Norton v. Kumpe
| Decision Date | 19 April 1899 |
| Citation | 121 Ala. 446,25 So. 841 |
| Parties | NORTON v. KUMPE ET AL. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Lawrence county; H. C. Speake, Judge.
Action by T. H. Norton against J. C. Kumpe and others on an official bond. From a judgment in favor of defendants, plaintiff appealed. Reversed.
The complaint, as amended, averred the following facts: James C Kumpe was elected judge of probate of Lawrence county, Ala in August, 1886, and qualified and took upon himself the duties of the office, which he continued to exercise until his re-election in 1892. Before entering upon the duties of the office after his election in 1886, he executed a bond conditioned for the faithful performance of the duties of his office, with the other defendants in this case as sureties thereon. On February 28, 1887 (Acts 1886-87, p. 661), an act of the general assembly was approved, which required the probate judge of Lawrence county "to prepare and keep general, direct and reversed index of the records in his office, of all deeds and mortgages of lands or any estate or interest therein." On April 6, 1881, Nellie Dickson, who owned lands situated in Lawrence county, executed, with her husband, a mortgage upon said lands to one Moore, which was filed for record in the office of the judge of probate of Lawrence county, and recorded in Mortgage Record No. 11. Afterwards, in December, 1888, Nellie Dickson and Barton Dickson sold to the plaintiff, T. H. Norton, the lands which they had previously mortgaged to Moore. Subsequent to this sale, the note to secure which the mortgage was given not being paid, the lands were sold under said mortgage, and Norton was dispossessed of them by the purchaser at said sale, and said lands became wholly lost to the plaintiff. The plaintiff then alleged in said complaint that prior to the purchase of said lands from Nellie Dickson in December, 1888 he examined the general, direct, and reversed index which was kept in the office of the judge of probate of Lawrence county, and said index did not disclose the existence of the mortgage on said lands from Nellie Dickson to Moore, and that, thereupon, relying upon said index, which did not disclose any incumbrance upon said lands, he purchased the same, and paid the purchase money. It was then averred that the said J. C. Kumpe, as judge of probate, had not faithfully performed the duties of his office, and had committed a breach of the conditions of his official bond, in that he did not prepare and keep a correct general, direct, and reversed index of the records in his office of all deeds and mortgages of lands, and, further, that he did not enter or have entered upon the general, direct, or reversed index of the records in his office the said mortgage which was executed by Nellie Dickson and her husband to Moore, previous to the purchase and payment for the said lands by the plaintiff, and that by reason of such failure by James C. Kumpe, as judge of probate, the plaintiff was induced to believe that said lands were unincumbered, and he purchased the same and paid the purchase money therefor, and was therefore injured to the extent of the money so paid for said lands. To this complaint the defendants demurred upon many grounds, among which were the following: (1) The complaint fails to show that the mortgage was not indexed in Mortgage Record No. 11, where it is alleged in the first, second, and third counts of said complaint the said mortgage was recorded; (2) because the complaint fails to show that the plaintiff examined all the mortgage records of the probate office to ascertain whether the said property was incumbered, before buying the property described in the complaint; (3) because it is not shown by said complaint that the act omitted to be done was omitted with the intention to injure the plaintiff; (4) because it is shown in said complaint that the mortgage from Nellie Dickson to Moore was recorded in Mortgage Record No. 11 of Lawrence County at the time the plaintiff purchased the lands described in the complaint. The court sustained each of the grounds of demurrer above set out, and overruled the other grounds of demurrer. Among the grounds of demurrer which were overruled was the following: That it is shown by the complaint that the action on the bond was barred by the statute of limitations of six years before the institution of this suit. The plaintiff...
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Bynum v. Barker, No. 1071238 (Ala. 9/18/2009)
...it was indexed by the probate judge, everyone was on notice of its existence. In support of his argument, Bynum cites Norton v. Kumpe, 121 Ala. 446, 25 So. 841 (1898). In Norton, a probate judge was held liable to a person who had purchased property in reliance on a search of the index that......
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Jones v. Buckelew
...his bond is confined only to those persons to whom an official duty is owing, and when such duty to them is being violated. Norton v. Kumpe, 121 Ala. 446, 25 So. 841. statement is probably a correct analysis of the underlying principle, but it does not serve here to exonerate the bond, sinc......
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Heimberger v. Elliot Frog & Switch Co.
...be raised by demurrer. Langan v. Drainage District, 239 Ill. 430, 88 N. E. 182;Gebhart v. Adams, 23 Ill. 397, 76 Am. Dec. 702;Norton v. Kumpe, 121 Ala. 446, 25 South. 841;Gray v. Grand Trunk Western Railway Co., 156 Fed. 736, 84 C. C. A. 392; 25 Cyc. 1396. And this is so even when it appear......
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Bynum v. Barker
...it was indexed by the probate judge, everyone was on notice of its existence. In support of his argument, Bynum cites Norton v. Kumpe, 121 Ala. 446, 25 So. 841 (1898). In Norton, a probate judge was held liable to a person who had purchased property in reliance on a search of the index that......