State v. Grundon

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 conse [272] quences 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 the273 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. [274] 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.