25 Fla. 942 | Fla. | 1889
Joshua L. Burch and Harriett H. Burch, in her own right and as the executrix of her husband, Smith Burch, filed a bill in the Circuit' Court of Duval county against Mary M. Christy and William H. Christy, husband of the said Mary. The bill alleges that on the 16th day of December, A. D. 1868, one Edward Honstoun was seized in fee of the following lands in said State and county, to-wit; “All that certain piece or parcel of land situated and being one mile west of the City of Jacksonville, county of Du-val and State of Florida, upon a branch known as the ‘Brick Yard Branch,’ and more particularly described as follows, to-wit: Beginning at a point in the centre of the channel of the said Brick Yard branch, on the north side of the culvert of the Florida Central railroad over said branch, and running thence down and along said branch in its channel in all its meanderings to McCoy’s creek, thence eastwardly down said creek to the western boundary line of land formerly owned by J. O. Jaques, thence north'westardly along the line of said land to a point such that a line drawn thence due west will strike the stump of a persimmon tree which was a station tree on the line separating the land of William Sedgwick froth the land herein described, and conveyed formerly of Joseph S. Baker, thence westwardly along said line to a point such that a line drawn thence due north would strike the southwest corner oí a lot of land owned by one Burnham, thence northwardly on aline parallel with the boundary line of the aforesaid Sedgwick land to the southern boundary line of the
That said Houstoun on said last mentioned day conveyed said lands by warranty deed to your orator, J. L. I’nrch, and his brother, Smith Burch, unincumbered ; that at the time of the execution of said deed by said Houstoun, he delivered possession of said land to your orator, J. Lr Burch, and said Smith Burch, and that they jointly, in the life time of said Smith, held open and notorious possession of said land, and erected valuable brick buildings on the same, and since the death of said Smith Burch, your orators have held continued posssession of the same, and have continued to make improvements thereon. The bill further alleges that a short time before the sale by said Houstoun to J. L. Burch, the defendant Mary L. Christy, being seized in her own right of the above described lands, together with her husband, William II. Christy, conveyed by deed the said lands to said Houstoun, which deed was duly and properly acknowledged, but never recorded ; that this deed from said defendants to Houstoun is one of the links in the complainant’s chain of title, and that the loss of the same, as is afterwards set forth in said bill, is a cloud upon complainant’s title; that said deed from Christy and wife to Houstoun was lost,
Mary M. Christy and Win. H. Christy separately answered the bill. The answer of Mrs. Christy alleges that she and her husband made an oral agreement with said Houstoun to sell him a certain tract of lands known as the Baker lands which she had purchased in her own right from one Baker, lying along and east of the brick yard branch south of the old alligator road about one and a half miles west of Jack
Win. IT. Christy, in his answer, denies that the deed from Houstoun to the Burches contained the true description sold to Houstoun by himself and wife,and alleges another survey with different metes and bounds, in which survey he was the chain bearer. Does not remember whether said deed from himself and wife to Houstoun was signed, sealed or delivered by him or his wife, or whether it was in the presence of two witnesses, who, as such, subscribed their names thereto, or whether it was or not acknowledged by him and his wife; that notwithstanding it was his intention that said deed should be duly executed and acknowledged, he has reason to disbelieve and so denies that all the essential formalities prescribed were duly observed by him and his wife in its execution and acknowledgement; that no improvements have been erected on the portion of the tract which respondent claims were not included in the deed to Houstoun.
The defendants have not produced any evidence to sustain their answer as to new matters set up therein or to matters that are responsive to the bill. In considering the answer as evidence we are restricted to the statements therein that are responsive to the complainants’ allegations. The answer ot both defendants deny that the deed which they admit that they made to Houstoun was of the lands as described in the bill. Is there sufficient evidence in the record to overturn their answers ? We think there is. The evidence of Burch is that when he bargained for the land from Houstoun the defendants had not made a deed to him; that he saw a deed from Christy and wife to Houstoun which was shown to him by J. M. Daniel, this deed he says did not in-
In Rex vs. Long Buckley, 7 East, 45, it was held that an instrument which required a stamp, its loss being proven, would be presumed to have been properly stamped, although there was evidence of a negative character to rebut the presumption. So also it has been held that the subscribing wetnesses may be dispensed with when the deed is lost and the witnesses are unknown. Felton and Pittman, 14 Geo., 530; Phillips on Evidence, vol 2, p. 557. The deed in question having been shown to be lost, and its contents having been established, we are bound to presume that it was executed in conformity with all the requirements of the law.
Counsel for appellants insist that inasmuch as the deed was lost without having been recorded, that under Sec. 6, p. 755, McC’s Dig., it is invalid. This section is as follows: “The husband and wdfe shall join in all sales, transfers and conveyances of the property of the wife, and the real estate of the wife shall only be conveyed by a joint deed of the husband and wife, duly attested, authenticated and admitted to record, according to the laws of Florida regulating conveyances of real property.”
The language of the statute as to recording the deed would almost seem to be imperative, yet it is impossible to conclude that the Legislature whose only object was the protection of the wife should make the title to her vendor dependent upon his acts or omissions after she had made to him a deed to the property and which acts or omissions could not in any possible way effect her interest. If she had sold the property and received the purchase money for it
We think that the only reasonable construction of the act is that the portion of it alluding to the recording of the •deed from a married woman is not intended to affect the validity of the deed as between the married woman and her husband, the grantors and their vendee, but can allude only to subsequent purchasers. We feel clear that this is the proper construction of the act. To hold otherwise w ukl be to say that a purchaser from a married woman held his title upon'a condition which was not mentioned in the deed and the happening or non-happening of which was a matter of the utmost immateriality to her interest.
A deed must be in existence and in the hands of the recording officer before it can be recorded. No time is fixed by the law within which it must be recorded. The vendee may delay its record to suit his convenience. If it should be duly executed by a married woman and is lost, this loss alone, if the position of appellant’s counsel is true, would •operate as a reversion of the property to the grantor. It oould not be recorded because it was lost and it could not be re-established because it had not been recorded. The Kentucky case of Scarbrough vs. Watkins, 9 B. Monroe, 540, and reported in American Decisions, vol. 50, p. 529, is materially different from this. The Kentucky statute required the deed of a married woman to be recorded within eight months,aud if not so recorded it was not obligatory on herorherheirs. Anotherstatutemadealldeedsdulyproven or acknowledged but not lodged for record in the proper office in the time prescribed by law,if subsequently recorded as effectual for all purposes from the time of recording as if recorded within the time prescribed by law. The decision of the court turned upon the point that the latter stat
Decree affirmed.