By the Court —
Flandeau, J.- —“When the Territory of Minnesota was organized, the laws of the Territory of "Wisconsin, which were in force at the date of the admission of the State of Wisconsin, were extended over it by the Organic Act, sec. 12. By these laws the only officers authorized to take the acknowledgment of deeds were Judges and Commissioners of the Supreme Court, Notaries Public and Justices of the Peace. (laws of Wisconsin in force at the organization of Minnesota Territory, published with the laws of the first session of the Legislature of Minnesota Territory of 1849, by James Goodhue, p. 134, sec. 10.) By section 1 of chapter 3, of chapter 20 of the laws of 1849, which took effect on the first day of December, 1849, Courts of Probate were erected and made Courts of Record, but the power to take acknowledgments was not conferred upon them or the Judges thereof. This continued to be the law until September 1st, 1851, when the Revised Statutes went into effect. R. S., p. 578, sec. 1. *229By the Revised Statutes other officers were authorized to take acknowledgments, among whom were designated “ any Judge of a Court of Record.” Id., p. 211, sec. S. But the Revised Statutes at the same moment they conferred their authority upon “Judges of a Court of Record,” repealed the previous act of 1849, which made Probate Courts Courts of Record, and created new Probate Courts, which were not Courts of Record. R. S., p. 57S, sec. 1; Id., p. 71. Neither Probate Courts or Probate Judges therefore had the power to take acknowledgments up to the fist of September, 1851. The deed from Eish to Willoughby & Powers of date of November 9, 1850, which was acknowledged before the Judge of Probate of Ramsey county, on the day of its date, was not entitled to be recorded, nor could it be read in evidence under such acknowledgment.
On the sixth day of March, 1852, the Legislature passed an act which declared the existing Courts of Probate to be Courts of Record, and gave them a seal and a clerk. Laws and Reports of 1853, p. 40; Comp. Stats., 495. Erom this time the Judges of Probate were empowered to take acknowledgments, by virtue of see. 8, p. 211, R. S. p. 398, Comp. Stats. Therefore the deed from "Willoughby & Powers to the Plaintiff of date of May 31, 1852, was properly received in evidence under the acknowledgment of the Probare Judge, so far as his competency to act was concerned. The objection went also to the absence of a seal to his certificate.
It is not necessary that these official certificates of acknowledgment should be under seal unless the statute authorizing them expressly requires it. 2 Cow. & Hill's Notes to Phil. Ev., p. 462. if the certificate styles the officer taking it as an officer authorized by statute to perform the act, it will be prima faeie evidence of his official character. Id., 461-2-3. No seal was required by our act.
But it is contended by the Plaintiff that the defect in the acknowledgment of the deed from Eish to Willoughby & Powers is cured by the statute of 1856 ; p. 406 of the Comp. Slot. The language of this act is as follows: “The acknowledgment, &c., * * * heretofore made and taken before any clerk of either the Supreme or District Courts and Judges of *230Probate of tbis Territory, and the certificate of any such acknowledgment made by any such clerk,” shall, &c. The language is a little obscure ; but the latter part of it refers to the clerks exclusively and does not include the Judge of Pro'bate. In order to determine what was meant, whether the Judge of Probate, or the clerk of the Judge of Probate, we can take into consideration that the Judge had possessed the right previously, and since the sixth of March, 1852, and the clerk had never enjoyed it. It would seem more probable therefore that the curative law was aimed at the acts of officers who had never been authorized, than those who had been entitled to act for several years past. But what relieves the statute - from its apparent uncertainty of expression and makes it clear that the clerks and not the Judges were intended, is the second section, which employs the exact language used in the first in another sense. It is as follows :
“ The several clerks of the District Courts and Judges of Probate of this Territory are hereby authorized to take acknowledgments of all deeds,” &c. The words as here used, “ Clerks of the District Courts and Judges of Probate,” must certainly refer to the clerks of the Judges, and not the Judges themselves, because wé cannot suppose the Legislature intended to confer a power upon the Judges which they then possessed, and had enjoyed and exercised since 1852, which would be senseless, while we may well conclude that they did intend to bestow it upon the clerks who had not previously been invested with it. The Legislature had undoubtedly discovered that the clerks of these courts had been exercising this power in an unauthorized manner, and designed to save their acts already done, and prevent further mischief by empowering them to act in future.
