessary to be contained in such certificates by the requirements of the statutes, shall nevertheless be valid and as binding as if in con- formity to law ; provided that such certificate shall show on its face that the married woman was examined by the 15 Herndon v. Reed, 82 Tex. 651, 18 S. W. 665; Talbert v. Dull, 70 Tex. 679, 8 S. W. 530; McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691; ante, §§ 622-625. 16 5 L. T. 1128. 17 6 L. T. 979. 18 8 L. T. 897. 323 WITHOUT UNITED STATES. §§ 766, 767 officer taking the acknowledgment, separate and apart from her husband, and having the same fully explained to her she declared that she had willingly signed the same, and that she did not wish to retract it, or words to that ejffect.*^ This act remains in force.^® § 766. Revised Statutes of 1879 and 1895— Acknowledg- ments Abroad Again Authorized — The Revised Statutes of 1879,^^and 1895^^ provided that the acknowledg- ment or proof of an instrument of writing for record may be made without the United States before either: 1. A minister, commissioner or charge d'affaires of the United States resident and accredited in the country where the proof or acknowledgment is made; 2. A con- sul, general, consul, vice-consul, commercial agent, dep- uty consul or consular agent of the United States res- ident in the country where the proof or acknowledgment is made; 3. A notary public. § 767. Act of March 23, 188523— Commissioners ^f 3)eeds Authorized — "The governor of the state of Texas is hereby authorized to name, appoint and commission one or more persons in each or any of the other states of the United States, the District of Columbia, or in each or any of the territories of the United States or in each or any foreign country, upon the recommendation of the executive authority of said states. District of Columbia, or territories or foreign country as he may deem ex- pedient, which commissioners shall hold office for two years or until their successors are qualified, and shall have authority to take the acknowledgments and proofs of the execution of any deed, mortgage or other con- veyance of any lands, tenements, or hereditaments and declaration of married women as to all such instruments when executed by them." 19 Post, § 1049. 20 Final Title, § 7, Eevised Statutes of 1895. 21 Art. 4307. 22 Art. 4615. 2.'{ 9 L. T. 718; Rev. Stats. 1895, art. 618. WHO MAY TAKE ACKNOWLEDGMENTS. 324 CHAPTER XX. WHO MAY TAKE ACKNOWLEDGMENTS AND PROOF— NOTARIES. § 768. Notaries generally. § TfiD. Character — De facto and de jure officers. § 770. Eligibility. § 771. Appointment and qualification. § 772. Sufficient designation— "N. P." § 773. Jurisdiction and authority. § 774. Seals. § 775. Summary of statutes — Times when notaries were au- thorized to act. § 776. Decree of November 13, 1835 — First and second judges ex-officio notaries. § 777. Decree of January 20, 1836 — Primary judges ex-officio notaries. § 778. Constitution of 1836 — Laws remain in force. § 779. Act of December 20, 1836— Chief justices of county courts ex-officio notaries. § 780. Other notaries not authorized to take acknowledg- ments. § 781. Chief justices continued to act. § 782. Act of June 12, 1837 — Associate justices might act when. § 783. Act of November 16, 1837— Notaries provided for. § 784. Act of May 15, 1838— Notaries provided for. § 785. Act of January 19, 1839— Notaries omitted. § 786. Act of January 26, 1839— Chief justices of county courts authorized to exercise powers of notaries. § 787. Act of February 5, 1840 — Notaries authorized to take acknowledgments. § 788. Act of January 22, 1841— Associate justices to act when. § 789. Act of February 3, 1841 — Notaries omitted. § 790. Act of February 5, 1841— Validates want of authority. § 791. Act of January 3, 1842 — Associate justices to act when. § 792. Act of February 5, 1844, January 10, 1845 — Notaries provided for. § 793. Resolution of February 1, 1845— Notaries provided for. § 794. Constitution of 1845— Notaries provided for. § 795. Act of April 30, 1846— Notaries authorized to take ac- knowledgments of married women. § 796. Act of May 12, 1846— Authorized notaries to take ac- knowledgments. 325 NOTARIES (PUBLIC. § 768 § 797. Act of Mav 13, 1846 — Notaries provided for. § 798. Act of March 16, 1846 — Acknowledgments taken by chief and associate justices have same force as no- taries. § 799. Act of December 29, 1849— County commissioners to perform duties of chief justices. § 800. Act of February 9, 1860 — Validates want of authority. § 801. Act of April 6, 1861, January 14, 1862, March 5, 1863, November 13, 1866— Notaries authorized to take ac- knowledgments. § 802. Constitution of 1869— Justices commis:.i ' ^d notaries. § 803. Act of August 8, 1870— Notaries author, .ed to take ac- knowledgments. § 804. Act of August 13, 1870— Justices and their deputies authorized. § 805. Act of August 13, 1870— Validates. § 806. Act of May 6, 1871 — Notaries authorized to act beyond state. § 807. Act of May 31, 1871— Authority of deputy justices re- voked. §§ 808-810. Act of April 27, 1874, May 2, 1874, March 13, 1875- Validates want of authority. § 811. Constitution of 1875— Notaries provided for and jus- tices of the peace ex-officio notaries. § 812. Act of June 24, 1876 — Notaries authorized to take ac- knowledgments. § 813. Act of June 26, 1876— Office of notary public abolished. § 814. Act of July 28, 1876— Validates. § 815. Act of August 17, 1876 — Justices commissioned notaries. § 816. Act of April 11, 1879— Notaries provided for. § 817. Act of April 18, 1879— Validates certificates with de- fective seals. § 818. Revised Statutes of 1879— Justices ex-officio notaries. § 819. Act of April 1, 1881 — Notaries authorized to take ac- knowledgments. § 820. Act of February 20, 1885 — Notaries provided for. § 821. Act of April 1, 1887— Validates acts of William Veal. § 822. Act of April, 1889— Notaries provided for. § 823. Revised Statutes of 1895— Justices ex-officio notaries. § 824. Notaries authorized to take acknowledgments. § 824a. Act of April 1, 1903— Notaries provided for. For authority of notaries prior to 1836, see ante, § 6. § 768. Notaries— Generally. — While the office of notary public existed prior to the establishmeiit of provisional government, November 13, 1835,* and the registration 1 See chapter 1. § 769 WHO MAY TAKE ACKNOWLEDGMENTS. 326 act of December 30, 1836, no provision was made by this act for the continuance of such office except that chief justices of the county court were constituted ex-officio notaries public. The act of November 16, 1837, was the first to authorize the appointment of notaries; and while it seems that during that interval, and also from January 19, 1839, to February 5, 1841, notaries were not authorized to take acknowledgments and proofs of in- struments ' r writing for record,^ such unauthorized ac- knowledgii:. uts and registrations have since been cured by the validating statute of February 5, 1841, and Feb- ruary 9, 1860, except in cases where vested rights would be affected. The earlier cases construe this act (Feb- ruary 5, 1841) more liberally than the later. In Butler V. Dunagan^ it is held that section 20 applies to instru- ments previously recorded; and that while section 21 in terms applies to instruments thereafter made and re- corded, it should be liberally construed so as to also include instruments made and acknowledged before the passage of said act but not recorded until afterward. This is followed also by the court in Waters v. Spof- ford."* But in a later case by the civil court of appeals,® this construction is disapproved, the court holding that there is no provision for validating the acknowledg- ment of instruments made anterior to the passage of the act, and not recorded until after the said act, the whole object and intent of the law being to render legal the registry of instruments made before the passage of the act, and to provide for the acknowledgment and proof and proper registration of instruments executed after the passage of the act.^ § 769. Character — De Facto and de Jure Officers. — A no- tary is an officer whose duties in part are to take ac- 2 McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 695. 3 19 Tex. 565. 4 58 Tex. 122. 5 McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691. 6 See, also, Beaumont Pasture Co. v. Preston & Smith, 65 Tex. 456; Stramler v. Coe, 15 Tex. 213; and Validating Statutes, chapter 28. 327 • NOTAEIES PUBLIC. §§ 770, 771 knowleclgments and proof of instruments of writing for registration. A notary is a public officer, and if he is a de facto officer though not a de jure officer, his acts cannot be collaterallY attacked.'' But where a notary's term expires, he ceases to be a de facto officer, and his acts have no more force than those of private citizens.^ The signature of a notary having been proven, and his official character as notary being only collaterally in- volved in the issue, it is sufficient to show by parol evi- dence that he was acting as notary.^ But parol evidence is not admissible to show official character if directly in issue. ^^ A notary who accepts an incompatible office is not a de facto notary.*^ It is held that a de facto female notary may take an acknowledgment.^^ § 770. Eligibility. — The constitution and statutes seem to make no restrictions as to age or sex or citizen- ship of notaries. Under the common law a minor could be a notary.*^ § 771. Appointment and Qualification. — In Texas they are appointed by the Chief Executive with the advice and consent of the Senate. In some cases with the ad- vice and consent of two-thirds of the Senate. ^^ Under the act of May 13, 1846, amended by the act of March 5, 1863, requiring the appointment of notaries to be with the advice and consent of the Senate, their appointment without such advice and consent of the Senate would 7 Keeney v. Leas, 14 Iowa, 464; Hamilton v. Pitcher, 53 Mo. 334; Kunmengeiser v. Juncker, 28 La. Ann. 678; Bullene v. Garrison, 1 Wash. Ter. 587. 8 McKeller v. Peck, 39 Tex. 381. 9 Stooksberry v. Swann, 12 Tex. Civ. App. 66, 34 S. W. 369. 10 Gulf, Colorado & S. F. R. R. Co. v. Carter, 5 Tex. Civ. App. 678, 24 S. W. 1083; Stone v. Sledge (Tex. Civ. App.), 24 S. W. 697; Looney v. Adamson, 48 Tex. 619. 11 Biencourt v. Parker, 27 Tex. 562. 12 Third Nat. Bank of Chattanooga v. Smith, Tenn. Ch. App. 1102; ante, § 585. 13 United States v. Bixby, 10 Bliss, 523. 14 See post, §§ 783-822. §§772,773 WHO MAY TAKE ACKNOWLEDGMENTS. 328 be inoperative,*^ and the constitution of 1869 requiring justices of the peace to be commissioned notaries public did not repeal the above act authorizino- the appoint- ment of notaries nor aliolish such office.*^ The act of May 2, 1874, validated acknowledgments previously taken by notaries duly appointed by the executive though not confirmed by the Senate/'' As the subse- quent laws require the appointment of notaries to be with the advice and consent of the Senate, without such ratification by the Senate, their official acts would be inoperative.** § 772. Suflacient Designation "N. P." is a suificient designation of the official character.*^ A certificate by a primary judge, as such, who is ex-officio notary pub- lic, but does not sign as notary, is valid.^** § 773. Jurisdiction and Authority. — A notary's jurisdic- tion does not extend beyond the limits of the county for which he was appointed,^* but it has been held that a record would not be rendered invalid as notice by show- ing that the deed was acknowledged before a notary out- side of his county.^^ It has been held that a notary may correct mistakes while in office; even that the cer- tificate of acknowledgment of a married woman may be corrected if she has not in the meantime withdrawn her consent.^^ A later case held that the certificate to a deed of a married woman cannot be amended by the officer after it has passed out of his hands, without 15 Brown v. State, 43 Tex. 478. 16 Id.; Gilleland v. Drake, 36 Tex. 676. 17 Brown v. State, 43 Tex. 478. See "De Facto Officers," ante, § 585; Validating Statutes, chapter 28. 18 Brown v. State, 43 Tex. 478. 19 Glenn v. Ashcroft, 2 U. C. 449. 20 Wilson V. Simpson, 68 Tex. 313, 4 S. W. 839. 21 Beaumont Pasture Co. v. Preston & Smith, 65 Tex. 456. 22 Peterson v. Lowery, 48 Tex. 412. See "Presumptions," ante, §| 114, 595. 23 McKeller v. Peck, 39 Tex. 381. 329 XOTAEIES PUBLIC. §§ 774-776 re-examination but it was reversed by the supreme eourt.^ § 774. Seals. — No certificate of acknowledgment of a notary public is valid without the notarial seal. No other seal will supply the omission.^^ But an irregular notarial seal will be sufficient.^^ § 775. Summary of Statutes — Times When Notaries Were Authorized to Act. — From the following statutory enact- ments it seems that from December 20, 1836, to March 17, 1841, notaries were not authorized to take any ac- knowledgments; from March 17, 1841, to Eevised Stat- utes of 1895, they were authorized to take single ac- knowledgments within the state; from February 3, 1841, to March 17, 1841 (act of February 5, 1841), notaries were not authorized to take married women's acknowl- edgments; from March 17, 1841 (the taking effect of the act of February 5, 1841), to June 22, 1846, there is some question as to the authority of notaries to take the acknowledgments of married women; from June 22, 1846, to Revised Statutes of 1895, notaries were author- ized to take both joint and single acknowledgments within the state ; from May 6, 1871, to Revised Statutes of 1895, notaries public were authorized to take both single and joint acknowledgments without the state of Texas. ^'^ In many instances the want of authority was cured.^^ § 776. Decree of November 13, 1835— First and Second Judges Ex-Officio Notaries. — Under the provisional govern- 24 Stone V. Sledge (Tex. Civ. App.), 24 S. W. 697, and 87 Tex. 49, 47 Am. St. Rep. 65, 26 S. W. 1069. 25 McKeller v. Peck, 39 Tex. 387. 26 Muncie Nat. Bank v. Brown, 112 Ind. 477, 14 N. E. 358. See "Seals," chapter 13; "Ex-Officio Notaries," ante, § 586; "Chief Justices of the Count}^ Court," chapter 22; "Justices of the Peace," chapter 21. 27 For authority without the state, sec ante, §§ 718-767. 28 See chapter 28, and §§ 790, 800, 805, 808, 809, 810, 814, 817, 821. §§ 777-780 WHO MAY TAKE ACKNOWLEDGMENTS. 330 nient established November 13, 1835, the judiciary con- sisted of the first and second judge, the latter to act only in the absence of the first, was made a court of rec- ord for conveyances, and was constituted the notary public.^^ § 777. Decree of January 20, 1836 — Primary Judges Ex- Officio Notaries— The decree of January 20, 1830,^^ of the provisional government made primary judges ex- officio notaries public. § 778. Constitution of March 17, 1836 — Laws Eemain in Force. — The constitution of the republic of Texas adopted March 17, 1836, provided that the laws then in force shall remain in force until declared void, repealed, altered or expired by their own limitation.^^ § 779. Act of December 20, 1836— Chief Justices of County Courts Ex-Officio Notaries Public. — By the act of December 20, 1836 (taking effect from passage),^^ the first general registration law under the republic, no provision was made for the appointment of notaries except that this act made the chief justices of the several county courts ex-officio notaries public, and authorized them to re- ceive proof or acknowledgment of instruments, § 780. Other Notaries not Authorized to Take Acknowl- edgments — Other notaries were not authorized to take acknowledgments, at least until the act of November 16, 1837, and probably not until the act of February 5, 1841, took effect, but the registration (prior to February 5, 1841, and February 9, 1860), of instruments acknowl- edged before notaries was validated by acts of February 5, 1841,^^ and February 9, 1860,^^ except as to vested 29 Prov. Gov., arts. 5, 6; H. D. 18; 1 L. T. 910. 30 1 L. T. 1040, 1045. 31 1 L. T. 1074. 32 1 L. T. 1215; H. D. 2588. 33 Post, §§ 1018-1021. 34 Post, §§ 1024-1037. 331 NOTAEIES PUBLIC. §§ 781-783 riglits,^^ and except as to married women's deeds made after the act of February 3, 1841,^^ thouo-h the acknowl- edgment without registration was not.^'' The earlier cases, however, hold in effect, that the acknowledgments were validated, or that it applied to deeds previously acknowledged but not recorded until after the act of February 5, 1841.^* § 781. Chief Justices Continued to Act. — It seems that chief justices of county courts continued to be ex-officio notaries, at least until the act of May 13, 1846, took effect,^^ and probably until December 81, 1866, when the county court was presided over by a county judge.*^ § 782. Act of June 12, 1837 — Associate Justices Might Act When — Under the act of June 12, 1837,^^ either of the associate justices of the county court might act as notary if the chief justices were interested, absent or unable to act. § 783. Act of November 16, 1837— Notaries Provided For. The act of November 16, 1837 (taking effect from pas- sage),"*^ was the first act under the republic to provide for the appointment of notaries. It provided that the President shall appoint, with the advice and consent of the Senate, a notary for each port of entry of the republic. Under this act they are authorized to per- form notarial acts, and were to hold office for two years ; but it does not designate what notarial acts consisted of. .35 Post, § 1006. 36 Post, § 1006. .•57 McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691. 38 See Butler v. Donag-in, 19 Tex. 565; Waters v. Spofford, 58 Tex. 122; and post, § 785. 39 Ante, §§ 662-665, 674. 40 5 L. T. 96. 41 1 L. T. 1333. 42 1 L. T. 1358. §§ 784-787 WHO MAY TAKE ACKNOWT^EDGMENTS. 332 § 784. Act of May 15, 1838— Notaries Provided For By the art of May 15, 1838 (takins' offeet from passage) ^^ the President of the republic was authorized with the ad- vice and consent of the Senate to appoint two notaries in addition to the cliief justices and also one additional in each county. § 785. Act of January 19, 1839— Notaries Omitted.— The act of January 19, 1839^^ (takino- effect from passaoe), to better define the duties of recorders, and providing for the registration of deeds, etc., provided that deeds, etc., shall be recorded, if acknowledged before the county court or chief justice of the same, or before the clerk in whose office such record is proposed to be made (omit- ting notaries public), and repealed conflicting laws. Under this act notaries were not authorized to take ac- knowledgments,^^ But their acts were validated in cer- tain cases. '*® § 786. Act of January 26, 1839— Chief Justices of County Courts Authorized to Exercise Powers of Notaries ^Act of January 26, 1839,'*'^ authorized chief justices of the county court "to exercise the powers of notaries public," but as the act of January 19, 1839, revoked the authority of notaries to take acknowledgments, the "powers of notaries public" referred to in the act of January 26, 1839, would probably not include the taking of acknowl- edgments.'** § 787. Act of February 5, 1840 — Notaries Authorized to Take Acknowledgments. — Act of February 5, 1840,^^ au- 43 1 L. T. 1480. 44 2 L. T. 52. 45 McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691; Bryan v. Sundburg, 5 Tex. 423; Eogers v. Watrous, 8 Tex. 65, 58 Am. Dec. 100; Herndon v. Eeed, 82 Tex. 651, 18 S. W. 665. 46 See post, § 1018, etc. 47 2 L. T. 91; P. D. 265; ante, § 610. 48 See ante, § 785. 49 p. D. 4975; H. D. 2768; 2 L. T. 328. 333 NOTARIES PUBLIC. §§ 788-792 thorized, among other officers, a notary public of a county to take acknowledgments of any conveyance.^® § 788. Act of January 22, 1841 — Associate Justices to Act When. — Act of January 22, 1841,^^ authorized associate justices of the county court to act in absence of chief justices. § 789. Act of February 3, 1841— Notaries Omitted. — The act of February 3, 1841, providing for the acknowledg- ments of married women, authorized them to be taken by judges of the district court and chief justices of the county court, but omitted notaries. From then until March 17, 1841, at least, notaries could not take her ac- knowledgments.^^ § 790. Act of February 5, 1841— Validates Want of Au- thority—The act of February 5, 1841,^^ validates cer- tain acknowledgments by notaries, etc.^^ It also pro- vided that all instruments of writing might be duly ac- knowledged or proven before a notary public, etc. There is some question as to whether or not this act authorized notaries to take acknowledgments of married women, although its terms are general enough to include hers.^^ ^ 791. Act of January 3, 1842 — Associate Justices to Act When. — Act of January 3, 1842, authorized associate justices of county court to act in case of vacancy or in- ability of chief justice, etc. 5C ;v 792. Acts of Februaiy 5, 1844, and January 10, 1845— Notaries Provided For. — The acts of February 5, 1844^'' 00 See ante, § 615. 51 2 L. T. 532; 11. D. 272. 52 See ante, §S 617-G27. 5.3 2 L. T. 633. 54 Ante, § 619; also see "Validating Statutes," post, § 1018. 5.-, See ante, §§ 627-631. .^0 Ante, § 632. 57 2 L. T. 1017. §§ 793-795 WHO MAY TAKE ACKNOWLEDGMENTS. 334 (taking effect from passage), and January 10, 1845*''* (taking effect March 15, 1845), provide for the appoint- ment of additional notaries. The last act requiring notaries to have a seal of office, etc., and they were au- thorized to perform all duties that chief justices of the county court were required to perform by virtue of their offices as ex-officio notaries public. They probably in- cluded the taking of both joint and single acknowledg- ments.^^ § 793. Resolution of February 1, 1845— Notaries Provided For. — The resolution of February 1, 1845, required the appointment of one additional notary at the town of Seguin, in and for the county of Gonzales; also one for Fort Boggy, in Eobertson county.^** § 794. Constitution of 1845 — Notaries Provided For. — Section 19^^ of the constitution of the state of Texas adopted August 27, 1845, provides that the governor with the advice and consent of two-thirds of the Senate shall appoint a convenient number of notaries not ex- ceeding six for each county who, in addition to such duties as are prescribed by law, shall prescribe such other duties as the legislature shall prescribe. § 795. Act of April 30, 1846— Notaries Authorized to Take Acknowledgments of Married Women. — The act of April 30, 1846**^ (taking effect June 22, 1846), authorized notaries to take acknowledgments of husband and wife to deeds of her separate property, the homestead and other ex- empt property. It is also provided that the governor of the state of Texas shall appoint the notaries ; he shall notify the chief justice of the counties, and they shall publish the appointment of notaries; and after such 58 2 L. T. 1059. 59 See ante, § 634. 60 2 L. T. 1106. Ri 2 L. T. 1290. 62 2 L. T. 1462. 335 NOTARIES PUBLIC. §§ 796-798 notice or publication notaries acting under the republic shall cease to discharge the official duties, and that their acts in such capacity shall be void, if done subse- quent to such notice. ^^ § 796. Act of May 12, 1846— Authorized Notaries to Take Acknowledgments. — The act of May 12, 1846,^^ authorized, in general terms, notaries to take acknowledgments of all instruments, which would probably include those of married women.*^^ § 797. Act of May 13, 1846 — Notaries Provided For — The act of May 13, 1816,^^ taking effect June 22, 1846, authorized the governor with the advice of two-thirds of the Senate to appoint a convenient number of notar- ies, not exceeding six for each county, who shall reside in the county for which they are appointed, and hold office for four years and until their successors are quali- fied. The governor was authorized to fill vacancies un- til the meeting of the next session of the Senate there- after. Notary's permanent removal from county va- cates office. Notaries were again authorized to take acknowledgments including those of married women, and another seal was provided for. This act was amended by the act of March 5, 1863. Under these acts appointment of notaries without the advice and consent of the Senate was inoperative.^'' The above acts were undisturbed by the constitution of 1869.®* § 798. Act of March 16, 1848— Acknowledgments Taken by Chief and Associate Justices Have Same Force as Notarj^'s. The act of March 16, 1848,*^^ provided that chief justices 63 2 L. T. 1466. 64 2 L. T. 1544; H. D. 2794. 65 But see ante, §§ 644-656. 66 2 L. T. 1647. 67 Brown v. State, 43 Tex. 479. 68 Gilleland v. Drake, 36 Tex. 676. 69 3 L. T. 119; H. D. 333. §§ 799-801 WHO MAY TAKE ACKNOWLEDGMENTS. 336 of the county court may take both joint and single ac- kiiowledgments, which shall have the same force as if taken by a notary.''** § 799. Act of December 29, 1849 — County Commissioners to Perfoim Duties of Chief Justice. — Act of December 29, 1849/^ authorized two county commissioners to perform duties of chief justice of county court whenever he is unable to act.'^^ ^ 800. Act of February 9, 1860— Validates Want of Au- thority. — The act of February 9, 1860, validates certain acknowledgments by notaries. '^^ § 801. Acts of April 6, 1861, January 14, 1862, March 5, 1863, November 13, 1866 — Notaries Authorized to Take Ac- knowledgments. — The acts of April 6, 1861,'''* January 1-1, 1862/^ March 5, 1863,''^ November 13, 1866,'''' all taking effect from passage, provided that acknowledg- ments within the state may be taken by notaries public. The said act of March 5, 1863, further provides that the notary's appointment shall be void unless he qualifies within thirty days after notice, before the county court if in session, or before the county clerk if in vacation; and that notary shall hold office four years and no longer, thus amending the act of May 13, 1846, which required them to hold office until their successors quali- fied. It is also provided that their office shall become vacant if they hold any other office except justice of the peace. Section 11 provides that acknowledgments taken by notaries public shall be received as evidence of the facts therein stated and in all courts of this 70 But see ante, § 675. 71 3 L. T. 459. 72 See ante, § 682. 73 Validating Statutes, post, § 1028. 74 5 L. T. 373. 75 5 L. T. 501. 76 5 L. T. 602. 77 5 L. T. 1128. 337 NOTAEIES PUBLIC. §§ 802-806 State ; but the courts hold that proof of execution is re- quired before instruments are admissible in evidence.''* § 802. Constitution of 1869 — Justices Commissioned No- taries. — ^Chapter 3, section 20 of the constitution of 1869 (ratified on the first Monday in July)/^ provided that justices of the peace shall also be commissioned to act as notaries public. This did not repeal acts of May 13, 1846, and March 5, 1863.*** § 803. Act of August 8, 1870 — Notaries Authorized to Take Acknowledgments — The act of August 8, 1870,*^ au- thorized notaries public to take the acknowledgments of deeds, etc., for record. It provided that their certifi- cates shall entitle the deeds to registration, and repealed all conflicting laws. § 804. Act of August 13, 1870 — Justices and Their Dep- uties Authorized. — Act of August 13, 1870, authorized justices of the peace and their deputies to act as no- taries.*^ This was repealed by act of May 31, 1871, in so far as it authorized deputies to act.*^ § 805. Validates.— Act of August 13, 1870, validated acknowledgments taken before county judges.*"* § 806. Act of May 6, 1871 — Notaries Authorized to Act Be- yond the State.— Under the act of May 6, 1871*^ (taking effect from passage), notaries were for the first time au- thorized to take acknowledgments without the state of Texas, as well as in the state of Texas. 78 See ante, § 194, etc. 79 7 L. T. 414. 80 Gilleland v. Drake, 36 Tex. 676. 81 e L. T. 203. 82 Ante, § 698. 83 Post, § 807. 84 See ante, § 701. 85 6 L. T. 979. 22 §§ 807-811 WHO MAY TAKE ACKNOWLEDGMENTS. 338 § 807. Act of May 31, 1871— Authority of Deputy Jus- tices Revoked. — The act of May 31, 1871,**^ repealed sec- tion 29 of the act of August 13, 1870, authorizing the appointment of deputy justices of the peaceL^'' § 808. Act of April 27, 1874— Validates Want of Author- ity. — The act of April 27, 1874,®^ validated acknowledg- ments taken prior thereto without the state but within the United States by notaries, etc., if taken in the man- ner prescribed by law.^^ § 809. Act of May 2, 1874— Validates Want of Authority. An act of May 2, 1874,^^ validates acts of notaries duly appointed but not properly confirmed by the Senate.®* § 810. Act of March 13, 1875— Validates Want of Au- thority — The act of March 13, 1875, taking effect from passage,®^ validated acknowledgments of C. L. Thur- mond of Victoria county as notary public. § 811. Constitution of 1875— Notaries Provided For, and Justices of the Peace Ex-Ofiicio Notaries. — The constitution of the state of Texas adopted November 24, 1875, rati- fied by the people February 15, 1876,®^ provided that the governor, by and with the advice and consent of two- thirds of the Senate, shall appoint a convenient number of notaries for each county, who shall perform such du- ties as now are or may be prescribed by law. Article 5, section 19, provided that justices of the peace shall be ex-ofdcio notaries public.'** 86 6 L. T. 1038. 87 Ante, § 704. 88 8 L. T. 154. 89 See post, § 1041. 90 8 L. T. 198. 91 Brown v. State, 43 Tex. 478. See post, § 1045. 92 8 L. T. 573. 93 8 L. T. 779; art. 4, § 26. 94 Ante, § 708. 339 XOTAEIES PUBLIC. §§ 812-816 § 812. Act of June 24, 1876— Notaries Authorized to Take Acknowledgments — The act of June 24, 1876,^^ provided for the appointment of a convenient number of notaries, not less than five nor more than twenty, who shall hold office for two years ; and provides for a seal. Notaries were again authorized to take acknowledgments; and it provided that their acts shall be evidence in all the courts of this state. § 813. Act of June 26, 1876— Office of Notary Public Abol- ished.— The act of June 26, 1876,^** provided that thirty days after the passage of this act the office of notary public as it existed prior to the 18th of April, 1876 (the beginning of that session of the legislature), be and the same is hereby abolished; that all commissions issued to notaries public prior to that time by virtue of any law in force are revoked, and shall after thirty days be of no force and effect, and the governor is required to proceed to appoint notaries public under the existing laws, without reference to the appointments made prior to April 18, 1876. § 814. July 28, 1876— Validates.— This act validates certain certificates of married women's acknowledg- ments.^^ § 815. Act of August 17, 1876 — Justices Commissioned No- taries. — The act of August 17, 1876,^^ provided that jus- tices of the peace shall be commissioned notaries pub- lic.«» § 816. Act of April 11, 1879— Notaries Provided For The act of April 11, 1879 (taking effect from pas- sage),-*^®** provided for the appointment of one notary for each unorganized county. 95 8 L. T. 86.5. 96 8 L. T. 867. 97 Post, § 1049. 98 8 L. T. 1001, § 28. 99 Ante, § 713. 100 8 L. T. 1389. §§817-821 WHO MAY TAKE ACKNOWLEDGMENTS. 340 § 817. Act of April 18, 1879— Validates Certificates With Defective Seals. — The act of April 18, 1879, validates cer- tificates having defective seals.^*^ § 818. Revised Statutes of 1879— Justices Ex-Officio No- taries. — Revised Statutes of 1879, article 1535, provided that justices of the peace shall be ex-oflficio notaries public.*^^ § 819. Act of April 1, 1881 — Notaries Authorized to Take Ac- knowledgments. — ^The act of April 1, 1881*^^ (taking effect from passage), authorized the governor, with the consent of two-thirds of the Senate, to appoint not less than five nor more than twenty notaries for each county, who shall hold their oflSces two years from June 1st of the year in which they are appointed, and provided for seal. They are again authorized to take acknowledg- ments. This act provided that all laws and parts of laws in conflict herewith are hereby repealed. § 820. Act of February 20, 1885— Notaries Provided For. The act of February 20, 1885,^**^ amending act of April 1, 1881, provides that the governor, by and with the con- sent of the Senate, shall appoint a convenient number of notaries, whose term of office shall be two years, and that the terms of office of notaries now holding office shall expire on the first day of June, 1885, and that notaries during the present and all biennial sessions of the legislature shall hold their office from June 1st of the year of appointment.