and convincing, beyond a reasonable doubt. The mere evidence of the party purporting to have made the acknowledgment cannot overcome the officer's certificate, nor will it with slight corroboration.''30 As to the nature of the evidence admissible for this purpose, it may be remarked that the testimony of the officer who took an acknowledgment of a mortgage is competent for the purpose of impeaching his own official certificate.31 § 88. Damages for False Certificate.-An action for damages will lie against an officer who gives a false certificate of acknowledgment of a mortgage or deed of trust. Thus, under the statute in force in Illinois, providing that the party executing an instrument must be personally known to the officer taking the acknowledgment thereof, or must be proved to be such by a credible witness, a clerk of court who takes the acknowledgment of a mortgage and certifies that the mortgagor therein is personally known to him performs a ministerial act (not a judicial act), and is liable to the mortgagee if the certificate is false, as where a stranger, falsely personating the mortgagor, imposed upon the clerk, the latter neglecting to protect himself in the manner pointed out in the statute.32 But where a justice of the peace gives a mortgage to one of his creditors, and attempts to take his own acknowledgment thereto and certify it, the creditor's consequent loss of his debt is caused by an act done by the justice in his individual capacity, not as a justice, and therefore no action I will lie on his official bond.33 § 89. Delivery of a Mortgage.-A statute of Illinois enacts that "livery of seisin shall in no case be necessary for the conveyance of real property; but every mortgage not procured by duress, signed and sealed by the party making the same, the maker or makers being of full age, sound mind, and discovert, shall be sufficient, without livery of seisin, for the mortgaging of any lands, tenements, or hereditaments in this state, so as, to all intents and purposes, absolutely and fully to vest in every mortgagee all such estate or estates as shall be specified in any such mortgage. '34 But "a delivery is an essential part of the execution of a deed, and it will only 30 Brady v. Cole, 164 Ill. 116, 45 27 N. E. Rep. 1091. And see BarN. E. Rep. 438. tels v. People, 45 Ill. App. 306, af 31 McCurley v. Pitner, 65 Ill. firmed 152 Ill. 557. App. 17. 32 People v. Bartels, 138 Ill. 322, 33 People v. Scott, 45 Ill. 182. 34 Rev. Stat. Ill. c. 30, § 1. become operative by and take effect from its delivery. Without delivery it is void. No special form or ceremony is necessary to constitute a sufficient delivery. It may be by acts or words, or both, but something must be said or done showing an intention that the deed shall become operative to pass the title, and that the grantor loses all right of control over it. The delivery need not necessarily be made to the grantee, but may be made to another in his behalf and for his use; but it is indispensable that the grantor shall part with control over the deed and shall not retain a right to reclaim it."'35 The delivery of a mortgage, proved to have been signed and acknowledged, is not established by proof of statements made by the mortgagor that he had bought the land from the mortgagee and had a long time to pay for it, in which statements no reference was made to a mortgage.36 But it seems that proof of the mortgagor's previous anxiety as to the delivery of the mortgage (there being difficulties in the way of its reaching the party for whom it was intended) and subsequent expressions of satisfaction at the accomplishment of the act, is admissible.37 It is not always essential that delivery should be made to the very person named in the instrument as the mortgagee or grantee. Thus, an actual delivery of a deed of trust to the trustee therein named, who has no interest in the trust, is not required, but a delivery to the cestui que trust, together with the notes secured by it, will fully answer the requirements of the law.39 So where, on the dissolution of a partnership, one of the partners assumes the payment of a note of the firm, and executes a mortgage to the payee of the note to secure it, which is also conditioned to indemnify his co-partner against the payment of the note, a delivery of the mortgage to such 35 Hawes v. Hawes, 177 Ill. 409, 53 N. E. Rep. 78. In the case of Nazro v. Ware, 38 Minn. 443, 38 N. W. Rep. 359, it was said: "No particular ceremony is necessary to the delivery of a deed. It may consist in an act without words, or in words without any act; and if in words, it is immaterial whether they are spoken or written. Manual possession of a deed by the grantee is not essential. Whether there has been a delivery is rather a question of fact than of law, depending upon the intent of the grantor to vest an estate in the grantee. If a deed be so disposed of as to evince clearly the intention of the parties that it should take effect as such, it is sufficient." 36 Baker v. Updike, 155 Ill. 54, 39 N. E. Rep. 587. 37 Gunnell v. Cockerill, 84 Ill. 319. 38 Crocker v. Lowenthal, 83 Ill. 579. other partner is sufficient.39 Again, where a mortgage runs to several creditors of the mortgagor, and it has been delivered to one of them for the benefit of all, and none of the creditors is shown ever to have repudiated it, it will not be necessary to prove an acceptance by each of them.40 § 90. Constructive Delivery.