South Carolina General Assembly
114th Session, 2001-2002

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Bill 4921


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                      4921
Type of Legislation:              General Bill GB
Introducing Body:                 House
Introduced Date:                  20020319
Primary Sponsor:                  W.D. Smith
All Sponsors:                     W.D. Smith
Drafted Document Number:          l:\council\bills\swb\5112djc02.doc
Residing Body:                    House
Current Committee:                Judiciary Committee 25 HJ
Subject:                          Uniform Law on Notarial Acts


                        History

Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
House   20020319  Introduced, read first time,           25 HJ
                  referred to Committee


              Versions of This Bill

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(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND CHAPTER 1, TITLE 26, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO NOTARIES PUBLIC, BY ADDING ARTICLE 3, SO AS TO ENACT "THE UNIFORM LAW ON NOTARIAL ACTS" INCLUDING PROVISIONS TO PROVIDE DEFINITIONS RELATING TO NOTARIAL ACTS, TO PROVIDE FOR NOTARIAL ACTS IN THIS STATE AND IN OTHER JURISDICTIONS OF THE UNITED STATES, TO PROVIDE FOR NOTARIAL ACTS UNDER FEDERAL AUTHORITY AND FOR FOREIGN NOTARIAL ACTS, TO PROVIDE FOR CERTIFICATES AND SHORT FORMS FOR NOTARIAL ACTS, DESIGNATE SECTIONS 26-1-10 THROUGH 26-1-120 AS ARTICLE 1, CHAPTER 1, TITLE 26, ENTITLED "GENERAL PROVISIONS", AND TO REPEAL CHAPTER 3, TITLE 26, "THE UNIFORM RECOGNITION OF ACKNOWLEDGEMENTS ACT".

Commissioners' Prefatory Note

    This Uniform Act is designed to define the content and form of common notarial acts and to provide for the recognition of such acts performed in other jurisdictions. It thus replaces two Uniform Laws, the Uniform Acknowledgment Act (As Amended), and the later Uniform Recognition of Acknowledgments Act. The original Acknowledgment Act served to define the content and form of acknowledgments. The Recognition Act later provided for more specific rules for recognition of acknowledgments and "other notarial acts" from outside of the State, although its title was more narrowly stated.

    This statute is thus a consolidation, extension, and modernization of the two previous acts. It consolidates the provisions of the two acts relating to acknowledgments of instruments. It extends the coverage of the earlier act to include other notarial acts, such as taking of verifications and attestation of documents.

    In addition, the act seeks to simplify and clarify proof of the authority of notarial officers.

Be it enacted by the General Assembly of the State of South Carolina:

Uniform Law on notarial acts

SECTION    1.    Chapter 1, Title 26 of the 1976 Code is amended by adding:

"Article 3

Uniform Law on Notarial Acts

    Section 26-1-300.    Short title.    This article may be cited as the 'Uniform Law on Notarial Acts'.

    Section 26-1-310.    Definitions.    For purposes of this article:

    (1)    'Notarial act' means any act that a notary public of this State is authorized to perform, and includes taking an acknowledgment, administering an oath or affirmation, taking a verification upon oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy, and noting a protest of a negotiable instrument.

    (2)    'Acknowledgment' means a declaration by a person that the person has executed an instrument for the purposes stated therein and, if the instrument is executed in a representative capacity, that the person signed the instrument with proper authority and executed it as the act of the person or entity represented and identified therein.

    (3)    'Verification upon oath or affirmation' means a declaration that a statement is true made by a person upon oath or affirmation.

    (4)    'In a representative capacity' means:

        (a)    for and on behalf of a corporation, partnership, trust, or other entity, as an authorized officer, agent, partner, trustee, or other representative;

        (b)    as a public officer, personal representative, guardian, or other representative, in the capacity recited in the instrument;

        (c)    as an attorney in fact for a principal; or

        (d)    in any other capacity as an authorized representative of another.

    (5)    'Notarial officer' means a notary public or other officer authorized to perform notarial acts.

    COMMENT

    This Uniform Law defines common notarial acts and provides for the recognition of notarial acts performed in other states and in foreign jurisdictions. It does not prescribe the qualifications of notaries public or other officers empowered to perform notarial functions, nor does it establish the procedure for their selection or term of office.

    The Act uses the term "notarial officer" to describe notaries public and other persons having the power to perform "notarial acts." These notarial acts are described in Section 2. Section 3 then describes who, in addition to notaries public, is a notarial officer in this state; Sections 4, 5, and 6 provide for the recognition of acts of notarial officers appointed by other jurisdictions.

