Summer v. Mitchell

29 Fla. 179 | Fla. | 1892

Raney, C. J.:

Appellant sued appellee in enjectment, and the result was a judgment in favor of defendant.

The first error assigned is the refusal of the judge to admit in evidence a certified copy of the record of a «deed of the land in controversy, a lot in Ocala, from Hubbard L. Hart and Mary Elizabeth Hart, his wife, to A. Gf. Summer and Henry Smith. The deed purports to have been executed for and in consideration «of six hundred dollars, in Thomas county, State of Georgia, July 9th, 1863. Its conclusion is as follows:

In testimony whereof, we, the said party of the first part, have hereunto set our hands and seals this the •day and year first above written.

Hubbard L. Hart, [seal.]

M. E. Hart. [seal.]

Signed, sealed and delivered in presence:

Jacob Kubitskik,

T. C. Brace well, J. P.

The certificate of the acknowledgment made by the grantors of the execution of this deed is as follows : State or G-eorgia,

Thomas County.

Be it remembered that on this 22nd day' of July, A. D., 1863, personally came before me, the undersigned deputy Clerk of the Circuit Court in and for the county and State aforesaid, Hubbard L. Hart and Mary Elizabeth Hart, who respectively acknowledged each for himself and herself, and the said Mary Elizabeth Hart being absent from her husband, the said Hubbard L. Hart, acknowledged voluntarily, without fear or compulsion of or from her said husband, that they signed, sealed and delivered the foregoing instrument for the purposes therein mentioned. In witness whereof I herewith set my hand and seal of office the day and year above mentioned.

T. C. Bracewell, Deputy Clerk S. & J. C.

The deed thus executed and acknowledged was admitted to record in the office of the Clerk of the Circuit Court of Marion county on the 30th day of July, 1863, by the clerk of that court. His certificate •of the record need not be set out. A copy of this record duly certified March 19th, 1888, by the then clerk, being offered in evidence was objected to by defendant on the general ground that the deed had not been duly proven, acknowledged and recorded as required by law, and the objection having been sus tained, the ruling was excepted to.

The particulars wherein the acknowledgment, or the copy of the record, was objected to as being deficient, are not stated m the bill of exceptions; still whatever objection might have been taken here to the generality of the objection below had been waived by the specifications of the particular grounds of objection in the brief of counsel for appellant, upon whose behalf alone the cause has been argued before us. Carpenter vs. Dexter, 8 Wall., 524.

These grounds'of objection are: 1st. That it does not appear that the parties .making the acknowledgment were known to the officer taking the acknowledgment. 2d. A deputy cannot take an acknowledgment. 3d. It does not appear that the officer acted within his jurisdiction. 4th. The acknowledgment was taken before an officer who had no authority .to take acknowledgment of deeds in this State.

At the time of the execution and acknowledgment of the deed in question, viz: July, 1863, the statute regulating the acknowledgment or proof, made out of the State, of deeds conveying any interest in real estate within the State, for the purpose of being used or of entitling such deeds to be recorded here, was that of February 3rd, 1834, entitled ‘an act concerning the authentication of conveyances,” as amended by act of February 27th, 1340. The first section of the act of 1834, provided that the deed should be acknowledged by the party or parties executing the same, or that the execution thereof by such party or parties should be proved by a subscribing witness thereto, “before the officers hereinafter named, and in the manner and form hereinafter mentioned;” and its second section enacted that- no acknowledgment or proof of any such deed “executed or acknowledged out of the State should be taken by an officer or officers aforesaid, unless the officer taking the same shall know or have satisfactory proof that the person making such acknowledgment is the individual described in and who executed the deed or instrument under seal.” Its third section provides, “in addition to the requisites contained in the preceding sections,” for the privy examination of married women (residing out of the territory) executing such an instrument; and the' fourth section made provisions as to the acknowledg- ■ ments made out of the territory, but within the United States, and was supplanted and expressly repealed by the above mentioned act of 1840. This statute, entitled, “An act in amendment of” the former act, enacted that all such instruments acknowledged out of the territory, but within the United States or its territories, with the intent to be used or recorded here, should be acknowledged or proved before one of the commissioners appointed under the act of January 24th, 1831, and in those cities •or counties wherein no commissioner “is or shall be .appointed under said law, or in case of his sickness, death, or inability to perform the duties of his office where he may have been appointed, ’ ’ that such acknowledgment and proof might be taken before the chief-justice, judge, presiding justice, or president of any court of record of the United States, or of any state or territory thereof having a seal and a clerk or prothonotary; but that no proof of acknowledgment, taken by any such chief-justice, judge, presiding justice or president, should entitle such' instrument to be recorded, unless taken within some place or district to which the jurisdiction of the court to which he belongs should extend; and that the place of taking such acknowledgment should be set forth in the certificate, and also that the court of which he was such officer was a court of record, and that such certificate-of acknowledgment shouldj be accompanied by a certificate of the clerk or prothonotary of the court, under its seal, to the effect that the former officer was duly appointed or authorized as such judge, justice or president. The fifth section of the act of 1834 relates to acknowledgments or proofs taken out of the United. States, but in North or South America, or in Europe;, and the sixth, or remaining section is: That the certificate of such acknowledgment as aforesaid by the officer before whom the same shall be taken shall contain and set forth substantially the matter required to be done or proved to make such acknowldgment effectual by this act.

