Front Cover
 Table of Contents

Title: Matters to be observed in the examination of title to real estate in Florida
Full Citation
Permanent Link: http://ufdc.ufl.edu/FS00000063/00001
 Material Information
Title: Matters to be observed in the examination of title to real estate in Florida
Series Title: Matters to be observed in the examination of title to real estate in Florida
Physical Description: Book
 Record Information
Bibliographic ID: FS00000063
Volume ID: VID00001
Source Institution: Florida State University
Holding Location: Florida State University
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: ltqf - AAA1026

Table of Contents
    Front Cover
        Front Cover
    Table of Contents
        Page i
        Page ii
        Page iii
        Page iv
        Page v
        Page vi
        Page vii
        Page viii
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
        Page 23
        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
        Page 32
        Page 33
        Page 34
        Page 35
        Page 36
        Page 37
        Page 38
        Page 39
        Page 40
        Page 41
        Page 42
        Page 43
        Page 44
        Page 45
        Page 46
        Page 47
        Page 48
        Page 49
        Page 50
        Page 51
        Page 52
        Page 53
        Page 54
        Page 55
        Page 56
        Page 57
        Page 58
        Page 59
        Page 60
        Page 61
        Page 62
        Page 63
        Page 64
        Page 65
        Page 66
        Page 67
        Page 68
        Page 69
        Page 70
        Page 71
        Page 72
        Page 73
        Page 74
        Page 75
        Page 76
        Page 77
        Page 78
        Page 79
        Page 80
        Page 81
        Page 82
        Page 83
        Page 84
        Page 85
        Page 86
        Page 87
        Page 88
        Page 89
        Page 90
        Page 91
        Page 92
        Page 93
        Page 94
        Page 95
        Page 96
        Page 97
        Page 98
        Page 99
        Page 100
        Page 101
        Page 102
        Page 103
        Page 104
        Page 105
        Page 106
        Page 107
        Page 108
Full Text



Examination of Title


Real Estate in Florida

Of the DeLand, Florida, Bar.

Copyright 1920


Table of Contents


Object of Pamphlet-----. I
Where Public Records found i
Abstract is Index Only --. I
Abstracter Not a Lawyer-- I
Records of New Counties- 2
No Set .Form For Opinion__ 2
Immaterial Defects---- 2
Initial Entry of Abstract- 3
Deeds from I. I. Fund---- 3
Title Subject to Rights of
Parties in Possession.-- 3
Possession Notice to World 4
Certificate of Abstracter---- 4
Bringing Abstract Down to
Date ----------------- 4
How Land Divided --------5-6
Spanish Grants ----------- 7
Three Kinds of Deeds --.. 9
Statutory Form of Deed .-- 9
As Warranty ----------o
General Use of three kinds
of Deeds ---------------
Original Records Should be
Examined ------------- o

Comparing Name With Sig-
nature and Acknowledge-
ment -------------------- II
Comparing Grantees' and
Grantor's Name --------- I
Date of Deed ------------- 12
Granting Clause ----------- 12
Description of Property --- 12
"Heirs and Assigns" ------- 13
Seals of Grantors ---------- 14
Attestation Clause -------- 14
Witnesses ---------------- 14
Reservations -------------- 14
Joinder by Wife --------- 15
Certificate of Wife's Ac-
knowledgement ---------- 15
Validating Statutes ------- 16
Acknowledgment --------16-17
What Officers May Take
Acknowledgement ------- 17
Notaries Expiration of Com-
mission ---------------- 18
Failure to Affix Official
Seal ------------------ 18
Deeds Between Husband and
Wife ------------------ 19
Deeds by Married Women-- 19
How Execution Proven__-- 20


Form Books ------------- 20
Marital Status of Grantor_ 20
Interlineations and Erasures 21
Nonjoinder o f Trustee's
wife ------------------22
How Corporation May Exe-
cute ----- ----- 23
Corporate Seal -----------24
Revenue Stamps ---2 24-25-26
Partnership Deeds --------26
Deeds from Wife to Hus-
band ------ -------- 27
Charter of Corporations ---- 27
Treasurer's Affidavit ------ 27
Record of Letters Patent_ 28
Foreign Corporations ----- 28
Execution by Parties in Par-
ticular Capacity --- ---29
Dower and Child's Part---- 30
Escheat ----------------- 31
Deed by Executor --------- 31
Discussion --------------- 33
Service of Process on Min-
ors -------------------- 34
Making Wife a Party to Suit 35
Executor or Administra-
tor --------------------_ 35
Notice of Sale ----------- 36
Confirmation of Sale ------ 36
As Objection to Documenta-
ry Title ----------- ---- 36
Adverse Possession Under_ 37
Levy of Taxes and Fixing
Millage ---------------- 38
Assessment Roll ----------- 39

Equalization of Assessments 40
Notice of Sale ------------ 40
Record or Report of Sale-- 41
Form of Certificate ------- 41
Publication of Applicaf on
for Deed -------. ..-..- 41
Form of Deed ----------- 41
Deeds from Municipalities- 42
Grounds for Suits to Set
Aside ----------------.. 42

What is Sheriffs Deed----- 43
Discussion __- --------- 13
Service of Process ----- 44
What Claimant Through
Sheriff's Deed Must Prove 44
Notice of Sale----------- 44
Form of Deed ------.-.... 4
Wife's Dower Not Barced-45
Lands as Assets in Hands of 46
Statutory Provisions f o r
Sale of Lands -------- 46
Erroneous Section Nos. in
1919 Statute ------------ 47
Jurisdiction of Courts ------ 47
Sale of Lands in Other
Counties --------------- 47
Public and Private Sale----- 48
Who Makes Sale -------- 48
Report of Sale ----------- 48
Executor or Administrator
as purchaser ----------- 49
Old Statute when Land
Could Not Be Equitably
Divided ---------------- 49


Contracts of Sale by De-
cedent ----------------- 49
Property of Infant Purchas-
ed at Peril ___------- 50
Authority to Sell Infant's
Property --------------- 50
Married Minor May Con-
vey --------------------- 50
Jurisdiction of Courts ----. 50
Notice of Sale ------------- 50
Report and Confirmation of
Sales ------------------- 51
Validating Statutes --------- 51
Foreign Guardians --_----- 52
Guardians of Idiots and Lu-
natics ----------------- 52
Insane Married Women ---- 53


How Trust May Be Created- 53
Conveyances by Trustees -- 54
Execution and Acknowledge-
ment by --------------- 54
Wife Need not Join -------- 55

The Bankruptcy Act ------ 55
When Title Passes -------- 55
How Jurisdiction Obtained-_ 56
Notice to Creditors ------- 56
Sales of Real Estate ------ 56
Dower Rights of Bankruot's
Wife ------------------ 57
Notice of Sale -----_-- 7

Requisites of Assignment --- 57
Oath of Assignor -------- 58
Bond of Assignee ---------- 58
Notice to Creditors -------- 59
Sale of Property ---------- 59
Semi-annual Statements .-- 60
Discharge of Assignee ---. 60

