Page images
PDF
EPUB

ARTICLE I.

ACKNOWLEDGMENTS AND PROOFS.a

Any written instrument, except a promissory note, a bill of exchange, or a last will and testament, when acknowledged or proved and certified so as to entitle it, if a conveyance, to be recorded in the county where it is offered, is receivable in evidence without further proof.1

The certificate raises a presumption of due execution, but this is not conclusive; and if it appears that the subscribing witness making proof of execution was interested or incompetent, the instrument will not be received until established by other competent proof.3

A certificate of acknowledgment before a commissioner of deeds, justice of the peace, or notary public, has no effect outside of the city or the county of the officer's residence, unless the county clerk's certificate to officer's authority and signature is also attached.4

The acknowledgment or proof may be made at any time after execution, if before instrument is offered in evidence.5

An attorney in an action cannot take an acknowledgment to be used therein, nor can a party to an instrument take the acknowledgment of another party; but relationship between party and officer does not disqualify.

a The practitioner will notice that much of the text upon this subject, and upon the succeeding subject of affidavits, appearing in the first edition, has been omitted. The matter omitted consists, however, of propositions so well understood as to be considered of but little present utility-while the saving of the space for other more essential additions to text and forms has been advantageous.

1 N. Y. Code Civ. Pro., §§ 935, 937. An instrument is not "duly acknowledged " unless there is, besides the oral acknowledgment, a written certificate thereof. Rogers r. Pell, 154 N. Y. 518.

2 Uvalde Asphalt Paving Co. v. New York, 99 App. Div. 327, 91 N. Y. Supp. 131 (holding that the presumption of due execution must be weighed against any evidence given to rebut it).

3 N. Y. Code Civ. Pro., § 936; McKay v. Lasher, 121 N. Y. 477.

4 Real Property Law (L. 1896, c. 547), § 259. By special act notaries in New York county, and counties adjoining, may extend their authority over the adjoining counties.

5 Holbrook . N. J. Zinc Co., 57 N. Y. 616; Wetterer v. Soubirous, 22 Misc. 739, 49 N. Y. Supp. 1043.

6 Bliss v. Molter, 8 Abb. N. C. (N. Y.) 241; Armstrong v. Combs, 15 App. Div. 246, 44 N. Y. Supp. 171; Lynch v. Livingston, 6 N. Y. 422; People ex rel. Erie R. Co. v. Board R. R. Com'rs, 105 App. Div. 273, 93 N Y. Supp. 584.

[blocks in formation]

Certificate of acknowledgment of individual, taken within the State. (Under

[blocks in formation]

9

day of

[ocr errors]

19

before me personally

came* A. B. [C. D. and E. F.], to me known and known to me to be the person [or, persons, or, one of the persons] described in and who executed the within [or, above, or, annexed] 10 instrument,11 and acknowledged to me that he [or, if more than one acknowl edge, severally acknowledged to me that they] executed the same. [Signature and office of officer taking acknowledgment.]

7 The form of this certificate, while substantially similar in the various jurisdictions, should not be used in other States without reference to local statutes. See, for N. Y., Jackson r. Seeber, 50 Misc. 479.

8 See notes to Form 14. In Rogers v. Pell, 47 App. Div. 240, 62 N. Y. Supp. 92; aff'd, 168 N. Y. 587, it was held that oral evidence is competent to show that the acknowledgment was taken in a different venue.

9 The notary must certify to his knowledge of the identity of the person appearing with that of the person who is described in and who executed the instrument. See Carolan v. Yoran, 104 App. Div. 489, 93 N. Y. Supp. 935 (and cas. cited).

10 This certificate need not be written upon but may be attached to the acknowledged instrument. Real Property Law (L. 1896, c. 547), $ 255.

11 A certificate is fatally defective which fails to show that the notary knew the person appearing to be the one described in and executing the instrument. Freedman v. Oppenheim, 80 App. Div. 487, 81 N. Y. Supp. 810; Paolillo v. Faber, 56 App. Div. 241, 67 N. Y. Supp. 638.

Where the party used the initial only of his Christian name when signing the instrument, the fact that his name was written in full in the certificate of acknowledgment was held immaterial. Paxton v. Ross, 89 Iowa, 661.

FORM No. 2.

Certificate of acknowledgment by Corporation.12

STATE OF County of

NEW YORK,

ss.:

On the

, in the year 19

day of

before me personally came A. B., to me known,13 who, being by me duly sworn did depose and say that he resided in

; that he is the [president or other officer] of the [name of corporation], the corporation described in, and which executed the above instrument; that he knew the seal of said corporation; that the seal affixed to said instrument was said corporate seal; that it was so affixed by order of the board of directors of the said corporation, and that he signed his name thereto by like order.

[Signature and office of officer taking acknowledgment.]

FORM No. 3.

Certificate of acknowledgment of partner, on behalf of firm.14

[Sustained in Klumpp v. Gardner, 114 N. Y. 153.]

[Venue, as before.]

day of

[ocr errors]

On this 19 before me personally came A. B., a member of the firm of B. & C., described in the foregoing instrument, to me known, and known to me to be a member of the said firm, and the person who executed the said instrument, and acknowledged to me that he executed the same on behalf of said firm.15

12 N. Y. Laws of 1896, c. 547, § 258 (Real Property Law).

13 In Rogers v. Pell, 47 App. Div. 240, 62 N. Y. Supp. 92; aff'd, 168 N. Y. 587, a failure to certify to personal knowledge was held not to vitiate certificate under statutes as then existing.

