State v. Ryland

Citation163 Mo. 280,63 S.W. 819
PartiesSTATE ex rel. HEITKAMP v. RYLAND et al.
Decision Date11 June 1901
CourtUnited States State Supreme Court of Missouri

1. Under Rev. St. 1889, §§ 2407, 2408, a notary public is authorized to take acknowledgments of deeds. Section 7111 provides that a notary shall give bond, to be sued on by any person injured. Held, that where a notary, by virtue of his office, took an acknowledgment of a deed, such act, even if illegal, fixed the liability of himself and his surety for any resultant injury, as in doing so he professed to act under color of his office.

2. A notary public took an acknowledgment of a mortgage, certifying, as required by law, that the maker thereof was personally known to him to be the same person whose name was subscribed thereto. The mortgage was in fact a forgery executed by one having no interest in the property. The notary testified that he had previously seen the maker of the mortgage in real-estate offices, and once asked as to his name, and was told that it was D. S.; that on the day he certified to the acknowledgment he was introduced to the same party as D. S., which was the name attached to the mortgage; that he did not know where the man lived, or that he ever lived in the state of Illinois, as stated in the mortgage, or that he was the owner of land described therein. Rev. St. 1889, § 2407, prohibits the taking of an acknowledgment unless the person whose name is subscribed to the instrument is known to the officer taking the same as the person so named in the instrument. Held, that the notary was liable for any injuries resulting from the making of the mortgage.

Case certified from St. Louis court of appeals.

Action by the state, on the relation of R. B. Heitkamp, against A. L. Ryland and others. Judgment for defendants, and plaintiff appeals to the St. Louis court of appeals. 72 Mo. App. 468. Case certified, and judgment reversed.

C. A. Schnacke, for appellant. R. J. Delano and John W. Evans, for respondents.

SHERWOOD, J.

This cause has been certified to this court by the St. Louis court of appeals on the ground that the opinion of that court was thought by one of the judges to be in conflict with State v. Meyer, 2 Mo. App. 413. The action is one brought by relator on the official bond of defendant as notary public. The gravamen of the action is the giving by defendant of a false certificate of acknowledgment to a mortgage deed purporting to be acknowledged by one Richard H. Sykes, of Adams county. Ill., when in truth and in fact it was acknowledged by one who assumed to bear his name. Section 7111 of the article entitled "Notaries Public" (2 Rev. St. 1889), provides that every notary shall give bond in a certain sum, and that such bond "may be sued on by any person injured," but does not mention the condition or conditions such bond shall contain. The bond of defendant contained this condition: "Now, if the said Alston L. Ryland shall faithfully perform the duties of said office according to law, then this obligation to be void," etc. The certificate of acknowledgment to the mortgage deed in this cause is the following: "State of Missouri, City of St. Louis — ss.: I, Alston L. Ryland, a notary public in and for said city, in the state aforesaid, do hereby certify that Richard H. Sykes (a single man), personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed, sealed, and delivered the said instrument as his free and voluntary act, for the uses and purposes therein set forth, including the release and waiver of the right of homestead. Given under my hand and notarial seal this seventh day of February, A. D. 1895. My term expires 31st October, 1897. Alston L. Ryland, Notary Public, St. Louis, Mo." The mortgage was recorded in Adams county, Ill., on the day next after its execution, as appears by the following indorsement on said deed: "State of Illinois, Adams Countyss.: No. 8,625. This instrument was filed for record in the recorder's office of Adams county aforesaid on the 8th day of February, A. D. 1895, at 2:40 o'clock p. m., and recorded in Book 59 of R. E. Mortgages, on page 277. Ben Heckle, Recorder, by Edw. Mathes, Deputy."

