78 Ark. 162 | Ark. | 1906
The cause was tried by the court sitting as a jury, and was heard upon “the complaint, the answer of the defendants, and their demurrers reserved therein to the said complaint, together with an agreed statement of the facts.” The court found the facts as set forth in the agreed statement, and declared the law generally both upon the demurrer and the facts t© be for the defendants.
In Smith v. Maginnis, 75 Ark. 472, in considering whether '“the fact that the notary public falsely certified that the parties had made affidavits to their ownership was the proximate cause of the injury,” we said: “Though the plaintiff may have relied upon the affidavit and the certificate of the notary public in making his purchase, still such certificate was not in law the proximate cause of his injury. The proximate cause of his injury was the act of the party who sold him homestead rights which he did not own; not the negligence of the notary in certifying that such party had sworn that he was the owner of the right. Oakland Savings Bank v. Murfey, 68 Cal. 459; Wyllis v. Haun, 47 Iowa, 614; Doran v. Butler, 74 Mich. 643; Hatton v. Holmes, 97 Cal. 208; Henderson v. Smith, 26 W. Va. 829; 53 Am. Rep. 139.” That case rules this. There is no such difference in the facts as will warrant the application of a different principle.
The whole case below was tried upon the theory that the notary and his bondsmen were liable to appellant because the notary falsely certified that one Mayberry personally appeared be-, fore him (the notary) to him known to be the person who executed the assignment and affidavit, and that certain other parties had made affidavit before him which were in corroboration of the affidavit of Mayberry. In other words, that appellees were liable because the notary had certified falsely as to the identity of the parties named in his certificates. It was alleged in the complaint that the affidavits were in proof of and to establish the right of the said Mayberry to a soldier’s additional homestead right, and also that “said assignment and affidavits, if true, would have established the right of the said Mayberry to a soldier’s additional homestead right under the laws of the United States.” It is set forth in the agreed- statement that said assignment and affidavits purporting to have been executed before said Bruton, if true, would have established the right of said plaintiff as assignee to the soldier’s additional right of the said Mayberry. And that said Coffin used all proper efforts to secure the rights purported to have been sold and transferred by said assignment and papers, but failed in his efforts by reason of the facts that said Mayberry, Jr., never signed and executed said assignment and affidavits as certified by said notary public. But all this falls short of alleging and proving that Mayberry had in fact a right of additional homestead entry. The utmost that these allegations <j,nd the agreed facts show is that Mayberry and his assignee could, if the facts so falsely certified to had been true, have established “a soldier’s additional homestead claim.” The very statement shows that the right had not in fact been established, but could be only upon condition that the affidavits were true. Well, unless Mayberry had additional homestead rights to transfer, it is certain that a false certificate of acknowledgment that he had executed an assignment of such right to another, and a false certificate that certain affidavits were made that would establish his right, if true, would not be the proximate cause of injury and the basis of liability. So the complaint is defective in not alleging that Mayberry had a right of additional entry which he could assign, and the demurrer should have been sustained.
Again, as to the facts, the trial court may have concluded that the agreed statement failed to show that Mayberry had a right of additional homestead entry. Giving to appellees the benefit of every deduction, the trial court may have drawn from the evidence in their favor, who can say that it was not warranted in such a conclusion? There is no affirmative statement that Mayberry had a right to additional homestead entry, and taking the whole agreed statement together, the intention and effect of it was to show that appellant purchased for a valuable consideration from one Hamm the claim of Mayberry to have a soldier’s right of additional homestead established, which had been assigned in blank, and appellant purchased this claim of Hamm upon the certificate of the notary that Mayberry had appeared before him and acknowledged the execution of the assignment of the claim, and made affidavit in proof of his right to have his claim approved or established, which affidavit, if true, would establish his right; and that certain other parties had made affidavits also in proof of Mayberry’s right to have his homestead claim established, which, if true, would establish such right ; and that such certificate of the notary that the persons appeared and made the acknowledgment and affidavits was in fact false, but that appellant believed it to be true, and acted upon the faith of it. This comes short of showing that Mayberry had a right of additional homestead already established, but only showed that he had assigned such right if it should be established or approved.
The question of whether or not the right of additional homestead could be established depended upon the truth of the facts set up in the affidavits. There is no statement in the complaint or the agreed statement that the facts set forth in the affidavits were in fact true. So the complaint and the proof failed to show a cause of action. We conclude that'what we said in Smith v. Maginnis, supra, is applicable to the pleadings and facts of this record, and the judgment is therefore affirmed.