The above legislation [is to be found in Thompson’s. Digest, pp. 181-2,¡jand McClellan’s Digest, pp. 216-17, the word State being properly substituted for that of territory, when applicable to Florida.

Thus the law as to such acknowledgment or proof stood in 1873, and, we may further observe, that up to this time acknowledgments or proof made in the State-had to be made before the officer authorized by law to-record the instrument, or before some judicial officer,, (act of November 15th, 1828, McClellan’s Digest, sec. 6, p. 215) or before a Notary Public (act of February 8th, 1861, McClellan’s Digest, sec. 3, p. 792).

It is entirely clear that there was in 1863 no iaw in this State authorizing the admission to record of a-deed acknowledged out of the State, and in another State of the United States, before a deputy clerk or the clerk of any court, nor before even a judge of any such court not a court of record and having a seal and. clerk or protlionotary; and unless legislation, subsequent to that in force at the time this record was made,, had legalized the record, there was no error in the ruling of the judge excluding the transcript as evidence-under section 21 of Article XVI of the Constitution,, which section is as follows: “Deeds and mortgages which have been proved for record and recorded according to law, shall be taken as prima facie evidence in the courts of this State without requiring proof of' the execution. A certified copy of the record of any deed or mortgage that has been or shall be duly recorded according to law shall be admitted as prima ■ facie evidence thereof, and of its due execution with like effect as the original duly proved; Provided, It be made to appear that the original is not within the-custody or control of the party offering such copy.”'

There was approved by the Governor on the 24th day of February, 1878, a statute entitled ‘ ‘An act providing for the acknowledgment of deeds and other conveyances,” whose first section, after providing that deeds, executed in this State, of any interest in lands herein, shall be executed in the presence .of two witnesses who shall subscribe their names as such, and that the persons executing such deeds may acknowledge the execution thereof before any Jndge, Clerk of the Circuit Court, Notary Public or Justice of the Peace within the State, enacts that if any such deed or conveyance of land shall be executed in any other State, territory or district of the United States, such deed may be executed according to the laws of such State, territory or district, and the execution thereof may be acknowledged before any judge or clerk of a court of record, Notary Public, .Justice of the Peace or other officer authorized by the laws of such State, territory or district to take the acknowledgment of deeds therein, or before any commissioner appointed by the Governor of this State for such purpose. Its second section provides that if such deed be executed in a foreign country, it may be executed according to the laws of such country, and that any execution thereof may be acknowledged before certain officers designated therein, they being some of those designated in the fifth section of the act of 1834, and others besides. Tire third section is to the effect that if any such deed or other conveyance shall be executed and acknowledged in any other State or country before any officer not having an official seal, he shall have attached thereto a certificate of the clerk, or other proper certifying offi - •cer of a court of record, or certificate of the Secretary of State, Minister Extraordinary, Minister Resident, Charge des affairs, commissioner or consul, as the case, may be, that the person whose name is subscribed to the certificate of acknowledgment was at the date thereof such officer as he is therein represented to be, that he believes the signature of such person subscribed thereto to be genuine, and that the deed is ex--ecutecl and acJcnowledged according to the laws of such State, territory, district or foreign country. The fourth section oí this statute is as follows: Any deed or conveyance heretofore executed and acknowledged in compliance with the provisions of this act shall have the same force and effect, and be as valid as if the same had been executed after the passage of this act. The fifth, or remaining, section providing that future conveyances not recorded within six months after their execution shall be void as against subsequent purchasers, was held void on account of not being within the expression of the title of the act, in Carr vs. Thomas, 18 Fla., 736.

