THE
NOTARY’S MANUAL
(NINTH EDITION)

BASED UPON

THE SECTIONS OF THE CALIFORNIA
CODES RELATING TO NOTARIES PUBLIC

WITH EXTRACTS FROM AND NOTES ON
 STATE SUPREME COURT DECISIONS

ALSO CONTAINS

LEGAL FORMS FOR THE VARIOUS NOTARY’S
CERTIFICATES AND PROTEST
___

PREPARED BY
A MEMBER OF THE SAN FRANCISCO BAR

PUBLISHED BY
A. CARLISLE & CO.
THE
NOTARY’S MANUAL
(NINTH EDITION)

COPYRIGHT 1908 by
A.	CARLISLE & Co.

COPYRIGHT 1911 by
A.	CARLISLE & Co.

COPYRIGHT 1916 by
A.	CARLISLE & Co.

COPYRIGHT 1921 by
A.	CARLISLE & Co.

P R E F A C E

This volume, as the name indicates, has been prepared especially for the use of notaries public. It is based upon the Codes of California and the decisions of the Supreme Court of this and other states so far as they relate to the law authorizing and governing the acts of these officers, and references to all sections and decisions are given. The chapters on deeds, mortgages and homesteads have been inserted for the purposes of giving general information on these subjects, and because the notary is frequently expected to draw as well as the acknowledgement of these instruments. The contents of this volume on the subject of Bills and Notes is based upon the “Negotiable Instruments Law” adopted in California in 1917 and the amendments thereto. A thorough understanding of this important subject is, of course, necessary to the intelligent protesting of  negotiable paper. Practical forms of certificates, notices, protests, etc., are appended.

This page intentionall blank

                                 TABLE OF CONTENTS.
         
                                     CHAPTER I.
                                                        SEC        PAGE
         Notaries Public . 					              1-14       9-17                
             Appointment                                1          9 
             Eligibility                                2          10
             Qualification                              3-4        10-1
             Duties                                     5          11-2
             Compensation                           	  6          13
             Jurisdiction                          	  7          14-5
             Term of Office                        	  8          15-6
             Records                               	  9-11       16-7
             Seat                                	     12         17
             Liability                            	     13-4       17

                                    CHAPTER II.
         Acknowlelgment and Proof of Instruments        15-45  	   18-46
             Nature of acknowledgment                   15            18
             Nature ofproof                             16            19
             Purpose of acknowledgment or proof         17            20
             Private writings may be acknowledged       18            20
             Authority to take                          19            21
             Mode of taking                             20-25         22-33
             Acknowledgment by married women            26            33
             Certificate of acknowledgment              27-34         33-40
             Proof of execution when not acknowledged   35-40         41-44
             Certificate of Proof                       41            44
             Defective certificates                     42-45         45-6

                                    CHAPTER Ill.
         Recording of Instruments                       46-58         47-55
             Acknowledgment necessary                   46            47
             What may be recorded without 
             acknowledgment                             47.9        43 49

         

         

         

                                 TABLE OF CONTENTS.
                                                     SEC.       PAGE
             Modes of Recording                     50-52       50
             Purpose and effect of recording        53-55       51-2
             Effect of failure to record            56          52
             Unrecorded instrument when valid..     57          53
             Instruments to be acknowledged and
              recorded                              58          54

                                CHAPTER IV.
         Deeds                                      59-84       56-72
             Definitions                            59          56
             Of Separate and Commumity Prorerty     60          58
             Must be in writing                     61          60
             Form and contents of                   62-6        60-3
             Execution                              67-70       63-4
             Power of attorney                      71-4        64-5
             Delivery                               75-8        66-5
             Interpretation of                      79          68
             Effect of                              80-3        69-72
             Instrument made with intent to de
              fraud                                 84          72

                                CHAPTER. V.
         Mortgages                                  85-111      73-89
             Nature of mortgages in general         85          73
             Possession of the property.            86          74
             Transfer when a mortgage               87          75
             Deeds of trust                         88          76
             Foreclosure                            89          77
             Power of attorney to execute           90          77
             Assignment of debt                     91          78
             Record of assignment of mortgage       92          78
             How discharged of record               93          79
             Satisfaction of                        94          80
             Of real property                       95-8        81-3
             Of personal property                   99-1ll      83-89

                                CHAPTER VI.
         Homesteads                                 112-127     90-99
             Meaning of                             112         90
             Head of family                         113         91

         

                          TABLE OF CONTENTS.                         
                                                     SEC.        PAGE
             Selection of                           114-118      91-93
             Declaration of                         119-121      93-5
             Exempt from execution                  122          95
             Subject to execution                   123          96
             How conveyed or encumbered             124          96
             Abandonment of                         125          97
             Proceedings on execution against
              homestead                             126          97-8
             Of insane persons                      127          99

                                   CHAPTER. VII.
         Affidavits                                 128-135      100-105
             Nature of                              128          100
             Use of                                 129          100-1
             Authority of notary to take            130          102
             Requisites of                          131-134      102-4
             Mode of taking                         135          104-5

                                   CHAPTER VIII.
         Depositions                                136-154      106-123
             Definition and nature of               136          106
             When may be taken in this state        137          107
             Manner of taking                       138-9        108-10
             Certificate to                         140          110
             Subpcena                               141-8        111-8
             Witnesses                              149-151      119-21
             Oaths and affirmations                 152-4        121-3

                                    CHAPTER IX.
         Bills and Notes                            155-253      124-186
             Duty of notary in respects to          155          124
             Negotiable instruments                 157          126
             Bills of Exchange                      158-164      127-130
             Promissory notes                       165-168      131-132
             Checks                                 169-170      132-3
             Negotiability                          171-172      133-137
             Form and validity                      173-179      137-143
             Negotiation                            180          143

         

                         TABLE OF CONTENTS.
                                               		   SEC. 	       PAGE
             Indorsement                   		      181-191       143-149
             Liability of indorsers       		      192-195       149-151
             Holder in due course                     196-198       151-154
             Presentment and demand for payment       199-206       154-159
             Notice of dishonor                 	   207-218       159-166
             Discharge of negotiable instruments      219-224       166-I70
             Presentment of bills of exchange for
             acceptance                               225-227       170-174
             Acceptance of bills of exchange		      228-230       174-176
             Protest                                  231-239       177-179
             Acceptance for honor               	   244-246       180-182
             Payment for honor                        247-248       182-183
             Bills in a set                           249           184
             General definitions and meaning of words 250-253       185-186

         
                                     APPENDIX.
         Certificate of acknowledgment, Forms Nos. 1-7              187-190
         Certificates of proof, Forms         Nos. 8-11             191-195
         Certificate to deposition,           Form No. 12           196
         Notice of protest,                   Form No. 13           196
         Protest, Forms                       Nos. 14-18            197-202

Index                                    203    								                   

 The Notary’s Manual

NINTH EDITION

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CHAPTER I.

NOTARIES PUBLIC.

§1		Appointment.
  2		Eligibility.
3-4	Qualification.
  5		Duties.
  6		Compensation.
  7		Jurisdiction.
  8		Term of office.
  9-11	Records.
 12		Seal
 13-14	Liability

Appointment.
   SECTION 1.  Notaries Public are public officers appointed by the governor, usually upon petition addressed to him setting forth the qualifications of the applicant and signed by citizens and residents requesting the appointment. There is no restriction upon the number that may be appointed for the several counties of the state – the governor having authority to appoint such number “as he shall deem necessary for the public convenience” – except that the number to be appointed in counties of the second class is limited to one hundred and fifty-five. 1
_____________________________________________________________
  (1) Political Code, §791

NOTARIES MANUAL

Eligibility.
  SECTION 2.  The only qualifications required by statute are the following: The person must, at the time of appointment, be a citizen of the United States and of this state, twenty-one years of age, and must have resided in the county for which the appointment is made for six months prior thereto. Women having these qualifications may be appointed. 2

Qualification.
  SECTION 3.   Official Bond and Oath. When the commission is granted the appointee is required to execute an official bond in the sum of five thousand dollars which bond must be approved by a judge of the superior court of the county in which such notary is commissioned to act, and after approval the bond must be recorded in the office of the county recorder and then filed and kept in the office of the county clerk. He must also take, subscribe and file his oath of office in the office of the county clerk. The time within which he must file his official bond and take, subscribe and file his oath of office in the office of the county clerk, is twenty days from the date of his commission. 3
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  (2) Political Code, §792
  (3) Political Code, §799, 800

NOTARIES PUBLIC

  SECTION 4.  Certificate of Facts.   He is also required to transmit a certificate of the facts of his appointment under the hand and seal of the county clerk, together with a copy of his official oath signed by him with his own proper signature, to the office of the secretary of state, which certificate must be filed in the office of the secretary of state within thirty days from the date of his commission. 4   He is then duly qualified to perform the duties of his office.

Duties.
  SECTION 5.  It is the duty of notaries public,–  

  1. – When requested, to demand acceptance and payment of foreign, domestic and inland bills of exchange, or promissory notes, and protest the same for non-acceptance and non-payment, and to exercise such other powers and duties as by the law of nations and according to commercial usages, or by the laws of any other state, government, or country, may be performed by notaries. (See Bills and Notes, Secs. 155-253, post.)
 
 2.  To take the acknowledgment or proof of powers of attorney, mortgages, deeds, grants, transfers, and other instruments of writing exe-
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  (4) Political Code, §800

NOTARIE’S MANUAL

Cited by any person, and to give a certificate of such proof or acknowledgment, indorsed on or attached to the instrument. (See Acknowledgment and Proof of Instruments, Secs. 15-45, post.)

  3.  To take depositions and affidavits, and administer oaths and affirmations, in all matters incident to the duties of the office, or to be used before any court, judge, officer, or board in this state. (See Affidavits, Secs. 128-135, post; Depositions, Secs. 136-154, post.)

  4.  To keep a record of all official acts done by them.

  5.  To keep a record of the parties to, date, and character of every instrument acknowledged or proved before them. (See Records, Secs. 9-12, post.)

  6.  When requested, and upon payment of their fees therefor, to make and give a certified copy of any record in their office.

  7.  To provide and keep official seals, upon which must be engraved the arms of this state, the words “notary public,” and the name of the county for which they are commissioned.

  8.  To authenticate with their official seals all official acts. 5      (See Seal, Sec. 12, post).
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  (5) Political Code, §794

NOTARIES PUBLIC

COMPENSATION.

  SECTION 6.  The fees of notaries are fixed by law and are as follows:

  For drawing and copying every protest for the non-payment of a promissory note, or for the non-payment or non-acceptance of a bill of exchange, draft, or check, two dollars.

  For drawing and serving every notice of non-payment of a promissory note, or of the non-payment or non-acceptance of a bill of exchange, order, draft, or check, one dollar.

  For recording every protest, one dollar.

  For drawing an affidavit, deposition, or other paper for which provision is not herein made, for each folio, thirty cents.

  For taking an acknowledgment or proof of a deed or other instrument, to include the seal and the writing of the certificate, for the first two signatures, one dollar each, and for each additional signature, fifty cents.

  For administering an oath or affirmation, fifty cents.

  For every certificate, to include writing the same, and the seal, one dollar. 6
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  (6) Political Code, §798

NOTARIES MANUAL

Jurisdiction.

  SECTION 7.  A notary can only transact official business in the county for which he was appointed and in which he resides. His authority is confined to the county for which he was appointed and commissioned.
     In the case of Fairbanks, Morse & Co. v. Getchell, 13 Cal. App. 458, a notary public in and for the County of Kern had taken the oath of an affiant in Los Angeles to an affidavit for attachment over the phone. The evidence showed that the affiant had related the facts contained in the affidavit to the notary and stated they were true, that the notary was familiar with his voice and recognized it over the telephone. The act of administering the oath was declared to be void and of no effect. It was contended in that case that an oath administered by communication had between notary and affiant over the telephone, was for that reason alone void and of no effect. This point, however, was not determined, the court saying:
   “Such contention finds direct support in the case of Sullivan v. First Nat. Bank, 37 Tex. Civ. App. 228 (83 S. W. 431). According to our view, however, it is unnecessary to determine this point. Assuming, but not deciding, that an oath may

NOTARIES PUBLIC

be administered and the obligations thereof assumed by communication had over the telephone, the validity of such act must be held to apply to those cases only where both notary and affiant are within the territorial limits for which the notary has been appointed and commissioned.” 

Term of Office.
   SECTION 8.  The term of office is four years from and after the date of the commission.7   
   People v. Edleman, 152 Cal. 317, is an important case relating to the term of office of notaries public. In the city and county of San Francisco where the number is limited, the question arose as to whether, upon the death of a notary, the new appointee was appointed for the balance of the unexpired term, or for the full term of four years. It was there held that the office comes into full being only when and as the governor names specific men for the places; that as to his term and office, no notary is the legal successor of another, and each is appointed for the specified term; and that since, under the law, the term of a notary is made a full term of four years from the date of his commission, and as the death of a notary does not create a vacancy, each notary when appointed is appointed, not for an unexpired
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   (7) Political Code, §793

NOTARIES MANUAL

term, but for the full term of four years.
   Resignations must be in writing and made to the governor, 8 and in case the office becomes vacant before the  expiration of the term, the notary’s records must be delivered to the county clerk of his county as set forth in the following section. 
Records.
   SECTION 9.   On Death or Resignation.  Exact and particular records are required to be kept of all official acts (see Duties, Sec. 5, subs. 4-5, supra), and if any notary die, resign, is disqualified, removed from office, or removes from the county for which he is appointed, his records and all his public papers must, within thirty days, be delivered to the clerk of the county, who must deliver them to the notary’s successor when qualified. 9 (See Term of Office, Sec. 8, supra.) 
   SECTION 10.   Of Predecessor.   It is further provided that every notary having in his possession the records and papers of his predecessor in office, may grant certificates or give certified copies of such records and papers in like manner and with the same effect as such predecessor could have done. 10
   SECTION 11.   Open to Public Inspection. The records in the office of a notary are public records,
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    (8)  Political Code,  §995
    (9)  Political Code,  §796
  (10)  Political Code,  §797

NOTARIES PUBLIC

And are at all times during office hours open to the inspection of any citizen of this state. 11

Seal.
   SECTION 12. Seal of officer taking acknowledgment must be annexed, and his certificate cannot be used in evidence unless so authenticated.
   In the absence of a statute requiring it, the name of the notary need not appear on his seal; but in view of the illegibility of signatures in general, it is quite important that the seal show the official name of the notary.
Liability.
   SECTION 13.   On Bond.  For the official misconduct, or neglect of a notary public, he and the sureties on his official bond are liable to the parties injured thereby for all damages sustained. 12
(See Liability on bond for failure to comply with statute, Secs. 21-25, post.)
   SECTION 14.   Criminal responsibility.   He is also criminally responsible under Section 167 of the Penal Code, which provides that every public officer authorized by law to make or give any certificate or other writing who makes and delivers as true any such certificate or writing containing statements which he knows to be false, is guilty of a misdemeanor.
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  (11)  Political Code, §1032
  (12)  Political Code, §801          

NOTARIES MANUAL

CHAPTER II.

ACKNOWLEDGMENT AND PROOF OF INSTRUMENTS

§15		Nature of acknowledgment
  16		Nature of proof
  17		Purpose of acknowledgment or proof.
  18		Private writings may be acknowledged or proved.
  19		Authority to take.
  20-25	Mode of taking acknowledgment.
  26		Acknowledgment by married women.
  27-34	Proof of execution when not acknowledged.
  35-40	Proof of execution when not acknowledged.
  41		Certificate of proof.
  42-45	Defective certificates.

Nature of Acknowledgment.

   SECTION 15.   The acknowledgment of an instrument is the declaration or admission made by the party executing it to an officer having authority to take acknowledgment, that the instrument was executed by him and the same is his act and deed. It is then the duty of the officer	 to indorse on or attach to the instrument his certificate of acknowledgment. (See Certificate of Acknowledgment, Secs. 277-34, post.)  The acknowledgment adds nothing to the validity or effect of the instrument as between the parties. It “is only the mode provided by law for authenticating the act of the parties so as to entitle the

ACKNOWLEDGMENT AND PROOF

Instrument to record and make it notice to subsequent purchasers, and to entitle it to be read in evidence without other proofs. If purchasers neglect to have their deeds properly authenticated and recorded, they will be liable to have their title divested by subsequent conveyances to innocent parties, and to the further inconvenience of being compelled to prove their execution when called upon to put them in evidence.” 1

Nature of Proof.

   SECTION 16.   It is usual to acknowledge instruments at the time of executing them, but under certain sections of our Civil Code the execution of conveyances, when not acknowledged, may be provided by subscribing witnesses, and when the subscribing witnesses are dead or cannot be had, the end may be accomplished by proving the handwriting of the party and of the subscribing witnesses by other witnesses (See Proof of Execution when not acknowledged, Secs. 35-40, post), and upon such proof the officer may make his certificate thereof and the instrument thereafter becomes entitled to record and to be read in evidence without further proof. It has been held that this may be done years after
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  (1) Landers v. Bolton, 26 Cal., 405

NOTARY’S MANUAL

the actual making of the deed and even after the parties and witnesses to it are dead; 2 the law, however, protects innocent parties who have acquired rights in the meantime without notice.

Purpose of Acknowledgment or Proof.

   SECTION 17.   The purpose of acknowledgment is twofold: to enable the instrument to be recorded (see Acknowledgment necessary, Sec. 46, post; also see Purpose and Effect of Recording, Secs. 53-55, post), and to entitle it to be used as evidence without further proof. It is a rule of evidence that every instrument conveying or affecting real property, acknowledged or proved, and certified, as provided by law, may, together with the certificate of acknowledgment or proof, be read in evidence in an action or proceeding, without further proof. 3  (See Record of Instrument may be used in evidence, Sec. 55, post).
Private Writings May Be Acknowledged or Proved.
   SECTION 18.   Every private writing, except last wills and testaments, may be acknowledged or proved and certified in the manner provided for the acknowledgment or proof of conveyances
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  (2) Landers v. Bolton, 26 Cal., 406
  (3) Code of Civil Procedure, §1951

ACKNOWLEDGMENT AND PROOF

of real property, and the certificate of such acknowledgment or proof is prima facie evidence of the execution of the writing in the same manner as if it were a conveyance of real property. 4

Authority to Take. – Disqualifications.

   SECTION 19.   Acknowledgment or proof of an instrument may be made in this state, within the city, county, city and county, township or district for which the officer was elected or appointed, before either of several officers, one of which is a notary public. 5   (See Jurisdiction, Sec. 7, supra.)  A notary is, however, disqualified from taking an acknowledgment where he himself is the grantee or mortgagee in the instrument acknowledged.  In such case the acknowledgment has been held to be void and of no effect. 6   It is the general law that a party beneficially interested in an instrument is incapable of taking and certifying an acknowledgment of it.  He is not, however, disqualified by reason merely of being the agent of a party to the instrument, if not pecuniarily interested in the transaction. 7  Whether a notary who is a stockholder of a
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  (4) Code of Civil Procedure, §1948
  (5) Civil Code, §1181
  (6) Lee v. Murphy, 119 Cal., 370; Murray v. Tulare, etc., 120 Cal., 311
  (7) Bank of Woodland v. Oberhaus, 125 Cal., 320; Chapman v. Hicks, 41 Cal.
       App. 164

NOTARY’S MANUAL

corporation, has such an interest as to avoid an acknowledgment of the corporation taken before him, is not altogether clear, but such an acknowledgment seems to have been upheld in this state on the ground that the notary exercises merely ministerial, and not judicial powers. An instance of the exercise of quasi-judicial functions on the part of the notary, is where the law requires a privy examination of such a married woman apart from her husband, but such law has not existed in this state since 1891. 8   In the same case, the acknowledgment of a deed to a bank taken by a notary who was assistant cashier of the bank, was declared valid.

Mode of Taking Acknowledgments.

   SECTION 20.   Identity of party must be ascertained.   The notary is required to know that the person who appears before him and makes the acknowledgment is the person described in and who executed the instrument, and if he does not know it he must require satisfactory evidence of that fact.  Section 1185 of the Civil Code reads as follows:
“The acknowledgment of an instrument must be taken, unless the officer taking it knows or has satisfac-

________
  (8) First National Bank v. Merrill, 167 Cal., 396

tory evidence, on the oath or affirmations of a credible witness, that the person making such acknowledgment is the individual who is described in and who executed the instrument; or, if executed by a corporation, that the person making such acknowledgment is the president or secretary of such corporation, or other person who executed it on its behalf.”

   The importance of a strict compliance with the course prescribed by this section in the taking of acknowledgments has been declared by the supreme court in the case of Joost v. Craig, 131 Cal. 504, and by the appellate court in the case of Homan v. Wayer, 9 Cal. App. 123, and because of the emphasis with which this matter is treated in these cases, they are quoted from somewhat at length in the following section.

   SECTION 21. Liability on bond for failure to comply with statute.   In the case of Joost v. Craig, 131 Cal., 504 a deed was apparently executed and acknowledged property, and the certificate of the notary stated that the person who acknowledged the execution of the instrument personally appeared before him and was known to him to be the person described in and who

NOTARY’S MANUAL

executed the said instrument. The deed turned out to be a forgery. The plaintiff in the case accepted the deed and paid his money, relying solely on the certificate of the notary. In its opinion the supreme court uses the following language:

   “He (the grantee) had a right to rely upon the certificate of the notary and to presume without question that such officer had done his duty. * * * The whole theory that the record of such instruments gives constructive notice of the contents of recorded instruments is founded upon the proposition that upon proper investigation the genuineness of such instruments has been determined. The certificate is also received as evidence in a trial in a court of law that the deed is genuine. If the deed is not genuine but is forged, the notary and his sureties ought to be held for all damages unless they have taken the precautions expressly required by the statute.  The legislature has taken great care, though considering the importance of the matter, not too great, to make this certificate reliable. * * * The notary is expressly forbidden to take the acknowledgment unless he knows that the person making the acknowledgment is the person described in the

ACKNOWLEDGMENT AND PROOF

instrument. * * * If he did not know this it should have been proven by the oath of a credible witness, whose name must be stated. (C. C., Sec. 1189.)  It is not enough that the person be introduced to the notary by a responsible person.   If that were enough there would be no purpose in requiring the oath, for such person could always furnish the introduction. This point has been often decided though sufficiently obvious from the statute.  To take an acknowledgment upon such introduction without the oath is negligence sufficient to render the notary liable in case the certificate turns out to be untrue. * * *  The same matter was discussed in State v. Meyer, 2 Mo. App., 413.  The court makes some suggestions as to what degree of acquaintance will authorize the notary to certify that he has personal knowledge, and also upon the proposition that an introduction, even by a responsible person, could not be relied upon, and says: ‘It is obvious that when an officer taking an acknowledgment and making a certificate assumes any such fact, he does it at his own risk.  The law warns him when he has not “personal knowledge” of his own to resort to certain observances which the law supposes to be sufficient in practice to prevent imposition. * * *  But such a cer-

NOTARY’S MANUAL
tificate is infinitely less liable to deceive or mislead than a declaration that the party making the acknowledgment is well known to the officer making the certificate. It puts all persons upon inquiry and furnishes a clue for conducting it; and it complies with the law.’   This makes the certificate upon personal knowledge a guaranty of the genuineness of the instrument, and the court adds:  “It is perfectly idle for him to protest that he did not know or suspect that his certificate was false. That may be taken for granted, but is nothing to the purpose.  His business was to know that it was true.’
   “A notary may take all due precautions and fully comply with the statute and still be deceived.  In such case he would not be held liable, but if he has not fully complied with the statute, the rule announced above is not a whit too stringent.
   “It may here be remarked that the witness by whose oath the execution of an instrument is proven when the person executing the instrument was not previously known to the officer, must himself be known to the notary.  This is implied by the requirement that the officer shall certify that such person is a credible witness.  When these necessary facts do not exist, the notary is expressly forbidden from taking the acknowledg-  

ACKNOWLEDGMENT AND PROOF

ment at all. When the notary does not obey this statute he should expect to be held liable. And I wish to repeat, these requirements are not of great importance to the business world and not at all too exacting.”

   This case further sets at rest the fact that notaries in taking acknowledgments act ministerially and not judicially.  It appears that for judicial acts officers are not liable for either negligence or ignorance, but only for corrupt and intentional misconduct in the discharge of their official duties; while, on the other hand, ministerial officers are liable in damages.

   In the case of Homan v. Wayer, 9 Cal. App. 123, the grantor named in the deed was May E. Griswold, but the person who acknowledged the deed was not Mary E. Griswold but one who impersonated her in the execution and acknowledgment of the deed.  To this deed the notary attached his certificate in the usual form wherein he certified “before me * * * personally appeared Mrs. Mary E. Griswold, a widow, known to me that within instrument, and acknowledged to me that she executed the same.”   It was not contended by the notary that he knew the woman whom he certified to be Mary E. Griswold.  His knowledge

NOTARY’S MANUAL

of her  identity was gained by an introduction from a man whom he did not know, a re-assuring remark or two from this man, and an “oath” administered to the woman herself at the time of taking her acknowledgment.  The court said:

   “If we were permitted to consider the so-called ‘oath’ of the woman as proof or evidence upon which the notary could base his certificate, it did not establish the things which he is required to know and certify.  The essential fact to be known by, or proven to, the notary is that the person making the acknowledgment is the person described in and who executed the instrument.  The woman who executed the deed was asked if her name was Mary E. Griswold and if she was the sole owner of the property.  Her name might have been Mary E. Griswold, and she not the person described in the deed.  The notary is not required to certify to the ownership of the property * * * and this only indirectly bore upon the matter to be certified.  The purpose of the certificate is to establish the identity of the grantor and the genuineness of the signature to the deed. * * * 
   “A certificate of personal knowledge is not justified by swearing the person who executed the instrument or any other person.  The

ACKNOWLEDGMENT AND PROOF

statute draws a distinction between those ‘known’ and those ‘proven to be’ the individual described in the instrument.  In the former case no taking of testimony and no ‘satisfactory evidence’ is required; it is sufficient that the officer knows.  If the officer does not ‘know,’ then the law makes it his duty to inform himself by satisfactory evidence on the oath or affirmation of a credible witness.  In this event he is called upon to certify by whose oath it was proven to him that the person whose acknowledgment was taken is the person described in the instrument. * * * 
   “This is not a case where a mistake was made through inadvertence, or one in which due precaution was taken, the statute fully complied with, and still the notary was deceived.  It is not within the exception stated in the Joost-Craig case, but comes clearly within the rule of law declared in the case of State v. Meyer, 2 Mo. App. 413, therein cited. * * * ”

   The evidence in this case showed that the plaintiff relied upon the false certificate of the notary.  The various defenses made on behalf of the defendant, namely:  That there was a conspiracy to defraud the owner, that the neglect of the notary was not the proximate cause of the 

NOTARY’S MANUAL

injury, and that there was no privity of contract between the notary and the person injured, were of no avail, and it was held that the loss sustained was the result of official misconduct or neglect for which the notary and his sureties were liable.

   The case of Kleinpeter v. Castro, 11 Cal. App. 83, is another case where a notary made a false certificate of acknowledgment of a forged deed and was held liable on his official bond for all damages sustained.

   Again, an important case for notaries to read is that of Anderson v. Aronsohn, 181 Cal. 294.  In this case the particular question discussed is, what degree  of acquaintance will authorize the notary to certify that he has personal knowledge.  It was held that personal knowledge involves something more than the casual meetings which followed the notary’s original introduction to the parties in this transaction.  That there was nothing to arouse suspicion was no excuse.  The notary should have required the oath of a credible witness.

