Request By:
Mr. James S. Secrest
Allen County Attorney
City-County Building
P.O. Box 35
Scottsville, Kentucky 42164
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A deed executed in Kentucky may be admitted to record "on the certificate of a county clerk of this state, or any notary public, that the deed has been acknowledged before him by the party making the deed or proved before him in the manner required by subsection (2), (3) or (4)." KRS 382.130(5).
You ask: "Would the fact that the certificate of acknowledgment is dated prior to the date of the deed affect the validity of the acknowledgment or the recordability of the deed? "
An "acknowledgment" has been defined as a "formal declaration or admission before an authorized public officer by a person who has executed an instrument that such instrument is his act and deed. " (Emphasis added).
Billington v. Dunn, 217 Ky. 164, 289 S.W. 213 (1926) 214. Thus the usual chronology in the formality of conveyancing is that the grantor must first sign the deed, then he declares before the clerk or notary that the subject instrument is his act and deed, as stated in the certificate of acknowledgment.
As concerns the recordability of a deed, if the grantor properly acknowledges the deed, then it is generally recordable, provided all other essential statutory requisites are met. Where a deed is not properly acknowledged, it is not recordable, and if it is recorded it does not give constructive notice. See Billington v. Dunn, above. Even where the acknowledgment is faulty, if the grantor properly signs the instrument, the title can pass, regardless of its nonrecordability.
U.S. Trust Co. v. Frakes, 282 Ky. 683, 139 S.W.2d 759 (1940).
Let us assume that the deed in question is taken to the county clerk on March 8, 1977, and properly acknowledged. The certificate of course will show that the deed was acknowledged on March 8, 1977. Let us also assume that the deed is dated March 12, 1977. You are asking: what date controls, and how does this situation in dates affect recordability?
It is our opinion that, as between the date of the deed and the date of the acknowledgment, the date of the acknowledgment will control. The appellate court has written many times that "an officer's certificate imports absolute verity unless attacked in a direct proceeding against the officer or his surety, or unless there is an allegation of fraud in the obtention of the certificate by the party benefitted, or mistake upon the part of the officer."
Spicer v. Spicer, 314 Ky. 560, 236 S.W.2d 474 (1951) 476. Thus, in the absence of a direct attack, or allegation of fraud or mistake, as mentioned above, the validity of the acknowledgment is not affected by the fact that the date of the deed is later than the date of the acknowledgment. Neither will this peculiar fact affect the recordability of the deed, assuming the acknowledgment was otherwise properly taken [factors other than this date factor]. The act of the officer in taking the acknowledgment is ministerial in nature and not judicial. The presumption is in favor of the certificate, but the presumption may be overcome by contradictory evidence furnished by the notary or by other witnesses in possession of the facts.
Gose v. Perry, Ky., 302 S.W.2d 618 (1957) 619. As a pragmatic and elementary legal proposition, title to real property vests in the grantee upon delivery of the deed. 1
Pope v. Kirk, Ky., 255 S.W.2d 468 (1953) 471. We must not lose sight of the major essentials of an effective general warranty deed: (1) It must be in writing; (2) The deed must be in proper form as required by KRS Chapter 382 and real property law as it embraces conveyances; (3) It must be signed by the grantor or grantors; (4) The deed must be properly acknowledged; and (5) The deed must be delivered to the grantee. We find nothing in this context suggesting that a deed date, which is later than the date of acknowledgment, is significant.
Piney Oil & Gas Co. v. Scott, 258 Ky. 51, 79 S.W.2d 394 (1935) 397.
A deed to be valid in Kentucky must convey some present interest vesting in the grantee upon delivery thereof.
Spicer v. Spicer, 314 Ky. 560, 236 S.W.2d 474 (1951) 475. In other words, it is "essential that the grantees acquire at the time of the conveyance some legally recognizable right in and to the property." (Emphasis added).
Douglas v. Snow, 304 Ky. 805, 202 S.W.2d 629 (1947) 630.
In summary, where the five basic requisites of an effective deed of real estate conveyance have been followed, the fact that the deed is dated a later date than the date of the acknowledgment is insignificant.
Footnotes
Footnotes
1 A deed speaks only from its date of delivery. Williams v. Thomas, 285 Ky. 776, 149 S.W.2d 525 (1941) 527. See KRS 382.240.