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 .
Tenn. 480, 15 Lea, 683; Wilson v. Simpson, 80 Tex. 279. 16 S. W. 40: Welles v. Cole, 6 Gratt. (Va.) 645; Bensimer v. Fell, 35 W. Va. 15, 29 Am. St. Rep. 774. 12 S. E. 1078.
23. Elliott v. Piersol's Lessee, 1 Pet. (U. S.) 328; Cox v. Hol-comb, 87 Ala. 589, 13 Am. St. Rep. 79; Ennor v. Thompson, 46 111. 214; Barnett v. Shackleford, 6 J. J. Marsh (Ky.) 532, 22 Am. Dec. 100; Willis v. Gattman, 53 Miss. 721; Salt V. Anderson, 71 Neb. 826, 99 N. W. 678; Wynne v. Small, 102 N. C. 133, 8 S. E. 912; Harty v. Ladd, 3 Ore. 353; Looney v. Adamson, 48 Tex. 619; Harrisonburg First Nat. Bank v. Paul, 75 Va. 594, 40 Am. Rep. 740.
24. See Moore v. Hopkins, 83 Cal. 270, 17 Am. St. Rep. 248: Tuten v. Gazan, 18 Fla. 751: Carver v. Carver, 97 Ind. 497; Peoples Gas Co. v. Fletcher, 81 Kan. 76, 41 L. R. A. N. S. 1161, 105 Pac. 34; Romer v. Conter, 53 Minn. 171, 54 N. W. 1052; Pierce v. Georger, 103 Mo. 540, 15 S. W. 848; Mckay v. Lasher, 121 N. Y. 477, 24 N. E. 711.
Quired to certify,25 but the fact that there was no acknowledgment whatever may be shown in contradiction of the certificate.26 As between the parties, moreover, evidence is always admissible to show that the acknowledgment was obtained by fraud or imposition, in which the grantee participated, or of which he knew,27 but this cannot be shown as against a person ignorant of the fraud,28
25. Grider v. American Freehold Land Mortg. Co., 99 Ala. 281, 42 Am. St. Rep. 58; Petty v. Grisard, 45 Ark. 117; Ford v. Ford, 27 App. D. C. 401, 6 L. R. A. (N. S.) 442; Graham v. Anderson, 42 111. 515, 92 Am. Dec. 89; Johnston v. Wallace, 53 Miss. 333, 24 Am. Rep. 699; Pereau v. Frederick, 17 Neb. 117, 22 N. 235; Mutual Life Ins. Co. v. Corey, 135 N. Y. 326, 31 N. E. 1095; Moore v. Fuller, 6 Ore. 275, 25 Am. Rep. 524; Heilman v. Kroh, 155 Pa. St. 1, 25 Atl. 751; Ronner v. Welcker, 99 Tenn. 623: 42 S. W. 439; Wheelock v. Cavitt, 91 Tex. 679, 66 Am. St. Rep. 920.
So it has been held that the certificate cannot be impeached by a showing that the acknowledgment was taken by telephone. Banning v. Banning, 80 Cal. 271, 13 Am. St. Rep. 156.
26. Grider v. American Freehold Land Mortg. Co., 99 Ala. 281, 42 Am. St. Rep. 58; Meyer v. Gossett, 38 Ark. 377; Le Mesnager v. Hamilton, 101 Cal. 533, 40 Am. St. Rep. 81; Smith v. Ward, 2 Root (Conn.) 374, 1 Am. Dec. 80; Lewis v. Mcgrath, 191 111. 401, N. E. 61 N. E. 135; Morris v. Sargent, 18 Iowa, 90; O'neil v. Webster, 150 Mass. 572, 23 N. E. 235; Spivey v. Rose, 120 N. C. 163, 26 S. E. 701;
By her before the officer after a private examination by him to ascertain that she executes it voluntarily and without compulsion from her husband, and the certificate of the officer must state that he so examined her, and that she acknowledged the instrument to be her free and voluntary act. In some of the other states, while a private examination is not necessary, the certificate must contain such a statement as to the free and voluntary nature of her act.32 The officer is also occasionally required by the statute to ascertain, before taking the acknowledgment, that she understands the nature of the instrument.33 The number of states in which an acknowledgment is thus necessary to the validity of a conveyance by a married woman is, however, steadily diminishing, the tendency of recent legislation being to enable ner to dispose of her property as if a feme sole.
Williams v. Carskadden, 36 Ohio St. 664; Michener v. Cavender, 38 Pa. St. 334, 80 Am. Dec. 486; Wheelock v. Cavitt, 91 Tex. 679, 66 Am. St. Rep. 920.
27. Grider v. American Freehold Land Mortg. Co., 99 Ala. 281, 42 Am. St. Rep. 58; Chiving-ton v. Colorado Springs Co., 9 Colo. 597; Eyster v Hatheway, 50 111. 521, 99 Am. Dec. 537; Aultman-taylor Co. v. Frasure, 95 Ky. 429, 26 S. W. 5; Central Bank of Frederick v. Copeland, 18 Md. 305, 81 Am. Dec. 597. O'neil v. Webster, 150 Mass. 572, 23 N. E. 275; Allen v. Lenoir, 53 Miss. 321; Williamson v. Car skadden, 36 Ohio St. 664; Cover v. Manaway, 115 Pa. St. 338, 2 Am. St. Rep. 552; Pierce v. Fort, 60 Tex. 464.
