Smith v. Maginnis , 75 Ark. 472 ( 1905 )

Riddick, J.,

(after stating the facts.) This is an appeal from a judgment against the sureties on the bond of a notary public. The complaint alleges that the plaintiff, relying upon certain certificates attached to certain affidavits by the defendant Robert Pearl, as notary public, • purchased certain additional homestead rights, but that, by reason of the falsity of the certificates of the notary public, and the fact that the parties named did not appear before him as certified by him, plaintiff was imposed upon, and obtained no rights by reason of said purchases. Now, while plaintiff alleges that the certificate of the notary that the parties named appeared before him in person was false, he does not allege that the parties from whom he purchased did not in fact own the additional homestead rights which he purchased of them. If these parties owned the homestead rights that they sold to plaintiff, then, even though the the affidavits providing such ownership were never- made, and the certificates to that effect were false, still plaintiff was only damaged the amount required to get up new affidavits to prove the claims; for the fact that such affidavits to which the notary certified were never made, and the certificates to that effect were false, does not show that the parties from whom he purchased did not own the homestead claims they sold or affect the validity of such sale, and does not show that plaintiff was injured by the false certificate. We think that the complaint is defective in this respect, and that it is not definite and certain enough as to the parties from whom plaintiff purchased, or as to whether those parties in fact owned the claims that they sold the plaintiff, or as to how plaintiff was injured by the false certificate.

But, as the plaintiff no doubt intended to allege that the parties from whom he purchased did not own any right to additional homestead entries given by the statute to certain soldiers and sailors of the United States, and that he obtained nothing by his purchase, we now proceed to consider whether the fact that the notary public falsely certified that these parties had made affidavits to such ownership was the proximate cause of his injury. The purpose of these affidavits, showing that the soldier was entitled to an additional homestead entry, and showing that such right had been duly assigned, was not to enable the soldier or his assignee to sell this right, but to establish that right to the satisfaction of the officers of the United States land office, so that the application of the soldier, or his assignee, for additional homestead entry might be approved by such officers. It did not necessarily or naturally follow, because the notary made a false certificate that certain parties had appeared before him and made affidavit that they were entitled as soldiers to such additional homestead rights, that plaintiff would purchase such rights of them, or, if he made such purchase, that he would rely entirely upon the affidavit purporting to have been made before the notary. As before stated, the ostensible purpose of the affidavit was not to enable the soldier or his assignee to sell the homestead right, but to establish such right to the satisfaction of the Government. Though the plaintiff may have relied upon the affidavit and the certificate of the notary public in making his purchase, still such certificate was not in law the proximate cause of his injury. The proximate cause of his injury was the act of the party who sold him homestead rights which he did not own, not the negligence of the notary in certifying that such party had sworn that he was the owner of the right. Oakland Savings Bank v. Murfey, 68 Cal. 459; Wyllis v. Haun, 47 Iowa, 614; Doran v. Butler, 74 Mich. 643; Hatton v. Holmes, 97 Cal. 208; Henderson v. Smith, 26 W. Va. 829, 53 Am. Rep. 139.

If the false certificate had been attached to a deed conveying land to plaintiff, and upon which plaintiff relied in paying for the land,.a different question would be presented; but the false certificate was not attached to ány instrument purporting to convey title to plaintiff, and he relied on it at his peril. For instance, if A brings an action against B, alleging that B has made a written contract to convey him land owned by B, and that the consideration has been paid, and files depositions, duly authenticated by an officer, tending to support the allegations of the complaint, and afterwards C, influenced by these depositions, purchases the right of A, and it turns out on the trial that some or all of these depositions are invalid for the reason that the witness, was not in fact sworn as certified by the officer, the sureties on the official bond of such officer are not liable to C for any loss caused by such purchase, for 'the reason that the officer did not make the certificate for C, or to influence his conduct. It was a matter of negligence on the part of C to purchase land from A that he did not own, simply because some one had made a deposition, to that effect, and this negligence, together with the fraud of the party who sold him the land, and not the certificate, was the direct cause of his injury.

The same reasons apply in this case, and we are of the opinion that the complaint does not show that the sureties on the bond of the notary are liable in damages to the plaintiff for the act complained of.

In a former opinion delivered in this case, we held that the answer set up a valid defense- against the complaint, but a motion for rehearing and a brief in support of the same was filed by the counsel for the plaintiff. After consideration of the same, we feel some doubt as to the correctness of our former opinion on that point; but as the conclusion to which we have arrived, that the complaint does not state facts sufficient to constitute a cause of action against the sureties, disposes of the case, we find_ it unnecessary to discuss the sufficiency of the answer.

Judgment reversed and cause remanded, with order to sustain the demurrer to the complaint, with leave to amend.