The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1876-06-02

uecu vi liuSt ls not InSailu unQer Inc pro-
vision OF section 35 Of the bankrupt act as
and in force at the time OF its exc
cution.
THE FAILURE To RECORD. ,
The deed was delivered to- Conway
when 1t was executed, and held by
him as security for the notes it de-
scribed. The testimony is clear upon
this point. The failure TO record pre-.
vioEs deeds Of the same character, their
surrender for cancellation without formal
rcconyeyance after payment OF the notos,
and their acknowledgment before the de-
fendant Garnett as notary, are all circum.
stances proper for consideration when de.
termining what the real character Of this
transacsion was; but, in our opinion, they
are not sufficient to overcome the positive
testimony OF all the parties to the effect that
the delivery was complete, that the object
on both sides was to secure the debts pro-
vided for, and that Conway, the trustee, was
fully authorized To cause the record to be
made whenever he or his beneficiaries
thought it desirable to do so.
The deedwas good as between the parties
without record, but until recorded it was
void against creditors. (Code OF Virginia,
1873, page S97, chapter ll4.) No deed can
be admitted to record until proved or &C.
kuowledgcd in the manner provided for
(Samc Code, 905, section 111) A record
without the requisite proof or acknowledg'
mcnt does rot affect creditors. ".t.
AS TO ACKNOWLEDGEMENT. ~.
4 deed may be acknowledged by the
grantor before notary public, and, upon
the certificate OF the notary to that effect ir
proper form. recorded, The form Of the
certificate in this case is correct, but it is in
sisted that because Garnett, the notary, was
interested as one OF the benefciaries in the
trust he was incompetent in law to receive
and certify the acknowledgment. This pre-
sents the principal question in the case fol-
our consideration.
The law provides only for the acknowledg.
mcnt Of 4 deed before notary public. 1t
does not require, in express terms certainly,
that he shall be disinterested. A notary
public is an officer provided for by statute.
He must give bond for the faithful per-
iormance of his duties. Code Of Virginia,
1878, page 903, chapter 116.)
1t has been frequently decided that an ac-
before grantee named in a
deed was OF no etfect.-Beaman as. Whit
ney, 90 Maine, AIS; Wilson rs. Trcar, 20
Iowa, 233; Stevens rs. Hampton, 46 Mis-
souri,. 404 Groesback Us. Seely, 13 Michi-
gan. 345. It has also been held that party
interested in deed cannot take and certify
the acknowledgment OF married woman
requiring Il privy eXamination.-Wlth
U.s. Baird, Watts, 22S. The taking Of such
an acknowledgment is, in some respects, q
judicial act and not ministerial only, but in
the case of an ordinary acknowledgment 1t
it is purely Il ministerial act.-Freeman rs.
Love, IA Ohio ST., 531; Lynch Us. Living
ston, Scld., 434. Upon this principle it
was decided in DusSuame Us. Burnett,
Iowa, 95, that an acknowledgment before
one not grantee named in the deed, but
interested in the conveyance, was good.
The same distinction was recognized in Ste
vcns rs. Hampton, before cited.
A VIRGINIA JUDGE QUOTED.
In October last the Judge of the Rock
bridge Circuit Court OF Virginia held, In the
case OF Lady Us. Lady, pending before him,
that a grantee named in deed, though q
trustee only, was incompetent to take the
acknowledgment OF married woman, the
grantor, which required privy eXamina-
ton. An acknowledgment OF that kind, it
was said. was OF such sapctity as to make it
necessary for the officer taking it to be dis
interested.
The recording acts are intended for the
security of titles and the prevention OF
frauds. They are to be construed literally
to that end. AS the record, when made, is
constructive notice to all having the legal
right to rely upon it for protection, public
policy requires that it shall import as near
absolute verify as is consistent with Il due
regard to the rights of the parties interested.
A deed acknowledged before one named as
grantee, carries upon its face notice OF that
fact, or, what rs equivalent, notice OF circum-
stances sufficient to put reasonable man
upon inquiry. But when the name OF the
officer taking the acknowledgment does not
appear rs grantee, or as otherwise lnte.
rested, no such notice OF presumption ac-
companies the deed or its record.
WHAT IS REQUIRED TO PERFECT DEED.
A certificate Of acknowledgment is re-
quired to perfect deed for record. The
grantor can select such authorized officer
for that purpose us he chooses. lie has full
power to protect himself against frauds by
interested parties rs certifying officers, for
he may refuse to make his acknowledgment
before them.
The question We have now before us is
not whether as between these parties the
certificate can be impcached, but whether it
is sufficient in law to authorize the record.
1t states only facts. The deed was ac-
tually acknowledged before notary public.
4 recorder receiving it in its present form,
and not knowing that the certifying officer
was interested in the conveyance, would
certainly be justified in putting it on record.
The decd itself did not carry notice to hlm
OF the supposed disqualification any more
than it did to others. 1t was no part OF his
duty to detect the secret interest of the GER
tlfylng officer. III the instrument was ap-
parently sufficient in form he had nothing
to do but to receive and record it. All this
the grantor knew, or ought to have known.
OBJECT OF TIE RECORD.
Every man is held responsible for the
necessary consequences of his own yolun-
tary acts. This is familiar rule, and as
old as the principles OF common honesty.
A grantor acknowledges deed for the pur-
pose of putting it in & condition for record.
The object Of the record is to give public no.
ticc Of what had been done with the property.
The public are expected to examine and
act upon this evidence. Having voluntarily
acknowledged and delivered his deed, the
grantor is presumed to have voluntarily
consented to its record. He must, there
fore, be charged with all the legitimate con-
sequences of such an act. If his deed is
found on record, apparently executed ac-
cording to the forms CT law and without
anv circumstances of suspicion against it,
the plainest principles of equity would hold
him estopped from setting W. an undls-
closed interest of the officer before whom
he made his acknowledgment, to defeat his
co conveyance, yr as against an innocent puE!-
chaser relying upon the record as the eyi,
dence of his title. But this defence would
be open to him if his acknowledgment were
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