Colorado § 38-35-101 - Acknowledgments - form - prima facie evidence.

§ 38-35-101. Acknowledgments - form - prima facie evidence.

(1) No officer authorized to take acknowledgments of instruments affecting title to real property shall take or certify such acknowledgments unless the person making the same is personally known to such officer to be the identical person he represents himself to be or is proved to be such by at least one credible person known to such officer. It shall not be necessary to state such fact in his certificate of acknowledgment attached to any instrument affecting title to real property.

(2) Any deed or other instrument relating to or affecting title to real property acknowledged substantially in accordance with the following form before a proper official shall be prima facie evidence of the proper execution thereof:

STATE OF COLORADO

) ss.

County of ........................................

​ The foregoing instrument was acknowledged before me this ........ day of ................, 20...., by .................................................................................................................... .

(if by natural person or persons, insert name or names; if by person acting in representative or official capacity or as attorney-in-fact, insert name of person as executor, attorney-in-fact, or other capacity or description; if by officer of corporation, insert name of such officer or officers as the president or other officers of such corporation, naming it). If acknowledgment is taken by a notary public, the date of expiration of his commission shall also appear on the certificate.

​​ Witness my hand and official seal.

........................................

Title of Officer

(3) As to any instrument acknowledged substantially in accordance with the above form of acknowledgment, such acknowledgment shall be prima facie evidence:

(a) That the person named therein as acknowledging the instrument appeared in person before the official taking the acknowledgment and was personally known to such official to be the person whose name was subscribed to the instrument and that such person acknowledged that he signed the instrument as his free and voluntary act for the uses and purposes therein set forth;

(b) If the acknowledgment is by a person in a representative or official capacity, that the person acknowledging the instrument acknowledged it to be his free and voluntary act in such capacity or as the free and voluntary act of the principal, person, or entity represented;

(c) If the person acknowledging is an officer of a corporation, that such person was known to the official taking the acknowledgment to be such corporate officer and that the instrument was executed and acknowledged by such corporate officer, with proper authority from the corporation, as the act of such corporation;

(d) If the persons acknowledging are directors, trustees, or managers of a dissolved or expired corporation, acting last before the time of the dissolution or expiration of such corporation, or the survivors of them, that such persons were such corporate directors, trustees, or managers, or the survivors of them, and that the instrument was executed and acknowledged by them with proper authority;

(e) If the person acknowledging is a partner, that such person was such partner and that the instrument was executed and acknowledged by such partner with proper authority from such partnership as the act of such partnership.

(4) If such instrument has been acknowledged in the manner provided in this section and has been recorded in the office of the proper county clerk and recorder, it shall also be prima facie evidence of due delivery of such instrument, irrespective of the length of time that may have elapsed between the date of such instrument and the date when such instrument was so recorded. The provisions of this section shall relate and apply to all instruments which have been executed prior to May 4, 1937, as well as to all instruments which are executed after said date, irrespective of whether such instruments have been acknowledged before or after said date and irrespective of whether such instruments are recorded before or after said date.

(5) The seal required to be affixed to a deed or other instrument under the provisions of this section may consist of a rubber stamp with a facsimile affixed thereon of the seal required to be used and may be placed or stamped upon the deed or other instrument requiring the seal with indelible ink.

Source: L. 27: p. 585, § 1. CSA: C. 40, § 107. L. 37: p. 477, § 1. L. 39: p. 289, § 1. CRS 53: § 118-6-1. L. 55: p. 721, § 1. C.R.S. 1963: § 118-6-1. L. 75: (5) added, p. 489, § 7, effective July 14.

Cross references: For who may take acknowledgments, see § 38-30-126; for specification for notary public's seal and showing of expiration of commission, see § 24-21-517.

ANNOTATION

Law reviews. For article on the recording of a deed as evidence of delivery, see 7 Dicta 8 (1930). For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 16 Dicta 35 (1939). For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 16 Dicta 71 (1940). For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 26 Dicta 281 (1949). For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 26 Dicta 321 (1949). For article, "Evidence in the Proof of Real Estate Titles", see 24 Rocky Mt. L. Rev. 424 (1952). For article, "Highlights of the 1955 Colorado Legislative Session—Real Property", see 28 Rocky Mt. L. Rev. 58 (1955). For article, "Survey of Title Irregularities, Curative Statutes and Title Standards in Colorado", see 35 U. Colo. L. Rev. 21 (1962). For article, "Signatures on Documents Affecting Title to Colorado Real Property — Parts I and III", see 12 Colo. Law. 61 and 447 (1983).

