State ex rel. Kleinsorge v. Meyer

• Decision Date: 10 June 1876
• Citation: 2 Mo.App. 413
• Parties: STATE OF MISSOURI, to use of A. KLEINSORGE, Administrator, etc., Respondent, v. HERMAN MEYER et al., Appellants.
• Court: Missouri Court of Appeals

2 Mo.App. 413

STATE OF MISSOURI, to use of A. KLEINSORGE, Administrator, etc., Respondent,

v.HERMAN MEYER et al., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 10, 1876.

1. A notary public who falsely certifies that he is personally acquainted with the grantor in a deed, whom he does not know, and who is personated by another, is liable to all persons damaged by such false certificate.

2. In an action for damages for such a false certificate, it will not avail anything for the notary to say he was not aware of its falsity, or that he believed it to be true. It is his duty to know it to be true.

3. It is not error to refuse to instruct the jury, where there have been no facts proved to which the instruction asked could apply.

4. Advantage cannot be taken in an appellate court of an informality or defect in a pleading to which no objection was made in the trial court.

APPEAL from St. Louis Circuit Court.

Affirmed.

Davis & Smith, for appellants.

Farrish & Griffin, for respondent, cited: Shear. & Redf. on Neg., sec. 423.

GANTT, P. J., delivered the opinion of the court.

This suit was brought to the April term, 1872, of the St. Louis Circuit Court, against Meyer and his sureties, on his bond as notary. This bond was dated April, 1869, and was conditioned for the faithful performance of the duties of the office of notary. The petition alleged that, prior to April 27, 1869, Herman Kleinsorge placed in the hands of Kleinschmidts, two of defendants, $1,500, to be lent for him upon good and sufficient real estate security in the city of St. Louis; that a person personating William Shultz represented himself to Kleinschmidts as the owner of certain real estate in St. Louis; that thereupon the title was examined, ascertained to be in William Shultz, a deed of trust was prepared by Kleinschmidts, as agents of Kleinsorge, and the person personating Shultz executed and acknowledged the same before Meyer, who certified that he was personally acquainted with William Shultz, and that he had acknowledged the deed was his. Then Kleinsorge took the deed, and paid to the imposter $1,500. That, at the date of this transaction, William Shultz was in fact the owner of the property described in the deed of trust; that he was a well-known person, residing with his family on the property supposed to be incumbered by the deed; that he never executed this deed, nor authorized its execution; that Meyer negligently certified to a false state of facts, whereby Kleinsorge was damnified, and judgment was prayed against Meyer and his sureties accordingly. The answer of the Kleinschmidts (Meyer not being served) admitted that Meyer was appointed notary, and that they executed the bond set out in the petition, and proceeded to deny every other allegation of the petition. There was a trial in February, 1875, whereat plaintiff had a verdict and judgment for $1,762.50, and, after motion to set the verdict aside, an appeal was taken to the general term, and thence to this court. By the bill of exceptions it appeared that a fraud had been practiced by some one personating William Shultz; that this person had, in the name of Shultz, called upon Kleinschmidts, had gone with them to show the property, had spoken to a person there whom he called “aunt,” and had successfully imposed himself upon both Meyer and the Kleinschmidts as the veritable William Shultz, and owner of the land. This person appears to have been a young man about twenty years of age. He seems to have introduced himself to the defendants, and they appear to have received his assurances of his personality with very credulous faith, without any suspicion, and without any inquiry becoming a prudent man. Thus acting, Kleinschmidts put out the money of Kleinsorge, and Meyer took the acknowledgment of the rogue, and made his certificate. The money of Kleinsorge was lost by reason of the want of care exercised by Meyer. Others, also, may have been guilty of contributory negligence; but, if the careless act done by Meyer was necessary to the accomplishment of the loss, there can be little doubt that, in a proper form of action, he alone may be made answerable for the resulting damages--leaving aside all questions of the adjustment of the burden among the several parties who shared in the work of negligence to be settled in another proceeding. In this case the action is brought against Meyer alone--that is, he alone is charged as the guilty party-- though his sureties are sued along with him, the joining of them with him is not due to the fact that they, together with him, were guilty of negligence, but that they, as his sureties, undertook that he would be diligent and faithful in the performance of his duties as notary.

