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Acknowledgments by or before a Grantee

An acknowledgement is necessary in order for an instrument enrolled in the recording records to impart constructive notice to the world. An improperly acknowledged instrument, even though accepted for recordation, will not impart such notice and the document's recordation (but not the document itself) will be a nullity, See Pidge v. Tyler, 4 Mass. 541 (1808).

It's simple enough to spot a bad acknowledgement when the grantors, or at least one of them, fails to appear before a notary or the notary fails to affix the appropriate certificate to the instrument. That goes to the question of who must acknowledge the instrument. In Gordon v. Gordon, 8 Mass.App.Ct. 860, 398 N.E.2d 497 our court said that the statute (G.L.c. 183, §30) simply requires that the party giving the acknowledgment have a freehold interest in the property. That would mean (and it was so held in Gordon) that this requirement would be satisfied even where, in the case of two grantors, only one of them acknowledges the deed wherein the grantors convey the property to that person.

The Gordon decision revolved around a deed from husband and wife to the wife, which the wife alone acknowledged. REBA's Title Standard 16 suggests in its Comment that Gordon is limited to situations involving married persons, but that is not the case. The issue in Gordon was complicated by, and the court therefore focused on, the fact that the parties were married and held title as tenants by the entirety, which raised the very interesting issue as to whether the wife alone could qualify as a "grantor" since at common law a tenancy by the entirety was a unitary title between both husband and wife. The court simply said, "With regard to the present case, we need not rely directly on this rather abstruse concept of a fictitious unity of persons, [footnote omitted] in view of the foregoing judicial interpretations of the word "grantor." The ruling would be equally applicable to situations where the parties were not married (the only difference being that the court would not have to address the tenancy by the entirety issue). The Gordon case was further complicated by the fact (not applicable to conveyances between non-spouses) that at the time of the conveyance (but no longer the case, as the applicable statute has been amended) a deed between spouses would not be effective even as to them until it was actually duly recorded. The validity of the acknowledgment, therefore, was crucial, because if the instrument was not properly acknowledged than the recording, and therefore the conveyance itself, would be void.

The point of Gordon is that a deed acknowledged by one of the grantors who is also the grantee will, when accepted for recording, be deemed duly enrolled in the public records and thereby impart constructive notice to the world.

The Gordon case answered the question as to who can give an acknowledgment. But a related question is who may take the acknowledgment? In Patton on Titles, West Publishing Company (Second Edition, 1957) states in Section 356 this is said:

Public policy forbids that the act of taking and certifying the acknowledgment should be performed by a person financially or beneficially interested in the transaction. Such disqualification naturally includes the signer of the instrument, his grantee, mortgagee, trustee, beneficiary or assignee, a member of the partnership in whose favor the instrument is drawn, and, except where the disability has been removed by statute, stockholder[s] of a corporation which is a party to [the] conveyance. (Citations omitted).

The case of Cooper v. Monroe, 237 Mass. 192, 129 N.E. 436 involved an acknowledgment taken before a grantee. But the issue in that case did not concern the validity of the acknowledgment(and thus did not turn on the effectiveness of the recordation of the instrument), but rather revolved around the effectiveness of the deed itself as between the grantor and the grantee. Obviously, a deed that is not acknowledged, or defectively acknowledged will bind the parties, whether or not it is recorded or its recordation is effective. The statute (G.L.c. 183, §30) provides so. The court said, "It is well settled that a deed duly signed, sealed and delivered is sufficient as between the original parties, although the instrument is not acknowledged or recorded." So, the Cooper court did not have to, and in fact did not, answer the question as to whether the acknowledgment was defective. The case of Judd v. Tyron, 131 Mass. 345 (1881), however, would suggest that if Cooper had answered the question, it would have held that the acknowledgement was defective. In Judd the court held that a certificate of entry sworn to before the foreclosing mortgagee himself, he being a justice of the peace, was void.