Essentials of Valid Will ..- 61
Probate of Will -----_--- 62
Where Record Found ---- 62
What Law Governs --_---- 62
Exemplifications --------- 63
Evidence --- --------- 63
Will Should be Read ----- 64
Description of Property --- 65
Words of Inheritance ---- 65
Need not be Under Seal --- 65
Construction of Will ----- 65
After Acquired Property -_ 66
Devise of Homestead ----- 66
Administration _--------_ 67
Estates Subject to Debts--- 68
Notice to Creditors ------- 68
Notice of Final Discharge_ 68
Deeds by Parties Purporting
to be Heirs --- ---- 69
When No Administration
Necessary--- ------- 69

Irregularities in acknowledg-
ment __- -----------_ 70
Statute of Limitations .--- 70
Release of Mortgage .--.-- 71


Requisites of Satisfaction_71-72
Mortgage as Lien ------- 72
Satisfaction by Assignee _- 72
Record of Assignment 72
Mortgage by Married Wo-
man ---------------------- 72
Judgment as Lien --------- 73
Decree as Lien ------------ 73
Satisfaction -------..-------73
Statute of Limitations------ 74
When Judgment B.comes
Lien -------------------- 74
Payment by Surety Doc-; Not
Discharge -______ .- 74
Foreign Judgments --- ..... 75
Judgments On Constructive
Service -------------- 75
Priority Over by Purchase
Money Mortgage -------- 76
Homestead ------------ 76
Service of Process ------- 76
Where Evidenced ---------- 77
Certain Certificates Cancell-
ed ---------------------- 77
Satute of Limitations ------ 77
Redemption -- -------- 78
State's Lien for Taxes ----78
Purchasers with Notice of
Improvements -------- 78
Filing of Lien -----_----- 79
Statute of Limitations ----- 79
Arises by Implication of Law 79
Notice of Lien ------------ 80

Notice of Lien'--------- 80
Highways ------------- 8r
Manner of Subdivising _--- 8r
Sufficiency of Map ------ 8r
Requisites of _-------- 83
Recording --- --------- 83
Validating Statutes ------ 84
Statutory Proceeding ---_ 85
Bill of Complaint------ 85
Service of Process ------- 86
Minors as Defendants ------ 86
Notice to Guardians _------- 86
Decree ---- -----------87
Appointment and Report of
Commissioners ------- 87
Confirmation --- 88
Notice of Report -------- 88
Sale by Commissioners ---- 89
Notice of Sale ------------89
Confirmation of Sale ---- 89
Amicable Division ---------9
Debts of Decedent ------- 90
Lis pendens --------------- g90
Rights Under __-------- gr
Notice of Termination --- 9r
Time as Essence .....-----91-92
Rights of Lessee ---------- 93
What Judgment Must State 95
Adverse Possession ------- 95


Statute of Limitations --- 95
Possession Defined -------- 96
Service of Process ------- 97
Infants as Parties _------ 97
Decree as Conveyance ---- 97
Chancery Proceeding ------98
Removing Invalid Tax Deed 98
Possession -------------- 98
Parties ----------------- 99
Statutory Provisions ----- 99
Service on Unknown De-
fendants --------------oo
Service on Known Defend-
ants ------------------ 100oo
Order for Publication --_ ioo
Statutes Should be Anal-
yzed ----------------I

Return Day of Order ----IoI
Description of Property .--.Io
Infants as Defendants ------oi
Guardians of Unknown De-
fendants --------------10o2
Answer of Guardian ------ 102
Naming Parties in Bill ..o02
Suggesting to Client to
Bring Suit ------------103
Final Decree -----------103

Examining Abstracter's Cer-
tificate -------------- 4
Municipal Taxes ---------10o4
Public Improvements ----104
Report of Tax Sale -------104

Form of Opinion ---------o5


Adams v. Malloy -------20
Allred v. McGahagan ---- 36
Ansley v. Graham -------- 13
Asia v. Hiser ------------ 93
Ayers v. Pullman ------- 95
Bond Lbr. Co., v. Masland_ 79
Bradley v. Raulerson ------ 69
Brown v. Avery-------- 61
Bowen v Grace ----------- 80
Brown v. Marzyck -------- 36
Brokaw v. McDougall ---- 66
Browne v. Browne -------- 70
Byrd v. Byrd ------------ 19
Campbell v. Carruth ------ 13

Campbell v. MIcLaurin Inv.
Co. ------------------- 24
Caro v. Caro --------- 66
Carolina P C. Co., v Roper 4
Cam v Haisley -------15-19-21
Cheves v. First Natn'l Bk. 76
Clem v. Messerole --------- 44
Cobb v. Hawsey ---.----. 100
Com. Nat. Bk. v. Jordan -_29
Coogler v. Rogers --------- 4
Cross v. Aby -------- 22
Davis v. Shuler ---------- 44
Day v. Hurchman ------- 87
DeCottes v. Clarkson --. 66


DeLong v. Marshall ----- 80
Donald v. McKinnon ------- 44
Douglass v. State Bank-.. 23
East Coast Lbr. Co., v. E.
Y. Co. --------------14-18
English v. English -------- 21
Evans v. Summerlin ---.. 16
F. L. R. P. Co., v. Anderson 09
Finn v. Bowden ----------. 94
Forssell v. Carter ---- -- 2
Frazier v. Boggs -------63-66
Gamble v. Hamilton -------- 4
Gibson v. Tuttle ---------- 99
Godwin v. Phifer -------- 93
Griffith v. Griffith ------- 67
Hoodles v. Jernigan ------- 44
Hutchinson v. Stone -----15-16
I. K. Co., v. Vause -------- 24
Ivey v. Peacock --------- 13
Jarrell v. McRainey -------- 37
Johns v. Bowden ---------- 67
Johnson v. McKinnon ----- 45
Johnson v. Rhodes -------- 45
Jordan v. Sayre ---------- 70
Kendrick v. Latham --22-44-45
L'Engle v. Overstreet ---- 94
Lafayette L. Co., v. Cas-
well ---------- ----- 26
Laflin v. Gato ------35-86-ioo
McCaskill vs Union N. S.
Co. ------------------- 93
McDermott v. Thompson -- 34
McIntyre v. Parker -----50-51
Massey v. Hubbard ------ 4
Mattair v. Payne --------- 90
Milton v. Milton------- 85
Mote v. Morton ---------35-86
Myakka Co., v. Edwards---- S

Norris v. Billingsley ------- 19
Ohio Butterine Co., v. Har-
grave ----------------- 21
Palmer v. Palmer ------. 66
Parken v. Safford ------ 14
Pettey v. Mays ----------- 36
Phifer v. Abbott -------- 69
Purnell v. Reed ---------- 66
Rawlins v. Dade Lbr. Ca. 19
Reddick v. Meffert -----30-31
Rewis v. Williamson ------ 80
Richbourg v. Rose ------14-96
Roan v. Holmes ------- 35-45
Robinson v. Randolph ----- 65
S. P. O. & G. R. Co., v.
Van Ness ------------ 14
Sanders v. Ransom -------- 12
Saxon v. Rawls -----------67
Scott v. Jenkins ----------- 35
Scull v. Beatty --------- 66
Shrader v. Shrader o------- O
Smith v. Klay ------------ 4
Stewart v. Hunter------ 87
Summer v. Mitchell ---1-- 5-18
Thomas v. Williamson--- (67
Van Ness v. Royal P. Co.-- ro
W. C. L. Co., v. Griffin__ 99
Walker v. Heege -------70
Walker v. Redding -------- 66
Ward v. German Am. Lbr.
Co. -----------------14-24
Welborn v. Pierce ---------103
Wilkins v. Lewis --------- 73
Williams v. Crocker ------ 58
Wilson v. Fridenburg ---- 66
Wilson v. Matheson -------- 74
Winfield P. Co., v. Truitt-- 28
Wofford v. Dykes --------- 44



