proof, or acknowledgment required by such judge or commissioner, a certificate under the hand and official seal of the clerk of the county, in which such officer resides at the time of taking such proof or acknowledgment, specifying that such officer was duly authorized to take the same, and that the said clerk is well acquainted with the handwriting of such officer, and verily believes that the signature to the said certificate of proof or acknowledgment is genuine. (1 R. S. 759, § 18.) The certificate of the proof or acknowledgment of every conveyance, and the certificate of the genuineness of the signature of any judge or other officer, in the cases where such last mentioned certificate is required, must be recorded with the conveyance so proved or acknowledged; and unless the said certificates be so recorded, neither the record of such conveyance, nor the transcript thereof, shall be read in evidence. (Id. § 20.)

In order that the transcript of a deed can be used in evidence, it must include not only the deed but the certificate of proof or acknowledgment, and the certificate of genuineness when there is one. (Morris v. Keyes, 1 Hill, 540.) The court can thus determine whether the deed was properly proved or acknowledged, and properly recorded. If the proof was defective, and the instrument improperly recorded, it is not notice for any purpose, nor legitimate evidence. It is only when it has been duly recorded, that the record or a transcript is evidence. It is then made primary evidence of the contents of the deed. (Clark v. Noxon, 5 Hill, 36.)

In addition to the officers before mentioned, who are authorized to take the proof and acknowledgment of deeds, there are various others in different parts of the state, possessing the like power by local and special statutes. It is not deemed important to give a reference to these, as they are not of general interest.

The object of the recording laws is not solely to afford notice to subsequent purchasers and incumbrancers of the existence of the conveyance; but to preserve the evidence thereof for the benefit of the parties interested, and their heirs. Besides the facility which they afford to purchasers and others to investigate the title, they preserve the evidence of such title from the contingency of loss or destruction.

It is well calculated to facilitate the search in the public records to have those of the same kind, as far as practicable, inserted in the same book. A proper classification is an economy of time. Hence the statute has provided that different sets of books shall be

provided by the clerks of the several counties for the recording of deeds and mortgages; in one of which sets all conveyances absolute in their terms, and not intended as mortgages, or as securities in the nature of mortgages, must be recorded; and in the other set, such mortgages and securities must be recorded. (1 R. S. 756, § 2.)

A deed conveying real estate, though absolute in its terms, which by any other instrument in writing shall appear to have been intended only as a security in the nature of a mortgage, is considered as a mortgage; and no advantage can be derived by the person for whose benefit it is made, from the recording thereof, unless every writing operating as a defeasance of the same, or explanatory of its being designed to have the effect only of a mortgage or conditional deed, be also recorded therewith, and at the same time. (Id. § 3.) In cases of this kind, both the deed and defeasance should be recorded in the book of mortgages. If the deed is intended only as a mortgage, there can be no good reason why the terms on which it is defeasible should not appear on its face. If, through inadvertence, it is taken as an absolute deed, the holder may comply with the terms of the statute, by making a written defeasance, specifying the conditions on which it was intended to be given, and recording both together in the book of mortgages. If he does this before the rights of any third party have intervened, he will be protected. And if he neglects it, he will only be in the same situation of every other mortgagee who neglects to have his security recorded. (White v. Morse, 1 Paige, 554. Day v. Dunham, 2 John. Ch. 188. James v. Johnson & Mowry, 6 id. 417; S. C. in error, 2 Cowen, 248. Jackson v. Van Valkenbergh, 8 id. 260.)

If a deed absolute on its face, but intended as a security for a debt, be recorded as a deed, it is valid and effectual between the parties as a mortgage; but it is liable to be defeated by a subsequent mortgage duly recorded. (James v. Johnson, supra.) A conveyance and separate defeasance constituting a mortgage, must be recorded together as a mortgage, or they will be void as against a subsequent bona fide purchaser for value. (Brown v. Dean, 3 Wend. 208.) And if an absolute deed be taken, whether the defeasance is by writing or parol, it must be recorded as a mortgage, otherwise it is not protected against subsequent bona fide purchasers or mortgagees. (White v. Moore, supra.) When an absolute deed is intended as a mortgage, a subsequent purchaser with notice

stands in the place of the equitable mortgagee. (Williams v. Thorn, 11 Paige, 459.)

In some cases where it is doubtful in which book the conveyance should be recorded, the provident and cautious conveyancer will advise that it be recorded in both books, as a deed and as a mortgage.

A deed or mortgage improperly recorded, as where the proof of its execution, or the acknowledgment was defective, or insufficient, is not available as notice. (Frost v. Beekman, 1 John. Ch. 300.)

The regularity of the proof or acknowledgment requires that it should be done before a proper officer. The statute forbids any judge of any court from sitting in any court, in any cause, in which he is a party, or in which he is interested, or in which he would be excluded from being a juror, by reason of consanguinity, or affinity to either of the parties. (2 R. S. 275.) If the taking the proof or acknowledgment of a deed be a judicial act, the officer would be incompetent to act if he stood in such relation to the grantees as would render him incompetent as a juror. This question has actually arisen in this state, and it has been decided that the officer who takes the proof or acknowledgment of a deed does not act judicially, but ministerially; and therefore if he be an heir, for example, of the grantor, he is competent to act. (Lynde v. Livingston, 8 Barb. 463; affirmed on appeal, 2 Seld. 422.)

