GEORGE W. BROWN, Appellant, v. E. E. RIVES et al., Respondents.
Civ. No. 2929
Second Appellate District, Division Two
July 29, 1919
42 Cal. App. 482
The judgment is affirmed.
Conrey, P. J., and James J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 25, 1919.
All the Justices concurred.
[Civ. No. 2929. Second Appellate District, Division Two.—July 29, 1919.]
GEORGE W. BROWN, Appellant, v. E. E. RIVES et al., Respondents.
[1] NOTARY PUBLIC—FORGED DEED—USE OF ASSUMED NAME—ACKNOWLEDGMENT—LIABILITY FOR DAMAGES—A notary public and the sureties on his official bond are not liable for damages for taking the acknowledgment of a person under an assumed name, such person having theretofore forged both the signatures of the owners of the property to a deed to himself under such assumed name and the acknowledgment of the notary thereto, where such person signed and acknowledged the deed in question under such assumed name as the grantor, and he actually appeared before and was introduced to the notary public as such person by another with whom the notary public was well acquainted, since, under such circumstances, the certificate of acknowledgment spoke the truth. A notary public and his bondsmen are in no sense insurers of title.1
APPEAL from a judgment of the Superior Court of Los Angeles County. Pat. R. Parker, Judge Presiding. Affirmed.
The facts are stated in the opinion of the court.
Bicksler, Smith & Parke, Walter F. Dunn and John P. Dunn for Respondents.
THOMAS, J.—This is an action against a notary public and his sureties for damages alleged to have resulted from the negligence of the notary.
The facts in regard to this case, as we get them from the record here, are as follows:
On May 26, 1916, Martin L. Kelsey and Anna B. Kelsey, his wife, were, and for many years prior thereto had been, and now are, the owners of lots 15, 16, and 17, in block 9, of Van Ness Square, in Los Angeles City, and such ownership was then shown in the proper records of Los Angeles County. Prior to said May 26, 1914, one Leonard C. Canfield conceived a felonious scheme to obtain money by forging the names of Kelsey and his wife, and the notarial certificate of their acknowledgments to a deed purporting to convey said property to a fictitious person as grantee, and placing such forged deed of record; and then, assuming the name of such fictitious grantee, to sell said property to such person as he might be able to victimize. In furtherance of this scheme said Canfield forged the names of Kelsey and his wife to a deed purporting to grant said property to a fictitious grantee designated as Helmer E. Rabild, and attached thereto a forged certificate of acknowledgment of the execution of said deed before W. B. Julian, a notary public of Los Angeles County. This forged deed was recorded in the recorder‘s office of Los Angeles County on May 27, 1914.
On or about June 10, 1914, said Canfield called plaintiff on the telephone and stated to plaintiff that the person speaking was Helmer E. Rabild, and offered to sell and convey said three lots to plaintiff for $4,750, subject to taxes for the current year. In the same conversation he stated that he would furnish certificates of title issued by the Title Insurance and Trust Company, showing title to said property vested in plaintiff, free from all encumbrances, except taxes and certain building restrictions. Plaintiff accepted this proposition over the telephone, and in the same conversation stated that he would instruct the Title Insurance and
When satisfied that the deed recorded May 27, 1914, was a forgery, plaintiff commenced this action to recover from the notary, Rives, and his bondsman, $4,750; resting his claim for damages upon the contention that the certificate of the notary attached to the deed of June 12, 1914, was false in fact, and its falsity the proximate cause of plaintiff‘s loss. The court found the facts to be substantially as above stated, but concluded therefrom that the certificate complained of was not the proximate cause of the loss, and entered judgment dismissing the action with costs to defendants. Plaintiff appeals from the judgment on the judgment-roll alone.