14 The certificate should show by which member of the firm the signature was made and acknowledged. Sloan v. Owens, etc., Machine Co., 70 Mo. 206.

15 Where the partner's authority

[Signature and title of officer.]

to act for the firm does not spring from the partnership relation, but from express authorization from the other partners, e. g., the making of a general assignment for the benefit of creditors, there may be added, "and under and in pursuance of authority given by the members of said firm." See Hooper v. Baillie, 118 N. Y. 413. But such a statement of authority was considered unnecessary in National Bank of Troy v. Scriven, 63 Hun, 375, 18 N. Y. Supp. 277.

FORM No. 4.

Certificate of acknowledgment by executor, trustee, or other representative.

[blocks in formation]

On this

day of

[ocr errors]
[ocr errors]
[ocr errors]

19 before me personally came A. B. [state representative character, as, executor of the last will and testament of M. N., deceased], to me known, and known to me to be the person described in, and who executed the foregoing instrument, and acknowledged to me that he executed the same as such [executor] aforesaid.

[Signature and title of officer.]

FORM No. 5.

Certificate of acknowledgment of attorney in fact.16

[Venue, as in Form No. 1.]

day of

[ocr errors]
[ocr errors]

On this 19 before me personally came A. B., attorney in fact for C. D., the person described in the annexed instrument, said A. B. being to me known, and known to me to be the person who executed said annexed instrument,17 and acknowledged to me that he executed the same on behalf of said C. D. and as his attorney in fact.

FORM No. 6.

Certificate of proof by subscribing witness, within the State.18 (Under N. Y. Statutes.)

[blocks in formation]
[ocr errors]
[ocr errors][merged small]

came* G. H., the subscribing witness to the above [or, within,

16 A general authority given to an attorney in fact to execute an instrument implies authority to acknowledge it. Lowenstein v. Flaurand, 11 Hun (N. Y.), 399.

17 Where the instrument is executed by the attorney in fact of the party, lawfully authorized, the attorney is the party executing the same, who may make the acknowledgment. Lovett r. Steam Saw Mill Ass'n., 6 Paige (N. Y.), 54.

18 A party to the instrument cannot, without also signing at the time as a subscribing witness, make proof as such to the execution of the instrument by other parties. People ex rel. L. I. R. R. Co. v. Board of R. R.

Comrs., 75 App. Div. 106, 77 N. Y. Supp. 380. That he cannot be a subscribing witness unless authorized by statute was held in Coleman v. State, 79 Ala. 49, and Townsend v. Downer, 27 Vt. 119.

The subscribing witness must state and the certificate must show his residence, and that he knew the person described in and who executed the instrument. Real Property Law (L. 1896, c. 547), §§ 253, 255; Irving v. Campbell, 121 N. Y. 353.

A form of certificate of proof by subscribing witness under laws existing in 1828 is examined in Trustees, etc. v. McKechnie, 90 N. Y. 618, and considered sufficient.

;

or, annexed] instrument, with whom I am personally acquainted, who, being by me duly sworn [or, affirmed],19 did depose and say: that he resides in the city of in the State of that he knew A. B., the person [or, one of the persons-or, A. B. and C. D., the persons] described in and who executed the above [or, within-or, annexed] instrument, and that he saw said A. B. [or, A. B. and C. D.] execute the same,20 and that said. A. B.-or, A. B. and C. D., respectively, each for himself— acknowledged to said deponent, that he executed the same, and that said deponent at the same time subscribed his name as a witness thereto.21

[Signature of officer and title.]

FORM No. 7.

Certificate of acknowledgment or proof in another State before a Commissioner of deeds for New York.22

[merged small][ocr errors][ocr errors]

[Continue as in previous Forms.]

[Signature, title, and official seal.]

FORM No. 8.

Certificate of acknowledgment before United States consular agent. (Under N. Y. Statutes.) 23

[Venue, including country, and city of consul's official residence.]

day of

[ocr errors]

On this 19 before me, A. B., Consular Agent of the United States of America, in and for said

19 The certificate must show that the subscribing witness was sworn, or affirmed. McIntyre v. Kamm, 12 Oreg. 253.

20 The witness must swear that he saw the signing. Schaffer v. Emmons, 103 App. Div. 399, 92 N. Y. Supp. 993.

21 Mere identity of name between the signature of the subscribing witness and the person making the proof will not obviate a failure to certify that the person appearing before the officer was, or stated he was, the subscribing witness. Gillett v. Stanley, 1 Hill (N. Y.), 121.

22 This certificate must state the town and county, or the city, in which the acknowledgment or proof was taken, and must have his seal of office affixed. Real Property Law (L. 1896, c. 547), §§ 256, 257.

A certificate from the N. Y. Secretary of State must be obtained, showing authority of commissioner, etc. Id., § 260.

23 Real Property Law (L. 1896, c. 547), § 250. The form as given above is sustained in Jordan v. Underhill, 91 App. Div. 124, 86 N. Y. Supp. 620.

« PreviousContinue »