(See also Text Book, or Part Two, Page 51, Sec. 88.)
Sec. 2.27. In many cases a real estate broker will find it advantageous to secure an appointment as notary public, as the revenue from that source is considerable, and affords him an opportunity to meet people with whom he otherwise would not become acquainted.
Sec. 228. A notary public is an officer appointed to perform certain duties, prescribed by law, within, but not outside of, the limits of a certain County of a certain State or Territory. In some of the States the applicant for notarial honors has to pass an examination to determine his fitness for the office. In California, the appointment is made by the Governor; in Texas, by the Governor, with the consent and advice of the Senate while in regular session. (See Form No. 100.)
Sec. 229. Upon receiving his appointment the applicant is required to execute an official bond, in a sum varying from $1,000 to $5,000, and such bond must be executed by the notary and two good and sufficient sureties. In most of the States a bonding company (such as the American Bonding Company of Baltimore) will be accepted in lieu of individual sureties. A notary often feels a delicacy about asking influential friends to go on his official bond, and where the bonding company's bond will be accepted it should be given preference. A nominal fee is charged for issuing this bond. The notarial bond, in California, must be approved by a judge of the Superior Court of the County in which the notary is to act, and, upon such approval, the notary must take the official oath, and the oath and the bond are then recorded in the office of the County Recorder.
Sec. 230. In order to do business, the notary will require a notarial record, a notarial seal and proper blank forms of certificates of acknowledgment. A notary should perform all his official acts with scrupulous care and fidelity.
Sec. 231. If the appointee fails to qualify within the prescribed time, the appointment becomes vacated, and the applicant must begin anew;
Sec. 232. The term of office varies in the several States and runs from two to four years from the date of the appointment. In some of the States a notary is required to have substantially these words after his signature: "My commission expires....................."
Sec. 233. The duties of a notary are, in general, these: To take acknowledgments, and to certify all acknowledgments and proofs of instruments in writing, such as deeds, mortgages, satisfaction of mortgage, deeds of trusts, homesteads, powers of attorney, etc. Also to take and certify depositions and affidavits and administer oaths, and to make declarations of protest in respect to promissory notes and bills of exchange.
Sec. 234. The maximum fees which a notary may collect for his official services are fixed by law, and, at the time of obtaining his seal, etc., the notary should procure a fee card, which he should keep posted up in his office for the information of customers. The notary can waive the regular fees or perform them at reduced rates; in fact, it is customary where a notary has a large number of acknowledgments to take for one party to charge but one-half the regular fees. If any one questions the amount of the fee he should be referred to the fee card. The majority of persons are informed as to the fee a notary is entitled to charge, but have considerable reluctance about paying it. Where the notary is asked to go away from his office to perform official acts, or to go after office hours, he should, if the distance be great or he be put to considerable inconvenience, make a moderate charge in addition to his regular fees. Persons accustomed to business have no objection to paying such reasonable additional fees. The payment of notary fees touches a tender spot in some persons, particularly wealthy persons who could well afford to be the least sensitive on the subject, and the real estate broker will do well to exercise discretion as to fees if he has an inkling that fees are distasteful to a customer who might be a seller or a buyer in the future.
Sec. 235. In taking an acknowledgment, the instrument should be signed in the presence of the notary, and the notary should then ask the party signing: "Do you acknowledge this to be your signature?" and he replies: "I do." If there is a printed form of notarial acknowledgment on the instrument, that should be used; if not, the notary should attach with paste his own printed form. The seal should then be impressed, and, if the attached form is used, through that and through the instrument. Two acts are necessary: The acknowledgment by the party signing, and the certification of the notary. The notary then makes an entry of the transaction in his notarial record. (See Text Book, pages 72 to 74.)
Sec. 236. When an instrument in writing, such as a deed, is presented to a notary for his acknowledgment and certification, he is not called upon to pass judgment upon the sufficiency of the instrument. If, for instance, he discovers that a deed is made by a married man, and that his wife has not joined in the deed, and that she is competent to do so, he may call the attention of the grantee, if he is present, to the fact. The notary has no jurisdiction in such cases, but he should deem it his duty to point out to the parties any defects apparent on the face of the instrument.
Sec. 237. When a party appears before a notary to make an acknowledgment, and he is unknown to the notary, the notary should require of him to prove himself to be the person he claims to be, on the oath of a creditable witness, examined and sworn by the notary for that purpose. (See Form No. 24, page 73, Text Book.) In this matter also, the notary should use discretion, keeping in mind the fact that all of his official acts should be so performed that he and his bondsmen will incur no liability. In some of the States the wife must be examined privily and apart from her husband, and the contents of the instrument must be fully explained to her, and the notary's certificate must recite these facts. In certain cases a notary is disqualified from acting.
Sec. 238. Frauds have been committed by persons who, upon short acquaintance with a notary, have introduced to him a confederate, representing such confederate as Mr. or Mrs. So-and-So, a property owner of record. They then ask the notary to take the acknowledgment of the imposter to a forged signature on a deed or mortgage conveying property to an innocent third party, and the notary, by taking and certifying the acknowledgment, unwittingly abets the deception. Having secured the money, the confederates disappear, leaving the notary and his bondsmen to be brought to bar for the alleged negligence of the notary.
Sec. 239. The laws of each State prescribe certain forms of deeds and of acknowledgment for the transfer of property in that State, and such forms must be followed even though the instrument be executed in another State. In order that (the notary should be informed as to such forms, and as to his duties in every other respect, he should have in his office a copy of "John's American Notary Manual." (See advertising pages of this book.)