Real Estate - Deeds
( Originally Published 1911 )
New York form of deed.—There are various forms of deeds used in the different states. In the State of New York there is in use, by legislative enactment, a short form of deed which contains all the elements, clearly expressed, that are in the long and verbose form. This short form, which is reproduced below, is the exact equivalent of the instruments in use in the other states.
THIS INDENTURE, made the day of in the year nineteen hundred and
BETWEEN part.. of the second part: . . ................. . ..
WITNESSETH, that the said part.. of the first part, in consideration of the sum of dollar.., lawful money of the United States, paid by the said part.. of the second part, do.. hereby grant and release unto the said part.. of the second part, ............................ ..........heirs and assigns forever, ALL TOGETHER with the appurtenances and all the estate and rights of the part.. of the first part in and to said premises.
TO HAVE AND TO HOLD the above granted premises unto the said part.. of the second part, heirs and assigns forever.
IN WITNESS WHEREOF, the said part..of the first part ha.. here-unto set hand.. and seal.. the day and year first above written.
IN THE PRESENCE OF
STATE OF NEW YORK, COUNTY OF ss.:
On this day of in the year nineteen hundred and .... before me came
........................................................................ to me known to be the individual.. described in, and who executed the foregoing instrument, and acknowledged that ..he.. executed the same.
An analysis of this instrument will be useful and interesting.
"This indenture."—In ancient times it was customary to prepare instruments in duplicate upon the same sheet, to tear them apart so that the edge would be indented ; and the authenticity of the instrument was proved by bringing the torn sheets together and showing that the two counterparts had been torn from the same sheet. Thus has arisen the custom of calling formal and permanent instruments "indentures," even though they are no longer prepared in duplicate.
The date.—The date is not a necessary element but, as in contracts, it is a convenient memorandum. It is useful because when instruments are found of record, if the time of record be later than the date of the instrument, the presumption is that the instrument was delivered on the day of its date, if nothing else can be found out about it.
The parties.—The person from whom the title goes is usually designated "the grantor." He may be known as "the party of the first part"; any designation is appropriate so long as he be identified as the person from whom the title is to flow. The other party is usually known as "the grantee," sometimes as "the party of the second part."
Consideration.—Consideration may be within the intent of the law, either good consideration or valuable consideration. Without the passing of anything of value or the change in financial condition of either of the parties, one party may be moved by a desire, by reason of blood relationship or his natural love and affection, to transfer to the other valuable property. If there be such relation, it is said to be "good consideration." A good consideration will support a transfer as against everyone except creditors of the transferrer whose claims are in existence and valid at the time of the transfer. Creditors who acquire their claims after a transfer supported by a good consideration cannot attack the transfer. A consideration such as blood relationship or natural love and affection has been called by the courts not only "good," but sometimes as "meritorious"; a man may be considered to be under obligation in times of prosperity to place his family in a safe position where their livelihood will not depend upon the uncertainties of his business.
But if there be another kind of consideration, which is known in the law as "valuable consideration," then the transfer is safe in the hands of the transferee as against any attack. Valuable consideration may be the transfer of money or any other thing of value. Any-thing which causes one person to change his financial condition either presently or potentially in favor of or toward another is valuable consideration; money, barter or exchange, an enforceable promise, the acceptance of security—all are valuable considerations.
It is not necessary that the instrument shall set forth the consideration. It is well that it shall say that there is consideration, as instruments, although delivered and recorded, if they be actually without consideration, can be attacked by the creditors of the grantor as a fraud upon their rights ; and if it be shown that the grantee gave no consideration and was aware of the intended fraud upon the creditors, the conveyance will be set aside.
Consideration may be void by reason of public policy. A conveyance against public policy would be a wagering contract, a transfer as part of a lottery scheme, the obtaining of property by fraudulent devise or fraudulent representation, by duress or force, or anything of that sort which the law frowns upon.
If a deed express consideration, then it is upon him who attacks the instrument to rebut the presumption of the truth of the statement of the deed. For that reason an expression of consideration is not only useful, but important. If in the examination of title one finds a deed which does not express consideration, it may lead to the inquiry whether it was or was not a voluntary conveyance without consideration; and if one were to learn that such a conveyance was voluntary, and executed without consideration, it might lead to complications and possible rejection of the title. Especially is this true in deeds from fiduciaries or persons acting in a representative capacity. Fiduciaries necessarily seldom have authority to give away the property over which they have power. Their power usually is to dispose of the property for valuable consideration and most frequently for money consideration only. A trustee or executor or attorney seldom has power to exchange property or to barter it ; and a conveyance made by a fiduciary or representative who has not power to do anything but convey for valuable consideration, which does not state a valuable consideration, will be questioned at all times in the future whenever it is seen of record, and the question will be raised whether or not there was adequate consideration.
