Kleinpeter v. Castro

SHAW, J.

Defendant Castro was a notary public whose official bond was made by the defendant American Bonding Company of Baltimore. The action was instituted against Castro as principal and American Bonding Company as surety upon this bond to recover damages alleged to have been sustained by plaintiffs as the result of a false certificate of acknowledgment to a deed made by Castro as such notary. Castro was not served with process, his whereabouts being unknown; neither was his testimony produced at the trial.

, Judgment was given in favor of plaintiffs against the bonding company, from which defendant prosecutes this appeal upon the judgment-roll and a bill of exceptions.

The court, among other things, found: That the certificate of the notary was false''and that the true name of the person who signed and acknowledged the deed was other than the name signed thereto.

Says appellant, “upon the sufficiency of the evidence to support these two findings the merits of this appeal depend.”

The deed purported to be a grant of a lot to plaintiffs, and appellant concedes that the person who executed it was not the owner thereof, but that he, whatever his name, so far as the ownership of the property is concerned, was an impostor for the time being personating the true owner of the lot. At the time of the transaction the real estate in question, consisting of lot 13, block 23, Park tract, in Los Angeles, was owned by George A. Peterson, a resident of Oakland, California. In September, 1905, a party unknown to them called at the office of Justice, Moss & Company, real estate agents in Los Angeles, stated that his name was George A. Peterson, that he owned the lot in question and desired to sell it, and showed them a certificate of title to the prop

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erty theretofore obtained by him from the Title Insurance and Trust Company of Los Angeles, together with certain tax receipts which he claimed he had just paid. Negotiations were entered into, as a result of which this firm of agents took an option on the property at the price of $1,100, and soon thereafter effected a sale thereof to plaintiffs for $1,500. This impersonator of the true owner described himself as being a waiter or cook at a hotel in San Pedro, and gave his postoffice address as San Pedro, directing that letters be addressed to a certain postoffi.ee box at that place, and in response to letters so addressed called upon the agents from time to time pending the consummation of the sale. He protested against making the deal through an • escrow and objected to payment of the money by cheek. In making the purchase plaintiffs deposited with the Title Insurance and Trust Company the amount of the purchase price, instructing the company to pay the same upon title to said lot vesting in them. At the same time the real estate agents left with the company for delivery a deed to said lot, wherein plaintiffs were made grantees, which purported to be signed by George A. Peterson, the acknowledgment to which was duly certified by defendant Andrew R. Castro, reciting therein that the person executing the deed was personally known to him. The escrow holder in carrying out the instructions paid to the agents by check $400 and delivered to them a check for the balance of the purchase price of the property payable to the order of George A. Peterson, which check was given to the signer of the deed, who presented the same to the bank on which it was drawn, and, upon being identified by a member of said real estate firm, received payment thereof; since which time, so far as disclosed by the record, his whereabouts have been unknown. The deed described the grantor therein solely as “George A. Peterson, unmarried,’’ and there is no evidence touching the question as to whether the impostor was single or married. George A. Peterson, the owner of the lot, did not sign or acknowledge the deed. There is no direct evidence showing when or how Castro met the impostor, though the members of the firm of Justice, Moss & Company testified that his office was near theirs and it was their custom to send him notarial work. Upon discovery of the fraud, some two years afterward, search and