pressed or implied, originally authorized or subsequently ratified by the legislature, or founded upon any law of the state. The petition in such a case shall be as provided in section two of this act, summons shall issue and be served in the same manner as herein before provided, and the rules of pleading and practice in regard to other civil actions in the district court shall be observed in all actions by or against the state, as far as applicable, except as otherwise herein provided.

4313. In any civil action instituted by the state, except in actions for the collection of revenue, or for school or other trust funds, or against defaulting officers and their bondsmen, the defendant may, as a matter of defense, plead any set-off, counter-claim, or cross demand that he may have arising to him in his own right, and upon which an action could be maintained by him against the state.

4314. Civil actions to which the state is a party shall, on motion of counsel on behalf of the state, have priority of trial over other civil actions; and the several district courts having jurisdiction to try actions to which the state is a party shall have power to compel attendance of witnesses, as is now had by such courts in other civil actions, and on payment of fees and mileage by the party desiring their attendance, may compel the attendance of witnesses from any county within the

state.

4315. Any person who corruptly practices, or attempts to practice, any fraud against the state in the proof, statement, establishment, or allowance of any claim or cause of action or any part thereof, in the matter out of which the same arose, shall ipso facto forfeit the same to the state; and it shall be the duty of the court in such case to find specifically that fraud was practiced, or attempted to be practiced, and to render judgment of forfeiture, and that the claimant be forever barred from prosecuting the same against the state, and for costs.

4316. The fees of sheriff, the clerk, or other officers, or of witnesses in claims or suits to which the state is a party, shall be the same, and be paid and taxed in the same manner as in other civil actions in the district courts.

4317. It shall be the duty of the attorney general to appear and defend actions or claims against the state. He may require the assistance of the district or prosecuting attorney of the district or county wherein the action is brought, and in any case of importance or difficulty the governor or chief officer of the department or institution to which it relates may retain and employ a competent attorney to appear on behalf of the state.

4318. The court by which any judgment is rendered against the state shall certify the same to the auditor of public accounts, who shall pay the same from any special fund or appropriation applicable thereto, and if none such have been provided or made, then from any appropriations made to the department or institution, relating to which the cause of action arose; Provided, That a certificate of the auditor of public accounts, or of the chief officer of such department or institution that the current appropriations will not permit the payment of such judgment without great public inconvenience, shall operate as a stay of such judgment until the adjournment of the next regular session of the legislature; and in case of such stay being claimed or taken, interest shall run on such judgment from its date at the rate of ten per centum per annum.

4319. In any action in which a judgment is rendered in any sum, or for costs against the claimant, the clerk of the court in which such judgment was rendered shall make and transmit a certified copy thereof on application of the attorney general, or other counsel on behalf of the state, to the clerk of the district court of any county within the state, and the same shall thereupon be filed and cocketed in such court and become and be a judgment thereof; and all judgments against the

claimant or plaintiff shall be collected by execution as other judgments in the district courts.

4320. Proceedings in error or appeal from the several district courts to the supreme court, as in other civil cases, may be taken by either party within the same limitations of time as in other civil actions. No appeal or supersedeas bond shall be required of the state, and the filing of notice signed by the governor, or chief officer of the proper department, or by the attorney general, or counsel for the state, of intention to take such proceedings, shall operate as a supersedeas of such judgment, and until the time that final judgment in the court of review be rendered in said cause, but the same shall not so operate longer than six months, unless proceedings in error or appeal are taken, and in case of the affirmance of such judgment or failure on the part of the state to take proceedings in error or appeal, after notice thereof, interest shall run and be computed on such judgment from its date.

4321. Payment and receipt of the amount due on any judgment rendered in any action brought under the provisions of this act shall be a full discharge of the state in such matter, and any final judgment shall forever bar further controversy upon the subject thereof.

4322. Every claim and demand against the state shall be forever barred, unless action be brought thereon within two years after the claim arose; Provided, That claims now subsisting shall not be barred until two years after the taking effect of this act, and every claim and demand in behalf of the state, except for revenue, or upon official bonds, or for loans or moneys belonging to the school fund, or loans of school or other trust funds, or to lands or interest in lands thereto belonging, shall be barred by the same lapse of time as is provided by the law in case of like demands between private parties; Provided, however, That in any action on behalf of the state the defendant may plead and avail himself of any set-off or counterclaim growing out off or connected with the same matter or transaction upon which action is brought against him.

Amended 1881, p. 211.

4323. Change of venue may be taken from the district court of the county in which the action is brought, as in other civil cases, on payment of the costs of removal, by the party making application for such change of venue.

CHAPTER 47.-REAL PROPERTY.

