We recently received a report that certain Register of Deeds offices will no longer accept instruments for recording that contain a notary acknowledgment with a seal that has anything in it other than "the name of the notary exactly as it appears on the commission, the name of the county in which appointed and qualified, the words "North Carolina" or an abbreviation thereof, and the words ‘Notary Public’" as provided in G.S. 10A-11. This is specifically addressing seals that contain " my commission expires ______" language.

This position is based upon an informal opinion by V. Lori Fuller, Assistant Attorney General, to Blaine Perkins, Director Notary Public Division, and Office of the Secretary of State. In summary, the opinion takes the position that the above-cited statute does not require an expiration statement (and apparently by implication therefore does not permit one) and writing the date in the blank is an improper alteration. Bill Campbell of the Institute of Government concurs and states "Such a seal is invalid and an acknowledgment on which such a seal has been placed is not in due form." We think that this is an unnecessarily narrow interpretation.

Since ink stamp seals containing the commission expiration line have been widely used, this conclusion would have the effect of invalidating countless conveyances if accepted as the law in this state. An acknowledgment of a grantor's execution of an instrument is not required for its validity as between the parties. However, valid acknowledgment is essential in order for the instrument to be validly recorded and effective as against creditors and purchasers for value. G. S. 47-14(a) provides "When the proof or acknowledgment of the execution of any instrument, required or permitted by law to be registered, is had before any other official than the register of deeds of the county in which the instrument is offered for registration, the register of deeds shall examine the certificate or certificates of proof or acknowledgment appearing upon the instrument, and if it appears on the face of the instrument that the execution thereof by one or more of the signers has been duly proved or acknowledged and the certificate or certificates to that effect are in due form, he shall so certify, and shall register the instrument, together with the certificates." And 47-14(d) provides that "Registration of an instrument pursuant to this section is not effective with regard to parties who have not executed the instrument or whose execution thereof has not been duly proved or acknowledged."

The following points can be made to support an opinion that these seals are acceptable. G.S. 10A-2. captioned "Purposes," which is part of the article governing Notaries, provides as follows: "This Chapter shall be construed and applied to advance its underlying purposes, which are:

(1) To promote, serve, and protect the public interests.

(2) To simplify, clarify, and modernize the law governing notaries."

It would seem that the narrow construction relied upon by the Attorney General’s office would run contrary to these stated purposes.

G.S.10A-9 sets forth the powers and limitations of a notary. G.S.10A-9(b) states that "A notarial act shall be attested by all of the following:

(1) The signature of the notary, exactly as shown on the notary's commission.

(2) The readable appearance of the notary's name, either from the notary's signature or otherwise.

(3) The clear and legible appearance of the notary's stamp or seal.

(4) A statement of the date the notary's commission expires."

Since the expiration is required, as well as the seal, it would seem that the type of seal in question is in substantial compliance with the requirements of the Article. Note that G.S. 10A-11 mandates that "A notary public shall provide and keep an official stamp or seal. The stamp or seal shall clearly show and legibly reproduce under photographic methods, when embossed, stamped, impressed, or affixed to a document. A notary public shall replace a seal that has become so worn that it can no longer clearly show or legibly reproduce under photographic methods the information required by this section. The stamp or seal is the property and responsibility of the notary whose name appears on it." This section states what is required for the seal to show, but does not in any way limit what the seal may show. Interestingly, the circles contained in most traditional seals are not required by the statutes either, yet they do not seem to present any problem.

G.S. 47-38, and similar statutes setting forth the form of acknowledgment, provide "Where the instrument is acknowledged by the grantor or maker, the form of acknowledgment shall be in substance as follows:...." With regard to acknowledgments in general it is well established that variations in the form do not necessarily render the acknowledgment invalid if the acknowledgment is in substantial compliance with the statute. Freeman v. Morrison, 214 N. C. 240, 199 S. E. 12 (1938), establishes what constitutes a valid acknowledgment. In Freeman, our Supreme Court stated,

"The courts uniformly give to certificates of acknowledgement a liberal construction, in order to sustain them if the substance be found, and the statute has been substantially observed and followed. It is accordingly a rule of universal application that a literal compliance with the statute is not to be required of a certificate of acknowledgement, and that, if it substantially conforms to the statutory provisions as to the material facts to be embodied therein, it is sufficient."

