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Persons Entitled to Sue Based on False, Inaccurate or Defective Acknowledgment

Every person who relies on a false, inaccurate or defective acknowledgment of an instrument can maintain an action against the acknowledging officer.  Acknowledging officers can be made liable either on their official bond or on liability as a public officer.  Liability can be imposed only when the injury caused is the proximate result of reliance on acknowledgment.[i] A creditor who gave money relying on a guarantee agreement containing a notary’s attestation of a forged signature also can bring action against that notary.[ii] Reliance on a false certificate by the injured is not necessary for imposing liability on an acknowledging, provided the applicable statute specifically entitles the injured to sue the acknowledging officer.[iii] When an officer acknowledges an instrument, a judicial act is performed by the officer and the act of authorization is the judicial duty of the officer.  Acknowledging officer’s act has the effect of a record.[iv] An officer who takes an acknowledgment is not an insurer of the accuracy of his/her certification to one with whom s/he has no privity.[v] In some jurisdictions the duty of an acknowledging officer is limited.  In New England Bond & Mortg. Co. v. Brock, 270 Mass. 107 (Mass. 1930), the defendant while acting as a notary of Commonwealth of Massachusetts signed a certificate of notary, authorizing discharge of a mortgage by one Gorin without taking any step to ascertain Gorin’s identity.  Plaintiff relying the discharge and acknowledgment, advanced large sum of money in loan.  The plaintiff provided the money in full confidence and belief that the subsequent mortgage was the only mortgage.  Plaintiff relied on discharge of prior mortgage and the certificate from defendant.  Actually there was no discharge of prior mortgage and damage was caused to the plaintiff.  The court observed that “acknowledging officers do not have a broad duty to everyone who subsequently relies on the accuracy of the certificate”.

[i] Anderson v. Aronsohn, 181 Cal. 294, 184 P. 12, 10 A.L.R. 866 (1919).

[ii] Signal Knitting Mills, Inc. v. Roozen, 150 Ga. App. 552, 258 S.E.2d 261 (1979).

 [iii] State exrel. Nelson v. Hammett, 240 Mo. App. 307, 203 S.W.2d 115 (1947).

[iv] Yates v. Ley 92 S.E. 837, 839 (Va. 1917).

 [v] Immerman v. Ostertag, 83 N.J. Super. 364, 1964 N.J. Super. LEXIS 415 (Law Div., April 23, 1964).

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