(dissenting). — As I understood this case, the question involved is not whether the mortgage in controversy is valid as between the parties to it, but whether it was so acknowledged that the record thereof imparted constractive notice to a subsequent purchaser in good faith without actual knowledge of its existence. That the certificate of the officer who takes the acknowledgment may be so drawn as to identify the person who makes the acknowledgment by reference to the instrument which he has executed without inserting his name in the certificate, is not doubted; and, if it were true, as stated in the foregoing opinion, that the certificate in question shows unmistakably that a person appeared before the notary public, who was known to him to be the identical person whose name was affixed to the instrument as grantor, and acknowledged the same to be his voluntary act and deed, there could be no controversy as to its sufficiency. It seems to me, however, that the certificate cannot be given that effect without disregarding the ordinary rules of construction as well as established practice. It is in a form sanctioned by long and almost universal usage in this state, which has never been treated as sufficient unless it contain the name of the person who acknowledged the instrument to which it is attached. This fact may well be considered in determining whether the language it contains was designed by the officer to be a complete identification of the *463mortgagor. That the language used does not have that effect, excepting as it is aided by construction, is evident. The words following the blank were not designed to show whose name should be inserted therein, but are so used as to depend for their meaning upon that name .when it should be so' inserted. They were not intended to be effectual until the blank should be filled.
It has been said that manifest defects in a certificate of acknowledgment cannot be supplied by construction. Gove v. Cather, 23 Ill. 641. It has also been held that a certificate from which a material word was omitted was fatally defective, even though it were impossible to fill the blank with any other than the omitted word, or set of words, and make sense. Tully v. Davis, 30 Ill. 108. Where the certificate recited that the person who appeared before the officer “acknowledged that - had signed, sealed and delivered” the instrument, it was held that the omission of the word “he” made the certificate insufficient. Huff v. Webb, 64 Tex. 286. The same rule was announced in Buell v. Irwin, 24 Mich. 152. In Smith’s Lessee v. Hunt, 13 Ohio, 260, the body of the certificate of acknowledgment to a mortgage was in the following form: “Personally appeared -, who acknowledged that he did sign and seal the foregoing instrument, and that the same is his free act and deed.” This was held to be insufficient, the court saying that, whether it was in compliance with the law depended solely upon the fact “whether blank and Ezekiel Eolsom, the grantor, are synonymous. If Folsom is blank and blank is Folsom, the execution of the mortgage is complete,” and concluding that there was no evidence that such was the fact. In Hayden v. Westcott, 11 Conn. 131, it was held that a certificate which recited the following: “Personally appeared -, and acknowledged this. instrument, by him sealed and subscribed, to be his free act and deed” — was held to be insufficient, on *464the ground that “a court cannot by intendment or construction fill a blank or supply a word. It can only decide on the meaning and import of the words made use of.” In Merritt v. Yates, 71 Ill, 636, the certificate under consideration was in the'following form: “I Jackson Lewis, a justice of the peace in and for said county, in the state aforesaid, do hereby' certify that Susan Merritt and James Merritt, her husband, personally known to me as the same persons whose names are subscribed to the annexed deed, appeared before me this day in person, and acknowledged that they signed, sealed and delivered the said instrument in writing as their free and voluntary act, for the uses and purposes therein set forth. And the said-, wife of the said —;—, having been by me- examined separate and apart and out of the hearing of her husband, and the contents and meaning of the said instrument of writing having been by me fully made known and explained to her, and she also by me being fully informed of her rights under the homestead laws of this state, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned and also all her rights and advantages under and by virtue of all laws of this state relating to the exemption of homesteads, without compulsion of her said husband, and that she do -not wish to retract the same.” It was adjudged to be fatally defective in not showing whose wife was made acquainted with the contents of the deed and privily acknowledged the same. The court held that, if the language used, however ungrammatical, clearly expressed what was intended, it would be sufficient, but that the intent must appear without mere inference or conjecture. It is true this acknowledgment was made under a statute which required a separate examination of the wife, but that requirement was nó more essential than is the personal appearance *465and identification of the grantor under the statute of this state. The question in the case was whether the language of the. certificate identified the wife who acknowledged the instrument as the one who executed it. Certainly, if the language useddn the certificate in that case was insufficient, the one in question in this case should be held to be so, as they are governed by substantially the same rules of construction. In all the cases cited the material words omitted could have been supplied by intendment as readily as in the certificate under consideration.
It is true that some authorities support the rule of the majority opinion. Of the many cited in American and English Encyclopedia of Law, under the title ‘‘Acknowledgment,” comparatively few apply to the question in controversy in this case, but of those which do apply the larger number seem to be in conflict with the opinion of the majority. It appears to me that the omission under consideration is not merely clerical, but that it goes to the substance of the certificate. It also appears to me that the opinion of the majority is not only against the better reasoning and weight of authorities, but that it will open the door to fraud, encourage laxness, confusion, and uncertainty in business transactions, and, while doing justice in some cases, that its general effect will be evil.
It is my opinion that the judgment o'f the district court is right, and that it should be affirmed.