111 Ga. 374 | Ga. | 1900
The plaintiff in error instituted an action against the administrator of Strong and the sureties upon his official bond as clerk of the superior court of Fulton county. It is alleged that, having been elected clerk, Strong, with certain defendants named as sureties, made and executed the official bond required to be given by all clerks of the superior court, by which said principal and his sureties were bound in the sum of three thousand dollars, subject to a condition named in said bond, as follows: “.The condition of the above obligation is such that, whereas the above bound Cicero H. Strong was, on the 5th of Jan’y, 1887, duly and legally elected clerk of the superior court in and for said county of Fulton for the term of two years: Now, should the said Cicero H. Strong faithfully discharge the duties of said office of clerk of the superior court in and for said county during the time he continues therein or discharges any of the duties thereof, then the above bond to be void; else to be in full force.” It is alleged that at the,time Strong entered upon the duties of his office as clerk, there was of record in his office a mortgage from Knapp to McWilliams, dated January 2, 1884, and recorded February 25, 1884, on certain real estate belonging to Knapp in Fulton county, which mortgage was executed to secure a note of even date therewith, to be due one year after date, for $1,200, with interest and attorney’s fees. It was further alleged that on the 30th day of March, 1887, Strong,.as clerk, made upon the record of said mortgage an entry of which the following is a copy: “The
1. The question raised invokes.a decision on the liability of a principal and sureties of the official bond of a clerk of the superior court, whose duty it is to record, in suitable books to be kept in his office, all mortgages, deeds, etc., which by law are required or entitled to be recorded under the statutes regulating the recordation of such instruments. It is provided by section 256 of the Political Code that every official bond is obligatory on the principal and sureties, “ for the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by his failure to perform, or by the improper or neglectful performance of those duties imposed by law.” Construing this section it was ruled in Markham v. Ross, 73 Ga. 105, that if a plaintiff has been injured and suffered damage in consequence of the neglect of the clerk of the superior court, he may sue him personally, or upon his official bond, and recover the amount of the damage sustained. It is alleged in the petition that the cancellation referred to was a wrongful entrjr which should not have been made. In effect this means that the act of entering the cancellation was wrongful, for which the plaintiff was entitled to recover. Even if it be assumed that the entry was wrongful, a recovery would not follow under this provision of the code, because by it the right of action accrues only for “a wrongful act com-' mitted under color of his office.” Clearly, the allegations of the petition do not make a case against the clerk for recovery because of any act done under the “color of office,” which is defined to be “a pretence of official right to do an act, made by one who has no such right.” Bouvier’s Law D., “Color of Office.”' See also Griffiths v. Hardenbergh, 41 N. Y. 464. In order to ascertain whether, under the facts alleged in the petition, any liability on the part of the defendant exists, it is necessary, under the further provisions of this section of the code, to ascertain whether a record of a forged cancellation is either a failure to perform an official duty, or is the improper or neglectful performance of a duty imposed by law. It is worthy of notice that the petition does not allege that at the time of the entry the clerk knew that the cancellation was forged. Had
It could hardlj’ be doubted that a cancellation claimed to have been made by authority of this section, -when the original mortgage was not presented, would be such an improper performance of the duty imposed upon the clerk by its provisions as 'would entitle a person injured thereby to-have redress through the official bond of the clerk. Indeed this has been distinctly decided. In the case of Appleby v. State, 45 N. J. L. 161, it appeared that the clerk, who was the custodian of the registry of mortgages, without having produced to him the original mortgage canceled, or with a receipt thereon signed by the mortgagee, entered upon the registry of a mortgage a minute of payment and redemption, when the statute required the production of the mortgage canceled, or a receipt signed by the mortgagee entered thereon; and the Supreme Court of New Jersey
The same doctrine is so universally recognized that no good purpose could be subserved by a further elaboration of this rule, especially as it is clear, from the nature of the duties imposed upon the clerk of the superior court as a recorder of deeds and mortgages, that his acts are ministerial and not judicial. It is true that in the exercise of such duties his official discretion is often involved, but this does not make the discharge of such duties judicial. The act is not necessarily taken out of the class of ministerial duties because the officer who performs it is required to judge whether the contingency has occurred in which he is authorized or obliged to do the act. Throop, Pub. Off. § 538. In the case of Grider v. Tally, 77 Ala. 422, Judge Clopton says that such is not the judgment or discretion which is an essential element of judicial action. In the case of Spain v. Clements, 63 Ga. 788, Mr. Justice Jackson, in delivering the opinion of the court, said: “It lias been argued that the exercise of his official duty in receiving and filing this bond is judicial, and therefore the clerk and sureties are not liable. The clerk is a ministerial officer. Every ministerial officer in such matters as taking bonds must to a certain extent
While agreeing entirely with the principle ruled in the Appleby case, supra, it must be recognized that the fact of the presentation of the original mortgage at the time that the entry of cancellation is made is important in determining whether the officer was negligent in entering the cancellation. The mortgagee, whose rights would ordinarily be alone affected by a false entry of cancellation, was entitled to the possession of the mortgage. Presumably, he would not deliver it to the mortgagor without payment of the debt which it was made to secure; and so much weight is attached to such a possession, that in the case of Heyder v. Building & Loan Association, 42 N. J. Eq. 403, it was ruled that if a mortgagee permits the mortgagor to retain the mortgage, and the latter fraudulently cancels it of record, the mortgagee can not enforce it as against a subsequent bona fide grantee; and this ruling was made on a comparison of the equities between the bona fide-purchaser without notice and the mortgagee who negligently permitted the mortgagor to have possession of the mortgage. While construing the law which imposes official duties upon the clerk to hold him and the sureties on his official bond to a rigid accountability for any act of negligence in the record of instruments by which the rights of third parties are infringed, and while we think these duties must be exercised with cai’e and diligence, we know of no rule which imposes on a clerk liability for the record of an instrument which is apparently genuine, and accompanied with evidence of a high character that it was proper that such record should be made. There are but few cases which adjudicate the direct question in issue, and these rule that the clerk under
Judgment-affirmed.