MacBride v. Schoen

BARNARD, P. J.

This is an action against a notary and the surety upon her notarial bond to recover damages alleged to have been suffered through the making of a false certificate of acknowledgment. A demurrer to the second amended complaint, filed by the surety, was sustained without leave to amend and from a judgment which followed in favor of the surety, this appeal is taken.

The complaint alleges that the plaintiff is the owner of certain described real property; that she entered into a contract with one Lalor by which she was to receive $5,000 worth of stock of the United States Signal Corporation and $3,000 in cash, in exchange for her own promissory note in favor of Lalor for $8,000, secured by a- deed of trust on the real property described; that she executed and delivered to Lalor the said note and deed of trust, but that she did not acknowledge the execution of the deed of trust; that Lalor never intended to perform and did not perform his part of the agreement; that Lalor presented the deed of trust to the defendant Schoen who attached the usual certificate of acknowledgment thereto; that said acknowledgment is false in that the plaintiff never appeared before the notary; that the defendant Schoen thereupon redelivered the apparently acknowledged deed of trust to Lalor who then assigned an undivided interest in the note and deed of trust to John C. Peyes & Associates, Inc., that this corporation recorded the deed of trust, thereby clouding the plaintiff’s title; that the plaintiff hired attorneys and employees to locate “S. P. Lalor, Earl E. Kain and John C. Feys & Associates, Inc., and to remove said cloud to the plaintiff’s title”; that the plaintiff agreed to pay for these services and thereby incurred an indebtedness of $5,000; that the said attorneys and employees did recover said deed of trust; and that the said sum of $5,000 is a reasonable sum for such services.

In order to recover for the wrongful or negligent act of a notary, it is necessary not only to show that the

[323]

act was wrongful or negligent, but also that it was the proximate cause of the loss or damage claimed to have been suffered by a plaintiff

(Oakland Bank of Savings

v.