
    *Smith’s Lessee v. John E. Hunt.
    A mortgage in which the magistrate’s certificate does not show by whom the instrument was acknowledged, vests no legal interest in the mortgagee.
    A plaintiff, claiming under such deed, can not recover in ejectment.
    This is an'action of ejectment from Cuyahoga county.
    The facts of the case are as follows :
    Ezekiel Folsom, of Ohio City, executed to the lessor of the plaintiff, a certain mortgage deed of the promises in controversy, on February 21, 1835. The justice has certified the acknowledgment in these words:
    
      “ The State of Ohio, Cuyahoga county, ss.
    
    “ Brooklyn, February 21, 1835.
    “Personally appeared --, who acknowledged that he did sign and seal the foregoing instrument, and that the same is his free act and deed. Wm. Burton, Justice of the Peace.”
    
    On September 4, 1835, Folsom conveyed the same land in fee ■to Ambrose Anthony. On March 24,1839,.Anthony conveyed to ■the defendant, Hunt.
    At the November term of the court of common pleas of Cuyahoga county, 1840, the plaintiff filed his bill in equity against •Fulsom, the mortgagor, for the sale of the premises, in satisfaction of the mortgage, and at the March term, 1841, obtained a decree pro confesso. Anthony was made a party defendant in the •suit, but Hunt was not.
    Asale was afterward made by the master commissioner; the ¡plaintiff became the purchaser; the sale was confirmed by the •court of common pleas and a deed, executed. This is the plaintiff’s title, and the question is, whether, under this state of facts, the plaintiff is entitled to recover. • •
    Bishop & Backus, for plaintiff:
    The decision of this case depends upon the construction given to the acknowledgment attached to the mortgage of *Folsom to Smith, submitted as a part of the evidence in this'caso. This mortgage was duly recorded, and was, as we say, legal notice to defendant Hunt.
    We argue that this deed should be supported, because, in the State of Ohio, the court has ever been accustomed to look with a favorable eye on the acts of justices of the peace.
    In Austin v. Hayden, 6 Ohio, 388, the court say: “The proceedings of justices of the peace have usually, in our courts, been viewed with a favorable eye, and every reasonable intendment made to sustain them.” The court further say: “From the manner in which they are elected, their numbers, their little business, etc., it can not be reasonably supposed that they are acquainted with the forms of legal proceedings, and apply to their official acts the same rules as to a court of record, and very few of their proceedings could be sustained. This would not do; it would produce much evil, and is not, in our view, called for.”
    That a more strict rule is, and has been, in the older states, applied to the acts of justices of the peace, is readily admitted; but in this state, from the nature of the case, is, and has ever been relaxed. The same reason for a rigid rule being applied to acts of justices of the peace in this state does not exist. Their rule is the English rule ; ours is a rule adapted to our own case, and the early settlement of states. Tou will find this liberal rule running through all our legal proceedings where justices of the peace take &, part.
    But this deed should be supported and the acknowledgment held good, because the court will sustain the deed, if possible.
    Every part of a deed ought, if possible, to take effect. 4 Cruise’s Dig. 293, sec. 5.
    A deed is always construed most strongly against the guarantor. 2 Hill. Abr. 333, secs. 12, 14.
    The whole deed, if possible, shall stand, 2 Hill. Abr. 334, secs. 6, 19.
    The law will so arrange the clauses of a deed as to give effect to the object of tbe-parties. 2 Hill. Abr. 335, sec. 9; Swift’s Dig. 225, 229; Shep. Touch. 84.
    *The only defect in the acknowledgment is the omission of the grantor’s name, and there are cases in which the omission of a word in the draft of a contract will be supplied when it appears to be omitted by accident or mistake, and the meaning of the parties is sufficiently apparent. 2 Ohio, 347; 1 Conn. 36; 6 Conn. 116; 9 Conn. 454; 1 Chit. Pr. 124; 4 Cruise’s Dig. 297, sec. 25.
    Take the original deed and inspect it; see the printed form; see the date of it, which is February 21, 1835; see the acknowledgment, which is of the same date; see the name of William Burton, as a witness, and see his signature to tho acknowledgment, and can there be any doubt but that the name of Folsom was omitted by mistake; is it not so apparent on the face of the paper, and should it not be so held ? We can not see how the court can avoid giving such a construction, especially when the rigid rules before laid down are applied, to wit: “ The whole deed, if possible, shall stand,” etc.
    Take the case of Couch v. Graham, 1 Conn. 36. There tho worn “die,” the operative word in the devise, and upon which the whole case turned, was applied by the court, and upon the, ground that, taking the whole will together, the intent of tho testator was manifest, and could not be effectual but by supplying tho word evidently omitted by mistake.
    Peck v. Wallace, 9 Conn., is in point. Where the sheriff’s return stated that “tho appraisers, after viewing the land described at sixty dollars per acre as its true and just value, of which appraisal said appraisers made and delivered a certificate,” etc., and the certificate of the appraisers, appended to the return, stated that “the appraisers having been appointed and sworn to appraise the land described at sixty dollars per acre,” etc., it was held that the return, by necessary implication, showed an appraisal of the land. If the word “die,” in tho first case, without which tho will in question would have no effect, could be supplied by the court, may not the name of Ezekiel Folsom be supplied in this case in the acknowledgment of the deed in question? Would any new violence be done ? We think not. The case in 9 Connecticut is equally strong; ^without supplying almost a sentence, the whole return and certificate would be without moaning.
