This action is upon the official bond of the defendant, John Ogden, who, as a notary public, certified a fraudulent acknowledgment to a deed of trust forged by him. His co-defendant, the American Surety Company is the surety on said bond.
Relator is a German, fifty-six years of age without business training or experience except in farming, and residеs on his farm not far from the town of Deepwater in Henry county, Missouri. The said John Ogden, at the time of the certificate of which relator complains, was, and for some years prior thereto had been, a leading and respected citizen in said town, and president of the Farmers Bank of Deepwater. He was also, and had been for years, a notary public, and en-' gaged in the real estate, insurance, and loan business.
Relator had $1800 on deposit in said bank. Ogden, knowing this, went to relator’s home and told him he had a customer named Harvey who owned a certain eighty acres of land in St. Clair county worth $4000 situated two and one-half miles southeast of the farm of one Stehwein, about fourteen miles from where relator lived. (Relator was well acquainted with the value of farming lands in that neighborhood, knew they were worth from $40 to $50 per acre, and that they were good tillable soils). Ogden further told relator that his customer, Harvey, had an eastern loan on his farm which was about tо fall due and that he wanted to pay it off' by getting a new loan, and, as he, Ogden, knew relator had money in the bank, he, on be
Later, Ogden returned with a note for $1800 payable to relator, due two- years after date bearing six per cent interest and purporting to be signed by James Harvey and Mary Harvey. He also brought with him a deed of trust, written by him, which was in every way regular on its face. It purported to be from James Harvey and Mary Harvey, his wife, to John A. Grob, trustee for Joseph Matter, conveying eighty acres of land in St. Clair county, Missouri, described as the south half of the northeast quarter of section 14, township 39, range 24, given to secure said $1800 note and referring to it in apt and proper terms. The certificate of acknowledgment was in the form required by law and was signed by John Ogden as notary public under his official seal. He turned the note and deed of trust over to relator. He also showed relator an abstraсt of title which he had in his pocket and told relator he had prepared the papers for the loan of which he had theretofore spoken. Relator was not “scholar enough” as he says to know a piece of land by a description in the terms of a government survey and, therefore, could not-tell whether or not the description contained in the deed described the farm Ogden had specified as the one on which the loan was to be made, nor could he tell “one thing from another in the abstract” never before having made a loan or transacted business of that nature. He had no suspicions about it, however, but readily took Ogden’s word that the land was the farm he had in mind near that of his old friend Charles Stehwein, and that everything was all right. He did, however, examine the note and deed of trust and saw the signatures to them and that the deed of trust was acknowledged before Ogden as notary public.
Ogden allowed relator to keep the note but retained the abstract and deed of trust for the purpose of re
It was admitted at the trial .that no such persons as James Harvey and Mary Harvey existed; that they were fictitious persons; that the signаtures to the papers were forged by Ogden, and that his certificate as notary public that they personally appeared before him as notary and were known by him to be the persons described in and who executed the said deed of trust and acknowledged it as their free act and deed, was false. It was also аdmitted that said Ogden was wholly insolvent.
The only answer filed was on the part of the defendant, the American Surety Company. This was a general denial coupled with a plea of contributory negligence in that relator failed to make any examination of the title to the land, and failed to make any investigation as to whethеr the Harveys owned the land or were in existence, and also failed to make any investigation as to the character, location, or value of the land described in the deed of trust. Defendant set up that such examination and investigation would have disclosed that the land was not owned by the Harveys, and that they were fiсtitious persons, that the land described in the deed of trust was not the land relator had in mind and specified to him and was not anywhere in the'neighborhood of the locality two-and-one-half miles southeast of Stehwein, and was rough, broken, and unimproved land not worth" above one-third of the amount lent by relator; that the land described
The reply put in issue the new matter set up in the answer.
The case was tried before the court without a jury. At the close of the trial, the defendant Surety Company asked a peremptory instruction that plaintiff was entitled to nominal damages only as against it. The trial court adopted this theory and gave effect to the instruction by rendering judgment for plaintiff against Ogden for $1800, but only for $1 and the costs against the Surety Company. Thereupon relator appealed.
Under the law, notaries are authorized to take acknowledgments of deeds, etc., and are required to certify the truth, under their official seals ‘ ‘ concerning all matters by them done by virtue of their offices.” [Sec. 10,178, E. S. Mo. 1909.] They are required to give a bond in the sum of $2000 which “may be sued on by any person injured.”' [See. 10,181, E. S. Mo. 1909.]