It would seem that since the statutes have no express limitations on what a seal may contain and acknowledgments do not have to precisely follow the statutory form that the seals in question should be acceptable as to content; therefore, the form of the seal in question should be acceptable. As for the alteration issue, it seems that filling in a blank information line contained within the bounds of the seal imprint is not an alteration of the required components of the seal and should also be acceptable.

Until a formal opinion is issued, or an appellate court rules against the form of seal in question, we will insure existing conveyances without exception, unless the certifying attorney is aware of a likely contest of the validity of the instrument. There exist some curative statutes, set out below, that may salvage older recorded instruments if they turn out to be improperly acknowledged.

 § 10A-16. Acts of notaries public in certain instances validated

(a) Any acknowledgment taken and any instrument notarized by a person prior to qualification as a notary public but after commissioning or recommissioning as a notary public, or by a person whose notary commission has expired, is hereby validated. The acknowledgment and instrument shall have the same legal effect as if the person qualified as a notary public at the time the person performed the act.

(b) All documents bearing a notarial seal in which the date of the expiration of the notary's commission is erroneously stated, or having a notarial seal that does not contain a readable impression of the notary's name, fails to contain the words "North Carolina" or the abbreviation "N. C.," or contains correct information except that instead of the abbreviation for North Carolina contains the abbreviation for Georgia, are validated and given the same legal effect as if the errors had not occurred.

(c) All deeds of trust in which the notary was named in the document as a trustee only are validated.

(d) This section applies to notarial acts performed before October 1, 1991.

G.S. 47-2.2. Notary public of sister state; lack of seal or stamp or expiration date of commission

If the proof or acknowledgment of any instrument is had before a notary public of any state other than North Carolina and the instrument does not show the seal or stamp of the notary public and the expiration date of the commission of the notary public, the certificate of proof or acknowledgment made by such notary public shall be accompanied by the certificate of the county official before whom the notary qualifies for office, stating that such notary public was at the time his certificate bears date an acting notary public of such state, and that such notary's genuine signature is set to his certificate. The certificate of the official herein provided for shall be under his hand and official seal.

G.S. 47-53.1. Acknowledgment omitting seal of notary public

Where any person has taken an acknowledgment as a notary public and has failed to affix his seal and such acknowledgment has been otherwise duly probated and recorded then such acknowledgment is hereby declared to be sufficient and valid: Provided this shall apply only to those deeds and other instruments acknowledged prior to January 1, 1991.

Unless the Attorney General’s office can be prevailed upon to reconsider its opinion, legislation may be required in order to clear up the status of conveyances with acknowledgments bearing questionable seals. In the interim, if an instrument bearing such a seal must be recorded and an acceptable seal cannot be secured or if, for some reason, the grantors are unavailable to reacknowledge, it may still be possible to get it recorded.

G.S. 47-14 (a) contains the authority for the Register of deeds to pass on certificates and register instruments. "When the proof or acknowledgment of the execution of any instrument, required or permitted by law to be registered, is had before any other official than the register of deeds of the county in which the instrument is offered for registration, the register of deeds shall examine the certificate or certificates of proof or acknowledgment appearing upon the instrument, and if it appears on the face of the instrument that the execution thereof by one or more of the signers has been duly proved or acknowledged and the certificate or certificates to that effect are in due form, he shall so certify, and shall register the instrument, together with the certificates. No certification is required when the proof or acknowledgment is before the register of deeds of the county in which the instrument is offered for registration."

G.S. 47-14(b) and (c) provide that "If a register of deeds denies registration pursuant to subsection (a), the person offering the instrument for registration may present the instrument to a judge, as provided in subsection (c), and he shall examine the certificate or certificates of proof or acknowledgment appearing upon the instrument, and if it appears on the face of the instrument that the execution thereof by one or more of the signers has been duly proved or acknowledged and the certificates to that effect are in due form, he shall so adjudge, and shall order the instrument to be registered, together with the certificates, and the register of deeds shall register them accordingly.

(c) When a district court has been established in the district including the county in which the instrument is to be registered, application for an order for registration pursuant to subsection (b) shall be made to any judge of the district court in the district including the county in which the instrument is to be registered..."

This procedure would require the district court to accept the interpretation advocated in this article and order registration.