SECTION III.

Of avoiding a Deed, by matter ex post facto.

It was resolved in Pigot's case, (11 Co. 27 a,) that when any deed is altered in a material point, by the plaintiff himself, or by any stranger without the privity of the obligee, be it by interlineation, addition, rasing, or by drawing a pen through a line, or through the midst of any material word, that the deed thereby becomes void. The case before the court in which the decision was made, was that of a bond, in which the question was whether the plaintiff could, after such alteration, maintain an action thereon. The same doctrine is laid down in the Touchstone, page 69.

This doctrine is no doubt applicable to an action on the covenants in a deed. On the principle of Pigot's case, the party in whose favor a covenant was made, cannot maintain an action thereon against the covenantor, if the former has made a material alteration without authority, in the deed which contains the covenant.

If a deed be valid in its inception and be delivered to the grantee, a subsequent erasure, alteration or even cancellation of the instrument, will not reinvest the title in the grantor. (Nicholson v. Halsey, 1 John. Ch. 417. Smith v. McGowan, 3 Barb. 404. Raynor v. Wilson, 6 Hill, 469.

Schutt v. Large, 6 Barb. 373.) If the erasure be made by consent of the parties, it does not invalidate the deed; and the fact may be proved by any person cognizant of it, whether he be the subscribing witness or not. (Penny v. Corwithe, 18 John. 499. Woolley v. Constant, 4 John. 54.)

In commenting on Pigot's case, the chancellor, in Waring v. Smith, (2 Barb. Ch. 133,) said that the modern and more sensible rule is, that an alteration if made by a party claiming to recover on the bond or instrument, or by any person under whom he claims, renders the deed void; but that an alteration by a stranger, without the privity or consent of the party interested, will not render the deed void, when the contents of the same, as it originally existed, can be ascertained.

The chancellor also, in the same case, takes a distinction between deeds which operate to convey the title to property, and those which merely give a right of action. For when the legal title to real estate passes to the grantee by the execution and delivery of a deed, a fraudulent alteration of the deed, by such grantee, will not have the effect to revest the title in the grantor, in cases where the statute of frauds requires a written conveyance to transfer the title. (Doe v. Archbishop of York, 6 East, 86. Mitler v. Mainwaring, Cro. Car. 397. Lewis v. Payn, 8 Cowen, 71.) In this class of cases it is held that the title to the estate which was vested in the grantee by a genuine and valid conveyance, remains in the grantee, although he destroys or makes void the deed itself, by a forgery or a voluntary cancelment of the conveyance which created that title. But the deed itself is avoided thereby; so that the grantee cannot recover upon the covenants therein, nor sustain any suit founded upon the deed as an existing and valid instrument.

But a deed is not destroyed by the tearing off of the seals or other cancellation by a stranger, without the privity or consent of the parties. (Every v. Merwin, 6 Cowen, 360. Rees v. Overbaugh, id. 746.) Nor does any unauthorized and unratified alteration by a stranger have that effect. (Waring v. Smith, supra.)

In case an alteration or erasure appears in a materal part of the deed, sufficient to avoid it, if fraudulently made, the prac

tical question arises as to the party upon whom the burden of proof is cast. If the alteration was made before the execution of the instrument, and noted by the subscribing witness, or by the officer who takes the acknowledgment, it is conclusive evidence that the party so executing or acknowledging the instrument, with the knowledge of the alteration, assented thereto, or ratified it. (Id.) But if the alteration or erasure be material, and is not so noted, either by the witness or the officer taking the acknowledgment or the proof, the party claiming the benefit of such apparent alteration, as part of the instrument, is bound to give some explanation; and the sufficiency of this explanation, when given, is for the consideration of the jury. (Jackson v. Osborn, 2 Wend. 555. Herrick v. Malin, 22 id. 388. Waring v. Smith, supra.) This explanation may be given by oral evidence dehors the deed, or the explanation may appear upon the face of the deed itself.

The conveyancer should endeavor so to draw the instrument that it will be without blemish, after it is executed. If, unfortunately, some alteration in a material part has to be made, and the parties do not call for a re-engrossment of the deed, the alterations or defects should be distinctly specified and noted by the witness or the acknowledging officer.

SECTION IV.

Of the Construction of Deeds.

It is a cardinal rule in the construction of deeds, that it be made on the entire deed, and not merely upon a particular part of it; and therefore every part of a deed ought, if possible, to take effect, and every word to operate. A deed, and especially a deed poll, is always construed most strongly against the grantor. If a deed cannot operate in the manner intended by the parties, the judges will endeavor to construe it in such a way as that it shall operate in some other manner; it being the maxim quando quod ago, non valet ut ago, valeat quantum valere potest. Per Spencer, Ch. J. in Jackson v. Blodget, (16 John. 168;) Same v. Myers, (3 id. 395.)

The intent, when apparent and not repugnant to any rule of law. will control technical terms, for the intent, and not the words, i the essence of every agreement. (Per Kent, Ch. J. in Jackson v. Myers, supra. Same v. Beach, 1 John. Cases, 402.)

If, however, the intention be contrary to the rules of law, it is WILL.-26