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Presumption of Validity of Acknowledgment

The acknowledgment and recording of an instrument provides a presumption of a valid conveyance with genuine and due execution. Clear and convincing evidence is required to overcome this presumption. Due execution and recording gives a presumption of delivery with the present intent of passing title and possession.

However, a proper acknowledgment does not validate an invalid instrument because acknowledgment is not a part of the substance of an instrument. In Strother v. Shain, 322 Mass. 435 (Mass. 1948), a landowner signed a deed for sale of a particular piece of land. Later, an additional description of the land was inserted into the deed for which the landowner received no consideration. However, the landowner never intended to convey the additionally added land, and never received any consideration. The notary then fraudulently acknowledged the landowner’s signature on the deed and recorded it, transferring the land to an innocent purchaser. The landowner brought a tort action against the notary, alleging the notary’s intention to injure and defraud the landowner. The notary certified that the landowner had appeared before the notary and acknowledged the deed.  The court held that “Neither acknowledgment nor recording can confer validity upon an invalid instrument”.

The test for determining the validity of an acknowledgment of a mortgage instrument was discussed in In re Buchholz, 224 B.R. 13 (Bankr. D.N.J. 1998). The validity depends upon the degree of familiarity that an officer taking an acknowledgment has with a party signing a document. The officer, before acknowledging a signature as the signature of the party named in the instrument, must be satisfied within his/her own conscience that the party making the signature is the identical person named in, and who executed the instrument. Personal appearance and knowledge of identity usually serves the purpose. Also, when the person making acknowledgment is a person other than notary, such officer must sufficiently be familiar with the signature of the party executing the document.

The law always favors innocent persons who act upon an instrument on false representation. A person is estopped to deny the validity of an instrument after acknowledging the instrument as his/her own. Where a person named in the deed appears in person before a notary and acknowledges the signature as his/her own, s/he is estopped afterwards from denying his/her declaration and signature. against any one who parts with his/her property on the strength of the said deed.

[i] Kruse v. Balough, 2007 Alas. LEXIS 123 (Alaska Sept. 26, 2007).
[ii] Eliason v. Englehart, 733 A.2d 944, 947 (Del. 1999).
[iii] Strother v. Shain, 322 Mass. 435 (Mass. 1948).
[iv] N.J. Stat. Ann. § 46:14-6
[v] Blaisdell v. Leach, 101 Cal. 405 (Cal. 1894).


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