Lee v. Lide , 111 Ala. 126 ( 1895 )

HEAD, J.

Debt against probate judge for the statute penalty of an overcharge for recording a mortgage.— Code, § 3680.

We notice, in the outset, that the right of action is given, by the statute, only to the party aggrieved. There is no evidence tending to show that the plaintiff, either by himself or though another for him, paid for recording the mortgage, or was in any wise liable to pay for the same ; or that lie was in anywise aggrieved by the overcharge. Nothing more as to the payment is shown than that one W. C. Crumpton paid the fee. The plaintiff was the mortgagor, but the instrument does not require him to have it recorded, and there is no evidence that he did so, or had any connection with it. The general charge ought, therefore, to have been given for the defendant as requested.

The statute is highly penal and must be construed strictly in favor of the accused. The defendant in order to liability, must have knowingly received a higher fee than was allowed by law. Such is the language of the statute. The evidence shows that the defendant had in his employ, in his office, a duly qualified clerk, to whom he intrusted, generally, the duty of receiving and recording instruments, and collecting the fees therefor. This clerk received and recorded the mortgage, in question, and collected from Crumpton $3.00 therefor. The defendant, personally, knew nothing of the particular transaction; did not actually know that such an instrument had been received in his office, until this suit was brought. The position of his counsel is, that the penalty can not be visited upon him, under such circumstances, though his clerk, knowingly, received a greater than the legal fee. The statute (Code, § 795) authorizes the probate judge, “To employ,'at his own expense,a clerk, for whose official acts he is responsible.” Section 3665 of the Code, provides : “The law of fees and costs must be held to be penal, and no fee must be demanded or received except in cases expressly authorized bylaw.” Section 3678 provides: “The judges of probate must keep constantly in their offices, free to public inspection,'a book in which must be entered all fees received by virtue of their office, stating for what and from whom received.” The clerk, the records and the fee book are under the immediate supervision and control of the judge. We think the intent of the law is to fix the same responsibility upon him for the official acts of his clerk, done under such general authority, as would have attached if he had performed the acts himself. — Postal Tel. & Cable Co. v. Lenoir, 107 Ala. 640; Same v. Brantley, 107 Ala. 683; Allison v. Little, 85 Ala. 512. But, if the clerk, not knowingly, made the overcharge, the judge would not be liable for the penalty. — Lenoir’s Case, supra.

The clerk charged and collected $3.00 for recording the mortgage. He reached that sum by computing and charging fifteen cents, for each one hundred words of the instrument — that being the allowance prescribed by the general statutory fee bill for services of probate judges. By a special act of the General Assembly, for Conecuh county, approved February 16, 1889, (Acts 1888-89, p. 399), it was provided as follows : Sec. 1. “That it shall be the duty of the county commissioners of Conecuh county, to procure at the expense of the county, suitable printed blank forms of ■ deeds, mortgages and crop liens, leaving to be filled in, as far as practicable, only such matter as can not be made of general application, such as dates, names, description of property, &c., which shall conform, in all respects, to similar printed blank forms, in suitably bound record books, to be procured also at the expense of the county and kept in the office of the probate judge, for recording the same.

“Sec. 2. That upon the application of any citizen of the county, desiring to execute, or to have executed and recorded, a conveyance in conformity with said forms, the probate judge shall issue free of charge,'one or more of said forms, not exceeding in his judgment the number required for the use of said applicant.

“Sec. 3. That the fees to be charged for recording conveyances executed with the use of such printed blank forms, shall be twenty-five cents each.

“Sec. 4. That nothing herein contained shall be so construed as to abolish the use of such printed blank forms and records as are now in use in said probate office, or to prevent said commissioners’ court from reimbursing the probate judge of said county for such amount as he may have actually paid out for such blank forms or record books.”

The commissioners’ court furnished to the judge’s office a record book containing printed blank forms of mortgages, in practical conformity to the directions of the act, with the exception (or that which defendant contends is an exception) that the form was printed specially for mortgages executed to specially named mortgagees, viz., The British and American Mortgage Company, Limited (which was the mortgagee in this case), The Loan Company of Alabama, J. H. Farnham & Co., and The Scottish-American Mortgage Co., Limited, of Edinburgh, Scotland ; which fact was indicated by the names of said parties being printed in the form, as mortgagees ; the evident design being that, in the registration of a mortgage executed to only one of the parties named, the names of the others could be erased. The mortgage, in question, to The British and American Mortgage Company, Limited, with a few exceptions, otherwise conformed to the printed form in the record book, and one of the forms in that book was used for its registration. The changes were of such small compass that the record form was easily adaptable to them, and so it was done by the clerk. The mortgage was not executed upon a blank form furnished by the commissioners’ court to the probate judge, for that body had failed-to comply with the direction of the statute in that respect. If a blank form was used, it does not appear where or how the parties obtained it. It is contended that the defendant had a right'to charge fifteen cents, per hundred words, as prescribed by the general law, because, 1st, the form in the record book, furnished by the commissioners’ court, did not conform substantially to the requirements of the act; and 2d, the mortgage was not executed upon a blank furnished in the manner required by the act.. There is no merit in either of the objections. In the first place, we see no substantial departure from the directions of the statute. In furnishing a book of forms for the use of specially named mortgagees which were well adapted to the registration of their mortgages; and in the next place the defendant availed himself of the blank record, so furnished, and used it for the registration of the mortgage in question. He will not, therefore, be heard to say that the form furnished was not a proper one. Nor will he be heard to object that the mortgage was not executed upon a blank furnished by the commissioners’ court. He foreclosed inquiry into all these matters (if otherwise there was any merit in them) by using the record form, with which he had been provided. The defendant was entitled to charge only twenty-five cents for the registration of the mortgage.

The case is not open to the defendant to say that his clerk did not, knowingly, make the overcharge. He knew that he was charging at the rate of -fifteen cents per hundred words. He knew that $3.00 was more than 25 cents. He may have made, and, no doubt, did make, an honest mistake, but it was a mistake of law and not of fact. Such mistakes cannot be set up to excuse in cases of this kind. Ignorantia legis non excusat.

There is nothing in the objection to the constitutionality of the act in question. It seems to provide that citizens of the county only may apply to the probate judge for blanks, but there is no restriction upon the right of those, not citizens of the county, to have their instruments registered at 25 cents, by the use of the record form, when such instruments are in conformity to that form.

It is a 'mistake to suppose that either of the special pleas was proven. In fact, each of them was merely a limited traverse of the declaration, and the facts proven do not sustain the legal conclusions stated in the pleas.

The complaint was manifestly sufficient.

For the failure of proof that the plaintiff was the party aggrieved, the judgment must be reversed and the cause remanded.

Reversed and remanded.