    Section 26-1-320.    Notarial acts.        (A)    In taking an acknowledgment, the notarial officer must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the officer and making the acknowledgment is the person whose true signature is on the instrument.

    (B)    In taking a verification upon oath or affirmation, the notarial officer must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the officer and making the verification is the person whose true signature is on the statement verified.

    (C)    In witnessing or attesting a signature the notarial officer must determine, either from personal knowledge or from satisfactory evidence, that the signature is that of the person appearing before the officer and named therein.

    (D)    In certifying or attesting a copy of a document or other item, the notarial officer must determine that the proffered copy is a full, true, and accurate transcription or reproduction of that which was copied.

    (E)    In making or noting a protest of a negotiable instrument the notarial officer must determine the matters set forth in Section 36-3-509 of the Uniform Commercial Code.

    (F)    A notarial officer has satisfactory evidence that a person is the person whose true signature is on a document if that person:

        (1)    is personally known to the notarial officer;

        (2)    is identified upon the oath or affirmation of a credible witness personally known to the notarial officer; or

        (3)    is identified on the basis of identification documents.

    COMMENT

    This section authorizes common notarial acts. It does not limit other acts which notaries may perform, if authorized by other laws.

    Subsection (a) specifies what a notarial officer certifies by taking an acknowledgment. The notarial officer certifies to two facts: (1) the identity of the person who made the acknowledgment and (2) the fact that this person signed the document as a deed (or other specific instrument), and not as some other form of writing. The personal physical appearance of the acknowledging party before the notarial officer is required. An acknowledgment, as defined in Section 1(2) is a statement that the person has signed and executed an instrument; it is not the act of signature itself. Hence a person may appear before the notarial officer to acknowledge an instrument which that person had previously signed.

    Similarly subsection (b) specifies the requisites of taking of a verification on oath or affirmation. There are again two elements: (1) the identity of the affiant and (2) the fact that the statement was made under oath or affirmation. Here again, the personal physical presence of the affiant is required.

    Subsection (c) defines the requirements for witnessing (or attesting) a signature. Here only the fact of the signature, not the intent to execute the instrument, is certified by the notarial officer.

    Subsection (d) defines the standards for attestation or certification of a copy of a document by a notarial officer. This is commonly done if it is necessary to produce a true copy of a document, when the original cannot be removed from archives or other records. In many cases, the custodian of official records may also be empowered to issue official certified copies. Where such official certified copies are available, they constitute official evidence of the state of public records, and may be better evidence thereof than a notarially certified copy.

    Subsection (e) refers to a provision of the Uniform Commercial Code which confers authority to note a protest of a negotiable instrument on notaries and certain other officers.

    Subsection (f) describes the duty of care which the notarial officer must exercise in identifying the person who makes the acknowledgment, verification or other underlying act. California law, for example, provides an exclusive list of identification documents on which the notarial officer may rely. These are documents containing pictorial identification and signature, such as local drivers' licenses, and U.S. passports and military identification papers, issued by authorities known to exercise care in identification of persons requesting such documentation.

    Section 26-1-330.    Notarial acts in this State.    (A)    A notarial act may be performed within this State by the following persons:

        (1)    a notary public of this State;

        (2)    a judge, clerk or deputy clerk of any court of this State;

        (3)    a person licensed to practice law in this State;

        (4)    a person authorized by the law of this State to administer oaths; or

        (5)    another person authorized to perform the specific act by the laws of this State.

    (B)    Notarial acts performed within this State under federal authority as provided in Section 26-1-360 have the same effect as if performed by a notarial officer of this State.

    (C)    The signature and title of a person performing a notarial act are prima facie evidence that the signature is genuine and that the person holds the designated title.

    COMMENT

    Subsection (a) lists the persons who are entitled to serve as notarial officers in the state. In addition to notaries public, all judges, clerks and deputy clerks of courts of the state may automatically perform notarial acts. The language follows the more modern form of the Uniform Recognition of Acknowledgments Act. It is more abbreviated that the Uniform Acknowledgments Act, in that it consolidates the several judicial offices into one listing. Several optional additional notarial officers are listed. A state may authorize all duly licensed attorneys at law to serve as notaries public by virtue of their attorneys' licenses. It may also authorize other individuals who have authority to administer oaths to do so. If other particular officers, such as recorders or registrars of deeds or commissioners of titles, may perform notarial acts in the state it would be advisable to list them here, because this list will be a ready reference point for those who seek to determine the validity of their acts, when they are used in another state.

