What is a sufficient Acknowledgment.-Who may take an Acknowledgment. I. WHAT IS SUFFICIENT. 66 certificates of acknowledgment made at the Hawaiian Islands, the one by a person who describes himself, in the body of 1. Where the officer certifies that the the certificate, as "the principal notary parties were known" to him, the word public" of the Islands, and affixes to his "personally" is not necessary. Hopkins signature a similar designation of his offiv. Delaney, 8 Cal. 87; Welch v. Sullivan, cial character, with his notarial seal; and 8 Cal. 187, 512; Henderson v. Grewell, 8 the other by a person who describes himCal. 584. self, in the body of his certificate, as "the 2. The officer must state in his cer- vice consul of the United States of Amertificate the fact of acknowledgment. Al- ica, at Honolulu, Hawaiian Islands," and though a man may not execute the instru- affixes to his signature the designation of ment freely, in point of fact, yet if he his official character as "U. S. Vice Conmake the acknowledgment properly he sul," and the consular seal: held, that the is afterwards estopped to deny it, as execution of the deed was prima facie against subsequent innocent parties.- sufficiently proved to be admitted in eviBryan v. Ramires, 8 Cal. 466; Hender- dence; that the persons before whom the son v. Grewell, 8 Cal. 584. acknowledgments purported to have been 3. An acknowledgment that a party made were shown to be the officers they executed the instrument " freely and vol- represent themselves to be, and were auuntarily" is not essential, but the volun- thorized to take the acknowledgments. tary execution of the instrument must be Mott v. Smith, 16 Cal. 552. presumed from the fact that he acknowledged that he "executed the same." Henderson v. Grewell, 8 Cal. 584. 4. The words "described in and who executed," are not essential in the acknowledgment. Ib. 9. The general designation in the fourth section of the Act of April 16th, 1850, as to conveyances of any notary public or any consul of the United States, embraces notaries and consuls of every grade— whether principal or inferior notary, or consul general or vice consul. Ib. 5. Where to a certificate of proof by a subscribing witness, acknowledging the 10. The certificates of a notary public execution of an instrument, the witness or United States consul, of acknowledgadds his signature, and the officer adds ment of a deed, are prima facie evidence the usual jurat to the affidavit, such ad- of the official character of the person by ditions do not vitiate the certificate if with- whom they are given. Ib. out them it shows a substantial compliance with the requirements of the statute. The signature of the witness and the jurat may be rejected as surplusage. Whitney v. Arnold, 10 Cal. 533. 11. In the United States, certificates of the proof and acknowledgment of deeds, executed in foreign jurisdiction, are generally received as prima facie evidence of both the character of the officers and the genuineness of their signatures. Ib. 1. The purpose of an Acknowledgment. 6. A certificate of acknowledgment by a subscribing witness which shows the identity of the witness produced with the person whose name is subscribed as a witness to the conveyance, such identity resting in the personal knowledge of the officer, and sets forth the proof of the execu- 12. The purpose of a certificate of action, and "that the witness, whose name is knowledgment is to entitle the instrusubscribed to such conveyance as a party ment to be recorded and to be admitted in thereto," executed the same-which is evidence without further proof. Fogarty equivalent to the words, "is the person v. Finlay, 10 Cal. 245. who executed the same "-in the presence of the witness, who thereupon became a subscribing witness, is amply sufficient. Ib. 7. In acknowledgments to deeds, substantial conformity with the statute is sufficient. Goode v. Smith, 13 Cal. 83. 8. Where a deed has attached to, it 2. Who may take an Acknowledgment. 13. The city recorder of San Francisco was authorized by law to take an acknowl Defective Acknowledgments.-Seal.-Damages. edgment of a conveyance by express au- be defective in not having the seal of the thority of the statute. Hopkins v. Delaney, officer taking it, so as to deprive it of reg8 Cal. 87. 14. The certificate of acknowledgment of a notary public to a deed is not an act in pais, which he may exercise by virtue of his office at any time while in office. Bours v. Zachariah, 11 Cal. 292. istration, yet this does not make the deed void; it merely affects its notice to third parties. Hastings v. Vaughn, 5 Cal. 319. 