^^^ § 821. Act of April 1, 1887— Validates the Acts of William Veal. — The act of April 1, 1887, validates the acts of William Veal.^**^ 101 See post, § 1052. 102 Ante, § 714. 103 9 L. T. 186. : 104 9 L. T. 637. 105 Brown v. State, 43 Tex. 478. 106 See post, § 1068. 341 NOTARIES PUBLIC. §§ 822-824a § 822. Act of April, 1885 — Notaries Provided Por — The act of April, 1885,***'' which is in force at the present time, is as follows: "There shall be appointed by the governor by and with the advice and consent of the Senate, a convenient number of notaries public for each organized county and one for each unorganized county in this state, who shall hold their offices for the term of two years from the first day of June after appoint- ment at -a regular session of the legislature ; provided that nothing herein shall be so construed as to exempt them from jury service." § 823. Revised Statutes of 1895— Justices Ex-Officio No- taries. — "Article 1564. Justices of the peace shall be ex-officio notaries public."**^ § 824. Revised Statutes of 1895*o9_jjotaries Authorized to Take Acknowledgments. — Kevised Statutes of 1895, ar- ticle 4613 : "The acknowledgment or proof of an instru- ment of writing for record may be made within this state before either, "1. A clerk of the district court. "2. A judge or clerk of the county court. "3. A notary public."**^ § 824a. Act of April 1, 1903— Notaries Provided For. — The act of April 1, 1903*** (taking effect from passage), authorized the appointment by the governor, with the advice and consent of the Senate, of a convenient num- ber of notaries public for each organized county, and not to exceed six notaries public for each unorganized county. 107 Rev. Stats., art. 3.503; 9 L. T. 637. 108 Ante, § 715. 109 Act of May 6, 1871; P. D. 7418. 110 See ante, § 717. 111 Acts of 1903, p. 158. 825 WHO MAY TAKE ACKNOWLEDGMENTS. 342 CHAPTER XXI. WHO MAY TAKE ACKNOWLEDGMENTS AND PEOOF— JUS- TICES OF THE PEACE. § 825. Generally. § 826. Summary of statutes. § 827. Act of December 20, 1836— Justices of peace, associate jus- tices of county court. § 828. Act of February 5, 1840 — Two justices of the peace may take acknowledgments. § 829. Two justices must act together. § 830. Act of March 16, 1840— Common law adopted. § 831. Act of February 3, 1841— Justices omitted. § 832. Act of February 5, 1841 — Justices of peace omitted. § 833. Act of April 30, 1846 — Justices of the peace omitted. § 834. Act of May 11, 1846— Election of. § 835. Act of May 12, 1846— Justices of peace omitted. § 836. Constitution of 1869 — Justices commissioned to act as notar- ies. § 837. Act of August 13, 1870 — Justices authorized to take ac- knowledgments. § 838. Justices authorized to appoint deputies. § 839. Act of May 6, 1871 — Justices omitted. § 840. Act of May 18, 1871— Validates. § 841. Act of May 25, 1871 — Validates. § 842. Act of May 31, 1871— Validates. § 843. Act of April 14, 1874— Validates. § 844. Act of April 20, 1874 — District clerks authorized to qualify as justices. § 845. Act of April, 1876 — Justices— Appointment of. § 846. Constitution of 1875 — Justices of the peace shall be ex-oflficio notaries. § 847. Act of July 28, 1876— Validates. § 848. Act of August 17, 1876 — ^Justices commissioned notaries. § 849. Act of April 18, 1879— Validates. § 850. Eevised Statutes of 1879 — Justices commissioned notaries. § 851. Revised Statutes of 1895 — Justices commissioned notaries. For authority prior to 1836, see ante, §§ 7-21. For acknowledgments without the state, see ante, §§ 718-767. § 825. Generally. — Acknowledgments taken by a jus- tice of the peace as an ex-officio notary public must be authenticated with a notary's seal to authorize its rec- 343 JUSTICES OF THE PEACE. §§ 826-828 ord; and the letters "J. P." evidently mean justice of the peace/ It is not necessary for a justice of the peace to sign as notary public,^ § 826. Summary of Statutes. — From the following stat- utes it appears that the first act authorizing justices of the peace, as such, to take acknowledgments was that of February 5, 1840, which required two justices to act. Thereafter they were authorized to take single acknowl- edgments within the state until July 13, 1846. From July 13, 1846, to the ratification of the constitution of 1869 (on the first Monday in July), they were not au- thorized to take acknowledgments, but at all times thereafter, within the state, they were. From February 5, 1840, to the adoption of the common law March 16, 18^0, they were authorized to take acknowledgments of married women within the state. From March 16, 1840, to the ratification of the constitution of 1869, they were not authorized to take acknowledgments of mar- ried women within the state. At all times thereafter they were. § 827. Act of December 20, 1836— Justices of Peace, As- sociate Justices of County Court. — The act of December 20, 1836,* made chief justices of the county court ex-officio notaries public, and provided that two associate justices shall be selected by a majority of the justices of the peace from among their number; and the act of June 12, 1837,* authorized associate justices to act as notaries in case of inability of the chief justices. § 828. Act of February 5, 1840— Two Justices of the Peace may Take Acknowledgments. — The act of February 5, 1840, taking effect March 16, 1840,^ provided that "any deed, 1 Dauffherty v. Yates (Tex. Civ. App.), 35 S. W. 93>J. 2 Wilson V. Simpson, 68 Tex. 313, 4 S. W. 839. 3 Ante, §§ 597-599. 4 Ante, § 603. 5 2 L. T. 328. §§ 829-831 WHO MAY TAKE ACKNOWLEDGMENTS. 344 etc., may bo admitted to record upon the certificate un- der seal of any two Justices of the Peace for the county in this Republic, annexed to such deeds and to the fol- lowino; effect to wit: Republic of Texas, County of . We, A. B. and C. D., Justices of the Peace, in the county aforesaid, do hereby certify that E. F. and party (E. G. and G. M., parties) to a certain deed bear- inci: date on the day of and hereto annexed, personally appeared to us in our county aforesaid and acknowledo-ed the same to be his or their act or deed and desired us to certify the said acknowledgment. To the clerk of the county of in order that said deed may be recorded. "Given under our hands and seal this day of "A. B. (L. S.) "0. D." (Note. — This act was no doubt repealed by the act of May 12, 1846.f § 829. Two Justices Must Act Together. — Under a stat- ute similar to this in the state of Maryland, authoriz- ing acknowledgments by two justices of the peace it was held that they must act together, and that if the ac- knowledgment is taken at different times by said jus- tices of the peace, it is invalid.'^ § 830. Act of March 16, 1840— Common Law Adopted. — Act of March 16, 1840,^ adopted common law, after which married women could only convey by fine and re- covery until February 3, 1841.^ § 831. Act of February 3, 1841— Justices Omitted. — The act of February 3, 1841,^<* authorizing district judges 6 Ante, §§ 615-646. 7 Eidgley v. Howard, 3 Har. & McH. (Md.) 321. 8 2 L. T. 177. 9 Langton v. Marshall, 59 Tex. 299. 10 2 Jj. T. 608. 345 JUSTICES OF THE PEACE. §§ 832-835 and chief justices of the county court to take the joint acknowledgment of husband and wife, omitted justices of the peace. As this act provides the only method in which a written conveyance can be made by a married woman, it seems that justices of the peace were unau- thorized to take acknowledgments thereunder.*^ § 832. Act of February 5, 1841 — Justices of Peace Omitted. The act of February 5, 1841,*^ authorizing certain of- ficers to take acknowledgments, omitted justices of the peace, but it is doubtful if this repeals the former law of February 5, 1840, which authorized two justices of the peace to take acknowledgments.*^ § 833. Act of April 30, 1846— Justices of the Peace Omitted— The ar-t of April 30, 1846, authorized district judges and judges of the supreme court and notaries public to take the joint acknowledgments of husband and wife, omitting justices of the peace.** § 834. Act of May 11, 1846— Election of. — The act of May 11, 1846,*^ authorized the election of two justices of the peace, but makes no provision for their taking acknowledgments. § 835. Act of May 12, 1846— Justice of Peace Omitted. — The act of May 12, 1846, taking effect July 13, 1846,*« provided that every instrument of writing for record shall be taken by some one of the following officers: When within the state, before some notary public or clerk of the county court of any county in the state. As justices of the peace are omitted from this act, the 11 See Langton v. Marshall, 59 Tex. 299; Ballard v. Carmichaol, 83 Tex. 363, 18 S. W. 734; Berry v. Donley, 26 Tex. 745; ante, §§ 241- 243, and 641. 12 2 L. T. 633; ante, § 581. 13 Ante, §§ 620-627, 631. 14 See ante, § 329. ir> 2 L. T. 1604. 16 2 L. T. 1544. §§ 836-838 WHO MAY TAKE ACKNOWLEDGMENTS. 346 act of February 5, 1840, authorizing them to authenti- cate instruments for record was repealed. ^'^ § 836. Constitution of 1869 — Justices Commissioned to Act as Notaries. — The constitution of 1869 (ratified on the first Monday in July, 1869)/*^ provided that justices of the peace shall also be commissioned to act as notaries public. As commissions of notaries are issued by the governor, it seems that commissions so issued to justices of the peace, would authorize them to authenticate in- struments. § 837. Act of August 18, 1870 — Justices Authorized to Take Acknowledgments — The act of August 13, 1870, tak- ing effect fi'om passage,^^ provided that "justices of the peace shall be commissioned by the governor to act as justices of the peace within respective precincts, and also as notaries public." They shall be authorized to take acknowledgments of deeds and other instruments required by law to be recorded and certify the same for record.^** It seems that under this act and the con- stitution of 1869, a justice of the peace was not ex- officio ■ notary public without other qualification, but had to be commissioned to act as notary also. The rule seems to be different under the constitution of 1875, un- til modified by statute.^^ § 838. Justices Authorized to Appoint Deputies. — Section 29 of this act also authorized justices of the peace to appoint deputies to act as notaries public. This section was repealed by the act of May 31, 1871,^^ and justices 17 Herndon v. Eeed, 82 Tex. 651, 18 S. W. 665; McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691; Bryan v. Sundberg, 5 Tex. 418; State V. Deslesdenier, 7 Tex. 76; Thouvenin v. Eodrigues et al., 24 Tex. 468. 18 7 L. T. 412; § 20. 19 6 L. T. 278. 20 Ante, § 697. 21 See post, § 846. 22 6 L. T. 1038. 347 JUSTICES OF THE PEACE. §§ 839-843 were not thereafter authorized to appoint deputies to take acknowledgments.^^ § 839. Act of May 6, 1871— Justices Omitted. — The act of May 6, 1871,-"* does not mention justices of the peace as officers before whom acknowledgments may be made but authorized notaries to act; as justices are commis- sioned to act as notaries, they were so authorized by implication. It is also clear that this act does not re- peal the act of Augiist 13, 1870, which directly author- ized justices of the peace to act as notaries.^^ § 840. Act of May 18, 1871— Validates — The act of May 18, 1871 (taking effect from passage),^^ validates the acts of Silas McCrary, Jerry Washington, justices of the peace for Bowie county. § 841. Act of May 25, 1871— Validates— The act of May 25, 1871 (taking effect from passage),^'' validated the acts of I. H. Steen, justice of the peace of Hamilton county. § 842. Act of May 31, 1871— Validates.— The act of May 31, 1871 (taking effect from passage), validated the acts of I. A. Lee, justice of the peace of Coryell county.^^ § 843. Act of April 14, 1874— Validates. — The act of April 14, 1874^^ (taking effect from passage), validates the official acts of clerks of the district court acting as justices of the peace by virtue of the election held De- cember 2, 1873. 23 Ante, §§ 697-704. 24 6 L. T. 999. 25 Herndon v. Reed, 82 Tex. 651, 18 S. W. 665. 20 6 L. T. 998. 27 6 L. T. 1033. 28 6 L. T. 1066. 29 8 L. T. 94. §§ 844-847 WHO MAY TAKE ACKNOWLEDGMENTS. 348 § 844. Act of April 20, 1874 — District Clerks Authorized to Qualify as Justices. — The act of April 20, 1874,^** pro yided that it shall bo lawful for snch clerks of the dis- trict court as were elected justices of the peace of their respective counties at the late general election to hold office of justices of the peace upon giving bond, etc. § 845. Act of April 11, 1876 — Justices, Appointment of. — The act of April 11, 1876,^^ county commissioners in county in which unorganized counties are attached have power to appoint justices of the peace for such counties in accordance with the provisions for organized counties. § 846. Constitution of 1875 — Justices of the Peace Shall be Ex-Officio Notaries Public. — The constitution of 1875, ratified February 15, 1876,^^ provided that "justices of the peace shall be ex-officio notaries public." It would seem that under this constitution the qualifying as jus- tice of the peace would authorize him to act as notary without other qualification, at least until the statutes required additional qualifications. It is held in Berry V. McAdams ^^ that a lien given by the constitution was lost by the owner not fixing and recording same in compliance with a subsequent statute. By analogy it would seem that the legislature might require certain qualifications of justices before they could act as no- taries, as it did in article 1535 of the Revised Statutes of 1879 and article 1564 of the Revised Statutes of 1895. But the legislature can act only when the constitution is silent.^ § 847. Act of July 28, 1876— Validates. — The act of July 28, 1876 (taking effect November 19, 1876),^^ vali- dates the certificates of acknowledgment of married 30 8 L. T. 111. 31 8 L. T. 138&. 32 Article 5, § 19. 33 93 Tex. 435, 55 S. W. 1112. 34 Titus V, Latimer, 5 Tex. 436; 1 Rose's Notes, 194. 35 8 L. T. 897. 349 JUSTICES OF THE PEACE. §§ 848-851 women taken before any unauthorized officer whenever such certificate of acknowledgment is invalid, because same is wanting- in some word required by law, pro- vided that such certificate shall show on its face that the married woman was examined by the officer taking the acknowledgment separate and apart from her hus- band, and having the same fully explained to her she declared that she had willingly signed the same and that she did not wish to retract it, or words to that effect.^^ § 848. Act of August 17, 1876 — Justices Commissioned No- taries.-*^' — ''Section 28. Justices of the peace shall be commissioned by the governor to act as justices of the peace in their respective precincts, and also to act as notaries public." § 849. Act of April 18, 1879— Validates. — The validat- ing act of April 18, 1879, validates acknowledgments evidenced by notarial seals, having the word ''Texas" engraved between the points of the star thereon instead of on the margin.^® § 850. Revised Statutes of 1879— Justices Commissioned Notaries.— Revised Statutes of 1879, article 1535 : "Each justice of the peace shall be commissioned as justice of the peace of his precinct and ex-officio notary public of his county, and shall take the oath of office prescribed in the constitution, and give the bond elsewhere pre- scribed for notaries public." § 851. Revised' Statutes of 1895 — Justices Commissioned Notaries.— Revised Statutes of 1895, article 1564 : "Each justice of the peace shall be commissioned as justice of the peace of his precinct and ex-officio notary public of his county, and shall take the oath of office prescribed in the constitution and give the bond prescribed by law." .16 McDaniel v. Harold, 1 U. C. 521. 37 8 L. T, 1001. 38 See post, § 1052. WHO MAY TAKE ACKNOWLEDGMENTS. 350 CHAPTER XXII. WHO MAY TAKE ACKNOWLEDGMENTS; OFFICERS OF COUN- TY COURT, TO WIT, CHIEF AND ASSOCIATE JUSTICES, COUNTY JUDGES, COUNTY COMMISSIONERS AND COUN- TY COURTS. § 852. Summary of statutes— Chief justices of county courts. § 853. Idem— County judges. § 854. Idem — County courts. § 855. Idem — Associate justices. § 856. Idem — County commissioners. § 857. Act of December 20, 1836— Chief and associate justices. § 858. Act of June 12, 1837 — Associate justices. § 859. Act of January 19, 1839— Chief justice and county court — Note. § 860. Note. § 861. Act of January 26, 1839— Chief justices. § 862. Act of February 5, 1840— Chief justice and county courts. § 863. Act of January 22, 1841— Associate justices. § 864. Act of February 3, 1841 — Chief justices. § 865. Act of February 5, 1841— Validates. § 866. Chief justices. § 867. Act of January 3, 1842 — Associate justices. § 868. Act of April 29, 1846— Schedule of married woman's prop- erty. § 869. Act of April 30, 1846— Chief justices omitted. § 870. Note. § 871. Act of May 2, 184&— Chief justices. § 872. Act of May 12, 1846— Chief justices omitted. ? 873. Note. § 874. Act of May 13, 1846 — County courts and county commission- ers. . . § 875. Note. § 876. Act of March 16, 1848 — County court established and chief justices authorized to take acknowledgments. § 877. County commissioners. § 878. Note. § 879. Act of December 29, 1849— County commissioners. § 880. Act of February 9, 1860— Validates. § 881. Act of April 6, 1861— Judges of courts of record authorized. § 882. Act of January 14, 1862— Judges of courts of record author- ized. § 883. Constitution of 1866— County courts. 351 OFFICEKS OF THE COUNTY COITRT. § 852 § 884. Act of October 25, 1866 — County courts. § 885. Act of November 13, 1866— Judges omitted. § 886. Act of August 8, 1870— District clerks and deputies. § S87. Act of August 13, 1870 — County court composed of five jus- tices of the peace. § 888. Act of August 13, 1870 — Validates. § 889. Act of May 6, 1871 — Omits county judges. § 890. Constitution of November 24, 1875 — County courts. § 891. Act of June 16, 1876— County courts. § 892. Act of July 28, 1876— Validates. § 893. Act of August 18, 1876— Seal. § 894. Revised Statutes of 1879 and 1895— Officers authorized. § 852. Summary of Statutes — Chief Justices of the County Court. — From the following statutes it appears (when taken within the state) that from December 20, 1836, to March 17, 1841, chief justices were authorized to take any and all acknowledgments of instruments to be re- corded anywhere. From March 17, 1841, to July 13, 1846, they were authorized to take single acknowledg- ments of instruments to be recorded within their counties, and probably of instruments to be recorded anywhere. From July 13, 1846, to August 7, 1848, chief justices were not authorized to take acknowledgments unless they were authorized by being ex-officio notaries public. From August 7, 1848, to April 6, 1861, they were probably authorized to take joint and single ac- knowledgments. From April 6, 1861, to November 13, 1866, as judges of courts of record they were authorized to tiike any and all acknowledgments. From November 13, 1866, to September 1, 1879, they were not authorized. (See "County Judges.") Married Women. — From February 3, 1841, to June 22, 1846, chief justices were authorized to take acknowl- edgments of married women. From June 22, 1846, to August 7, 1848, query, Were chief justices authorized as ex-officio notaries public to take acknowledgments of married women? From August 7, 1848, to April 6, 1861, they were probably authorized to take acknowledg- ments of married women. From April 6, 1861, to No- veml)er 13, 1866, they were authorized to take acknowl- §§ 853-857 "WHO MAY TAKE ACKNOWLEDGMENTS. 352 edgments of married women. Thereafter they were not. But see "County Judges." § 853. Idem — County Judges. — After December 31, 1866, the county court was presided over by the county judge, but they were not authorized to take acknowl- edgments until September 1, 1879. At all times there- after, they were. § 854. Idem— County Courts.— From January 13, 1839, to February 3, 1841, county courts were authorized to take aji3^ and all acknoAvledgments. Thereafter they were not authorized to take married women's acknowl- edgments. From January 19, 1839, to July 13, 1846, they were authorized to take single acknowledgments, but not thereafter. § 855. Idem — Associate Justices — ^From June 12, 1837, to Januaiy 19, 1839, associate justices were authorized to act in case of inability of chief justice. From Jan- uary 19, 1839, to July 13, 1846, they were probably au- thorized to act in absence, etc., of chief justices, if they (chief justices) would have been authorized. There- after, there were no officers designated associate jus- tices of the county court. § 856. Idem — County Commissioners. — From July 13, 1846, to August 7, 1848, county commissioners do not seem to have been authorized to act except as a court. From August 7, 1848, to April 6, 1861, and from then until November 13, 1866, two county commissioners were probably authorized to act for chief justices in tak- ing acknowledgments in certain contingencies. There- after they were not. § 857. Act of December 20, 1836 — Chief and Associate Jus- tices. — Chief and associate justices were judicial officers created by the act of December 20, 1836,* establishing 1 1 L. T. 1208, 1215; H. D. 230. 353 OFFICEES OF THE COUNTY COUET. §§ 858,859 the county court of each county, which court shall con- sist of one chief justice elected by joint ballot of both Houses, and two associate justices, selected by majority of the justices of peace of each county from among their number. By section 34 of said act, the chief justices of the several county courts became ex-officio notaries pub- lic for their counties^ and the seals of the county courts became notarial seals.^ A certificate by a chief justice of the county court is valid though he does not sign as notary, but as chief justice of the county court.* It seems that associate justices were authorized by this act to act only as a court and were not authorized to take acknowledgments until the act of June 12, 1837, was passed. § 858. Act of June 12, 1837 — Associate Justices. — The act of June 12, 1837,^ provides that in case chief jus- tices are interested or absent or unable to act, either of the associate justices may act as notaries public.^ § 859. Act of January 19, 1839— Chief Justice and County Court.— The act of January 19, 1839 (taking effect from passage),'' provided that it shall be the duty of the clerks of the county courts to record all deeds, etc., affecting titles to land situated within their counties which shall be presented to them for record; provided one of the subscribing witnesses shall swear to the signature of the signer, or he himself shall acknowledge the same; which proof or acknowledgment shall be made either before some county court or chief justice of the same, or before the clerk in whose oflflce such instrument is proposed to be recorded; the certified copy of which shall be made upon such instrument by the proper of- ficer and become a part of the rece^rd ; and all laws con- 2 Ante, §§ 597-602. 3 See ante, § 503. 4 Wilson V. Simpson, 68 Tex. 312, 4 8. "N. 839; ante, § 586. 5 1 L. T. 1333; H. D. 261. 6 Ante, § 603. 7 2 L. T. 52; P. D. 4974; H. D. 2760. 23 §§860-862 WHO MAY TAKE ACKNOW>,EDGMENTS. 354 trary to or conflicting!; with tliis act bo, and the same are hereby, repealed so far as they conflict witli or are con- trary to tlie same.^ § 860. Note — It is doubtful if this revokes the au- thority of associate justices to take acknowledgments, they being probably still authorized in certain contin- gencies. By the act of June 12, 1837, they were au- thorized to act where chief justices were disqualified and this law was not repealed by the act of January 19, 1839.^ In certain contingencies they would be in effect ex-oflicio chief justices, or bear the same relation to them that deputies do to their principals. It is held that an acknowledgment before a primary judge was good by reason of his being ex-ofiicio notary public, al- though the statute did not in terms authorize primary judges to take acknowledgments, and the oiflcer did not sign as a notary public.*® It is also well established that a deputy may take acknowledgments where his principal only is mentioned in the law authorizing ac- knowledgments.** Where the acknowledgment is taken by the county court, it must be done in open court, and this must be shown by the certificate.*^ § 861. Act of January 26, 1839^Chief Justices.— The act of January 26, 1839,*^ again provides that chief justices shall exercise powers of notaries public.*"* § 862. Act of February 5, 1840 — Chief Justices and County Courts.— The act of February 5, 1840,*^ again authorized 8 Ante, §§ 608, 609. 9 Ante, §§ 622-626. 10 Wilson V. Simpson, 68 Tex. 312, 4 S. W. 839; Bntler v. Duna- gan, 19 Tex. 559; Harvey v. Hill, 7 Tex. 592. 11 Ante, §§ 587-592; but see McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691; Holliday v. Cromwell, 26 Tex. 194. 12 State V. Pureell, 16 Tex. 307; Wright v. Leath, 24 Tex. 33. 13 2 L. T. 91; H. D. 1839. 14 See ante, § 610. 15 2 L. T. 328. 355 OFFICEES OF THE COUNTY COUET. §§863-866 chief justices of a county court to take acknowledg- ments and proof.^*^ Also authorized county courts to take same.^'' Repealed when?** § 863. Act of January 22, 1841 — Associate Justices. — The act of January 22, 1841/^ again provided that associate justices may act if the chief justice is interested, absent or unable to act^® § 864. Act of February 3, 1841— Chief Justices The act of February 3, 1841^* (taking effect from passage), au- thorized chief justices of the county court to take the acknowledgments of married women.^^ Associate jus- tices were probably also authorized to act where chief justices are disqualified.^^ § 865. Act of February 5, 1841— Validates. — The act of February 5, 1841'^ (taking effect March 17, 1841), vali- dated the registration of certain deeds.^*^ § 866. Chief Justices — Article 2777, Hartley's Di- gest,^^ of the same act, provides that deeds, etc., here- after made and recorded shall be duly registered in the office of the proper court upon the acknowledgment of the parties signing same before the register, or clerk of the county court of that county, or chief justice of the county, etc., or proof by a subscribing witness be- fore such officer and certified by him for record; and that if it be so acknowledged and certified there need be no subscribing witnesses. The court seems, in Willis 16 Ante, § 613. 17 Ante, §§ 611, 612. 18 Ante, § 615. 19 2 L. T. 532; H. D. 272. 20 Ante, § 616. 21 2 L. T. 608; H. D. 173. 22 Ante, § 617; Willis v. Lewis, 28 Tex. 185. 23 Ante, § 855. 24 2 L. T. 633; H. D. 2776. 25 Ante, §§ 619, 627-631; post, § 1018. 26 2 L. T. 633. §§ 867-S70 WHO MAY TAKE ACKNOWLEDGMENTS. 3o6 V. Lewis,'' to consider that chief justices of the county courts were authorized by virtue of their offices to take aclcnowledgments in other counties than their own, in 1845. But that question is not directly decided. As- sociate justices were probably authorized to act in lieu of chief justices, where chief justices were disqualified by reason of interest, etc.^* § 867. Act of January 3, 1842 — Associate Justices. — The act of January 3, 1842, made it the duty of associate jus- tices to discharge the duties of the office of chief justice should a vacancy occur.^^ § 868. Act of April 29, 18463<*— Schedule of Married Woman's Property — This act provides that any author- ized officer may take acknow^ledgments of married women to a schedule of her separate property.^^ § 869. Act of April 30, 1846— Chief Justices Omitted.— The act of April 30, 1846^^ (taking effect June 22, 1846), providing the manner of the disposition of the wife's property, homestead and exempt property, in enumerat- ing the officers before whom the acknowledgment could be made, to wit, judges of the supreme or district court or notaries public, omitted chief justices of the county court; and Hartley's Digest, article 177 (same act), re- peals all former laws and parts of laws concerning the mode of conveyance of property in which the wife has an interest. ^^ § 870. Note. — .This act revokes the authority of chief justices as granted by the act of February 5, 1841,^"^ but 27 28 Tex. 185. 28 Ante, § 855. As to effect of this act on previous acts, see ante, §§ 621-626. 29 Ante, § 632. 30 2 L. T. 1459. 31 Ante, § 6.35. 32 2 L. T. 1462; H. D. 174. 33 Ante, §§ 637-639. 34 Post, § 873; ante, § 641. 357 OFFICERS OF THE COUNTY COURT. §§ 871-873 as it authorized aoknowlecloinents by notaries, there is some question as to whether or not chief and associate justices of the county court would not be authorized as ex-offieio notaries public. The acts of December 20, 1836, and January 26, 1839, made chief justices of the county court ex-officio notaries public. These acts, it seems apparent, were not repealed by the acts of Feb- ruary 3, 1811, and April 30, 1816,^^ and might still au- thorize the taking- of acknowledgments. § 871. Act of May 2, 1846— Chief Justices. — The act of May 2, 1846^^ (taking effect from passage), provides that chief justices who were elected before the first Monday of February, 1816, shall perform the duties of the office until their successors are elected and qualified and their acts shall be valid; but it does not authorize them to take acknowledgments.^'' § 872. Act of May 12, 1846— Chief Justices Omitted.— The act of May 12, 1816 (taking effect July 13, 1816),^^ provided that proof or acknowledgment of every instru- ment of writing for record shall be taken by some one of the following officers when acknowledged or proved in the state, to wit: A notary public or clerk of the county court of any county in the state. It omits chief justices, and repeals all conflicting laws and parts of laws.-*^-' § 873. Note. — This evidently revokes the authority of chief justices to take acknowledgments and proof of in- struments for record, unless they would be authorized by virtue of being ex-officio notaries public.'*^ Where a statute limits a thing to be taken in a particular form it includes in itself a negative, viz., that it shall not be .15 Ante, §§ 622-626, 662-665. 36 2 L. T. 1471; H. D. 284. .•i7 Ante, § 642. a 8 2 L. T. 1544; II. D. 2794. 39 Ante, §§ 644-653. 40 McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691. § 874 WHO MAY TAKE ACKNOWLEDGMENTS. 358 done otherwise, and if a subsequent statute be not re- pugnant in all its provisions to a prior one, yet if the latter statute was clearly intended to prescribe the only rule which shall govern, it repeals the prior one.'*^ But repeals by implication are not favored.^^ It is held in Herndon v. Reed,"*^ that there must be a positive repugnance between the provisions of the new law and those of the old; and even then the old law is repealed by implication only pro tanto to the extent of the re- pugnancy and that a statute in affirmative terms with- out intimation of an intent to repeal a prior law does not repeal it unless the new and the old are irreconcil- ably in conflict. It emphasizes the distinction between the clauses "shall be taken by certain officers," and "may be taken by certain officers," and holds that the latter clause does not necessarily limit official acts to the of- ficers authorized by said clause. As the act of May 12, 1846, provides that acknowledgment shall be taken by certain officers, it clearly limits such official acts to those officers.** Chief and associate justices of the county court may have been authorized to take acknowledg- ments as ex-officio notaries public at this time (July 1846), as the acts of December 20, 1836, and January 26, 1839, were not then repealed, but that question seems not to have been decided.'*^ § 874. Act of May 13, 1846— County Courts and County Commissioners. — The act of May 13, 1846 (taking effect July 13, 1846),"*** provides that there shall be in each county in this state an inferior court to be styled the "County court of county," which shall be com- posed of one chief justice and four commissioners who 41 Bryan v. Simdberg, 5 Tex. 423; Eogers v. Watrous, 8 Tex. 65, 58 Am. Dec. 100. 42 Thouvenin v. Eodrigues, 24 Tex. 468. 43 82 Tex. 651, 18 S. W. 665. 44 Ante, §§ 644-653. 45 See ante, §§ 662-665. 46 2 L. T. 1640; H. D. 255, 291. 359 OFFICEES OF THE COUNTY C0I7ET. §§ 875-877 shall be styled county commissioners.