John G. Smith, Appellant, v. Thomas Boyd et al., Respondents

John G. Smith, Appellant, v. Thomas Boyd et al., Respondents. On the same paper, and following the signatures to an assignment for the benefit of creditors, was written a notary’s certificate of acknowledgment. It bore the’ same date as the assignment, and named as the persons acknowledging the ones who apparently executed the assignment. It stated that the persons named were to the notary known “ to be the individuals described in, and who executed the same.” Held, that the words “the same” referred to the instrument to which the certificate was appended, and sufficiently identified it; and that the certificate showed a due acknowledgment of the instrument. Smith v. Boyd (10 Daly, 149), reversed. (Argued February 2, 1886; decided March 2, 1886.) Appeal from judgment of the General Term of the Court of Common Pleas, in and for the city and county of blew York, entered upon an order made at the January term, 1884, which affirmed a judgment in favor of defendants, entered upon the report of a referee. (Reported below, 10 Daly, 149.) This action was brought by plaintiff as assignee for the benefit of the creditors of Clinton H. Smith, to recover for the alleged wrongful taking and conversion of property, part of the assigned estate. The complaint was dismissed by the referee on the ground that the assignment was not duly acknowledged. The certificate of acknowledgment was upon the same sheet of paper as the assignment; it bore the same date and followed the signatures of the assignor and assignee. The following is a copy thereof: “ State of New York, ) City and County of New York, j ss‘' “ On this 21st day of February, 1882, before me personally appeared Clinton II. Smith and John Gf. Smith, to me personally known to be the individuals described, and who executed the same, and who acknowledged to me that they executed the same for the purposes therein mentioned. “JOHN N. BEOWN, “ Commissioner of Deeds, “ New York County.” John J. Adams for appellant. The use by the notary in his certificate of the words “ the same,” without referring to the assignment, was at most a clerical error, and would not invalidate the assignment. (Boyd v. Smith, and Lien v. Smith, N. Y. C. P., April 24, 1882; Meriam v. Harson, 2 Barb. 232; Sheldon v. Stryker, 27 How. 387.) Where the language of an assignment for the benefit of creditors can be abundantly satisfied by a construction which will support the instrument, such construction should be given. (Benedict v. Huntington, 32 N. Y. 219; Bogart v. Haight, 9 Paige, 297: Mann v. Whitbeck, 17 Barb. 388; Sherman v. Elder, 24 N. Y. 381; Kellogg v. Slauson, 11 id. 502; Platt v. Lott, 17 id. 478; Bk. of Silver Creek v. Talcott, 22 Barb. 550; Brain v. Dunning, 30 id. 211; Read v. Worthington, 9 Bosw. 617; Grover v. Wakeman, 11 Wend. 187.) The certificate is sufficiently complete to indicate clearly that there was an acknowledgment of the instrument by the parties to it. (Claflin v. Smith, 35 Hun, 372, 375.) Robert Ludlow Fowler for intervening cestuis of plaintiff, appellant. The certificate of acknowledgment was a substantial compliance with the statutes of New York. (Laws of 1877, chap. 466, § 2, as amended; People v. Collins, 7 Johns. 554.) If the taking of an acknowledgment be held a judicial act, our statutes of jeofails embodied in the present liberal codes of procedure, unquestionably apply to the certificate which is a mere official judgment on a state of facts. (Code, §§ 722, 724; Warner v. Jaffray, 96 N. Y. 248, 253.) The form of the certificate of the acknowledging officer, not having been prescribed by law, is left to the discretion of such officer by implication and ex necessitate rel. (Ritter v. Worth, 58 N. Y. 627; Sheldon v. Stryker, 42 Barb. 284; West Point Iron Co. v. Reymert, 45 N. Y. 703; Canandarqua Academy v. McKechnie, 19 Hun, 62.) The judicial presumption is in favor of the sufficiency of an official certificate. (Hunt v. Johnson, 19 N. Y. 280, 292; People v. Snyder, 41 id. 397; Carpenter v. Dexter, 8 Wall. 513, 