Compiled Laws 1914 Sec.
Sec. Fage 1605
60 7 1631
308 18 1632
428 to 596 38 1633
513 39 1634
518 39 1649
519 39 1721
522 39 1722
522a 39 1723
525 40 1725
532 38 1832
533 39 1865
529 39, 40 1866
535 39 i866a
545 78 I866b
558 40 i866c
559 40 i866d
560 41 1895
565 41 I897a
567 41 1897b
574 41 1902
575 41 1939
576 41 1940
577 42 1941
589 42 1942
590 42 1943
591 37 1944
1402 34, 44, 76 1945
1403-1411 76 1946
1404 76 1949
1405 76 1950
1406 34, 76 1955
1407 76 1970
1410 76 2115
1411 76 2210
1413-1415 76 2211
1519 63 2223
16oo 73 2271
16o0 75 2272
1602 75 2273

70, 74
71, 72
34, 86, 97, 99, 1oo
34, 86, 97, 100
86,97, 101
85, 87
85, 87, 88, 89
85, 89, 90
61, 65

2418 (2)

23, 53
23, 53
19, 27



15, 16
83, 84
15, 17, 20

Sec. Page LT
2682a-2682h 28
2926 58 1899 Ch.
2927 58
2928 58 1903 Ch.
2929 59 1903 Ch.
2930 59 1903 Ch.
2931 59 1905 Ch.
2932 60
2933 6o 1909 Ch.
2933 60
1911 Ch.
General Statutes
1906 1911 Ch.
559 40 1915 Ch.
2295 69 1915 Ch.
Revised Statutes 1915 Ch.
1892 1915 Ch.
1794 66 1915 Ch.
1917 to 1936 46 I915 Ch.
1955 23 1915 Ch.
2100 52 1917 Ch.
2101 52 1917 Ch.
2102 52 1918 Ch.
1918 Ch.
McClellan's Digest 1919 Ch.
Page Sec. Page 1919 Ch.
85 37 46
88 42 49 1919 Ch.
89 43 49 1919 Ch.
90 44 49
216 10 17 1919 Ch.
233 23 23 1919 Ch.
985 1 6T 1919 Ch.


4730 66
5218 18
5145 13
5144 48
5393 100
5904 50
6227 I00
6217 16
6875 28
6876 28
6908 34-76
6909 72
6943 53
6925 22
6859 77
7364 50
7365 69
7725 31
7752 76
7876 68
7854 46
7853 34
7849 15-17




The examination of title to real estate consti-
tutes a large part of the business of almost every
general practitioner of law in Florida, and the
ever increasing development of the State in a ma-
terial way will serve to increase, rather than dimin-
ish, this branch of the lawyer's work.
The object of this pamphlet is to point out
some of the cardinal points to be borne in mind in
passing upon the validity of a title. It is not, and
is not intended to be, an exhaustive treatise of the
subject, but its purpose is to serve as a guide.
The public records affecting the title to real es-
tate are found in the offices of the Clerk of the Cir-
cuit Court and County Judge in the several coun-
ties of the State.
The abstract of title is simply an index to the
records affecting the particular tract of land cov-
ered by the abstract. Some abstracts furnish more
information than others, but any of them should
be considered by the attorney only as an index if
he has access to the records themselves.
The title examiner should always go to the rec-
ords and not rely upon the abstracter, as the ab-
stracter does not pretend to be a lawyer and to be


able to pass upon the legal sufficiency of recorded
instruments. Again, however accurate he may be,
it is possible that he may have overlooked some im-
portant provision or requirement of a deed or
other instrument.
In some of the new counties which have been
formed from other counties, the records of the old
county or counties which affect lands in the new
counties, have not been transcribed to the records of
the new counties. In such event, it is well to im-
press upon the client the advisability of examining
the records themselves. If he does not agree with
you, or declines to pay the expenses of such exam-
ination, the abstract alone may be examined, par-
ticular attention being called to the fact that the
opinion is based solely on the abstract.
There is no set form for an opinion upon a title.
Probably no two lawyers in the State use the same
form. The land covered by the abstract is, for
convenience, frequently referred to as the "caption
land." A form which may be employed will be
found at the end of this work. This, of course,
will have to be varied according to the objections
found in the particular title being examined.
The examiner may find defects in an instru-
ment affecting the title and yet such instrument
may not be fatally defective, as, for instance, where
the initials of the name of the grantor are stated in
the caption of the deed, but the grantor has signed


his full name. Such discrepancy is usually noted
in the opinion with the statement that the examiner
presumes that the parties are identical. Other ques-
tions of a similar nature will frequently arise.
The initial entry of an abstract is usually a final
receipt from the Registrar of the local United
States Land Office or a patent from the United
States or a deed from the State of Florida. Some-
times, however, an abstract will only purport to
show the title to the land from a certain date. If
this is the case, particular attention should be
called to this fact in the opinion.
If the land has been conveyed by the Trustees
of the Internal Improvement Fund of the
State of Florida, it should be ascertained whether
the land has been granted by the United States to
the State of Florida. This information can usu-
ally be had from the Commissioner of Agriculture
of the State of Florida, or from the General Land
Office at Washington, D. C. (The Sixteenth Sec-
tion in each Township, unless previously conveyed,
was granted by the United States to the State of
Florida under Act of Congress of March 3rd,
The examiner should always call attention to
the fact that the title of the owner shown by the
abstract is subject to the rights and interests of par-
ties in possession, if other than the party shown by


the abstract to be the owner. The possession of
property is notice to the world of the rights of the
The examiner should always carefully read the
certificate of the abstracter showing what records
the abstract purports to cover. Certain records
are sometimes expressly excluded from the ab-
stract and this fact is usually noted in the certifi-
cate. If the examiner finds this to be the case, he
can search the original records not abstracted. If,
for instance, taxes for the current year have be-
come delinquent, but the sale for taxes has not
taken place, the abstracter usually states in his cer-
tificate that the abstract does not show the status of
the land as to taxes for the current year. The ex-
aminer then can ascertain by inquiry whether the
taxes have been paid.
If the abstract is an old one and has not been
re-certified by the abstracter shortly before exam-
ination thereof, it is well to suggest to the client
that he have the abstract brought down to date.
The opinion should be confined to the date of the
last certificate of the abstract.

