McKellar v. Peck

By statute “ no notarial act shall be valid unless the seal of office of such notary be appended.” Pasch. Dig., 4684. Under a statute similar in terms in Illinois the supreme court of that state held: “ We cannot say that the seal is a mere formality that adds nothing to the dignity or solemnity of the instrument. It is enough that the law positively requires it. The propriety of the requisition rests with the legislature. A notary is empowered to take the acknowledgment of a deed and certify the same under his official seal. He has no power to do it in any other manner.” Mason v. Brock, 12 Ill., 277; Booth v. Cook, 20 Ill., 130; Holbrook v. Nichol, 36 Ill., 163; Harding v. Curtis, 45 Ill., 252; Elliott v. Peirsol, 1 Pet., 338. See, also, King v. Russell, 40 Tex., 430. If it is the deed so certified that passes the title, can the certificate or an essential part of it be supplied by parol testimony? “A certificate of acknowledgment is something more than a written instrument. It is the evidence required by law of the execution and acknowledgment of a written instrument of the highest order. Can the requirements of the law be thus qualified or corrected even in a court of equity?” O’Farrell v. Simplot, 4 Iowa, 164, 165; Berry v. Donley, 26 Tex., 745. “If there is a defect in the wife’s conveyance rendering it void at law, it is equally so in equity.” 1 Bishop on the Law of Married Women, § 599. The court below evidently regarded the privy acknowledgment as passing the wife’s title, regarding the notarial certificate only as evi [194] dence of the examination. The notary was permitted to prove the privy examination, and on this testimony the deed of trust was admitted. It is believed that our statute, as construed by our court, means, so far as applied to this case: 1. That the statute enabling married women to convey (P. D., art. 1003) by deed is, as to the mode of conveying their separate property in land and their homestead rights, exclusive, negativing the validity of any other. Berry v. Donley, 26 Tex., 144; Belcher v. Weaver, 46 Tex., 296. 2. That it is the authenticated certificate of privy acknowledgment to the deed that gives it the effect of passing title; it being only deeds so certified that pass title. Statute and cases above; Elliott v. Peirsol, 1 Pet., 338. 3. The certificate concludes the wife’s interest, and cannot be attacked save for fraud; on same principle it should not be aided by parol. Williams v. Powers, 48 Tex., 141; Hartley v. Frosh, 6 Tex., 208. 4. The official seal, under the original statute prescribing the form, and under the statute governing the duties and powers of notaries, is necessary to the validity of the notarial certificate of privy acknowledgment. The absence of the seal renders the certificate invalid. 5. The notarial certificate being the evidence required for the fact of privy examination, it was error to admit parol testimony to such examination. For the error in the court below in giving to the trust deed so proven the effect of conveying the homestead, the judgment must be reversed. There being no testimony sufficiently identifying the homestead, the cause will be remanded for the purpose of ascertaining the boundaries of the homestead of two hundred acres; the plaintiff to recover the excess over the "two hundred acre homestead.