Nominal consideration.—The consideration expressed in a deed need not be the true or full expression of the consideration. A deed may be made upon a valuable consideration, but the parties may not desire to disclose to everyone resorting to the records the extent of that valuable consideration, and the expedient is resorted to, in cases of that sort, of expressing a nominal consideration, i. e., a sum less than the amount actually paid. It may be expressed as "one dollar," "one dollar and other valuable consideration," "one hundred dollars," "one hundred dollars and other valuable consideration ;" or any other nominal expression may be used. Where property is of very considerable value even "ten thousand dollars" may be known to be a nominal sum and will then hide the true consideration. Conveyances of that sort would not import that no consideration passed, but that an actual valuable consideration did pass.
When dealing with a fiduciary or representative another principle applies. A man may deal in his own behalf and with his own property for any consideration which pleases him. So long as there is consideration, he is accountable to no one. But a fiduciary or representative is called upon not only to obtain consideration but to see that it is adequate consideration, and a deed by a fiduciary should express the full consideration or, if a nominal consideration be expressed, there should accompany the deed such a declaration of the true consideration that if in future the question is raised whether the consideration of the conveyance was or was not adequate, the evidence may be not only in written form but in recordable form setting forth what was the actual money which passed.
Consideration imported by seal.—While it is important that a deed should express consideration, there is another way in which the presumption of consideration may be raised, and that is by executing the instrument under the formality of a seal. At common law, before modified by modern statutes, a seal conclusively presumed that the instrument was with consideration. That was a mere artificial rule, and as in modern times we are breaking away from mere technicalities and getting down to actualities, the modern statutory rule is that a seal imports consideration, so that the one who claims as against a sealed instrument must rebut the presumption of the instrument; but if he can rebut it, the seal does not help the claim under the instrument. It merely shifts the burden of proof from him who asserts title under the instrument to the one who attacks it.
Granting clause.—"Doth hereby grant and re-lease unto the said party of the second part, his heirs and assigns forever." The important part of the instrument is that part by which the title is transferred from grantor to grantee. The title which is conveyed is mentioned in the granting clause, and unless expressly limited in some other part of the instrument, the granting clause will control every other part of the instrument as to the quality of title conveyed. If it is intended to convey anything less than a fee simple absolute, care should be taken to modify the granting clause or the clause which comes after the description, known as the habendum, the principle being that unless the contrary appears, every instrument will be considered to transfer all the title which the grantor has or has power to convey. That principle. is modified only where a grantor has a personal or individual interest, and also has power to convey in a representative or fiduciary capacity. In such case his conveyance may be considered to convey only his individual interest, unless he expressly states in the instrument that he conveys in his representative capacity.
Description.—A description by which the property may be identified with common certainty is sufficient, but it is usual to be more particular than that in a deed. Unlike a contract, a deed remains testimony of the transfer forever. It must be construed not only by the parties to the instrument itself, but by those who come after; and we owe it to posterity to leave behind us clearly defined and dependable descriptions of the subject-matter of conveyances.
Descriptions in deeds may be divided into two classes, descriptions by metes and bounds, and descriptions by reference to maps or monuments. A description by metes and bounds is one which can be ascertained and the property identified with exactness by resorting only to the recorded description and definite monuments. A description which reads: "Beginning at a point on the southerly side of One Hundredth street, distant 25 feet westerly from the westerly side of Eighth Avenue" begins at a definite point which anyone with instruments of precision and knowledge of the location of the monument at the corner of Eighth Avenue and One Hundredth street can definitely locate. Assuming that point of beginning has been found, if the description then proceeds : "running thence southerly, parallel with the westerly side of Eighth avenue 100 feet 11 inches to the center line of the block," it has gone from the point of beginning in a definite direction, i. e., parallel with a known Avenue, a definite distance i. e., 100 feet and 11 inches to another definite monument i. e., the center line of the block. And if the description then reads : "thence westerly, parallel with One Hundredth street, 25 feet; and thence northerly parallel with the westerly side of Eighth avenue 100 feet and 11 inches to the southerly side of One Hundredth street; and thence easterly along the southerly side of One Hundredth street to the point of beginning," that is a definite description, which, the point of beginning having been ascertained proceeds by its metes—i. e., its measures—and its bounds,—i. e., the controlling direction of its lines absolutely and definitely ascertainable on the ground. That is a simple description by metes and bounds. A description by metes and bounds may be as long and complicated as is necessary to describe a large farm of many hundred acres but, so long as it begins at a definite place and runs by some surveyor's measures, if the place of be-ginning can be definitely laid down without resorting to anything else, so long it remains a purely metes and bounds description.
