Greeninger v. New Amsterdam Casualty Co.

California Court of Appeal Jul 19, 1957 No. Civ. 17316Published

Before: Draper

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Holding. The court held that a grantor may maintain an action against a notary public and their surety for damages resulting from a false certificate of acknowledgment if the plaintiff can prove the false certificate was a proximate cause of their loss. Whether the false acknowledgment proximately caused the injury is a question of fact to be determined at trial rather than a matter of law to be decided on demurrer.

Issues

Whether a grantor can maintain a cause of action against a notary public for a false certificate of acknowledgment without showing personal reliance on the certificate.
Whether a false certificate of acknowledgment can be a proximate cause of injury to a grantor when the property is subsequently sold to bona fide purchasers.

Disposition. reversed

Quotations verified verbatim against the opinion

“Logically, the requirement should be only that the false certificate is a proximate cause of plaintiff’s loss.”

“To sustain the general demurrer here, it would be necessary to hold, as a matter of law, that the false acknowledgment could not be a proximate cause of the injury resulting to appellant from the sale to innocent third parties.”

“As indicated, this is a question of fact, and not of law.”

[646]

DRAPER, J.

Demurrer to amended complaint was sustained without leave to amend. Plaintiff appeals from the resulting judgment.

The amended complaint alleged: Appellant is executrix of the will of Roland C. Greeninger, deceased. Ten days before his death, decedent signed a deed to one Ruelle and wife. Decedent’s long illness had weakened his mental faculties, and the deed was obtained by the Ruelles by fraud and without consideration. Respondent Connally is a notary public, and respondent corporation is the surety on his official bond. The day after decedent’s signature of the deed, the notary executed and affixed to the deed his certificate that “before me . . . personally appeared Roland C. Greeninger, known to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same. ’ ’ In fact, Greeninger did not appear before the notary and did not acknowledge that he executed the deed. Two days after acknowledgment, the deed was recorded. Thereafter the Ruelles conveyed this property to bona fide purchasers for value. “As a direct and proximate result of said certificate of acknowledgment,” the Ruelles were “enabled to and did convey said real property to said third parties. ...” The Ruelles are unable to respond in damages. The prayer is for $4,000, less than the amount of the notary’s bond. Respondents’ demurrer is general only.

It is not denied that appellant has alleged “official misconduct or neglect of a notary public” for which he and his surety “are liable to the persons injured thereby for all the damages sustained.” (Gov. Code, § 8214.)

The issue argued is that of proximate cause. Respondents cite eases wherein plaintiff was the grantee, and which hold that plaintiff-grantee must show his reliance upon the false acknowledgment. Respondents then argue that like reliance must be shown by any plaintiff claiming to be damaged by a false acknowledgment. Since a grantor does not so rely, they contend that no grantor can have a cause of action based solely upon falsity of an acknowledgment. We cannot accept this view, which is based wholly upon the chance circumstance that the plaintiffs in most of the reported eases on this subject have been the grantees. The statute in no way expresses the limitation for which respondents contend.

Greeninger v. New Amsterdam Casualty Co.

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DRAPER, J.

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