O.C.G.A. § 45-17-6 (2019)

Annotations

Cross references. - Requirement of seal for notary’s attestation of deeds executed outside state, § 44-2-21. Editor’s notes. - Ga. L. 1952, p. 456, § 2, provides that all deeds executed after the passage of the Act approved February 25, 1949 (Ga. L. 1949, p. 940) are declared to be valid, if executed as otherwise required by law even though the same do not have the seal of the notary thereon. Ga. L. 1986, p. 1446, § 10, not codified by the General Assembly, provided: ‘‘This Act shall become effective upon its approval by the Governor [approved April 11, 1986] or upon its becoming law with-

out such approval. It is expressly declared that the curative provisions of paragraph (2) of subsection (a) of Code Section 45-17-6 and of subsection (c) of Code Section 45-17-8.1, as enacted by this Act, are intended to have retroactive application except to the extent that such retroactive application would unconstitutionally impair any vested right.’’ Law reviews. - For article surveying real property law in 1984-1985, see 37 Mercer L. Rev. 343 (1985). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 67 Mercer L. Rev. 273 (2015).

JUDICIAL DECISIONS Seal of the notary public is prima facie evidence that the legal formalities of the notary public’s appointment before the proper person have been complied with, and is prima facie evidence of the authority of the notary public to administer oaths; however, these presumptions are rebuttable. Brooks v. State, 63 Ga. App. 575, 11 S.E.2d 688 (1940). Further authentication not required. - The seal of the notary public being evidence of the genuineness of the notary’s signature and of the notary’s official character, no further authentication is required. Brooks v. State, 63 Ga. App. 575, 11 S.E.2d 688 (1940). Seal not necessary on probate of deed. - It is not necessary that a notary public shall affix a seal to the probate of a

deed by a subscribing witness. Nichols v. Hampton, 46 Ga. 253 (1872). Seal not necessary on bill in equity. - In attesting an affidavit to a bill in equity, a notary public need not affix seal. It was not such a notarial act, under O.C.G.A. § 45-17-6 as requires a seal for its authentication. Chappell v. Boud, 56 Ga. 578 (1876). Seal not necessary on affidavit for bail in trover. - The notary need not attest an affidavit for bail in trover under a notarial seal or any other seal. Only notarial acts require a seal. Jowers v. Blandy, 58 Ga. 379 (1877). Absence of seal from original affidavit could be cured by filing a supplemental affidavit. To constitute a complete affidavit, three essential features are req-

uisite: first, written oath embodying facts sworn to by affiant; second, signature of affiant thereto; and third, jurat or attestation, by officer authorized to administer oath, that affidavit was actually sworn to and subscribed before that officer by the affiant. Glenn v. Metropolitan Atlanta Rapid Transit Auth., 158 Ga. App. 98, 279 S.E.2d 481 (1981). Document lacking seal deemed not notarized. - Mortgagor’s purported affidavit of indigency was found to be invalid as the affidavit was not properly notarized as required by O.C.G.A. § 45-17-6 since the purported signature of the notary lacked a date to indicate that the notary was present at the same time that the affiant signed the document, and it also lacked a notary’s seal, either stamped or embossed, which was required to make the attestation valid. Hurt v. Norwest Mortg., Inc., 260 Ga. App. 651, 580 S.E.2d 580 (2003). Jury verdict imposing liability on guarantors for a debt of a corporation was reversed since there was no evidence that the guarantors wrote their names on or otherwise signed the guaranty, because a witness’s opinion that the guaranty ‘‘appeared’’ to be executed by the guarantors lacked any basis whatsoever, other than the fact that their names appeared on the signature lines, and since the notary attestation was invalid, if for no other reason, because the guaranty did not contain a notary seal. Friedrich v. APAC-Georgia, Inc., 265 Ga. App. 769, 595 S.E.2d 620 (2004). Effect of absence of seal on bankruptcy trustee’s strong arm powers. - Chapter 7 trustee put the material fact of the form of a security deed at the time of

recordation in dispute, thus precluding summary judgment in favor of the lender on the trustee’s complaint to avoid the lender’s security deed under the trustee’s strong arm powers, by submitting a certified copy of the deed on file with a state court that did not include a notary stamp or seal as required under Georgia law when the official witness was a notary. Rainwater v. Chase Home Finance, LLC (In re Rainwater), No. 09-6711, 2013 Bankr. LEXIS 4294 (Bankr. N.D. Ga. Sept. 18, 2013). Notary stamp on power of attorney sufficient to modify trust. - Because a trust provided that the settlor ‘‘may at any time by duly executed written instrument alter or amend’’ the trust, the settlor had reserved the right to alter or amend the trust, O.C.G.A. § 53-12-40(a), and the settlor’s execution of a power of attorney clearly expressed the settlor’s intent to name the settlor’s son as the executor of the settlor’s estate and the trust and was properly notarized under O.C.G.A. § 45-17-6(a)(1). Strange v. Towns, 330 Ga. App. 876, 769 S.E.2d 604 (2015). Other exceptions. - Unsworn declaration satisfied the requirements of 28 U.S.C. § 1746 because it was in writing and subscribed by the declarant as true under penalty of perjury; therefore, it was allowed to be used as evidence in opposition to a motion for summary judgment, despite the general rule set forth in O.C.G.A. § 45-17-6, requiring affidavits to contain a proper notarial seal. Shouse v. Ursitti, No. 5:05-CV-314 (DF), 2006 U.S. Dist. LEXIS 32409 (M.D. Ga. May 23, 2006). Cited in Fabe v. Floyd, 199 Ga. App. 322, 405 S.E.2d 265 (1991).

OPINIONS OF THE ATTORNEY GENERAL Use of title. - A notary public does not use a notary seal in the attestation of specified papers not requiring such use; a notary’s title should be written under the notary’s name, but when the seal is used it probably is not necessary for the notary to show such title. 1952-53 Op. Att’y Gen. p. 387. Election by notary of words used in seal. - The language of this section is

clear and unambiguous; it is expressed in the disjunctive, and makes no distinction as to which notaries may use the words ‘‘State at Large,’’ and which may use the words designating their county; the plain words of the statute give the election to any notary. In so doing, it is quite possible that the General Assembly intended that a notary whose activities, because of the notary’s particular situation, would be

PUBLIC OFFICERS & EMPLOYEES

confined to one county, would desire to identify with that particular county, whereas a notary whose situation would

require travel over the state would desire to use the words ‘‘State at Large.’’ 1957 Op. Att’y Gen. p. 192.

RESEARCH REFERENCES ALR. - What amounts to notary’s seal, 7 ALR 1663.