A description by natural monuments is one which depends not only on metes and bounds but is controlled by natural monuments and cannot be ascertained except by a knowledge of matters of geography or topography outside the recorded description. A description which reads : "Beginning on the side of the road running from Westchester to Yonkers, at the northwest corner of the farm of John Smith, and thence southerly along John Smith's farm to a rock at the corner of Jones's farm, and thence westerly along Jones's farm to a blazed tree at Robinson's barn—etc., is a description which depends entirely for its identity upon matters outside of the record title to the property which is under investigation, and is controlled not by the distances stated, but by the natural monuments. Descriptions of that sort are frequent, and if the property is capable of identification by resorting to the ground and finding the natural monuments, it is sufficient. One hundred years from now it may be very troublesome to construe and in order to identify the property it may be necessary to examine the title to all the surrounding property, and make surveys and topographical maps of all the surroundings; but if, in accordance with all known methods which an engineer may suggest, it can be ascertained in any dependable way what was the subject of that conveyance, it is a valid conveyance, and will convey the property therein described.
A description which is absolute in its metes and bounds is the one extreme; a description which depends entirely upon monuments, natural or artificial, is the other extreme ; and between these there are many descriptions which partake of the character of both.
It helps to identify the property to be conveyed if reference be made to other conveyances or to the maps; after a description by metes and bounds, the deed may recite that this is the same property which was conveyed to the seller by a certain deed, citing it by its parties, its date and place of record. If then a mistake has been made in copying the description from the other deed, the mistake will correct itself by reference to the deed mentioned.
Uncertainty in descriptions.--If a description be so indefinite and uncertain that the property, at the time the conveyance is made, be incapable of identification, then the entire instrument is void for uncertainty. If a deed convey, "One of many houses" owned by the seller, it is incapable of identification, and would be void for uncertainty in describing the subject-matter.
Ambiguity in descriptions.—There is a very wide space between mere ambiguity and absolute uncertainty. If a description be ambiguous, it does not necessarily follow that it is void for uncertainty. A deed may be exceedingly ambiguous on its face, and still capable of identification, for instance, it may convey "the most easterly of the three houses," owned by the seller on One Hundredth street, and on its face that would be an ambiguous instrument, but if it can be ascertained that the seller owns numbers 2, 4 and 6, West One Hundredth street, the subject-matter is capable of identification and the deed is not void for uncertainty. That leads to the principle that if there be patent ambiguity in an instrument, it is only fair in the attempt to support the transaction to resort to any means outside of the instrument to seek identification of the subject-matter.
Inconsistent descriptions.—If a description consists of several elements which are inconsistent in them-selves, resort may be had to evidence outside the instrument to ascertain the intention of the parties. Such a description would be, "The most easterly house on the southerly side of One Hundredth street of the three houses owned by Jones," followed by a description by metes and bounds describing a house in another block. There are two descriptions, either of which may be a complete description and capable of identification, but they are inconsistent with each other, and it is competent to inquire outside the record what was the real intent of the parties. Sometimes ambiguity may be solved by reference to the natural situation of the property.
There is no ambiguity, however, in a description by metes and bounds which is referred to natural monuments; the natural monuments control the metes and bounds. If a description begin at a definite point and go thence one hundred feet to an oak tree, and if the distance from the definite point to the oak tree be more or less than one hundred feet, the distance will have to give way to the monument which controls ; and there would be no ambiguity in the instrument, because, by legal construction of the instrument, its intent is definite. If the instrument be unambiguous on its face, it must be construed by itself, and it is improper to seek evidence outside of the record as to what was the intention of the parties. In dealing with the instruments which have been placed upon the public record, no matter what have been the mistakes or ambiguities or misunderstandings between the parties, those who come after them are secure as against any claim that there was an ambiguity or misunderstanding between the parties. A very distinct line is drawn between latent ambiguity and patent ambiguity.
