Commonwealth v. Haines

97 Pa. 228 | Pa. | 1881

Mr. Justice Mercur

delivered the opinion of the court, May 2d 1881.

_ This action was against a notary public and his sureties on his official bond. The complaint is that he certified to one Abram P. Beecher having personally appeared before him and in due form of law acknowledged a certain indenture of mortgage to be' his act and deed, when in fact the person who appeared before him and made the acknowledgment was not Abram P. Beecher, whereby said plaintiff was injured.

The plaintiff called Abram P. Beecher, who owned the lot described in the mortgage on which the notary made the certificate. He testified that this mortgage was not executed by him, nor by his authority, and that he never made any acknowledgment thereof, or of any mortgage on that property, before the notary, or before any person. The plaintiff testified that, relying on the supposed validity of the mortgage and the record thereof, he bought and paid for the mortgage.

The question to be considered is, What-proof is necessary to make the notary legally liable to one injui’ed by the making of such certificate untrue in fact ?

It is well settled that the certificate of a judge, or a justice of the peace, of the acknowledgment of a deed or mortgage is a judicial act: Withers v. Baird, 7 Watts 227; Jamison v. Jamison, 3 Whart. 457; Heeter v. Glasgow, 29 P. F. Smith 79; Singer Manufacturing Co. v. Rook, 3 Norris 442.

Conceding such to be the effect of a certificate of a judge or justice, yet it was contended on the argument that like effect should not be given to the certificate of a notary. Why not ? He is a public officer commissioned by the governor. He is acting under oath, like other officials in the performance of judicial duties, to “ well and faithfully perform the duties of his office.” The second section of the Act of 10th August 1864, Purd. Dig. 1097, expressly gives power to “ each notary public of this Commonwealth,” inter alia, “ to take and receive the acknowledgment or proof of all deeds, conveyances, mortgages, or other instruments of writing, touching or concerning any lands, tenements or hereditaments situate, lying and being in any part of this state, * * * as fully, to all intents and purposes whatsoever, as any judge of the Supreme Court, or president or associate judge of any of the Courts of Common Pleas, or any alderman or justice of the peace within this Commonwealth.” As, then, a notary is authorized to take the acknowledgment as fully, to all intents and purposes, as a magistrate can do, it follows the same effect should be given to his certificate of acknowledgment. It was so held in Hornbook v. Building Assoc., 7 Norris 64. Whatever officer is authorized to take the acknowledgment, to him is given a judicial duty, and when ho performs it it becomes a judicial act, and has the effect of a record.

This action, then, is to recover damages flowing from the incorrect manner in w'hich the defendant performed an official act. The rule as to the liability of an officer performing a ministerial duty does not apply.

The plaintiff also called and examined the defendant notary. He testified that at the time of putting his hand and seal to the acknowledgment he did not know Abram P. Beecher, did not remember that he had ever seen or heard of him before; had no knowledge of the matter, except what appears on the acknowledgment: frequently some one who-m he knew brought in the person and introduced him; he was satisfied at the time it was all right, but does not remember what took place. Ho added, “ the paper was undoubtedly signed before me. I don’t remember that I did or did not take any precaution to identify the person making the acknowledgment, but I know I must have been satisfied at tbe time.” The substance of his evidence therefore is that while he does not recollect what inquiries or statements were made, yet he knows he must have been satisfied as to the identity of the person, and that it was all right at the time the acknowledgment was taken. No evidence was given conflicting with or impairing this evidence of the defendant. The legal presumption is he acted on reasonable information, and did his full duty. His absence of memory as to the details of what occurred does not destroy that presumption. The burden of proof is on the plaintiff to prove a clear and intentional dereliction of duty. This is neither proved nor averred. A mere mistaken conclusion imposes no legal liability on the defendant. The learned judge was clearly right in ordering a compulsory non-suit and in refusing to take it off. Judgment affirmed.