A purpose of this act, as applicable to conveyances made in any other' State of lands located here, was the .-adoption of the laws of that State regulating the acknowledgment of conveyances of any interest in real estate located there. This is made entirely clear by the provision of the third section, which requires that the certificate therein provided for in cases where the officer taking the acknowledgment has no official seal, shall state that the deed “is executed and acknowledged according to the laws of such State, territory, district or foreign country.” This provision implies, beyond doubt, that wherever an acknowledgment shall be in accordance with the laws of the State where it was executed and acknowledged, it will be sufficient, however wanting it may be in any requisite prescribed by previous laws of our own State as to acknowledging deeds executed beyond its limits. It is unnecessary to stop to enquire if the second section of the act of 1834 is repealed; for even if it is not, and a deed acknowledged in accordance with its provisions, as amended by the act of 1840, will still be .entitled to record, it is entirely clear that the act of 1873 has established at least an additional rule which renders any acknowledgment made in accordance with the laws of the State where it is executed sufficient though its certificate does not state, in compliance with former legislation, that the officer taking the acknowledgment knew or had satisfactory proof that the person making it was the individual described in and who executed the deed. Had the deed in question been executed, acknowledged and recorded subsequent 'to the act of 1873, there would certainly have been nothing in the first objection made to the introduction of the copy of the record thereof; nor is there anything in this objection if the fourth section, supra, of the act of 1873 is not ineffectual in so far as applicable to the circumstances of the case before us.

The power of a Legislature, in the absence of any inhibiting constitutional limitation, to cure by retroactive legislation defective acknowledgments in all cases where the purpose of the acknowledgment is admission of the instrument acknowledged to record, or its use as evidence, is, except as against prior vested rights, unquestionable. The Legislature, when enacting the statutes of 1834 and 1840, could have dispensed with any requirement as to acknowledgments to be found in them, and this being so, it has the authority, at least in all cases of mere irregularity, or where no vested rights are affected, the power to do the same by subsequent legislation. Cooley’s Constitutional Limitations (5th ed.), 458, 471; City of Jacksonville vs. Basnett, 20 Fla. 525; Webb on Record of Title, sec. 97; Gorden vs. Collett, 107 N. C., 362; Barton vs. Morris 15 Ohio 408; Watson vs. Mercer, 8 Peters, 88; Buckley vs. Early, 72 Iowa, 289; Green vs. Abram, 43 Ark., 420; Johnson vs. Richardson, 44 Ark., 365.

The intention of the Legislature in enacting the fourth section of the act of 1873 was at least to render valid any irregularity in the acknowledgment of a deed of conveyance of land which had been previously executed in another State if the execution of the deed and of the acknowledgment were in compliance with the laws of the State where the execution took place. This intention extended to making the acknowledg ment as valid at least from the approval of the statute as if at the time of the execution of the acknowledgment the law of this State had provided that deeds of conveyance executed according to the law of the State of its execution might be acknowledged according to the laws of the State regulating the acknowdedgment there of deeds of lands located here.

Upon the trial of the cause the plaintiff to support the introduction of the above deed as testimony, read in evidence sections 2690, 2705, 2706 and 2707 of the Code of Georgia of 1873. The substance of these sections, so far as material here, is as follow's:

Sec.. 2690. A deed to lands in Georgia must be in writing, signed by the maker, attested by at least two witnesses and delivered to the purchaser or some one for him, and be made on a valuable or good consideration.

Sec. 2705. Every deed conveying lands shall be recorded in the office of the clerk of the superior court of the county where the lands lie.

Sec. 2706. To authorize the record of a deed to realty, it must, if executed in Georgia, be attested by a judge of a court of record of that State, or a justice of the peace, or notary public, or the clerk of the superior court in the county in which the three last mentioned officers respectively hold their appointments; or if subsequent to its execution the deed is acknowledged in the presence of either of the above-named officers, that fact certified on the deed by such officer shall entitle it to be recorded.

Section 2707 relates to proof by a subscribing witness.

These sections are shown by the code to be legislation of prior date to the. execution and acknowledgment of the deed under discussion.

It is apparent from the first of these sections that the deed, considered as separate from the acknowledgment, was executed in accordance with the law of Georgia; and as it was signed, sealed and delivered in the presence of two subscribing witnesses, such execution was also, we may state, in compliance with our own laws in force at that time controlling the mere transfer of the title from Hart, and hence the deed is one which in so far as the conveyance of Hart’s fee is concerned, is valid and effectual under the laws of both States.

