Mansfield v. Johnson
Mansfield v. Johnson
Opinion of the Court
(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
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
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
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.
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
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
Lastly it is said that plaintiff was estopped by his conduct and silence at the time of the sale by which he had
This disposes of all the points presented and finding no error, the judgment will be affirmed.
Reference
- Full Case Name
- Jambs F. Mansfield and Joseph J. Bishop, Copartners Doing Business Under the Firm Name and Style of Mansfield & Bishop, in Error v. James E. Johnson, in Error
- Cited By
- 16 cases
- Status
- Published
- Syllabus
- 1. Where plaintiffs and defendants' in ejectment claim land through a common soúrce of title, or where the defendant himself produces evidence recognizing the existence and validity of a deed through which both parties plaintiff and defendant claim rights and interests in the land in controversy, errors committed' in allowing improper evidence of the title, or improper proof of the execution of such deed on the part of the plaintiff are harmless. 2. Where during a term of the Circuit Court a formal judgment in a case is written out and signed by the judge, which is by the clerk recorded upon the minutes of the court to the minute entry of which is appended a certificate by the clerk to the effect that the foregoing copy of final judgment is a true and correct transcript of the same as appears upon the files and records of his office, such minute entry becomes properly a part of the record of the court, and a properly certified copy thereof is admissible as evidence of the existence of such judgment. The minute entry need not be certified by the clerk, where the minutes have been duly signed by the judge at the conclusion of the term as required by statute, but the fact that the clerk’s certificate is attached to the minute entry-does not make that entry any the'less a record entry proper to be certified as such. .'3. A properly certified transcript of a judgment signed by the judge and entered upon the minutes of the Circuit Court during a term, taken from the minutes, when properly recorded in the Record of Foreign ’Judgments of another county in 1891, became a lien upon the real estate of the judgment debtor in the latter county from the time of its record, and a properly certified transcript of such recorded judgment from the Record of Foreign Judgments is admissible in evidence to prove the fact of such record. 4. The custodian of a record having authority to certify a transcript thereof has authority to specify in his certificate the particular record from which the transcript is taken, and such certificate is at least prima facie evidence of the fact certified. 5. It is the duty of Clerks of the Circuit Courts who have a\\ithority to record documents 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 instruments or make such entries, which notes parts of such record, and the dates specified in such, notes are to be taken as prima facie correct. In certifying such entries the clerk also has authority to certify such notes and the certified copies are admissible on account of the inconvenience of removing the originals. 6. Where an original execution has been returned to the court which issued it, the clerk of that court having the custody of such original has authority under the statutes of this State to certify a copy of the original, and such certified copy is admissible in evidence without producing the original. 7. Recitals in recorded deeds not constituting links in the chain of title of a judgment debtor and to which he is not a party, which purports to show equities in third persons, are not notice to a judgment creditor of equities claimed by such third persons. 8. If at the time a lien is acquired by a judgment creditor he nas 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, whether such purchaser be the judgment creditor or another, takes a good title and is protected as a bona fide purchaser, even though the creditor or purchaser had notice of such equities at the time of the sale. 9. A judgment creditor who purchases at his execution sale' real estate the title to which at the time of the entry or record of his judgment, stood in the name of his judgment. debtor, takes a good title as against persons to whom the judgment debtor conveyed the title, even though the title was originally taken in the name of such judgment debtor oy the consent of such persons in trust for them, where at the time the judgment was entered or recorded no declaration of trust or other conveyance from the judgment debtor declaring such irust had been recorded. 10. Where an execution has been levied upon all the right, title and interest of a judgment debtor in real estate, and a sale has been had and a deed executed in pursuance of such levy and sale conveying all such right, title and interest to the judgment creditor, such purchaser is not estopped from claiming the entire property so levied upon sold and . conveyed by the mere fact that he was silent at the sale when a third party. protested against the sale announcing that the judgment debtor only owned an undivided one-fifth interest in the property.