Frederick Mortensen Hinch Edward Mills John.

American notary and commissioner of deeds manual: the general and statutory ... online

. (page 17 of 50)
Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 17 of 50)
Font size
QR-code for this ebook


where the notary's act proxi-
mately caused the loss, so that he
and his sureties were liable.

Where a notary was induced to
take the acknowledgment of a
man unknown to him, but intro-
duced by a commission merchant,
who was the payee of a note and
a chattel mortgage, which the no-
tary acknowledged, the notary
and his bondsmen could not subse-
quently contend that the payee
named was estopped from claiming
damages because of the false cer-
tificate, and that such estoppel ex-
tended to others to whom the
mortgage and note were indorsed,
as the note was a negotiable in-
strument, and the notary's certifi-
cate was not to the payees of the
mortgage alone, but to all the
world who might choose to take
the papers in the course of busi-
ness. State V. Farmer (Mo. App.),
201 S. W. 955.



44Kleinpeter v. Castro, 11 Oal.
App. 83, 103 Pac. 1090; Wilson v.
aribben, 152 Iowa 379, 132 N. W.
849; State v. Ogden, 187 Mo. App.
39, 172 S. W. 1172; State v. Web-
ber, 177 Mo. App. 60, 164 S. W.
184.

A notary and his sureties are
liable for the making of a false
certificate whether such certificate
is valid or invalid if made in ap-
parent conformity to legally con-
stituted authority but in excess or
perversion thereof, and an injury -^
results therefrom, because in such
case the act is done by color of the
office. State v. Ogden, 187 Mo.
App. 39, 172 S. W. 1172.

Where -a notary forged a deed of
trust and note, and fraudulently
certified to a false acknowledg-
ment, and a person in reliance
thereon parted with his money,
after seeing that the deed of trust
was acknowledged, the fraudulent
certificate was the proximate cause
of the loss, even though the certifi-
cate was only one of the causes
which induced the person to loan
money, and the notary and his
sureties were liable. State v. Og-
den, 187 Mo. App. 39, 172 S. W.
1172.

4«See People v. Marrin, 205 N.
y. 275, 98 N. E. 474, 43 L. B. A.
(N. S.) 754.

46 See ante, » 31-34.

47 Fisher ▼. Meister, 24 Mich.
447.



Digitized by VjOOQIC



laS NOTARIES PUBLIO. [§ 252

the persoxiB therein mentioned appeared before the notary
and acknowledged the instrument. There is no obligation
to go out and verify the statements of the notary, and there
can be no contributory negligence in relying on such state-
ment.**

§ 252. — ^Necessity of Personal Appearance of Person Ac-
knowledging. — Notaries public, in the performance of their
duties, and particularly in the taking of acknowledgments,
continually meet persons, who do not understand the signifi-
cance and importance of the taking of acknowledgments, and
the performance of similar duties. Thus notaries are fre-
quently invited to fill in acknowledgments, or to certify to
facts, and even take affidavits, without the appearance of the
subscriber before them. Frequently such invitations are from
business men who regard the formalities of the law as a species
of "red tape" and who, because of being busy men, do not
want to take the time to fully comply with the law. But the
conscientious, wise notary will steadfastly adhere to the strict
performance of his duties, and will not succumb to the tempta-
tions offered in this respect. It will be apparent after
thought, that if notaries are careless of the person appearing
before them, the door is open to innumerable frauds, and the
notary may be subjected to serious damage suits, if not penal-
ties, as well as to the disgrace of having his commission re-
voked. In the majority of the states, the certificate of
acknowledgment states that the subscriber ** personally ap-
peared" before the notary and acknowledged the instrument.
By calling attention to these words, the notary can usually
satisfy his client that the law demands such appearance, and
avoid argument.

Certifying to a person being present, when he or she is ab-
sent, is negligence, rendering the notary liable on his bond
as for a false certificate.** Such conduct is also to be con-

48 state V. Ogden, 187 Mo. App. Certifying when the party haf

39, 172 S. W. 1172. not appeared before him or when

40 State V. Fallen (Mo. App.), he has not read the instrument ig

196 S. W. 1067; State v. Hallen, a misfeasance and renders him

165 Mo. App. 422, 146 S. W. 1171; Mable. People ex rel. Curtiss v.

Kangley v. Rogers, 85 Waah. 850, Colby, 39 Mich. 456.
147 Pac. 898.



