Robinson v. Bruner

• Decision Date: 27 October 1927
• Parties: ROBINSON et al. v. BRUNER et ux.
• Court: Florida Supreme Court

114 So. 556

94 Fla. 797

ROBINSON et al. v. BRUNER et ux.

Florida Supreme Court, Division A.

October 27, 1927

Suit by H. E. Robinson and another, doing business as Robinson &amp Samuel, against A. M. Bruner and wife. From an order denying a temporary injunction, complainants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

After delivery of contract to convey land, officer may not amend certificate of acknowledgment so as to show separate acknowledgment by wife (Rev. Gen. St. 1920, § 3803). An officer taking the acknowledgment of a contract to convey real estate, after delivery of the instrument has been made may not amend his certificate by attaching thereto the necessary recitals required by statute in cases of married women's conveyances, so that the certificate will speak the truth and set forth the facts actually happening at the time of taking the acknowledgment, viz., the proper and correct separate acknowledgment of the wife.

Attaching certificate of acknowledgment, after delivery of contract to convey land, upon wife's request, with husband's consent over telephone, without reacknowledgment, is void (Rev. Gen. St. 1920, § 3803). The attaching of a certificate of acknowledgment by the officer after delivery and acceptance by the parties of contract to convey real estate upon request of wife, with consent of her husband, and in his absence, over the telephone, without a reacknowledgment, is abortive and of no effect.

Taking acknowledgment of contract to convey land is quasi judicial action. The action of an officer in taking an acknowledgment of a contract to convey real estate is quasi judicial in character.

Appeal from Circuit Court, Orange County; C. O Andrews, judge.

COUNSEL

Giles &amp Gurney, of Orlando, for appellants.

Alexander Akerman and George W. Fox, both of Orlando, for appellees.

OPINION

PARKS Circuit Judge.

This is a suit for specific performance of a contract entered into between Harry E. Robinson and Thomas F. Samuel, vendees, against A. M. Bruner and wife, Mrs. A. M. Bruner, otherwise known as Mrs. E. J. Bruner, vendors.

Complainants, Robinson and Samuel, allege in their bill that on the 6th day of November, 1924, the defendants executed a certain contract of sale for the conveyance of certain real estate; that they had complied with all of the obligations imposed upon them by the terms and conditions of the said contract; and that the defendants had refused to comply with the obligations imposed upon them by the terms of the contract and refused to convey the premises in accordance with the terms of the said agreement.

A copy of the agreement is attached to the bill and by reference made a part thereof and appears to have been executed with all due formalities. The prayer is that specific performance be granted.

The defendants Bruner filed their joint answer admitting:

That they signed the contract described in the bill of complaint, but denying that the contract was acknowledged by the defendant E. J. Bruner separately and apart from her husband, A. M. Bruner, as required by section 3803 of the Revised General Statutes. That at the time of delivering the contract to Robinson and Samuel and themselves and the acceptance of the same by all parties, the contract bore no other certificate of acknowledgment and no other certificate of acknowledgment was attached to the same excepting the following:

'State of Florida, County of Orange--ss.:

'I, Ella M. Logan, a notary public in and for the county of Orange and state of Florida, do certify that A. M. Bruner and Mrs. A. M. Bruner, his wife, whose names are signed to the within document, have this day appeared before me in my said county and state and duly acknowledged the same.

'Given under my hand and seal this 6th day of November, A. D. 1924.

'[Signed] Ella M. Logan, Notary Public.

'My commission expires February 12, 1925.'

That thereafter, on the 20th day of November, 1924, without having Mrs. Bruner appear before her, the said notary public attached another and further certificate of acknowledgment to the contract, reciting that E. J. Bruner, wife of A. M. Bruner, upon an examination taken by her separate and apart from her said husband, acknowledged that she executed the agreement freely and voluntarily and without any constraint, compulsion, apprehension, or fear of or from her said husband; and thereafter the complainants published said fraudulent, altered, and changed contract and certificate of acknowledgment on the 20th day of November, 1924, tendering the same for record on that day to the clerk of the circuit court of Orange county and causing the same to be spread upon the records of the county.

