Trey Wilson San Antonio                         
                    

Invalidating a Notarized Deed is an Uphill Battle

The validity of a deed — and the conveyance of land it purports to represent — often turns on formalities. Whether a deed is subject to being invalidated by a Court often depends on the ability of the party contesting it to prove that it was secured by fraud, or forged.

A forged deed is VOID (void ab initio) and is a legal nullity that passes no title.See Yarbrough v. Household Fin. Corp. III, 455 S.W.3d 277, 282 (Tex. App.-Houston [14th Dist.] 2015, no pet.); see also Johnson v. Coppel, No. 01-09-00392-CV, 2012 WL 344757, at *6 (Tex. App.-Houston [1st Dist.] Feb. 2, 2012, no pet.) (mem. op.).  However, when a  is deed acknowledged by a Notary Public, proving that it is a forgery can be a real uphill battle.

DEEDS MUST BE PROPERLY PROVED AS A CONDITION OF RECORDING

Texas law permits instruments conveying real estate to be recorded if  “acknowledged, sworn to with a proper jurat, or proved according to law.”  See Texas Property Code section 12.001.  The statute next describes acceptable methods of proving a deed and further states that “an instrument conveying real property may not be recorded unless it is signed and acknowledged or sworn to by the grantor in the presence of two or more credible subscribing witnesses or acknowledged or sworn to before and certified by an officer authorized to take acknowledgements or oaths.”  Id.

The acknowledgement/sworn/proved requirement is not a mere formality. Instead, there is significant legal import attached to a Notary Public’s acknowledgement if a deed and overcoming the legal presumptions attached to a notary public’s certification is difficult.

A NOTARY’s ACKNOWLEDGEMENT IS “PRIMA FACIE” EVIDENCE OF A DEED’s GENUINENESS

“The law is settled that a certificate of acknowledgment is prima facie evidence that [the signer] appeared before the notary and executed the [document] 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 Pulido v. Gonzalez, No. 01-12-00100-CV, 2013 WL 4680415, at *4 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet.) (same); 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).

“There is a decided judicial tendency to view with suspicion and distrust attempts to discredit certificates of acknowledgment.” Ruiz v. Stewart Mineral Corp., 202 S.W.3d 242, 248 (Tex. App.—Tyler 2006, pet. denied).  “Clear and unmistakable proof that either the [signer] did not appear before the notary or that the notary practiced some fraud or imposition upon the [signer] is necessary to overcome the validity of a certificate of acknowledgment.” Uribe v. Carrington Motor Services, LLC 2017 WL 603648, at *4 n.2 (internal quotation marks omitted); see also Ruiz, 202 S.W.3d at 248 (“To impeach a certificate [of acknowledgment], the evidence must be clear, cogent, and convincing beyond reasonable controversy.”)

OVERCOMING THE PRESUMPTION OF GENUINENESS REQUIRES A HIGH DEGREE OF PROOF

Proving that a notarized deed is forged or otherwise defective is not impossible. Instead, “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 is necessary to overcome the validity of a certificate of acknowledgment.” Bell, 738 S.W.2d at 330.  This is a high burden of proof, but not an insurmountable one.