Larmer v. Estate of Larmer (CA1 11/8/16)

Raising the question of when a seal is not a seal – or, rather, of when a not-seal is a seal.

Husband, using Wife’s power of attorney, transferred their property to Son. Husband then died and Wife sued Husband’s estate and Son because of that transaction seeking, among other things, to quiet title. On that count her argument was that the deed to Son was no good because it wasn’t properly notarized. The trial court agreed and granted partial summary judgment.

The Court of Appeals reverses. 33-401 requires that a deed be notarized. The problem was that the notary used her embossing stamp (the metal crimping tool) rather than her official seal (the ink stamp). 44-321 says the former isn’t official and can’t be used without the latter. The court makes an end-run on the argument using the Uniform Recognition of Acknowledgments Act (33-501ff). These statutes exist to allow Arizona to recognize notarization and similar acts performed in other states; for the most part that’s what they speak to. But 33-506 adopts “short forms of acknowledgement” that “are sufficient for their respective purposes under any law of this state.” Those forms don’t require any seal at all, just the notary’s signature, title, and serial number. 33-507 says that ”this article provides an additional method of proving notarial acts.” Because this notary used one of the short forms the court holds her acknowledgment valid.

So 33-506 means that seals are optional if certain information – a subset of that required by the notary-public statutes – appears. And those statutes now mean that notaries must use the official seal except when they needn’t (same for “my commission expires”) and that the embosser can’t be used without the official seal except when it can. It would have been nice to see the opinion address the relationship between these statutes rather than to decide that 33-506 trumps the others because . . . well, just because. (Its possible, at least on paper, to reconcile them; whether that’s what the legislature had in mind is another matter.)

It appears that reliance on the Uniform Act may have been the court’s idea, that the defendants argued something else. That may be why the analysis isn’t more developed and for that matter why the opinion feels free to cite to secondary sources – the A.L.R. (do people still use that?), for example, and a form book.

This notary’s confusion is not excusable (the statutes used to be pretty clear and the Secretary of State’s office tries to help) but is perhaps understandable. The big, heavy, ornate embossers seem like they should be the official seals. And once upon a time they were, when used to emboss colored stick-on discs, stars, etc. But then copy machines became ubiquitous, leading to the problem that indentations in paper don’t always reproduce well. So the lowly ink stamp became the only official seal.

(Link to opinion: Larmer v. Estate of Larmer)