Fogarty v. Finlay

California Supreme Court Jul 1, 1858Published

Before: Terry

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Holding. A notary public is liable on their official bond for damages resulting from gross negligence in failing to properly certify a mortgage acknowledgment, regardless of whether the plaintiff was aware of the defect.

Issues

Whether a notary public is liable on their official bond for damages caused by a defective certificate of acknowledgment.
Whether a plaintiff's failure to detect a notary's error in a certificate of acknowledgment bars recovery for damages.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“It is clear, that in this case defendant Finlay did not faithfully perform his duty, but was guilty of gross and culpable negligence, and he is responsible to the party injured for the damages resulting from this negligence.”

“By accepting the office, he contracted with those who might employ him that he would perform it with integrity, diligence, and skill.”

“The statute gave him a remedy upon the bond of the officer for the damages sustained by the mal-performance of his duty, and he had the right to rely on this remedy.”

Synopsis

Where the condition of the bond of a notary public is, that he will “well and truly perform and discharge the duties of a notary public, according to lawHeld, that this clause embraces every act which he is authorized or required by law to do in virtue of his office.

Where a notary public in taking and certifying an acknowledgment to a mortgage, neglected to state in his certificate that the party acknowledging the same was known to him, or was identified by the testimony of a witness examined by him for that purpose : Held, that such notary was guilty of gross and culpable negligence, and is responsible to the party injured for the damages resulting from such negligence.

The purpose of a certificate of acknowledgment is, to entitle the deed to be recorded, and to be admitted in evidence, without further proof. Such a certificate is utterly worthless, for either purpose.

Such neglect on the part of the notary is not excused by the fact that the certificate (which was a printed one, with blanks,) had been partially filled by the attorney of the grantee.

If the notary read the certificate before signing it, the omission must have been known to him; if he did not read it, he is equally guilty of negligence.

A notary holds himself out to the world as a person competent to perform the business connected with his office. By accepting the office, and entering upon the discharge of the duties, he contracts with those who employ him that he will perform such duty with integrity, diligence, and skill.

A party employing a notary is not obliged to determine upon the validity or legality of his acts.

Where a mortgaged debt has been lost by such negligence of the notary, the measure of damages is the amount of the debt and interest to be secured by the mortgage.

Terry, C. J., delivered the opinion of the Court Field, J., concurring.

Plaintiff loaned to one Dupuy a sum of money, taking as security a mortgage on a lot in San Francisco. The mortgage was acknowledged by Dupuy, before defendant Finlay, who was a notary public for San Francisco county.

The mortgage used was an ordinary printed form, having a certificate of acknowledgment in blank, in which was inserted, in the hand-writing of one Sanders, who acted in the transaction as attorney for both mortgagor and mortgagee, the name of the mortgagor and the date of the acknowledgment. To this certificate the notary affixed his signature and seal, omitting to state either that the party acknowledging was known to him, or was identified by the testimony of a witness examined for that purpose.

In consequence of this omission, the record of mortgage was held not to impart notice to subsequent incumbrancers. (See Wolf v. Fogarty, 6 Cal., 224.) Plaintiff’s lien was postponed in favor of a later mortgage, which exhausted the entire property, and Dupuy being insolvent, the debt was lost.

Plaintiff now seeks to recover, on the bond of the notary, the damage occasioned by the negligent and unskillful performance of an official act.

The condition of the bond executed by the defendants is, that Joseph W. Finlay should “ well and truly perform and discharge [245]the duties of a notary public, according to law.” This embraces every act which he is authorized or required by law to do in virtue of his office.

By the “ Act concerning Rotaries Public,” each notary has power to take and certify the acknowledgment or proof of conveyances, and his certificate is made prima facie evidence of the facts therein set forth.

“ For any misconduct or neglect of duty, in any of the cases in which any notary public, appointed under the authority of this State, is authorized to act,” etc., “ he shall be liable on his official bond to the parties injured thereby for all damages sustained.” (Compiled Laws, 903.)

It is clear, that in this case defendant Finlay did not faithfully perform his duty, but was guilty of gross and culpable negligence, and he is responsible to the party injured for the damages resulting from this negligence.

Fogarty v. Finlay

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