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Use and Effect of Acknowledgment

An acknowledgment authenticates the signature on an instrument.  Acknowledgments allow certain intruments to be recorded.  They also protect creditors and subsequent purchasers.  A presumption of due execution and recording can be drawn from valid acknowledgment.[i] However, an acknowledgment is not a pre-requisite to the validity of an instrument in the absence of a mandatory statute for acknowledgment.[ii] Still, a proper acknowledgment may not validate an inherently invalid instrument.[iii] The instrument is not invalidated in between parties or persons having actual notice of the deed even if the acknowledgment is defective or irregular.[iv]

When innocent persons act upon an acknowledgment, the person who made the invalid acknowledgment is estopped from denying the instrument’s validity.  A grantor to an instrument can authorize another person to sign an instrument on his/her behalf.  When a grantor duly acknowledges execution of a conveyance using someone else’s name, the grantor’s act in the assumed name will not affect the validity of a property conveyance.[v]

Notary acknowledgment gives rise to a presumption of due execution, which may be rebutted only upon showing clear and convincing evidence to the contrary.[vi] A document which is statutorily required to be attested is otherwise valid if it is duly acknowledged.  Want of attestation is curable with due acknowledgment.[vii] An instrument duly acknowledged and complying with the recording laws is generally admissible in evidence without further proof of execution.  However, certificate of acknowledgment is not the proof of execution of an instrument which is not within the contemplation of the relevant statute.  Acknowledged documents do not require oral testimony.[viii] Admissibility of instrument without acknowledgment or with defective acknowledgment depends on particular statutory provisions.  Existence of a statutory provision enabling admissibility of a duly acknowledged instrument without further proof of execution will render the instrument admissible.

Prime function of an acknowledgment is to enable recording of an instrument.[ix] A document, when presented for recording, the factum of its acknowledgment furnishes formal proof of valid execution.  Instruments other than those relating to real estate can be recorded without acknowledgment.  However, constructive notice of existence or contents of an instrument will not be imparted in case of recording without acknowledgment.  Recording a defectively acknowledged instrument will not furnish notice of transaction, even if the person who may be affected has actual notice of recording.

Recording an instrument acknowledged before a person who is not authorized to take the acknowledgment or who has been disqualified will not impart constructive notice even if acknowledgment is fair on its face.  Recording an instrument acknowledged by non-executing party or acknowledged by only one of several mortgagors will import constructive notice, in the absence of a statute compelling acknowledgment by all or by the person who executed the instrument.

Certificate by an officer authorized to take acknowledgment is conclusive proof of the contents in the certificate.   An officer’s certificate can be impeached only on proof of fraud, duress, or imposition known to or participated in by the other party to the instrument, or by showing that the officer did not have power to take acknowledgment.  However, in Stout v. Oliveira, 153 S.W.2d 590 (Tex. Civ. App. 1941) a certificate of acknowledgment was considered as prima facie evidence of all facts recited in the instrument.

The recitals in the certificate are considered conclusive unless fraud or imposition is shown.  Burden of proof is on one who denies the genuineness of the acknowledgment.  However, the certificate is no conclusive proof of the capacity of the party and the certificate can be impeached on the ground of minority and mental incapacity.  Protection is afforded to innocent third parties who rely on the certificate provided; the certificate is regular on its face.  Absence of actual acknowledgment and non-appearance before the officer can also be a ground for impeachment.  Facts stated in the certificate are presumed to be true if the acknowledgment is complete and regular on face.  To overcome the presumption of genuineness, clear and convincing proof is required and the burden is on the person who challenges the validity.  To challenge the validity of a certificate, testimony of parties to the transaction must be accompanied by other evidence.  While impeaching a certificate, notary’s certificate is not considered as conclusive.  The acknowledging officer himself is called upon and compelled under oath to state true facts of the transaction.  A person acknowledging an instrument is generally estopped by his/her conduct to challenge the validity of the instrument in subsequent transactions.

[i] D.T. McCall & Sons v. Seagraves, 796 S.W.2d 457 (Tenn. Ct. App. 1990).

[ii] Germany v. Murdock, 99 N.M. 679, 681 (N.M. 1983).

[iii] Eliason v. Englehart, 733 A.2d 944, 947 (Del. 1999).

[iv] Jamieson v. Jamieson, 912 S.W.2d 602 (Mo. Ct. App. 1995)

[v] Knaugh v. Baender, 84 Cal. App. 142, 1927 Cal. App. LEXIS 272 (Cal. Ct. App., June 24, 1927), Lewis v. Watson, 98 Ala. 479, 13 So. 570; Weldon v. Bates, 229 Ala. 169, 155 So. 560.

[vi] .Smith v. Smith, 263 A.D.2d 628, 629 (N.Y. App. Div. 3d Dep’t 1999), Singh v. Kaur, 294 A.D.2d 562 (N.Y. App. Div. 2d Dep’t 2002).

[vii] First Nat’l Bank v. Glenn, 10 Idaho 224 (Idaho 1904).

[viii] Union State Bank v. Miller, 335 N.W.2d 807 (N.D. 1983).

[ix] Shutte v. Thompson, 82 U.S. 151 (U.S. 1873).

Inside Use and Effect of Acknowledgment