[WSBAPT] Deed Acknowledgement as Individual v. Representative Capacity

[Mike Winslow]

Tom,
 
>From WSBA RP Deskbook-Section 2.5(4)
 
A contract required to be in deed form must also be acknowledged, and
lack of an acknowledgment or a defective one can render the agreement
void and unenforceable. Saunders v. Callaway, 42 Wn. App. 29, 36, 708
P.2d 652 (1985) (no acknowledgment); Ben Holt Indus., Inc. v. Milne,
36 Wn. App. 468, 675 P.2d 1256 (1984) (individual acknowledgment
mistakenly used in place of corporate acknowledgment). A defective
acknowledgment may not be “perfected” by parol evidence. Forrester
v. Reliable Transfer Co., 59 Wash. 86, 95, 109 P. 312 (1910); Ben
Holt Indus., 36 Wn. App. at 472. Certain unacknowledged leases, or
other instruments, may be taken out of the statute of frauds by part
performance. See Tiegs v. Watts, 135 Wn.2d 1, 954 P.2d 877 (1998);
Ben Holt Indus., 36 Wn. App. 468. See also 17 Washington Practice
§7.4, concerning acknowledgment and exceptions to acknowledgment
of deeds.
 
I wrote this chapter of the DB back in 2008, so it has been a while since I visited the cases.
I would look at the deed to see if there is any indicia in the document that H was signing for W. If so, the lack of correct acknowledgement might be cured by a subsequent recording of the POA upon which H relied. Without the POA being recorded no title company would insure. 
 
Take a look at Ben Holt Industries and Wa Practice. 
But, the trend is for rules about parol evidence to be treated with less strictness. The Forrester case is over 100 years old.
An appeal might see a change in this rule.
Mike
 
 
Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com
 
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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Thomas Hackett
Sent: Tuesday, July 03, 2018 4:36 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Deed Acknowledgement as Individual v. Representative Capacity
 
Colleagues-
 
I'm looking at a recorded deed where a property was conveyed by a husband as the agent for his wife under a power of attorney to himself. The signature of husband as agent was acknowledged and notarized in an individual capacity, not his representative capacity as agent. Wife has since passed away. With this defect, it seems that the conveyance of the property is ineffective. I'm interested to know if others agree.
 
Thanks in advance for insights. 



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Thomas A. Hackett
Attorney | NW Legacy Law Center, P.S.
360-975-7770 |  <http://nwlegacylaw.com/> http://nwlegacylaw.com
 <http://www.facebook.com/NWlegacylaw>   <http://www.linkedin.com/in/thomasahackett> 
 
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