Bank of Woodland v. Oberhaus

YAW DYKE, J.

The main contention on the part of the appellant is that the mortgages are invalid on the ground that the acknowledgments, having been taken before the cashier of the plaintiff bank, are void. The court finds that C. F. Thomas, the notary who took the acknowledgments of said mortgages, was the cashier of the plaintiff bank, but that he was not a stockholder in said bank, nor a director thereof, but an appointee of the board of directors and employed by them as such cashier upon a fixed and definite salary. The evidence fully supports this finding, and further shows that he had no interest in the property or income of the bank; that his services were neither increased nor diminished by its gains or losses, and that his business as notary was distinct and independent of his duties as cashier of the bank, and whatever fees he received or collected as notary were his individually, and did not go to the bank.

In some of the states it has been held that a notary, in taking an acknowledgment, acts judicially; in others, that he acts ministerially. Elliott v. Peirsol, 1 Pet. 328, was a case that went up from Kentucky, where the clerk was authorized by statute to take and certify the acknowledgments of deeds, and the court there say: “We are of opinion he acted ministerially, not judicially, in the matter,” and held that after his certificate passed from his hands he had no power of correcting it. This court, in Bours v. Zachariah, 11 Cal. 395; 70 Am. Dec. 779, after quoting from that case, say: “Where is the difference between the clerk’s power ceasing on his recording the deed and certificate, and the notary’s power ceasing after recording by the clerk ? ... . The whole reasoning of the court in the section quoted is direct to show that the notary could have no such authority; for all the evils which are so well stated would follow as well from permitting alterations of the record to be made by amendments of the notary as of the clerk.” There are some decisions to the effect that where the acknowledgment is a necessary part of the execution of the instrument, as in some cases in reference to the acknowledgment of a married woman, that then the officer acts judicially in taking the acknowledgment. When these mortgages were executed, however, it required no separate acknowledgment on the part of the wife.

But in this state it would seem that a notary public does not exercise judicial functions. The constitution prescribes where the judicial power of the state is lodged, and what courts and officers exercise judicial power, and notaries public are not included therein, (Const, art. VI.) Upon principle, it would seem that the act of a notary in taking the acknowledgment of a conveyance is not judicial in its nature. For judicial acts the officer is not liable either for ignorance or negligence, but only for corrupt and intentional misconduct in the discharge of his official duties. On the other hand, ministerial officers are pecuniarily liable for negligence, regardless of intentions, whether good or bad. It has been held in this state that a notary public and his bondsmen are liable for damages caused by negligence in taking the acknowledgment of a conveyance or mortgage. (Fogarty v. Finlay, 10 Cal. 239; 70 Am. Dec. 714; Heidt v Minor, 89 Cal. 115.) In People v. Bush, 40 Cal. 344, the court distinguishes between ministerial and judicial duties, saying: “A judicial officer may be required by law to discharge other than judicial duties. He may, by authority of law, perform ministerial acts, but when performed they do not become judicial acts because they are performed by a judicial officer. This becomes apparent on a moment’s consideration. A county judge is authorized, among other things, to take the acknowledgment of a deed and to solemnize a marriage. No one will contend that in performing those acts he exercises judicial functions.” It has been held that notaries public, where attorneys or agents of parties, were not for that reason disqualified in taking acknowledgments or protesting bills where they are not pecuniarily interested in the transaction. (Horbach, v. Tyrrell, 48 Neb. 514; Penn v. Garvin, 56 Ark. 511; Moreland v. Citizen’s Sav. Bank, 97 Ky. 211; Florida Sav. Bank v. Rivers, 36 Fla. 575.) We think' the notary in this case was not disqualified from taking the acknowledgments of the mortgages in question.

It is further contended by the appellant that the homestead antedated the execution of the mortgage, from the fact that the defendants made the premises their home and resided thereon. Since the codes there can be no legal homestead merely from residence without selection. "The homestead consists of the dwelling-house in which the claimant resides and the land on which the same is situated, selected as in this title provided.” (Civ. Code, sec. 1237.)

The mortgages in suit were acknowledged respectively August 26, 1892, and November 7, 1893, and recorded of those dates. Suit was brought for their foreclosure, and Us pendens filed and recorded October 19, 1895. Although the parties resided oh the premises in question a number of years before the execution of the mortgages, the declaration of the homestead was not filed until November 4, 1895. "The homestead is subjeCt to execution or forced sale in satisfaction of judgments obtained.....4. On debts secured on mortgages upon the premises executed and recorded before the declaration of homestead was filed for record.” (Civ. Code, sec. 1241.)

The judgment and order denying a new trial are affirmed.

Harrison, J., and Garoutte, J., concurred.