
    Beaumont & Irwin vs. Yeatman et als.
    
    1 A certificate of probate in the usual form, signed by apersonas deputy clerk, with out anywhere naming the principal, is good both at common law and under the act of 1838, ch. 150. sec. 1.
    2. Registration of a mortgage on a steamboat in accordance with the registration laws of this State, will confer a valid title on the mortgagee, as against purchasers under a judicial sale subsequently made in Louisiana.
    On the 2d day of February, 1844, Joseph Irwin sold to A. D. Wetherspoon, of Montgomery county, the one fifth part of the steam boat “Water Witch” for $500, payable on the 1st day of Oct. 1844. And on the same day, Wetherspoon made a mortgage or conveyance to Beaumont as trustee to secure the note' given for the purchase money as above. This deed was acknowledged before the deputy clerk of Montgomery county court, on the 10th February, and registered in the register’s office of said county on the same day. The certificate of probate was as follows:
    State oe Tennessee, ) Montgomery County, j Personally appeared before me, John PI. M’Fall, deputy clerk of the county court of Montgomery county, A. D. Wetherspoon, the within named bargainor, with whom I am personally acquainted, and acknowledged that he executed the within mortgage for the purposes therein contained. Witness my hand at office, this 10th day of February, 1844. JNO. H. M’FALL, Deputy Clerk.
    
    This deed was not registered on, nor filed with the title papers of the steam-boat. The boat proceeded from the port of Clarksville, where it was lying at the time of the sale and mortgage, to New Orleans — and was there attached by Yeat-man & Co. for a debt due to them from other part owners of the boat, on the 13th February, 1844, by attachment issued from the commercial court of the city of New Orjeans. After the boat was attached, the crew and officers filed their claims for wages, &c., claiming preference over the attaching debt— and subsequently, to wit, on the 13th of March, 1844, the said boat was sold by the sheriff of the commercial court, under a decree of the court settling the priority of debts, &e., and the said Yeatman & Co. became the purchasers, at $1300, and received a deed from the sheriff. Upon the return of the boat to Nashville, on the 17th June, 1844, Irwin and Beaumont commenced their attachment suit tg enforce their mortgage lien on said boat. The cause came on to be heard at the October term of the chancery court at Clarksville, before , the Hon. Terry H. Cahal, chancellor, &c. and a decree was rendered in favor of complainants, and the defendants appealed.
    
      Bailey, for the complainants.
    The mortgage was registered in accordance with the laws of Tennessee, and Independently of the acts of congress, on this subject the title clearly passed.
    The object of congress in passing the registration laws was to protect American shipping. And so far as creditors or subsequent purchasers from the mortgagor are concerned, the registration required by the acts of congress is unnecessary. 16 Peters, 216; Story’s Conf. Laws, 270-1.
    An act of 1794, provides that the deputy clerks of the different county courts shall take the oath prescribed for their principals, and thus they are made officers of the court, recognized as such by law, and not the mere servants of their principals. The act done in this case by the deputy, was a mere ministerial act, which a deputy might lawfully do.
    Of his appointment, being an officer of the court and his appointment a matter of record, the courts will judicially take notice, and why require of him to state that he was deputy, for a particular person, when that fact is a matter of record?
    In 1 L. Raymond, 688, where a deputy sheriff appointed a bailiff to do a particular act, under bis own seal, it was held by the court to be good. See also 12 Modern Rep. 467 j Oro. Eliz. 533.
    A return made by a deputy sheriff in his own name, held good. 5 Littell, 198; 4 Vermont, 616.
    Justice Story says that although agents are required to do every act connected with their agency in the names of their principals, yet this rule does not apply to the deputies of public officers. Story on Agency, 176, in note.
    