The condition of the bond in question is that “the said John Ogden shall faithfully perform the duties of said office according to law.” Under the statutes, therefore, Ogden’s official duty was not only to certify to acknowledgments of deeds but to do so with integrity. It was his duty to do this under the common law for, by aсcepting the office, he contracted with very one who employed him to perform his duty with integrity, diligence and skill. [3 Blackstone’s Comm. 165.] His bond was for the faithful performance of the duties' of his office according to law, and although relator did not employ him, yet the statute does not limit a right of recovery to one who emрloys his services, but gives
If a notary makes a false certificate and an injury results therefrom to another, the notary and his sureties are liable. [State ex rel. v. Webb,
So far as relator’s alleged contributory negligence is concerned, he had a right to rely on the notary’s certificate as being true and that the persons therein mentioned appeared before him and acknowledged the instrument. [State ex rel. v. Plass,
Bnt defendant says that the false certificate was not the canse of relator’s loss; that relator relied upon Ogden’s personal acts and representations in telling him of the land, its location, ownership, value, etc., and that the surety is not liable for Ogden’s acts as an individual. True, the surety is liable only for the official acts of the notary. But the evidence shows clearly that relator examined the deed of trust to see if it was acknowledged, and if the notary’s certificate had not been thereon, relator would not have parted with his money. He relied upon the fraudulent certificate. The fraudulent acknowlеdgment was the last chasm to be bridged by Ogden on his way to the old German’s money. It was the most important one, too, because no matter how certain relator may have been that Ogden’s individual representations were true, he would not have lent the money if the certificate of acknowledgment had been absent. The frаudulent certificate, therefore, was not'merely one of the causes of his letting go of his money. It was the efficient cause thereof, and, if it be necessary in a case of fraud, it .was proven to be a proximate cause of the loss, since that result followed in a natural continuous and unbroken sequence from the false certificate and without which such result would not have occurred. It may be true-that relator’s confidence in the honesty of Ogden led him to accept Ogden’s statements as to the location of the land and its ownership, but before he would part with his money he looked to see if the deed was acknowledgеd and if the fraudulent certificate had not been there his money would have been safe. The fact that the fraudulent certificate was one of a number of things inducing relator to part with his money and thereby suffer a loss does not prevent the certificate from being a cause, and a proximate cause, of such lоss. For, though the official fraudulent act of the no
It is said, however, that relator’s loss was not caused by the false certificate since the Harveys never existed and did not own the land; and, if they had existed and the certificate had been true, still, as they did not own the land, nothing of value would have passed by the deed of trust to relatоr and hence his loss arose from that fact and not from the false certificate. We think that this is putting the cart before the horse, and that under the undisputed evidence the proposition should be reversed, and the true statement is that if it had not been for the notary’s fraudulent certificate no money would have been lent upon the deed and consequently none would have been lost. Even if the Harveys had existed and had owned the land and relator had personally known those facts, still he would not have loaned the money without the certificate of acknowledgment. And if the certificate were untrue, -then the Harveys, even if they had owned the land would not have been bound by the deed, and relator would have lost his money the same as he has now when the Harveys are mythical and do not own the land. The notary’s duty under the law, as we have seen, is to certify to acknowledgments with integrity. If he had acted with integrity he could not have made this cer
What has been said upon the question of the cause of relator’s loss applies to the meаsure of plaintiff’s damages as well. If the official fraudulent act of the notary caused the loss, then where is there any ground for saying that the surety is only liable for nominal damages 1 The notary is charged in this case with using his official position and power to commit a fraud upon plaintiff. “The very object of the bond is to obtain indemnity against the use of an official position for wrong purposes, and that which would obtain no credit except from it appearing to be a regular official act, is within the protection of the bond, and must be made good by those who signed it.” [Doran v. Butler,
In support of the contention that it is liable only for nominal damages, defendant cites States ex rel. v. Plass,
The rule that the judgment of the trial court must be affirmed if it is possible to do so upon any theory applicable to the facts cannot be invoked to uphold the judgment rendered. There is no dispute as to the facts. The record shows that the judgment was in fact the mere sustention of defendant’s peremptory instruction to render judgment against the Surety Company for nominal damages only. The judgment that was rendered shows that the court found that the fraudulent certificate was relied upon and that it was the cause of relator’s loss, but that a judgment for only $1 was rendered against the Surety Company because of the trial court’s view as to what was the measure of damages. This was a question of law. Under the facts of this case we think this question was erroneously decided. The judgment is, therefore, reversed and the cause remanded.