페이지 이미지
PDF
ePub

Three. A judge of a court of record of the country where the proof or acknowledgment is made; or,

Four Commissioners appointed for such purposes by the governor of the state, pursuant to special statutes; or,

Five. A notary public. 1873—227.

1184. When any of the officers mentioned in the four preceding sections are authorized by law to appoint a deputy, the acknowledgment or proof may be taken by such deputy, in the name of his principal.

1185. The acknowledgment of an instrument must not be taken, unless the officer taking it knows or has satisfactory evidence, on the oath or affirmation of a credible witness, that the person making such acknowledgment is the individual who is described in and who executed the instrument; or, if executed by a corporation, that the person making such acknowledgment is the president or secretary of such corporation, or other person who executed it on its behalf. 1905—603.

1187. A conveyance by a married woman has the same effect as if she were unmarried, and may be acknowledged in the same manner. 1891--137.

1188. An officer taking the acknowledgment of an instrument must indorse thereon or attach thereto a certificate substantially in the forms hereinafter prescribed. 1873—227.

1189. The certificate of acknowledgment, unless it is otherwise in this article provided, must be substantially in the following form: “State of— , county of— , ss. On this day of— , in the year - , before me (here insert name and quality of the officer), personally appeared—, known to me (or proved to me on the oath of_ ) to be the person whose name is subscribed to the within instrument, and acknowledged that he (she or they) executed the same.” Provided, however, that any acknowledgment taken without this state in accordance with the laws of the place where the acknowledgment is made, shall be sufficient in this state; and provided further, that the certificate of the clerk of a court of record of the county or district where such acknowledgment is taken, that the officer certifying to the same is authorized by law so to do, and that the signature of the said officer to such certificate is his true and genuine signature, and that such acknowledgment is taken in accordance with the laws of the place where the same is made, shall be prima facie evidence of the facts stated in the certificate of said clerk. 1897–43.

1190. The certificate of acknowledgment of an instrument executed by a corporation must be substantially in the following form:

State of

,

ss.

County of On this -- day of - in the year --, before me (here insert the name and quality of the officer), personally appeared --, known to me (or proved to me on the oath of —) to be the president (or the sercetary) of the corporation that executed the within instrument (where, however, the instrument is executed in behalf of the corporation by some one other than the president or secretary) insert: known to me (or proved to me on the oath of ) to be the person who executed the within instrument on behalf of the corpor

ation therein named and acknowledged to me that such corporation executed the same. 1905—603.

1192. The certificate of acknowledgment by an attorney in fact, must be substantially in the following form: State of--

County of ?

} ss.

On this -- --day ---, in the year — , before me (here insert the name and quality of the officer), personally appeared --, known to me (or proved to me on the oath of— ) to be the person whose name is subscribed to the within instrument as the attorney in fact of , and acknowledged to me that he subscribed the name of thereto as principal, and his own name as attorney in fact.

1193. Officers taking and certifying acknowledgments, or proof of instruments for record, must authenticate their certificates by affixing thereto their signatures, followed by the names of their offices; also, their seals of office, if by the laws of the state or country where the acknowledgment or proof is taken, or by authority of which they are acting, they are required to have official seals.

1194. The certificate of proof or acknowledgment, if made before a justice of the peace, when used in any county other than that in which he resides, must be accompanied by a certificate under the hand and seal of the clerk of the county in which the justice resides, setting forth that such justice, at the time of taking such proof or acknowledgment, was authorized to take the same, and that the clerk is acquainted with his handwriting, and believes that the signature to the original certificate is genuine.

1195. Proof of the execution of an instrument, when not acknowledged, may be made either:

1. By the party executing it, or either of them; or, 2. By a subscribing witness; or,

3. By other witnesses, in cases mentioned in section eleven hundred and ninety-eight.

1196. If by a subscribing witness, such witness must be personally known to the officer taking the proof to be the person whose name is subscribed to the instrument as a witness, or must be proved to be such by the oath of a credible witness.

1197. The subscribing witness must prove that the person whose name is subscribed to the instrument as a party is the person described in it, and that such person executed it, and that the witness subscribed his name thereto as a witness.

1198. The execution of an instrument may be established by proof of the handwriting of the party and of a subscribing witness, if there is one, in the following cases:

1. When the parties and all the subscribing witnesses are dead; or,

2. When the parties and all the subscribing witnesses are nonresidents of the state; or

3. When the place of their residence is unknown to the party desiring the proof, and cannot be ascertained by the exercise of due diligence; or,

4. When the subscribing witness conceals himself, or cannot be

found by the officer by the exercise of due diligence in attempting to serve the subpoena or attachment; or,

5. In case of the continued failure or refusal of the witness to testify, for the space of one hour, after his appearance.

1199. The evidence taken under the preceding section must satisfactorily prove to the officer the following facts:

One. The existence of one or more of the conditions mentioned therein; and,

Two. That the witness testifying knew the person whose name purports to be subscribed to the instrument as a party, and is well acquainted with his signature, and that it is genuine; and,

Three. That the witness testifying personally knew the person who, subscribed the instrument as a witness, and is well acquainted with his signature, and that it is genuine; and,

Four. The place of residence of the witness. 1873—227.

1200. An officer taking proof of the execution of any instrument must, in his certificate indorsed thereon or attached thereto, set forth all the matters required by law to be done or known by him. or proved before him on the proceeding, together with the names of all the witnesses examined before him, their places of residence respectively, and the substance of their testimony.

