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Acknowledgements Outside the United States

Acknowledgements

In the absence of a "flag" or apostile, can a notary public in another country validly acknowledge an instrument that affects Massachusetts property. G.L.c. 183, §30(c) tells us that an acknowledgment taken outside the United States is satisfactory if it is "before a justice of the peace, notary, magistrate or commissioner as above provided" (emphasis added) or certain United States officials. The italicized words ("as above provided") require us to review clause (b) of the statute to see what the reference is to. Clause (b) tells us that an acknowledgment outside of Massachusetts, but within the United States is satisfactory if it is "before a justice of the peace, notary public, magistrate or commissioner appointed therefor by the governor of this commonwealth" or, "if a certificate of authority in the form prescribed by section thirty-three is attached," before any other officer authorized to take acknowledgments of deeds.

So, to understand clause (c) we first have to understand clause (b). Clause (b) is broken up into two parts: it permits named officers ("justice of the peace, notary public, magistrate or commissioner appointed therefor by the governor") to take acknowledgments and also permits "any other officer" (i.e., those that are not included in the foregoing list) to take acknowledgments, provided there's an attached certificate under section thirty-three (i.e., an "apostile"). Notaries public are in the first listing, so an apostile would seem unnecessary. (Land Court Guideline 2 is at variance with this and does not even mention the other officer, but states that acknowledgments outside the United States even when made before a justice of the peace or a notary public require the apostile.)

One question still remains, however. Clause (b), to which clause (c) makes reference, contains the phrase "appointed therefor by the governor." This phrase is necessarily translated to clause (c) because of the phrase in the latter clause to "justice of the peace, notary, magistrate or commissioner as above provided." But what does the phrase "appointed therefor by the governor" mean and what does it modify? Who has to be appointed by the governor in order to act under this clause? The words cannot be referring to "notary public" which appears previously in the sentence, because if that were the case notaries public in every state within the United States would have to be appointed by the governor of Massachusetts in order for their acknowledgments to be effective in Massachusetts. Of course, that's not the case. Under such a strained interpretation, clause (b) would have to be read as inserting the words "appointed therefor by the governor of Massachusetts" after each of the officers enumerated therein, including notaries public. It appears, therefore, that a notary public in another country is qualified to take acknoweldgement without the aid of an apostile or an appointment by our governor.

So, what do the words "appointed by the governor of this commonwealth" in fact refer to? The reference must be to appointnments permitted to be made by the governor of commissioners, as provided under G.L.c. 222. Under section 4 of that statute the governor may, with the advice and consent of the governor's council, appoint commissioners whose duties include, under section 6 of the statute, the authority to "take . . . acknowledgments of deeds." Additionally, the punctuation of the statute provides a comma, or disjunction, after each of the listed officers enumerated therein, including "notary public," but places no comma after the word "commissioner," which indicates to me that the language "appointed therefor by the governor of this commonwealth" is intended to modify that word alone, consistent with the provisions of G.L.c. 222. Such an interpretation is consistent with the ordinary rules of statutory construction. "It is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation."Baldiga v. Board of Appeals of Uxbridge, 395 Mass. 829, 482 N.E.2d 809 (1985).