When the evidence (which, at lowest, tended to prove the statements of the petition) was put in, the court instructed the jury:

1. “That, if they believed from the evidence that the person who signed the deed of trust read in evidence was not William Shultz, and was not personally known to the defendant Meyer to be William Shultz, or proven to be so by the sworn testimony of two witnesses, and that the defendant Meyer took the acknowledgment of said person without personal knowledge as to his identity, or without having such identity established by the sworn testimony of two witnesses, and that, by reason of such action on the part of said defendant Meyer in taking said acknowledgment, the person falsely representing himself to be William Shultz obtained the sum of $1,500 from Herman Kleinsorge, and that, in consequence thereof, the said sum became lost to said Kleinsorge--then, if the jury further believe, etc., they will find for the plaintiff. But the loan from Kleinschmidts to the person representing himself to be William Shultz must have been made in consequence of, and through reliance upon, the certificate of the defendant Meyer as to the identity of such person. Hence, if the jury believe that the agent of Kleinsorge instructed the defendant Meyer to deliver the money to the person representing himself to be William Shultz, and did so-- but in consequence of his belief that said person was Shultz, based upon the supposed correction [ sic] of the defendant's certificate, but by reason of his having become satisfied as to said identity from evidence or information other than such certificate, then the jury will find for the defendant.”

The defendant excepted to this instruction, and asked the following, which the court refused, defendants excepting:

1. “That, upon the evidence introduced by the plaintiff, the plaintiff cannot recover.”

2. “If the jury believe from the evidence that the defendant Herman Meyer, at the time he executed the certificate of acknowledgment to the deed of trust in evidence, had reasonable cause to believe, and did believe, that the facts certified by him in said certificate to be [ sic] true, then the plaintiff cannot recover, although they may find that all the facts so certified to are not true.”

3. “If the jury believe, etc., that Theodore Kleinschmidt was the agent of Herman Kleinsorge in making the loan, secured by the deed of trust from William Shultz to Kleinsorge's trustee, filed for record April 27, 1869, and that said Theodore Kleinschmidt directed said Meyer to loan said money so secured by said deed of trust to the person who signed said deed of trust, and take his deed of trust on the property therein described therefor, then the plaintiff cannot recover in this action”

4. “If the jury believe from the evidence that Herman Meyer, at the time he certified to the acknowledgment in question, honestly believed that he knew the facts certified to in said certificate, and that said facts were true, then the plaintiff cannot recover in this action.”

5. “If the jury believe from the evidence that, when the defendant Herman Meyer took the acknowledgment of the deed of trust in evidence, he in good faith believed he knew the person signing said deed to be William Shultz, the person who executed said deed, and who owned the property therein described, then the plaintiff cannot recover.”

6. “The defendant asks the court to instruct the jury that the plaintiff cannot recover in this action unless they find that the defendant Herman Meyer, at the time he took the acknowledgment to the deed of trust, negligently and maliciously certified to the identity of the person executing the same, with intent to defraud the plaintiff.”

There were some facts in relation to the transaction that should be stated, with a view to the understanding of the question arising on this record.

The young man who personated William Schultz is declared, by Mrs. Shultz, to have been twenty years of age in 1867, or twenty-two years old in 1869, when the alleged forging was committed. Meyer testifies that he was a young man, about twenty-five years old, of reddish or sandy hair, and tall. His name appears to have been Ostollok. It appears that William Shultz bought the lot, which the forged deed professed to incumber, in 1860. This fact we must assume to have been known to the defendant Meyer, (and to the other defendants also, if they saw the abstract of title). Now, if the testimony of William Shultz be taken to mean that Ostollok was, and appeared to be, in 1869, of the age of twenty-two years, it follows that he must have bought the lot,...