1Massey vs. Hubbard, 18 Fla. 688; Carolina
Portland Cement Co. vs. Roper, 68 Fla. 299, 67
So. 115; Coogler vs. Rogers, 25 Fla. 853, 7 So.
391; Gamble vs. Hamilton, 31 Fla. 401, 12 So.
229; Smith vs. Klay, et al., 47 Fla. 216, 36 So. 5.


For the benefit of those examiners who are not
familiar with the descriptions employed in deeds
conveying unplatted lands, we may say that Flor-
ida was surveyed by the United States Govern-
ment long ago into Sections, Townships and
Ranges, and reference to land as being described
according to Government Survey means its loca-
tion in a certain Section, Township and Range.
An examination of a sectional map of the State
will show a line running east and west through the
City of Tallahassee, denominated "Base Line";
also a line running north and south, also through
the City of Tallahassee, designated "Tallahassee
Meridian." Lines were surveyed east and west
and six miles apart north and south of the Base
Line. These formed township lines, and lines
were run north and south six miles apart east and
west of the Tallahassee meridian. These lines
formed Range Lines, and the squares made by the
intersection of the township and range lines consti-
tute the townships. Beginning at the Base Line,
the townships are numbered north and south there-
of, and beginning at the Tallahassee meridian, the
ranges are numbered east and west thereof. The
square or township formed, as above stated, by the
intersection of the township and range lines, is six
miles square. This is divided into thirty-six tracts,
each one mile square and containing six hundred
forty acres. These are called sections and are


numbered from one to thirty-six, beginning at the
upper right-hand corner. Sometimes a section
will contain more or less than six hundred forty
acres, owing to irregularity in the lines thereof.
Such sections are sometimes referred to as "frac-
tional" sections, and, again, sections were surveyed
into lots. Some townships contain more than thir-
ty-six sections, this usually occurring where Span-
ish Grants have been surveyed and numbered as
A section of land is divided into four equal
parts by bisecting the same with lines running
east and west and north and south. The lower
right-hand fourth is called the Southeast Quar-
ter; the upper right-hand fourth, the Northeast
Quarter; the lower left-hand fourth, the South-
west Quarter, and the upper left-hand fourth, the
Northwest Quarter. The quarter sections may
likewise be divided and so on almost ad infinitum.
The Northeast Quarter of the Northwest Quar-
ter, for instance, would be the upper right-hand
fourth of the upper left-hand fourth of the section.
Until the examiner becomes so familiar with
this method of describing land that its location is
immediately fixed in his mind upon reading it, it
behooves him to draw a section upon paper and
accurately locate the land in question therein, and
frequently refer to it.


We have not discussed in this pamphlet Span-
ish Grants, as they will not be encountered fre-
quently except in some counties. Examiners who
come in contact with these grants work them out as
best they can. The descriptions usually will be
found to be very indefinite, but the location of the
grant ordinarily can be determined. We do not
believe that descendants of claimants of these orig-
inal grants would be heard to assert rights at this
late day, especially if the property has been held
adversely. See Sections 60 and 2587 of Florida
Compiled Laws. But they are frequently made
defendants in suits to quiet title.

~_ __

Examination of Title to Real Estate

in Florida



Of the many instruments affecting the title to
real estate, deeds of conveyance naturally predom-
inate in number. They will, therefore, be given
first consideration.
Three kinds of deeds are generally used in
Florida for the voluntary conveyance of real es-
tate, namely: General Warranty Deeds, Limited
Warranty Deeds and Quit-Claim Deeds, the sec-
ond mode of conveyance being of little more, if
any, dignity than a quit-claim deed, the grantor in
the former case only warranting the title against
parties claiming under him, while in the latter
there is no warranty at all.
As long ago as 1891 the Legislature of Flor-
ida simplified the form of a general warranty
deed. The form prescribed by the Legislature
will be found in Section 2449 of Florida Com-
piled Laws. It is equivalent to a deed containing



the common law covenants. Sec. 2450 Fla.
Comp. Laws. It must be executed and acknowl-
edged as-provided by law regulating conveyances
of realty by deed. Sec. 2451, Fla. Comp. Laws.
The statutory form has not been universally
adopted, and in many of the counties will be found
the old form, containing all, or nearly all, of the
common law covenants of title. In order, how-
ever, for the statutory form to be effectual as a gen-
eral warranty deed, it is essential that it contain a
covenant that the grantors fully warrant the title.1
If a title otherwise is valid, it is no objection
thereto that a former owner may have conveyed
the land by a limited warranty or quit-claim deed.
Where there are no important defects in a title, it
generally will be found that conveyances thereof
have been made by general warranty deeds. The
use of either of the two other forms of conveyance,
when defects do not appear in the abstract, causes a
suspicion in the mind of the careful examiner that
there was some reason for not making a general
warranty deed, and will cause him to be unusually
cautious and endeavor to learn if there are mat-
ters in pais which affect the title.
We hereinbefore have tried to impress upon
the reader the prime importance of examining the

1Van Ness vs. Royal Phosphate Co., 60 Fla.
284, 53 So. 381, 30 L. R. A. (N. S.), 833, Ann.
Cas. 1912C, 647.


original records where access may be had thereto.
The public records are usually kept in order and
the examiner will find the officials kindly disposed
and ready to assist the beginner in finding the rec-
ord books which he wishes to examine. The
earlier records were written by hand and the ex-
aminer should be unusually careful in his exam-
ination of these records to see that the abstracter
has correctly copied names of parties, description
of lands, etc. As hereinafter pointed out in a dis-
cussion of release of dower, the examiner also must
be careful in his examination of the instruments
recorded in form books to see that essential words
have not been omitted.
In examining deeds of conveyance, the follow-
ing matters should be borne in mind:

(a) The names of the grantors as recited in
the beginning of the deed and as signed and as re-
cited in the acknowledgment should be compared.
Differences here should be noted, but if the identity
of the parties is clear and there is nothing to arouse
a suspicion that the deed is fraudulent, serious ob-
jection is not made to such differences.

(b) The name of the grantee should be ob-
served in order to see if he conveyed by the same
name as that by which he acquired title; if the
name varies in his deed of conveyance from that


by which title was acquired, it should be noted in
the opinion.2
(c) The date of the execution and acknowl-
edgment, as well as the date of the record of each
instrument should be noted, and any discrepancies
mentioned in the opinion. The record sometimes
shows the deed to have been acknowledged before
it was executed.. In such case the original deed
should be obtained, if possible, and corrected and
re-recorded. If this is not possible, a quit-claim
deed should be obtained.
(d) The granting clause of a deed of convey-
ance usually consists of the words "grant, bar-
gain, sell, convey and confirm," but sometimes
merely the words "bargain and sell," or "sell and
transfer," or words similar to these are used. No
particular words of grant are necessary in Florida,
if the instrument shows a plain intent to convey,
but if the granting clause is very informal, note of
the same should be made and reference to the fact
set forth in the opinion that rio particular words
are required.3
(e) The description of the property as con-
tained in the record should be carefully compared

2This defect may be cleared up by proper af-
fidavit as to identity.
3Sanders vs. Ransom, 37 Fla. 457, 20 So. 530.


with the description in-the abstract. The general
rule as to descriptions, is that if it is possible for
a surveyor to locate the land described in the con-
veyance, the description is sufficient.4 A deed is
not necessarily fatally defective because the State
and County in which the land lies is not stated.
See Ansley et al. vs. Graham, et al., cited supra,
note 4.