Digitized by VjOOQIC



§ 254] CONVEYANCES AND ACKNOWLEDGMENTS. 139

doomed and treated as serious professional misconduct.**

§ 253. — Taking Acknowledgments by Telephone. — ^In con-
nection with the necessity of appearance of a subscriber be-
fore the notary are the cases where the notary is invited to
take the acknowledgment of persons over the telephone. And
it may be stated in general that most of such cases are where
the acknowledgment to be taken is that of a married woman.
In this connection the authorities differ as to the validity of
such an acknowledgment. By applying the principal that an
acknowledgment is conclusive as to the facts therein stated,
except in cases of fraud, mistake or duress, such an ac-
knowledgment has been held valid." But in some states
the privy examination of a married woman is required to ren-
der the deed valid, when she joins with her husband. Such
examination must be private and apart from the husband,
and a personal interview with the married woman is neces-
sary, so that the oflScer can determine if the deed is freely
and voluntarily acknowledged. Such a privy examination
conducted over the telephone has been held a mere empty
form, and of no effect."

§ 254. —Acknowledgments of Blarried Women; Private
Examination. — The formalities attending the acknowledgment
of married women's conveyances now differ in no material
respect from other deeds, though formerly they involved no
little circumlocution and ceremony. It was, and in some
states is yet, customary to make a personal examination of
the wife, apart from her husband, in which the contents and
nature of the instrument must be made known to her, and
upon such examination she is required to make a ''free and
voluntary" acknowledgment without **fear or compulsion"
and to further state that she does not wish to retract; that
she resigns her dower, waives her homestead rights, etc.
Where such is the law, the courts have usually exacted a
strict and literal compliance with the statutory provisions,

50 In re Napolis, 169 N. Y. App. M Wester v. Hurt, 123 Tenn. 608,
Div. 469, 155 N. T. Supp. 416. 130 S. W. 842, 30 L. R. A. (N. 8.)

51 Banning v. Banning, 80 Oal. 358, Ann. Oas. 1912 329.
271, 22 Pac. 210, 13 Am. St. Bep.

156.



Digitized by VjOOQIC



140



N0TABIB8 PUBLIC.



[§ 266



and material departures or omissions have been held to vitiate
the conveyance.**

§ 256. —Necessity of Conformity with Statutory Provisions.

— Since the office of an acknowledgment is to authenticate the
deed, it must conform to, or substantially follow, the direc-
tions of the statute, in order to be effective. Such conformity
extends to the certifying officer and the form and substance
of the certificate. The certificate is not a part of the deed,
however, and should be reasonably construed. Accordingly,
minor defects may be disregarded and substantial compliance
with the statute is all that is required.**

§ 256. — ^Place for Oertiflcate d Adknowledgmtnt on In-
strument. — ^Printed forms of instruments are frequently used,
the entire contract or deed being on one sheet, and a place for
acknowledgment being provided. In other cases, the certifi-
cate of acknowledgment should follow the ending and signa-
tures afSxed to the main instrument. It has been held that
the acknowledgment must be on the same sheet as the deed,
unless the second sheet contains the testatum clause.**

§ 257. —What Officers May Take Acknowledgments.— The

statutes usually enumerate what officers may take acknowledge
ments, and such directions are final. If a special class of



UWarvelle on Abstraets (4th
Ed.), I 245.

In Illinois, formerly it was es-
sential that in a deed conve3ring
the wife's estate the certificate of
acknowledgment should state that
she was examined separate and
apart from her husband and that
the contents of the deed were made
known and explained to her. Fail-
ing to so state made the deed as to
her and her heirs void. Mettler v.
Miller, 129 HI. 630, 22 N, E. 529.

The provision of the law author-
izing certain* officers to take the
private examination of the wife
was designed as a substitute for
the proceeding at common law by
fine and recovery, whereby the



rights of the wif e^ on the one hand,
might be guarded, and a sure, un-
questionable transfer of her right
secured on the other. Kerr v. Bus-
sell, 69 HI. 666, 18 Am. Rep. 634.

