State ex rel. State Life Ins. Co. v. Faucett
| Decision Date | 03 June 1942 |
| Docket Number | 37924 |
| Parties | STATE ex rel. STATE LIFE INS. CO. v. FAUCETT et al |
| Court | Missouri Supreme Court |
Rehearing Denied July 1, 1942.
Rex V McPherson, Charles R. Landrum, and Robert Stemmons, all of Mount Vernon, for appellants.
James E. Sater, of Monett, for respondent.
DALTON, Commissioner.
This is an action for damages for breach of a notary public's official bond. The breach charged is the making of a false certificate of acknowledgment to a deed of trust. The jury returned a verdict for plaintiff for $ 250, upon which judgment was entered. Defendants appealed to the Springfield Court of Appeals and that court reversed the judgment and remanded the cause with directions to enter judgment for defendants. One of the judges dissented in a separate opinion, holding the decision contrary to and in conflict with certain decisions of the St. Louis Court of Appeals, and asked to have the case certified to this court. State of Missouri ex rel. State Life Insurance Company v. Myrl Faucett et al., 156 S.W.2d 50. The cause having been certified here, we are possessed of full and complete jurisdiction to hear and determine the cause. Art. 6, § 6, Amendment of 1884 to the Constitution, Mo.R.S.A.; Cash v. Sonken-Galamba Company, 322 Mo. 349, 17 S.W.2d 927, 928; Mergenthaler Linotype Company v. Kebby, Mo.Sup., 146 S.W.2d 595.
The bond sued on is in due form and conditioned that the said Myrl Faucett (the notary public) should faithfully perform the duties of said office according to law. It was duly executed, acknowledged, filed and recorded. The oath as notary public was duly subscribed and endorsed on the commission and Myrl Faucett entered on the duties of her said office as notary public of Lawrence County.
The deed of trust was dated August 15, 1928, and secured a note for $ 1,000, due September 1, 1935. The note and deed of trust purported to be signed by one Owens and wife. The notary public, on September 14, 1928, by certificate in the usual form, certified that Owens and his wife personally appeared before her and acknowledged the deed of trust. The certificate was false, since Owens did not sign or acknowledge the deed of trust, nor did he sign or authorize the note. Mrs. Owens obtained a loan from the payee named in the note (beneficiary in the deed of trust), who was the employer of Myrl Faucett. The deed of trust was recorded and, thereafter, the note and deed of trust were assigned to relator and the assignment recorded.
Relator did not discover that the certificate of acknowledgment to the deed of trust was false until May 8, 1933. In the meantime Mrs. Owens was making payments on the note. This suit on the bond was filed May 10, 1934, to recover the actual loss sustained by reason of the false certificate. The defense, apparently pleaded for the first time in an amended answer filed October 1, 1940 (but prior to the trial of the cause), is the special statute of limitations, to wit, § 13364, R.S.1939, Mo.R.S.A. § 13364, which among other things provides: 'Said bond * * * may be sued on by any person injured; but no suit shall be instituted against any such notary or his sureties more than three years after such cause of action accrued.' For the pleadings and additional facts, see State of Missouri ex rel. State Life Insurance Company v. Myrl Faucett et al., Mo.App., 156 S.W.2d 50.
Respondent offered no evidence tending to show that the notary public or the surety on her bond did anything to prevent anyone from finding out the true facts concerning the fraud. It is unnecessary to consider what would have been the effect of such evidence, if any had been presented, since appellants in the trial below conceded that affirmative acts or statements by the notary public or surety intended to mislead and deceive, or to conceal the fraud, would have extended the period within which suit could be brought.
At the close of all the evidence appellants tendered an instruction in the nature of a demurrer to the evidence asking the court to direct a verdict for defendants. The refusal of this instruction is sufficiently assigned as error.
Respondent contends that the statute of limitations was waived because first mentioned in the amended answer. The original answer, although set out in respondent's additional abstract of the record, is not properly a part of the record on this appeal and may not be considered by us. Abandoned pleadings can only become a part of the record by introduction in evidence and preservation in the bill of exceptions. Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 981, 87 A.L.R. 660, and cases cited. This was not done in this case. The defense of limitations, however, was timely raised. Even if the original answer was a general denial the defense was not waived and could be presented by an amended pleading. Haney v. Thomson, 339 Mo. 505, 98 S.W.2d 639, 644. In addition, the record shows no objection or exception to the filing of the amended answer containing the plea.
Was the action barred by the special statute of limitations, § 13364, supra? The determinative factor is when the cause of action accrued. Was it at the time the false certificate was made (September 14, 1928), or when relator discovered the facts in 1933, or when by the exercise of ordinary care the fraud might have been discovered, if prior to its actual discovery? We are dealing here with a special statute of limitations which provides no exceptions, and contains no provisions with reference to when a cause of action will accrue on the bond. The circumstances are, therefore, different from cases governed by general statutes of limitations. § 1012, Art. 9, Chap. 6, R.S.1939, Mo.R.S.A. § 1012, under the heading 'Limitations -- Personal Actions and General Provisions,' provides that, 'for the purposes of this article, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if by more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.' The fifth subdivision of § 1014 of the same article provides: 'Within five years: * * * fifth, an action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.' These sections, however, are not applicable to the case at bar, since § 1033, R.S.1939, Mo.R.S.A. § 1033, in the same article (9), provides that 'the provisions of articles 8 and 9 of this chapter shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute.' § 13364, supra, is in Chapter 95, R.S.1939.
In the case of State ex rel. O'Malley v. Musick, 145 Mo.App. 33, 130 S.W. 398, 403, in the Springfield Court of Appeals, it was held that a cause of action for breach of a notary's bond by the making of a false certificate of acknowledgment accrued when the act was committed, unless the notary did some act to lull the injured party into nonaction or to prevent discovery of the fraud and that 'the concealment of the facts by the defendants by mere silence was not enough' to toll the statute. This opinion was subsequently adopted by the St. Louis Court of Appeals, 165 Mo.App. 214, 145 S.W. 1184, 1185, after our decision in State ex rel. O'Malley v. Nixon et al., 233 Mo. 345, 138 S.W. 342.
In the case of State ex rel. Fehrenbach v. Logan, 195 Mo.App. 171, 190 S.W. 75, 78, in an opinion by Judge Sturgis, the Musick case was approved as follows: 'The court * * * properly held that the statute began to run with the doing of the wrong, and that, as there was no active concealment by the wrongdoer, such time would not be postponed until after the discovery of the wrong.'
In the case of State ex rel. Hardt v. Dunn, Mo.App., 129 S.W.2d 17 (), where relators had both constructive and actual notice of the fraud for more than three years before the suit was instituted and where there was no effort on the part of the notary public to conceal the fraud, the St. Louis Court of Appeals held the action barred by limitations.
The writer of the dissenting opinion in the Springfield Court of Appeals in the present case (156 S.W.2d 53, 56) relies for conflict upon two cases: State ex rel. Meinholtz v American Surety Company of New...
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