-Actual manual delivery of a mortgage from the hands of the mortgagor to those of the mortgagee is not essential; other acts, if accompanied by a clear intention to pass the title from the one to the other, are equally efficacious in establishing a delivery.41 But the mere execution of a mortgage, -and even the recording of it, if not done in pursuance of the directions of the mortgagee or in pursuance of a previous agreement,-does not constitute a delivery of the instrument to the mortgagee, where it is not actually placed in his hands, or in the possession of some one authorized to receive it for him, and where the money loaned is not paid over by such mortgagee. There can be no legal delivery of the mortgage until the mortgagee is willing to accept it, and does accept it, and pay over the consideration.42 Thus, where a party executed a mortgage on real estate to a person who was not personally present nor represented by an agent, and left the same for record, with directions that it should be sent to the mortgagee by mail when recorded, which was done, it was held that there was no delivery until the mortgage was deposited in the mail.43 But where a deed of real estate is executed and placed on record, and the grantee subsequently conveys the estate to another, he will be held to have accepted the delivery of the decd by ratification and will be bound by its covenants.44 Moreover, it is a good and sufficient delivery of a mortgage or deed of trust if the grantor or mortgagor files it for record in pursuance of the mortgagee's directions to that effect, and with the intention of passing the title.45 39 Conwell v. McCowan, 81 Ill. 285. 40 Shelden v. Erskine, 78 Mich. 627, 44 N. W. Rep. 146. 41 Knapstein v. Tinnette, 156 Ill. 322, 40 N. E. Rep. 947, affirming 57 Ill. App. 570. 42 Houfes v. Schultze, 2 Ill. App. 196; Stiles v. Probst, 69 Ill. 385; Kingsbury v. Burnside, 58 Ill. 310; Lanphier v. Desmond, 187 Ill. 370, 58 N. E. Rep. 343, affirming Desmond v. Lanphier, 86 Ill. App. 101. 43 Partridge v. Chapman, 81 ill. 137. 44 Kinney v. Wells, 59 Ill. App. 271. 45 Lawrence v. Lawrence, 181 Ill. 248, 54 N. E. Rep. 918; Capital City Bank v. Hodgin, 24 Fed. Rep. 1; In re Guyer, 69 Iowa, 585, 29 N. W. Rep. 826. $91. Married Women.-The earlier enabling statute in Illinois provided that "any married woman, being above the age of eighteen years, joining with her husband in the execution of any deed, mortgage, conveyance, power of attorney, or other writing of or relating to the sale, conveyance, or other disposition of her lands or real estate, or any interest therein, shall be bound and concluded by the same, in respect to her right, title, claim, or interest in such estate, as if she were sole." But a later statute has removed the last vestige of disability arising out of coverture, in respect to the wife's free power to mortgage and sell her own lands. It is enacted that "a married woman may, in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried, and an attachment or judgment in such action may be enforced by or against her as if she were a single Contracts may be made and liabilities incurred by a wife, and the same enforced against her, to the same extent and in the same manner as if she were unmarried. woman. * A married woman may own, in her own right, real and personal property obtained by descent, gift, or purchase, and manage, sell, and convey the same to the same extent and in the same manner that the husband can property belonging to him."'2 This places a married woman upon a perfect equal 1 Rev. Stat. Ill. c. 30, § 18. On the construction of this statute, and particularly with reference to the necessity of the husband's joining in the conveyance, see Bressler v. Kent, 61 Ill. 426; Barnes v. Ehrman, 74 Ill. 402; 2 Rev. Stat. Ill. c. 68; §§ 1, 6, 9. ity with her husband, so far as concerns the mortgaging or conveyance of her land, and renders it unnecessary to the validity of the deed or mortgage that the husband should join in the conveyance.3 Moreover, under the laws now in force, it is held that a married woman may lawfully mortgage her property for the purpose of securing her husband's debts.4 § 92. Infants.-Although a statute in Illinois makes it essential to the validity of a mortgage that it should be made by a person "of full age," it is undoubtedly a general rule that the mortgage of an infant is not absolutely void, but voidable at his election, and that it may be ratified or confirmed by him when he attains his majority. And where an infant buys land and gives back a purchase-money mortgage thereon, the mortgage, though it may be voidable, is not void; and if, on reaching his majority, he sells and conveys the land, he thereby affirms the mortgage. The law which protects infants "is to be used as a shield, as a means by which he may be protected against inequitable bargains. It is not designed as a means of enabling him to rob others by procuring and retaining their property without paying for it. Therefore if he purchases real estate and receives a deed therefor, and, to secure the consideration, he executes a mortgage upon such land, and after coming of age sells the real estate as his own, his plea of invalidity of the mortgage will be unavailing; that is, he cannot confirm that part of the transaction which is beneficial to him and repudiate that which imposes an obligation." It is also said that the capacity of a party to make a mortgage, so far as it depends on age, is fixed by the law of the jurisdiction wherein the property is situated, and not by that of the owner's domicile. Hence if the mortgage is made in a state where the owner is domiciled, and where it would be invalid on account of his infancy, yet if the age of the mortgagor would be sufficient by the law of the state where the premises are situated, it is a good and valid mortgage.8 § 93. Guardians.-A statute in Illinois provides that "the 3 Edward v. Schoeneman, 104 III. 278. 4 Post v. First Nat. Bank, 38 Ill. App. 259; Field v. Brokaw, 148 Ill. 654, 37 N. E. Rep. 80; Stone v. Billings, 167 Ill. 170, 47 N. E. Rep. 5 Rev. Stat. Ill. c. 30, § 1. 6 See 3 Washb. Real Prop. 559; Burnham v. Kidwell, 113 Ill. 425. 7 Uecker v. Koehn, 21 Nebr. 559, 32 N. W. Rep. 583. 8 Sell v. Miller, 11 Ohio St. 331. |