There was in the Georgia law nothing requiring the certificate to state that the officer taking the acknowledgment knew or had satisfactory proof that a person making an acknowledgment was the individual described in and who executed the deed, and this being so, the first objection made to the acknowledgment and copy of the record offered in evidence fails. Brunswick-Balke Collender Co. vs. Brackett, 37 Minn,, 58; Sanford vs. Bulkley, 30 Conn., 344.

The second and fourth objections will be considered together. Reversing the order of their statement, they are in effect, that the acknowledgment was taken before an officer who had no authority to take it, according to (such being our understanding of the use made of the word “in”, by counsel in stating their fourth objection), the laws of this State, and was moreover taken before a deputy of such officer, and that a deputy could not take such an acknowledgment.

To decide whether the acknowledgment was made before, or taken by, an officer recognized by the act of 1873 as competent to take it, we must first ascertain what officer took it. According to the body of the certificate it was taken before a deputy Clerk of the Circuit Court of Thomas county, Georgia, but when we look at the signature to the certificate we find that he does not sign as acting in that capacity, and moreover we are not informed that there was any “circuit court” in Georgia. Counsel for appellant contends that the words and initials “Deputy Clerk S. & J. C., stand for and mean: Deputy clerk of superior court and justice of peace.” To reach this conclusion they invoke the aid of the attestation of the deed, in which it will be found that a person of the same name, “T. C. Brace well,” is one of the attesting witnesses, he affixing to his signature there the initials: J. P. There is no doubt that the instrument acknowledged may be resorted to for support to the acknowledgment. Einstein vs. Shouse, 24 Fla., 490; 5 South Rep., 380; Brunswick-Balke Collender Co. vs. Brackett, 37 Minn., 58; Owen vs. Baker, 101 Mo., 407; Wells vs. Atkinson, 24 Minn., 161; Samuels vs. Shelton, 48 Mo., 444; Sharpe vs. Orme, 61 Ala., 263; Carpenter vs. Dexter, 8 Wall, 513; Luffborough vs. Parker, 12 Serg. & Rawle, 48. In Carpenter vs. Dexter, 8 Wall., 513, the deed purported to have been signed, sealed and delivered in the presence of two witnesses, one of whom signed his name as “H. Wendell, Jr.” The certificate of acknowledgment purported to ■ have been taken before and signed by “H. Wendall, Jr., Justice of the Peace,” and stated that “the above named Walter T. Davenport, who has signed and sealed and delivered the above instrument of writing, personally appeared before” such undersigned justice of the peace and acknowledged the same, but it omitted to state, in the language of the statute, that the person making the acknowledgment was personally known to the officer to be the person who executed the deed, or had been proved bv credible witnesses to be such. The court after observing that “one of the subscribing witnesses was the justice of the peace.before whom the acknowledgment was taken,” and referring to the above statement of the certificate as following immediately the attestation clause, remarks: “Read thus, with the deed, the certificate amounts to this : . That the grantor personally appeared before the officer and in his presence signed, sealed and delivered the instrument, and then acknowledged the same before him. An affirmation in the words of the statute could not more clearly express the indentity of the grantor with the party making the acknowledgment.” In Luffborough vs. Parker, 12 Serg. & Rawle, 48, the statute required that deeds should be proved by a subscribing witness, and A. B. made the proof, which did not state that he was a subscribing witness, yet by reference to the deed, it appears from his-name that he was one, and the proof was held sufficient. It is apparent that in the former of these cases the-identity of the witness and of the person taking the acknowledgment is presumed from identity of name, and that a similar presumption is made in the second case as to the person subscribing the deed as a -witness and the one proving its execution; yet- the court- does not make this presumption supply of itself in the former case the express statement as to indentity of the grantor and person acknowledging required by the statute to be made. In the other case no corresponding statement as to identity was exacted by the law controlling the certificate of proof of execution. Where a deed is referred to in a- certificate in such manner as to connect the former with the latter, or make it substantially a part thereof, as is the case here, and reading them together there can be found a substantial compliance with the demands of the statute, the certificate should be sustained, but we cannot supply the statutory requirement of an express statement of a fact in a certificate by a mere presumption of such fact, and for the reason that the officer’s statement, and not the presumption, is the ividence expressly called for by the statute to prove the particular fact. This rule is not violated in either of the above cases, nor by our concluding here, as -we do, that the witness and-deputy clerk Bracewell were one and the same person, Mott v. Smith, 16 Cal., 534; Hogans v. Carruth, 18 Fla., 088. This conclusion or presumption does not, however, render the certificate of Bracewell sufficient under the second section of the act of 1834, there being absent from it the substantial affirmative statement as to the identity of parties to be found in Carpenter v. Dexter.