Appurtenances.—The property is to pass as it is described, "with the appurtenances." Appurtenances are those things which depend upon and are part of the real property, although not contained within the described bounds. The right to keep a wall on a neighbor's lot is an appurtenance. The right to travel over a neighbor's field to reach the highway is an appurtenance. As matter of legal construction appurtenances go with the land, whether specifically conveyed or not. The clause, "together with the appurtenances and all the estate and right of the party of the first part in and to said premises" is rather rhetorical than useful. The property would be conveyed just as effectually without that sentence.
Habendum.—The habendum of the deed, which follows the description, may limit the quality of the estate conveyed by the granting clause. It is expressed in formal language, the last vestige of really formal language in the instrument : "To Have and To Hold the above granted premises unto the said party of the second part, his heirs and assigns forever." Our present system of land holding is traceable back to the feudal system; and to understand the real significance of this clause, we must go back to . the time when ownership of land was not an absolute ownership, but was a mere "holding" of the land from the feudal overlord. Only in modern times was it appropriate to say, "Unto the party of the second part, his heirs and assigns forever."
There should be a clear expression of what it is intended to convey. If only a life estate is being granted, this clause should read: "To have and to hold the above granted premises unto the said party of the second part, for and during the term of his natural life." Indeed if the conveyance were carefully drawn, the quality of estate would be limited both in the granting clause and in the habendum. If the property were being conveyed upon trusts, after granting the property to the grantee, his successors or assigns, the deed should say: "To have and to hold the above granted premises unto the party of the second part, his successors and assigns forever, upon trust, however, to and for the following uses," and then set forth upon what trust or confidence the property was conveyed to the trustee.
Bargain and sale deed.—The form of deed under consideration then calls to witness the signature and seal of the party of the first part. That completes a deed of bargain and sale, and it would be a perfectly efficient deed to give under a contract which did, not specifically require any specific covenants to accompany the grant.
Quit claim deed.—Another short form of deed is a quit claim deed, which is exactly similar in form to a bargain and sale deed, except that in place of the words used being, "grant and release," they are "remise, release and quit claim." A quit claim deed is just as efficient to convey the entire estate of the grantor as is a bargain and sale deed, but it is more properly used for the purpose of releasing some claim upon the property, rather than the entire estate.
Bargain and sale deed with covenants.—If the grantee under an instrument desires not only a present transfer, but some other or further collateral assurance with relation to the estate conveyed or the character of title which the grantor or transferrer has, it is appropriate and usual that there shall be such collateral assurances in the instrument, and they are known as covenants. A deed of bargain and sale may contain a covenant by which the grantor covenants with the grantee that he has done nothing by which the estate conveyed may be encumbered or defeated, but he may covenant nothing as to the future nor as to what any predecessor in title has done. A deed containing such a covenant is known as a deed of bargain and sale, with covenant against grantor's acts.
This covenant is usually made by persons dealing in fiduciary or representative capacity. A trustee or executor or other person carrying out a power to sell in behalf of somebody else is not responsible for the doings of any predecessor in the title, nor is he in any way obligated to bind himself as to what will happen in the future. If he covenants at all, he merely covenants as against his own doings.
If, however, a purchaser desires to have assurances not only as to the present situation, but as to the past relations of the title, and assurances that all will be done that can be done to protect him in the future, so far as the grantee can do anything, he requires in his contract, that he shall get a full covenant and warranty deed, in which, after the habendum, there are five covenants on the part of the grantor.
Full covenant and warranty deed.—With respect to all these covenants, knowledge of the facts which make the breach does not deprive the covenants of their efficiency. If the seller is willing to give the purchaser a full covenant and warranty deed where the property is encumbered, and the purchaser is willing to take it, the fact that the purchaser knew of the en-cumbrance is no defense. These covenants divide them-selves into two classes, those which relate to the past and those which relate to the future. The covenants which relate to the past are said to be covenants not running with the land. Covenants which relate to the future are said to be covenants which do run with the land. Those covenants which relate to the past are the covenant of seizin and the covenant against encumbrances. The covenant of seizin assures that the grantor is seized of the property, i. e., that he is then the owner and in possession of it. The entire covenant imports that the grantor owns the property, possesses it, and has a good right to convey it to the grantee. If any of these elements do not exist at the moment of delivery of the deed, there has been a breach of covenant, and cause of action for breach of the covenant has arisen immediately upon the delivery of the deed. It is, there-fore, a covenant which does not run with the land.
The other covenant which does not run with the land is that the premises are free from encumbrances. That covenant may be modified, if the property be conveyed subject to encumbrance, by enumerating the encumbrances in an appropriate place in the deed, either after the description or after the habendum; and then that clause will read: "That the said premises are free from encumbrances, except as aforesaid." Then, if the premises be not free from all encumbrances, except as stated in the deed or such as the expression, "except as afore-said," covers at the time of the delivery of the deed, there is immediate breach and cause of action.
