2023 New Mexico Statutes › Chapter 14 - Records, Rules, Legal Notices, Oaths › Article 8 - Recording › Section 14-8-4 - Acknowledgment necessary for recording; exceptions; recording of duplicates.

A. Any original instrument of writing duly acknowledged may be filed and recorded. Any instrument of writing not duly acknowledged may not be filed and recorded or considered of record, though so entered, unless otherwise provided in this section.
B. For purposes of this section, "acknowledged" means notarized by a person empowered to perform notarial acts pursuant to the Revised Uniform Law on Notarial Acts [Chapter 14, Article14A NMSA 1978].
C. The following documents need not be acknowledged but may be filed and recorded:
(1) court-certified copies of a court order, judgment or other judicial decree;
(2) court-certified transcripts of any money judgment obtained in a court of New Mexico or, pursuant to Section 14-9-9 NMSA 1978, in the United States district court for the district of New Mexico;
(3) land patents and land office receipts;
(4) notice of lis pendens filed pursuant to Section 38-1-14 NMSA 1978;
(5) provisional orders creating improvement districts pursuant to Section 4-55A-7 NMSA 1978;
(6) notices of levy on real estate under execution or writ of attachment when filed by a peace officer pursuant to Section 39-4-4 NMSA 1978;
(7) surveys of land that do not create a division of land but only show existing tracts of record when filed by a professional surveyor pursuant to Section 61-23-28.2 NMSA 1978;
(8) certified copies of foreign wills, marriages or birth certificates duly authenticated; and
(9) instruments of writing in any manner affecting lands in the state filed pursuant to Section 14-9-7 NMSA 1978, when these instruments have been duly executed by an authorized public officer.
D. If an original instrument of writing is unavailable but, if it were available, could be filed and recorded in accordance with this section, a duplicate of that instrument shall be accepted for filing and recording if accompanied by an affidavit executed pursuant to this subsection. The affidavit shall:
(1) provide the name, telephone number and mailing address of the affiant;
(2) provide information regarding the execution of the instrument, consideration paid, delivery or other information establishing that the original instrument, if it were available, would be entitled to be recorded pursuant to Subsection A of this section;
(3) specify the reason the duplicate is filed and recorded in place of the original instrument;
(4) include a statement that the duplicate is a true and correct copy of the original instrument; and
(5) be acknowledged and made under oath confirming that the statements set forth in the affidavit are true and correct and of the personal knowledge of the affiant.
E. The filing of a duplicate instrument in accordance with Subsection D of this section shall not incur a fee in addition to the fee, if any, charged for filing an original instrument. When the clerk records the instrument, the grantor and grantee shall be those of the duplicate instrument and the name of the affiant shall be indexed under miscellaneous information.
F. Any filing or recording permitted or required under the provisions of the Uniform Commercial Code need not comply with the requirements of this section.
G. Instruments acknowledged on behalf of a corporation need not have the corporation's seal affixed thereto in order to be filed and recorded.
History:
Laws 1901, ch. 62, § 18; Code 1915, § 4795; C.S. 1929, § 118-119; 1941 Comp., § 13-103; 1953 Comp., § 71-1-3; Laws 1961, ch. 96, § 11-118; 1967, ch. 10, § 1; 1981, ch. 219, § 1; 2011, ch. 134, § 7; 2013, ch. 214, § 3; 2019, ch. 130, § 1; 2021, ch. 21, § 34.
ANNOTATIONS
Cross references.
— For notary publics and validation of certain prior acknowledgments,
see
14-13-13 to 14-13-25 NMSA 1978.
The 2021 amendment,
effective January 1, 2022, made conforming changes due to the repeal of the Notary Public Act and the Uniform Law on Notarial Acts, and the enactment of the Revised Uniform Law on Notarial Acts; and in Subsection B, after "pursuant to the", deleted "Notary Public Act or the", and added "Revised" preceding "Uniform Law on Notarial Acts".
The 2019 amendment,
effective July 1, 2019, provided that when a duplicate of an original instrument of writing is filed and recorded with the county clerk, the duplicate instrument must be accompanied by an affidavit executed in accordance with this section, and provided that the filing of a duplicate shall not incur a fee in addition to any fee charged for filing an original instrument; in the section heading, after "exceptions", added "recording of duplicates"; in Subsection A, after "Any", added "original", and after "provided in this section.", deleted "A duplicate of an instrument of writing duly acknowledged may be filed and recorded to the same extent as the original."; added new Subsections D and E and redesignated former Subsections D and E as Subsections F and G, respectively.
