March 29, 1905
In view of the many persons holding commissions as notary public and the considerable business passing through their hands, we take occasion to note the particulars of an important case tried at this term of court, which may be of interest to this class of officials and those transacting business through them. Mrs. S. A. Jones, some time back, purchased a land note form her son, J. R. Jones, obtained by him from his brother, J. W. Jones, in the purchase of land bought from the former and containing the vendor’s lien. The same remaining unpaid, Mrs. Jones had the land seized and advertised an execution issued by the court on the face of her privilege. At this stage of the proceedings other creditors of J. R. Jones filed a third opposition, claiming a prior right to be paid, for the reason that the notarial act transferring the property, passed by W. R. Roberts, notary public at Bernice, was without effect, as it had not been recorded within the seven days required by law, to protect the privilege. The court sustained the opposition and set aside the privilege on the ground of a lack of timely recordation, whereupon, Mrs. Jones, through her attorney, W. D. Munholland, entered suit against W. R. Roberts, notary and his bondsman, E. B. Robertson, for the sum of $400, claimed as damages sustained by his failure to perform his official duties in the premises, in failing to record the act within the time specified by law. The defendant in his answer seeks to evade judgment by setting up the charge that the transaction between the Jones brothers was a mere simulation and that Mrs. Jones was cognizant of this fact, ans was not an innocent third party in the purchase of the note, and in such case is not entitled to a judgment. This phase of the case is still pending.