    Section 26-1-340.    Notarial acts in other jurisdictions of the United States.    (A)    A notarial act has the same effect under the law of this State as if performed by a notarial officer of this State, if performed in another state, commonwealth, territory, district, or possession of the United States by any of the following persons:

        (1)    a notary public of that jurisdiction;

        (2)    a judge, clerk, or deputy clerk of a court of that jurisdiction; or

        (3)    any other person authorized by the law of that jurisdiction to perform notarial acts.

    (B)    Notarial acts performed in other jurisdictions of the United States under federal authority as provided in Section 5 have the same effect as if performed by a notarial officer of this State.

    (C)    The signature and title of a person performing a notarial act are prima facie evidence that the signature is genuine and that the person holds the designated title.

    (D)    The signature and indicated title of an officer listed in subsection (A)(1) or (A)(2) conclusively establish the authority of a holder of that title to perform a notarial act.

    COMMENT

    Sections 4, 5, and 6 of this act are adapted from Sections 1 and 2 of the Uniform Recognition of Acknowledgments Act. That Act set forth the individuals outside of the state who could take acknowledgments or perform other notarial acts, and separately set forth the authentication of those acts which was necessary. Different standards applied in the cases of persons acting under the authority of another state, of the federal government, or of a foreign country. This statute distinguishes between the three kinds of authority from outside the state, and provides the authentication separately for each type.

    Subsection (a) is adapted from Section 1 of the Uniform Recognition of Acknowledgments Act.

    Subsection (b) gives prima facie validity to the signature and assertion of title of the person who acts as notarial officer. It follows Section 2(d) of the Uniform Recognition of Acknowledgments Act. It thus provides the first two elements of proof of authority of the notarial officer set forth in the comments to Section 3.

    Subsection (c) provides the third element of that proof of authority. It recognizes conclusively the authority of a notary public or of a judge or clerk or deputy clerk of court to perform notarial acts, without the necessity of further proof that such an officer has notarial authority. It is copied from Section 2(a) of the Uniform Recognition of Acknowledgments Act. These two subsections abolish the need for a "clerk's certificate" to authenticate the act of the notary, judge, or clerk. The authority of a person other than a notary, judge, or clerk to perform notarial acts can most readily be proven by reference to the law of that state. Any other form of proof of such authority acceptable in the receiving jurisdiction, such as a clerk's certificate, as is currently provided by Section 2(c) of the Uniform Recognition of Acknowledgments Act, would also suffice.

    Section 26-1-350.    Notarial acts under federal authority.    (A)    A notarial act has the same effect under the law of this State as if performed by a notarial officer of this State if performed anywhere by any of the following persons under authority granted by the law of the United States:

        (1)    a judge, clerk, or deputy clerk of a court;

        (2)    a commissioned officer on active duty in the military service of the United States;

        (3)    an officer of the foreign service or consular officer of the United States; or

        (4)    another person authorized by the law of this State or federal law to perform notarial acts.

    (B)    The signature and title of a person performing a notarial act are prima facie evidence that the signature is genuine and that the person holds the designated title.

    (C)    The signature and indicated title of an officer listed in subsection (A)(1), (A)(2), or (A)(3) conclusively establish the authority of a holder of that title to perform a notarial act.

    COMMENT

    Some acknowledgments are performed by persons acting under federal authority, or holding office under federal authority. This section provides for the automatic recognition of those notarial acts within the enacting state. The list of persons whose acts are immediately recognized by this section is drawn from Section 1 of the Uniform Recognition of Acknowledgments Act, but has been simplified. This law no longer limits recognition of the notarial acts performed by military officers to acts performed for persons in the military service "or any other persons serving with or accompanying the armed forces of the United States." Such a limitation in recognition merely places another cloud on the validity of the notarial act. The act does not purport to extend the authority of military officers to perform these acts, but merely immunizes the private party relying on them from any consequences of the officer's excess of authority. Both in the case of commissioned military officers and foreign service officers, the language has been modified to reflect modern descriptions of the offices in question. In both instances, the further reference to "any other person authorized by regulation" has also been omitted as duplicative of paragraph 4 of this subsection.