[1] The findings in this case are very clear and specific. Among other things, the court found as follows: “The court further finds . . . that at all of the times herein mentioned there existed no such person as Helmer E. Rabild. That the name Helmer E. Rabild was used and designed by the said Leonard C. Canfield to identify some fictitious person who did not exist, but under whose assumed personality he, the said Leonard C. Canfield, would conduct his negotiations with reference to the sale and transfer of this property to the plaintiff; and that such secret intention on the part of the said Canfield was not known to the defendant Rives. That Helmer E. Rabild was at all times herein mentioned the name assumed by and used by the said Leonard C. Canfield, and by him alone, and that at the time of the execution of the deed to the plaintiff herein, and the acknowledgment thereof before the defendant notary, E. E. Rives, Helmer E. Rabild, in so far as there was any Helmer E. Rabild, did, in the person of said Leonard C. Canfield, appear before the said notary and acknowledge the execution of the instrument as in the notarial certificate stated, and that the certificate of the said notary did truthfully so set forth the fact that Helmer E. Rabild had executed the said instrument.” It therefore conclusively appears that the very
In this case Rives, the notary, had never seen Canfield before. Rives, however, was well acquainted with the assistant cashier of the bank at Monrovia, who introduced Canfield to him as Rabild. The assistant cashier knew him by that name, and none other. That was the name he gave when he opened his account at that bank. This is the man, regardless of the fact that his true name was Canfield, who executed the deed, and whose execution thereof passed all the title that stood in the name of Rabild, and acknowledged
Our attention is called to the case of Joost v. Craig, 131 Cal. 504, [82 Am. St. Rep. 374, 63 Pac. 840], as supporting appellant‘s position here. We do not think that case in point. In that case the certificate was, in fact, false. In this case it is true. In that case it was said: “If the deed is not genuine, but is false, the notary and his sureties ought to be held for all damages, unless they have taken the precautions expressly required by statute.” That, we think, is tantamount to saying that if the deed is genuine the notary, or his sureties, ought not to be held for any damages, even though they have not taken such precautions. In the case at bar, the deed was genuine. True, it was executed by Canfield under said assumed name—Rabild. Under this assumed name, however, as before stated, he opened his bank account at Monrovia. Under this assumed name he was known to the banker. To him he was Mr. Rabild of Monrovia—the very man mentioned in the body of the deed, and, as appellant urges in his brief, who “signed the name Helmer E. Rabild in the presence of defendant Rives and requested the notary to certify his acknowledgment thereof.” This deed was genuine, and the certificate of acknowledgment attached thereto was true. In such case there can be no liability on the part of the notary, under
There is no doubt but that the first deed—the alleged deed from Kelsey and wife to “Helmer E. Rabild“—was a forgery. Nor is there room for argument that the second deed—the deed from “Rabild” to Brown, plaintiff here—was genuine. The only trouble with this deed was that it conveyed nothing, the grantor having nothing to convey, for reasons that are obvious. To hold that the notary and his sureties were liable, as contended for by appellant, whenever for some reason there appeared some flaw in the title to the property sought to be conveyed by such deed, or because the grantor in such instrument had no title to convey, and under such circumstances as disclosed by the record here, would be so revolutionary an act on the part of this court that it would cause business to quake to its very foundation. Such certainly cannot be the law. The notary public and his bondsmen are in no sense insurers of the title. It is true that without the certificate of acknowledgment to the purported deed from Rabild to plaintiff, the deed could not legally have been recorded; and if not recorded, it follows that the certificate of title thereafter issued could not have shown the title of record in plaintiff. But the fact that the certificate of title did not so show was not because the notary‘s certificate of acknowledgment was false, as we have already seen. Under these circumstances, if the said certificate of acknowledgment was true, there was no liability. And it was true.
In view of these conclusions we think no other point urged needs consideration.
The judgment appealed from is affirmed.
Finlayson, P. J., and Sloane, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 25, 1919, and the following opinion then rendered thereon:
THE COURT.—The application for a hearing in this court after decision by the district court of appeal of the second appellate district, division two, is denied.
[1] We base our denial solely upon the fact that it clearly appears that any negligence on the part of the notary, Rives, was not a proximate cause of the injury to plaintiff.
We deem it proper to further point out that in the case of Anderson v. Aronsohn, 28 Cal. App. Dec. 216, which is referred to in the opinion, the decision of the district court of appeal was vacated by this court and the cause ordered to a hearing herein, where it is now pending.
All the Justices concurred.
REPORTER‘S NOTE: The decision of the district court of appeal in Anderson v. Aronsohn, referred to supra, was, on hearing in the supreme court, reversed. (See 181 Cal. 294, [184 Pac. 12].)