The answer further alleges that the land described in the contract was the homestead of the defendant A. M. Bruner. Defendants deny that they are bound, because there was no separate examination and acknowledgment of Mrs. Bruner.

The cause came on for hearing before the chancellor upon the complainants' petition for a temporary injunction upon certain grounds which are not necessary to set forth in this opinion. The pleadings raise other issues, but none is of controlling importance in the decision of this case, and we omit all discussion of them.

The chancellor denied the prayer for temporary injunction upon the ground that the acknowledgment was insufficient and the contract invalid, from which order the complainants have appealed.

The record discloses that the contract was signed by the respective parties; that the lands were the homestead of defendants; that the acknowledgment hereinbefore specifically set out in haec verba was signed by the notary public and duplicate copies of the contract were delivered and accepted by the parties at the time and place of the signing of the certificate on November 7th.

It also appears that there was in fact a separate examination and acknowledgment of the wife, E. J. Bruner, by the notary public, as required by section 3803 of the Revised General Statutes, on November 7th, at the time and place of the signing of the contract and certificate.

It further appears that later, on the 20th of November, Mrs. Bruner, in the absence of her husband, but with his consent and at the request of complainants, called the notary over the telephone and informed her that she understood the certificate attached to the contract was defective and requested her to attach a proper certificate. The notary thereupon attached a certificate to complainants' copy of the contract in all respects in compliance with the statute. There was never a personal appearance of Mrs. Bruner before the notary after the execution and delivery of the duplicate copies of the contract on November 7th, nor was there any re-execution and delivery of the contracts between the parties.

We shall treat the question raised by the record as being: First, can the officer taking the acknowledgment of the contract to convey real estate after delivery of the instrument to the parties, vendor and vendee, and acceptance by them, amend his certificate by attaching thereto the necessary recitals required by statute in cases of married women's conveyances so that the certificate will speak the truth and set forth facts actually happening at the time of taking the acknowledgment, viz., the proper and correct separate examination and acknowledgment of the wife? Secondly, was the notary warranted in attaching the certificate of November 20th under the circumstances narrated? In 1 R. C. L. p. 289, the following statement was made with reference to the power of an officer taking an acknowledgment to amend his certificate:

'There seems to be no substantial reason why the officer who takes an acknowledgment should not be allowed, within reasonable limits, to amend his certificate, if defective, so as to make it speak the truth and conform to the facts. And this is the position taken by the weight of mordern decision, although authorities to the contrary are numerous.

'It is not understood, however, that the officer may amend a defective certificate at an indefinite time after taking the acknowledgment. The amendment no doubt must be made within a reasonable time, and a correction properly made be held invalid when made only after the lapse of years or months. The amendment, it would seem, need not be made before the officer has parted with possession of the instrument, though there are authorities to the contrary; but it is obvious that no effectual amendment may be made after the instrument has been entered in the public records. Whether the officer may make the correction after the expiration of this term of office is a question upon which the courts are divided, the position of those denying the power to correct being based apparently upon the ground that the officer acts judicially in taking the acknowledgment. But the weight of modern authorities deems the officer's act to be ministerial only, and if this view be accepted there would seem to be no reason for denying the power of amendment after the officer's term of office has expired.'

We shall confine our discussion in this opinion to the cases cited by the text above quoted, with the addition of the case of Durham v. Stephenson, 41 Fla. 112, 25 So. 284.

In Cox v. Holcomb, 87 Ala. 592, 6 So. 310, 13 Am. St. Rep. 82, it is said:

'We have been referred by counsel to decisions in other states which uphold proceedings to correct defective certificates in analogous cases. An examination shows that the decisions are rested on local statutes authorizing such proceedings; and some of the cases concede that, in the absence of statutory authority, the court would not assume to correct them. Johnson v. Taylor, 40 Tex. 360 ; Hutchinson v. Ainsworth, 63 Cal. 286; ...