38 Ill. App. 428 | Ill. App. Ct. | 1890
This was an action of debt upon the official bond of Arthur T. Bartels, as clerk of the Probate Court of La Salle County, and the sureties thereto, executed in due form of law.
The declaration contains four counts, and sets forth in effect that Bartels was the clerk of the Probate Court of La Salle County, from December, 1882, to December, 1886, duly elected, commissioned and qualified.
That on or about September 28, 1886, one Bavens was employed by a person calling himself ‘‘Alva B. Goodrich,” to obtain for him a loan of §2,500, which was to be secured by his note and a mortgage upon certain real estate in La Salle County, the title to which was then of record in that county, in one Alva B. Goodrich, who then resided in said county thereon. That Bavens obtained the loan of §2,500 of Mrs. Cornelia A. Munson, for whose use this suit is brought.
That a man personating Alva B. Goodrich, executed to Bavens a promissory note for §2,500, payable to Bavens or order, and signed the note “Alva B. Goodrich,” and at the same time, to secure the payment of the same, made, executed and delivered a mortgage to the said Bavens, of the aforesaid real estate, which said note and mortgage Bavens assigned to Mrs. Munson upon receipt of the $2,500, she being in fact the real party in interest. That the mortgage was in fact acknowledged before Arthur T. Bartels as such clerk of such court, and his certificate of such acknowledgment was as follows, viz.:
“ State op Illinois, 1 County of La Salle, J "
I, A. T. Bartels, Clerk of the Probate Court in and for the County and State aforesaid, do hereby certify that Alva B. Goodrich, who is personally known-to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged before me that he signed, sealed and delivered the foregoing instrument as his free and voluntary act and deed for the uses and purposes therein set forth, including the release and waiver of the right of homestead.
Given under my hand and official seal this twenty-eighth day of September, A. D. 1886.
[seal.]
A. T. Bartels,
Clerk of the Probate Court.”
It is further alleged, that the person who in fact signed and acknowledged the said mortgage, was not the “Alva B. Goodrich ” who owned the mortgaged premises, and was not “personally known to Bartels,” and that this certificate to the said mortgage deed attached, in that regard was false and untrue, and that the note and mortgage deed was not signed by “ Alva B. Goodrich;” that his name thereto was a forgery, and was so determined and decreed in certain proceedings in equity in said declaration set forth. Hence it is alleged that Bartels did not faithfully do and perform all the duties of his said office as clerk of the Probate Court of said county, as required by law and the condition of his said bond, and in consequence thereof Mrs. Munson has been injured and damaged by such neglect and misconduct of Bartels, and the money so loaned upon the said mortgage security has .been wholly lost to her.
To this declaration and the several counts thereof, the defendants in error interposed a demurrer, which being sustained by the trial court, the plaintiffs in error abided the counts in their declaration, and upon judgment for defendants in error, for costs, being rendered, this writ of error was prosecuted to reverse that judgment.
We are inclined to the opinion that the declaration is insufficient. It is not alleged in either count thereof, that it was the duty of Arthur P. Bartels as such clerk, to take the acknowledgment of the mortgage deed in question, nor are the facts set up and stated therein, of such a nature or character as that a duty can be inferred therefrom, for the breach of which his sureties would be responsib'e. The condition of the bond is that “ The said Arthur T. Bartels shall well and faithfully do and perform the duties of his said office,” etc. There is no direct averment or allegation in either count of the declaration, that it was a duty imposed by law upon Bartels as clerk of the said court, to take the acknowledgment of deeds, if or are we prepared to hold that the facts as set out in the various counts of the declaration are sufficient in law to constitute a breach of the official bond of Bartels as clerk of the Probate Court of La Salle County, for which his sureties upon the bond are liable.
The duties imposed by law upon the clerk of courts of probate, are clearly set forth and defined in the statute as well as the condition of the bond required by such clerk to be executed for the faithful discharge of those duties. It must be conceded, we think, that the taking of an acknowledgment of a deed or mortgage is not a duty imposed upon the clerks of Probate Courts by such law. it is true that by the provisions of Sec. 21, Chap. 30, B. S., concerning “ conveyances,” clerks of the Probate Courts are among others designated and empowered to take acknowledgments of conveyances as therein provided. This simply authorizes certain officials created under other legislative enactments for judicial and administrative purposes to take acknowledgments of convey, anees, and as a matter of public convenience they are required to have an office in some defined locality, for which service compensation is provided by Sec. 18, Chap. 53, B. S., titlej “Fees and Salaries.”