*'' And whenever the office of chief justice is vacant, or whenever the chief justice is absent from the county, or incapable from any cause to hold court, any three of the county commissioners shall form a quorum of said court.*® § 875. Note. — It does not provide that any of the above officers may take acknowledgments or be ex-of- flcio notaries public, but there is some question as to whether or not it repeals the acts of December 20, 1836, and January 26, 1839, in so far as they make chief jus- tices ex-officio notaries public.*® Neither does it au- thorize said commissioners to act except as a court®** It is repealed by the act of March 16, 1848. § 876. Act of March 16, 1848— County Court Established and Chief Justices Authorized to Take Acknowledgments. — The act of March 16, 1848 (taking effect August 7, 1848),®* provides that there shall be in each county of this state an inferior court to be styled the "County court," which shall be composed of one chief justice. It also authorized chief justices to take acknowledg- ments and proof of all instruments, and gives them the power to examine and take the acknowledgments of married women of deeds to their separate property, and all acts so taken by any chief justice of a county court in this state shall have the same force and effect as if taken by a notary public.®^ § 877. County Commissioners. — Section 23 of said act provided that in case of vacancy in the office of chief justice, that any two county commissioners shall have power to hold all such courts as the chief justice can hold, and to do and perform all such official acts as he 47 Ante, § 657. 48 Ante, §§ 657-660. 49 See ante, §§ 662-666. 50 Ante, § 600. 51 3 L. T. 119; H. D. 333, 2801. 52 Ante, §§ 678, 680, 878. §§ 878, 879 WHO MAY TAKE ACKNOWLEDGMENTS. 360 can do and perform. This seems to authorize acknowl- edgment of deeds before two county commissioners. § 878. Note — In the case of Belcher v. Weaver,^^ while the question as to authority of chief justices to take acknowledgments is not raised, the court holds the acknowledgment taken by one of them is valid. There may, however, be some question as to the con- stitutionality of the provision of this act authorizing acknowledgments.^* This act repeals the acts of May 13, 1846, December 20, 1836, and January 26, 1839, or- ganizing county courts, but not the acts of April 30, 1846, and May 12, 1846, pertaining to conveyances, not being repugnant to them, but only adding another of- ficer before whom acknowledgments may be made.*^^ Chief justices of the county courts were probably still ex-officio notaries public as well as having the direct au- thority to take acknowledgments.^*^ § 879. Act of December 29, 1849 — County Commissioners. The act of December 29, 1849 (taking eifect from pas- sage), ^'^ provided that whenever the ofiflce of chief jus- tice in any county in this state is vacant, or whenever the chief justice of any county court in this state shall be absent from the state or unable to discharge the du- ties of his office by reason of interest or from any cause, then any two of the county commissioners of such county shall have power to do and perform all the du- ties of chief justices of the county court. As chief jus- tices are ex-officio notaries public, this act would, it seems, authorize the acknowledgment of deeds by two county commissioners.^^ Temporary disqualification 53 4B Tex. 295, 26 Am. Eep. 267. 54 See ante, §§ 675-680. 55 Herndon v. Eeed, 82 Tex. 651, 18 S. W. 665; Green v. Eugley, 23 Tex. 548; Fayette Co. v. Faires, 44 Tex. 575; ante, §§ 622-625 56 See ante, §§ 675-680. 57 3 L. T. 459. 58 Ante, § 682. 361 OFFICEES OF THE COUNTY COURT. §§ 880-882 (by indisposition) of chief justice to act did not give jurisdiction to commissioners.^^ § 880. Act of February 9, 1860— Validates— The act of February 9, 1860^^ (taking effect from passage), vali- dates certain acknoviledgments by chief and associate justices of the county court. *^^ § 881. Act of April 6, 1861— Judges of Courts of Record Authorized.— The act of April 6, 1861 (taking effect from passage),*^^ provides that proof of every instrument of vi'riting for record when within this state shall be be- fore some notarj^ public, clerk of the county court or judge of the court of record, attested by his official seal ; and repeals all laws in conflict therewith,^^ County as well as district courts were courts of record.^'* As county commissioners were authorized under the former laws to perform the duties in certain contingencies of the chief justices (or judges of courts of record), query, Was their authority to act as chief justices in taking acknowledgments revoked by these acts?^^ § 882. Act of January 14, 1862— Judges of Courts of Rec- ord Authorized. — The act of January 11, 1862^^ (taking effect from passage), also authorizes judges of courts of record to take acknowledgments within the state and attests same with their oflflcial seals; and it repeals con- flicting laws.^' 59 Trueheart v. Addicks, 2 Tex. 221. 60 4 L. T. 1437. 61 See ante, § 684. 62 5 L. T. 373. 63 Ante, § 686. 64 Ex parte Burkhardt, 16 Tex. 470; and sec Guilford v. Love, 49 Tex. 735; Alexander v. Maverick, IS Tex. 179, 67 Am. Dec. 693; Martin v. Burns, 80 Tex. 678, 16 S. W. 1072; and ante, § 533. «5 See ante, § 856. 66 5 L. T. 50. 67 Ante, §§ 533, 688, 881. §§ 883-885 WHO MAY TAKE ACKNOWLEDGMENTS. 362 § 883. Constitution of 1866 — County Courts. — The con- stitution of 1866 ^^ provides for a court in each county to be styled the "County court," the judge of which shall be elected by the people. ^^ § 884. Act of October 25, 1866— County Courts. — The act of October 25 (December 31), 1866,'^<* provided for county courts composed of the county judge. It does not authorize county judges to take acknowledgments, nor make them ex-officio notaries public.''* It compre- hends the whole subject matter of county courts, and consequently repeals by implication previous laws con- cerning the same subject matter,''^ but probably not the authority granted judges of courts of records by the acts of April 6, 1861, and January 14, 1862. While the above law was passed under and in compliance with the constitution of 1866, which was not approved by the Federal Congress, our courts hold it to be a valid law.''® County courts were courts of record.''* § 885. Act of November 13, 1866— Judges Omitted — The act of November 13, 1866^^ (taking effect from passage), provides that acknowledgments within the state shall be taken by a notary public or clerk of the county court.''® It omits judges of the courts of record. It seems that this would revoke the authority of chief jus- tices of the county court and county commissioners to take acknowledgments.'''' It is doubtful if they were 68 5 L, T. 868. 69 Ante, § 689. 70 5 L, T. 961. 71 Ante, § 690. 72 Ante, §§ 622-625. 73 Wallerath v. Knapp, 31 Tex. 359. See Wallace v. State, 33 Tex. 445; Waters v. Waters, 33 Tex. 50. 74 Ante, § 881. 75 5 L. T. 1128. 76 Ante, § 691. 77 See ante, §§ 622-625; Herndon v. Eeed, 82 Tex. 657, 18 S. W. 663; McCelvey v. Cryef (Tex. Civ. App.), 28 S. W. 691; Bryan v. Sundberg, 5 Tex. 423; Rogers v. Watrous, 8 Tex. 65, 58 Am. Dee. 100; 363 OFFICEES OF THE COUNTY COUET. §§ 886-8S8 ex-officio notaries public^* County judges were not again authorized to take acknowledgments until the adoption of the Revised Statutes of September 1, 1879, but acknowledgments taken before August 13, 1870, were validated by the act of that date in so far as such vali- dating statute would not affect vested rights/^ It should be noticed that this validating statute does not cover the period from August 13, 1870, to September 1, 1879, when county judges were again authorized to take acknowledgments. County commissioners were not afterward authorized to take acknowledgments. § 886. Act of August 8, 1870 — District Clerks and Dep- uties. — The act of August 8, 1870*^ (taking effect from passage), authorized district clerks, their deputies and notaries public to take acknowledgments, omitting judges of the courts of record and repeals laws in con- flict therewith.^* § 887. Act of August 13, 1870— County Courts Composed of Five Justices of the Peace. — The act of August 13, 1870, provided that county courts shall be composed of five justices of the peace. *^ § 888. Act of August 13, 1870— Validates. — The act of August 13, 1870^^ (taking effect from passage), provided that deeds, etc., that shall have been heretofore acknowl- edged before any county judge of any county in this state, or proven before any such officer by one or more of the subscribing witnesses and certified by the sub- scribing officer, shall be held to be duly acknowledged or proven with the full effects and consequences of ex- Thouvenin v. Kodrigues, 24 Tex. 468; St. Louis & S. W. Ey. Co. v. Kay, 85 Tex. 558, 22 S. W. 665. 78 Ante, § 679. 79 Post, § 888. 80 6 L. T. 223. 81 See Herndon v. Eeed, 82 Tex. 657. 82 Ante, § 699. 83 6 L. T. 251. §§ 889-891 WHO MAY TAKE ACKNOWLEDGMENTS. 364 istiiig laws, and that every such instrument so acknowl- edged or proven before siicli county judge, and which shall have been heretofore registered, shall be held to have been dulv registered.^* ^ 889. Act of May 6, 1871— Omits County Judges. — The act of INIay 6, 1871^^ ( taking effect from passage, amend- ing the eleventh section of the act of May 12, 1846), provides that proof or acknowledgment of every in- strument of writing for record may be taken before some one of the following ofiflcers : First, when acknowl- edged or proven within this state, before some notary, public, district clerk or judge of the supreme or district court in this state, etc., county judges being omitted. ( This act is changed by the codiflers of Revised Statutes of 1879, which authorizes county judges to take ac- knowledgments.)*^ § 890. Constitution of November 24, 1875 — County Courts. The constitution of November 24, 1875,®'' provided for a county court in each county in the state which shall be a court of record, and there shall be elected by the qualified voters a county judge, who shall hold his office for two years, and until his successor qualifies. ** § 891. Act of June 16, 1876— County Courts. — The act of June 16, 1876*^ (taking effect from passage, now in force), provides that there shall be established in each county a court of record styled the "County court" and that one county judge shall be elected in each county for two years and hold his office until his successor qualifies, but it does not authorize him to take acknowl- edgments. It also validates certain acts of county judges, but not, it seems, acknowledgments taken by 84 Ante, § 701. 85 6 L. T. 976; P. D. 7418. 86 Ante, § 703. 87 Article 5, § 15; 8 L. T. 800. 88 Ante, § 708. 89 8 L. T. 853. 365 OFFICERS OF THE COUNTY COURT. §§892-894 them, as those acts only were validated which would have been authorized by the provisions of this act, and acknowledgments were not so authorized.®^ § 892. Act of July 28, 1876— Validates.— The validat- ing act of July 28, 1876®^ (taking effect November 19, 1876), providing that where any certificate of acknowl- edgment or proof of a conveyance by a married woman heretofore taken by an authorized officer is invalid on account of some word, it shall, nevertheless, be held to be valid, provided the certificate shall show that she was examined by the officer privately, that the instrument was explained to her, and that she declared that she had willingly signed the same and that she did not wish to retract it.®^ § 893. Act of August 18, 1876— Seal.— The act of Au- gust 18, 1876®^ (taking effect from passage), provides for a seal of the county court.®'* § 894. Revised Statutes of 1879 and 1895— Officers Au- thorized. — The act now in force, Eevised Statutes of 1879 and 1895, article 4613 (taking effect September 1, 1879), provides that the acknowledgment or proof of an in- strument of writing for record, may be made within this' state before either, 1. A clerk of the district court ; 2. A judge or clerk of the county court; 3. A notary public. While the above article (4613) purports to be the act of May 6, 1871, it differs from it in that the above article (4613, Revised Statutes of 1895) includes county judges, and omits judges of the supreme and district courts. 00 Ante, § 712. 91 8 L. T. 897. 92 See post, § 1049. 93 8 L. T. 1008. 94 Ante, § 523. § 895 WHO MAY TAKE ACKNOWLEDaMENTS. 366 CHAPTER XXIII. WHO MAY TAKE ACKNOWLEDGMENTS— DISTEICT JUDGES. § 895. Summary of statutes. § 896. Act of February 5, 1840— District judges authorized to take acknowledgments. § 897. Act of February 3, 1841 — District judges authorized to take acknowledgments of married women. § 898. Act of February 5, 1841— District judges omitted, but au- thorized as associate judges. § 899. Act of April 30, 1846— District judges authorized to take acknowledgments of married women. § 900. Note. § 901. Act of May 11, 1846— Seals. § 902. Act of May 12, 1846— District judges omitted. § 903. Authority of district judges to take single acknowledg- ments revoked. § 904:. Idem. § 90^. Authority of district judges to take acknowledgments of married women not revoked. § 906. Act of December 18, 1849— County clerks authorized to take acknowledgments. § 907. Act of April 6, 1861 — Judges of courts of record authorized. § 90^. Act of January 14, 1862— Judges of courts of record au- thorized, § 909. Act of November 13, 1866— Authority of judges of court of record revoked. § 9r0. Idem. § 911. Act of August 8, 1870— District judges omitted. § 912. Act of May 6, 1871 — ^District judges authorized to take ac- knowledgments. § 918. Act of July 28, 1876— Validates. § 914. Eevised Statutes of 1879— Authority of district judges re- voked. § 915. Revised Statutes of 1879 and 1895— Idem. § 895. Summary. — From the following statutes it seems that from March 16, 1840, to July 13, 1846, dis- trict judges were authorized to take acknowledgments of all instruments for record. From July 13, 1846, to April 6, 1861, they were authorized to take acknowl- edgments of husband and wife of conveyances of the 367 DISTEICT JUDGES. §§ 896, 897 homestead and separate property of the wife, but not single acknowledgments. From April 6, 1861, to No- vember 13, 1866, the district judges were authorized to take both joint and single acknowledgments. From November 13, 1866, to May 6, 1871, they were probably not authorized to take acknowledgments. From May 6, 1871, to September 1, 1879, they were again author- ized to take both joint and single acknowledgments, but after the Eevised Statutes of September 1, 1879, dis- trict judges were not again authorized to take acknowl- edgments. § 896. Act of February 5, 1840— District Judges Author- ized to Take Acknowledgments. — The first act authorizing district judges to take acknowledgments was that of February 5, 1840 (taking effect March 16, 1810).^ It authorized the record of instruments upon the certifi- cate of some district judge, chief justice or notary pub- lic of the county with the seal of his office thereunto annexed that such acknowledgment was made or exe- cution proven.^ This act was no doubt repealed by the act of May 12, 1846,^ but not by the act of Febru- ary 5, 1841.^ District judges were also the associate judges of the supreme court.® § 897. Act of February 3, 1841— District Judges Author- ized to Take Acknowledgments of Married Women.— The act of February 3, 1841 (taking effect from passage),^ au- thorized judges of the district court and chief justices of the county court to take acknowledgments of hus- band and wife after her separate examination, of con- veyances of her separate property. 1 2 L. T. 328. 2 Ante, § 613. 3 Post, § 903. 4 Ante, §§ 622-62.5, 627-631. 5 Ante, § 596. 6 2 L. T. 608. 7 Ante, § 617. 7 §§ S98-900 WHO MAY TAKE ACKNOWLEDGMF^TS. 368 § 898. Act of February 5, 1841 — District Judges Omitted, but Authorized as Associate Judges. — The act of February 5, 184:1,"^ provided tliat every o;rant, deed or other in- strument for the conveyance of real estate or personal property, or both, or for the settlement thereof, in mar- riage, etc., as well as any and every other deed or in- strument required or permitted by law to be recorded, filial! he duly ref/istered upon acknowledgment or proi^f before any chief or associate justice of supreme court, chief justice or clerk of county court or notary public , omittino- district judg-es. It seems, however, that this does not repeal previous laws, nor revoke the authority of district judges to take acknowledgments.^ They were also still authorized as associate judges of the supreme court by this act-*^^ § 899. Act of April 30, 1846— District Judges Author- ized to Take Acknowledgments of Married Women. — The act of April 30, 1846 (taking effect June 22, 1846),*^ pro- vided that judges of the supreme or district court may take the acknowledgment of husband and wife, after the private examination of the wife, to deeds of her separate property, the homestead and other exempt property. § 900. Note.— It seems that the act of May 12, 1846, being passed at the same legislature as this act does not repeal it nor revoke the authority of district judges to take acknowledgment of husband and wife for con- veyances of her separate property ;^^ the court saying in the case referred to, "that the same legislature is sup- posed to be actuated in all that it does by the same mind, spirit and intention, and to have at all times the same governing policy. The artificial being is supposed 8 2 L. T. 633. 9 Ante, §§ 619-631. 10 Ante, § 596. 11 2 L. T. 1462. 12 Galveston S. & N. G. E. W. Co. v. Gross, 47 Tex. 435. 369 DISTEICT JUDGES. §§ 901-903 to be of but one mind, and that a rational and intelli- gent one, and all acts in pari materia are to be taken together as if they were but one law." In Monroe v. Arledge,-^^ it is held that the act of May 8, 1846, authorizing commissioners of deeds to authen- ticate instruments of writing for record being passed at the same legislature as the act of May 12, 1846, was not repealed by it, although by its terms the latter act seemed to limit the authentication of instruments to notaries and county clerks ; the court saying "that both acts were passed at the same session, and also that one of the acts was special and the other general. Under these circumstances, it required very plain inconsist- ency or contradiction between the two to authorize the opinion that the latter act repealed the former. Such, we think, does not exist in this case." It seems that under this act district judges were authorized to take acknowledgments of married women until April 6, 1861. § 901. Act of May 11, 1846— Seals.— The act of May 11, 1846,** provided for a seal of district courts.*^ § 902. Act of May 12, 1846— District Judges Omitted.— The act of May 12, 1846 (taking effect July 13, 1846),*« provides that proof or acknowledgment of every instru- ment of writing for record shall be taken by some one of the following officers: First, when acknowledged or proven in the state, before some notary public or clerk of the county court of any county of the state, etc.*'' § 903. Authority of District Judges to Take Single Ac- knowledgments Revoked. — This act omits district judges, and thus, it seems, revokes their authority to take ac- knowledgments of deeds of all property except the sep- 13 23 Tex. 481. 14 2 L. T. 1508. 15 See ante, § 512. 16 2 L. T. 1544. 17 Ante, § 644. 24 § 904 WHO MAY TAKE ACKNOWLEDGMENTS. 370 arate property of the wife, the homestead and other ex- empt property,*® In McCelvey v. Cryer/^ it is held that the art of January 19, 1839, which provided that it shall be the duty of clerks to record instruments pre- sented to them for record provided the grantor shall acknowledge the same, which proof or acknowledgment shall be made either before some county court or chief justice thereof, or before the clerk in whose office the record is proposed to be made, and repealed all laws contrary thereto, revoked the authority of notaries to take acknowledgments by omitting them from its pro- visions. This act of May 12, 1846, provides that every acknowl- edgment "shall" be taken by a notary public or clerk of the county court, and it is clear from Justice Gaines' opinion that the use of the word "shall" in such pro- vision limits the act to those two officers. In discuss- ing whether or not the act of August 8, 1870, authoriz- ing district clerks and their deputies to take acknowl- edgments, was repealed by the act of May 6, 1871, which omitted deputies, the court says that "the language of the latter act is not that the proof or acknowledgment 'shall be taken,' but that it 'may be taken' before some one of the officers named ; and it seems to me per- fectly consistent with the former law which permits some other officers to exercise the power. "^® § 904. Idem. — The rule is well settled that though the law does not favor repeals by implication, yet a subsequent statute revising the subject matter of the former one intended as a substitute for it, although it contains no express word to that effect, will operate a repeal of the former, to the extent to which its provi- sions are supplied or repealed.^* And if a subsequent statute be not repugnant in all its provisions to a prior 18 Ante, § 900. 19 (Tex. Civ. App.), 28 S. W'. 691. 20 Herndon v. Eeecl, 82 Tex. 651, 18 S. W. 665. 21 Stirman v. State, 21 Tex. 736. 371 DISTEICT JUDGES. §§ 905,906 one, jet if the latter statute was clearly intended to pre- scribe the only rule which should govern, it repeals a prior one.^^ § 905. Authority of District Judges to Take Acknowledge- ments of Married Women not Revoked. — But, as above stated, this act did not, it seems, repeal the act cf April 30, 1846, passed at the same legislature, authoriz- ing district judges to take the acknowledgments of hus- band and wife to conveyances of property in which she had an interest, and the authority of such officers in that particular was not revoked. In Munroe v. Ar- ledge,-^ it is held that the act of May 8, 1846, author- izing commissioners of deeds to authenticate instru- ments, being passed at the same legislature as the act of May 12, 1846, was not repealed by it, although by its terms the act of May 12, 1846, seemed to limit the au- thentication of instruments to notaries public and county clerks. By a parity of reasoning it is clear that the act of April 30, 1846, was not repealed by the act of May 12, 1846, passed a few days later by the same legislature. The same legislature being supposed to have but one mind and to have at all times the same governing policy.^^ § 906. Act of December 18, 1849— County Clerks Author- ized to Take Acknowledgments. — The act of December 18, 1849 (taking effect from passage), ^^ authorized clerks of the county courts to take acknowledgments of mar- ried women under the same rules as are prescribed for judges of the supreme and district courts under the act of April 30, 1846. This also seems to imply that dis- 22 Bryan v. Sundberg, 5 Tex. 423; Rogers v. Watrous, 8 Tox. 6.5, 58 Am. Dec. 100; St. Louis & S. W. Ry. Co. v. Kay, 85 Tex. 559, 22 S. W. 665; ante, § 646. 23 23 Tex. 481. 24 Galveston S. & N. G. Ry. Co. v. Gross, 47 Tex. 435; Russell v. Farquhar, 55 Tex. 361; Selman v. Wolfe, 27 Tex. 72; ante, § 647. 25 3 L. T. 449. §§ 907-909 WHO MAY TAKE ACKNOWIiEDGMENTS. 372 triet judges still had at that time the power to take ac- kno^^•ledgmellts of married women, which they no doubt had. § 907. Act of April 6, 1861— Judges of Courts of Record Authorized — ^The act of April 6, 1861 (entitled "An act prescribing the manner of authenticating instruments for record," taking effect from passage),^® provided that acknowledgment or proof of every instrument for record within the state shall be taken by a notary pub- lic, clerk of the county court or judge of a court of rec- ord. This, of course, includes a district judge. The provisions of all laws in so far as they conflict with this act were thereby repealed.^'^ § 908. Act of January 14, 1862 — Judges of Courts of Rec- ord Authorized. — The act of January 14, 1862, supple- mental and amending act O'f April 6, 1861 (taking effect from passage),^** again provided that proof or acknowl- edgment of every instrument of writing for record shall be taken by judges of the courts of record, etc.^^ § 909. Act of November 13, 1866— Authority of Judges of Courts of Records Revoked. — The act of November 13, 1866 (entitled "An act to amend section 11 of an act, to provide for the registry o-f deeds, etc., approved May 12, 1846," taking effect from passage) ,^^ provided that proof or acknowledgment of every instrument of writ- ing for record shall be taken when within this state by a notary public or clerk of the county court of any county in this state. It seems that this act limits the authentication of deeds to these two officers.^^ 26 5 L. T. 373. 27 Ante, §§ 686-687. 28 5 L. T. 501. 29 Ante, § 688. ' - SO 5 If. T. 1128. 31 Ante, § 691. 373 DISTEICT JUDGES. §§ 910-912 § 910. Idem. — It will be seen that since the passage of the act cf May 12, 1846, the acts of April 6, 1861, and January 14, 1862, were passed prescribing the man- ner of authenticating instruments for record, and pro- vided that when taken within the state, it shall be be- fore a notary public, clerk or judge of a court of record, and repealed the laws in conflict. They authorize judges of courts of record to take acknowledgments and the act of May 12, 1846, which did not, was repealed.^^ But the act of November 13, 1866, ignored the acts of April 6, 1861, and January 14, 1862, and amended the act of May 12, 1846, which had been repealed, and pro- vided that acknowledgments within the state shall be taken by a notary public or county clerk.^^ Where an act provides that an acknowledgment "shall" be taken by certain oflacers, it limits the act to those officers.^* And it is clear that this was intended as a substitute for the previous acts authorizing district judges to take acknowledgments, and repeals such acts to that ex- tent^^ § 911. Act of August 8, 1870 — District Judges Omitted. — The act of August 8, 1879 (taking effect from pas- sage), ^^ authorizing district clerks and their deputies and notaries public to take acknowledgments, omitted district judges and repealed laws in conflict there- with.^'' But it seems that this would not revoke the authority of district judges if any existed.^* § 912. Act of May 6, 1871 — District Judges Authorized to Take Acknowledgments. — The act of May 6, 1871 (taking 32 Herndon v. Keed, 82 Tex. 651, 18 S. W. 665; ante, § 623. 33 As to amendment of repealed statute, see ante, § 692. 34 Herndon v. Eeed, 82 Tex. 651, 18 S. W. 665. 35 Ante, §§ 903, 904; Bryan v. Sundberg, 5 Tex. 423; Eogers v. Watrous, 8 Tex. 65, 58 Am. Dec. 100; S. L. & S. W. Ey. Co. v. Kay, 85 Tex. 559, 22 S. W. 665; Stir man v. State, 21 Tex. 734; Thouvenin V. Kodrigues, 24 Tex. 468. But see ante, § 692. 36 6 L. T. 223. 37 Ante, §§ 695, 703. 38 Ante, §§ 621-631. §§ 913-915 WHO MAY TAKE ACKNOWLEDGMENTS. 374 effect from passage),^'* purporting to amend section 11 of act of Mi\y 12, 1846, provided that acknowledgments "may" be taken within the state before some notary public, district clerk or judge of supreme or district court. This is repealed by the Revised Statutes of 1879, authorizing other officers to authenticate instru- ments and omitting district judges.*^ § 913. Act of July 28, 1876— Validates — The act of July 28, 1876 (taking effect November 19, 1876),** vali- dates the certificates of acknowledgments of deeds of married women, taken before any authorized officer, whenever such certificate of acknowledgment is invalid because same is wanting in some word required by law, provided that such certificate shall show on its face that the married woman was examined by the officer taking the acknowledgments separate and apart from her husband, and having the same fully explained to her, she declared that she had willingly signed the same, and that she did not wish to retract it ; or words to that effect.*^ § 914. Revised Statutes of 1879 and 1895— Authority of District Judges Revoked. — The Revised Statutes of 1879 (and 1895, purporting to be a continuation of act of May 6, 1871), amends said act by providing that ac- knowledgments within this state "may" be taken before the clerk of the district court, a judge or clerk of the county court, or a notary public, and omits district judges. This revokes the authority of district judges to take ackuowledgments."*^ § 915. Idem The Revised Statutes of 1879 (Final Title, sec. 4), repeals all general laws not incorporated 39 6 L. T. 999. 40 TalTaert v. Dull, 70 Tex. 679, 8 S. W. 530; ante, § 703. As to amendment of repealed statute, see ante, § 692. 41 8 L. T. 897. 42 McDaniel v. Harold, 1 V. G. 521; post, § 1049. 43 Talbert v. Dull, 70 Tex. 679, 8 S. W. 530. 375 BISTEICT JUDGES. § 915 therein. As district judges were not therein authorized to take acknowledgments, their authority was re- voked.*^ They were not thereafter authorized. 44 See ante, §§ 107-110. § 916 WHO MAY TAKE ACKNOWLEDGMENTS. 376 CHAPTER XXIV. WHO MAY TAKE ACKNOWLEDGMENTS— JUDGES OF THE SUPEEME COUET AND COUETS OF APPEAL. § 916. Summary of statutes. § 917. Act of February 5, 1840 — Supreme judges authorizerl to take acknowledgments. § 918. Note. § 919. Act of April 30, 1846 — Supreme judges autliorized to take acknowledgments of married women. § 92D. Note. § 921. Act of May 12, 1846 — Authority of supreme judges to taki^ single acknowledgment revoked. § 92'2. Note. § 923. Act of April 6, 1861 — Judges of supreme court again au- thorized. § 924. Act of January 14, 1862 — Judges of supreme court again authorized. § 925. Act of November 13, 1866— Authority of judges of supreme court revoked. § 926. Act of August S, 3 870 — Judges of supreme court omitted. § 927. Act of May 6, 1871 — Judges of supreme court again au- thorized. § 928. Act of May 6, 1876— Court of appeals. § 929. Act of July 28, 1876— Validates. § 930. Eevised Statutes of 1879— Authority of judges of supreme court revoked. § 931. Act of April 13, 1892— Court of civil appeals. § 916. Summary of Statutes. — From March 17, 1841, to July 13, 1846, judges of the supreme court were au- thorized to take single acknowledgments. From March 17, 1841, to June 22, 1846, query, were they authorized to take acknowledgments o-f married women? From June 22, 1846, to April 6, 1861, they were, it seems, au- thorized to take acknowledgments of married women. From July 13, 1846, to April 6, 1861, they were not au- thorized to take single acknowledgments. From April 6, 1861, to November 13, 1866, they were authorized to take both single and joint acknowledgments. From November 13, 1866, to May 6, 1871, they were not au- 377 SUPEEME JTJDGES. §§ 917-919 thorized to take either joint or single acknowledgments. From May 6, 1871, to the adoption of the Revised Stat- utes of September 1, 1879, they were authorized to take both single and joint acknowledgments. Thereafter they were not authorized. § 917. Act of February 5, 1841 — Supreme Judges Author- ized to Take Acknowledgments. — The first act to authorize acknowledgments by judges of the supreme court within this state was that of February 5, 1841 (taking effect March 17, 1841).^ This act provided that every grant, deed or instrument for the conveyance of real estate or personal property, or both, or for the settlement thereof in marriage, etc., as well as in every other deed or in- strument required or permitted by law to be registered, shall be duly registered upon acknowledgment or proc^f before any chief or associate justice of the supreme court, etc. It also provided that if instruments were properly certified by such officer, subscribing witnesses were not necessary.^ § 918. Note. — \\'hile the terms of this act are general enough to include acknowledgments of married women as well as those of other persons, there may be a ques- tion as to its applying to them, as the act of February 3, 1841, passed two days earlier by the same legislature, authorized other officers to take her acknowledgments.^ The authority of the above officers, as to acknowledg- ments of married women, was probably revoked by the act O'f April 30, 1846,* and as to those of other persons, by the act of May 12, 1846.^ § 919. Act of April 30, 1846 — Supreme Judges Authorized to Take Acknowledgments of Married Women — The act of 1 2 L. T. 633. 2 Ante, § 620. 3 Ante, §§ 627-631, 652-656. 4 Ante, § 641. 5 Ante, §§ 644-646. §§ 920-922 WHO MAY TAKE ACKNOWLEDGMENTS. 