
    STATE OF MISSOURI ex rel., Respondent, v. OLIVER H. P. GRUNDON et al., Appellants.
    St. Louis Court of Appeals,
    November 19, 1901.
    1. Notary Public: DUTIES OE IN TAKING ACKNOWLEDGMENT OE DEED: GOOD FAITH: NEGLIGENCE: LIABILITY OE NOTARY PUBLIC IN TAKING FALSE ACKNOWLEDGMENT: STATUTORY CONSTRUCTION. Mere good faith will not excuse a notary public, for taking an acknowledgment of a deed conveying real estate, from the consequences of his negligence in failing to do what the statutes require him to do; that is, if the grantor is not personally known to him to be the person who subscribed to the instrument he must call in at least two witnesses, whom he does know, to prove the identity of the subscriber of the deed, and the names of these witnesses and their places of residence he must insert in his certificate (sec. 13, R. S. 1899).
    2. -: -: -. And if the notary does not know the subscriber of the instrument and relies on a mere introduction by a friend or an acquaintance of the person who subscribed the instrument, he assumes the risk of any mistake in his identity.
    3. -: -: -: BREACH OE NOTARY’S BOND. And if it turns out that the certificate is false, and that the person who acknowledged the deed is not the person he represented himself to be, and did not own the land described in the deed, the notary will be guilty of a breach of his official bond.
    Appeal from St. Louis City Circuit Court. — Hon. Selden P. Spencer, Judge.
    Affirmed.
    
      STATEMENT OE THE CASE.
    One Jobe, in January or February, 1901, did some carpenter work on tbe home of Denis O’Leary, situated on-South Broadway in tbe city of St. Louis, and in tbis way became acquainted with the fact that tbe property belonged toO’Leary. After this be appeared at tbe Union Trust building, introduced himself to tbe officers of tbe Union Trust Company, as Denis O’Leary and applied for a' loan of five hundred dollars on O’Leary’s South Broadway property. The-trust company -declined to make tbe loan, but a Mr. Anderson, a clerk of tbe company, introduced Jobe as O’Leary, to Mr. Secor, who in turn carried tbe application to tbe office of Noonan & Co., real estate agents, and they to the firm of Mc-Cullum & Tate,' also real estate' agents. Tbe latter firm communicated with plaintiff in respect to the loan by tbe following letter:
    “St. Louis, February 13, 1901.
    “¥m. A. Westman.
    “Dear Sir: I have a client who wants to borrow $500 at six per cent on 6704 S. Broadway, 50x125, brick building. Telephone me to-morrow sure what you think of it.
    ‘^Respectfully,
    “McCullum.”
    After examining tbe property, plaintiff, on tbe same-day be received McCullum’s letter, called on him and agreed to take tbe loan and asked McCullum.to have tbe abstract of' title to tbe property run down. Tbis was done by tbe Union Trust Company, showing clear title in O’Leary. After seeing tbe abstract, plaintiff agreed to call in the morning of tbe following day and close tbe transaction, and appointed tbe office of McCullum & Tate as tbe place of meeting.
    
