The Deed with the Wrong Venue
Doug is a Kansas notary in Johnson County. A title company emails him a Kansas quitclaim deed for a client who signed the deed last week while in Missouri. The deed already has a preprinted acknowledgment reading: 'State of Missouri, County of Jackson. The foregoing instrument was acknowledged before me on ______ by ______.' The date and notary lines are blank. The client, who is Doug's neighbor, mails the signed deed to Doug with a note: 'Just stamp it and fill in the blanks-I don't want to drive back.' Doug did not see the client sign and has not spoken with him about the deed. The deed transfers the client's Kansas rental property to the client's son. The county register of deeds will reject documents with defective acknowledgments. Doug has a Kansas notary seal and an active commission.
1. Can Doug complete the preprinted Missouri acknowledgment and mail the deed back? Explain the personal-appearance and venue requirements.
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No. An acknowledgment requires the signer to appear personally before the notary. The notary must identify the signer and hear the signer acknowledge that the signature is voluntary. Doug did not see the client sign, and the client is not appearing before him now. A mailed or emailed request is not personal appearance. Doug cannot lawfully complete the certificate just because he knows the neighbor. Venue is also wrong: the certificate must state the state and county where the notarial act is performed. If Doug performs the act in Johnson County, Kansas, the correct venue is State of Kansas, County of Johnson, not Missouri, Jackson County. Filling in the Missouri venue while Doug is in Kansas would falsely certify the place of the act. The fact that the client originally signed in Missouri does not make Doug's later Kansas act a Missouri act.
2. What is wrong with the certificate, and how should Doug correct it if the client later appears before him in Kansas?
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The certificate has two defects: it identifies the wrong venue and it has no date of notarial act. If the client later appears before Doug in Kansas, Doug should not simply write over the Missouri venue and make it look as if the preprinted certificate was always correct. The cleanest approach is to prepare a new Kansas acknowledgment certificate with the correct venue, the date of the client's appearance before Doug, and a statement that the client personally appeared and acknowledged the deed. If the deed itself has room, Doug may complete a corrected certificate on the document, clearly showing the correction. If the register of deeds accepts a separate certificate, Doug may attach one that clearly identifies the deed. He should follow the recording office's requirements. He must not backdate the certificate to the date the client originally signed in Missouri, because the notarial act occurs when the client appears before Doug.
3. If the client refuses to appear, what options does Doug have, and what should he not do?
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If the client refuses to appear, Doug must decline to notarize. The client can appear before a Missouri notary in Jackson County and complete the Missouri acknowledgment, if the client is still in Missouri and the Missouri notary can lawfully perform the act. Or the client can come to Kansas and appear before Doug or another Kansas notary. The deed may also need to be re-executed if the recording office will not accept a corrected certificate. Doug should not stamp the deed, fill in the blanks, and mail it back. He should not notarize by video or phone unless Kansas remote online notarization requirements are satisfied and the client is properly identified and located, and he should not pretend the act occurred in Missouri. A defective acknowledgment can cause the register of deeds to reject the deed and can expose Doug to discipline for falsely certifying the act.