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S1159aa..............................................by JUDICIARY AND RULES
WRITTEN INSTRUMENTS - Amends and adds to existing law regarding
acknowledgments of written instruments to revise the powers and
jurisdiction of a notary public; to provide for the certification of the
affixation of a signature by mark and to provide for a signature by a
notary for a person physically unable to sign or sign by mark; to provide
for a certificate of acknowledgment by a person signing by mark; and to
provide for a certificate of acknowledgment by a person physically unable
to sign or sign by mark.
02/15 Senate intro - 1st rdg - to printing
02/16 Rpt prt - to Jud
03/01 Rpt out - to 14th Ord
03/07 Rpt out amen - to engros
03/08 Rpt engros - 1st rdg - to 2nd rdg as amen
03/09 2nd rdg - to 3rd rdg as amen
Rls susp - PASSED - 35-0-0
AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Burkett,
Cameron, Coiner, Corder, Darrington, Davis, Fulcher, Gannon, Geddes,
Goedde, Hammond, Heinrich, Hill, Jorgenson, Kelly, Keough, Langhorst,
Little, Lodge, Malepeai, McGee, McKague, McKenzie, Pearce,
Richardson, Schroeder, Siddoway, Stegner, Stennett, Werk
NAYS -- None
Absent and excused -- None
Floor Sponsor - Davis
Title apvd - to House
03/09 House intro - 1st rdg - to Bus
03/16 Rpt out - rec d/p - to 2nd rdg
03/19 2nd rdg - to 3rd rdg
03/22 3rd rdg - PASSED - 69-0-1
AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Black,
Block, Bock, Boe, Bolz, Brackett, Bradford, Chadderdon, Chavez, Chew,
Clark, Collins, Crane, Durst, Edmunson, Eskridge, Hagedorn, Hart,
Harwood, Henbest, Henderson, Jaquet, Killen, King, Kren, Labrador,
Lake, LeFavour, Loertscher, Luker(Luker), Marriott, Mathews,
McGeachin, Mortimer, Nielsen, Nonini, Pasley-Stuart, Patrick, Pence,
Raybould, Ring, Ringo, Roberts, Ruchti, Rusche, Sayler, Schaefer,
Shepherd(2), Shepherd(8), Shirley, Shively, Smith(30), Smith(24),
Snodgrass, Stevenson, Thayn, Trail, Vander Woude, Wills, Wood(27),
Wood(35), Mr. Speaker
NAYS -- None
Absent and excused -- Moyle
Floor Sponsor - Anderson
Title apvd - to Senate
03/23 To enrol
03/26 Rpt enrol - Pres signed - Sp signed - To Governor
03/30 Governor signed
Session Law Chapter 312
Effective: 07/01/07
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature First Regular Session - 2007
