ACKNOWLEDGMENT-An acknowledgment is the act of one who has executed an instrument in going before a notary or other official authorized to take the acknowledgment and declaring it to be his voluntary act.
AFFIDAVITS-An affidavit is simply a written statement sworn to before an officer authorized to administer an oath. A person “makes” an affidavit by going before a notary or other officer and swearing to the contents of a written document. A notary “takes” an affidavit by administering the oath and completing the certificate.
AFFIRMATION-A person who objects to swearing may make an affirmation. In such case, the notary would ask, “Do you solemnly and sincerely affirm under the penalties of perjury that the statements contained in this affidavit are true?” The notary would change the jurat to show that the affiant affirmed rather than swore.
AFFIANT-The person who is making the affidavit.
JURAT-A notary’s certificate on an affidavit is called a jurat.
In a typical acknowledgment ceremony the notary examines the document, declaration, or avowal of one's act or of a fact to give it legal validity . The document, declaration, or avowal is signed in the presence of the notary. “Do you acknowledge the execution of this (name the document--deed, mortgage, etc.) to be your free act and deed?” The acknowledger says, “Yes,” and the notary completes the certificate.
On this _____ day of ________________, 20____, before me personally appeared ___________________________, to me known to be the person who executed the foregoing instrument, and acknowledged that he executed the same of his own free act, and deed.
It is important that in connection with an acknowledgment that the notary identifies the person making the acknowledgment. Failure to do so could result in financial loss to someone who relied on the notary’s certificate. It could also result in an effort on the individual’s part to recover his loss from the notary. These cases could involve impersonation or forgery or both. The crucial question then becomes “what degree of care was exercised by the notary to ascertain the identity of the person making the acknowledgment.” A driver’s license might be used to identify the acknowledger. The notary must be certain that the acknowledger is who he purports to be. A notary is a public officer and a great deal of faith and confidence is placed in his or her official acts.
IDENTITY OF AFFIANT-In most states it is not necessary for a notary to request identification of a person making an affidavit because he does not vouch for his identity in any way. The notary’s certificate merely says that the document was “sworn to” on a specified date. However, there is nothing wrong with asking for identification, and if might in fact be a good idea to do so. Properly an affidavit should be taken in the following manner: the notary and the affiant should stand facing each other with raised right hand and the notary should then say, “Do you solemnly swear that the statements contained in this affidavit are the truth, so help you, God?” However, the essential thing is that the affiant be made to realize that he or she is taking an oath. This fact should be impressed upon the affiant.
NOTARY A PARTY - AFFIDAVIT-Obviously a notary can not appear before himself or take his own affidavit. While it is not illegal for a notary to take a relative’s affidavit, it is not advisable to do so. If the subject matter is something that would benefit the notary or a relative, it is not considered a good business practice. Still is not illegal for a notary to witness the signatures of close friends and relatives. There are, however, federal and state courts which do have special rules governing the taking of depositions for use in court.
There are three things necessary for a valid affidavit, and all three must be present at the same time: (1) the affiant, (2) the notary, and (3) the document. The affiant must swear to and sign the affidavit in the presence of the notary. These three elements of a properly made affidavit are embodied in the notary’s jurat which reads:
Subscribed and sworn to (or affirmed) before me this ______ day of ____________, 20____.
South Dakota law makes it a Class 2 misdemeanor for any notary public to affix his official signature to documents when the parties have not appeared before him. Furthermore, it could well be the unwitting notarization of a forgery, notarization of the signature of a deceased person, or other such irregularity.
It is also well to remember that there are times when a notary may be called upon to appear in court to testify as to the validity of a signature he has witnessed and notarized.
While South Dakota law no longer requires a register be kept by a notary, it would certainly be to the advantage of the notary to do so. Most lawsuits against notaries could be avoided if the notary kept a record. Such register should include at a minimum some of the following information:
-Date and time of notarization or acknowledgment
-Kind of document being notarized or acknowledgment
-Name and address of parties whose signatures are being notarized
-Possibly have the parties sign the register
There are other details which might be included such as land description, kinds of identification presented, number of pages to document, etc.
The notary journal serves as an excellent form of legal protection for the notary for two important reasons:
The notary journal and seal should always be kept in a safe and secure place.