#### Paris Mason, for use of Sarah Mason, Guardian of Martha M. Mason, Pltff, *v.*Tarleton F. Brock, Deft.

AGREED CASE FROM JERSEY.

In divesting a married woman of her real estate, the mode prescribed! by statute,. must be substantially complied with.

A notary public cannot take the acknowledgment of a deed,.unless he‘authenticates-it, by his official seal

The provision of law which authorized certain officers to use- their private- seals-until provided with public ones, has no application to Notaries Public..

The agreed case presented to the .Court for- consideration,, states that plaintiff sued defendant on two notes, given in 1836,. for the price of certain lots in Grafton, sold by Sarah Mason as-guardian, &c. The defendant, for defence, relied upon the want of title at the time of the institution of this suit. For replication,. the plaintiff relied upon the fact, that Mrs. Allen, who had the title in fee to said lots on the 17th May, 1842, had, with her husband, William H. Allen, tendered a deed of that date, conveying the same to the defendant, before the institution of this suit; and offered in evidence a deed of that date, certified by Paris Mason, as Notary Public; said certificate concluding as. follows:

*276“In witness whereof I have hereunto set my hand and private seal, at Grafton, Jersey county, this 17th May, 1842, no_ public seal having been furnished.

*[seal.]*Paris Mason", *Notary Public ”*

Said seal being a mere scrawl. Mrs. Allen and her husband were residents of said county on the 17th of May, 1842. Which certificate, in every other respect except the quotation above, was admitted to be in due form of law. Upon the foregoing issue and facts, the case was submitted to the Circuit Court at October term, 1850, Woodson, Judge, presiding, when a judgment was rendered for the defendant. The plaintiff below brings the cause to this Court. The error assigned was the refusal of the Circuit Court, to admit the deed from Allen and wife to Brock, in evidence.

Henry H. Billings and Lewis B. Parsons, for Pltff in Error.

Neither at common law nor by our statute,ris there any prescribed form for a notarial seal. R. S., 470. It .is even doubtful whether a notary’s signature is not sufficient without any seal. Bank of Rochester *v.*Gray, 2 Hill, 228.

The reason of the old common law doctrine of seals having passed away, the law itself, at least in its strictness, has passed, and is not generally adopted’ in this country. At common law a seal must be impressed upon wax, wafer or other tenacious substance, and a mere stamp on paper is not sufficient. Warren *v.*Lynch, 5 John., 244. In Virginia, a scrawl, aside from statute, is a good seal. Jones & Temple *v.*Logwood, 1 Wash., 57. Same in Pennsylvania. 1 Sergt & Rawles, 72. In Maryland a scroll set opposite the name is a seal, if it was so intended, though nothing is said about a seal in the body of the instrument. Trasher *v.*Everhart, 3 Gill & John., 246. In New Hampshire an impression on paper is a sufficient seal. Whether a.scroll would be a .sufficient seal to a protest—quere? Center *v.*Burley, 9 N. H., 569. In Alabama, evidence of intention to make a scroll a seal, is sufficient to make it such. Lee *v.*Adkins, 1 Minor, 193. Also to same point, Alexander *v.*Jameson, 5 Binney, 244; 3 Phillips’ Ev., 1274, note 884; United States *v.*Coffin, Bee’s S. C. Reports, 1 McLean, 462; United States *v.*Exrs of Stephenson. Where an officer, taking an acknowledg*277ment, styles himself such an officer as is authorized, it will be *prima fade*evidence of his being so. Willinch’s lessee *v.*Mills, 1 Peters’ C. C., 429; Johnson’s lessee *v.*Haynes, 1 Hammond, 55; 3 Phillips’ Ev., 1247. The cases above are decided without any particular statute varying the common law rule.

The *signature of*the party is what now gives an instrument credit and authenticity. 1 Alabama, above cited; McDill *v.*McDill, 1 Dallas, 64. In Indiana, under a statute like our own, R. S., ch. 85, §56, a scroll upon an execution issuing from the Circuit Court, is decided to be a good seal. Dixon *v.*Doe, 5 Blackf., 106. Also in Kentucky, under a law requiring the officer to certify it (the acknowledgment) with the seal of his office annexed, where the officer uses nearly the same words as in the case at bar, a scroll is declared a sufficient seal. Collins *v.*Boyd, 5 Dana, 316. Courts will give a liberal construction to acknowledgments, and sustain them, if by a reasonable and liberal intendment, they can do so. Would not the same rule apply with greater force where the irregularity is .only in the *testatum of*the officer?