IN THE SENATE
SENATE BILL NO. 1159
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO ACKNOWLEDGMENTS OF WRITTEN INSTRUMENTS; AMENDING SECTION 51-107,
3 IDAHO CODE, TO REVISE THE POWERS AND JURISDICTION OF A NOTARY PUBLIC AND
4 TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 51-109, IDAHO CODE, TO
5 PROVIDE FOR THE CERTIFICATION OF THE AFFIXATION OF A SIGNATURE BY MARK, TO
6 PROVIDE FOR A SIGNATURE BY A NOTARY FOR A PERSON PHYSICALLY UNABLE TO SIGN
7 OR SIGN BY MARK AND TO MAKE TECHNICAL CORRECTIONS; AMENDING CHAPTER 7,
8 TITLE 55, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 55-712A, IDAHO
9 CODE, TO PROVIDE FOR A CERTIFICATE OF ACKNOWLEDGMENT BY A PERSON SIGNING
10 BY MARK; AND AMENDING CHAPTER 7, TITLE 55, IDAHO CODE, BY THE ADDITION OF
11 A NEW SECTION 55-712B, IDAHO CODE, TO PROVIDE FOR A CERTIFICATE OF
12 ACKNOWLEDGMENT BY A PERSON PHYSICALLY UNABLE TO SIGN OR SIGN BY MARK.
13 Be It Enacted by the Legislature of the State of Idaho:
14 SECTION 1. That Section 51-107, Idaho Code, be, and the same is hereby
15 amended to read as follows:
16 51-107. POWERS AND JURISDICTION. (1) Each notary public is empowered to:
17 (a) Take acknowledgments:;
18 (b) Administer oaths and affirmations;
19 (c) Certify that a copy of an original document is a true copy thereof,
20 only if a certified copy of such original cannot be obtained from an offi-
21 cial custodian of such document;
22 (d) Certify affidavits (to include verifications) or depositions of wit-
23 nesses; and
24 (e) Certify the affixation of a signature by mark on an instrument pre-
25 sented for notarization if:
26 (i) The mark is affixed in the presence of the notary and one (1)
27 witness unaffected by the instrument;
28 (ii) The witness signs his name to the instrument beside the mark;
29 (iii) The notary writes below the mark the following: "Mark affixed
30 by (printed name of signer by mark) in the presence of (printed name
31 of witness)."; and
32 (iv) The notary public notarizes the signature by mark through a
33 certificate of acknowledgment or verification;
34 (f) A notary may sign the name of a person physically unable to sign or
35 sign by mark on a document presented for notarization if:
36 (i) The person directs the notary to do so in the presence of a
37 witness unaffected by the instrument;
38 (ii) The notary signs the person's name in the presence of the per-
39 son and the witness;
40 (iii) The witness signs the instrument beside the signature;
41 (iv) The notary writes below the signature the following: "Signature
42 affixed by notary in the presence of (name of person and witness)";
43 and
2
1 (v) The notary notarizes the signature through a certificate of
2 acknowledgment or verification; and
3 (g) Perform such other acts as may be specifically permitted by law.
4 (2) The powers of a notary public commissioned pursuant to the provisions
5 of this chapter may be exercised anywhere within the state of Idaho and may be
6 exercised outside the state only in connection with a deed or other writing to
7 be admitted to record in the state of Idaho.
8 SECTION 2. That Section 51-109, Idaho Code, be, and the same is hereby
9 amended to read as follows:
10 51-109. FORMS FOR NOTARIAL ACTS. (1) Certificates of acknowledgment shall
11 substantially conform to the forms set forth in sections 55-710 through
12 55-715, Idaho Code.
13 (2) An oath or affirmation, which is in writing, shall be signed by the
14 person who takes it, and the notary public shall enter thereunder substan-
15 tially the following:
16 "State of Idaho )
17 )ss.
18 County of ..... )
19 Subscribed and sworn (or affirmed) before me this ..... day of ..........,
20 ....."
21 ....................(official signature and seal)"
22 (3) An oath or affirmation administered verbally by a notary public shall
23 be in substantially the following form:
24 "You do solemnly swear (or affirm) that the testimony you shall give in
25 the matter in issue shall be the truth, the whole truth, and nothing but
26 the truth." The person who takes the oath or affirmation must respond
27 affirmatively.
28 (4) A certificate of verification of an instrument shall follow the
29 maker's signature and shall identify the notary public and certify that the
30 maker personally appeared, was sworn, stated his authority for making the
31 instrument, and averred the truth of the statements therein. For example, the
32 verification of a corporate document by an officer of the corporation should
33 be in substantially the following form:
34 "State of Idaho )
35 )ss.
36 County of ..... )
37 I, ...................., a notary public, do hereby certify that on
38 this ..... day of .........., ....., personally appeared before me
39 ............., who, being by me first duly sworn, declared that he is the
40 ............ of ........................., that he signed the foregoing
41 document as .......... of the corporation, and that the statements therein
42 contained are true."
43 ....................(official signature and seal)"
44 (5) The witnessing and certificate of verification for a signature by
45 mark shall be substantially in the following form:
46 "Mark: ....... Witness Signature: ....................
