CHAPTER LVIII.

PROOF AND RECORDING OF DEEDS AND MORTGAGES.

1. ALL conveyances of real estate must be recorded. They are to be recorded in the county where the property is situated. Every conveyance not so recorded is void as against any subsequent purchaser in good faith and for a valuable consideration, whose conveyance shall be first duly recorded.

2. Different sets of books are provided by the clerks of the several counties for recording deeds and mortgages. In one set of books, all absolute conveyances, such as deeds, are recorded. In the other set of books, all conditional conveyances, such as mortgages, are recorded. To entitle any conveyance to be recorded by any county clerk, it must be acknowledged by the party executing the same, or be proved by a subscribing witness thereto. Such acknowledgment or proof may be taken before a magistrate or commissioner of deeds. Such magistrate or such commissioner must act within the limits of his jurisdiction; and he has no authority to act out of the district for which he was appointed or elected. If the proof or acknowledgment be taken before any judge, it must be taken within the jurisdiction of the court to which he belongs. The proof or acknowledgment may be taken by the mayors of cities, or consuls of the United States residing in foreign countries. The proof or ac

1. What conveyance must be recorded? Where? If not recorded, what is the effect?

2. How many sets of books are provided by county clerks? What is recorded in each? To entitle a conveyance to be recorded by a county clerk, what is necessary to be done? Before whom may such acknowledgment or proof be taken? Within what limits must the magistrate or commissioner act? Has he any authority to act out of his district? If taken before the judge of a court? What other officers are authorized

knowledgment may be taken in any other State or Territory of the United States, by any officer authorized to take such proof or acknowledgment in such State or Territory. The officer taking an acknowledgment must know, or have satisfactory proof, that the person making such acknowledgment is the individual described in and who executed the same.

3. The governor of one State may appoint commissioners in any city or county in any of the other States and Territories. They are generally appointed for four years. They have authority to take acknowledgments. and proof of any instrument under seal to be recorded. The certificate of such commissioner must be made under his signature and official seal. The certificate must be indorsed on the instrument.

4. Commissioners appointed by the governors of States, authorizing them to perform their duties in other States, are required to prepare an official seal. The commissioner's name must be upon the seal, together with the words, "Commissioner for the State of- ," and the name of the State, city, and county in which he resides and for which he is appointed. He is required to have a clear impression of the seal made upon wax, or some other tenacious substance, and to cause the same to be filed with the secretary of state, with his signature, in his own handwriting. Before any deed acknowledged or proved before him is entitled to be recorded, a certificate of the secretary of state must be attached. The secretary of state must certify-1. That the commissioner, at the

to take proofs and acknowledgments? By whom may they be taken, if taken out of the State in which the land is situated? What is necessary for the person taking the proof or acknowledgment to know?

3. What officers may the governors of States appoint in other States ? For what time generally appointed? What is their authority? How is his certificate made? Where indorsed?

4. What seal must such commissioners prepare? What must be upon the seal? Upon what must an impression of this seal be made? Where to be filed? Accompanied with what? What certificate must be attached to the certificate of such commissioner, to entitle the conveyance to be recorded? To what facts must the secretary of state certify?

time of taking such proof or acknowledgment, was duly authorized to take the same; 2. That the secretary is acquainted with the handwriting of such commissioner, and has compared the signature to such certificate with the signature of the commissioner deposited in his office; 3. That he has compared the seal of such commissioner with the seal deposited in his office; 4. That he verily believes the signature and impression of the seal on the said certificate to be genuine.

5. It is the duty of the secretary of state to prepare instructions and a set of forms, and forward the same to commissioners acting in other States. In foreign countries, proof or acknowledgment of deeds may be taken before American ministers, consuls, and chargés des affaires. When a married woman joins in a deed with her husband, she must acknowledge the same; and in several States she must, on a private examination, apart from her husband, acknowledge "that she executed such conveyance freely, and without any fear or compulsion of her husband."

