It is not uncommon for an attorney to be confronted with a signatory to a crucial instrument that is fully competent, yet is infirm, feeble and unable to fashion any sort of signature other than an illegible scrawl. A common practice in these instances is to direct the signatory to draw an "X," (making their mark). This often leads to the question of whether there is any particular form of notary acknowledgement required for this situation, or whether the general acknowledgement will suffice to result in a valid conveyance.
Over the years we have observed a great deal of uncertainty over this issue and feel that a pragmatic response may be helpful. Practitioners are well familiar with the elements of the following discourse, but they seldom get assembled in a logical and useful sequence. We hope that this discussion may prove useful as a practical guide.
Historically, the widespread use of the seal in the execution of instruments developed in the earliest years of property conveyancing as a substitute for a signature resulting from the fact that many propertied persons were largely illiterate. As the ownership of property extended beyond the aristocracy to the masses, the cross was commonly used as a signature substitute for individuals who had no identifying heraldic device to use for a seal. This use of the cross ultimately degenerated into the, now familiar, X.
Prior to the development and appointment of official notaries public, it was the practice for someone to attest to the witnessing of the execution of an instrument. It eventually became a requirement for two persons to witness the execution of an instrument in order to attest to the identity of the signatory because it often proved difficult or impossible to locate a solitary witness in order to authenticate a questioned document. As in the case of many legal practices, this one became a substantive requirement for validity that lasted as a tradition long past its actual need.
If an instrument requires registration, NCGS 47-12 (originally codified in 1899) provides statutory authorization permitting proof of signature by the oath of one or more witnesses present at the time of execution. NCGS 47-43.2 contains the form of acknowledgement for such proof of signature. This form of proof and acknowledgement has traditionally been used in North Carolina in conjunction with the execution of a conveyance by mark.
Note that this is merely the form to be used when relying solely on a witness for proof of execution. Technically, it is more correct to use the general form of acknowledgment of the maker’s execution of the instrument.
We have long had at least one provision in the General statutes that addresses the issue of what constitutes a 'signature' in the commercial context. N.C. Gen. Stat. § 25-3-401(2) provides that a "signature may be made (i) manually or by means of a device or machine, and (ii) by the use of any name, including a trade or assumed name, or by a word, mark, or symbol executed or adopted by a person with present intention to authenticate a writing." This authorization has been expanded in recent years by other statutes authorizing electronic signatures.
The following summary of the law is quoted from Barrett v. City of Fayetteville, 248 N.C. 436, (1958).
"In 80 CJS., Signatures, section 6, page 1291, et seq., it is said: 'Generally, a signature may be made for a person by the hand of another, acting in the presence of such person, and at his direction, or request, or with his acquiescence, unless a statute provides otherwise. A signature so made becomes the signature of the person for whom it is made, and it has the same validity as though written by him.'"
"In this jurisdiction it is permissible for one to sign his name by himself 'or sign by the adoption of his name as written by another, or he may make his mark, even though he may not be able to write himself.' Lee v. Parker, 171 N.C. 144, 88 S.E. 217. But the signature, if written by another, must be made at the request or with the consent of the person whose signature it purports to be. Lee v. Parker, supra."
"Likewise, in S. v. Abernathy, 190 N.C. 768, 130 S.E. 619, Stacy, C. J., speaking for the Court, said: 'Not only may the signature be anywhere, unless otherwise provided by statute, but it is also permissible in the absence of an enactment controlling the matter, for the maker either to sign the instrument by affixing his own signature, or to adopt a signature written for him by another.' See also Devereux v. McMahon, 108 N.C. 134, 12 S.E. 902, 12 LRA 205."
A more recent case in the Court of Appeals addressing the efficacy of using a mark for a signature is; Brickhouse v. Brickhouse, 110 N.C. App. 560, (1993) Mechanical reproduction has been recognized as being effective as a signature for almost thirty years, State of North Carolina v. Watts, 289 N.C. 445, (1976).
Clearly, under well-established North Carolina law, anything intended to be a signature constitutes one. Most of the questions that come up in this context seem to focus on the validity of marks and scrawls. On further examination, the ultimate question is really one of authenticity. NCGS 47- 13.1 provides that the "person taking proof of an instrument pursuant to G.S. 47-12, 47-12.1 or 47-13 shall execute a certificate on or attached to the instrument being proved, certifying to the fact of proof substantially as provided in the certificate forms set out in G.S. 47-43.2, 47-43.3 and 47-43.4, and such certificate shall be prima facie evidence of the facts therein certified." With a proper acknowledgement, you have a prima facie authentication and a purchaser for value, without actual notice of a lack of authority, takes good title.
It is still a requirement for the execution of non-holographic Wills that two witnesses attest. One reason for this is to address questions of competency. In Richardson Memorial Hosp v. Townsend, 72 N.C. App. 499, (1985) the court ruled that competence was properly questioned by use of mark in lieu of signature for a literate person. For this reason, many practitioners consider the attestation by two witnesses to be prudent in the execution of conveyances as well. While prudent, this is certainly no longer a requirement for a valid conveyance. In fact an instrument may be proven solely by proof of the handwriting of the maker under NCGS 47-13.
We believe that the practical and prudent practice (when feasible) is to NOT have literate, but infirm, persons use a mark or X. Rather, they should sign as best they are able, or have someone assist and have the Notary take the acknowledgement accordingly. If they are competent, but physically unable to make any mark, they should request someone to sign for them and take the acknowledgement accordingly. If possible, it is generally considered prudent to have a witness, or witnesses attest and take the acknowledgement additionally as discussed above in order to provide evidence on the issue of competence should that come into question.