In Tennessee, a wife may con-
vey her separate estate without
the husband joining, but the privy
examination is necessary in either
ease. See post, | 272 et seq,, Stat-
utory Requirements. Robinson v.
Queen, 87 Tenn. 445, 11 S. W. 38,
3 Ll R. A. 214, 10 Am. St. Rep.
690.

MWarvelle on Abstracts (4th
Ed.), i 209.

55 Winkler v. HiggiuB, 9 Ohio
St. 599.



Digitized by VjOOQIC



258]



COI^KTANOES AND ACKNOWLEDGMENTS.



141



officers selected by the Legislature are intrusted with this
duty, and such class does not include notaries, the taking of
an acknowledgment by a notary is of noi effect. And if the
certificate recites the act by the notary, it is immaterial that
such notary was also a commissioner of deeds, and as such
authorized by statute to act.*® Notaries who hold themselves
out to take acknowledgments must be properly qualified and
commissioned, although the acts of de facto notaries are usual-
ly upheld.*'' An acknowledgment taken by a notary whose
commission has expired has been held insufficient.**

§ 258. — ^Place of Acknowledgment; Jurisdiction of Officer.
— ^A certificate of acknowledgment should show the place of
acknowledgment, by reciting the state and county.** Omissions
in this respect are usually not treated as matters of substance,
and are not held fatal, or the omission of the county in the
venue may be cured by the certificate of conformity, or by
the seal. In Iowa, however, such an omission has been held
fatal, and the seal could not cure the defect.^® Some states
permit a notary to take acknowledgments to deeds anywhere
within the state.*^ A deed executed out of the state is properly



M Partridge v. Mechanics' Nat.
Bank of Burlington, 77 N. J. Eq.
208, 77 Atl. 410. Deed muBt be ac-
knowledged before officers named.
Charleroi Timber k Canal Coal Co.
V. Licking Coal & lAimber Co.
(Ky.), 116 8. W. 682.

What officers may take acknowl-
edgments, see post, i 272 et seq.f
Statutory Requirements.

A clerk of the United States
courts may take acknowledgments
in Illinois. Woodruff v. McHarry,
56 Dl. 218.

57 Ante, I 16.

W Lambert v. Murray, 52 Colo.
156, 120 Pac. 415.

Disqualification of notaries to
take acknowledgments, see post,
I 267.

MSee ante, | 17.

•OWarvelle on Abstracts (4th
Ed.), I 210; Beeves & Co. v. Co-



lumbia Bav. Bank, 166 Iowa 411,
147 N. W. 879.

A certificate must contain some
assignable locality, which the court
can judicially notice in order to
render the deed admissible as
evidence without proof of its exe-
cution; and a notarial seal will
not cure the defect. Vance v.
Schuyler, 1 Gilm. (111.) 160.

61Guertin v. Mombleau, 144 111.
32, 33 N. E. 49; Oppenheimer v.
Giershof er, 54 HI. App. 39.

While it is proper for the no-
tary to sign himself a notary pub-
lic in and for the county for
which he is appointed, his certifi-
cate of acknowledgment is not
fatally defective if his county is
omitted. Sullivan v. Hall, 86
Mich. 7, 48 N. W. 646, 13 L. B. A.
556.



Digitized by VjOOQIC



142 NOTARIES PtTBLIO. [§ 359

acknowledged if executed according to the laws of tht st&te
where the execution takes place.®* It must appear that the
officer making the certificate is an officer of the state within
which the acknowledgment is made, and that he is acting
under and by authority of its laws.^*

§ 259. —Clerical Errors in Statement of Fact of Acknowl.
edgment. — Clerical errors in certificates of acknowledgment are
unfortunately most common. Printed forms of the certificate
are used frequently and the notary accidentally or carelessly
fills out the blanks improperly or neglects to fill them out.
Later serious questions arise. If the instrument is recorded,
the defects are discovered when the abstract of title is ex-
amined, and additional expense and trouble are required to
correct the matter. Sometimes the question is involved in
litigation. As a general rule the courts are inclined to con-
strue this class of errors most liberally, but there is danger
that an apparently small defect may be a matter of substance.
As an illustration, in most printed forms the recital of ac-
knowledgment reads **and acknowledged that — ^he — signed,
executed,'* etc., the purpose of the labor saving device being
to allow the blanks before and after the word '*he** to be
filled by letters that shall make the words '*she" or ''they"
as the case may require. Carelessness or ignorance frequently
causes the instrument to go forth with the blank space not
properly filled out, and with an ambiguous recital of one of
the essential facts of acknowledgment. In the case of a joint
acknowledgment by a husband and wife, the certificate will
state that the parties appeared before the officer and acknowl-
edged that **he" the husband executed the instrument. May
not such an error be a matter of substance? In another cer-
tificate, the recital stated that the husband and wife, *'who —
personally known to me," appeared, etc., omitting the word
''are," and the court held that the word "who" might be
disregarded as surplusage. The general rule seems to be that
the courts will disregard obvious mistakes and read into the

