Defective Notarization /Improper Acknowledgment May (But Doesn't Always) Render Deed Unenforceable or Even Void

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

As an attorney practicing real estate law in San Antonio, Texas, I am frequently called upon to challenge or defend the validity of a deed transferring an interest in real estate. 

Challenges to deeds come in all varieties, and for a host of reasons. When confronted with (or asserting) a challenge to a deed's validity, it is common practice to scour the language of the deed, itself, and the circumstances surrounding its execution, for defects. 

Generally speaking, deeds are presumed to be valid, and the filing of a deed is notice to all persons of the deed's existence and contents. See Alkas v. United Sav. Ass'n of Texas, Inc., 672 S.W.2d 852, 856 (Tex.App.-Corpus Christi 1984, writ ref'd n.r.e.);First Sav. & Loan Ass'n of El Paso v. Avila, 538 S.W.2d 846, 849 (Tex.Civ.App.-El Paso 1976, writ ref'd n.r.e.). Further, it is a conclusive presumption of law that a proper and legal recording of a deed in the county where the land lies is constructive notice of the recorded deed's existence. Quarles v. Hardin, 249 S.W. 459, 462 (Tex.Comm'n App.1923, judgment adopted); White v. McGregor, 92 Tex. 556, 50 S.W. 564 (1899). However, there are important qualifications to this presumption, including when an improperly acknowledged deed has been placed of record. 

The recordation of a deed without a proper acknowledgment does not constitute notice. Hill v. Taylor, 77 Tex. 295, 14 S.W. 366, 367 (1890) (deed acknowledged before an associate judge in Maryland state court, but not clear if this met requisites of Texas law allowing acknowledgment outside the state). 

However, the defect in the acknowledgment must appear on the face of the acknowledgment. Titus v. Johnson, 50 Tex. 224, 240 (1878); Peterson & Fowler v. Lowry, 48 Tex. 408, 412 (1877).  

An example of a defective acknowledgment that is not facially apparent occurs when one who is financially and beneficially interested in a transaction.  By law, such persons are disqualified from taking an acknowledgment concerning the transaction. Gulf Prod. Co. v. Continental Oil Co., 61 S.W.2d 185, 186-87 (Tex.Civ.App.-Texarkana 1933), aff'd, 139 Tex. 183, 164 S.W.2d 488 (1942). However, if the instrument and the notary's certificate are regular on their face, and in no way expressly disclose the interest of the notary in the property and/or transaction, the instrument is valid to subsequent purchasers without notice of the defect. Gulf Prod. Co. v. Continental Oil Co., 139 Tex. 183, 164 S.W.2d 488, 493 (1942); Titus, 50 Tex. at 240; Peterson & Fowler, 48 Tex. at 412.

Another non-facial defect with a deed occurs when the Grantor did not appear in person before the Notary who acknowledged the document. For better or worse, the law is well- settled that a certificate of acknowledgment is prima facie evidence that the grantor appeared before the notary and executed the deed in question for the purposes and consideration therein expressed. Bell v. Sharif-Munir-Davidson Dev. Corp., 738 S.W.2d 326, 330 (Tex.App.-Dallas 1987, writ denied); see also Stout v. Oliveira, 153 S.W.2d 590, 596 (Tex.Civ. App.-El Paso 1941, writ ref'd w.o.m.) (burden of proof is on party who denies genuineness of acknowledgment and instrument).  Again, if the Deed recites that the Grantor appeared in person (even if they didn't), this presumption is conclusive, and only "clear and unmistakable proof that either the grantor did not appear before the notary or that the notary practiced some fraud or imposition upon the grantor" will   overcome the validity of a certificate of acknowledgment.  Bell, 738 S.W.2d at 330.