that the sale was to be approved and the contract of sale executed by the principal, and not by the broker, are supplied in the instrument before us. Hence it is fair to argue that, these details being present, they tend to show that the purpose was to authorize the broker to bind the contract of sale whenever he could find a purchaser willing to pay the price. The particularity and elaboration with which the terms of sale are recited in the instrument here leave nothing to be supplied by the owner, and point strongly to the conclusion that it was designed by the parties to authorize what was afterwards done by the said real estate company.

There are indeed portions of the instrument in question isolated from the context that would support respondent's contention. For instance, the inducement, "in consideration of securing the services of Laymance Real Estate Company, a corporation, and efforts on its part, and at its expense to obtain for me a purchaser," etc., and, if this had been followed simply by the authorization "to sell," appellant could not prevail.

But, considering the whole of the instrument, it seems to mean nothing less than "I authorize the Laymance Real Estate Company to enter into an executory contract of sale of the property described and upon the terms set out and I promise to execute to the purchaser a good and sufficient deed to said premises." If this is the right construction of the instrument, then there can be no doubt that defendant in his answer and cross-complaint set out sufficient facts to entitle him to a specific performance of the contract. It cannot be held that the contract was not made for his benefit, and therefore he is not entitled to take advantage of it, because it is a question of the authority of the agent to bind the principal. If it had such authority, its act was the act of the principal. "An agent, authorized to sell either real or personal property, may enter into a contract within the terms of his authority, which will bind his principal. This is of the very essence of the authority given, viz., an authority to sell. That he can bind his principal by a formal contract is the doctrine of the books from the earliest law on the subject." Haydock v. Steele, supra. It would hardly be contended that, if the principal directly entered into such a contract, he could repudiate it and successfully resist an action for specific performance, assuming, as appears here, that the contract was fair and reasonable and the consideration just and adequate. We can see no merit, therefore, in respondent's contention that the contract was not made for the benefit of Davis, and hence that it cannot be enforced by him.

But, even if section 1559 of the Civil Code has any application which provides that "a

contract made expressly for the benefit of a third person may be enforced by him at any time before the parties rescind it," it would require no argument to show that, when the owner promises to convey to any purchaser who might be secured, the contract was made for the benefit of such purchaser. It is said, in Chung Kee v. Davidson, 73 Cal. 522, 15 Pac. 100: "It is not necessary that the parties for whose benefit the contract has been made should be named in the contract. It must appear, however, by the direct terms of the contract that it was made for the benefit of such parties."

We cannot agree with the conclusion of the learned trial judge, and the judgment is therefore reversed.

We concur: CHIPMAN, P. J.; HART, J.

(9 Cal. A. 141) HUENE v. CRIBB et al. (Civ. 519.) (Court of Appeal, Second District, California. Sept. 30, 1908.)

1. MORTGAGES (§ 53*)-POWER OF SALE.

Trust deeds, ordinarily, and mortgages may, confer a power of sale.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. § 123; Dec. Dig. § 53.*]

2. PLEADING (8 34*)-CONSTRUCTION AGAINST PLEADER.

A complaint, in a suit to set aside a sale under a trust deed on the ground that no power of sale was given, must allege the fact that no power of sale was given, or it will be presumed that the power was contained in the deed; a pleading being most strongly construed against the pleader.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 66; Dec. Dig. § 34.*]

3. MORTGAGES (§ 345*)-ASSUMPTION OF PAYMENT-CONSIDERATION.

The assumption by a purchaser of property of an incumbrance thereon is a sufficient consideration for the extension of time of payment. [Ed. Note. For other cases, see Mortgages, Dec. Dig. 345.*]

4. MORTGAGES (§ 280*)-SALES-VALIDITY.

Where a purchaser of property incumbered by a trust deed agreed with the creditor secured thereby to assume the obligation in consideration that the time for payment should be extended until the trustee should deliver to the purchaser an abstract of title, the creditor could not without notice arbitrarily declare a default, and a sale under the trust deed in violation of the agreement was void.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. $ 745; Dec. Dig. § 280.*]

5. MORTGAGES (§ 369*)-SALES-ACCOUNTING BY TRUSTEE.

A complaint to set aside a sale under a trust deed, which shows that an excess above the amount due was realized from the sale at which the creditor became a purchaser, sufficiently states facts for an accounting as against the trustee, to which suit the creditor is a proper party.

