184 P. 12 | Cal. | 1919
This is an appeal from a judgment in favor of the defendants in an action against a notary public and his sureties on his official bond to recover for damages alleged to have resulted from the negligence of the notary.
It appears from the findings that a few days prior to April 19, 1916, one Ambrose, a real estate agent and loan broker, through whom plaintiff had previously loaned money, called upon the plaintiff to secure a loan of nine hundred dollars upon certain real estate in the city and county of San Francisco owned by Louetta A. Pilliken, for whom Ambrose purported to act. The plaintiff having decided to make the loan, a note and deed of trust were given to Ambrose for execution by Mrs. Pilliken and her husband. Ambrose returned the document signed and acknowledged in proper form before the defendant Aronsohn, a notary public, and, upon presentation of an order purporting to he signed by the Pillikens, Ambrose received the amount of the loan in currency. At no time during the transaction did plaintiff deal with anyone save Ambrose. In May of the same year, through a similar transaction, plaintiff advanced to Ambrose the sum of seven hundred dollars upon property owned by one Mary French. Plaintiff subsequently discovered that the owners of the properties in question, the Pillikens and Mary French, had never signed the notes or deeds of trust or received the money, and that confederates of Ambrose had impersonated these parties before the defendant notary. The certificates of acknowledgment of both deeds of trust were each to the effect that the subscribing parties were "known" to the notary to be the persons whose names are subscribed to the instruments. The question presented upon this appeal is whether or not Aronsohn was legally justified in stating in the certificate of acknowledgment that the persons who appeared before him to acknowledge the instruments were known to him.
It appears that on September 8, 1915, the persons who represented themselves to be the Pillikens were introduced to *296 Aronsohn by Ambrose on the occasion of their assignment of an interest in a mining claim. Aronsohn acknowledged the instrument and certified to the identity of the parties under the oath of Ambrose, who was personally known to him. He made a record of this transaction in his books. We shall here quote the evidence concerning the further acquaintance of Aronsohn with these parties.
"Q. Now, did you after this transaction have occasion to meet these two Pillikens again? A. Yes. Q. Frequently or otherwise? A. Yes, five or six times. Q. And where? A. Met them the following day at the Fair, 1915, Native Sons of the Golden West Day, Admission Day, also at cafeteria, on streets, also was at my office. Q. When were they at your office? A. Shortly before April 19, 1916. Q. For what purpose? A. Mr. P. called at my office and asked me where he can get a loan on a note, and I suggested him to wait until Morris Plan Bank open business, as they were advertising loans at six per cent, etc."
It also appears that on March 2, 1915, the person who represented herself to be Mary French was introduced to Aronsohn by his former teacher, Henry Frank. He took an acknowledgment of the signature of this woman, Frank acting as identifying witness. Aronsohn also made a record of this transaction in his books. The following is the evidence of his further acquaintance with this Mary French: "Q. When did you again see Mrs. Mary French, if at all, previous to May 6, 1916? A. December 2, 1915. Q. What was the occasion of your meeting Mary French on December 2, 1915? A. She was at my office with Mr. Ambrose, who requested me to acknowledge a document. The Court: Did Mr. Ambrose request you to acknowledge a document, or Mrs. French request you to acknowledge a document? A. Mrs. French."
Basing its conclusion upon these facts, the trial court has decided that Aronsohn was legally justified in stating in the certificates of acknowledgment that the persons who appeared before him to acknowledge the instruments in question were known to him. [1] With this conclusion we are unable to agree.
[2] The statutes prescribing the duty of a notary in ascertaining the identity of an acknowledger are not uniform. In some states the notary must either "know" or have "satisfactory evidence" that the person making the acknowledgment is the individual described in the instrument. Under *297
such a statute some courts have held that it is sufficient if the officer's conscience is satisfied. (Wood v. Back, 54 Barb. (N.Y.) 134, overruling Jones v. Bach, 48 Barb. (N.Y.) 568.) Other courts have held the notary to the care and diligence of a reasonably prudent man. (Barnard v. Schuler,
[3] The question presented for our decision relates to the degree of acquaintance which will authorize the notary to certify that he has personal knowledge. The acquaintance of Aronsohn with the confederates of Ambrose subsequent to the time of their introduction to him was not such as to furnish any rational basis for personal knowledge of their identity. Such knowledge, in our opinion, involves such an acquaintance, derived from association with the individuals in relation to other people, as establishes their identity with at least reasonable certainty. Such an acquaintance cannot in its very nature depend upon the mere word of one or two or three individuals, but must be based upon a chain of circumstances surrounding the persons in question, all of which tend to show that they are what they purport to be. That there is nothing to arouse suspicion is not enough. Something affirmative in the nature of evidence of identity must appear during the course of the acquaintanceship which would not normally appear if the persons were other than they purport to be before it can be said that their identity has become a matter of personal knowledge. That is to say, personal knowledge involves something more than the casual meetings which followed Aronsohn's original introduction to the confederates of Ambrose.
[4] The question then remains whether or not Aronsohn can be said to have acquired such personal knowledge of the parties upon their introduction under oath as to justify the making of the certificate. Such an introduction is not enough. (Hatton v. Holmes,
Respondents place great reliance on the statement inJoost v. Craig, supra, that "a notary may take all due precautions and fully comply with the statute and still be deceived. In such case he would not be held liable, but if he has not fully complied with the statute, the rule announced above [in State v. Meyer, 2 Mo. App. 413, 420] is not a whit too stringent." In view of the context in which this statement is found and in view of the context in the Meyer case from which it was paraphrased, it affords the respondents slight comfort. The meaning of the court is clear. [5] It is that if the notary takes all due precautions and fully complies with the statute by requiring the oath of a credible witness, he may still be deceived, and, in that event, he will not be held liable, but that if he has not complied with the statute by requiring such an oath but has, on the contrary, certified that he has personal knowledge of the identity of a person whom he knows merely through the introduction of another, it is not a whit too stringent to hold that he does so at his own risk. *300
The respondent contends that Ambrose was the agent of Anderson for the purpose of transacting the loans. Were this in fact the case, the negligence of Aronsohn could not, of course, be considered the proximate cause of the loss sustained by Anderson. (Overacre v. Blake,
The judgment is reversed and the cause remanded for trial anew.
Wilbur, J., Shaw, J., Lawlor, J., Melvin, J., and Angellotti, C. J., concurred.
Mr. Justice Olney, deeming himself disqualified, did not participate in the foregoing decision.
Rehearing denied.
All the Justices concurred.