the acknowledgment or proof purports to have been taken by an officer having an official seal, there be a statement in the certificate of acknowledgment or proof that the same is made under his hand and seal of office, and such statement shall be presumptive evidence that the affixed seal was attached to the original certificate. [Amended 1875, 90.]

SEC. 21. [Lost deed and record.]-The copy of any record, or of any recorded deed or instrument, attested and authenticated in such manner as would by law entitle it to be read in evidence, may, on proof of the loss of the original and of the record, be again recorded, and such record shall have the same effect as the original record. [R. S. § 24.]

SEC. 22. [Wills-Record.]—Any will of real estate which shall have been duly proved in the county court of any county in this state, and any such will, the proof of which shall be contested in that court, and carried up by appeal, or otherwise, and the validity of which shall be finally established, may, with the certificate of proof annexed thereto, be recorded in the office of the register of deeds of the county or counties where the said real estate lies, in the same manner and with like effect as in case of deeds. [Amended 1887, chap. 30.]

SEC. 23. [Decree-Judgment-Record-Evidence.]-Any exempli fication of any decree, or judgment in partition on final decree in chancery affecting real estate, may in like manner be recorded in the office of the register of deeds in any county in which any real estate described therein may be situated; such record or exemplification thereof shall be received in evidence, and shall be as effective in all cases as the original exemplification would be if produced, and shall be open to the same objections. [Id.]

SEC. 24. [Same-Index.]-On recording any such will, exemplification, or decree, the register of deeds shall index the same with the indices of deeds, and as near as may be as deeds are indexed, placing the name of the devisor petitioner or plaintiff, with the grantors, and the devisee or defendant with the grantees. [Id.]

SEC. 25. [Deed intended as mortgage.]-Every deed conveying real estate, which, by any other instrument in writing, shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage; and the person for whose benefit such deed shall be made, shall not derive any advantage from the recording thereof, unless every writing operating as a defeasance of the same, or explanatory of its being designed to have the effect only of a mortgage, or conditional deed, be also recorded therewith, and at the same time. [R. S. § 29.]

SEC. 26. [Mortgage Discharge.]—Any mortgage that has been, or may hereafter be recorded, may be discharged by an entry on the margin of the record thereof, signed by the mortgagee, or his legal personal representive or assignee, acknowledging the satisfaction of the mortgage, in the presence of the register of deeds, or his deputy, who shall subscribe the same as a witness, and such entry shall have the same effect as a deed of release duly acknowledged and recorded. [Amended 1887, chap. 30.]

SEC. 27. [Same.]-Any mortgage shall also be discharged upon the record thereof, by the register of deeds in whose custody it shall be, whenever there shall be presented to him a certificate executed by the mortgagee, his legal personal representative or assignee, acknowledged or proved and certified as hereinbefore prescribed, to entitle conveyances to be recorded, specifying that such mortgage has been paid, or otherwise satisfied and discharged. [Id.]

SEC. 28. [Same-Index.]-Every such certificate, and the proof or the acknowledgment thereof shall be indexed in the order of mortgages, and recorded at full length;

SEC. 25. A deed absolute, if given for security, is a mortgage, as between the parties and all persons having knowledge of the purpose for which it is given. 1 Neb. 343. To vary the legal import of a deed absolute, the evidence of the intention of the parties must be clear and conclusive, before equity will determine such deed to be a mortgage security only. 3 Neb. 145. 4 Neb. 99. A conveyance in the form of a deed of trust to secure payment of money, and in case of failure to pay the trustee shall sell, or upon payment re-convey, is in effect only a mortgage. 4 Neb. 318. 6 Neb. 389.

and in the record of discharge, the register of deed shall make a reference to the book and page where the mortgage is recorded. [Id.]

