dissenting.
I cannot concur in the opinion prepared by Commissioner Ragan, and, avoiding needless repetition, as far as *525possible, I shall submit my views upon the facts stated by him.
I regard it as of no importance whether the act of a notary public in taking and certifying to an acknowledgment is to be deemed a ministerial or a judicial act. For me, it is sufficient that the homestead can be conveyed or incumbered only by an instrument not merely executed, but which, as well', must be acknowledged. (Compiled Statutes, ch. 36, sec. 4.) The acknowledgment being by statute constituted a substantive requirement to the existence of a conveyance or a mortgage; it matters not whether this substantive requirement is classified as a ministerial or as a judicial act. In the case under consideration the notary public who took and certified the acknowledgment was at the same time the secretary and treasurer of the mortgagee, a corporation. The opinion in which I cannot concur holds that this officer was not disqualified to certify to the acknowledgment because there is found in the record no evidence that he had any interest in the corporation mortgagee. It is fair to assume that the interest referred to is a pecuniary, interest, for, in the same connection in the opinion, it is said: “No law of this state requires that a secretary or treasurer of a corporation shall be a stockholder thereof; and simply because the evidence shows that a person is secretary and treasurer of a corporation, the court ought not to presume that he was therefore a stockholder in such corporation. * * * What interest and what relationship possessed by an officer disqualifies him from taking an acknowledgment of a conveyance of real estate? We have not been cited to any authority, nor have we been able to find one, which lays down, or attempts to lay down, any mile which will afford in all cases a safe test for determining whether an officer is disqualified by reason of his relationship or interest from taking an acknowledgment in any particular case. Whether such disqualification exists in any case must be determined from the peculiar facts and circumstances of *526that case.” (Horbach v. Tyrrell, 48 Neb., 514.) FoIIoav-ing the above, and other language to the same effect, twenty cases were reviewed to illustrate and enforce the proposition that courts of last resort are irreconcilably at conflict as to what particular relationship to the parties or subject-matter should be held to disqualify a notary public to take an acknowledgment. From this the conclusion seems to be reached that no court should attempt to lay down a rule by which it will be bound, and thereupon, without further reasoning, the conclusion is that, in this particular case, the mortgage, though of a homestead, is valid. .
In so far as this court seems at all willing to commit itself, it is to the doctrine that only a pecuniary interest in a corporation mortgagee could disqualify one of its officers to act as a notary public in taking the acknowledgment, which gives validity to the incumbrance of a homestead. A corporation, as defined by Marshall, C. J., in Trustees of Dartmouth College v. Woodward, 4 Wheat. [U. S.], 518, is “an artificial being, invisible, intangible, and existing only in contemplation of law.” It requires no citation of authorities to prove that a corporation can only act through its officers or agents. Indeed, the very definition of the word “corporation” implies the necessity of agency. It must therefore be that what are ordinarily described as the acts of a corporation are simply the acts of its officers, and this proposition is rendered none the less correct by the consideration that such officers may employ special agents, such as attorneys at law and the like, to act for the corporation. In relation to a homestead, there is required to be shown both the execution and the acknowledgment of the conveyance or mortgage. Section 347 of the Code of Civil Procedure provides: “Every private writing, except a last will and testament, after being acknowledged or proved and certified in the manner prescribed for the proof of acknowledgment of conveyance of real property, may be read in evidence without further proof.” In Phillips v. Bishop, *52735 Neb., 487, it was held by the court that a certificate of acknowledgment of a deed or mortgage in proper form could be impeached only by a clear, convincing, and satisfactory proof that the certificate is false and fraudulent, and this holding was reaffirmed in Barker v. Avery, 36 Neb., 599. Furthermore, in Phillips v. Bishop, supra, it was said: “As a general rule, the unsupported testimony of the party purporting to have made the acknowledgment is insufficient to overcome the officer’s certificate.” The opinion to which I cannot subscribe holds that a notary public sustaining the relation of secretary and treasurer to the mortgagee, a corporation, may nevertheless take and certify the acknowledgment of the mortgagors, almost conclusive though such certificate be under the section of the Code of Civil Procedure and the adjudicated cases just cited. I desire briefly to recapitulate that the result of this holding may more clearly appear. In the first place, a corporation must act by its officers, and from this it results that its officers’ acts in the performance of their corporate' duties are the acts of the corporation. In the second place, the officer of such corporation may take and certify the acknowledgment of the mortgagors and, “as a general rule, the unsupported testimony of a party purporting to have made such an acknowledgment is insufficient to overcome the officers’ certificate.” In the third place, — and this is the holding-in the opinion from which I dissent, — each case must be determined from the peculiar facts and circumstances of that case; ergo, this acknowledgment was free from objection. When it is taken into consideration that the corporation, in the only manner in which it could act,— that is by its officers, — took an acknowledgment of a mortgage to itself, there is, to my mind, an exquisite suggestion of irony in the general proposition gravely laid down, that “each case must be determined from the peculiar facts and circumstances of that case.”
