Wood v. Bach

54 Barb. 134 | N.Y. Sup. Ct. | 1869

Cardozo, J.

I am not able to concur- in the view of this case taken by the learned judge before whom it was tried. The statute requires that an officer taking an acknowledgment shall know, or have satisfactory evidence, that the person making such acknowledgment is the individual described in and who executed the conveyance; but it nowhere prescribes either how such knowledge shall have been acquired, nor that it must have existed for any definite period of time. That being so, who shall fix a rule by which it shall be determined whether the commissioner was justified either by the length of his acquaintance, or the method of forming it, in certifying that he knew the party ? Must it not necessarily be a question for the conscience of the officer taking the acknowledgment, and is not that just where the statute meant to leave it, if there were any thing at all upon which the officer’s conscience could be called upon to act? As no specific period of prior acquaintance is fixed by the statute, who shall say that one month would not bé sufficient if the officer taking the acknowledgment so regarded it? And if one- month, why not an hour, or the moment at which the acknowledgment is taken ? It is clear that the right to take the acknowledgment does not depend upon the length of the officer’s acquaintance with the person. Is that right dependent on the manner in which the officer’s knowledge is acquired ? The statute does not say so. The means through which the officer obtains knowledge of the person’s identity are not material. One officer might consider a person known to him through a method- that another might entirely reject. But in this case the usual means of knowledge were acted on and received by the officer as sufficient.

- Knowledge of persons and their identity is most frequently acquired by introduction through mutual friends, and when such introduction has taken place the parties certainly know each other. Every day men, in social life, thus become known to each other, and I never heard that such an introduction was not sufficient, or that any length of time after it must elapse, to justify a statement or certificate that they were acquainted. When an introduction does not proceed from such a source as satisfies the officer’s conscience, undoubtedly he should not certify that he knows the party, but should require “ evidence” which, of course, must be on oath; but when the character of the introducer—whom the officer knows—conveys knowledge to the officer’s conscience, he may well be satisfied and may properly give the certificate.

In this case the parties making the acknowledgment were introduced to the officer, the Ordinary way of becoming known, by one in whom he had such confidence that “ he had no doubt” that they were the persons they purported to be. Upon that, in social life, he would have been regarded as knowing them, and knowing them in social life he had the right, if his own conscience were convinced, from that knowledge of their identity, to take their acknowledgment in his official capacity. Suppose these persons had béen introduced to the notary by the same gentleman a week before, and that they had gone to him when they made the assignment, and he had taken their acknowledgment, will any body pretend that he could not certify that he knew them ? That case does not differ in-principle from this.

I think the learned judge not only erred, therefore, in his view of the demands of the statute, but that so much of his third finding of fact as holds upon the undisputed testimony of introduction by a person known to him and in whom he had confidence, that the grantors were not known to the notary, is against evidence, and cannot be sustained. I do not think the suggestion that allowing acknowledgments to be taken,under such circumstances may lead to frauds and false personations, entitled to much weight. Certainly when the officer relies upon the introduction made by a friend whom he knows, there is not more danger of imposition than when he acts upon oath, as he may do, of an entire stranger. If parties desire to personate others, there is much more probability of it being done through the medium of the oath of a stranger, experience having shown that .persons willing to commit perjury for such purposes are not difficult to be found, than that it will be accomplished through the instrumentality of an introduction by a respectable friend to a reputable officer; while, again, if the officer himself be corrupt, requiring that he shall take evidence, will not prove much more of a safeguard than if he certified without proof.

[New York General Term, June 7, 1869.

The judgment should be reversed, and a new trial ordered; costs to abide the event.

Geo. G. Barnard, J., concurred.

Clerke, P. J., dissented.

Hew trial granted.

Clerke, Cardozo and Geo. G. Barnard, Justices.]