New England Bond & Mortg. Co. v. Brock

• Decision Date: 25 January 1930
• Citation: 270 Mass. 107,169 N.E. 803
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: NEW ENGLAND BOND & MORTGAGE CO. v. BROCK.

270 Mass. 107

169 N.E. 803

NEW ENGLAND BOND & MORTGAGE CO.

v.BROCK.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 25, 1930.

Report from Superior Court, Suffolk County; Weed, Judge.

Action by the New England Bond & Mortgage Company against Leslie N. Brock. From an order overruling a demurrer to the second count of the declaration, defendant appeals. On report. Order reversed and demurrer sustained.

P. R. Ammidon and J. M. Spillane, both of Boston, for plaintiff.

L. A. Mayberry and W. F. Levis, both of Boston, for defendant.

WAIT, J.

This case was heard in the Superior Court on demurrer. The judge sustained the demurrer to the first count, overruled it to the second, and reported the case, before further proceedings in the trial court, upon the declaration, the demurrer, the order overruling the demurrer to the second count and the defendant's appeal. No contention is made that there was error in the ruling with regard to the first count.

The second count, in substance, alleges that, on May 2, 1928, the defendant was a notary public duly appointed; that it was his duty in taking acknowledgments of documents executed before him and in certifying them to use due care in ascertaining that the person signing and acknowledging such documents was in fact the person purporting to sign and acknowledge them; that, on that day, in disregard of that duty, he signed a certificate that Nehemias Gorin had personally appeared before him and acknowledged a document purporting to be a discharge of a mortgage held by said Gorin to be his free act and deed; that he so signed in ignorance whether or not the person purporting to acknowledge before him was in fact Nehemias Gorin and without taking steps to ascertain his identity, and without exercising due care in the discharge of his functions as a notary public; that the document was not in fact signed by Nehemias Gorin and that the person appearing before him was some person unknown representing himself to be said Gorin; that in reliance upon the said alleged discharge of Gorin's mortgage and upon the defendant's certificate of acknowledgment, the plaintiff advanced $8,000 on the security of a mortgage of the land referred to in the alleged discharge, in the full belief that the mortgage was a first mortgage ‘by reason of the prior mortgage held by the said Gorin having been discharged by the said document certified to by the defendant’; that the plaintiff used due care in examining the alleged discharge and acknowledgment and in relying upon the certificate of the defendnt as a notary public before it advanced its money; and that by reason of said negligence of the defendant the plaintiff has suffered great loss.

There are no allegations of a duty to take acknowledgments unless possibly by implication from the allegation that the defendant was a notary public; nor that the person purporting to acknowledge was not in fact the person who had signed the document purporting to be a release by Gorin; nor of any acts constituting sue care other than looking at the discharge and the certificate of acknowledgment; nor of any facts showing loss to the plaintiff.

If we pass over these serious objections to the validity of the count, Warren Bank v. Parker, 8 Gray, 221;Carney v. Proctor, 237 Mass. 203, 206, 129 N. E. 605, there remains the fatal defect that it fails to set out any facts showing a relation between the defendant and the plaintiff out of which any duty toward the plaintiff on the part of the defendant arose. There was no contractual relation imposing a duty to use care. There was no duty imposed by law, and so no liability in tort, Bergeron v. Forest, 233 Mass. 392, 399, 124 N. E. 74, unless we are to decide that our law imposes upon persons authorized to take acknowledgments a duty toward everyone who later relies upon the accuracy of the certificate.

Whatever may be the law elsewhere under statutes and conditions differing from our own, we are unable to find justification for such a decision in the law of Massachusetts. Here, as was stated in O'Neil v. Webster, 150 Mass. 572, 573, 23 N. E. 235, ‘The only use of the certificate of acknowledgment of a deed by a grantor is to entitle it to be recorded.’ This is borne out by the decisions in Pidge v. Tyler, 4 Mass. 541;Shaw v. Poor, 6 Pick. 86,17 Am. Dec. 347;Learned v. Riley, 14 Allen, 109, which state fully the history of our law and practice with regard to acknowledgments. Even the record though prima facie evidence of execution of a deed, is not conclusive.O'Neil v. Webster, supra. The proceedings before a magistrate or a court to secure acknowledgment from an unwilling or neglectful or absent grantor, in the event that a document requiring record is not acknowledged, are not to determine the validity of the document but...