Samuels v. Brand

119 Ky. 13 | Ky. Ct. App. | 1904

Orixion of the court by

JUDGE NUNN

Affirming.

This action was instituted in the Hickman circuit court by the appellee against E. B. Samuels and his sureties on his official bond as county court clerk for damages occasioned' by the appellant giving an erroneous, certificate of the acknowledgment of Lula M. Carrico to a deed purporting to have been executed by her and her husband, R. F. Carrico, to appellee. The material facts in this case, which are admitted, and which are necessary to be considered for a correct determination of the question in issue, are briefly these: Lula M. Carrico was the owner of a small house and lot in the city of Mayfield, Ky., worth about $300, and1 on or about the loth of February, 1903, the appellee entered into an oral agreement with Lula M. Carrico’s husband, R. F. Carrico, for the purchase of this lot at an agreed price of $300 in cash; and on the 17th of March', 1903, R. F. Carrico presented to appellee, in the city of Mayfield, Ky., a general warranty deed1 to this lot from himself and his Avife, Lula M. Carrico, in which the receipt of the purchase, money ivas acknoAvledged and the deed purported to have been signed and acknowledged by Lula M. Carrico and her husband. The deedi Avas delivered to the appellee, and he paid1 R. F. Carrico $300 in cash therefor. Subsequently Lula M. Carrico instituted suit in the Graves circuit court against the appellee to recover the property, and she assailed this deed1 as a forgery, and denied ever having signed or acknowledged the same: In this suit she was successful, and recovered the lot. The deed was in fact acknowledged by E. F. Carrico before W. W. Craig, deputy of the* appellant, and on the back 'of the deed was also this endorsement: “Acknowledged before me in my county by Lula M. Carrico to be her act and deed this the 10th day of March, 1903. E. B. Samuels, Clerk Hickman County Court, by W. W. Craig, D. C.” But as a matter of fact this endorsement was a forgery, and it had not been made by W. ††7. Craig or E. B. Samuels. However, on the 12th day of March, 1903, and before the deed had ever been presented to the appellee, the appellant Samuels, in Hickman county, in his own handwriting, indorsed on the deed the following certificate: “State of Kentucky, County of Hickman- — set.: I, E. B. Samuels, clerk of the Hickman county court, in the State of Kentucky, do certify that this deed from Lula M. Carrico and E. F. Carrico to A. L. Brand was on the 9th day of March, 1903,, acknowledged before W. W. Craig, my authorized deputy in my county, by E. F. Carrico, and on the 10th day of March, 1903, by Lula M. Carrico, his wife, to be their act and deed, as appears- from an endorsement thereon in these words: ‘Acknowledged before me in my county by E. F. Carrico to be his act and deed this the 9th day of March, 1903. E. B. Samuels, C. H. C. C., by W. W. Craig, D. C.’ ‘Acknowledged before me in my county by Lula M. Carrico to be her act and deed this the 10th day of March, 1903. E. B. Samuels, C. II. C. C., by W. W.' Craig, I). C.’ All of which is hereby certified to the clerk of the Graves county court for record. Given under my hand this 12th day of March, 1903. E. B. Samuels, Clerk.” This certificate was on the deed when it was presented to the appellee for acceptance and when he paid the money to R. F. Carrico. It is admitted by the appellant that his certificate was incorrect, but he says that he was deceived by the clever forgery of his deputy Craig’s certificate with reference to the acknowledgment by Lula M. Carrico; that this endorsement was very similar to the true endorsement made by his deputy as to R. F. Carrico’s acknowledgment; that in this he faithfully performed his duty; that he exercised due care with reference thereto, but was imposed upon and deceived, and therefore he ought not to be held liable therefor. He also says that appellee did not use any care to protect himself, for the reason that he knew that Carrico and his wife were then separated and that Carrico did not have any special directions or order from his wife to Brand authorizing him to pay this money to Carrico.

We are of the opinion that the possession of this deed by R. F. Carrico with the acknowledgment of the payment of the purchase price recited therein was a sufficient authority to Brand to pay this money. While appellant alleged that appellee knew of the separation of Carrico and wife at the time he paid the purchase money, yet he (appellant) did not allege that he did not know of this separation at the time he made the certificate; and, even if he had made this allegation, it would not avail him, for the reason that the possession by R. F. Carrico of this deed, properly signed and acknowledged, was sufficient to take appellee off his guard, and he could properly have supposed that everything was all right. We are of the opinion that the appellee had the right to rely upon the certificate of appellant. How may the public know that a deed has been acknowledged unless the truthfulness of the clerk’s certificate can be.relied upon? Shall a purchaser' of real estate be compelled to go and ascertain for himself whether or not the grantors in a deed have in fact signed it? When a county court clerk’s certificate, written by himself in his own handwriting, and signed by him, is endorsed on the deed, can not the purchaser of real estate rely with absolute confidence on such certificate, and buy without fear of losing his property? We think so. Of course, if the certificate of appellant had been a forgery, he would not have been liable; but in this case his certificate is genuine, and, not only that, he certifies that the certificate of W. W. Craig is genuine. The genuineness of Craig’s signature is the meaning of his certificate, and he must be presumed to have known the signature of his deputy.

We are of the opinion that appellant, by giving this certificate, which he admits was incorrect, became responsible to appellee in the amount which the lower court adjudged; wherefore the judgment is affirmed.

Petition for rehearing by appellant overruled.