SEC. 5. [Penalty.]—Any railroad corporations violating any of the provisions of this act, shall, upon conviction thereof, forfeit and pay for each offense not less than two hundred dollars nor more than one thousand dollars, such forfeiture to be paid into the school fund of the county in which such forfeiture is imposed, and shall also be liable to the party injured for all damages he or she sustained thereby.

SEC. 6. [Act construed.]-The term, "railroad corporation," contained in this act shall be deemed and taken to mean all corporations, companies, or individuals now owning or operating, or which may hereafter own or operate any railway in whole or in part in this state, and the provisions of this act shall apply to all persons, firms, and companies, and to all associations of persons, whether incorporated or otherwise, that shall do business as common carriers upon any of the lines of railway in this state (street railways excepted), the same as to railroad corporations hereinbefore mentioned.

ARTICLE X.-TITLE TO REAL ESTATE.

SECTION 1. [Payment-Deed.]—That all railroad companies organized under the laws of this state which may have heretofore taken or may hereafter take any of the educational, saline, university, agricultural college, or other lands belonging to the statefor right of way, stations, turnout, side tracks, or other necessary appurtenances to a railroad shall be entitled to a deed in fee simple for the land so taken, upon paying into the county treasury of the county where the land is situated the full value of the lands so taken, together with the amount for damages that the state shall sustain, together with the damages to lessee. [1887, chap. 55.]

SEC. 2. [Appraisers.]-For the purpose of ascertaining the value of the lands so taken or to be taken, the county commissioners of the county, or in case the county is acting under township organization, then three supervisors, to be appointed by their chairman, shall constitute a board of appraisers, and shall each be entitled to receive the sum of three (3) dollars per day for each day actually employed and ten cents per mile for each mile necessarily traveled, to be paid by the railroad company.

SEC. 3. [Appraisement.]-On application in writing to said board of appraisers by any railroad company desiring the appraisal of any of the lands mentioned in section one, it shall be the duty of said board to carefully inspect and view said land and appraise the value per acre of the lands at the time the same were so taken, together with any damages the state may sustain by reason thereof.

SEC. 4. [Report-Damages.]-The board shall make a report in writing to the county treasurer, of the value of lands so taken, together with the amount of damages, if any, the state may sustain, and on payment of said amounts by the railway company into the county treasury, the county treasurer shall give the same receipt as he is required to give when payment is made of part principal on a contract of purchase, and the county clerk shall transmit a duplicate to the commissioner of public lands and buildings, to be by him entered of record as in other cases of payment on educational lands.

SEC. 5. [Plat-Deed.]-The railway company shall file a plat of the land so taken with the commissioner of public lands and buildings, who shall prepare a deed to be executed by the governor, conveying said lands to said company, and the amount of lands so taken shall be marked sold, by the said commissioner from the section or part of section from which it has been sold.

SEC. 6. [Leased or sold lands-Price.]-Where any of the lands desired to be so taken are held under contract of sale or lease, the amount of lands so taken shall be deducted from the total amount mentioned in said contract, and the amount of cash so paid in on contracts of purchase shall be credited on the contract, first to the

ART. X. "An act to provide the manner in which the title may be acquired by railroad companies, incorporated under the laws of this state, for right of way and other necessary purposes, across the educational and other lands of this state." Laws 1887, chap. 55. Took effect March 31, 1887. Under this act, only railroad companies organized under the laws of this state have the right to condemn right of way across lots owned by the stite. 22 Neb. 640.

payment of the number of acres according to the contract price, and the residue as a payment on the balance of the land; Provided, however, That all damages that may be assessed by reason of injury done to any improvements on said land, or possession thereof, shall be paid to the person holding the contract of purchase or lease; Provided further, That not more than one hundred (100) feet will be taken for right of way, and not more than twenty (20) acres for all other purposes, on any one tract of six hundred and forty (640) acres; Provided further, That the lands so taken shall not be sold for less than seven (7) dollars per acre, nor less than the price per acre specified in the contract of purchase.

ARTICLE XI.-SALE OF STATE LAND.

SECTION 1. [Lands heretofore taken.]-Any railway company incorpo rated under the laws of this state, which shall have constructed its railway or located or hereafter may construct or locate its grounds for stations, machine shops, depot grounds, turnouts, side tracks, warehouses, and other appurtenances to a railroad, incident to its organization, across or on any state lands, as provided by section 105, of chapter 16, of the compiled statutes of Nebraska of 1885, may apply in writing to the board of public lands and buildings, for valuation and conveyance thereof, filing with such application a plat and description of such lands. [1887, chap. 57.]