526; Kelly v. Calhoun, 95 U. S. 713; Morse v. Clayton, 21 Miss. 373; Wells v. Atkinson, 24 Minn. 161.) This is not the ease of an instrument with no certificate, but the case of an instrument with a certificate alleged to be defective by reason of the omission of a word. Such an omission may be helped, for any purpose, by a reference to the deed itself, and the missing context supplied by intendment. (Carpenter v. Dexter, 8 Wall. 513, 528; Brooks v. Chaplin, 3 Vt. 81.) When the omission in a certificate is obviously a mere clerical error the court passes it over, for de minimus non curat lex. (Scharfenburg v. Bishop, 35 Iowa, 60; Davar v. Cardwell, 27 Ind. 478; Picket v. Doe, 5 S. & M. 470; 13 Miss. 470; Samuels v. Shelton, 48 Mo. 444; Monroe v. Eastman, 31 Mich. 283; Rigler v. Cloud, 14 Penn. St. 364.) Otto Horwitz for respondents. An observance of the provisions of the General Assignment Act of 1877 is a prerequisite of the validity of an assignment. (Britton v. lorentz, 45 N. Y. 151; Jones v. Bach, 18 Barb. 568; Board of Education v. Fonda, 77 N. Y. 357.) As to acknowledgments general assignments are precisely analogous to deeds executed by married women under the statutes which were m existence prior to 1879. (Jackson v. Stevens, 16 Johns. 110; Martin v. Divelly, 6 Wend. 9; Gillett v. Stanley, 1 Hill, 121; Ryers v. Wheeler, 23 Wend. 434; Elwoods v. Klock, 13 Barb. 50 ; Merritt v. Yates, 71 Ill. 630; Wetmore v. Laird, 5 Biss. 160; Enterprise Transit Co. v. Sheedy, 16 Rep. 565; Jefferson Co. Build. & Loan Ass. v. Hial, 17 id. 397; Bk. of Healdeburgh v. Bailhall, 18 id. 333; Heaton v. Fryberger, 38 Iowa, 185; West Point Iron Co. v. Reginort, 45 N. Y. 703; Sheldon v. Stryker, 42 Barb. 284; Ritter v. Worth, 58 id. 627.) The essential parts of an acknowledgment are the identity of the instrument and the acknowledgment of it, and these must be stated in the certificate. (Bryan v. Raniery, 8 Cal. 467; Henderson v. Granele, id. 581.) It is as incumbent to identify the instrument acknowledged as the parties acknowledging it. (Merritt v. Yates, 71 Ill. 636; Miller v. Lenk, 2 T. & C. 86; Fryer v. Rockefeller, 63 N. Y. 268; Gillett v. Stanley, 1 Hill, 121; Stanton v. Britton, 2 Conn. 529; Pendleton v. Britton, 3 id. 406; Hayden v. Westcott, 11 id. 129; Jackson v. Osborn, 2 Wend. 555; Tulley v. Davis, 30 Ill. 103; Shepard v. Carriel, 19 id. 313; Hardin v. Kirk, 49 id. 153; Callaway v. Fasb., 50 Mo. 420; Wolf v. Fogarty, 6 Cal. 224; Hartley v. James, 50 N. Y. 38; Norman v. Wells, 17 Wend. 137; Smith v. Hunt, 13 Ohio, 260; Hess v. McCabe, 45 Md. 79; Buell v. Irwin, 24 Mich. 145; Spitznagle v. Vauhessh, 13 Neb. 338; Lestwich v. Neal, 7 W. Va. 569.) [MAJORITY — Finch, J.] Finch, J. We do not concur in the ruling which destroys the assignment of the insolvents, because of the defect in the notary’s certificate of acknowledgment. The criticism of its form has a very perceptible and adequate foundation, when the instrument is read by itself, and with no attending circumstances to solve its ambiguity or give meaning to its words. Whether in the light of those circumstances, and applying the admitted canons of construction, it can be read so as to identify the instrument acknowledged, is the question presented for our determination. If the notary had written, instead of the phrase “the same,” where it first occurs in the certificate, the words, “the foregoing instrument,” his certificate would have been perfect, and identified the paper acknowledged. It is evident from what he did write, that he intended to certify the acknowledgment of some instrument, the parties to which he knew, and that they executed it, and were described in it. His certificate appears upon the same paper with the assignment, and following its signatures and bearing the same date. It names, as the persons acknowledging, the two who apparently executed the assignment. The words, “ the same,” must have some meaning if any just construction can furnish it, for the writer is supposed to have used them for some purpose, and as vehicles of some idea, and not to have