McAllister v. C. H. Clement

75 Cal. 182 | Cal. | 1888

Lead Opinion

Belcher, C. C.

—This action was brought to recover damages for the alleged official misconduct or neglect of a notary public. The material facts of the case are as follows:—

In 1883 the defendant, C. H. Clement, was a notary public for San Luis Obispo County, and "the other defendants were the sureties on his official bond. On the fourteenth day of April of that year, one W. A. Cook made to the plaintiff his promissory note for six hundred dollars, payable six months after date, with interest, and on the same day, to secure the payment of the note, executed to plaintiff a mortgage upon a crop of wheat, barley, and oats then growing in the county of San Luis Obispo. The mortgage was properly sworn to by mortgagor and mortgagee, and was" acknowledged by the mortgagor before the defendant Clement. The certificate of acknowledgment, which was attached to the mortgage, reads as follows:—

“State of California, county of San Luis Obispo, ss¡

“On this fourteenth day of April, 188—,before me personally appeared W. A. Cook, known to me to be the person whose name is subscribed to the within instrument, and he acknowledged to me that he executed the same. In witness whereof I have hereunto set my hand and affixed my official seal at my office in the county of San Luis Obispo, on the day and year in this certificate "first above written.

[Seal] “C. H. Clement, Notary Public.”

In this condition the mortgage was recorded on the nineteenth day of May, 1883. Before the note became due Cook was adjudged to be an insolvent debtor, and his assignee in insolvency took possession of all his property, including the mortgaged crop. The plaintiff made no effort to foreclose his mortgage or to subject the mortgaged property to the payment of his debt. The note has never been paid, and Cook is insolvent and unable to pay it.

It is alleged in the complaint that the failure to state correctly in the certificate the year when the acknowledgment was taken, and to insert in the body of the certificate “ the name and quality of the officer ” who made it, destroyed the lien of the mortgage as against the assignee, and left the mortgaged crop free and clear of all claim thereto by the plaintiff. It is further alleged that but for these defects in the certificate the mortgage “would have been a good and valid lien upon a valuable growing crop, and would have amply secured the said promissory note.”

The court below found the facts to be substantially as above stated, but further found “that said mortgage would not have secured said note; that said crop was not valuable, and was and is wholly valueless ”; and as a conclusion of law, “that plaintiff has not suffered any damage or loss by reason of the act or acts of defendants, or any of them.”

Judgment was entered in favor of the defendants, and from that judgment the plaintiff appealed, the case coming here on the judgment roll.

We do not think it necessary to consider the question principally discussed by counsel, namely, as to the sufficiency of the certificate of acknowledgment. The code declares that “for the official misconduct or neglect of a notary public, he and the sureties on his official bond are liable to the parties injured thereby for all the damages sustained.” (Pol. Code, sec. 801.) But it is clear that no action will lie to recover damages if no damages have been sustained. The findings are responsive to the issues, and must be presumed to have been justified by the evidence.

It is urged, however, that the plaintiff was at least entitled to recover nominal damages. But why should he have nominal damages if he suffered no actual damage ? The code does not seem to justify this contention, and at any rate, we think it is a case where in this court the maxim, Be minimis non cwrat lex, should be applied.

The judgment should be affirmed.

Foote, C., and Hayne, C., concurred.

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Concurrence Opinion

The Court.

—For the reasons given in the foregoing

opinion, the judgment is affirmed.