SEC. 2. [Appraisement.]-On such application being made, the commissioner of public lands and buildings shall cause a copy of such application and plat to be forwarded to the chairman of the board of county commissioners, or supervisors of the county where such lands lie, and it shall be the duty of such county commissioners, or a majority of them, or if the county is under township organization, three of the supervisors to be designated by said board of supervisors or a majority of such designated supervisors, to view the lands so desired to be purchased by such company, and return a true and correct value of such land, under oath, the material facts in which return shall be communicated to such board of county commissioners or supervisors, and entered of record in their proceedings.

SEC. 3. [Payment-Deed-Damages.]-After the foregoing proceedings have been had, the applicant to purchase shall, within ninety (90) days after such appraisement, pay to the state treasurer the appraised value of such land, and shall then be entitled to receive the deed for the same upon forwarding the proper evidence of such appraisal and receipt of the state treasurer to the commissioner of public lands and buildings; Provided further, That the damage accruing to any occupant or owner or other person, who may reside or have improvements on said land previous to the filing of such plat, or the appraisement of such damages, shall be paid by said railroad company, such damages to be determined either by mutual agreement between the party sc owning or occupying said lands, and such railway company, or by appraisement as in other cases.

ART. XI. "An act to provide for the valuation and sale of state lands, on which any railway company may have located its road, stations, or works." 1887, chap. 57. Took effect July 1, 1887.

CHAPTER 73.-REAL ESTATE.

SECTION 1. [Deeds-Execution—Acknowledgment.]-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. [R. S. 280. G. S. 872. Amended 1887, chap. 61.]

SEC. 2. [Deeds—Acknowledgment.]—The grantor must acknowledge the instrument to be his voluntary act and deed.

SEC. 3. [Acknowledgment before whom.]-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.

SEC. 4. [Same in another state.]-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, chap. 61.]

SEC. 44. [Prior deeds legalized.]-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. [1887, § 4, chap. 61.]

SEC. 5. [Same-Authentication.]-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 NOTE-Chap. XLIII. R. S, 280. Chap. 61, G. S. 872. Secs. 18, 19, 20, 28, and 30 of the original chapter were substantially re-enacted in 1879, and appear in chapter 18. Secs. 60-84 of the original chapter are transferred and appear in chapter 32.

SEC. 1. The presence of the attesting witness, at the time the instrument is subscribed by the parties thereto, is not essential if he is immediately afterwards told by them that such instrument is their agreement, and is by them requested to subscribe the same as a witness. 4 Neb. 121, Weakness of understanding alone not sufficient to avoid a deed. 2 Neb. 116. 4 Id. 117. 6 Id. 484. 12 Id. 418. Deeds of assignment for benefit of creditors must be executed as required by this section. 10 Neb. 513. Semble, A lease need not be. 10 Neb. 605. 15 Id. 170. Taken before notary, and seal attached, no further authentication necessary. 12 Neb. 124. 14 Id. 178. Semble, That in Illinois no witness is required. 12 Neb. 124. One witness required in this state; grantor must acknowledge it to be his voluntary act and deed. Id. Delivery of deed. 8 Neb. 371. 10 Neb. 5, 129. Mistake or abbreviation in name of grantee. 7 Neb. 2. Execution by agent. 5 Neb. 304. And see 5 Neb. 174. Witness to a deed must be without a direct, certain, legal interest therein. 24 Neb. 201.

SEC. 2. Acknowledgment is no part of the deed itself. 7 Neb. 163. Personally appeared, etc., A. B., Mayor of ," etc., is a sufficient statement of identity of grantor; it is grantor's deed as mayor, and not his individual deed. Id. 163, 164. Functions stated; construed liberally; will be held sufficient although it fails to follow words or forms prescribed. Id. 11 Id. 497. But either the language of the statute or words of like import must be used. 15 Neb. 340. Must be voluntary. 11 Neb. 497. 48 N. W. R. 66. Certificate must so show. 13 Neb. 40. If certificate shows it to be the "voluntary act" of grantor, omission of words "and deed" will not vitiate the instrument. Id. Acknowledgment not necessary to pass title. 12 Neb. 123, 155. 4S N. W. R. 66. Acknowledgment defined. 19 Neb. 211. Certificate cannot be impeached except for fraud, etc. 17 Neb. 119.