The counsel for the Respondent says there is no such officer as the clerk of a Judge of Probate. That the office created is clerk of the Probate Court, and not of the Probate Judge. This is technically correct, but the expressions, Probate Court and Judge of Probate, are frequently used as convertible terms by laymen, and the framers of such a statute should not be accused of knowing the difference. It means what we *231have said, or it has nothing to operate upon; we must therefore adopt that construction in preference to a total rejection of that part of it. The deed therefore is not aided by the act.
The nonsuit with the evidence then in the case was properly denied. The certificate oí entry by Eish, under whom the Plaintiff’s grantor held, is declared by our statute to be prima facie evidence that the tide to the lands is in the person named therein or his heirs or assigns. Comp. Stats., 686, sec. 88; Camp vs. Smith, 2 Minn. R., 155.
It does not appear from the case at what point in the testimony of the witness Powers the cross-examination began, but as he was called by the Plaintiff, and the question as to the value of the land at the time of the purchase from Eish was put by the Defendant, we are to suppose that it occurred on cross-examination. The witness had testified in the early part of his examination all about the consideration of the sale from Eish to Willoughby & Powers; the question of fraud in that transaction being directly in issue, the value of the land was clearly material, and also apposite as a cross-examination. We think the Court erred in excluding it.
The next ruling of the Judge it is unnecessary to consider; we do not think however that he erred in excluding the evidence.
It was a material point for the defence to prove that the deed from Willoughby & Powers to the Plaintiff was in consideration of a pre-existing debt, and not for a new and valuable consideration advanced by the grantee at the time oí the purchase. The theory of the defence was that the transaction between Eish and Willoughby & Powers was fraudulent. After establishing that step in the defence, the Defendant was still bound to bring home notice of the fraud to the Plaintiff when he purchased, in order to succeed, if the Plaintiff had ■paid out money or other valuable thing in consideration of his deed. But on the contrary, had the Plaintiff merely relinquished a precedent debt for the land, he would not occupy the position of a bona fide purchaser, and the Defendant would be relieved from the necessity oí convicting him of notice of the fraud. A grantee of lands who pays no new consideration, takes subject to all claims and equities that *232could have been urged against his grantor. Dickinson vs. Tillinghast et al., 4 Paige, 215. The same rule applies to the purchase of negotiable commercial paper. 10 Wend., 86; 12 Id., 593; 13 Id., 605; 6 Hill., 93; 1 Barb., 225; 2 Id., 559; 4 Id., 304; 6 Id., 445. After the testimony had closed and the Defendant had partially argued the case to the jury, the Court was informed by the Defendant that he had just discovered a fact as to the deed from "Willoughby & Powers to Arper. That the deed was given for a debt owing by Wil-loughby & Powers to Arper; that Mr. Powers had himself so stated since the adjournment of the Court, and also stated that he thought Powers had not made himself properly understood when he said in his testimony that Arper gave $250 in money for the deed to him, and that he thought Powers meant that it was -what he regarded the same as money to him, and asked leave to ask Mr. Powers who was then in Court how the fact was. This request the Court refused under the objection of the Plaintiff. The Defendant then concluded his remarks to the jury, and again renewed the request on the affidavit of Mr. Edmund Rice, which contained the facts previously stated by the Defendant, and the Court again refused to hear the evidence.
