Posted by Roger_OH on 7/16/12 1:25am
Msg #426991

Venue Requirement on Certificate?

Doing some research for a presentation.

Is anyone aware of any state that does NOT require that a state/county venue appear on their notary certificates?

I'd also appreciate if anyone knows of any court cases where the lack of the venue on the certificate caused the document to be invalidated.

Thanks in advance.

Reply by ReneeK_MI on 7/16/12 5:03am
Msg #426994

To answer the specific questions - no, and no. However, if a notarial certificate does not validate a document in the first place, can an error in the certificate invalidate a document?

Reply by VT_Syrup on 7/16/12 6:02am
Msg #426997

"invalidating document"

Scenario: John sells his house to Mary. Let's say the acknowledgement certificate on the deed from John to Mary is defective in some way. John sells his house again to Peter. Before Peter bought the house, he was supposed do a title search in the public land records to see if it had already been sold. But deeds with defective acknowledgement certificates don't count; legally they don't give Peter notice the house was already sold. So if Peter is lazy and lucky, he won't bother to hire a lawyer and get a title search, but because the acknowledgement is defective he gets to keep the house.

Hopefully John's housing will be government-provided and involve lots of bars and barbed wire.

Reply by ReneeK_MI on 7/16/12 7:16am
Msg #427000

Precedence at least from GA Supreme Court

In Smith & Bondurant, a deed was notarized by a notary whose commission had expired a few days before the act of attestation, and before his appointment was renewed.   The Court upheld the deed on two bases, de jure and de facto.   Insofar as the Court found the deed to be valid on a de jure basis, it noted that the notary was to remain in office until a successor took his place.   As to the de facto basis, the Court continued:

But suppose he was not de jure a public officer, was he not de facto such, and his acts good, when done in good faith by him for any of the public also acting in good faith?   We think so most clearly.   These de facto officers, their official acts, colore officii, must be recognized for public safety.   The security of property, the vital interests of society, demand the recognition of their acts.   It has been our law, or rather, that of our ancestors, ever since the War of the Roses in England, when the king, the fountain of office there, was changed by the winds of revolution, and with him, his appointees were swept from rightful or de jure offices, but all their acts while in office were held binding and valid-made so by statute and observed by both sides-all being recognized as de facto officers․  The principle on which the whole doctrine of the recognition of de facto officers and their acts rests, is not how they happen to act de facto,-whether the cause be an illegal appointment or election, or an illegal holding over, but it is the convenience of the public-the necessity of the thing-the impossibility of one always knowing when an officer to whom he goes on business of a ministerial character is legally in office, was properly elected or has held too long;  it is that, where the public servant is acting in the place apparently all right, and the applicant to him in good faith has a deed witnessed or an oath administered, that it is better for society that the act de facto stand than that the business of society, the title to property be all wrecked, because parties did not know that the term of office of the public official expired the day before.

Id. at 418-419.

This rationale was employed by our courts in other cases of this kind.   See, e.g., Wood v. Cauthen, 168 Ga. 766, 149 S.E. 138 (1929) (expiration of notary's commission did not invalidate deed);  Adair v. McElreath, 167 Ga. 294, 314, 145 S.E. 841 (1928) (expiration of notary's commission did not invalidate candidate's filing statement);  Penn & Watson v. McGhee, 6 Ga.App. 631, 65 S.E. 686 (1909) (expiration of notary's commission did not invalidate verification of amendment).

 We recognize that the attestation in this case was accompanied by a recital that the notary's commission expired almost three weeks previously.   But it is the notary's act of attestation, not the presence of the recital, which gives rise to the validity of the affidavit.   See OCGA § 24-4-41 (“An officer de facto may be proved to be such by his acts, without the production of his commission or appointment.”).   As the Court noted in Wood v. Cauthen, supra at 768, 149 S.E. 138:

Except from: http://caselaw.findlaw.com/ga-supreme-court/1382603.html

Reply by SharonMN on 7/16/12 3:41pm
Msg #427047

Re: "invalidating document"

Even if the notarial certificate were found to be faulty, that doesn't automatically make the whole document faulty. Normally there would still need to be evidence that the signers did not sign it, or were not capable of signing it, for the document to be deemed invalid, even if the notary totally screws up.

Reply by VT_Syrup on 7/16/12 6:30pm
Msg #427057

Re: "invalidating document"

The reasoning goes something like this (and it varies by state). If the grantors really signed the deed or mortgage, it is valid between the grantor and grantee. But a new grantee is free to come along and buy it too until the new guy is notified that the property has been sold. This notification occurs by recording the deed in the land record office, so that the prospective grantee can go there and search for it. But most states require the deed or mortgage to be properly acknowledged in order to be recorded. If it's improperly acknowledged, it shouldn't have been recorded, and therefore the legal system pretends it isn't there, and the second grantee never had an opportunity to inspect the deed/mortgage. It doesn't matter whether the signatures are genuine or not.

Reply by James Powell on 7/17/12 7:19am
Msg #427100

Re: "invalidating document"

I would have to see a cite to support your position.

To my knowledge, once a document is recorded, it is valid as far as notice is concerned. The 'law' will not ignore it if there is an error and it should not have been recorded. The document can be challenged in court, but it is not automatically invalidated. Error on the part of the recorder in not checking against the recording requirements does not, as far as I know, invalidate a recorded document.

Reply by VT_Syrup on 7/17/12 8:05am
Msg #427101

Re: "invalidating document"

There is a summary of many cases in an article that was published in the REAL PROPERTY, PROBATE AND TRUST JOURNAL. I found it with a Google search at

http://www.msfraud.org/law/lawarticles/Defective-Real-Estate-Documents-What-Are-the-Consequences.pdf

Reply by BrendaTx on 7/16/12 6:36am
Msg #426998

Cannot answer your question exactly, but I can tell you that Texas does not see it as invalidated according to the underwriting source below:

Venue not mentioned here as a fatal error by StewartTexas.com:

What defects are fatal to an acknowledgement’s legal effectiveness?

*failure to include acknowledging party’s name in Certificate of
Acknowledgement;

*significant variance in acknowledging party’s name in the Certificate
versus the instrument being acknowledged;

*omission of the word “acknowledged” in the Certificate;

*failure of officer taking acknowledgement to sign the Certificate;

*absence of the officer’s official seal when its use is applicable; or,

*officer taking acknowledgement was disqualified, and his/her
disqualification is evident on the face of the instrument.

(To find source document and read more, google "defective acknowledgment deed". It should be #2. However, "venue" is not mentioned.)

Reply by BrendaTx on 7/16/12 6:37am
Msg #426999

Suggestion - Robert in FL is great at looking up cases. n/m