The Mobile Signing With a Missing Witness and a Looming Deadline
A notary in a state that permits notarization of real estate documents without witnesses is asked by a title company to notarize a deed of trust at a hospital. The signer, recovering from surgery, is alert and oriented but has a cast on her dominant hand. The notary arrives at 8:40 p.m.; the signing must be recorded by 5 p.m. the next day. The signer asks the notary to 'just sign for me, I already agreed to everything.' The notary's commission expires in 11 days, and the acknowledgment certificate form the title company supplied lists a different county than the one where the hospital is located. The notary has no journal with her, only a loose sheet of paper.
1. Should the notary sign the deed on the signer's behalf? Analyze under appearance, capacity, and prohibited-acts principles.
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No. Signing for the signer is a prohibited act in every U.S. notarial regime: the notary may not notarize a signature the notary applied, because the certificate would falsely attest to personal appearance and voluntary execution by the signer. The signer's oral consent does not cure this; the notary's duty runs to the integrity of the act, not to the signer's convenience. Capacity is a separate issue: alertness and orientation support capacity, but a physical disability (the cast) is not incapacity. The correct path is to have the signer execute with her non-dominant hand, or make a mark, or direct another person to sign at her direction and in her presence, with the certificate reflecting that method where the form permits. The notary should confirm the signer understands the document and is acting freely, and should note the method of execution in the journal.
2. How should the notary handle the county discrepancy on the certificate and the missing journal?
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The county named on a certificate is a venue statement, not a jurisdictional limit, for most notarial acts; a notary commissioned statewide may act anywhere in the state. The notary should not alter a preprinted certificate to misstate where the act occurred. Instead, the notary should either use a correct certificate or add a proper venue line reflecting the actual county, and if the form cannot be corrected, decline to use it and attach a conforming certificate. As for the journal, the notary must not proceed without the required record if the state mandates a journal. The notary should obtain or create a compliant journal entry-date, time, signer name, document type, identification method, and fee-before or immediately at the act, and never rely on a loose sheet that can be lost or altered. If no compliant record can be made, the notary should reschedule rather than perform an unrecorded act.
3. What should the notary do about the expiring commission?
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A notarial act is valid if performed while the commission is in force. The act on this date is within the commission, so the 11-day expiration does not invalidate it. However, the notary should verify the commission is still active (not suspended or surrendered), should not accept assignments beyond the expiration date, and should advise the title company that any later corrective act would require a renewed commission. The notary should also confirm the seal and commission number are current and legible, since a defective seal can cause recording rejection even when the underlying act is valid. The deadline pressure is not a basis for shortcuts.