   SECTION 22.   Introduction by third party not sufficient.   In addition to what has been said with respect to mere introduction by third party in the preceding section, see also Hatton v. Holmes, 97 Cal., 212, wherein the supreme court

ACKNOWLEDGMENT AND PROOF

says that a notary has no right, in disregard of the plain provision of the statute, to certify that he knows a person whom he does not know on the mere introduction of some third party, and if he does so, and loss results therefrom he renders himself and his sureties liable to make good the loss.  This case further holds, however, that this liability does not extend to a case where the negligence of the losing party is the proximate cause of the loss.

   SECTION 23.   Negligence of injured party excuses notary.   Should the injured party have taken the impostor before and introduced him to the notary and requested the notary to certify to the acknowledgment and execution of the deed by the imposter, in such case, while the officer would not have been justified, he would have been guilty of contributory negligence only. 9   For cases in which the negligence of the notary was not the direct or proximate cause of the loss and he was therefore held not liable, see Bank of Savings v. Murfey, 68 Cal., 455; Overacre v. Blake, 82 Cal., 77.

   SECTION 24.   Notary’s negligence must be proximate cause of injury.   In Brown v. Rives, 42 Cal. App. Page 482, we have the case of a party who forged the names of the owners of a piece
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  (9)  Joost v. Craig, 131 Cal., 510

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of property, and also the notarial certificate of their acknowledgments, to a deed whereby the property was conveyed to a fictitious grantee, and then assumed the name of such fictitious grantee for the purpose of deeding the property to an innocent purchaser.  He was introduced in good faith to the notary who took his acknowledgment to the last named deed.  In that decision the case of Joost v. Craig, supra, is distinguished, and the notary was not held liable for the injury to the real owners, for the reason that the deed to which he affixed his certificate was genuine, and his certificate was true.  (See Mode of taking affidavits, Sec. 135 post.)

   And where the notary’s negligence was not the only cause of the injury he has not been held liable.  Such is the case of Ross v. New Amsterdam Casualty Co. reported in 56 Cal. App. At page 254.  In that case, while the notary negligently attached his certificate, in regular form, to a bill of sale by “John Reed” of an automobile, and it developed later that John Reed was a fictitious person, yet the notary does not certify to the ownership of the property but only to the identity of the grantor and the genuineness of his signature; and as the bill of sale was valueless for the reason that the title was in some one

ACKNOWLEDGMENT AND PROOF

other than John Reed, it could not be made the basis of a recovery against the notary and his surety.  (Citing Heidt v. Minor, 89 Cal. 115, and McAllister v. Clement, 75 Cal. 182.)

   SECTION 25.   Witness swearing falsely may be prosecuted.  We have another case (In re Carpenter, 64 Cal., 271) where a person appeared before the notary for the purpose of acknowledging a deed, and the notary being unacquainted with him, administered an oath to him as a witness in his own behalf for the purpose of ascertaining if he was the person who signed the deed he wished to acknowledge.  Upon that evidence the notary took the acknowledgment, certified to it and returned the deed with his certificate annexed to the person making it.  The court held that such party was a competent witness in his own behalf in the proceedings before the notary and when he testified falsely on the oath administered to him by the notary, he subjected himself to prosecution for perjury.

Acknowledgment by Married Women.
   SECTION 26.  A conveyance by a married woman has the same effect as if she were unmarried and may be acknowledged in the same manner. 10  This is now the law.  Formerly (prior to 1891) it was necessary that a married woman
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  (10) Civil Code,  §1187

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should be examined and made acquainted with the contents of the instrument apart from her husband, and consequently a separate form of certificate was necessary in case of acknowledgment by a married woman.  That law being repealed, the general form of certificate is now used.

Certificate of Acknowledgment.
   SECTION 27.  Notary must attach.   A notary taking the acknowledgment of an instrument must indorse thereon or attach thereto his certificate of acknowledgment. 11   The form of the certificate is prescribed by law and a substantial compliance therewith is required.  It is, of course, well to follow the form prescribed with exactness. However, where a certificate of acknowledgment was objected to because the officer certified that the grantor “acknowledged to me” the execution of the instrument (the words “to me” not being a part of the statutory form), the variation was declared immaterial.  Again, where a foreign notary certified that the grantor “appeared before me, being personally known to me to be the same person described in and who executed the foregoing instrument, and acknowledged that he signed and sealed the same as his free and voluntary act and deed for
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  (11) Civil Code, §1188

ACKNOWLEDGMENT OF PROOF

The uses and purposes therein mentioned,” this was held to be substantial compliance with the requirements of our statute. 12

   SECTION 28.  General form of.   The general form of certificate of acknowledgment is as follows:
“State of ---------, County of ---------; ss.
   “On this -------day of --------, in the year --------, before me (here insert 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, and acknowledged that he (she or they) executed the same.” 13
  [Appendix Forms Nos. 1, 2 and 3.]

   SECTION 29.   Form of, when acknowledgment is by corporation.
“State of -------, County of ----------, ss.
   “On this ------day of -------, in the year --------, before me (here insert name and quality of the officer), personally appeared ---------, known to me (or proved to me on the oath of ----------) to be the president (or the secretary) of the corporation that executed the within instrument (where, however, the instrument is executed in behalf of the corporation by some
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  (12) Holland v. Hotchkiss, 162 Cal., 376-7
  (13) Civil Code, 1189

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one other than the president or secretary) insert known to me (or proved to me on the oath of -----) to be the person who executed the within instrument on behalf of the corporation therein named and acknowledged to me that such corporation executed the same.” 14
  [Appendix Forms Nos. 4, 5  and 6.]

   Prior to the amendment of 1905 a conveyance by a corporation could only be acknowledged by its president or secretary.

   SECTION 30.  Form of, when acknowledgment is by attorney in fact.   
“State of ----------, County of ---------,ss.
   “On this ------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 who 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.” 15
  [Appendix Form No. 7.]

SECTION 31.  When acknowledgment is taken outside of state.   It is expressly provided that
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  (14) Civil Code,  §1190
  (15) Civil Code,  §1192

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any acknowledgment taken without this state in accordance with the laws of the place where the acknowledgment is made, shall be sufficient in this state; and further, that the certificate of the clerk of a court of record of the county or district where such acknowledgment is taken, that the officer certifying to the same is authorized by law so to do, and that the signature of the said officer to such certificate is his true and genuine signature, and that such acknowledgment is taken in accordance with the laws of the place where the same is made, shall be prima facie evidence of the facts stated in the certificate of the clerk. 16

   The provision of the foregoing section in regard to certificates of the clerk, is only applicable to cases where the certificate of the foreign notary does not show an acknowledgment which would be good under our own statutes. 17

  When an acknowledgment is taken in this state for the purpose of being used outside of the state, such certificate of the clerk should generally be attached.

   SECTION 32.   Venue----Name and quality of officer.   “State of -------, County of ------, ss.” At the head of the certificate is a part of the
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  (16) Civil Code, §1189
  (17) Holland v. Hotchkiss, 162 Cal., 377

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certificate as prescribed by law.  The purpose of the venue is to show that the official act was done within the territorial jurisdiction of the officer.  In the case of Emeric v. Alvarado, 90 Cal., 463, a certificate is commented on in which the venue was missing and the name and quality of the officer in the body of the certificate was left blank, and it was held that the certificate was fatally defective because it did not appear therefrom in what county or state the acknowledgment was taken.  In this connection the court said: “Defects in certificates of acknowledgment should be usually overlooked as much as possible, but in this case the defect is so radical that, so far as we can see, to condone it would not be in the interest of justice.”  In the same case (Id., p. 478) another certificate is commented on which showed the venue in the city and County of San Francisco and the official seal of the notary attached showed that he was not a notary public in and for the City and County of San Francisco, but for the county of Contra Costa.  The court found that the material statements in the certificate were not true and it was insufficient on its face.

   SECTION 33.  Signature—Name of office and seal –Variance.  It is further required that officers taking and certifying acknowledgments

ACKNOWLEDGMENT AND PROOF

or proof of instruments for record, must authenticate their certificates by affixing thereto their signatures, followed by the names of their offices, and also their seals 
of office. 18  Where certificate of notary is on a separate slip which is attached to instrument, his seal should be impressed through both instrument and certificate.
   The proper official name of a notary is “Notary Public in and for” the county for which he was appointed.   In Duckworth v. Watsonville etc. Co. 150 Cal. 521, the certificate of acknowledgment to a deed recited the name and official character of the notary as a notary public in and for the county names, in the usual form, but was signed by him merely with the words “Notary Public” after his signature, and it was objected that this was not a sufficient statement of the name of his office.   The court held, however, in view of the statement made in the body of the certificate, that the name of the office was sufficiently stated after the signature.
   There must be no variance between the name and description of the party as it appears in the instrument, and the name and description appearing the certificate.

   SECTION 34.   When not conclusive. A certificate of acknowledgment is prima facie evi-
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  (18)  Civil Code, §1193

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dence of the fact of acknowledgment; that is, evidence which suffices for proof until contradicted and overcome by other evidence.  It is therefore not conclusive and may be impeached by parol evidence that the person named therein never in fact appeared before the notary certifying to the acknowledgment.  If such is the case the act of the officer is wholly void and the certificate is nothing but a fabrication.  So held in Le Mesnager v. Hamilton, 101 Cal., 532.  In this case the certificate of the notary showed upon its face that the instrument was duly acknowledged by one of the parties to it who was a married woman, when, in fact, she had never appeared before the notary for the purpose of acknowledging it.  A distinction is made between a case of this kind where the officer is entirely without authority and his certificate is void in toto, and one where the party actually appeared before the notary and made some kind of acknowledgment, and an attempt is made to attack the certificate because of some defect in the manner of acknowledgment.  Such a case would come within the rule which makes the certificate of acknowledgment conclusive in favor of an innocent purchaser in good faith and who has relied on the truth of the certificate. 19
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  (19)  De Arnaz v. Scandon, 59 Cal., 486

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Proof of Execution When Not Acknowledged

   SECTION 35.   How made.   Proof of the execution of an instrument when not acknowledged may be made, either (1) by the party executing it, or either of them; (2) by a subscribing witness; or (3) by other witnesses, who, under certain conditions are permitted to testify to the handwriting of the party or subscribing witness. 20  (See Handwriting, when may be proved, Secs. 38-39, post.)

   SECTION 36.   Subscribing witness defined.   A subscribing witness is one who sees a writing executed or hears it acknowledged, and at the request of the party thereupon signs his name as a witness. 21

   SECTION 37.  By Subscribing Witness, requisites of.  If proof of the execution of an instrument is made by subscribing witness, such witness must be personally known to the officer taking the 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. 22   And the subscribing witness must prove that the person whose name is subscribed to the instrument as a party, is the person described in it, and that such person executed it.
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  (20)  Civil Code, §1195
  (21)  Code of Civil Procedure, §1935
  (22)  Civil Code, §1196

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and that the witness subscribed his name thereto as a witness. 23
  [Appendix Form No. 8.]

   SECTION 38.   By Handwriting, when may be made.   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 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. 24  (See Mode of recording when
           execution has been established by proof of handwriting, Sec. 52, post.)
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  (23)  Civil Code, §1197
  (23)  Civil Code, §1198

ACKNOWLEDGMENT AND PROOF

In Follmer v. Rohrer, 158 Cal. 759, the point was made that the deed in question, being neither acknowledged nor witnessed, was not an instrument “entitled to be proved for record” and that the plaintiffs had not, therefore, shown their right under section 1203 of the Civil Code (see Section 40, post) to a “judgment proving such instrument.”  The court there held that under the foregoing section providing that “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; *** ” The subscription of a witness is not necessary to the validity of a deed, and the language of the section last quoted carries the clear implication that where there is no such witness, proof of the handwriting of the party executing is sufficient.

 SECTION 39.   What must be proved by evidence of handwriting.   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 

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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. 25
[Appendix Forms Nos. 9, 10 and 11.]

   SECTION 40.   Powers of officer taking proof.   Officers authorized to take the proof of instruments are authorized in such proceedings:
	1.   To administer oaths or affirmations.
	2.   To employ and swear interpreters.
	3.   To issue subpoena.
	4.   To punish for contempt.26

Certificate of Proof.

   SECTION 41.  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. 27
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  (25)  Civil Code, §1199
  (26)  Civil Code, §1201
  (27)  Civil Code, §1200

AKNOWLEDGMENT AND PROOF

Defective Certificates.
   SECTION 42.   Notary may not correct.  It is the duty of the notary to take the acknowledgment and certify it as a part of the same transaction.  After taking the acknowledgment and making and delivering the return, he is discharged from all further authority over the subject. 28  Therefore, if he has made a false or defective certificate and the instrument has been recorded or offered in evidence, he cannot alter or amend it.

   SECTION 43.   Action to amend.  But what he cannot do can be done under the provisions of Sections 1202 and 1203 of the Civil Code, which provide that when the acknowledgment or proof of the execution of an instrument is property made but defectively certified, any party interested may have an action in the superior court to obtain a judgment correcting the certificate; 29 and any person interested under an instrument entitled to be proved for record, may institute an action in the superior court against the proper parties to obtain a judgment proving such instrument. 30  A deed, although it is neither acknowledged nor witnessed, is an instrument entitled to be proved for record. 31
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  (28)  Bours v. Zachariah. 11 Cal., 281; Wedel v. Herman, 59 Cal., 507.
  (29)  Civil Code, §1202
  (30)  Civil Code, §1203
  (31)  Follmer v. Rohrer, 158 Cal. 755.

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   SECTION 44.	   Judgment attached to instrument may be recorded.   A certified copy of such a judgment showing the proof of the instrument and attached thereto, entitles such instrument to record with like effect as if acknowledged. 22

   SECTION 45.   Defectively acknowledged instruments validated.  It has been the custom of the legislature, however, from time to time, to validate all previously recorded instruments, notwithstanding any defect, omission, or informality in the execution of the instrument, or in the certificate of acknowledgment thereof, or the absence of any such certificate.  This is done by amendment to Section 1207 of the Civil Code.

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(32)  Civil Code, §1204

RECORDING OF INSTRUMENTS

CHAPTER III.

RECORDING OF INSTRUMENTS.

§46		Acknowledgment necessary.
  47-49	What may be recorded without acknowledgment.
  50-52	Mode of recording.
  53-55	Purpose and effect of recording.
  56		Effect of failure to record.
  57		Unrecorded instrument, when valid.
  58		Instruments to be acknowledged and recorded.

Acknowledgment Necessary.

   SECTION 46.  Any instrument affecting the title to or possession of real property may be recorded – unless it belongs to one of the classes expressly excepted from the rule (see What may be recorded without acknowledgment, Secs. 47-49, post) – when and only when its execution has been acknowledged by the person executing it, or, if executed by a corporation, by its president or secretary or other person executing it on behalf of the corporation, or proved by a subscribing witness, or the execution established by proof of the handwriting, and the acknowledgment or proof certified as prescribed by law and as set forth in the foregoing chapter. 1  The stat-
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  (1) Civil Code,  §§1158,1161

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ute is mandatory and these steps must be taken before an instrument can be recorded.
   It is provided, however, that whenever a grant of real property is made to a political corporation or governmental agency, for public purposes, that is shall not be accepted for recordation without the consent of the grantee evidenced by its resolution of acceptance attached to such deed or grant.

What May Be Recorded Without Acknowledgment.
   
   SECTION 47.  Judgments. Judgments affecting the title to or possession of real property authenticated by the certificate of the clerk of the court in which such judgments were rendered (and notices of location of mining claims) may be recorded without acknowledgment or further proof. 2  Also, we have seen, a judgment obtained in an action brought for the purpose of correcting a defective certificate of acknowledgment, when attached to the instrument, entitles the same to record.  (See judgment attached to instrument may be recorded, Sec. 44, supra.)

   SECTION 48.  Letters patent. Letters patent from the United States or from the state of California, executed and authenticated pursuant to existing law, may be recorded without ac-
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  (2)  Civil Code, §1159

RECORDING OF INSTRUMENTS

Knowledgment or further proof. 3  This refers only to the recording of letters patent affecting real property for an invention are, of course, not entitled to record.

   SECTION 49.   Certificates of residence.   Any person, firm, or corporation, may record in the office of the county recorder of any county in the state of California a certificate setting forth the name of said person, firm, or corporation, and the place of residence of said person, firm, or corporation, and the place where service of summons may be made upon said person, firm, or corporation.  The said certificate must be verified by the oath of the person, or of a member of the firm, or officer of the corporation making the same, and may be recorded without acknowledgment.  Such person, firm, or corporation may upon a change of place of residence file affidavit as herein provided and such last affidavit filed shall be the place designated as the place where service of summons may be made herein provided.  The fee of the recorder for recording said certificate shall keep in his office an index entitled “Index to Certificates of Residence,” in which must be entered name of the person, firm, or corporation in whose behalf said certificate was filed. 4
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  (3)  Civil Code, §1160
  (4)  Civil Code, §1163

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Mode of Recording.

   SECTION 50.   Instrument must be recorded where.    The instrument must be recorded in the office of the county recorder of the county in which the real property affected is situated. 5   The different classes of instruments have been generally recorded in different sets of books, but the recorder now has discretion under section 4131 of the Political Code to record all instruments in one general series of books called “Official Records”.

   SECTION 51.   When deemed recorded.   The instrument is deemed to be recorded when, being duly acknowledged or proved and certified, it is deposited with the proper officer for records. 6    The time of recording is endorsed on the instrument when deposited, and is important, as it gives constructive notice from the moment it is filed with the recorder.  (See Constructive notice, Sec. 53, post.)

   SECTION 52.   When execution is established by proof of handwriting.   When the execution of an instrument is established by proof of handwriting (see Proof by handwriting when may be made, Secs. 38, 39), the instrument, though prop-
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  (5)  Civil Code, §§1169, 1171
  (6)  Civil Code, §1170

RECORDING OF INSTRUMENTS

erly  proved and certified according to law, may only be recorded in the proper office if the original is at the same time deposited therein to remain for public inspection. 7

Purpose and Effect of Recording.
   SECTION 53.   Constructive notice.   Every conveyance of real property, acknowledged or proved, and certified and recorded, from the time it is filed with the recorder for record, is constructive notice of the contents thereof to subsequent purchasers and mortgagees; 8 and such notice is conclusive, except that it has been held that this language only contemplates conveyances by persons having title, and does not apply to a deed by a stranger. 9  Until so filed for record the instrument is void as against subsequent bona fide purchasers or mortgagees without notice. (See Effect of failure to record, Sec. 56, post, and Unrecorded instrument, when valid, Sec. 57, post.)    
  
   SECTION 54.   Certified copy may be recorded in another county.   A certified copy of any such recorded conveyance, or a certified copy of the record of such instrument, may be recorded in any other county, and when so recorded the record thereof shall have the same force and effect as
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  (7)  Civil Code, §1162
  (8)  Civil Code, §1213
  (9)  Bothin v. Cal. Title Ins. Co. 153. Cal. 724

RECORDING OF INSTRUMENTS

though it was of the original conveyance, and where such original conveyance has been recorded in any county wherein the property therein mentioned is not situated, a certified copy of such recorded conveyance may be recorded in the county where such property is situated with the same force and effect as if the original conveyance has been recorded in such county. 10  

   SECTION 55.   Record of instrument may be used in evidence.   It is further provided that the original record of such conveyance or instrument, acknowledged or proved and certified as provided by law, or a certified copy of the record of such conveyance or instrument thus acknowledged or proved, may be read in evidence on a trial in court with like effect as the original instrument, without further proof. 11

Effect of Failure to Record.

   SECTION 56.  Every conveyance of real property, other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded, and as against any judgment affecting
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  (10)  Civil Code, §§1213, 1218.
  (11)  Code of Civil Procedure, §1951

RECORDING OF INSTRUMENTS

The title, unless such conveyance shall have been duly recorded prior to the record of notice of action, and the term “conveyance” as used here, embraces every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged or encumbered. 11

   Consequently, a deed of land executed prior to a mortgage of the same land to another party, but recorded after the mortgage, is subject and subsequent to the mortgage if the mortgagee took in good faith, for value, and without actual notice of the deed; 12 and a subsequent mortgage first recorded, takes precedence over a prior unrecorded mortgage, if taken in good faith and for a valuable consideration, without notice. 13

Unrecorded Instrument, When Valid.

   SECTION 57.   An unrecorded instrument is valid, as between the parties thereto and those who have notice thereof. 14  Therefore, a purchaser with notice of another’s claim cannot take advantage of the fact that the conveyance under which the other claims was not recorded. 15  The rule as to what constitutes notice is, that notice of
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  (11)  Civil Code, §§1214, 1215; Warnock v. Harlow, 96 Cal., 306
  (12)  Emeric v. Alvarado, 90 Cal., 444
  (13)  Odd Fellows’ Sav. Bk. V. Bouton, 46 Cal., 605
  (14)  Civil Code, §1217
  (15)  Robinson v. Muir, 151 Cal. 122

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facts sufficient to put one upon inquiry is notice of all the facts to which inquiry would lead. Hence, possession is notice to all the world of the holder’s rights, and it has been held that one who purchases land in the possession of a third person, has no right to rely on the record title alone in making the purchase, but is bound to look beyond the record title for the purpose of ascertaining what rights, if any, the party in possession has in the premises.16   In another case, where a person about to make a loan and take a mortgage upon land as security employed an agent to make the negotiation, a declaration made by a tenant in possession to the agent that another person had an interest in the land, was sufficient to put the mortgagee on inquiry, and if he failed to make such inquiry, the mortgage was subject to the rights of such other person in the land even though the paper title appeared to be in the mortgagor. 17

Instruments to be Acknowledged and Recorded.

   SECTION 58.  As one of the duties of notaries (see Duties, Sec. 5, sub 2, supra) is, “to take the acknowledgment or proof of powers of attorney, mortgages, deeds, grants, transfers, and
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  (16)  Security, etc. Co. v. Williamette, etc. Co., 99 Cal., 636; Pollard v. Rebman,
          162 cal., 633; Shurtleff v. Kehrer, 163 Cal., 24
  (17)  Bauer v. Pierson, 46 Cal., 293

RECORDING OF INSTRUMENTS

other instruments of writing, executed by any person, and to give a certificate of such proof or acknowledgment indorsed on or attached to the instrument,” and as such officers are frequently called upon to draw these instruments, as well as constantly required to handle them, the next three chapters on deeds, mortgages, and homesteads will set forth the general law governing such instruments.

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CHAPTER IV.

DEEDS.

§59		Definitions.
 60  		Separate and community property.
 61			Must be in writing.
 62-66	Form and contents of.
 67-70	Execution.
 71-74     Power of Attorney.
 75-78	Delivery.
 79			Interpretation of.
 80-83	Effect of.
 84			Instrument made with intent to defraud, when void.

Definitions.

   SECTION 59.   A deed is a written instrument executed and delivered, by which the title and possession of real property is transferred from one person to another.  It is described in the Civil code as a “grant of an estate in real property.”  A “grant, bargain and sale” deed is, as the name implies, a grant by way of bargain and sale.  This form of deed imports a transfer and delivery of property by one person to another for a consideration agreed upon between them as the value of the property, and the words “grant, bargain and sell” imply a general warranty that the grantor has done no act by which the estate conveyed by him can be defeated.  (See Implied covenants, Sec. 83. post.)

DEEDS

   A “gift” deed is a voluntary transfer of property without any consideration or compensation. The consideration recited in the established form of gift deed is, “love and affection which the party of the first part has and bears unto the party of the second part, as also for the better maintenance, support, protection and livelihood of the party of the second part.”  The effect of a gift deed to a husband or wife is to make the property conveyed the separate property of the grantee.  (See Separate and community property, Sec. 60, post).

   A life estate may be reserved by the grantors by including in the habendum clause of the deed a proviso that they reserve the right to the use and occupation of the property so long as they, or either of them, shall live.  An estate may also be granted for life, but whenever the death of a person terminates a life estate, a legal proceeding is necessary to establish such death and the termination of the life estate.

   By a “joint-tenancy” deed property may be transferred to two persons, or the survivor of them, and to the heirs or assigns of the survivor.  Under such a deed upon the death of either joint-tenant the property goes to the survivor, but in that case also a proceeding is necessary to establish the death of the joint-

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tenant and the termination of the joint-tenancy.  A joint-tenancy deed should not be drawn without careful thought, as it can be readily seen that such a deed may work out unfairly as to the heirs of the joint-tenant who shall die first.
	A “quit-claim” deed only purports to pass whatever title, or apparent title, the grantor has in the property conveyed.  It conveys whatever title the grantor has, but does not convey after-acquired title. (See Effect of, Sec. 80 post).
   A “correction” deed may be made for the purpose of correcting mistakes in a prior conveyance. Such a deed must distinctly show and define the mistake that it is intended to correct; but a void deed cannot be confirmed by the giving of a subsequent deed by way of correction. (See Description of property, Sec. 66, post).
	A conveyance may be to a person or persons in trust, for the purpose of securing the performance of certain specified acts, and the instrument is then called a “deed of trust.” (See Deeds of trust, Sec. 88 post).
   SECTION 60.   Of Separate and community property.  All property owned before marriage and that acquired afterwards by gift, bequest, devise or descent, is separate property, and all other property acquired after marriage is community property. 1
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  (1)  Civil Code, §§162-164

DEEDS

   Consequently, when a husband makes a deed of gift to his wife, whether of his own separate property or of community property, the property granted thereupon becomes the separate property of the wife, and vice versa.  Gift deeds have frequently been passed between husband and wife for the purpose of avoiding probate proceedings without considering their effect upon the nature of the property.
   Whenever property is conveyed to a married woman the presumption is that the title is thereby vested in her as her separate property, but a conveyance to the husband alone is presumptively to the community. 2  A conveyance to both husband and wife presumptively vests an undivided one-half interest in the wife as her separate property. 3
   It has also been held that under a grant, bargain and sale deed by a husband to his wife of his separate property for an expressed consideration of ten dollars, where no consideration was in fact paid, the property became the wife’s separate property. 4   Hence, in a grant, bargain and sale deed from husband and wife, a valuable consideration should be shown unless it is intended to be a gift vesting title in the wife as her separate property.
_________
  (2)  Civil Code, §164,
  (3)  Gilmour v. North Pasadena Land Co., 178 Cal., 6.
  (4)  Estate of Klumpke, 167 Cal., 415.

NOTARY’S MANUAL

Must Be in Writing.

   SECTION 61.   An estate  in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing. 5
	 
   Under the statute of frauds, any agreement that by its terms is not to be performed within a year from the making thereof, is valid unless put in writing, 6  and the supreme court has held that if the time from the making of the agreement to the end of its performance exceeds a year ever so little, this statue applies, and consequently an oral lease for one year to commence in futuro is void. 7  An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission must also be in writing. 8

Form and Contents of.

  SECTION 62.   Code form.  The code form of a grant of real property is as follows:
   “I, A B, grant to C D all that real property situated in (insert name of county)  county, state
_________
  (5)  Civil Code, §1091
  (6)  Civil Code, §1624, Sub. 1
  (7)  Wickson v. Monarch Cycle Mfg. Co., 128 Cal., 153
  (8)  Civil Code, §1624, Sub. 6

DEEDS

of California, bounded (or described) as follows:  (her insert description, or if the land sought to be conveyed has a descriptive name, it may be described by the name, as, for instance, ‘The Norris Ranch’).

   “Witness my hand, this (insert day)  day of (insert month),  19--.              A B.”  9
   
   It is customary in drawing deeds to use the printed forms which are in common use, and which are generally safe.  It is then only necessary to fill in the date, parties, consideration and description of property.

