Sunday, April 10, 2005


Did you sign a paper which was supposed to be notarized, and you knew the notary was not there with you when you signed? That is not necessarily an error on your part. Did the notary then come along and notarize your signature, with you present, but without you signing again, in the presence of the notary? That is not necessarily an error on your part or on the part of the notary. This post is prompted by an article in the paper this week in which it was implied that a deed should be signed in the presence of a notary public.

Among other duties prescribed by law, a notary public of New Mexico may take statements under oath (verifications) and may take acknowledgments. These are two separate functions. Only one, the verification, requires that the notary public be present when the writing is signed, and see the paper being signed. The notary then states,"Signed and Sworn to before me by ____, etc." "Subscribed and sworn to, etc." is the old form, and means the same thing. Subscribing and signing are the same, and neither word carries any more weight in the law of this subject.

The other function, that of the taking of the acknowledgment, requires that the notary and the signer be present together, but the notary need not see the signing of the paper (deed, mortgage, etc.). The function of the notary here is to know the identity of the one who claims to have signed this paper, and to learn from the one who claims to have signed it, that this person indeed signed her name, that she understands that the paper is a deed, or mortgage, etc., and that she signed it of her own free will.

In the case of acknowledgments, the notary need not see the signing person actually sign the paper. The signer identifies herself to the notary public, says that she signed this paper, that it is a deed to the ranch, for example, and that she intends to transfer the property by this deed and is doing it willing. The notary then writes that the deed was "acknowledged before me this ____ day of ______, 2005, by ____________."

Any time the notary work says, "Signed and sworn to," the person signing should be in the presence of the notary, swear to the facts, and sign. The notary in such cases violates the law if she places her signature and seal on an affidavit, or verification, when she has failed to swear in the signer (place the signer under oath and have her say these facts are true), or when she has failed to watch the signature.

Why have the notaries? The notaries serve an important function. They prevent some fraud and overreaching and forgery. They also prove, by their signature and seal, at least prima facie (sufficient proof unless controverted by proof to the contrary), that the signer did sign, and did sign willingly and with understanding of the instrument signed. In some cases, the law requires that an instrument (a deed to land, for example) be acknowledged before the deed may be filed for record with the County Clerk. All of this facilitates commerce and helps protect the innocent on both ends.

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