    An apparent uncertainty is removed by collecting the general intention from the whole writing, or by reference to some other event or writing. 1 Phil. Ev. 538.
    We admit, if the acknowledgment stood alone, it would effect nothing; it would have no meaning. But take it in connection with the deed, to which it belongs; connect Ezekiel Folsom’s name, which stands almost connected with it, so as to appear to be a part of the acknowledgment; taking the dates of the deed and certificate, the handwriting of Burton to both, view the whole, and it will be difficult to avoid tho conclusion that Folsom acknowledged the deed. It may well be supposed, on inspecting the deed, that the magistrate, seeing Folsom’s name already written, thought it not necessary to be repeated, and so filled up the acknowledgment as to have it read thus: “Ezekiel Folsom—(at) The State of Ohio, Cuyahoga county. Brooklyn, February 21, 1835. Personally appeared-, who acknowledged,” etc.; and, indeed, such a conclusion is unavoidable. He saw Folsom’s name, and then filled up the blank without rewriting it, adopting the name already written as a part of the acknowledgment.
    Lastly, there are cases in the books, though not as to acknowledgments particularly, which vary as much as the one in question from the usual form, and the form prescribed by law, that have been sustained.
    In one case, the law required the certificate to the deed to state that he (the magistrate) knew the person acknowledging the deed to be the person therein named ; but the certificate only stated that the person was to the officer known, and the court held it sufficient. 2 Cow. 552.
    Again, in the same case, a question was raised as to posting up notices of sale of land by sheriff. The certificate to the affidavit read thus: “Sworn to and subscribed before me.” But the law required that the officer should state that the person making the affidavit appeared before him and made oath to the same. The certificate here was also held good.
    Again, in 15 Johns. 89, where A. and B., his wife, are stated to have come to acknowledge, it was held that they not only camo to acknowledge, but actually did acknowledge the deed.
    But it is contended that the case of Hayden v. Westcott, 11 Conn. 129, decides this case. We, however, respectfully, submit, if the dissenting opinion in that ease is not the better law for this state, taking the liberal view the courts of this state do of the acts of justices of the peace. It is further contended, on the other hand, that the certificate in that case is more certain than this; that stating, “by him sealed and subscribed,” and this one stating, “who acknowledged ho did sign and seal the foregoing instrument.”
    Now, with all deference to learned counsel, we maintain that the certificate in this case is much more certain than in the case of Hayden v. Westcott.
    In this case the relative pronoun icho, is used, rendering it certain that some person appeared ; in that case no such relative pronoun is used, and, instead of “ who,” the word “ and” is used. B it who can look to the statement of either case, and, with the uniform policy and liberality toward the acts of magistrate and purchasers that have always been practiced in the Supreme Court of Ohio, and not immediately come to the conclusion that the grantor in each deed acknowledged the same ?
    H. Foote, for defendant:
    Does this certificate import that Ezekiel Folsom, the grantor, appeared and acknowledged his signing and sealing of the deed? 1 suppose that this certificate does net furnish any evidence that either Ezekiel Folsom, or any other person, acknowledged the instrument to be his deed. Its terms do not import that any body appeared before the magistrate, but the contrary.
    Personally appeared — who ? Why — [blank] and [blank] mean") nobody. But if [blank] mean3 somebody, *does it necessarily or by reasonable intendment mean Ezekiel Folsom? If so, then all deeds, no matter by whom signed and sealed, certified, as to the acknowledgment, as the deed in question is, should be taken to have acknowledged by Ezekiel Folsom.
    The rule applicable to this subject undoubtedly is, that the certificate should show, with reasonable certainty, that the grantor in the deed appéared and acknowledged the instrument to be his. In the present case one of two things seems to be certain ; either this certificate fails entirely to show that any person acknowledged the deed, or, if it may be fairly inferred from it, that some person did appear and acknowledge the instrument — it utterly fails to ascertain and designate that person. In either aspect of the case the certificate is fatally defective.
    The certificate, to bo sufficiently certain, should either contain in itself express words that Ezekiel Folsom appeared, etc., or, by referring to something else, should designate him as the person. There is, however, no reference in it to anything from which the blank can be supplied. The utmost that can be made out of it is, that a person appeared, etc.
    In the case of Hayden et al. v. Westcott, 11 Conn. 129, the certificate was in the following terms: “Personallyappeared- and acknowledged this instrument, by him sealed and subscribed, to bo his free act and deed.” And it was held that such a certificate did not import an acknowledgment by the grantor. This case goes the length of deciding the present, and more too. There is a little difference in tho language of the two certificates, and that difference is decidedly against tho certificate in the case on trial.