   SECTION 63.   Parties.   The parties to the instrument should be named and described.  A deed which does not contain the name of the grantee would be void as a conveyance.  If the grantee is misnamed the grantor cannot by a subsequent deed correct an error in the grantee’s name. 10   Furthermore, a deed is void unless the grantee named is a person, either natural or artificial, capable of taking the property conveyed; 11  hence, a deed to the estate of a deceased person is a nullity, as the estate cannot be recognized as a party to a contract. 12  Neither should
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   (9)   Civil Code, §1092
 (10)   Walters v. Mitchell, 6 Cal. App. 410
 (11)   Rixford v. Zeigler, 150 Cal., 435
 (12)   Simmons v. Spratt, 1 So. (Fla.), 860: McInerney v. Beck, 39 Pac. (Wash.), 
          130

 

NOTARY’S MANUAL

there be any variance between the name of the grantor as it appears in the body of the deed and the signature.  In case the grantor has, since acquiring the property, has changed his or her name from any cause, conveyance should set forth the name in which the title to the property stands as well as his or her present name. 13

   SECTION 64.   Consideration.   A consideration need not be expressed in a deed.  It is usual to recite a consideration, however, even though it be a nominal one.  In this state a written instrument is presumptive evidence of a consideration.  Either party may show that the real consideration was.

   SECTION 65.   Words of inheritance.  Words of inheritance or succession are not requisite to transfer a fee in real property, 14 but they, too, are usually inserted.

   SECTION 66.  Description of property.  Great care should be taken to have the description of property minute and accurate.  An error in the description is sure to cause future annoyance and trouble.  Should an error inadvertently be made in the description it can be corrected by a subsequent deed between the same parties.  In such subsequent deed a statement, showing the purpose of the deed, should be inserted after
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  (13)  Civil Code, §1096
  (14)  Civil Code, §1072

DEEDS

the habendum clause; as, for instance, “This deed is made for the purpose of correcting an error in the description of property contained in that certain deed (describing it), and to make such description more definite and certain.”  As before stated, however, a correction deed cannot be used to correct an error in the grantee’s name.  (See Parties, Sec. 63, ante.)

Execution.

   SECTION 67.   In general.   The deed should be subscribed by the grantor, and when subscribed should be acknowledged as provided in the chapter on “Acknowledgment and Proof of Instruments.”

   SECTION 68. By person who cannot write. The word “signature” or “subscription” includes mark, and when a person cannot write, he may make his mark and his name may be written near it by a person who writes his own name as a witness.  It is provided, however, that when a signature is by mark, it must, in order that the same may be acknowledged or may serve as the signature to any sworn statement, be witnessed by two persons who must subscribe their own  names as witnesses thereto. 15  This applies to all written instruments, and notaries are frequently called upon to sign for and take the ac-
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  (15)  Code of Civil Procedure, §17

NOTARY’S MANUAL

knowledgment of persons who cannot write.  It is usual in such cases to make the statement that “-----, being unable to write his name, has made his mark, and I, at his request and in his presence, have written his name for him near his mark, and now sign my own name as a witness,” and have the same attested by two other witnesses.

   SECTION 69.   By attorney in fact.   When an attorney in fact executes an instrument transferring an estate in real property, he must subscribe the name of his principal to it, and his own name as attorney in fact. 16  (See Power of attorney, Secs. 71-74, post.)

   SECTION 70.   By married women.   A grant or conveyance of real property made by a married woman may be made, executed, and acknowledged in the same manner and has the same effect as if she were unmarried. 17

Power of Attorney.

   SECTION 71.   Defined.   “Power of attorney” indicates that a power or authority is conferred.  It is an instrument by which the authority of one person to act in the place and stead of another is set forth.  It must be in writing, subscribed, acknowledged or proved, certified and recorded.  A
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  (16)  Civil Code, §1095
  (17)  Civil Code, §1093

POWER OF ATTORNEY

general power of attorney confers power to act generally; a special power of attorney confers power to perform some particular act.

   SECTION 72.   By married women.   A married woman may make, execute, and revoke powers of attorney for the sale, conveyance, or encumbrance of her real or personal estate, which shall have the same effect as if she were unmarried, and may be acknowledged in the same manner as a grant of real property. 18

   SECTION 73.   Revocation of.   No instrument containing a power to convey or execute instruments affecting real property, which has been recorded, is revoked by any act of the party by whom it was executed, unless the instrument containing such revocation is also acknowledged or proved and certified, and recorded in the same office in which the instrument containing the power was recorded. 19 

   SECTION 74.   Termination of.   Under the law of agency, a power of attorney, unless coupled with an interest in the subject of the agency, is terminated as to every person having notice thereof, by:
	1.	Its revocation by principal;
	2.	His death; or,
	3.	His incapacity to contract. 22
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  (18)  Civil Code, §1094
  (19)  Civil Code, §1216
  (20)  Civil Code, §2356

NOTARY’S MANUAL

Delivery of Deed.

   SECTION 75.   Necessity of.    A grant takes effect so as to vest the interest intended to be transferred, only upon its delivery by the grantor. 20  Delivery is essential to give the conveyance legal effect, and a valid delivery is only made when the conduct and acts of the grantor manifest a present intent to dispose of the title conveyed.  A delivery merely for the purpose of safe keeping or custody is not such a delivery. 21  Further, a deed cannot be delivered conditionally.  Delivery to the grantee, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon. 23  This applies to a grant of personal property as well as of real property.  A grant duly executed is presumed to have been delivered at its date. 24  It is well settled that delivery is not complete until the grantor has so dealt with the instrument that he has lost all control over it.  Therefore, if a person should make a deed and duly acknowledge it before a notary public, but keep it in his possession and die without having delivered it, the deed is of no effect.  (See Redelivery, Sec. 78, post.)
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  (20)  Civil Code, §1054
  (21)  Follmer v. Rohrer, 158 Cal., 755
  (22)  Civil Code, §1056
  (23)  Civil Code, §1055

DEEDS

A notary, therefore, is not justified in signing a deed as a witness to the delivery, unless he has seen it delivered, with intent to delivery.

   SECTION 76.   In Escrow.   The law provides for the delivery of a deed in escrow, thus: A grant may be deposited by the grantor with a third person, to be delivered on performance of a condition, and, on delivery by the depositary, it will take effect.  While in the possession of the third person, and subject to condition, it is called an escrow. 25  On the performance of the condition it becomes incumbent on the depositary to make delivery.  The grantor must have intended to part with the possession for all time, and cannot revoke it after delivery in escrow. 26

   SECTION 77.   Constructive delivery.   Though a deed be not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered in the following cases:
   1.   Where the instrument is, by the agreement of the parties at the time of 
          execution, understood to be delivered, and under such circumstances that the 
          grantee is entitled to immediate delivery; or
   2.   Where it is delivered to a stranger for the benefit of the grantee, and his 
          assent is shown, or may be presumed. 27
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  (25)  Civil Code, §1057
  (26)  McDonald v. Huff, 77 Cal., 279; Whitney v. Sherman, 178 Cal., 435
  (27)  Civil Code, §1059

 NOTARY’S MANUAL

   SECTION 78.   Redelivery.   Redelivering a grant of real property to the grantor, or canceling it, does not operate to retransfer the title. 28  It can only be retransferred by an instrument as formal as the one transferring it.

Interpretation of.

   SECTION 79.   In the construction of a deed the understanding and intention of the parties should be ascertained, and for this purpose the whole of the instrument should be considered. 29   A clear and distinct provision in a grant is not controlled by other words less clear and distinct.  If the operative words of a grant are doubtful, recourse may be had to its recitals to assist the construction.

   It is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor.

   If several parts are absolutely irreconcilable, the former parts prevails.

   Where a future interest is limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, or in equivalent words, such words must be taken to mean
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  (28)  Civil Code,   (28)  Civil Code, §1058
  (29)  Stockton v. Weber, 98 Cal., 433

DEEDS

successors, or issue living at the death of the person named as ancestor. 30

Effect of.

   SECTION 80.   What passes.  A fee-simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended.  Where a person purports by proper instrument to convey real property in fee simple, without expressly restricting the conveyance to any particular interest therein, and subsequently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors. 31  Even if the grantor had no title whatever to land at the time he executed a grant, bargain, and sale deed of it purporting to convey the fee, any title he afterwards acquired would pass to his grantee under such deed. 32  This is not true of a quit-claim deed.  As a rule, a quit-claim deed does not carry after-acquired title.  A grant made by the owner of an estate for life or years, purporting to transfer, does not work a forfeiture of his estate, but passes to the grantee all the estate which the grantor could lawfully
________
  (30)  Civil Code. §§1067-1071; Pavkovich v. S.P.R.R. Co. 150 Cal. 45
  (31)  Civil Code, §§1105,1106
  (32)  Cecil v. Gray, 170 Cal., 137

NOTARY’S MANUAL

transfer. 33  A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed. 34 A transfer  of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant. 35  Where a grant is made upon condition subsequent, and is subsequently defeated by the non-performance of the condition, the person otherwise entitled to hold under the grant must reconvey the property to the grantor or his successors, by grant duly acknowledged for record.  An instrument purporting to be a grant of real property, to take effect upon condition precedent, passes the estate upon the performance of the condition. 36

   SECTION 81.   As to tenants   Grants of rents or of reversions or of remainders are good and
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  (33)  Civil Code, §1108
  (34)  Civil Code, §§1104,1084
  (35)  Civil Code, §1112; Warden v. Realty Co. 178 Cal., 440.
  (36)  Civil Code, §§1109, 1110

DEEDS

effectual without attornments of the tenants; but no tenant who, before notice of the grant, shall have paid rent to the grantor must suffer any damage thereby. 37

   SECTION 82.   How far conclusive.  Every grant of an estate in real property is conclusive against the grantor, also against every one subsequently claiming under him, except a purchaser or encumbrancer who in good faith and for a valuable consideration acquires a title or lien by an instrument that is first duly recorded. 38  (See Effect of failure to record, Sec. 56, supra.)

   SECTION 83.   Implied covenants.   From the use of the word “grant” in any conveyance by which an estate of inheritance or fee-simple is to be passed, on the part of the grantor, for himself and his heirs, to the grantee, his heirs and assigns, are implied unless restrained by express terms contained in such conveyance:

   1.   That, previous to the time of the execution of such conveyance, the grantor
          has not conveyed the same estate, or any right, title, or interest therein, to
          any person other than the grantee.
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  (37)  Civil Code, §1111
  (38)  Civil Code, §1107

NOTARY’S MANUAL

   2.   That such estate is at the time of the execution of such conveyance free from
         encumbrances done, made, or suffered by the grantor, or any person claiming 
         under him.

   Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance. 39

Instrument Made with Intent to Defraud, When Void.

   SECTION 84.   Every instrument, other than a will, affecting an estate in real property, including every charge upon real property, or upon its rents or profits, made with intent to defraud prior or subsequent purchasers thereof, or encumbrancers thereon, is void as against every purchaser or encumbrancer, for value, of the same property, or the rents or profits thereof.  But no instrument is to be avoided hereunder in favor of a subsequent purchaser or encumbrancer having notice thereof at the time his purchase was made, or his lien acquired, unless the person in whose favor the instrument was made was privy to the fraud intended. 40

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  (39)  Civil Code, §1113
  (40)  Civil Code, §§1227, 1228

MORTGAGES

CHAPTER V.

MORTGAGES.

§85		Nature of mortgages in general.
  86		Possession of the property.
  87		Transfer when a mortgage.
  88		Deeds of trust.
  89 		Foreclosure.
  90		Power of attorney to execute.
  91		Assignment of debt.
  92		Record of assignment of mortgage.
  93		How discharged of record.
  94		Satisfaction of mortgages.
  95		What real property may be mortgaged.
  96		Form of mortgages of real property.
  97		When grant of real property is recorded as mortgage.
  98		Record of mortgages of real property.
  99		What personal property may be mortgaged.
100		Form of personal property mortgages.
101		Further requisites of personal property mortgages.
102-107	Record of personal property mortgages.
108-109	Removal of personal property mortgaged.
110		Attachment of personal property mortgaged.
111		Mortgage on crops.

Nature of Mortgages in General.

   SECTION 85.   Mortgage as defined by the Civil Code, is a contract by which specific property is hypothecated for the performance of an act without the necessity of a change of possession.  It conveys no title, but gives only the security of a lien upon property.  It may be created upon property held adversely to the mortgagor.  It can be created, renewed or extended only by

NOTARY’S MANUAL

writing executed with the formalities required in the case of a grant of real property.  The lien of a mortgage is special, unless otherwise expressly agreed, and is independent of possession. 1  It is a lien on everything that would pass by a grant of the property. 2  It does not bind the mortgagor personally to perform the act for the performance of which it is security, unless there is an express covenant to that effect.  Title acquired by the mortgagor subsequent to the execution of the mortgage enures to the mortgagee as security for the debt in like manner as if acquired before the execution.  The person whose interest in the property is subject to the lien of a mortgage may not do any act to impair the mortgagee’s security. 3

Possession of the Property.

   SECTION 86.   A mortgage does not entitle the mortgagee to the possession of the property, unless authorized by the express terms of the mortgage; but after the execution of the mortgage the mortgagor may agree to such change of possession without a new consideration. 4
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  (1)  Civil Code, §§2920-2923
  (2)  Civil Code, §2926
  (3)  Civil Code, §§2928-2930
  (4)  Civil Code, §2927

MORTAGAGES

   The instrument is required to be recorded, in order to give notice to subsequent purchasers or mortgagees, and the recording instrument is substituted in place of the change of possession.  A change of possession of personal property mortgaged, would change it into a pledge.

Transfer When a Mortgage.

   SECTION 87.   Every transfer of an interest in property, other than in trust, made only as security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which it is deemed a pledge. 5
   Consequently, a deed absolute on its face, if made as a security for the payment of a debt, is in reality a mortgage, and the fact that a transfer was made subject to defeasance on a condition may, for the purpose of showing such transfer to be a mortgage, be proved (except as against a subsequent purchaser or encumbrancer for value and without notice), though the fact does not appear by the terms of the instrument. 6  (See When grant of real property is recorded as mortgage.  Sec. 97, post.)
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  (5)  Civil Code, §2924
  (6)  Civil Code, §2925

NOTARY’S MANUAL

Deeds of Trust.

   SECTION 88.   Notice of default and election to sell.   In 1917 section 2924 of the Civil Code of this state relative to sales of property under deeds of trust was amended so as to require notice of the breach of obligation and of election to sell, to be recorded at least three months prior to the sale, and the exact language of that section as now amended is as follows:
   “Where, by a mortgage created after July 27, 1917, of any estate in real property, other than an estate at will or for years, less than two, or in any transfer in trust made after July 2, 1917, of a like estate to secure the performance of an obligation, a power of sale is conferred upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for which such mortgage or transfer is a security, such power shall not be exercised (except where such mortgage or transfer is made pursuant to an order, judgment, or decree of a court of record, or to secure the payment of bonds or other evidences of indebtedness authorized or permitted to be issued by the commissioner of corporations, or is made by a public utility subject to the provision of the public utilities act), until (a) the trustee, mortgagee or beneficiary shall first record, in the office of the recorder of the

MORTGAGES

country wherein the mortgaged or trust property or some part thereof is situated, a notice of such breach and of his election to sell or cause to be sold such property to satisfy the obligation; (b) not less than three months shall thereafter elapse; and (c) the mortgagee, trustee or other person authorized to make the sale shall give notice of the time and place thereof in the manner and for a time not less than that required by law for sales of real property upon execution.”

Foreclosure.

   SECTION 89.   A mortgage is usually given as security for a debt, and the debt is evidenced by a promissory note, copy of which is usually inserted in the mortgage.  If the debt is not paid in accordance with the terms of the note, the mortgagee may foreclose the mortgage in the manner prescribed by law.  A power of sale may be conferred by the mortgagor upon the mortgagee or any other person, to be exercised ed after a breach of the obligation for which the mortgage is security. 7

Power of Attorney to Execute.

   SECTION 90.  A power of attorney to execute a mortgage must be in writing, subscribed, ac-
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   (7)  Civil Code, §§2931, 2932

NOTARY’S MANUAL

knowledged or proved, certified and recorded, in like manner as powers of attorney for grants of real property. 8

Assignment of Debt.

   SECTION 91.   The assignment of a debt secured by a mortgage, carries with it the security. 9

   When the mortgage is executed as security for money due, or to become due, on a promissory note, bond, or other instrument, designated in the mortgage, the record of the assignment of the mortgage is not, of itself, notice to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them, or either of them, to the person holding such note, bond, or other instrument.10
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  (8)  Civil Code, §2933
  (9)  Civil Code, §2936
(10)  Civil Code, §§2934, 2935

MORTGAGES

How Discharged of Record.

   SECTION 93.   A record mortgage may be discharged by an entry in the margin of the record thereof, signed by the mortgagee, or his personal representative or assignee, acknowledging the satisfaction of the mortgage in the presence of the recorder, who must certify the acknowledgment in form substantially as follows: 
   “Signed and acknowledged before me, this -----------day of ----------, in the year ---------.  A. B. Recorder.”

   A recorded mortgage, if not discharged as above provided must be discharged upon the record by the officer having custody thereof, on the presentation to him of a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged or proved and certified as prescribed by the chapter on recording transfers, stating that the mortgage has been paid, satisfied, or discharged.

   Foreign executors, administrators and guardians may satisfy mortgages upon the records of any county in this state, upon producing and recording in the office of the county recorder of the county in which such mortgage is recorded, a duly certified and authenticated copy of their letters testamentary or of administration, or of

 

NOTARY’S MANUAL

guardianship, and which certificate or authentication shall also recite that said letters have not been revoked.

   A certificate of the discharge of a mortgage, and the proof or acknowledgment thereof, must be recorded at length, and a reference made in the record to the book and page where the mortgage is recorded, and in the minute of the discharge made upon the record of the mortgage to the book and page where the discharge is recorded. 11

Satisfaction of Mortgages.

   SECTION 94.   When any mortgage has been satisfied, the mortgagee or his assignee must immediately, on demand of the mortgagor, execute, acknowledge, and deliver to him a certificate of the discharge thereof, so as to entitle it to be recorded, or he must enter satisfaction, or cause satisfaction of such mortgage to be entered of record, and any mortgagee, or assignee of such mortgagee, who refuses to execute, acknowledge, and deliver to the mortgagor the certificate of discharge, or to enter satisfaction, or cause satisfaction of the mortgage to be entered, as pro-
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  (11)  Civil Code, §§2938-2940

MORTGAGES

vided in this chapter, is liable to the mortgagor, or his grantee or heirs, for all damages which he or they may sustain by reason of such refusal, and shall also forfeit to him or them the sum of one hundred dollars. 12

   What Real Property May Be Mortgaged.
   SECTION 95.   Any interest in real property which is capable of being transferred may be mortgaged. 13

Form of Mortgage of Real Property.
   SECTION 96.   The code form of mortgage of real property is as follows:
   “This mortgage, made the ------day of -----, in the year -----, by A B, of ----, mortgagor, to C D, of -----, mortgagee, witnesseth, ----
   “That the mortgagor mortgages to the mortgagee (here describe the property), as security for the payment to him of -----dollars, on (or before) the ----day of ----, in the year-----, with interest thereon (or as security for the payment of an obligation, describing it, etc)
           “A B.”  14

When Grant of Real Property is Recorded as Mortgage.
    SECTION 97.   When a grant of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of
______
  (12)  Civil Code, §2941
  (13)  Civil Code, §2947
  (14)  Civil Code, §2948

NOTARY’S MANUAL

certain conditions, such grant is not defeated or affected as against any person other than the grantee, or his heirs or devisees, or persons having actual notice, unless an instrument of defeasance, duly executed and acknowledged, shall have been recorded in the office of the county recorder of the county where the property is situated. 15

Record of Mortgages of Real Property.
   SECTION 98.   Mortgages of real property may be acknowledged or proved, certified, and recorded, in like manner and with like effect as grants thereof. 16

What Personal Property May Be Mortgaged.
   SECTION 99.   Mortgages may be made upon all growing crops, including grapes and fruit, and upon any and all kinds of personal property, except the following:
   1.   Personal property not capable of manual delivery;
   2.   Articles of wearing apparel and personal adornment;
   3.   The stock in trade of a merchant. 17
   
   Mortgages upon personal property other than that permitted by law to be mortgaged, and mortgages not made in conformity with law, are
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  (15)  Civil Code, §2950
  (16)  Civil Code, §2952
  (17)  Civil Code, §2955

MORTGAGES

nevertheless valid between the parties, their heirs, legatees and personal representatives, and persons who, before parting with value, have actual notice thereof. 18

Form of Personal Property Mortgages.
   SECTION 100.  The form prescribed by the code is as follows:  
   “This mortgage----, by A B, of ------, by occupation a ------, mortgagor, to C D, of -----, by occupation a -----, mortgagee, witnesseth, -----
   “That the mortgagor  mortgages to the mortgagee (here describe the property), as security for the payment to him of----- dollars on (or before) the ----day of -----, in the year-----, with interest thereon (or, as security for the payment of a note or obligation, describing it, etc.)
                     				 “A B.” 19

Further Requisites of Personal Property Mortgages.
   SECTION 101.   A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith and for value, unless, ---
   1.   It is accompanied by the affidavit of all the parties thereto that it is made in
         good faith,
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  (18)  Civil Code, §2973: Bank of Ukiah v. Gibson, 109 Cal., 199
  (19)  Civil Code, §2956

NOTARY’S MANUAL

         and without any design to hinder, delay, or defraud creditors;
   2.   It is acknowledged or proved, certified, and recorded, in like manner as
         grants of real property. 20

Record of Personal Property Mortgages.

   SECTION 102.  When and where.   A mortgage of personal property must be recorded in the office of the county recorder of the county in which the mortgagor resides, if the mortgagor be a resident of this state, and it shall also be recorded in the county in which the property mortgaged is situated, or, save in the case of livestock, vehicles (other than motor vehicles) and other migratory chattels, to which it may be removed.  Except as it is otherwise in this article provided, mortgages of personal property may be acknowledged or proved, certified, and recorded in like manner and with like effect as grants of real property; but they must be recorded in books kept for personal mortgages exclusively.

   SECTION 103.   Of ships.  A mortgage of any vessel or part of any vessel under the flag of the United States is void as against any person (other than the mortgagor, his heirs and devisees, and persons having actual notice thereof), unless the mortgage is recorded in the office of the collector of customs where such vessel is registered or enrolled.
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  (20)  Civil Code, §2957

MORTGAGES

   SECTION 104.   Of Property in transit.  For the purposes of this article, property in transit from the possession of the mortgagee to the county of the residence of the mortgagor, or to a location for use, is, during a reasonable time for such transportation, to be taken as situated in the county in which the mortgagor resides, or where it is intended to be used.

   SECTION 105.   Of Property of a common carrier.     For a like purpose, personal property used in conducting the business of a common carrier is to be taken as situated in the county in which the principal office or place of business of the carrier is located.

   SECTION 106.   Of Property in different places.   A single mortgage of personal property, embracing several things of such character, or so situated that by the provisions of this article separate mortgages upon them would be required to be recorded in different places, is only valid in respect to the things as to which it is duly recorded.

   SECTION 107.   Certified copies may be recorded.   A certified copy of a mortgage of personal property once recorded may be recorded in any other county, and when so recorded, the record thereof has the same force and effect as though it was of the original mortgage. 21
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  (21)  Civil Code, §§2958-2964

NOTARY’S MANUAL

Removal of Property Mortgaged.

   SECTION 108.   Exempt from mortgage, when.  When personal property mortgaged is thereafter removed from the county in which it is situated, the lien of the mortgage shall not be affected thereby for thirty days after such removal; but, after the expiration of such thirty days, the property mortgaged, save in the case of livestock, vehicles (other than motor vehicles) and other migratory chattels, is exempted from the operation of the mortgage, except as between the parties thereto, until either:
   1.   The mortgagee causes the mortgage to be recorded in the county to which the
          property has been removed; or
   2.   The mortgagee takes possession of the property, as prescribed in the next 
         section.

   If a mortgage of livestock, vehicles (other than motor vehicles) or other migratory chattels has been recorded as provided in Section 2959 of the Civil code, and within thirty days thereafter a certificate of such record has been filed by the county recorder with the secretary of state as required by Sections 408 and 4130 of the Political Code, the property mortgaged may be removed into any county in the state without in any way affecting the lien of the mortgage. 22
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  (22)  Civil Code, §2965

  

MORTGAGES

   Failure of the mortgagee to record the mortgage in the county to which the property has been removed within thirty days after such removal ipso facto exempts the property for all time and wherever afterwards situated from the operation of the mortgage in so far as it concerns creditors of the mortgagor, unless the mortgagee within that time takes possession of the property. 23  But one who purchases such mortgaged property in the county to which it is removed within the period of thirty days after the removal, without actual notice of the mortgage, is guilty of conversion, for which conversion the mortgagee acquires a cause of action when it is committed and does not lose by failing subsequently to record the mortgage. 24

   SECTION 109.   May be taken as a pledge, when.   If the mortgagor voluntarily removes or permits the removal of the mortgaged property, save in the case of livestock, vehicles (other than motor vehicles) and other migratory chattels, from the county in which it was situated at the time it was mortgaged, the mortgagee may take possession and dispose of the property as a pledge for the payment of the debt, though the debt is not due. 25
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  (23)  Hopper v. Keys, 152 Cal. 4881
  (24)  Hammels v. Sentous, 151, Cal. 520
  (25)  Civil Code, §2966

NOTARY’S MANUAL

Attachment of Personal Property Mortgaged.
   	
   SECTION 110.  Personal  property  mortgaged may be taken under attachment or execution issued at the suit of a creditor of the mortgagor, but before the property is so taken the officer must pay or tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the county clerk or treasurer, payable to the order of the mortgagee.  When the property thus taken is sold under process, the officer must apply the proceeds of the sale as follows:

   1.   To the repayment of the sum paid to the mortgagee, with interest from the
         date of such payment; and 
   2.   The balance, if any, in like manner as the proceeds of sales under execution
         are applied in other cases. 26

   When, however, the attachment or execution creditor presents a verified statement that the mortgage is void or invalid and delivers to the officer an indemnity bond as required by Section 2969 of the Civil Code, then the officer shall take the property, and in case of execution sell it as provided by law, and in such case the officer selling the property must first apply the
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  (26)  Civil Code, §§2968, 2969, 2970.

MORTGAGES

proceeds of sale to the satisfaction of the amount specified in the process including interest and costs. 26

Mortgage on Crops.

   SECTION 111.   The lien of a mortgage on a growing crop continues on the crop after severance, whether remaining in its original state or converted into another product, so long as the same remains on the land of mortgagor. 27

  

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  (26)  Civil Code, §§2968, 2969, 2970.
  (27)  Civil Code, §2972.

NOTARY’S MANUAL

CHAPTER VI. 

HOMESTEADS.

§112			Meaning of.
  113			Head of a family, who is.
  114-118		Selection of.
  119-121		Declaration of homestead.
  122			Exemption from execution.
  123			Subject to execution when.
  124			How conveyed or encumbered.
  125			Abandonment of.
  126 			Proceedings on execution against homestead.
  127			Of insane persons.

Meaning of.

   SECTION 112.   Homestead means “home place.”   It is something distinct from the legal title, and consists of the dwelling house in which the claimant resides and the land on which the same is situated, set apart as provided by law, for the purpose of providing a home for the family and protecting it against the improvidence or misfortune of the head or other member of the family. 1  The homestead limits and qualifies the right of the owner of the title for the benefit and protection of both spouses while living, and to ensure future protection to the survivor.  (See, Effect of filing for record, Sec. 121, post.)
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  (1)  Civil Code, §1237.