47 Mark affixed by (name of signer by mark) in the presence of (name and
48 address of witness) and undersigned notary................................
49 State of Idaho )
50 )ss.
51 County of ..... )
52 I, ...................., a notary public, do hereby certify that on
53 this ..... day of .........., ....., personally appeared before me
3
1 ............. (name and signer by mark), who, being by me first duly
2 sworn, declared that he made his mark on the foregoing instrument, and
3 that the statements therein contained are true.
4 ....................(official signature and seal)"
5 (6) The witnessing and certificate of verification for a signature by a
6 person physically unable to sign or sign by mark on an instrument shall be
7 substantially in the following form:
8 "Signature of person by notary: ..........................................
9 Witness Signature: .......................................................
10 Signature affixed by notary in the presence of (names and addresses of
11 person and witness).
12 State of Idaho )
13 )ss.
14 County of ..... )
15 I, ...................., a notary public, do hereby certify that on
16 this ..... day of .........., ....., personally appeared before me
17 ............. (name of person unable to sign or sign by mark), who, being
18 by me first duly sworn, declared that he signed the foregoing instrument
19 by directing the undersigned notary to sign the instrument for him, and
20 that the statements therein contained are true.
21 ....................(official signature and seal)"
22 (7) If a certified copy of a document cannot be obtained from any
23 recorder or custodian of public documents, and if certification of a copy of
24 the document by a notary public is otherwise permissible, a notary public may
25 certify a copy of the document in substantially the following form:
26 "State of Idaho )
27 )ss.
28 County of ..... )
29 I, ...................., a notary public, do certify that on
30 .........., ....., I carefully compared the attached copy of
31 ......................... (describe document) with the original. It is a
32 complete and true copy of the original document."
33 ....................(official signature and seal)
34 (68) On each notary certificate, the notary public shall immediately fol-
35 lowing his signature state the date of the expiration of his commission in
36 substantially the following form:
37 "My commission expires on .............., ....."
38 SECTION 3. That Chapter 7, Title 55, Idaho Code, be, and the same is
39 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
40 ignated as Section 55-712A, Idaho Code, and to read as follows:
41 55-712A. FORM OF CERTIFICATE -- ACKNOWLEDGMENT BY PERSON SIGNING BY MARK.
42 The certificate of acknowledgment by a person signing by mark shall be sub-
43 stantially in the following form:
44 "Mark: ....... Witness Signature: ....................
45 Mark affixed by (printed or typewritten name of person signing by mark) in
46 the presence of (name and address of witness) and undersigned notary.
47 State of Idaho )
48 )ss.
49 County of ..... )
50 On this ..... day of .........., in the year ....., before me (here insert
51 the name and quality of the officer), personally appeared .............,
52 known or identified to me (or proved to me on the oath of
53 .......................) to be the person whose name is subscribed to the
4
1 within instrument, and acknowledged to me that he executed the same by
2 affixing his mark thereto.
3 ....................(official signature and seal)"
4 SECTION 4. That Chapter 7, Title 55, Idaho Code, be, and the same is
5 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
6 ignated as Section 55-712B, Idaho Code, and to read as follows:
7 55-712B. FORM OF CERTIFICATE -- ACKNOWLEDGMENT BY PERSON PHYSICALLY
8 UNABLE TO SIGN OR SIGN BY MARK. The certificate of acknowledgment by a person
9 physically unable to sign or sign by mark must be substantially in the follow-
10 ing form:
11 "Signature of person by notary: ....................
12 Witness Signature: .....................
13 Signature affixed by notary in the presence of (names of person and wit-
14 ness).
15 State of Idaho )
16 )ss.
17 County of ..... )
18 On this ..... day of .........., in the year ....., before me (here insert
19 the name and quality of the officer), personally appeared .............,
20 known or identified to me (or proved to me on the oath of
21 .......................) to be the person whose name is subscribed to the
22 within instrument, and acknowledged to me that he executed the same by
23 directing the undersigned notary to affix his signature thereto.
