Henderson v. Smith

• Decision Date: 28 November 1885
• Citation: 26 W.Va. 829
• Court: West Virginia Supreme Court
• Parties: Josiah Henderson, Adm'r v. W. II. Smith, Jr.

26 W.Va. 829

Josiah Henderson, Adm'r

v.W. II. Smith, Jr.

Supreme Court of Appeals of West Virginia.

Submitted September 11, 1885.

Decided November 28, 1885.

1. The official act of taking and certifying the acknowledgment

and privy examination of a married woman to a deed, whether done by a court, justice or notary, is in the nature of a judicial act; and therefore the officer is not liable in damages for such act, however imperfectly he may perform it, unless he acted from malicious, impure or corrupt motives. (p. 8 7.)

2. Where a notary takes and certifies the acknowledgment and privy

examination of a married woman, but omits from the certificate the wrords; "declared she had willingly executed the same and does not wish to retract it," the certificate is fatally defective; yet, as it is not alleged in the declaration, or proved, that the notary acted maliciously or corruptly, he is not liable in damages to the person injured for the loss occasioned by such invalid certificate. (p, 888.)

B. S. Blair for appellant.

W. L. Cole for appellee.

Snyder, Judge:

Action of trespass on the case brought in the circuit court of Wood county by Josiah Henderson against William II. Smith to recover $1,000.00 damages sustained by the plaintiff by reason of the gross negligence and unskilfulness of the defendant in taking the acknowledgment of a certain trustdeed. The declaration contained three counts to all of which the defendant demurred. The court overruled the demurrer, the defendant pleaded not guilty and also special pleas upon which as well as the plea of not guilty issues were joined. The case was tried by a jury and a verdict found for the defendant, which the plaintiff moved the court to set aside, but the court overruled the motion and, on May 30, 1881, entered judgment for the defendant. During the trial exceptions were taken to certain instructions and rulings of the court, and to review alleged errors in said rulings, the plaintiff obtained this writ of error.

All the evidence is certified, and as there is no conflict in the material parts of it, it may be treated as a certificate of the facts. The substance of the case thus certified is as follows:

The plaintiff, Henderson, having on deposit to his credit in the First National Bank of Parkersburg of which W. N. Chancellor was cashier and the defendant teller, agreed to loan said money to Anton Doerr upon the note of Doerr payable twelve months after date with interest, to be secured by a trust-deed executed by Doerr and wife to K. B. Stephenson, trustee, upon a house and lot in Parkersburg, of which the wife was the owner of the fee. The plaintiff employed said Stephenson who was a practicing attorney at law in Parkersburg to prepare and have said note and trust-deed executed, and directed said Chancellor as cashier of the bank to let Doerr have the money when Stephenson prepared the papers and brought them to the bank signed and executed. Accordingly, on April 5, 1870, Stephenson prepared the note and trust-deed, the note was signed by Doerr and the deed by Doerr and his wife, and then Stephenson took the deed to the defendant, who was then a notary public, and requested him to take and certify the acknowledgment of Doerr and wife which he did in the words following; "Wood County, West Virginia, to-wit:

I, W. H. Smith, Jr., a notary public within and for the county of Wood and State aforesaid, do hereby certify that Anton Doerr, whose name is signed to the foregoing deed, bearing date the 5th day of April, 1870, personally appeared before me in my county aforesaid and acknowledged the same to be his act and deed. And I do further certify that Delia Doerr, wife of said Anton Doerr, whose name is also signed to the foregoing deed, bearing date the 5th day of April, 1870, personally appeared before me in my county aforesaid, and being examined by me privily and apart from her said husband, and having the deed aforesaid fully explained to her, she, the said Delia Doerr, acknowledged the same to be her act and deed. Given under my hand this 6th day of April, 1870.

W. H. Smith, Notary Public."

The deed was recorded on the same day it was acknowledged, and then taken to Chancellor, and he, as cashier, paid over the money to Doerr, as he was directed by the plaintiff. Chancellor was not certain whether the defendant or Stephenson brought the deed to him when the money was paid over, but from all the circumstances I think it may be safely assumed that it was done by Stephenson, as the defendant never had the note, and it, as well as the deed, must have been delivered to Chancellor before he paid over the money. The plaintiff was not in Parkersburg at the time the deed was executed and the money paid over. When the note became due Doerr was insolvent, the trust-deed was declared by a decree of the circuit court of Wood county, void as to Doerr's wife on account of the defective acknowledgment and certificate aforesaid, and by reason thereof the plaintiff lost the greater part of the said $1,000.00.

