An acknowledgment is a prerequisite to recording an instrument.[i] An acknowledgment is a formal declaration before an authorized public official, like a notary public, by a person who has executed an instrument that the instrument is his free act or deed.[ii] An acknowledgment has three functions: “to authenticate the instrument; to permit the instrument be introduced into evidence without proof of execution; and to entitle the instrument to be recorded.” [iii]
Statutes expressly authorize certain classes of officers to take acknowledgments. Notaries public, commissioners of deeds, and other non judicial officers are generally designated by statutes to take acknowledgements. For instance, 18 USCS § 4004 authorizes wardens, superintendents, associate wardens and superintendents, chief clerks, record clerks and other designated officials of federal penal or correctional institutions to take acknowledgments of officers, employees, and inmates of such institutions.
An acknowledgment taken by an officer not authorized by law is void. In deciding whether to void the instrument, a court should consider whether an improper benefit was obtained by the notary or any party to the instrument.[iv] The court will also inquire whether any harm was caused by the transaction.[v] Notaries public have authority to take acknowledgments in probably all the states. Judicial officers including federal judges are also authorized to take acknowledgements.
[i] Galloway v. Cinello, 188 W. Va. 266 (W. Va. 1992)
[iv] In re Williams, 213 W. Va. 780, 786 (W. Va. 2003)