HOMESTEADS

Head of a Family, Who is.

   SECTION 113.   The phrase “head of a family,”  as used in the law of homesteads, includes within its meaning, --   
	1.  The husband, when the claimant is a married person;
   	2.	Every person who has residing on the premises, with him or her, and under
          his or her care and maintenance, either, --
    		(a)   His or her minor child, or minor grandchild, or the minor child of his or
                  her deceased wife or husband;
		(b)   A minor brother or sister, or the minor child of a deceased brother or 
                  sister;
		(c)   A father, mother, grandfather, or grandmother;
		(d)   The father, mother, grandfather, or grandmother of a deceased husband 
                  or wife;
		(e)   An unmarried sister, or any other of the relatives mentioned in this 
                  section, who have attained the age of majority, and are unable to take
                  care of or support themselves. 2

Selection of.

   SECTION 114.   From what it may be selected.  If the claimant be married, the homestead may
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  (2)  Civil Code, §1261.

NOTARY’S MANUAL

be selected from the community property, or the separate property of the husband, or with the consent of the wife, from her separate property.  When the claimant is not married, but is the head of a family, within the meaning of the above section, the homestead may be selected from any of his or her property. 3

   SECTION 115.   From what it may not be selected.   The homestead cannot be selected from the separate property of the wife without her consent, shown by her making, or joining in making, the declaration of homestead. 4

   SECTION 116.   Limitation as to value.   A homestead may be selected and claimed, --

   1.   Of not exceeding five thousand dollars in value, by any head of a family;

   2.   Of not exceeding one thousand dollars in value, by any other person. 5 

   SECTION 117.   How made by head of a family.   In order to select a homestead, the husband or other head of a family, or in case the husband has not made such selection, the wife, must execute
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  (3)  Civil Code, §1238
  (4)  Civil Code, §1239
  (5)  Civil Code, §1260

HOMESTEADS

and acknowledge, in the same manner as a grant of real property is acknowledged, a declaration of homestead, and file the same for record. 6   (See Head of a family, who is, Sec. 113, supra.)

   SECTION 118.   How made by other than head of a family.   Any person other than the head of a family, in the selection of a homestead, must execute and acknowledge, in the same manner as a grant of real property is acknowledged, a declaration of homestead.  In case the homestead is selected by any other than the head of a family, the property must not exceed in value the sum of one thousand dollars. 7   (See Limitation as to value, Sec. 116,  supra.)

Declaration of Homestead.

   SECTION 119.   Contents of.   The declaration of homestead, if made by the head of a family, must contain, --

   1.   A statement, showing that the person making it is the head of a family, and, if
         the claimant is married, the name of the spouse; or, when the declaration is 
         made by the wife, showing that her husband has not made such declaration, 
         and that
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  (6)  Civil Code, §1262
  (7)  Civil Code, §1266

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she therefore makes the declaration for their joint benefit; 		
   2.   A statement that the person making it is residing on the premises, and claims them as a homestead;
   3.   A description of the premises;
   4.   An estimate of their actual cash value. 8

   If made by a person other than the head of a family it must contain everything required by subdivisions second, third and fourth above stated. 9

   SECTION 120.   Recording of.   The declaration must be recorded in the office of the recorder of the county in which the land is situated. 10

   SECTION 121.  Effect of filing for record.   From and after the time the declaration is filed for record, the premises therein  described constitute a homestead.  If the selection was made by a married person from the community property, or from the separate property of the spouse making the selection or joining therein, the land so selected on the death of either of the spouses, vests in the survivor, subject to no other liability than such as exists or has been created under the law governing homesteads; in other cases, upon
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  (8)  Civil Code, §1263
  (9)  Civil Code, §1267
(10)  Civil Code, §1264

HOMESTEADS

the death of the person whose property was selected as a homestead, it shall go to the heirs or devisees, subject to the power of the superior court to assign the same for a limited period to the family of the descedent; but in no case shall it or the products, rents, issues or profits thereof, be held liable for the debts of the owner except as provided by law; and should the homestead be sold by the owner, the proceeds arising from such sale to the extent of the value allowed for a homestead exemption as provided in this title shall be exempt to the owner of the homestead for a period of six months next following such sale. 11

   Whatever be the character of the tile or interest in the land held at the time of the filing of the declaration, the claim will attach to such title or interest, and whatever may inure to or grow out of that title will be impressed with the lien, equally with the original title. 12

Exempt from Execution.

   SECTION 122.   The homestead is protected against the claims of creditors while it is occupied as a home, and is exempt from execution and forced sale except as set forth in the next section.
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  (11)  Civil Code, §1265
  (12)  Alexander v. Jackson, 92 Cal., 519

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Subject to Execution When.

   SECTION 123.   The homestead is subject to execution or forced sale in satisfaction of judgments obtained, --

   1.  Before the declaration of homestead was filed for record, and which constitute
        liens upon the premises;
   2.  On debts secured by mechanics, contractors, sub-contractors, artisans, 
        architects, builders, laborers of every class, materialmen’s or vendors’ liens 
        upon the premises;
   3.  On debts secured by mortgages on the premises, executed and acknowledged 
        by the claimant;
   4.  On debts secured by mortgages on the premises, executed and recorded before 
        the declaration of homestead was filed for record. 13  (See Proceedings when 
        value of homestead exceeds exemption, Sec. 126, post.)

How Conveyed or Encumbered.

   SECTION 124.  The homestead of a married person cannot be conveyed or encumbered, unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife. 14
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  (13)  Civil Code, §1241
  (14)  Civil Code, §1242

HOMESTEADS

Abandonment of.

   SECTION 125.  A homestead can be abandoned only by a declaration of abandonment, or a grant thereof executed and acknowledged, -- 
   1.   By the husband and wife, if the claimant is married;
   2.   By the claimant, if unmarried.

   A declaration of abandonment is effectual only from the time it is filed in the office in which the homestead was recorded. 15

Proceedings on Execution Against Homestead.

   SECTION 126.  In all cases in which the homestead is exempt from execution and forced sale (see Exempt from execution, Sec. 122, and Subject to execution, Sec. 123, supra),  if the value of the property exceeds the homestead exemption, then the property is subject to execution for the enforcement of a judgment to the extent of such excess.  In such cases, upon proper application by a judgment creditor to the superior court for the appointment of appraisers, the homestead may be appraised, and if the appraised value exceeds the homestead exemption the appraisers must determine whether the property can be divided; if it can be, then the court must direct the appraisers
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  (15)  Civil Code, §§1243,1244

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to set off so much including the residence as will amount in value to the homestead exemption; if it cannot be divided, then the property must be sold, and the proceeds of sale to the amount of the exemption must be paid to the claimant, and the balance applied to the satisfaction of the execution.

   The application for appointment of appraisers above referred to may be made by a judgment creditor at any time within sixty days after levy of execution, but if not so made within sixty days the lien of the execution shall cease at the expiration of said period and no execution based upon the same judgment shall thereafter be levied upon the homestead.

   Further within ninety days from the date of filing the petition for such appointment, a copy thereof, with notice of the time and place of hearing must be served upon the claimant or his attorneys at least two days before the hearing, and if such notice shall not be served, the lien of the execution shall cease at the expiration of said period of ninety days, and no execution based upon the same judgment shall thereafter be levied upon the homestead. 16
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  (16)  Civil Code, §§1245-1259

HOMESTEADS

Of Insane Persons.

   SECTION 127.  In case either husband or wife becomes hopelessly insane, the husband or wife not insane may apply to the superior court of the county in which the property is situated for leave to sell or mortgage the homestead to raise money to satisfy a lien thereon, or to provided for the support and care of the sane or insane spouse or their minor children, or whenever it appears it is for the advantage, benefit and best interest of the spouses, the estate, or their dependents; and after proceedings regularly had, if it appears to the court that such husband or wife is hopelessly insane the court will make an order permitting the sale or encumbrance of such homestead by the husband or wife not insane.  17

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  (17)  Civil Code, §§1269a --1269c

NOTARY’S MANUAL

CHAPTER VII.

AFFIDAVITS.

§128			Nature of.  
  129			Use of.
  130			Authority to take.
  131-134		Requisites of.
  135			Mode of taking.

Nature of.
   SECTION 128.   An affidavit is an oath reduced to writing, sworn to before some officer authorized to administer oaths.  To make an affidavit as to any fact as to declare it under oath in writing.  There is, therefore, no such thing as an unwritten affidavit.  It is defined by the code to be “a written declaration under oath, made without notice to the adverse party.”  1  It differs from a deposition in that the latter is evidence given by a witness under interrogatories, oral or written, upon notice to the adverse party in order that he may be represented, whereas an affidavit is a mere voluntary act and may be ex parte.

Use of.
   SECTION 129.  By affidavit, is one of the modes prescribed by law for taking the testimony of witnesses.  Another mode is by deposition (see De-
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  (10  Code of Civil Procedure, §2003

 

AFFIDAVITS

positions, Secs. 136-154, post), and the third mode is by oral examination, by which is meant an examination in the presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness. 2  The rule is that the best evidence must be produced which the nature of the transaction will permit of, and, of course, affidavits are not in the nature of the best evidence by which to prove issuable facts.  The testimony of witnesses in open court, where the adverse party may have an opportunity to cross-examine, is the best method.  The use of affidavits is generally confined to matters of procedure, matters collateral, ancillary or incidental to an action or proceeding. An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceedings, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, or upon a motion, and in any other case expressly permitted by some other provision of the code, such as, to prove the publication of a document or notice required by law to be published in a newspaper. 3
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  (2)  Code of Civil Procedure, §§2002, 2004, 2005.
  (3)  Code of Civil Procedure, §§2009, 2010.

NOTARY’S MANUAL

Authority to Take.
  
   SECTION 130.   An affidavit to be used before any court, judge or officer of this state, may be taken before any officer authorized to administer oaths. 4  An attorney, if a notary, may administer an oath to and take the affidavit of his client.  It has been held that there is nothing in the law to prohibit him from doing so.  5  It is essential that the oath be taken before an officer having authority to administer it in the particular case, in order to constitute the offense of perjury.  However false an oath may be, one cannot be convicted of perjury except the officer who administers the oath have legal authority to administer it.  6 (See Jurisdiction, Sec. 7, supra.) 

Requisites of.

   SECTION 131.   In general.   The essential requirements, apart from the title, venue and jurat, are:  (1) That an oath shall be administered by an officer authorized by law to administer it (see Oaths and Affirmations, Secs. 152-154,  post);  (2) that what the affiant states under such oath shall be in writing; and (3) that the written statement so sworn to shall be subscribed by the party making it.  It should be free from interlin-
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  (4)  Code of Civil Procedure, §2012
  (5)  Reavis v. Cowell, 56 Cal., 588
  (6)  People v. Cohen, 118 Cal. 74

AFFIDAVITS

eations and erasures, but if there are any it is well that they be noted by the notary on the margin of the paper to indicate that they were made at the time of swearing and not inserted after.

   SECTION 132.   Title.  If the affidavit is to be used in an action or proceeding, it should show the title of court and cause in which it is to be used.  It is provided, however, that an affidavit without the title of the action or proceeding in which it is made, or with a defective title, is as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action or proceeding. 6

   SECTION 133.   Venue. The venue in an affidavit, as in a certificate of acknowledgment, is prima facie evidence of the place where it is taken, and the place where it is taken, should, of course, be within the territorial jurisdiction of the officer administering the oath, as will appear from his official seal attached to the instrument.  Nevertheless it has been held that the omission of the venue is not fatal to an affidavit, where the oath was administered by an officer authorized to administer the same, and the legal presumption that he acted within his jurisdiction is aided by the title of court and cause of
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  (6)  Code of Civil Procedure, §1046

NOTARY’S MANUAL

the legal proceedings.  7  (See Venue to certificate of acknowledgment, Sec. 32, supra.)

   SECTION 134.   Jurat.   This is the certificate of the officer, ordinarily added at the foot of the affidavit, stating that the same was “subscribed and sworn to before” him on a certain day, and followed by his signature and official designation.  The signature to the officer should be authenticated by his official seal.

Mode of Taking.

   SECTION 135.   The question whether the personal presence of the affiant before the notary is necessary to the administration of an oath, arose in the case of Fairbanks, Morse & Co. v. Getchell, 13 Cal. App. 458, in which case the oath to an affidavit for attachment was administered by communication had between the notary and the affiant over the telephone. It was contended that the act was void and of no effect for that reason.  That question was not decided by our own appellate court for the reason that its decision was not necessary to a determination of that case; but it was remarked that the contention against the validity of such an oath finds direct support in the case of Sullivan v. First Nat. Bank, 37 Tex. Civ. App. 228, (83 S. W. 421).  In this last case the Texas Appellate court
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  (7)  Reavis v. Cowell, 56 Cal., 588

AFFIDAVITS

say:  “Not only is the personal presence of the affiant required to the end that by appropriate form and ceremony his conscience may be bound, but it is required also to the end that the officer may see and know that the man who signs also swears.”

   In Riverside Portland Cement Co. v. Maryland Casualty Co. 46 Cal. App. 87, we have a case where two women signed a blank form of printed bond and the affidavit attached to such bond, before a notary.  Later the bond was filled in with a large amount which neither of them were worth, and the bond having been given for the protection of materialmen in connection with supplies furnished under a building contract, which were not paid for, it was sought to hold the surety on the notary’s bond because of the false statement of the notary that these women had subscribed and sworn before him that they were worth the sum mentioned in the undertaking  While the lower court gave judgment against the notary’s surety, it was reversed by the appellate court upon the ground that the materialmen had not relied, in giving credit, upon the certificate of the notary that the affidavit had been subscribed and sworn to before him, and therefore such false certificate was not the proximate cause of the loss.

NOTARY’S MANUAL

CHAPTER VIII.

DEPOSITIONS.

§136			Definition and nature of.
  137 			When may be taken in this state.
  138-139		Manner of taking.
  140			Certificate to.
  141-148		Subpoena
  149-151		Witnesses.
  152-154		Oaths and affirmations.

Definition and Nature of.
   
   SECTION 136.   As defined by the code, a deposition is a written declaration under oath made upon notice to the adverse party for the purpose of enabling him to attend and cross-examine. 1  In all cases where a written declaration under oath is used, other than where an affidavit is allowed by law, it must be by deposition. 2   As said before (Sec. 129, supra), the testimony of witnesses given in open court on the trial of an action, where the adverse party may have an opportunity to cross-examine, is the most satisfactory method of proving facts in controversy.  There are certain cases, however, when the testimony of witnesses must be taken by deposition, if taken
____________
  (1)  Code of Civil Procedure, §2004
  (2)  Code of Civil Procedure, §2019

 

DEPOSITIONS

at all, as when they reside without the jurisdiction of the court and cannot be compelled to attend the trial, and also other cases when the deposition is permitted to be taken if desired, all as set forth in the following section.

When May Be Taken In This State.

     SECTION 137.  The testimony of a witness in this state may be taken by deposition in an action at any time after the service of the summons or the appearance of the defendant, and in a special proceeding after a question of fact has arisen therein, in the following cases:

   1.   When the witness is a party to the action or proceeding or an officer or
         member of a corporation which is a party to the action or proceeding, or a 
         person for whose immediate benefit the action or proceeding is prosecuted or 
         defended; 
   2.   When the witness resides out of the county in which his testimony is to be 
         used, or resides in the county but more than fifty miles distant from the place 
         of trial or hearing by the nearest usual traveled route;
   3.   When the witness is about to leave the county where the action is to be tried, 
         and will probably continue absent when the testimony is required;

NOTARY’S MANUAL

   4.   When the witness, otherwise liable to attend the trial, is nevertheless to infirm
          to attend,
   5.   When the testimony is required upon a motion, or in any other case where the 
         oral examination of the witness is not required;
   6.   When the witness is the only one who can establish facts or a fact material to 
          the issue;  provided, that the deposition of such witness shall not be used if 
          his presence can be procured at the time of the trial of the cause. 3

Manner of Taking.  

   SECTION 138.    In this state.   Either party to an action may take the deposition of a witness in either of the cases shown in the preceding section, upon giving the notice, accompanied by the affidavit, or taking such other steps as are required by law. 4   Depositions must be taken in the form of question and answer. The words of the witness must be written down, in the presence of the witness, by the officer taking the deposition, or by some disinterested person appointed by him.  It may be taken down in shorthand, in which case it must be transcribed into longhand by the person who took it down.  When completed, it must be carefully read to or by the witness and corrected by him in any par-
__________
  (30)  Code of Civil Procedure, §2021
  (31)  Code of Civil Procedure, §2031

DEPOSITIONS

ticular, if desired, by writing or causing his corrections to be written in the body or margin of or at the bottom of the deposition, and must then be subscribed by the witness.  The officer before whom the deposition is taken must write his initials near said corrections.  If the parties agree in writing to any other code, the mode so agreed upon must be followed. 5

    Either party to the action may attend the examination, and put such questions, direct and cross, as may be proper.  The deposition, when completeed, must be carefully read to the witness and correct by him in any particular, if desired, and must then be carefully read to the witness and corrected by him in any particular, if desired, and must then be subscribed by him. 6   This makes the reading, correcting and signing the necessary and material things to be done.  The object of requiring the witness to sign the deposition is to make him responsible for its phraseology, for by signing he adopts the language as his own. 7   The deposition must then be certified by the officer taking it, enclosed in an envelope or wrapper, sealed and directed to the clerk of the court in which the action is pending, or to such person as the parties in writing may agree upon, and either delivered by the officer to
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  (5)  Code of Civil Procedure, §2006
  (6)  Code of Civil Procedure, §2032
  (7)  Kyle v. Craig, 125 Cal., 115,116

NOTARY’S MANUAL

the clerk or such person, or transmitted through the mail, or by some safe private opportunity; and thereupon such deposition may be used by either party upon the trial or other proceeding against any party giving or receiving the notice. 8

   SECTION 139.  To be used out of the state.   The deposition of a witness taken in this state to be used in a matter or proceeding pending in the court of another state, must be taken in accordance with the law of the state governing the matter or proceeding in which the same is to be used, and instructions should accompany the commission.

   Whenever any mandate, writ, or commission is issued out of any court of record in any other state, territory, district, or foreign jurisdiction, or whenever, upon notice or agreement it is required to take the testimony of a witness or witness in this state, witnesses may be compelled to appear and testify in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony in proceedings pending in this state. 9

Certificate to.

    SECTION 140.  The notary must attach his certificate to the deposition, which certificate must be
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  (8)  Code of Civil Procedure, §2032
  (9)  Code of Civil Procedure, §2036a.

DEPOSITIONS

in proper form and show all the acts done by him in relation to the taking of the deposition.  [Appendix From No. 12.]

Subpoena

   SECTION 141.    Subpoena defined.  The process by which the attendance of a witness is required is a subpoena.  It is a writ or order directed to a person and requiring his attendance at a particular time and place to testify as a witness. It may also require him to bring with him any books, documents, or other things under his control, which he is bound by law to produce in evidence. 10

   SECTION 142.   How issued.  A subpoena is issued as follows:

   1.   To require attendance before a court, or at the trial of an issue therein, or 
          upon the taking of a deposition in an action or proceeding pending therein, it 
          is issued by the clerk of the court in which the action or proceeding is 
          pending, under the seal of the court, or if there is no clerk or seal then by a 
          judge or justice of such court;

   2.   To require attendance before a commissioner appointed to take testimony by 
          a court of a foreign country, or of the United States, or of
  (10)  Code of Civil Procedure, §1985

NOTARY’S MANUAL

         any other state in the United States, or before any officer or officers 
         empowered by the laws of the United States to take testimony, it may be 
         issued by the clerk of the superior court of the county in which the witness is 
         to be examined, under the seal of such court;

   3.   To require attendance out of court, in cases not provided for in subdivision
         one, before a judge, justice or other officer authorized to administer oaths, or 
         take testimony in any matter under the laws of this state, it is issued by the 
         judge, justice or other officer before whom the attendance is required.

   If the subpoena is issued to require attendance before a court, or at the trial of an issue therein, it is issued by the clerk, as of course, upon the application of the party desiring it.  If it is issued to require attendance before a commissioner or other officer upon the taking of a deposition, it must be issued by the clerk of the superior court of the county wherein the attendance is required upon the order of such or of a judge thereof, which order may be made ex parte. 11

   From the case of Scott v. Shields, 8 Cal. App. 12, it appears that there is some conflict in the foregoing provisions relating to the issuance of a
___________
   (1)  Code of Civil Procedure, §1986

DEPOSITIONS

subpoena.  That was a case pending in Placer County in which it was sought to take the deposition of a witness residing in Sacramento County, and under the authority of the last paragraph the superior court of Sacramento County made an order directing the clerk of his court to issue the subpoena.  It was contended that the subpoena requiring the attendance of the witness, under such circumstances, should have been issued by the notary before whom the witness was to appear under subdivision 3 of this section.  The appellate court upheld the issuance of the subpoena by the clerk of the superior court of Sacramento County saying that if the provisions conflict, the latter provision of this section would prevail over the former under the well-settled rule of construction.

   Prior to 1907 a notary public had power to issue a subpoena requiring attendance before him upon the taking of a deposition in an action or proceeding pending in court.  But while a notary had power to issue such a subpoena that procedure was for a long time ineffectual to bring a witness before the notary for the reason that the supreme court decided in the case of Lezinsky v. Superior Court, 72 Cal. 510, that in case the witness refused to obey the subpoena of the notary public before whom his deposition was to have been taken, the court in which the action

NOTARY’S MANUAL

was pending had no power to punish him for contempt – such refusal being contempt of the officer issuing the subpoena and not contempt of court.  It therefore became customary to have subpoenas requiring the attendance of witnesses before notaries issued by the clerk of the court in which the action was pending, under the seal of the court, in order that disobedience of the subpoena might be reported back to the court and punished as contempt by the court.  Later, the decision in the case of Lezinsky v. Superior Court was overruled by the case of Burns v. Superior Court, 140 Cal. 1, on the ground that the conduct of the witness in refusing to attend at the time and place fixed for the taking of the deposition was an interference with the proceedings of the court, and could therefore be punished as contempt of court.  However, by the act of the legislature of 1907 amending section 1986 of the Code of Civil Procedure, the procedure is now settled, and a subpoena requiring attendance before a notary public upon the taking of a deposition must be issued by the clerk of the superior court of the county wherein the attendance is required, upon the order of such court or of a judge thereof.  Under subdivision 3 of that section (see subdivision 3 of this section) a notary may still issue a subpoena in certain cases.  Punishment for

DEPOSITIONS

disobedience to such subpoena is also provided for.  (See Disobedience to subpoena, how punished, Sec. 145, post.)

   SECTION 143.   How served. The service of a subpoena is made by showing the original and delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to him at the same time, if demanded by him, the fees to which he is entitled for travel to and from the place designated, and one day’s attendance there. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Such service may be made by any person. If a witness is concealed in a building or vessel, so as to prevent the service of a subpoena upon him, any court or judge, or any officer issuing a subpoena, may, upon proof by affidavit of the concealment, and of the materiality of the witness, make an order that the sheriff of the county serve the subpoena; and the sheriff must serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed. 12

   SECTION 144.   When witness not compelled to obey.  A witness is not obliged to attend as a 
____________	 
  (12)  Code of Civil Procedure, §§1987, 1988

NOTARY’S MANUAL

witness before any court, judge, justice, or any other officer, out of the county in which he resides, unless the distance be less than fifty miles from his place of residence to the place of the trial. 13

   SECTION 145.  Disobedience to subpoena, how punished.  Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court issuing the subpoena.  When the subpoena, in any such case, required the attendance of the witness before an officer or commissioner out of court, it is the duty of such officer or commissioner to report any such disobedience or refusal to the court issuing the subpoena; and the witness must not be punished for any refusal to answer a question or to subscribe an affidavit or deposition, unless, after a hearing upon notice, the court orders him to answer or subscribe, and then only for disobedience to such order.  Any judge, justice, or other officer mentioned in Subdivision Three of Section 1986 (See Subdivision 3 of Section 142, supra), may report any such disobedience or refusal to the superior court of the county in which such attendance was required, and such court thereupon has power, upon notice, to order
___________
  (13)  Code of Civil Procedure, §1989

DEPOSITIONS

the witness to perform the omitted act, and any refusal or neglect to comply with such order may be punished as a contempt of such court. 14

   SECTION 146.   Punishment in case of disobedience.  In addition to punishment for contempt, a witness disobeying a subpoena forfeits to the party aggrieved the sum of one hundred dollars, and all damages which he may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in civil action. 15

   SECTION 147.  Attendance, how enforced.  In case of failure of a witness to attend, the court or officer issuing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to the sheriff of the county to arrest the witness and bring him before the court or officer where his attendance was required.  Every such warrant of commitment, issued by a court or officer, must specify therein, particularly, the cause of the commitment, and if it be for refusing to answer a question, such question must be stated in the warrant.  And every warrant to arrest or commit a witness, pursuant hereto, must be directed to the sheriff of the county where the witness may be,
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  (14)  Code of Civil Procedure, §1991
  (15)  Code of Civil Procedure, §1992

NOTARY’S MANUAL

and must be executed by him in the same manner as process issued by the superior court. 16

   SECTION 148.   If witness is a prisoner, how may be brought.  If the witness be a prisoner, confined in a jail or prison within this state, an order for his examination in the prison upon deposition, or for his temporary removal and production before a court or officer, for the purpose of being orally examined, may be made as follows:
   1.   By the court itself in which the action or special proceeding is pending, 
         unless it be a justice’s court.
   2.  By a justice of the supreme court, or a judge of the superior court of the 
        county where the action or proceeding is pending, if pending before a justice’s 
        court, or before a judge or other person out of court.
   Such an order can only be made on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality.
   If the witness be imprisoned in the county where the action or proceeding is pending, his production may be required.  In all other cases his examination, when allowed, must be taken upon deposition. 17
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  (16)  Code of Civil Procedure, §§1993,1994
  (17)  Code of Civil Procedure, §§1995-1997

DEPOSITIONS

Witnesses.

   SECTION 149.  Duty to attend, and answer questions.  A witness served with a subpoena must attend at the time appointed, with any papers under his control lawfully required by the subpoena, and answer all pertinent and legal questions; and, unless sooner discharged, must remain until the testimony is closed.

   He must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for a felony; nor need he give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact in issue would be presumed. But a witness must answer as to the fact of his previous conviction for felony. 18

   SECTION 150.   Right of, to protection from insult.  It is the right of a witness to be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; to be detained only so long as the interest of justice require it; to be examined only as to matters legal and pertinent to the issue. 19
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  (18)  Code of Civil Procedure, §§2064, 2065
  (19)  Code of Civil Procedure, §2066

NOTARY’S MANUAL

   SECTION 151.  Right of, to protection from arrest.  Every person who has been, in good faith, served with a subpoena to attend as a witness before a court, judge, commissioner, referee, or other person, in a case where the disobedience of the witness may be punished as a contempt, is exonerated from arrest in a civil action while going to the place of attendance, necessarily remaining there and returning therefrom. The arrest of a witness, contrary to the foregoing, is void, and when willfully made, is a contempt of the court; and the person making it is responsible to the witness arrested for double the amount of the damages which may be assessed against him, and is also liable to an action, at the suit of the party serving the witness with a subpoena, for the damages sustained by him in consequence of the arrest.  The court or officer before whom the attendance is required, may discharge the witness from such an arrest, and if the court has adjourned before the arrest, or before application for the discharge, a judge of the court may grant the discharge. 

