Smith v. . Boyd

We do not concur in the ruling which destroys the assignment of the insolvents, because of the defect in the notary's certificate of acknowledgment. The criticism of its form has a very perceptible and adequate foundation, when the instrument is read by itself, and with no attending circumstances to solve its ambiguity or give meaning to its words. Whether in the light of those circumstances, and applying the admitted canons of construction, it can be read so as to identify the instrument acknowledged, is the question presented for our determination. If the notary had written, instead of the phrase "the same," where it first occurs in the certificate, the words, "the foregoing instrument," his certificate would have been perfect, and identified the paper acknowledged. It is evident from what he did write, that he intended to certify the acknowledgment of some instrument, the parties to which he knew, and that they executed it, and were described in it. His certificate appears upon the same paper with the assignment, and following its signatures and bearing the same date. It names, as the persons acknowledging, the two who apparently executed the assignment. The words, "the same," must have some meaning if any just construction can furnish it, for the writer is supposed to have used them for some purpose, and as vehicles of some idea, and not to have written them uselessly or without intelligent meaning. Unless they refer to the assignment, and serve to identify it, they are wholly without force and must be rejected as idle and superfluous. If they have any meaning at all, they must find it in a reference to the assignment immediately preceding, and which alone answers so much of the description as appears. The words are relative, and imply an antecedent which is missing, and without which they are senseless. The result is an ambiguity which often has to be solved with the aid of surrounding circumstances. That the assignors named, executed and acknowledged some instrument in the presence of the notary the certificate assures us. If that instrument was other and different from the one to which the certificate is appended, the words "the same" would be inexplicable. They would prove as indefinite and uncertain as if the phrase had been "an instrument," or "some instrument," or "a certain instrument," which, indeed, is the construction put upon them by the court below. But they are not so indefinite. They imply a known antecedent which the others do not, and assume that the instrument referred to has been in some manner already identified. That manner was only by identity of names and dates, and position upon the same paper with the certificate, and immediately preceding it. To that instrument, and not to some other indefinite one, the words "the same" must refer, or practically be stricken from the certificate as having no purpose or meaning. That we do not unduly strain the language of the certificate by this construction, or indulge a dangerous laxity in the performance of official duty by acknowledging officers, may be made apparent by reference to one or more precedents in the courts of our own State. In Canandarqua Academy v. McKechnie (19 Hun, 62, 68), the rule was said to be established that a certificate of proof or acknowledgment need not be in the precise language of the statute, but is to be liberally construed, and is enough if it shows a substantial compliance with the statute. In Jackson v. Gumaer (2 Cow. 552), the question arose over the acknowledgment of a mortgage in 1816, under the Revised Laws which required the officer to certify that he knew the person making the acknowledgment to be "the person described in, and who executed" the writing. The officer simply certified that the individual acknowledging was "to me known." On its face, the whole force of the expression established only the fact of a personal acquaintance, and not at all the prescribed fact that he was known to the officer to be the identical person who was described in, and who executed the instrument. The argument was strongly pressed that the omission was fatal. It was urged that the statute was imperative, and its purpose salutary, and aimed at frauds in personating grantors. To which it was replied, that the objection was "hypercritical," and that the phrase "to me known" should be construed as to me known "as a grantor in the deed upon which my certificate is indorsed." Assuredly it is no more difficult to refer the words "the same" in the certificate before us to the paper on which the certificate was indorsed, than to extract from the words "to me known" the further meaning "as grantor" in the deed "upon which my certificate is written." The same construction of the latter phrase was adopted in equity. (Troup v. Haight, Hopk. 239), and again in an action at law. (Duval v. Covenhoven, 4 Wend. 561.) Less pertinent deviations from the statutory language are found in Meriam v. Harsen (4 Edw. 70), and West Point IronCo. v. Rymert (45 N.Y. 703). While we do not underestimate the force of the criticism applied to the certificate before us, we are still of opinion that we ought to construe the ambiguous words in the light of the circumstances, and as referring to the instrument to which the certificate was appended, and as sufficiently identifying it.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.

Judgment reversed.