deposits and charged him with items with which he was not chargeable, will vitiate an account stated; and the question of fraud is for the jury. McKinister v. Hitchcock, 19 Neb. 100 (26 N. W. 705).

9. (1902.) Where a settlement is entered into between two parties in reliance on the accuracy and correctness of books of account kept by one of the parties, and it is subsequently discovered that the books have been erroneously kept, and that the party keeping them has not accounted for all the money which he has received, such a settlement will be set aside and a new accounting had although there may have been no intentional fraud practiced by the bookkeeper, and the failure to account may have been due to mistakes alone. Leidigh v. Keever. 2 Unof. 343 (96 N. W. 106).

Conclusiveness.

10. (1894.) An account stated does not bar a recovery for items not within the contemplation of the parties when the settlement was made. Clarke v. Kelsey, 41 Neb. 766 (60 N. W. 138).

Failure to object.

11. (1896.) The failure to object to an account rendered is admissible in evidence as tending to prove an acknowledgment of its correctness, its weight or sufficiency for such purpose being a question of fact for the consideration of the jury. Hendrix v. Kirkpatrick, 48 Neb. 670 (67 N. W. 759).

12. (1898.) Where the relation of debtor and creditor exists an account rendered and not objected to within a reasonable time will be regarded as prima facie correct. Missouri P. R. Co. v. Palmer, 55 Neb. 559 (76 N. W. 169).

Usury as defense.

13. (1900.) In an action on an account stated, the defense of usury is avoidable without alleging that the balance due was agreed to in consequence of fraud or mistake. Jorgensen v. Krinksley, 60 Neb. 44 (82 N. W. 104).

Interest on account.

14. (1887.) Where an action is prosecuted upon an account stated by a defendant, and in which he charges himself with interest on money in his hands at the rate of ten per cent. per annum, this will imply a promise to pay interest at that rate, if the proof shows the statement to have the effect of an account stated. Savage v. Aiken, 21 Neb. 605 (33 N. W. 241).

Pleading.

15. (1880.) When the petition states a cause of action on an account stated between the plaintiff and defendant, and further. that for the balance due upon the stated account the defendant executed and delivered to the plaintiff a promissory note, but a single cause of action is set out. Claire v. Claire, 10 Neb. 54 (4 N. W. 411).

16. (1889.) In an action on an account stated, defendant after a general denial set up for a counter-claim that the amount claimed was for intoxicating liquors, sold by plaintiffs, who were wholesale dealers, without license. Held, That such answer amounted to a plea of confession and avoidance, and rendered proof of their account by plaintiff unnecessary. Gillen v. Riley, 27 Neb. 158 (42 N. W. 1054).

Evidence.

17. (1885.) The prima facie presumption is in favor of an account which has been stated by the parties, and as a general rule it will not be disturbed unless there was fraud or mistake in the settlement which is established by clear proof. Keller v. Keller, 18 Neb. 366 (25 N. W. 364).

18. (1885.) Where there has been a settlement of accounts between parties, and a promissory note given by one of them for the amount found due, the burden of proof is on the maker of the note to show that the settlement did not include debts owing to him from the adverse party. Keller v. Keller, 18 Neb. 366 (25 N. W. 364).

19. (1894.) Where plaintiff sued on an account stated, and defendant denied that an account had been stated, but admitted that there was due to plaintiff a less amount than claimed, the finding of the jury sus taining the defendant's averments will not be disturbed when, as in this case, they are sustained by competent evidence, no error of law having occurred on the trial. Sterling Lumber Co. v. Stinson, 41 Neb. 368 (59 N. W. 888).

20. (1903.) When suit is brought on an account stated, plaintiff can only recover by showing both the account and an unqualifiled assent of defendant to its correctness. Cahill, Swift Mfg. Co. v. Morrisey Plumbing Co., 3 Unof. 865 (93 N. W. 204).

21. (1896.) Verdict for defendant in error, who sued to recover upon an account stated, held, from an examination of the evidence, to be warranted thereby. Hea

CROSS REFERENCES.

Of assignment for benefit of creditors, see Assignment for Benefit of Creditors, §§ 33-35. Acknowledgment of illegitimate child, see Bastards, $$ 3-6.

Of chattel mortgage, see Chattel Mortgages. §§ 40, 41.

