
    Peacock vs. Tompkins, et als. O. B. Peyton vs. Peacock, Cross Bill.
    
    A clerk in taking probate of á deed of bargain and sale of property, by the acknowledg ment of the bargainor, must allege his personal acquaintance with such bargainor, or such certificate will be defective'and the deed will create no lien as against a judgment creditor.
    Where a deed of trust and its authentications are exhibited to the court in a bill: Held, that the court is bound to notice its defects in a question of lien, though the answer did not insist upon its defective probate.
    William Turner was indebted to Tompkins in the sum of three hundred and twenty-three dollars and thirty-one cents, to Patterson and Tompkins in the sum of one hundred dol-Jars, to D. M’Auly in the sum of one hundred and forty doL an¿ †0 jy an¿ A. M’Auly in the sum of six hundred and twenty-nine dollars and fourteen cents, and being in embarrassed and failing condition, executed on the 7th day of July, 1837,a deed by which he conveyed intrust to Charles Lewis all his personal property,- supposed to be worth about sixteen hundred dollars, for the purpose of securing the above named individuals in the payment of their several debts.For the purpose of covering this property with a sufficient amount of debt, and probably with a view to secure to himself a further credit with Tompkins and D. and A. M’Auly; he executed a note, on the same day the deed was executed, to Tompkins for the sum of three hundred dollars, to be due on the 25th of December, 1837, and another to the M’Aulys for two hundred, to be due on the 1st of January; 1838;
    On the 20th of January, 1838, Turner confessed judgment in favor of Peacock for the sum of one thousand and seventy-two dollars and eight cents, that amount being due Peacock from Turner. On the 28th of same moiith a ji.fa. was issued on the judgment, which was directed and came to the-hands of the sheriff of Sumner county, and was returned by him on the 29th of the same month, nulla bond.
    
    Peacock filed his bill in the chancery court at Gallátin oil the 3d of February, 1838, against Lewis, Turner, and thé beneficiaries in the deed of the 7th of July, declaring that the said deed was fraudulent, and praying that the property specified in said deed of trust might be subjected to the satisfaction of his judgment. It appears that on the 8th day of July; 1837, Turner executed a second deed of trust to Lewis, conveying a large proportion of. the same, property conveyed in the deed of the 7th, to secure a debt due to B. and J. I:L Peyton of four hundred and forty-seven dollars. The deed provided that this debt should be satisfied out of the property “in the event there was a sufficiency left after discharging the several sums set forth and due in the deed of the 7th, or in the event that the deed of the 7th was vitiated and set aside.”
    The second deed was endorsed on the 10th day of July; 1837, wit^ the following words, to wit:
    
      “State of Tennessee, Sumner county. The within deed of trust from William Turner to R.H. Lewis, trustee for use and benefit of B. and J. H. Peyton, on one frame shop in South Gallatin, four kettles, one lead and three casts, stock of furs, all the hats, finished and unfinished, now in the shop, trimmings and all other materials, tools and furniture of every description appertaining to the same, notes, book accounts and one carryall and gear, was acknowledged by the said Turner this 10th day of July, 1837.
    Thomas Donoko,
    Clerk of county court of Sumner.”
    „ This deed was registered on the 10th July, 1837. On the 27th of March, 1838, the Peytons filed their cross bill in the cause against all the parties to the original bill of Peacock; impeaching the deed of trust of the 7th July to Lewis for the same reasons that Peacock urged against it, and praying that it might be declared void and their deed established1. They further allege that Peacock’s judgment was obtained on the 20th of January, 1838, and that his fi. fa. issued on the 28th of the same month, and that the deed of trust made on the 8th of July, 1837, and acknowledged and registered on the 10th of the same month, “to Robert H. Lewis, for the benefit of B. and J. PI. Peyton, as above exhibited in this suit, was the first Iona fide lien upon the goods and effects thus conveyed as aforesaid by the said William Turner, and that said debt should be first satisfied out of the proceeds arising from the sale of said property.”
    The defendants to this cross bill answered it, and Peacock alleged that the defendants in the cross bill had acquiesced in the justice of the claims of the deed of the 7th of July, and affirmed the same, and that after the complainants had eviscerated the frauds in said deed by their bill complainants ■ should not have any priority grantéd them.
    The causes were' brought on for hearing on the 10th of October, 1838. The chancellor, Bramlett, being of opinion that the deed of the 7th of July was fraudulent by operation of law, and that the deed for the benefit o'f the Pey-tons had not-been proven and registered according to law, decreed that Peacock’s judgment should be first satisfied, and secondly, that the claim of the Peytons be discharged, and-that if there was any balance left it should be applied pro rata to the satisfaction of the debts enumerated in the deed of the 7th July.
    From this decree there was an appeal by the defendants to the original bill and by the Peytons. The supreme court on the ,4th of January, 1839, affirmed the decree of the chancellor as to the invalidity of the deed of the 7th July for the benefit of Tompkins-and others, (see Meigs’ Rep. 317,) and having ordered that the clerk and master report to the next term of the court, the court declared that the question of priority as between the complainant in the original and complainants in the bill in the nature of a cross bill will be reserved till the coming in of the report.
    At the December term, 1839, at the coming in of the report, it was argued by Mr. Guild for Peacoek, and by Mr. White for the Peylons.
   Reese, J.

