29 Fla. 179 | Fla. | 1892
Appellant sued appellee in enjectment, and the result was a judgment in favor of defendant.
The first error assigned is the refusal of the judge to admit in evidence a certified copy of the record of a «deed of the land in controversy, a lot in Ocala, from Hubbard L. Hart and Mary Elizabeth Hart, his wife, to A. Gf. Summer and Henry Smith. The deed purports to have been executed for and in consideration «of six hundred dollars, in Thomas county, State of Georgia, July 9th, 1863. Its conclusion is as follows:
In testimony whereof, we, the said party of the first part, have hereunto set our hands and seals this the •day and year first above written.
Hubbard L. Hart, [seal.]
M. E. Hart. [seal.]
Signed, sealed and delivered in presence:
Jacob Kubitskik,
T. C. Brace well, J. P.
Thomas County.
Be it remembered that on this 22nd day' of July, A. D., 1863, personally came before me, the undersigned deputy Clerk of the Circuit Court in and for the county and State aforesaid, Hubbard L. Hart and Mary Elizabeth Hart, who respectively acknowledged each for himself and herself, and the said Mary Elizabeth Hart being absent from her husband, the said Hubbard L. Hart, acknowledged voluntarily, without fear or compulsion of or from her said husband, that they signed, sealed and delivered the foregoing instrument for the purposes therein mentioned. In witness whereof I herewith set my hand and seal of office the day and year above mentioned.
T. C. Bracewell, Deputy Clerk S. & J. C.
The deed thus executed and acknowledged was admitted to record in the office of the Clerk of the Circuit Court of Marion county on the 30th day of July, 1863, by the clerk of that court. His certificate •of the record need not be set out. A copy of this record duly certified March 19th, 1888, by the then clerk, being offered in evidence was objected to by defendant on the general ground that the deed had not been duly proven, acknowledged and recorded as
The particulars wherein the acknowledgment, or the copy of the record, was objected to as being deficient, are not stated m the bill of exceptions; still whatever objection might have been taken here to the generality of the objection below had been waived by the specifications of the particular grounds of objection in the brief of counsel for appellant, upon whose behalf alone the cause has been argued before us. Carpenter vs. Dexter, 8 Wall., 524.
These grounds'of objection are: 1st. That it does not appear that the parties .making the acknowledgment were known to the officer taking the acknowledgment. 2d. A deputy cannot take an acknowledgment. 3d. It does not appear that the officer acted within his jurisdiction. 4th. The acknowledgment was taken before an officer who had no authority .to take acknowledgment of deeds in this State.
At the time of the execution and acknowledgment of the deed in question, viz: July, 1863, the statute regulating the acknowledgment or proof, made out of the State, of deeds conveying any interest in real estate within the State, for the purpose of being used or of entitling such deeds to be recorded here, was that of February 3rd, 1834, entitled ‘an act concerning the authentication of conveyances,” as amended by act of February 27th, 1340. The first section of the act of 1834, provided that the deed should be acknowledged by the party or parties executing the same, or that
The above legislation [is to be found in Thompson’s. Digest, pp. 181-2,¡jand McClellan’s Digest, pp. 216-17, the word State being properly substituted for that of territory, when applicable to Florida.
Thus the law as to such acknowledgment or proof
It is entirely clear that there was in 1863 no iaw in this State authorizing the admission to record of a-deed acknowledged out of the State, and in another State of the United States, before a deputy clerk or the clerk of any court, nor before even a judge of any such court not a court of record and having a seal and. clerk or protlionotary; and unless legislation, subsequent to that in force at the time this record was made,, had legalized the record, there was no error in the ruling of the judge excluding the transcript as evidence-under section 21 of Article XVI of the Constitution,, which section is as follows: “Deeds and mortgages which have been proved for record and recorded according to law, shall be taken as prima facie evidence in the courts of this State without requiring proof of' the execution. A certified copy of the record of any deed or mortgage that has been or shall be duly recorded according to law shall be admitted as prima ■ facie evidence thereof, and of its due execution with like effect as the original duly proved; Provided, It be made to appear that the original is not within the-custody or control of the party offering such copy.”'
A purpose of this act, as applicable to conveyances made in any other' State of lands located here, was the .-adoption of the laws of that State regulating the acknowledgment of conveyances of any interest in real estate located there. This is made entirely clear by
The power of a Legislature, in the absence of any inhibiting constitutional limitation, to cure by retroactive legislation defective acknowledgments in all cases where the purpose of the acknowledgment is admission of the instrument acknowledged to record, or its use as evidence, is, except as against prior vested rights, unquestionable. The Legislature, when enacting the statutes of 1834 and 1840, could have dispensed with any requirement as to acknowledgments to be found in them, and this being so, it has the authority, at least in all cases of mere irregularity, or where no vested rights are affected, the power to do the same by subsequent legislation. Cooley’s Constitutional Limitations (5th ed.), 458, 471; City of Jacksonville vs. Basnett, 20 Fla. 525; Webb on Record of Title, sec. 97; Gorden vs. Collett, 107 N. C., 362; Barton vs. Morris 15 Ohio 408; Watson vs. Mercer, 8 Peters, 88; Buckley vs. Early, 72 Iowa, 289; Green vs. Abram, 43 Ark., 420; Johnson vs. Richardson, 44 Ark., 365.
