Summer v. Mitchell

• Decision Date: 20 January 1892
• Citation: 10 So. 562,29 Fla. 179
• Parties: SUMMER v. MITCHELL.
• Court: Florida Supreme Court

10 So. 562

29 Fla. 179

SUMMER v. MITCHELL.

Florida Supreme Court

January 20, 1892

Appeal from circuit court, Marion county; JESSE J. FINLEY, Judge.

Ejectment by Mary M. Summer, through her next friend, against Reuben S Mitchell, to recover an undivided half of certain land and the mesne profits thereof. Judgment for defendant. Plaintiff appeals. Reversed and remanded.

Syllabus by the Court

SYLLABUS

1. In 1865 the laws of this state did not authorize the admission to record of a deed acknowledged out of this state, but in another state of the United States, before a clerk or deputy-clerk of any court, or before a judge of any court not a court of record, and having a seal and clerk or prothonotary.

2. A legislature has power, in the absence of any inhibiting constitutional limitation, and except as against prior vested rights, to cure by retroactive legislation defective acknowledgments of deeds in all cases where the purpose of the acknowledgment is the admission of the instrument acknowledged to record, or its use in evidence.

3. An effect of the 'Act providing for the acknowledgment of deeds and other conveyances,' approved February 24, 1873 (sections 16-19, pp. 218, 219, McClell. Dig.,) is to authorize the acknowledgment of the execution of a deed for the record here, to be taken out of this state and according to the laws of the state where it may be taken, at least if the execution of the deed, as distinguished from its acknowledgment is, as in the case at bar, in compliance with the laws both of Florida and of the state of its execution and acknowledgment.

4. The fourth section of the act of February 25, 1872, (section 19 p. 219, McClell. Dig.,) which provides that any deed of conveyance heretofore executed and acknowledged in compliance with the previous provisions of the act should have the same force and effect and be as valid as if the same had been executed after its passage, was to validate, at least from the approval of such act, any prior acknowledgment made out of this state of a deed conveying lands located here, if the acknowledgment conformed to its provisions, and certainly where, as in the case at bar, the execution of the deed, as distinguished from its acknowledgment, conformed both to the law of this state and that of the state of its execution and acknowledgment.

5. It is the established policy of the law to uphold certificates of acknowledgment of deeds, and, wherever substance is found obvious clerical errors and all technical omissions will be disregarded. Inartificialness in their execution will not be permitted to defeat them, if looking at them as a whole, either alone or in connection with the deed, we find that they reasonably and fairly indicate a compliance with the law. Clerical errors will not be permitted to defeat acknowledgments when they, considered either alone or in connection with the instrument acknowledged, and viewed in the light of the statute controlling them, fairly show a substantial compliance with the statute.

6. The instrument acknowledged may be resorted to for support to the acknowledgment; and where the same name appears as a witness to the execution of the deed, and to the certificate of acknowledgment as the officer taking it, it may be presumed, in support of the certificate, that these names represent the same person.

7. Where the title of an officer taking an acknowledgment of a deed is written out in full in the body of the certificate, its omission from the signature is immaterial, and affixing it to the signature is itself sufficient. Initials may, however, be used, and are sufficient to designate such title.

COUNSEL

Fleming & Daniel, Bullock & Burford, and R. L. Anderson, for appellant.

OPINION

The other facts fully appear in the following statement by RANEY C.J.:

The action is ejectment for the recovery of an undivided half of lot 2, block 35, old survey of Ocala, and mesne profits, and was commenced in June, 1887, by the plaintiff, then a minor, through her next friend, she being the only surviving child of Adam G. Summer, who died in the spring or summer of 1866. To further sustain her action, she put in evidence a certified copy of the record of a deed in the office of the clerk of the circuit court of Marion county; such deed bearing date September 1, 1858, and purporting to have been made by Martha Baker, Robert Bullock, and Amanda Bullock, his wife, and to convey to H. L. Hart, in fee, the lot in question. She also offered in evidence a certified copy of the record in Marion county clerk's office of a deed bearing date July 9, 1863, and purporting to have been executed in Thomas county, state of Georgia, to be a conveyance in fee of the same property by Hart and wife to Adam G. Summer and Henry Smith; but, its admission in evidence having been objected to by defendant on the ground that the deed 'had not been duly proven and acknowledged and recorded as required by law,' th objection was sustained, the plaintiff excepting to the ruling, and having, in support of the admissibility of the deed, read in evidence sections 2690, 2705-2707, of the Code of the state of Georgia, (second edition, of date 1873, revised, corrected, and annotated by David Irwin, George N. Lester, and W. B. Hill.)