The 2013 amendment,
effective June 14, 2013, changed the types of documents that must be acknowledged before being filed and recorded; in Subsection A, in the second sentence, after "though so entered", added the remainder of the sentence and added the third sentence; in Subsection C, in the introductory sentence, deleted "Notwithstanding Subsection A of this section"; deleted former Paragraph (4) of Subsection C, which permitted mining location notices to be filed without an acknowledgement; and added Paragraphs (5) through (7) of Subsection C.
The 2011 amendment,
effective July 1, 2011, in Subsection B, defined "acknowledged"; and in Subsection C, listed certain documents that do not have to be acknowledged.
I. GENERAL CONSIDERATION.
Taking acknowledgment ministerial duty.
— The duties performed by an officer in taking an acknowledgment in this state are ministerial in character rather than judicial.
Garcia v. Leal
, 1924-NMSC-078, 30 N.M. 249, 231 P. 631.
Necessity for acknowledgment.
— Laws 1874, ch. 14 (now superseded by § 14-13-13), cured defective acknowledgments to deeds made prior to January 8, 1874, but did not supply the want nor obviate the necessity of an acknowledgment as between the parties to the deed.
Armijo v. N.M. Town Co.
, 1885-NMSC-026, 3 N.M. (Gild.) 427, 5 P. 709.
See
note to 14-13-13 NMSA 1978.
This section does not require deeds to be acknowledged except for recordation and for the protection of the grantee against subsequent purchasers in good faith and without notice.
Garcia v. Leal
, 1924-NMSC-078, 30 N.M. 249, 231 P. 631.
An acknowledgment of a deed, or other writing, affecting real estate, by the party whose real estate is affected, in the manner established by statute, is a necessary prerequisite to its being recorded.
McBee v. O'Connell
, 1911-NMSC-049, 16 N.M. 469, 120 P. 734; appeal after remand, 1914-NMSC-088, 19 N.M. 565, 145 P. 123.
Although acknowledgment is not essential to validity of conveyance as between parties, without it the instrument may not be admitted to record.
Kitchen v. Canavan
, 1932-NMSC-037, 36 N.M. 273, 13 P.2d 877.
Acknowledgment not part of instrument.
— Although an acknowledgment is required before an instrument may be filed, in the absence of a statute so providing, an acknowledgment is not a part of an instrument and is not necessary to its validity.
Garrett Bldg. Centers, Inc. v. Hale
, 1981-NMSC-009, 95 N.M. 450, 623 P.2d 570;
Germany v. Murdock
, 1983-NMSC-041, 99 N.M. 679, 662 P.2d 1346.
Bankruptcy plans.
— The recording statute does not prohibit the district court from considering bankruptcy plans that are approved by the bankruptcy court when assessing the amenity rights of affected property owners.
Home & Land Owners, Inc. v. Angel Fire Resort Operations, L.L.C.
, 2003-NMCA-070, 133 N.M. 733, 69 P.3d 243.
Section does not govern admissibility.
— This section addresses the filing and recording of documents and does not govern the admissibility of documents in a court of law.
Home & Land Owners, Inc. v. Angel Fire Resort Operations, L.L.C.
, 2003-NMCA-070, 133 N.M. 733, 69 P.3d 243.
Constructive notice of easement.
— Deeds and contract granting easement across land owned by defendants, which were properly acknowledged, certified and recorded (§ 14-8-4), were therefore constructive notice to defendants and the public of their contents (§ 14-8-6).
Germany v. Murdock
, 1983-NMSC-041, 99 N.M. 679, 662 P.2d 1346.
II. UNACKNOWLEDGED INSTRUMENTS.
Absent valid acknowledgment, instrument may not be treated as recorded.
New Mexico Properties, Inc. v. Lennox Indus., Inc.
, 1980-NMSC-087, 95 N.M. 64, 618 P.2d 1228;
F & S Co. v. Gentry
, 1985-NMSC-065, 103 N.M. 54, 702 P.2d 999.
Effect of unacknowledged deed.
— Where there is a quitclaim deed not attested to by a notary public, this section only prevents the recording of the deed and does not make it void. The general rule is that an unacknowledged deed is binding between the parties thereto, their heirs and representatives and persons having actual notice of the instrument.
Baker v. Baker
, 1977-NMSC-006, 90 N.M. 38, 559 P.2d 415.
Unacknowledged mortgage gives no constructive notice.
— An unacknowledged mortgage is not entitled to record and gives no constructive notice.
