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proved by a subscribing witness other than the grantor. An acknowledgment is not a judicial act, and the officer taking it is not debarred from acting by the fact, that he is related to the person making the acknowledgment. The history of the law of proving deeds is referred to in many cases.5

Deed by Attorney. When a deed is executed by an attorney he is the party executing it, and he may make the acknowledgment.R Deed of Public Officer. An official instrument by a referee or judge proves itself without acknowledgment. In Chamberlain v. Taylor, a deed was executed by a county judge of the county in which the land was sold, under his hand and seal, pursuant to chapter 298, Laws of 1850, but it was followed by no certificate of acknowledgment. It was held that though the deed was followed by no certificate of acknowledgment it was entitled to be recorded."

Subscribing Witness. When the conveyance is proved by a subscribing witness, his residence must be stated in the certificate. Acknowledgment by Corporation. The requirements of an acknowledament by a corporation are now for the first time set forth in this act. As no form of a certificate of acknowledgment is contained, in this or any other law of the State, when such acknowledgment is that of a natural person, the form prescribed for a corporate acknowledgment is not without interest in all cases.

3 Id., supra.

4 Lynch v. Livingston, 6 N. Y. 422; Remington Paper Co. v. O'Dougherty, 81 id. 474, 483. And he must

not be a party. Armstrong Combs, 15 App. Div. 246.

V.

5 Van Cortlandt V. Tozer, 17 Wend. 338; affd., 20 id. 423; Lynch v. Livingston, 8 Barb. 463.

6 Lovett v. Steam Saw Association, 6 Paige, 54; Johnson v. Bush, 3 Barb. Ch. 207.

7 King v. Post, 12 N. Y. St. Rep. 575; Chamberlain v. Taylor, 36 Hun, 24, 38.

88 304, Real Prop. Law.

9 Infra, § 309, Real Pro. Law.

§ 293. Recording of conveyances heretofore acknowledged or proved. A conveyance of real property, within the state, heretofore executed, and heretofore acknowledged or proved, and certified, so as to be entitled to be read in evidence, or recorded, under the laws in force at the time when so acknowledged or proved, but which has not been recorded is entitled to be read in evidence, and recorded in the same. manner, and with the like effect, as if this chapter had not been passed. If heretofore executed, but not proved or acknowledged, it may be proved or acknowledged in the same manner as conveyances hereafter executed and with like effect.

Formerly section 243, Real Property Law of 1896, chapter XLVI, General Laws:

§ 243. Recording of conveyances heretofore acknowledged or proved.-A conveyance of real property, within the state, heretofore executed, and heretofore acknowledged or proved, and certified, so as to be entitled to be read in evidence, or recorded, under the laws in force at the time when so acknowledged or proved, but which has not been recorded is entitled to be read in evidence, and recorded in the same manner, and with the like effect, as if this chapter had not been passed. If heretofore executed, but not proved or acknowledged, it may be proved or acknowledged in the same manner as conveyances hereafter executed and with like effect.10 Section 243 was formerly 1 Revised Statutes, 760, sections 22, 23:

22. Every conveyance of any real estate within this state, heretofore executed, and heretofore acknowledged or proved and certified, in such manner as to be entitled to be read in evidence, or recorded, under the laws now in force, but which has not been so recorded, shall be entitled to be read in evidence, in all courts, and to be recorded in the proper office, in the same manner, and with the like effect, as if this chapter had not been passed.11

23. Every such conveyance, not already proved or acknowledged, may be proved or acknowledged, in the same manner as conveyances hereafter executed, and when so proved, acknowledged or recorded, shall have the like effect.12

Note on Section 293, Supra. Similar provisions were contained in an earlier law of 1813.13

10 Repealed by Real Prop. Law of 1909, § 640, art. 14, chap. 50, Consolidated Laws. See below, § 460. 11 Repealed, chap. 547, Laws of

12 Repealed, chap. 547, Laws of 1896.

13 1 R. L. 369.

Conveyances, how made Evidence. The Code of Civil Procedure also regulates the manner in which deeds become evidential or prove themselves: "A conveyance acknowledged or proved, and certified in the manner prescribed by law to entitle it to be recorded in the county where it is offered, is evidence without further proof thereof." So a record of a conveyance, or a transcript thereof duly certified, is evidence. But a certificate of acknowledgment, or a transcript thereof, is not conclusive, and the effect thereof may be contested and rebutted. If the conveyance is proved by an interested or incompetent witness it cannot be received in evidence until otherwise proved.14

14 §§ 935, 936; McKay v. Lasher, 121 N. Y. 477; Mut. Life Ins. Co. v. Corey, 135 id. 326.

§ 294. Recording executory contracts and powers of attorney. An executory contract for the sale or purchase of real property, or an instrument containing a power to convey real property, as the agent or attorney for the owner of the property, acknowledged or proved, and certified, in the manner to entitle a conveyance to be recorded, may be recorded by the recording officer of any county in which any of the real property to which it relates it situated.

Formerly section 244, Real Property Law of 1896, chapter XLVI, General Laws:

8 244. Recording executory contracts and powers of attorney.-An executory contract for the sale or purchase of real property, or an instrument containing a power to convey real property, as the agent or attorney for the owner of the property, acknowledged or proved, and certified, in the manner to entitle a conveyance to be recorded, may be recorded by the recording officer of any county in which any of the real property to which it relates is situated.15

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39. The preceding section shall not be construed to extend to a letter of attorney, or other instrument containing a power to convey lands as agent or attorney for the owner of such lands; but every such letter or instrument, and every executory contract for the sale or purchase of lands, when proved or acknowledged, in the manner prescribed in this Chapter, may be recorded in the clerk's office of any county, in which any real estate, to which such power or contract relates, may be situated; and when so proved or acknowledged, and the record thereof when recorded, or the transcript of such record, may be read in evidence, in the same manner, and with the like effect, as a conveyance recorded in such county.1 16

Executory Contract of Sale. The record of an executory contract of sale of land is ineffectual, except to preserve evidence; it is not constructive notice to purchasers, and an action cannot be maintained to cancel it as a cloud on the title,17 except by virtue of a statute.18

Mechanics' Liens. Chapter 49 of the General Laws of 1897 in relation to liens required executory contracts, in reference to cer132; cf. Beman v. Douglas, 1 App. Div. 169; Drew v. Duncan, 11 How. Pr. 279.

15 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

16 Repealed, chap. 547, Laws of 1896.

17 Boyd v. Schlesinger, 59 N. Y. 301; Washburn v. Burnham, 63 id.

18 Chap. 530, Laws of 1880, now § 276, The Real Prop. Law, which

see.

tain fixtures, to be recorded, in order to be valid against mortgagees of the realty.19 These provisions are now contained in the Consolidated Personal Property Law.20

Power. To enable a power of attorney, or a power to convey, to be recorded, it must be acknowledged in due form of law.21

Power of Attorney. A duly certified transcript of a recorded power of attorney is competent as evidence.22

19 Chap. 418, Laws of 1897; Hirsch v. Graves Elevator Co., 24 Misc. Rep. 472.

20 § 62, chap. 41, Consolidated Laws.

21 Paolillo v. Faber, 56 App. Div.

241.

22 Lerche v. Brasher, 104 N. Y. 157.

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