[Ed. Note.-For other cases, see Mortgages, Cent. D'g. § 1097; Dec. Dig. § 369.*]

terrogatories when the originals were received by the notary when the other deposition was taken; such facts not necessarily rendering the taking of the depositions unfair within Code Civ. Proc. 2033, authorizing the exclusion of depositions in certain cases.

[Ed. Note. For other cases, see Depositions, Dec. Dig. § 92.*]

Appeal from Superior Court, Los Angeles County; W. P. James, Judge.

Action by W. R. Homan against John Wayer and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Affirmed.

Hunsaker & Britt, for appellants. Byron L. Oliver and Grant Jackson, for respondent.

TAGGART, J. This is an action brought to recover from the defendant Wayer, as a notary public, and the defendant corporation, as surety on his notarial bond, the sum of $550, damages alleged to have been sustained by reason of a false and deceptive certificate of acknowledgment made by said notary. Judgment was for plaintiff, and defendants appeal from the judgment and from an order denying their motion for a new trial.

On the 28th day of November, 1903, plaintiff, who was then living in Omaha, Neb., purchased from one J. A. Overholtzer, who was acting under the assumed name of Carl Anderson, five acres of land located in Pasadena, Cal. The transaction took place in Omaha, and Overholtzer as evidence of his title presented an abstract of title made by the Pomona Abstract & Trust Company showing title in the premises vested in Mary E. Griswold and a grant, bargain, and sale deed from Mary E. Griswold to Carl Anderson, dated September 26, 1903. To the latter was attached the certificate of acknowledgment in question, wherein defendant Wayer, as a notary public of Los Angeles county, Cal., certified in the usual form, under date of September 26, 1903, "before me, * personally appeared Mrs. Mary E. Griswold, a widow, known to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that she executed the same." Upon this showing the parties entered into a preliminary contract, and conveyances were executed. Plaintiff made inquiry by mail through parties residing near the premises as to the value of the property, its location, and so forth, and, upon receipt of a certificate of title from the Pomona Abstract & Title Company showing the title regular in accordance with the representations made by Anderson, the deeds were recorded, and plaintiff paid to Anderson $550 cash and executed and delivered a note and mortgage for deferred payment of $500 in accordance with the contract. The person who acknowledged the Griswold-Anderson deed before the defendant Wayer was not Mary E. Griswold, but one

Emma W. Allen, who impersonated Mary E. Griswold in the execution and acknowledgment of that deed. Defendant Wayer does not contend that he knew the woman whom he certified to be Mary E. Griswold. His knowledge of her identity was gained by an introduction from Overholtzer, a man whom he did not know, a reassuring remark or two from this man, and an "oath" administered to the woman herself at the time of taking her acknowledgment. If we were permitted to consider the so-called "oath" of the woman as proof or evidence upon which the notary could base his certificate, it did not establish the things which he is required to know and certify. The essential fact to be known by, or proven to, the notary is that the person making the acknowledgment is the person described in and who executed the instrument. The woman who executed the deed was asked if her name was Mary E. Griswold, and if she was the sole owner of the property. Her name might have been Mary E. Griswold, and she not the person described in the deed. The notary is not required to certify to the ownership of the property (Overacre v. Blake, 82 Cal. 77, 22 Pac. 979; Barnard v. Schuler, 100 Minn. 289, 110 N. W. 966), and this only indirectly bore upon the matter to be certified. The purpose of the certificate is to establish the identity of the grantor and genuineness of the signature to the deed.

Section 1185 of the Civil Code reads: "The acknowledgment of an instrument must not be taken, unless the officer taking it knows, or has satisfactory evidence, on the oath or affirmation of a credible witness, that the person making such acknowledgment is the individual who is described in and who executed the instrument," etc.. Section 1189 provides "substantially" the form of the certificate, which in the respect here important reads: "Personally appeared known to me (or proved to me on the oath of) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same." A certificate of personal knowledge is not justified by swearing the person who executed the instrument or any other person. The statute draws a distinction between those "known" and those "proven to be" the individual described in the instrument. In the former case no taking of testimony and no "satisfactory evidence" is required. It is sufficient that the officer knows. If the officer does not "know," then the law makes it his duty to inform himself by satisfactory evidence on the oath or affirmation of a credible witness. In this event he is called upon to certify by whose oath it was proven to him that the person whose acknowledgment was taken is the person described in the instrument. The witness by whose oath the execution of the instrument is proven, when

98 P.-6

the person executing the instrument is not previously known to the officer, must himself be known to the notary. This is implied by the requirement that the officer shall certify that such person is a credible witness. A person who is not sufficiently known to the notary to authorize the latter to certify to his identity without proof is not sufficiently known to him to be a credible witness to prove either his own or some one else's identity. When the person seeking to have his identity certified does not comply with these rules, the notary is expressly prohibited from taking the acknowledgment at all. When the notary does not obey this statute, he should expect to be held liable. Joost v. Craig, 131 Cal. 509, 63 Pac. 840, 82 Am. St. Rep. 374.