ea Keller ▼. Moore, 51 Ala. 340; Post v. First Nat. Bank of Spring-
Summer V. Mitchell, 29 Fla. 179, field, 138 HI. 569, 28 N. E. 978;
10 So. 562, 14 L. B. A. 815, 30 Slaughter v. BemardB, 88 Wis. Ill,
Am. St. Hep. 106; Esker v. Hef- 59 N. W. 576.
fernan, 159 lU. 38, 41 N. E. 1113; 68Fiiua y. Backus, 18 Mick. 218.



Digitized by VjOOQIC



§ 260]



CONVEYANCES AND ACKNOWLEDGMENTS.



143



certificate the proper word if it can be easily ascertained,**
but the liberality of the courts in this respect should not ex-
cuse the notary. Holding himself out to the world as com-
petent to perform his duties, the notary should be most care-
ful, in preparing and certifying acknowledgments.

A defect of frequent occurrence will be found in disparity
of dates, as where the date of a deed is subsequent to the
date of acknowledgment. Errors in this respect are usually
considered clerical mistakes, and while they should be noted
in the examination of abstracts, are usually considered of
minor importance.**



— Signature of Officers; Designation of Official Char-
acter. — The notary's signature should be properly written and
affixed.** A notary's seal attached to the acknowledgment of
a deed without the notary's signature cannot be received as
evidence of the execution of the deed.*'' The failure to file
the notary's autograph signature in the office of a register
of a county, as required by statute, has been held an irreg-
ularity, not invalidating an acknowledgment.**

Officers certifying must give their official title, or the certifi-
cate is fatally defective.** If the title is given in full in the
body of the certificate, its omission from the signature is im-
material,''* and the omission of the official character in the



MWarvelle on Abstracts (4th
Ed.), I 209.

The policy of the law is to up-
hold all certificates of acknowledg-
ment; where substance is found,
mere clerical errors and technical
omissions are disregarded. Sum-
mer V. Mitchell, 29 Fla. 179, 10
So. 662, 14 L. R. A. 815, 30 Am.
St. Bep. 106; Douglass v. Bishop,
45 Kan. 200, 25 Pac. 628, 10 L. R.
A. 857.

65Warvelle on Abstracts (4th
Ed.), S 209.

66 Ante, | 24. See Lake v.
Earnest, 53 Tex. Civ. App. 555,
116 S. W. 865.

67 Clark V. Wilson, 27 HI. App.
610, aff'd 127 HI. 449, 19 N. B.



860, 11 Am. St. Bep. 143; Foster y.
Latham, 21 111. App. 165.

66 In re Townsend, 195 N. T.
214, 88 N. E. 41, 22 L. B. A. (N.
S.) 194, 16 Ann. Cas. 921.

69 Warvelle 's Abstracts (4th
Ed.), sec. 210; Clark v. Wilson, 27
ni. App. 610, aflP'd 127 HI. 449, 19
N. E. 860, 11 Am. St. Rep. 143;
Hout V. Hout, 20 Ohio St. 119;
Cassell V. Cooke, 8 Serg. ft B. (Pa.)
268.

70 Summer v. Mitchell, 29 Fla.
179, 10 So. 562, 14 L. B. A. 815, 30
Am. St. Bep. 106. See Duckworth
V. Watsonville Water ft Light Co.,
150 Cal. 520, 89 Pac. 338.

A certificate of acknowledgment
of a deed or certificate of a notary,



Digitized by VjOOQIC



144



N0TABIE8 PUBLIC.