(f) Prior to the 3rd day of August, 1903, in or-
der to convey a fee simple estate, it was necessary
that a deed of conveyance run to the grantee and
his or her heirs, as the case might be.5 Sometimes
the word "heirs" does not occur in the granting
clause but is found in the habendum clause. If it
does, we think the deed is sufficient. If the word
"heirs" does not occur either in the granting clause
or habendum clause of a deed executed prior to the
above date, the grantee acquired only a life estate
in the property purported to be conveyed, and, of
course, could only convey a life estate.6

4Campbell vs. Carruth, 32 Fla. 264, 13 So. 432,
Ansley et al. vs. Graham, et al., 73 Fla. 388, 74 So.
5Chapter 5145, Acts of 1903; Fla. Comp. Laws,
Sec. 2456; Ivey vs. Peacock, 56 Fla. 440, 47 So.
6Ivey vs. Peacock, Supra.


(g) In order to convey a legal title, it is neces-
sary that the deed be executed by the grantors un-
der seal.7 The seal is generally shown on the rec-
ord and deed thus: (Seal) or (L. S.).8
(h) If the attestation clause of the deed is
other than the words, "signed, sealed and delivered
in the presence of," it should be noted, but very in-
formal attestation clauses have been upheld by our
Supreme Court.9
(i) There must be two subscribing witnesses
to a deed of conveyance in Florida.o1 It is im-
portant to note each deed carefully in this particu-
(j) If there are reservations or exceptions, or
liens reserved, in the deed, these should be noted if
they are of continuing effect.11

7Sec. 2448, Fla. Comp Laws.
'Fla. Comp. Laws, Sec. 2484 and note.
9Richbourg vs. Rose, 53 Fla. 173, 44 So. 69,
125 Am. St. Rep. io6i; East Coast Lbr. Co. vs.
Ellis-Young Co., 55 Fla. 256, 45 So. 826; See Sec.
2448, Fla. Comp. Laws.
"0Sec. 2448, Fla. Comp. Laws; Parken vs. Saf-
ford, 48 Fla. 290, 37 So. 567; Ward vs. German
Am. Lbr. Co., 62 Fla. 582, 56 So. 565.
"S. P. O. & G. R. Co. vs. Van Ness, 45 Fla.
559, 34 So. 884.


(k) If the deed was executed by a married
man, there should have been a joinder therein by
his wife, as is usually done, although sometimes
the wife executes a separate relinquishment of
dower and does not join in the execution of the
deed itself. The separate relinquishment in such
cases should be executed with the same formality
as a deed.12
If the wife joined her husband in the execution
of the deed, the certificate of her acknowledgment
should show that upon an examination made by
the officer separately and apart from her hus-
band,13 she acknowledged that she executed the
deed "freely and voluntarily and without compul-
sion, constraint, apprehension or fear of or from
her husband."14 Sometimes one or more of the
words "freely and voluntarily" or "without com-
pulsion, constraint, apprehension or fear" are
omitted. Such variance from the wording set
forth in the Statute should be noted, but if the
deed was executed prior to April I, 1911, atten-

12See generally, Fla. Comp. Laws, Secs. 2461-
2462 and annotations. Summer vs. Mitchell, 29
Fla. 179, io So. 562; Fla. Comp. Laws 2481 and
notes, and Chap. 7849, Laws of Fla., Acts of 1919.
"Carn vs. Haisley, 22 Fla. 317.
14Fla. Comp. Laws, Sec. 2462; Hutchinson vs.
Stone, 84 So. 151.


tion is generally called to the fact that the ac-
knowledgment has probably been cured by vali-
dating Statutes enacted for such purpose."5 The
examiner should be careful to note the wording of
the acknowledgment by the wife if the deed was
executed after April i, I9I.151
The wife's acknowledgment sometimes states
that she executed the deed of conveyance for the
purpose of releasing and relinquishing her dower,
when, as a matter of fact, she had a separate estate
in the property. Such acknowledgments, how-
ever, have been held to be sufficient,16 and we
think, also, that if the wife had only an inchoate
dower right in the real estate, and acknowledged
that she executed the deed and joined her husband
in the execution thereof for the purpose of convey-
ing her separate estate, the acknowledgment would
be sufficient. Acknowledgments are sometimes
worded so as to cover both cases. The Statute7
does not require that the wife acknowledge for
what purpose she executed the deed, but the prac-
tice of stating the purpose seems to have become a

"See- Chapter 6217, Acts of 1911 (Fla. Comp.
Laws, Sec. 2476a).
'"5Hutchinson vs. Stone, 84 So. I5I.-
"Evans vs. Summerlin, 19 Fla. 858.
1Sec. 2462, Fla. Comp. Laws.


(1) The certificate of acknowledgment should
state its venue in the beginning, as, for instance:
"State of Florida, County of Volusia," and should
recite, if taken elsewhere than in the State of Flor-
ida, prior to the i3th day of June, 1892, that the
grantors were personally known to the officer tak-
ing the acknowledgment, or words to like effect,
or that he had proof of theii- identity before taking
the acknowledgment.171 And we think this is true
of the present Statute, even though the acknowl-
edgment is taken within the State.17%

(m) Section 2481, Florida Compiled Laws,
prescribed before what officers acknowledgments
of instruments affecting real estate in Florida
might be made. This section was amended by
Chapter 7849, Laws of Florida, Acts of 1919. It
will be noted that the Statute as it was before
amendment and as it is at present required that the
official seal of the officer taking the acknowledg-
ment be affixed to the certificate of acknowledg-
ment. It is sometimes difficult to determine from
the record of an instrument whether the officer's
seal was in fact affixed to the original instrument.
If the certificate recites that the seal was affixed,
the law raises a presumption that it was affixed as

l"McClellan's Digest, Page 216, Sec. io.
17"Sec. 2486, Fla. Comp. Laws.


required by law, as there is no duty upon recording
officers to record official seals.18
By the enactment of Chapter 5218, Laws of
Florida, Acts of 1903 (now Section 308, Florida
Compiled Laws), it became necessary for Notaries
Public who take acknowledgments relating to or
affecting the sale, mortgage, transfer or assignment
of any interest in real or personal property, to state
the date of the expiration of his or her commis-
sion. We do not believe failure to do this would
invalidate an instrument for the reason that the
Statute does not expressly make it do so, and be-
cause the existence or non-existence of the author-
ity could be established by extrinsic evidence, and
for the further reason that the law imposes a pen-
alty upon the notary for such failure. It is well
to note such omission in the opinion, and have
it corrected if possible. Such omission, how-
ever, may be overlooked if there is a magistrate's
certificate appended to the deed showing that the
notary was a duly commissioned officer at the time
of taking the acknowledgment.
Failure of the officer taking an acknowledg-
ment to have an official seal does not excuse the

"sSummer vs. Mitchell, 29 Fla. 179, ro So. 562,
14 L. R. A. 815, 30 Am. St. Rep. 106; East Coast
Lbr. Co. vs. E. Y. Co. 55 Fla. 256, 45 So. 826.

