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lands, rents or profits, to a purchaser for a valuable consideration, such subsequent conveyance shall be valid in the same manner, and to the same extent, as if the power of revocation were recited therein, and the intent to revoke the former conveyance expressly declared." [Id., Sec. 4.]

"If a conveyance to a purchaser, under either of the last two preceding sections, shall be made, before the person making the same shall be entitled to execute his power of revocation, it shall nevertheless be valid from the time the power of revocation shall actually vest in such person, in the same manner and to the same extent as if then made." [Id., Sec. 5.]

"No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed, conveyance, contract, agreement, note or memorandum thereof, made in writing, and signed by the party creating, granting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully authorized by writing." [R. S., 329, Sec. 6.]

"The preceding section shall not be construed to affect, in any manner, the power of a testator in the disposition of his real estate by a last will and testament; nor to prevent any trust from arising or being extinguished, by implication or operation of law; nor to prevent, after a fine shall have been levied, the execution of a deed, or other instrument in writing, declaring the uses of such fine." [Id., Sec. 7.]

"Every contract for the leasing for a longer period than one year, or for the sale of any lands, or auy interest in lands, shall be void, unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease is to be made, or by some person thereunto by him lawfully authorized by writing." [Id., Sec. 8.]

"The consideration of any contract or agreement, or note or memorandum thereof, required by the provisions of this chapter to be made in writing, need not be set forth in such written contract, agreement, note, or memorandum, but may be proved by any other legal evidence." [Id., Sec. 9.]

Nothing in this chapter contained shall be construed to abridge the powers of Courts of Equity to compel the specific performance of agreements, in cases of part performance of such agreement." [Id., Sec. 10.]

In addition to the foregoing, it is provided that every conveyance or assignment in writing, or otherwise made with the intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts or demands shall be void, as against the person or persons so hindered, delayed or defrauded, and equally void as against the heirs, successors, personal representatives or assignees of such creditors or purchasers.. So also is every grant or assignment of any existing trust in lands, unless the same be in writing, and lawfully signed and acknowledged or proven. But it is worthy of especial notice, that the question of fraudulent intent in all the foregoing cases, is made by statute a question of fact, and not of law, or the presumption of law. Under the guaranties of the organic law, it may be tried by a jury, before whom all extenuating, and explanatory facts and circumstances may be adduced, in support of the good faith and honesty of every such transaction." [Id., 332, Sec. 4.] For the legal operation of a deed, see ante, 84.

VIII. THE PROOF AND ACKNOWLEDGMENT OF DEEDS AND MORTGAGES IN MICHIGAN.

All deeds, mortgages, releases of mortgaged premises, satisfaction pieces, leases for a term exceeding seven years, declarations of trust, and powers to convey lands, are required to be acknowledged or proven, (if executed within this State,) before some Justice of the Peace, Judge of the Circuit, District,

or Supreme Court of the State of Michigan, or Notary Public, or Master in Chancery; and (if executed in any other State or Territory in the United States) before some Judge, Justice, or other officer, who, in the State where he resides, is authorized to take acknowledgment or proof of deeds by the laws thereof; and (if executed in a foreign country) before the officer authorized in that country to take acknow. ledgments, and also before any Minister Plenipotentiary, Consul, or Charge d'Affairs of the United States, duly appointed and accredited. [Sess. Laws, 1840, 166.]

But in respect to conveyances executed within the State of Michigan, proof by witnesses is regarded as evidence of the execution thereof, secondary to that of the personal acknowledgment of the fact by the grantor. Hence it is provided, that the conveyance shall be acknowledged "by the party making such deed," who is required to appear in person before the acknowledging officer, and declare to him the execution of the instrument. Yet, "When any grantor shall die, or depart from this State, without having acknowledged his deed, the due execution thereof may be proved by the testimony of any subscribing witness thereto, before any Court of Record in this State; and if all the subscribing witnesses to such deed shall also be dead, or out of this State, the same may be proved before any Court of Record of this State, by proving the handwriting of the grantor, or any subscribing witness." [R. S., 259.]

And if any grantor shall refuse to acknowledge his deed on application to a Justice of the Peace residing in the county where the grantor resides, a summons, with a copy of the deed annexed, may be issued to the grantor, requiring him to appear before the Justice, on a day to be therein named, and hear the testimony of the subscribing witnesses to such deed; which summons is required to be served at least seven days before the day therein named for proving the same. At the hearing, or at any adjournment there

of, the execution of the deed may be proved by one or more of the subscribing witnesses, after being duly sworn by such

officer.

This, in general, enables a grantee to get his deed recorded, even though the grantor refuse to acknowledge it. But where the witnesses are dead, or out of the State, and the grantor refuses to acknowledge his deed, the same may be proved before any Court of Record, after first summoning the grantor, by proving the handwriting of both the grantor and one of the subscribing witnesses. But in no case is it competent to prove the execution of a deed by a femme covert. Her rights will not pass, except by a deed duly acknowledged by her before the officer, "on a private examination, separate and apart from her husband, that she executed the deed without fear or compulsion from any one." [Act of 1840, Sec. 4.]

Having seen what proof or acknowledgment is requisite to a conveyance of real estate, we proceed to inquire what evidence is required that the statute has been complied with. This is answered by another statute, which provides that "a certificate of the acknowledgment of the deed, under the hand of the officer taking the same, or of the proof taken as above provided, before any court or Justice of the Peace, by the Clerk of the court, or the Justice respectively, shall be endorsed on the deed, or annexed thereto; and such deed and certificate may be recorded at length, in the registry of deeds for the county where the lands lie; and no deed shall be recorded without such certificate." [R. S., 260.]

The certificate is designed to be the evidence that the requirements of the statute have been observed; but unless the certificate fully set forth the facts required, it is not such evidence as will entitle the deed either to be read in evidence, or recorded. A certificate that a deed or mortgage has been acknowledged or proven according to law, is defective.

It is not for the acknowledging officer or certifying Clerk to adjudge that the law has been complied with, but to set forth the facts, that the public, and all courts having jurisdiction of the subject matter, may see and determine the legality of the proof or acknowledgment.

This may be illustrated by the case of an acknowledgment by a femme covert, or married woman. The private acknowledgment and disavowal of fear or compulsion, are facts essential to the validity of her deed. Neither the register, nor any court, have the right to presume a fact which does not appear in the evidence. Therefore, unless it appear in the certificate, that the private examination was had, and that she then and there acknowledged that she executed the deed freely and without fear or compulsion from any one, the certificate is defective for any purpose whatever. This illustration answers for every requirement in the acknowledgment or proof of a deed, mortgage, or other instrument, relating to lands, which is required to be acknowledged and recorded.

This topic thus far relates to conveyances executed within the State of Michigan. Where they are executed in other States or Territories the rule is different. The statute accredits a deed of land in Michigan owned by a non-resident, if his deed be executed according to the laws of the State where he resides. But proof that a conveyance was so executed must in all cases accompany it, to the end that it may be seen by the court, the register, and the public, that a deed has been so executed. Hence it is provided, that a deed with the certificate of acknowledgment shall be accompanied "with a certificate of the proper County Clerk or certifying officer, under the seal of his office, that the officer taking the acknowledgment of such deed is such officer as by his certificate of acknowledgment he purports to be, duly commissioned and qualified, and that such deed is executed according to the laws of such State or Territory."

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