The taking of the acknowledgment in the case at bar may well be regarded as a personal privilege rather than the discharge of a duty incident to the office of clerk of the Probate Court, for dereliction in which his sureties should be held liable.
The obligation of the sureties on Bartels’ official bond must be strictly construed; their liability can not be extended by implication. They have the right to rely upon the strict letter of their contract, viz^, the faithful performance of his duties as probate clerk.
Besides, we think the declaration insufficient, in that the allegation in the various counts thereof are consistent with the good faith of Bartels, and wholly fail to show or aver wilful or corrupt motives on his part. The only count in the declaration wherein any claim is set up that Bartels acted corruptly is the third count, in which after the main recitals and averments is added, “ that said certificate of said Bartels is and was to the full knowledge of Bartels false and fraudulent.”
This averment is in the nature of a characterization or conclusion from what preceded it; it is not a direct allegation that Bartels,"at the time of so taking the acknowledgment, did so corruptly, knowing that the supposed grantor was not the one he personated or purported to be. The rule is that in pleading, every intendment is to be taken most strongly against the pleader. The material averments must be direct and issuable, and not doubtful or uncertain as to what is meant; as here, the particular part of the certificate, or the particular fact therein stated, which is claimed Bartels knew was false, should have been particularly set out and stated, and not left to inference. So as to the time of such knowledge by Bartels; that should have been stated and set forth definitely.
These facts became material and were of the essence of the act charged to constitute appellee’s liability. There is still another view pressed upon our consideration, important to be considered in the determination of the case at bar, and that is whether the act of taking the acknowledgment of a deed or mortgage is in its nature by the law of this State ministerial or judicial.
It must be confessed upon this question there is some apparent conflict of authority in this State as well as elsewhere.
In this State in Hill v. Bacon, 43 Ill. 479, it was held that the act of taking an acknowledgment of a deed is a mere ministerial act, and can be taken by a notary public anywhere within the limits of the county. In Herckelrath v. Stookey, 58 Ill. 21, the question was as to the power of a police magistrate to take acknowledgments of chattel mortgages. The court said arguendo, “ Hor is it an objection that the act is ministerial and not judicial.”
In Lickmon v. Harding, 65 Ill. 505, the court say: a The magistrate in taking the acknowledgment acts judicially.
In Canal & Dock Co. v. Russell, 68 Ill. 426, the act of taking an acknowledgment is declared to be & judicial act.”
In Kerr v. Russell, 69 Ill. 666-72, the court say: “ We held in the Liekman case, supra, that the act of the officer (in taking an acknowledgment) was judicial in its nature, and it must have the effect of all judicial acts.”
It thus appears that the court of last resort in this State, by its most recent decisions, regard the taking of an acknowledgment of a conveyance of land to be in the nature of a judicial act, and as such must have the effect of other judicial acts. To the same effect is the case of Wasson v. Glasgow, 79 Penn. St., and the cases therein cited.
It must be conceded if Bartels’ action in taking the acknowledgment in question were in their nature judicial acts, then neither Bartels nor his sureties would be liable in this action, and the court below properly sustained the demurrer.
The principle of non-responsibility attaches to all judicial acts so far as respects a civil remedy, except it may be in cases where the officer acts corruptly and maliciously, in which case an action on the case might lie against such officer. Hor does this principle or rule of protection depend upon whether the tribunal or officer acting is a court or not; it is the nature of the duties to be performed that determines its application. Wall v. Trumbull, 16 Mich. 234.
As to whether the sureties are liable for wilful or corrupt acts of their principal in the case at bar—if such acts there are- -we need not determine, as the other questions presented are sufficient in our judgment to sustain the judgment of the court below without regard to that point.
Judgment affirmed.
C. B. Smith, P. J., dissenting. I do not concur either in the reasoning or conclusions of the majority of the court. I think the declaration stated a good cause of action.