18 .


requirement of the law that an official seal be af-
(n) Sometimes the abstract discloses that the
husband has made a deed directly to his wife with-
out the joinder therein of the wife. If the land
thus attempted to be conveyed is the homestead
property the deed is absolutely void.'9 And, while ,
we would not say that a deed of property not the
homestead thus made would be void, we think the '
Supreme Court might so hold, and it is well to call
attention in the opinion to the fact of non-joinder
and suggest that a quit-claim deed from the hus-
band and wife be obtained.
(o) If the title to the land was vested in a
married woman, her husband must have joined her
in the execution of the deed of conveyance thereof e
in order to divest her of the title.20 The execution '
of a separate instrument by the husband is not suf- .9.-/ yr,.
ficient.21 This, however, does not apply where the
husband has been insane foi a year or more.211

"18sNorris vs. Billingsley, 48 Fla. 102, 37 So.
"Byrd vs. Byrd, 73 Fla. 332, 74 So. 313. See
Rawlins vs. Dade Lumber Co.,-So.-recently de-
cided. See Sec. 2457, Fla. Comp. Laws.
20Sec. 2460, Fla. Comp. Laws.
2Carn vs. Haisley, 22 Fla. 317.
21%Sec. 2465, Fla. Comp. Laws.


(p) Sometimes the execution of a deed of
conveyance is proven by one of the subscribing
witnesses.22 This is not sufficient to bar a married
woman's dower right even though she joined in the
execution of the deed.23 As to a married man or
a single person, if the execution is proven by the
affidavit of a subscribing witness, there should be a
recital by the officer that the witness was person-
ally known to him, or words to like effect, or that
he had proof of his identity before taking the af-
(q) When a deed is recorded in a form book,
it is well to carefully examine the acknowledgment
of the wife, as sometimes essential words are omit-
ted when the book is printed. For instance, the
word "compulsion" may be omitted from the cer-
tificate of the wife's acknowledgment, and unless
it was in the original deed and inserted in the
printed form when recorded, the deed is defective.
But see the discussion of validating statutes, supra.
(r) It frequently happens that the deed does
not indicate whether the grantor was married or
unmarried at the time of making the same. Par-
ticular attention should be called to this in the

22Sec. 2481, Fla. Comp. Laws.
23Adams vs. Malloy, 70 Fla. 491, 70 So. 463.
24Secs. 2481, 2482, Fla. Comp. Laws, and
Chapter 7849, Laws of 1919, Page 135.


opinion. We have already pointed out that a mar-
ried woman's deed is void without the joinder of
her husband therein, and that if the grantor was a
married man, there must be a release of dower by
the wife. An affidavit by someone acquainted
with the grantor at the time of the execution of the
deed as to his or her marital status will serve to es-
tablish the fact that the grantor was or was not
married. If the grantor was a married man, a re-
linquishment of dower should be obtained from
the wife, if she is alive. If she is dead, her dower
right was extinguished upon her death. If the
grantor was a married woman, a new deed should
be obtained from her and her husband, both join-
ing in the same deed.25 Sometimes the abstract
shows that the property under examination was
conveyed to both husband and wife, thus creating
an estate in entirety. In this case upon the death
of one of the spouse, the entire estate goes to the
survivor.25%' If the deed does not designate the
grantees as husband and wife, but they were in fact
husband and wife, the cited decisions would be ap-
plicable, we think.
(s) If, upon examination of original deeds, any
interlineations or erasures appear, these should be

25See Carn vs. Haisley, Supra.
2512English vs. English, 66 Fla. 427, 63 So. 822;
Ohio Butterine Co. et al. vs. Hargrave et ux., 84
So. 376.


noted in the opinion. Our Supreme Court has
held, however, that in the absence of evidence to
the contrary, an alteration in a deed will be pre-
sumed to have been made contemporaneously with
the execution of the instrument,26 but the presump-
tion is overcome if the alteration is suspicious on
its face.27
(t) The examiner will sometimes find the
word "Trustee" or the words "as Trustee" after
the name of the grantee or in the granting clause
of a deed, no other or further disclosure being
made of the terms of the trust upon which, or the
name of the cestui que trust for whose benefit, the
property was conveyed. Then it may be found
that the grantee in such deed has conveyed the
property simply describing himself or herself in
the deed as "Trustee," and executing it likewise,
without a joinder therein of the spouse. If there
was in fact, no trust created (a fact not easily as-
certained), a quit-claim deed should be obtained
from the grantee in which the wife or husband, as
the case may be, should join. The Legislatures of
both 1915 and 1919 attempted to remedy this sit-
uation,28 but there has been no judicial interpreta-

2~Kendrick vs. Latham, 25 Fla. 819, 6 So. 871.
27Cross vs. Aby, et al., 55 Fla. 311, 45 So. 820.
28See Chap. 6925, Acts of 1915, and Chap.
7838, Acts of 1919.


tion of these statutes, and the 1919 Act will not be-
come effective until the adoption of the Revised
General Statutes. It will be noted that the Act of
1915 did not purport to immediately divest the un-
known cestuis que trustent of their interest in the
property, while the Act of 1919 does. It will also
be noted that these acts of the Legislature purport
to declare that deeds such as we have described
above, only conveyed a personal interest to the
grantee, making it, therefore, more imperative
that a quit-caim deed be obtained, in which the
grantee and the spouse should join. We think
Secs. 2452 and 2453, Fla. Comp. Laws, have refer-
ence to cases in which a trust actually exists.
(u) The Statutes of Florida now prescribe
and have heretofore prescribed how a corporation
may execute a deed of conveyance.9 The Statute,
however, is not mandatory and the corporation
may authorize some other person to execute the
deed in its behalf.30 If, however, the deed is not ex-
ecuted by the officials named in the Statute, we
think the examiner should require a quit-claim
deed from the corporation, or be satisfied that the
party executing the deed was fully authorized to

2"Sec. 2459, Fla. Comp. Laws; Sec. 1955, Rev.
Stats, 1892; McClellan's Digest, Page 233, Sec. 23.
30Douglass vs. State Bank of Orlando, 82 So.
593. See Sec. 2459a, Fla. Comp. Laws.


do so, and such evidence as may be obtained should
be placed of record. We know of no law requir-
ing the secretary of a corporation to attest its deed,
although the charter or by-laws may do so. If the
deed is executed by any of the officials named in
the Statute, we think it may be accepted as suffi-
cient. It probably is not necessary that there be
two subscribing witnesses to the execution of the
corporation's deed, as is true of an individual's
When a corporation purports to have executed
an instrument under its corporate seal, and the seal
appears to have been omitted, but the officer exe-
cuting the same on behalf of the corporation has
affixed a private seal to his signature, the corpora-
tion may be held to have adopted the private seal
as its own.32 However, if a new deed can be ob-
tained, we would suggest that it be done.
(v) The Federal Government has several
times during the history of our country, imposed
taxes upon the conveyance of real estate and other
instruments, as a revenue measure, which taxes
have been evidenced by the use of adhesive stamps