20. An objection that a county clerk has no power to make an acknowledgment because he has no seal of office, is too narrow a construction of the statute. The court of which he is clerk is entitled to a seal, and that is sufficient. His power does not depend upon the fact of his having procured a seal, or the care with which he preserved it. Ingoldsby v. Juan, 12 Cal. 580. 21. A certificate of acknowledgment to II. DEFECTIVE ACKNOWLEDGMENTS. 15. A power of attorney acknowledged before a notary public in New York city, who is not authorized by our statute to take such acknowledgments is insufficient. a deed, with the private seal of the notary, Lord v. Sherman, 2 Cal. 501. dated September 23d, 1852, is good under 16. The supreme court of the United the statute then in force. Stark v. Barrett, States has decided that there was no con- 15 Cal. 372. stitutional prohibition upon States passing 22. A certified copy of a deed from the laws confirming all defective acknowledg- county recorder's office, contained in the ments of conveyances, unless they im- margin of the acknowledgment taken bepaired the obligation of the contracts. fore a notary, and in the place where his Smith v. Morse, 2 Cal. 545. seal is usually found, the words "no seal” 17. A certificate of acknowledgment of thus: [No Seal]-the conclusion of the aca deed, in the words "Before me person- knowledgment being "In witness whereof ally appeared A B, to be the individual, I have hereunto set my hand and affixed &c." is bad, and the record of the convey- my official seal, the day and year," etc. ance on such a certificate imparts no no- The court below ruled out the copy of the tice to third parties. The omission might deed as evidence, on the ground that the as well be supplied by the words "claim- acknowledgment did not have the notary's ing" or "representing," as by "known" or seal: held, that the court erred; that the "proved." There is no averment that the words "no seal," instead of implying that party making the acknowledgment is the there was no seal affixed, were a mere person who executed it upon the personal note by the recorder of the place of the knowledge of the officer. Wolf v. Fo- notarial seal, which he probably had no garty, 6 Cal. 225; Kelsey v. Dunlap, 7 means of copying. Jones v. Martin, 16 Cal. 162; Henderson v. Grewell, 8 Cal. Cal. 166. 584; Fogarty v. Finlay, 10 Cal. 244. 23. A recorder, in certifying to copies 18. Where a notary public, in taking of deeds from his office, need not tranand certifying an acknowledgment to a scribe the notarial seal to the acknowledgmortgage, neglected to state in his certifi- ment-the certificate of acknowledgment cate that the party acknowledging the in this case stating that the notary did same was known to him, or was identified affix his seal. Ib. by the testimony of a witness examined by him for that purpose: held, that such notary was guilty of gross and culpable negligence, and is responsible to the party injured for the damages resulting from such negligence. Fogarty v. Finlay, 10 Cal. 246. 1. Seal. 2. Damages. 24. If a notary does not faithfully perform his duty, but is guilty of gross and culpable negligence, in taking an acknowledgment, he is responsible to the party injured for the damages resulting from his negligence. Fogarty v. Finlay, 10 Cal. 19. Although an acknowledgment may 245. Amendment.-Acknowledgment of a Married Woman. Kendall v. Miller, 9 31. A justice of the peace cannot take and certify the acknowledgment of a married woman. It must be done by a justice 25. A neglect to complete the certifi- | privy examination. cate of acknowledgment is not excused by Cal. 592. the fact that the certificate had been partially filled by the attorney for the grantee. The certificate upon its face is unfinished; the date and the name of the grantor had of the supreme court, judge of a district been inserted, leaving it for the notary to insert his knowledge or the evidence received of the identity of the party making the acknowledgment. Ib. 26. If the notary read the certificate before signing it, this omission must have been known to him; if he did not, he is equally guilty of negligence, for an officer who affixes his official signature and seal to a document, thereby giving to it the character of evidence, without examining it to find whether the facts certified are true, can scarcely be said faithfully to perform his duty according to law. Ib. 3. Amendment. 