Vorenberg v. Bosserman
, 1913-NMSC-005, 17 N.M. 433, 130 P. 438.
Restrictive covenants not effective.
— Since the instrument purporting to establish the subdivision covenants tendered for filing on June 5, 1978 was not properly acknowledged and did not comply with the requirements of the statute, it was ineffective to establish restrictive covenants against the subdivision which ran with the land.
Pollock v. Ramirez
, 1994-NMCA-011, 117 N.M. 187, 870 P.2d 149.
Developer's declaration of covenants was legally ineffective to establish restrictive covenants that run with the land because it was not acknowledged before a notary public.
Cyprus Gardens, Ltd. v. Platt
, 1998-NMCA-007, 124 N.M. 472, 952 P.2d 467.
Constructive notice not found.
— Because the covenants sought to be imposed did not comply with the requirements of this section and the covenants were recorded subsequent to the conveyance to the decedents, constructive notice of the existence of valid covenants cannot properly be implied.
Pollock v. Ramirez
, 1994-NMCA-011, 117 N.M. 187, 870 P.2d 149.
Recorded and filed lien, lacking acknowledgment, valid and binding.
— A valid materialmen's lien which lacked an acknowledgment, but had been filed and recorded, was valid and binding as between the parties to an action on the lien.
Garrett Bldg. Centers, Inc. v. Hale
, 1981-NMSC-009, 95 N.M. 450, 623 P.2d 570.
III. VALIDITY OF ACKNOWLEDGMENT.
Acknowledgment when signature made by mark.
— A deed executed by using the hand of a person to make his mark thereon at the place of signature is void where the grantor does not consciously assent to the signature so made, nor afterwards ratify the same, and a certificate of acknowledgment placed thereon under such circumstances does not operate to render such conveyance valid.
Garcia v. Leal
, 1924-NMSC-078, 30 N.M. 249, 231 P. 631.
Certificate of acknowledgment is not conclusive
and may be contested.
Garcia v. Leal
, 1924-NMSC-078, 30 N.M. 249, 231 P. 631.
Certificate of acknowledgment should be impeached by only clear and convincing evidence.
— A certificate of acknowledgment duly executed as required by law is prima facie evidence of the execution of the instrument it acknowledges, and should be impeached only by clear and convincing evidence.
Garcia v. Leal
, 1924-NMSC-078, 30 N.M. 249, 231 P. 631.
Conflicting evidence.
— Where evidence for plaintiff to the effect that a deed had not been consciously executed by the grantor and that the notary's certificate of acknowledgment thereon was false, if believed by the trial court, is clear and convincing, a judgment setting aside such deed will not be disturbed on appeal, although evidence on behalf of defendants may be in direct conflict therewith.
Garcia v. Leal
, 1924-NMSC-078, 30 N.M. 249, 231 P. 631.
Generally.
— Under the wording of this section, it is provided that any instrument of writing which is not duly acknowledged and certified is not entitled to be filed and recorded, nor considered of record, though so entered, unless expressly excepted under the terms of such statute. 1962 Op. Att'y Gen. No. 62-01.
Death certificates.
— County clerks could not issue certified copies of death certificates pursuant to this section so that persons may avoid the higher fees charged for the issuance of certificates by the vital statistics bureau. 1988 Op. Att'y Gen. No. 88-01.
Instruments filed pursuant to provisions of Uniform Commercial Code not required to be acknowledged.
— In keeping with the declared purpose of the Uniform Commercial Code (Chapter 55 NMSA 1978) to simplify, clarify and modernize the law governing commercial transactions, and the rule of construction that the Code shall be liberally construed and applied so as to promote its underlying purposes and policies, such instruments as are filed pursuant to the provisions of the Uniform Commercial Code are not required to be acknowledged as a prerequisite to being filed with the county clerks. 1962 Op. Att'y Gen. No. 62-01 (opinion rendered prior to 1967 amendment adding second proviso to section).
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
For annual survey of New Mexico law relating to property, see 12 N.M.L. Rev. 459 (1982).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 1 Am. Jur. 2d Acknowledgment §§ 4, 60 et seq.; 66 Am. Jur. 2d Records and Recording Laws § 77.
Sufficiency of certificate of acknowledgment, 25 A.L.R.2d 1124.
Record of instrument without acknowledgment or insufficiently acknowledged as notice, 59 A.L.R.2d 1299.
1A C.J.S. Acknowledgments § 7; 76 C.J.S. Records § 9 et seq.