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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.
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
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.
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:
"Satisfactory evidence" is defined as:
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:
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.
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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