Skagit State Bank v. Rasmussen

Ringold, A.C.J.

(dissenting)—With a feat of legerdemain, the majority turns a borrower into the agent of the lender with authority to make misrepresentations as to the *190nature of documents which the lender desires the guarantor to sign. This sleight of hand cannot withstand logic. I respectfully dissent and would reverse.

The mere fact that Skagit may have been careless in giving the documents to Flint to obtain Hayton's signature has no bearing on the legal issues. Flint's misrepresentations cannot be attributed to the bank. A guarantor cannot be heard to say when he signs both a promissory note and a mortgage to assist his friends and former business partners in obtaining a loan for $350,000 that he was unaware of the legal consequences. National Bank v. Equity Investors, 81 Wn.2d 886, 912-13, 506 P.2d 20 (1973); Lyall v. DeYoung, 42 Wn. App. 252, 256, 711 P.2d 356 (1985) ("a voluntary signator to a contract cannot resist application of its terms simply by stating ignorance of its contents"). Hayton does not present any basis for excusing his failure to read the documents which he was signing, or to justify reliance on Flint's representations.11

Whether the bank is entitled to the mortgage lien upon Hayton's one-third interest is another matter. The evidence indicates that though he signed the mortgage of the Bulb Farm in favor of Skagit, it was outside the presence of the notary public, contrary to the assertion in the jurat. The notary did nothing to verify Hayton's signature and the trial court found that the acknowledgment was false. The concerns expressed by the Supreme Court in Werner v. Werner, 84 Wn.2d 360, 366, 526 P.2d 370 (1974) should be *191reemphasized:

As public officers, notaries enjoy a unique status within our legal system as the notarial seal is a mandatory legal prerequisite to the valid execution of many documents. In an age of burgeoning land sales, the notarial function has become the keystone of real estate transactions. While in many instances the acknowledgement is affixed perfunctorily, the presence of the jurat serves to assure the grantees that the signatures of unknown and often unseen grantors are bona fide. As stated by John Wig-more in 1928:

The notary's certificate of acknowledgment of a deed is the pillar of our property rights. All titles depend on official records; and all official records depend on the notary's certificate of acknowledgment. And these pillars of property become a treacherous support when they are permitted with forgery. A practice which permits forgery is as dangerous in policy as it is unsound in principle.

Wigmore, Notaries Who Undermine Our Property System, 22 Ill. L. Rev. 748, 749 (1928).

(Footnote omitted).

The bank's agent violated the obligation of a notary public.12 I would, therefore, exclude Hayton's one-third of the bulb farm from the mortgage lien.

Review granted by Supreme Court June 3, 1986.

Finding of fact 21 states:

"Robert Hayton admits that he signed the documents, but testified that he signed without reading them. Hayton signed the documents at his farm as a result of representations made to him by his good friend and long-time acquaintance and business partner Flint to the effect that Hayton's signature on these documents was necessary in order to allow Flint and Rasmussen to pledge their two-thirds (%) interest in the property as security for the SBA loan to Snow Goose Produce, Inc. This was Flint's understanding of the purpose and legal effect of the documents, based upon the explanations given to him by officers or agents of Skagit State Bank, and Flint so testified. Flint picked up all of the papers at the office of Skagit State Bank and delivered them to Hayton at his farm for signature." (Italics mine.)

"The role of the notary public is of great importance in the validation of the signatories to various legal documents. The abundance of Washington statutes which incorporate the notarial function are evidence of the importance of the jurat.” Werner, at 366 n.l.