The certificate of itself or aided by the instrument acknowledged, must (unless parol evidence be admission for such purpose — a point not presented — ) show the character of the officer taking the acknowledgment, and when we have learned this much, we must ascertain whether he was authorized to take it. The title of the officer may be written out fully in the body of the certificate, and when this is done its omission from the signature is immaterial; Colby v. McOmber, 71 Iowa, 469; Brown v. Farran, 3 Ohio, 140; or it may be affixed to the signature, and if so, this is of itself sufficient. Devlin on Deeds, sec. 501; Russ v. Wingate, 30 Miss., 440. The use of initials generally understood to stand for the title of an office will answer. In Bowley v. Berrian, 12 Ill., 198, where an officer affixed to his signature, “N. P. for the city of Quincy, in Adams county, Illinois,” the initials were held to mean Notary Public, and J. P. was decided to signify Justice of the Peace in Shattuck vs. People, 4 Scamnon, 477. In Russ vs. Wingate, 30 Miss., 440, the certificate began: “State of Mississippi, Hancock county,” and concluded: Given under my hand and seal this day and year above written. Lewis Y. Folsom, J. P. H. C., (seal). .There was no other designation of the officer yet it was held to be a sufficient designation of the officer as a justice of the peace. See also Final vs. Backus, 18 Mich., 218; Sparrow vs. Hovey, 41 Mich., 708; State vs. Manley, 1 Tenn., 428; Stinson vs. Russell, 2 Ibid, 40; Mayor vs. State, 2 Sneed, 15; Burton vs. Pettybone, 5 Yerger, 442. In McDonald vs. Morgan, 27 Texas, 503, the affidavit of a subscribing witness to a deed executed in Liberty county, Texas, was made March 13th, 1838, before a person signing himself “G-eorgeTY. Miles R. L. C.,” which was followed by a certificate of the record on May 4th, 1838, of the deed “in my office,” headed Republic of Texas, Liberty county, and signed as above. A statute in 1841 validated all records of deeds acknowledged before certain officers, among whom was ‘ ‘the Clerk of the County Court, in whose office such record is proposed to be made.” The law in force at the time of the record made Clerks of the County Courts recorders for their respective counties, and it was held that the official character of the officer as Clerk of the County Court, and ex officio recorder, was sufficiently indicated. As somewhat on the same line is Owen vs. Baker, 101 Mo., 407, where there was a certificate giving at the outset the State and county, and signed: “James C. Jackson, Recorder,” and stating in the body that the grantor appeared “in open court” and acknowledged the deed, such certificate being followed by a statement similarly signed twenty days subsequently, to the effect- that the subscriber had duly recorded the instrument. The statutes required the acknowledgment to be made before the Circuit Court of the county wherein the estate was situated, and that the clerk of the court should endorse upon the deed a certificate thereof “under the seal of the court-;” and it also made the clerk of the designated court recorder of deeds. “Jackson, who signed the certificate,” says the opinion, “was recorder only by virtue of his office as Circuit Clerk. His description of himself, therefore, as recorder indicated likewise that he was Circuit Clerk, and with the recitals in the acknowledgment made it clear that it was taken by him as clerk. As Circuit Clerk, he was authorized to take the acknowledgment, but as recorder he had no such authority. * * * In this case the acts of the sheriff [the grantor] and court, described in the certificate of Jackson, were valid if performed before him as clerk, but not as recorder.”

