§ 76-235 — Deed; receipt in evidence; recording; proof

Nebraska § 76-235

• Jurisdiction: Nebraska
• Ch. 76: Real Property

Text

Every deed acknowledged or proved, and certified by any of the officers named in sections 76-217 , 76-219 , 76-220 , 76-226 and 76-227 , and authorized to take acknowledgments, including the certificate specified in section 76-242 , 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 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.

Legislative History

Source: R.S.1866, c. 43, § 13, p. 282; R.S.1913, § 6210; C.S.1922, § 5609; C.S.1929, § 76-215; R.S.1943, § 76-235. Annotations: 1. Acknowledgment 2. Recording 3. Miscellaneous 1. Acknowledgment A deed of lands situated in this state, executed in another state and acknowledged there before a notary public who attaches his official seal, is presumed to have been executed in accordance with the laws of that state and, though not witnessed, is entitled to be received in evidence in this state without other proof that the grantors therein actually executed and delivered the deed. Jorgensen v. Crandell, 134 Neb. 33, 277 N.W. 785 (1938). Acknowledgment of corporation deed by president, although purporting to be his individual act, was sufficient. Powers v. Spiedel, 84 Neb. 630, 121 N.W. 968 (1909). Certificate of acknowledgment is not conclusive but may be rebutted by any party affected thereby. Rouse v. Witte, 81 Neb. 368, 116 N.W. 43 (1908). A certificate of acknowledgment can be impeached only by clear, convincing and satisfactory proof that the certificate is false and fraudulent. Sheridan County v. McKinney, 79 Neb. 220, 112 N.W. 329 (1907); McGuire v. Wilson, 5 Neb. Unof. 540, 99 N.W. 244 (1904). Mortgage duly acknowledged is admissible in evidence without further proof. McKenzie v. Beaumont, 70 Neb. 179, 97 N.W. 225 (1903). Execution and delivery must be proved to admit in evidence unacknowledged deed. Linton v. Cooper, 53 Neb. 400, 73 N.W. 731 (1898). Certificate must substantially comply with statute. Maxwell v. Higgins, 38 Neb. 671, 57 N.W. 388 (1894). Certificate of authority must be in due form. Irwin v. Welch, 10 Neb. 479, 6 N.W. 753 (1880). Acknowledged deed is admissible without evidence of authenticity of signatures. Brown v. Collins, 2 Neb. Unof. 149, 96 N.W. 173 (1901). 2. Recording Recorded deed may be read in evidence without further proof. Pierce v. Fontenelle, 156 Neb. 235, 55 N.W.2d 658 (1952). Where deed was entitled to be recorded, and it, or the record thereof, was receivable in evidence without further proof, and was only instrument that had been of record for many years covering land, such deed was defect in title, although not connected with chain of title from patentee. Robinson v. Bressler, 122 Neb. 461, 240 N.W. 564 (1932). Whenever deed is lost, a certified transcript of the record of a deed duly recorded may be read in evidence with like force and effect of original deed. Thams v. Sharp, 49 Neb. 237, 68 N.W. 474 (1896). It is discretionary with trial court to admit record instead of original. Rupert v. Penner, 35 Neb. 587, 53 N.W. 598 (1892); Buck v. Gage, 27 Neb. 306, 43 N.W. 110 (1889); Delaney v. Errickson, 10 Neb. 492, 6 N.W. 600 (1880). Record of deed may be shown without inquiry as to the original whenever evidence indicates that the original is not in the possession of or under the control of the party offering such proof. Staunchfield v. Jeutter, 4 Neb. Unof. 847, 96 N.W. 642 (1903). 3. Miscellaneous Deed alone does not prove title in grantor. Lesieur v. Custer County, 61 Neb. 612, 85 N.W. 892 (1901).