Of dedication of land to public, see Dedication, $2.

Acknowledgment of debt as tolling running of statute of limitations, see Limitations of Actions, §§ 120-138.

Of conveyance of homestead, see Homesteads. $$ 114-116.

Necessity of seal to acknowledgment, see Notaries, §§ 7-9.

Nature and functions.

1. (1896.) The functions of an acknowledgment to a deed are twofold: (1) To authorize the deed to be given in evidence without further proof of its execution; (2) to entitle it to be recorded; and

unless the real estate conveyed or incumbered the homestead of the grantors, an acknowledgment is not essential to the validity of the conveyance. Horbach v. Tyrrell, 48 Neb. 514 (67 N. W. 485; 37 L. R. A. 434).

2. (1878.) The functions of an acknowledgment are to authorize the deed to be given in evidence without further proof of its execution, and to entitle it to be recorded. The acknowledgment is no part of the deed itself. Burbank v. Ellis, 7 Neb. 156.

3. (1899.) The office of an acknowledgment is to furnish authentic evidence that the instrument acknowledged has been duly executed and is entitled to be recorded. Fisk v. Osgood, 58 Neb. 486 (78 N. W. 924). Statutory provisions.

4. (1896.) Sections 5 and 41 of chapter 43, Revised Statutes of 1866, entitled "Real Estate," relating to acknowledgment of deeds, were enacted at the same time, as

parts of the same statute, and being in some of their provisions so repugnant that both could not be executed, inasmuch as they conflicted, the last section-41-prevailed and the other was repealed. Omaha Real Estate & Trust Co. v. Kragscow, 47 Neb. 592 (66 N. W. 658).

5. (1896.) Section 5 of an act entitled "Of real estate and the alienation thereof by deed," and relating to acknowledgment of deeds, passed January 26, 1856 (Session Laws, p. 80, ch. 31), as amended February 13, 1864 (Session Laws, p. 58, ch. 12), was in direct and irreconcilable conflict with the provisions of section 44 of chapter 31 of the same statute, passed at the same time, and, consequently, operated its repeal by implication. Omaha Real Estate & Trust Co. v. Kragscow, 47 Neb. 592 (66 N. W. 658).

Necessity of acknowledgment.

An instrument,

purporting

6. (1876.) to be the deed of a feme covert, without her acknowledgment, is void as to her. It is no deed. Roode v. State, 5 Neb. 174 (25 Am. Rep. 475).

7. (1881.) A deed of real estate executed, witnessed, and delivered, is effectual to pass title, though not acknowledged or recorded. Harrison v. McWhirter, 12 Neb. 152 (10 N. W. 545).

7a. (1893.) A deed in other respects sufficient and regular is effective, as between the grantor and grantee therein, to pass complete title even though executed in a foreign state it is there acknowledged before only a purported justice of the peace as to whose genuine signature, official character and power, there is no accompanying certificate of a proper officer having a seal. Connell v. Galligher, 36 Neb. 749 (55 N. W. 229).

8. (1894.) The grantee in a deed of real estate acquires title thereto or execution and delivery to him of such deed, though the deed is neither acknowledged or recorded and be afterwards lost; and a sheriff's deed, made in pursuance of an execution sale against such grantee passes legal title to the purchaser. Connell v. Galligher, 39 Neb. 793 (58 N. W. 438); 46 Neb. 372 (64 N. W. 965).

9. (1896.) A conveyance of real estate, such real estate being the homestead of the grantors, is, unless acknowledged, absolutely void. Horbach v. Tyrrell, 48 Neb. 514 (67 N. W. 485; 37 L. R. A. 434); Havemeyer

v. Dahn, 48 Neb. 536 (67 N. W. 489; 58 Am. St. Rep. 706; 33 L. R. A. 332).

10. (1897.) As between the parties an acknowledgment is not essential to the validity of a conveyance, unless the property be a homestead, or for the purpose of barring dower. Linton v. Cooper, 53 Neb. 400 (73 N. W. 731).

11. (1897.) A conveyance by a married woman of her separate property, not her homestead, is valid between the parties although not acknowledged. Linton v. Cooper, 53 Neb. 400 (73 N. W. 731).

12. (1904.) The acknowledgment by both husband and wife of an instrument whereby it is sought to convey or incumber a homestead, is an essential step in the due execution of such instrument. Solt v. Anderson, 71 Neb. 826 (99 N. W. 678). Nature of officer's act.