      G. A. Henry, for the defendants.
    There are two questions presented by this record, on which Yeatman relies: 1st. That the acknowledgment of the trust deed before the deputy clerk, as such was insufficient and did not authorize its registration, and created no lien against creditors and purchasers without notice. • The act of 1838, Nicholson’s Supplement, page 236, is the only act of our legislature which authorized a deputy clerk to take the acknowledgment of deeds at all, and that provides he shall do this act in the name of his principal only.
    Our system of registration is one of positive law, founded on grounds of general policy created by the statutes of the state, and must be strictly followed, and all probates must be in pursuance of the statutes of the state. Garnett vs. Stockton page 84, 7 Hum.
    The clerk, in taking probates, is a judicial rather than a ministerial officer, and the power of the deputy to take probates of deeds is not an incident to his office as deputy, but is derived from the statute law of the state.
    If at common law the deputy could take probate of a deed, he must do it in the name of his principal, and not 'in his own' name as deputy. Cruise’s Dig. vol. 3 and 4, page 90. Title office. See also Story on Agency, page 136, 7, 8.
    The principle referred to in the note 2, page 139 of Story on Agency, applies to cases where the office is pure ministerial merely.
    2nd. Yeatman contends the mortgage or deed of trust from Witherspoon to Irwin, should have been registered on or deposited with the title papers of the boat, and that a mortgage of the ordinary character registered in another state only, creates no lien on the boat. The purchaser of a vessel in a foreign port, looks only to the register and other ship papers to ascertain the title and incumbrances on the boat. 7 La. Rep. 492.
   TüRley, J.

delivered the opinion of the court.

Two questions are presented for consideration in this case.

1st. Is the deed or mortgage, under which the complainants claim, legally proven for registration? We think it is. It was acknowledged before John H. McFall, the deputy clerk of the Montgomery county court, Tennessee, on the 10th of February, 1844, who certifies thereon, that it was on that day acknowledged before him, as deputy clerk of the county court of Montgomery county, by the bargainor, O. D. Witherspoon, with whom he was personally acquainted, to have been executed by him for the purposes therein mentioned. It is argued that the certificate of acknowledgment is not good, because the same was not taken in the name of the principal, by the deputy, as is inquired by the 1st section of the act of 1838, chap. 150. That statute, after legalizing certain probates and acknowledgments of different kinds of conveyances theretofore taken and certified by deputy clerks, provides, “that thereafter the legally appointed deputy clerk, of any county court in this state, shall be authorized to take the probate and acknowledgment of all such instruments of writing in the name of the principal, by his deputy: Provided, such probate and acknowledgment be taken and certified in the manner directed by law.” Now, bow this acknowledgment of the execution of the mortgage made before the deputy clerk could have been taken in the name of the principal clerk, it seems very difficult to conceive. How would the entry of the acknowledgment be endorsed? This day personally appeared before A. B., the principal clerk of the county court of Montgomery, by his deputy 0. D.” This is not so; for an appearance before the deputy is not an appearance before the principal, and cannot possibly be. Well let us see again. “This day personally appeared before A. B. the deputy, and acknowledged to C. D. the principal” — this willnot do — for an acknowledgment to A. B. ■is not and cannot be an acknowledgment to C. *D. It not being a case where the acknowledgment inures upon the relation of principal' and agent: there being nothing acknowledged for the benefit of the principal. Well again: “this day personally appeared before A. B. the principal clerk, C. D. and acknowledged. Test, E. F. deputy.” This is not true: the appearance was not before A. B. the principal, but E. F. the deputy; and if it had been before the principal, the principal must have certified. Then it seems to us that an acknowledgment of deed can only be taken in the name of the person before whom the acknowledgment is made, and that there is no sense in talking about taking it in the name of a person before whom it is not made. It is true, the signature to the certificate might be A. B. principal clerk, by his deputy, C. D.butcwi bono? The signature by the deputy binds the principal to nothing: it is not like a contract, where the agent must bind the principal by his signature or there is no obligation on his part: the act is merely ministerial on the part of the deputy, and is good by law, independent of the statute, which makes no new rule except it be (as is contended) by implication. We will not take from- the deputy clerk a ministerial power existing before the statute, by implication. That this power exists independent of the statute — see 1st Lord Raymond, 688; 12th Mod. 467; 5th Lit. Ky. Rep. 198; 4th Vermont, 616.

2nd. It is argued though not pressed, that inasmuch as the-mortgage is upon a steam boat, the mere registration of it'in the -county of Montgomery, the boat at the time when it was executed, being in the port of Clarksville, in Montgomery county, is not such a registration as would defeat the sale in-Louisiana under which the defendants claim: but that the same should have been registered on or deposited with the title papers of the boat. We know of no law in this state requiring such proceeding. The registration of the mortgage is good in Tennessee, whatever it may be elsewhere, and the boat being found in Tennessee,_ will be subjected by decree under the mortgage. The decree of the court below will be affirmed.  