Hon. P. W. Minter Opinion No. O-5285
County Attorney Re: Necessity of seal to be attached
Jim Hogg County to acknowledgments made by commissioned
Hebronville, Texas officers under H. B. 4, 48th Legislature
of Texas.
Dear Sir:
Your request for opinion has been received and care-
fully considered by this department. We quote from your re-
quest as follows:
"I notice that H. B. No. 4, authorizing Commissioned
Officers of the United States, to take acknowledgements
of instruments of writing for record, was approved and be-
came effective March jrd., 1943. However the same did
not provide for any seal of the Officer taking the acknowl-
edgment as contemplated by Art. 6606, R.C.S.
"Please give me your opinion as to whether an ack-
knowledgment taken by such a Commissioned Officer, but
without an Official Seal attached thereto, would be valid."
H.B. 4 of the 48th Legislature of Texas, provides:
"Section 1. Article 6602, Title 115, Chapter 2 of
the Revised Civil Statutes of Texas of 1925 is hereby
amended so as to hereafter read as follows:'
"'Article 6602.
"'The acknowledgment or proof of an instrument of
writing for record may be made within this State before:
='l. A clerk of the district court.
W'2. A judge or clerk of the county court.
11
13. A notary public.
"'Without the State, but within the United States or
their territories before:
rr'l. A clerk of some court of record having a seal.
11'2. A commissioner of deeds duly appointed under
the laws of the State.
n3. A notary public.
.. -
Hon. P. W. Minter, page 2 (O-5285)
"'Without the United States before:
"'1. A minister, a commissioner or charge d'affaires
of the United States, resident and accredited in the coun-
try where the proof or acknowledgment is made.
W'2, A consul-generals,consul, vicevconsul, commer-
cial agent, vice-commercial agent, deputy consul or consu-
lar agent of the United States! resident in the country
where proof or acknowledgment is made,.
1,I3. A notary public.
"'The acknowledgment or proof of an instrument of writ-
ing for record may be made by a member of the Armed Forces
of the United States or the Auxiliaries thereof without
the territorial confines of the United States before the
following:
"'1. Any commissioned officer in the Armed Forces of
the United States of America, in the Auxiliaries thereto,
or any commissioned officer in the Armed Forces Reserve of
the United States of America or any Auxiliary thereto.'
"Set 2. The fact that many members of our Armed
Forces whi are without the United States have no way to
acknowledge legal documents and instruments for record
creates an emergency and an imperative public necess:ity
that the Constitutional Rule requiring bills to be read on
three several days in each House be suspended, and such
Rule is hereby suspended, and this Act shall take effect
and be in force from and after its passage, and it is so
enacted,"
The act became effective March 3> 1943.
10 U.S.C.A., 5 1586, as amended December 14, 1942,
provides:
"Any officer of any component of the Army of the
United S+,ateson active duty in Federal service commis-
sioned in or assigned or detailed to duty with the Judge
Advocate General's Department, any staff j~udgeadvocate
or acting staff judge advocate, the President of a gen-,
era1 or special court-martial, any summary court-martial,
the trial judge advocate or any assis tant trial judge
advocate of a general or special court-martial, the
president or the recorder of a court of inquiry or of a
military board, any officer designated to take a deposi-
tion, any officer detailed to conduct an investigation,
Hon. P. W. Minter, page 3 (O-5285)
and the adjutant, assistant adjutant or personnel adju-
tant of any command shall have power to administer oaths
for the purposes of the administration of military jus-
tice and for other purposes of military admfnistration;
and shall also have the general powers of a notary pub-
lic in the administering of oaths, the execution and ac-
knowledgment of legal instruments, the attestation of
documents and all other forms of notarial acts to be
executed by persons subject to military law8 povided,
That no fee of any character shall be paid to any offi-