Purpose of this article is to make real estate titles more safe, secure and marketable. To this end a liberal construction is required and in interpreting this article, it is necessary to construe its various sections harmoniously. Birkby v. Wilson, 92 Colo. 281, 19 P.2d 490 (1933).

One of the purposes of recording acts is the avoidance of secret liens and consequent frauds attendant upon them. Moore v. Chalmers-Galloway Live Stock Co., 90 Colo. 548, 10 P.2d 950 (1933).

Legislative intent. When the General Assembly provided for the short form of acknowledgment as a substitute for the long form, it was a substitution for all purposes, and it is not intended that the long form of acknowledgment should bestow certain advantages not conferred by the short form. Rock v. Fastenau, 122 Colo. 41, 219 P.2d 781 (1950).

Acknowledgement not required for effective conveyance. Unless there is an express statutory provision to the contrary a deed of real estate to be effective as a conveyance or transfer of real estate, as between grantor and grantee, need not be acknowledged at all. Am. Nat'l Bank v. Silverthorn, 87 Colo. 345, 287 P. 641 (1930).

Innocent subsequent purchasers are protected. The rights of innocent subsequent purchasers of property conveyed by an unacknowledged instrument may be protected, but not the privies in estate of the grantor. Am. Nat'l Bank v. Silverthorn, 87 Colo. 345, 287 P. 641 (1930).

Section inapplicable to acknowledgment of articles of incorporation. Neither the provisions of this section as to the acknowledgment of deeds, nor the reasons therefor, apply to the acknowledgment of articles of incorporation. People ex rel. Bernard v. Cheeseman, 7 Colo. 376, 3 P. 716 (1884).

When proof of identity unnecessary. It is not necessary to prove the identity to the certifying officer, of one making acknowledgment of the execution of a deed, when the officer has knowledge of the identity from a source that satisfies his conscience: as through introduction by a mutual friend. Nippel v. Hammond, 4 Colo. 211 (1878).

Acknowledgment of deed by corporate secretary is prima facie proof. The acknowledgment by the secretary of a corporation's deed is prima facie proof that the note and mortgage were signed by the proper officers and the seal attached to the mortgage is the corporate seal of the company, in accordance with this section. Bliss v. Harris, 38 Colo. 72, 87 P. 1076 (1906).

Possession of duly acknowledged deed is presumptive evidence of delivery. Possession of a duly acknowledged and recorded deed is presumptive evidence of its delivery, and the burden is upon a party asserting nondelivery to prove that fact. White v. White, 149 Colo. 166, 368 P.2d 417 (1962).

Presumption of delivery arises from recordation of a deed. Carmack v. Place, 188 Colo. 303, 535 P.2d 197 (1975).

Once acknowledgement and recording of deed is established, burden shifts to opponent to prove nondelivery. Jacquez v. Jacquez, 694 P.2d 1292 (Colo. App. 1984).

Presumption of delivery relates back to date of deed's execution. Upon recording, the rebuttable presumption of delivery arising from recordation relates back to the date of the execution of the deed. Carmach v. Place, 188 Colo. 303, 535 P.2d 197 (1975).

When a deed is properly recorded, a rebuttable presumption of due delivery arises which relates back to the date of execution of the deed, and the burden shifts to the opponent to demonstrate non-delivery. Brown v. Bd. of County Comm'rs, 720 P.2d 579 (Colo. App. 1985).

The presumption that delivery relates back to the date of the deed's execution is rebuttable, and therefore where a mineral deed was held in escrow pending full payment, there could be no earlier delivery than the date the deed was released from escrow. Tuttle v. Burrows, 852 P.2d 1314 (Colo. App. 1992).

Section includes treasurer's deeds. This section is sufficiently broad to include treasurer's deeds. Colpitts v. Fastenau, 117 Colo. 594, 192 P.2d 524 (1948).

Applied in Cody v. Butterfield, 1 Colo. 377 (1871); Consol. Gregory Co. v. Raber, 1 Colo. 511 (1872); McCraw v. Welch, 2 Colo. 284 (1874); Cowell v. Colo. Springs Co., 3 Colo. 82 (1876); Knight v. Lawrence, 19 Colo. 425, 36 P. 242 (1894); Monroe v. Monroe, 99 Colo. 401, 63 P.2d 459 (1936); Grusing v. Parke, 120 Colo. 555, 212 P.2d 102 (1949); Winslett v. Rozan, 279 F.2d 654 (10th Cir. 1960).