   It is also provided that an officer is not liable to the party for making the arrest in ignorance of the facts creating the exoneration, but is liable for any subsequent detention of the party, if such party claim the exemption and make an af-

OATH AND AFFIRMATIONS

fidavit stating, (1) that he has been served with a subpoena to attend as a witness before a court, officer, or other person, specifying the same, the place of attendance, and the action or proceeding in which the subpoena was issued; and (2) that he has not thus been served by his own procurement, with the intention of avoiding an arrest; (3) that he is at the time going to the place of attendance, or returning to the subpoena.  The affidavit may be taken by the officer, and exonerates from liability for discharging the witness when arrested. 20

Oaths and Affirmations.

   SECTION 152.    Nature of an oath.  An oath has been defined to be the act of “calling on God to witness that what is said by the person swearing is true, and invoking the divine vengeance on his head if what he says is false.” 21

   SECTION 153.  Authority of notary to administer.  Every court, every judge or clerk of any court, every justice and every notary public, and every officer or person authorized to take testimony in any action or proceeding, or to decide upon evidence, has power to administer oaths or affirmations 22
___________
  (20)  Code of Civil Procedure, §§2067-2070
  (21)  10 Ohio, 121
  (22)  Code of Civil Procedure, §2093

NOTARY’S MANUAL

   SECTION 154.  Form of.  An oath, or affirmation, in an action or proceeding, may be administered as follows, the person who swears, or affirms, expressing his assent when addressed in the following form:  “You do solemnly swear (or affirm, as the case may be) that the evidence you shall give in this issue (or matter) pending between ------and ------, shall be the truth, the whole truth, and nothing but the truth, so help you God.” 23  In People v. Collins, 6 Cal. App. 492, the from of the oath set forth in the indictment was not precisely the same as that given in the statute, and this was criticised by the appellant.  The court said: 'But the oath set forth is in substance the same as that specified in the statute, and besides “It is no defense to a prosecution for perjury that an oath was administered or taken in an irregular manner' .”

   Any person who desire it, may at his option, instead of taking an oath, make his solemn affirmation or declaration.  This is done by using the word “affirm” or “declare” instead of  “swear” in the oath.  The form of oath may be varied to suit the belief of the witness, and whenever the court before which a person is offered as a witness is satisfied that the witness has a pecu-
______________
  (23)  Code of Civil Procedure, §2094

OATHS AND AFFIRMATIONS

liar mode of swearing connected with or in addition to the usual form of administration, which, in his opinion, is more solemn or obligatory, that court may, in its discretion, adopt that mode.  Therefore, when a person is sworn who believes in any other than the Christian religion, he may be sworn according to the peculiar ceremonies of his religion, if there be any such. 24

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  (24)  Code of Civil Procedure, §§2095-2097

NOTARY’S MANUAL

CHAPTER IX.
 BILLS AND NOTES.

§155-156		Duty of Notary in respect to.
  157			Negotiable instruments.
  158-164		Bills of Exchange.
  165-168		Promissory notes.
  169-170		Checks.
  171-172		Negotiability.
  173-179		Form and validity.
  180			Negotiation.
  181-191		Indorsement.
  192-195		Liability of indorsers.
  196-198		Holder in due course.
  199-206	 	Presentment and demand for payment.
  207-218		Notice of dishonor.
  219-224		Discharge of negotiable instruments.
  225-227		Presentment of bills of exchange for acceptance.
  228-230		Acceptance of bills of exchange.
  231-239		Protest.
  240-246		Acceptance of bills of exchange for honor.
  217-218		Payment of bills of exchange for honor.
  249			Bills in a set.
  250-253		General definitions and meanings of words.

Duty of Notary in Respect to.

   SECTION 155.  Protest.  Another of the duties of notaries public is, “When requested, to demand acceptance and payment of foreign, domestic and inland bills or promissory notes, and protest the same for non-acceptance and non-payment. * * *”  (See Duties, Sec. 5, sub. 1 supra).  This duty cannot be performed safely or intelligently without a knowledge of the rules 

BILLS AND NOTES

of  law governing negotiable instruments.  While the term “protest” is the name of the formal instrument drawn up and signed by a notary public  alleging the due presentment and dishonor of a bill or note and showing that the regular legal steps have been taken to fix the liability, as generally used the term includes all steps necessary to protect the holder against loss and fix the liability of the drawer and indorsers.  These steps are, presentment of the instrument to the proper parties and demand for acceptance or payment, as the case may be, and in case of refusal the giving of due and legal notice of dishonor and the noting and drawing up of the instrument of protest—the main purpose of the protest being to furnish the legal holder with evidence of presentment, demand, and notice of dishonor to be used in actions against the drawer and indorsers. 
   For failure to properly protest a note so as to charge an indorser, the notary is liable on his bond.  The authority to protest must come from holder, or some one authorized to have it presented.
   
   SECTION 156.  Effect of Protest. The protest of a notary, under his hand and official seal, of a bill of exchange, or promissory note, for non-acceptance or non-payment, stating the presentment for acceptance or payment, and the non-acceptance

NOTARY’S MANUAL

or non-payment thereof, the service of notice on any or all of the parties to such bill of exchange or promissory note, and specifying the mode of giving such notice, and the reputed place of residence of the party to such bill of exchange or promissory note, and of the party to whom the same was given, and the post-office nearest thereto, is prima facie evidence of the facts contained therein. 1

   Negotiable Instruments.

   SECTION 157. What are.  The term “negotiable” applies to any written instrument which may be transferred by indorsement and delivery so as to vest the transferee with the legal title, so that he can sue on the instrument in his own name; and means (provided he is a bona fide holder in due course) that such transferee takes the instrument free from equities and defenses existing between prior parties.  (See Holder in due course, Secs. 196-198 post).
   Transfer after maturity does not protect holder against defenses and equities.
   It is highly important to determine whether or not an instrument is negotiable paper, since such paper represents money, and is intended to pass as money, without notice to the debtor, and
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  (1)  Political Code, §795

 NOTARY’S MANUAL

the purpose of the law is to protect such paper in the hands of third parties.
   In 1917 California adopted the “Negotiable Instruments Law” for the purpose of making the law of California on this subject uniform with that of other states.  Very few of the states have not adopted this law.  The Negotiable Instruments Law is contained in Sections 3082-3266d of the Civil Code of California, and deals with bills of exchange, promissory notes, and checks.  It must be understood that it applies only to instruments which are negotiable.

Bills of Exchange.

   SECTION 158.   Definition and nature of.  A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future, a sum certain in money to order or to bearer. 2

   “Draft” is the common term for a bill of exchange.

   A bill of itself does not operate as an assignment of the funds in the hands of the drawee available for the payment thereof, and the drawee is not liable on the bill unless and until he accepts it. 3
___________
  (2)  Civil Code, §3207
  (3)  Civil Code, §3208

NOTARY’S MANUAL

   SECTION 159.  Parties.  The parties to a bill of exchange are: (1) The drawer; (2) the drawee; (3) the payee.  If the drawee is willing to pay the bill at maturity and “accepts” the same upon presentation to him, he then becomes the acceptor.  If the payee transfers the bill and all his rights under it by writing his name across the back and delivering it to another, he becomes an indorser, and the person to whom it is transferred becomes the payee. Such payee may again transfer by indorsement, and so on, again and again.

   A bill may be addressed to two or more drawees jointly, whether they are partners or not, but not to two or more drawees in the alternative or in succession.4

   The drawer of a bill and any indorser may insert thereon the name of a person to whom the holder may resort in case of need, that is to say, in case the bill is dishonored by non-acceptance or non-payment.  Such person is called the referee in case of need.  It is in the option of the holder to resort to the referee in case of need or not as he may see fit. 5

   SECTION 160.  Liability of Drawer.  The drawer by drawing the instrument admits the exist-
___________
  (4)  Civil Code, §3209
  (5)  Civil Code, §3212

BILLS AND NOTES

ence of the payee and his then capacity to indorse, and engages that on due presentment the instrument will be accepted or paid, or both, according to its tenor, and that if it be dishonored be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it.  But the drawer may insert in the instrument an express stipulation negative or limiting his own liability to the holder. 6

   SECTION 161.   Liability of Acceptor.  The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance; and admits – 
   (1)  The existence of the drawer, the genuineness of his signature, and his
          capacity and authority to draw the instrument; and
   (2)   The existence of the payee and his then capacity to indorse. 7

   SECTION 162.  When may be treated as a note.  Where in a bill drawer and drawee are the same person, or where the drawee is a fictitious person, or a person not having capacity to contract, the holder may treat the instrument, at his option, either as a bill of exchange or a promissory note. 8
___________
  (6)  Civil Code, §3142
  (7)  Civil Code, §3143
  (8)  Civil Code, §3211

NOTARY’S MANUAL

  SECTION 163.  Inland and Foreign Bills.  An inland bill of exchange is a bill which is, or on its face purports to be, both drawn and payable within this state.  Any other bill is a foreign bill.  Unless the contrary appears on the face of the bill, the holder may treat it as an inland bill. 9

   The states of the Union are considered foreign to each other for the purposes of negotiable paper.  The law does not require protest in case of the dishonor of an inland bill or promissory note, but these instruments may be protested under the law, and this precaution is usually taken for the purposes of evidence.  Foreign bills must be protested in case of dishonor. (See Protest, Secs. 231-239 post; also see Protest, Secs. 155-156, ant).

     SECTION 164.  Rules Applicable to Bills of Exchange.   Sections 171-224 inclusive and Sections 250-253 of this volume, relate to negotiable instruments in general and are applicable alike to bills of exchange, promissory notes and checks.

   Sections 225-249 inclusive, relating to acceptance, presentment for acceptance, protest, acceptance for honor, and payment for honor, are applicable exclusively to bill of exchange, excepting that promissory notes may also be protested.
___________
  (9)  Civil Code, §3210

BILLS AND NOTES

Promissory Notes.

   SECTION 165.  Definition and Nature of.  A negotiable promissory note is an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand, or at a fixed or determinable future time, a sum certain in money to order or to bearer, but the negotiability of a promissory note otherwise negotiable in form, secured by a mortgage or deed of trust upon real or personal property, shall not be affected or abridged by reason of a statement therein that it is so secured, nor by reason of the fact that said instrument is so secured, nor by any conditions contained in the mortgage or deed of trust securing the same. Where a note is drawn to the maker’s own order, it is not complete until indorsed by him. 10

   SECTION 166.  Parties.  The parties to a promissory note are: (1) the maker, and (2) the payee.  The payee of a promissory note may transfer the same by indorsement and delivery to a third person, and thus become an indorser the same as the payee of a bill of exchange.

   SECTION 167.   Joint or joint and several.  If the note is signed by more than one person, the makers may be jointly, or jointly and severally
___________
  (10)  Civil Code, §3265

  

NOTARY’S MANUAL

liable, depending upon the form of the note. A note reading “We promise to pay” would be presumed to be joint; one reading “We, jointly and severally, promise to pay” is, of course, joint and several; and a promise made in the first person singular number would be presumed to be joint and several, as each signer promises to be responsible for the full amount. 11  All the makers must be joined as defendants in an action on a joint promissory note, whereas a joint and several obligation may be sued on as if made by any one of the signers alone.

   SECTION 168.    Liability of maker. The maker of a negotiable instrument, by making it, engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse. 12

Checks.
   SECTION 169.  Defined.  A check is a bill of exchange drawn on a bank on demand. 13

   SECTION 170.  Subject to what rules.   A Check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.  Where a check is
____________
  (11)  Civil Code, §1659-1660
  (12)  Civil Code, §3141
  (13)  Civil Code, §3265

BILLS AND NOTES

certified by the bank on which it is drawn, the certification is equivalent to an acceptance.  Where the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability thereon.
   A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder unless and until it accepts or certifies the check.
   Except as in this section otherwise provided that provisions of law applicable to a bill of exchange payable on demand apply to a check. 14

Negotiability.

   SECTION 171.  Requirements.  An instrument to be negotiable must conform to the following requirements:
   1.   It must be in writing and signed by the maker or drawer.
   One who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name.  The signature of any party may be made by a duly authorized agent.  No particular form of appointment is necessary for this purpose, and the authority of the agent may be established as in other cases of agency.  Where
____________
  (14)  Civil Code, §3265a-3265e

NOTARY’S MANUAL

the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.  A signature by “procuration” operates as notice that the agent has but a limited authority to sign, and the principal is bound only in case the agent in so signing acted within the actual limits of his authority. 15  (See Forged signature, Sec. 179, post).

   2.   It must contain an unconditional promise or order to pay a sum certain in 
        money.
   The sum payable is a sum certain although it is to be paid – (1) with interest; or (2) by stated installments; or (3) by stated installments with a provision that upon default in payment of any installment or of interest the whole shall become due; or (4) with exchange, whether at a fixed rate or at the current rate; or (5) with costs of collection or an attorney’s fee, in case payment shall not be made at maturity.
   An unqualified order or promise to pay is unconditional though coupled – (1) an in-
___________
  (15)  Civil Code, §3082, 3099-3102

BILLS AND NOTES

diction of a particular fund out of which reimbursement is to be made, or a particular account to be debited with the amount; or (2) a statement of the transaction which gives rise to the instrument.  But an order or promise to pay out of a particular fund is not unconditional.16

   3.   It must be payable on demand, or at a fixed or determinable future time.

   An instrument is payable on demand – (1) where it is expressed to be payable on demand, or at sight, or on presentation; or (2) in which no time for payment is expressed.  Where an instrument is issued, accepted, or indorsed when overdue, it is, as regards the person so issuing, accepting, or indorsing it, payable on demand.

   An instrument is payable at a determinable future time which is expressed to be payable – (1) at a fixed period after date or sight; or (2) on or before a fixed or determinable future time specified therein; or (3) on or at a fixed period after the occurrence of a specified event, which is certain to happen; though the time of happening be uncertain.

   An instrument payable upon a contingency is not negotiable, and the happening of the event does not cure the defect. 17
___________
  (16)  Civil Code, §3082-3084
  (17)  Civil Code, §3082, 3088, 3085

NOTARY’S MANUAL

   4.    It must be payable to order or to bearer.

    The instrument is payable to order where it is drawn payable to the order of a specified person, or to him or his order.  It may be drawn payable to the order – (1) a payee who is not maker, drawer, or drawee; or (2) the drawer or maker; or (3) the drawee; or (4) two or more payees jointly; or (5) one or some of several payees; or (6) the holder of an office for the time being.

   Where the instrument is payable to order the payee must be named or otherwise indicated therein with reasonable certainty.

   The instrument is payable to bearer – (1) when it is expressed to be so payable; or (2) when it is payable to a person named therein or bearer; or (3) when it is payable to the order of a fictitious or non-existing person and such fact was known to the person making it so payable; or (4) when the name of the payee does not purport to be the name of any person; or (5) when the only or last indorsement is an indorsement in blank. 18

   5.   Where the instrument is addressed to a drawee he must be named or otherwise indicated therein with reasonable certainty.   19
____________
  (18)  Civil Code, §3082, 3089-3090
  (19)  Civil Code, §3082

BILLS AND NOTES

of an instrument are not affected by the fact that – (1) it is not dated; or (2) does not specify the value given, or that any value has been given therefore; or (3) does not specify the place where it is drawn or the place where it is payable; or  (4) bears a seal; or (5) designates a particular kind of money in which payment is to be made.

   An instrument which contains an order or promise to do an act in addition to the payment of money is not negotiable.  But the negotiable character of an instrument otherwise negotiable is not affected by a provision which – (1) authorizes the sale of collateral securities in case the instrument is not paid at maturity; or (2) authorizes a confession of judgment if the instrument be not paid at maturity; or (4) gives the holder an election to require something to be done in lieu of payment of money; but no provision or stipulation otherwise illegal is valid. 20

Form and Validity.

   SECTION 173.  Date.  Where the instrument or an acceptance or any indorsement thereon is dated, such date is deemed prima facie to be the true date of the making, drawing, acceptance, or
____________
  (20)  Civil Code, §3087, 3086

NOTARY’S MANUAL

indorsement, as the case may be.  The instrument is not invalid for the reason only that it is antedated or postdated, provided this is not done for an illegal or fraudulent purpose.  The person to whom an instrument is dated is delivered, acquires the title thereto as of the date of delivery.  Where an instrument expressed to be payable at a fixed period after date is issued undated, or where the acceptance of an instrument is payable at a fixed period after sight is undated, any holder may insert therein the true date of issue or acceptance, and the instrument shall be payable accordingly.  The insertion of a wrong date does not avoid the instrument in the hands of a subsequent holder in due course, but as to him the date so inserted is to be regarded as the true date. 21

   SECTION 174.  Filling blanks.  Where an instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein.  And a signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates as prima facie authority to fill it up as such for any amount.
___________
  (21)  Civil Code, §3092-3094

BILLS AND NOTES

in order, however, that any such instrument when completed may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within a reasonable time.  But if any such instrument, after completion, is negotiated to a holder in due course, it is valid and effectual for all purposes in his hands and he may enforce it as if it had been filled up strictly in accordance with the authority given and within a reasonable time.

   Where an incomplete instrument has not been delivered, it will not, if completed and negotiated without authority, be a valid contract in the hands of any holder as against any person whose signature was placed thereon before delivery. 22

   SECTION 175.  Delivery.  Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto.  As between the immediate parties, and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the person making, drawing, accepting, or indorsing, as the case may be; and in such case the delivery may be shown to have
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  (22)  Civil Code, §3095-3096

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been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument.  But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him, is conclusively presumed.  And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved. 23

   SECTION 176.  Construction.  Where the language of the instrument is ambiguous, or there are omissions therein, the following rules of construction apply:
   (1)   Where the sum payable is expressed in words and also in figures and there is 
           a discrepancy between the two, the sum denoted by the words is the sum 
           payable; but if the words are ambiguous or uncertain, reference may be had 
           to the figures to fix the amount;
   (2)  Where the instrument provides for the payment of interest, without 
          specifying the date from which interest is to run, the interest runs from the 
          date of the instrument, and if the instrument is undated, from the issue 
          thereof.                   
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  (23)  Civil Code, §3097

BILLS AND NOTES

   (3)   Where the instrument is not dated, it will be considered to be dated as of the time it was issued;
   (4)   Where there is a conflict between the written and printed provisions of the instrument, the written provisions prevail;
   (5)   Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either at his election;
   (6)   Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser;
   (7)   Where an instrument containing the words “I promise to pay” is signed by two or more persons, they are deemed to be jointly and severally liable thereon. 24

   SECTION 177.   Consideration.  Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.  Value in any consideration sufficient to support a simple contract.  An antecedent or pre-existing debt constitutes value, and is deemed such whether
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  (24)  Civil Code, §3098

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the instrument is payable on demand or at a future time.  Where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties who become such prior to that time.  Where the holder has a lien on the instrument arising either from contract or by implication of law, he is deemed a holder for value to the extent of his lien.  Absence or failure of consideration is matter of defense as against any person not a holder is due course, and partial failure or consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise. 25

   SECTION 178.   Accommodation party.  An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person.  Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party. 26

   SECTION 179.   Forged signature.  When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain
____________
  (25)  Civil Code, §3105-3109
  (26)  Civil Code, §3110

BILLS AND NOTES

the instrument, or to give a discharge thereof, or to enforce payment thereof, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right, is precluded from setting up the forgery or want of authority. 27

Negotiation.
   SECTION 180.  What constitutes.  An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof.  If payable to bearer it is negotiated by delivery; if payable to order it is negotiated by the indorsement of the holder completed by delivery. 28 

   The warranty of a person who negotiates an instrument by delivery is the same as that of a qualified indorser.  (See Warranty of qualified indorser, Sec. 192, post).

Indorsement.
   SECTION 181.  How made.  The indorsement must be written on the instrument itself or upon a paper attached thereto.  The signature of the indorser, without additional words, is a sufficient indorsement.  The indorsement must be an indorsement of the entire instrument.  An indorsement which purports to transfer to the
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  (27)  Civil Code, §3104
  (28)  Civil Code, §3111

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indorsee a part only of the amount payable, or which purports to transfer the instrument to two or more indorsees severally, does not operate as a negotiation of the instrument.  But where the instrument has been paid in part, it may be indorsed as to the residue.  Where an instrument is payable to the order of two or more payees or indorsees who are not partners, all must indorse, unless the one indorsing has authority to indorse for the others.  When an instrument is drawn or indorsed to a person as “cashier” or other fiscal officer of a bank or corporation, it is deemed  prima facie to be payable to the bank or corporation of which he is such officer; and may be negotiated by either the indorsement of the bank or corporation, or the indorsement of the officer.  Where the name of a payee or indorsee is wrongly designated or misspelled, he may indorse the instrument as therein described, adding, if he think fit, his proper signature.  Where any person is under obligation to indorse in a representative capacity, he may indorse in such terms as to negative personal liability. 29

   SECTION 182.   Indorser, who is. A person placing his signature upon an instrument otherwise than as maker, drawer, or acceptor, is deemed
_______________
  (29)  Civil Code, §3112-3133, 3122-3125

BILLS AND NOTES

to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity. 30

   The indorsement or assignment of an instrument by a corporation or by an infant passes the property therein, notwithstanding that from want of capacity the corporation or infant may incur no liability thereon. 31

   SECTION 183.  Indorsement, kinds of.  An indorsement may be either special or in blank.  It may be also either restrictive or qualified, or conditional. 32

   SECTION 184.  Special or in blank.  A special indorsement specifies the person to whom, or to whose order, the instrument is to be payable; and the indorsement of such indorsee is necessary to the further negotiation of the instrument.  An indorsement in blank specifies no indorsee, and an instrument so indorsed is payable to bearer, and may be negotiated by delivery.  The holder may convert a blank indorsement into a special indorsement by writing over the signature of the indorser in blank any contract consistent with the character of the indorsement. 33
 ____________
  (30)  Civil Code, §3144
  (31)  Civil Code, §3103
  (32)  Civil Code, §3114
  (33)  Civil Code, §3115-3116

   

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   Where an instrument, payable to bearer is indorsed specially it may nevertheless be further negotiated by delivery; but the person indorsing specially is liable as indorser to only such holders as make title through his indorsement. 34

   SECTION 185.  Restrictive.  An indorsement is restrictive, which either – 
   (1)   Prohibits the further negotiation of the instrument; or
   (2)   Constitutes the indorsee the agent of the indorser; or 
   (3)   Vests title in the indorsee in trust for or to use the use of some other person.
   
   But the mere absence of words implying power to negotiate does not make in indorsement restrictive.   
   A restrictive indorsement confers upon the indorsee the right – 
   (1)   To receive payment of the instrument;
   (2)   To bring any action thereon that the indorser could bring;
   (3)   To transfer his rights as such indorsee, where the form of the indorsement 
           authorizes him to do so.
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  (34)  Civil Code, §3121

BILLS AND NOTES

   But all subsequent indorsees acquire only the title of the first indorsee under the restrictive indorsement.

   An instrument negotiable in its origin continues to be negotiable until it has been restrictively indorsed or discharged by payment or otherwise. 35

   SECTION 186.  Qualified. A qualified indorsement constitutes the indorser a mere assignor of the title to the instrument.  It may be made by adding to the indorser’s signature the words “without recourse” or any words of similar import.  Such an indorsement does not impair the negotiable character of the instrument. 36  (See Warranty of Qualified indorsers, etc., Sec. 183,  post).

   SECTION 187.  Conditional.  Where an indorsement is conditional, a party required to pay the instrument may disregard the condition, and make payment to the indorsee or his transferee, whether the condition has been fulfilled or not.  But any person to whom an instrument so indorsed is negotiated, will hold the same, or the proceeds thereof, subject to the rights of the person indorsing conditionally. 37
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  (35)  Civil Code, §3117, 3128
  (36)  Civil Code, §3119
  (37)  Civil Code, §3120

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   SECTION 188.  Time and place.  Except where an indorsement bears date after the maturity of the instrument, every negotiation is deemed prima facie to have been effected before the instrument was overdue.  Except where the contrary appears every indorsement is presumed prima facie to have been made at the place where instrument is dated. 38

   SECTION 189.  Striking our indorsement.  The holder may at any time strike out any indorsement which is not necessary to his title.  The indorser whose indorsement is struck out, and all indorsers subsequent to him, are thereby relieved from liability on the instrument. 39

   SECTION 190.  Transfer without indorsement.  Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferer had therein, and the transferee acquires, in addition, the right to have the indorsement of the transferer.  But for the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made. 40
____________
  (38)  Civil Code, §3126-3127
  (39)  Civil Code, §3129
  (40)  Civil Code, §3130

BILLS AND NOTES

   SECTION 191.    Back to prior party.  Where the instrument is negotiated back to a prior party such party may reissue and further negotiate it, but he is not entitled to enforce payment against an intervening party to whom he was personally liable. 41

Liability of Indorsers.

   SECTION 192.   Warranty of qualified indorser, etc.  Every person negotiating an instrument by delivery or by a qualified indorsement, warrants – 
   (1)  That the instrument is genuine and in all respects what it purports to be;
   (2)   That he has a good title to it;
   (3)   That all prior parties had capacity to contract (this does not apply to persons negotiating public or corporation securities, other than bill and notes);
   (4)   That he has no knowledge of any fact which would impair the validity of the instrument or render it valueless.

   But when the negotiation is be delivery only, the warranty extends in favor of no holder other than the immediate transferee. 42
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  (41)  Civil Code, §3131
  (42)  Civil Code, §3146 

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   SECTION 193.  Warranty of general indorser.  Every indorser who indorses without qualification, warrants to all subsequent holders in due course – 
   (1)  The matters and things mentioned in subdivision one, two and three of the
          next preceding section; and
   (2)  That the instrument is at the time of his indorsement valid and subsisting.

   And, in addition, he engages that on due presentment, it shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it.

   Where a broker or other agent negotiates an instrument without indorsement he incurs all the liabilities prescribed by this section, unless he discloses the name of his principal, and the fact that he is acting only as agent.  43

   SECTION 194.  Liability of irregular indorser.  Where a person not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as indorser, in accordance with the following rules:
___________
  (43)  Civil Code, §3147, 3150

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   (1)  If the instrument is payable to the order of a third person, he is liable to the
          payee and to all subsequent parties.
   (2)  If the instrument is payable to the order of the maker or drawer, or is payable 
          to bearer, he is liable to all parties subsequent to the maker or drawer.
   (3)  If he signs for the accommodation of the payee, he is liable to all parties 
          subsequent to the payee.
   Where a person places his indorsement upon an instrument negotiable by delivery, he incurs all the liabilities of an indorser. 44

   SECTION 195.  Order of liability.  As respects one another indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise.  Joint payees or joint indorsees who indorse are deemed to indorse jointly and severally. 45

Holder in Due Course.

   SECTION 196.  Who is.  A holder in due course is a holder who has taken the instrument under the following conditions:
   (1)   That it is complete and regular upon its face;
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  (44)  Civil Code, §3145,3148
  (45)  Civil Code, §3149

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   (2)  That he became the holder of it before it was overdue, and without notice
          that it had been previously dishonored, if such was the fact;
   (3)  That he took it in good faith and for value;
   (4)  That at the time it was negotiated to him he had no notice of any infirmity in 
          the instrument or defect in the tile of the person negotiating it.

