Nelson v. Comer

205 S.E.2d 537 (1974)

21 N.C. App. 636

M. B. NELSON, Plaintiff, v. Ruther F. COMER and wife, Lena Ethel Comer, Defendants. Charles L. WILLOUGHBY and wife, Janet Willoughby, Defendants and Third Party Plaintiffs, v. J. Patrick ADAMS et al., Third Party Defendants.

No. 7418SC370.

Court of Appeals of North Carolina.

June 5, 1974.

*538 Smith, Moore, Smith, Schell & Hunter by Larry B. Sitton and J. Donald Cowan, Jr., Greensboro, for third party plaintiffs.

Henson, Donahue & Elrod by Perry C. Henson and Sammy R. Kirby, Greensboro, for third party defendants.

BRITT, Judge.

Under G.S. 1A-1, Rule 56(c), "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." Appellants contend that there is a genuine issue of fact as to negligence. Appellees contend that the pleadings and filed documents disclose a defense, i. e., governmental immunity, which precludes the court from reaching the question of negligence.

Appellants argue that in this State the "taking of an acknowledgment" of the execution of a deed by a notary public is a ministerial act, and that a notary is liable for negligence in the performance of that act. Appellees argue that the act is a judicial, or quasi-judicial, act by a public official for which he may not be held liable absent a showing that his act was corrupt, malicious, or outside the scope of his duties. We are constrained to agree with appellees.

In North Carolina, a notary public is a public officer. Harris v. Watson, 201 N.C. 661, 161 S.E. 215, 79 A.L.R. 441 (1931); State v. Knight, 169 N.C. 333, 85 S.E. 418 (1915). A public official, engaged in the performance of governmental duties involving the exercise of judgment and discretion, may not be held personally liable for mere negligence in respect thereto; for such official to be held liable, it must be alleged and proved that his act, or failure to act, was corrupt or malicious or that he acted outside of and beyond the scope of his duties. Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783 (1951), and cases cited therein.

Appellants contend that statements in State v. Knight, supra, and other North Carolina cases to the effect that the taking of an acknowledgment by a notary public is a judicial act, are dicta. We are inclined to agree, but feel that we must treat those statements as indicative of the court's concept of the office of notary public. In Knight, 169 N.C. page 342, 85 S.E. *539 page 422, we find: "One of the duties which a notary public may perform is taking the probate of deeds, and this is a judicial act." And on the same page, the court quoted with approval from a Mississippi case as follows: "`The officer who takes an acknowledgment (of the execution of a deed) acts in a judicial character in determining whether the person representing himself to be, or represented by some one else to be, the grantor named in the conveyance actually is the grantor. He determines further whether the person thus adjudged to be the grantor does actually and truly acknowledge before him that he executed the instrument.'"

A judicial act is defined as "[a]n act which involves exercise of discretion or judgment." Black's Law Dictionary, Fourth Edition, page 984. Chapter 47 of our General Statutes provides for the probate and registration of legal documents, and G.S. § 47-1 provides that "[t]he execution of all deeds of conveyance, . . . may be proved or acknowledged before any one of the following officials of this State: The justices, judges, magistrates, clerks, assistant clerks, and deputy clerks of the General Court of Justice, and notaries public." We observe that notaries public are included in the statute along with other officials who are clearly judicial officials. It is noteworthy that various sections of Chapter 47 refer to the acknowledgment or proof of the execution of instruments. G.S. § 47-12 et seq., provide for proof of an attested instrument by a subscribing witness or by handwriting. A notary public is authorized to make a determination as to those proofs, thereby performing a judicial act. Historically, the probate of a real estate deed in this State has been regarded as a judicial act as is indicated by the fact that during most of the nineteenth century the execution of a deed was proven in the nisi prius courts.

Appellants argue that the weight of authority in other jurisdictions is to the effect that notaries public may be held liable for negligence and they cite us four cases: Meyers v. Meyers, 5 Wash. App. 829, 491 P.2d 253 (1971); Brittain v. Monsur, 195 S.W. 911 (Tex.1917); Figuers v. Fly, 137 Tenn. 358, 193 S.W. 117 (1916), and Transamerica Title Ins. Co. v. Green, 11 Cal. App. 3d 693, 89 Cal. Rptr. 915 (1970). In each of these cases it appears that the notary was held liable when he did not follow the statutory procedure for ascertaining the identity of the grantor in the deed. This State has no such statutory procedure.

On the question of "ministerial act," in Langley v. Taylor, 245 N.C. 59, 62, 95 S.E.2d 115, 117 (1956), Chief Justice Winborne, writing for the court, defined the term as follows: "A ministerial act is `one which a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done.' Black's Law Dictionary, 3rd Ed. Indeed `a ministerial duty, the performance of which may in proper cases be required of a public officer by judicial proceedings, is one in respect to which nothing is left to discretion; it is a simple, definite duty arising under circumstances admitted or proved to exist and imposed by law.' Black's Law Dictionary."

For the reasons stated, we conclude that the rule set forth in Smith v. Hefner, supra, applies with respect to the acts of defendant Adams as a notary public. The liability of all of the third party defendants being dependent upon the liability of defendant Adams, the trial court properly entered summary judgment in their favor.

Affirmed.

HEDRICK and CARSON, JJ., concur.