Subchapter II. Form, Acknowledgment and Proof of Deeds and Other Legal Instruments
TITLE 25
Property
General Provisions
CHAPTER 1. DEEDS
Subchapter II. Form, Acknowledgment and Proof of Deeds and Other Legal Instruments
ALL
(Description of premises).
(Recital of title).
§ 121. Form of deed; legal effect; other forms as valid.
(a) The following shall be a sufficient form of deed for the conveyance
of real estate:
This Deed made this .................... day of ...................., A.D.
....................
Between A. B., of ...................., party of the first part and C. D. of
...................., party of the second part.
Witnesseth, that the said party of the first part for and in consideration of
the sum of ...................., the receipt whereof is hereby acknowledged, hereby
grants and conveys unto the said party of the second part.
In witness whereof, the said party of the first part hath hereunto set his
hand and seal.
Sealed and Delivered in ................ (Seal)
The Presence of:
....................
....................
(b) A deed in the form prescribed in subsection (a) of this section, duly executed and acknowledged, unless otherwise restricted or limited, or unless contrary intention appears therein, shall be construed to pass and convey to the grantee therein and to his heirs and assigns the fee simple title or other whole estate or interest which the grantor could lawfully convey in and to the property therein described together with the tenements, hereditaments, franchises and appurtenances thereunto belonging, and the reversions and remainders, rents, issues and profits thereof. The words "grant and convey" in any deed shall, unless specifically restricted or limited operate as a special warranty against the grantor and the grantor's heirs and all persons claiming under the grantor or them. Nothing contained in this section shall invalidate a deed not made in the form prescribed in subsection (a) of this section, but a deed made in the form heretofore in common use within this State shall be valid and effectual.
Code 1852, § 1612; Code 1915, § 3198; 33 Del. Laws, c. 207; Code 1935, § 3659; 25 Del. C. 1953, § 121; 70 Del. Laws, c. 186, § 1.;
§ 122. Acknowledgment and proof of deeds.
A deed concerning lands, tenements or hereditaments may be acknowledged in any county, by any party to the deed, in the Superior Court, or before any judge of this State, or notary public, or before 2 justices of the peace for the same county, or before the Mayor of the City of Wilmington. Such deed may also be acknowledged in the Superior Court by attorney, by virtue of a power contained in it or separate from it, the power being first proved in the Court. Also, such deed may be proved in the Court by 1 or more of the subscribing witnesses.
Code 1852, § 1613; 17 Del. Laws, c. 207, §§ 8, 28; Code 1915, § 3199; Code 1935, § 3660; 25 Del. C. 1953, § 122; 71 Del. Laws, c. 176, § 32.;
§ 123. Certification of acknowledgment or proof.
Acknowledgment or proof shall be certified under the hand and seal of office of the clerk, or prothonotary, of the court in which, or under the hand of the judge, notary public or justices of the peace before whom, the acknowledgment or proof is taken, in a certificate indorsed upon or annexed to the deed.
Code 1852, § 1618; Code 1915, § 3207; Code 1935, § 3668; 45 Del. Laws, c. 230, § 3; 25 Del. C. 1953, § 123.;
§ 124. Acknowledgment and execution of deed by married woman deserted without just cause.
Conveyances made in pursuance of § 107 of this title by a married woman abandoned without just cause shall be acknowledged before any judge of the Court of Chancery or Superior Court of this State; and in addition to the certificate that it is the act and deed of the party signing the instrument, the judge shall further certify that it had satisfactorily appeared to the judge that the party executing the instrument had been abandoned by her husband without just cause.
19 Del. Laws, c. 772, §§ 1-3; Code 1915, § 3048; 30 Del. Laws, c. 197; Code 1935, § 3544; 25 Del. C. 1953, § 124; 70 Del. Laws, c. 186, § 1.;
§ 125. Place for taking acknowledgment or proof.
It shall not be necessary that the acknowledgment or proof of a deed be taken in the county wherein the premises are situate.
Code 1852, § 1617; Code 1915, § 3206; Code 1935, § 3667; 45 Del. Laws, c. 230, § 2; 25 Del. C. 1953, § 125.;
§ 126. Certification of acknowledgments by justices of the peace; form.
(a) Two justices of the peace, when taking or certifying an
acknowledgment, shall be together; and a certificate of acknowledgment taken
before them, may be according to the following form, viz:
State of Delaware ss.
................ County
Be it remembered, that on the ................ day of ........, in the year
of our Lord, two thousand and ................, personally came before me,
the subscribers, two of the Justices of the Peace for ....................
County aforesaid, .................... and ...................., his wife,
parties to this indenture known to us personally (or proved on the oath of
............ to be such, and severally acknowledged said indenture to be their
act and deed respectively.
Witness our hands the day and year aforesaid.