378 April 30, 1846 (taking efPect June 22, 1846),^ provided that any judge of the supreme or district court or notary public may take the acknowledgments of hus- band and wife of deeds to her separate property, home- stead and other exempt property after private examina- tion of the wife. This act repeals all former laws con- cerning the mode of conveying property in which the wife has an interest.'^ § 920. Note. — The question as to whether or not this act revokes the authority of officers authorized by former acts to take acknowledgments of married women, seems not to have been directly decided.^ The author- ity given under this act to above officers was, it seems, not revoked by the act of May 12, 1846, but remained until the act of April 6, 1861, again authorized them.^ § 921. Act of May 12, 1846— Authority of Supreme Judges to Take Single Acknowledgments Revoked. — The act of May 12, 1846 (taking effect July 13, 1846),^*^ provided that proof or acknowledgment of every instrument of writ- ing for record shall be taken by some one of the follow- ing officers : First, when acknowledged or proven within the state before some notary public or clerk of the county court of any county in the state, etc.^* § 922. Note. — This act omits supreme judges and no doubt repeals the law authorizing them to take single acknowledgments.^^ But this act probably does not revoke the authority of supreme judges to take the joint acknowledgments of husband and wife authorized by 6 2 L. T. 1462. 7 Ante, § 637. 8 See ante, § 641. 9 Post, § 922. 10 2 L. T. 1544. 1 1 Ante, § 644. 12 Herndon v. Keed, 82 Tex. 651, 18 S. W. 665. Also ante, § 646. 379 SUPREME JUDGES. §§ 923-926 the act of April 30, 1846, as both of these acts were passed by the same legislature.^^ § 923. Act of April 6, 1861 — Judges of Supreme Court Ag-ain Authorized. — The act of April 6, 1861 (taking effect from passage)/* provided that acknowledgments within the state shall be taken by a notary public, clerk of the county court or a judge of a court of record. The supreme court being a court of record,^^ judges thereof were authorized to take any and all acknowledg- ments. § 924. Act of January 14, 1862— Judges of Supreme Court Again Authorized. — The act o-f January 14, 1862 (taking effect from passage),*** again authorized judges of courts of record to take acknowledgments. § 925. Act of November 13, 1866— Authority of Judges of Supreme Court Revoked. — The act of November 13, 1866 (taking effect from passage),*'" provided that acknowl- edgments within the state ffhall be taken by a notary public or a clerk of the county court of any county in the state. This seems to limit the authentication of in- struments to the officers therein mentioned, and omits judges of the supreme court.** § 926. Act of August 8, 1870— Judges of Supreme Court Omitted— The act of August 8, 1879 (taking effect ^from passage),*'* authorized district clerks and their deputies and notaries public to take acknowledgments. But again supreme judges were omitted. 13 Ante, § 647. Also Munroe v. Arledge, 23 Tex. 481; Galveston S. & N. G. R. R. Co. V. Gross, 47 Tex. 355; Russell v. Farquhar, 55 Tex. 361. 14 5 L. T. 373. 15 2 L. T. 1555. 10 5 L. T. 501. 17 5 L. T. 1128. 18 Ante, § 646. 19 6 L. T. 223. §§ 927-930 WHO MAY TAKE ACKNOWLEDGMENTS. 380 § 927. Act of May 6, 1871— Judges of Supreme Court Again Authorized. — The act of May 6, 1871^^ (taking effect from passage, amending section 11 of the act of May 12, 1846), provided that acknowledgments may be taken Avhen within the state before some notary public, district clerk or judge of the supreme or district court. This act is amended by the Revised Statutes of 1879.^* § 928. Act of May 6, 1876— Court of Appeals. — By the act of May 6, 1876, the court of appeals was established as a court of record, but judges thereof were not au- thorized to take acknowledgments and proof. § 929. Act of July 28, 1876— Validates.— The act of July 28, 1876^^ (taking effect November 19, 1876), vali- dates the certificates of acknowledgment of deeds of married women taken before any authorized officer whenever such certificate of acknowledgment is invalid, because the same is wanting in some word required by law; 'provided that such certificate shall show on its face that the married woman was examined by the of- ficer taking the acknowledgment separate and apart from her husband, and having the same ^fully explained to her, she declared that she had willingly signed the same and that she did not wish to retract it; or words to that effect.23 § 930. Revised Statutes of 1879 — ^Authority of Judges of Supreme Court Revoked. — The Revised Statutes of 1879,^ amending the act of May 6, 1871, provides that acknowl- edgments within the state may be made before a clerk of the district court, a judge or clerk of the county court, a notary public, and omits judges of the supreme court. The Final Title of Revised Statutes repeals all 20 6 L. T. 999. 21 Ante, § 692. 22 8 L. T. 897. 23 McDaniel v. Harold, 1 U. C. 521. 24 Article 4305. 381 SUPEEME JUDGES. § 931 general laws not included in Kevised Statutes. There- after, judges of the supreme court were not authorized to take acknowledgments.^^ § 931. Act of April 13, 1892— Court of Civil Appeals. — The act o'f April 13, 1892,-'^ establishing the court of civil appeals, does not authorize the judges thereof to take acknowledgments. 25 Talbert v. Dull, 70 Tex. 679, 8 S. W. 530. 26 10 L. T. 389. §§ 932-934 WHO MAY TAKE ACKNOWLEDGMENTS. 382 CHAPTER XXV. WHO MAY TAKE ACKNOWLEDGMENTS— FEDERAL JUDGES. § 932. Summary of statutes. § 933. Act of April 6, 1861 — 'Judges of courts of record authorized. § 934. Idem. § 931). Idem. § 936. Act of November 13, 1866 — Authority of judges of courts of record revoked. § 932. Summary of Statutes. — It appears from the fol- lowing statutes that judges of the United States cir- cuit and district courts, as "judges of the courts of rec- ord," possibly were at one period, to wit, from April 6, 1861, to November 13, 1866, authorized to authenticate instruments for record within this state. § 933. Act of April 6, 1861 — Judges of Courts of Record Authorized. — The act of April 6, 1861* (taking effect from passage), provided that proo'-f of every instrument of writing for record shall be made by some one of the following officers, first, when acknowledged or proven within this state, before some notary public, clerk of the county court or judge of a court of record. § 934. Idem. — United States circuit and district courts were courts of record, and were courts within the state. It is held that while a United States circuit court may not technically be a court o'f the state, it is a court within it.^ And that while a state cannot confer jurisdiction on a federal court without the consent of the parties, it may with their consent.^ Where the act of April 3, 1891,^ provided that any dissatisfied "rail- 1 5 L. T. 373. 2 Schollenberger v. Schollenberger, 96 U. S. 369, 378, 24 L. ed. 853. 3 Idem. 4 § 6; 10 L. T. 60. 383 FEDERAL JUDGES. §§ 935,936 road company or other party at interest, may file a petition, in a court of competent jurisdiction in Travis county, Texas, ag^ainst said commission as defendant," it was held that the United States circuit court for the western district of Texas is "a court of competent juris- diction in Travis county." The court saying, "it comes within the very terms of the act."^ From this it would seem that they were authorized to take acknowledg- ments by above act. § 935. Idem. — Judges of the courts O'f record were again authorized to take acknowledgments by the act of January 14, 1862 (taking effect from passage).® § 936. Act of November 13, 1866— Authority of Judges of Courts of Record Revoked. — The act of November 13, 1866 (taking effect from passage),'' provided that acknowl- edgments within the state shall be taken by a notary public or clerk of the county court of any county in the state. This seems to limit the authentication of deeds, etc., to these two officers.^ There seems to be no later act which would authorize federal judges within this state to authenticate instruments for record. 5 Reagan v. Farmers' Loan and Trust Co., 154 U. S. 389-392, 38 L. ed. 1021, 14 Sup. Ct. Rep. 1062. 6 5 L. T. 501. 7 '5 L. T. 428. 8 Herndon v. Reed, 82 Tex. 651, 18 S. W. 665, and McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 69. And ante, § 646. WHO MAY TAKE ACKNOWLEDGMENTS. 384 CHAPTER XXVI. WHO MAY TAKE ACKNOWLEDGMENTS- COUNTY CLERKS, THEIR DEPUTIES, AND PRO TBM CLERKS. § 957. Summary of statutes. § 9SS. Act of December 20, 1836— County clerks authorized— Note. § 939. Idem. § 94D. County clerks authorized to take proof of handwriting. § 941. '■'Pro tem" clerk. § 942. Acknowledgments by county clerks. § 943. Act of December 21, 1837 — Deputy county clerks. § 94'4. Idem. § 945. Act, of January "V9, 1839— County clerks authorized to take acknowledgments of deeds, to be recorded in their own counties. § 946. Validates. § 947. Act of February 5, 1840 — County clerks authorized to take acknowledgments of instruments to be recorded in their own counties. § 948. Validated. § 949. Act of December 24, 1840 — Validates acts of Samuel Todd. § 95^0. Act of February 3, 1841 — County clerks omitted. § 951. Act of February 5, 1841 — Validates. § 952. Idem. § 953. County clerks authorized to take acknowledgments of in- struments to be recorded in their own counties. § 954. Idem. § 95"5. Act of April 30, 1846^ — County clerks omitted— Note. § 956. Idem. § 957. Act of May 12, 1846 — County clerks authorized to take ac- knowledgments. § 958. Authority of county clerks extended — Of certain other officers revoked. § 959. Act of May 13, 1846— Deputies. § 960. Idem. § 961. Act of March 16, 1848— Deputies. § 962. Act of March 16, 1848 — Deputies and pro tem clerks. § 963. Act of December 18, 1849 — County clerks authorized to take acknowledgments of married women. § 964. Act of November 24, 1851— Validates. § 965. Act of February 9, 1856 — Deputy county clerks authorized to take acknowledgments. § 966. Act of August 19, 1856— Validates. 385 COUNTY CLEEKS. § 937 § 967. Act of February 9, 1S60— Validates. § 968. Act of April 6, 1861 — County clerks authorized to take ac- knowledgments. § 969. Act of January 14, 1862 — County clerks and their deputies authorized to take acknowledgments. § 970. Act of November 13, 1866 — -County clerks again authorized. § 971. Constitution of 1869 — District clerks ex-officio county clerks. § 972. Act of August 8, 1870 — District clerks, their deputies and notaries authorized to take acknowledgments. § 973. Act of May 6, 1871 — District clerks again authorized. § 974. Act of May 2.5, 1871— Validates. § 975. Constitution of 1875 — County and district clerks authorized when. § 976. Act of May 25, 1876 — Deputy county clerks authorized. § 977. Act of June 16, 1876— Validates. § 978. Act of March 18, 1879 — District and county clerks one per- son — Validates. f 9f9. Eevised Statutes of 1879 and 1895 — County and district clerks again authorized. S 98D. Eemained in force. § 937. Summary of Statutes — (1) County Clerks — Single Acknowledgments — From December 20, 1836, to July 13, 1846, county clerks were authorized to take "single" ac- knowledgments of instruments to be recorded in their own counties but not in other counties. From July 13, 1846, to the election of district clerks (who were made ex-officio county clerks) under the constitution of 1869, and the abolition of the office of county clerk, they were authorized to take single acknowledgments of instru- ments to be recorded anywhere. From then until the election of county clerks under the constitution of 1875, district clerks, as ex-officio county clerks, were author- ized to take all acknowledgments. At all times there- after county clerks were authorized to take all acknowl- edgments. (2) Acknowledgments of Married Women. — Prior to March 17, 1841, county clerks were authorized to take acknowl- edgments of married women, when they were competent to convey, under same conditions as others. From March 17, 1841, to December 18, 1849, it is questionable if they were authorized. At all times thereafter, when 25 §§938,939 WHO MAY TAKE ACKNOWLEDGMENTS. 386 the office was not mero-ed with that of district clerk, they were authorized to take acknowk^dgments of mar- ried women. (Merged from election under constitu- tion of 1869 to that of 1875.) (3) Deputies. — After the appointment of deputies was authorized by act of December 21, 1837, they were al- ways authorized when their principals would be. (4) *'Pro Tern" Clerks — From December 20, 1836, to July 13, 1846, "pro tern" clerks were authorized to take acknowledgments the same as their principals. From July 13, 1846, to August 7, 1848, this office was abol- ished. From August 7, 1848, to December 31, 1866, the appointment of "pro tem" county clerks was provided for, but it is not clear that they were authorized to take acknowledgments. Thereafter "pro tem" county clerks were not provided for. § 938. Act of December 20, 1836— Clerks of County Courts Authorized to Take Acknowledgments, etc. — Previous to the act of December 20, 1836 (taking effect from passage),* clerks of the county courts were not authorized to au- thenticate nor record instruments.^ This act made county clerks the recorders and authorized them to cer- tify to the proof or acknowledgments of instruments to be recorded in their offices.^ § 939. Idem. — Section 35 of the said act is as fol- lows: "The clerks of the county courts shall be the recorders for their respective counties, and it shall be their duty to record all deeds, conveyances, mort- gages, and other liens, and all other instruments of writing required by law to be recorded in their offices, which are presented to them; provided one of the wit- nesses of the number required by law shall swear to the signature of the signer, or he himself so acknowl- 1 1 L. T. 1215; H. D. 2752; P. D. 4973. 2 See chapter 1. 3 Post, § 1021. 387 COUNTY CLEEKS. §§ 940-942 edge the same; which shall be certified by the recorder, and form part of the record ; and all deeds, conveyances, mortgages and other liens shall be recorded in the county where the property is situated."* § 940. County Clerks Authorized to Take Proof of Hand- writing. — Section 38 of said act^ provided that: "All titles, liens, mortgages or other colors of title, be*fore they can be admitted upon record, must be proved by at least two subscribing witnesses, if living in the county, and if not living in the county, then the hand- writing shall be proven either before some county judge or before the clerk of the county court in whose office such record is to be made ; and in all cases the certificate of the county judge, that the witness appeared before him and acknowledged his signature, or that the hand- writing of the same was duly proven, shall be sufficient evidence to authorize the clerk of the county court to enter such title, lien, mortgage or other color (ft title, upon record."^ § 941. "Pro Tern" Clerk — Section 9 of said acf pro- vided that in case of vacancy in the office of the county clerk, or during unavoidable absences of such clerk, the court in term time and the chief justices in vacation may appoint a clerk pro tem who shall discharge the same duties and have the same authority as the regu- larly elected clerk. Seal. — Section 12 of said act* provides for a seal, but does not require its use in the authentication of in- struments.^ § 942. Acknowledgments by County Clerks — It is ap- parent that this and the next section do not authorize 4 Ante, § 599. 5 1 L. T. 1215; H. D. 2755; P. D. 4982. 6 Ante, § 601. 7 H. D. 238. 8 H. D. 241. 9 See ante, § 490, etc. §§ 943-945 WHO MAY TAKE ACKNOWLEDGMENTS. 388 county clerks to take aeknowledpiients and proof of instruments to be recorded in other counties than their own; but such registration lias been since validated by the act of February 9, 1860, provided vested rights would not be affected thereby.*^ A conveyance was made in 1837 and proved for record by a subscribing witness before the county clerk of T. county and soon afterward was recorded in G. county where the land lay. It was objected to when offered in evidence be- cause the county clerk in T. county had no authority to take the proof in 1846, the land being in a different county; but it was held that the healing acts of Feb- ruary 5, 1841, and February 9, 1860, legalized the regis- tration.^^ In the case of Beaumont Pasture Co. v. Pres- ton et al.,^^ it is held that while the act of February 5, 1841, does not validate acknowledgments taken by county clerks of instruments to be recorded out of their own counties, the act of February 9, 1860, does. § 943. Act of December 21, 1837— Deputy County Clerks. The act of December 21, 1837,^^ provides that clerks of the county and district courts are authorized to appoint a deputy to discharge the duties of the office whose ac- tions the clerk shall be responsible for. § 944. Idem. — They were authorized to take acknowl- edgments.'* In 1881 a certificate of acknowledgment of a married woman, made by an officer styling himself special deputy county clerk, was held to be valid; as deputy county clerks were authorized, the addition of the word "special" would not vitiate it.*^ § 945. Act of January 19, 1839 — County Clerks Authorized to Take Acknowledgments of Deeds to be Recorded in Their Own 10 Post, § 1029. 11 Crayton v. Hamilton, 37 Tex. 269. 12 65 Tex. 456. 13 1 L. T. 1453. 14 See ante, § 587. Also Eose v. Newman, 26 Tex. 135, 80 Am. Dec. 646; Cook v. Knott, 28 Tex. 90; Frizzell v. Johnson, 30 Tex. 32. 15 Chicago etc. Ey. Co. v. Titterington, 84 Tex 219, 31 Am. St. Eep. 39, 19 S. W. 472. 389 COUNTY CLEEKS. §§ 946-950 Counties.— The act of January 19, 1839 (taking effect from passage), ^*^ again authorized county clerks to cer- tify to the proof or acknowledgment O'f instruments to be recorded in their offices, but it does not authorize them to take such proof or acknowledgment of instru- ments to be recorded in other counties.^'^ § 946. Validated — Such improper acknowledgments taken in the wrong county have since been validated by the acts of February 5, 1841, and February 9, 1860.*^ § 947. Act of February 5, 1840— County Clerks Authorized to Take Acknowledgments of Instruments to be Recorded in Their Own Counties. — The act of February 5, 1840 ( taking effect March 16, 1840),^^ authorized clerks of the county court and their deputies to admit conveyances to record on the acknowledgment of the party or parties, or on the proof of any such acknowledgment by the legal number of witnesses thereto made in the offices of the respective clerks.^** § 948. Validated — AA'hile this does not authorize the acknowledgment or proof by them of instruments to be recorded in other counties than their own, such regis- trations have since been validated, except as to vested rights.^* § 949. Act of December 24, 1840— Validates Acts of Samuel Todd. — The act of December 24, 1840,^^ legalizes the acts of Samuel Todd, county clerk of Shelby county, and his deputies. § 950. Act of February 3, 1841— County Clerks Omitted.— Act of February 3, 1841,^^ provided for the acknowl- 16 2 L. T. 52; H. D. 2760; P. D. 4974. 17 Ante, § 608. 18 Post, §§ 1019, 1029. 19 2 L. T. 328; H. D. 2768; P. D. 4975. 20 Ante, § 613. 21 Post, § 1019. 22 2 L. T. 613. 23 2 L. T. 608. : ' §§ 951-953 WHO MAY TAKE ACKNOWLEDGMENTS. 390 edgmoiit of deeds by married women and authorized judges of the district court and chief justices of the county court to take the same, omitting county clerks.^"* § 961. Act of February 5, 1841— Validates. — Section 20 of the act of February 5, 1841 (taking effect March 17, 1841),^^ validated the registration of conveyances here- tofore registered, provided they shall have been ac- knowledged by the grantor or the grantors befoi'e the chief justice, notary public or clerk of the county court in whose office such record is proposed to be made, or proof before such officers by one or more o'f the sub- scribing witnesses , and certified by such officer ; any ob- scurity or conflict in the existing laws to the contrary notwithstanding.^^ § 952. Idem. — While this does not seem to validate acknowledgments of county clerks where the acknowl- edgments were taken and records made by clerks of dif- ferent counties, the act of February 9, 1860, does in so far as vested rights would not be affected.^'' § 953. County Clerks Authorized to Take Acknowledg- ments to be Recorded in Their Own Counties. — Section 21 of said act of February 5, 1841,^* provided that "any grant, deed or instrument 'for the conveyance of real estate, or personal, or both, or for the settlement thereof in mar- riage, or separate property or conveyance of same in mortgage, on trust to uses, or on conditions, as well as any and every other deed or instrument required or permitted by law to be registered, hereafter to be made and recorded, shall be duly registered in the office of 24 Ante, § 617. 25 2 L. T. 633; H. D. 2776; P. D. 4977. 26 Ante, § 619. 27 Post, § 1029; Beaumont Pasture Co. v. Preston and Smith, 65 Tex. 456; Crayton v. Hamilton, 37 Tex. 369. And see Meuley v. Zigler, 23 Tex. 93; McDonald v. Morgan, 27 Tex. 506; Butler v. Dunagan, 19 Tex. 565. 28 H. D. 2777; P. D. 4978; 2 L. T. 633. 391 COUNTY CLEEKS. § 954 the proper county upon the acknowledgment of the party or parties signing the same before the register or clerk of the county court of that county, or chief jus- tice of the county, or a notary public thereof, or any as- sociate, or the chief justice of the supreme court, or proved by a subscribing witness before any such officer, and certified by him for record ; and if so acknowledged there need be no subscribing witnesses. "^^ § 954. Idem. — There is some question as to whether or not this act authorized county clerks to take ac- knowledgments of married women. Its terms are gen- eral enough to include hers as well as others, and, sub- sequent statutes in practically the same terms have uniformly been held to include and authorize married women's acknowledgments as well as others. The stat- ute of May 6, 1871,^** provided that "proof or acknowl- edgment of every instrument of writing for record may be taken before some one of the following officers : First, when acknowledged or proved within the state, before some notary public, district clerk or judge of the su- preme or district court in the state," etc., and it was held that district clerks by virtue of said act had au- thority to take acknowledgments of married women.^^ Again, the act of January 14, 1862,^^ provided that "proof of every instrument of writing for record shall be taken by some one of the following officers," naming county clerks and others, and it was held that they were auti'iorized thereby to take acknowledgments of married \Aomen.^^ These latter acts were passed at leg- islatures subsequent to the acts providing how acknowl- edgments of married women shall be taken, and au- thorizing certain officers to take them, and there was 29 Ante, § 620. :^o Ante, § 703. 31 Thompson v. Johnson, 84 Tex. 553, 19 S. W. 784; Wilson v. Simpson, 68 Tex. 312, 4 S. W. 839. 32 Ante, § 688. 33 Leach v. Dodson, 64 Tex. 189. See ante, §§ 627-631, 652-656. §§ 955-957 WHO MAY TAKE ACKNOWLEDGMENTS. 392 uo question of their applying to all acknowledgments according to their terms. The reason for questioning the application of the act of February 5, 1841, to ac- knowledgments of married women is that this act and the act of February 3, 1841, providing for acknowledg- ments by married women, and who could take them, were passed by the same legislature and should be con- strued together.** § 955. Act of April 30, 1846— County Clerks Omitted.— The act of April 30, 1846,^^ providing how acknowledg- ments of married women must be taken, authorized judges of the supreme and district courts, and notaries public to take same, and omitted county clerks. ^^ § 956. Idem. — This may revoke the authority of offi- cers previously authorized to take acknowledgments of married women. The repealing clause provides that all former laws and parts of laws, concerning the mode of conveyance of property in which the wife has an inter- est, be and the same are hereby repealed.^'^ It is not clear whether the term "mode of conveyance" used in said repealing clause referred also to the authority of the officers authorized (and limited it to those named in said act), or only to the manner in which they shall act. It would seem the latter. The same legislature at about the same time by another law authorized commis- sioners of deeds to take the wife's acknowledgments as well as others. ^^ § 957. Act of May 12, 1846— County Clerks Authorized to Take Acknowledgments.— The act of May 12, 1846^^ (tak- 34 Ante, § 626. For further authorities, see ante, §S 627-631, 652- 656. 35 H. D. 174; P. D. 1003; 2 L. T. 1462. 36 Ante, § 637. 37 Ante, § 639. 38 Ante, § 729. For further authorities, see ante, §§ 641, 647, 652, 656, 662-665. 39 P. D. 5011; H. D. 2794; 2 L. T. 1544. 393 COUNTY CLERKS. §§ 958-960 ing effect July 13, 1846), provided that "proof or ac- knowledgment of every instrument of writing for rec- ord shall be taken by some one of the following officers: First, when acknowledged or proven within the state, before some notary public, or clerk of the county court of any county in the state," etc.'*** § 958. Authority of County Clerks Extended— Of Certain Other Officers Revoked. — It is seen that the authority of county clerks by this act permits them to certify to in- struments to be recorded in other counties than their own. The authority of all officers authorized to take acknowledgments and proof by previous legislatures is revoked.*^ While there is no question of the authority of county clerks under this act to take single acknowl- edgments, there may be some question of their authority to take acknowledgments of married women, for the rea- son that another act (April 30, 1846), passed by the same legislature a few days prior, providing how ac- knowledgments of married women must be taken, au- thorized other officers to take them, and omitted county clerks.'*^ § 959. Act of May 13, 1846— Deputies.— The act of May 13^ 1846 (taking effect July 13, 1846),*^ provided that county clerks shall under their hand and seal appoint a deputy for whose acts the clerk shall be responsible. He shall also procure a seal, etc. 44 § 960. Idem.— Deputy county clerks were authorized or provided for by the acts of December 31, 1837, Feb- ruary 5, 1840, and May 13, 1846. And such deputies by virtue of their appointment would be authorized to take acknowledgments under the same conditions as 40 Ante, § 644. 41 Ante, § 637. 4 2 See ante, §§ 652-656. 43 2 L. T. 1640. 44 See "Seal," ante, §§ 511, 658. §§961,962 WHO MAY TAKE ACKNOWLEDGMENTS. 394 their principals.^® This is an act organizing county courts, and appears to contemplate the whole subject matter of the organization of such courts, and the offi- cers of same,"*^ and to that extent is a substitute for and repeals the act of December 20, 1836, but probably does not affect the jurisdiction of same.'*'' No provision is made in this act for pro tem clerks, and such officers were no doubt thereby abolished until the act of March 16, 1848, took effect. § 961. Act of March 16, 1848— Deputies.— The act of March 16, 1848 (taking effect April 29, 1848),** re- quired clerks of county courts to have deputies at county seats in all cases where clerks do not reside there. *^ § 962. Act of March 16, 1848— Deputies and Pro Tem Clerks.— The act of March 16, 1S48 (taking effect Au- gust 7, 1848),®** again authorizes county clerks to ap- point deputies under their hands and seals,®* and in case of vacancy in office or the absence of the clerk and his deputies, the chief justice may by an order entered on the minutes Of the court either in vacation or term time ap- point a clerk pro tem for not more than thirty days.®^ It also provides that in case of vacation in the office of chief justice two county commissioners shall have power to hold all such courts as the chief justice can hold, and to do and perform all such official acts as he can do and perform.®^ 45 Eose V. Newman, 26 Tex. 135, 80 Am. Dec. 646; Chicago etc. Ry. Co. V. Titterington, 84 Tex. 219, 31 Am. St. Eep. 39, 19 S. W. 472; ante, § 587. 4G Ante, §§ 657-661. 47 Ante, §§ 662-665. 48 3 L. T. 128. 49 Ante, § 668. 50 3 L. T. 117; H. D. 322. 51 Ante, § 670. 52 Ante, § 671. 53 Xnte, §§ 672, 960. 395 COUNTY CLEEKS. §§ 963-967 § 963. Act of December 18, 1849— County Clerks Author- ized to Take Acknowledgments of Married "Women. — The act of December 18, 1849 (taking effect from passage),^* authorized county clerks to take the separate acknowl- edgments of deeds by married women under same rules prescribed by judges of the supreme or district courts or notaries public in the act of April 30, 1846, which act provided that judges of the district and supreme courts and notaries public may take the acknowledg- ments of husband and wife to deeds of her separate property, homestead, and other exempt property after private examination of the wife, etc.^^ § 964. Act of November 24, 1851— Validates.— The act of November 24, 1851,^^ validated official acts of offi- cers of the county court of Galveston county, who use two irregular seals.^'' § 965. Act of February 9, 1856— Deputy County Clerks Authorized to Take Acknowledgments.— The act of Febru- ary 9, 1856 (taking effect ^from passage),^^ authorized regularly appointed deputy clerks to take acknowledg- ments of all persons, and validates all such acts herch tofore done by such deputies. ^^ § 966. Act of August 19, 1856— Validates.— The act of August 19, 1856,"^ validates the acts of Levi S. Me- Micken as deputy county clerk of Polk county under W. H. Dukes as principal. § 967. Act of February 9, 1860— Validates.— The act of February 9, 1860 (taking effect from passage),^* pro- 54 3 L. T. U9; II. D. 178. 55 Ante, § 681. 56 3 L. T. 881. 57 See post, § 1027. 58 4 L. T. 262. 59 Ante, § 683. CO 4 L. T. 459. 61 4 L. T. 1437; P. D. 1520; Rev. Stats. 1879, art. 43.56. §§ 968-970 WHO MAY TAKE ACKNOWLEDGMENTS. 396 Tided that every deed, etc., jterniitted by law to be reg- istered which shall have been registered prior to the ninth day of February, 1860, shall be held to be law- fully registered, provided the same shall have been ac- knowledged before any chief or associate justice or clerk of the county court, or notary public within any county within the late republic or now state of Texas, or judge of the department of the Brazos, or primary judges or judge of the first instance in 1836, or proved before any such officer by one or more of the subscribing wit- nesses, thereto certified by such officer. This validates only when vested rights would not be thereby affected. ^^ § 968. Act of April 6, 1861— County Clerks Again Au- thorized to Take Acknowledgments. — The act of April 6, 1861 (taking effect from passage),^ again authorized county clerks to take acknowledgments and proof of conveyances; it providing that every deed when within the state shall be acknowledged before some notary public, clerk of the county court or judge of a court of record having a seal.^^ § 969. Act of January 14, 1862— County Clerks and Their Deputies Authorized to Take Acknowledgments. — The act of January 14, 1862 (taking effect from passage ),*^^ in ad- dition to the above-mentioned officers authorized dep- uty county clerks to authenticate instruments for rec- ord, and validated all acts of deputy county clerks taken since April 6, 1861.^® § 970. Act of November 13, 1866— County Clerks Again Authorized. — The act of November 13, 1866, again pro- vided that proof or acknowledgment of every instru- ment of w^riting for record shall be taken within the 62 Post, §§ 1029-1037. 63 5 L. T. 373. 64 Ante, § 686. 65 5 L. T. 501; P. D. 5024. 66 Ante, § C88. 397 COUNTY CLERKS. §§ 971-973 state, by a notary public or clerk of the county court of any county in the state. '^'^ § 971. Constitution of 1869— District Clerks Ex-Officio County Clerks. — The constitution of 1869, ratified on first Monday in July, 1869,*^^ provided that a clerk of the district court for each county shall be elected by the qualified electors who shall be ex-officio county clerks, and authorized them to perform all duties here- tofore performed by county clerks, and gave them cus- tody of all the papers, books, etc., of district and county courts. The separate office of county clerks is abol- ished by this provision.