McLendon v. American Freehold Land Mortg. Co.

• Decision Date: 29 October 1898
• Parties: MCLENDON v. AMERICAN FREEHOLD LAND MORTGAGE CO.
• Court: Alabama Supreme Court

24 So. 721

119 Ala. 518

MCLENDON v. AMERICAN FREEHOLD LAND MORTGAGE CO.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Bullock county; J. W. Foster, Judge.

Action by the American Freehold Land Mortgage Company against M. F McLendon. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought to recover damages for the breach of the conditions of the official bond made by the defendant as a justice of the peace for Bullock county. The breach complained of was that, to a mortgage which was given to the plaintiff by one Grider, and was executed by said Grider and his wife, the defendant, as a justice of the peace certified, in legal form for conveying the homestead, that the wife of Grider appeared before him and acknowledged hersignature, which certificate was false, and in fact the said wife did not appear before the defendant and make said certificate. The substance of the complaint is sufficiently stated in the opinion. The defendant moved the court to strike from the complaint that portion of it which set out the breach as above stated. This motion was overruled, and the defendant duly excepted. Thereupon the defendant demurred to the complaint upon the ground that it was sufficient in law, for the reason that it showed that the defendant in this suit performed a judicial act in making the certificate to the mortgage, and that he is not liable for such act by suit on his bond. This demurrer was overruled, and the defendant duly excepted. The defendant pleaded the general issue, and that he was not indebted to the plaintiff. Demurrers to this plea were sustained, to which ruling the defendant duly excepted. Thereupon the defendant filed an additional special plea, in which he averred that he performed a judicial act in making the certificate to said mortgage, and, if loss or damage accrued to the plaintiff by the said act of the defendant, defendant is not liable for such act by suit on his official bond. The plaintiff demurred to this plea upon the ground that it was not an answer to the plaintiff's complaint. This demurrer was sustained, and the defendant duly excepted. Upon the trial of the cause there were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

D. S Bethune, for appellant.

J. D Norman, for appellee.

COLEMAN J.

The American Freehold Land Mortgage Company sued the defendant for a breach of his official bond as a justice of the peace. The complaint shows that one Grider, desiring to borrow money from the plaintiff, executed a mortgage to plaintiff, to secure the loan, upon lands which embraced the homestead that the defendant, as justice of the peace, certified, in legal form for conveying the homestead, that the wife of Grider appeared before him and acknowledged her signature; that in fact the said wife of Grider never appeared before, or in the presence of, the said justice of the peace, and neither signed nor made any acknowledgment. The facts were admitted to be true, and there were verdict and judgment for...