(dissenting). The conclusion reached by my associates in this case is sustained on the theory that three persons named in the opinion have committed perjury and one or more of them forgery, or have procured some other person to commit forgery. I am of the opinion that the evidence taken altogether does not warrant such a conclusion.
The complaint was in the statutory form for quieting title. The answer consisted of a general denial and an assertion of a superior title based upon a tax deed obtained by the defendant to the land in.question while occupying it as a tenant of Frank E. Young, the original owner. When the case went to trial, the latter was the defense relied upon. Fraud was not pleaded. It is true there were several unusual facts and circumstances disclosed in the evidence, *174such as loss of the deed and of the correspondence, but it must be borne in mind that negotiations were commenced with a firm which afterwards dissolved, and each member thought the other had the correspondence. The loss of some of the corespondence - was reasonably and satisfactorily accounted for.
Considerable emphasis is laid upon the fact that the deed was not witnessed, and that the name of the grantee was not inserted, nor the residence of the grantor. My professional experience satisfies me that neither of these under the law and the custom of dealers in real estate in this state can be considered as necessarily a suspicious fact. The law of this state, unlike that of some states, requires no witnesses to' the execution of deeds, and the practice of executing deeds and mortgages without witnesses is prevalent. The testimony does not disclose that the name of the grantee was omitted from the deed when executed. The witness testifying as to that testified that he did not know whether it was omitted or not, that he presumes it was, but disclaims knowledge. The defendant’s own testimony shows that Young was a traveling man-, and that he had corresponded with him on several occasions some years before this suit was instituted, and that he received one letter from him from Tacoma, another from Spokane, one from North Yakima, and one which did not disclose his whereabouts. He also testified .that search was made for him in places where he had been known to be at times, and that he was unable to locate him, all of which goes to show that he may have had no fixed residence to insert in the deed.
The fact that the notary who took the acknowledgment was unable to recollect the fact of having done so, in view of her situation and the extent of her business, is not significant. She is a notary in the Sherman House in Chicago, and testified that she takes greai numbers of 'acknowledgments. The transaction with her occurred 16 months before her testimony was given, and, like other notaries, the most she could do was -to testify that she had no recollection of the fact. She testified that from the time she became a notary she established the practice never to take an acknowledgment without either knowing the party personally or being introduced by some one that she did know, and stated positively that Frank E; Young was either introduced to her at the time the acknowledgment was taken by'some person or persons with whom she was personally acquainted or that -she personally knew him at *175that time, but that she had no distinct recollection with regard to this deed. It is well established that where a certificate of acknowledgment is regular on its face the failure of the officer to recollect regarding the taking of the acknowledgment is not sufficient to overcome the recitals of the certificate. Wright v. Bundy, 11 Ind. 398; Tooker v. Sloan, 30 N. J. Eq. 394; Ford v. Osborne, 45 Ohio St. 1, 12 N. E. 526. The great weight of authority is to the effect that, where the grantor has appeared before the officer and an acknowledgment has been taken, -the certificate of the officer in due form is conclusive of the facts certified, and cannot be impeached except for duress or fraud in which the grantee participated or of which he had notice before parting with his money. 1 American & English Encyclopedia of Law, 557, and cases cited. In those states which hold that i't can be impeached it is held that the evidence to impeach the certificate must be clear and convincing beyond a reasonable doubt, and should do more than to produce a preponderance against its integrity, and should by its completeness and reliable character fully and clearly satisfy the court that the certificate is untrue and fraudulent, and that the presumption in favor of the regularity of the certificate is as strong as any that can be brought against it by the testimony of an interested witness, and that the burden of proof rests upon the party undertaking to impeach the certificate to show that it is false. 1 American & English Encyclopedia of Law, 560; 1 Cyc. 618.
The whereabouts of Young was ascertained by Knauss when Bull was absent, visiting his wife’s relatives 25 miles from Chicago, and the evidence would indicate that when Mr. Young replied to an inquiry as to executing a deed, etc., for the land, he was on his way to Chicago, and therefore stated that he would execute the deed when he arrived there. The small price which he accepted, in view of the other facts, casts no suspicion whatever upon the-transaction.
He had previously asked for $500' at one time, and $600 at another for the land, but, after offering it at those prices, a tax deed had been issued to it, and it is altogether probable and natural that he should deem anything he could get after the execution of the tax deed, no matter how small, so much clear gain. Again, if the circumstances of the situation are sufficient to justify the court in holding the title of plaintiff invalid, this can be done without reflection upon the integrity of any one except some one unknown, who may have -personated Young in Chicago. *176I do not deem the defendant’s testimony worthy of full credit' when viewed in the light of the fact that he was attempting to defraud his landlord by acquiring a tax title, adverse to his landlord’s title, and the further fact that it was clearly shown that he made or caused to me made a change in the description of the land in the tax deed after its delivery’ to him, making it conform to the description of the land in controversy, which it did only partially when issued, and then caused a corresponding change to be made in the county records. While this case is in this court for trial de novo regardless of the findings of the trial court, yet, especially in this kind of a case, the findings of that court should be given due weight, and are entitled to much respect.
(119 N. W. 169.)All the witnesses whose words are challenged testified personally before the judge of the district court, and he had a far better opportunity to judge from their demeanor, their appearance of candor, or lack of it, and other considerations, whether they were telling the truth or 'Committing perjury than we have. In any action like this where title is attempted to be impeached purely by means of circumstances any of which may occur without fraud or an intent to defraud, the explanation given by witnesses can be best judged of by that court in whose presence they testify, and, when such court makes findings, they should be entitled to more than ordinary weight.
These reasons and othérs which I shall not discuss impel me to the conclusion that the judgment of the district court should not be reversed.