28. De Arnaz v. Escandon, 59 Cal. 486; Ladew v. Paine, 82 111. 221; Johnston v. Wallace, 53 Miss. 331, 24 Am. Rep. 699; Moore v. Fuller, 6 Ore. 272, 25 Am. Rep. 524; Londen v. Blythe, 27 Pa. St. 22, 67 Am. Dec. 142: Pennsylvania Trust Co., v Kline. 192 Pa. St. 1, 43 Atl. 401; Campbell v. Harris Lithia Springs Co., 74 S. C. 282, 114 Am. St. Rep. 1001; Cason v. Cason, 116 Tenn. 173, 93 S. W. 89; Pierce v. Fort, 60 Tex. 464; at least if a purchaser for value.29
It has been quite frequently decided that, as against a purchaser for value and without notice, if the certificate is regular on its face, it cannot be shown that there was no valid acknowledgment by reason of lack of authority in the officer, as when he was beneficially interested, or that he undertook to act outside of his jurisdiction. The tendency of the later authorities is to regard the instrument as duly acknowledged, for the purpose of making its record effective as constructive notice, in favor of an innocent purchaser, in spite of the existence of such a defect, not apparent on the record or the face of the certificate.30 In a considerable number of decisions, however, any such qualification upon the right to question the validity of the acknowledgment is ignored.31
- By married woman. In some states, a conveyance in which a married woman joins, whether for the purpose of conveying her own property, or in order to release her rights in her husband's property, must, in order to be effective as against her, be acknowledged or "delivery" of which was, in early times, upon parts of the continent of Europe, regarded as in effect a symbolical transfer of the land itself, analogous to livery of seisin. And not only was the notion of physical delivery of the instrument applied in connection with the transfer of land, hut it was applied also in connection with written evidences of contract, the physical transfer of the document being necessary to make it legally operative, and being effective to that end.38 The view that a transfer of land could be effected by means of the manual transfer of a writing was originally adopted in England to but a limited extent, but in so far as the courts recognized the effectiveness of a written instrument for the purpose of transfer or of contract, they adopted the continental conception of a physical change of possession thereof as a prerequisite to its legal operation, and accordingly the necessity of delivery became established in connection with various classes of written instruments as they came to be recognized by the courts, particularly deeds of grant, contracts under seal, the only class of contract recognized in the earlier history of our law, and promissory notes.39 Wliile, as before stated, the necessity of delivery in connection with the instruments last named, and others of an analogous character, is still fully recognized, the crude conception of a manual transfer of the instrument as the only means of making it legally effective, which gave birth to the expression "delivery" as used in this connection, has been superseded by the more enlightened view that whether an instrument has been delivered is a question of intention merely, there being a sufficient delivery if an intention appears that it shall be legally operative,40 however this intention may be regarded as issuing. The mutual action of two or more persons is required in the case of what are known as simple contracts, while all other instruments, by the theory of the English common law,35 become legally operative by the action of one party only. Of such other instruments, some are said to take effect by delivery, this term serving to designate the final act by which one who has previously signed the instrument, or both signed and sealed it, signifies his intention that the instrument shall have a legal operation, and so realizes his intention in fact. Conveyances of land, including leases, contracts under seal, mortgages of land and of chattels, deeds of gift, insurance policies, and promissory notes, take effect by delivery. Of the instruments which, while becoming operative by the action of one person alone, are not said to take effect by delivery, the most important class, perhaps the only class, consists of testamentary instruments, wills. But though, in the case of a will, there is no requirement of delivery under that name, nevertheless an instrument ordinarily becomes operative as a will only by virtue of a final expression of intention by the maker to that effect, such expression usually taking the form, by force of statute, of a declaration in the presence of witnesses of an intention that the instrument shall be legally operative, or of a request addressed to witnesses to attest the signature thereto, provided they accede to the request.36 Such final expression of intention in the case of a will is the equivalent of the final expression of intention by means of delivery in the case of an instrn-ment inter vivos.
29. Lewars v. Weaver, 121 Pa. St. 268, 15 Atl. 514; Edwards v. Boyd, 9 Lea (Term.) 204.
30. Ogden Bldg., etc., Ass'n v. Mensch, 196 111. 554, 89 Am. St. Rep. 330, 63 N. E. 1049; Bank of Benson v. Hove, 45 Minn. 40, 47 N. W. 449; Stevens v. Hampton, 46 Mo. 404; Morrow v. Cole, 58 N. J. Eq. 203, 42 Atl. 673; Heil-brun v. Hammond, 13 Hun 474; Blanton v. Bostic, 126 N. C. 418, 35 S. E. 1035; Ardmore National Bank v. Briggs, 20 Okla. 427, 23 L. R. A. (N. S.) 1074, 94 Pac. 533; Peterson v. Lowry, 48 Tex. 408; Corey v. Moore, 86 Va. 721, 11 S. E. 114; Boswell v. First Nat. Bank of Laramie, 16 Wyo. 161,
92 Pac. 624, 93 Pac. 661; National Bank of Fredericksburg, 1 Hughes (U. S.) .37 per Waite, C. J.
31. See Edinburgh American Land Mortg. Co. v. Peoples, 102 Ala. 241, 14 So. 656; Leonhard v. Flood, 68 Ark. 162, 56 S. W. 781; Kothe v. Krag-reynolds Co., 20 Ind. App. 293, 50 N. E. 594; Wilson v. Traer, 20 Iowa, 231; Farmers, etc., Bank v. Stockdale, 121 Iowa, 748, 96 N. W. 732; Smith v. Clark, 100 Iowa, 605, 69 N. W. 1011; Groesbeck v. Seeley, 13 Mich. 329; Davis v. Beazley, 75 Va. 491; Hunton v. Wood, 101 Va. 54, 43 S. E. 186.
- Proof in place of acknowledgment. In many states the statute authorizes, as an alternative to acknowledgment, and as preliminary to record, proof of the authenticity of the instrument, ordinarily by the evidence of the attesting witnesses. In some states such proof is authorized only when the grantor refuses to make acknowledgment, or dies before making it. In some it is authorized when the acknowledgment or certificate thereof is defective.34