HENDERSON v. GREWELL, 8 Cal. 581

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This was an action of ejectment. There are several questions raised in the case, but the decision of one or two points will render any notice of the others unnecessary. The first question regards the sufficiency of the certificate of the notary, wherein he states that Samuel M.

Henderson was “ known to him to be the identical person whose name is subscribed to the foregoing instrument of writing, and acknowledged the same to be his signature, and that he executed the same for matters and things therein contained.” It is well settled that the exact form of the certificate given in the statute need not be followed. All that is necessary, is a substantial compliance with the statute. The seventh

section provides, that the certificate shall “ state the fact of acknowledgment, and that the person making the same, was personally known to the officer granting the certificate, to be the person whose name is subscribed to the conveyance as a party thereto, or was proved to be such,” etc. Under the provisions of this section, there are two essential facts that must be stated in the certificate : 1. The fact of acknowledgment. 2. The identity of the person. The fact of acknowledgment must be stated. Bryan v. Ramirez and others, October, 1857. The identity of the party must be stated. Kelsey v.

Dunlap, January, 1857. The word “personally” need not be inserted, because not found in the statutory form. Welch v. Sullivan, October, 1857. The form given in the statute is sufficient, but not essential, so the requisites stated in the fifth and seventh sections are contained in the certificate. The words “ described in, and who executed ” are not essential. 2 Cowen, 567. The seventh

section does not require them to be inserted. The certificate in this case sufficiently states the identity of the party. The fact of acknowledgment is also sufficiently stated. It is true that it does úot state that the party acknowledged that he executed the instrument “ freely and voluntarily,” but this is not essential, and the voluntary execution of the instrument must be presumed, from the fact that he acknowledged that he “executed the same.” The instrument, then, being properly acknowledged and recorded, was notice to all parties concerned.

And whether a mortgage or not, it gave the defendant, Grewell, the right of reentry upon the failure of Samuel M. Henderson to pay the notes. The plaintiff having entered under Samuel M. Henderson, and in subordination to his title, cannot question his right to execute the instrument. If Grewell had the right to re-enter upon the possession of Samuel M. Henderson, he had equally the right to re-enter upon the possession of the plaintiff.

The party who has the title, and the present right of possession, can always peaceably enter into possession. of the premises, and cannot toe held liable for so doing, on trespass or ejectment. If he uses force, he will be liable to the remedy of forcible entry and detainer. In the case of Grewell v. Henderson, 1857, we expressed the opiniqn that the instrument was not a mortgage. It was not necessary then to decide that point, as the decision rested upon another ground. ¡Neither is it necessary, in this case, to decide whether the instrument was a mortgage or not.

The Court did not err in granting a new trial, and the judgment is affirmed.