Not only do the courts hold initials sufficient to indicate the character of the officer taking an acknowledgment, but they do not permit clerical errors to defeat or render acknowledgments ineffectual, when they, considered alone, or read in connection with the instrument acknowledged fairly show a substantial compliance with the statute. In Blythe vs. Houstoun, 46 Texas 65, 79, there was offered in evidence a certified copy of the record of a deed which was objected to on the ground that the certificate of acknowledgment did not show of what county the officer giving the certificate was notary public, nor that he was a notary public when the acknowledgment was taken. The certificate commenced: “The State of Texas, county of Hopkins,” and recited the appearance of the parties before the “undersigned authority,” and concluded: “Witness my hand and official seal at Douglass, this 6th day of October; A. D. 1854,” being signed: “John R. Clute, Notary Public, N. C'” “The objection,” says the Supreme Court of Texas, “was, we think, properly overruled. * * * The discrepancy between the county named in the outset, and the letters designating his county appended to the signatures, might easily be accounted for, and certainly was not of sufficient importance to invalidate the record.” In reaching this conclusion the court remarks that McDonald vs. Morgan, supra, “is nearly in point as .to the sufficiency of the signature, which, it must be assumed, was authenticated with the official seal of the notary, showing the words, ‘Notary Public county of-} Texas’.” Merchants Bank vs. Harrison, 39 Mo., 433, is a case in which the notary public who took the acknowledgment of a deed offered in evidence, described himself in the body of the acknowledgment as a notary public within and for the county of Livingston, but appended to his signature his official character in the following words: “Notary Public Howard county,” and the Supreme Court said they were inclined to think that the deed should have been admitted, but being excluded, there was still evidence enough to show a prima facie right to recover. In Agan vs. Shannan, 103 Mo., 661, the certificate of acknowledgment, after stating that W. L. H. Frazier appeared in the Probate Court, in open court, and acknowledged the deed, concluded, including the signature, as follows: “In testimony whereof I, W. L. II. Frazier, judge of said court, have hereunto set my hand and affixing my private seal. * '* * M. L. Wyrick, Probate Judge.” A private seal was affixed, and there was also a statement that no seal of office had yet been provided. It was held, overruling Lincoln vs. Thompson, 75, Mo., 623, that the certificate was good.

Viewing the certificate of acknowledgment in the light of the Georgia law it must be held sufficient if we can learn from the certificate, either alone or aided by the instrment acknowledged, that the acknowledgment was made before or taken by any officer authorized by such law to do so. From the Georgia law, as proved, it appears that among other officers, either a clerk of a Superior Court or a Justice of the Peace could take in that State an acknowledgment of a conveyance of land situate therein; and hence if the description following and constituting a part of the signaturé, fairly indicates either of these officers, the acknowledgment must be sustained. Invoking, as we lawfully may and properly should do, the aid of the attestation of the deed, our conclusion is, that each of the above official capacities is sufficiently indicated. The final “C” may in the light of the authorities be regarded as a clerical error, and intended for a P, and so treating it, the quotation would read: “Deputy Clerk of the' Superior, and Justice of the Peace.” The omission of the word “court,” or the' letter “C,” as standing for “court,” after the letter “S,” cannot be regarded as material, but its absence, in view of the liberal principles of law always obtaining and to be applied in support of these instruments, will be supplied. The letter “S” can, in view of the Georgia law, be given no other signification than as standing for “Superior,” and informed as we are by this law that a clerk of the Superior Court may perform the * official functions in question, we must elect between ignoring the clear indication of the words “Deputy Clerk Superior,” and defeating the acknowledgment, or of regarding them in the light of the statute and supplying the word “court” as a clerical omission and sustaining the certificate. Instruments like these, say the authorities, must be construed ut res magis valeat, quam pereat, and in dealing with them it should be the aim of the courts to preserve and not to destroy. Einstein vs. Shouse, 24 Fla., 490, 5 South. Rep., 380; Kelly vs. Calhoun, 95 U. S., 710; Carpenter vs. Dexter, supra; Touchard vs. Crow, 20 Cal., 150, 160. It is the policy of the law, observes the Supreme Court of Minnesota in Brunswick-Balke Calendar Co. vs. Brackett, supra, to uphold certificates of this character, and wherever substance is found obvious clerical errors and all technical omissions or defects will be disregarded. Again,, should we read, as it might be said we should, the final ‘ ‘C' ’ as standing for or intended to indicate the “court,'’ so that the entire suffix to the signature should read “Deputy Clerk of Superior and Justice Court,” it seems to us entirely clear and reasonable to hold that thus read in connection with the attestation it was intended by the officer to indicate his dual official capacity of clerk and justice. If nothing followed the signature but “ J. C.,” • or “Justice Court,” we would be obliged, in view of the attestation and the law, to hold that it wgs a clerical error or an inaccuracy and intended to indicate the official character of justice of the peace, and it is nothing more than reasonable to hold that the last two initials, if to be read, the former as “justice,” and the latter as “court” or “courts,” -were used, the former as standing for justice and the latter as applying not only to it, but also to ‘ ‘ Superior, ’ ’ as indicated by the letter “ S. ” Again, if it is to be assumed that “J.” does not stand for “Justice,” but for some other word, there is still enough to signify the office of the Clerk of the Superior Court.

Inartificialness in the execution of these instruments cannot be permitted to defeat them, if looking at them as a whole, we find that they reasonably and fairly indicate a compliance with the law.