Secs. 4324 to 4379, except secs. 4328 and 4372, are taken from ch. 43, R. S. 1866, p. 280. Of the original chapter, secs. 18 to 20, 28, and 30 have been superseded by secs. 3158 to 3161 and 3167, ch. 39, Officers; sec. 59 was repealed by act of 1889, p. 483, and secs. 60 to 84 formed secs. 1783 to 1807 of ch. 17, Frauds. The remaining sections of the original chapter are arranged in order as above stated.

4324. Deeds of real estate or any interest therein in this state, except leases for one year or for a less time, if executed in this state, must be signed by the grantor or grantors, being of lawful age, in the presence of at least one competent witness, who shall subscribe his or her name as a witness thereto, and be acknowledged or proved and recorded as directed in this chapter.

Amended 1887, p. 561. Grantor must execute and acknowledge, or deed void. 5, 176. Mistake or abbreviation does not necessarily invalidate a deed. 7, 3. Not necessary that witness should be present at signing of deed if told immediately after by party subscribing that the instrument is their agreement. 4, 120. One who purchases land for himself, though taking deed in name of sister-in-law, not a competent attesting witness thereto. 24, 201 (38 N. W., 722). Deed of lands in this state made in another state, must be executed according to the laws of such state; and if no witness is required there, such deed is good here without being attested. 12, 123 (10 N. W., 459). A deed executed, witnessed, and delivered is effectual to pass title, though not lawfully acknowledged or recorded. 12, 155 (10 N. W., 545). As between the parties, and persons having notice, written contract for sale of land is valid although not witnessed or acknowledged. 11, 192 (8 N. W., 389). Lease for five years is good between the parties without recording and the exclusion of such a lease as evidence is error. 10, 605 (7 N. W., 271). A second lessee can take no advantage of defective execution of first lease if he had knowledge of same. 15, 171 (17 N. W., 357). This statute applies to deeds of assignment for benefit of creditors. The record of an unacknowledged deed of assignment is a nullity. 10, 513 (7 N. W., 282). Equity will relieve a party against contracts made while temporarily insane from the use of intoxicating liquors where such contracts have been procured by fraud. 6, 405. Mere weakness of understanding alone does not incapacitate one from making a deed. 4, 120; 4, 117. See 9, 283 (2 N. W., 878).

4325. The grantor must acknowledge the instrument to be his voluntary act and deed.

Certificate showing that grantors simply "acknowledged that they executed the deed" was held valid. Certificate must show that the execution was voluntary." "Voluntary act" is sufficient without words "and deed." 13, 340 (14 N. W., 417).

4326. The acknowledgment must be made or proved, if in this state, before a judge or clerk of any court, or some justice of the peace or notary public therein; but no officer can take any such acknowledgment or proof out of his territorial jurisdiction.

19, 211 (27 N.

Officer cannot take acknowledgment outside of his territorial jurisdiction. W., 117). Acknowledgment no part of a deed itself; merely evidence of execution and authority for registration. 7, 164. County clerk may take acknowledgment. 2, 84.

4327. If executed and acknowledged or proved in any other state, territory, or district of the United States, it must be executed and acknowledged or proved either according to the laws of such state, territory, or district, or in accordance with the law of this state, and such acknowledgment shall be made before and certified by any officer authorized by the laws of such state, territory, or district to take and certify acknowledgments, or by a commissioner of deeds appointed by the governor of this state for that purpose.

Amended 1887, p. 562. If executed and acknowledged in a foreign state, must comply with the laws of such state. 5, 175. Deed acknowledged before notary public in another state and attested with his seal is entitled to record without further authentication. 12, 124 (10 N. W., 459),

4328. All deeds heretofore executed and acknowledged in accordance with the provisions of this act shall be and are hereby declared to be legal and valid. This section added 1887, p. 562.

4329. In all cases provided for in section four of this chapter (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; Provided, That in all other cases 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 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 handwriting of such officer; that he believes the said 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.

Mortgage of land in this state executed in another state and acknowledged before an officer having no seal must have a certificate attached to it as provided in this section to entitle it be recorded in this state; and without such a certificate, the record thereof is a nullity and is not admissible in evidence. But if such record is erroneously admitted in evidence, the judgment will not be reversed, if actual notice of the mortgage by the purchaser be shown. 10, 479 (6 N. W., 753).

4330. If such deed be executed in a foreign country, it may be executed according to the laws of such country, and the execution thereof may be acknowledged before any notary public therein, or before any minister plenipotentiary, minister extraordinary, minister resident, charge d'affaires, commissioner, commercial agent, or consul of the United States appointed to reside therein, which acknowledgment shall be certified thereon by the officer taking the same, under his hand, and if taken before a notary public, his seal of office shall be affixed to such certificate.

