Fogarty v. Finlay

Terry, C. J., delivered the opinion of the Court Field, J., concurring. Plaintiff loaned to one Dupuy a sum of money, taking as security a mortgage on a lot in San Francisco. The mortgage was acknowledged by Dupuy, before defendant Finlay, who was a notary public for San Francisco county. The mortgage used was an ordinary printed form, having a certificate of acknowledgment in blank, in which was inserted, in the hand-writing of one Sanders, who acted in the transaction as attorney for both mortgagor and mortgagee, the name of the mortgagor and the date of the acknowledgment. To this certificate the notary affixed his signature and seal, omitting to state either that the party acknowledging was known to him, or was identified by the testimony of a witness examined for that purpose. In consequence of this omission, the record of mortgage was held not to impart notice to subsequent incumbrancers. (See Wolf v. Fogarty, 6 Cal., 224.) Plaintiff’s lien was postponed in favor of a later mortgage, which exhausted the entire property, and Dupuy being insolvent, the debt was lost. Plaintiff now seeks to recover, on the bond of the notary, the damage occasioned by the negligent and unskillful performance of an official act. The condition of the bond executed by the defendants is, that Joseph W. Finlay should “ well and truly perform and discharge [245] the duties of a notary public, according to law.” This embraces every act which he is authorized or required by law to do in virtue of his office. By the “ Act concerning Rotaries Public,” each notary has power to take and certify the acknowledgment or proof of conveyances, and his certificate is made prima facie evidence of the facts therein set forth. “ For any misconduct or neglect of duty, in any of the cases in which any notary public, appointed under the authority of this State, is authorized to act,” etc., “ he shall be liable on his official bond to the parties injured thereby for all damages sustained.” (Compiled Laws, 903.) It is clear, that in this case defendant Finlay did not faithfully perform his duty, but was guilty of gross and culpable negligence, and he is responsible to the party injured for the damages resulting from this negligence. The purpose of a certificate of acknowledgment is to entitle the deed to be recorded, and to be admitted in evidence without further proof. (Act concerning Conveyances, §§ 18 and 29.) The certificate furnished was utterly worthless, for either purpose. This neglect is not excused by the fact that the certificate had been partially filled by the attorney for the grantee. The certificate, upon its face, is unfinished; the date and the name of the grantor had been inserted, leaving it for the notary to insert his knowledge or the evidence received of the identity of the party making the acknowledgment. If the notary read the certificate before signing it, this omission must have been known to him; if he did not, he is equally guilty of negligence, for an officer who affixes his official signature and seal to a document (thereby giving to it the character of evidence,) without examining it to find whether the facts certified are true, can scarcely be said to faithfully perform his duty according to law. It is said that the plaintiff, having received the conveyance from the notary, and retained the same some time in his possession, is charged with knowledge of the defect in the certificate, and, as the damage was the result of his own negligence in failing to correct the error of the notary when in his power, he is only entitled to recover the cost of the certificate. This position we think erroneous. Finlay held himself out to the world as a person competent to perform the business connected with the office. By accepting the office, he contracted with those who might employ him that he would perform it with integrity, diligence, and skill. (3 Blackstone Com., 165.) He had given a bond to indemnify those who should suffer by the unfaithful or unskillful performance of his duty. It is not shown that plaintiff was aware of the omission in the [246] certificate; but admitting he knew it, he was not obliged to determine upon the validity or legality of the act of the officer. The statute gave him a remedy upon the bond of the officer for the damages sustained by the mal-performance of his duty, and he had the right to rely on this remedy. Our conclusion, from the record, is, that the plaintiff is entitled fto recover of defendants the damage caused by the act of the notary, and that the measure of damages is the amount of the debt and interest intended to be secured by the mortgage. _ Judgment reversed and cause remanded, with directions that the Court below render a judgment in accordance with this opinion. .