But there is another view which may properly be taken of the relation of the secretary and treasurer to the cor*528poration, mortgagee, which arises out of the fact that the official positions named imply the same obligations as result from any other agency. This secretary and treasurer, being its agent, owed to the corporation of which he was an officer, the duty of caring for its interests to the exclusion of every other consideration. (Rockford Watch Co. v. Manifold, 36 Neb., 801; Jansen v. Williams, 36 Neb., 869; Oliver v. Lansing, 48 Neb., 338.) With the obligation resting upon him, it is too much to expect of an agent, designated an officer, that when by a simple certificate as to an acknowledgment he can practically conclude parties dealing with his principal as to the execution of a mortgage to such principal, this irresponsible power will not. oftentimes be abused. It can make no difference in principle whether the agent can be financially benefited or not, the requirement of interest in the success of his principal equally exists. Speaking of the rule which makes this requirement, it is sáid in Story, Agency, section 210: “This rule is founded upon the plain and obvious considerations that the principal bargains in the employment, for the exercise of the disinterested skill, diligence, and zeal of the agent for his own exclusive benefit.” For my own part I cannot see that it makes any difference in the requirement of fidelity whether or not the agent partakes in the profits of the business of his principal, and this participation is what, for the most part, is implied from the fact of being a stockholder.
If the foregoing discussion has served no other purpose it is hoped that, at least, it has called attention to the fact that in the opinion already prepared there has been no attempt made to formulate a general rule as to what disability on the part of the notary public will vitiate his certificate of acknowledgment, though it is intimated that peculiar facts and circumstances'may accomplish that result. In this situation there are all the disadvantages which attend upon the possible effects of an unsettled rule of law. The requirement that a mort*529gage of the homestead must be acknowledged, as has already been noted, is substantive in its nature, and does not merely extend to entitling the instrument to be admitted to record. In this respect the law as to the necessity of the separate examination of a married woman being shown by the certificate of acknowledgment to make hers a binding execution of a deed affords, to my mind, a striking analogy, and I shall therefore review the decisions upon this subject at some length.
A deed of a married woman, the acknowledgment of which does not show that she was examined separate from her husband, as provided by Revised Statutes, 1865, chapter 100, sections 13 and 14, in force at the time the deed was executed, is void. (Krieger v. Crocker, 24 S. W. Rep. [Mo.], 170.)
In Long v. Crews, 18 S. W. Rep., 499, the supreme court of North Carolina had under consideration • a deed in which one of the trustees named took the acknowledgment as a notary public. Following a review of a line of decisions in that state the following language occurs: “It is true these were all cases where the registration and probate were insufficient because the acknowledgment was made before an officer by reason of his locality not authorized or acting outside of his local jurisdiction, and the ruling is sustained by ample authority elsewhere. * * But exactly the same principle still applies where the officer taking the acknowledgment is disqualified, not (as above) by not acting within the authorized locality but by reason of his interest in the deed, either as party, trustee, or cestui que trust. (1 Devlin, Deeds, sec. 476, and cases there cited.) In both cases alike, the acknowledgment is taken, so to speak, coram non judice, and cannot authorize probate by the clerk and registration. (Beaman v. Whitney, 20 Me., 413; Groesbeck v. Seeley, 13 Mich., 329; Davis v. Beazley, 75 Va., 491; Bowden v. Parrish, 86 Va., 67; Brown v. Moore, 38 Tex., 645; Wasson v. Connor, 54 Miss., 351; Withers v. Baird, 32 Am. Dec. [Pa.], 754, and notes 1 Am. & Eng. Ency. Law, 145, and note 6, 16 *530Am. & Eng. Ency. Law, 775.)” The opinion from which, was taken the above quotation began with the following-statement: “In this state it is settled law that an acknowledgment of a deed by the husband and privy examination of the wife, taken before a justice of the peace, commissioner, or notary, is a judicial, or at least a quasi-jndicial act, and, if such officer is not authorized to take it, the probate upon it by the clerk and registration are invalid against creditors and purchasers.”
