Breene v. McCrary & Co.

BRICKELL, C. J. Sections one to eight, inclusive, of the Code, are devoted to a definition of words and terms as used in the Code. Among others, it is declared that “ signature,” or “ subscription,” when used in the Code, includes mark, where the person cannot write, his name being written near it, and 155 witnessed by a person wbo writes bis own name as a witness. We shall not now express any opinion as to the effect of signatures or subscriptions' made by a mark, and not attested, when signature or subscription is required, or whether invalidity is to be imputed to them, or whether by other evidence of execution the want of an attestation can be supplied. The instrument in question here is a mortgage of real and personal property, and its execution was acknowledged before an officer having authority to take the acknowledgment, who duly certifies it. It was on this certificate properly recorded. The acknowledgment and certificate supplied the want of a witness to the signature. This is certainly true, so far as the instrument operates as a conveyance of real property, by the express terms of the statute. R. C. § 1536. The equity of the statute extends to a conveyance of real and personal property. Otherwise such conveyance as to the lands would be good, when executed by a party who cannot write, and whose mark must be attested Toy two witnesses; and invalid as to the personal property, the title to which may pass by parol, or by a writing signed by a party incapable of writing, his mark being attested by one witness only. This would be the result of statutes, which, when construed together, require greater formality and ceremony in passing the title to real property, than in passing the title to personal property. The acknowledgment dispensed with the necessity of an attesting witness, if one was necessary under the first section of the Code. The rulings of the circuit court were adverse to this view, and the judgment is reversed and the cause remanded.