   Where an instrument payable on demand is negotiated an unreasonable length of time after its issue, the holder is not deemed a holder in due course.  Where the transferee receives notice of any infirmity in the instrument or defect in the tile of the person negotiating the same before he has paid the full amount agreed to be paid therefore, he will be deemed a holder in due course for only to the extent of the amount theretofore paid by him.  The title of a person who negotiates an instrument is defective when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud.  To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the

BILLS AND NOTES

same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument  amounted to bad faith.  Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as holder in due course.  But the last-mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title. 46

   SECTION 197.  Rights of.  A holder in due course holds the instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.  In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable.  But a holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting
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  (46)  Civil Code, §3133-3137, 3140

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the instrument, has all the rights of such former holder in respect of all parties prior to the latter.
   A holder may sue on the instrument in his own name, and payment to him in due course discharges the instrument. 47

   SECTION 198.  Payment in due course defined.  Payment is made in due course when it is made at or after maturity of the instrument to the holder thereof in good faith and without notice that his title is defective. 48

Presentment and Demand for Payment.

   SECTION 199.  On principal debtor.  Presentment for payment is not necessary in order to charge the person primarily liable on the instrument, but if the instrument is payable at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender on his part.  But presentment for payment is necessary to charge the drawer and indorsers, except that—
   Presentment for payment is not required in order to charge the drawer where he has no right to expect or require that the drawee or acceptor will pay the instrument;
   Presentment for payment is not required in order to charge an indorser where the instrument
___________
  (47)  Civil Code, §31388-3139, 3132
  (48)  Civil Code, §3169

 

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was made or accepted for his accommodation and he has no reason to expect that the instrument will be paid if presented. 49

   SECTION 200.  When to be made.  Where not payable on demand, presentment must be made on the day it falls due.  Where payable on demand, presentment must be made within a reasonable time after its issue, except that in the case of a bill of exchange, presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof.  (See Reasonable time, how determined, Sec. 252, post).

   Where the instrument is payable at a bank, presentment for payment must be made during banking hours, unless the person to make payment has no funds there to meet it at any time during the day, in which case presentment at any hour before the bank is closed on that day is sufficient.

   Where the instrument is payable at a bank it is equivalent to an order to the bank to pay the same for the account of the principal debtor. 50

   SECTION 201.  Maturity of instrument.  Every negotiable instrument is payable at the time fixed
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  (49)  Civil Code, §3151,3160-3161
  (50)  Civil Code, §3152, 3156, 3168

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   therein without grace.  When the day of maturity falls upon Sunday, or a holiday, the instrument is payable on the next succeeding business day.  Instruments fall due on Saturday are to be presented for payment on the next succeeding business day, except that instruments payable on demand may, at the option of the holder, be presented for payment before twelve o’clock noon on Saturday when that entire day is not a holiday.
   Where the instrument is payable at a fixed period after date, after sight, or after the happening of a specific event, the time of payment is determined by excluding the day from which the time is to begin to run, and by including the date of payment. 51

   SECTION 202.   How to be made.  Presentment for payment, to be sufficient, must be made – 
   (1)   By the holder, or by some person authorized to receive payment on his
           behalf;
   (2)   At a reasonable hour on a business day;
   (3)   At a proper place (See Where to be made, Sec 203, post).
   (4)   To the person primarily liable on the instrument or if he is absent or
           inaccessible, to
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  (51)  Civil Code, §316-3167   

BILLS AND NOTES

 any person found on the place where the presentment is made.
    The instrument must be exhibited to the person from whom payment is demanded, and when it is paid must be delivered up to the party paying it. 52

   SECTION 203.   Where to be made.  Presentment for payment is made at the proper place—
   (1)   Where a place of payment is specified in the instrument and it is there 
           presented;
   (2)   Where no place of payment is specified, but the address of the person to 
           make payment is given in the instrument and it there presented;
  (3)   Where no place of payment is specified and no address is given and the 
          instrument is presented a the usual place of business or residence of the 
          person to make payment;
   (4)  In any other case if presented to the person to make payment wherever he 
          can be found, or if presented at his last known place of business or residence.

   Where the person primarily liable on the instrument is dead, and no place of payment is specified, presentment for payment must be made to his personal representative, if such there be, and if,
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  (52)  Civil Code, §3153, 3155

NOTARY’S MANUAL

with the exercise of reasonable diligence, he can be found.
   Where the persons primarily liable on the instrument are liable as partners, and no place of payment is specified, presentment for payment may be made to any one of them, even though there has been a dissolution of the firm.
   Where there are several persons, not partners, primarily liable on the instrument, and no place of payment is specified, presentment must be made to them all. 53
   
   SECTION 204.  Delay in, when excused. Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his fault, misconduct or negligence.  When the cause of delay ceases to operate, presentment must be made with reasonable diligence. 54

   SECTION 205.  When dispensed with.  Presentment for payment is dispensed with—
   (1)   Where after the exercise of reasonable diligence presentment as required by 
           this title can not be made;
   (2)   Where the drawee is a fictitious person;
   (3)   By waiver of presentment, express or implied. 55
_____________
  (53)  Civil Code, §3154, 3157-3159
  (54)  Civil Code, §3162
  (55)  Civil Code, §3163

BILLS AND NOTES

   SECTION 206.   When instrument is dishonored by nonpayment.  The instrument is dishonored by nonpayment when—
   (1)   It is duly presented for payment and payment is refused or can not be
           obtained; or
   (2)   Presentment is excused and the instrument is overdue and unpaid.

   And when the dishonored by nonpayment an immediate right of recourse to all parties secondarily liable on the instrument accrues to the holder. 56

Notice of Dishonor.

	   SECTION 207.   To whom must be given.   When a negotiable instrument has been dishonored by nonacceptance or nonpayment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged.  Notice of dishonor may be given either to the party himself or to his agent in that behalf.  When any party is dead, and his death is known to the party giving notice, the notice must be given to a personal representative, if there be one, and if with reasonable diligence he can be found.  If there be no personal representative, notice may be sent to the last residence or last place of business
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  (56)  Civil Code, §3164-3165

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ness of the deceased.  Where the parties to be notified are partners, notice to any one partner is notice to the firm even though there has been a dissolution.
   Notice to joint parties who are not partners must be given to each of them, unless one of them has authority to receive such notice for the others.
   Where a party has been adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors, notice may be given either to the party himself or to his trustee or assignee. 57

   SECTION 208.   By whom given.  The notice may be given by or on behalf of the holder, or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who upon taking it up would have a right to reimbursement from the party to whom the notice is given.
  It may be given by an agent either in his own name or in the name of any party entitled to give notice, whether that party be his principal or not.  Where given by or on behalf of the holder, it inures for the benefit of all subsequent holders and all prior parties who have a right of
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  (57)  Civil Code, §3170, 3178-3182

BILL AND NOTES

recourse against the party to whom it is given.  Where given by or one behalf of a party entitled to give notice, it inures for the benefit of the holder and all parties subsequent to the party to whom notice is given.
   Where the instrument has been dishonored in the hands of an agent, he may either himself give notice to the parties liable thereon, or he may give notice to his principal.  If he gives notice to his principal, he must do so within the same time as if he were the holder, and the principal upon the receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder. 58

   SECTION 209.  Form and sufficiency of.  A written notice need not be signed, and an insufficient written notice may be supplemented and validated by verbal communication.  A misdescription of the instrument does not vitiate the notice unless the party to whom the notice is given is in fact misled thereby.  The notice may be in writing or merely oral and may be given in any terms which sufficiently identify the instrument, and indicate that it has been dishonored by nonacceptance or nonpayment.  It may in all cases be given by delivering it personally or through the mails. 59
____________
  (58)  Civil Code, §3171-3175
  (59)  Civil Code, §3176-3177

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   SECTION 210.  When must be given.  Notice may be given as soon as the instrument is dishonored, and unless delay is excused  (See Delay, when excused, Sec. 217, post) must be given—
   Where the person giving and the person to receive notice reside in the same place, it must be given within the following times:
   (1)   If given at the place of business of the person to receive notice, it must be
           given before the close of business hours on the day following;
   (2)   If given at his residence, it must be given before the usual hours of rest on 
           the day following;
   (3)   If sent by mail, it must be deposited in the post office in time to reach him in 
           usual course on the day following. 60

   Where the person giving and the person to receive reside in different places, the notice must be given within the following times:
   (1)   If sent by mail, it must be deposited in the post office in time to go by mail 
           the day following the day of dishonor, or if there be no mail at a convenient 
           hour on that day, by the next mail thereafter;
   (2)   If given otherwise than through the post office, then within the time that 
           notice would have been received in due course of mail, if it
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  (60)  Civil Code, §§3183-3184

BILLS AND NOTES

had been deposited in the post office within the time specified in the last subdivision.
   Where notice of dishonor is duly addressed and deposited in the post office, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails.  Notice is deemed to have been deposited in post office when deposited in any branch post office or in any letter box under the control of the post office department. 61

   SECTION 211.  Notice to subsequent party.  Where a party receives notice of dishonor, he has, after the receipt of such notice, the same time for giving notice to antecedent parties that the holder has after the dishonor. 62

   SECTION 212.   Where must be sent.  Where a party has added an address to his signature, notice of dishonor must be sent to that address; but if he has not given such address, then the notice must be sent as follows:
   (1)   Either to the post office nearest to his place of residence, or to the post
           office where he is accustomed to receive his letters; or
  (2)    If he lives in one place, and have his place of business in another, notice 
           may be sent to either place; or
______________
  (61)  Civil Code, §3185-3187
  (62)  Civil Code, §3188

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   (3)   If he is sojourning in another place, notice may be sent to the place where he
           is sojourning.
    But where the notice is actually received by the party within the time specified, it will be sufficient, though not sent in accordance with these requirements. 63

SECTION 213.   Waiver of.  Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be embodied in the instrument itself, it is binding upon all parties; but where it is written above the signature of an indorser, it binds him only.
   A waiver of protest, whether in the case of a foreign bill of exchange or other negotiable instrument, is deemed to be a waiver not only of formal protest, but also of presentment and notice of dishonor. 64

   SECTION 214.   When need not be given to drawer.  Notice of dishonor is not required to be given to the drawer in either of the following cases:
   (1)   Where the drawer and drawee are the same person;
____________
  (63)  Civil Code, §3189
  (64)  Civil Code, §3190-3192

NOTARY’S MANUAL

   (2)   When the drawee is a fictitious person or a person not having capacity to
           contract;
   (3)   When the drawer is the person to whom the instrument is presented for 
           payment;
   (4)   Where the drawer has no right to expect or require that the drawee or 
           acceptor will honor the instrument;
   (5)   Where the drawer has countermanded payment. 65

   SECTION 215.   When need not be given to an indorser.   Notice of dishonor is not required to be given to an indorser in either of the following cases:
   (1)   Where the drawee is a fictitious person or a person not having capacity to 
           contract, and the indorser was aware of the fact at the time he indorsed the 
           instrument;
   (2)   Where the indorser is the person to whom the instrument is presented for 
           payment;
   (3)   Where the instrument was made or accepted for his accommodation.  66

   SECTION 216.   Dispensed with, when.   Notice of dishonor is dispensed with when, after the exercise of reasonable diligence, it can not be
_____________
  (65)  Civil Code, §3195
  (66)  Civil Code, §3196

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given to or does not reach the parties sought to be charged.
   Where due notice of dishonor by nonacceptance has been given, notice of a subsequent dishonor by nonpayment is not necessary unless in the meantime the instrument has been accepted.
   An omission to give notice of dishonor by nonacceptance does not prejudice the rights of a holder in due course subsequent to the omission. 67

  SECTION 217.   Delay, when excused.  Delay in giving notice of dishonor is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct or negligence.  When the cause of delay ceases to operate, notice must be given with reasonable diligence. 68

   SECTION 218.  Protest, when may be made.  Where any negotiable instrument has been dishonored it may be protested for nonacceptance or nonpayment, as the case may be; but protest is not required except in the case of foreign bills of exchange. 69  (See Protest, Secs. 231-239, post).  

Discharge of Negotiable Instruments.
    SECTION 219.   How discharged.  A negotiable instrument is discharged—
____________
  (67)  Civil Code, §3197-3198
  (68)  Civil Code, §3194
  (69)  Civil Code, §3199

BILLS AND NOTES

   (1)   By payment in due course by or on behalf of the principal debtor;
   (2)   By payment in due course by the party accommodated, where the instrument
           is made or accepted for accommodation;
   (3)   By the intentional cancellation thereof by the holder.  (See Cancellation, 
           Sec. 224, post);
   (4)   By any other act which will discharge a simple contract for the payment of 
           money;
   (5)   When the principal debtor becomes the holder of the instrument at or after
           maturity in his own right. 79

   SECTION 220.  Persons secondarily liable, how discharged.  A person secondarily liable on the instrument is discharged—
   (1)   By any act which discharges the instrument;
   (2)   By the intentional cancellation of his signature by the holder;
   (3)   By the discharge of a prior party;
   (4)   By a valid tender of payment made by a prior party;
   (5)   By a release of the principal debtor unless the holder’s right of recourse 
           against the party secondarily liable is expressly reserved;
   (6)   By any agreement binding upon the holder
_____________
   (70)  Civil Code, §3200

NOTARY’S MANUAL

to extend the time of payment, or to postpone the holder’s right to enforce the instrument, unless made with the assent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved. 71

   SECTION 221.   Material alteration avoids, when.  Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized or assented to the alteration, and subsequent indorsers.  But when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.

   Any alteration which changes—
   (1)   The date;
   (2)   The sum payable, either for principal or interest;
   (3)   The time or place of payment;
   (4)   The number or the relations of the parties;
   (5)   The medium or currency in which payment is to be made;

   Or which adds a place of payment where no place of payment is specified, or any other change
_____________
  (71)  Civil Code, §3201

BILLS AND NOTES

or addition which alters the effect of the instrument in any respect, is a material alteration. 72  (See also Forged signature, Sec. 179, ante).

   SECTION 222.   Right of party who discharges instrument.  Where the instrument is paid by a party secondarily liable thereon, it is not discharged; but the  party so paying it is remitted to his former rights as regards all prior parties, and he may strike out his own and all subsequent indorsements, and again negotiate the instrument, except—
   (1)   Where it is payable to the order of a third person, and has been paid by the 
           drawer; and
   (2)   Where it was made or accepted for accommodation, and has been paid by 
           the party accommodated. 73

   SECTION 223.   Renunciation by holder.  The holder may expressly renounce his rights against any party to the instrument, before, at or after its maturity.  An absolute and unconditional renunciation of his rights against the principal debtor made at or after the maturity of the instrument discharges the instrument.  But a renunciation does not affect the rights of a holder in due course without notice.  A renunciation
______________
  (72)  Civil Code, §3205-3206
  (73)  Civil Code, §3202

NOTARY’S MANUAL

must be in writing, unless the instrument is delivered up to the person primarily liable thereon. 74

   SECTION 224.  Cancellation.  A cancellation made unintentionally, or under a mistake or without the authority of the holder, is inoperative; but where an instrument or any signature thereon appears to have been cancelled the burden of proof lies on the party who alleges that the cancellation was made unintentionally, or under a mistake or without authority. 75

Presentment of bills of Exchange for Acceptance.

   The sections following relating to presentment for acceptance (Sections 225-227), acceptance (Sections 228-230), acceptance for honor (Sections 240-246), payment for honor (Sections 247-248), and bills in a set (Section249) apply exclusively to bill of exchange.

   SECTION 225.   Presentment for acceptance, when must be made.  Presentment for acceptance must be made—
   (1)  Where the bill is payable after sight, or in any other case, where presentment
          for acceptance
____________
  (74)  Civil Code, §3203
  (75)  Civil Code, §3204

BILLS AND NOTES

is necessary in order to fix the maturity of the instrument; or
   (2)   Where the bill expressly stipulates that it shall be presented for acceptance;
           or
   (3)   Where the bill is drawn payable elsewhere than at the residence or place of 
           business of the drawee.

   In no other case is presentment for acceptance necessary in order to render any party to the bill liable.

   The holder of a bill which is required to be presented for acceptance must either present it for acceptance or negotiate it within a reasonable time.  If he fails to do so, the drawer and all indorsers are discharged.    (See Reasonable time, how determined, Sec. 252, post).
   
   Presentment for acceptance must be made by or on behalf of the holder at a reasonable hour, on a business day and before the bill is overdue, to the drawee or some person authorized to accept or refuse acceptance on his behalf; and—
   (1)   Where a bill is addressed to two or more drawees who are not partners,
           presentment must be made to them all, unless one has authority to accept or 
           refuse acceptance for all, in which case presentment may be made to him 
           only;

NOTARY’S MANUAL

   (2)   Where the drawee is dead, presentment may be made to his personal
           representative;
   (3)   Where the drawee has been adjudged a bankrupt or an insolvent or has made
           an assignment for the benefit of creditors, presentment may be made to him 
           or to his trustee or assignee.

   A bill may be presented for acceptance on any day on which negotiable instruments may be presented for payment.  (See Sections 200-201, ante).  When Saturday is not otherwise a holiday, presentment for acceptance may be made before twelve o’clock noon, on that day.
   Where the holder of a bill drawn payable elsewhere than at the place of business or the residence of the drawee has not time with the exercise of reasonable diligence to present the bill for acceptance before presenting it for payment on the day that it falls due, the delay caused by presenting the bill for acceptance before presenting it for payment is excused and does not discharge the drawers and indorsers. 76

   SECTION 226.   Presentment for acceptance, when excused.  Presentment for acceptance is excused and a bill may be treated as dishonored by nonacceptance, in either of the following cases:
____________
  (76)  Civil Code, §3224-3228

BILLS AND NOTES

   (1)   Where the drawee is dead, or has absconded, or is a fictitious person or a 
           person not having capacity to contract by bill;
   (2)   Where, after the exercise of reasonable diligence, presentment can not be 
           made;
   (3)   Where, although presentment has been irregular, acceptance has been 
           refused on some other ground. 77 

   SECTION 227.   Non-acceptance.  A bill is dishonored by nonacceptance—
   (1)   When it is duly presented for acceptance and such an acceptance as is 
           prescribed below (See Secs. 219-221, post) is refused or cannot be obtained; 
           or
   (2)   When presentment for acceptance is excused and the bill is not accepted.  
           (See Presentment for acceptance, when excused, Sec. 226, ante).

   Where a bill is duly presented for acceptance and is not accepted within the prescribed time the person presenting it must treat the bill as dishonored by nonacceptance, or he loses the right of recourse against the drawer and indorsers.  When a bill is dishonored by nonacceptance, an immediate right of recourse against the drawers
____________
  (77)  Civil Code, §3229

NOTARY’S MANUAL

and indorsers accrues to the holder and no presentment for payment is necessary. 78

Acceptance of Bills of Exchange.

   SECTION 228.  Acceptance, how made.  The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer.  The acceptance must be in writing and signed by the drawee.  It must not express that the drawee will perform his promise by any other means than the payment of money.  

   The holder of a bill presenting the same for acceptance may require that the acceptance be written on the bill and, if such request is refused, may treat the bill as dishonored. 

   Where an acceptance is written on a paper other than the bill itself, it does not bind the acceptor except in favor of a person to whom it is shown and who, on the faith thereof, receives the bill for value.

   An unconditional promise in writing to accept a bill before it is drawn is deemed an actual acceptance in favor of every person who, upon the faith thereof, receives the bill for value.

   A bill may be accepted before it has been signed by the drawer, or while otherwise incomplete, or
____________
  (78)  Civil Code, §3230-3232

BILLS AND  NOTES

when it is overdue, or after it has been dishonored by a previous refusal to accept, or by nonpayment.  But when a bill payable after sight is dishonored by nonacceptance and the drawee subsequently accepts it, the holder in the absence of any different agreement, is entitled to have the bill accepted as of the date of the first presentment. 79

   SECTION 229.   Time allowed for acceptance.  The drawee is allowed twenty-four hours after presentment, in which to decide whether or not he will accept the bill; but the acceptance, if given, dates as of the day of presentation.  Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill accepted or nonaccepted to the holder, he will be deemed to have accepted the same. 80

   SECTION 230.   Kinds of acceptance.  An acceptance is either general or qualified. A general acceptance assents without qualification to the order of the drawer.  A qualified acceptance in express terms varies the effect of the bill as drawn.

   An acceptance to pay at a particular place is a 
____________
  (79)  Civil Code, §3213-3216, 3219
  (80)  Civil Code, §3217-3218

NOTARY’S MANUAL

general acceptance, unless it expressly states that the bill is to be paid there only and not elsewhere

   An acceptance is qualified, which is—
   (1)   Conditional, that is to say, which makes payment by the acceptor dependent  
           on the fulfillment of a condition therein stated;
   (2)   Partial, that is to say, an acceptance to pay part only of the amount for which
           the bill is drawn;
   (3)   Local, that is to say, an acceptance to pay only at a particular place;
   (4)   Qualified as to time;
   (5)   The acceptance of some one or more of the drawees, but not of all.

   The holder may refuse to take a qualified acceptance, and if he does to obtain an unqualified acceptance, he may treat the bill as dishonored by nonacceptance.  Where a qualified acceptance is taken the drawer and indorsers are discharged from liability on the bill unless they have expressly or impliedly authorized the holder to take a qualified acceptance, or subsequently assent thereto.  When the drawer or an indorser receives notice of a qualified acceptance, he must, within a reasonable time, express his dissent to

BILLS AND NOTES

The holder, or he will be deemed to have assented thereto. 81

Protest.
   SECTION 231.  When necessary.    Where a foreign bill appearing on its face to be such, is dishonored by nonacceptance, it must be duly protested for nonacceptance, and where such bill which has not been previously dishonored by nonacceptance, is dishonored by nonpayment, it must be duly protested for nonpayment.

  If it is not protested, the drawer and indorsers are discharged.

  Where a bill does not appear on its face to be a foreign bill, protest thereof in case of dishonor is unnecessary. 82  (See Inland and foreign bills, Sec. 163, ante).

   SECTION 232.  How made.   The protest must be annexed to the bill, or must contain a coy thereof, and must be under the hand and seal of the notary making it, and must specify —

	(1)  The time and place of presentment;
  
     (2)  The fact that presentment was made and the manner thereof;

     (3)  The cause or reason for protesting the bill;
__________
  (81) Civil Code, §3220-3223
  (82) Civil Code, §3233

  

NOTARY’S MANUAL

   (4)  The demand made and the answer given, if any, or the fact that the drawee or acceptor could not be found. 83

  SECTION 233.  By whom made.  Protest may be made by—

  (1)  A notary public; or

  (2)  By any respectable resident of the place where the bill is dishonored, in the presence of two or more credible witnesses. 84

  SECTION 234.  When to be made.  When a bill is protested, such protest must be made on the day of its dishonor, unless delay is excused as herein provided.  When a bill has been duly noted, the protest may be subsequently extended as of the date of the noting. 85

  SECTION 235.  Where made.  A bill must be protested at the place where it is dishonored, except that when a bill drawn payable at the place of business or residence of some other person than the drawee, has been dishonored by nonacceptance, it must be protested for nonpayment at the place where it is expressed to be payable, and no further presentment for payment to, or demand on, the drawee is necessary. 86
________
  (83)  Civil Code, §3234
  (84)  Civil Code, §3235
  (85)  Civil Code, §3236
  (86)  Civil Code, §3237

BILLS AND NOTES

  SECTION 236.  Both for nonacceptance and nonpayment.  A bill which has been protested for nonacceptance may be subsequently protested for nonpayment. 87

  SECTION 237.  Before maturity, when.  Where the acceptor has been adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors, before the bill matures, the holder may cause the bill to be protested for better security against the drawer and indorsers. 88

  SECTION 238.  Dispensed with, when.  Protest is dispensed with by any circumstances which would dispense with notice of dishonor. (See Sec. 216, ante).  Delay in noting or protesting is excused when delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct or negligence.  When the cause of delay ceases to operate, the bill must be noted or protested with reasonable diligence. 89

   SECTION 239.  Where bill is lost, etc.  When a bill is lost or destroyed or is wrongly detained from the person entitled to hold it, protest may be made on a copy or written particulars thereof. 90
________
  (87)  Civil Code, §3238
  (88)  Civil Code, §3239
  (89)  Civil Code, §3240
  (90)  Civil Code, §3241

NOTARY’S MANUAL

Acceptance of Bill of Exchange for Honor.

  SECTION 240.  When bill may be accepted for honor.  Where a bill of exchange has been protested for dishonor by nonacceptance or protested for better security, and is not overdue, any person not being a party already liable thereon may, with the consent of the holder, intervene and accept the bill supra protest for the honor of any party liable thereon, or for the honor of the person for whose account the bill is drawn.  The acceptance for honor may be for the part only of the sum for which the bill is drawn; and where there has been an acceptance for honor for one party, there may be a further acceptance by a different person for the honor of another party. 91

  SECTION 241.  How made.  An acceptance for honor supra protest must be in writing, and indicate that it is an acceptance for honor, and must be signed by the acceptor for honor.

  Where an acceptance for honor does not expressly state for whose honor it is made, it is deemed to be an acceptance for the honor of the drawer. 92

  SECTION 242.  Liability on.  The acceptor for honor is liable to the holder and to all parties to
__________
  (94)  Civil Code, §3242
  (95)  Civil Code, §3243-3244

BILLS AND NOTES

the bill subsequent to the party for whose honor he has accepted. By such acceptance, he engages that he will, on due presentment, pay the bill according to the terms of his acceptance, provided, it shall not have been paid by the drawee, and provided also, that it shall have been duly presented for payment and protested for nonpayment and notice of dishonor given him. 93

  SECTION 243.  Maturity of bill. Where a bill payable after sight accepted for honor, its maturity is calculated from the date of the noting for nonacceptance, and not from the date of the acceptance for honor. 94

  SECTION 244.  Protest of bill accepted for honor.  Where a dishonored bill has been accepted for honor supra protest or contains a reference in case of need, it must be protested for nonpayment before it is presented for payment to the acceptor for honor or referee in case of need. 95

  SECTION 245.  Presentment for payment, how made.  Presentment for payment to the acceptor for honor must be made as follows:

  (1)  If it is to be presented in the place where
________
  (93)  Civil Code, §3245-3246
  (94)  Civil Code, §3247
  (95)  Civil Code, §3248

NOTARY’S MANUAL

the protest for nonpayment was made, it must be presented not later than the day following its maturity.

  (2)  If it is to be presented in some other place than the place where it was protested, then it must be forwarded within the time specified for the giving of notice of dishonor where the parties reside in different places.  (See Sec. 210, ante).
   Where there is delay in making presentment to the acceptor for honor or referee in case of need, the provisions of law excusing delay in making presentment for payment may be applied. 96  (See Sec. 204, ante).

  SECTION 246.  Bill must be protested for dishonor by acceptor for honor.  When the bill is dishonored by the acceptor for honor it must be protested for nonpayment by him. 97

Payment of Bills of Exchange for Honor.
  SECTION 247.  How made. Where a bill has been protested for nonpayment, any person may intervene and pay it supra protest for the honor of any person liable thereon or for the honor of the person for whose account it was drawn.  The payment for honor supra protest in order to operate as such and not as a mere voluntary payment, must be attested by a notarial act of  honor which may
_________
  (96)  Civil Code, §3249-3250
  (97)  Civil Code, §3251

BILLS AND NOTES

be appended to the protest or form an extension to it.  The notarial act of honor must be founded on a declaration made by the payer for honor or by his agent in that behalf declaring his intention to pay the bill for honor and for whose honor he pays.  Where two or more persons offer to pay a bill for the honor of different parties, the person whose payment will discharge most parties to the bill is to be given the preference. 98

  SECTION 248.  Effect of.  Where a bill has been paid for honor, all parties subsequent to the party for whose honor it is paid are discharged, but the payer for honor is subrogated for, and succeeds to, both the rights and duties of the holder as regards the party for whose honor he pays and all parties liable to the latter.  Where the holder of a bill refuses to receive payment supra protest, he loses his right of recourse against by such payment.  The payer for honor, on paying to the holder the amount of the bill and the notarial expenses incidental to its dishonor, is entitled to receive both the bill itself and the protest. 99
________
  (98)  Civil Code, §3252-3255
  (99)  Civil Code, §3256-3258

NOTARY’S MANUAL

Bills in a Set.