While it is said that these covenants do not run with the land, to distinguish them from the others, it does not necessarily follow that subsequent conveyances do not operate to assign cause of action for breach. They may. But the cause of action will have arisen, damage will have accrued, and the time of limitation will have begun to run from the time of delivery of the deed.
Covenants which run with the land.—With regard to the covenants which do run with the land, there is no cause of action at the time of delivery of the deed, but the cause of action arises when a covenant is broken at some time in the future, and accrues to the owner of the property at the time of the breach; therefore the covenant itself, not the cause of action for breach, runs with the land, and runs with the land until broken.
The first of these covenants in the form of deed under consideration is, "That the party of the second part shall quietly enjoy the premises." That covenant is broken if the owner is disturbed in his possession by reason of some right or cause of action which existed at the time of the delivery of the deed, but was not asserted until some time in the future. If, for instance, the seller has the title upon a fee which maybe defeated on the happening of a contingency, that would not amount to breach of the covenant of seizin because he has the title to the property and has possession and good right to convey it; but if, after he has conveyed the property, the contingency or condition were to happen which defeated his estate, and the grantee or those claiming under him were to be ousted from their enjoyment of the property, there would then arise a cause of action for breach of the covenant of quiet enjoyment; and that cause of action would accrue to and be enforceable by the person who then owned the property. Thereafter cause of action might pass with the property by implied or specific assignment, but the covenant having been broken, it would not thereafter run with the land except by assignment.
The next of the covenants which run with the land is the fourth: "That the party of the second part will execute or procure any further necessary assurances of title of said premises." That covenant is not broken unless it be necessary that the grantor shall give some instrument other than the deed in order to perfect the title. If, for instance, the deed should have been imperfect in its execution or not properly acknowledged, the grantor can be sued either for specific performance or, if performance has been demanded and refused, for damage.
The last and most important covenant is the covenant of warranty, and that again in its history and in the limits of the measure of damage leads us back to feudal history. The covenant is : "That the said party of the first part will forever warrant the title to said premises." When the feudal lord put his tenant in possession he was obligated not only to give him the possession, but, if he were disturbed in that possession, to give him other land as good as that from which the tenant was ousted. In the same manner the covenant of warranty implies that the grantor guarantees the title of the grantee, but if the grantee should be ousted of his ownership and lose his property, while the covenant runs with the land to the remotest grantee, the measure of damage is not the value of the land at the time of breach, but the consideration paid for the conveyance in which the covenant is contained. The grantor is not bound to give the grantee anything more than the property was worth at the time be bought it.
Enforcement of covenant of warranty.—Before the covenant of warranty can be invoked, however, there must be actual ouster, i. e., the person who holds the covenant and claims recompense under it, must have actually been deprived of the land or some essential portion of it, before he can claim damage under this covenant. It results, therefore, from this principle that the covenant of warranty is in no manner an assurance that the title of the property conveyed is marketable. Neither in the covenant of warranty nor in any other covenant is there obligation to respond until there is loss or liability through actual loss. In that respect the New York rule in relation to the covenant against encumbrances is more limited than in some other states, where the mere existence of an encumbrance may be sufficient to call upon the maker of that covenant to respond. In New York the holder of the covenant must actually buy his way out before he can recover against the covenantor.
No redress under covenants for some unmarketable titles.—There are many ways in which a title may prove unmarketable for which there is no redress upon any covenant in the deed. A house may encroach upon a neighbor's land, and the owner have no right to maintain it there. If he tries to sell the house, the purchaser may decline to take the title. He will be in possession of an unmarketable title, but he has not been ousted of anything which is within the bounds of the land described in the deed and has not been deprived of any valuable thing which was conveyed to him; and, there-fore, has no redress under the covenant of warranty. A building may have an important projection upon a public street, so that the title is unmarketable, and a purchaser would not take, neither would a lender lend on it, and yet there be no redress under any covenant.
A title may be unmarketable because the chain of title is defective and still there be no liability under the covenants in the deed. For instance, if a purchaser owns a piece of woodland or salt meadow which has never been enclosed or reduced to cultivation, and has a chain of title which does not go back to the Sovereign or some other known source of title but nevertheless no one has or is likely to attack the actual possession. If that state of affairs exists, the grantee is in possession and seized of the property and there may never come a time when he will be ousted or deprived of any of his rights as possessor. Still a purchaser may be excused from taking the title and the title be unmarketable because the chain does not reach back far enough and physical possession cannot be shown.
