#### Joseph Bernier *v.*William Becker.

Section 16 of tke act of March 13, 1858, concerning notaries public, which ' declares that an act done by a notary public after the expiration of his term of office shall be valid, is not retroactive. Hence, an unauthorized acknowledgment of a deed taken before the act was passed, is not cured by it.

Error to the Superior Court of Cincinnati.

The original action was brought by the plaintiff in error against the defendant in error for the specific performance of an agreement for the sale and conveyance of certain real estate. The defense was that the defendant’s title was defective in this: that a deed, through which plaintiff claimed' title, made by Eliza Smith (who owned the property in her own right), and Samuel H. Smith, her husband, to Margaret Buxton, was acknowledged before one Charles Ililtz, on October 25, 1850, *73who certified himself to be a notary public at that time, but who, in fact, was not such notary.

Hiltz was commissioned a notary public on December 2, 1852, under the act of April 2, 1852, 3 Curwin’s Stats. 1751. His term of office under the act was three years; and the acknowledgment of the deed in question was taken more than ten months after his commission expired. There was no evidence of his having assumed to act as a notary public after his termed expired, except in taking the acknowledgment in question ; nor was there any other evidence of his being recognized as such notary.

On this state of facts the court found that the conveyance from Smith and wife to Buxton was defective, and refused to require the defendant to specifically perform the agreement.

The petition of the plaintiff was accordingly dismissed. On error, the court in general term affirmed the judgment of dismissal. To reverse these judgments is the object of the present petition in error.

*Fox & Bird,*for plaintiff in error.

*John R. Von Seggern,*for defendant in error.

White, J.

It is not claimed that the acknowledgment can be supported on the ground that Hiltz, at the time it was taken and certified, was an officer *defaoto.*No such color of authority is shown in the record as is required to constitute such an officer. *Exp. Strang,*21 Ohio St. 610, 617.

The deed of Smith and wife to Buxton of October, 1856, was inoperative as a conveyance for want of an acknowledgment as required by the statute. The supposed acknowledgment was invalid because not taken befoi’e a competent officer. The commission of Hiltz as a notary public had expired more than ten months before he assumed to take the acknowledgment. lie was not, therefore, an officer *dejivre,*nor, as before remarked, was he an officer *de fasto.*

The defect could doubtless have been relieved against, although the deed was intended to convey the estate of the wife, under ihe act of April 17, 1857, amending the,act to give' ad*74ditional security to land titles. 1 S. *&*C. 694. But neither the vendor nor those under -whom he claimed took any steps to cure the defect; and he had no right to ask this burden to be cast upon his vendee.

The plaintiff in error relies on section 16 of the act of March 13, 1858, concerning notaries public. 1 S. *&*C. 872; 4 Cur-win, 3030.

That act repeals the act of April 2, 1852, under which Hiltz was appointed. Section 16 is as follows:

> “Any act done by a notary public subsequently to the expi- ■ ration of his term of office shall be as valid as if done during his term of office.”

, Section 17 provides that, “ Any person appointed a notary public who shall do or perform any act as a notary public after the expiration of his term of office, knowing that his term of office has expired, shall be fined in any sum not exceeding five hundred dollars,” &c.

Section 15 declares that all notaries public now holding appointments shall be continued as if this act had not been passed.

The claim of the plaintiff is that section 16 has a retroactive operation, and validates acts which were invalid when done.

This claim is inadmissible. If section 16 has a retroactive operation, so also, it seems to us, does section *17r*which makes the-act provided for in section 16 a penal offense, if done knowing the term of office to have expired.

It is laid down as a rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively. Cooley’s Cons. Lim. 370; Broom’s L. Maxims, 35.

This rule is applicable to the statute now in question.

*Judgment affirmed*