SEC. 29. [Refusal to discharge.]-If any mortgagee, or his personal representative or assignee, after full performance of the condition of the mortgage, whether before or after a breach thereof, shall for the space of seven days after being thereto requested, and after tender of his reasonable charges, refuse or neglect to discharge the same as provided in this chapter, or to execute or acknowledge a certificate of discharge or release thereof, he shall be liable to the mortgagor, his heirs, or assigns, in the sum of one hundred dollars damages, and also for all actual damages occasioned by such neglect or refusal, to be recovered in the proper action. [R. S. § 34.]

SEC. 30. [Application of act to public lands.]-The provisions of thischapter shall apply to the conveyance of all claims and improvements upon the public lands. [R. S. § 35.]

SEC. 31. [Land in adverse possession.]-No grant or conveyance of lands, or interest therein, shall be void for the reason that at the time of the execution thereof, such lands shall be in the actual possession of another, claiming adversely. [R. S. § 36.]

SEC. 32. [Certificate of record on instrument.]-The register of deeds shall mark upon the deed or instrument, after recording the same, the book and page in which the same is recorded. [Amended 1887, chap. 30.]

SEC. 33. [Commissioners of deeds-Acts legalized.]-The governor of this state may commission so many commissioners in such of the states and territories of the United States, and in the District of Columbia, as he may deem expedient, in any one city or county, who shall continue in office four years, and shall have authority to take the acknowledgment and proof of the execution of any instrument in writing, conveying real estate, or any interest therein, or affecting the same, lying in this state, or of any assignment, transfer, power of attorney, satisfaction of a judgment, or of a mortgage, or of any other writing to be used or recorded in this state; and also to administer oaths and affirmations necessary to the proper discharge of their duties. All acts performed in pursuance of the laws of this state or the laws of the territory of Nebraska, by commissioners of deeds heretofore appointed by the governor of the territory of Nebraska, shall be deemed and held to be valid and binding in law. [Amended 1867, 51.]

SEC. 34. [Same-Acknowledgments before.]-Any acknowledgment or proof taken in pursuance of the powers hereby conferred, and in accordance with the provisions of this chapter, and certified by the commisioner, under his hand and official seal, upon the instrument mentioned in the preceding section, shall when authenticated as hereinafter mentioned, be entitled to be recorded in the office of the county clerk, and shall have the same force and effect, and be as available as if taken or made before any officer by this chapter authorized to take proofs or acknowledgments, residing in this state; and any affidavit or affirmation so made before any such commissioner, certified and authenticated as aforesaid, may be read in evidence, and shall be as good and effectual to all intents, as if taken and certified by an officer authorized to administer oaths residing in this state. [R. S. § 39.]

SEC. 35. [Commissioner-Oath-Seal.]-Every commissioner appointed as aforesaid, shall, before he performs any duty by virtue of his appointment and of this law, take and subscribe an oath or affirmation before some officer authorized to administer the same, well and faithfully to perform all the duties of such commissioner, under and by virtue of the laws of Nebraska, which oath or affirmation shall be filed in the office of the secretary of state of Nebraska. And every such commissioner shall also, before he enters upon the duties of his office, cause to be prepared an official seal, on which shall be designated his name, and the words, "a commissioner for Nebraska," together with the name of the state or territory, city, and county within which he shall reside, and for which he shall have been appointed, and shall transmit to and cause to be filed in the office of said secretary, a distinct impression of such seal, taken upon

wax or some other substance capable of receiving and retaining a clear impression, together with his signature in his own proper handwriting. [R. S. § 40.]

SEC. 36. [Same-Certificate of authentication.]-When any deed or other instrument shall be proved or acknowledged, or any oath or affirmation shall be taken before any commissioner appointed by virtue of this chapter, before it shall be entitled to be used, recorded, or read in evidence, in addition to the preceding requisites, there shall be subjoined or affixed to the certificate, signed and sealed by each commissioner as aforesaid, a certificate under the hand and official seal of the secretary of state of Nebraska, certifying that such commissioner was, at the time of taking such proof or acknowledgment, or of administering such oath or affirmation, duly authorized to take the same, and that the secretary is acquainted with the handwriting of such commissioner, or has compared the signature to such certificate with the signature of such commissioner deposited in his office, and has also compared the impression of the seal affixed to such certificate with the impression of the seal of such commissioner deposited in his office, and that he verily believes the signature and the impression of the seal of the said certificate to be genuine. [R. S. § 41.]

