Monroe v. Arledge

23 Tex. 478 | Tex. | 1859

Roberts, J.

The main questions in this case, arise under the following article of the Registry Act of 1846 : “ That the acknowledgment of an instrument of writing, for the purpose of being recorded, shall be by the grantor, or person who executed the same, appearing before some officer authorised to take such acknowledgment, and stating that he had executed the same, for the consideration and purposes therein stated; and the officer taking such acknowledgment, shall make a certificate thereof, and sign and seal the same with his seal of office.” (Hart. Dig., Art. 2790.)

In the authentication of one of the deeds offered in evidence, the word “consideration,” contained in this article, was omitted, and on that account the deed was excluded from the jury, as not having been duly authenticated for record. A literal compliance with the statute is not required, in authenticating instruments for record; provided there has been a substantial compliance. There must always be such a compliance as meets the object of the requirement in the statute. The object sought to be attained mainly, in the authentication of an instrument for record, is the ascertainment of the fact, that the grantor did execute it. When it is authenticated by the proof of a witness, who saw it executed, it is only necessary for him to state on oath, that he saw the grantor “ subscribe the same,” without stating anything about the consideration. (Hart. Dig., Art. 2791.) It is not necessary to the validity of a deed, that the real consideration upon which it is made, should be “ therein stated and indeed such is very often not the case. Nor would an acknowledgment by him for record, in strict compliance with the statute, preclude him from showing, that the consideration and purposes of the deed, were other and different from those therein stated. The material matter, then, embraced in the acknowledgment, is the execution of the deed. In this case, the grantor is shown, by the certificate, to have acknowledged that he executed the deed for the purposes therein stated. The deed itself must import a consideration, if none be expressed; and if one be expressed, it is not material that the one expressed be the one upon which it was actually made. This, then, is a formal part of the certificate, which, for the sake of regularity, should be inserted, but its omission does not invalidate the certificate. We are of opinion, that the court erred in excluding the deed on account of this omission.

Under the same article of the statute, a deed was objected to, as inadmissible in evidence, because the notary public, in making his certificate, said, “ witness my hand and seal,” instead of, official seal. The court overruled this objection, and, as we think, correctly. The manner in which the objection is made, shows, that the notarial seal was impressed upon the instrument; and that it is as plainly indicated to be his “seal of office,” by the expression, Ms seal, as by that of his official seat. The whole instrument purports to be a notarial, and not a private act; and there could be no pretence, that the seal used was a private seal.

The deed first referred to, was acknowledged before a commissioner of deeds for the state of Texas, appointed for, and resident in the state of California; and it was contended on exceptions, that such commissioner had no authority to take such acknowledgment, because the act creating such officer, and granting this power to him, was passed a few days before the act to provide for the registry of deeds. (Hart. Dig., Art. 119, 843.) To which it may be answered, that both acts were passed at the same session; and also, that one of the acts is special, and the other is general. Under these circumstances, it would require a very plain inconsistency, 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. Judgment reversed and cause remanded.

Reversed and remanded.