The history of this litigation is, in substance, the following: The plaintiff's evidence shows that on the 7th day of February, 1895, relator loaned the sum of $600 upon a note and mortgage purported to be executed and acknowledged by one Richard H. Sykes, of Adams county, Ill. The note and mortgage turned out afterwards to have not been made by Richard H. Sykes, of Adams county, Ill., the real owner of the land described in the mortgage, but by some other person. The relator lost his money in consequence thereof. Mr. Holschen, who was agent for relator in the transaction, testified that a person representing himself to be Richard H. Sykes called upon him for a loan upon a farm in Adams county, Ill., and after arranging the preliminaries with this man in relation to the amount, interest, and title, the man called again at a subsequent time, and was told he could have the money. Holschen then asked him if he knew anybody in the city who could identify him, to which he replied that he knew Mr. Ryland, a notary public on Chestnut street. Holschen then said: "All right. If you bring Mr. Ryland in, it is all right." Shortly after that he came back with Ryland, who thereupon introduced this man to Holschen as Mr. Sykes. Holschen, who had drawn up the mortgage, handed the same to Ryland, who thereupon wrote out the acknowledgment, and, having done so, he handed it back to Holschen, who, relying entirely upon the contents of the certificate of acknowledgment, parted with relator's money. On cross-examination he testified that he told this supposed-to-be Sykes that if he could get somebody to identify him, and a certificate of title, he could have the money. Plaintiff introduced one Richard H. Sykes, who testified that he lived in Adams county, Ill., and was the owner of the land described in the mortgage (proved this by showing his title deeds to the land mentioned in the mortgage, which title deeds were dated in 1886, and were duly recorded), and that he owned such land on the 7th day of February, 1895, and still lived on it and owned it, it being his farm, and that on that date he was a married man. He testified that he did not execute either the notes or the mortgage. Defendant Ryland testified that the Richard H. Sykes present in court was not the person whose acknowledgment he took. He testified that he did not know that the person whose acknowledgment he took was of Adams county, Ill., nor could he say where that person was now. Being asked how long he had known that person, the said defendant said: "Some months before February 7th, at various times, I have seen the man walking on Chestnut, sometimes on Tenth street; and one day I was in one of these real-estate offices (I make various calls, frequently call at the real-estate offices), and that man came in and asked a question, and went out, and a party who I think was Dr. James F. Chapman said, `Who is that?' and the answer was, `Why, that is Dick Sykes.' Then I was introduced to him on this occasion, — on the 7th of February, when I certified to the acknowledgment. He was introduced to me by one George F. McLean." He also testified that he did not know at the time, nor does he know now, whether that man was single or married, or where he lived, or that he was living in Adams county, Ill., or that he was the owner of the land described in the mortgage. The George F. McLean who introduced this man Richard H. Sykes to the defendant testified that he had known the man since September, 1893; that he could not tell where he was living; that he would see him at the office of witness occasionally; see him on the street say once a week, and then not for a month; that this man who called himself Richard H. Sykes once listed a piece of property in that name, and wanted to exchange it for a stock of jewelry. This witness does not state that he was ever introduced to Sykes by that name, but that in 1893 a man came into witness' office and listed property to him in the name of Richard H. Sykes. Where he lived, witness did not know, nor whether he was a single man, nor whether he owned the property mortgaged. He was present when defendant took the acknowledgment and the deed in Holschen's office. He (witness) was paid a fee out of the money Holschen paid over, and this fee was paid him for his services in securing the loan in question, and he has not seen the man since, except a day or two after the transaction took place, when he disappeared. And McLean also testified that the Richard H. Sykes then present in court was not the Richard H. Sykes who signed the notes and acknowledged the mortgage deed.

Our statutory sections respecting the taking of an acknowledgment of a deed are as follows:

"Sec. 2407. No acknowledgment of any instrument in writing conveying real estate, or whereby any real estate may be affected, shall be taken, unless the persons offering to make such acknowledgment shall be personally known to at least one judge of the court, or to the officer taking the same, to be the person whose name is subscribed to such instrument as a party thereto, or shall be proved to be such by at least two credible witnesses.

"Sec. 2408. The certificate of acknowledgment shall state the act of acknowledgment, and that the person making the same was personally known to at least one judge of the court, or to the officer granting the certificate, to be the person whose...

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