**^ § 972. Act of August 8, 1870— District Clerks, Their Depu- ties and Notaries Authorized to Take Acknowledgments. — The act of August 8, 1870 (taking effect from passage),'** authorized district clerks, their deputies and notaries to take acknowledgments or proof of deeds, etc., and the certificate of any such officer that such instrument has been so acknowledged shall entitle the same to registration.'''^ § 973. Act of May 6, 1871— District Clerks Again Author- ized.— The act of May 6, 1871''^ (taking effect from pas- sage, amending section 11 of the act of May 12, 1846), provided that proof or acknowledgment of every con- veyance may be made within the state before some no- tary public, district clerk or judge of the supreme court, and the certificate of such acknowledgment or proof shall be attested under the official seal of the officer tak- ing the same.'^^ 67 Ante, §§ 691, 692. 68 § 9, 7 L. T. 412. 60 Ante, § 693. 70 6 Ji. T. 223. 71 Ante, § 695. 72 6 L. T. 976. 7.3 Ante, §§ 703, 692. §§ 974-978 WHO MAY TAKE ACKNOWLEDGMENTS. 398 § 974. Act of May 25, 1871— Validates.— The act of May 25, 1871 (taking effect from passage)/^ validated the acts of I. H. Stein while acting district clerk of Ham- ilton county. § 975. Constitution of 1875— County and District Clerks Authorized When.— The constitution of 1875, ratified February 15, 18767^ provided for a county clerk for each county, who shall be the recorder, and whose du- ties shall be fixed by the legislature, and a vacancy in his oflace shall be filled by the commissioners' court until the next general election, provided that in any counties having a population of less than eight thou- sand persons there may be an election of a single clerk, who shall perform the duties of district and county clerk. § 976. Act of May 25, 1876— Deputy County Clerks Au- thorized.— The act of May 25, 1876,''^ authorized county clerks of the several counties to appoint deputies, and said county clerks and their deputies were authorized to take both single and joint acknowledgments and proof of all instruments of writing for record, and all laws in conflict therewith were repealed. 77 § 977. Act of June 16, 1876— Validates.— The act of June 16, 1876,''* validates certain acts of county clerks, but it does not seem to apply to acknowledgments.''^ § 978. Act of March 13, 1879— District and County Clerks One Person— Validates.— The act of March 13, 1879,*^ provided that in counties of less than eight thousand inhabitants, one person may hold office of clerk of the 74 6 L. T. 1034. 75 § 20, 8 L. T. 804. 76 8 L. T. 846. 77 Ante, §§ 710, 711. 78 8 L. T. 860. 79 See post, I 1048. 8b 8 L. T. 1334. 399 COUNTY CLEEKS. §§ 979,980 district and county courts. The number of inhabitants to be determined on the basis of five for every vote cast for governor at the last general election. It validated previous acts by such persons holding both offices. § 979. Revised Statutes of 1879 and 1895— County and District Clerks Again Authorized. — The Eevised Statutes of 1879 and 1895,^^ amending the act of May 6, 1871, provides that acknowledgments or proof of an instru- ment of writing for record may be made within this state by either a clerk of the district court, a judge or a clerk of the county court or a notary public.*^ § 980. Remained in Force. — The final title of Revised Statutes of 1879, section 4, repeals all general laws not incorporated in said statutes.^^ This act was not changed by the Revised Statutes of 1895, and is still in force. 81 Arts. 4305 and 4613. 82 Ante, § 716. 83 Talbert v. Bull, 70 Tex. 679, 8 S. W. 530. §§ 981, 982 WHO MAY TAKE ACKNOWLEDGMENTS. 400 CHAPTER XXVII. WHO MAY TAKE ACKNOWLEDGMENTS AND PROOF— DIS- TRICT CLERKS AND THEIR DEPUTIES. § 981. Summary of statutes. § 982. Constitution of 1869 — District clerks ex-officio county clerks. § 983. Act of August 8, 1870— District clerks and deputies author- ized. § 984. Act of May 6, 1871 — District clerks and deputies authorized. § 985. Act of May 25, 1871— Validates. § 986. Act of April 14, 1874— Validates. § 987. Act of April 20, 1874— District clerks may qualify as justices of .peace. § 988. Constitution of 1875 — District and county clerkships held by- one person. § 989. Act of July 28, 1876— Validates. § 990. Act of March 13, 1879 — District and county clerkships held by one person — Validates. § 991. Revised Statutes of 1879 and 1895— District clerks authorized — Deputies omitted but authorized. § 981. Summary of Statutes. — Clerks of the district courts and their deputies were at all times after the ratification of the constitution of 1869, on the first Monday in July and their election thereunder, author- ized to take acknowledgments, but were not so author- ized before that time. § 982. Constitution of 1869— District Clerks Ex-Officio County Clerks. — Section 9 of the constitution of Septem- ber, 1869,^ provided that clerks of the district court shall be the recorders for the counties of all deeds, etc., required by law to be recorded. And "also ex-offlcio clerks of the county courts, and by virtue of their oflflces shall have control of all records, etc., of the district and county courts, and shall generally perform the du- ties heretofore required of county and district clerks." As district clerks had previously been authorized to ■ 1 7 L. T. 412. 401 DISTEICT CLEEKS. §§983-985 appoint deputies, acknowledgments taken by their depu- ties would have the same force as if taken by the clerk himself.^ § 983. Act of August 8, 1870— District Clerks and Depu- ties Authorized.— At the following session of the legis- lature August 8, 1870 (taking effect from passage),^ dis- trict clerks and their deputies were authorized "to take acknowledgments and proof of deeds and other written instruments required by law to be recorded in this state, and the certificate of any such officer over his official signature and seal of office that such instruments had been so acknowledged shall entitle the same to regis- tration," and all laws in conflict therewith were re- pealed. Under this act district clerks and their depu- ties were authorized to take acknowledgments of mar- ried women.^ ^ 984. Act of May 6, 1871— District Clerks and Deputies Authorized.— The act of May 6, 1871 (taking effect from passage),^ provided that notaries, district clerks, judges of supreme or district courts may take acknowledg- ments and proof of instruments for record. This omits deputy clerks, but as district clerks were authorized to appoint deputies, this would imply their authority to take acknowledgments and proof of instruments for record. It is also held that this act does not repeal the act of August 8, 1870, expressly authorizing depu- ties to take acknowledgments.** § 985. Act of May 25, 1871— Validates.— The act of May 25, 1871 (taking effect from passage),'' validates the acts of I. H. Steen, district clerk of Hamilton county. 2 Thompson v. Johnson, 84 Tex. 548, 19 S. W. 784. 3 6 L. T. 223. 4 Thompson v. Johnson, 84 Tex. 548, 19 S. W. 784. 5 6 L. T. 979. 6 Herndon v. Reed, 82 Tex. 651, 18 S. W. 665. 7 6 L. T. 1034. 26 §§ 9S6-989 WHO MAY TAKE ACKNOWLEDGMENTS. 402 § 986. Act of April 14, 1874— Validates.— The act of April 14, 1874 (takino- effect from passage),* validates the otlicial acts of clerks of the district court acting as justices of the peace by virtue of an election held on December 2, 1873. § 987. Act of April 20, 1874 — District Clerks may aualify as Justices of Peace.— The act of April 20, 1874,® author- ized district clerks elected as justices of the peace to qualify as such. § 988. Constitution of 1875— District and County Clerk- ships Held by One Person. — The constitution of 1875 rati- fied February 15, 1876,*^ provided for a county clerk for each county in the state, who shall be a recorder of deeds, etc., and for such other duties as may be fixed by the legislature, provided that in counties having less than eight thousand persons there may be an election of a single clerk who shall perform the duties of district and county clerks. § 989. Act of July 28, 1876— Validates.— The act of July 28, 1876 (taking effect November 19, 1876),** vali- dates the certificates of acknowledgments of deeds of married women taken before any authorized officer whenever such certificate of acknowledgment is invalid because the same is wanting in some word required by law, provided that such certificate shall show on its face that the married woman was examined by the officer taking the acknowledgment, separate and apart from her husband, and having the same fully explained to her she declares she had willingly signed same, and that she did not wish to retract it, or words to that effect. *2 8 8 L. T. 94. 9 8 L. T. 111. 10 8 L. T. 804. 11 8 L. T. 897. 12 McDaniel v. Harold, 1 U. C. 521. 403 DISTEICT CLEEKS. §§ 990, 991 § 990. Act of March 13, 1879— District and County Clerk- ships Held by One Person — Validates. — The act of March 13, 1879*-^ (taking effect July 23, 1879), provided that in any county having a population of less than eight thou- sand inhabitants one person may hold office of district and county clerk, the population to be determined on a basis of five inhabitants for every vote cast at the last general election for governor. And it validated acts of such persons holding both offices, previously made. § 991. Revised Statutes of 1879 and 1895— District Clerks Authorized — Deputies Omitted but Authorized. — The Re- vised Statutes of 1879 and 1895^^ now in force, again authorized district clerks to take acknowledgments and proof of instruments but omitted deputies. While all general statutes not incorporated in the Revised Stat- utes are repealed by Final Title, section 4, deputies of district clerks, it would seem, would still be authorized to take acknowledgments under the same condition as their principals, the law still authorizing the appoint- ment of deputies.*^ 13 8 L. T. 1334. 14 Arts. 4305 and 4613. 15 Thompson v. Johnson, 84 Tex. 548, 19 S. W. 784; Chicago etc. Ey. Co. V. Titterington, 84 Tex. 219, 31 Am. St. Eep. 39, 19 S. W. 472. CUEING DEFECTIVE ACKNOWLEDGMENTS. 404 CHAPTER XXVIII. CURING DEFECTIVE ACKNOWLEDGMENTS AND CERTIFI- CATES. A. GENERALLY. § 992. By oflficer — Officer may amend certificate when. § 993. In some other states held officer may correct certificate. § 994. The reverse held in most other states. § 995. By grantors — May be corrected by grantors. § 996. Exception to above rule, where husband fails to join until after her death. § 997. Wife, may acknowledge after death of husband. § 998. By action at law — Prior to Revised Statutes of 1879. § 999. -After Revised Statutes of 1879 acknowledgment may be cured. § 1000. Certificate only can be remedied, not acknowledgments when. § 1001. Acknowledgment defective on account of interest of officer. § 1002. Want of acknowledgment by single person cured. § 1003. Above acts constitutional. § 1004. Barred by limitation. S 1005. Proved by circumstantial evidence. § 1006. By statute — Constitutionality of. § 1007. Officer interested party. § ia08. In other states. § ia09. Idem. § 1010. Idem. § 1011. "What acts constitutional. § 1012. What acts unconstitutional. § 1013. Idem. § 1014. Change of law will not effect validity of acknowledgments. § 1015. Validating statutes — How construed. B. STATUTORY ENACTMENTS— GENERAL.l § 1016. Validating statutes not repealed. § 1017. Act of January 19, 1839— Copies admitted to record when. § 1018. Act of February 5, 1841— Registration of instruments ac- knowledged before certain officers validated. § 1019. Idem — How construed. § 1020. Idem. § 1021. Idem. 1 special acts, see §§ 1060-1068. 405 CURING DEFECTIVE ACKNOWLEDGMENTS. § 1022. Act of April 29, 1846— Eegistration of wife's property- validated. § 1023. Act of May 2, 1846— Acts of chief justices of county courts validated. § 1024. Act of May 12, 1846 — Certain instruments may be recorded. § 1025. Act of May 13, 1846— Certain copies admissible in evidence when. § 1026. Idem. § 1027. Act of November 24, 1851— Seals used in Galveston county validated. § 1028. Act of February 9, 1856 — Acknowledgments of deputy county clerks validated. § 1029. Act of February 9, 1860 — Eegistration of instruments ac- knowledged before certain officers validated. § 1030. When such instruments recorded, copies thereof admis- sible in evidence. § 1031. Acknowledgment before unauthorized notary validated. § 1032. Does it validate where the acknowledgment or certifi- cate is defective, or only the want of authority in the officer? § 1033. Idem. § 1034. Ideni. § 1035. Idem. § 1036. Idem. § 1037. Idem. § 1038. Act of January 14, 1862 — Acknowledgments of county clerks validated. I 1039. Act of August 13, 1870 — Acknowledgments before county judges validated. § 1040. Act of April 14, 1874— Acknowledgments of district clerks as justices of peace validated. § 1041. Act of April 27, 1874— Acknowledgments taken without the state and within United States valid, if taken before an officer now authorized. § 1042. Cured want of authority in notary. § 1043. In case of married woman's acknowledgment. § 1044. Above act restricted to United States. § 1045. Act of May 2, 1874— Acknowledgments of notaries vali- dated when. § 1046. Idem. § 1047. Constitution of 1875 — Certain titles shall not be recorded, etc. § 1048. Act of June 16, 1876 — Previous acts by county judges which would be authorized by this act, validated. § 1049. Act of July 28, 1876— Certificates of married women's ac- knowledgments validated. § 1050. Note. § 992 CUEING DEFECTIVE ACKNOWLEDGMENTS. 406 § 1051. Act of March 13, 1879 — AckiiowlcdgmeEts by persons hold- ing both offices of district and county clerks validated. § 1052. Act of April 18, 1879— Acknowledgments of notaries using defective seals, validated. § 1053. Eevised Statutes of 1879 and 1S95— Legality of acknowl- edgment and proof depends on law in force at time same is made. § 1054. Acknowledgment cured by action at law. § 1055. Idem. § 1056. Barred by limitation when. § 1057. Eevised Statutes of 1879 and 1895 — Validates want of au- thority in certain officers. § 1058. Act of March 18, 1881 — Validates defective seal. § 1059. Act of April 5, 1889 — Acknowledgments by notaries using defective seals validated. § 1059a. Act of April 15, 1905— Attempts to validate want of corpo- rate seal in conveyances by attorney in fact. C. STATUTORY ENACTMENTS— SPECIAL. § 1060. Act of December 24, 1840 — Validates the acts of Samuel Todd. § 1061. Act of August. 19, 1856— Validates the official acts of Levy S. McMicken. § 1062. Act of August 30, 1856 — Validates the notarial acts of David P. Fearris. § 1063. Act of May 18, 1871— Validates the official acts of Silas Mc- Crary and Jerry Washington. § 1064. Act of May 25, 1871— Validates the official acts of I. H. Steen as district clerk. § 1065. Act of May 25, 1871— Validates the official acts of I. H, Steen as justice of the peace. § 1066. Act of May 31^ 1871 — ^Validates the official acts of I. A. Lee. § 1067. Act of May 13, 1875 — Validates the notarial acts of C. L. Thurmond. § 1068. Act of April 1, 1887— Validates the notarial acts of Wm. Veal. For defective authentication prior to 1836, see ante, § 3. A. GENEEALLY. § 992. By Officer — Officer may Amend Certificate When. — The question as to whether or not an officer who cor- rectly takes an acknowledgment, but by mistake or ac- cident fails to make a proper certificate of it, may at any time amend his certificate so as to make it state 407 CUKINa DEFECTIVE ACKNOWLEDGMENTS. § 992 the facts as they really were, seems to have been settled in this state, while against the weight of authority, in accordance with reason; how permanently, remains to be seen. It was intimated by our supreme court that if the officer taking the acknowledgment of a married woman is still in ofiice, he may amend his certificate by attaching his seal, provided she had not in the mean- time withdrawn her acknowledgTaent, but under no other circumstances.^ In a later case by the court of civil appeals, where a notary took a married woman's acknowledgment and made a defective certificate of same on March 1, 1873, and afterward by another cer- tificate in proper form, dated May 29, 1874, reciting the prior acknowledgment made March, 1873, and that the omission in the former certificate was an oversight on tlie part of the notary, it was held that the notary had no authority to correct the defective certificate after the deed had passed out of his hands and been recorded. The court saying that "the overwhelming weight of au- thority is to the effect that when an officer has taken an acknowledgment of a married woman, and made a certificate on the deed, and the latter has passed from his custody, he has no further jurisdiction in the prem- ises, and cannot, without a re-examination, or consent of the parties, indorse another certificate on the deed, or amend the same already made."^ In the same case before our supreme court on error, Judge Gaines, in his opinion reversing the case on other grounds, says "It is therefore unnecessary for us to determine whether the amended certificate of May 19, 1874, would have made it a valid conveyance provided she had been a grantor in the instrument. But in order to prevent any misconception which may arise from the opinion of the court of civil appeals upon that question, we will say, that if the point were before us we are in- 2 McKeller v. Peek, 39 Tex. 388, and S. C, 33 Tex. 2.^4 3 Stone V. Sledge (Tex. Civ. App.), ^4 S. W. 698 (citing a number of cases). §§993,994 CUEING DEFECTIVE ACKNOWLEDGMENTS. 408 clined to think that we should be constrained to hold that the officer while in office had the power to amend his certificate. There has been no decision in our court upon tlie question, but the previous intimations of the court are in favor of that view.^ It must, however, be conceded, as we think, that the weight of authority else- where supports the opinion of the court of civil ap- peals."^ It is clear that if he can amend the certificate of a married woman's acknowledoment, he can amend other certificates of acknowledgments and proofs. May Correct Certificate on Depositions When. — It is well settled that an officer taking a deposition may, with the consent of the court, amend his defective certificate at any time.*^ While it is proper for the officer to correct his certificate under the direction of the court, it is not allowable for him to correct same by sending another certificate to be attached.'' § 993. In Some Other States Held Officer may Correct Cer- tificate. — It is held in a leading case in Indiana, that an officer who correctly takes an acknowledgment but fails to make a proper certificate of it may at any time amend his certificate so as to make it state the facts.* This is also held in the states of Missouri and Mississippi.** § 994. The Reverse Held in Most of the Other States. — While tlie above doctrine appears reasonable and expe- dient, it is not supported by the weight of authorities, as the cases referred to hold that where an oflScer has taken an acknowledgment and made his certificate he 4 McKeller v. Peck, 39 Tex. 381; S. C, 33 Tex. 234. 5 Stone V. Sledge, 87 Tex. 54, 47 Am. St. Eep. 65, 26 S. W. 1068. 6 Chapman v. Allen, 15 Tex. 282; Price v. Horton, 4 Tex. Civ. App. 526, 23 S. W. 501; Millikin v. Smoot, 71 Tex. 760, 10 Am. St. Rep. 813, 12 S. W. 59. 7 Galveston etc. Ey. Co. v. Matula, 79 Tex. 581, 15 S. W. 573. S Stott v. Harrison, 73 Ind. 20. 9 Wannell v. Kem, 51 Mo. 150'; Harmon v. McGee, 57 Miss. 410. 409 CUEING DEFECTIVE ACKNOWLEDGMENTS. §§ 995, 996 cannot afterward amend or change the certificate so as to correct an error or mistake therein.*** § 995. By Grantors — May be Corrected by Grantor. — De- fective acknowledgments, both single and joint, may be corrected by the grantor by reacknowledgment, at any time thereafter, and in the absence of intervening rights the correction would relate back to the original acknowledgment or delivery, and no new delivery is required.** The latter case referred to holding that the correction of a defective certificate, by reacknowledg- ment after the building was erected on the homestead, would relate back to the original acknowledgment of the contract made before the erection of the building, so as to fix the mechanic's lien on same. § 996. Exception to Above Rule Where Husband Fails to Join Until After Her Death. — But where a wife executed a deed and the husband failed to join' her in it until after her death, it was held that the deed was void, the husband having the right to join her in said deed at any time before her death, but not afterward; the rea- son being that the conveyance not having devested her title during her lifetime, at her death it descended to her heirs, and the husband could no longer render the conveyance valid. *^ And where her deed is void on ac- count of a defective acknowledgment, her reacknowl- edgment, in the absence of intervening rights, will re- late back to the original delivery.*^ It is not necessary that the certificate be made at the same time or by the 10 Wedel v. Herman, 59 Cal. 507; Merrett v. Yates, 71 111. 636, 23 Am. Eep. 128; Newman v. Samuels, 17 Iowa, 528; Elwood v. Elock, 13 Barb. 50; First Nat. Bank of Harrisonburg v. Paul, 75 Va. 594, 40 Am. Rep. 740; Elliott v. Peirsol, 1 Pet. 328, 7 L. e<(. 164; Griffith v. Ventress, 11 L. R. A. 193, note. 11 Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 913; Starnes v. Beitel, 20 Tex. Civ. App. 524, 50 S. W. 203. 12 Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 913. 13 Idem; and Starnes v. Beitel, 20 Tex. Civ. App. 524, 50 S. W. 203. §§997,998 CURING DEFECTIVE ACKNOWLEDGMENTS. 410 same officer; the wife may acknowledge it years later. But query : Must liusl)aud and wife necessarily sign the same deed?** ^ 997. Wife May Acknowledge After Death of Husband. In the case of Chester v. Breitling/^ the court of civil ap- peals held that after the death of her husband the wife could not cure her defective acknowledgment by a subse- quent acknowledgment, but it was reversed by the su- preme court. In this case the property was the wife's as well after as before the husband's death, it not hav- ing descended, and she could dispose of it by the reac- knowledgment. *^ § 998. By Action at Law — Prior to Adoption of Revised Statutes of 1879. — Under our statutes there was an in- direct method of proving instruments for record, by suit in court establishing the validity of the instrument and then recording the judgment in the records of deeds. Such proof and registration have been authorized since the act of February 5, 1840.*'' Before this time regis- tration of the judgment seems not to have been re- quired, in order to constitute notice, as purchasers must take notice of titles not admitted to record.** From this time to the adoption of our Revised Statutes of 1879, it seems that all instruments, except deeds, etc., of married women could be so established for record by suit, whether acknowledged or witnessed, or not, but that a married woman's deed could not be so cured if not properly acknowledged; and possibly not, even though properly acknowledged if defectively certified, unless some equity, or the doctrine of estoppel, would 14 See Nolan v. Moore, 96 Tex. 341. 15 (Tex. Civ. App.), 30 S. W. 465. 16 Breitling v. Chester, 88 Tex. 589, 32 S. W. 527; and ante, § 563. See "Estoppel," ante, § 313. 17 H. D. 2771. 18 Trammel v. Neal, 1 U. C. 51. 411 CUEING DEFECTIVE ACKNOWLEDGMENTS. §§999-1001 aid such suit; as some of our courts have held that such deeds without proper certificates are void. 19 § 999. After Adoption of Revised Statutes of 1879— Ac- knowledgment may be Cured. — After the adoption of the Revised Statutes of 1879,-** such action was authorized to cure, in addition to the instruments which previously might have been cured, defective certificates of valid acknowledgments of married women.^^ § 1000. Certificate Only can be Remedied, not Acknowledg- ment, When. — Action under Revised Statutes of 1895, art- icle 4663 (4353), cannot remedy a defective acknowledg- ment (in case of married women) , but only defective cer- tificates thereof, if the acknowledgment was in fact prop- erly taken; it does not create a right, but provides an- other means of proof of an existing right. And a mar- ried woman's deed properly acknowledged but defec- tively certified is not void, but may be corrected by suit. And it acts prospectively as well as upon a pre-existing 22 cause."'* § 1001. Acknowledgment Defective on Account of Inter- est of Officer. — An acknowledgment invalid because it is made before an officer who is an interested party, i. e., having stock in the building and loan association which is the grantee, cannot be reformed or corrected by ac- tion in case of a husband's and wife's acknowledg- ment'^ And an acknowledgment of a married woman 19 Looney v. Adamson, 48 Tex. 622; Williams v. Elleiiwortli, 75 Tex. 480, 12 S. W. 746; Starnes v. Beitel, 20 Tex. Civ. App. 524, 50 S. W. 203; Johnson v. Taylor, 60 Tex. 361. See "Estoppel and Equities," ante, § 313. 20 Articles 4351-4355. 21 Post, §§ 1000, 1001. 22 Johnson v. Taylor, 60 Tex. 361. 2:: Bexar B. & L. Assn. v. Heady, 21 Tex. Civ. App. 1;"54. 50 S. W. 1081. §§ 1002-1006 CUEING DEFECTIVE ACKNOWLEDGMENTS, 412 takeii by the husband of the grantee is void and cannot be cured by action.^* § 1002. Want of Acknowledgment by Single Person Cured. — It is clear that under article 4664, a deed of any person except a married woman, not acknowledged or proved at all, could be proved for registration by action. § 1003. Above Acts Constitutional. — Actions under these statutes do not affect vested rights, nor create deeds, but only evidence of rights and deeds, and are constitutional.^" But correction of the certificate or proving the instrument by suit would not validate the registration and give it effect as notice; the judgment should be recorded for such purpose.^® § 1004. Barred by Limitation. — Under the above ar- ticles action will be barred by limitation in four years from the execution of the certificate.^'^ § 1005. Proved by Circumstantial Evidence. — It seems that though the right to cure a defective certificate is barred by limitation, the execution of the deed and ac- knowledgment may be proved by parol or even circum- stantial evidence.^* § 1006. By Statute — Constitutionality of. — Statutes vali- dating acknowledgments and certificates of same are 24 Silcock V. Baker, 25 Tex. Civ. App. 508, 61 S. W. 939. See post, §§ 1006-1015. 25 Johnson v. Taylor, 60 Tex. 361; Leach v. Dodson, 64 Tex. 189; Davis V. Agnew, 67 Tex. 206, 2 S. W. 43, 376; Hayden v. Moffatt, 74 Tex. 650, 15 Am. St. Eep. 866, 12 S. W. 820; Williams v. Ellingsworth, 75 Tex. 482, 12 S. W. 746. 26 Idem. 27 Norton v. Davis, 83 Tex. 37, 18 S. W. 430; Stone v. Sledge (Tex. Civ. App.), 24 S. W. 697; Starnes v. Beitel, 20 Tex. Civ. App. 524, 50 S. W. 202. 28 Simpson v. Edens (Tex. Civ. App.), 38 S. W. 476; Grain v. Huntington, 81 Tex. 614, 17 S. W. 243; Daniels v. Creekmore (Tex." Civ. App.), 27 S. W. 149. 413 CURING DEFECTIVE ACKNOWLEDGMENTS. § 1007 constitutional so far as they do not attempt to affect vested rights. ^^ Consequently statutes validating such acknowledgments, and certificates of same, of single per- sons would be constitutional, provided the rights of third parties had not intervened.^® And such statutes validating the defective certificates of married women's acknowledgments would be constitutional, provided ac- knowledgment had been properly taken and the rights of third persons had not intervened.^^ But if the wife's acknowledgment had not been properly taken, the title not having been devested from her, would not a statute attempting to validate her acknowledgment, or the cer- tificate of same, and devest her of her title, be uncon- stitutional?^^ § 1007. Officer Interested Party. — An acknowledgment invalid because it is made before an officer who is dis- qualified, being an interested party, cannot be reformed or corrected, as to devest the title of the husband and wife.*^ And an acknowledgment of a married woman taken by the husband of the grantee is void and cannot be cured by action.^^ In the case of Baker v. West- cott"**^ which holds that the act of April 27, 1874, which validates the defects of acknowledgments for want of power in the notary, is valid. It will be noticed that the acknowledgment was that of a single person and not that of a married woman. The same is true in the case of McCelvey v. Cryer.^^ 29 Johnson v. Taylor, 60 Tex. 361. 30 Idem; and Baker v. Westcott, 73 Tex. 131, 11 S. W. 157; Mc- Celvey V. Cryer (Tex. Civ. App.), 28 S. W. 691. 31 Johnson v. Taylor, 60 Tex. 361. 32 Euleman v. Pritchett, 56 Tex. 484; Mellinser v. Houston, 68 Tex. 37, 3 S. W. 249. See post, § 1007. 33 Bexar B. & L. Assn. v. Heady, 21 Tex. Civ. App. 154, 50 S. W. 1081. 34 Silcock v. Baker, 25 Tex. Civ. App. 508, 61 S. W. 939; Bexar B. & L. Assn. V. Heady, 21 Tex. Civ. App. 154, 50 S. W. 1081; 2 Am. & Eng. Ency. of Law, 2d ed., p. 586. 35 73 Tex, 131, 11 S. W. 157. 36 (Tex. Civ. App.), 28 S. W, 691. See Beaumont Pasture Com- pany V. Preston et al., 65 Tex. 448. §§ 1008-1011 CXTEING DEFECTIVE ACKNOWLEDGMENTS. 414 § 1008. In other States. — Tu other states it is generally held that validating acts are constitutional, and that the legislature has the power to cure defective acknowl- edgments even of married women.^'^ § 1009. Idem. — An act validating the deed of a mar- ried woman, invalid because of a defective acknowledg- ment, is not unconstitutional as violating the obligation of a contract of a married woman, as it gives the effect to her act and contract which she intended to give, and which from mistake or accident had not been effected.^® § 1010. Idem. — An act curing a defective acknowl- edgment of the wife, it being taken before that of the husband instead of afterward, and there being no proper explanation, was constitutional.^** § 1011. What Acts Constitutional. — From the above decisions it would seem that the act of January 19, 1839, making certified copies admissible to record, is valid. A statute may change the remedy or evidence but not destroy the right.*** Also is the act of February 5, 1841, validating the registration of conveyances acknowl- edged or proved by one or more witnesses, before cer- tain officers, though the law under which the acknowl- edgment or proof was made may be obscure, constitu- tional except as to vested rights and probably acknowl- edgments of married women.'*^ Also are the other validating acts valid in all cases where vested rights will not be affected. *2 37 1 Am. & Eng. Ency. of Law, 2d ed., p. 568. But see Alabama Life Ins. Co. v. Boykin, 38 Ala. 510; Grove v. Todd, 41 Md. 633, 20 Am. Eep. 76, where the reverse is held; Barnet v. Barnet, 16 Am. Dec. 520, note. 38 Watson V. Mercer, 33 U. S. (8 Pet.) 88, 8 L. ed. 876. 39 Barrett v. Barrett, 120 N. C. 127, 26 S. E. 891, 36 L. E. A. 226. For a fuller discussion, see Barnet v. Barnet, 16 Am. Dec. 519, 520, note. And Tate v. Stoolzfoos, 16 Am. Dec. 547, 548, note. 40 Ante, § 1006. 41 Ante, § 1007; post, §§ 1018-1020. 42 Ante, § 1006. 415 CUEING DEFECTIVE ACKNOWLEDGMENTS. §§ 1012-1015 § 1012. What Acts Unconstitutional. — But may it not be questionable if the act of May 2, 1846, is constitu- tional in so far as it attempts to validate acknowledg- ments of married women? It attempts to validate ac- knowledgments previously taken by chief justices of the county court. If they were not authorized at the time the acknowledgment was taken, would their acts not be void? If so, would any title pass from the wife and could the same be devested by the legislature?*^ § 1013. Idem.— Also would not the act of May 12, 1846, be invalid as to acknowledg-ments of married women, if taken by an officer not qualified at the time the acknowledgment was taken, but authorized by this act, for the same reason? Or the act of Februai-y 0, 1860, the act of August 13, 1870, the act of April 14, 1874, the act of April 27, 1874, the act of May 2, 1874, the act of June 16, 1876, for the same reasons?** § 1014. Change of Law will not Affect Validity of Ac- knowledgment. — A subsequent statute adopting the same form used in an acknowledgment which is defective ac- cording to the law as it stood at the time the deed was recorded will not cure such defective certificate or ac- knowledgment.*^ § 1015. Validating Statutes, How Construed. — The earlier cases held that validating statutes should be construed liberally,*^ but a later case does not seem to adhere to this rule.