31I. K. Co. vs. Vause, 55 Fla. 641, 46 So. 3;

32Campbell vs. McLaurin Inv. Co., 74 Fla.
501, 77 So. 277.


affixed to the deed or other instrument. We do not
believe that it has ever been the intention of Con-
gress to penalize the unintentional omission to af-
fix such stamps by declaring the deed to be void,
and we think an investigation of the authorities
would disclose that such is the consensus of opin-
ion of the courts. Our Supreme Court has never
passed upon the validity of such a deed.
As the Revenue Act of June 13, 1898, which
required stamps to be affixed to deeds of convey-
ance is no longer in force, and a deed from which
the stamps had been omitted could hardly be cor-
rected at this late day, we do not believe it would
be worth while to call attention to such omission.
We think the only Acts of this nature to which the
examiner need give attention are those of October
22, 1914, and October 3, 1917. The Act of Octo-
ber 22, 1914, became operative so far as deeds of
conveyance were concerned, December I, i914,33
and was repealed September 9, 1916,"4 and the Act
of October 3, 1917, went into effect so far as it re-
lated to deeds, December i, i917,35 and is still

3338 Stat. L. 753; 4 Fed. Stats. Ann. (2 Ed.)
284 (XX, Sec. 5) ; Id. 300.
34Fed. Stats. Ann. Pamphlet Supp. No. 8, P.
115, Sec. 410; Id. p. 125, Sec. 902.
"Fed. Stats. Ann., 1918 Supp., pp. 368, 373


operative. Each of these Acts required revenue
stamps in the sum of fifty cents to be affixed when
the consideration or value of the interest or prop-
erty conveyed, exclusive of the value of any lien
or incumbrance thereon, exceeded $joo.oo, and
did not exceed $500.00, and fifty cents for each ad-
ditional $500.00 or fractional part thereof.
We think it would not be amiss to call atten-
tion in the opinion to the omission of revenue
stamps from deeds executed during the two
periods of time above mentioned.
The revenue acts above referred to also impose
a twenty-five-cent stamp tax upon powers of attor-
ney to sell and convey real estate."
(w) A deed to or from a partnership should
state the names of the individual partners, but a
deed made to a firm by the firm name is not void,
and the parties composing the firm may be identi-
fied by parol evidence." When such a deed ap-
pears in a chain of title it would be well to procure
an affidavit that the parties claiming under the
same constituted the partnership and place the
same of record.

364 Fed. Stats. Ann. (2 Ed.) 302; Fed. Stats.
Ann. 1918 Supp., page 373 (12).
87LaFayette Land Co vs. Caswell, 59 Fla. 544,
52 So. 140.


(x) We have hereinbefore referred to the con-
veyance of property by the husband direct to the
wife. The statutes of Florida expressly authorize
this,38 but nothing is said about conveyances by the
wife direct to the husband. So far as we know,
our Supreme Court has never passed upon the
validity of such a conveyance, and we would sug-
gest to the examiner that he investigate the author-
ities on this subject before passing a title as being
valid if the abstract shows that the property has
been conveyed in this manner.
(y) The laws of Florida provide that a cor-
poration organized under the laws of this State shall
not transact any business until it has had the letters
patent, with a certified copy of the charter, re-
corded in the office of the clerk of the Circuit
Court of the county wherein its principal place of
business is located, and has also filed with the Sec-
retary of State and with the said clerk (except in
the case of building and loan associations), dupli-
cate affidavits by its treasurer that ten per cent of
its capital stock has been subscribed and paid.39
We do not believe that a deed made by a corpora-
tion which has not filed the treasurer's affidavits
above referred to, would be invalid, but it is al-
ways well to call attention to the absence of the af-

"8Sec. 2457, Fla. Comp. Laws.
"Sec. 2562, Fla. Comp. Laws.


fidavits, if none be found in the above mentioned
offices. The law does not require that the affida-
vits be recorded, but if none was filed, we think
it advisable to have the corporation's treasurer, if
it can be done, make an affidavit that the required
amount of the capital stock was subscribed and
paid before the corporation transacted any busi-
ness, or, at least, made the conveyance in ques-
tion.40 It is always well to have affidavits and
other instruments, procured for the purpose of
correcting irregularities, recorded.
Some abstracts do not purport to show the rec-
ord of the letters patent and certified copy of the
charter. Hence, if a deed by a corporation is
shown, the examiner should search the records for
the letters patent and charter of the grantor, to see
if it had authority to hold and dispose of real es-
(z) Foreign corporations sometimes pur-
chase and convey real property in Florida without
having obtained a permit from the Secretary of
'State to transact business, as required by law.41
We do not believe that a conveyance of property
by a non-complying corporation would be void.

4"See Winfield Packing Co. v Truitt, 71 Fla.
38, 70 So. 775.
4Secs. 2682a-2682h, Fla. Comp. Laws; Chaps.
6875, 6876, Acts of 1915.


The acts of the Legislature of 1915, referred to in
the foot-note, tended to ameliorate the harshness
of the earlier statute of 1907, and such corpora-
tion's contract was never unenforceable except by
the corporation.4"
(aa) Whenever a deed is executed by a person
in any other than an individual capacity, the cer-
tificate of acknowledgment should show that he
acknowledged the execution of the instrument in
his particular capacity. A certificate of the ac-
knowledgment of the execution of a deed by the
president of a corporation, for instance, should
state that the party acknowledged that he executed
the instrument in his capacity as president of the
corporation and as the free act and deed of the
corporation for the uses, purposes and considera-
tions therein expressed. However, it frequently
will be found that deeds or other instruments exe-
cuted by parties in a particular capacity, have been
acknowledged by them in an individual capacity.
In view of the fact that acknowledgment is only
necessary to entitle an instrument to record (ex-
cept as to a married woman, as hereinbefore
pointed out), we do not think serious objection
should be raised on this point.
(bb) If a deed of conveyance is made for the
purpose of securing the payment of money, it is in

42Com. Nat. Bank vs. Jordan, 71 Fla. 566, 71
So. 760.


law only a mortgage, which, in Florida, constitutes
only a lien on the property and does not operate as
a conveyance of the title.43 Hence, if a deed shows
upon its face that it was made as security, the ex-
aminer should require a conveyance from the
maker thereof. And, of course, if it is known to
the examiner or client that such was the purpose
of the deed, the same course should be pursued.
(cc) We have hereinbefore suggested that if
the grantor in a deed of conveyance was a married
man and his wife did not join thereinor otherwise
release her inchoate dower right, a release of
dower should be obtained from her. She is not en-
titled to elect to take a child's part, upon the death
of her husband, in property previously conveyed
by him without a relinquishment of dower by
We may say here in regard to the election of
a widow to take a child's part or to dissent from
the provisions of her husband's will and take
dower in his real property, that it is usually done
by filing an informal statement in the circuit or
county judge's court (usually in the latter court)
within twelve months after the probate of a will or
granting letters of administration, of her choice.45

4Secs. 2494, 2495, Fla. Comp. Laws.
4 Reddick vs. Meffert, 32 Fla. 409, 13 So. 894.
45Secs. 2306, 2309, Fla. Comp. Laws.


