State v. Hallen
| Decision Date | 07 May 1912 |
| Citation | 146 S.W. 1171 |
| Parties | STATE ex rel. SAVINGS TRUST CO. v. HALLEN et al. |
| Court | Missouri Court of Appeals |
A notary made a certificate of acknowledgment to a deed purporting to be executed by a husband and wife. The date of the alleged acknowledgment was wrong, but she did not read it. The certificate stated that the husband and his wife appeared before the notary, but the name of the wife was not given, and that they were the persons described in and who were known to the notary, and who acknowledged before the notary the execution of the deed. The husband was the employer of the notary, and requested her to take the acknowledgment. Held, that the notary was negligent, and she and her surety on her official bond were liable therefor.
3. NOTARIES (§ 11)—LIABILITIES ON OFFICIAL BONDS—DAMAGES.
The bond of a notary is one of indemnity only, and one recovering damages, based on the notary's negligence, can only recover the amount of the actual loss sustained thereby.
4. NEGLIGENCE (§ 117) — CONTRIBUTORY NEGLIGENCE—PLEADING—PROOF.
A plaintiff, suing for the negligence of defendant, need not show in the first instance his freedom from contributory negligence; but contributory negligence is a matter of defense and the burden of proving it is on defendant, except where plaintiff, in his effort to prove his own case, shows that he was guilty of negligence contributing to the injury complained of, in which case defendant may avail himself thereof without plea. But the contributory negligence, to be thus utilized, must appear in plaintiff's evidence so clearly as to disprove the cause of action stated in the petition; and where it falls short of that, and remains a question of fact which may be decided either way, the defense, to be available, must be pleaded.
5. ACKNOWLEDGMENT (§ 48)—LIABILITIES ON OFFICIAL BONDS — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE—EVIDENCE.
One accepting an instrument, on the face of the certificate of acknowledgment of which appears an erasure in the date of the term of the notary, is not guilty of such negligence as precludes a recovery for injuries sustained in consequence of the negligence of the notary in taking the acknowledgment.
6. EVIDENCE (§ 597)—SUFFICIENCY TO SUPPORT FINDING.
The doctrine that a scintilla of evidence will support a finding is not in force in Missouri; but where there is substantial testimony, however small as compared to the great body of the proof, the court may not meddle with the weight of it, or ignore it, because negative in character.
7. APPEAL AND ERROR (§ 699)—QUESTIONS REVIEWABLE—GIVING AND REFUSING INSTRUCTIONS—BILL OF EXCEPTIONS.
Where instructions given and refused were not embodied in the bill of exceptions, the action of the trial court upon instructions asked by the appellant was not reviewable, though what purported to be a refused instruction appeared in the motion for new trial.
Appeal from St. Louis Circuit Court; Chas. C. Allen, Judge.
Action by the State, on the relation of the Savings Trust Company, against Hildegarde Hallen and another. From a judgment for defendants, relator appeals. Reversed and remanded.
