Mexican Crude Rubber Co. v. AckleyMexican Crude Rubber Co. v. Ackley
*1 552 dissenting: J.;
Brown,
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Mexican Crude K. husband, joined by her S. lant, v. Ackley, Clara Appellee. Ackley, B.
Division Rehearing. On Opinion 1930. Original filed December February rehearing granted 4, 1931. for Petition rehearing May 8, Opinion on filed 1931. Appellant; for Edwards, & Huffaker Lang- Peterson, Carver, Bosarge Allen Johnson, & O’Quin, Appellee. ston & *4 having been Pee Curiam. The record in this cause opinion pre- Court, foregoing and the considered adopted pared 1929, of Chapter under Acts ordered, considered, and decreed opinion, it is Court as its be, below should of the court the Court that the order hereby directions to the reversed with and the same is sustaining demurrer of order to enter an court below complaint amended. bill to the of the defendant J.J., Bufoed, and Terrell, C.J., Whitfield, Ellis concur. Brown, J.J., dissent.
Steum, : Strum, J., (dissenting) and un- unauthorized allegation as to the I think the assumptive after execution clause striking ratified re- which alteration charge material deed is response from quires a defendant. J., concurs.
Brown, Rehearing.
On deed of a cancellation was a suit Davis, J. This court below wholly void. The theory it was on the complaint and this bill of to the a demurrer over-ruled *5 opinion filed De- in an by court this was reversed decree 16, 1930. cember
Ee-hearing granted re-argued has been the ease again before Division B. It is insisted that the deed grounds be (1) should cancelled on two was that the deed unaccepted an offer of a in contract which never resulted agreement chang- a materially valid because was the deed by delivery mortgage ed its eliminating befoi’e therefrom a assumption clause; (2) that the was void because deed by it grantee was made a married woman and contained no acknowledged. at it the time was executed and object The of this suit is to cancel the deed itself. sought of it theory record is not to be cancelled on the something the record shows record in form the of a legally which deed does not exist. Eeformation or rescission are both theory complain- from omitted ant’s ease.
In opinion a recent handed this was down Court it said Mr. Chief 'Justice Shell Buford in Creek Land Watson, opinion Co. v. April 13, filed 1931: “Cancellation will not be mistake where decreed reformation of adequate will furnish instrument an remedy. agreement an actually Where been had enter- into, ed but in contract, instrument, deed or other its form, express really written does not in- what was parties thereto, equity jurisdiction tended has reform the it written instrument as to con- so make intention, agreement understanding form to the parties.” of all mortgage assumption as the con-
So insofar clause is remedy complainant’s tois have the deed cerned, reform- than to ask that such clause rather such ed to re-insert entirety. cancelled in its deed be assumption was, mortgage of the clause The elimination true, alteration, since it is one sense material but merely an in the assumption undertaking such clause *6 558 grantee on conld part
deed the the which have rested of separate agreement parol, 'in a or in it in a strict even was of of part sense the no the itself as the word deed insofar conveyance operated deed as a of the land. Therefore by separ- the of the deed the elimination of this alteration grantee tho ate, independent provision part of on the the grantor’s benefit, not render the was so material to subject conveyance of land and whole deed void as a the theory. to on cancellation that Rep. it 513, 2 Hildebrand, In 46 Am. v. Mo. Woods is said: in deed suppose is an alteration a
“It a mistake to that reconvey the conveyance, delivery, operates to after the original grantor. to A title total destruction of re- effect, but the title will not have that instrument may bring ejectment on grantee, mains in the and he deed; office, by performed passed it. has its it title integrity and its existence or is not essential continued title, although change to a fraudulent material may bringing upon an the holder from action disable its covenants.” no that was
Neither sustain the contention there can. we meeting parties because con- of the minds of the the deed grantee a it was when executed and tained no name by grantor, woman, married or acknowledged a because assumption had been eliminated. mortgage clause married previous opinion, this Court held that a In its estopped, brought',by bill her to can- will woman be claiming deed her executed deed, cel a from being grantee of the invalid of the name reason thereof. after the execution inserted therein by ap-. rule cognizant general invoked We are .the of married that contracts women cannot to the effect pellee given be estoppel effect application but such rule has no at the case bar. *7 estoppel
Here the arises out of the married woman’s acknowledgment of the instrument her as a executed acknowledgment deed. The officer’s certificate of recites Ackley that Mrs. executed deed. a This certificate was completed Ackley certainly knowledge and Mrs. had of it before the deed was delivered with such at- certificate Having acknowledged tached to it. that she executed a deed, Ackley estopped deny Mrs. is to such instru- that merely acknowledged ment was a deed, because when tho. grantee deed had no named in it. the deed Therefore may insufficiency was not void whatever be its otherwise. estopped Married women have heretofore been held acknowledgment recitals in an of to officer’s certificate papers they legal right which as married women had the to with property, execute to their when was reference there showing actually no that be- such married woman was not fore who the officer made certificate. the 85 rule Bank, as stated in Green v. First National 51, 95 251, Fla. So. is: acknowledg-
“The of certificate the officer as to the conveyance of of of or mort- ment the execution a deed gage quasi-judicial act, him and where made before is a person executing instrument the the instrument and the officer, -act are in he undertakes to fact before the officially, trans- the certificate of the officer to the is, in action, requires, when the the absence made as law duress, stated of fraud or conclusive as to the facts alleged, proof fraud the official certificate. When is clearest, strongest of convinc- it must most be of the ing character.” applied women in the ease
This rule was to married 31, 71 Jennings Jennings, 71 Fla. So. Bank of v. it unsupported where was held that the mar- denial of a voluntarily ried woman mortgage that she executed a prevail taking would not over officer the certificate acknowledgment. good No appears why reason to exist a married woman inequitable should be allowed to achieve the same result by admitting acknowledge that she did execute and instrument as stated in the officer’s of acknowl- certificate edgment but so re- instrument executed altho cited to a deed, be deed and her as was delivered grantee nevertheless void as such because the name omitted, thereby making according it her conten- *8 tion, not a deed at all. previous holding of this Court must be to adhered re-hearing this
on and the decree reversed and the cause proceedings may for such remanded further be consist- opinion. ent with this
Decree reversed.
Whitfield, P.J., J., Terrell, and concur. C.J.,
Buford, judgment. opinion concurs agrees upon the J., the conclusion reached Ellis, reasoning opinion. in the first
Brown, J., dissents. City Daytona corporation Beach, Florida, municipal existing laws of the
organized and under the State Appellant, vs. The State Florida Florida, Wilson, Appellees. Chas. H.
Division B. January 10, Opinion filed 1931.