Schum v. Burchard

211 A.D. 126 | N.Y. App. Div. | 1924

The following is the opinion delivered at Trial Term:

Cropsey, J.:

The action is to remove a cloud on title. Both sides concede the decision turns upon the sufficiency of the acknowledgment to the deed under which defendant claims. Both sides claim title through a common grantor. The plaintiffs and their ancestor failed to record their deed, and the deed to defendant, though made many years subsequent, was recorded. If it was entitled to be recorded concededly the defendant should have judgment. The fact that the deed has been recorded does not prove it was properly acknowledged. (Armstrong v. Combs, 15 App. Div. 246, 250; Gross v. Rowley, 147 id. 529, 530.) So the sufficiency of the acknowledgment must be determined. It was taken in New Jersey and is in this form:

“ State op New Jersey, ) “ County op Monmouth j ss‘

“ Be it remembered that on this tenth day of November in° the year of our Lord one thousand nine hundred and eight, before me, a commissioner of deeds in and for said County and State, personally appeared Eliza J. Schooley, widow, who, I am satisfied is the grantor mentioned in the within indenture, and to whom I first made known the contents thereof, and thereupon she acknowledged that she signed, sealed and delivered the same as her voluntary act and deed, for the uses and purposes therein expressed.

“ JOSEPH G. COLEMAN,

“ Commissioner of Deeds ”

Our statute which specifies the requisites of acknowledgments is section 303 of Real Property Law. It reads: “ An acknowledgment must not be taken by any officer unless he knows or has satisfactory evidence, that the person making it is the person described in and who executed such instrument.” Section 306 of the same law provides that the officer taking the acknowledgment must make a certificate, signed by himself, “ stating all the matters required to be done, known or proved on the taking of such acknowledgment or proof; together with the name and substance of the testimony of each witness examined before him, and if a subscribing witness, his place of residence.” The attack upon the form, used is based upon, the claim that it does not certify that the person acknowledging the execution of the paper was the “ person described ” therein. It is necessary that the certificate should show, as section 303 provides, that the person making the acknowledgment is the “ person described in and who executed such instrument.” (Gross v. Rowley, supra, 531.) The question is whether this certificate does so certify. I think it does. The certification is that the person acknowledging the paper “ is the grantor mentioned in the within indenture.” The indenture is in fact a deed, and the “ grantor ” in a deed is the person described in and who makes the conveyance. “ The grantor mentioned in the within indenture ”, is the equivalent of “ the person described in and who executed such instrument.” It is not necessary that the words of the statute be contained in the certificate. A substantial compliance with the statute is sufficient. (Smith v. Boyd, 101 N. Y. 472, 476, 477; Canandarqua Academy v. McKechnie, 19 Hun, 62, 68.) It is not necessary that the officer “ knows’” the person whose acknowledgment he takes. The statute says it is sufficient if the officer “ has satisfactory evidence ” that the person is the one described in and who executed the paper. What shall be “ satisfactory evidence ” is not specified, but must be such as to satisfy the conscience of the officer. (Wood v. Bach, 54 Barb. 134, 143, 144.) In the cases relied upon by plaintiffs (Fryer v. Rockefeller, 63 N. Y. 268; Gross v. Rowley, supra) the certificates did not state that the officer either knew or had satisfactory evidence that the person was the one described in the paper. Judgment for defendant, with costs.