The intention of the Legislature in enacting the fourth section of the act of 1873 was at least to render valid any irregularity in the acknowledgment of a deed of conveyance of land which had been previously executed in another State if the execution of the deed and of the acknowledgment were in compliance with the laws of the State where the execution took place.
Upon the trial of the cause the plaintiff to support the introduction of the above deed as testimony, read in evidence sections 2690, 2705, 2706 and 2707 of the Code of Georgia of 1873. The substance of these sections, so far as material here, is as follow's:
Sec.. 2690. A deed to lands in Georgia must be in writing, signed by the maker, attested by at least two witnesses and delivered to the purchaser or some one for him, and be made on a valuable or good consideration.
Sec. 2705. Every deed conveying lands shall be recorded in the office of the clerk of the superior court of the county where the lands lie.
Sec. 2706. To authorize the record of a deed to realty, it must, if executed in Georgia, be attested by a judge of a court of record of that State, or a justice of the peace, or notary public, or the clerk of the superior court in the county in which the three last mentioned officers respectively hold their appointments; or if subsequent to its execution the deed is acknowledged in the presence of either of the above-named
Section 2707 relates to proof by a subscribing witness.
These sections are shown by the code to be legislation of prior date to the. execution and acknowledgment of the deed under discussion.
It is apparent from the first of these sections that the deed, considered as separate from the acknowledgment, was executed in accordance with the law of Georgia; and as it was signed, sealed and delivered in the presence of two subscribing witnesses, such execution was also, we may state, in compliance with our own laws in force at that time controlling the mere transfer of the title from Hart, and hence the deed is one which in so far as the conveyance of Hart’s fee is concerned, is valid and effectual under the laws of both States.
There was in the Georgia law nothing requiring the certificate to state that the officer taking the acknowledgment knew or had satisfactory proof that a person making an acknowledgment was the individual described in and who executed the deed, and this being so, the first objection made to the acknowledgment and copy of the record offered in evidence fails. Brunswick-Balke Collender Co. vs. Brackett, 37 Minn,, 58; Sanford vs. Bulkley, 30 Conn., 344.
The second and fourth objections will be considered together. Reversing the order of their state
To decide whether the acknowledgment was made before, or taken by, an officer recognized by the act of 1873 as competent to take it, we must first ascertain what officer took it. According to the body of the certificate it was taken before a deputy Clerk of the Circuit Court of Thomas county, Georgia, but when we look at the signature to the certificate we find that he does not sign as acting in that capacity, and moreover we are not informed that there was any “circuit court” in Georgia. Counsel for appellant contends that the words and initials “Deputy Clerk S. & J. C., stand for and mean: Deputy clerk of superior court and justice of peace.” To reach this conclusion they invoke the aid of the attestation of the deed, in which it will be found that a person of the same name, “T. C. Brace well,” is one of the attesting witnesses, he affixing to his signature there the initials: J. P. There is no doubt that the instrument acknowledged may be resorted to for support to the acknowledgment. Einstein vs. Shouse, 24 Fla., 490; 5 South Rep., 380; Brunswick-Balke Collender Co. vs. Brackett, 37 Minn., 58; Owen vs. Baker, 101 Mo., 407; Wells vs. Atkinson, 24 Minn., 161; Samuels vs. Shelton,
The certificate of itself or aided by the instrument acknowledged, must (unless parol evidence be admission for such purpose — a point not presented — ) show the character of the officer taking the acknowledgment, and when we have learned this much, we must ascertain whether he was authorized to take it. The title of the officer may be written out fully in the body of the certificate, and when this is done its omission from the signature is immaterial; Colby v. McOmber, 71 Iowa, 469; Brown v. Farran, 3 Ohio, 140; or it may be affixed to the signature, and if so, this is of itself sufficient. Devlin on Deeds, sec. 501; Russ v. Wingate, 30 Miss., 440. The use of initials generally understood to stand for the title of an office will answer. In Bowley v. Berrian, 12 Ill., 198, where an officer affixed to his signature, “N. P. for the city of Quincy, in Adams county, Illinois,” the initials were held to mean Notary Public, and J. P. was decided to signify Justice of the Peace in Shattuck vs. People, 4 Scamnon, 477. In Russ vs. Wingate, 30 Miss., 440, the certificate began: “State of Mississippi, Hancock county,” and concluded: Given under my hand and seal this day and year above written. Lewis Y. Fol
Not only do the courts hold initials sufficient to indicate the character of the officer taking an acknowledgment, but they do not permit clerical errors to defeat or render acknowledgments ineffectual, when they, considered alone, or read in connection with the instrument acknowledged fairly show a substantial compliance with the statute. In Blythe vs. Houstoun, 46 Texas 65, 79, there was offered in evidence a certified copy of the record of a deed which was objected
Viewing the certificate of acknowledgment in the light of the Georgia law it must be held sufficient if we can learn from the certificate, either alone or aided by the instrment acknowledged, that the acknowledgment was made before or taken by any officer authorized by such law to do so. From the Georgia law, as proved, it appears that among other officers, either a clerk of a Superior Court or a Justice of the Peace could take in that State an acknowledgment of a conveyance of land situate therein; and hence if the description following and constituting a part of the signaturé, fairly indicates either of these officers, the acknowledgment must be sustained. Invoking, as we lawfully may and properly should do, the aid of the attestation of the deed, our conclusion is, that each of the above official capacities is sufficiently indicated. The final “C” may
Inartificialness in the execution of these instruments cannot be permitted to defeat them, if looking at them as a whole, we find that they reasonably and fairly indicate a compliance with the law.