24 ....................(official signature and seal)"
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature First Regular Session - 2007
Moved by Davis
Seconded by Stegner
IN THE SENATE
SENATE AMENDMENTS TO S.B. NO. 1159
1 AMENDMENT TO SECTION 1
2 On page 1 of the printed bill, delete lines 26 through 31, and insert:
3 "(i) The signer is unable to handwrite the signer's name;
4 (ii) The mark is affixed in the presence of the notary in a manner
5 which the notary can directly observe;
6 (iii) The notary writes below the mark the following: "Mark affixed
7 by (printed name of signer by mark)."; and".
8 AMENDMENTS TO SECTION 2
9 On page 2, in line 46, delete "Witness Signature: ....................";
10 and in lines 47 and 48, delete "(name and address of witness) and".
11 AMENDMENTS TO SECTION 3
12 On page 3, in line 44, delete "Witness Signature: ....................";
13 and in line 46, delete "(name and address of witness) and".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature First Regular Session - 2007
IN THE SENATE
SENATE BILL NO. 1159, As Amended
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO ACKNOWLEDGMENTS OF WRITTEN INSTRUMENTS; AMENDING SECTION 51-107,
3 IDAHO CODE, TO REVISE THE POWERS AND JURISDICTION OF A NOTARY PUBLIC AND
4 TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 51-109, IDAHO CODE, TO
5 PROVIDE FOR THE CERTIFICATION OF THE AFFIXATION OF A SIGNATURE BY MARK, TO
6 PROVIDE FOR A SIGNATURE BY A NOTARY FOR A PERSON PHYSICALLY UNABLE TO SIGN
7 OR SIGN BY MARK AND TO MAKE TECHNICAL CORRECTIONS; AMENDING CHAPTER 7,
8 TITLE 55, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 55-712A, IDAHO
9 CODE, TO PROVIDE FOR A CERTIFICATE OF ACKNOWLEDGMENT BY A PERSON SIGNING
10 BY MARK; AND AMENDING CHAPTER 7, TITLE 55, IDAHO CODE, BY THE ADDITION OF
11 A NEW SECTION 55-712B, IDAHO CODE, TO PROVIDE FOR A CERTIFICATE OF
12 ACKNOWLEDGMENT BY A PERSON PHYSICALLY UNABLE TO SIGN OR SIGN BY MARK.
13 Be It Enacted by the Legislature of the State of Idaho:
14 SECTION 1. That Section 51-107, Idaho Code, be, and the same is hereby
15 amended to read as follows:
16 51-107. POWERS AND JURISDICTION. (1) Each notary public is empowered to:
17 (a) Take acknowledgments:;
18 (b) Administer oaths and affirmations;
19 (c) Certify that a copy of an original document is a true copy thereof,
20 only if a certified copy of such original cannot be obtained from an offi-
21 cial custodian of such document;
22 (d) Certify affidavits (to include verifications) or depositions of wit-
23 nesses; and
24 (e) Certify the affixation of a signature by mark on an instrument pre-
25 sented for notarization if:
26 (i) The signer is unable to handwrite the signer's name;
27 (ii) The mark is affixed in the presence of the notary in a manner
28 which the notary can directly observe;
29 (iii) The notary writes below the mark the following: "Mark affixed
30 by (printed name of signer by mark)."; and
31 (iv) The notary public notarizes the signature by mark through a
32 certificate of acknowledgment or verification;
33 (f) A notary may sign the name of a person physically unable to sign or
34 sign by mark on a document presented for notarization if:
35 (i) The person directs the notary to do so in the presence of a
36 witness unaffected by the instrument;
37 (ii) The notary signs the person's name in the presence of the per-
38 son and the witness;
39 (iii) The witness signs the instrument beside the signature;
40 (iv) The notary writes below the signature the following: "Signature
41 affixed by notary in the presence of (name of person and witness)";
42 and
43 (v) The notary notarizes the signature through a certificate of
2
1 acknowledgment or verification; and
2 (g) Perform such other acts as may be specifically permitted by law.
