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Notary Affidavits, Acknowledgements and Depositions

The most frequent official acts a notary public is requested to perform is the taking of affidavits and acknowledgements. Therefore, these areas are specifically addressed below.

Affidavits

An affidavit is a sworn statement made by a person called an affiant. The affiant makes oath before a notary public that the facts contained in the affidavit are true. The affidavit consists of the venue, body, affiant's signature and jurat. Venue indicates the place where the affidavit is made or taken and must be a place where the notary is empowered to act. The body of the affidavit is preceded by an introductory sentence, contains a short description of the affiant and the capacity in which he or she is taking the oath, and then it contains the facts the affiant swears are true. The affiant's signature is subscribed at the end of the affidavit and should appear exactly as it appears in the introduction. The jurat, also known as the notary's certificate, is the concluding statement that the affidavit was sown to before the notary on a certain date. Immediately beneath the jurat appears the signature of the notary before whom the oath is taken, and the notary's commission. This is a suggested form of affidavit:

State of Tennessee
County of _____________
________________________, being duly sworn, make oath as follows:
(Recite facts to be sworn to by affiant)
_______________________________
(affiant's signature)
Sworn to and subscribed before me this ______ day of ________, _______.
_______________________________
(notary's signature and seal)
My commission expires: _______________________

If the affidavit is to be used in a legal proceeding, the caption of the proceeding should beset out at the top of the affidavit. The notary public need not be concerned with the truthfulness of the facts stated by the affiant (other than in regard to the identity of the affiant). If the facts are willfully misstated, the affiant is guilty of perjury. The notary, of course, cannot know the truth of the statements and is under no duty to investigate the facts. A notary may not take the affidavit of a person who does not appear before the notary.

Acknowledgements

An acknowledgement, as its name implies, is a declaration by a person who has executed such document. All acknowledgements must be taken under the seal of the officer taking the acknowledgement. T.C.A. 66-22-110. An acknowledgement is distinguishable from verification in that an acknowledgement establishes proper execution of a document while verification establishes the truth of a document's contents. Attorney General Opinion 91-92 (11/19/1991).

Definitions of some of the important terms used in the acknowledgement forms are found in T.C.A. 66-22-106.

"Know" or "personally acquainted with" is defined as:

Having an acquaintance, derived from association with the individual in relation to other people and based upon a chain of circumstances surrounding the individual, which establishes the individual's identity with a least reasonable certainty.

"Satisfactory evidence" is defined as:

The absence of any information, evidence or other circumstances which would lead a reasonable person to believe that the person making the acknowledgement is not the individual he or she claims to be, together with any of the following:

The oath or affirmation of a credible witness personally known to the officer that the person making the acknowledgement is personally known to the witness. (This should be in the form of an affidavit discussed earlier).

Reasonable reliance on the presentation to the officer of any one of the following, if the document is current or has been issued within five years:
• An identification card or driver license issued by the Tennessee Department of Safety;
• or a passport issued by the Department of State of the United States.

Reasonable reliance on the presentation of any one of the following, if the document is current or has been issued within five years, contains a photograph and description of the person named on it, is signed by the person, bears a serial or other identifying number, and, in the event that the document is a passport, has been stamped by the United States Immigration and Naturalization Service:
• A passport issued by a foreign government;
• A driver license issued by a state other than Tennessee;
• An identification card issued by a state other than Tennessee;
• or An identification card issued by any branch of the armed forces of the United States

Any certificate clearly evidencing an intent to authenticate, acknowledge or verify a document will constitute a valid certificate of acknowledgement for the purposes for which the certificate may be used under the law. The statute states that it is the legislative intent that no specific form or wording be required in such certificate and that the ownership of property, or the determination of any other right or obligation, shall not be affected by the inclusion or omission of any specific words. T.C.A. 66-22-114(b). The old form of the certificate can be used (T.C.A. 66-22-107, 66-22-108), or the new form, or a different form might be drafted but it needs to cover all of the elements of the certificate of acknowledgement need not include the "magic words" contained in the statutory form, it must nevertheless contain language to satisfy the substance of the certificate of acknowledge. There has never been any intent to abrogate the requirement that the notary have personal knowledge or be personally acquainted with the person signing the document. Attorney General Opinion 91-92 (11/19/1991).

The form of acknowledgement which is set out in T.C.A. 66-22-114 is a follows:

State of Tennessee
County of Rutherford

Personally appeared before me, (name of officer), official capacity of officer), (name of the natural person executing the instrument), with whom I am personally acquainted, and who acknowledged that he or she executed the within instrument for the purposes therein contained (THE FOLLOWING TO BE INCLUDED ONLY WHERE A NATURAL PERSON IS EXECUTING AS AGENT) and who further acknowledged position of the natural person executing the instrument, such as "attorney-in-fact" or "president" or "general partner") of the maker or a constituent of the maker and is authorized by the maker or by its constituent, the constituent being authorized by the maker, to execute this instrument on behalf of the maker.
Witness my hand, at office, this _____ day of ____________, __________.

A notary should under no circumstances take the acknowledgement of a person who does not appear before the notary since the statue by express language, "personally appeared before me", demands actual appearance. If identification as statutorily defined and stated above is not produced, the notary should refuse to take the acknowledgement. A notary should never disregard the responsibilities of the office.

Depositions

A deposition is the testimony of a witness taken by interrogatories, not in open court, but by a person commissioned to take the testimony issued by a court, or according to general law, and reduced to writing and duly authenticated, and intended to be used upon the trial of an action in court or a written declaration under oath, made after notice to the adverse party to enable cross-examination or upon written interrogatories. The taking of depositions in this state is governed by Rules 27 through 32 of the Tennessee Rules of Civil Procedure (T.R.C.P.), which must be strictly followed. Any officer authorized to administer oaths by federal, state, or territorial law is authorized to take depositions. T.R.C.P. 28.01. No deposition shall be taken before a person who is a relative (within the sixth degree, computed by the civil law) or employee or attorney or counsel of any of the parties, or who is a relative (within the sixth degree, computed by the civil law) or employee of such attorney or counsel, or who is financially interested in the action. T.R.C.P. 28.03.

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