Request By:
Honorable Bremer Ehrler
Jefferson County Clerk
Court House
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: H. N. McTyeire, Assistant Attorney General
In KRS 423.010 it is provided:
". . . Before a notary acts, he must take an oath in the county court of his county that he will honestly and diligently discharge the duties of his office. He must in the same court give an obligation with good security for the proper discharge of the duties of his office. . . ."
You will note that the amount of the bond is not fixed by statute. In view of the fact that the bond is to be given in the county court, we believe the amount would be fixed by the court and the qualifications of a surety must be determined by the court.
KRS 454.180 states that the officer accepting the bond may require the person offered as surety to make affidavit of his qualifications. This Section further provides that procuring such an affidavit does not exempt the officer taking the bond from any liability to which he might otherwise be subject for taking insufficient surety.
You will note the foregoing Section does not create any liability on the part of the officer taking the bond but merely provides that the required affidavit would not relieve him from any liability which would otherwise exist. In our opinion the determination of the Clerk's liability would be made on the facts existing in the specific case involved. We are therefore unable to give you a general rule which would be applicable in all situations.
We note the affidavit you submitted includes the expression "fee simple title to and beyond amount of liens or encumbrances and homestead exemptions and subject to execution." The statute does not require a fee simple title, or even the ownership of real property. What is required is only "good security. " As used in the affidavit, "fee simple title" was undoubtedly intended to require single ownership because the expression is coupled with "execution." In the case of joint ownership with right of survivorship, execution would provide little protection unless the debtor happened to be the survivor. Therefore it is doubtful that the ownership of a joint tenancy with right of survivorship would be acceptable security.