1201. Officers authorized to take the proof of instruments are authorized in such proceedings:

1. To administer oaths or affirmations, as prescribed in section two thousand and ninety-three, Code of Civil Procedure;

2. To employ and swear interpreters;

3. To issue subpoenas, as prescribed in section nineteen hundred and eighty-six, Code of Civil Procedure;

4. To punish for contempt, as prescribed in sections nineteen hundred and ninety-one, nineteen hundred and ninety-three, nineteen hundred and ninety-four, Code of Civil Procedure.

The civil damages and forfeiture to the party aggrieved are prescribed in section nineteen hundred and ninety-two, Code of Civil Procedure.

1202. When the acknowledgment or proof of the execution of an instrument is properly made, but defectively certified, any party interested may have an action in the superior court to obtain a judgment correcting the certificate. 1905-604.

1203. Any person interested under an instrument entitled to be proved for record, may insttiute an action in the superior court against the proper parties to obtain a judgment proving such instrument. 1905-604.

1204. A certified copy of the judgment in a proceeding instituted under either of the two preceding sections, showing the proof of the instrument, and attached thereto, entitles such instrument to record, with like effect as if acknowledged.

1205. The legality of the execution, acknowledgment, proof, form, or record of any conveyance or other instrument made before this code goes into effect, executed, acknowledged, proved, or recorded is not affected by anything contained in this chapter, but depends for its validity and legality upon the laws in force when the act was performed.

1206. All conveyances of real property made before this code goes into effect, and acknowledged or proved according to the laws in force at the time of such making and acknowledgment or proof, have the same force as evidence, and may be recorded in the same manner and with the like effect, as conveyances executed and acknowledged in pursuance of this chapter.

1207. Any instrument affecting the title to real property, including any instrument executed by a married woman on or after the first day of July, 1891, which was, previous to the first day of January, 1921, copied into the proper book of record, kept in the office of any county recorder, imparts, after that date, notice of its contents to subsequent purchasers and encumbrancers, notwithstanding any defect, omission, or informality in the execution of the instrument, or in the certificate of acknowledgment thereof, or the absence of any such certificate; but nothing herein affects the rights of purchasers or encumbrancers previous to the taking effect of this act. Duly certified copies of the record of any such instrument may be read in evidence with like effect as copies of an instrument duly acknowledged and recorded; provided, when such copying in the proper book of record occurred within fifteen years prior to the trial of the action, it is shown first that the original instrument was genuine. 1921–94.

ARTICLE IV.

Effect of Recording or the Want Thereof. Section

Section 1213. Record of conveyances, cer- 1217. Unrecorded validation. tified copies.

1218. Recording of copies of in1214. Non-recorded void.

struments affecting title to 1215. Conveyance.

real property. 1216. Revocation, power of attor

ney. 1213. Every conveyance of real property acknowledged or proved and certified and recorded as prescribed by law from the time it is filed with the recorder for record is constructive notice of the contents thereof to subsequent purchasers and mortgagees; and a ce tified copy of any such recorded conveyance may be recorded in any other county and when so recorded the record thereof shall have the same force and effect as though it was of the original conveyance and where such original conveyance has been recorded in any county wherein the property therein mentioned is not situated a certified copy of such recorded conveyance may be recorded in the county where such property is situated with the same force and effect as if the original conveyance had been recorded in such county. 1909278.

1214. Every conveyance of real property, other than a lease for a

not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded, and as against any judgment affecting the title, unless such conveyance shall have been duly recorded prior to the record of notice of action. 1895--50.

1215. The term “conveyance,” as used in sections twelve hundred and thirteen and twelve hundred and fourteen, embraces every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or encumbered, or by which the title to any real property may be affected, except wills.

· 1216. No instrument containing a power to convey or execute instruments affecting real property, which has been recorded, is revoked by any act of the party by whom it was executed, unless the instrument containing such revocation is also acknowledged or proved, certified and recorded, in the same office in which the instrument containing the power was recorded.

1217. An unrecorded instrument is valid as between the parties thereto and those who have notice thereof.

1218. A certified copy of an instrument affecting the title to real property, once recorded, or a certified copy of the record of such instrument may be recorded in any other county, and. when so recorded, the record thereof has the same force and effect as though it was of the original instrument. 1973–335.

CHAPTER V..

Unlawful Transfers. Section

Section 1227. Void instruments, purchases. 1230. Same. 1228. Purchaser's notice.

1231. Other provisions. 1229. Revocation generally.

1227. Every instrument, other than a will, affecting an estate in real property, including every charge upon real property, or upon its rents or profits, made with intent to defraud prior or subsequent purchasers thereof, or encumbrancers thereon, is void as against every purchaser or encumbrancer, for value, of the same property, . or the rents or profits thereof.

1228. No instrument is to be avoided under the last section, in favor of a subsequent purchaser or encumbrancer having notice thereof at the time his purchase was made, or his lien acquired, unless the person in whose favor the instrument was made was privy to the fraud intended.

1229. Where a power to revoke or modify an instrument affecting the title to, or the enjoyment of, an estate in real property, is reserved to the grantor, or given to any other person, a subsequent grant of, or charge upon, the estate, by the person having the power of revocation, in favor of a purchaser or encumbrancer for value, operates as a revocation of the original instrument, to the extent of the power, in favor of such purchaser or encumbrancer.

1230. Where a person having a power of revocation, within the provisions of the last section, is not entitled to execute it until after the time at which he makes such a grant or charge as is described in that section, the power is deemed to be executed as soon as he is entitled to execute it.

1231. Other provisions concerning unlawful transfers are contained in part two, division fourth, of this code, concerning the special relations of debtor and creditor.

« 이전계속 »