3 (2) The powers of a notary public commissioned pursuant to the provisions
4 of this chapter may be exercised anywhere within the state of Idaho and may be
5 exercised outside the state only in connection with a deed or other writing to
6 be admitted to record in the state of Idaho.
7 SECTION 2. That Section 51-109, Idaho Code, be, and the same is hereby
8 amended to read as follows:
9 51-109. FORMS FOR NOTARIAL ACTS. (1) Certificates of acknowledgment shall
10 substantially conform to the forms set forth in sections 55-710 through
11 55-715, Idaho Code.
12 (2) An oath or affirmation, which is in writing, shall be signed by the
13 person who takes it, and the notary public shall enter thereunder substan-
14 tially the following:
15 "State of Idaho )
16 )ss.
17 County of ..... )
18 Subscribed and sworn (or affirmed) before me this ..... day of ..........,
19 ....."
20 ....................(official signature and seal)"
21 (3) An oath or affirmation administered verbally by a notary public shall
22 be in substantially the following form:
23 "You do solemnly swear (or affirm) that the testimony you shall give in
24 the matter in issue shall be the truth, the whole truth, and nothing but
25 the truth." The person who takes the oath or affirmation must respond
26 affirmatively.
27 (4) A certificate of verification of an instrument shall follow the
28 maker's signature and shall identify the notary public and certify that the
29 maker personally appeared, was sworn, stated his authority for making the
30 instrument, and averred the truth of the statements therein. For example, the
31 verification of a corporate document by an officer of the corporation should
32 be in substantially the following form:
33 "State of Idaho )
34 )ss.
35 County of ..... )
36 I, ...................., a notary public, do hereby certify that on
37 this ..... day of .........., ....., personally appeared before me
38 ............., who, being by me first duly sworn, declared that he is the
39 ............ of ........................., that he signed the foregoing
40 document as .......... of the corporation, and that the statements therein
41 contained are true."
42 ....................(official signature and seal)"
43 (5) The witnessing and certificate of verification for a signature by
44 mark shall be substantially in the following form:
45 "Mark: .......
46 Mark affixed by (name of signer by mark) in the presence of undersigned
47 notary....................................................................
48 State of Idaho )
49 )ss.
50 County of ..... )
51 I, ...................., a notary public, do hereby certify that on
52 this ..... day of .........., ....., personally appeared before me
53 ............. (name and signer by mark), who, being by me first duly
3
1 sworn, declared that he made his mark on the foregoing instrument, and
2 that the statements therein contained are true.
3 ....................(official signature and seal)"
4 (6) The witnessing and certificate of verification for a signature by a
5 person physically unable to sign or sign by mark on an instrument shall be
6 substantially in the following form:
7 "Signature of person by notary: ..........................................
8 Witness Signature: .......................................................
9 Signature affixed by notary in the presence of (names and addresses of
10 person and witness).
11 State of Idaho )
12 )ss.
13 County of ..... )
14 I, ...................., a notary public, do hereby certify that on
15 this ..... day of .........., ....., personally appeared before me
16 ............. (name of person unable to sign or sign by mark), who, being
17 by me first duly sworn, declared that he signed the foregoing instrument
18 by directing the undersigned notary to sign the instrument for him, and
19 that the statements therein contained are true.
20 ....................(official signature and seal)"
21 (7) If a certified copy of a document cannot be obtained from any
22 recorder or custodian of public documents, and if certification of a copy of
23 the document by a notary public is otherwise permissible, a notary public may
24 certify a copy of the document in substantially the following form:
25 "State of Idaho )
26 )ss.
27 County of ..... )
28 I, ...................., a notary public, do certify that on
29 .........., ....., I carefully compared the attached copy of
30 ......................... (describe document) with the original. It is a
31 complete and true copy of the original document."
32 ....................(official signature and seal)
33 (68) On each notary certificate, the notary public shall immediately fol-
34 lowing his signature state the date of the expiration of his commission in
35 substantially the following form:
36 "My commission expires on .............., ....."
