* Headnotes 1. Pleading, 31 Cyc., p. 324 (1926 Anno); 2. Justices of Peace, 35 C.J., Section 34; 3. Justices of Peace, 35 C.J., Section 3. The appellant, D.G. Hodges, instituted this suit against W.D. Mills, a justice of the peace of Perry county, and the United States Fidelity Guaranty Company, surety on the official bond of said W.D. Mills, to recover damages for the breach of the conditions of this bond, and from a judgment sustaining a demurrer to the declaration and dismissing the suit this appeal was prosecuted.
The declaration avers that one John W. Hodges, desiring to borrow from the plaintiff the sum of one thousand two hundred and fifty dollars for the purpose of paying an attorney's fee, executed and tendered to the plaintiff a deed of trust on land, which purported to have been signed and acknowledged by the said John W. Hodges and his wife, Minnie Hodges; that the defendant W.D. Mills, as justice of the peace, certified in legal form that the said Minnie Hodges, wife of John W. Hodges, appeared before him and acknowledged that she signed and delivered the said deed of trust; that in fact *Page 354 the said certificate was false, and the said Minnie Hodges did not appear before, or in the presence of the said justice of the peace, and that she neither signed the instrument nor made any acknowledgment thereto; that upon a full hearing, and upon the testimony of the said Minnie Hodges and the said W.D. Mills, the chancery court of Perry county had entered a decree finding that the said deed of trust was not signed, acknowledged, or delivered by the said Minnie Hodges, and ordering the cancellation of the deed of trust; that, relying solely on the truthfulness of the said certificate of the justice of the peace, and believing that the same was genuine and true, the plaintiff advanced to the said John W. Hodges the sum of one thousand two hundred and fifty dollars believing that the said sum was secured by a valid lien on the land described in the said deed of trust; that by reason of this false and fraudulent certificate, rendering the deed of trust invalid, he was unable to collect the sum advanced on the faith thereof, and had suffered a total loss of the sum advanced, for which sum he prayed judgment against the justice of the peace and the surety on his official bond.
The principal grounds of the demurrer interposed by the defendants were that the declaration is vague, indefinite, and states no cause of action; that the taking of acknowledgments is a privilege of a justice of the peace, but no part of the official duties of such an officer; and that the declaration admits that Minnie Hodges did not sign the note evidencing the indebtedness to secure which the alleged deed of trust was given, and consequently there can be no recovery because the note was void.
While the note evidencing the indebtedness is filed with the deed of trust as an exhibit to the declaration, a careful reading of the declaration discloses that it does not charge or admit that Minnie Hodges did not sign the note, and the effect, if any, of a failure on her part to sign the note cannot be raised by demurrer.
We do not think there is any merit in the contention that the taking of acknowledgments is a mere privilege *Page 355 and no part of the official duties of a justice of the peace. Under section 3452, Code of 1906 (section 2785, Hemingway's Code), it is provided that every notary public shall have power to receive proof or acknowledgment of all instruments of writing that are commonly proved or acknowledged before notaries, and to make declarations and certify the truth thereof, under his seal of office, concerning all matters done by him by virtue of his office.
Section 3454, Code of 1906 (section 2787, Hemingway's Code), provides that all justices of the peace are notaries public by virtue of their office, and shall possess all the powers and discharge all the duties belonging to the office of notary public, and may authenticate all their acts, instruments, and attestations by the common seal of office, and that all acts done by them of a notarial character shall receive the same credit and legal effect as are attached to the acts of notaries public. By section 2798, Code of 1906 (section 2299, Hemingway's Code), the authority is expressly conferred upon notaries public and justices of the peace to take and certify proof or acknowledgments of every conveyance, contract, or agreement which is proper to be recorded. Section 2722, Code of 1906 (section 2221, Hemingway's Code), requires that a justice of the peace shall, before he enters upon the duties of the office, enter into bond in the same manner as other county officers, while section 3463, Code of 1906 (section 2801, Hemingway's Code), requires that this bond shall be conditioned for the faithful performance of all the duties of the office during his continuance therein.
By the execution of this official bond this justice of the peace was inducted into office and thereby acquired the authority to take and certify acknowledgments. In taking the acknowledgment he was acting in his official capacity, under color and by virtue of his office. The object of the official bond is to furnish indemnity against the misuse of official power and authority, and, having assumed the discharge of the duty of taking and certifying the acknowledgment to this instrument, this justice *Page 356 of the peace acted virtute officii in so doing, and, together with the surety on his official bond, is liable for such damage as resulted to the plaintiff from reliance on the truthfulness of the certificate of acknowledgment.
We think the declaration sufficiently avers the condition of the bond, the breach thereof, the reliance upon the truthfulness of the acknowledgment and certificate thereto, and the resulting damage, and that the demurrer should have been overruled. The judgment of the court below will therefore be reversed, the demurrer overruled, and the cause remanded.
Reversed and remanded.