    Subsection (b), like its counterpart in Section 4, is drawn from Section 2(d) of the Uniform Recognition of Acknowledgments Act. It confers prima facie validity upon the signature and assertion of rank or title by the notarial officer, thus providing the first two elements of proof described in the comments to Section 3.

    Subsection (c) is drawn from Section 2(a) of the same law. It provides the third element of proof of the notarial officer's authority. It immediately recognizes the authority of a judge or clerk, or military officer or foreign service or consular officer to perform notarial acts, without the necessity of further reference to the federal statutes or regulations to prove that the officer has notarial authority. There is no need for further authentication of these persons' authority to perform notarial acts. A variety of other federal officers may be authorized to perform notarial acts, such as wardens of federal prisons, but their authority must be demonstrated by other means. The authority of such an officer to perform the notarial act can most readily be demonstrated by reference to the federal law or published regulation granting such authority. Any other form of authentication, such as a clerk's certificate, could also be used.

    A military officer who performs notarial services should insert the appropriate title (e.g., commanding officer) in the place designated for "title (and rank)" to conform to 10 U.S.C. Section 936(d).     The officer's rank and branch of service should also be inserted there.

    Section 26-1-360.    Foreign notarial acts.    (A)    A notarial act has the same effect under the law of this State as if performed by a notarial officer of this State if performed within the jurisdiction of and under authority of a foreign nation or its constituent units or a multi-national or international organization by any of the following persons:

        (1)    a notary public or notary;

        (2)    a judge, clerk, or deputy clerk of a court of record; or

        (3)    any other person authorized by the law of that jurisdiction to perform notarial acts.

    (B)    An 'Apostille' in the form prescribed by the Hague Convention of October 5, 1961, conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

    (C)    A certificate by a foreign service or consular officer of the United States stationed in the nation under the jurisdiction of which the notarial act was performed, or a certificate by a foreign service or consular officer of that nation stationed in the United States, conclusively establishes any matter relating to the authenticity or validity of the notarial act set forth in the certificate.

    (D)    An official stamp or seal of the person performing the notarial act is prima facie evidence that the signature is genuine and that the person holds the indicated title.

    (E)    An official stamp or seal of an officer listed in subsection (A)(1) or (A)(2) is prima facie evidence that a person with the indicated title has authority to perform notarial acts.

    (F)    If the title of office and indication of authority to perform notarial acts appears either in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is conclusively established.

    COMMENT

    This section deals with the authority of notarial officers empowered to act under foreign law. Note that the act of any notary is recognized, as well as that of judges or clerks of court of record. The notarial acts of other persons will be recognized if they are authorized by the law of the place in which they are performed.

    Proof of validity of foreign notarial acts is a more difficult problem than recognition of such acts from other states of the United States, because the relative authority of public and quasi-public officers may vary. See the special rules previously provided under the Uniform Recognition of Acknowledgments Act, Section 2(b).

    The United States is now a party to an international convention regarding the authentication of notarial and other public acts. The first method of recognition of foreign notarial acts is that set forth in the treaty. The Apostille may be stamped on the document or an attached page by a specified officer in the foreign country. It has the following form.

APOSTILLE

(Convention de La Haye du 5 octobre 1961)

1. Country:____________________________________________

This public document ___________________________________

2. has been ____________________________________________

signed by _____________________________________________

3. acting in ____________________________________________

the capacity of _________________________________________

4. bears the seal/stamp of _________________________________

CERTIFIED

5. at _________________________________________________

6. the ________________________________________________

7. by _________________________________________________

8. No.________________________________________________

9. Seal/Stamp

10. Signature:__________________________________________

    It may be in the language of the issuing country, but the words "Apostille (Convention de La Haye, du 5 octobre 1961)" are always in French. Under the terms of the treaty, to which the United States is a party, the Apostille must be recognized if issued by a competent authority in another nation which has also ratified it. The text of the convention is reproduced in the volume of 28 U.S.C.A. containing the annotations to Rule 44 of the Federal Rules of Civil Procedure, and in Martindale-Hubbell.

    Although federal law provides for mandatory recognition of an Apostille only if issued by another ratifying nation, this statute provides for recognition of all apostilles issued by any foreign nation in that form. They, are in effect, no more than a standard form for authentication. Use of the form eases problems of translation.

    Recognition may also be accorded in a number of other ways, which are taken from Section 2(b) of the Uniform Recognition of Acknowledgments Act.