  SECTION 249.  Where a bill is drawn in a set, each part of the set being numbered and containing a reference to the other parts, the whole of the parts constitutes one bill.  Where two or more parts are negotiated to different holders in due course, the holder whose title first accrues is as between such holders the true owner of the bill.  But nothing in this section affects the rights of a person who in due course accepts or pays the part first presented to him.  

  Where the holder of a set indorses two or more parts to different persons he is liable on every such part, and every indorser subsequent to him is liable on the part he has himself indorsed, as if such parts were separate bills.

The acceptance must be written on any part, and it must be written on one part only. If the drawee accepts more than one part, and such accepted parts are negotiated to different holders in due course, he is liable on every such part as if it were a separate bill.

  When the acceptor of a bill drawn in a set pays it without requiring the part bearing his acceptance to be delivered up to him, and that part at maturity is outstanding in the hands of a holder in due course, he is liable to the holder thereon;

BILLS AND NOTES

and accept as otherwise stated herein, where one part of a bill drawn in a set is discharged by payment or otherwise, the whole bill is discharged. 100

General Definitions and Meanings of Words.
  
  SECTION 250. Unless the context otherwise requires—

  “Acceptance”  means an acceptance completed by delivery or notification.
  “Action” includes counterclaim and set-off.
  “Bank” includes any person or association of persons carrying on the business of
               banking, whether incorporated or not.
  “Bearer” means the person in possession of a bill or note which is payable to the
                 bearer.
  “Bill” means bill of exchange, and “note” means negotiable promissory note.
  “Delivery” means transfer of possession, actual or constructive, from one person 
                    to another.
  “Holder” means the payee or indorsee of a bill or note, who is in possession of it, 
                 or the bearer thereof.
  “Indorsement” means an indorsement completed by delivery.
  “Instrument” means negotiable instrument.
  “Issue” means the first delivery of the instru-
_______
  (100)  Civil Code, §3259-3264

NOTARY’S MANUAL

ment complete in form, to a person who takes it as a holder.
  “Person” includes a body of persons, whether incorporated or not.
  “Value” means valuable consideration.
  “Written” includes printed, and “writing” includes print. 101

  SECTION 251. Person primarily liable, defined. The person “primarily” liable on an instrument is the person who by the terms of the instrument is absolutely required to pay the same.  All other parties are “secondarily” liable. 102

  SECTION 252.  Reasonable time, how determined.  In determining what is a “reasonable time” or an “unreasonable time,” regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case. 103

  SECTION 253.  Time, how computed.  Where the day, or the last day, for doing any act herein required or permitted to be done falls on Sunday or on a holiday, the act may be done on the next succeeding secular or business day. 104
________
  (101)  Civil Code, §3266
  (102)  Civil Code, §3266a
  (103)  Civil Code, §3266b
  (104)  Civil Code, §3266c

FORMS

APPENDIX.
FORMS.

CERTIFICATES OF ACKNOWLEDGMENT.

No. 1.—General form.

        STATE OF CALIFORNIA
City and County of San Francisco		}ss

   On this first day of March in the year one thousand nine hundred and twenty-three, before me, J. B., a notary public in and for the said city and county of San Francisco, state of California, residing therein M. A., known to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same.

  In Witness Whereof, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

J. B.
Notary Public
in and for the City and County of San Francisco, State of California.

NOTARY’S MANUAL

No. 2.—Husband and Wife (or Plural).

STATE OF CALIFORNIA
County of Santa Clara       }ss

  On this first day of March in the year one thousand nine hundred and twenty-three, before me, C.A., a notary public in and for the said county of Santa Clara, state of California, residing therein, duly commissioned and sworn, personally appeared H.W. and M.W., his wife, known to me to be the persons whose names are subscribed to the within instrument, and they and each of them acknowledged to me that they and each of them respectively executed the same.
   In Witness Whereof, etc.

			No. 3.—General—When Party is  Proven.
STATE OF CALIFORNIA
  County of Marin				}ss

  On this first day of Marchin the year one thousand nine hundred and twenty-three, before me, A.B., a notary public in and for the said county of Marin, state of California, residing therein, duly commissioned and sworn, personally appeared Joseph Smith, satisfactorily proved to me to be the person described in and who executed the within instrument by the oath of P.B., a competent and credible witness for that purpose by me duly sworn, and he, the said Joseph Smith, acknowledged to me that he executed the same.
  In Witness Whereof, etc.

FORMS
No. 4—Corporation—President or Secretary.

  STATE OF CALIFORNIA
County of Santa Barbara       }ss

  On this first day of March in the year one thousand nine hundred and twenty-three, before me, M.T., a notary public in and for the said county of Santa Barbara, state of California, residing therein duly commissioned and sworn, personally appeared C.A.R., known to me to be the president (or secretary) of the corporation that executed the within instrument, and acknowledged to me that such corporation executed the same.
  In Witness Whereof, etc.

STATE OF CALIFORNIA
  County of San Mateo        	}ss

  On this first day of March in the year one thousand nine hundred and twenty-three, before me, R. G., a notary public in and for the said county of San Mateo, state of California, residing therein, duly commissioned and sworn, personally appeared. L. A. H., known to me to be the manager (president, secretary, or other person) of the corporation described in and that executed the within instrument and also known to me to be the person who executed it on behalf of the corporation therein named, and he acknowledged to me that such corporation executed the same.
  In Witness Whereof, etc.

NOTARY’S MANUAL

No. 6.—Corporation—by Two Officers.

STATE OF CALIFORNIA
  County of Yuba				}ss

  On this first day of March in the year one thousand nine hundred and twenty-three, before me, P. B., a notary public in and for the county of Yuba, state of California, residing therein, duly commissioned and sworn, personally appeared A. B., known to me to be the vice-president, and C.D., known to me to be the secretary of the corporation described in and that executed the within instrument, and also known to me to be the persons who executed it on behalf of the corporation therein named, and they and each of them acknowledged to me that such corporation executed the same.
  In Witness Whereof, etc.

No. 7.—Attorney in Fact.

STATE OF CALIFORNIA
  County of Santa Cruz		}ss

  On this first day of March in the year one thousand nine hundred and twenty-three, before me, S.M, a notary public in and for the county of Santa Cruz, state of California, residing therein duly commissioned and sworn, personally appeared J. B., known to me to be the person whose name is subscribed to the within instrument as the

FORMS

attorney in fact of L. P., and the said J. P. duly acknowledged to me that he subscribed the name of L.P. thereto as principal and his own name as attorney in fact.
  In Witness Whereof, etc.

CERTIFICATES OF PROOF.

No. 8.—Subscribing Witness.

STATE OF CALIFORNIA
  County of Solano			}ss

  On this first day of March in the year one thousand nine hundred and twenty-three, before me, A. S., a notary public in and for the county of Solano, state of California, residing therein duly commissioned and sworn, personally appeared W. P. known to me to be the same person whose name is subscribed to the within instrument as a witness thereto, who, being by me duly sworn, deposed and said: that he resides in the town of Suisun; that he was present and saw B. A. (personally known to him to be the person described in and who executed the said instrument as party thereto), sign, seal and deliver the same in the presence of said affiant that he executed the same, and that he, the said affiant, thereupon and at this request subscribed his name as a witness thereto.
  In Witness Whereof, etc.

NOTARY’S MANUAL

No. 9.—Handwriting—When All the Parties and Subscribing
 Witnesses Are Dead.

STATE OF CALIFORNIA
  County of Sonoma			}ss

  On this first day of March in the year one thousand nine hundred and twenty-three, before me, R.D., a notary public in and for the county of Sonoma, state of California, personally appeared C. E., known to be a credible witness, and after being by me sworn in the manner and form required by law, I exhibited to him an instrument in writing, to-wit, the deed to which this certificate is attached, upon which is written the signature of H. L. as grantor and K. A. as subscribing witness. After being sworn, the said C. E. testified in substance as follows: That said instrument has never been acknowledged; that, at the date of said instrument, he knew personally  H. L., the said grantor, and K. A., the said subscribing witness; that the parties and all the subscribing witnesses to said instrument are dead; that he then knew and now knows the handwriting of the said grantor and of the said subscribing witness; that the signature of the said grantor H. L. is genuine, and the signature of said K. A., the only subscribing witness, is genuine; that he, the said witness,

FORMS

resides in said county of Sonoma, state of California.
  In Witness Whereof, etc.

No. 10.—Handwriting—When Parties and Subscribing
 Witnesses Are Nonresidents.

STATE OF CALIFORNIA
  County of Stanislaus			}ss

  On this first day of March in the year one thousand nine hundred and twenty-three, before me, G. H., a notary public in and for the county of Stanislaus, state of California, residing therein, duly commissioned and sworn, personally appeared S. T. known to me to be the person whose name is subscribed to the instrument to which this certificate is annexed, as a witness to the genuineness of the signature of E. D., the grantor, and the genuineness of the signature of F.P., the subscribing witness to said instrument.  The said S. T. was sworn by me in the manner and form required by law, and testified in substance as follows:  that he personally knew E. D., the grantor, and F. P., the subscribing witness, and also the grantee in said instrument named at the time said instrument was executed, to-wit, at the city of Modesto, County of Stanislaus, on the second day of April in the year 1922.  That since the execution of said instrument both of the parties to said instrument

NOTARY’S MANUAL

and F. P. the sole subscribing witness to said instrument have become nonresidents of the state of California, to-wit, they reside in the city of Paris, Republic of France; that he, the said witness, is well acquainted with the signature of the grantor and with the signature of the said subscribing witness, and that the signature of the said grantor to said instrument and also the signature of the subscribing witness, are genuine; that he is a resident of the town of Newman, county of  Stanislaus, state of California, and that he subscribed his name to said instrument as a witness to the genuineness of the signatures of the said grantor and the said subscribing witness respectively.

  In Witness Whereof, etc.

No. 11.—Handwriting When Place of Residence Is Unknown

STATE OF CALIFORNIA
  County of Solano				}ss

  (Proceed as in No. 9 down to and including the words “After being duly sworn and the C. E. testified in substance as follows,” and then add  a colon and parenthesis goes in here  (see page 194) That he personally knew H. L. the grantor and, the subscribing witness, K. A., at the date of said

FORMS

instrument; that the place of residence of the parties and all the subscribing witnesses to said instrument is unknown to the said C. E.; that he, the said C. E. is the grantee named in said instrument; that said instrument was never acknowledged, and he desires to have it proved so that is may be recorded;  that he has exercised due diligence to ascertain the residence of the parties and of the subscribing witnesses by making inquiries at their last known places of residence, by advertising in three daily papers published at their last known places of residence, for one week, and by personal inquiries among their friends, family and acquaintances, and he cannot ascertain the place of residence of all or any of said parties; that he is well acquainted with the signature of the said grantor and with the signature of the said subscribing witness, and that the signature of the said grantor to said instrument and also the signature of the said subscribing witness, and that the signature of the said grantor to said instrument and also the signature of the said subscribing witness, are genuine; that he, the said C. E. is a resident of city of Fairfield, county of Solano, state of California.

  In Witness Whereof, etc.

NOTARY’S MANUAL

CERTIFICATE TO DEPOSITION.
No. 12.—General Form

STATE OF CALIFORNIA
  County of Placer				}ss

  I, A. B. C., a notary public in and for said county, do hereby certify: That B. A., the witness in the foregoing deposition named, was by me duly sworn; that said deposition was then taken at the time and place mentioned in the annexed order (or stipulation), to-wit, at my office of the county of Placer, state of California, and on the first day of March, 1923, between the hours of 10 a.m. and 3 p.m. of that day; that said deposition was reduced to writing by me (or taken in shorthand by C.P. and thereafter transcribed) and when completed by me carefully read to said witness, and being by him corrected, was by him subscribed in my presence.  
In Witness Whereof, etc.

NOTICE OF PROTEST.
No. 13.—Of Promissory Note.

UNITED STATES OF AMERICA
  STATE OF CALIFORNIA
    County of Alameda					}ss

Sir:
   Please take notice that a certain promissory note dated March 1, 1923, for the sum of three

FORMS

thousand dollars, payable thirty days after date, made by P. L. in favor of T. R. and endorsed by you, was this day presented by me, a notary public, to said P. L., the maker of the said note, and payment thereof demanded, which was refused, and the said promissory note having been dishonored the same was this day protested by me for the nonpayment thereof, and the holder looks to you for the payment thereof, together with all costs, charges, interest, expenses, and damages already accrued, or that may hereafter accrue thereon by reason of the nonpayment of said promissory note.

  Oakland, Cal. March, 31, 1922.
  Note: This form can be easily made applicable to the case of a bill of exchange.
  The above form gives notice of presentment and demand, dishonor, and protest.

PROTEST
No. 14.—Of Note Payable at Particular Place—Notice of Protest Mailed.

UNITED STATES OF AMERICA
  STATE OF CALIFORNIA
City and County of San Francisco	}ss

  On the 30th day of March, in the year of our Lord one thousand nine hundred and twenty-two, at the request of M. B., holder of the promissory

NOTARY’S MANUAL

note hereinafter set forth, I, H. K., a notary public duly commissioned and sworn, dwelling the city and county of San Francisco, state of California, did, during business hours of said day, present the original promissory note (a copy of which is endorsed on the reverse side of this sheet) at the Bank of California in the city and county of San Francisco, where the same is made payable, and demanded payment thereof from the paying teller, which he refused, saying: “No authority to pay.”

  Whereupon I, the said notary, at the request aforesaid, did protest, and by these presents do publicly protest, as well as against the makers and endorsers as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, damages, and interest, already incurred and to be hereafter incurred for the nonpayment of the said promissory note.

  I do hereby certify that on the 30th day of March, A. D. 1922, notice of protest, demand and nonpayment of the above mentioned promissory note was served  upon A. B. and C. D., endorsers, by depositing the same in the United States Post Office in this city, postage fully pre-

FORMS

paid thereon, directed to them respectively as follows:
		A. B., Sacramento, California;
		C. D., Santa Cruz, California;

such being the reputed places of residence of said respective parties and the post offices nearest thereto, according to the best information I could obtain.
  Thus done and protested in the city and county of San Francisco, state of California aforesaid, the days and years above written.

					(Seal)						H. K.
Notary Public
In and for the city and county of San Francisco, state of California.

No. 15—When Presented to Maker Personally—Notices
 Served Personally, Etc.

  (Proceed as in No. 14 down to  “(a copy of which is endorsed on the reverse side of this sheet)”, to the maker in the city and county of San Francisco, state of California, and demanded payment thereof from him personally, which he refused saying,  “I have no money.”

   Whereupon (proceed as in No. 14 to end of paragraph.)

NOTARY’S MANUAL

  I do hereby certify that on the 30th day of March, 1922, notice of protest demand and nonpayment of the above mentioned promissory note was served upon M. B.  endorser, by delivering the same to him personally in said city (or, upon T. R. endorser, by delivering the same at his place of business, No. 3 Market Street, in this city, to a person of discretion in charge thereof, apparently acting for him).

	(Close as in No. 14.)

No. 16.—When Maker Cannot Be Found and Has No Known Place of Business or Residence—Notices Mailed.

  (Proceed as in No. 14 down to “(a copy of which is endorsed on the reverse side of this sheet)”, to several persons at several places in said city, and did make due and diligent search and inquiry for the maker to demand payment thereof, but I could not find him or anyone to pay said note.  I was credibly informed that said A. B. did not reside here and had no office or place of business in San Francisco.

  Whereupon (proceed as in No. 14 to end of paragraph.)

  I do hereby certify (proceed as in No. 14).

FORMS

No. 17.—When Last Place of Residence Is Known but
 Maker Cannot Be Found—Notices Mailed

  (Proceed as in No. 14 down to and including “(a copy of which is endorsed on the reverse side of this sheet)”,  at No. 3500 Pine Street in this city, which I was informed was the last reputed place of residence in this city of T. B. the maker, the demanded payment thereof from a person in charge of said place of residence, which he refused saying “A. B. formerly lived here but I do not know his present address.”
  Whereupon (proceed as in No. 14 to the end.)

No. 18.—When Bill of Exchange Is Accepted for Honor—Notices Mailed

  UNITED STATES OF AMERICA
		STATE OF CALIFORNIA
City and County of San Francisco	}ss

  On the 1st day of March, in the year one thousand nine hundred and twenty-three, at the request of T. B., holder of the bill of exchange hereinafter set forth, I, H. K., a notary public duly commissioned and sworn, dwelling in the city and county of San Francisco, did, during business hours of said day, present the original bill of exchange (a copy of which is endorsed on the reverse

NOTARY’S MANUAL

side of this sheet) at the place of business of A. C. & Co., the drawees, No. 417 Montgomery Street, in this city, and demanded acceptance thereof from a member of the firm, which he refused saying “No advice”.  I then presented said draft to G. D. the drawee in case of need, and demanded acceptance thereof from him, to which he replied “I will accept this ‘supra protest’ for the honor of J. B. the drawer.”

  Whereupon I, the said notary, at the request aforesaid, did protest, and by these presents do publicly protest,  as well as against the drawer and endorsers as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, damages and interest, already incurred and to be hereafter incurred for the non-acceptance of said bill of exchange.

  I do hereby certify, that on the 2nd day of March, 1923, notice of protest, demand and nonacceptance of the above mentioned bill of exchange was served upon the drawer and endorsers by depositing etc. (as in No. 14).

INDEX

					SEC.	PAGE
Abandonment of homestead		125	  97
Acceptance of Bill of Exchange. (See Negotiable Instruments)		
Acknowledgment of instruments		  15-45	  18-46
	Authority of notary to take		  19	  21
	By  corporation			  29	  35
	By married women		  26	  33
	Certificate of acknowledgment		  27-34	  34-40
		Defective, how amended		  42-43	  45
			Notary may not correct	  42	  45
			Action brought to amend	  43	  45
			Judgment may be recorded	  44	  46
			Validation of by legislature	  45	  46
		Duty of notary to give		    5	  11
		Fees for writing and giving	    6	  13
		Form of, general		  28	  35-187
		Form of, husband and wife		188
		Forms of, corporation		  29	  35-189
		Form of, attorney in fact	 	  30	  36-190
		Must contain name and quality of officer	  32	  37
		Notary must attach to instrument	  27	  34
		Requisites of		  32-33	  37-8
		Signature, name of office and seal	  33	  38
		Venue			  32	  37
		When not conclusive		  34	  39
		When false, notary criminally liable	  14	  17
	Disqualified, when		  17	  21
	Duty of notary to take		    5	  11
	Fees for taking			    6	  13
	Judgments may be recorded without	  47	  48
	Letters patent may be recorded		  47	  48
	Mode of taking acknowledgments		  20-25	  22-33
		Certificate must be attached	  27	  34
		Identity of party must be established	  20	  22
		Mere introduction insufficient	  20-22	  23-31
		Negligence of injured party excuses notary	  23	  31
		Statute must be complied with or notary liable	  20-22	  23-31
		Notary’s negligence must be proximate cause of injury	  24	  31
		Witness swearing falsely commits perjury	  25	  33
	Nature of acknowledgment		  15	  18
	Of personal property mortgages		101	  83
	Purpose of acknowledgment		  17	  20
		Necessary to permit instrument to be recorded	  46	  47
		What may be recorded without acknowledgment	  47-9	  48-9
		What instruments may be acknowledged or proved	  18	  20
		When taken outside of state	  31	  36
Action to correct defective certificates		  43	  45
	Judgment attached to permits recording of instrument	  44	  46

