
    Luther Hoadley, appellee, v. Ebenezer B. Stephens and others, appellants.
    1. Deeds: execution. Where a deed is executed and acknowledged in another state before a commissioner of deeds of this state, a notary public, or other officer using an official seal, the law presumes a compliance with the law of the place of execution, and no further authentication is necessary. But in all other cases there must be attached thereto a certificate of the clerk of a court of record or other certifying officer, under his official seal, showing that the person taking such acknowledgment was the officer therein represented; that he is well acquainted with his handwriting; that he believes his signature to be genuine; and that such deed is executed according to the laws of such state.
    2. -; -. A deed executed and acknowledged by a justice of the peace, in Virginia, offered in evidence to prove that the grantors had parted with the legal title to certain real estate therein mentioned; Held, 
      properly excluded, there being no evidence that it was executed and acknowledged according to the laws of Virginia.
    3. -. At common law lands could be conveyed only by conforming to the law of the place where the lands were situated, but by statute, lands in this state may be conveyed by conforming to the law of the place where the deed is executed and acknowledged.
    Appeal from the district court of Nemaha county.
    The plaintiff alleged that the defendant, E.B. Stephens, executed and delivered to him two promissory notes and two mortgages upon real estate, to secure the payment thereof, and asked for a decree of foreclosure, and that the mortgaged premises should be ordered sold to pay said notes.
    The defendant, Dickerson, filed a cross petition,.alleging that E. B. Stephens executed and 'delivered to one TIetzel another mortgage on the same land, and that TIetzel assigned the same to him, and he also asked for a decree of foi’eclosure.
    The defendant, E. B. Stephens, answered separately, admitting the execution of the notes and mortgages, but says that he executed the same as trustee for the appellants.
    The defendants, Mary J. Jobson, Sarah A. Rhodes, Maria E. Kite, and Robert IT. Stephens, answered jointly, but apart from the other defendants, alleging that they claim title to the land adversely to a certain deed of trust under and by virtue of which the mortgages were executed, and that their title accrued prior to the making of the mortgages. They say that long previous to the making of the mortgages, to-wit, in 1860, one William A. Jobson, being the owner of the land, executed and delivered to the said E. B. Stephens, as trustee, a certain deed of trust, a copy of which is given in the answer; that they are the beneficiaries named therein; that the title to the land became vested in them by said deed; that the said trustee had no authority to mortgage the land, and that consequently the said mortgages are null and void, as against said beneficiaries.
    To this answer, plaintiff and Dickerson replied jointly. They did not deny the allegation that Jobson was the owner of the land, and that he, together with his wife, executed and delivered to E. B. Stephens, as trustee, the trust deed of 1860; but they did deny that the defendants had any title or interest in the land by virtue of said trust deed. They then alleged that the mortgages were made by said Stephens, as trustee, under and by virtue of a power contained in a deed of trust made by Jobson and wife subsequent to the making of the one set up in the answer, to-wit, in 1868. The first trust deed conferred no power on the trustee to mortgage the land. The second contained such authority. All the parties to the action claimed under Jobson and wife, and the question was, which of the said deeds of trust should prevail. The district court decided in favor of plaintiff and Dickerson, and rendered a decree for the sale of the mortgaged premises, and of the foreclosure of any right which the appellants may have had as against the mortgagees.
    The defendants, Mary J. Jobson, Sarah A. Rhodes, Maria E. Kite, and Robert TI. Stephens, the beneficiaries under the deed of trust, appeal.
    
      E. W. Thomas, for the appellants,
    contended, inter alia, that it was not material whether the first deed was witnessed and acknowledged or not. If it were not witnessed or acknowledged at all, such fact would not affect its validity as a conveyance, but would go only to the effect of the record. A deed not witnessed or acknowledged is good between the parties, and will also prevail against deeds subsequently made to persons who had knowledge of the existence of the first. Caldwell v. Head, 17 Mo., 561. Stevens v. Hampton, 46 Mo., 404. JDussawne v. Biornett, 5 la., 104. Hastings v. Vaughn, 
      5 Gal., 315. Strong v. Smith, 3 IP Lean, 362. Gibbs v. Swift, 12 Gush., 393. Gray v. Ulrich, 8 Kan., 112.
    
