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Correction and Cure of Defects in Supplying Acknowledgments

A relevant statute may require certain instruments to be acknowledged by a qualified officer.  If the relevant statute requires an instrument to be acknowledged and the instrument is either not acknowledged or defectively acknowledged, the instrument, in turn, becomes defective.  Such defects can be cured, corrected or supplied.

Acknowledgments should be liberally interpreted.  If an instrument is defectively acknowledged and the omission can be filled in from the body of the instrument itself, the error in acknowledgement is not fatal. 

If there is any omission in the certificate of acknowledgment, the omissions can be supplied by amendment.  Such amendment is allowed only if it is proved either by internal or external evidence that the person executing the instrument has sworn the statement before a notary or other authorized officer.

Generally a defective acknowledgment cannot be perfected or cured by parol or by other evidence.  A defective acknowledgment can be cured only by a certificate of acknowledgment issued by an authorized person.  The certificate should be written upon or annexed to the instrument.  The amendment and corrections made should be in conformity to the facts of the case.  Such correction will have a retroactive effect and will relate back to the date of recording of the original act.

Certain states have enacted laws regarding certificates of acknowledgment.  According to certain state laws, an action can be brought to correct the defective certificate of acknowledgment.  For that purpose, some states have enacted curing statutes.  However, where there is no such statutory provision, a court cannot aid or correct a defective certificate of acknowledgment.  Courts do not have jurisdiction to amend or correct defective certificate sof acknowledgment.

A defective acknowledgment can also be corrected by means of a new acknowledgment.  In cases where acknowledgement is a pre-requisite for the validity of an instrument, the parties can by their mutual consent, alter the acknowledged instrument.  Such alteration is valid and effective as between the parties and a new acknowledgment is not necessary in such cases.  However, as against third persons, when alterations are made in an instrument, the instrument should be re-acknowledged.  This is because, if the instrument is not re-acknowledged, third parties will not have notice of such alterations and hence third parties will not be chargeable.

As stated earlier, an amendment or correction of a defective certificate relate back to the date of acknowledgment.  If any rights have accrued subsequent to acknowledgment and prior to the correction, such rights will not be affected prejudicially.  In such cases, re-acknowledgment will not operate retrospectively and take away rights vested before the execution of altered instrument. 

An instrument will be regarded as an unacknowledged instrument, as long as the defect is not cured.  State legislatures can pass statutes to cure the defect in an acknowledgment.  Generally, curative statutes operate retrospectively.  However, such retrospective operation should not result in divesting vested rights of the parties.  There is no constitutional restrain in passing curative statutes if the obligation of the contract is not impaired by a curative statute.  The rule applicable to curative statutes is that if the defect is something which the prior statute have dispensed with, then the legislature can dispense with the same by subsequent statute.  Similarly, if the irregularity is with any particular act, or the mode or manner of doing the act and that was immaterial by prior law, it can be made immaterial by a subsequent law.

Inside Correction and Cure of Defects in Supplying Acknowledgments