Mansfield v. Johnson

51 Fla. 239

Opinion

Carter, Circuit Judge,

(after stating the facts). Plaintiff offered in evidence a certified copy of the record of the deed from Eubanks’ executor to Drew. Defendants -objected to its introduction upon the ground that the deed had never been legally proved for record or recorded. The acknowledgement states that the grantor “acknowledged that he signed the foregoing deed of conveyance for the purposes therein specified.” Plaintiffs in error argue that an acknowledgement of the signing is not an acknowledgement of the execution of the instrument, and that consequently their objections were well taken and should have been sustained. In Rhodus v. Hefferman, 47 Fla. 206, 36 South. Rep. 572, it was held that where the plaintiffs and defendants in ejectment claim land through a common source of title, errors committed in allowing improper evidence of the title under which all the par ties claim are harmless. As will be seen from the statement of the facts the parties plaintiff and . defendant claim through this deed, and the defendants themselves produced evidence recognizing its existence and validity. Under these circumstances it is unnecessary for us to determine whether the acknowledgement was sufficient to entitle the deed to record, so as to make the certified copy prima facie evidence of the due execution of the deed, as any error that may exist in the ruling admitting the document in evidence is for reasons stated, harmless. This disposes of the first assignment of error.

The second assignment of error is expressly abandoned.

The third assignment of error is based upon the ruling admitting over objections a certified transcript of the record of the judgment obtained by Johnson against Drew. The transcript after setting out the praecipe, summons, return, declaration and other proceedings recites that “subsequently to-wit: On the 11th day of May, 1891, during the regular term of said court, certain proceedings were had and judgment rendered as shown by the minutes of said term and the judgment docket as follows, to-wit.” Here follows what purports to be the final judgment dated May 11, 1891, signed, “W. B. Young, Judge,” and immediately thereafter a certificate of Roble A. Hull, then Clerk of the Circuit Court of that county “that the foregoing copy of final judgment is a true and correct transcript of the same as appears upon the files and record of said office,” dated May 15th, 1891. The certificate to the transcript of the entire record of that judgment made by P. D. Cassidy, Clerk, on October 25, 1897, is “that the foregoing pages numbered from I to 9 inclusive constitute a true copy of all the proceedings and a correct transcript of the record of the judgment in the case of James E. Johnson as plaintiff, and George F. Drew as defendant, as appears upon the files and records of my office.” The objection interposed was that the transcript offered did not contain a copy of the original judgment, but merely a copy of a certified copy of such original. We think it evident that the final judgment was written out and signed by the Judge on May 11, 1891, during a term of the court, and that this judgment so signed was by the Clerk entered upon the minutes of the court on May 15th, 1891. As the minutes are required to be signed by the Judge at the end of each term, it was perhaps unnecessary for the clerk to enter upon the minutes immediately following the entry of the judgment therein the certificate which he did enter in this case, but the fact that he did so does not invalidate the minute entity nor make the minute entry any the less a record entry, proper to be certified as such. As we construe the certified copy of the transcript of the judgment, the judgment entry and certificate of Hull, Clerk, appended thereto, were taken from the minutes and the judgment docket which are original records and not mere copies of records. There was no error in the ruling here complained of.