SEC. 37. [Same--Time-Date.]-No commissioner appointed under or by virtue of this law, shall be authorized to take the proof or acknowledgment of any deed or instrument, or to administer any oath or affirmation at any place other than that within which he shall reside, or for which he shall have been appointed; and every certificate of any such commissioner to any proof or acknowledgment taken before him, or to any oath or affirmation administered by him, shall specify the day on which, and the city, or town, and county, within which the same was taken, or administered; and without such specification, the said certificate shall be void. [R. S. § 42.]

SEC. 38. Acknowledging officer-Duty.]-No acknowledgment of any conveyance having been executed shall be taken by any officer, unless the officer tak ing the same shall know, or have satisfactory evidence that the person making such acknowledgment is the person described in, and who executed such conveyance. [R. S. § 43.]

SEC. 39. [Mortgage-Assignment.]—The recording of an assignment of a mortgage shall not, in itself, be deemed notice of such assignment to the mortgagor, his heirs, or personal representatives, so as to invalidate any payment made by them, or either of them, to the mortgagee. [R. S. § 44.]

SEC. 40. [U. S. land office certificates Patents-Record.]—All certificates of the register and receiver of any United States land office, of the entry or purchase of any tract of land, and all letters patent of land from the United States of land lying in this state, shall be recorded in the county in which the land lies, and where any patent as above contains descriptions of land lying in more than one county, or otherwise, it shall be lawful to record in any county the whole of the descriptions of land situated therein without recording all descriptions contained in said patent; Provided, That such record shall include all the granting or conveying part or language of said patent, and the records of such certificates and patents, and all copies thereof so recorded, duly certified by the register of deeds, shall be prima facie evidence of the existence of such certificates and patents and conclusive evidence of the existence of such record. [1883, chap. LXIII. Amended 1887, chap. 30.]

SEC. 41. [Fraudulent violations of act-Penalty.]-Every officer within this state, authorized to take the acknowledgment or proof of any conveyance, and every county clerk, who shall be guilty of knowingly stating an untruth, or guilty of any malfeasance or fraudulent practice in the execution of the duties proscribed for them by law, in relation to the taking or the certifying the proof or acknowledgment, or the recording or certifying of any record of any such conveyance, mortgage, or instrument in writing, or in relation to the canceling of any mortgage, shall, upon conviction, be adjudged guilty of a misdemeanor, and be subject to punishment by fine not

SEC. 36. See sec. five this chapter, and note.

SEC. 38. Acknowledgment sufficient if it shows requirements of statute have been complied with. 7 Neb. 163.

exceeding five hundred dollars, and imprisonment not exceeding one year, and shall also be liable in damages to the party injured. [R. S. § 46.]

SEC. 42. [Deeds of married women.]-Any real estate belonging to a married woman, may be managed, controlled, leased, devised, or conveyed by her by deed, or by will, in the same manner and with like effect as if she were single. [R. S. § 47.]

SEC. 43. [Dower.]-To convey her right of dower, she must execute a deed with or without her husband. [R. S. § 48.]

SEC. 44. ["Real estate" defined.]-The term "real estate," as used in this chapter, shall be construed as co-extensive in meaning with "lands, tenements, and hereditaments," and as embracing all chattels real, except leases for a term not exceeding one year. [R. S. § 49.]

SEC. 45. [Purchaser" defined.]—The term "purchaser," as used in this chapter, shall be construed to embrace every person to whom any real estate or interest therein, shall be conveyed for a valuable consideration, and also any assignee of a mortgage or lease, or other conditional estate. [R. S. § 50.]

