77 Mo. App. 463 | Mo. Ct. App. | 1898
Suit was against Charles G. Balmer, a notary public, and his sureties, on his official bond. After setting forth his appointment as notary, the giving of the bond and qualifying as notary, the petition alleges as a breach of the conditions of the bond the following: “That about December 14th, 1896, the Covenant Mutual Life Insurance Company having the sum of $2,200 to loan upon real estate security, undertook to loan same to one Fred Steiner to be secured by first deed of trust upon certain good and sufficient real estate situated upon St. Vincent avenue in said city, then owned by said Steiner, more particularly described in a certain false deed of trust, recorded in the recorder’s office of the city of St. Louis, in book 1379, page 54; that said insurance company had the title to said real estate examined and found the same to be in said Fred Steiner; that, thereafter, said deed of trust was prepared, and a person pretending to be and personating said Fred Steiner, executed afid acknowledged the deed of trust to secure said sum of $2,200 to be loaned by said insurance company to Fred Steiner before said defendant, Balmer, as a notary public who on December 4th, 1896, certified under his official signature and seal as notary, that on December 14th, 1896, Fred Steiner, known to him, notary, to be the person described in and who executed the said deed of trust, and acknowledged that he executed the same as his free act and deed; that said insurance company relying upon said notarial acknowledgment so taken by said defendant, Balmer, accepted said deed of trust as the genuine deed of trust of Fred Steiner, and paid out the sum of $2,200 upon the faith of and accepting said deed of trust as security therefor; that Fred Steiner, the owner of'said property, was a well known person, doing business at 2242 Chouteau avenue, and there residing with his family: that
From the evidence it appears that defendant, Charles G. Balmer, was duly appointed and qualified as notary public, and furnished the statutory bond sued on, with Charles F. Kuhn and John G. Schuetz as sureties; that early in December, 1896, Balmer called upon Charles E. Philling, secretary of the Covenant Mutual Life Insurance Company, a corporation, and stated that he had a party who wanted to borrow $2,200 on a house and lot on St. Vincent avenue, in the city of St. Louis, belonging to Fred Steiner; Pilling handed to. Balmer one of the company’s blank applications for a loan with directions to have it filled out and signed, and to have the real estate appraised by some one familiar with the value of the property. In a couple of days Balmer returned with the blank application filled out and delivered to Pilling. It was signed “Fred Steiner, per B.” (Balmer). The plaintiff’s real estate committee of experts then went out and examined the property and approved the security. Balmer then produced to Pilling a certificate of title made out by one Wenslick, a title examiner. Pilling told him that the certificate would not be satisfactory; that the company would require the certificate of Gehner, the St. Louis Trust Company or of the Union
The second assignment of error is that there is no evidence tending to prove that the person who executed the deed of trust was not named Fred Steiner. In this we think counsel misconceives the probative force of the facts and circumstances fairly deducible from the evidence. Tó our minds it is quite clear from the evidence that Wilson and Morse conspired together to perpetrate the fraud on the respondent, which they were enabled to consummate through the negligence and over confidence of Balmer, the notary. The description given of Morse by Pilling and the real Fred Steiner, the means to which he resorted to get possession of the Wenslick certificate of title and his subsequent conduct in returning it to Steiner, leave but little room to doubt that it was he who represented himself to be Fred Steiner, and as Fred Steiner executed the deed of trust, received the respondent’s check and got the cash on it, through the aid of Balmer. But suppose the person who executed the deed was named Fred Steiner; he was not the Fred Steiner who owned the property described in the deed, who was a married
The third assignment of error that there is no evidence that respondent relied solely upon the certificate of acknowledgment, is contradicted by the evidence of Pilling; it is also contradicted by the transaction itself. The real estate was examined by respondent’s committee of expert examiners, and approved of as good security for the loan; a certificate of title was required, and the execution of a deed of trust in approved form by the owner of the realty was also required before respondent would make the loan. These things were not done and required to be done as a matter of form, but to secure the loan, and relying on what had been done, as having been truly and honestly performed, the respondent accepted the security and parted with its money.
The fourth assignment of error is that the court erred in refusing certain instructions asked;by appellants. There were several instructions asked by appellants that were refused; the appellants neither in the several motions for new trial, nor in the brief, point out which of these instructions should have been given. We have examined the instructions given and find they presented the appellants’ side of the case to the jury in the most favorable light; in view of this fact we will not examine the refused instructions, in the absence of a designation of any particular instruction, the refusal of which is complained of as error.