delivered the opinion of the court.

This case will be found reported in Meigs’ Rep. 317, 331. It is therein stated that a question of priority as between the complainant in the original bill and the complainants in the bill in the nature of a cross bill would be reserved till the coming in of the report. That question has now been discussed; it is, whether the lien created by the fieri facias, sued out by the complainant in the original bill upon certain chattels of the debtor, shall have precedence of that supposed to have been created by the deed of trust of the complainants in the bill in the nature of a cross bill, although the latter was registered before the issuance of the fieri facias, upon the ground that the acknowledgment before the clerk upon which the registration took place was not in conformity to the provisions of the act of 1831, ch. 90, sec. 3, 3.

The second section of the act referred to requires the clerk in case of probate by witnesses to interrogate them' as to whether they are personally acquainted with the bargainor, &c. and the form of the certificate for the clerk in that section given is, that the subscribing witnesses personally appeared before him, and having first sworn, depose and say that they are acquainted with the bargainor or mortgagor, &c. The third section provides “that where any person persons who have executed any of the above mentioned instruments wish to acknowledge the same, it shall be lawful for any of said clerks to receive said acknowledgments if he is personally acquainted with the person wishing to make the same, but not otherwise; in which case he shall put on said deed the following certificate: “State of Tennessee,-county. Personally appeared before me-clerk of, &c. the within named (the bargainor, obligor, &c.) with whom I am personally acquainted, and who acknowledged that he executed the within (deed, bond, &c.) for the purposes therein contained. Witness my hand, at office,” &c. And to show how material the legislature deemed the personal acquaintance of the clerk with the bargainor, &c. and have fixed their policy on that subject, the act of 1833, ch. 92, sec. 13, provides that “in all cases where any deed or other instrument of writing shall be presented to any of the clerks aforesaid for acknowledgment, and the said clerk shall not be acquainted with the bargainor or bargainors, so as to make the certificate required by the act which this is intended to amend, (the act above Referred to,) then and in all such cases it shall be the duty of said clerk to file such deed or other instrument, and note on his record of the probate of deeds the date of the presentation of such deed or other instrument, and the reason of the postponement of the acknowledgment thereof; and the party opposing the same, or interested in the acknowledgment thereof, shall and may produce witnesses before said clerk to prove the identity of the person offering to acknowledge the same, for which purpose twenty days shall be allowed the party by said clerk.”

Similar provisions are made and similar forms of certificate are given in the act of 1835, ch. 53. Such being the state of the law on this subject, we will refer to the form of the certificate upon the deed of trust from Wm. Turner to the trustee of B. and J. H. Peyton. Is is as follows: “State of Tennessee, Sumner county. The within deed of trust from William Turner to R. H. Lewis, trustee, for the use and benefit of B. and J. H. Peyton,” (here follows a description of the property conveyed,) “was acknowledged by the said Turner this 10th day of July, 1837. Thomas Donoho, clerk of the county court of Sumner.”

This certificate is certainly defective in omitting to state that the clerk was acquainted with the bargainor, and perhaps in other particulars. The forms of certificate prescribed by the statutes in cases of probate and acknowledgment must be substantially complied with by the clerk to make the registration effective. But it is said that the answer of complainant to the bill in the nature of a cross bill admits the existence of the deed' of trust, and, though it seeks to postpone the claim of the Peytons to that of Peacock, it is hot on the ground of improper, registration.

We think on this question of priority the deed of trust, with its authentications, being exhibited in the bill, the objection properly arose in argument, and the court was bound to see that the deed of trust created' no lien. The decree of the chancellor on this point will be affirmed.  