In re Akins
| Decision Date | 01 November 2002 |
| Citation | 87 S.W.3d 488 |
| Parties | In re Ronald Lebron AKINS, Sr. |
| Court | Tennessee Supreme Court |
Linda W. Knight, Nashville, Tennessee, for the appellant, Community Trust & Banking Company.
Christopher Todd Varner and Richard P. Jahn, Jr., Chattanooga, Tennessee, for the appellee, Richard P. Jahn, Jr.
Amy Pierce and B. Anthony Saunders, Nashville, Tennessee, for the amicus curiae, Tennessee Bankers Association.
JANICE M. HOLDER, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and WILLIAM M. BARKER, JJ., joined.
Pursuant to Rule 23 of the Supreme Court of Tennessee,1 this Court accepted certification of the following questions from the United States Bankruptcy Court
for the Eastern District of Tennessee, Southern Division:
(1) Whether the following acknowledgment on a deed of trust is valid under Tennessee law:
State of Tennessee
I, Tammy Bentley, a Notary Public of the county and state first above written, do hereby certify that Ronald L. Akins, unmarried, personally appeared before me this day and acknowledged the execution of the foregoing instrument.
Witness my hand and official seal, this 12th day of April, 2000.
//s// Tammy Bentley
Notary Public
My commission expires: 2/26/2003
(2) If the foregoing certificate of acknowledgment is not valid, then whether the admittedly valid acknowledgment on the assignment of rents cures the defective acknowledgment on the deed of trust under the circumstances of this case.
We hold that the deed of trust in this case was properly acknowledged under Tennessee law and is not voidable by a judicial lien creditor or a bona fide purchaser for value.
This matter arises from a federal bankruptcy proceeding. The debtor in the bankruptcy proceeding, Ronald L. Akins, Sr., filed a voluntary petition for Bankruptcy under Chapter 7 of the United States Bankruptcy Code on May 25, 2000. In his capacity as appointed bankruptcy trustee, Richard P. Jahn, Jr. filed an adversary proceeding seeking to set aside a deed of trust executed by Mr. Akins on April 12, 2000. The defendant in the adversary proceeding, Community Trust & Banking Company ("CTB"), is the beneficiary of the deed of trust at issue.
CTB made a loan of $175,000 to Mr. Akins in April of 2000. On April 24, 2000, a deed of trust was recorded in the Office of the Register of Deeds of Meigs County, Tennessee, securing payment of the $175,000 note. The clause acknowledging Mr. Akins' signature on the deed of trust reads as follows:
State of Tennessee
I, Tammy Bentley, a Notary Public of the county and state first above written, do hereby certify that Ronald L. Akins, unmarried, personally appeared before me this day and acknowledged the execution of the foregoing instrument.
Witness my hand and official seal, this 12th day of April, 2000.
//s// Tammy Bentley
Notary Public
My commission expires: 2/26/2003
To further secure the loan, Mr. Akins also executed a Collateral Assignment of Rents in favor of CTB. This document was executed before the same notary public on the same date as the deed of trust and was also recorded on the same date as the deed of trust. The acknowledgment on the assignment of rents reads as follows:
Before me personally appeared Ronald L. Akins, unmarried, to me known to be the person(s) described in and who executed the foregoing instrument, and acknowledged the execution of the same as his free act and deed for the purposes therein contained.
(emphasis added). The Trustee does not dispute the validity of the assignment of rents or its acknowledgment.
The Trustee seeks to avoid the lien wider the deed of trust of which CTB is the beneficiary on the grounds that its certificate of acknowledgment is invalid. Specifically, the Trustee argues that because the certificate does not adequately demonstrate the notary's knowledge of the identity of the person appearing before her, the deed of trust is void. Both parties filed motions for partial summary judgment. In connection with these motions, we accepted the aforementioned questions of law from the United States Bankruptcy Court for the Eastern District of Tennessee, Southern Division.
For the following reasons, we hold that the deed of trust was properly acknowledged under Tennessee law and is not voidable by a judicial lien creditor or a bona fide purchaser without notice.
Chapter 22 of Title 66 of the Tennessee Code Annotated governs the acknowledgment of instruments. Forms of certificates of acknowledgment for cases in which an individual signs a deed of trust on his or her own behalf are set forth in Tennessee Code Annotated sections 66-22-107(a)(b) and 66-22-114(a). Section 66-22-107 includes the following:
a) If the acknowledgment is made before a county clerk or deputy, or clerk and master, or notary public, or before any of the officers out of the state who are commissioned or accredited to act at the place where the acknowledgment is taken, and having an official seal, viz: those named in §§ 66-22-103 and 66-22-104, and, also, any consular officer of the United States having an official seal, such officer shall write upon or annex to the instrument the following certificate, in which the officer shall set forth such officer's official capacity:
State of Tennessee)
County of __________)
Personally appeared before me, (name of clerk or deputy) clerk (or deputy clerk) of this county, (bargainor's name), the within named bargainor, with whom I am personally acquainted (or proved to me on the basis of satisfactory evidence), and who acknowledged that such person executed the within instrument for the purposes therein contained.
