Henderson v. Ish

McFarland, J., delivered the opinion of the court: This is an attachment bill to attach the lands of A. J. and B. A. Ish, residents of the State of Texas, to satisfy demands against them in favor of the complainant, and to set aside a conveyance of the lands previously made in their name by B. E. Welcker, attorney in fact, upon the ground the certificate of acknowledgment of the execution of the power of attorney, made before a clerk in the [85] State of Texas, is fatally defective, iii failing to show tbe clerk taking tbe acknowledgment was “personally acquainted” with tbe bargainor. Tbis is tbe principal question presented by tbe brief filed in behalf of tbe appellants in tbis case. Tbe defect lias been frequently beld fatal. It is argued, first, tbat tbe form of acknowledgment provided by the Code, in which these words are an essential part, applies only when tbe acknowledgment is made in this state. But this direct question was beld otherwise in Bone & Bro. v. Greenlee, 1 Cold., 29. Again, it is argued tbat tbe defect is cured by tbe act of 1845-46, Code, sec. 2080 [Shannon’s Code, sec. 3757], which enacts that tbe unintentional omission oí words of the certificate by tbe clerk shall not vitiate tbe deed provided tbe substance of tbe authentication, as required by law, is in said certificate. But these words have been beld to be as of substance, and it was directly decided tbat the omission was not cured by tbe act in quést-ion in tbe case of Johnson v. Walton, 1 Sneed, 258. A similar authentication was held defective in Mullins v. Aiken, 2 Heis., 535, 546, 547; and although tbis section is not referred to, its effect must have been considered. See also 3 Head, 486. If tbe complainant had notice of tbe defective deed, it would be of no consequence, as a creditor is not affected by notice of a void' deed. Complainant’s attachment on tbe land, being valid and fixed, tbe purchase by Welcker of B. A. Isb’s share of tbe purchase price cannot affect complainant’s rights. Tbe decree of tbe chancellor will be affirmed.