cer mentioned in this section for the performance of
an notarial act herein authorized. As amen,dedDec. 14,
19 c2, c. 730s 56 &at. 1050,”
Articles 6603, 6606 and 6607? Vernon's Annotated
“The acknowledgment of an instrument of writing
for the purpose of being recorded shall be by the grantor
or person who executed the same appearing before some
officer authorized to take such acknowledgment, and stat-
ing that he had executed the same for the consideration
and purposes therein stated; and the officer taking such
acknowledgment shall make a certificate thereof, si n
and seal the same with his seal of office, (Acts 1846,
po 236; P.D. 5007; G.L. vol. 2, pe 1542.1’”
(c:CePtfffcateof
“Art..6606, 680 461
"An officer taking the acknowledgment of a deed, OP
other instrument of writing, must place thereon hfs offf-
cial certificate, signed by him and given under his, seal
of office, substantially En form as hereinafter pre-
scribed.'s
"Art. 6607. (68041(4620)(4X2-
"The form of an ordinary certificate of aeknowledg-
ment must be substantially as follows:
"'The State of 9
"'County of -9
"'Before me (here insert the name and
character of the officer) on this day personally appeared
known to me (or proved to me on the oath of
J to be the person whose name is subscribed
to the foregofng Instrument and acknowledged ,tome that
he executed the same for the purposes and consideration
therein expressed.
"(Seal) "'Given under my hand and seal of office this
day of , A. D., B?"
.. _
Hon. P. W. Minter, Page 4 (O-5285)
Section 74, Acknowledgments, Seals, 1 Texas Juris-
prudence, page 482, reads in part as follows:
“S74 0 Necessity for .--Although a contrary rule pre-
vailed prior to 1846, since that year it has been the
law, by virtue of express enactment that a certificate
of acknowledgment must be under seai . The present stat-
ute in this respect provides that 'the officer taking
such acknowledgment shall make a certificate thereof,
sign and seal the same with his seal of office.'
"Omission of a seal renders a certificate of ac-
knowledgment fatally defective; an instrument so certi-
fied is not entitled to be recorded, and if improperly
recorded the record will not impart constructive notice.
While a conveyance of property by one other than a mar-
fled woman is, notwithstanding the omission of a seal
from the certificate of acknowledament. valid as between
the parties, such an omission in %he deed of a married
woman renders the conveyance void.
'1.. * e"
We have been unable
~ Ito find any
o Federal
~ or Texas
. ^^~
statute authorizing or requiring a commisslonee or~ricerto use
any type of seal in taking acknowledgments as outlined in H.B.
4, supra.
In construing the amendment to H.B. 4, supra, where-
in the commissioned officers mentioned therein are authorized
to take acknowledgments or proof of an instrument of writing
for record of members of the armed forces outside the terri-
torial confines of the United States, we must assume that the
Legislature of Texas knew that such commissioned officers had
no seal. The emergency clause of H.B. 4, quoted above clearly
shows that the Legislature of Texas was desirous of pr8viding
a method for the taking of acknowledgments of the members of
our armed forces outside the confines of the United States.
The question is not without difficulty yet we are
constrained to believe that the courts would hold such instru-
ments valid in the absence of a seal inasmuch as no seal is
provided for. To hold otherwise would render ,theact of the
Legislature futile and condemn through strict artificial teeh-
nicality a very worthwhile and necessary piece of emergency
legislation. This we are unwilling to do.
It is our opinion that pro acknowledgments taken
by commissioned officers under H.B. supra, of members of
Hon. P. W. Minter, page 5 (O-5285)
our armed forces, taken outside the confines of the United
States, without a seal being attached thereto, are valid.
Very truly yours
ATTORNEY GENERAL OF TEXAS
/s/ By Wm. J. Fanning
Wm. J. Fanning, Assistant
0 APPROVED MAY 20, 1943
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED: OPINION COMMITTEE
BY: BWB;CHAIRMAN
WJF:mptwb
Untitled Texas Attorney General Opinion
Combined Opinion