The fourth assignment of error questions the propriety of the ruling admitting in evidence over defendants’ objection, a certified transcript of the recox*d of the judgxxxent of Johnson vs. Drew, as recorded in the Foreign Judgment Book by the Clerk of the Circuit Couxfi: of Hernando county. The objections interposed were that “it is not shown by the paper itself that it is a copy of a judgment recox’ded in Duval county and the fact that it may have been recorded in Hexmando county is not shown by the certificate of the Clerk of Hernando county so as to entitle it to be received as evidence,” and “because the certificate of the Clex*k of Hexmando county is not proof of the date of the record of the same by him.” The document offered purports to be a copy of the judgment signed by Judge Young dated May 11, 1891, to which is attached a certificate by the Clerk of the Circuit Court of Duval county dated May 15, 1891, that the “foregoing copy of final judgment is a true and correct transcript of the same as appears upon the files and records of my said office.” Immediately following this certificate are the words “Recorded May 19, 1891, Frank E. Saxon, Clerk Ct. Ct. H. C. by S. A. Wilson, D. C.,” and then follows a certificate by the Clerk of the Circuit Court of Hernando County, Florida., dated March 12, 1898, that the “within and foregoing” is a “correct transcript of the record of the final judgment in the case of James E. Johnson vs. George F. Drew, as it appears of record in Foreign Judgment Book 1 at page 47.” Under the statutes in force at the time the judgment was recorded in Hernando county, judgments at law were not liens upon real estate in counties other than the one where rendered, unless recorded in the county where the real estate was situated (Sec. 2, p. 619, McClellan’s Dig.); the clerks were required to provide a suitable book to be entitled Record of Foreign Judgments in which they were required to record judgments when regularly presented to be recorded, and a judgment was entitled to be placed upon the record, upon the presentation of a transcript of same regularly certified under the seal of the court. Secs. 13 and 14, p. 175, McClellan’s Dig. The transcript of the judgment offered was certified as being a correct transcript from the Foreign Judgment Book, and the judgment as there recorded appeal’s to have been regularly certified by the Clerk of the Circuit Court "of Duval County under the seal of the court. The objections interposed to its introduction were untenable. A certified copy of the record of the judgment in the Foreign Judgment Book, taken from that book, was competent evidence of the record of the judgment in that book, and it was not necessary to produce the document which had been recorded upon that book to prove that fact as contended here. We are also of opinion that the custodian of a record having author? ty to certify a transcript thereof has authority to specify in his certificate the particular record from which the transcript is taken, and that such -certificate is at least prima facie evidence of the fact certified. Under our law, Clerks of the Circuit Court are the custodians of various records, such as the minutes of the court, foreign judgment records, records of mortgages, deeds, &c. He has power to certify any portion of these various records, as for instance that the transcript of a judgment is taken from the minute book; of a deed that it is taken from the deed record; of a declaration or plea, that it is from the files of a particular case, and the like. Having the power to certify the entire records or any particular portion thereof, he must necessarily have power to limit his certificate to the particular part certified, otherwise his certificate would be nugatory as in every instance -it would be necessary to produce the original record or other proof along with the certified copy to show that the certified copy was taken from the proper record, and not from some other record in the office. Rev. Stats. of 1892, Secs. 1109, 1111. We are also of the opinion that it is the duty of Clerks of the Circuit Court who have authority to record instruments or to make entries in the records of which they have custody, in the course of their official duty, to note on such records the date upon which they record such instrument or make such entries; and that such notes become parts of such record, and the dates specified in such notes are to be taken as prima facie cor rect. In certifying such entries the clerk also has authority to certify such notes, and the certified copies are admissible on acount of the inconvenience of removing the originals. This is true upon general principles although we have no statute enacting^ such a rule. Bell v. Kendrick, 25 Fla. 778, 6 South. Rep. 868.

The fifth assignment of error is based upon the ruling admitting in evidence a certified copy of the execution issued upon the judgment in favor of Johnson against Drew under which the sheriff’s sale was had. The objections interposed were that the original execution, was the best evidence and that no sufficient predicate had been laid for its introduction. The first objection was untenable because the original execution had been returned to the court which issued it, and the copy offered was certified by the clerk of that court who had official custody of the original, to be a true copy of such original. Under those circumstances it was not necessary to produce the original, and the certified copy was admissible. Sec. 1111 Rev. Stats. of 1892. The other objection was interposed upon the theory that the execution could not legally have been levied upon the land in Hernando county until the judgment upon which it was issued had been first legally recorded in that county and that there was no proof that this had been done. Without deciding the question whether an execution can legally be levied upon land in another county until the judgment has been recorded there, we are of opinion as will be seen from the discussion of the preceding assignment, that the proof did show that the judgment had been properly recorded in Hernando county before the execution was levied, and this disposes of the second objection to the introduction of the certified copy of the execution.

The sixth and last assignment of error questions the propriety of the ruling upon the motion for a new trial. Under this assignment several propositions are insisted upon which we shall consider in the order presented. It is said that the evidence does not show that Johnson’s judgment against Drew was recorded in Hernando county before the levy of the execution under which the sale was made nor before the record of the deed from Drew to Inglis et al. We have already disposed of this adversely to the contention of plaintiffs in error, in discussing other assignments of error.

It ds said that the evidence does not show that the execution was levied before the record of the deed from Drew to Inglis et al., but it is shown that the judigmnet upon which the execution issued had become a lien upon the land before the deed was recorded, and upon the principles announced in the cases hereinafter cited it was immaterial in such a case whether the execution was actually levied before or after the record of the deed, as in either case the title of the purchaser at the execution sale would be superior to the title acquired by the grantee by virtue of such deed.