*'^ 43 Bexar B. & L. Assn. v. Heady, 21 Tex. Civ. App. 154, 50 S. W. 1081; Silcock v. Baker, 25 Tex. Civ. App. 508, 61 S. W. 939; ante, § 1006. • 44 Ante, § 1006. 45 Texas Land Co. v. Williams, 51 Tex. 51. 40 Butler v. Dunagan, 19 Tex. 565; Beaumont Pasture Co. v. Pres- ton et al., 65 Tex. 458. 47 McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691; post, §§ 1019-1021. §§ 1016-1019 CURING DEFECTIVE ACKNOWLEDGMENTS. 416 B. STATUTORY ENACTMENTS— GENERAL. § 1016. Statutory Enactments** — Validating Statutes not Repealed. — Validating statutes heretofore enacted are not repealed by the general repealing clause of Revised Statutes of 1895 (ISTO).^** Consequently, the following validating statutes are still in force though many of them are not incorporated in the Revised Statutes. § 1017. Act of January 19, 1839^ — Copies Admitted to Rec- ord When.— The act of January 19, 1839,^** provided that copies of all deeds, etc., when the originals remain in the public archives and were executed in conformity with the laws existing at their dates, duly certified by the proper ofiicers, shall be admitted to record in the county where such land lies.^^ § 1018. Act of February 5, 1841 — Registration of Instru- ments Acknowledged Before Certain Officers Validated. — Act of February 5, 1811 (taking effect from passage) ,^^ pro- vided that every deed, etc., which shall have been here- tofore registered shall, from the passage of this act, be held to have been duly registered, provided the same shall have been acknowledged by the grantor or grant- ors before any chief justice of the county court, or no- tary public, or before the clerk of the county court in whose office such record is proposed to be made; or proved before such officer by one or more of the subscrib- ing witnesses and certified by such officer ; any obscurity or conflict in the existing laws to the contrary notwith- standing.^^ § 1019. Idem — How Construed. — The earlier cases con- strue this act more liberally than the later. In Butler •48 For special acts, see §§ 1060-1068. 49 General provisions, § 7; ante, § 109. 50 2 L. T. 52. 51 Ante, §§ 1006-1011. 52 2 L. T. 633. 53 See ante, § 1011. 417 CURING DEFECTIVE ACKNOWLEDGMENTS. §§1020,1021 V. Dunagan, 19 Tex. 565, it is held that section 20 ap- plies to instruments previously recorded; and thav: while section 21 in terms applies to instruments there- after to be made and recorded, it should be liberally construed so as to include instruments made and ac- knowledged before the passage of said act, but not re- corded until after its passage. This case was approved in Waters v. Spofford, 58 Tex. 122. § 1020. Idem.— But in a late case by the civil court of appeals, this construction is disapproved, the court holding that there is no provision validating the ac- knowledgments of instruments made anterior to the pas- sage of the jact, the whole object and intent of the. law bei iig to render legal the registry of instruments made be- forv^ the passage of the act, and to provide for the man- ner of acknowledgment and proof and proper registra- tion of instruments executed after the passage of the act.^* § 1021. Idem.— A conveyance was made in 1837 and proven for record by a subscribing witness before the county clerk of T. county, and soon afterward was re- corded in G. county where the land lay. It was ob- jected to when offered in evidence because the county clerk in T. county had no authority to take the proof in 1816, the land being in a different county, but it was held that the healing acts of February 5, 1811, and Feb- ruary 9, 1860, legalized the registration.^^ It is also held that this act cured the registration of instruments upon proper proof, but taken before officers in the wrong counties, except as to county clerks, and that the act of February 9, 1860, cured those of county clerks.^^ This act was valid in so far as it does not affect vested rights.^'' 54 McCelvey v. Crycr (Tex. Civ. App.), 28 S. W. 691. 5.-; Crayton v. Hamilton, 37 Tox. 2G9. GO Beaumont Pasture Co. v. Preston, 65 Tex. 456; post, § 1032; McDonald v. Morgan, 27^ Tex. 505; Stramlor v. Coe, 15 Tex. 213. 57 Ante, § 1006. 27 §§ 1022-1025 CURINCt DEFECTIVE ACKNOWLEDGMENTS. 418 § 1022. Act of April 29, 1846— Registration of Wife's Property Validated.— The act of April 29, 1846^^^ (takin.sj offoct Jimo 22, 1846), provided that all registrations of Avives' separate property which have been made hereto- fore shall be deemed good and valid under this act; pro- vided the registrations were good, in accordance with the laAAS then in force. § 1023. Act of May 2, 1846— Acts of Chief Justices of County Courts Validated.— The act of May 2, 1846 (taking effect from passage ),^^ validated acknowledgments taken by chief justices of the various counties of this state who were elected on the first Monday in February, 1846, and they were thereby authorized to continue to perform their duties. ^^ § 1024. Act of May 12, 1846 — Certain Instruments may be Recorded.— The act of May 12, 1846,^^ provides that recorders shall record all instruments executed previous to this act if executed and acknowledged in accordance with this act, or in the manner required at the time of such acknowledgment or proof, "all of which waitings shall be recorded under the same rules and penalties hereafter prescribed for other instruments."^^ § 1025. Act of May 13, 1846 — Certain Copies Admissible in Evidence When.— The act of May 13, 1846 (taking ef- fect June 22, 1846),*^^ provided that copies of all con- veyances and other instruments of writing, between private individuals, which were filed in the office of any alcalde, or judge in Texas, previous to the first Monday in February, 1837, shall be admitted in evidence in like manner as the originals might be, and shall have the same force and effect as such originals; provided, 58 2 L. T. 1459. 59 2 L. T. 1471. 60 As to validity, see ante, § 1012. 61 H. D. 2789, 2 L. T. 1543. 62 See ante, §§ 1012, 1013. 63 2 L. T. 1694. 419 CUEING DEFECTIVE ACKNOWLEDGMENTS. §§ 1026, 1027 such copies shall be certifled to under the hand and seal of the officer with whom such conveyance and in- strument of writing are now deposited. § 1026. Idem. — Where a deed was executed before a notary in 1S28, in Matamoras, and filed in the archives of the Austin Colony in 1829, it does not come within the provisions of this act.*'^ A certified copy of a sale before the alcalde at Austin certified by the county clerk of Austin county was admissible under this section.**** This section seems to repudiate testimonios in custody of parties.®'* The instrument must have been executed with all the forms necessary to constitute an authentic act.«^ § 1027. Act of November 24, 1851 — Seals Used in Galves' ton County Validated.— The act of November 21, 1851,^ provided, "that whereas the officers of the County Court of Galveston County, have had in use in the discharge of their official duties, two Seals, one with the words, 'Galveston County Court,' around the margin thereof, with a Star of five points in the center, and 'Texas' en- graved between the points of said Star; with two rings close to each other, drawn around said Star, so as to touch the points thereof, or nearly so, with another ring drawn around said Seal, a sufficient distance from the aforesaid two rings, to admit of the engraving of the aforesaid words, 'Galveston County Court,' around the space between the said rings, with notches around the outer edge of said Seal between the second line and outer edge. The other Seal with the words 'Galveston County Court' around the margin ; a Star of five points in the centre, and the word 'Texas' engraved between the points, with a deep ring or circle drawn around 64 Lee V. Wharton, 11 Tex. 74. or, Tluliort v. Bartlett, 9 Tex. 102. ftO Titus V. Kimbro, 8 Tex. 221. 67 York V. Gregg, 9 Tex. 85; Andrew v. Marshall, 26 Tex. 216. 68 3 L. T. 881. §§ 1028, 1029 CURING DEFECTIVE ACKNOWLEDGMENTS. 420 said Star about 1/2 or 1/4 of an inch from tlie points of the Star, and another deep ring around the margin ; and aforesaid words 'Galveston County Court/ being engraved on the space between said rings; with two Stars of five points each, on a line therewith and be- tween the words 'County' and 'Court,' the other be- tween the words 'Court' and 'Galveston'; therefore, Be it enacted, that any of the official acts of any of the ofiicers of the aforesaid 'County Court' where either of the above-described Seals may have been used, the same are hereby declared to be legal and valid so far as the Seal is concerned." § 1028, Act of February 9, 1856 — Acknowledgments of Deputy County Clerks Validated. — The act of February 9, 1856,^^ made the acknowledgments of deputy county clerks as valid as if done by their principals. § 1029. Act of February 9, 1860 — Eegistration of Instru- ments Acknowledged Before Certain OiScers Validated. — ^Sec- tion 2 of the act of February 9, 1860 (taking effect from passage),''** provided that any grant, deed or other in- strument of writing for the conveyance of any real estate or personal property of both, or for the settlement thereof in marriage or trust to uses or on conditions, any or every other deed or instrument required or per- mitted by law to be registered and which shall have been prior to the ninth day of February, 1860, registered or recorded, shall be held to have been lawfully regis- tered with the full effect and consequences of existing laws, provided the same shall have been acknowledged by the grantor or grantors, before any chief justice or associate justice, or clerk of the county court, or no- tary public in any county within the late republic and now state of Texas, or judge of the department of the Brazos, or any primary judge or judge of the first in- stance in 1835 or 1836, or proven before any such officer 69 4 L. T. 262. 70 4 L. T. 1437; P. D. 5021. 421 CUEING DEFECTIVE ACKNOWLEDGMENTS. §§ 1030-1032 by one or more of the subscribing witnesses thereto, and certified by such officer whether such acknowledg- ments or proof shall have been made before any such of- ficer of the county where such instrument should have been recorded or not. § 1030. When Such Instruments Recorded, Copies Thereof Admissible in Evidence.— Section 3''* of same act provided that all such instruments which shall have been ac- knowledged or proven before any officer named in the preceding article, and which shall have been afterward recorded in the proper county, and certified copies thereof shall be evidence in the courts as fully and suf- ficient as if such acknowledgments had been taken or proof made in accordance with existing laws; but this article or the article preceding shall not be construed so as to affect or bind . in any manner any person or party with constructive notice of the existence of any deed or any instrument of writing, as a recorded deed or instrument, except after the ninth day of February, 1860, and in the future. ''^ § 1031. Acknowledgment Before Unauthorized Notary Validated. — It is hekl under this act that the registry in the proper county in 1851, of a deed illegally acknowl- edged before a notary public in 1839, was validated.'^* And that the registration of an instrument upon proper proof, but taken before an officer in the wrong county, was validated.'"'* § 1032. Does It Validate Where the Acknowledgment or Certificate is Defective or Only the Want of Authority in the OflBlcer? — The question as to whether or not this act and the act of February 5, 1841,'''^ validated a defective cer- 71 p. D. 5022. 72 As to validity, see ante, §§ 1012-1013. 73 HcCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 961. 74 Beaumont Pasture Co. v. Preston, 65 Tex. 456; Cray ton v. Ham- ilton, 37 Tex. 269. 75 Ante, § 1019. §§ 1033-1035 CUEING DEFECTIVE ACKNOWLEDGMENTS. 422 tifieate of aeknowlodoineiit or proof does not appear to be very clearly settled. It has been repeatedly held that these acts cured the want of authority in certain officers who took the acknowledgments and properly certified to them. The provisions of these statutes, in effect, are that the registration of deeds, etc., shall be validated provided they have been acknowledged (be- fore certain named officers) and certified (by such of- ficers). In order to meet the requirements of these laws the instrument must be acknowledged or proved and certified to. Is a deed "certified" in the purview of the law unless it is properly certified ? And is a deed acknowledged in contemplation of law unless it is prop- erly acknowledged? And can it be determined whether or not a deed is properly acknowledged unless it is prop- erly certified? § 1033. Idem. — In the case of Beaumont Pasture Co. V. Preston et al., 65 Tex. 456, in discussing the effect of the act of February 5, 1841, and April 9, 1860, the court says that "the registration of instruments upon proper proofs, but taken before officers in the wrong county, had been cured," etc. This and other language used in the opinion indicating that the court was of the opinion that proper proof or acknowledgment was necessary be- fore the want of authority and registration would be cured. '^^ § 1034. Idem.— On the other hand, it is held in Waters v, Spoftord, 58 Tex. 121, that a defective cer- tificate (owing to the omission of the county clerk to attach his seal) was validated by the acts of February 5, 1841, and April 9, 1860. Also approved in Riviere V. Wilkins (Tex. Civ. App.), 72 S. W. 608. § 1035. Idem. — Again, in the case of McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691, it is held that the act of April 9, 1860, validated the registration of 76 And see Holliday v. Cromwell, 26 Tex. 194. 423 CUEING DEFECTIVE ACKNOWLEDGMENTS. §§ 1036-1038 the deed or acknowledgment before a notary who used a private seal, in February, 1839, at which time notaries were not authorized to take acknowledgments. By this case it is held that the above act validated both the want of authority in the officer and the defective cer- tificate, defective because it lacked the notarial seal.'''' § 1036. Idem.— In the case of Coryell v. Holmes, 2 U. C. 674, the deed was subscribed by a sole witness, who proved the same for record before an officer who evidently made a certificate in proper form. The court held that the act of February 9, I860, validated the reg- istration ; the court saying that "we entertain no doubt that proven as it was and recorded (if it was imperfectly proven and recorded), it was validated, etc."''^* § 1037. Idem. — It might be well to note that the seal is only evidence of official authority of the officer taking the acknowledgment and is no part of the certificate proper. It does not aid in showing that the acknowl- edgment was taken in the proper manner, and certified to in the proper form, but only that the officer had au- thority to take the same. If the officer had no authority, it seems immaterial whether he attached his seal or not (i. e., whether the evidence of his authority was attached or not).'^** And a statute validating his want of author- ity would certainly validate the want of evidence of it. Consequently, it does not necessarily follow from the fact that the above acts validate the want of a seal, that they would validate the want of a certificate show- ing that the acknowledgment was taken or properly taken. This question does not appear to have been de- cided in this state. § 1038. Act of January 14, 1862 — Acknowledgments of Deputy Clerks Validated.— Act of January 14, 1862,*** vali- 77 See ante, § 484. 78 See, also, Davis v. Pearson, 6 Tex. Civ. App. 593, 26 S. W. 241; Greenwood v. I'ontaine (Tex. Civ. App.), 34 S. W. 828. 79 Kiviere v. Wilkons (Tex. Civ. App.), 72 S. W. 610. 80 P. D. 5026. §§ 1039-1041 CUEING DEFECTIVE ACKNOWLEDGMENTS. 424 dates acknowledgments and proof made before deputy county clerks since the act of April 6, 1861. § 1039. Act of August 13, 1870— Acknowledgments Before County Judges Validated. — Act of August 13, 1870 (taking effect from passage),**^ provided that deeds, etc., that shall have been heretofore acknowledged before any county judge of any county in this state, or proven be- fore any such officer, by one or more of the subscribing witnesses, and certified by such officer, shall be held to have been duly acknowledged or proven with the full effects and consequences of existing laws. And that every such instrument so acknowledged or proven before such county judge, and which shall have been heretofore registered, shall be held to have been duly registered.®^ § 1040. Act of April 14, 1874— Acknowledgments of Dis- trict Clerks as Justices of the Peace Validated. — The act of April 14, 1874 (taking effect from passage), ^^ provided that all the official acts of clerks of district courts as justices of the peace by virtue of an election held on the second day of December, 1837, heretofore done and per- formed by them in conformity with law be, and the same are hereby, declared to be valid, etc.*^ § 1041. Act of April 27, 1874 — ^Acknowledgments Taken Without the State and Within the United States Valid, if Taken Before an Officer Nov/ Authorized. — The act of April 27, 1874 (taking effect from passage),^^ provided that all instruments for record that shall have been heretofore acknowledged or proven in the manner prescribed by law, without the state and within the United States and their territories, before any one of the officers in such cases now authorized by law to take such acknowledg- 81 6 L. T. 251. 82 Ante, § 701. As to validity, see ante, §§ 1012, 1013. 83 8 L. T. 94. 84 As to validity, see ante §§ 1012, 1013. 85 8 L. T. 154. 425 CUEING DEFECTIVE ACKNOWLEDGMENTS. §§ 1042-1045 ments or proof, and which shall have been duly cer- tified by such officer, shall be held to have been duly acknowledged or proven with the full effects and con- sequences of existing laws; and any such instrument which shall have been so acknowledged or proven be- fore either of such officers, and which shall have been heretofore registered, shall be held to be duly registered, but this act shall not be so construed as to give it any right acquired i^rior to its passage. § 1042. Cured Want of Authority in Notary.— It is held that the validity of this act cannot be questioned, and that it cures the original defect of the want of power in the notary who took the acknowledgment. The no- tary in this case resided in the state of Ohio and took the acknowledgment in 1841, at which time he was not authorized by the laws of Texas.*^ § 1043. In Case of Married Women's Acknowledgments. — In the above cases the acknowledgments were not of mar- ried women and there was no question of vested rights involved. In the case of Ruhlman v. Pritchard, 56 Tex. by its provisions restricts its operation to acknowledg- 484, this question was left undecided where a wife's ac- knowledgment was involved. And on reason it seems that as a married woman's title would not pass without a proper acknowledgment, the act in attempting to de- vest her of her title would be invalid as to her.*'' § 1044. Above Act Restricted to United States. — This act ments within the United States.®* § 1045. Act of May 2, 1874— Acknowledgments of Notaries Validated When.— The act of May 2, 1874 (taking effect 88 Baker v. Westcott, 73 Tex. 131, 11 S. W. 157; McCelvey v. Cryer (Tex. Civ. App.), 28 S. W. 691; and see ante, §§ 1012, 1013. 87 1 Am. & Eng. Ency. of Law, 2cl cd., p. 568; Silcoek v. Baker, 25 Tex. Civ. App. 508; 61 S. W. 939; Bexar B. & L. Asan. v. Heady, 21 Tex. Civ. App. 154, 50 S. W. 1081. 88 Birdseye v. Eogcrs (Tex. Civ. App.), 26 S. W. 843. §§ 1046-1048 CUEING DEFECTIVE ACKNOWLEDGMENTS. 426 six moiitlis after passage) ,^^ provides that the acts of all duly appointed notaries in ^his state heretofore done and performed in pursnance to laAV shall be as valid and binding as though said notaries had been duly commis- sioned by the governor a,nd confirmed by the Senate.^** § 1046. Idem. — This act validates the acts of notaries public whose appointments had not been confirmed by the Senate. *** § 1047. Constitution of 1875— Certain Titles shall not be Kecorded, etc. — Article 13, section 4, of the constitution of November 24, 1875,^^ provides that no claim of title or right to land which issued prior to the thirteenth day of November, 1835, which has not been duly recorded in the county where the land was situated at the time of such record, or which has not been duly recovered in the general land office, shall hereafter be deposited in the general land office or delineated on the maps or used as evidence in any of the courts of this state, and the same are stale claims; but this shall not affect such rights or presumptions as arise from actual possession. By the words "duly recorded" as used in sections 2 and 4 of this article, it is meant that such claim or title to land shall have been recorded in the proper office, and that mere errors in the certificate of registration or any formality not affecting the fairness or good faith of the holder thereof with which the record was made shall not be held to vitiate such record. § 1048. Act of June 16, 1876— Previous Acts by County Judges Which Would be Authorized by this Act Validated.— The act of June 16, 1876,^^ provided that all official acts performed by the county judge or clerk of the county 89 8 L. T. 198. 00 As to validity, see ante, §§ 1012, 1013. 91 Brown v. State, 43 Tex. 480; but see ante, § 1006. 92 8 L. T. 822. 9.3 8 L. T. 860. 427 CUEING DEFECTIVE ACKNOWLEDGMENTS. §§ 1049-1051 court, before the passage of this act, which would have been authorized by its provisions had this act been in force at the time said official acts were performed, shall be as valid and binding on all parties undertaken to be affected thereby as if the same had been performed after the taking effect of this act. This act does not authorize county judges to take acknowledgments and proof of instruments of writing for record, and it seems would not validate same.®* § 104&. Act of July 28, 1876— Certificates of Married Women's Acknowledgments Validated. — The act of July 28, 1876 (taking effect November 19, 1876),'^^ validates cer- tificates of acknowledgments of deeds of married women taken before any chief justice, district clerk, notary pub- lic or other officer authorized to take such acknowledg- ments, whenever such certificate of acknowledgment is invalid because the same is wanting in any word re- quired by law, provided that such certificate shall show on its face that the married woman was examined by the officer taking the acknowledgment, separate and apart from her husband and having the same fully ex- plained to her, she declared that she had willingly signed the same and that she did not wish to retract it, or words to that effect. And further provided that this act does not prevent parties pleading fraud. Does it apply to chief justices when they were unauthorized?®^ § 1050. Note.— It is held that this act validates the certificates of acknowledgment of a married womaai where the word "separate" was used in the place of "privily."®'^ § 1051. Act of March 13, 1879— Acknowledgments by Persons Holding Both Offices of District and County Clerks 04 As to validity, see ante, §§ 100(5, 1012, 1013. 95 8 L. T. 897. 96 See ante, §§ 1032-1037. 97 McDannell v. Harroll, 1 U. C. 521. §§ 1052-1054 CUEING DEFECTIVE ACKNOWLEDGMENTS. 428 Validated.— The act of March 13, 1879,^^ provided "that all acts heretofore done by persons holding both the offices of clerk of the district and county courts, which are authorized by this act, are hereby legalized, and shall be valid as though this law was in effect at the time of said acts." § 1052. Act of April 18, 1879— Acknowledgments of No- taries Using Defective Seals Validated. — The act of April 18, 1879,^^ provided that all acts of notaries ])ublic appointed by authority of the laws of Texas, evidenced by the impression of a notarial seal having the word "Texas" engraved between the points of the star thereon shall be, and they are hereby, made as valid and binding as though the word "Texas" had been engraved on the mar- gin of the seal. § 1053. Revised Statutes of 1879 and 1895— Legality of Acknowledgment and Proof Depends on Law in Force at Time Same is Made. — Articles 4351 and 4352 of the Revised Statutes of 1879, and articles 4661 and 4662 of the Re- vised Statutes of 1895 (taking effect September 1, 1879), provided that the legality of the acknowledgments shall depend for their validity upon the laws in force when the act was performed, and makes instruments which were properly acknowledged at the time of execution under the then existing laws admissible in evidence, § 1054, Acknowledgment Cured by Action at Law. — Art- icles 4353, 4354 and 4355 of the Revised Statutes of 1879 (articles 4663, 4664, 4665 of the Revised Statutes of 1895), provided that when the acknowledgment or proof of the execution of any instrument in writing may be properly made, but defectively certified, any party interested may have an action in the district court to obtain a judgment correcting the certificate. And any person interested under any instrument in writing en- 98 8 L. T. 1334. 99 8 L. T. 1408. 429 CUEING DEFECTIVE ACKNOWLEDGMENTS. §§ 1055-1058 titled to be proven for record, may institute action in the district court against the proper parties to obtain a judgment proving such instrument, A certified copy of the judgment in the proceeding instituted under either of these articles, showing the proof of the in- strument, and attached thereto, shall entitle such instru- ment to record with like effect as if acknowledged. § 1055. Idem. — An acknowledgment, whether joint or single, if properly made, though defectively certified, may be cured by action under this act. The act creates no right but only a new remedy, a means of proof; it creates no deed, but evidence of it ; the acknowledgment being the essence of a married woman's deed, and the certificate the evidence of it, an act providing for such evidence is constitutional. It acts prospectively as well as upon a pre-existing cause. -^^^ § 1056. Barred by Limitation When. — Action under the above articles will be barred by limitation in four years from the execution of the certificate. ^^^ § 1057. Revised Statutes of 1879 and 1895— Validate Want of Authority in Certain Officers. — Articles i356 and 4357 of the Kevised Statutes of 1879, and articles 4666 and 4667, Revised Statutes of 1895, are the same as the validating act of February 9, 1860.^^^ § 1058. Act of March 18, 1881— Validates Defective Seal. The act of March 18, 1881^<>^ (taking effect July 1, 1881), validates the acts of notaries appointed by au- thority of the hpvs of Texas, evidenced by the impres- sion of a notarial seal, having the word "Texas" en- graved just over the points of the star thereon; also where the word "Texas" is engraved between the points 100 Johnson v. Tuylor, GO Tex. 370. 101 Norton v. Davis, 83 Tex. 37, 18 S. W. 4:;0; Stone v. Sledge (Tex. Civ. App.), 24 S. W. 697. 102 See ante, §§ 1029, 1030. 10:$ <) L. T. 142. §§ 1059-1060 CUEING DEFECTIVE ACKNOWLEDGMENTS. 430 of the star, and county of the residence of the authen- ticating officer under the star ; or seals having the words " county, Texas," instead of "County of ^, Texas,-' are hereby made as valid and binding as though the word "Texas" had been engraved on the margin of the seal. § 1059. Act of April 5, 1889— Acknowledgments by No- taries Using Defective Seals — Validated. — The act of April 5, 1889,^**^ provided that all acts of notaries public ap- pointed by authority of the laws of Texas, as evidenced by the impression of the notarial seal having the word "Texas" engraved just over the points of the star thereon, also where the word "Texas" is engraved bei- tween the poin'ts of the star, and the county and resi- dence of the authenticating officer, under the star or seal having the word " county, Texas," instead of the "County of — , Texas," are hereby made as valid and binding as though the word "Texas" had been engraved on the margin of the seal ; and the rec- ords thereof and copies of same shall hereafter be notice and admissible in evidence, the same as if the seal had been used in strict conformity with law. § 1059a. Act of April 15, 1905— Attempts to Validate Want of Corporate Seal in Conveyances by Attorney in Fact. — This act provides "that all conveyances by corporations heretofore executed in the manner herein set forth shall be held valid so far as regards the manner of execu- tion." But this validating clause is not indicated in the title of the act; furthermore the act contains an- other subject matter, thus failing to comply with the constitution in two particulars.^**^ C. STATUTORY ENACTMENTS- SPECIAL. § 1060. Act of December 24, 1840, validates the acts of Samuel Todd, as clerk of the county court of Shelby county. *^<^ 104 9 L. T. 1149. 105 See ante, §§ 676, 677; 29 Legislature, p. 230. 106 2 L. T. 613. 431 CUEING DEFECTIVE ACKNOWLEDGMENTS. §§ 1061-1068 § 1061. Act of August 19, 1856, validates the acts of Levy S. McMicken as deputy county clerk of Polk county, under W. H. Duke as principal,^**'' § 1062. Act of August 30, 1856, validates the notarial acts of David P. Fearris, as notary public of Ellis county. ^**^ § 1063. Act of May 18, 1871, validates the official acts of Silas McCrary and Jerry Washington, as justices of the peace for Bowie county. *^^ § 1064. Act of May 25, 1871, validates the official acts of I. H. Steen, as district clerk of Hamilton county.**® § 1065. Act of May 25, 1871, validates official acts of I. H. Steen, as justice of the peace of Hamilton countv.*** ^ 1066. Act of May 31, 1871, validates official acts of I. A. Lee, justice of the peace of Coryell county. 113 § 1067. Act of March 13, 1875, validates the notarial acts of C. L. Thurmond, of Victoria county.**^ § 1068. Act of April 1, 1887, validates the notarial acts of William Veal, for Stephens county.**'* 107 4 L. T. 459. 108 4 L. T. 503. 109 6 L. T. 998. no 6 L. T. 10.33. 111 6 L. T. 1033. 112 6 L. T. 1040. 113 8 L. T. 573. 114 9 L. T. 912 §§ 1069, 1070 PLEADING ACKNOWLEDGMENTS. 432 CHAPTER XXIX. PLEADING ACKNOWLEDGMENTS AND PEOOF. § 1069. Must allege ackuowledgnient when. § 1070. Idem. i 1071. Married woman seeking to avoid deed. § 3 072. Must attack acknowledgment by affidavit w^hen. J5 1069. Must Allege Acknowledgment When. — Where the acknowledgment or proof is not an essential part of theJ deed, in declaring upon the deed the acknowledgment or proof need not be alleged.* But where the acknowl- edgment is essential to the validity of the instrument, as in case of a married woman's deed, in declaring upon it, the proper examination, acknowledgment and decla- ration must be alleged.^ It is sufficient, however, to allege that it was "duly acknowledged" by her.^ In the case of Nichols v. Gordon, 25 Tex. Supp. 113, a mort- gage not properly acknowledged by the wife nor alleged to be so was attached to the petition and made part of same. The petition of course was insufifleient. § 1070. Idem. — It would seem that where the proper examination, acknowledgment and declaration are al- leged and the general allegation that it was "duly ac- knowledged" is not used by the pleader, it would be necessary for him to allege every essential of a valid acknowledgment by a married woman, to wit, that she appeared before an authorized officer* to whom she was known ;^ that she was examined by him separate and 1 Munger v. Baldridge, 41 Kan. 236, 13 Am. St. Rep. 273, 21 Pac. 159. 2 Cross V. Everts, 28 Tex. 533. 3 Eoy V. Bremond, 22 Tex. 616; Nichols v. Gordon, 25 Tex. Supp. 113; Livingston v. Jones, Harr. (Mich.) 165. 4 Ante, S 329. r. Ante, § 301. 433 PLEADING ACKNOWLEDGMENTS. §§1071,1072 apart from her husband,*^ and the instrument fully ex- plained to her;'' that she acknowledged to him that she had willingly signed the same,^ and that she did not wish to retract it,^ and that said facts were duly cer- tified to by said officer under his hand and official seal^** in a certificate attached to the deed.^^ ^ 1071. Married Woman Seeking to Avoid Deed.— Where a married woman seeks to set aside her deed, which ap- pears from the certificate to have been properly ac- knowledged by her, on the ground that her acknowledg- ment was not properly taken, she must allege that those facts were known to the grantee. ^^ But the general allegation that the grantee "knew of the imperfect privy examination" was sufficient.