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lease or relinquishment of dower is for her benefit, and that it would be prejudicial to her and her husband, to be prevented from disposing of the lands thus conveyed. Any certificate which does not fully recite all these facts, falls short of the requirements of the statute, and is void. Too much care, therefore, cannot be taken by acknowledging officers in this particular. A deed improperly certified can neither be legally recorded, nor read in evidence.
What has been said of a deed is also true of a power of attorney to convey land, or a mortgage incumbering it. All such and similar instruments are required to be acknowledged or proved in the same way; and the acknowledgment or proof to be certified in the same manner. And “no acknowledgment or proof of the execution of any deed or conveyance taken by any officer authorized to take the same, shall entitle such deed or conveyance to be recorded, unless taken in the county, district, place, State, territory, or country, to which the jurisdiction of such officer extends, or within which he is required to reside." [Id., Sec. 45.]
IX. THE RECORDING OF DEEDS AND MORTGAGES IN INDIANA, AND THE EFFECT THEREOF.
The Registry Act of Indiana requires "every conveyance of any real estate in fee simple, or of any interest therein, or for life, or of any future estate, and every lease for more than three years from the making thereof, to be recorded in the Recorder's office of the county where such real estate or leasehold shall be situated ; and every such conveyance or lease not so recorded within ninety days from the execution thereof shall be fraudulent, and void, as against any subsequent purchaser, or mortgagee in good faith, and for a valuable consideration." [R. S., 418, Sec. 25.]
The leading object of recording is to give notice of the existence of the conveyance. Not only does a registry attain that object in law, but it is a cheap and feasible method
of accomplishing the object, and at the same time spreads upon the public records perpetual evidence of title. A subsequent purchaser, with notice of the former deed, acquires no priority over it, yet the proof of that notice is often difficult, and generally uncertain. It were better in all cases to record a deed.
Concerning mortgages, also, it is provided " that every deed or conveyance in the nature of a mortgage of real estate, or of any interest or estate therein, shall be recorded in the Recorder's office of the county wherein the same is situated, within ninety days after the execution thereof; and if not so recorded, the same shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee in good faith, and for a valuable consideration.” [Id., Sec. 26.]
Whenever a deed, absolute on its face, is intended to be made defeasible by a separate defeasance, it is provided that such deed shall not thereby be defeated or affected as against any person other than the maker of the defeasance, or his heirs or devisees, or persons having actual notice thereof, unless the instrument of defeasance shall have been recorded in the record of deeds for the county where the lands lie.” There appears to be no requirement in the Statutes of Indiana requiring different sets of books to be provided in which to record deeds and mortgages; and hence the requirement in New York, that a deed intended as a mortgage shall be recorded as a mortgage, has no application here. [4 Blackf., 522; 5 Id., 123.]
The statute also provides that the certificate or certificates of the proof or acknowledgment, together with any legal certificate of authentication that may be attached, shall go upon the record with the conveyance itself; and that unless the same be recorded with the conveyance, neither the record of the conveyance, nor any transcript thereof, shall be received in evidence. (Id., Sec. 48.]
In reference to deeds and mortgages that are acknowledged
or proved abroad, the following provisions occur : “When any deed, conveyance, mortgage, or other instrument required to be acknowledged or proved in any other county in this State than the one in which the same is required to be recorded, the acknowledgment or proof thereof may be taken by any officer herein authorized to take such acknowledgment or proof, and certified by the Clerk of the Circuit Court of the county in which such officer resides, and attested by the seal of said court, except when such acknowledgment or proof is taken by a Notary Public, or a Mayor of a city, in which case such acknowledgment or proof, certified and attested under the hand and official seal of such Notary or Mayor, shall be sufficient.” (R. S., Sec. 37, 420.]
“All deeds and conveyances, acknowledged or proved out of this State and within the United States, or any of the territories thereof, and brought hither to be recorded, may be acknowledged or proved before any officer authorized to take such ackuowledgment or proof in another State, and certified by the Clerk of any Court of Record of the county in which such officer resides, and attested by the seal of said court, unless such acknowledgment or proof shall have been taken before the Mayor or Recorder of a city, Notary Public, or Commissioner, to take the acknowledgment of deeds, appointed by the Governor of this State ; in which case such acknowledgment or proof shall be certified under the hand of such officer, and attested by his official seal.” [Id., Sec. 38.]
“If the parties executing any deed, conveyance, or instrument which is to be recorded in this State, shall acknowledge the same in any foreign country, the acknowledgment or proof thereof, as aforesaid, shall be certified under the hand and official seal of the Minister, Charge d'Affairs, or Consul of the United States, taking the same.* [Id., Sec. 38.)