In Louden v. Blythe, 27 Pa. St., 22, Black, J., said: “A married woman may convey or mortgage her land by joining with her husband in a deed for that purpose. But to make such a deed valid, it is necessary to show by legal evidence that no fraud was practiced upon her, but that she executed it with a full knowledge of its meaning, purpose, and intent. It must also be shown that her will was perfectly free and that her mind accorded with the act. If he uses his influence and power in such manner as to control her unduly, or so as to make her act under his will and not her own, the deed is void. I do not say that it will be vitiated, by the mere fact that she yields to his persuasion, even when she does so against her better judgment. But there must be no imprisonment of her mind, and no unfair advantage taken of her weakness. She must act voluntarily and not by compulsion, moral or physical. These facts are to be proved in one way only — that is, by the certificate of a judge or justice that he examined her, not in the presence of her husband, but separately; that he made the contents of the deed fully known to her; that she declared her execution of it to be voluntary and free from every sort of coercion.”
In Withers v. Baird, 7 Watts [Pa.], 228, Baird had agreed to convey to Withers a tract of land by warranty deed subject to all demands of the commonwealth. Prior to the agreement, a verbal understanding existed between Baird and Baxter, to the effect that they should exchange six acres of the tract to which this contract related for four acres owned by Baird. The agreement *531therefor provided that unless this agreement was rescinded, Baird should convey the four acres, instead of the six for which they were exchanged, to Withers. The understanding was not rescinded, and to simplify matters it was agreed that Baxter should convey directly to Withers. In pursuance of this agreement Baxter and wife executed a deed of the land to Withers, and delivered it to Baird. Baird, who was a magistrate, also took Mrs. Baxter’s separate acknowledgment. Upon tender of this deed to Withers he refused to accept it. Gibson, J., in delivering the opinion of the court, said: “But the acknowledgment was palpably insufficient to bar the dower of Baxter’s wife. The office of a magistrate in respect to private examination is a judicial and a delicate one. Intrusted with the business of inspecting the wife’s knowledge and will, he should be superior to all exception on the score of impartiality. When he is bound to procure her concurrence, his inducement to abuse his trust is as strong as if the conveyances were made to himself; and it would not be pretended that his judicial functions could be exercised in his own case. His responsibility for the conveyance, whether through himself or directly to the defendant, made him equally a party in interest, and no consent, short of an agreement by the A^endee to take a defective title, which is not pretended, could supply the place of a separate examination.”
In National Bank of Fredericksburg v. Conway, 1 Hughes [U. S. C. C.], 37, Hughes, J., says: “If the act be judicial, such as taking the acknowledgment, after privy examination of a married woman, an interested person cannot take it.” Just following this proposition there were cited several authorities. The abstract- value of this statement is, however, greatly impaired by the fact that just preceding the above quotation its author had said that “The teaching of the cases cited at bar seems to me plainly to be that an interested person may take the acknowledgment of a deed when the act is merely minis*532terial.” In tbe same case, however, Waite, O. J., dissenting, said: “It has been frequently decided that an acknowledgment before a grantee named in the deed was of no effect. (Beaman v. Whitney, 20 Me., 413; Wilson v. Traer, 20 Ia., 233; Stevens v. Hampton, 46 Mo., 404; Groesbeck v. Seeley, 13 Mich., 345.) It has also been held that a party interested in a deed cannot take and certify the acknowledgment of a married woman requiring a privy examination. (Withers v. Baird, 7 Watts [Pa.], 228.) The taking of such an acknowledgment is in some respects a judicial act, and not ministerial only; but in case of an ordinary acknowledgment, it is purely a ministerial act. Truman v. Lore, 14 O. St., 144; Lynch v. Livingston, 2 Seld. [N. Y.], 434.)”
In Stevenson v. Brasher, 90 Ky., 23, the county clerk was held not disqualified to take an ordinary acknowledgment of a deed in which he had an interest, but it was said by Bennett, J., in delivering the opinion of the court: “He, being one of the parties to whom the conveyance was made, and one of the beneficiaries of the wife’s acknowledgment, may show that her acknowledgment was not taken as the law directs. The fact that he was innocent in this omission of duty makes no difference, for the wife cannot convey away her right of dower, unless the requirements of the statute are pursued in every particular, and that she shall be examined separately and apart from her husband is one of the requirements which is indispensable, the performance of which devolves upon the clerk taking the acknowledgment; and if he in taking the acknowledgment for his own benefit, fails to perform said duty, he and his co-vendee should not be permitted to profit by such failure, but they should be considered to have failed to get the wife’s dower by the fraud or laches of said clerk, and for that reason not entitled to it.”