^^ § 1072. Must Attack Acknowledgment by Affidavit When. Where plaintiff sued in statutory form of an action of trespass to try title, and defendant pleaded not guilty, defendant offered in evidence a deed with proper cer- tificate of wife's acknowledgment on it. Plaintiff of- fered to prove that the said acknowledgment was ob- tained by fraud. Defendant objected to this evidence on the ground that plaintiff's pleading did not author- ize its introduction. The court held that under that state of the pleadings plaintiff could attack the deed and acknowledgment, without having filed an affidavit showing the acknowledgment was a nullity. But if defendant had pleaded his deed and acknowledgment, 6 Ante, § 290. 7 Ante, § 293. 8 Ante, § 298. 9 Ante, § 300. 10 Ante, §§ 280, 281, 305. 11 Ante, § 124. 12 Gray v. Shelby, 83 Tex. 40.5, 18 S. W. 809. 13 Idem. And see Waltee v. Weaver, 57 Tex. 571; Herring v. White (Tex. Civ. App.), 25 S. W. 1017; Miller v. Yturria, 69 Tex. 553, 7 S. W. 206; ante, § 319. 28 § 1072 PLEADING ACKNOWLEDGMENTS. 434 or filed it among the papers for three days and given the required notice, the rule might have been diffeir- ent** 14 Breitling v. Chester, 88 Tex. 589, 32 S. W. 527; Sartor v. Bolin- ger, ^9 Tex. 411. 435 EEVENUE STAMPS. § 1073 CHAPTER XXX. EEVENUE STAMPS. A. GENEEAL PEINCIPLES. § 1073. Laws which required the use of revenue st-uiips. Si 1074. Effect of omission under Spanish and Mexican laws. § 1075. Effect of omissions under United States laws. § 1076. Federal laws not binding on state courts. § 1077. Federal statutes do not apply to state courts. § 1078. Laws of England not binding here. B. STAMP LAWS OF SPAIN, MEXICO AND TEXAS. § 1079. Stamp laws prior to decree of 1823. § lOSO. Decree of October 6, 1823 — Seals or stamps and their valae and use. § 1081. Order of June 22, 1824 — Form of stamps. § 1(JS2. Decree of October 2, 1824— Form of stamps. S 10^83. Decree of March 24, 1825 — New settlers exempt. § 1084. Instructions of May 31, 1827 — Eecord-book to be stamped. § 1085. Instructions of September 4, 1827 — Eecord-book to b« stamped. § 1086. Decree of February 9, 1828— New settlers exempt. § 1087. Ordinance of November 13, 1835 — Use of stamps abolished. C. STAMP TiAWS OF UNITED STATES. § 1088. Acts of 1864 and 1866. § 1089. Act of June 13, 1898 — Stamps — How attached and can- celed — Effect. § 1090. Provision that deeds are not admissible in evidence or of record, unless stamped. § 1(191. Kinds of stamps. § 1092. Exemptions. § 1093. Schedule A — Stamp laws. A. GENEEAL PEINCIPLES. § 1073. Laws Which Required the Use of Revenue Stamps. The ouly laws we liave found requiring the use of stamped paper or stamps, on conveyances, in Texas, were those of Spain and Mexico, prior to their abolition §§ 1074, 1075 EEVENUE STAMPS. 436 l)j the Provisional Goyernment of Texas on November 13, 1S35, and those of United States.^ § 1074. Effect of Omission Under Spanish and Mexican Laws. — Omission of stamp did not render the conveyance void in 1835, unless there was some provision of the law which so declared.^ It seems that under the Span- ish and Mexican laws in force in Texas prior to 1836, the want of the stamps required by law rendered only the authentication void.^ § 1075. Eifect of Omission Under United States Laws. — The general rule is that the absence of the revenue stamp, required by law, from instruments, does not ren- der the instrument nor the registration thereof void, unless it is shown by the person attacking such instru- ment or objecting to the same that the stamps were omitted with fraudulent intent. In the absence of af- firmative proof fraudulent intent will not be presumed."* The act of Congress, June 30, 1864, as amended by the act of Congress July 13, 1866, providing that the record of a deed not duly stamped, or on which the stamp is not canceled, shall be void, if the omission was made for the purpose of defrauding the government, does not affect the validity of the deed.^ Consequently, it is practically immaterial whether or not the early laws of United States requiring the use of a stamped paper or stamps were complied with, as it would seem almost impossible to prove, after so long a delay, that the stamps were omitted with fraudulent intent.^ 1 See post, §§ 1079-1092; ante, § 3 (e). 2 Carothers v. Covington (Tex. Civ. App.), 27 S. W. 1041. 3 Ante, § 3 (c); Jones v. Montes, 15 Tex. 352. 4 Campbell v. Wilcox, 10 Wall. (U. S.) 421, 19 L. ed. 973; United States v. Griswald, 8 Fed. 556; Green v. Holway, 101 Mass. 243, 3 Am. Eep. 339; Powell v. Feely, 49 111. 143; Moore v. Moore, 47 N. Y. 467, 7 Am. Rep. 468; Trowbridge v. Addoms, 23 Colo. 518, 48 Pac. 535. 5 Dowell v. Applegate, 7 Fed. 881. But see contra, Chartier etc. Co. v. McNamara, 72 Pa. St. 336, 13 Am. Rep. 680. 6 See 13 Cyc. 559. 437 REVENUE STAMPS. §§ 1076-1078 § 1076. Federal Law not Binding on State Courts. — Un- der the United States revenue law of June, 1864, pro- vidinii' that "No deed, instrument, document, or writing of paper required by law to be stamped, which has been signed or issued without being duly stamped, or witL a deficient stamp, nor any copy thereof, shall be re- corded or admitted as evidence in any court until a legal stamp or stamps shall have been affixed thereto," it was held that this law was not necessarily binding on state courts, and that they could disregard it if they chose. Also, that it was proper to permit a party to stamp the instrument in court.'' Neither do our courts recognize the constitutional power of Congress to tax their proceedings.* § 1077. Federal Statutes do not Apply to State Courts. — The act of Congress of 1898, in so far as it seeks to af- fect the admissibility of unstamped instruments in evi- dence, is similar to the acts of Congress of 1864 and 1866, and we think only applied to courts of the United States, and not to the state courts.^ The United States Revenue Act, providing that unstamped instruments shall not be recorded, applies only to records pursuant to United States statutes.^** § 1078. Laws of England not Binding Here. — The omis- sion of stamps required by the laws of England does not affect the validity of the instrument or its admissi- bility in the courts of the United States.*^ 7 Dailey v. Coker, 33 Tex. 81'7, 7 Am. Rep. 279; Gregg & Co. v. Fitzhugh, 36 Tex. 128; Shipman v. Fulerod, 42 Tex. 249. 8 Cavasas v. Gonsales, 33 Tex. 134. n Watson v. Mirike, 25 Tex. Civ. App. 527, 61 S. W. 541; Car- penter V. Snelling, 97 Mass. 452; Rheinstrom v. Cone, 26 Wis. 163, 7 Am. Rep. 51; Griffin v. Ranny, 35 Conn. 239; United States Express Co. V. Haines, 48 111. 248. 10 People V. Fromme, 35 N. Y. App. Div. 459, 54 N. Y. Supp. 833. 11 Linton v. National L. Ins. Co., 104 Fed. 584. §§ 1079. 1080 EEVENUE STAMPS. 438 B. STAMP LAWS OF SPAIN, MEXICO AND TEXAS. § 1079. Stamp Laws Prior to Decree of 1823. — It seems that under the Spanish and Mexican la^ys prior to the decree of October 6, 1823, in so far as the validity of the conveyance was concerned, it was immaterial wlietlier or not a revenue stamp was used. There was a Spanish decree of September 30, 1791, to the effect that sales of real estate should be by a public writing; the decree providing that "whereas frauds have been committed on the revenue by making secret parol sales of real estate, it is ordered that the alcabala (taxes) be collected on such sales," because the contracts became perfect by the mere consent of the parties. -^^ Under the Roman, Spanish and Mexican laws only three things were necessary to make a valid contract : First, a thing or subject matter of the contract ; second, a price ; third, the consent of the parties. ^^ But without the stamp the authentication would be void.-"^* § 1080. Decree of October 6, 1823 — Seals or Stamps and Their Value and Use. — The sovereign Mexican Congress has concluded to decree the following regulation about sealed paper: CHAPTER I. CONCEENING SEALS AND THEIR VALUES. Art. 1. The classes and prices of sealed paper shall be the same as heretofore, that is to say : 1st. Of six dol- lars; 2d. Of twelve reals; both seals on a sheet; 3d seal, four reals on a sheet, and on a half, two reals ; 4th seal, half a real, and on a half sheet, one-quarter real. Another kind of fine paper of all classes will be stamped with a neat, small seal on the upper side of a quarter of a sheet of paper for drafts and receipts. 12 Hall's Mexican Law, 1555. 13 Idem. 14 Ante, chapter 1, sec. 3 (c); Jones v. Montes, 15 Tex. 352; Shir- burn V. Hunter, 21 Fed. Cas. No. 12,744. 439 EEVENUE STAMPS. § 1080 Art. 2. The seal must be of the national arms, finely engraved and with the necessary precautions to pre- vent counterfeiting, and inscribed with small, plain letters, without number or abbreviation, which ex- presses the class of the seal of the paper, its value, and the biennial term of its circulation. Art. 3. The special for drafts and receipts will ex- press, in addition, the object for which it is intended, the two terms of the sums for which it is to be used, and the value of the paper. Art. 4. Of the fourth seal a part will be stamped which bears this rubric : Official ( for the use which will be stated afterward). CHAPTEE II. CONCEENING THE USE OF SEALS. Art. 5. The first seal will necessarily be used : * **** It * * On the titles of lands whose value may be one thou- sand dollars upward. On wills whose heir or heirs may not be descendants or ascendants, but collaterals or strangers. On all writing on which appears an act of liberality as a gift, cession, promise of legacy, dowry, etc., by which knowingly gain results to a party to the amount of tliree hundred dollars. On the writing of every sale or contract specified or unspecified on wliich is placed the import or sum of two thousand dollars upward. Art. 6. The copies or testimonios of documents Avhich should be issued on paper of the first seal may be put on the same when they are given separately for the use of interested parties, provided, that, the sum of these may be more than the amount of two thousand dollars and upward. Art. 7. The second seal must necessarily be used. § 1080 EEVENUE STAMPS. 440 On the A^ ritinjis of sale or oontraet on A\'liich appears the sum from three hundred to one thousand nine hun- dred and ninety-nine dollars. Powers of attorney will continue to be issued on pa- per of the second seal. It wull be used on the writings in which a definite sum is not expressed, but indefinite, unless it may be inferred what it is from the context. * **** *»« On the copies or testimonios o-iven separately by judges or notaries for the use of parties, provided that the interest which they have may be from five hundred to one thousand nine hundred and ninety-nine dollars. Art. 8. The third seal shall be used: * ***» *»* On the original acts of the suits, interlocutory or definitive, citations, transfers, declarations and all ju- dicial proceedings which the judge may make at the petition of the party either in contested judgments or proceedings which may be made in good faith. On the certificates that may be given by the priests at the request of the party of certificate of baptism, marriage, burial, or of any other act of his ministry, except those of widows and orphans. On the certificates which may be given by the magis- trates, the learned judges, doctors, teachers and other authorized persons at the petition of the parties, ex;- cepting the military officers in affairs which are relative to the service. * ***» *»* On the copies and testimonios separately of all the documents which may be given for the use of interested parties, whose amounts may be from one hundred to four hundred and ninety-nine dollars. Notices to the public of auctions, public sales and others which by law or custom may have been placed up to this time on paper of the third seal will be con-' tinned in the same way. 441 KEVENUE STAMPS. § 1080 On the protocols or registers of the notaries or dele- gate judges on which are written the different classes of public instruments which are granted by parties in their contracts or business matters. Art. 9. The fourth seal is to be used : On the intermediate leaves of every certified copy if the first leaf should not be sufficient of the seal which for its class and quantity should be issued. On the wills or testaments and other records of the notoriously poor. On the writings or demands of the notoriously poor^ and the proceedings which were had in consequence of them. On the causes, purely criminal, which are acted on by accusation. On every appointment, office or secretaryship, prin- cipal or subaltern, secular or ecclesiastical; the fourth seal will be used also on the books of the acts, acknowl- edgments, registers, memoranda of parcels, received or paid out, warrants, certificates, copies of accounts, sworn statements, receipts and other records of offices, except the official letters of reply, and blotters, lists, and other memoranda where there are provisionally set down some parcels or proceedings before putting them on the books. CHAPTER III. FORM OF PAPER AND PENALTIES FOR INFRACTIONS. « **** *** Art. 10. Every title or document, whatever it may be, that may not be issued on paper of the correspond- ing seal according to this regulation shall not be valid in court, nor admitted in the offices of account and cal- culation. § J 081 EEVENUE STAMPS. 442 CHAPTER IV. GENEEAL PROVISIONS. Art, 14. The damaged seal of the first and second class will be admitted in exchange, according to custom, charging the value of two reals. The exchange of the third seal will be made for the value of half a real. For every exchange the proof of the notary must ap- pear on the sheet which has been spoiled. * **** *** Note. — This law provided that an instrument not properly stamped was not properly authenticated so as to be full proof, and would require other proof to establish its validity.*^ § 1081. Order of June 22, 1824— Form of Stamps. — On June 22, 1824, the political chief of Texas wrote to Stephen F. Austin, authorizing him ''to stamp as much common paper as may be necessary for the inhabitants, doing it by means of a line at the top of each sheet with these expressions : 'Sello 30 4rrs, Habitado par la Na- cion Mexicano parael ano de 1824, Austin,' signing it with your surname only." After which the interested person shall take the same paper to the alcalde of the district, who, as the personal collector of the revenue, shall collect its value, and put up on the margin of each sheet the following expressions : "Pago el interesado en este jusgado de mi cargo les cuatro riales importe del Sello anterior," and signature of alcalde. "The same will be observed with regard to stamps of other classes," etc. ^^ 15 Jones V. Montes, 15 Tex. 352, ante, § 3 (c). The copy of the above decree of October 6, 1823, in the Spanish language, was ob- tained from the United States Consul General at Mexico City and translated by Martin M. Kinney, Spanish translator of the General Land Office of Texas. 16 1 L. T. 3U. 443 REVENUE STAMPS. §§ 1082-1085 § 1082. Decree of October 2, 1824— Form of Stamps.— On October 2, 1824, the Congress of the states of Coahuila and Texas decreed that the gwernor shall order a seal engraved, for the purpose of stamping or legalizing paper, bearing the following inscription : "Legalized by the state of Coahuila and Texas for the two years' term of 1824 and 1825.'' In order that such paper may be readily obtained, the agents of the tobacco establish- ments shall transact this business. In other respects, the law of the 6th of October, 1823, relative to stamped paper, shall be observed so far as it is applicable to the state. Notwithstanding there is known to be no offi- cial paper of the fourth stamp among the various kinds in this capital, the governor shall direct another stamp to be made, bearing the rubric official, to be impressed upon paper of the fourth stamp, on the part required.^' § 1083. Decree of March 24, 1825— New Settlers Exempt. On :March 24, 1825, it was provided by the colonization law that during the first ten years new settlements should be free from all dues, taxes, etc.** § 1084. Instructions of May 31, 1827— Record-book to be Stamped.— On ]May 31, 1827, the governor in his instruc- tions to S. F. Austin as to his keeping a record of the titles of his colony, states that inasmuch as the paper on which the original titles are extended, has been paid for, the said book shall be stamped by the collector of the stamp duties of the town of San Filipe de Austin, with the stamp of the fourth seal; and he will collect the value of one stamp for each leaf. 19 § 1085. Instructions of September 4, 1827— Record-book to be Stamped.— On September 4, 1827, S. F. Austin is again instructed to form a manuscript book of paper of the third stamp in which shall be written the titles 17 1 L. T. 120. IS 1 L. T. 104. 10 1 L. T. 38. §§ 10S6-1089 EEVENUE STAMPS. 444 of (lie lands distributed to the colonists, and certified copies of each title shall be taken from said book on paper of the second stamp, and delivered to the inter- ested parties.'** § 1086. Decree of February 9, 1828— New Settlers Exempt. On February 9, 1828, it was decreed by the Congress of the state that the inhabitants of the new Texas colonies, and of every other town whatever hereafter founded in this state shall be exempted from complying with the stamped paper law for the terai of ten years, as pro- vided in section 32 of the colonization law of March 24, 1825, except as regards titles to property of each town, etc.^i § 1087. Ordinance of November 13, 1835 — Use of Stamps Abolished.— On November 13, 1835, the Provisional Gov- ernment of Texas abolished the use of stamped paper "" 22 C. STAMP LAWS OF UNITED STATES. § 1088. Acts of 1864 and 1866.— As the acts of 1864 and 1866 are similar to the act of June 13, 1898, in so far as they affect the admissibility of instruments in evidence and of record, the latter act only will be considered.^^ § 1089. Act of June 13, 189824_Stamps— How Attached and Canceled— Effect.— This law required the use of stamps on the instruments designated in Schedule A of said act,^^ which stamps shall be canceled by the userwritingthereon the initials of his name and the date, and section 13 of same provided that any instrument, document or paper mentioned in Schedule A not being stamped according to law, shall be deemed invalid and of 20 1 L. T. 56. 21 1 L. T. 207. 22 Art. 16j 1 L. T. 911. 23 Ante, § 1077; V. S. Eev. Stats. 1878, p. 671. 24 U. S. Comp. Stats. 1901, vol. 2, 2286 (taking effect July 1, 1898, repealed July 1, 1901). 25 Post, § 1092. 445 REVENUE STAMPS. §§ 1090-1093 no effect ; provided the same may be afterward validated, by an interested person appearing before the collector of internal revenues of the proper district, and paying the price of the proper stamp and a penalty of ten dollars, and affix the stamp and note on the margin of the instru- ment the date of his so doing ; provided that if the omis- sion was through mistake, etc., the penalty may be remit- ted. When the instrument has been recorded and the stamp afterward affixed, it shall be lawful for the re- corder to record the same, or note upon the original rec- ord the fact that the error or omission in stamping has been corrected ; and such original or copy may be used in all the courts as though it had been originally stamped.^^ ^ 1090. Provision that Deeds are not Admissible in Evi- dence or of Record Unless Stamped. — Section 14 provides that no instrument as aforesaid, not properly stamped, shall be recorded or admitted or used as evidence in any court, etc. And section 15 provided that it shall not be lawful to record same and the record thereof shall not be used as evidence.^'' The above sections are not binding on state courts. § 1091. Kind of Stamps. — Section 16 provides that no particular kind of stamps were required j)rovided a legal documentary stamp of the proper denomination was used. § 1092. Exemptions. — Section 17 exempted states, counties, towns or other corporations with taxing power and certain co-operative building and loan associations. § 1093. Schedule A — Stamp Taxes. — Bonds, dchentiires, or rcriificaics of indrhtcdncss issued after the first day of July, Anno Domini eighteen hundred and ninety- eight, by any association, company, or corporation, on 26 See ante, § 1075. 27 But see ante, § 1075. § 1093 REVENUE STAMPS. 446 each hundred doUars of face valuer or fraction thereof, five cents, and on each original issue, whether on organ- ization or reorganization, of certificates of stocl?; by any such association, company or corporation, on each hun- dred dolhirs of face value or fraction thereof, five cents, and on all sales, or agreements to sell, or memoranda of sales or deliveries or transfers of shares or certifi- cates of stock in any association, company or corpora- tion, whether made upon or shown by the books of the association, company or corporation, or by any as- signment in blank, or by any delivery, or by any paper or agreement or memorandum or other evidence of transfer or sale, whether entitling the holder in any manner to the benefit of such stock, or to secure the future payment of money or for the future transfer of any stock, on each hundred dollars of face value or fraction thereof, two cents; provided, that in case of sale where the evidence of transfer is shown only by the books of the company the stamp shall be placed upon such books; and where the change of ownership is by transfer certificate the stamp shall be placed upon the certificate ; and in cases of an agreement to sell, or where the transfer is by delivery of the certificate as- signed in blank there shall be made and delivered by the seller to the buyer a bill or memorandum of such sale, to which the stamp shall be affixed ; and every bill or memorandum of sale or agreement to sell before mentioned shall show the date thereof, the name of the seller, the amount of the sale, and the matter or thing to which it refers. And any person or persons liable to pay the tax as herein provided, or anyone who acts in the matter as agent or broker for such person or persons, who shall make any such sale, or who shall in pursuance of any such sale deliver any such stock, or evidence of the sale of any such stock or bill or memo- randum thereof, as herein required, without having the proper stamps affixed thereto, with intent to evade the foregoing provisions shall be deemed guilty of a misde- meanor, and upon conviction thereof shall pay a fine of not less than five hundred nor more than one thou- 447 BEVENUE STAMPS. § 1093 sand dollars, or be imprisoned not more than six months, or both, at the discretion of the court. Upon each sale, agreement of sale^ or agree'ment to sell, any products or merchandise at any exchange, or board of trade, or other similar place, either for present or future delivery, for each one hundred dollars in value of said sale or agTeement of sale or agreement to sell, one cent, and for each additional one hundred dollars or fractional part thereof in excess of one hundred dollars, one cent; provided, that on every sale or agreement of sale or agreement to sell as aforesaid there shall be made and delivered by the seller to the buyer a bill, memorandum, agreement or other evidence of such sale, agreement of sale, or agreement to sell, to which there shall be af- fixed a lawful stamp or stamps in value equal to the amount of the tax on such sale. And every such bill, memorandum, or other evidence of sale or agreement to sell, shall show the date thereof, the name of the seller, the amount of the sale, and the matter or thing to which it refers; and any person or persons liable to pay the tax as herein provided, or anyone who acts in the matter as agent or broker for such person or per- sons, who shall make any such sale or agreement of sale, or agTeement to sell, or who shall, in pursuance of any such sale, agreement of sale, or agreement to sell, de- liver any such products or merchandise without a bill, memorandum, or other evidence thereof as herein re- quired, or who shall deliver such bill, memorandum or other evidence of sale, or agreement to sell, without having the proper stamps affixed thereto, with intent to evade the foregoing provisions, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not less than five hundred nor more than one thousand dollars, or be imprisoned not more than six months, or both, at the discretion of the court. Bank check, draft, or certificate of deposit, not draw- ing interest, or order for the payment of any sum of money, drawn upon or issued by any bank, trust com- § 1093 REVENUE STAMPS. 448 pany, or any person or persons, companies or corpora- tions at sight or on demand, two cents. Bin of exchange {inland), draft, certificate of deposit drawino- interest, or order for the payment of any sum of money, otherwise than at sight or on demand, or any promissory note except bank notes issued for circula- tion, and for each renewal of the same, for a sura not exceeding one hundred dollars, two cents ; and for each additional oue hundred dollars or fractional part thereof in excess of one hundred dollars, two cents. And from and after the first day of July, eighteen hun- dred and ninety-eight, the provisions of this paragraph shall apply as well to original domestic money orders issued by the government of the United States, and the price of such money orders shall be increased by a sum equal to the value of the stamps herein provided for. Bill of exchange (foreign) or letter of credit (in- cluding money orders by telegraph or otherv\dse for the payment of money issued by express or other companies or any person or persons), drawn in but payable out of the United States, if drawn single or otherwise than in a set of three or more, according to the custom of merchants and bankers, shall pay for a sum not ex- ceeding one hundred dollars, four cents, and for each one hundred dollars or fractional part thereof in excess of one hundred dollars, four cents. If drawn in sets of ttvo or more: For every bill of each set, where the sum made payable shall not exceed one hundred dollars, or the equivalent thereof, in any foreign currency in which such bill may be expressed, according to the standard of value fixed by the United States, two cents; and for each one hundred dollars or fractional part thereof in excess of one hundred dollars, two cents. Bills of lading or receipt (other than charter-party) for any goods, merchandise or effects, to be exported from a port or place in the United States to any for- eign port or place, ten cents. 449 REVENUE STAMPS. § 1093 Express and freiglit: It shall be the duty of every railroad or steamboat company, carrier, express com- pany or corporation or person whose occupation is to act as such, to issue to the shipper or consignor, or his agent, or person for whom any goods are accepted for transportation, a bill of lading, manifest, or other evi- dence of receipt, and forwarding for each shipment re- ceived for carriage and transportation, whether in bulk or in boxes, bales, packages, bundles, or not so inclosed or included; and there shall be duly attached and can- celed, as is in this act provided, to each of said bills of lading, manifest, or other memorandum, and to each duplicate thereof, a stamp of the value of one cent; provided, that but one bill of lading shall be required on bundles or packages of newspapers when inclosed in one general bundle at the time of shipment. Any fail- ure to issue such bill of lading, manifest, or other mem- orandum, as herein provided, shall subject such rail- road or steamboat company, carrier, express company, or corporation or person to a penalty of fifty dollars for each offense, and no such bill of lading, manifest, or other memorandum shall be used in evidence unless it shall be duly stamped as aforesaid. Telephone messages: It shall be the duty of every per- son, firm or corporation owning or operating any tele- phone line or lines to make within the first fifteen days of each month a sworn statement to the collector of in- ternal revenue in each of their respective districts, stat- ing the number of messages or conversations trans- mitted over their respective lines during the preceding month, for which a charge of fifteen cents or more was imposed, and for each of such messages or conversations the said person, firm or corporation shall pay a tax of one cent; provided, that only one payment of said tax shall be required, notwithstanding the lines of one or more persons, firms or corporations shall be used for the transmission of each of said messages or conversa- tions. 29f § 1093 REVENUE STAMPS. 450 Bond: For indeiimifvine^ any person or persons, firm, or corporation who shall liave become hound or enoages as surety for the payment of any sum of money, or for the due execution or performance of the duties of any office or position, and to account for money received by virtue thereof, and all other bonds of any description, except such as may be required in legal proceedings, not otherwise provided for in this schedule, fifty cents. Certificate of profits, or any certificate or memoran- dum showing an interest in the property or accumula- tions of any association, company, or corporation, and on all transfers thereof, on each one hundred dollars of face value or fraction thereof, two cents. Certificate: Any certificate of damage, or otherwise, and all other certificates or documents issued by any port warden, marine survej^or or other person acting as such, twenty-five cents. Certificates of any description required by law not otherwise specified in this act, ten cents. Charter-party: Contract or agreement for the charter of any ship, or vessel or steamer, or any letter, memo- randum, or other writing between the captain, master, or owner, or person acting as agent of any ship, or vessel or steamer, and any other person or persons, for or re- lating to the charter of such ship, or vessel, or steamer, or any renewal or transfer thereof, if the registered ton- nage of such ship or vessel, or steamer does not exceed three hundred tons, three dollars. Exceeding three hundred tons and not exceeding six hundred tons, five dollars. Exceeding six hundred tons, ten dollars. Contract: Brokers' note, or memorandum of sale of any goods or merchandise, stocks, bonds, exchange, notes of land, real estate, or property of any kind or description issued by brokers or persons acting as such, for each note or memorandum of sale, not otherwise provided for in this act, ten cents. 451 EEVENUE STAMPS. § 1093 Conveyance : Deed, instrument or writing, whereby any lands, tenements or other realty sold shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his, her, or their direction, when the consideration or value exceeds one hundred dollars and does not exceed five hundred dollars, fifty cents; and for each additional five hundred dollars, or fractional part thereof in excess of five hundred dollars, fifty cents. Dispatch, telegraphic: Any dispatch or message, one cent. Entry of any goods, wares, or merchandise at any cus- tom-house, either for consumption or warehousing, not exceeding one hundred dollars in value, twenty-five cents. Exceeding one hundred dollars and not exceeding five hundred dollars in value, fifty cents. Exceeding five hundred dollars in value, one dollar. Entry for the withdrawal of any goods or merchan- dise from customs bonded warehouse, fifty cents. Insurance (life) : Policy of insurance, or other instru- ment, by whatever name the same shall be called, whereby any insurance shall hereafter be made upon any life or lives, for each one hundred dollars or frac- tional part thereof, eight cents on the amount insured; provided, that on all policies, for life insurance only, issued on the industrial or weekly payment plan of in- surance, the tax shall be forty per centum of the amount of the first weekly premium. And it shall be the duty of each person, firm or corporation issuing such policies to make within the last fifteen days of every month a sworn statement to the collector of internal revenue in each of their respective districts of the total amount of first weekly premiums received on such policies issued by the said person, firm or corporation during the pre- ceding month, and upon the total amount so received, the said person, firm, or corporation shall pay the said § 1093 EEVENUE STAMPS. 