Delivery of the instrument must be made by a person competent in law to make a contract. The grantor must be competent when the instrument is signed, and also when it is delivered. If a man should make a deed to another, retain possession of it and afterward become insane, the deed may be set aside as not having been delivered during the com petency of the grantor. In a similar manner, a deed recorded after the death of the grantor may be ques tioned on the ground that it may not have been deliv ered before the grantor's death.
5. :Necessity and advantage of recording instru gnents.—The execution and delivery of an instrument does not of itself give notice to outsiders that a trans fer has taken place. If the transferee takes posses sion of the property, effectual notice is given, how ever, as all the world is required, when dealing with the property, to take notice of the rights of the occu pant. In cases where the property is vacant, or where the transferee does not become the occupant, some other form of notice must be given. A man might sell his land to one purchaser, deliver a deed and then sell it again to a second person, leaving the two claimants to fight it out. To avoid such contin gencies, a system of public records has been devised under which a place for recording conveyances is pro vided by public authority. The law further provides that the recording of the conveyance on the public rec ords serves as "constructive notice" and sometimes "actual notice" to the world that the transfer has taken place. To be protected, persons dealing with the property must resort to the records to ascertain the condition of the title, since they are charged by law with a knowledge of everything the records show.
Constructive notice is just as good as actual notice. If A conveys a piece of land to B, and a third party, C, had actual notice of the transfer, a subsequent con veyance by A to C would not be good as against B, and this would hold true whether B recorded his deed or not. But if C had no knowledge of the transfer to B, and if B failed to record his deed, C who pur chased the property and recorded his deed before B offered his for record, could hold the title against B. In the second instance, B should have protected him self by promptly recording his deed, as then C would have been charged with constructive notice of the prior transfer, whether he actually looked up the record or not.
To be entitled to a place on the public records, in struments must be acknowledged or proved by a prop erly qualified officer. The acknowledgment of an in strument is the admission by the grantor to the proper public official that he did execute the instrument for the purposes the instrument is intended to serve. The
method of proving the execution of instruments by corporations is described in the chapter on Deeds. Proof of the execution of an instrument by an indi vidual is sometimes made by a subscribing witness. The subscribing witness goes before the official quali fied to take acknowledgments, and swears that he is acquainted with the one who executed the instrument, that he knows him to be the person described in and who executed the instrument, that he was himself present and saw him execute it, and that thereupon, he signed his name as subscribing witness. Such proof is equivalent to a personal acknowledgment and it is used only when a personal acknowledgment cannot be taken.
Officials who are authorized to take acknowledg ments are: notaries public, commissioners of deeds, justices of the peace, judges of courts of record, may ors of cities, ambassadors and ministers residing abroad, consuls, vice-consuls, consular agents and commissioners of deeds appointed by the governors of states to take acknowledgments in other states, Mas ters in Chancery and, in a number of states, Attorneys and Counselors at law or Commissioners for taking affidavits. In order that an instrument which was acknowledged before an official of one state may be recorded in another state, it is usually necessary to add to the acknowledgment, a certificate to the effect that the acknowledging official is authorized to take acknowledgment of instruments intended to be re corded in the state in which he resides, that the certified officer knows his signature, and that the signature is genuine. The certifying officer is the clerk of a court of the county or city in which the acknowledging officer resides or acts.
6. Transfers of real property by will.—The per son who receives the title to real property by virtue of a will, is known as a devisee. The will is a volun tart' act of the testator, but the title to the property is carried forward to the devisee at the testator's death by operation of law. A will (except in the case of a soldier on active military service, or a sailor at sea) must be in writing and signed with certain formalities as provided by the statutes of the state or province. Those who take title under wills are not considered purchasers for value, and a deed of the property to a third party executed and delivered during the life time of the testator would bar the rights of the devisee in the property. The principle of constructive notice can be invoked only in, favor of innocent purchasers or encumbrances for value.