6. The proof of the execution of any conveyance must be made by the subscribing witness. He must state1. His place of residence; 2. That he knows the person described in and who executed such conveyance; 3. That he witnessed the execution thereof. The officer taking the proof must be personally acquainted with such subscribing witness, or have satisfactory evidence that he is the same person who was the subscribing witness to such instrument. If the witness refuse to appear and testify to the execution of the conveyance, any officer authorized to take such proof, and authorized to issue

5. What is the secretary of state required to prepare? Before whom is proof taken in foreign countries? When a married woman joins with her husband in a deed, is she required to acknowledge the same? How does she acknowledge the same in New York and many other States?

6. How must the proof of the execution of any conveyance be made? What must the subscribing witness state? What knowledge must the officer taking the proof have? If the witness refuse to appear and testify to the execution of the conveyance, what is to be done? If the witness.

a subpoena, may issue a subpoena to such witness, requiring him to appear before him, and testify to the execution. If such witness refuse to appear, or refuse to testify, he may be committed to jail by the officer issuing the subpoena, and may also be fined. In the certificate of proof, it is the duty of the officer to give the names of the witnesses examined before him, with their residence, and the substance of their evidence.

7. When a conveyance has been duly acknowledged or proved, and recorded, the conveyance may be read in evidence; and the record, or a transcript thereof, duly certified, may be read in evidence. This evidence is not conclusive; but it may be rebutted by any party to a suit who is affected thereby. If the party contesting the proof make it appear that the proof was taken upon the oath of incompetent witnesses, it is successfully rebutted, unless sustained by other competent proof.

8. It is a general rule, that when the acknowledgment or proof of a conveyance is taken before an officer authorized to take the same, yet residing out of the district where the property is located, in addition to his certificate of proof or acknowledgment, the certificate of the clerk of the county, or the clerk of the court, or the secretary of state, under his hand and official seal, must be subjoined, specifying that the officer taking the proof or acknowledgment was duly authorized to take the same; that he is acquainted with the handwriting of such officer, and verily believes the signature of the officer to be genuine. The certificate and the conveyance must be recorded together.

refuse to appear or refuse to testify after he is subpoenaed? What must the officer give in his certificate of proof?

7. When a conveyance has been duly acknowledged or proved, and recorded, can it be read in evidence without further proof? Can the record, or a transcript thereof, be read in evidence? Is this evidence conclusive? If the deed was proved upon the oath of incompetent witnesses?

8. If the officer before whom the proof or acknowledgment is taken resides out of the district in which the property is located, what must be

9. Conveyances are entitled to be recorded in the order in which they are delivered to the county clerk. They are considered as recorded from the time of such delivery. The officer makes an entry in his record, specifying the minute, hour, day, month, and year when the same was delivered. He also enters the same on the conveyance. The officer who records deeds and other conveyances in New York City is called "register." A mortgage, when paid, may be satisfied on the record. A certificate is made by the mortgagee, specifying that the mortgage has been paid and satisfied. It is signed, acknowledged, and recorded. A conveyance may be proved after the death of the witness. The death of the witness must first be proved. The handwriting of the witness, and of the grantor, may then be proved. It may be recorded in the proper office, if the original deed be at the same time deposited in the same office, there to remain for the inspection of all persons desiring to examine the same. This does not entitle such conveyance to be read in evidence.

10. No conveyance can be recorded without being proved or acknowledged. Any county clerk or register is liable to fine and imprisonment for recording a conveyance without being proved or acknowledged. If the commissioner, or other officer, be guilty of malfeasance, he is liable to fine, imprisonment, and damages. If a person execute a deed under the power-of-attorney, the

subjoined? What must such certificate specify? Is it necessary to record this certificate with the conveyance?

9. In what order are conveyances entitled to be recorded? From what time are they considered as recorded? What does the officer recording the same specify in the record? Does he indorse the same on the conveyance? What officer records conveyances in the city of New York? When a mortgage has been paid, what is to be done? What does the mortgagee specify in his certificate? What is to be done with this certificate? How can a conveyance be proved after the death of the subscribing witness? Can it be recorded, if so proved? Does this entitle such conveyance to be read in evidence?

10. What must be done before a conveyance can be recorded? To what penalty is the county clerk liable for recording a conveyance without proof or acknowledgment? If the officer taking the proof or acknowledgment be guilty of malfeasance? If a person execute a deed