452 tax of forty per centum ; provided, further, that the pro- visions of this section shall not apply to any fraternal, beneficiary society, or order, or farmers' purely local co-operative company or association, or employees' re- lief association operated on the lodge system, or local co-operative plan, organized and conducted solely by the members thereof for the exclusive benefit of its mem- bers and not for profit. Insurance (marine, inland, -fire): Each policy of in- surance or other instrument, by whatever name the same shall be called, by which insurance shall be made or renewed upon property of any descri|)tion (includ- ing rents and profits), whether against perils by sea or on inland waters, or by fire or lightning, or other peril, made by any person, association, or corporation, upon the amount of premium charged, one-half of one cent on each dollar or fractional part thereof; provided, that purely co-operative or mutual fire insurance companies carried on by the members thereof solely for the pro- tection of their own property and not for profit shall be exempted from the tax herein provided. Insurance (casualty, fidelity and guarantee) : Each policy of insurance, or bond or obligation of the nature of indemnity for loss, damage, or liability issued, or executed, or renewed by any person, association, com- pany or corporation, transacting the business of acci- dent, fidelity, employers' liability, plate glass, steam boiler, burglary, elevator, automatic sprinkler, or other branch of insurance (except life, marine, inland and fire insurance), and each bond undertaking or recogni- zance, conditioned for the performance of the duties of any office or position, or for the doing or not doing of anything therein specified, or other obligation of the nature of indemnity, and each contract or obligation guaranteeing the validity or legality of bonds or other obligations issued by any state, county, municipal, or other public body or organization, or guaranteeing titles to real estate or mercantile credits executed or guaran- 453 EEYENUE STAMPS. § 1093 teed bj any fidelity, guarantee or surety company upon the amount of premium charged, one-half of one cent on each dollar or fractional part thereof. Lease, agreement, memorandum or contract for the hire, use or rent of any land, tenement or portion thereof — If for a period of time not exceeding one year, twenty- five cents. If for a period of time exceeding one year and not exceeding three years, fifty cents. If for a period exceeding three years, one dollar. Manifest for custom-house entry or clearance of the cargo of any ship, vessel, or steamer for a foreign port — If the registered tonnage of such ship, vessel, or steamer does not exceed three hundred tons, one dollar. Exceeding three hundred tons, and not exceeding six hundred tons, three dollars. Exceeding six hundred tons, five dollars. Mortgage or pledge of lands, estate or property, real or personal, heritable or movable, whatsoever, where the same shall be made as a security for the payment of any definite and certain sum of money, lent at the time or previously due and owing or foreborne to be paid, being payable; also any conveyance of any lands, estate, or property whatsoever, in trust to be sold or other^'ise converted into money, which shall be intended only as security, either by express stipulation or other- wise; on any of the foregoing exceeding one thousand dollars and not exceeding one thousand five hundred dollars, twenty-five cents ; and on each five hundred dol- lars or fractional part thereof in excess of fifteen hun- dred dollars, twenty-five cents; provided, that upon each and every assignment or transfer of a mortgage, lease, or policy of insurance, or the renewal or continu- ance of any agreement, contract, or charter, by letter or otherwise, a stamp duty shall be required and paid at the same rate as that imposed on the original instru- ment. § 1093 EEVENUE STAMPS. 454 Passage ticket, by any vessol from a port in the United States to a foreijin port, if costing not exceeding thirty dollars, one dollar. i Costing more than thirty and not exceeding sixty dol- lars, three dollars. ' Costing more than sixty dollars, five dollars. Poioer of attorney or proxy for voting at any election for officers of any incorporated company or association, except religious, charitable, or literary societies, or pub- lic cemeteries, ten cents. Power of attorney to sell and convey real estate, or to rent or lease the same, to receive or collect rent, to sell or transfer any stock, bonds, scrip, or for the col- lection of any dividends or interest thereon, or to per- form any and all other acts not hereinbefore specified, twenty-five cents; provided, that no stamps shall be re- quired upon any papers necessary to be used for the collection of claims from the United States for pensions, back pay, bounty, or for property lost in the military or naval service. Protest: Upon the protest of every note, bill of ex- change, acceptance, check or draft, or marine protest, whether protested by a notary public or by any other officer who may be authorized by the law of any state or states to make such ftrotest, twenty-five cents. Warehouse receipts for any goods, merchandise, or property of any kind held on storage in any public or private warehouse or yard, except receipts for agricul- tural products deposited by the actual grower thei'eof in the regular course of trade for sale, twenty-five cents ; provi to iuipcaeh certificate, 182. inadmissible when, 182. want of capacitj' in officer cannot be shown, 183. parol evidence to impeach certificate admissible when, 184. may show no acknowledgment made, 184. admissible where purchaser is chargeable with notice, 185. tn aid seal, 494, 495. •iS6 INDEX. PAETNEES, may take acknowledgments when, 581, 573. may make acknowledgments when, 551, 552. PEESONS AUTHORIZED TO MAKE ACKNOWLEDGMENTS. See Who May Make Acknowledgments, who may take acknowledgments. See Who May Take Acknowl- edgments. PERSONAL PROPERTY OF WIFE CONVEYED WITHOUT AC- KNOWLEDGMENT, 242. PLACE OF TAKING ACKNOWLEDGMENTS, 111. county clerk not authorized where, 112. chief justices of county courts authorized where, 113. presumption that otficer acted within jurisdiction, 114. must be taken in compliance with Texas laws, 115. PLEADING ACKNOWLEDGMENTS AND PROOF, 1069-1072. must allege acknowledgments when, 1069, 1070. married women seeking to avoid deed, 1071. must attack acknowledgment by affidavit when, 1072. PREBUMPTION, where record is made that proof was made, 47. fhat officer acted within liis jurisdiction, 114. that officer did his duty in explaining instrument to married woman when, 291. of authentic instruments, 3 (h). as to certificates, does not cure defects in, 215. lapse of time will not aid, 215. that officer affixed seal where he so certifies, 489, 490, 307. is that certificate recites the facts, 324. that instrument found in possession of a party is the testimonio and not protocol, 34. as to seals, 489, 490, 307. as to proof, 357. as to authority of officers, 3 (h). as to deputy's authority, 593. PRIMARY AND SECONDARY EVIDENCE, 481-483. PRTTVIARY JUDGES. 12\ 15-17. PRIORITY OF PURCHASERS UNDER SPANISH LAW, 2. PRIVATE INSTEUMENTS, 36. PRIVY EXAMINATION OF WIFE, 257-259, 290-292. explanation to wife, 261-265, 293-297. PROOF OF INSTRUMENTS BY WITNESSES, 349-454. proof presumed to have been made where record is made, 47. certificate of proof by subscribing witnesses must show what, 393- 408. witness known, 393, 394. that witness was sworn, 395. witness saw execution, or heard acknowledgment, and was re- . quested to sign, 396. idem — rule prior and siabsequent to 1846, 397. INDEX. 487 PKOOF OF INSTRUMENTS BY WITNESSES (Continued). where witness' name appears on deed, it is not necessary to certify that he subscribed, 398. alternative certificate, 399. irregular certificate, 400. official character, 401. seal, 402. signature, 403. purposes and considerations, etc., 404. execute instead of subscribe, etc., 405. grantor's name instead of attorney's, in certificate, fatal, 374. amendment of certificate, 992, 472. proof certified to under act of 1836., 42-48, 357. under subsequent statutes, 359, 371-375. other requirements and force and effect of certificate, 406. certificate of keeper of archive sufficient, 38-40. form of certificate of proof, 435, 407-439. controlled by what law, 407. substantial compliance with statute only required, 408. forms under acts from 1836 to 1879, 413-431. under Revised Statutes of 1879, still in force, 435. proof of handwriting, 453, 454. requirements of statutes, 409-439. certificate of proof by proof of handwriting, 451. substantial compliance only necessary, 452. valid forms, 453, 454. amendment of certificate, 992. how made, 68-106, 283. how made under act of 1836, 357. presumption as to proof, 357. how far repealed, 358. how proved under subsequent statutes, 359. how proved generally, 360-375. judge attesting is subscribing witness when, 360. acknowledgment of officer's signature to certificate sufficient proof, 361. officer not competent without accounting for absence of wit- ness, 362. subscribing witness must be produced if possible, 363. sole subscribing witness sufficient when, 364. where witness signs by making his innrk, 365. certificate that instrument was duly proven before mo insuffi- cient, 366. necessary to state that witness signed at request of grantor when, 367. signed at request of— rule at present time, 368. not necessary to show witness' means of knowledge, 369. 488 INDEX. PEOOF OF INSTRUMENTS BY WITNESSES (Continued). means of knowledge stated, 370. must show witness saw grantor sign or heard him acknowl- edge, 371. not necessary for witness to have seen execution, 372. saw firm name signed, 373. grantor's name instead of attorney's in certificate, fatal, 374. clerical omission not fatal when, 375. other means of proving conveyances for record, 471. made under what law, 349. knowledge of witnesses' identity by officer, 392. proof by proof of handwriting, 440-470. proof must conform to statute in force at time proof is made, 441. proof for record by proof of handwriting, 442. must be proved by persons authorized by statute, 443. where witness is interested, 444. where witness is grantor or grantee, 445. ancient instrument, 446. predicate for secondary evidence, 447. most satisfactory proof, 448. proof of handwriting by comparison, 449. rule modified, 450. proof of handwriting of signer of testimonio, 46. proof of deeds offered in evidence, 473-483. by subscribing witnesses, 474. subscribing witnesses not obtainable or are adverse parties, 475. •where witness' handwriting cannot be proved, 476. may be proved by grantee when, 477. proved by any competent witness when, 478. no subscribing witnesses — ^proof how made, 479, by other evidence, 480. primary and secondary evidence, 481. general rule, 482. line drawn between primary and secondary evidence, 483. what officers may take proof by subscribing witnesses, 376. officer who is subscribing witness qualified, 377. who may be subscribing witnesses, 385. general rule, 385. grantee incompetent witness, 386. interest disqualified witness when, 387, 388. query. Can a grantee be a subscribing witness? 388. interest does not disqualify when, 389. where one witness incompetent, handwriting of other may be proved, 390. grantor's selection and volunteer witnesses, 391. INDEX. 489 PEOOF OF INSTRUMENTS BY WITNESSES (Continued), who may prove instruments for record, 378-384. subscribing witnesses, generally, 378. where there were no subscribing witnesses, 379. witness beyond jurisdiction of the court, 380. under the act of 1846, 381. under the act of 1863, 382. under the Eevised Statutes of 1879, 383. Revised Statutes of 1895, 383. number of witnesses to prove handwriting required, 384. necessity of assisting witnesses under Spanish law prior to 1836, 350. instrumental witnesses not necessary to authentication, 3 (f). conveyances prior to 1836 not full proof unless witnessed, 351. witnessed by notaries, 352. under colonization laws, title not witnessed must be proved, 353. necessity of subscribing witnesses subsequent to 1836, 354. •married woman's deed cannot be proved by witnesses, 355. by subscribing witnesses not required in all cases, 356. witness must be known to officer, 392. PROTOCOLS, 2, 23-26, 3, 4, 198-200. admissible in evidence, 26, 4. as ancient instrument tliough not authentic, 4. proceedings of ayuntamiento should not be delivered to county clerk, 27. protocols should not be delivered to the general land commis- sioner when, 27, 31. protocol might be proven and recorded, 28, 199. titles issued by land commissioner also called protocols, 25, 31, 34. necessity of recording protocols, 29. certified copies by county clerks admissible, 30. by foreign officer, 25, 200. presumption is that instrument found in possession of party is not the protocol, 34. certified copies by general land office admissible when, 31. PROVISIONAL GOVERNMENT, 1. PUBLIC INSTRUMENTS, 35, 2, 4. E-\ILROAD CORPORATIONS MAY MAKE ACKNOWLEDG- MENTS AND PROOF, 558, 559. RECORDERS, COUNTY CLERKS AS, 42. RKCOHIJS DEPOSITMD WITH COUNTY CLERKS, 24. protocols, record of, 28-31. testimonios, record of, 32-34, 46. 490 INDEX. EEGISTRATION PKIOK TO 1S36, 2-5. EELATIONSHIP OF OFFICERS DOES NOT DISQUALIFY, 582, 583. REPEALS BY IMPLICATION, 622-631, 641, 642, 646-656, 663-666, statute revising subject matter of former, 623, 664. latter intended as substitute for former, 624, 665. statutes relating to same subject matter, 625. statutes should be construed so that both may stand, 628. parties have their election of remedies, 629. law should embrace but one subject matter, 666. REQUIREMENTS OF VALID ACKNOWLEDGMENTS, single persons, 99-105, 137-156. joint acknowledgment of husband and wife, 257-269, 275-324. privy examination essential, 257. prior to act of February 3, 1841, 259. haw corrected, 260. explanation essential, 261, 262. by interpreter va.lid, 263. if she knew contents of deed, 264. explanation where reference is made to another instru- ment, 265. free from compulsion, 266. right to retract, 267. grantor known or proved to officer, 268. extent of acquaintance, 269. RESIDENCE OF PARTIES TO AUTHENTIC INSTRUMENTS, 3 (e). RETRACT, WIFE'S RIGHT TO, 267, 300, 270. REVENUE STAMPS, 1073-1093. SEALS. seals essential, 484. kind of seal to be used, 484. not constructive notice without seal, 485. necessary to authenticate instrument prior to 1837, 3 (d). not required when, 486. not required by county clerk when, 50. attachment of seal is question of fact, 487. reference to seal unnecessary when it is attached, 488. presumption and statement as to seal, 489. reference to seal on record atfords presumption of proper seal, 490. statement in record "no seal on" ineffectual if original shows seal, 491. no presumption that seal was attached where there is nothing to show it, 492. clerical omission of word "seal" not fatal, 493. INDEX. 491 SEALS (Continued). parol evidence to aid, 494. to aid omission, 495, 496. may be attached when, 497. justices must use seal of notaries, 49S. no form prescribed for commissioners of deeds when, 499. form of seals prescribed, 500. private seals, and scrolls — railway company seals — in lieu of offi- cial, 501. conveyance without private seal not void, 502. See Stamps, statutory enactments relating to seals, 503-527. SCHEDULE OF WIFE'S SEPARATE PROPEETY ACKNOWL- EDGED HOW, 273 (a). SECONDARY EVIDENCE, 190, 481-483. SEPARATE EXAMINATION. 257-259, 290-292. SIGNATURES. to authenticate instrument, 3 (e), 203. to book in which protocols are written sufficient, 203. of officer necessary to validity of certificate, 132, 306, 203. of sole subscribing witness sufficient when, 364. SPANISH AND MEXICAN LAWS, 2-22, 1079-1087. how sale may be effected under Spanish and Mexican laws, 2. verbal sale of real estate valid, 2. form of contracts, 2. notice and priorit-y of purchasers under Spanish and Mexican laws, 2. method of authentication and record prior to 1836, 3. by authorized officers, 3 (a). Spanish language to be used, 3 (b). stamped paper to be used, 3 (c). seals, signets, rubrics and notarial flourishes, 3 (d). signatures, names, residences, date, venue, terms, etc., 3 (e). assisting witnesses necessary to authentication when, 3 (f). alterations, blanks, interlineations, forgeries, etc., 3 (g). presumption — proof — antiquity, 3 (h), 34. method for Austin colony, 3 (i). custom, 3 (j). necessity, materiality and ofFoct of autlicnticrition, 4. officers authorizcfl to authenticate, 5. notaries public, 6. .judges and decrees relating to same, 7-21. authority of officers immaterial when, 22. SPECIAL COMMISSIONER MAY MAKE ACKNOWLEDGMENT WHEN, 571. STAMPS— REVENUE. laws whii-li require the use of revenue stamps, 1073. 492 INDEX. STAMPS— REVENUE (Contimied). effect of omissions under Spanisli and Mexican laws, 1074. effect of omissions under United States laws, 1075. federal laws not binding on state courts, 1076. federal statutes do not apply to state courts, 1077. laws of England not binding hero, 1078. stamped paper, 3 (c). stamp laws of Spain, Mexico and Texas, 1079-1087. stamp laws prior to decree of 1823, 1079. decree of October 6, 1823— seals or stamps and their value, 1080. order of June 22, 1824— form of stamps, 1081. decree of October 2, 1824 — form of stamps, 1082. decree of March 24, 1825 — new settlers exempt, 1083. instructions of May 31, 1827 — record-book to be stamped, 1084. instructions of September 4, 1827 — record-book to be stamped, 1085. decree of February 9, 1828 — new settlers exempt, 1086. ordinance of November 13, 1835 — use of stamps abolished, 1087. stamp laws of United States, 1088-1093. act of June 13, 1898 — stamps — how attached and canceled — effect, 1089. provision that deeds not admissible in evidence or of record, without, 1090. kinds of stamps, 1091. exemptions, 1092. schedule A — stamp laws, 1093. STATUTOEY ENACTMENTS. acknowledgments, requirements as to — single acknowledgments — requirements of, 219-237. prior to act of December 1836, 219. act of December 20, 1836, 220. certificate required when, 221. certificates by county clerks required when, 222. acknowledgment of signature of office sufficient, 223. proof of signature of single witness sufficient, 224. no seal necessary, when, 225. when grantor is known to officer, it is not necessary to be certified, 226. act of January 19, 1839, 227. act of February 5, 1840, 228. act of February 5, 1841, 229. act of May 8, 1846, 230. act of May 12, 1846, 332. acts of April 6, 1861, January 14, 1862, November 13, 1866, and May 6, 1871, 233. act of March 6, 1863, 234, INDEX. 493 STATUTORY ENACTMENTS (Continued). Acts of November 13, 1863, August 8, 1870, August 13, 1870 and May 6, 1871, 235. constitution of 1875 — errors, 236. Revised Statutes of 1879 and 1895— identity, 237. married women 's acknowledgments and certificates of same, 325- 348b. act of February 3, 1841 — requirements and form, 325. idem— annotated, 326. act of February 5, 1841 — validate want of authority in cer- tain officers, 327. act of April 29, 1846 — acknowledgment of schedule of wife's property, 528. act of April 30, 1846 — requirements and form, 329. idem — annotated, 330. how taken without the state, 331. law applies to what property, 332. repeals other laws, 333. act of May 8, 1846 — commissioners of deeds, 334. act of May 13, 1846 — notaries authorized, 335. act of May 12, 1846 — form and requirements not affected, 336. act of March 16, 1848 — form and requirements not affected, 337. act of December 18. 1849 — form and requirements not af- fected, 338. act of February 9, 1856— validates, 339. act of February 9, 1860— validates, 340. act of August 13, 1870— validates, 341. act of April 27, 1874— validates, 342. act of May 25, 1876 — form and requirements not affected, 343. act of July 28, 1876— validates, 344. Revised Statutes of 1879 and 1895— requirements, 345. husband must join wife in her conveyance, 346. conveyance of homestead must be acknowledged, 347. form of certificate of wife's acknowledgincnt, 348. acknowledgments without the state. when authorized, 536-543. by whom authorized, 718-767. authority of officers generally, with annotations, 596-717. prior to 1837, 6-21. officers authorized to act witliout the state and within the United States, 718-755. officers authorized to act without the United States, 756-767. notaries public, 775-824a. 494 INDEX. STATUTORY ENACTMENTS (Continued), .insticos of the peace, 825-851. judges of the county court, 852-894. district judges, 895-915. judges of supreme court and court of appeals, 916-931. federal judges, 932-936. county clerks, 937-980. district clerks, 981-991. construction of. construction of statutes, 107. statutes not incorporated in Revised Statutes repealed, 108. validating statutes not repealed, 109. statutes construed as continuation, 110. curing defective acknowledgments and certificates, 1016-1068. how made and taken under the various laws, 68-106. under what law should be taken, 68. prior to December 20, 1836, 69. act of December 20, 1836, 70-82. act of January 19, 1839, required certificate, 83. act of February 5, 1840 — what certificate required, 84. acknowledgment before two justices of the peace, 85. repealed when, 86. act of February 5, 1841, 87, 88. validates want of authority, 87. acknowledgment and proof certified, 88. act of May 8, 1846 — commissioners of deeds, 89, 90. act of May 12, 1846, 91-94. acknowledgment taken how, 91, 92. if grantor or witness unknown, proofs made, 93. substantial compliance only required, 94. acts of April 6, 1861, and January 14, 1862 — seals of railway company sufficient authentication, 95. act of March 6, 1863— handwriting, 96. act of November 13, 1866— seal, 97. constitution of 1875 — errors, 98. Revised Statutes of 1879 and 1895, 99-104. single acknowledgments how made, 99. identity, 100. certificate, 101. form of certificate, 102. of married women — how taken, 103. form of certificate, 104. proof of handwriting, 455-470. act of December 20, 1836 — handwriting of whom, 455, 456. admissible in evidence but not of record, 457. act of January 19, 1839. 458. act of January 18, 1840 — statute of frauds, 459. INDEX. 495 STATUTORY EXACTMEXTS (Continued), act of February 5, 1840, 460. act of February 5, 1841, 461. act of May 12, 1846, 462. sufficient proof, 463. act of February 9, 1860, 464. act of March 6, 1863, 465. sufficient proof under this act, 466. Eevised Statutes of 1879 and 1895, 467. handwriting of grantor and one subscribing witness proved, 467. facts must be proven, 468. signature by mark — proof how made, 469. proof made by whom, 470. proof by witnesses. decree of April 18, 1834, 409. act of December 20, 1836, 410. chief justices authorized to take proof, 410. clerk authorized to record on proof by one witness, 411. proof by two witnesses or handwriting of one, 412. when certificate required, 413. act of January 19, 1839 — required certificate, 414. act of January 18, 1840 — statute of frauds, 415. act of February '5, 1840 — two witnesses — certificate, 416. act of February 5, 1841 — validates, 417. certificate and proof, 418. act of May 8, 1846 — commissioners of deeds, 419. act of May 12, 1846 — proof and acknowledgment, how made, 420. handwriting proved, 421. grantor unknown, 422. certificate attested, 423. presumption where no certificate of proof of identity, 424. no form prescribed, 425. act of February 9, 1860 — validates, 426. acts of 1861, 1862, 1866 and 1871, 427. act of 1863 — where grantor makes his mark, 428. act of August 13, 1870— validates, 429. act of May 19, 1871 — interest not disqualifying witness, 430. act of April 27, 1874 — validates, 431. Eevised Statutes 1879 and 1895 — proof by subscribing wit- nesses, 432. grantor known or proven, 433. prior to Eevised Statutes 1879, 434. form of certificate, 435. proof of handwriting, 436. 496 INDEX. STATUTORY ENACTMENTS (Continued), facts to be proven, 437. where instrument signed by mark, 438. number of witnesses, 439. seals. act of December 20, 1836 — seal of county court, 503. act of November 16, 1837 — notaries shall use seal, 504. act of February 5, 1840 — use of seal required, 505. act of February 3, 1841 — use of seal required, 506. act of February 5, 1841 — use of seal required, 507. act of January 10, 1845 — notarial seal, 508. act of April 29, 1846 — ^use of seal required, 509. act of April 30, 1846^ — judges and notaries to attach seals, 510. act of May 8, 1846 — commissioners of deeds to use seals, 511. act of May 11, 1846^ — seal of district court, 512. act of' May 13, 1846 — notarial seals, 513. act of May 12, 1846 — seals of county court, 514. act of May 13, 1846 — seals of county court, 515. act of March 16, 1848 — seals of county court, 516. act of November 24, 1851 — validates seal used by Galveston county court, 517. acts of April 6, 1861, and January 14, 1862 — use of seals re- quired, 518. act of December 31, 1861 — seals of commissioners of deeds, 519. all subsequent acts required the use of seals, 520. act of June 16, 1876 — seal of county court, 521. act of June 24, 1876 — seals of notaries, 522. act of August 18, 1876 — seals of county court, 523. act of April 18, 1879— validated certain notarial seals, 524. act of March 18, 1881 — validated certain notarial seals, 525. act of April 1, 1881 — notarial seals, 526. act of April 5, 1889 — validates certain notarial seals, 527. for necessity of seals prior to December 20, 1836, see ante, 3 (d). stamps. stamp laws of Spain, Mexico and Texas, 1079-1087. stamp laws prior to decree of 1823, 1079. decree of October 6, 1823 — seals or stamps and their value and use, 1080. order of June 22, 1824 — form of stamps, 1081. decree of October 2, 1824 — form of stamps, 1082. decree of March 24, 1825 — new settlers exempt, 1083. instructions of May 31, 1827 — record-book to be stamped, 1084. INDEX. 497 STATUTOEY ENACTMENTS (Continued). instructions of September 4, 1827 — record-book to be stamped, 1085. decree of February 9, 1828 — new settlers exempt, 1086. ordinance of November 13, 1835 — use of stamps abol- ished, 1087. stamp laws of United States, 1088-1093. act of 1864 and 1866, 1088. act of June 13, 18981 — stamps — how attached and can- celed — efPect, 1089. provision that deeds are not admissible in evidence or of record unless stamped, 1090. kinds of stamps, 1091. exemptions, 1092. schedule A — stamp laws, 1093. STATUTORY CONSTRUCTION, 107-110. STATUTE OF FRAUDS required conveyances of lands, etc., to be in writing, 241. SUBSCRIBING WITNESSES. See Witnesses. SUBSTANTIAL COMPLIANCE WITH STATUTE ONLY RE- QUIRED, 218, 287. SUNDAY, ACKNOWLEDGMENT TAKEN ON, VALID, 122, 128. SUPREME COURT PROVIDED FOR, 8, 10, 14. authorized to take acknowledgments, 916-931. SURPLUSAGE, 167. unnecessary words generally, 167. unnecessary words, 168. uncanceled words in printed certificate, 169. name out of place, 170. TELEPHONE, ACKNOWLEDGMENTS THROUGH, 106. TERMS OF AUTHENTIC INSTRUMENTS, 3 (e). TESTTMONIOS, 2, 23, 32-34, 46, 198-200. may be made by subsequent officer having custody of protocol, 34. certificate by translator sufficient when, 41. TIME OF ACKNOWLEDGMENTS AND PROOF. may be acknowledged at any time after execution, 116. incomplete deed with authority to complete, 117. acknowledgment relates back to execution of deed when, 119. wife's acknowledgment relates back when, 120. husband and wife may acknowledge deeds at different times, 121. on Sunday or legal holiday, 122, 128. acknowledgment invalid at time made, 123. time of making certificate, 126, 127. husband and wife may acknowledge different instruments, 244. husband and wife's may be taken at different times, 270. TITLES, recorded when, 32. 32 498 INDEX. TRUSTEE may prove deed to himself, when, 354. VALIDATION OF ACKNOWLEDGMENTS, 992-1068. amended by officer when, 992-994. cured by grantors, 995-997. cured by action, 998-1005. by statute, 1006-1013. is defective acknowledgment and certificate only validated by acts of 1841 and 1860, or only want of authority in the officer, 1032-1037, 1000, 1001. change of law will not, when, 1014. validity of statutes, 1015. constitutionality of statutes, 1006, 1003, 1011, 1012. officer interested party, 1007, 1001. certificate only can be remedied, when, 1000-1002. want of acknowledgment cured in case of single person, 1002. defective on account of interest of officer cannot be, 1001, 1031, 1037. action barred by limitation when, 1004. proved by parol or circumstantial evidence, 1005. statutes and annotations, 1016-1068. VARIANCE, GENERALLY, 149. parol evidence to show identity, 150. immaterial when, 151, 152. VENUE, AS SHOWN BY CERTIFICATE, ETC., 130. of authentic instruments, 3 (e). WHO MAY MAKE ACKNOWLEDGMENTS. generally, 544. officer's deputy, 545. law elsewhere, 546. agent or attorney, 547. attorney of married woman, 548. firm as attorney in fact, 549. irregular certificate of attorney's acknowledgment, 550. partners, 551. either party may acknowledge in firm name, 552. corporations, 553. railway corporations — no acknowledgment required when, 558. acknowledgment required after 1871, 559. married wom^en — husband must join, 560. held that it must be acknowledged by husband also, 561. husband's acknowledgment not necessary, 562. acknowledgment need not be at same time, 563. abandoned by husband, 564. husband insane, 565. as agent, 566. INDEX. 499 WHO MAY MAKE ACKNOWiLEDGMENTS (Continued) . wife must authorize husband to act for her, 567. married women can convey by attorney, 568. wife's executory contracts, 569, 570. special commissioner, 571. judge of first instance, 572. WHO MAY TAKE ACKNOWLEDGMENTS AND PEOOF. generally, 573-595. interest disqualifies, 573. stockholder of corporation, 574. officer of corporation, 575. commission as trustee, 576. preferred creditor, 577. deputy of interested party, 578. agent or attorney, '579, 580. by partner of grantee, 581. relationship, 582. husband of grantee, 583. attesting witnesses, 584. de facto officers, 585. ex-officio officers, 586. deputies, 587-592. presumptions as to authority, 593. judicial knowledge of authority of officers, 594. extraterritorial authority, 595. statutes and annotations generally, 596-717. within the state, 768-991. notaries public, 768-824a. justices of the peace, 825-851. county judges, etc., 852-894. district judges, 895-915. supreme judges, 916-931. federal judges, 932-936. chief and associate justices of the county court, 852-894. county commissioners, 852, 894. county clerks, their deputies and pro tem. clerks, 937-980. district clerks and deputies, 981-991. without the state and within the United States, 718-755. without the United States, 756-767. WIFE ABANDONED BY HUSBAND OR HE INSANE, 564, 565. may not authorize husband to act for her, 567. may convey by attorney, 568. executory contracts, 569. WIFK'S ACKNOWLEDGMENT. Sec Acknowledgments of Mar- ried Women. WITHOUT THE STATIv. See Acknowledgment and Proof Without the State. 500 INDEX. WHO MAY TAKE THE PROOF OF DEEDS, ETC., 376, 377. WITNESSES. See Ptoof by Witnesses. necessity of prior to 1836, 350-353. witnessed by notaries, 352. under colonization laws, 353. necessity of subsequent to 1836, 354-356. married woman's deed cannot be proved by, 355, 275. assisting, 350, 3 (f), 353. attesting witnesses may take acknowledgments, 584, 354. instrumental, 3 (f), 219, 353. subscribing, required when, 43-48, 354. judge as, 360. officer not competent as witness without accounting for wit- ness' absence, 362. must be produced if possible, 363. number of witnesses required, 384, 439, 409-432, 455-467. sole witness sufficient when, 364. signs by making his mark, 365. signed at request of grantor, 367-373. means of knowledge stated, 369-373. must see grantor sign, or hear him acknowledge and request witness to sign, 367-373. saw firm name signed, 373. where there are no subscribing witnesses, 379-384. where they are incompetent, 390. who may be, 385-391. interest disqualifies when, 387-389. must be known to officer, 392-394. volunteer witness, 391, 378, 379. need not swear he was subscribing witness, 398. grantor's selection, 391. certificate of proof, 393-408. must show that witness was known, 393, 394. that witness was sworn, 395. that witness saw execution, or heard acknowledgment and was requested to sign, 396, 397. where his name appears it is not necessary for witness to certify that he was a subscribing witness, 398. alternative certificate defective, 399. irregular certificate, 400, 405. official character, 401. seal must be attached, 402. signature, 403. purposes and considerations, 404. other requirements, 406. forms of certificate, 435, 453, 454, 407, 409-435, 455-470. substantial compliance with statute only required, 408. 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