37 SECTION 3. That Chapter 7, Title 55, Idaho Code, be, and the same is
38 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
39 ignated as Section 55-712A, Idaho Code, and to read as follows:
40 55-712A. FORM OF CERTIFICATE -- ACKNOWLEDGMENT BY PERSON SIGNING BY MARK.
41 The certificate of acknowledgment by a person signing by mark shall be sub-
42 stantially in the following form:
43 "Mark: .......
44 Mark affixed by (printed or typewritten name of person signing by mark) in
45 the presence of undersigned notary.
46 State of Idaho )
47 )ss.
48 County of ..... )
49 On this ..... day of .........., in the year ....., before me (here insert
50 the name and quality of the officer), personally appeared .............,
51 known or identified to me (or proved to me on the oath of
52 .......................) to be the person whose name is subscribed to the
53 within instrument, and acknowledged to me that he executed the same by
4
1 affixing his mark thereto.
2 ....................(official signature and seal)"
3 SECTION 4. That Chapter 7, Title 55, Idaho Code, be, and the same is
4 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
5 ignated as Section 55-712B, Idaho Code, and to read as follows:
6 55-712B. FORM OF CERTIFICATE -- ACKNOWLEDGMENT BY PERSON PHYSICALLY
7 UNABLE TO SIGN OR SIGN BY MARK. The certificate of acknowledgment by a person
8 physically unable to sign or sign by mark must be substantially in the follow-
9 ing form:
10 "Signature of person by notary: ....................
11 Witness Signature: .....................
12 Signature affixed by notary in the presence of (names of person and wit-
13 ness).
14 State of Idaho )
15 )ss.
16 County of ..... )
17 On this ..... day of .........., in the year ....., before me (here insert
18 the name and quality of the officer), personally appeared .............,
19 known or identified to me (or proved to me on the oath of
20 .......................) to be the person whose name is subscribed to the
21 within instrument, and acknowledged to me that he executed the same by
22 directing the undersigned notary to affix his signature thereto.
23 ....................(official signature and seal)"
STATEMENT OF PURPOSE
RS 17014
Increasingly, people who are required to execute a document
to be notarized are either unable to physically sign at all, or
can only affix a mark. Most commonly, this is because of
physical infirmity, paralysis, or disease. The person has
sufficient mental capacity to execute the document, but does not
have the physical ability to do so. Traditionally, the method
used is to have the person either affix their mark, perhaps an
"X", to the document, or to direct another person to sign for
them. However, Idaho law has been silent on the correct method
of signing and of notarizing under either of those methods. This
bill sets forth the correct method of the execution of the
document, by mark or by direction, and of notarization of the
executed document.
Section One amends Section 51-107, Idaho Code. It first
adds new paragraph e (starting on line 24 of page 1) to provide
for a signature by mark. Specifically, the mark has to be
affixed in the presence of the notary and a neutral witness and
the witness signs beside the mark. The notary then adds the
language in lines 29-31 regarding the mark and witness, and
notarizes the document. Paragraph f, starting on line 34 of page
1, provides for signature by a person unable to sign or sign by
mark. The person directs the notary to sign in presence of a
neutral witness and a similar procedure to the mark method
follows. Section Two amends Section 51-109, Idaho Code, by new
paragraphs 5 and 6 to set forth the actual format of the
witnessing and certificate of notary in each method.
Section Three adds a new Section 55-7112A, Idaho Code, to
set the format for the notarial certificate for signing by mark.
Section Four does the same for signing by oral direction.
The exact language of the bill has been reviewed in detail
with the Secretary of State's office and has been designed to
mesh properly with legislation that office will be bringing in a
future session to modify other portions of the notary code.
FISCAL NOTE
This bill will have no fiscal impact.
Contact
Name: Robert L. Aldridge, Trust & Estate Professionals of Idaho, Inc.
Phone: 336-9880 Cell Phone: (208) 631-2481
STATEMENT OF PURPOSE/FISCAL NOTE S 1159