State ex rel. Savings Trust Company v. Hallen

• Decision Date: 07 May 1912
• Parties: STATE OF MISSOURI ex rel. SAVINGS TRUST COMPANY, Appellant, v. HILDEGARDE HALLEN et al., Respondents
• Court: Missouri Court of Appeals

146 S.W. 1171

165 Mo.App. 422

STATE OF MISSOURI ex rel. SAVINGS TRUST COMPANY, Appellant, v. HILDEGARDE HALLEN et al., Respondents

Court of Appeals of Missouri, St. Louis

May 7, 1912

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

April 2, 1912, Argued and Submitted

Appeal from St. Louis City Circuit Court.--Hon. Charles Claflin Allen, Judge.

REVERSED AND REMANDED.

STATEMENT.--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 ($ 5000), and for judgment and execution for $ 1500 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 $ 5000, 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 $ 2500, payable in three years from the date of the deed, and six interest notes for seventy-five dollars each, due at intervals of six months thereafter, interest at seven per cent. The property described is a certain lot in St. Louis county, alleged to be of the value of $ 3900, 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 $ 1500 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 $ 1500 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 $ 1500, 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 $ 2500, due in three years, and six semi-annual interest notes, each for seventy-five dollars. 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 twenty-two 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:

"State of Missouri, City of St. Louis,

On this sixteenth day of July, 1907, before me personally appeared M. D. Fortner, . . . . and . . . . his wife, to me known to be the persons described in and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed.

In testimony whereof, I have hereunto set my hand and affixed my official seal in the city of St. Louis, Mo., the day and year first above written.

My term expires March 1st, 1912 . . . 19--

Notarial Seal. HILDEGARDE HALLEN,

Notary Public."

All of this matter is printed except the words underscored or italicized, namely, "sixteenth," "July," the figure "7" and the name "M. D. Fortner," which are typewritten; the words "March 1st, 1912," and the signature are written with a pen. The dotted lines were blank. In the body of the deed, on its front page, the names of the grantors and the dates are typewritten, the three first lines reading thus: "This Deed, made and entered into this Sixteenth day of July, Nineteen Hundred and Seven, by and between Kathryn Fortner and M. D. Fortner her husband," etc.

The evidence is clear that Mrs. Kathryn Fortner did not sign the deed nor appear before the notary, nor acknowledge it, nor did her name appear in the acknowledgment. Miss Hallen testified very positively that when she took the acknowledgment of Fortner, she wrote in the date of expiry of her commission as March 1, 1912. She did not read nor see the body of the deed, Fortner merely showing her where to sign the certificate of acknowledgment, which is toward the bottom of the third (inside) page; did not notice the date written at the top of the acknowledgment; ruled in no lines to fill up blank spaces. She testified that she thought that if the date of the purported acknowledgment--July 16, 1907--written in at the top or beginning of the acknowledgment, was so written when she took the acknowledgment, she would have noticed it, but she admitted that there was no appearance of erasure and alteration as to that date, and remembered nothing about that date. But she was positive in her testimony that she had written in the date of expiry of her term as March 1, 1912, and pointed out the evidences of erasure of the figure 2 and substitution of a cipher (0) so as to make the year appear 1910, in place of 1912. This alteration in the year of her official term from 1912 to 1910 is obvious, as we find on examination of the deed, which has been produced before us by mutual consent of counsel, and as the learned trial court evidently found. The next appearance of this spurious deed was when M. D. Fortner, sometime in December, 1908, went to the place of business of relator, the Savings Trust Company, in St. Louis and stated his wish to borrow $ 1500, offering to put up what purported to be the principal note secured by this pretended deed of trust, as collateral security for a loan of $ 1500. Along with these papers,...