Another case in which a title might be unmarketable without giving the holder recourse upon any covenants in a prior deed would be if a former owner had died seized of the property leaving debts which, if within the statutory time they are enforced, may be a lien upon the property, but leaving personal property which may or may not be sufficient to pay those debts. Until the statutory time within which the lien might be asserted had run out or it developed whether the personal property was sufficient or insufficient to pay the debts, a purchaser might be excused from taking the title because of unmarketability, but yet it may turn out that the debts are never asserted against the property or the personal property is sufficient to pay them.
Another case may arise as follows: An owner may sell a piece of improved property with which there would naturally go appurtenances necessary to the conduct of the building as a going concern, such as gas fixtures, etc. These articles may not be owned by the seller free and clear, being affected by conditional bills of sale or other liens, and the title under the contract would therefore be unmarketable but no covenants in a deed of real property warrant the title to such articles, if they be not technically real property.
In each of the illustrations given the title in itself, in the chain of title, was clearly unmarketable, but as there was no present loss and might be no deprivation, there was no recourse upon any covenant.
Testimony clause.—The covenants in the form of deed under consideration are followed by the testimony clause. It is purely formal; the deed would be just as good if it were not there, and if at the end of the covenant the names were subscribed.
The seal of an individual.—In most states it is necessary that a deed be sealed. In the State of New York deeds by individuals need not be sealed; they are just as efficient to convey title whether they be sealed or unsealed. It is to the advantage of the grantee, how-ever, that he require formal instruments to be sealed, especially deeds, as, under a sealed instrument, the covenants will last longer after breach.
The seal of a corporation.—A corporation, not having hands, and not being able to write its own name, must act through agencies, usually through its officers, who are authorized to act by the legislative body of the corporation, whatever that may be. Corporations may be of various characters : they may be business, in which the legislative body is the board of directors or trustees ; they may be municipal corporations, in which the legislative body is the board of aldermen or supervisors ; they may be the people of a state in their character of state, in which case the legislative body authorizes a board or officers to act ; they may be membership corporations, which act by the voice of its members or by the act of its trustees. Any of these corporations acts by the agency of some authorized person, usually, but not necessarily, an officer who is authorized to do the important act of affixing the corporate seal to the instrument.
A corporation does not usually subscribe. The name of the corporation may be written under the instrument with a memorandum that it is written by one of the officers, but the important thing, and the thing under which the corporation acts is its corporate seal, if it have one.
A corporate seal is more formal than an individual seal: a mere scroll or device scratched upon the paper will not suffice. A corporate seal is an impression either directly upon paper or upon some substance affixed to the paper, the impression bearing some device which has been adopted as the common seal of those persons who constitute the corporation to testify their aggregate act. The most common form of corporate seal of a business or a stock company consists of two concentric circles, with the name of the corporation between the two circles, and sometimes the date or place of its organization. Accompanying the seal and by way of memorandum of how and when the seal came to be affixed, it is customary for the officers to sign their names at the place where a deed is usually subscribed by individuals; and sometimes they also write the name of the corporation. If there be more than one corporation signing the instrument, it may serve as convenient memorandum as to which corporation the officer meant to represent, if he sign the name of the corporation, especially where that officer may belong to several other corporations acting. If a corporation has not adopted a corporate seal, then it is proper that the instrument be subscribed by officers of the corporation, and be attested by the individual seals of the persons signing the instrument.
Proof of instrument signed by a corporation.—In either event, whether the corporation has or has not a seal, the execution of the instrument must be proved by an officer who has executed it. It is bad practice to have an officer who is not the executing officer make the oath as to authorization to affix the seal.
The person executing the instrument should appear before a public officer entitled to take acknowledgments of deeds or conveyances. That officer certifies, some-what in the form of an acknowledgment, that on the day mentioned, in the year mentioned, before him personally came the officer executing the instrument, who being to him known and being by him duly sworn, swears first, to the place of his or her residence ; second, to the official connection which he has with the corporation, and that it is the corporation described in and which executed the instrument; third, that he knows the seal of the corporation ; fourth, that the seal affixed to the instrument was such corporate seal, and that it was affixed by the order of the board of directors, or whatever might be the name of the legislative body of the corporation ; and that he signed his name thereto by like order. A deed thus executed, with its seal thus proven, is evidence in all courts, and is entitled to be recorded in the same manner as the instrument of an individual properly acknowledged or proven.