(b) If the instrument acknowledged is not an indenture, the word "instrument" may be substituted for the word "indenture" in the form; if it is not under seal, the words "and deed" in the form shall be omitted. The certificate of acknowledgment may, in all cases, be according to the foregoing form. It may be varied in any case requiring a variance, the above form being given for general direction.
Code 1852, §§ 1619, 1620; Code 1915, § 3208; Code 1935, § 3669; 45 Del. Laws, c. 230, § 4; 25 Del. C. 1953, § 126; 70 Del. Laws, c. 186, § 1.;
§ 127. Acknowledgment of corporate deeds or other instruments.
A deed concerning lands or tenements or any other written instrument entitled to be recorded, executed by a corporation, may be executed and acknowledged before any judge of this State, or a judge of the District Court or Court of Appeals of the United States, or a notary public, or 2 justices of the peace of the same county, by the president or other presiding officer or a vice-president or an assistant vice-president, duly authorized by resolution of the directors, trustees or other managers, or by the legally constituted attorney, of such corporation.
Code 1852, § 1616; 16 Del. Laws, c. 521; 27 Del. Laws, c. 265; Code 1915, § 3205; Code 1935, § 3666; 48 Del. Laws, c. 130, § 1; 25 Del. C. 1953, § 127.;
§ 128. Certification of acknowledgments by Mayor of Wilmington; fee.
The Mayor of Wilmington may take and certify under the Mayor's own hand and seal of office the acknowledgment of deeds and letters of attorney in like manner as a judge or notary public may. For such service the Mayor of Wilmington shall receive a fee of 75 cents, and no more, whether there are 1 or more parties to the deed.
17 Del. Laws, c. 207, § 8; Code 1915, § 2140; Code 1935, § 2433; 25 Del. C. 1953, § 128; 70 Del. Laws, c. 186, § 1.;
§ 129. Acknowledgment or proof outside State.
(a) A deed concerning lands, tenements or hereditaments within this State may be acknowledged or proved, or may be taken out of the State before any consul general, consul, vice-consul, consular agent, or commercial agent of the United States, duly appointed in any foreign country, at the places of their respective official residence, the judge of any United States District Court or United States Court of Appeals, or any judge of a court of record of any state, territory or country, or the mayor or chief officer of any city or borough, and certified under the hands of such judge, mayor or officer, and the seal of that official's office, court, city or borough, by certificate indorsed upon or annexed to the deed; or such acknowledgment or proof may be taken in such court and certified under the hand of the clerk, or other officer of the court, and the seal of the court in like manner. If certified by a judge, the seal of that judge's court may be affixed to that judge's certificate or to a certificate of attestation of the clerk, or keeper of the seal.
(b) Acknowledgment and proof of a deed may also be taken out of this State by any commissioner of deeds, appointed by the governor in any of the states or territories of the United States, or in the District of Columbia, or in the possessions of the United States, or in foreign countries, the deed to be certified, in like manner, under the hand and seal of the commissioner.
(c) Any deed concerning lands, tenements or hereditaments within this State, any other instrument of writing whatsoever, or any affidavit or other statement requiring acknowledgment or proof may be so acknowledged and proved out of this State before a notary public of any state or territory or of the District of Columbia. The provisions of this paragraph shall extend to affidavits of demand and defense as provided for in § 3901 of Title 10.
Code 1852, §§ 1621, 1622; 13 Del. Laws, c. 28; 17 Del. Laws, c. 212; 18 Del. Laws, c. 211; 18 Del. Laws, c. 212; 22 Del. Laws, c. 82; Code 1915, § 3209; Code 1935, § 3670; 45 Del. Laws, c. 230, § 5; 25 Del. C. 1953, § 129; 70 Del. Laws, c. 186, § 1.;
§ 130. Notarial acts by members of the armed forces.
(a) In addition to the acknowledgment of instruments and the performance of other notarial acts in the manner and form and as otherwise authorized by law, instruments may be acknowledged, documents attested, oaths and affirmations administered, depositions and affidavits executed, and other notarial acts performed before or by any commissioned officer in active service of the armed forces of the United States with the rank of second lieutenant or higher in the army, marine corps, or air force, or with the rank of ensign or higher in the navy or coast guard, or with equivalent rank in any other component part of the armed forces of the United States by any person who either is:
(1) A member of the armed forces of the United States; or
(2) Serving as a merchant seaman outside the limits of the United States included within the 48 states and the District of Columbia; or
(3) Outside the limits by permission, assignment or direction of any department or official of the United States government, in connection with any activity pertaining to the prosecution of any war in which the United States is then engaged.