This is not a case where a mistake was made through inadvertence, or one in which due precaution was taken, the statute fully complied with, and still the notary was deceived. It is not within the exception stated in the Joost-Craig Case, but comes clearly within the rule of law declared in the case of State v. Meyer, 2 Mo. App. 413, therein cited. The facts in the Missouri case were much less favorable to the plaintiff than those here. The evidence there showed throughout the transaction a singular disregard, upon the part of the persons relying upon the false certificate, of all the precautions which are ordinarily suggested by experience of men of adult years, and yet a judgment against the notary was affirmed. The court says: "Others may have been guilty of contributory negligence; but, if the careless act done by Meyer (the notary) was necessary to the accomplishment of the loss, there can be little doubt that, in a proper form of action, he alone may be made answerable for the resulting damages." With that case and the case of Oakland Bank v. Murfey, 68 Cal. 455, 9 Pac. 843 (relied upon by appellants), before it, the Supreme Court of this state accepted the Missouri case as authority and distinguished the Oakland Bank Case in the opinion in the Joost-Craig Case. It is apparent, then, that the fact that others have aided in the transaction and contributed to bring about the conditions from which the plaintiff's loss arose does not relieve defendants from liability for the loss of the plaintiff, if the latter relied upon the false certificate when paying out his money. In taking an acknowledgment to a deed, a notary's official services are limited. He certifies to the identity of the grantor named in the instrument, but he has no control over the deed to which his certificate is attached. This must be delivered to the grantee by the grantor, or some one on his behalf, in order to become effective. No official act of the notary in certifying an acknowledgment to a deed can alone result in injury to any one. The deed cannot become the means of defrauding any one until used in some trans

action entirely outside of the official duties of the notary. For this reason the statutory right of action is not dependent upon a showing that the acts of others have not contributed to the injury, or defeated by a showing that they have so contributed, if it appear that the party defrauded relied upon the notary's false certificate.

The terms "proximate cause," "negligence,” and "contributory negligence," as used in appellants' presentation of the case, are somewhat misleading here. No official misconduct or neglect of a notary public in taking or certifying the acknowledgment of a deed could ever be the sole proximate cause of loss or injury to any person, but we cannot for that reason say no recovery can be had for a loss due to a false certificate of acknowledgment under the provisions of section 801 of the Political Code.

The evidence shows, and the court finds, in effect, that plaintiff here did rely upon the false certificate of the defendant. This finding is not affected by the fact that the title of Overholtzer to the land stood in an assumed name. A deed in this name conveyed as good title as if the property had stood in the real name of the party. Wilson v. White, 84 Cal. 239, 24 Pac. 114; Eversdon v. Mayhew, 85 Cal. 1, 21 Pac. 431, 24 Pac. 382. If it be contended that this circumstance put plaintiff upon inquiry, it may be said that, if he had made inquiry as to the identity of the grantee in the Griswold-Anderson deed, he would have discovered that Overholtzer was the man he was dealing with; but he would also have learned that Overholtzer and Anderson were one, and that the title of the land was held in the latter name as was represented to him. Inquiries were made by plaintiff by mail as to the possession, the value, the location, and character of the land. He found the possession to be that of Mrs. Griswold, a widow from Iowa. The misrepresentations made by Anderson relating to matters of value were apparently discounted in the price paid. These did not of themselves suggest anything calling for a further inquiry as to title. The possession of the premises, as disclosed by plaintiff's inquiries, was that of the party in whom the title appeared to be vested by the abstract. This only confirmed the apparent regularity of, and made more effective, the false certificate of the defendant. The evidence sustains the implied finding of the court that plaintiff acted with ordinary business prudence in making inquiry before paying his money to Overholtzer, and justifies the trial court's conclusion that the defendant Wayer's official misconduct was the cause of plaintiff's injury and loss.

Many cases are cited and several quotations from text-writers presented by the appellants to sustain the contention that a public officer is answerable only to the person employing him, or where a certificate is is