1. The formula prescribed by the laws of Tennessee for the
acknowledgment of deeds is
"Personally appeared before me . . . the within-named bargainor,
with whom I am personally acquainted, and who acknowledged that he
executed the within instrument for the purposes therein
that a certificate of an officer taking the
acknowledgment of the grantor in a deed of trust, in which the
officer certifies that said grantor is "personally known" to him is
a compliance with the statute.
2. To be "personally acquainted with" and to "know personally"
are, in such a certificate, equivalent phrases.
3. There is no statutory provision in Tennessee as to the
execution or acknowledgment of deeds by a corporation. In such
cases, its officer affixing its seal is the party executing the
deed within the meaning of the statutes requiring deeds to be
acknowledged by the grantor.
The facts are stated in the opinion of the Court.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The appellees, Calhoun and Meyer, are the grantees in a deed of
trust covering the Paducah and Memphis Railroad, which has its
northern terminus at Paducah, Ky., and its southern at Memphis,
Tenn. A corporation known as the Paducah and Memphis Railroad
Company, and authorized to build the road, executed the deed of
trust to secure the payment of certain liabilities therein
described. The deed, bearing date the first day of February, 1872,
was acknowledged the fifth of that month, and duly lodged for
record in the proper office in Shelby County the 9th of March in
the same year. The company made default in the payment of the
interest on the bonds intended to be secured by the deed, and
Calhoun and Meyer, the trustees, thereupon filed this bill to
enforce its provisions. The circuit court placed the road
in the hands of a receiver.
After this was done, the appellants, Kelly and others, procured
leave to intervene, and filed their joint petition. It sets forth
the facts already stated, and that the petitioners severally
Page 95 U. S. 711
recovered judgment against the company in the First Circuit
Court of Shelby County, at the following dates: on the 9th of
January; on the 27th of January; on the 25th of May, and on the
13th of October, in the year 1875; and on the 26th of January, and
on the 3d of June, 1876. It further alleges that the certificate of
the proof and acknowledgment of the deed of trust is fatally
defective, and that their judgments are, therefore, the first lien
upon the premises. They pray to be permitted to levy executions,
that the premises may be sold under the order of the court, that
the proceeds may be applied in payment of their several judgments,
and for general relief. Leave was given to them to levy, but not to
sell. They levied accordingly. The deed and certificate alleged to
be defective are set out in full. Calhoun and Meyer demurred. The
circuit court held the certificate good, sustained the demurrer,
and dismissed the bill.
The deed was well executed. The testatum
forth that the company had caused its corporate seal to be affixed
and the instrument to be signed by its president and secretary,
which appear on its face to have been done. The sealing and
delivery were attested by two subscribing witnesses. Angell &
A. on Corp., sec. 225.
The attack is confined to the certificate of acknowledgment,
which, less the caption and official signatures affixed, is as
"Be it remembered that on this fifth day of February, 1872,
before me, Charles Nettleton, a commissioner, resident in the City
of New York, duly commissioned and qualified by the executive
authority and under the laws of the State of Tennessee to take
acknowledgments of deeds &c., to be used or recorded therein,
personally appeared Ex. Norton, the president of the Paducah and
Memphis Railroad Company, and Henry L. Jones, the secretary of said
company, who are personally known to me to be such and who, being
by me duly sworn, did depose and say that he, the said Ex. Norton,
resided in the City, County, and State of New York; that he, the
said Henry L. Jones, resided in Paducah, in the State of Kentucky;
that he, the said Norton, was president of the said Paducah and
Memphis Railroad Company; that he, the said Jones, was secretary of
the said company; that they knew the corporate
Page 95 U. S. 712
seal of said company; that the seal affixed to the foregoing
instrument, purporting to be the corporate seal of said company,
was such corporate seal; that it was affixed thereto by order of
the board of directors of said company, and that they signed their
names thereto by the like order, as the president and secretary of
said company, respectively; and the said Ex. Norton and Henry L.