4331. If the grantor die before acknowledgment, or if for any cause his attendance cannot be procured in order to make the same, or, having appeared, he refuses to acknowledge it, proof of the execution and delivery of the deed may be made by any competent subscribing witness thereto, before any officer authorized to take the acknowledgment; and the witness must state, upon oath, his own place of residence, that he set his name to the deed as a witness, that he knew the grantor in such deed, and saw him sign or heard him acknowledge he had signed the same; and such proof shall not be taken unless the officer is personally acquainted with such subscribing witness, or has satisfactory evidence that he is the same person who was a subscribing witness to such deed.

4332. The officer has power to issue the necessary subpoenas for the subscribing witnesses, residing in the same county, to appear before him for the purpose aforesaid.

4333. Every person who, being served with a subpoena, and having been tendered the fees of a witness in a justice's court, shall, without reasonable cause, refuse or neglect to appear, or, appearing, shall refuse to answer upon oath touching the matters aforesaid, shall forfeit to the party injured one hundred dollars; and may also be committed to prison by the officer who issued such subpoena, there to remain without bail until he shall submit to answer upon oath as aforesaid.

4334. If all the subscribing witnesses shall be dead, or out of the state, such death or absence is first to be proved, and then the execution of the deed may be proved before such officer by proving the handwriting of the grantor, and of any subscribing witness to such deed.

4335. Any person interested in a deed that is not acknowledged, may, at any time before or during the proceedings before such officer, file in the office of the register of deeds of the county where the lands lie a copy of the deed, com

pared with the original by the register of deeds, which shall, for the space of thirtydays thereafter, have the same effect as the recording of the deed, if such deed shall within that time be duly proved and recorded.

Amended 1887, p. 368.

9.

4336. Every officer who shall take the acknowledgment of proof of any deed shall endorse a certificate thereof, signed by himself, on the deed; and in such certificate shall truly and specifically set forth the matters herein before required to be so done, known or proved, on such acknowledgment or proof, together with the names of the witnesses examined before such officer, and their places of residence, and the substance of the evidence by them given.

4337. Every deed acknowledged or proved, and certified by any of the officers before named, including the certificate specified in section five of this chapter [4329], whenever such certificate is required by law, may be read in evidence without further proof, and shall be entitled to be recorded. The record of a deed duly recorded, or a transcript thereof duly certified, may also be read in evidence with the like force and effect as the original deed, whenever, by the party's oath or otherwise, the original is known to be lost, or not belonging to the party wishing to use the same, nor within his control. Neither the certificate of the acknowledgment or of the proof of any deed, nor the record or transcript of the record of such deed, shall be conclusive, but may be rebutted, and the force and effect thereof may be contested by any party affected thereby. If the party contesting the proof of a deed shall make it appear that such proof was taken upon the oath of an interested or incompetent witness, neither such deed, nor the record thereof, shall be received in evidence until established by other competent proof.

Copy of record competent without proving loss of original where defendant in ejectment seeks to prove title in a stranger, even if there is a discrepancy between date of deed and acknowledgment. 27, 310 (43 N. W., 110); 10, 500 (6 N. W., 600).

4338. The certificate of the proof or acknowledgment of every deed, and the certificate of the genuineness of the signature of any officer, in the cases where such last mentioned certificate is required, shall be recorded together with the deed so proved or acknowledged; and unless the said certificates be so recorded, neither the record of such deed, nor the transcript thereof, shall be read or received in evidence.

4339. Every deed entitled by law to be recorded shall be recorded in the order and as of the time when the same shall be delivered to the *register of deeds for that purpose, and shall be considered recorded from the time of such delivery. Former act read "clerk" at *, 1887, p. 368.

4340. All deeds, mortgages, and other instruments of writing which are required to be recorded shall take effect and be in force from and after the time of delivering the same to the register of deeds for record, and not before, as to all creditors and subsequent purchasers in good faith without notice; and all such deeds, mortgages, and other instruments shall be adjudged void as to all such creditors and subsequent purchasers without notice whose deeds, mortgages, and other instruments shall be first recorded; Provided, That such deeds, mortgages, or instruments shall be valid between the parties.

Former act read "clerk." 1887, p. 369. Possession is notice. 5, 161. A duly acknowledged and recorded deed is constructive notice to all persons through or under the grantor. 6, 269; 18, 198 (24 N. W., 684). Record is only notice of lands described in the conveyance, but an after-acquired judgment is subject to a mortgage describing the wrong lands. 7, 288. Purchaser at execution sale of lands with sheriff's certificate, but who had not yet received his deed, will be protected against an unrecorded mortgage upon a bill of foreclosure filed before the time allowed a defendant to redeem his land had expired. 1, 465. A deed prior to attachment, but not recorded until after, takes precedence of attachment if recorded before deed based on attachment sale. 19, 97 (26 N. W., 713). See 8, 372; 8, 494.