      The Haydel Real Estate Company occupied a part of the office occupied by McCullum. The defendant, G-rundon, was a notary public and cashier of the Haydel Real Estate Company and occupied a desk in their office near a window, fenced off by a railing. Plaintiff called at the office .of Mc-Cullum & Tate at the hour agreed on and was introduced to a man sitting there as Denis O’Leary, but who afterwards turned out to be Jobe. Plaintiff had prepared the notes and deed of trust for the loan before going to the office of Mc-Cullum & Tate, and after his introduction to the personator of O’Leary, handed them to McCullum, after which O’Leary signed them in the presence of plaintiff, and remarked (at the time), that he had some fire and tornado insurance that he would send down. The parties then went to the Union Trust Company to get the title run down to date, returned to the office of the Haydel Real Estate Company and the three, plaintiff, McCullum and O’Leary, stepped up to the railing in front of Grundon, and O’Leary was introduced to him as Denis O’Leary by McCullum, who stated that he (O’Leary) wanted to acknowledge a deed of trust. Grundon then took the-deed, asked the usual questions of O’Leary as to whether it was his free act and deed and if he was single and unmarried, and then affixed his seal and signature to the certificate of acknowledgment. Grundon was not acquainted with O’Leary and asked no questions of McCullum as to the extent of his acquaintance with him, and asked no questions whatever of plaintiff. After the acknowledgment was taken the parties visited the recorder’s office, and after finding the title still clear, plaintiff handed McCullum a cashier’s check for the amount of the loan less charges for abstract, and deposited the trust deed for record in the recorder’s office. The note was made payable to a clerk in plaintiff’s office, who was also named as beneficiary in the deed of trust, but the money for the loan was furnished by the plaintiff and the loan was for his benefit. A few days after tbe close of tbe transaction, plaintiff sold tbe note to a third party, but after learning tbat Jobe was not O’Leary, be took back tbe note and refunded tbe money for wbicb be bad sold it.
    Not receiving tbe insurance policy promised by the fictitious O’Leary, plaintiff, on inquiring for tbe promised insurance learned that tbe pretended O’Leary was an impostor, bad bim arrested, and be was indicted, convicted and sent to tbe penitentiary for forging tbe note- and trust deed. Tbe check wbicb plaintiff gave for tbe loan was a cashier’s check issued by tbe Southern Commercial Savings Bank, payable to tbe order of "W. A. Westman & Co., and was by plaintiff transferred to MeOullom & Tate, and was for four hundred and ninety dollars. ' None of tbe money was found in the possession of Jobe when be was arrested nor has plaintiff been able to recover any of it from bim.
    The suit is on Grundon’s bond as notary public for making a false certificate to tbe deed of trust and to recover tbe resulting damages. The answer was a general denial. Judgment was given for tbe plaintiff for tbe amount of tbe loan less commission, etc. Tbe defendants duly appealed.
    
      W. E. Fisse for appellant.
    TJpon several occasions, this court has been called upon to decide tbe question of tbe liability of a notary public for tbe injurious consequences of a false certificate of acknowledgment executed by bim; but in none of these cases has there been any doubt tbat tbe misconduct of tbe notary was tbe proximate cause of tbe injury. Indeed, this series of cases is extraordinary in this respect: that tbe evidence as to tbe culpability of tbe officer was so direct and strong tbat it would have been sufficient to sustain an action against him for deceit. In tbe case at bar, an altogether different state of facts is presented and tbe question is fairly raised, Was the action of the notary the proximate cause of the injury of which the plaintiff complains ? In this jurisdiction, therefore, ■ this case is “res integra.” But though the form of the dispute is new, the rules of law available to determine the controversy are well established. The essential conditions upon which the responsibility of a notary for error in a certificate of acknowledgment must rest, are the same as in ordinary cases of deceit and misrepresentation. These essentials are that an intention to have the other party rely on the statements made, an actual reliance on these statements by the deceived party, and, most important of all, a rightful reliance on the misstatement by such deceived party. It can not be claimed that there was such reliance upon the false statement, if it appears that the complaining party had full opportunity to ascertain the truth, and neglected to avail himself of the opportunity, or where it appears that, after all, he acted upon his own conclusions as to the true facts in the situation presented to him.
    
      Hornsby & Harris for respondent.
    (1) The instruction given of its own motion by the court is a correct declaration of the law as applicable to the facts in evidence, and corresponds with the law on the subject, as heretofore declared by this court. State ex rel v. Meyer, 2 Mo. App. 413; State ex rel. v. Balmer, 77 Mo. App. 463; State ex reí v. Plass, 58 Mo. App. 148. The instruction, after declaring that the notary who certifies to facts which he does not know of Ms own knowledge, does so at Ms own risk, requires the jury to believe from the evidence in order to find for plaintiff, that Westman in making the loan relied on Grundon’s certificate. Consequently, plaintiff could not, as appellant suggests, recover under this instruction, if he relied on McOullum’s introduction of O’Leary in making the loan instead of on the notary’s certificate. All that the law requires to fix the notary’s liability in 'such case is that he make a wrong certificate, and that some third party relying on this certificate suffers a loss. And this the circuit court told the jury in the present instance. Whether or not Westman relied on the notary’s certificate in making the loan was a question of fact upon which the jury, naturally, upon the evidence in the case, found for the plaintiff. (2) Appellant’s second instruction was properly refused by the court. The testimony did not warrant it, and furthermore, even if it were otherwise correct, it was erroneous in not permitting the recovery, by plaintiff, of even nominal damages. State ex rel. v. Plass, supra; State ex rel. v. Thompson, 81 Mo. App. 557.
    