The Defendant was undoubtedly right in making the offer immediately on discovering the evidence. Had he waited until after the verdict was rendered, his delay would have been a sufficient answer to the application. 1 Gra. & Wat. on New Trials, p. 481. The Court had undoubted power to receive the testimony. Mercer vs. Sayers, 7 John., 306. There is however one feature in the nature of the testimony offered in the case at bar, which constitutes a good answer to its being admissible as newly discovered evidence. The evidence must not only be material, and discovered since the trial, but must also be of a character that the party offering it could not with a due exercise of prudence, diligence and foresight, have discovered it before or at the trial. Williams vs. Baldmwi, 18 John., 489 Now this witness, it seems from the statements in the case, had testified on the trial that the consideration moving between Arper and himself for the land, was $250 in money paid. at the time of the purchase. The *233Defendant’s counsel had an opportunity of cross-examining him upon the subject of the consideration and sifting out the truth, and he should have known that it was very important to show that it was a debt and not money. It was negligence not to press the witness closely upon this point and elicit every fact connected with the matter.
Again: .The offer was to allow the witness Powers to explain his testimony given on the trial. In Slimbach vs. Cal. Ins. Co., 2 Caine’s Rep., 132, where an explanation was offered as newly discovered evidence, the Court says: “ This explanation comes too late. A witness under examination may explain and correct himself, but it will be dangerous and improper to receive any elucidation from him after the trial, and especially after the lapse of many months.” In this case nine months had elapsed, which changes it materially from, the case at bar. But the refusal to allow an explanation on a point which a proper cross-examination could have cleared up on the trial is not ground for a new trial.
The affidavit was materially defective; it merely alleged that the witness had stated that the consideration was a precedent debt. Even had the witness told the affiant that such was the fact, it would have been insufficient. Something should appear to satisfy the Court that the fact exists and can be proven; the mere statement of a witness who had sworn once the other way is too unreliable to be acted upon, Shumway vs. Fowler, 4 John., 425. If it was intended to impeach the witness by proving contradictory statements made by him, it was equally inadmissible. 1 Cain’s Rep., 24; 4 John., 425. For these reasons we do not think that the Court erred in refusing to allow the witness to be recalled.
The counsel for the Respondent insists that the verdict in his favor on the second trial is final to the extent that a writ of error will not lie to the judgment entered upon it. Sec. 7, p. 595, Comp. Stats., which declares that such a judgment “ shall be the final determination of the rights of the parties,’5 only cuts off the common law right that the defeated party in ejectment had to contest the right of pessession as often as *234he saw fit until arrested by a decree of the Court of Chancery. Bates vs. Stearns, 23 Wend., 481. The statute limits this-right to two trials, and declares the second judgment final— that is, final so far as to bar another action for the same cause; but like all other final judgments it may be reviewed for errors committed on the trial.
The statement in the paper books furnished the Court concerning the issue made by the pleadings, on the subject of notice in Baze of the prior deed of Eish to "Willoughby & Powers, at the time he purchased from Eice, is as follows :
“ The answer further alleges that the deed to Willoughby & Powers from Eish was never acknowledged so as to entitle it to be recorded, and that the Defendant never had any notice of it, and' demands that the deed be cancelled and declared void, &c”
" The reply admits the allegations of the answer except as to fraud and want of consideration, as to them it denies' them in general terms,” &c.
The unauthorized record was no notice to Baze. Shaubhut vs. Parret, decided at the July term, 1861. And it is admitted by the pleadings he had no actual notice of the deed, yet he can take from his grantor Eice no more than he had under his attachment, judgment, and subsequent purchase at Sheriff’s sale. The deed from Eish to Willoughby & Powers was executed and delivered before the attachment of Eice against Eish was levied on the land, and although not recorded legally was good against the attachment. Greenleaf vs. Edes, 2 Minn. R., 264. If Eice took nothing under his attachment and sale, Baze took no more from Eice. Therefore the whole question returns to the fraud in the Sale from Eish to Wil-loughby & Powers, and that must be made out to render the land subject to the attachment of Eice, and through him, to pass the title to Baze. The Defendant therefore cannot have judgment in his favor upon the admission in the pleadings that he took without notice of the Eish deed, because it’ was good against his grantor without record or notice, in the absence of fraud, and is equally so against him.
There must be a new trial for the error committed in receiving the transcript of the record of the deed from Fish to *235‘Willoughby & Powers in evidence, against the objection of the Defendant, and in overruling the question to the witness Powers, touching the value of the land when sold to Pish.
New trial awarded.