In reaching this conclusion we have not overlooked the use of the word “ Circuit ” in the body of the certificate. Our judgment as to this is, that, in the ab
In what has been said, the fact that the acknowledgment was taken by a deputy, if taken in the capacity of Clerk of Superior Court, instead of that of a Justice of the Peace, has not been noticed. In Hope vs. Sawyer, 14 Ill., 254, a question arose upon the legality of the record in Illinois of a deed acknowledged in Missouri, the certifícate of acknowledgment being signed in the name of the Clerk of the Circuit Court, “ by E. Baker, deputy clerk.” It was objected that the acknowledgment should have been made before and certified to by the clerk in person. “ The objection,” says the opinion, “ is not well founded. The acknowledgment purports to have been taken by the clerk, and it is certified in his name and under the seal of the court. Prima facie this is sufficient. The seal of the court proves itself, and we must presume that it was affixed by the proper officer. The presumption is that the clerk was authorized by the laws of Missouri to act through a deputy, and that Baker was regularly appointed as such. The deputy had the power to use the name of the clerk and attach the seal of the court.
In the case before us it is be presumed from the words of the certificate, to such effect, that the seal of office of the Clerk of the Superior Court was impressed upon the original certificate. The absence from the record or from the transcript of such seal, or anything .as representing it, is not sufficient to overcome the presumption created by such words. The ordinary provisions of statutes regulating the -recording of instruments do not contemplate the inscription of public official seals upon the record. Devlin on Deeds, sec.
As it is to be presumed from these words of the certificate that a seal was impressed upon the original the only distinction between the case at bar and those' cited from Illinois and Missouri is, that here the-certificate is signed by the- deputy simply in his own name, without using that of the clerk. There is conflict of authority as to how such certificates of acknowlment should be -executed when they are made by deputies. In Tennessee it was held, Beaumont vs. Yeatman, 8 Humph., 542, that such certificates should be-in the name of the deputy ; and likewise in a late case in Georgia, where an acknowledgment was taken out
If we refer- the taking of the acknowledgment to Braeewell’s capacity as justice of the peace, then the ■certificate shows that he had an official seal, as such ■officer, and no other evidence of such capacity is required by the act of 1873, supra.
In Carpenter vs. Dexter, supra, it is announced as law, that where one State recognizes acts done in pursuance of the laws of another State, the courts of the former will take judicial cognizance of these laws so far as may be necessary to determine the validity of the acts alleged to be in conformity with them. We find no other decision to this effect, the general rule being that the statute law of another State is to be proved according to the law of the former in which the trial is had. Tuten vs. Gazen, 18 Fla., 751; Session
A further question, suggesting itself, is -what effect is to be given the fact that the record in Marion county was made before the act of 1873. Does this fact except such record or a transcript thereof from the effect of the provision of our Constitution set out above?' The act of 1873 was in effect an amendment of the existing prior legislation referred to in this opinion. As has been shown in the statement of that legislation, a purpose of it was the regulation- of the acknowledgment and proof, made out of the State, of deeds of lands here, for the purpose of their being used or recorded here. Upon the approval or the act of 1878 the acknowledgment of the deed became as valid as it-would have been, from the date of its execution, had it been acknowledged after the approval of the act, and a record of this deed, made upon the originally defective acknowledgment, immediately after the statute became operative, would have been as valid for all purposes involed in this cause as if the deed had been, acknowledged subsequent to the approval of the statute. This deed, as acknowledged standing upon the record, as it did, at the time the act became effective,,
No objection that the original was not within the ■custody or control of the party offering the copy, appears to have been made, and hence we conclude that this requirement was complied with or waived.
That the officer acted within his jurisdiction appears .•sufficiently upon the face of the certificate. Devlin, sections 482, 486.
Other assignments of error need not be noticed.
The judgment must be reversed and remanded for proceedings not inconsistent with this opinion. It will fee so ordei’ed.