State Nat. Bank v. Mee

• Decision Date: 18 November 1913
• Docket Number: Case Number: 3172
• Parties: STATE NAT. BANK v. MEE et al.
• Court: Oklahoma Supreme Court

1913 OK 672

136 P. 758

39 Okla. 775

STATE NAT. BANK v. MEE et al.

Case Number: 3172

Supreme Court of Oklahoma

Decided: November 18, 1913

Syllabus

¶0 1. ACKNOWLEDGMENT--Taking of Acknowledgment. The set of a notary public in taking the acknowledgment of a person to a deed, mortgage, or other instrument is purely ministerial, and in no wise judicial.

2. SAME. The fact that such act is ministerial and not judicial does not lessen the importance of the act, nor justify a notary in failing to give due consideration to the discharge of a grave and responsible duty.

3. SAME--Notaries--Negligence--What Constitutes. A notary is guilty of negligence if he certifies that he knows a person whom he does not know, or certifies that he knows a person on a mere introduction (without further proof) by some third person, or if he certifies that he knows a person to be the identical one who executed an instrument without such person actually appears before him, and personally acknowledges the instrument in his presence.

4. SAME--Right of Action--Proximate Cause. M., a notary public, certified that Lula S. and Mary S. personally appeared before him, and acknowledged the execution of a deed. Mary S. was the owner of the real estate described in the deed. Lula S. presented the deed, together with a check purporting to be signed by one Smith, who was a depositor at the bank at which the presentation was made (but which cheek was a forgery), and requested payment of the check. The bank, on the strength of the certificate of the notary to the deed, showing that Mary S., the owner of the land, had personally appeared and acknowledged execution thereof, paid to Lula S. the sum of $ 750 on the forged check. Suit was brought by the bank against the notary and his bondsmen for breach of his notarial bond in making a false certificate. A demurrer was urged against the petition, and sustained by the court. Held, there was no error in sustaining the demurrer. The forged check, and not the false certificate made by the notary, was the proximate cause of the loss, and therefore no cause of action existed in favor of the bank and against the notary and the sureties on his bond.

Wilson & Tomerlin and E. E. Buckholts, for plaintiff in error.

Winn & Brill, for defendants in error.

ROBERTSON, C.

¶1 This is an action by the State National Bank against Robert Mee, a notary public, and G. M. Stephenson and J. A. J. Baugus, sureties on the notarial bond of said Robert Mee, to recover damages for failure to faithfully discharge his duties as such notary public. The material part of the petition reads as follows:

"Fourth. Plaintiff alleges that the said Robert Mee has failed to faithfully perform the duties required of him by law as such notary public, and has been negligent in the performance and discharge of said duties, whereby this plaintiff has been damaged, for that on or about April 13, 1910, he, the said Robert Mee, did purport to take the acknowledgment of one Mary Stone, colored, and Lula Shields, colored, to a certain warranty deed, whereby the said Mary Stone and Lula Shields purported to convey to one Alfred Smith, for the sum of seven hundred and fifty ($ 750.00) dollars, lots 23 and 24 in block 35 in Park Place addition to Oklahoma City, Oklahoma. The certificate of the said acknowledgment made by the said Robert Mee on said deed is in words and figures as follows, to wit: "'State of Oklahoma, Oklahoma County, ss.:

"'Before me, Robert Mee, a notary public in and for said county and state, on the 13th day of April, 1910, personally appeared Mary Stone, a single woman, and Lula Shields, a single woman, to me known to be the identical persons who executed the within and foregoing instrument, and acknowledged to me that they executed the same as their free and voluntary act and deed for the uses and purposes set forth.

"'Witness my hand and official seal the day and year above set forth. Robert Mee, Notary Public. My commission expires 2-15-1912.'

"A copy of said deed with acknowledgment thereon is attached hereto, and made a part hereof, and marked Exhibit B for identification. Plaintiff alleges that said certificate of acknowledgment was false, in that the said Mary Stone did not personally appear before the said Robert Mee on the said 13th day of April, 1910, or any other time, and that the said Mary Stone did not execute the said deed, nor did she acknowledge to the said Robert Mee that she had executed the same; that the said Robert Mee certified to said acknowledgment as to the identity of the persons appearing before him, and without any investigation of the identity of said persons.

"Fifth. Plaintiff alleges that Mary Stone is the owner of said real estate described in the said deed, but that the said Lula Shields is not interested in the same in any manner whatsoever.

"Sixth. Plaintiff avers that the said Alfred Smith, mentioned as grantee in said deed, was at the time mentioned herein a depositor in the said bank of said plaintiff, and had a sum credited to his account on deposit of more than seven hundred and fifty dollars ($ 750.00); that on or about April 13th, 1910, said Lula Shields delivered said deed to the said plaintiff, and at the same time she exhibited a check, payable to the said Lula Shields, and purported to be signed by the said Alfred Smith, which check was the purported consideration for the execution of the said deed. Plaintiff alleges that the check so exhibited to it as the consideration for said deed was a forgery, and was not executed by the said Alfred Smith; that, by reason of the fact that the said deed in the possession of the said Lula Shields bore certificate of acknowledgment as aforesaid, said plaintiff was deceived and led to believe the check to be genuine; and that, upon the faith of the acknowledgment upon said deed, and relying upon the truth of same, said plaintiff was induced to honor and pay said forged check. Plaintiff states that it has received back two hundred fifty ($ 250.00) dollars of said amount so paid, and that the net amount which it has been damaged by reason of the premises is five hundred dollars ($ 500.00)."

¶2 To this petition defendants filed a general demurrer, which was sustained by the trial court, and plaintiff brings this appeal, by transcript of the record, to reverse said order and judgment. The only question presented is whether or not the petition states facts sufficient to constitute a cause of action in favor of plaintiff and against defendants. It is urged by plaintiff that it was induced to pay the forged check, and was deceived and led to believe that the same was genuine, by reason of the fact that Lula Shields was in possession of and exhibited a deed bearing the certificate of acknowledgment of the notary public, and that it was upon the faith of this acknowledgment that the bank paid the check. The defendants contend, on the other hand, that the making of the false...