Jones also acknowledged to me that they executed said instrument as
their act and deed, and the act and deed of said company, for the
uses and purposes therein mentioned. And at the same time and place
before me also personally appeared Philo C. Calhoun and L. H.
Meyer, also parties to the foregoing instrument, with each of whom
I am personally acquainted, who severally acknowledged that they
executed the within instrument for the purposes therein
The law of Tennessee requires deeds for the conveyance of lands,
"in what manner or form soever drawn," to be "acknowledged by the
maker, or proved by two subscribing witnesses at least." Code,
secs. 2005-2038. Where the instrument is acknowledged, the
prescribed formula, omitting the caption, is
"Personally appeared before me, clerk (or deputy-clerk) of the
county court of said county, the within-named bargainor, with whom
I am personally acquainted, and who acknowledged that he executed
the within instrument for the purposes therein contained."
Sec. 2042. If the acknowledgment be taken without the state, by
one of the officers designated in sect. 2043, the same formula must
be allowed. Bone v. Greenlee,
1 Coldw. (Tenn.) 29;
Mullins v. Aikens,
2 Heisk. (Tenn.) 535.
There is no statutory provision in Tennessee as to the execution
or acknowledgment of deeds by corporations. In such cases, the
officer affixing the seal is the party executing the deed, within
the meaning of the statutes requiring deeds to be acknowledged by
the grantor. Lovett v. Steam Saw-Mill Association,
(N.Y.) 54. In the formula we have quoted, both the phrases
"personally appeared" and "with whom I am personally acquainted"
are found. It has been held by the supreme court of the state that
the latter means more than the former, and that personal knowledge
is indispensable. But it has been also held that a substantial
Page 95 U. S. 713
with the statute is all that is required. Johnson v.
1 Sneed (Tenn.) 258; Fall v. Roper,
(Tenn.) 485; see also Farquharson v. McDonald,
(Tenn.) 404. And such is the rule laid down by this court.
8 Wall. 513. The certificate here in
question sets forth: "Before me," &c.,
"personally appeared Ex. Norton, the president of the Paducah
& Memphis Railroad Co., and Henry L. Jones, the secretary of
the same company, who are personally known to me to be such,
&c. To be "personally acquainted with" and to "know
personally" are equivalent phrases. Upon looking into the paragraph
just quoted, two points are found to be salient. It is certified,
1, that the parties named appeared in person; 2, that they were
personally known to the commissioner to be the incumbents of the
offices specified. He might have known them to be the latter, by
information derived from various sources, without personal
knowledge upon the subject. Such knowledge is independent and
complete in itself. It might exist with or without other
information. Personal knowledge to the extent certified necessarily
included the personal identity of the officers, as well as the
incumbency of their offices. A defect of such knowledge as to
either point would be inconsistent with the language used and
falsify the certificate. It can hardly be doubted that the
paragraph was meant to cover both points. It is a reasonable and
necessary construction to give it that effect. Indeed, it involves
no straining to hold that the phrase "personally known to me to be
such" applies proprio vigore
to those named, alike
individually and officially; in other words, that the certifier
meant that he personally knew them to be such individuals and such
officers. The certificate was evidently drawn with studied
deliberation. It seems to have been intended to meet the
requirements of the law both as to proof of execution and
acknowledgment without proof. In the latter aspect, we hold the
certificate to be sufficient. In the former, we have therefore no
occasion to consider it.
Instruments like this should be construed, if it can be
reasonably done, ut res magis valeat quam pereat.
should be the aim of courts, in cases like this, to preserve and
not to destroy. Sir Matthew Hale said they should be astute to
Page 95 U. S. 714
means to make acts effectual, according to the honest intent of
the parties. Roe v. Tranmar,
The second proposition relied upon by the counsel for the
appellees relates to the filing of their bill and the lis
before the judgments of the intervenors were
recovered. The conclusion at which we have arrived as to the
certificate renders it unnecessary to consider this subject.
Otherwise, it would require grave consideration.
MR. JUSTICE HARLAN did not sit in this case.