Plaintiff then offered as a witness Robert Bullock, who testified that he was in possession of the lot in 1854, claiming title, had the lot under fence, built a livery stable, and operated and ran it, dug a well on the south-west corner of the lot, and so remained in possession until some time in 1858, when he sold it to H. L. Hart, and placed him in possession thereof; that Hart continued in the same business on said lot, running a livery stable, for a number of years thereafter. The following questions were asked the witness by plaintiff, and each of them was objected to, and the objection sustained; the plaintiff excepting to the rulings:

'(1) How long did H. L. Hart remain in actual possession of said lot after you put him in possession thereof? And state whether or not he was in possession, claiming title exclusive of any other right. (2) Were you in possession of said lot at that time, claiming title thereto exclusive of any other right? (3) State the character of the possession of H. L. Hart.' This question being preceded by an offer to prove by the witness the character of Hart's possession, and being asked for such purpose. '(4) Who was in possession of said lot immediately after H. L. Hart?' This question being preceded by an offer to prove that Hart placed Summer in possession when he sold to him, and being asked for that purpose.

The plaintiff also introduced as a witness W. P. Trantham, who testified that he was acquainted with the premises in controversy, and knew Adam G. Summer; and then plaintiff asked him the following questions, each of which was ruled out on objection of defendant, and the ruling excepted to by plaintiff:

'(1) State how long Adam G. Summer was in possession of said lot, and what was the character of the possession. (2) Was Adam G. Summer, prior to his death, in 1866, in actual possession of said lot?'

The plaintiff here offered to prove by the witness Robert Bullock that the possession of Bullock, Hart, and Summer followed in immediate succession, and was turned over from one to the other, and was continuous and adverse from 1854 to Summer's death, in 1866, each claiming title from the other in the order of succession, and for this purpose asked him the following question: 'State whether or not the possession of said lot by Robert Bullock, H. L. Hart, and Adam G. Summer, from 1854 to 1866, immediately succeeded each other, and each claiming title from the other.' The question was excluded on objection by defendant, and plaintiff excepted.

The plaintiff having rested, the defendant put in evidence a deed of conveyance in fee of the above property, dated May 1, 1886, from William E. Schoeflin and wife to H. E. Miller and Edwin Spencer.

Schoeflin, a witness for defendant, testified that he took possession of the lot in 1878; that he built a new fence around it, and built a house on it, and lived in it with his family until he sold it to Miller and Spencer; that it is the same house Mr. Hicks now lives in. On cross-examination he said that he built a new fence, and did not repair an old one; took away some old pieces of boards, and built a new fence. The house he built is the same one Hicks now lives in,--the same house that Wallace Dawkins put there; and witness put a new story on, and fixed it up the same as building a new one. The house that Mr. Hicks lives in is on lot 26, west of this one, but 'I had all fenced up,--both lots.' The house was partly in the street that runs between the two lots. At this time that street was not opened. 'I told you that the house I built and lived in is the same one in which Mr. Hicks now lives, and had the whole thing under fence.'

Defendant then introduced a deed from Miller and Spencer to the defendant, bearing date December 7, 1886, and purporting to convey to Mitchell and his heirs the lot in question.

The defendant having rested, the plaintiff introduced one Wallace Dawkins, who testified that he lives in Ocala, and has seen the lot every day for the last 12 years. That he took possession of the lot in 1877, and put a fence around it. That he took possession by mistake, intending to locate on another lot, and got on this one by mistake. (Witness locates the lot on a map of Ocala handed to him.) That, when he found out his mistake, he moved off. That he built a house on the lot across the street from this one on the west. That he built it. That Schoeflin moved in the same house; moved in the same day, witness thinks, that witness moved out of the...