SEC. 3. County clerk may take, 2 Neb. 84. [This decision under R. S., 44. The act was repealed in 1879, but reenacted in 1883, and prior acts legalized. Ante chap. 18, secs. 90 a. b. 15 Neb. 32.]

SEC. 5. See sec. 36, this chapter. If 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 the certificate mentioned in the proviso to this section. 4 Neb. 435. A deed executed before a justice of the peace in Virginia, there being no evidence that it was executed and acknowledged according to the laws of Virginia, Held, properly excluded. Id. See also 5 Neb. 174. The record of a mortgage executed in another state where the acknowledgment is taken by an officer not using an official seal, and not certified to as required in the proviso is void and inadmissible in evidence against a subsequent purchaser; but if actual notice of the mortgage by the purchaser be shown, the judgment will not be reversed. 10 Neb. 482.

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.

SEC. 6. [Same in foreign country.]—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 des affairs, 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.

SEC. 7. [Refusal to acknowledge-Proof.]-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.

SEC. 8. [Witnesses to appear.]-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.

SEC. 9. [Same-Failure-Penalty.]-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.

SEC. 10. [Witness absent.]-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 afficer by proving the handwriting of the grantor, and of any subscribing witness to such deed.

SEC. 11. [Unacknowledged deed—Filing.]-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, compared with the original by the register of deeds, which shall, for the space of thirty days 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, chap. 30.]

SEC. 12. [Certificate of acknowledgment.]-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 do 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. SEC. 13. [Evidence-Deeds-Transcript.]-Every

deed acknowledged

SEC. 13. One link in the plaintiff's chain of title was a deed from Shorter to Young, plaintiff's lessor, which deed contained thirty-three descriptions of land in three different counties, while the lease from Young to plaintiff contained but one of said descriptions. Held, that the record of said deed was properly received in evidence on the trial without inquiry as to the possession of the original. 10 Neb. 500. And see 10 Neb. 481. Deed not belonging to party. 27 Id. 306.

or proved, and certified by any of the officers bofore named, including the certificate specified in section five of this chapter, 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.

SEC. 14. [Certificate of acknowledgment-Record.]-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 mention 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.

SEC. 15. [Time of record.]—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. [Amended 1887, chap. 30.]

SEC. 16. [Effect of record-Notice.]-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. [Id.]

SEC. 17. [Irregular acknowledgment.]-They shall not be deemed lawfully recorded unless they have been previously acknowledged or proved in the manner herein prescribed.

SEC. 18. [Deeds, where recorded.]-Deeds and other instruments relating to or affecting the title of real estate in this state, shall be recorded in the county in which such real estate, or any part thereof, is situated; but if such county is not organized, then the county to which such unorganized county is attached for judicial purposes. [R. S. § 21.]

SEC. 19. [Powers-Revocation.]-No instrument containing a power to convey, or in any manner to affect real estate, executed, acknowledged, or proved, and certified and recorded in conformity with the requirements of this chapter, can be revoked by any act of the party, or parties thereto, until the instrument of revocation is executed, acknowledged, or proved and certified, and filed for record with the register of deeds of the county in which the power is recorded. [Amended 1887, chap. 30.]

SEC. 20. [Official seal.]—It shall be no objection to the record of a deed that no official seal is appended to the recorded acknowledgment or proof thereof, if, when

SEC. 15. Neglect of recorder to enter deed of record or on index, will not work prejudice to the title of grantee, even in favor of a subsequent purchaser without actual notice. 22 Neb. 730.

SEC. 16. The proper registration of a conveyance operates as constructive notice to all subsequent purchasers, and is as effectual in law as personai notice. 6 Neb. 269. The record is only notice of the lands described in the instrument, but where there is an omission by mistake and a judgment is subsequently recovered against the mortgagor the lien of the judgment creditor is subject to the equity of the mortgage. 7 Neb. 289. (Overruling 1 Neb. 465.) See 7 Neb. 171, 394, 465, 8 Neb. 435, 399. An unrecorded mortgage takes precedence of a subsequent conveyance by the mortgagor without consideration. 9 Neb. 120. Prior deed takes precedence of attachment or judgment if recorded before deed based on such attachment or judgment. 10 Neb. 189. 11 Id. 298. See also 4 Neb. 436. 5 Id. 160. 7 Id. 234. 8 Id. 435. 10 Id. 583, 584. 11 Id. 496. 18 Id. 195. 19 Id. 96.

SEC. 17. Cited 7 Neb. 234. 10 Id. 513. 11 Id. 496. 48 N. W. R. 66.