Section 291 of the Real Property Law (Cons. Laws, ch. 50) provides that a conveyance may be *Page 86 recorded on being duly acknowledged by the person executing the same. Sections 311 and 312 provide that the acknowledgment is not sufficient where it is taken by the officer of another state, unless it is authenticated by the certificate prescribed by the statute as to the authority of the officer taking the acknowledgment, and the genuineness of his signature.
The conveyance presented by the relator was not precisely within the law inasmuch as it lacked the authenticated acknowledgment of one of the four grantors. But I think it came within the spirit of the statute.
As to the grantor whose acknowledgment was defective, the record would not be notice to subsequent purchasers of the conveyance (Bradley v. Walker, 138 N.Y. 291), and if that person had been the sole grantor, the deed could not have been lawfully recorded. (Penal Law, § 1862.)
But, confessedly, three of the four grantors properly acknowledged the deed and it was entitled to be recorded as against them. Some times it may happen that the vendee of land may be compelled in making the title to rely in part upon a deed in which all the vendor owners are named as grantors but which some of them do not sign or acknowledge. May not the vendee in such case regard the names of those who do not sign or acknowledge as surplusage, and hold the deed sufficient for recording as to the others?
In the present case, according to the opinion of the court at Special Term, the register was willing to record the deed if the name and signature of the grantor whose acknowledgment was defective were erased. The relator was not obliged thus to alter or mutilate the instrument with the risk of invalidating it altogether.
One object of the Recording Act is to preserve the evidence of real estate conveyances. To that extent, the relator was entitled in this case to the benefits that accrue from the law. *Page 87
Our attention is not called to any contrary authority, and I think the better view is that the deed in this case should be regarded as the conveyance of the grantors who properly acknowledged the same and should be recorded. The register should not, however, be compelled to index the conveyance against the grantor whose acknowledgment is not in proper form.
I recommend that the orders appealed from be reversed and the issuance of a writ of mandamus directed, but inasmuch as the question is novel and the register acted in good faith, I think the reversal should be without costs.
HISCOCK, Ch. J., CHASE, COLLIN, McLAUGHLIN and CRANE, JJ., concur; HOGAN, J., concurs in result.
Orders reversed, etc.