It is said that the recitals in the deed from Keathley to McKeown which was recorded in 1884, and the mortgages and deeds from Drew to other parties recorded prior to the record of the judgment against Drew, furnished record notice to Johnson of the equities of Inglis, Broome, Taylor and Keathley. We have already pointed out in the statement the fact that none of these conveyances except that from Keathley to McKeown contained any suggestion that other persons had equities in the property. The mortgage executed by Drew purported to convey an undivided one-fifth interest in the land, but there is no suggestion in the document that Drew did not own the entire interest, nor that Ingiis, Broome, Taylor and Keathley were interested in the property. There was, therefore, nothing in these documents to put Johnson on notice. As to the deed from Keathley to Mc-Keown, neither Drew nor Johnson were parties thereto, nor was it a link in the chain of title of Drew through whom Johnson claims. The recitals therein were recitals in deeds between strangers so far as plaintiff was concerned and he cannot be bound thereby, in the absence of actual notice, merely because the deed was recorded.

It is said that the purchaser at an execution sale takes only the right, title and interest which the execution debtor had subject to equities existing at the time the judgment was recorded,. that this principle had been recognized by this court in Holland v. State, 15 Fla. 455, and Massey v. Hubbard, 18 Fla. 688, and that the limitations upon this principle, announced in Carr v. Thomas, 18 Fla. 736, Doyle v. Wade, 23 Fla. 90, 1 South. Rep. 516, 11 Am. St. Rep. 334 and Lusk v. Reel, 36 Fla. 418, 18 South. Rep. 582, 51 Am. St. Rep. 32, which are based upon our statute protecting creditors and purchasers for a valuable consideration without notice against unrecorded conveyances, apply only in cases where the judgemnt debtor had the legal title to the property in his own right, and not in cases where, though apparently the holder of the legal title, he yet held it in trust for another. We have carefully considered the decisions referred to and also- the decision in Eldridge v. Post, 20 Fla. 579, and Rogers v. Munnerlyn, 36 Fla. 591, 18 South. Rep. 669, but we are unable to see that they thus restrict the rule applicable under the statute referred to. In the case of Lusk v. Reel, supra, it was held that a purchaser at an execution sale against one to whom real estate had been conveyed through mistake, but without any knowledge actual or constructive of sucli mistake, was entitled to protection as an innocent purchaser. In that case the execution creditor was the purchaser. In the present case the title to the property in controversy was in Drew, with the knowledge and consent of the other parties interested. The deed conveying the property to him was an absolute conveyance in fee simple containing no intimation whatever that he held the property in trust. The declaration of trust, if executed before, was not recorded until after the record of Johnson’s judgment in Hernando county, which fixed his lien upon the property, and the conveyance from Drew to the parties for whom he held the property in trust, was executed and recorded after the record of Johnson’s judgment in Hernando county. It is not claimed that the parties were ever in actual possession of the land, nor that Johnson had actual notice of their claims until the day of the sale. The notice given on the day of sale was unavailing, because the rights of the purchaser at the sale, whether such purchaser be the execution creditor of a third person, are fixed by the status existing at the time the lien is acquired, and not by the status existing at the time of the sale. This is clearly held in the decisions above referred to. If at the time the lien is acquired the creditor has no notice actual or constructive of equities of third persons in real estate the title to which stands in the name of the judgment debtor as the apparent absolute owner, the purchaser at the execution sale thereof takes a good title and is protected as a bona fide purchaser, even though the creditor or purchaser had notice of the equities of others at the time of the sale.

Lastly it is said that plaintiff was estopped by his conduct and silence at the time of the sale by which he had led Keathley and one Barker who were present at the sale and interested in the property to believe that he acquiesced in the statement made at the sale that Drew only owned a one-fifth interest in the land and that interest only was being sold by the sheriff. There is testimony to show that Keathley protested against the sale and that Johnson was present at the time, but we think the referee was justified in his finding that Johnson did not by his conduct or silence lead any one to believe that only a one-fifth interest was being sold. The execution was levied upon all the right, title and interest of Drew in the entire property and the. deed recites that all his interest was sold and purports to convey such interest. The fact that other persons protested against the sale of all but a one-fifth interest even though Johnson said nothing in reply to such protest, cannot in the face of the fact that the entire interest was sold operate as an estoppel upon Johnson as the purchaser, and prevent him from claiming that which was in fact sold and conveyed.

This disposes of all the points presented and finding no error, the judgment will be affirmed.

Hooker, Whitfield and Parkhill, JJ., concur. Shackleford, C. J., and Taylor and Cockrell, JJ., being disqualified, took no part in the decision of this case.