D. A. Smith, for Deft.

The question in this case, is as to the validity of a deed by a *feme*covert, conveying her fee simple estate, acknowledged before a notary public of Jersey county, and .certified under his band and private seal, no seal of office being provided. Our statute is plain, positive, and peremptory in its requirements, that the acknowledgment must be authenticated under the seal of office of the notary. In case, 11 His., 120, this Court holds the following emphatic language: “There is no room for construction, where the terms of a statute are clear and unambiguous. The legislature had an undoubted right to pass ,the law in question, and it is enough for the Court to know, .that thus it is written, *1 Quod*scriptum, *scriptumJ*” 1 Wash., 57; 2 Cond. R., 179. As .to office of notary public, and necessity of his notarial, or public and official seal to authenticate his acts, see 7 Porter, 529; 1 Ala., 527; 2 Hill, 230; 9 K H., 569; 13 Verm., 334; 4 Blaekf. 185; 6 *id.,*356; 3 Monroe, 238; 4 Dana, 329, 330.

Treat, C. J.

The only question in this case, relates to the *278validity of a deed made by a husband and wife, for the purpose of conveying the real estate of the latter. A married woman can only be divested of her real estate in the mode prescribed by statute. The certificate of acknowledgment, is an essential part of the due execution of a deed, by which the real estate *of*a *feme covert*is to be transferred *\*and unless it is in substantial compliance with the statute, no title passes. Mariner *v.*Saunders, 5 Gilman, 113; Hughes *v.*Lane, 11 Illinois, 123.

The only objection taken to the deed in question, is, that the certificate of acknowledgment is not properly authenticated. The conclusion of the certificate is as follows:

“ In witness whereof, I have hereunto set my hand and private seal, at Grafton, Jersey county, this 17th May, A. D. 1842, —no public seal having been furnished.

[seal.] Pajbis Mason, *Notary Public.*

The seal was a mere scrawl. The statute in force when this certificate was made, provides that deeds may be proved or acknowledged before “ any clerk of a Court of record, mayor of a city, or notary public; but when such proof or acknowledgment is made before a clerk, mayor, or notary public, it shall be certified by such officer, under his seal of office.” Bev. Laws of 1833, p. 138.

In our opinion, the certificate of the notary is fatally defective. The statute imperatively requires it to be under his official seal. It makes the affixing of the official seal an indispensable part of the certificate. Without the seal, the certificate is incomplete and imperfect. It has no validity or efficacy, unless the seal is added. It might as well be insisted, that a writ of error issued from this Court, which was not under the seal of the Court, would he valid, as to say that a certificate of acknowledgment by a notary, need not be evidenced by his notarial seal. The same authority that requires the process to be under the seal of the Court, directs the certificate to be under the official seal of the notary. The Courts have no more power to dispense with the requirements of the statute, in the one case, than in the other. It is only by force of the statute, that the certificate of a notary has any effect,, as evidence of the execution of a deed; and the statute requires it to be under the official seal of the officer. A certificate, which is not verified by his seal of office, derives no force or efficacy *from*the statute. We cannot say, that the seal *279is a mere formality, that adds nothing to the dignity or solemnity of the instrument. It is enough, that the law positively requires it. The propriety of the requisition rests with the legislature. A notary is empowered to take the acknowledgment of a deed, and certify the same under his official seal. He has no power to •do it in any other manner. If he has no notarial seal, with which to authenticate his official acts, he is destitute of any authority to certify the acknowledgment of a deed. He must procure au official seal, before the authority conferred on him to take the acknowledgment of deeds attaches. He cannot make use of a scrawl or private seal, for the purpose of authenticating a certificate of acknowledgment. The provision of law allowing certain officers to use their private seals, until they should be provided with public seals, had no application to a notary. He has to provide himself with an official seal. It is not furnished him by the public. The statute is silent as to the form and character of the seal. He may adopt a seal, with such an inscription as his judgment may dictate, or his fancy may suggest. It must, however, be capable of making a definite and uniform impression on the paper on which a certificate is written, or on some tenacious substance attached thereto, so that when a question arises as to the genuineness of an authentication, it may be determined by reference to the seal in the possession of the officer.

The judgment of the Circuit Court is affirmed, with costs.

*Judgment affirmed.*