Witness my hand, at office, this — day of ______, 19 —.
(b) Or, in the alternative, the following certificate, in case of natural persons acting in their own right:
State of Tennessee)
County of _________)
On this — day of ___________, 19 —, before me personally appeared _____________, to me known to be the person (or persons) described in and who executed the foregoing instrument, and acknowledged that such person (or persons) executed the same as such person (or person's) free act and deed.
(emphasis added). Section 66-22-114(a), which contains an alternative "universal" form of certificate of acknowledgment, states:
If the acknowledgment be made before any of the officers who are authorized to take such acknowledgment under the provisions of this chapter or any consular officer of the United States having an official seal, such officer shall write upon or annex to the instrument a certificate of acknowledgment. The following form shall constitute a valid certificate of acknowledgment:
State of __________)
County of __________)
Personally appeared before me, (name of officer), (official capacity of officer), (name of the natural person executing the instrument), with whom I am personally acquainted, and who acknowledged that such person executed the within instrument for the purposes therein contained (the following to be included only where the natural person is executing as agent), and who further acknowledged that such person is the (identification of the agency position of the natural person executing the instrument, such as "attorney-in-fact" or "president" or "general partner") of the maker or a constituent of the maker and is authorized by the maker or by its constituent, the constituent being authorized by the maker, to execute this instrument on behalf of the maker.
Witness my hand, at office, this — day of __________, 19 —.
(emphasis added). Missing from the certificate of acknowledgment on the deed of trust in this case is any prescribed language indicating the notary's familiarity with the individual who assigned the deed of trust, Ronald L. Akins. A deed of trust that is not properly acknowledged is "null and void as to existing or subsequent creditors of, or bona fide purchasers from, the makers without notice." Tenn.Code Ann. § 66-26-103 (1993); Limor v. Fleet Mortg. Group (In re Marsh), 12 S.W.3d 449, 454 (Tenn.2000). Thus, the issue is whether the omission of the prescribed words on the deed of trust's certificate of acknowledgment allows the Trustee to avoid CTB's liens.
Tennessee Code Annotated section 66.-26-113 and Tennessee Code Annotated section 66-22-114(b) currently address how to determine the validity of a certificate of acknowledgment that does not follow one of the aforementioned statutorily prescribed forms. Section 66-26-113 states the "substantial compliance" test:
The unintentional omission by the clerk or other officer of any words in a certificate of an acknowledgment, or probate of any deed or other instrument, shall in nowise vitiate the validity of such deed, but the same shall be good and valid to all intents and purposes, if the substance of the authentication required by law is in the certificate.
(emphasis added). A predecessor of this statute, with substantially the same language, was first enacted in 1845. In 1987, the General Assembly added Tennessee Code Annotated section 66-22-114(b), which states the "intent" test:
Any certificate clearly evidencing intent to authenticate, acknowledge or verify a document shall constitute a valid certificate of acknowledgment for purposes of this chapter and for any other purpose for which such certificate may be used under the law. It is the legislative intent that no specific form or wording be required in such certificate and that the ownership of property, or the determination of any other right or obligation, shall not be affected by the inclusion or omission of any specific words. (emphasis added). Tennessee Code Annotated section 66-22-114(b) does not contain any provision that repeals section 66-26-113.
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C-Wood Lumber Co. v. Wayne County Bank
...they occur when the substance of a later statute cannot be construed harmoniously with that of an earlier statute. In re Akins, 87 S.W.3d 488, 493 (Tenn.2002); Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn.1995). Because Tenn.Code Ann. § 47-3-307 and Tenn.Code Ann. § 35-2-109 cannot be construe......
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Steppach v. Thomas
...same subject must be construed harmoniously, so that they do not conflict. State v. Turner, 193 S.W.3d 522 (Tenn.2006); In re Akins, 87 S.W.3d 488, 493 (Tenn.2002) (citing Parkridge Hosp., Inc. v. Woods, 561 S.W.2d 754, 755 (Tenn.1978)). Furthermore, the rules of statutory construction dire......
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Elliott v. Cobb
...one. Id. We must construe statutes on the same subject, although in apparent conflict, in harmony if reasonably possible. In re Akins, 87 S.W.3d 488, 493 (Tenn.2002). Shorts, 278 S.W.3d at see also State v. Hicks, 55 S.W.3d 515, 523 (Tenn.2001) (stating that “courts should find repeals by i......
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State v. Davis
...in order to advance their common purpose or intent. See Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn.1994); see also In re Akins, 87 S.W.3d 488, 493 (Tenn.2002); Cronin, 906 S.W.2d at 912. Additionally, the is presumed to know its prior acts, so repeals by implication will only be found when t......