[§ 261



body of the instrument will not invalidate the certificate, when
the instrument is signed by the officer with the initials *'N. P."
following,^ or with the proper designation of the official. In
some states, the name of the county is an essential part of
the title of the notary, and must be stated.''* As a general
rule, whenever a certifying officer is required to have a seal,
he must authenticate his certificate under his official seal,^
and the notary's seal should be attached to all acknowledg-
ments taken by them.''* The official seal attached to an ac-
knowledgment imparts verity and that the act is official and
not individual.''* No seal is necessary to certificates of ac-
knowledgment unless the statutes expressly require it,^* and
in some states the seal is unnecessary.^ No objection having
been made, when the deed was put in evidence, that the of-
ficial seal of the notary did not appear on the certificate of
acknowledgment, the objection will be regarded as having
been waived.^

§ 261. —Amendment or Correction of Oertiflcate.— An offi-
cer having taken an acknowledgment of a deed, and made a
certificate thereof, cannot as a general rule afterwards amend or
change his certificate for the purpose of correcting a mistake.
This can only be done by the parties reacknowledging the



or other officer, stating in its body
the officer's official charsuster, it is
useless and unnecessary to again
certify it by full designation fol-
lowing the signature. Heffeman
V. Harvey, 41 W. Va. 766, 24 S. E.
592.

71 Worley v. Adams, 111 Va. 796,
69 8. E. 929.

7t Reeves & Oo. v. Columbia Sav.
Bank, 166 Iowa 411, 147 N. W.
879.

TSWarvelle on Abstracts (4th
Ed.), I 210.

74 Dyer v. Flint, 21 HI. 80, 74
Am. Dec. 73.

At common law, notary was sim-
ply a commercial officer and his
official acts were known only by
his official seal. Dawsey v. Kir-



ven, 203 Ala. 446, 83 So. 338, 7
A. Li B. 1668.

75 Moore v. Titman, 33 HI. 358.

76 Thompson v. Morgan, 6 Minn.
292 (Gil. 199); Baze v. Aiper, 6
Minn. 220 (Gil. 142).

It is within the legislative pow-
er to enact, as to future contracts,
that the same shall not be binding
or effective in any way without a
seal or without an acknowledg-
ment of a specific kind or without
being recorded. Statutes simply
prescribe what shall be essential to
constitute a valid contract. Bar-
rett V. Kumpf, 102 Dl. 423.

77 Dawsey v. Kirven, 203 Ala.
446, 83 So. 338, 7 A. L. B. 1658.

7S Baker v. Baker, 159 Dl. 394,
42 N. E. 867.



Digitized by VjOOQIC



§ 266] CONVEYANCES AND ACKNOWLEDGMENTS. 145

deed.'* The same is true if the deed had been delivered.**

§ 262. — ^Acknowledgments as Evidence. — ^The certificate
of acknowledgment of a notary or consul is prima facie evi-
dence of their official character.*^ In taking acknowledgments,
an officer acts under the sanction of his official oath, and his
certificate, required by law to be made, should be regarded as
high a grade of evidence as if given under oath.**

§ 263. — ^Probate of Deed. — In Tennessee a deed cannot be
probated before a notary public by subscribing witnesses;
his duty is to take acknowledgments and the proof by wit-
nesses must be made before the clerk of the county court.**

§ 264. Acknowledgments of Particular Instruments.

§ 266. — Chattel Mortgages. — ^Acknowledgment of chattel
mortgages by a notary of another state is conferred by the
force and vigor of the Illinois statutes when the mortgagor
resides in such state, as well as in cases of real estate con-
veyances.** The omission to state the county in an acknowl-
edgment to a chattel mortgage taken before a justice of the
peace is immaterial when it is perfectly certain that the ac-
knowledgment was taken by a justice of the peace in and
for a town of which the court has judicial knowledge to be
in the proper county.**

§ 266. —Town Plats.— While a town plat, imperfectly ac-
knowledged, fails to convey the fee, it is evidence tending to



TOMcrriU V. Yates, 71 HI. 636, Ala. 438, 47 So. 230, 22 L. B. A.