* Non-resident land owners may observe in this note the several recording districts or counties in Indiana, in small capital letters, with the county seat annexed, viz: Adams, Decatur ; ALLEN, Fort Wayne; BARTHOLOMEW, Columbus ; BENTON,
EXECUTION OF WILLS OF REAL ESTATE IN INDIANA. All persons, except married women, infants, idiots and persons of unsound mind may devise, by a last will and testament, their lands, tenements and hereditaments, or any interest therein, descendible to their heirs; and the same may be made to any person or corporation capable in law of holding real estate. (R. S., 485, Sec. 1, 2.) And every person capable in law of devising real estate, may bequeath personal property by a last will and testament. (Id., Sec. 7.] The statute requires all wills, whether real or personal estate (except nuncupative wills of personal property) to be in writing, and signed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed in the presence of such testator, by two or more competent witnesses.” [R. S., 491, Sec. 1.]
Oxford; BLACKFORD, Hartford ; Boone, Lebanon ; Brown, Nashville; CARROLL, Delphi; Cass, Logansport ; CLARK, Charlestown; Clay, Bowling Green ; CLINTox, Frankfort ; CRAWFORD, Fredonja ; Davies, Washington ; DEARBORN, Law. renceburgh; DECATUR, Greensburgh; DEKALB, Auburn; DELAWARE, Muncietown; Dubois, Jasper; ELKHART, Goshen; FAYETTE, Connersville; FLOYD, New-Albany; Fountain, Covington; FRANKLIN, Brookville ; Fulton, Rochester; Gibsox, Princeton; Grant, Marion; Green, Bloomfield ; Hamilton, Noblesville; HANCOCK, Greenfield; HARRISON Corydon; HENDRICKS, Danville; Henry; New-Castle; HUNTINGTON, Huntington; JACKSON, Brownstown; Jasper, Renggalaer; JAY, Portland; JEFFERSON, Madison; JENNINGS, Vernon; Johnson, Franklin; Krox, Vincennes; Kosciusko, Warsaw ; LAGRANGE, Lima; Lake, Crown Point; LAPORTE, Laporte; LAWRENCE, Bedford ; Madison, Andersontown; Marion, Indianapolis ; MARSHALL, Plymouth; Martin, Mount Pleasant; Miami, Peru; MONROE, Bloomington; MONTGOMERY, Crawfordsville; MORGAN, Martinsville ; NOBLE, Port Mitchell ; Ohio, Rising Sun; ORANGE, Paoli; Owen, Spencer; PARKE, Rockville ; Perry, Rome; Pike, Petersburgh ; Porter, Valparaiso ; Posey, Montgomery; PULASKI, Winamac; Putnam, Greencastle ; RanDOLPH, Winchester; RICHARDVILLE, Kokomo; RIPLEY, Versailles; Rush, Rushville; Scott, Lexington ; Shelby, Shelbyville; SPENCER, Rockport; STEUBEN, Angola; St. Joseph's, South Bend ; Sullivan, Sullivan ; SWITZERLAND, Veray; TIPPECANOE, Lafayette ; Tipton, Canton; Union, Liberty; VANDERBURGH ; Evansville; VERMILLION, Newport; Vigo, Terrehaute ; WABASH, Wabash; WARREX, Williamsport; WARRICK, Booneville ; WASHINGTON, Salem; Wayne, Centreville; Wells, Bluffton ; WHITE, Monticello; WHITLEY, Columbia. [Cady's Register.)
In comparison with those in New York, the requirements in this behalf are few and easy of performance. And yet an exact observance with such as the Statutes do contain is indispensable to the validity of a will. They are rules which are inflexible and unbending. Thus the form of the will is unimportant, except so far as its perspicacity is concerned ; it may be signed either with the name or mark by the testator, or another in his presence by his direction; and the presence and attestation of two witnesses completes the execution. Legatees when they consent to become witnesses, lose their legacy over and above the amount that they would inherit, if the decedent had died intestate. [2 Blackf., 355.)
The witnesses should be legal witnesses, competent in respect to capacity, character and disinterest. Yet if witnesses are coinpetent at the time of attesting the execution of a will or testament, their subsequent incompetency, from whatever cause it may arise, will not prevent the probate and allowance of the will, if it be otherwise satisfactorily proved.
Codicils to written wills are required to be executed in the same manner as wills.
The provisions relating to the right of the testator to devise and bequeath all his property, subject to the right of dower of his wife if he leave one surviving, and the right of posthumous children to inherit, if not provided for, are substantially the same as in New-York. [Ante 108.] Concerning revocations, it occurs that “no will or testament in writing, nor any clause thereof, except as hereinafter specified, shall be revoked, unless by burning, tearing, cancelling and obliterating the same with the intention of revoking it, by the testator himself, or by some person in his presence, and by his direction and consent, or by some other will, codicil, or other writing, signed, subscribed and attested as required in the foregoing section (that is that which relates to the signing and attestation of wills,) of this article; and when