In this state the act of an 13. (1896.) officer in taking the acknowledgment of the grantor to a conveyance of real estate is a ministerial one. Horbach v. Tyrrell, 48 Neb. 514 (67 N. W. 485; 37 L. R. A. 434). Authority to take.

14. (1872.) County clerks are authorized to take the acknowledgment of deeds conveying real estate. Franklin v. Kelley, 2 Neb. 79.

15. (1899.) A United States commissioner has no authority to take acknowl edgments of real estate conveyances executed in Nebraska. Interstate Saving & Loan Ass'n v. Strine, 58 Neb. 133 (78 N. W. 377).

Disqualification of officer to take.

16. (1896.) What relationship or what interest possessed by an officer disqualifies him from taking an acknowledgment must be determined from the facts and circumstances of the case in which the question is presented, rather than by any general rule. Horbach v. Tyrrell, 48 Neb. 514 (67 N. W. 485; 37 L. R. A. 434).

17. (1896.) A notary public is not disqualified from taking an acknowledgment of a mortgage made to a corporation, merely because it is shown that he was at the time secretary and treasurer of the mortgagee, it not appearing that he was a stockholder in such corporation or otherwise beneficially interested in having the mortgage made. Horbach v. Tyrrell, 48 Neb. 514 (67 N. W. 485; 37 L. R. A. 434).

18. (1896.) An attorney, who is a no

$19

tary public, is not disqualified from taking an acknowledgment of a mortgage made to his client, merely because he holds for collection the claim secured by such mortgage, it not appearing that the attorney had any beneficial interest in having the mortgage made, nor that the amount of his compensation in any manner depended upon such mortgage being made. Havemeyer v. Dahn, 48 Neb. 536 (67 N. W. 489; 58 Am. St. Rep. 706; 33 L. R. A. 332).

national bank, 19. (1902.) A which held a note for collection, belonging to another bank, of which it was a large stockholder, took a renewal thereof and included in such renewal note an amount of its own unsecured debt against the maker and at the same time obtained a mortgage upon the homestead of the debtor, signed by himself and wife, and acknowledged before a notary who was an officer and stockholder of the national bank, to secure the payment of the said renewal note. Held, That the national bank and its stockholders had a direct pecuniary and beneficial interest in the transaction and hence the acknowledgment was void. Wilson v. Griess, 64 Neb. 792 (90 N. W. 866).

20. (1904.) A clerk in a private bank, who is the son-in-law of the owner of the bank, and who although designated as cashier has no pecuniary interest in the bank except salary, is not disqualified by interest, from taking an acknowledgment as notary to a mortgage given to the bank. Banking House of A. Castetter v. Stewart, 70 Neb. 815 (98 N. W. 34).

21. (1902.) On the grounds of public policy an officer is disqualified from taking the acknowledgment of a mortgage given to secure an indebtedness, evidenced by a note, of which he is the real owner. Hedbloom v. Pierson, 2 Unof. 799 (90 N. W. 218).

Requisites and sufficiency in general.

22. (1878.) A certificate of acknowledgment is sufficient if it shows that the requirements of the statute have been complied with in substance. Burbank v. Ellis, 7 Neb. 156.

23. (1882.) A certificate of acknowledgment, in which it was shown that the grantors appeared and acknowledged the instrument to be "their voluntary act," omitting the words "and deed," held, to be a substantial compliance with the statute. Spitznagle v. Vanhessch, 13 Neb. 338 (14 N. W. 417).

24. (1892.) A certificate of acknowledgment to a deed which states that "personally came Catherine Tozier, to me known to be the identical person whose name is affixed to the above instrument as grantor, and acknowledged the same to be her voluntary act and deed," which certificate is signed by an officer authorized to take acknowledgments, and attested with his official seal, is valid. Gregory v. Kenyon, 34 Neb. 640 (52 N. W. 685).

25. (1882.) The exact words of the statute are not indispensable to a good certificate of acknowledgment. It is sufficient if a full meaning intended to be conveyed is clearly expressed. Spitznagle v. Vanhessch, 13 Neb. 338 (14 N. W. 417).

was

ас

28. (1881.) Under a statute requiring a chattel mortgage to be acknowledged, on acknowledgment "This mortgage knowledged before me by P. this eighteenth day of September, 1875," is insufficient since it does not recite that the instrument was executed voluntarily. Becker v. Anderson, 11 Neb. 493 (9 N. W. 640).

