The Oath Taken Too Late
On March 1, the Secretary of State issues Devon a five-year notary commission. The commission certificate states that he must take and file the oath of office within three months. Devon is busy; he does not take the oath until May 20, when a justice of the peace administers it. On April 15, before taking the oath, he notarizes a mortgage discharge for a neighbor, signing and stamping the certificate. He files the oath with the Secretary of State on June 10. In July, a title company questions the April 15 notarization. Devon says the commission was already issued, so the date of the oath should not matter, and he offers to re-sign the April document with the May date. He asks whether the April notarization is valid, whether his commission is in good standing, and what he should do about the title company's objection.
1. Was Devon authorized to perform the April 15 notarization?
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No. A notary commission does not authorize notarial acts until the notary has taken the oath of office as required by law. The commission certificate is the appointment; the oath is what puts the notary into office and allows him to act. On April 15 Devon had been appointed but had not taken the oath, so he lacked authority. The title company is right to question the certificate. The defect is not cured by the fact that the commission had already been issued, and it is not cured by Devon later taking the oath. A notarial act performed before authority begins is void, not merely irregular.
2. What is the effect of taking the oath on May 20 and filing it on June 10?
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The May 20 oath was taken within three months of March 1, but the filing on June 10 was late. New Hampshire requires both taking and filing the oath within the statutory period; a late filing can void the commission. Devon should not assume he is in good standing simply because the justice of the peace administered the oath on May 20. He should contact the Secretary of State immediately and confirm the status of the commission in writing. If the commission is void, he must stop notarizing and apply for a new commission. He cannot fix the problem by backdating the oath, altering the April certificate, or asking the justice of the peace to change the date.
3. What should Devon do about the title company's objection and the April document?
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He should tell the title company the truth: the April 15 act was performed before he took the oath, so it is not valid. He must not alter the original certificate or re-sign it with a May date. The parties should arrange a new notarial act before a properly authorized notary. If Devon later obtains a valid commission, he may notarize a new certificate only if the signer personally appears before him again; he cannot simply re-stamp the old document. He should preserve the original as it is, document what happened, and cooperate with the title company. Concealing the defect would turn a procedural problem into a dishonesty problem.