INDEX
					SEC.	PAGE
Affidavits				128-135	100-5
	Authority to take		130	102
	Distinguished from depositions		128	100
	Definition and nature of		128	100
	Duty of notary to take		    5	  12	
	Fees for drawing and taking		    6	  13
	Jurat to				134	104
	Mode of taking			135	104
	Must be in writing		128	100
	Must be subscribed		131	102
	Must accompany personal property mortgages	101	  83
	Jurisdiction to take		    7	  14
	Oath must be administered		128	100
	Presence of affiant		135	104
	Requisites of			131-4	102-3
	Taken over telephone		135	104
	Title of cause			132	103
	Use of				129	100
	Venue				133	103
Affirmations	(See Oaths and Affirmations)
Appointment of notaries public		    1	    9
Arrest, right of witness to protection from		151	120
	Proceedings in case of 		151	120-1
Assignment, of debt			  91	  78
	Of mortgage, record of as notice		  92	  78
Attachment of personal property mortgaged	110	  88
Attorney in Fact, acknowledgment by		  30	  36
	Execution of instrument by		  69	  64
	(See Powers of Attorney)					
Bills and Notes   (See Negotiable Instruments)					
Bond of notary public to be given on qualifying	    3	  10
	Liability on			  13	  17
		For failure to comply with statute	  21	  23
		Negligence of party injured excuses	  21	  31
		For failure to properly protect	155	125
Certificate of acknowledgment		  27-34	  34-40
	Defective, how amended		  42-43	  45
		Notary may not correct	 	  42	  45
		Action brought to amend		  43	  45
		Judgment may be recorded	   44	  46
	Duty of notary to give		    5	  11
	Fees for writing and giving		    6	    3
	Form of, general			  28	  35-187
	Form of, husband and wife			188
	Forms of, corporation		  29	  35-189
	Form of, attorney in fact		  30	  36-190
	Immaterial variances		  33	  36
	Must contain name and quality of officer	  28	  35
	Notary must attach to instrument		  27	  34
	Requisites of			  32-3	  37-8
INDEX
					SEC.	PAGE
	Signature, name of office and seal		  33	   38
	Venue				  32	   37
	When not conclusive		  34		39
	When false, notary criminally liable	  12		17
Certificate of county clerk to acknowledgment take outside of state	  31	  36
Certificate of deposition			140	110
	Form of 				196
Certificate of facts given on qualifying		   4	  11
Certificate of proof of instrument when not acknowledged	 41	 44
	Forms of				191-195
Certificate of residence			 49	 49
Certified copy of records of predecessor		 10	 17
Chattel Mortgages  (See Personal Property Mortgages)
Checks  (See Negotiable Instruments)
Compensation of notaries public		   6	  13
Community Property			  60	  58-9
	Selection of homestead from		114	  91-2
Consideration for transfer of property	(See also Negotiable Instruments)	  64	  62
Contempt of court—disobedience of notary’s subpoena	145	116
Constructive delivery			  77	  67
Corporation, acknowledgment by		  19	  22-3
	Forms of certificate of		  29	  35-189
	May stockholder act		  19	  21
Covenants, implied in deeds		  83	  71
Criminal responsibility			  14	  17
Crops, mortgage on			111	  89
Date, grant presumed to have been delivered at (See Negotiable Instruments)	  75	  66
Declaration of homestead		119-121	  93-4
	Contents of			119	  93
	Effect of filing for record		121	  94
	Recording of			120	  94
Deeds 					  59-84	  56-72
	Definitions			  59	  56
		Corrections		  59-66	  58-62
		Grant, bargain and sale		  59	  56
		Gift			  59	  57
		Life estates		  59	  57
		Quit-claim		  59	  58
		Trust deed		  59	  58
		Joint tenancy		  59	  57
	Delivery			  57	  66-7
		Constructive		  77	  67
		Deed takes effect from		  75	  66
		In escrow		  76	  67
		Necessity for		  75	  66
		Redelivery		  78	  68
	Effect of			  80-83	  66-71
		As to tenants		  81	  70
		How for conclusive		  82	  71
		Implied covenants		  83	  71
INDEX
					SEC.	PAGE
		What passes by conveyance	  80 	  69
	Execution			  67-70	  63-4
		By person who cannot write	  68	  63
		By attorney in fact		  69	  64
		By married women		  70	  64
		In general		  67	  63
	Form and contents of		  62-66	  60-2
		Code form of		  62	  60
		Consideration		  64	  62
		Description of property		  66	  62
		Parties to		  63	  61
		Words of inheritance unnecessary	  65	  62
	Implied covenants		  83	  71
	Interpretation of			  79	  68
		Intention of parties must be ascertained	  79	  68
		Doubtful words how assisted	  79	  68
		In favor of grantee, except	  79	  68
	May be proved for records		  41	  44
	Must be in writing		  61	  60
	Parties to			  63	  61
		Correct names required		  63	  61
		Grantee must be a person	  63	  61
	Void when made with intent to defraud	  84	  72
	What passes by			  80	  69
		Easements		  80	  79
		Fee-simple title		  80	  69
		Subsequently acquired interest	  80	  69
		Transfer of greater interest than grantor has	  80	  69
		Title to center of highway	  80	  70
		When made on condition subsequent	  80	  70
		When made on condition precedent	  80	  70
	When deemed a mortgage		  87	  75
	When grant of real property is recorded as a mortgage	  97	  81
Deeds of trust				  88	  76
Defective certificates			  42-3	  45
	Notary may not correct		  42	  45
	Action may be brought to amend		  43	  45
	Judgment may be recorded		  44	  46
Delivery				  75-8	  66-8
	Constructive			  77	  67
	Deed takes effect from		  75	  66
	In escrow			  76	  66
	Necessity for			  75	  66
	Redelivery			  78	  68
Depositions				136-154	106-122
	Attendance of witnesses, how enforced	141-8	111-8
	Certificate to			140	110
		Form of				196
	Definition and nature of		136	106
	Distinguished from affidavits		128	100
INDEX
					SEC.	PAGE
	Duty of notary to take		    5	  11
	Fees for taking			    6	  13
	Manner of taking in this state		137-8	107-8
	To be used out of state, how taken	139	110
	Oaths and affirmations		152-4	121-2
		Authority of notary to administer	153	121
		Form of			154	122
		May be varied to suit belief of witness	154	122
		Nature of		152	121
	Subpoena			141-48	111-8
		Defined			141	111
		Disobedience of, contempt of court	145	116
		Duty of witness when served with	149	119
		How served		143	115
		If witness be a prisoner, how brought	143	118
		How issued		142	111
		Obedience to, how enforced	147	117
		Punishment in case of disobedience	146	117
		When witness not obliged to obey	144	115
	Witnesses			149-151	119-20
		Deposition of, when may be taken	137	107
		Duty of			149	119
		Disobedience of subpoena, contempt of court	145	116
		Form of oath may be varied to suit belief of	154	122
		How served with subpoena	143	115
		Must answer questions		149	119
		Prisoner, how brought		148	118
		Punishment in case of disobedience to subpoena	146	117
		Obedience to subpoena, how enforced	147	117
		Right of, to protection from arrest	151	120
		Right of, to protection from insult	150	119
		When not obliged to obey subpoena	144	115
Dishonor of negotiable instruments   (See Negotiable Instruments)	
Disqualification of notary		  19	  21
Drawer and Drawee   (See Negotiable Instruments)	    
Duties of notary public			    5	  11
Easements pass with grant		  80	  69
Eligibility of notary			    2	  10
Effect of deeds				  80-83	  69-71
	As to tenants			  81	  70
	How far conclusive		  82	  71
	Implied covenants		  83	  71
	What passes by conveyance		  80	  69
Endorsement   (See Negotiable Instruments)
Escrow, delivery of deed in		  76	  67
Execution of instrument			  67-70	  63-4
	By person who cannot write		  68	  63
	By attorney in fact		  69	  64
	By married women		  70	  64
	In general			  67	  63
INDEX
					SEC.	PAGE
Execution, proof of, when not acknowledged	  35-39	  41-44
	By subscribing witness		  36	  41
		Form of certificate of proof by handwriting, when may be made	  38	  42
		Forms of		  	191-5
	Certificate of proof		  41	  44
	How made			  35	  41
	Powers of officer taking		  40	  44
Execution, homestead exempt from		122	  95
	Homestead, subject to		123	  96
Exemption of homestead			122	  95
False certificate, notary may not give		  12	  17
Failure to record instrument, effect of		  56	  52
Fees of notaries public			    6	  12
Form of grant				  62	  60
	Of mortgage of real property		  96	  81
	Of mortgage of personal property	100	  83
	Of oath				154	122
	Of certificates of acknowledgment	  28-30	  35-6, 188-9
	Of certificates of proof			191-5
	Of certificates to deposition			196
	Of certificates of protest			196
	Of protest				197-8
Fraud, instrument void when made in		  84	  72
Foreclosure of mortgage			  89	  77
Foreign bills of exchange   (See Negotiable Instruments)
Gift deed, defined			  59	  57
Grant, bargain and sale deed, defined		  59	  56
Grants   (See Deeds)			
Handwriting, proof of, when may be made	  38	  42
	Evidence of, must prove what		  39	  43
	Forms of certificate of proof of			192-5
	Recording of such instrument		  52	  50
Head of a family, defined			113	  91
	Declaration of homestead by		119	  93
	Selection of homestead by		117	  92
Homesteads				112-127	  90-99
	Abandonment of			125	  97
	Declaration of			119-21	  93-4
		Contents of		119	  93
		Effects of filing for record	121	  94
		Recording of		120	  94
	Execution, exempt from		122	  95
		Subject to		123	  96
	Head of family, defined		113	  91
		Declaration of homestead by	119	  93
		Selection of homestead by	117	  92
	How conveyed or encumbered		124	  96
	Meaning of			112	  90
	Of insane persons		127	  99
	Proceedings on execution against		126	  97
INDEX 
					SEC.	PAGE
	Selection of			114-118	  91-2
		From what it may be selected	114	  91
		From what it may not be selected	115	  92
		How made by head of a family	117	  92
		How made by other than head of a family	118	  93
		Limitation as to value		116	  92
		Proceedings when value exceeds exemption	126	  97
	Value, limitation as to		116	  92
Honor, acceptance or payment   (See Negotiable Instruments)
Husband and wife, deeds to and by		  60	  58
Identity of party making acknowledgment must be established	  20	  22
	Swearing falsely to, is perjury		  25	  33
Implied, covenants			  83	  71
Indorsements   (See Negotiable Instruments)
Introduction by third person not sufficient	  22	  30
Interpretation of deed			  79	  68
	Intention of parties must be ascertained	  79	  68
	Doubtful words how assisted		  79	  68
	In favor of grantee, except		  79	  68
Insane persons, homestead of		 127	  99
Judgments may be recorded without acknowledgment	   47	  48
Joint promissory notes defined		167	131
Joint and several promissory notes defined	167	131
Joint tenancy deeds, defined		  59	  57
Jurat to affidavit			134	104
Jurisdiction of notaries public		    s7	  14
Lease for one year must be in writing		  61	  60
Liability on bond			  13	  17
	For failure to comply with statute		  21	  23-31
	Negligence of party injured excuses	  21	  31
	For failure to properly protest		155	125
Liability, criminal			  14	  17
Letters patent, may be recorded without acknowledgment	  48	  48
Maker of promissory note   (See Negotiable Instruments)
Mark, person may make who cannot write	  68	  63
Married women, conveyance and acknowledgment by	  26	  33
	Execution of instrument by		  70	  64
	May make power of attorney		  72	  65
Mode of taking acknowledgments		  20-25	  22-33
	Certificate must be attached		  24	  33
	Identity of party must be established	  20	  22
	Mere introduction insufficient		  20-22	  23-30
	Negligence of injured party excuses notary	  23	  31
	Statute must be complied with or notary liable	  20-22	  23-30
	Notary’s negligence must be proximate cause of injury	  24	  31
	Witness swearing falsely commits perjury	  25	  33
Mortgages 				  85-111	  73-89
	Assignment of debt		  91	  78
	Assignment of mortgages, record of	  92	  78
	Definition and nature of		  85		73
INDEX
					SEC.	PAGES
		Acts impairing  security		  85	  73
		Lien of			  85	  73
		Must be in writing		  85	  73
		Subsequently acquired title	  84	  74
	Duty of notary to take acknowledgment	    5	  11
	Foreclosure of			  89	  77
	How discharged of record		  93	  79
		By mortgages		  93	  79
		By foreign executors and administrators	  93	  79
		By record of certificate of discharge	  93	  79
	Of real property			  95-98	  81-2
		Form of mortgage of real property	  96	  81
		Record of mortgages of real property	  98	  82
		What real property may be mortgaged	  95	  81	
		When grant of real property is recorded as mortgage	  97	  81
	Of personal property		  99-111	  82-89
		Affidavit must accompany	101	  83
		Attachment of personal property mortgaged	110	  88
		Form of			100	  83
		Must be acknowledged		101	  83
		On crops		111	  89
		Pledge, change of possession would be	  86	  75
			When property mortgaged may be taken as	109	  87
		Record of		102-107	  84-85
			Certified copy may be recorded	107	  85
			Of ships		103	  84
			Of property in transit	104	  85
			Of property of a common carrier	105	  85
			Of property in different places	106	  85
			When and where to be made	102	  84
		Removal of personal property mortgaged	108-9	  86-7
			Exempt from mortgage when	108	  86
			Amy be taken as a pledge when	109	  87
		What personal property may be mortgaged	  99	  82
	Possession of property		  86	  74
	Power of attorney to execute		  90	  77
	Satisfaction of			  94	  80
	Transfer of property when a mortgage	  87	  75
Negligence of notary must be proximate cause of injury	  24	  31
	Of injured party, excuses notary		  23	  31
Negotiable instruments
	Acceptance of bills of exchange   (See Bills of Exchange)
	Acceptance for honor   (See Bills of Exchange)
	Accommodation party, defined		178	142
		Rights of to discharge of instrument	222	169
	Accommodation indorser, liability of	194	151
	Action defined			250	185
Agent, signature by			171	133
	Negotiation by			193	150
	Notice of dishonor may be given to	207	159
INDEX
					SEC.	PAGES
	Notice of dishonor may be given by	208	160
	Effect of dishonor of instrument in hands of	208	160
Alteration of instruments avoids, when		221	168
Ambiguity in, how construed		176	140
	Interest in case of ambiguity		176	140
Attorney’s fee, stipulation for does not affect	171	134
Bank, defined				250	185
	Certification of check by		170	132
	Indorsement to officer of		181	143
	Presentment for payment to be made at	200	155
	Effect of instrument being payable at	200	155
Bankrupt, notice of dishonor how given to		207	160
	Presentment for acceptance in case of	225	172
	Bill of may be presented before maturity	237	179
Bearer, defined				250	185
	Instrument, when payable to		171	136
	How negotiated by		180-184	143-5
Blank indorsement, nature and effect of		184	145
	By irregular indorser		194	150
Blanks in, filling of			174	138
Bill, defined				250	185
Bills of Exchange			158-164	127-130
	Acceptance of			228-230	174-5
		How made		228	174
		Rights of holder presenting	228	174
		Effect of, on separate paper	228	174
		When bill may be accepted	228	174
		Time allowed for		229	175
		Kinds of		230	175
		General acceptance defined	230	175
		Qualified acceptance defined	230	175
		Qualified may be refused		230	175
		Of bills in a set		249	184
	Acceptance for honor supra protest	240-246	180-182
		When bill may be accepted for honor	240	180
		How made		241	180
		Liability of acceptor for honor	242	180
		Maturity of bill accepted for honor	243	181
		Protest of bill accepted for honor	244	181
		Of bills in a set		249	184
	Acceptance, defined		250	185
	Acceptor, liability of		161	129
	Bills in a set			249	184
		Acceptance of		249	184
		Indorsement of		249	184
		Discharge of		249	184
	Definition and nature of		158	127
	Drawee must be name in		171	136
	Kinds of			163	130
		Inland defined		163	130
INDEX
					SEC.	PAGES
		Foreign defined		163	130
	Liability of drawer		160	128
	Liability of acceptor		161	129
	Parties to			159	128
	Payment  of bills for honor		247-3	182-3
		How made		247	182
		When two or more offer to make	247	182
		Effect of		248	182
		Effect of refusing to receive	248	183
		Rights of payer for honor	248	183
	Presentment of bills for acceptance	225-7 	170-1
		When must be made		225	170
		Effect  of failure to present	225	170
		To whom must be made		225	171
		By whom must be made		225	171
		How must be made		225`	171
			When drawee is dead	225	172
			When drawee is bankrupt	225	172
		Delay in, when excused		225	172
		When excused		226	172
		Effect of failure to treat as dishonored	227	173
		Dishonored by no acceptance, when	227	173
	Presentment for payment, when to be made	199	154
	   (See also Presentment and demand for payment)
	Presentment for payment to acceptor for honor	245	181
		When to be made		245	181
		Delay in, when excused		245	181
		In case of dishonor must be protested	246	183
	Referee in case of need, who is		159	128
	Rules applicable to exclusively		164	130
	When may be treated as note		162	129
		Election to treat as note		176	140
	                 (See also Indorsement, Notice of dishonor protest)
Cancellation 				234	170
	Discharge by			219-224	166-9
	Effect of unintentional		224	170
Check					169-70	132
	Defined				169	132
	Subject to what rules		170	132
Conditional indorsement, defined		187	147
Consideration 				172-77	137-141
	Need not be specified		172	137
	Necessity for			177	137
	Absence of failure of		177	141
	Accommodation party, liability of	178	142
Construction, rules in case of ambiguity		176	140
Corporation, indorsement by officer of		181	144
	Indorsement by passes what interest	182	145
Date, effect of absence of			173	137
	Effect of antedating or postdating		173	137
INDEX
					SEC.	PAGES
	Wrong date, effect of		173	137
	Undated instrument, how construed	176	141
Death, notice in case of, how given		207	159
	Presentment for acceptance how made	225	172
	Excuses presentment		226	173
Defective title to instrument, effect of		196	152
Defined					148	126
Delay, in presentment for payment excused	206	159
	In giving notice of dishonor, when excused	217	166
	In protesting, when excused		238	179
	In presenting to acceptor for honor	245	182
Delivery defined				250	185
	Execution incomplete without		175	139
	When instrument payable to bearer	180	143
	When instrument payable to order	180	143
	When instrument is indorsed in blank	184	145
	Warranty in case of negotiation by	192	149
Demand, instrument payable on when		171	135
	Presentment for payment when to be made	200	155
		(See Presentment and demand for payment.)
Determinable future time, defined		162	128
Discharge of negotiable instruments		219-224	166-170
	By payment			219	166
	By cancellation			219-224	166-170
	When principal debtor becomes holder	219	167
	By material alteration		221	168
	By renunciation	of holder		223	169
	Unintentional cancellation, effect of	224	170
	Rights of party who discharges		222	169
Discharge of persons secondarily liable		220	167
Discharge of bills in a set			240	184
Dishonor, effect of			206	159
	By reason of nonpayment, when		206	159
	By reason of nonacceptance, when	227	173
	By acceptor for honor, effect of		246	182
	Effect of failure to treat as dishonored (See also Notice of Dishonor)	227	173
Draft, defined				158	127
Drawee must be named			171	136
Drawer, liability of			160	128
	When presentment to unnecessary	199	154
	When notice of dishonor to is unnecessary	214	164
Duty with respect to 			155	124
Fictitious drawee, effect of		162	129
	Dispenses with presentment for payment	205	178
	Dispenses with notice of dishonor		215	165
	Excuses presentment for acceptance	226	172
Fictitious drawer, dispenses with notice		214	164
Fictitious payee, effect of 		171	136
Foreign bills of exchange, defined		163	130
Form and validity of			173-179	137-143
INDEX
					SEC.	PAGE
	Date				173	137
	Blanks in			174	138
	Delivery			175	139
	Construction rules		176	140
	Consideration			177	141
	Accommodation party		178	142
	Forged signature		179	142
Holder, defined				250	185
Holder, in due course			196-198	151-153
	Defined				196	151
	When holder is not		196	152
	Title of, when defective		196	152
	Notice of infirmity, what constitutes	196	152
	Defective title, effect of 		196	153
	Rights of			197	153
	Of undated instrument		173	138
	Of incomplete instrument		174	138
	Valid delivery presumed		175	139
	Consideration presumed		177	141
	Accommodation party, liability of	178	142
	May strike out indorsement		189	148
	Transfer without indorsement, effect of	190	148
Indorsement				181-191	143-149
	Defined				250	185
	How made			181	143
	By or to partners		181	144
	By or to bank or corporation		181	144
	By infant, effect of		182	145
	Indorser, who is			182	144
		Signer when deemed indorser	182	144
		Liability of		192-195	149-151
		Presentment to, when unnecessary	199	154
		Notice of dishonor to, when unnecessary	215	165
	Indorsees, transfer to, when inoperative	181	143
	Kinds of			183	145
		Special, defined		184	145
		In blank, defined		184	145
		Blank may be changed into special	184	145
		Restrictive, defined		185	146
		Qualified, explained		186	147
		Conditional, explained		187	147
	Time of, presumption as to		188	148
	Place of, presumption as		188	148
	Striking out of			189	148
	Transfer without		190	148
	Back to prior party		191	149
	Of bills in a set			249	184
Inland bills of exchange, defined		163	130
Instrument, defined			250	185
Issue defined				250	185
INDEX
					SEC.	PAGES
Joint and joint and several, defined		167	131
	When signed in first person		176	141
Joint parties, notice of dishonor to		207	160
Kinds of				157	126
Kind of money, need not be stated		172	136
Liability for failure to properly protest		155	125
Liability of parties to instruments		
	Of drawer			160	128
	Of acceptor			161	128
	Of maker of note		168	132
	Of acceptor for honor		233	174
	Of qualified indorser		192	149
	Of general indorser		193	150
	Of irregular indorser		194	150
	Of agent who negotiates instrument	193	150
	Order of liability of indorsers		195	151
Lost bill, protest of, how made		239	179
Mailing of notice, what constitutes		209	161
Maker, liability of			168	132
Maturity of bill accepted for honor		243	181
Maturity of instrument, rules governing		201	155
Name, effect of signing assumed		171	133
	Indorsement, where error in		181	144
Negotiability				171	133-137
	Importance of determining		157	126
	Requirements of			171	133-137
		Signature		171	133
		Sum payable		171	134
		When payable		171	135
		How payable		171	136
		Drawee must be named		171	136
	Matters which do not affect		172	137
		May authorize sale of collateral	172	137
		May authorize confession of judgment	172	137
		May waive benefit of laws	172	137
		May give election to do other act	172	137
Negotiation (See Indorsement.)		180-191	143-149
Nonacceptance, dishonor by		227	173
	Omission to give notice of dishonor for	216	166
	When bill may be treated as dishonored by 	226	172
Notice of dishonor			208-218	159-166
	To whom must be given		207	159
		In case of death of party		207	159
		In case of partners		207	159
		In case of joint parties		207	159
		In case of bankrupt		207	160
	By whom to be given		208	160
		May be given by agent		208	160
	Form and sufficiency of		209	161
	May be delivered or mailed		209	161
INDEX
					SEC.	PAGE
	May be given verbally		209	161
	When must be given		210	162
		To parties residing in same place	210	162
		To parties residing in different places	210	162
		If sent by mail		210	162
		If sent otherwise than by mail	210	162
		Is deemed to have been mailed when	210	163
		To subsequent party to instrument	211	163
	Where must be sent		212	163
	Waiver of			213	164
	When need not be given to drawer	214`	164
	When need not be given to indorser	215	165
	Dispense with, when		216	166
	Delay in, when excused		216	166
	Protest when to be made		218	166
Notice of infirmity in instrument or title		196	152
Omissions in				174	139
Order, instrument payable to when		171	136
	Instrument payable to, how negotiated	180	143
Order of liability of indorsers		195	151
Parties to bills of exchange		159	128
	Liabilities of			160-161	128-129
Parties to promissory notes		166	131
	Liability of			168	132
Partners, indorsement by or to		181	143
	Notice of dishonor to		207	159
Payee, rules governing			171	136
	Indorsement, where wrongly designated	181	143
Payable, on demand when		171	135
	At determinable future time, when	171	135
	On contingency, effect of		171	136
	To order, when			171	136
	To bearer, when			171	136
Payment in due course, defined		198	154
Payment, value need not be stated		172	137
Payment, instrument discharged by		219-220	166-168
Payment, presentment for, (See Presentment and Demand for Payment).
Payment of bills for honor. (See Bills of Exchange).
Person, defined				250	185
Person primarily liable, defined		251	186
Person secondarily liable, how discharged		220	167
	Effect of discharge by		222	159
Place of payment need not be stated		172	137
Place of presentation for payment		203	157
Place of indorsement, presumption as to		188	148
Presentment and demand for payment		199-206	154-159
	To principal debtor not necessary		199	154
	To drawer and indorsers, when unnecessary	199	154
	When to be made		200	155
	Dispensed with, with		205	158
INDEX
					SEC.	PAGE
	Maturity, rules governing		201	155
	How to be made			202	156
	Where to be made		206	157
	Delay in when excused		204	158
	Instrument dishonored when		206	159
Presentment of bills of exchange for acceptance  (See Bills of Exchange)
Presentment for payment of acceptor for honor ( See Bills of Exchange)
Promissory notes			165-168	131-132
	When bill is treated as		162	129
	Definition and nature of		165	131
	Parties to			166	131
	Joint and joint and several defined	167	131
	Liability of maker  (See also Negotiability)	168	132
Protest				
	Duty of notary with respect to		155	124
	Effect of			156	125
	Liability for failure to property protest	155	125
	Purpose of			156	125	
	Only required in case of foreign bills	163	130
	Waiver of, waives what		213	164
	When may be made		218	166
	When necessary			231	177
	Effect of want of			231	177
	Of bill not appearing to be foreign	231	177
	How made			232	177
	What must contain		232	177
	By whom to be made		233	178
	When to be made		234	178
	Where to be made		235	178
	May be for both nonacceptance and nonpayment	236	179
	When dispensed with		238	179
	When may be made before maturity	237	179
	Delay in, when excused		238	179
	Of lost bill, how made		239	179
	Of bill accepted for honor		244	181
	Of bill dishonored by acceptor for honor	246	182
Qualified acceptance, defined		230	175
	Holder may refuse		230	176
Qualified indorsement explained		186	147
Reasonable time, how determined		252	186
Referee in case of need, defined		159	128
Renunciation by holder discharges		223	169
Restrictive indorsement explained		185	146
Seal not necessary to			172	136
Signature to, how may be made		171	133
	Ambiguity as to			176	141
	Forged, effect of			179	142
	Of indorser			181	143
	Not necessary to notice of dishonor	209	161
Special indorsement, nature of		186	147
INDEX
					SEC.	PAGES
	Sum certain, defined		171	134
	Sum payable construed		176	140
	Time, how computed		253	186
		Of payment how be expressed	171	135
		Of payment, how determined	201	155
		Of indorsement, presumption as to	188	148
			Where transfer without indorsement	190	148
		Allowed for acceptance of bill	229	175
	Title, defective, effect of		196	151
	Unconditional promise or order, defined	171	134
	Unconditional promise to accept bill, effect of	228	174
	Validity of.  (See Form and Validity of.) 
	Value, defined			250	186
	Verbal notice of dishonor sufficient	209	161
	Void, by reason of forged signature	179	142
		By reason of material signature	221	168
	Waiver of presentment for payment	205	158
		Of notice of dishonor		213	164
	Warranty, of person who negotiates by delivery	180	143
		Of qualified indorser		192	149
		Of general indorser		193	150
		Of irregular indorser		194	150
		When negotiated by delivery only	192	149
		Of acceptor for honor		242	180
	Written, defined			256	186
	Written and printed provisions, conflict in	176	140
Negotiable instruments law		155-253	124-186
Notaries public				    1-2	    9-15
	Appointment of			    1	    9
	Authority of, to take affidavits		130	102
	Authority of, to take acknowledgments	  19	  21
	Authority of, to administer oaths		153	121
	Bond of				    3-4	  10-1
	Compensation of		    6	  13
	Disqualification of		  19	  21
	Duties of			    5	  11
	Eligibility			    2	  10
	Jurisdiction of			    7	  14
	Liability of			  13-4	  17
	May appoint clerk or shorthand reporter to take down testimony	138	108
	May issue subpoena		142	113
	Number of			    1	    9
	Powers  of,  on taking proof of instruments	 40	 44
	Qualification of, for office		   3-4	 10-1
	Records of			  9-10	 16-7
	Resignation of			  8-9	 15-6
	Term of office			  8	 15
	Vacancy in office of		  8	 15
Notice of dishonor.  (See Negotiable Instruments.)
Number of notaries that may be appointed	  1	   9
INDEX
					SEC.	PAGES
Oath of Office				    3	  10
Oaths and affirmations			152-4	121-2
	Authority of notary to administer		153	121
	Form of				154	122
	May be varied to suit belief of witness	154	122
	Nature of			152	122
	Must be administered on taking affidavit	131	102
	Testifying falsely under, perjury		  25	  33
	Taking over telephone		   7, 135	  14, 104
Official Bond.  (See Bond.)
Official Record, duty of notary to keep		  5	  12
Official Seal.  (See Seal.)
Parties to conveyance			 63	 61
Payment or extinction of negotiable instruments  (See Negotiable Instruments.)
Payment for honor.  (See Negotiable Instruments.)
Personal Property Mortgages		 99-111	 82-9
	Affidavit must accompany		101	 83
	Attachment of personal property mortgaged	110	 88
	Form of				100	 83
	Must be acknowledged		101	 83
	On crops			111	 89
	Pledge, change of possession would be	 86	 75	
		When property mortgaged may be taken as	109	 87
	Record of			102-7	 84-5
		Certified copy may be recorded	107	 85
		Of ships			103	 84
		Of property in transit		104	 85
		Of property of a common carrier	105	 85
		Of property in different places	106	 85
		When and where to be made	102	 84
	Removal of personal property mortgaged	108-9	 86-7
		Exempt from execution when	108	 86
		May be taken as a pledge when	109	 87
	What personal property may be mortgaged	 99	 82
Pledge, what				 86	 74
Power of Attorney to execute mortgage		 90	 77
Power of Attorney			 71-4	 64-5
	Defined				 71	 64
	Duty of notary to take acknowledgment of	   5	 11
	Married woman may take		 72	 65
	Revocation of			 73	 65
	Termination of			 74	 65
Presentment for Acceptance.  (See Negotiable Instruments.)
Presentment for Payment.  (See Negotiable Instruments.)
Prisoner, how brought to testify		148	118
Private writings may be acknowledged		  18	  20
Promissory Notes.  (See Negotiable Instruments.)
Proof of Execution of instruments when not acknowledged	 35-9	 41-4	
	By subscribing witness		 37	 41
		Form of certificate by proof by	----	191
INDEX
					SEC.	PAGES
	By handwriting, when may be made	 38	  42
		Forms of		----	192-5
	Certificate of proof		 41	 44
	How made			 35	 44
	Powers of officer taking		 40	 44
Protest. (See Negotiable Instruments.)
Qualification of notaries public		   3-4	 10-11
Quit-claim deed, defined			 59	 58
Real Property Mortgages		 95-8	 81-2
	Form or mortgages of real property	 96	 81
	Record of mortgages of real property	 98	 82
	What real property may be mortgaged	 95	 81
	When grant real property is recorded as mortgage  (See Mortgages.)
Recording of Instruments		 46-58	 47-55
	Acknowledgment necessary		 46	 47
	Effect of failure to record		 56	 52
	Mode of 			 50-52	 50
		Where instrument must be recorded	 50	 50
		When deemed recorded		 51	 50
		When execution is established by proof of handwriting	 52	 50
	Of mortgages of real property		 98	 82
		Of discharge of		 93	 79
	Of mortgages of personal property	102-7	 84-5
	Of powers of attorney and revocation	 64-5	 64
	Of homesteads			120-1	 94
	Of grant to political corporation		  46	 48
	Purpose and effect of		  53-55	 51-2
		Constructive notice		  53	 51
		Record may be used in evidence	  55	 52
		Certified copy may be again recorded	  54	 51
	Unrecorded instruments when valid	  57	 53
	What may be recorded without acknowledgment	  47-9	 48-9
		Certificates of residence		  49	 49
		Judgments		  47	 48
		Letters patent		  48	 48
		Notice of location of mining claim	  47	 48
Records of notary, duty to keep		    5	 12
	Must give certified copy of		    5	 12
	In case of death or resignation		    9	 16
	Of predecessor			 10	 16
	Open to public inspection		 11	 17
Redelivery of deeds			 78	 68
Residence of notary public		   2	 10
Resignation of notary public		   8-9	 16
Revocation of power of attorney		 73	 65
Satisfaction of mortgage			 94	 80
Seal, duty of notary to keep and use		   5	 12
	Style of				   5, 12	 12, 17
	Must be annexed		 12	 17
	How affixed			 33	 38
INDEX
					SEC.	PAGE
Selection of homestead			114-18	 91-2
	From what it may be selected		114	 91
	From what it may not be selected		115	 92
	How made by head of a family		117	 92
	How made by other than head of a family	118	 93
	Limitation as to value		116	 92
	Proceedings when value exceeds exemption	126	 97
Separate and community property		  60	 58-9
	Selection of homestead from		114-5	 90-1
Signature, must be attached (See also Negotiable Instruments.)	  33	 38
Subpoena				141-8	111-18
	Defined				141	111
	Disobedience of contempt of court	145	116
	Duty of witness when served with		149	119
	How served			143	115
	If witness be a prisoner, how brought	148	118
	How issued			142	111
	Obedience to, how enforced		147	117
	Punishment in case of disobedience	146	117
	When witness not obliged to obey		144	115
Subscribing Witness, defined		  36	  41
	Proof of execution, how made by		  37	  41
	Form of certificate of proof, by		----	 191
Successor—his term of office		    8	 15-6
	Records of predecessor		   9-10	 16-7
Telephone, taking oath over		   7, 135	 14-104
Tenants, attornment of			81	 70
Term of office of notary public		  8	 15
Territorial limits of jurisdiction		  7	 14
Time and place of payment of negotiable instruments.  (See Negotiable Instruments.)
Title to affidavits			132	103
Transfers.  (See Deeds.)
Trust Deed, defined			  59	  58
Unlawful transfers			  84	  72
Unrecorded instrument, when valid		  57	  53
Vacancy in office			    8-9	 15-6
Value of homestead exemption		115	 92
Venue to certificate of acknowledgment		  32	 37
	To affidavit			133	103
Waiver.  (See Negotiable Instruments.)
Witnesses				149-51	119-20
	Deposition of, when may be taken		137	107
	Duty of				149	119
	Disobedience of subpoena, contempt of court	145	116
	Form of oath may be varied to suit belief of	154	122
	How served with subpoena		143	115
	Must answer questions		149	119
	Prisoner, how brought		148	118
	Punishment in case of disobedience to subpoena	146	117
	Obedience to subpoena, how enforced	147	117
INDEX
					SEC.	PAGE
	Right of, to protection from arrest	151	120
	Right of, to protection from insult	150	119
	When not obliged to obey subpoena	144	115
Women.  (See Married Women.)
	May be appointed		    1	    9
Write, person who cannot may make mark	  68	  63
	Acknowledgment by person who cannot write	  68	  63
Words of inheritance unnecessary in deed		  65	  62