   BLAND, P. J.

I. Plaintiff, McCullum and Grundon were all well acquainted with each other and there is no pretense that either McCullum or Grundon acted in bad faith or were influenced in the transaction by other than correct and honest motives. Jobe had been introduced to McCullum as O’Leary. Acting for him to procure the loan, McCullum, in good faith and with no thought that Jobe was not the man he represented himself to be, introduced him to plaintiff and to the notary as O’Leary. The notary evidently relying on the introduction as a sufficient identification of the person whose acknowledgment he was about to take, without inquiry as to the identity of Jobe, took the acknowledgment and certified the person named in the deed of trust and who had subscribed the same, to be Denis O’Leary, in perfect good faith; so that if honesty of purpose and good faith is a good defense for Grundon’s negligence, then he and his bondsmen should be allowed to go hence with their costs. But mere good faith will not excuse an officer for taking an acknowledgment of a deed conveying real estate, from the consequences of his negligence in failing to do what the statutes require him to do, that is, if the grantor is not personally known to him to be the person who subscribed to the instrument, he must call in at least two witnesses whom he does know, to prove the identity of the subscriber of the deed, and the names of these witnesses and their places of residence he must insert in his certificate. Section 913, R. S. 1899. If he does not know the subscriber of the instrument, and relies on a mere introduction by a friend or an acquaintance of the person who subscribes to the instrument, he assumes the risk of any mistake in his identity. State ex rel. McKown v. Williams, 77 Mo. 463; and if it turns out that the certificate is false and that the person who acknowledged the deed is not the person he represented himself to be and did not own the land described in the deed, the notary will be guilty of a breach of his official bond. State to use v. Plass, 58 Mo. App. 148. It has been repeatedly held in this State that nothing short of a full and complete compliance with the statutes will exonerate a notary if his certificate of acknowledgment turns out to be false. State to use v. Meyer, 2 Mo. App. 413; State ex rel. McKown v. Williams, supra; State ex rel. v. Ryland, decided by Division Two of the Supreme Court at the April term, 1901 (not yet reported). But it is insisted by appellants that the conduct of the respondents, at the time the acknowledgment was taken, exempts them from-liability, and they cite Overacre v. Blake, 82 Cal. 77, in support of this contention. The facts in the Overacre case were that plaintiffs agent introduced the impostor to the notary. The court in reference to this fact said:

“The party executing the mortgage having been introduced to the notary by the plaintiff, through her agent, duly acting for her in that behalf, she being the party to whom the mortgage was given and most likely of all persons to know with whom she was dealing,. and the notary then seeing the-person so introduced execute the mortgage by signing it with the name so given him by the agent of plaintiff, and said agent witness the signature, it can not lie in the mouth of the plain.tiff to say that the notary was guilty of negligence in certifying that such, person was known to him to be the person who executed the same. Not only the doctrine of contributory negligence, but the doctrine of estoppel also applies to close the mouth of the plaintiff from asserting any claim against the sureties of the notary in such á case.”

No such state of facts are shown by the evidence in this ease. Respondent did not introduce Jobe to the notary, did not speak to the notary at all and it was Jobe’s agent, Mc-Cullum, and not plaintiff, that did the honors of the introduction on the occasion. The respondent merely stood by and saw the notary take the acknowledgment, said nothing and did nothing to induce the notary to neglect the performance of his legal duty, and there is nothing in his conduct that can be said to have contributed to the negligence of the notary and certainly nothing by which he can be estopped, if an estoppel had been pleaded by the appellants.

II. The contention that respondent showed no right of action in himself is but a quibble. He furnished the money for the loan, it was made for his benefit and he was the real party in interest. The fact that he sold the note and after hearing that Jobe was an impostor refunded the money and took the note back, reinvested him with both the interest and possession of the note, and he thereby became -the absolute owner of both the note and deed of trust.

III. In respect to the contention of appellant that the check for the loan was indorsed and delivered to McGullum and not to Jobe, it is sufficient to say that McGullum was the-agent of Jobe to procure the loan and that payment to MeCullum was payment to Jobe.

The views herein expressed make it unnecessary to notice the instructions given or refused since, on the uncontrowerted facts, the judgment is for the right party and should be affirmed.

It is so ordered.

All concur.  