In reaching this conclusion we have not overlooked the use of the word “ Circuit ” in the body of the certificate. Our judgment as to this is, that, in the absence of evidence that there is any such court in Georgia, the suffix to the signature must control as showing that the person taking the acknowledgment was acting in the authorized official capacity indicated by it, and that the word ‘ ‘ Circuit ’ ’ was written at least unadvisedly, even if by the officer himself, and is to be controlled by the designation following liis signature which is to be presumed'to have been made by him and to have been a subsequent, if not the last, act in the matter. Carlisle vs. Carlisle, 78 Ala., 542.

In what has been said, the fact that the acknowledgment was taken by a deputy, if taken in the capacity of Clerk of Superior Court, instead of that of a Justice of the Peace, has not been noticed. In Hope vs. Sawyer, 14 Ill., 254, a question arose upon the legality of the record in Illinois of a deed acknowledged in Missouri, the certifícate of acknowledgment being signed in the name of the Clerk of the Circuit Court, “ by E. Baker, deputy clerk.” It was objected that the acknowledgment should have been made before and certified to by the clerk in person. “ The objection,” says the opinion, “ is not well founded. The acknowledgment purports to have been taken by the clerk, and it is certified in his name and under the seal of the court. Prima facie this is sufficient. The seal of the court proves itself, and we must presume that it was affixed by the proper officer. The presumption is that the clerk was authorized by the laws of Missouri to act through a deputy, and that Baker was regularly appointed as such. The deputy had the power to use the name of the clerk and attach the seal of the court. * * * The certificate in question was none the less the act of the clerk because made by his authorized deputy.” Devlin on Deeds, sec. 475; Webb on Record of Title, 62. In Small vs. Field, 102 Mo.. 104, where an acknowledgment of a deed to land in Missouri, taken before a dejraty clerk of a territorial District Court in Washington Territory was held sufficient notwithstanding the statutes of the United States providing for the appointment of the clerk of such court made no provision for a deputy, though deputy clerks of territorial courts are expressly spoken of elsewhere in the statutes, the Supreme Court of Missouri observed : lwIf necessary to uphold this certificate we would presume that a law of the territorial legislature was in existence authorizing the appointment of a deputy ■clerk. * * * Moreover the seal of the court being affixed'to the certificate, carries with it prima facie evidence that it was rightfully affixed, and throws the burden of overcoming the prima facie case thus made, on the objectors to the sufficiency of the certificate. ” Musser vs. Johnson, 42 Mo., 474.

In the case before us it is be presumed from the words of the certificate, to such effect, that the seal of office of the Clerk of the Superior Court was impressed upon the original certificate. The absence from the record or from the transcript of such seal, or anything .as representing it, is not sufficient to overcome the presumption created by such words. The ordinary provisions of statutes regulating the -recording of instruments do not contemplate the inscription of public official seals upon the record. Devlin on Deeds, sec. 700; Webb on Record of Title, sec. 74; Geary vs. City of Kansas, 61 Mo., 378; Hammond vs. Gordon, 93 Mo., 223; Ingoldsby vs. Juan, 12 Cal., 564; Smith vs. Dall, 13 Cal., 510; Jones vs. Martin, 16 Cal., 166; Griffin vs. Sheffield, 38 Miss., 359; S. C. 77 Am. Dec., 646; Hedden vs. Overton, 4 Bibb, 406; Sneed vs. Ward, 5 Dana, 187; Ballard vs. Perry, 28 Texas, 347; Witt vs. Harlan, 66 Texas, 660 ; Coffee vs. Hendricks, Ibid, 676; Gale vs. Shillock, Dak., -; 29 N. W. Rep., 666. In Jones vs. Martin, supra, where, as here, the body of the certificate indicated a seal by apt words, the words “No seal” appeared in the certified copy where the notarial seal should have been, and it was held that these words did not imply that no seal was affixed to the instrument by the notary who took the acknowledgment, but was a mere note of the recorder of the place of the notarial seal, which he probably had no means of recording, and which it was npt necessary that he should record.