      J. W. Newman, for appellee,
    in contending tliat the first trust deed was not properly signed, witnessed, and acknowledged, and was therefore properly excluded, cited Morton v. Smith, 2 Dillon, 316. Gourcier v. Graham, 1 Ohio, 329. Ola/rle v. Graham, 6 Wheat., 577. Pidge v. Tyler, 4 Mass., 541. Meighen v. Strong, 6 Minn., 177.
   Maxwell, J.

The defendants, Mary J. Jobson, Sarah A. Rhodes, Maria E. Kite and Robert B. Stephens, answered the petitions of the plaintiff and Dickerson, alleging that on the thirteenth day of December, 1868, William A. Jobson and wife, the then owners of the lands in controversy, executed' and delivered, to Ebenezer B. Stephens as trustee for these defendants, a deed for the lands in question, a copy of which is set out in the answer.

The acknowledgment of William A. Jobson was taken before Geo. E. Sadler, a justice of the peace in the city of Richmond, Virginia, and attached to the deed is a certificate of the clerk of the court of Hustings of said city, stating that the party taking the acknowledgment was at the date thereof, an acting justice of the peace, and that his signature is genuine; but it nowhere appears that the deed in question was executed and acknowledged according to the laws of the state of Virginia.

Sec. 4, chapter 61, General Statutes, provides, in case of deeds: If acknowledged or proved in any other state, territory or district of the United States, it must be done according to the laws of such state, territory or district, and must be acknowledged or proved before any officer authorized to do so by the laws of such state, territory or district, or before a commissioner appointed by the governor of this state for that purpose.” Sec. 5, provides, that “ if such acknowledgment or proof is taken before a commissioner appointed by the governor of this state, for that purpose, notary public or other officer using an official seal, the instrument thus acknowledged or proved shall be entitled to be recorded without further authentication.”

It is not alleged in the answer of the defendants, that the deed in question was executed and acknowledged according to the laws of the state of Yirginia. At common law the title to land could be acquired only by conforming to all the requirements of the laws of the place where the real estate was situated. Coppin v. Coppin, 2 P. Wm’s, 291. United States v. Crosbey, 7 Cranch, 115. Cutler v. Davenport,1 Pick., 81. Wills v. Cowper, 2 Ohio, 123. But our statute has changed the rule of the common law, so far as deeds executed out of the state are concerned, and requires a compliance merely with the forms prescribed by the law of the place of execution. And when a deed is executed and acknowleged before a commissioner appointed by the governor of this state, for that purpose, a notary public or other officer using an official seal, the law presumes a compliance with the law of the place of execution, and no further authentication is necessary; but in all other cases our statute expressly requires that the deed or other instrument shall have attached thereto, a certificate of the clerk of a court of record, or other proper certifying officer of the county, district or state, within which the .acknowledgment or proof was taken, under the seal of his office, showing that the person whose name is subscribed to the certificate of acknowledgment was at the date thereof such officer as he is therein represented to be; that he is well acquainted with the hand-writing of such officer; that he believes the signature of such officer to be genuine, and that the deed or other instrument is executed and acknowledged according to the laws of such state, district or territory.”

A deed defective in form by reason of a failure to comply with the requirements of the statute in force at the place of execution, may convey the equitable title, atad be sufficient to authorize a court of equity to grant appropriate relief, but such a deed will not pass the legal title to the grantee. Courtier v. Graham, 1 Ohio, 350. Patterson v. Pease, 5 Ohio, 190. Clark v. Graham, 6 Wheat., 577. Crane v. Reeder, 21 Mich., 24.

. The deed of December 13, 1860, offered in evidence by the defendants, was executed and acknowledged before a justice of the peace of the city of Richmond, Ya., and no testimony was offered to show that it had been executed and acknowledged according to the laws of the state of Yirginia. It was therefore properly excluded.

This is decisive of the case. The second deed contains full power and authority to authorize the trustee to mortgage the premises in question. The defendants are not in the condition of purchasers for a valuable consideration. So far as appears from the record the cestui que trusts have never had either actual or constructive possession of these premises, except so far as the possession of the trustee under the deed of April 15, 1868, may inure to their benefit; they derive their right to these lands from a purely voluntary conveyance, and the transaction was not complete until the delivery to the trustee of a deed conveying the legal title.

It is apparent from the record, that at least a portion of the money obtained on these mortgages was used in the payment of taxes due on the land, if not in making improvements thereon, but whether any portion of the money was so used or not, the trustee had full power, under the deed of April 15, 1868, to execute the mortgages in question. The judgment of the district court is therefore affirmed.

Judgment aeeirmed.  