The question presented by this case is the extent of the liability of a notary public tor taking and certifying a defective acknowledgment and privy examination of a married woman to a deed. The question is one of great importance and is of first impression in this State. In fact there are but very few cases, so far as I can find anywhere, on this particular question. The law seems to be well settled, that a notary who fails to make a protest of negotiable paper when it is required, or who neglects to give proper notice to the parties to be charged in case of dishonor, will be unquestionably liable for the loss occasioned thereby. In such matters he is regarded as standing in precisely the same position as any other agent who may be employed about a particular business, and will be held responsible for his negligence and mistakes when loss is occasioned thereby to the party employing him. Marston v. Bank, 10 Ala, 284; Allan v. Merchants' Bank, 22 Wend. 215; Warren Bank v. Barker, 8 Gray 221; Bowling v. Arthur, 34 Miss. 41; Dorchester Bank, $c. v. New England Bank, 1 Gush. 177.

It was held, however, in Commercial Bank v. Varnum, 49 N. Y. 269, that where a notary is directed to protest a bill on the wrong day by a bank which employs him for that purpose, he is not presumed to be a lawyer who is to revise the decision of his employer as to the character of the bill, and he cannot be held liable for following his instructions.

Proffatt, in his work on Notaries, see. 64, says: "Notaries are requied to give bond in a majority of our States, for the true and faithful discharge of their duties. The question will arise as to the nature and extent of this guarantee, and as to what particular acts or ommissions it provides against. Does it insure one against the unskillfulness or incapacity of the notary in the discharge of his official acts, or does it merely assure against his negligence? There can be no questeon whatever that it does give a guarantee against his negligence, for it could hardly be maintained that he discharges his duties faithfully when he is guilty of negligence in his official acts; but it is quite a different question whether he can be held liable on his official bond for incapacity or mistake, when he acts in good faith to the best of his ability. There is no doubt, if he assumes to act in a given case as one posessing the requisite ability or skill, he can be held as any other agent, tor any loss by reason of his incapacity, but then it can hardly be said he is guilty of unfaithfulness. For instance, suppose, in taking an acknowledgment, he has put before him, as is frequently the case, a certificate drawn by an attorney of one of the parties, and that he duly attests it with his signature and official seal, and that afterward it turns out the certificate is invalid for some ommission or informality, and loss is sustained thereby, is he liable on his official bond for the damages thus occasioned? We think this would depend on the nature of the ommission, as whether he omitted to certify to a fact to which he must certify as having personal cognizance. A case in California illustrates the position laid down above, and perhaps holds the notary to a stricter liability than would be the case elsewhere; but it was based on the statute which provided ' for any misconduct or neglect of duty in any of the cases in which any notary public appointed under the authority of this State, is authorized to act * * * he shall be liable on his official bond to the parties injured thereby for all damages sustained.' In this case the notary took the acknowledgment of a mortgage, and omitted to state in his certificate, as required by the statute, that the party acknowledging it was kown to him, or was identified by the testimony of a witness examined for that purpose. * * * The mortgage thus recorded was held insufficient to give notice to a subsequent purchaser, and the result was that the party lost the security of his debt, as the mortgager was insolvent. The notary was held liable on his official bond for the amount of the debt and interest."

In this State notaries are appointed by the governor to hold thier offices during good behavior. They are required to take the oath of office and give bond in the penalty of not less than $250.00, nor more than $1,000.00, "for the faithful discharge of their duties, and for accounting and paying over as required by law all money which may come to their hands by virtue of the said office." They are also authorized to take the "acknowledgments of deeds and other writings, and the privy examination of married women respecting the same," and they are authorized to charge the fees lor their services, chaps. 10 and 51 Code; ch. 4 Acts 1881, and ch. 20 Acts 1882.

By the common law, a married woman could not, by joining her husband in a deed, bar herself or those claiming under her of her own estate. In process of time, however, fines and...