23 Am. Rep. 128. (N. 8.) 216.

SO Griffith V. Ven tress, 91 Ala. 81 Mott v. Smith, 16 Cal. 534. A

366, 8 So. 312, 11 L. R. A. 193, 24 notary's certificate is evidence of

Am. St. Rep. 918. the facts therein stated. State v.

Where no certificate of acknowl- Ogden, 187 Mo. App. 39, 172 S. W.

edgment was made by a mortgagor 1172.

or his wife, and the mortgage was SS Warrick v. Hull, 102 HI. 280.

delivered, and seven days later a MMcGuire v. Gallagher, 95

certificate was attached, in due Tenn. 349, 32 8. W. 209.

forTi, the certificate was unauthor- S4 Hewitt v. Watertown Steam

ized as the notary could not make Engine Co., 65 HI. App. 153.'

such certificate without recalling S5 Gilbert v. National Cash Reg-

the parties. Alford v. Doe ex dem. ister Co., 67 BL App. 606.
First Nat. Bank of Gadsden, 156
10



Digitized by VjOOQIC



146



NOTARIES PUBLIO.



[§ 267



prove a comiEon-law dedication, which vesta an eaaement in
the streets and alleys in the municipality .••

§ 267. Impeachment of Certificates of Acknowledgment-
Certificates of acknowledgment may usually be impeached
only for fraud, conspiracy, collusion or imposition,*^ and clear,
convincing and satisfactory proof is required.** Some courts
require proof that the grantee had knowledge of the fraud,
and that there was collusion with the notary.** In the ab-
sence of fraud or collusion, the certificate of the officer taking
the acknowledgment is essential to full credit.**

The evidence of the officer who takes an acknowledgment
of a chattel mortgage is competent for the purpose of impeach-
ing his official certificate.*^

§ 268. Disqualification of Notaries to Take Acknowledg-
ments.

§ 269. — ^In GteneraJ. — The relationship or interest which
will disqualify a notary from taking an acknowledgment must
be determined from the facts of each case,** and usually mere
relationship without anjiihing else is not a disqualification.**
If the notary is a party or financially interested in the con-
veyance, he is disqualified from acting,** and conversely, if the



86 Gould V. Howe, 131 HI. 490,
23 N. E. 602.

87 Warrick v. Hull, 102 HI. 280;
Fitrgerald v. Fitzgerald, 100 111.
385; Mahan ▼. 8chroeder, 142 HL
App. 538; O'Donnell ▼. Kelliher,
62 HI. App. 641.

The acknowledgment of a deed
cannot be impeached for anything
but fraud. Ogden Building ft Loan
Ass'n V. Mensch, 196 111. 554, 63
N. B. 1049, 89 Am. St. Bep. 330.

See ante, { 28.

88 Sheridan County v. McKin-
ney, 79 Neb. 223, 115 N. W. 548.

89Evart V. Dalrymple, — Tex.
Civ. App. — , 131 S. W. 223.

•0 Calumet & 0. Canal Ss Dock
Co. y. Bussell, 68 HI. 426; Ldck-
mon V. Harding, 65 HI. 505.



•IMcCurley v. Pitner, 65 HL
App. 17.

See ante, | 26.

88 See ante, | 21.

88 Hinton v. HaU, 166 N. C. 477,
82 S. E. 847 (brother-in-law of
mortgagee not disqualified).

84Herbach v. Tyrrell, 48 Neb.
514, 67 N. W. 485, 489, 37 L. B. A.
434; Watts v. Whetstone, 79 S. C.
357, 60 S. E. 703; W. C. Belcher
Land Mortg. Co. v. Taylor, — Tex.
CSv. App. — , 173 S. W. 278; Boana
V. Murphy, — Tex. Civ. App. — ,
96 S. W. 782. See Kothe v. Krag-
Beynolds Co., 20 Ind. App. 293, 50
N. E. 594, citing Green v. Abra-
ham, 43 Ark. 420; Hogans v. Car-
ruth, 18 ria. 587; Hammers r.
Dole, 61 Hi. 307,



Digitized



by Google



§ 270]



00NVBYAN0B8 AKD AOKNOWLEDGMENTS.



147



mttary is not finaneiallj imterested, he is not disqualified frem
acting, even though he is an employee ef a party,^'^ an agent or
attorney.**

§ 270. — Stockholders. — It is generally held that the inter-



Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 17 of 50)