27. A notary derives his power from the statute. The special duty and authority of taking and certifying acknowledgments is given him. But he acts as an officer with a special authority for each particular case. He is to take an acknowledgment, and certify it, as parts of the same transaction. After taking the acknowledgment and making and delivering the return, his functions cease, and he is discharged from all further authority. He has no power to amend his return Bours v. Zachariah, 11 Cal. 292. III. ACKNOWLEDGMENT RIED WOMAN. court, county judge, or notary public. Kendall v. Miller, 9 Cal. 592; see Goode v. Smith, 13 Cal. 84, post. 32. The certificate of an acknowledgment of a married woman to a deed must state that the contents of the deed were explained to her; otherwise it is defective, and will not pass her interest in the estate. Pease v. Barbiers, 10 Cal. 440. 33. Under our law, no presumption of knowledge of the contents of an instrument, on the part of a married woman, arises from the fact of executing and acknowledging it; the contents must be made known to her. Ib. 34. The words "undue influence" being omitted in the acknowledgment of a wife does not render it invalid. Goode v. Smith, 13 Cal. 84. 35. A justice of the peace can take the acknowledgment of a wife to a deed as well as a notary, and there is no good reason why he should not. Ib. 36. When an acknowledgment is defective in any substantial particular, the femme's title did not pass. Morrison v. Wilson, 13 Cal. 498. 37. Where the jury and court are satisfied that the wife understood English, at the time of executing and acknowledging a note and mortgage upon the homestead, there was no necessity for an interpreter to explain the contents of the mortgage. Pfeiffer v. Riehn, 13 Cal. 647. 38. To the efficacy of a conveyance of her real estate by a married woman, it is OF A MAR- essential that she should join with her husband in its execution, and state, on a private examination at the time, separate and apart from him, and without his hearing, that she executed the same freely, without fear of him, or compulsion, or undue influence from him, and that she does not wish to retract its execution. This private examination-this determination 29. It is not in the power of a court of the will as to the retraction of the exof equity to compel a married woman to ecution are not matters which can be correct an insufficient acknowledgment. delegated to another. Mott v. Smith, 16 Barrett v. Tewksbury, 9 Cal. 15. Cal. 556. 28. The acknowledgment is a necessary part of a conveyance of real estate by a married woman; up to the last moment she may retract the execution of the deed. Selover v. American Russian Comm. Co., 7 Cal. 275. 30. In the acknowledgment of a mar- See ADMISSION, CONVEYANCE, Deed, ried woman to a deed, there must be a MORTGage, Notary. Acquittal.-When an Action will Lie. ACQUITTAL. Board of Health v. Pacific Mail S. S. 4. A possessory action cannot be maintained under Mexican law by a person who has acquired his titles subsequent to the intrusion complained of. Sunol v. Hepburn, 1 Cal. 259. 1. The defendant was convicted of manslaughter upon an indictment charging murder, which verdict was set aside: held, that on a second trial the defendant can plead the former conviction of manslaught- 5. The statute authorizing the granting er as an acquittal of the crime of murder, of a license to keep a gambling house and can only be retried for manslaughter. could not be construed as conferring a People v. Gilmore, 4 Cal. 376; People v. right of action to sue for a gaming debt, Backus, 5 Cal. 278. but protection solely against a criminal 2. Accessories may, by the act of this prosecution. Bryant v. Mead, 1 Cal. 444. State, be indicted and tried with the 6. An action for debt will not lie against principal, or separately, and either may a keeper of a gaming table without libe convicted or acquitted without refer-cense, to recover the amount of license; ence to the previous conviction or ac- the only redress is by indictment. People quittal of the other. People v. Bearss, v. Craycroft, 2 Cal. 244. 10 Cal. 69. See CRIMINAL LAW. w ACTIONS. I. When an Action will Lie. II. Form of Actions. 1. Under the Code. 2. A Party is bound by his Action. 3. Consolidation of Actions. 4. By or against whom Actions will Lie. (b.) Against whom. 5. When Assignable. I. WHEN AN ACTION WILL LIE. 1. An action cannot be maintained against A to recover damages for a trespass to real estate committed by B. Lick v. Stevenson, 1 Cal. 129. 9. The district attorney may at any time after the adjournment of the term of the court maintain an action on a recognizance declared forfeited, and proceed against the bail. People v. Carpenter, 7 Cal. 403. 10. A judgment obtained by publication of summons against a defendant then out of the State in which the judgment is rendered, though it may be enforced against his property in that State, has no binding force in personam, and is a mere nullity when attempted to be enforced in another State. Kane v. Cook, 8 Cal. 455. 