Carlisle v. Carlisle , 78 Ala. 542 ( 1885 )

CLOPTON, J.

A conveyance for the alienation of land, when made by a person who is able to write, must, under the statute, be signed at the end, and its execution attested by one witness, who must write his name as a witness. A certificate of acknowledgment, substantially conforming to the provisions of section 2158 of the Code, operates as a compliance with the requisitions on the subject of witnesses. — Code, 1876, §§ 2145, 2146. We have held, that a defective certificate of acknowledgment may, from necessity, operate as a substitute for the formal attestation of a witness, to prevent the instrument being inoperative as a conveyance, because the officer, before whom its execution is acknowledged, imperfectly certifies the facts, from ignorance, mistake, or carelessness. In such cases, the officer making the certificate becomes a witness, and his signature an attestation. — Sharpe v. Orme, 61 Ala. 263; Rogers v. Adams, 66 Ala. 600.

The original deed, on which-the plaintiff relies to show title in himself, has been sent, by order of the Circuit Court, for our inspection. It has no attesting witness. There appears thereon a printed form of a certificate of acknowledgment, with the usual blanks properly filled in the handwriting of the officer; but, from accident or inadvertence, his name is not subscribed thereto. It is contended, that, rather than defeat the operation of the instrument as a conveyance, the officer, under such circumstances, should be regarded as a witness, and the writing his name in the blank in the beginning of the certificate should be considered an attestation, 'and as a compliance with the requisition of the statute on the subject of witnesses.

As the title to real estate can pass only by writing, when not devolved by operation of law, the purpose of the statutes prescribing due and proper solemnities to be observed in the execution of such conveyance, is to guard the security of titles, and impart confidence, by preventing, as far as practicable, fraud, imposition, and clandestine conveyances. The effect of the statutes is to declare inoperative a conveyance of land, executed in any manner other than substantially as provided ; on the settled general rule, that when a statute limits an act to be done in a particular form or manner, every other mode is excluded. — Hendon v. White, 52 Ala. 597.

The requisition of the statute is, the witness must write his name as a witness. The apparent object must be attestation of the execution of the conveyance ; and' the attestation must appear to be complete. When the name of a witness is subscribed to an attestation clause, others dealing in respect to ■ the property have a right to assume that he wrote it as a witness. : The certificate of acknowledgment manifests, on its face, that it is incomplete, and was not intended to be complete without the signature of the officer.. It can not be regarded as an executed attestation. In the cases in which a defective certificate was held to operate as a substitute, the certificate was signed by the officer, and his signature regarded as an attestation. The distinction rests on the difference between an imperfect and an executed attestation.

Moreover, the statutory form of probate of conveyances requires the subscribing witness to make affidavit, that the grantor voluntarily executed the same in his presence, and that he attested it in the- presence of the grantor. — Code, 1876, § 2159. No time is prescribed, within which an acknowledgment must be made. It may be made cotemporaneously, or after signing, o.r even after delivery; and when made after-wards, may haive relation to the time of delivery, no rights of third persons/intervening. The acknowledgment certified by an officer, d the execution in the presence of attesting witnesses, arfi separate and distinct acts. A defective certificate, in order to have operation as a substitute for attestation, should/ be substantially its equivalent. There is no proper attestation, unless the witness writes his name as such; and a defective certificate is not the equivalent, unless signed by the officer with the intent, and for the purpose of certifying. A certificate of acknowledgment, substantially conforming to the /prescribed form, dispenses with the necessity of subscribing /witnesses by force of the statute, and operates as a compliance / with the statutory requisitions on that subject. Without the signature of the officer, the paper can not have the statutory operation, though it may sufficiently state the facts. An official certificate is a statement in writing by a person having an official status, properly authenticated, of facts or acts within his knowledge or authority. A certificate of acknowledgment, not substantially departing from the prescribed form, makes the deed self-proving, if recorded within twelve months from its date. An unsigned statement of the facts can not impart such effect, as it would require parol proof of the handwriting —parol evidence in aid of the certificate. Giving a mere recital of the name of the officer and style of office in the body of the certificate, though written by him, the force of an official signature, would tend to render titles insecure, and induce - litigation, which it is the purpose of the statutes to prevent. For the same reasons, a defective certificate, not signed by the officer, will not answer for an. attestation. For .this purpose, it should be in such condition as that, if the facts had been sufficiently stated, it would have operated as a statutory certificate of acknowledgment. The statement which appears on the deed is not a certificate, defective or otherwise.

The officer w'.ho filled the blanks in the printed form on the deed, has ceased to be such officer, and is unauthorized to make a certificate as. justice of the peace in Pike county, to have effect by relation, as if done at the time he was acting as such officer.

We discover no error in the record.

Affirmed.