Strother v. Shain

Wilkins, J. The one count in the declaration in this action of tort alleges that “on or about March 17, 1941,” the defendant, a notary public, with intent to injure and defraud the plaintiff, falsely certified that the plaintiff had appeared before him and acknowledged a deed, a copy of which is annexed, to be her free act and deed, whereas, in fact, the plaintiff never appeared and acknowledged it; and that, in consequence, the deed, which had been altered after it had been signed by the plaintiff by the insertion of a description of land of the plaintiff in Franklin, was recorded in the Norfolk registry of deeds, and the land in Franklin, which the plaintiff never intended to convey and for which she received no consideration, was thereafter conveyed to an innocent purchaser for value, “All to the damage of the plaintiff.” The annexed deed, dated January 7, 1941, names one Davis as grantee, contains the description of a parcel of land in Franklin and the description of parcels of land in Bellingham and Medway, and purports to have been acknowledged before the defendant as notary public on March 27, 1941, and to have been recorded on March 31, 1941. Contrary to the contentions of the defendant, we think that it is alleged in substance that the alteration was made without the plaintiff’s consent and before the defendant certified that the plaintiff appeared before him. Lack of consent is shown by the allegation that the plaintiff never intended to convey the land in Franklin. That the alteration preceded the defendant’s certificate is found in the allegation that the defendant falsely certified that the [437] plaintiff appeared and acknowledged the deed a copy of which in the allegedly altered form is annexed. The acknowledgment was necessary to enable the deed to be recorded. G. L. (Ter. Ed.) c. 183, § 29. McOuatt v. McOuatt, 320 Mass. 410, 413, and cases cited. But neither acknowledgment nor recording could confer validity upon an invalid instrument. New England Bond & Mortgage Co. v. Brock, 270 Mass. 107, 111. The deed did not take effect as the deed of the plaintiff because, on the allegations, after signing and before the purported acknowledgment there was inserted the description of the land in Franklin. This would not bind the plaintiff even without fraud. Howe v. Peabody, 2 Gray, 556, 557. Kidder v. Greenman, 283 Mass. 601, 609, and cases cited. Williston, Contracts (Rev. ed.) § 1913. See 2 Am. Jur., Alteration, of Instruments, § 55; 26 C. J. S., Deeds, § 68. Compare Moelle v. Sherwood, 148 U. S. 21, 27; Havens v. Osborn, 9 Stew. (N. J.) 426. The making of a false certificate as notary public, as alleged, would be a violation of G. L. (Ter. Ed.) c. 267, § 1. Under the general averment of damages the plaintiff can recover such damages as are the direct result of the defendant’s wrongful act. McCarthy v. Boston Elevated Railway, 223 Mass. 568, 573. Antokol v. Barber, 248 Mass. 393, 395. Bilodeau v. Maffei, 309 Mass. 237, 238. See Sherlag v. Kelley, 200 Mass. 232, 236; Damiano v. National Grange Mutual Liability Co. 316 Mass. 626, 629. Upon the allegations, the plaintiff has sustained as damage the expense' of removing a cloud from the record title. Nickerson v. Loud, 115 Mass. 94, 97. Sawyer v. Cook, 188 Mass. 163, 170. Solis v. Williams, 205 Mass. 350, 352. Alexander v. Davis, 42 W. Va. 465. This would include any necessary steps to acquire possession of the land. G. L. (Ter. Ed.) c. 240, § 1. Mead v. Cutler, 208 Mass. 391, 392. Daley v. Daley, 300 Mass. 17, 21. It is unnecessary to consider other grounds of damage argued by the plaintiff. The order sustaining the demurrer is- reversed, and an order is to be entered overruling the demurrer. So ordered.