
    The Empire Gas & Fuel Co. v. Coolahan et al.
    
      Leases — Acknowledgment by officer within state, but outside county of commission, void — Lands located outside of county for which officer commissioned.
    
    An acknowledgment of a lease taken toy a notary public or justice of the peace at a place within the state and outside of the county in and for which such notary public or justice of the peace is commissioned, for lands located outside of such county, is null and void. (Lessee of Moore v. Vance, 1 Ohio, 1; Lessee of Kinsman v. Loomis, 11 Ohio, 475; Crumbaugh v. Kugler, 2 Ohio St., 374; Moore v. Lessee of Moore, 3 Ohio St., 154, distinguished.)
    (No. 18609
    Decided February 10, 1925.)
    Error to the Court of Appeals of Wayne county.
    This cause originated as an action to quiet title to real estate and to have the court of common pleas declare null and void a certain lease of oil and gas underlying lands in Wayne county. The petition alleges that the lease was signed by the owners of the lands and the acknowledgment talren in Wayne county, Ohio, before a justice of the peace duly elected and qualified as such in and for Prairie township, Holmes county, Ohio. This lease was also acknowledged by the owners in said Wayne county, Ohio, before a notary public for Holmes county, Ohio. It is therefore claimed that the acknowledgment before the justice of the peace and the notary public, both of whom were at the time of acknowledgment outside of their respective jurisdictions, was void and of no effect. An answer was filed admitting the manner and form of the execution and acknowledgment of the lease, and further alleging that the lease was given for a valuable consideration, and that it was filed for record. A demurrer was filed to the answer, and upon consideration of the demurrer it was ruled by the court of common pleas that the answer was good, but, the demurrer searching the record, the court found the petition to be insufficient, and .the demurrer was therefore sustained as to the petition, and the cause dismissed. On error to the Court of Appeals the judgment was reversed and the acknowledgment to the lease held to be null and void.
    
      Messrs. Weygandt & Ross, for plaintiff in error.
    
      Mr. K. E. Hoover, for defendants in error.
   Marshall, C. J.

This error proceeding involves an interpretation of three statutes. Section 8510, 'General Code, makes provision for the acknowledgment of deeds and leases, and provides that the signing must be acknowledged “before a judge of a court of record in this state, or a clerk thereof, a county auditor, county surveyor, notary public, mayor, or justice of the peace, who shall certify the acknowledgment on the same sheet on which the instrument is written or printed, and subscribe his name thereto.” That section contains no limitation upon the geographic radius of action of any of the officers by whom the acknowledgment may be taken. In this proceeding we are not concerned with any of the officers except notary public and justice of the peace, and we therefore turn to the sections defining the powers and limitations of those officers. The pertinent provisions of Section 126, General Code, are as follows:

“A notary public shall have power, within the county or counties for which he is appointed, * * * to take and certify to acknowledgments of deeds, mortgages, liens, powers of attorney and other instruments of writing. * * *”

Section 10224, General Code, provides:

“Justices of the peace within and coextensive with their, respective counties shall have jurisdiction and authority * * * 2. To take the acknowledgments of deeds, mortgages, and other instruments of writing.”

Both of these offices are created by the General Assembly, and the General Assembly has defined their powers. Our problem is therefore purely one of interpretation of statutes. The language in each of the statutes quoted, and especially that part which limits the jurisdiction of each of the officers to the county of his appointment or election, is so clear and free from ambiguity that the question would be one of no difficulty except for some early decisions of this court, which it is claimed have become rules of property. Lessee of Moore v. Vance, 1 Ohio, 1; Lessee of Kinsman v. Loomis, 11 Ohio, 475; Crumbaugh v. Kugler, 2 Ohio St., 374; Moore v. Lessee of Moore, 3 Ohio St., 154.

In the first three of the above cases the officer who took the acknowledgment acted while outside of his own jurisdiction; in each of them the lands which were being sold or leased were located within the jurisdiction where the officer was elected or appointed and held his office; and in each of them this court stressed that fact iu sustaining the validity of the acknowledgments. In the fourth case, Moore v. Lessee of Moore, the acknowledgment was taken before the mayor of a city, and he acted not only outside the limits of the city where he held his office, but the lands which were the subject-matter of the instrument were also located outside of the city in which he held office.

The statutes do not place any limitation upon the territorial jurisdiction of a mayor in the matter of taking acknowledgments of deeds. The first three cases may therefore be distinguished upon the ground that the officers exercised their statutory powers in relation to lands located within the jurisdiction where they held office, though at the time of performing their official acts they were temporarily outside of their jurisdiction, and the last case may be distinguished upon the ground that there are no limitations placed upon the territorial jurisdiction of a mayor in the matter of acknowledgments. We are therefore in the instant case not required to review the soundness of the reasons which led this court to the conclusions reached in those cases. In the instant case this court cannot uphold the validity of the acknowledgment before the justice of the peace and the notary public without extending the operation of those oases far beyond the reasons upon which they were based. The language of Sections 126 and 10224 is plain in placing a limitation upon the territorial jurisdiction of a notary public and a justice of the peace in taking acknowledgments to a deed or lease, and, without passing judgment upon the soundness of the reasoning of the early eases which permitted officers to so act because of their act being performed in relation to lands located within the jurisdiction of their offices, we see no reason for applying the reasoning of those cases to the instant case where the act was performed and the land located outside of their jurisdiction.

It should be stated that this record presents no question of the rights of lessor and lessee where other rights of other parties have intervened; neither have we considered the right of the lessee to treat the defective lease as a contract as a basis of reformation.

The judgment of the Court of Appeals will therefore be affirmed.

Judgment affirmed.

Jones, Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  