NEW ENGLAND BOND AND MORTGAGE COMPANY vs. LESLIE N. BROCK.

WAIT, J. This case was heard in the Superior Court on demurrer. The judge sustained the demurrer to the first count, overruled it to the second, and reported the case, before further proceedings in the trial court, upon the declaration, the demurrer, the order overruling the demurrer to the second count and the defendant's appeal. No contention is made that there was error in the ruling with regard to the first count.

The second count, in substance, alleges that, on May 2, 1928, the defendant was a notary public duly appointed; that it was his duty in taking acknowledgments of documents executed before him and in certifying them to use due care in ascertaining that the person signing and acknowledging such documents was in fact the person purporting to sign and acknowledge them; that, on that day, in disregard of that duty, he signed a certificate that Nehemias Gorin had personally appeared before him and acknowledged a document purporting to be a discharge of a mortgage held by said Gorin to be his free act and deed; that he so signed in ignorance whether or not the person purporting to acknowledge before him was in fact Nehemias Gorin and without taking steps to ascertain his identity, and without exercising due care in the discharge of his functions as a notary public; that the document was not in fact signed by Nehemias Gorin and that the person appearing before him was some person unknown representing himself to be said Gorin; that in reliance upon the said alleged discharge of Gorin's mortgage and upon the defendant's certificate of acknowledgment, the plaintiff advanced $8,000 on the security of a mortgage of the land referred to in the alleged discharge, in the full belief that

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the mortgage was a first mortgage "by reason of the prior mortgage held by the said Gorin having been discharged by the said document certified to by the defendant"; that the plaintiff used due care in examining the alleged discharge and acknowledgment and in relying upon the certificate of the defendant as a notary public before it advanced its money; and that by reason of said negligence of the defendant the plaintiff has suffered great loss.

There are no allegations of a duty to take acknowledgments unless possibly by implication from the allegation that the defendant was a notary public; nor that the person purporting to acknowledge was not in fact the person who had signed the document purporting to be a release by Gorin; nor of any acts constituting due care other than looking at the discharge and the certificate of acknowledgment; nor of any facts showing loss to the plaintiff.

If we pass over these serious objections to the validity of the count, Warren Bank v. Parker, 8 Gray, 221, Carney v. Proctor, 237 Mass. 203, 206, there remains the fatal defect that it fails to set out any facts showing a relation between the defendant and the plaintiff out of which any duty toward the plaintiff on the part of the defendant arose. There was no contractual relation imposing a duty to use care. There was no duty imposed by law, and so no liability in tort, Bergeron v. Forest, 233 Mass. 392, 399, unless we are to decide that our law imposes upon persons authorized to take acknowledgments a duty toward every one who later relies upon the accuracy of the certificate.

Whatever may be the law elsewhere under statutes and conditions differing from our own, we are unable to find justification for such a decision in the law of Massachusetts. Here, as was stated in O'Neil v. Webster, 150 Mass. 572, 573, "The only use of the certificate of acknowledgment of a deed by a grantor is to entitle it to be recorded." This is borne out by the decisions in Pidge v. Tyler, 4 Mass. 541, Shaw v. Poor, 6 Pick. 86, Learned v. Riley, 14 Allen, 109, which state fully the history of our law and practice with regard to acknowledgments. Even the record, though prima facie evidence of execution of a deed, is not conclusive.

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O'Neil v. Webster, supra. The proceedings before a magistrate or a court to secure acknowledgment from an unwilling or neglectful or absent grantor, in the event that a document requiring record is not acknowledged, are not to determine the validity of the document but merely to authorize it to be recorded. See Report of the Commissioners on the Revised Statutes (1834) c. 59, § 15. The duty imposed by law is only a duty to the register of deeds, or recording officer. Compare Houseman v. Girard Mutual Building & Loan Association, 81 Penn. St. 256. The duty is similar to that imposed on a sheriff in the execution of writs and processes, where it is held that his liability does not extend beyond the parties to the suit, although a person later relying upon the action may have been injured through a neglect by himself or his deputies. Harrington v. Ward, 9 Mass. 251. Compare Robertson v. Fleming, 4 Macq. H. of L. Cas. (Sc.) 167.

In the early case, Catlin v. Ware, 9 Mass. 218, it was held that acknowledgment by the husband alone was enough to secure record of a deed which conveyed the wife's dower, thus indicating that the purpose of the law was not to inform the world with regard to the validity of the instrument, but to entitle it to record. The absence of acknowledgment by the grantor did not deprive the instrument of binding force upon the world. It was the absence of record which had that effect. Invalidity of the acknowledgment destroyed the validity of the record; but neither acknowledgment nor record gives validity to an invalid instrument.

Although since the last day of October, 1640, acknowledgments have been required by law, no statutory form was provided here until St. 1894, c. 253, enacted that either the forms then in use in the State might be used, or forms intended to be uniform with the laws of other States and therein set out. The common form then and since used in Massachusetts recites that X "personally appeared before me [the person taking the acknowledgment] and acknowledged the foregoing instrument to be his free act and deed." The statutory form recites after "personally appeared,"

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"A B . . . to me known to be the person . . . described in and who executed the foregoing instrument, and acknowledged that he . . . executed the same as his . . . free act and deed." There is an implication of duty-in the second form that is absent from the first; but, as the statute permits the use of either, it can not be said that the implication is controlling. A change in the law is ordinarily not to be made by implication. The declaration makes no allegation with regard to the form of certificate signed by the defendant.

The position we take is strengthened by the decision in Hunnewell v. Duxbury, 154 Mass. 286, which held that an individual could not maintain an action against directors of a foreign corporation for fraudulent representations made by them in a certificate filed in accord with a statute which required the certificate as a condition of doing business in this Commonwealth, on the ground that the certificate was not communicated by the defendant to the public or to the plaintiff. There is no allegation alleging any communication of the certificate here in question by the defendant to the plaintiff. It is further reinforced by analogy to the principle underlying the decision in Lebourdais v. Vitrified Wheel Co. 194 Mass. 341, and the cases which have followed it. The absence of duty to the plaintiff was recognized in Savings Bank v. Ward, 100 U. S. 195, where it was held that an attorney at law employed by a client to search a title could not be held liable for negligence in the search to a bank which had made a loan to the client in reliance upon the certificate when shown to it in the application for the loan. See also Robins Dry Dock & Repair Co. v. Flint, 275 U. S. 303, 309. German Alliance Ins. Co. v. Home Water Supply Co. 226 U. S. 220, 230. See LeLievre v. Gould, [1893] 1 Q. B. 491. A case directly in point though not binding as authority is Ware v. Brown, 2 Bond. (U. S. C. C.) 267.

It follows that the judge was in error. The order overruling the demurrer to the second count should be reversed and order be entered sustaining the demurrer.

So ordered.