29. (1882.) A certificate of acknowledgment to a deed, which showed simply that the grantors appeared before the officer taking it "and acknowledged that they executed the same," is invalid. The certificate must show that the execution of the deed is "voluntary" on the part of the grantor. Spitznagle v. Vanhessch, 13 Neb. 338 (14 N. W. 417).

30. (1891.) A certificate of acknowledgment to a real estate mortgage which does not show that the mortgagor voluntarily executed the instrument is invalid. Keeling v. Hoyt, 31 Neb. 453 (48 N. W. 66).

22. (1883.) The certificate of acknowledgment of a notary publie, with his official seal attached, is sufficient proof of the due execution in another state of a deed of real estate lying in this state. Galley v. Galley, 14 Neb. 174 (15 N. W. 318).

33. (1899.) When the party executing a deed or mortgage knows that he is before an officer having authority to take acknowledgments, and intends to do whatever is necessary to make the instrument effective, the acknowledging officer's official certificate will be, in the absence of fraud, conclusive in favor of those who in good faith rely on it. Council Bluffs Savings Bank v. Smith, 59 Neb. 90 (80 N. W. 270; 80 Am. St. Rep. 669).

Defects and irregularities.

34. (1901.) A mere irregularity in taking an acknowledgment does not invalidate it. Morris t. Linton, 61 Neb. 537 (85 N. W. 565).

34a. (1896.) Where a deed to a homestead from a husband and wife to a third person, the grantee to reconvey to the wife, was actually acknowledged by a notary in Nuckolls county, but by mistake he certified that he was a notary of Webster county where the deed was recorded, the rights of a judgment creditor of the husband are not thereby affected, and the deed having been actually signed, acknowledged and delivered, conveys the legal title. Roberts v. Robinson, 49 Neb. 717 (68 N. W. 1035; 59 Am. St. Rep. 567).

35. (1883.) The objection to a deed, that the acknowledgment was taken before a county clerk, is cured by the second section of the act approved Feburary 24, 1883. Davis v. Huston, 15 Neb. 28 (16 N. W. 820). Acknowledgment of officer not using seal. 36. (1880.) An acknowledgment by an officer not using an official seal must have attached a certificate of the clerk of a court of record, or other certifying officer, showing that the acknowledging officer was at the time such an officer; that he was acquainted with his handwriting, and believed the

signature to be genuine; and that the acknowledgment and execution are according to law. Incin r. Weich, 10 Neb. 479 (6 N. W. 7631.

Foreign acknowledgment.

37. (1876.) A deed of conveyance of land must be executed and acknowledged as directed by the statutes of the state in which the land is situated; if the deed is executed in another state and the statute provides that it shall be executed and acknowledged according to the laws of such state, it must be so executed. Roode v. State, 5 Neb. 174 (25 Am. Rep. 475).

38. (1876.) 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. Hoadley v. Stephens, 4 Neb. 431. [Overruled to commissioner. 47 Neb. 592-612.]

39. (1881.) When a deed is made in another state the certificate of acknowledg ment of a notary public thereto, duly attested by his official seal, entitles such deed to be recorded without further authentication. Green v. Gross, 12 Neb. 117 (10 N. W. 459).

40. (1895.) The first paragraph of the syllabus in Hoadley v. Stephens, 4 Neb., 431, is overruled to the extent in which it relates to the acknowledgment of deeds in another state than this, before a commissioner of deeds for this state. Omaha Real Estate & Trust Co. v. Kragscow, 47 Neb. 592 (66 N. W. 658).

41. (1901.) Under section 6, chapter 73, Compiled Statutes, providing for the execu tion of deeds in a foreign country, the word "consul" means any person invested by the national government with the functions of consul-general, vice-consul-general, consul or vice-consul. Morris v. Linton, 61 Neb. 537 (85 N. W. 565).

Parol evidence to show acknowledgment.

42. (1904.) That an acknowledgement, by a husband and wife, of an instrument conveying a homestead, or placing an incumbrance thereon, should appear from the instrument itself in the form of a certificate of the officer before whom the acknowledg