    In the case above cited, one of the judges thought that, by supplying the words “which was,” and which he supposed to be understood, after the word “ instrument,” the certificate in that case might be tortured into the meaning that the sealer and subscriber of tho instrument appeared and acknowledged, etc., which would be sufficiently certain. The other four judges thought differently.
    *In the present case there is no room for indulging in the speculations of the dissenting judge, in the case cited, as to this particular. For it can not bo pretended that the certificate in question will admit of any such construction.
    Personally appeared-, who acknowledged that he [blank'j signed and sealed the foregoing instrument, and that the saméis his [blank’s] (ree act and deed. The magistrate does not say that the signer and sealer of the instrument appeared and acknowledged, but only that somebody or nobody appeared and acknowledged that he, this same .somebody or nobody, signed and sealed, etc.; but whether this somebody or nobody was in fact the signer and sealer, can not be ascertained by any just construction of the words of the certificate.
    Allen and Stetson, on the same side:
    The question is not whether the mortgage is good, as between the parties, but whether record of it is notice to subsequent pur. chasers.
    If the deed itself is not good, the record of it is a nullity. Lessee of Johnson v. Haines, 2 Ohio, 55.
    Tho acknowledgment of a deed can not be presumed. Roads v. Symmes, 1 Ohio, 316.
    If, then, the acknowledgment bo substantially defective, the objection is fatal, and the plaintiff’s title fails.
    It has been held, in this court, that “ the certificate of acknowledgment must show in express terms, or by necessary implication, a compliance with every substantial requisition of the law.” Brown v. Farran, 3 Ohio, 140; Connell v. Connell, 6 Ohio, 353.
    The law requires the signing, and sealing, to be acknowledged by the grantor. The certificate shows that some person not named, acknowledged tho signing, etc., but does not show that this person was the grantor. The certificate does not then show, in express terms, any compliance with the law, and we can not perceive that it does by “ necessary implication.” *What is meant by necessary implication? If we understand the expres sion correctly, a certificate shows a fact by necessary implication only, when its terms are such that the certificate can not be true, unless the fact exist. The certificate shows that some person acknowledged the signing, etc., but does not show that such person was the grantor. Now .suppose the grantee himself to have acknowledged that he signed and sealed said deed, etc., the certificate would be strictly true. The acknowledgment itself would be false, but the magistrate has not certified that the person who made the acknowledgment told the truth, nor was he the person B.worn to do so. The certificate is true, if any person whatever acknowledged the signing, etc., even if that person was a stranger to the deed. It certainly can not be said that the certificate necessarily implies, that the grantor acknowledged, etc., when an acknowledgment by any other person equally satisfies the terms of the certificate. It may be inore probable that the acknowledgment was made by the grantor, than by any other person, but probability will not support the certificate. It is claimed that the fact of the justice having signed the deed as a witness, aids the defective certificate. We do not understand how it aids, Is it parol evidence'that the grantor acknowledged the deed? if so, we should wish to have the witness sworn; but it is not evidence of the fact — the deed may have been signed by the grantor in presence of the justice, and the justice then have signed as a witnes, without taking any acknowledgment. We suppose that the fact proves nothing, except that the justice knew who the grantor was, and this he could have learned as well by reading the signature. But we suppose it well settled that the acknowledgment,, or the defect in an acknowledgment, can not be proved by parol. Lessee of Johnson v. Haines, 2 Ohio, 55; Brown v. Farran, 3 Ohio, 140; Pendleton v. Button, 3 Conn. 406; Heyden et al. v. Westcott, 11 Conn; 129.
    In the case of Pendleton v. Button, the court held the certificate to be bad, when the words, “ and acknowledged” were omitted ; and in the last case; Hayden et al. v. Westcott, the *omis sion was the same as in the present case; yet the court held, that the certificate did not import an acknowledgment. In that case there was much more on which a presumption might be founded than in the present. The form, of the certificate was, “ personally appeared-and acknowledged this instrument, by him sealed ar/d subscribed, to be his free act and deed.” In our case, tho words, “ by him scaled and subscribed,” are not contained in the certificate. Those words might be understood as a certificate of the magistrate, that the person making the acknowledgment was tho signer and sealer of the deed, which would have made tho certificate good; and one of the judges thought that was the proper construction, but a majority thought otherwise, and held tho certificate to be bad. In the case under consideration there are no words in the certificate which even intimate that the signer made the acknowledgment, and of courso nothing which would, in Connecticut, have called out the dissenting opinion, as in the case of Hayden v. Westcott, 11 Conn. 129.
   Wood, J.