    Section 26-1-370.    Certificate of notarial acts.    (A)    A notarial act must be evidenced by a certificate signed and dated by a notarial officer. The certificate must include identification of the jurisdiction in which the notarial act is performed and the title of the office of the notarial officer and may include the official stamp or seal of office. If the officer is a notary public, the certificate must also indicate the date of expiration, if any, of the commission of office, but omission of that information may subsequently be corrected. If the officer is a commissioned officer on active duty in the military service of the United States, it must also include the officer's rank.

    (B)    A certificate of a notarial act is sufficient if it meets the requirements of subsection (A) and it:

        (1)    is in the short form set forth in Section 26-1-380;

        (2)    is in a form otherwise prescribed by the law of this State;

        (3)    is in a form prescribed by the laws or regulations applicable in the place in which the notarial act was performed; or

        (4)    sets forth the actions of the notarial officer and those are sufficient to meet the requirements of the designated notarial act.

    (C)    By executing a certificate of a notarial act, the notarial officer certifies that the officer has made the determinations required by Section 26-1-320.

    COMMENT

    This section requires a written certification by the notarial officer of the notarial act. That certification may be simple. It need only record the notarial act and its place and date, together with the signature and office of the notarial officer. Subsection (b) provides that the certificate may be in any one of the short forms set forth in this act, or in any other form provided by local law, or in any other form provided by the law of the place where it is performed, or in any form that sets forth the requisite elements of the appropriate notarial act. Thus acknowledgments or other notarial acts executed in the more elaborate forms of the former Uniform Acknowledgments Act or the Uniform Recognition of Acknowledgments Act would continue to qualify under subsection (b)(4). Subsection (c) reemphasizes the obligation of the notarial officer to make the determinations required by Section 2 and to certify that the officer has done so.

    Section 26-1-380. Short forms.    The following short form certificates of notarial acts are sufficient for the purposes indicated, if completed with the information required by Section 26-1-370(A):

    (1)    For an acknowledgment in an individual capacity:

        State of ___________________________________________

        (County) of ________________________________________

        This instrument was acknowledged before me on (date) by (name(s) of person(s))

        ________________________________________

        (Signature of notarial officer)

        (Seal, if any)

        ________________________________________

        Title (and Rank)

        [My commission expires: _____________]

    (2)    For an acknowledgment in a representative capacity:

        State of ___________________________________________

        (County) of ________________________________________

        This instrument was acknowledged before me on (date) by (name(s) of person(s))

        as (type of authority, e.g., officer, trustee, etc.) of (name of party on behalf of whom instrument was executed).

        _____________________________________

        (Signature of notarial officer)

        (Seal, if any)

        _____________________________________

        Title (and Rank)

        [My commission expires: _____________]

    (3)    For a verification upon oath or affirmation:

        State of ___________________________________________

        (County) of ________________________________________

        Signed and sworn to (or affirmed) before me on (date)& by (name(s) of person(s) making statement).

        ____________________________________

        (Signature of notarial officer)

        (Seal, if any)

        ____________________________________

        Title (and Rank)

        [My commission expires: ____________]

    (4) For witnessing or attesting a signature:

        State of ___________________________________________

        (County) of ________________________________________

        Signed or attested before me on (date) by (name(s) of person(s)).

        ____________________________________

        (Signature of notarial officer)

        (Seal, if any)

        ____________________________________

        Title (and Rank)

        [My commission expires: ____________]

    (5) For attestation of a copy of a document:

        State of ___________________________________________

        (County) of ________________________________________

        I certify that this is a true and correct copy of a document in the possession

        of __________________________________

        Dated _______________________________

        ____________________________________

        (Signature of notarial officer)

        (Seal, if any)

        ___________________________________

        Title (and Rank)

        [My commission expires: ___________]

    Section 26-1-390.    Notarial acts affected by this act.    This article applies to notarial acts performed on or after its effective date.

    Section 26-1-400.    Uniformity of application and construction.    This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among states enacting it."

Designation of article; general provisions

SECTION 2.    Sections 26-1-10 through 26-1-120 of the 1976 Code are designated Article 1 of Chapter 1, Title 26, entitled "General Provisions".

Repeal

SECTION 3.    Chapter 3, Title 26 of the 1976 Code is repealed.

    COMMENT

    This statute is intended to replace the Uniform Acknowledgment Act and the Uniform Recognition of Acknowledgments Act, and may also replace other state legislation on this topic.

Time effective

SECTION    4.    This act takes effect upon approval by the Governor.

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