As it is to be presumed from these words of the certificate that a seal was impressed upon the original the only distinction between the case at bar and those' cited from Illinois and Missouri is, that here the-certificate is signed by the- deputy simply in his own name, without using that of the clerk. There is conflict of authority as to how such certificates of acknowlment should be -executed when they are made by deputies. In Tennessee it was held, Beaumont vs. Yeatman, 8 Humph., 542, that such certificates should be-in the name of the deputy ; and likewise in a late case in Georgia, where an acknowledgment was taken out of the State, McKenzie vs. Jackson, 82 Ga., 80; and in California a certificate was held valid which stated, that “before me, the undersigned, County Clerk of Sonoma county, personally appeared * * ,” and was signed “John A. Brewster, Deputy County Clerk, of Sonoma county,” the principal's name not appearing, Touchard vs. Crow, 20 Cal., 150. See also Rose vs. Newman, 26 Texas, 131; Cook vs. Knott, 28 Texas, 85. In Talbott’s Devisees vs. Hooser, 12 Bush, 408,, where the acknowledgment, was in fact taken by the.deputy clerk, but the name of the clerk alone was signed by such deputy to the certificate, the acknowledgment-was decided by the Supreme Court of Kentucky to be-valid, and this too, although the deputy, was a minor, the statute not prescribing the qualifications of a deputy. The doctrine of this case is that all official acts: should be done in the name of the clerk, and not ins-that of the deputy. The view expressed in Devlin, sec. 474, is that the signature of the deputy alone does-not invalidate the acknowledgment, but that the better practice is for the deputy to sign the name of the-principal, by himself as deputy. That this is the better rule in all cases where a deputy acts, we will not deny, but in view of the conflict of authority and the-liberal views governing in cases of these acknowledgments, we cannot hold this certificate invalid on account of the manner in which the deputy has signed, but must regard it as sufficient in this aspect; and this being so, and tire presumption being that the official seal of the Clerk of the Superior Court of Thomas county, Georgia, was affixed to the original certificate of acknowledgment, and rightfully so, Touchard vs. Crow, Small vs. Field, supra, the certificate must be sustained, though executed by a deputy, and in another State. That the act is one which in its nature may be performed by a deputy, cannot be denied, Devlin, sec. 473, Webb on Record of Title, sec. 62, and there is, in view of the authorities cited above as to deputies and the manner in which they may sign, in the fact that the name of the clerk does not appear,, nothing to except this certificate from the rule which presumes, prima facie, that the appointment of Brace-well as the deputy clerk was valid. Hope vs. Sawyer, and Small vs. Field, supra.

If we refer- the taking of the acknowledgment to Braeewell’s capacity as justice of the peace, then the ■certificate shows that he had an official seal, as such ■officer, and no other evidence of such capacity is required by the act of 1873, supra.

In Carpenter vs. Dexter, supra, it is announced as law, that where one State recognizes acts done in pursuance of the laws of another State, the courts of the former will take judicial cognizance of these laws so far as may be necessary to determine the validity of the acts alleged to be in conformity with them. We find no other decision to this effect, the general rule being that the statute law of another State is to be proved according to the law of the former in which the trial is had. Tuten vs. Gazen, 18 Fla., 751; Session vs. Reynolds, 15 Miss. (7 Smedes & M.), 130; Whartons Law of Evidence, sec. 302; Greenleaf on Evidence, secs. 486, 489. We may remark, however, that we are not advised that the application of the rule announced by the Supreme Court of the United States -would have led to a conclusion against- the validity of the acknowledgment in question.

A further question, suggesting itself, is -what effect is to be given the fact that the record in Marion county was made before the act of 1873. Does this fact except such record or a transcript thereof from the effect of the provision of our Constitution set out above?' The act of 1873 was in effect an amendment of the existing prior legislation referred to in this opinion. As has been shown in the statement of that legislation, a purpose of it was the regulation- of the acknowledgment and proof, made out of the State, of deeds of lands here, for the purpose of their being used or recorded here. Upon the approval or the act of 1878 the acknowledgment of the deed became as valid as it-would have been, from the date of its execution, had it been acknowledged after the approval of the act, and a record of this deed, made upon the originally defective acknowledgment, immediately after the statute became operative, would have been as valid for all purposes involed in this cause as if the deed had been, acknowledged subsequent to the approval of the statute. This deed, as acknowledged standing upon the record, as it did, at the time the act became effective,, we see no good reason why the record was not, from that time, as valid as if it had been made immediately .•after the approval of the statute; or, in other words, why it was not duly recorded from that time. Such we think was the logical and necessary effect of the ■statute upon the existing record. The deed was duly recorded from that time, and the record or a certified copy was admissible under the section of the Constitution set out above. East vs. Pugh, 71 Iowa, 162; Fowler vs. Merrill, 11 Howard, 375.

No objection that the original was not within the ■custody or control of the party offering the copy, appears to have been made, and hence we conclude that this requirement was complied with or waived.

That the officer acted within his jurisdiction appears .•sufficiently upon the face of the certificate. Devlin, sections 482, 486.

Other assignments of error need not be noticed.

The judgment must be reversed and remanded for proceedings not inconsistent with this opinion. It will fee so ordei’ed.