In an action of ejectment, the equities of the parties» if any exist, can not be adjusted. They must be settled in another forum. It is the legal title only which is recognized as the ground of tho action, and the plaintiff must recover, if at all, entirely on the strength of his own title. The legal title, when ascertained, whether in the plaintiff or in the defendant, draws to it the judgment of the court.

Has the plaintiff any legal title in this case ?

It has been held, as often as the question has been made in our court, that the legal title to lands and tenements is not transmitted to the grantee by a conveyance, unless executed, substantially at least, in pursuance of the requisitions of the statute. They require every species of deed to be acknowledged by the grantor, and isuch acknowledgment to be certified by the magistrate or person before whom it is made. Does the certificate in this case furnish any evidence of a compliance with the law? This must depend solely on the fact whether blank, and-Ezekiol Folsom, the grantoiy are synonymous. *If Folsom is blank, and blank is Folsom, the execution of the mortgage is complete; but as no evidence is adduced to prove these facts, we know of no rule of law which will authorize us to infer that Ezekiel Folsom, the grantor, is just nobody at all; especially as he has conveyed his land twice,. and an honest plaintiff, seventy years of age, has lost his entire property by the operation.

It is clear, we regret to say, that no legal estate was conveyed by this defectively executed mortgage to the plaintiff. The legal title remained in Folsom. He had conveyed it to Anthony, and Anthony to Hunt, the defendant, long beforo the institution "of the chancery suit, and to which Hunt was not a party.

The plaintiff, therefore, acquired no logal title by his purchase under tho decree in chancery, and judgment must be entered for-the defendant. Judgment for defendant.  