11. There is nothing in our statute which divests the right to maintain an action on a judgment at law. Ames v. Hoy, 12 Cal. 19; Stuart v. Lander, 16 Cal. 375. 2. Where a contract is made to convey land by a quit claim deed at a future time, an action cannot be maintained by the vendee against the vendor, on the ground that a third person has intruded upon a portion of the land and the vendee cannot obtain possession, there being no stip-sum of money, whenever a sum liquidated ulation in the contract that the vendee shall be put in possession. Tewksbury v. Laffan, 1 Cal. 130. 3. An action founded upon a statute to recover a penalty, where no penalty is imposed by the statute, cannot be sustained. 12. An action can be maintained at law upon a decree in equity for a specific and made definite by contract or judgment is recoverable. Ames v. Hoy, 12 Cal. 20. 13. Where the owner of a lot neglects for three days after notice from the superintendent of public streets of said city to repair the street in front of his lot, as re Form of Actions.-A Party is bound by his Action.- Consolidation of Actions. quired by statute, the superintendent has | name bought the property of the defendant the right to make a contract for that pur- on execution sale, and left it with an agent pose; and an action will lie in the name for sale, he is not liable for money had of the party performing the work against and received, or in indebitatus assumpsit. the owner of the lot adjacent for the Herrick v. Hodges, 13 Cal. 433. amount. Hart v. Gavin, 12 Cal. 478. 14. Relief from a judgment against an insolvent may be by motion to discharge it, unless there be suspicion of fraud in the release of the insolvent. No formal action is necessary. Imlay v. Carpentier, 13 Cal. 177. II. FORM OF ACTIONS. 1. Under the Code. 15. The code provides that there shall be but one form of civil action, but it does not intend to abolish all distinctions between law and equity as to actions. The innovation extends only to the form of action and the pleadings, while the technicalities of pleading have been dispensed with. Dewitt v. Hays, 2 Cal. 468; Payne v. Treadwell, 16 Cal. 243. 16. The distinction in the form of actions ex delicto and ex contractu was abolished by statute, but the general principles which govern such actions are retained. Lubert v. Chauviteau, 3 Cal. 463. 17. When personal property is tortuously taken, the party aggrieved may 20. A suit to enforce a particular lien, under the act, is a proceeding to enforce all the liens against the property. And an intervention in a suit already pending, if filed within six months, is as much a compliance with the act as an original suit. Mars v. McKay, 14 Cal. 129. 21. Proceedings for the settlement of an estate and matters connected therewith are not civil actions within the meaning of sections 18 to 20 of the civil code. Estate of Scott, 15 Cal. 221. See COMPLAINT, PLEADINGS. 2. A Party is bound by his Action. 22. If an action be improperly commenced, the party bringing it having obtained the benefit, cannot avoid the responsibility he may have thus incurred by pleading his own misfeasance. Turner v. Billagram, 2 Cal. 522. 3. Consolidation of Actions. 23. The law will not tolerate a division waive the action in tort, and sue in as- of a joint right of action into several acsumpsit for the value of the property. tions. Nightingale v. Scannell, 6 Cal. Fratt v. Clark, 12 Cal. 90. 509. 24. A defendant shall not be harassed with several suits for the same matter at the same time; the pendency of one suit may be pleaded in abatement of the other. Seligman v. Kalkman, 8 Cal. 216. 25. It often happens that a party has his election to pursue one of two or more remedies, but he should not pursue several at one and the same time. Ib. 217. 18. An action to recover a judgment against an administrator, for money embezzled by his intestate, pending which a bill in equity was filed to recover the property bought with the money, and prosecuted to a decree after judgment was taken at law for the amount, evidences no such distinct and deliberate choice to take the general claim on the estate for money, in lieu of the claim on this property, as to bar 26. A creditor has not the right to asplaintiff from prosecuting his equitable sign a debt in parcels, and thus by splitWells v. Robinson, 12 Cal. 142.ting up the cause of action, subject the 19. Where one having a claim to collect debtor to the costs and expenses of more agreed with another to take his claim suits than the parties originally contemagainst the common debtor and treat it as plated. Marziou v. Pioche, 8 Cal. 536. his own in any suit brought for the debt, costs, and expenses to be shared pro rata, and afterwards prosecuted both claims to judgment in his own name, and in his own claim. |