Grievance Comm. of Bar of New Haven County v. Payne

• Decision Date: 07 November 1941
• Citation: 22 A.2d 623,128 Conn. 325
• Court: Connecticut Supreme Court
• Parties: GRIEVANCE COMMITTEE OF BAR OF NEW HAVEN COUNTY v. PAYNE.

22 A.2d 623

128 Conn. 325

GRIEVANCE COMMITTEE OF BAR OF NEW HAVEN COUNTY

v. PAYNE.

Supreme Court of Errors of Connecticut.

Nov. 7, 1941.

[Copyrighted material omitted.]

Appeal from Superior Court, New Haven County; John Rufus Booth, Judge.

Proceeding in equity by the Grievance Committee of the Bar of New Haven County against Ruth E. Payne to restrain defendant from practice of law in violation of statute, brought to the superior court and tried to the court. Judgment for plaintiff, and defendant appeals.

No error.

Argued before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

George A. Clark, of Meriden, for appellant (defendant).

Joseph B. Morse, of New Haven, for appellee (plaintiff).

JENNINGS, Judge.

The question to be decided is whether the preparation and delivery of certificates of title by the defendant, town clerk of Meriden and not an attorney at law, constituted the practice of law within the meaning of General Statutes, Cum.Sup. 1939, § 1381e. This statute and the pertinent part of General Statutes, Cum.Sup. 1939, § 123 le, relied on by the defendant, are printed below.¹

The facts found are not in dispute. The defendant has not been admitted to the practice of law. She has been town clerk of Meriden for eighteen years. For at least ten years she has searched records, including land, probate and tax assessors' records as well as abstracts made by a former town clerk and has issued certificates of title of Meriden real estate to banks and attorneys. She issued at least two hundred such certificates in 1940.

The defendant's system in preparing such certificates for the savings banks and loan associations was to make a preliminary search of the records and, from the information thus obtained, to compile and deliver to her employers a preliminary memorandum containing the name of the owner of the property involved, the dimensions and boundaries thereof and a list of the incumbrances thereon. From this search she formed an opinion as to the state of the title. Her employers then arranged to remove the incumbrances listed, caused a first mortgage deed to be executed to themselves by the owner and secured from the defendant a formal certificate of title for the purpose of showing that the mortgagor's title was valid and that their mortgage was a first mortgage. For this service the defendant charged and received from two to five dollars in each case. When acting for a savings bank or building and loan association, she was a person approved by it under the provisions of General Statutes, Cum.Sup. 1939, § 1231e, previously quoted.

The following is a fair sample of the certificates issued by the defendant:

"Certificate of Title

"Meriden, Conn., Feb. 19, 1940,

"10.46 a.m.

"After an examination of the Land Records of the Town of Meriden, as indexed, I am of the opinion that by successive conveyances running back to March 11, 1853, Rose L. Bingham is the owner of a certain piece or parcel of land, with all the improvements thereon, situated in said Town and known as No. Street and bounded and described as follows, to wit:

"And I hereby certify to my best knowledge and belief, that the same is free from all encumbrances except building lines if established, zoning restrictions and a mortgage to the First Federal S. & L. Assn. for $4000., recorded in Vol. 251 page 271, and deed restrictions as to size and type of dwelling, resale and signs.

"This examination of title is made, and this certificate delivered with the distinct understanding that the maker of this certificate shall not be liable for any mistake or omission regarding the state or condition of the title of said premises, beyond the amount paid for such examination and this certificate, to wit: $5.00.

"Ruth E. Payne."

No claim was made that the defendant was disqualified from rendering these services by reason of lack of experience or intellectual ability.

The trial court concluded that the conduct of the defendant in preparing and issuing this type of certificate, including, as it did, her opinion as to the validity of the title, constituted an invasion of the field of law and amounted to the practice of law within the meaning of the statute. She was enjoined, under a penalty of $1,000, "from rendering any oral or written opinions as to the validity or invalidity of titles to real estate, or from otherwise practicing law."

The defendant groups her assignments of error under the following three heads: (1) The statute is in effect penal, must be strictly construed and so construed the acts of the defendant above described do not constitute the practice of law; (2) the two statutes quoted must be read together and the requirement of the latter that certain banks procure a "certificate of title issued by some person approved by such * * bank" indicates that there was no intention to restrict the "person" to attorneys; (3) there was error in a ruling on evidence.

The treatment of the first question by the parties permits a narrowing of the issue. The plaintiff claims and the defendant does not deny that the issuance of formal written certificates of title containing the opinion of the writer concerning their validity constitutes the practice of law as that term is ordinarily used. The defendant claims and the plaintiff does not deny that the statute is penal in effect and should be strictly construed. The first claim of the defendant as stated in her brief is that, applying the rule of strict construction, "the act of issuing certificates of title does not constitute the practice of law within the meaning or intendment of any of the general provisions of General Statutes, Cum.Sup.1939, § 1381e, standing alone and unqualified by any other statutory provision." As explained in oral argument, the contention is that a bare injunction not to "practice law" is too general to support the judgment in this case.

Attempts to define the practice of law have not been particularly successful. The reason for this is the broad field covered. The more practical approach is to consider each state of facts and determine whether it falls within the fair intendment of the term. Detroit Bar Ass'n v. Union Guardian Trust Co., 282 Mich. 216, 220, 276 N.W. 365; 41 Yale L.J. 69, 74.

We may well take judicial notice of the fact that the law of real property constitutes one of the largest and most important subjects in the whole realm of law. The examination of titles and the determination of their validity is highly technical and often demands the entire time and study of a specialist. An error committed may result in great financial loss. The defendant did not furnish a certificate of title as a favor to a friend. She furnished them to banks and attorneys, over a period of ten years, for a consideration and in large numbers.

The rule of strict construction requires that no act of the defendant shall be held to violate the prohibition of this statute "unless it falls within the fair import of its language." State v. Penner, 85 Conn. 481, 484, 83 A. 625. The purpose of the rule is not to enable the guilty to escape punishment through a technicality, but to provide a precise definition of forbidden acts. State v. Faro, 118 Conn. 267, 274, 171 A. 660. The intention of the legislature is the goal to be sought. Rawson v. State, 19 Conn. 292, 299. This is to be ascertained from the language used. Lee Rros. Furniture Co. v. Cram, 63 Conn. 433, 438, 28 A. 540. The essential purposes of the act are an important aid to interpretation. Conners v. New Haven, 101 Conn. 191, 198, 125 A. 375.

It is unnecessary to analyze the statute in great detail. Prior to 1933 the prohibition of the statute was primarily directed against the appearance in court by...