written them uselessly or without intelligent meaning. Unless they refer to the assignment, and serve to identify it, they are wholly without force and must be rejected as idle and superfluous. If they have any meaning at all, they must find it in a reference to the assignment immediately preceding, and which alone answers so much of the description as appears. The words are relative, and imply an antecedent which is missing, and without which they are senseless. The result is an ambiguity which often has to be solved with the aid of surrounding circumstances. That the assignors named, executed and acknowledged some instrument in the presence of the notary the certificate assures us. If that instrument was other and different from the one to which the certificate is appended, the words “the same” would be inexplicable. They would prove as indefinite and uncertain as if the phrase had been “an instrument,” or “some instrument,” or “ a certain instrument,” which, indeed, is the construction put upon them by the court below. But they are not so indefinite. They imply a known antecedent which the others do not, and assume that the instrument referred to has been in some manner already identified. That manner was only by identity of names and dates, and position upon the same paper with the certificate, and immediately preceding it. To that instrument, and not to some other‘indefinite one, the words “ the same ” must refer, or practically be stricken from the certificate as having no purpose or meaning. That we do not unduly strain the language of the certificate by this construction, or indulge a dangerous' laxity in the performance of official duty by acknowledging officers, may be made apparent by reference to one or more precedents in the courts of our own State. In Canandxirqiia Acad emy v. McKechnie (19 Hun, 62, 68), the rule was said to be established that a certificate of proof or acknowledgment need not be in the precise language of the statute, but is to be liberally-construed, and is enough if it shows a substantial compliance with the statute. In Jackson v. Gumaer (2 Cow. 552), the question arose over the acknowledgment of a mortgage in 1816, under the Revised Laws which required the officer to certify that he knew the person making the acknowledgment to be “ the person described in, and who executed ” the writing. The officer simply certified that the individual acknowledging was “ to me known.” On its face, the whole force of the expression established only the fact of' a personal acquaintance, and not at all the prescribed fact that he was known to the officer to be the identical person who was described in, and who executed the instrument. The argument was strongly pressed that the omission was fatal. It was urged that the statute was imperative, audits purpose salutary, and aimed at frauds in personating grantors. To which it was replied, that the objection was “hypercritical,” and that the phrase “to me known” should be construed as to me known “ as a grantor in the deed upon which my certificate is indorsed.” Assuredly it is no more difficult to refer the words “the same” in the certificate before us to the paper on which the certificate was indorsed, than to extract from the words “ to me known ” the further meaning “ as grantor ” in the deed “ upon which my certificate is written.” The same construction of the latter phrase was adopted in equity. (Troup v. Haight, Hopk. 239), and again in an action at law. (Duval v. Covenhoven, 4 Wend. 561.) Less pertinent deviations from the statutory language are found in Meriam v. Harsen (4 Edw. 70), and. West Point Iron Co. v. Rymert (45 N. Y. 703). While we do not underestimate the force of the criticism applied to the certificate before us, we are still of opinion that we ought to construe the ambiguous words in the light of the circumstances, and as referring to the instrument to which the certificate was appended, and as sufficiently identifying it. The judgment should be reversed and a new trial granted, costs to abide the event. All concur. ■ Judgment reversed.