SEC. 46. ["Deed" defined.]-The term "deed," as used in this chapter, shall be construed to embrace every instrument in writing, by which any real estate or interest therein is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or equity, except last wills, and leases for one year or for a less time. [R. S. § 51.]

SEC. 47. [Power of attorney.]-The preceding section shall not be construed to extend to a letter of attorney, or other instrument containing a power to convey lands as agent or attorney for the owner of such lands; but every such letter or instrument, and every executory contract for the sale or purchase of lands, when proved or acknowledged in the manner prescribed in this chapter, may be recorded in the office of the register of deeds of any county in which the real estate to which such power or contract relates may be situated; and when so proved or acknowledged, and the record thereof when recorded, or the transcript of such record, may be read in evidence, in the same manner and with the like effect as a conveyance recorded in such county. [Amended 1887, chap. 30.]

SEC. 47 a. [Record of copy of power of attorney.]—That a duly au thenticated copy of the record of any power recorded in this state shall be entitled to record, and shall operate to all intents and purposes, having the same force and effect, as the record of the original instrument. Such copy shall be deemed duly authenticated only when there shall be attached thereto a certificate of the register of deeds under his hand and official seal, setting forth that the same is a true copy of the original record in his office, the date of the filing of the original instrument, and the volume and page where the same is recorded; Provided, That it shall be unlawful for any register of deeds in this state to give a certified copy of any power of attorney which has been revoked and the revocation thereof filed in his office, without also stating the facts of such revocation in his certificate, and any person violating any of the provisions of this act shall be fined in any sum not exceeding one hundred dollars. [1883, chap. LXIV. Amended 1887, chap. 30.]

SEC. 48. [Married woman-Covenants of husband.]-A married woman shall not be bound by any covenant in a joint deed of herself and husband. [R. S. § 53.]

SEC. 49. [Words of inheritance.]-The term "heirs," or other technical

SEC. 42. See chapter entitled "Married woman," Although a married woman is not liable on her note except the same be given on the faith and credit and with reference to her separate estate, yet a mortgage given by her on her property or her dower interest in her husband's property is good. 8 Neb. 269.

SEC. 44. School land lease not real estate. 26 Neb. 313.

SEC. 46. Cited 10 Neb. 482, 513.

SEC. 47. See 5 Neb. 302. See also SEC. 19 this chapter,

SEC. 47a. "An act providing for the recording of a duly authenticated copy of the record of any power of attorney recorded in the county clerk's office in any county of the state." Passed and took effect June 27, 1883. SEC. 48. Abrogated by chapter 53. See 17 Neb. 661.

SEC. 49. Cited 25 Neb. 221.

words of inheritance, shall not be necessary to create or convey an estate in fee simple. [R. S. § 52.]

SEC. 50. [All interest conveyed.]-Every conveyance of real estate shall pass all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used. [R. S. § 55.]

SEC. 51. [After acquired interest.]-When a deed purports to convey a greater interest than the grantor was at the time possessed of, any after acquired interest of such grantor to the extent of that which the deed purports to convey, shall accrue to the benefit of the grantee; Provided, however, That such after acquired interest shall not inure to the benefit of the original grantor, or.his heirs or assigns, if the deed conveying said real estate was either a quit-claim or special warranty, and the original grantor in any case shall not be stopped from acquiring said premises at judicial or tax sale, upon execution against the grantee or his assigns, or for taxes becoming due after date of his conveyance. [Amended 1875, 90.]

SEC. 52. [Estates in futuro.]-Estates may be created to commence at a future day. [R. S. § 57.]

SEC. 53. [Construction of instrument.]-In the construction of every instrument creating or conveying, or authorizing or requiring the creation or conveyance of any real estate, or interest therein, it shall be the duty of the courts of justice to carry into effect the true interest of the parties, so far as such intent can be collected from the whole instrument, and so far as such intent is consistent with the rules of law. § 58.]

SEC. 54. [Repealed Laws 1889, chap. 58.]

[R. S.

