me on the oath of -] to be the President [or the Secretary] of the corporation that executed the within instrument, and acknowledged to me that such corporation executed the same.

1191. The certificate of acknowledgment by a married woman must be substantially in the following

form:

STATE OF
County of

SS.

On this

day of

in the year

certificate

by married

before Form of me [here insert the name and quality of the officer], of acknowlpersonally appeared known to me [or proved to edgment. me on the oath of] to be the person whose name women. is subscribed to the within instrument, described as a married woman; and upon an examination without the hearing of her husband I made her acquainted with the contents of the instrument, and thereupon she acknowledged to me that she executed the same, and that she does not wish to retract such execution.

NOTE. "There must be a privy examination."-
Kendall vs. Miller, 9 Cal., p. 591. This decision is
based upon the law as it existed prior to the adoption
of the Codes, which required the married woman to be
examined "apart from" her husband. The Court
also say that the certificate was not given by the
proper officer.
The certificate must state that the
contents of the instrument were explained to her,
otherwise it is defective.-Pease vs. Barbiers, 10
Cal., p. 436. The deed of a married woman, not
acknowledged in the manner required by law, is void.
Ewald vs. Corbett, 32 Cal., p. 493. But a substantial
conformity with law is all that is required; hence the
omission of the words "undue influence" from the
acknowledgment, does not render it invalid.—Goodè
vs. Smith, 13 Cal., p. 81. And a certificate which
stated that the wife was made acquainted with the con-
tents of the instrument, but omitted to state that this
was done by the certifying officer, or any particular
person, was held valid in Jansen vs. McCahill, 22 Cal.,
p. 22. Defective deeds and acknowledgments of a mar-
ried woman cannot be reformed in chancery.-Selover
vs. A. R. Commercial Company, 7 Cal., p. 266. For
the act of the married woman must be perfectly free
from restraint or compulsion.-Barrett vs. Tewksbury,
9 Cal., p. 13.

1192. The certificate of acknowledgment by an attorney in fact, must be substantially in the following form:

in fact.

Officers

must affix their signatures.

day of

-, in the year

before

me [here insert the name and quality of the officer,] personally appeared known to me [or proved to me on the oath of -] to be the person whose name is subscribed to the within instrument as the attorney in fact of, and acknowledged to me that he subscribed the name of thereto as principal, and his own name as attorney in fact.

This was held to be sufficient as the acknowledgment of Fowler, the attorney in fact of Sutter.

1193. Officers taking and certifying acknowledgments or proof of instruments for record, must authenticate their certificates by affixing thereto their signatures, followed by the names of their offices; also, their seals of office, if by the laws of the State or country where the acknowledgment or proof is taken, or by authority of which they are acting, they are required to have official seals.

NOTE.-Mott vs. Smith, 16 Cal., p. 533. In Ingoldsby vs. Juan, 12 Cal., p. 564, it was held that a County Clerk may take and certify an acknowledgment to a deed, although he has no seal of office-that the power of the Clerk was never intended to be made to depend upon the fact of his having procured a seal, or of the care with which he preserved it.

of

of Justices

cases.

1194. The certificate of proof or acknowledgment, Certificate if made before a Justice of the Peace, when used in authority any county other than that in which he resides, must in certain be accompanied by a certificate under the hand and seal of the Clerk of the county in which the Justice resides, setting forth that such Justice, at the time of taking such proof or acknowledgment, was authorized to take the same, and that the Clerk is acquainted with his handwriting, and believes that the signature to the original certificate is genuine.

1195. Proof of the execution of an instrument, Proof of when not acknowledged, may be made either:

1. By the party executing it, or either of them; or, 2. By a subscribing witness; or,

3. By other witnesses, in cases mentioned in Section 1198.

execution, how made.

must be

known to officer.

1196. If by a subscribing witness, such witness Witness must be personally known to the officer taking the personally proof to be the person whose name is subscribed to the instrument as a witness, or must be proved to be such by the oath of a credible witness.

must

what.

1197. The subscribing witness must prove that the Witness person whose name is subscribed to the instrument as prove, a party is the person described in it, and that such person executed it, and that the witness subscribed his name thereto as a witness.

1198. The execution of an instrument may be established by proof of the handwriting of the party and of a subscribing witness, if there is one, in the following cases:

1. When the parties and all the subscribing witnesses are dead; or,

2. When the parties and all the subscribing witnesses are non-residents of the State; or,

3. When the place of their residence is unknown to

Handwritbe proved,

ing may

when.

Same.

the party desiring the proof, and cannot be ascertained by the exercise of due diligence; or,

4. When the subscribing witness conceals himself, or cannot be found by the officer by the exercise of due diligence in attempting to serve the subpoena or attachment; or,

5. In case of the continued failure or refusal of the witness to testify, for the space of one hour, after his appearance.

Evidencd must prove, what.

Certificate of proof.

1199. The evidence taken under the preceding section must satisfactorily prove to the officer the following facts:

1. The existence of one or more of the conditions mentioned therein; and,

2. That the witness testifying knew the person whose name purports to be subscribed to the instrument as a party, and is well acquainted with his signature, and that it is genuine; and,

3. That the witness testifying personally knew the person who subscribed the instrument as a witness, and is well acquainted with his signature, and that it is genuine; and,

4. The place of residence of the witness; and,

5. That the witness testifying knew the signature of the person who executed the instrument, and that his signature is genuine.

1200. An officer taking proof of the execution of any instrument must, in his certificate indorsed thereon or attached thereto, set forth all the matters required by law to be done or known by him, or proved before him on the proceeding, together with the names of all the witnesses examined before him, their places of residence respectively, and the substance of their testimony.

NOTE. No particular form is necessary. If to a certificate of proof by a subscribing witness of the execution of a deed the witness adds his signature, and

the officer adds the usual jurat to an affidavit, such
additions do not vitiate the certificate, if, without them,
it shows a substantial compliance with the statute.-
Whitney vs. Arnold, 10 Cal., p. 531.

1201. Officers authorized to take the proof of Officers instruments are authorized in such proceedings:

authorized to do

certain

1. To administer oaths or affirmations, as prescribed things. in Section 2093, CODE OF CIVIL PROCEDURE;

2. To employ and swear interpreters;

3. To issue subpoena, as prescribed in Section 1986, CODE OF CIVIL PROCEDURE;

4. To punish for contempt, as prescribed in Sections 1991, 1993, 1994, CODE OF CIVIL PROCEDURE.

The civil damages and forfeiture to the party aggrieved are prescribed in Section 1992, CODE OF CIVIL PROCEDURE.

instrument

improperly

certified.

1202. When the acknowledgment or proof of the When execution of an instrument is properly made, but is defectively certified, any party interested may have an action in the District Court to obtain a judgment correcting the certificate.

1203. Any person interested under an instrument entitled to be proved for record may institute an action in the District Court against the proper parties to obtain a judgment proving such instrument.

1204. A certified copy of the judgment in a proceeding instituted under either of the two preceding sections, showing the proof of the instrument, and attached thereto, entitles such instrument to record, with like effect as if acknowledged.

party may have action

to correct

error.

In certain parties

cases,

interested

may obtain

judgment of proof of an instrument.

Effect of in such

judgment

action.

ances

made to be

1205. The legality of the execution, acknowledg- Conveyment, proof, form, or record of any conveyance or heretofore other instrument made before this Code goes into governed effect, executed, acknowledged, proved, or recorded existing is not affected by anything contained in this Chapter,

by then laws.