(b) Such acknowledgment of instruments, attestation of documents, administration of oaths and affirmations, execution of depositions and affidavits, and performance of other notarial acts made or taken are declared legal, valid and binding. Instruments and documents so acknowledged, authenticated or sworn to shall be admissible in evidence and eligible to record in this State under the same circumstances, and with the same force and effect, as if such acknowledgment, attestation, oath, affirmation, deposition, affidavit or other notarial act had been made or taken within this State before or by a duly qualified officer or official as otherwise provided by law.
(c) In the taking of acknowledgments and the performing of other notarial acts requiring certification, a certificate indorsed upon or attached to the instrument or documents, which shows the date of the notarial act and which states, in substance, that the person appearing before the officer acknowledged the instrument as his act or made or signed the instrument or document under oath, shall be sufficient for all intents and purposes. The instrument or document shall not be rendered invalid by the failure to state the place of execution or acknowledgment.
(d) If the signature, rank and branch of service or subdivision thereof of any such commissioned officer appears upon such instrument or document or certificate, no further proof of the authority of such officer so to act shall be required, and such action by such commissioned officer shall be prima facie evidence that the person making such oath or acknowledgment is within the purview of this section.
Code 1915, § 3209; Code 1935, § 3670; 44 Del. Laws, c. 165; 45 Del. Laws, c. 227, §§ 1, 2; 25 Del. C. 1953, § 130; 70 Del. Laws, c. 186, § 1.;
§ 131. Validation of certain instruments as deeds.
An instrument which by its terms purports to alienate or convey lands, tenements or hereditaments situated in this State and which was signed by the persons or corporations who at the time were the owners of the lands, tenements or hereditaments mentioned therein and which was also acknowledged by owners before an officer authorized by the laws of Delaware to take acknowledgments, as the act and deed of such persons, shall be deemed to alienate or convey the title, estate and interest, both at law and in equity, of the owners signing and acknowledging such instrument, according to the true intent and meaning of such instrument, notwithstanding that the instrument is not under the seals of the owners and notwithstanding that the instrument does not contain the words commonly known as the "use clause" and/or the word "grant" and/or the words "bargain and sell." No right of dower or curtesy shall be barred or released except when the person who would have such right of dower or of curtesy has signed and acknowledged the instrument. Nothing in this section shall preclude any action or right of action, either at law or in equity, which any party in interest would have had if the instrument had been under the seals of the persons executing the same and had been in the customary form of a deed in this State and this section had not been passed.
35 Del. Laws, c. 194; Code 1935, § 3676; 46 Del. Laws, c. 203, § 1; 25 Del. C. 1953, § 131; 49 Del. Laws, c. 181, §§ 1, 2; 50 Del. Laws, c. 157, § 1; 59 Del. Laws, c. 451, § 1; 68 Del. Laws, c. 319, § 1.;
§ 132. Validity of legal instruments having defective acknowledgments; admissibility in evidence.
The record of all legal instruments which by law are directed to be recorded or are entitled to be recorded, and which have been duly executed by the proper party or parties, notwithstanding the instruments have not been acknowledged before an officer authorized by the laws of Delaware to take acknowledgments, or which have not been otherwise properly acknowledged, or the acknowledgments of which have not been taken and certified in conformity with the laws of this State in force at the time each such instrument was executed, are severally made as valid and effective in law as if each instrument had been correctly acknowledged and the acknowledgment correctly certified. The record of each such instrument or any office copy thereof or the original instrument itself shall be admitted as evidence in all courts of this State and shall be as valid and conclusive evidence as if such instrument had been in all respects acknowledged and the acknowledgment certified in accordance with the then existing law.
47 Del. Laws, c. 396, § 1; 25 Del. C. 1953, § 132.;
§ 133. Address of grantee on deed.
Anyone leaving for record any deed conveying lands and tenements shall place upon or attach to the deed the address of the grantee.
Code 1852, §§ 1626, 1627; 16 Del. Laws, c. 520, § 1; 17 Del. Laws, c. 213, § 3; Code 1915, § 3215; Code 1935, § 3677; 46 Del. Laws, c. 267, § 1; 25 Del. C. 1953, § 133.;
§ 134. Authentication and recognition of acknowledgments.
The authentication and recognition of the acknowledgment of a foreign notary public or other officer on an instrument necessary under this chapter shall be in accordance with subchapter II of Chapter 43 of Title 29.
63 Del. Laws, c. 61, § 2.;
§ 135. Tax ditch, tax lagoon, right-of-way, or assessment.
Any deed transferring a parcel of real property listed in an order recorded pursuant to § 4195 or § 4389 of Title 7 shall specifically state in the deed that such parcel of real property may be subject to a tax ditch right-of-way and/or assessment, or a tax lagoon right-of-way and/or assessment pursuant to Superior Court order, and shall state the date of the court order and the order's recording information in the recorder of deeds' office of the county.
75 Del. Laws, c. 321, § 3.;