The relator brings this action against Hildegarde Hallen and the Bankers' Surety Company, the latter her surety, on the notarial bond of the former, for forfeiture of the penalty of the bond ($5,000), and for judgment and execution for $1,500, the damages alleged to have been sustained by relator by reason of the breach of the condition of the bond. It is averred in the amended petition, in substance, that the defendant Hildegarde Hallen was duly appointed and commissioned a notary public in and for the city of St. Louis on March 2, 1908; that she executed her notarial bond in the penalty of $5,000, with the defendant Bankers' Surety Company as her surety; the bond approved March 3, 1908, and duly filed with the clerk of the circuit court and on March 9, 1908, filed with the Secretary of State. The condition of the bond is that the defendant Hallen would faithfully perform the duties of the office of notary public according to law. It is averred that among the duties of that office was that of taking acknowledgments to the execution of deeds of trust. It is charged that defendant Hildegarde Hallen has not in all respects faithfully performed the duties of her office according to law in this: That on or about July 6, 1908, that defendant, acting in her capacity as notary public and for a valuable consideration, made her notarial certificate of acknowledgment to a certain instrument dated July 16, 1907, which purported to be a conveyance by one Kathryn Fortner and M. D. Fortner, her husband, of certain real estate to the St. Louis Union Trust Company, trustee in trust for one J. Philo Young, the deed of trust purporting to secure a principal note for $2,500, payable in three years from the date of the deed, and six interest notes for $75 each, due at intervals of six months thereafter, interest at 7 per cent. The property described is a certain lot in St. Louis county, alleged to be of the value of $3,900, and owned by Kathryn Fortner. It is charged that the deed of trust is spurious; that the certificate of acknowledgment taken and certified thereto by the defendant notary is false and the recitals therein are not true; that no parties appeared before the notary on July 16, 1907, nor for a year thereafter, nor did Kathryn Fortner, the party described in the deed, at any time appear before the notary to acknowledge this deed and that her purported signature to the deed is a forgery. It is further charged that at the time the notary affixed her official signature and seal, the name of M. D. Fortner alone was signed to the deed and alone appeared in the form used by the notary for her certificate, and that the notary thereupon made her certificate of acknowledgment and at the conclusion of the partly blank and partly printed form intended for the acknowledgment of husband and wife, so executed that form as to leave open, unchanged and without reading, printing or words inserted therein, the third line of the form, wherein was later inserted by parties unknown to the relator the words "Kathryn Fortner," and that the notary further left unerased the words, "his wife," being the first two words of the fourth line of the form, and left unchanged in the fourth and fifth lines of that form, all words indicating the presence of more than one person; it being charged that "all of which said acts and omissions were carelessness and negligence on said defendant's part and was a failure on her part to faithfully perform her duty, which said negligence and carelessness constitutes a breach of the conditions of her aforesaid bond, and render the defendants therein liable therefor to any person injured thereby." It is further averred that relator, relying upon the proper performance of duty with respect to the certificate of acknowledgment by the defendant Hallen, as notary public, advanced to M. D. Fortner $1,500 on the security of the acknowledged deed; that the deed is worthless; that the signature of Kathryn Fortner is a forgery; that M. D. Fortner is a fugitive from justice and no process of law can be served upon him in this state; that he is insolvent and relator has no adequate remedy in law in the premises and by reason of the acts of defendant notary the sum of $1,500 is wholly lost to relator. Averring that amount as its damage, relator demands judgment for it and interest from March 10, 1908, when demand was made, and for judgment for the penalty of the bond, with execution against defendant for the sum of $1,500, interest and costs.
The separate answers of the defendants, admitting that relator and defendant Bankers' Surety Company are corporations, deny every other allegation in the petition.
There was a trial of the cause before the court, a jury being waived, and a finding and judgment for the defendants, from which the relator, filing its motion for a new trial, has duly perfected its appeal to this court.
There was no controversy over the averments of the petition as to the appointment of Hildegarde Hallen and the execution of the bond. It further appeared by the evidence that in point of fact Kathryn Fortner and M. D. Fortner, her husband, on July 16, 1907, had made, executed and acknowledged a deed of trust to J. Philo Young, trustee for the St. Louis Union Trust Company, which was filed of record in St. Louis county on July 17, 1907, and numbered as of the current number of the filings of that date as No. 46; that this deed of trust was to secure a note for $2,500, due in three years, and six semiannual interest notes, each for $75. It appeared that afterwards and on or about the sixth day of July, 1908, the aforenamed M. D. Fortner, he seated at his desk, called to his desk Miss Hallen, then a young woman about 22 years of age, and in his employ, signed a paper which was lying on his desk, held up his hand, acknowledged it as his act and deed, and told Miss Hallen to affix her signature and notarial seal, which she did, writing in with a pen, after the words "my term expires," which were printed on the paper, the words, "March 1st, 1912." Fortner then took the paper. That was the last Miss Hallen saw of it, until, when after the discovery of various fraudulent acts of Fortner and his flight, it was shown to her by an officer of relator. The evidence tends to show that when this paper left the hands of Miss Hallen the certificate of acknowledgment upon it was in this form:
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