SEC. 55. [Legal title in mortgagor.]-In the absence of stipulations to the contrary, the mortgagor of real estate retains the legal title and right of possession thereof. [R. S. § 85.]

SEC. 56. [Agent.]-Every instrument required by any of the provisions of this chapter to be subscribed by any party, may be subscribed by his agent thereto authorized by writing. [R. S. § 84.]

SEC. 57. [Action to quiet to title.]-That an action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons, who

SEC. 50. Cited 6 Neb. 269. 23 Id. 353, 475.
SEC. 53.

SEC. 55. 10 Neb. 428. Neb. 463.

SEC. 57.

Cited 23 Neb. 473.

The mortgagee has no interest in the property which he can convey by lease. 10 Neb. 302.
And see
Covenants running with the land do not pass to the mortgagee as assignee. 11 Neb. 252. See 24

"An act to quiet title to real estate." G. S. 882. Took effect Feb. 24, 1873. Jurisdiction in case stated. 16 Neb. 411. 20 Id. 489. 21 Id. 215. 25 Id. 184. Jurisdiction of court; trial by jury not allowed nor two trials; pleading. 10 Neb. 187. Discretion of court in allowing jury trial. 15 Neb. 108. Lies by holder of tax deed. 25 Neb. 619. Lies when plaintiff has leasehold estate; petition should show nature of defendant's claim. 15 Neb. 66. Petition should allege that plaintiff owns or claims land or has title thereto. 15 Neb. 184. Petition should allege that plaintiff owns or claims land or has title thereto. 15 Neb. 184. Petition examined and Held, Sutfcient. 20 Neb. 415. Facts stated and plaintiff held not estopped to deny title of defendant. 25 Neb. 569. Evidence in particular case, Held, Inadmissible. 25 Neb. 430. General rules. 7 Neb. 375. Plaintiff claiming upon two titles, if he can establish either one of them, it will be sufficient, 11 Neb. 168. May be maintained by party in possession having legal title. 7 Neb. 375. May be maintained by lessee of state lands. 15 Neb. 63. Does not lie to remove mortgage given to secure repayment to ceunty of county bonds, without first paying off mortgage or returning value of bonds. 15 Neb. 180. Decree quieting title may be rendered in action for specific performance. 19 Neb. 116. In case stated, cloud on title removed 19 Neb. 626. 22 Id. 248. Conveyance by debt or after levy of attachment does not cast cloud on title of purchasers at subsequent execution sale. 11 Neb. 341. Does not lie to recover real estate by one claiming legal title thereto against one in possession claiming an estate therein. 21 Neb. 215. Where a party out of possession of real estate brings action to quiet title, and the defendant answers alleging a cloud upon his title, caused by the plaintiff's deed, and prays for a decree canceling the same, the court will have jurisdiction to determine the title of the respective parties. A defect which appears on the face of the petition should be taken advantage of by demurrer. 21 Neb. 215. Fraud; redemption by junior incumbrancer; statute of limitations. 21 Neb. 420. Minor heirs as defendants not liable for costs. 21 Neb. 412. Plaintiff instituted action to quiet title to certain real estate, to which defendants claimed title through a line of con▼evances originating in a sheriff's deed and on executions against plaintiff. Deed to defendants from their grantor, by error in description, included a part of plaintiff's land not included in the sheriff's deed. Held, That plaintiff was entitled to a decree quieting title to that part not conveyed by the sheriff. 23 Neb. 349. Under facts stated. Held, That plaintiff could not maintain action against subsequent purchasers for value. upon the ground of fraud and conspiracy on the part of his attorney with the attorneys for the execution plaintiffs, without proving that the defendants had knowledge of such alleged fraud prior to their purchase of land and payment ther for, even though they held title by deed which did not contain the usual covenants of warranty. 23 Neb. 355. All persons having an adverse interest may be made defendants. 24 Neb. 317. Falls under the equity rule that the equitable rights of the defendant growing out of or connected with the subject matter of the suit will be protected.

21 Neb. 584.