Hartkopf v. First State Bank

HILTON, Justice. Defendant bank appeals from a judgment against it for the return of and possession of certain personal property, or, in case such return cannot be had, then for judgment for $400, together with costs and disbursements. The case was tried to the court without a jury. The bank was located in thewillage of Correll, Big Stone county, and A. J. Bandura was its cashier and managing officer. The bank had three chattel mortgages upon the live stock and machinery of one Karl H. Hartkopf, a brother of plaintiff. The mortgages were executed and were purportedly acknowledged before Bandura as a notary public at Correll on the following dates and for the respec *596 tive amounts: December 30, 1929, $2,000; April 4, 1930, $150; July 14, 1930, $60. Each was filed in the office of the register of deeds in that county within a day or two of its execution. On November 18, 1930, at Appleton, Karl H. Hartkopf, to secure the payment of $1,160.50, executed and delivered to plaintiff a chattel mortgage on all of the property covered by the bank’s three mortgages. It was filed in the office of the register of deeds of Big-Stone county the following day. It is conceded that this mortgage was a valid one, having been executed for a valid consideration and acknowledged in proper form. The court found: “That at the time said mortgage was made and delivered plaintiff had no actual notice of the mortgages given to the First State Bank of Correll * *. That at all times the plaintiff believed and had reason to believe that he had a first chattel mortgage lien on all of said personal property * * At all the times referred to Karl H. Hartkopf resided in Big Stone county, and the mortgaged chattels were there in his possession. On or about April 10, 1931, the hank foreclosed its three mortgages and bid in the property described therein at the sheriff’s sale. The only question involved in this case is wdiether the bank’s mortgages were entitled to filing so as to constitute constructive notice thereof to plaintiff. The determination of that question depends upon whether or not there was a notarial seal affixed to the purported certificate of acknowledgment on either instrument. 2 Mason Minn. St. 1927, § 6939, provides: “Every notary shall provide himself with an official seal, with which he shall authenticate his official acts, and upon which shall be engraved the arms of this state/the words ‘Notarial Seal,’ and the name of the county in which he resides. * *” A notary’s certificate of acknowledgment without the seal is a nullity. DeGraw v. King, 28 Minn. 118, 9 N. W. 636; Grimes v. Fall, 81 Minn. 225, 83 N. W. 835; Hodge v. Anderson, 161 Minn. 147, 201 N. W. 603. The trial court was the trier of fact as to whether or not there was a notarial seal affixed to the certificates *597 of acknowledgment on the chattel mortgages, each of which had been received in evidence as exhibits. The court found as to each of them: “There is found a faint, illegible circular impression of some sort, indistinguishable and unascertainable, having no readable letters, words or figures whatsoever.” An examination of the exhibits establishes the correctness of that statement and also of the further finding, “that no notarial seal was attached to or affixed to the signature of said Bandura on said purported acknowledgment.” About all that can be said of the impression is that it is circular. It is to be noted that there were three purported acknowledgments, one on each of the three chattel mortgages. They were taken on different dates, several months apart in each case. The paper of these instruments is thin, light paper such as would readily receive and retain the impression of a seal. A notary might carelessly or inadvertently fail properly to impress his seal on one instrument, but that he should so fail on three different occasions, in the circumstances here shown, is so improbable as to be wholly unreasonable. The three impressions are so practically identical as reasonably to lead to the conclusion that they Avere made, not by a notarial seal, but by something else to simulate such a seal. There is no statutory description relative to the size of notarial seals. Many seals other than notarial are in constant use, and these vary in size; some are of the same size as the impression here, some are larger and others smaller. In the instant case there was no evidence offered to sIioav that the impression was even of any kind of seal. Bandura was not called as a Avitness. Appellant cites Cassidy v. Souster, 115 Minn. 191, 132 N. W. 292, in which the trial court found that there was a notarial seal on an affidavit of the printer of the publication of the notice of application for judgment. The court stated [115 Minn. 193]: “The original affidavit was produced for inspection, and appears in all things regular, and purports to have been sworn to before Herbert P. Porter, a notary public. To the left of the signature *598 of the notary, upon the same paper, appears a faint impression of the form of a seal, but so faint and indistinct that it cannot with positiveness be said to be the seal of a notary public. The trial judge, however, in reaching the conclusion stated, in effect found that it was the impression of a notarial seal, and we are satisfied with that finding. The document is twenty years old, and the lapse of time may to some extent have effaced the impression originally made.” In that case the trial court found that there was a notarial seal; in this case the finding was otherwise. In that case the document was an ancient one, and the suggestion is made that the lapse of time may have to some extent effaced the impression made; here the documents were fresh, clean, and apparently not changed by wear, tear, handling, or otherwise. This court cannot say that the fact found by the trial court was not a proper one. Affirmed.