This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
That a stockholder Is not disqualified to take the acknowledgment of a mortgage to the corporation, see Read v. Toledo Loan Co., 68 Ohio St. 280, 62 he is a corporate officer and not a stockholder.13 One is not disqualified merely because he is the attorney,14 or the agent or employee, of an interested party.15 Nor is one disqualified to take an acknowledgment by the fact that he is related to an interested party,16 and even the husband of the grantee, it has been decided, may take the grantor's acknowledgment.17
- Duties of officer. The officer, in taking the acknowledgment, must comply with all the requirements of the statute. The statute invariably requires him to satisfy himself as to the identity of the person making the acknowledgment, and occasionally provides the manner in which he shall so satisfy himself, as by sworn witnesses. In the absence of any prescribed method of satisfying himself of the grantor's identity, the sufficiency of the acknowledgment cannot be questioned because the officer acts merely on an introduction by a
L. R. A. 338, 56 Am. St. Rep. 663, 67 N. E. 29. And this though the stockholder was also an officer of the corporation Keene Guaranty Sav. Bank v. Lawrence, 32 Wash. 572; Cooper v. Hamilton Perpetual Building & Loan Ass'n, 97 Tenn. 285, 33 L. R. A. 338, 56 Am. St. Rep. 795, 37 S. W. 12.
13. Woodland Bank v. Ober-haus, 125 Cal. 320, 57 Pac. 1070; Florida Sav. Bank v. Rivers, 36 Fla. 577, 18 So. 850; Horbach v. Tyrrell, 48 Neb. 514, 37 L. R. A. 434, 67 N. W. 485; Ogden Bldg & Loan Ass'n v. Mensch, 196 111. 554, 89 Am. St. Rep. 330, 63 N. E. 1049; Bardsley v. German American Bank, 113 Iowa, 216, 84 N. W. 1041; Keene Guaranty Sav. Bank v. Lawrence, 32 Wash. 572, 73 Pac. 680.
14. Brown v. Parker, 97 Fed 446, 38 C. C. A. 261; Bierer v.
Fretz, 32 Kan. 329, 4 Pac. 284; Helena First Nat. Bank v. Roberts, 9 Mont. 323, 23 Pac. 718; Havemeyer v. Dahn, 48 Neb. 536, 33 L. R. A. 332, 58 Am. St. Rep. 706, 67 N. W. 489.
15. Castetter v. Stewart, 70 Neb. 815, 98 N. W. 34; Wachovia Nat. Bank v. Ireland, 122 N. C. 571, 29 S. E. 835; Penn v. Garvin, 56 Ark. 511, 20 S. W. 410.
16. Helena First Nat. Bank v. Roberts, 9 Mont. 323, 23 Pac. 718; Lynch v. Livingston, 6 N. Y. 422; Mcallister v. Purcell, 124 N. C. 262, 32 S. E. 715.
17. Remington Paper Co. v. O'dougherty, 81 N. Y. 474; Nixon v. Post, 13 Wash. 181, 43 Pac. 23; Kimball v. Johnson, 14 Wis. 674 (mortgage). But the contrary has also been decided, in cases In which the grantor whose acknowledgment was taken was a married woman. Jones v.
Third person,18 however this may affect the question of his liability for a false certificate in this regard.19 If the person making the acknowledgment speaks only a foreign language, the officer should employ an interpreter.20
- Certificate. The stakite almost invariably requires the officer who takes the acknowledgment to write upon, or attach to, the instrument, a certificate of acknowledgment, that is, a statement, under his hand, and ordinarily under his seal, showing that the acknowledgment was made. The certificate must, it is generally recognized, show a compliance with the statutory requirements, and if the statute contains specific provisions as to what the certificate must show, an omission to comply therewith renders it invalid. It must, in most jurisdictions, show the official character of the officer, that the acknowledgment was in fact made before him by the party who executed the instrument, and that such person was personally known to him, or that he was satisfied or informed as to the identity of such person. But the certificate is to be construed with reference to the instrument to which it is appended, and consequently omissions or errors therein, not pertaining to the fact of acknowledgment itself, may usually be corrected by reference to the language of the conveyance.21 And, generally speaking, a substantial
Porter, 59 Miss. 628; Silcock v. Baker. 25 Tex. Civ. App. 508, 61 S. W. 939.
18. Nippel v. Hammond, 4 Col. 211; Wood v. Bach, 54 Barb. (N. Y.) 134. See Lindley v. Lindley, 92 Tex. 446, 49 S. W. 573.
19. See Barnard v. Schuler, 100 Minn. 289, 110 N. W. 966; Hat-ton v. Holmes, 97 Cal. 208, 31 Pac. 1131.
20. Norton v. Meader, 4 Sawy. 603; De Arnaz v. Escandon, 59
Cal. 486: Waltee v. Weaver, 57 Tex. 569.
But in Michigan an acknowledgment through an interpreter has been held to be insufficient. Dewey v. Campau, 4 Mich. 565 Harrison v. Oakman, 56 Mich. 390, 23 N. W. 164.
21. Carpenter v. Dexter, 8 Wall. (U. S.) 513; Frederick v. Wilcox, 119 Ala. 355, 72 Am. St. Rep. 925, 24 So. 582: Summer v. Mitchell, 29 Fla. 179, 14 L. R. A. 815, 30 Am. St. Rep. 106, 10 So.
Compliance with the statutory requirement is sufficient, an adherence to the actual language of the statute being regarded as unnecessary.22 Oral evidence, however, is not admissible in order to prove an essential fact which was by mistake omitted from the certificate.23 In some states, by statute, the certificate is merely prima facie evidence of the facts which it recites, and its falsity may be shown by extraneous evidence.24 In the absence of such a statutory provision, a certificate of acknowledgment is usually regarded as conclusive in regard to the matters as to which the officer is re562; Milner v. Nelson, 86 Iowa. 452, 53 N. W. 405; Kelly v. Rosenstock, 45 Md. 389; Bruns-wick-balke-collender Co. v. Brackett, 37 Minn. 58. 33 N. W. 214; Owen v. Baker, 101 Mo. 407. 20 Am. St. Rep. 618; Claflin v. Smith, 15 Abb. N. Cas. (N. Y.) 241; Fuhrman v. London. 13 Serg & R. (Pa.) 386, 15 Am. Dec. 608.
22. Kelly v. Calhoun, 95 U. S. 710, 24 L. Ed. 544; Frederick v. Wilcox, 119 Ala. 355, 72 Am. St. Rep. 925; Jacoway v. Gault, 20 Ark. 190; Goode v. Smith, 8 Cal. 581; Wilson v. Russell. 4 Dak. 376, 31 N. W. 645; De-launey v. Burnett, 9 111. 454; Martin v. Davidson, 3 Bush (Ky.) 572; Bennett v. Knowles, 66 Minn. 4, 68 N. W. Ill; Gross v. Watts, 206 Mo. 373, 121 Am. St. Rep. 662, 104 S. W. 30; Torrey v. Thayer, 37 N. J. L. 339; Ab-rams v. Rhoner, 44 Hun 511; Etheridge v. Ferebee, 31 N. C. 312; Garton v. Hudson-kimberly Pub. Co., 8 Okla. 631; Jamison v. Jamison, 3 Whart. (Pa.) 457, 31 Am. Dec. 536: Timber v. Desparois, 18 S. D. 587, 101 N. W. 879; Hughes v. Powers, 99