Colorado § 38-35-102 - When unacknowledged instruments prima facie evidence.

§ 38-35-102. When unacknowledged instruments prima facie evidence.

(1) When an instrument, which by its terms constitutes a promise or obligation for the payment of money and also by its terms gives or creates or purports to give or to create a lien upon real estate as security for the payment of such money, at the time that such instrument has been filed for record in the office of the county clerk and recorder of the county in which said real estate is situate, irrespective of whether such recording is the original recording of such instrument or a recording of such instrument subsequent to its original recording, bears upon its face or upon its back an assignment, transfer, or endorsement thereof, such instrument and such assignment, transfer, or endorsement thereof or the recorded copy of such instrument and of such assignment, transfer, or endorsement thereof or a certified copy of the recorded copy of said instrument and of such assignment, transfer, or endorsement thereof certified by the county clerk and recorder shall be admissible in evidence as and shall constitute prima facie evidence of such transfer, assignment, or endorsement of such instrument from the person whose purported signature is affixed to such assignment, transfer, or endorsement to the person named in such assignment, transfer, or endorsement as the assignee, transferee, or endorsee of such instrument, irrespective of whether or not such assignment, transfer, or endorsement has been acknowledged in the manner provided by law for the acknowledgment of instruments relating to or affecting title to real property or acknowledged at all.

(2) The provisions of this section shall relate and apply to all of such instruments which have been executed prior to May 4, 1937, as well as to all such instruments executed after said date, irrespective of whether said assignments, transfers, or endorsements were executed before or after May 4, 1937, and irrespective of whether such instruments and such assignments, transfers, and endorsements thereof were recorded before or after said date.

Source: L. 37: p. 479, § 2. CSA: C. 40, § 107(1). CRS 53: § 118-6-2. C.R.S. 1963: § 118-6-2.

ANNOTATION

Law reviews. For comment, "Water: Statewide or Local Concern? City of Thornton v. Farmers Reservoir & Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978)", see 56 Den. L. J. 625 (1979).

Deed with improperly authenticated acknowledgment inadmissible. Where the deed was acknowledged before a justice of the peace in a different county from that in which the claim is situated, and no certificate to the official character of the officer taking the acknowledgment, or to the genuineness of his signature, was attached, as required by subsection (1), nor was any other proof of the due execution of the deed offered, the acknowledgment of this deed was not properly authenticated, and the deed is not admissible into evidence without further proof of its execution. McGinnis v. Egbert, 8 Colo. 41, 5 P. 652 (1884).

Deed properly admitted absent objection to proof of execution. Where an objection to the admissibility of the deed went only to the want of a proper acknowledgment, and did not go to the fact that the execution of the instrument had not been otherwise proved in the manner required by the rules of evidence applicable to such a writing, the deed, not having been objected to on this ground, was properly admitted. Lambert v. Murray, 52 Colo. 156, 120 P. 415 (1911).

Applied in Holladay v. Dailey, 1 Colo. 460 (1872); Owers v. Olathe Silver Mining Co., 6 Colo. App. 1, 39 P. 980 (1895); Edson-Keith & Co. v. Bedwell, 52 Colo. 310, 122 P. 392 (1912); Milwaukee Gold Mining Co. v. Tomkins-Christy Hdwe. Co., 26 Colo. App. 155, 141 P. 527 (1914).