In Brown v. Moore, 38 Tex., 645, the entire opinion of the court, delivered by Walker, J., was as follows: “James W. Moore and Mary E., his wife, to secure the *533payment of $1,100 to Eliza A. Brown, executed a deed of trust to Oscar Farisb over lots 12,13, and 14, in block 136, in tlie city of Galveston, together with two slaves. The trustee took the acknowledgment of the wife to the deed. The property mortgaged was her separate property. The trustee was interested in the conveyance to the extent of his commission and was therefore incompetent as an officer to take an acknowledgment of the deed. Authorities are sufficiently referred to in the able briefs of counsel to this point. We think the law is well settled; and though there are other questions raised in this record of a deeply interesting character, we will decide this case upon the point already stated, referring to our opinions in other cases for the settlement of all other questions involved.”
In Parks v. Barnett, 16 So. Rep. [Ala.], 136, there was presented to the supreme court of Alabama the validity of a deed under which the title of the grantors to their homestead was claimed to have passed to the grantee therein named. This deed had been signed by both the grantors, but was not acknowledged bythe wife,who was one of the grantors, until after the death of her husband, the other grantor. The court said in discussing the facts of this case: “The evidence is without conflict, that the lot sued for at the time of the attempted conveyance by said Hart and wife to the defendant, Ooltart, was their homestead, *in their actual occupancy and possession as such, and had been for many years before. Their deed was without the acknowledgment of the wife as required by section 2508 of the Code, to make a valid conveyance by the husband of the homestead. By the repeated decisions of this court, as well as by the terms of the statute itself, such conveyance is void. It is said of such a deed that it is a nullity to all intents and purposes, and confers no rights, present or prospective, is totally insufficient as a muniment of title to support an action of ejectment, and is incapable of passing any estate or interest whatever in the homestead.” In this connection there were cited *534ten Alabama cases, following which it was said: “We have also held, more than once, that such a conveyance acknowledged by the wife after the death of the husband with certificate thereof in proper form, does not defeat or affect the title of his heirs. (Richardson v. Woodstock Iron Co., 90 Ala., 266, 94 Ala., 629; Hodges v. Winston, 95 Ala., 514.)”
In Bowden v. Parrish, 9 S. E. Rep. [Va.], 616, it was held that the interest of a trustee, merely to the extent of his commission, was such as disqualified him to act as a notary public in taking an acknowledgment in Virginia, in which state the taking of any acknowledgment is held to be a judicial act.
These facts have been ilhistrated by the foregoing citations and the quotations therefrom, first, that the value of an acknowledgment of a married woman as to the execution of a deed was dependent entirely upon whether the officer performed his duty in strict compliance with the requirements of the statute; and, second, that the failure by an officer in taking such acknowledgments, and evidencing the same by his certificate', not only precluded its being recorded so as to impart notice, but, as well, absolutely rendered the instrument null and void as a deed. Between this sort of an acknowledgment and one upon which entirely depends the validity of an in-cumbrance of a homestead there exists, so far as the functions and requirements of an acknowledging officer are concerned, a striking analogy, and the cases which have been cited and quoted from show that such officer must not be in such relation to the grantee or mortgagee that there shall exist a temptation to do his duty otherwise than impartially. On principle this is readily illustrated with reference to a homestead, for the requirement of the statute is that to convey or incumber the homestead the instrument must be executed, and must be acknowledged. As to the first of these two requirements the act of signing by the husband and wife is generally quité clear and unmistakable evidence. Of the *535acknowledgment, which, equally with the execution, is imperatively required to constitute a conveyance or create an incumbrance, the sole evidence, is the certificate of the officer taking such acknowledgment. Whether his act in this respect is styled judicial, quasi-judicial, or ministerial, counts for less than whether his eco parte certificate, which entitles the instrument to be received in evidence on the one hand, and complete its validity on the other, shall be accepted only when he has acted under such circumstances that the requirement of fairness in taking and evidencing the acknowledgment is not in conflict with his obligations toward the grantee. Whenever a deed has been placed upon record, third parties are entitled to rely upon the facts thereby published, and those alone, and it is then too late to afford relief against its false recitations. The only safe course is to require that the evidence of the essential requirement of acknowledgment in conveying or incumbering a homestead shall be of such a nature that there shall be no danger that the officer who takes the acknowledgment shall be likely to misstate the truth. This was beneficent and practicable for a long time with reference to the privy examination of married women. It can scarcely be otherwise with respect to the conveyance or incumbrance of the homestead. It may be that the so-called emancipation of married women renders unnecessary any precautions against the improvident surrender of the control of the wife’s property to her husband, and that, therefore, the law requiring her separate examination should be laid aside as an outgrown fiction, but this can never be assumed of helpless children, in whose interest and for whose benefit have mainly been enacted the humane provisions of the homestead law.