When this is done, we think the widow then simply
becomes a co-tenant with the heirs, and may have
her share in the property allotted to her in a par-
tition proceeding. The court sometimes enters an
order allowing the election, but we do not think
this is necessary. Certain sections of the Statutes
indicate that a child's part may be set off to the
widow in the same manner as dower is allotted
(Secs. 2318-2320, Florida Compiled Laws), and
this seems to have been the practice followed in
the case of Reddick vs. Meffert, supra. We do
not believe, however, that this course is often pur-
sued, and we do not see how it could be lawfully
done, as there seems to be no provision for mak-
ing the heirs parties to the proceeding.
The Statutes of Florida provide for the dispo-
sition of real estate which devolves by escheat.46
The examiner will, of course, rarely have occasion
to investigate the validity of proceedings under the
cited Statutes.
(dd) A deed made by an executor without the
authority of a court of competent jurisdiction, pre-
sumably will have been based upon express or im-
plied authority under the will. The examiner
should, in such case, carefully scrutinize the will
to ascertain if authority to sell and convey was ex-
pressly conferred or exists by necessary implica-

46Secs. 2321-2333, Fla. Comp. Laws.


tion. If there is any doubt about the matter, a
deed from those who otherwise would be entitled
to the property should be required.
We wish to add another word in regard to
deeds conveying property to a grantee "as trustee,"
which subject was discussed in Paragraph t, supra.
If the examiner should learn that such deed was
made subject to a trust, a deed should be obtained
from the parties who were the beneficiaries of the
trust, even though the grantee was authorized to
convey unless the instrument creating the trust
clearly conferred authority to convey and it can be
obtained and placed of record. This would set-
tle for all time the question of the authority to con-
vey., Such deed should contain proper recitals to
connect it with the deed from the "trustee."


The deeds of conveyance hereinbefore dis-
cussed are employed for the voluntary conveyance
of real estate. There are other deeds, however,
which affect the title to real estate, such as Masters'
Deeds, Tax Deeds, Sheriffs' Deeds, Administra-
tors', Executors', Guardians', or Commissioners'
Deeds, Trustees' Deeds, deeds executed by trus-
tees in bankruptcy and deeds of assignees for ben-
efit of creditors. The validity of the various deeds
here mentioned will depend upon the regularity of
the proceedings upon which they are.based, hence
a brief discussion of such proceedings will be here



A master's deed is one made by an official of
the court usually appointed for the purpose of
making a sale of property and conveying the same
to the purchaser. The court usually appoints one
other than the general master of the court (see
Section 1895, Florida Compiled Laws), for this
purpose, in which case he is called "Special Mas-
ter." This deed will usually be found to be the re-


suit of the foreclosure of a mortgage or other lien.
When the abstract discloses a deed of this kind in
the chain of title, the examiner should endeavor to
procure the file of papers in the case and carefully
examine them to see if the proceeding was regu-
lar, particularly as to service of process. Sections
1402 and 1865, Florida Compiled Laws, and
Equity Rule 12 prescribe the manner of effecting
personal service, and Section 1866 of Florida
Compiled Laws prescribes the manner of making
service on non-resident defendants, except un-
known defendants, which is governed by Section
i866a, Florida Compiled Laws. Of course, if
the judicial proceeding occurred before the above
mentioned Statutes were enacted, it will be neces-
sary for the examiner to ascertain the status of the
law at the time the proceeding was had.
The Supreme Court of Florida has determined
how service of process should be effected upon a
minor,1 and the matter is now regulated by Stat-
ute.2 If the defendant in the proceeding was a
corporation, service upon it should have been had
as prescribed by Statute. (See Sec 1406, Fla.
Comp. Laws; Chap. 6908 Acts of 1915; Chap.
7725 Acts of 1918.)

'McDermott vs. Thompson, 29 Fla. 299, 10 So.
2Chap. 7853, Laws of Fla., Acts of 1919.


The case referred to in foot-note i indicates that
a guardian ad litem should be appointed for the
minor before service of process is had upon him,
but we think the Supreme Court merely meant to
enumerate the steps necessary to get a minor before
the court, and that service of subpoena upon the
infant should be had and then a guardian ad.litem
appointed and service had upon the guardian.
This is generally accepted as being the correct pro-
cedure. If service is had upon the minor by pub-
lication, a guardian ad litem should not be ap-
pointed until the service has been perfected; that
is, until the time of publication has expired.3
The wife of a mortgagor, if she joined in thec ~
execution of the mortgage, should be a party de-la Z -
fendant to a foreclosure thereof.4 'Yf.
Prior to the adoption of the Revised Statutes g' /
of 1892, the executor or administrator of a de- -4-4 / 4:
ceased mortgagor was a necessary party in a suit to
foreclose the mortgage, but since the Revised Stat-
utes became effective (June 13, 1892), the heirs of
the deceased mortgagor are necessary parties."

3Laflin vs. Gato, 52 Fla. 529, 42 So. 387.
4Roan vs. Holmes, 32 Fla. 295, 13 So. 339.
5Mote vs. Morton, 46 Fla. 478, 35 So. 656;
Scott vs. Jenkins, 46 Fla. 518, 35 So. 101.


The examiner should observe whether notice
of sale was published for the length of time desig-
nated by the court in the decree of foreclosure."
Every sale of property by a master under order
of court should be confirmed by the court before
the master executes a deed therefore, but if the
property was sold for a fair price and consider-
able time has elapsed, we do not think the sale
could be avoided for lack of confirmation thereof
by the court, especially when the master is directed
to make a deed upon making sale of the property.7



When the abstract shows that a tax deed to the
property being examined has been issued, it should
be noted as a serious objection to the record, or
documentary title, as it is generally called; that is,
the title originating by patent or deed from the
sovereign, as distinguished from a tax deed.

6There is no statute or rule of court in Florida
prescribing the length of time a notice of foreclos-
ure sale shall be published.
7See Pettey vs. Mays et al., 19 Fla. 652; Brown
et al. vs. Marzyck, 19 Fla. 840; Allred vs. Mc-
Gahagan, 39 Fla. 118, 21 So. 802.


The tax deed, as its name implies, is based upon
a sale of the land for the non-payment of taxes due
thereon. The validity of the tax deed is not usu-
ally investigated unless the client desires it done or
the owner of the land wishes to bring suit to set
the same aside. The objection raised on account
of the existence of a tax deed is frequently obviated
by obtaining a quit-claim deed from the holder
The law governing the validity of tax. titles is
far too extensive to be encompassed in a pamphlet
of this size, but it may be said in general that the
officials charged with the assessment and collec-
tion of the public revenue frequently overlook im-
portant details in the performance of their duties,
which render the tax sale, and hence the tax deed,
void. Four years' adverse possession of land un-
der a tax deed, however, will ordinarily confer
good title, except as against certain parties under
disability. (Section 591, Florida Compiled
Laws.) A tax deed may be void for want of a suf-
ficient description of the land purported to be con-
veyed thereby, and in such case it is not sufficient
color of title on which to base adverse possession.1
If the validity of the tax deed is to be inquired
into, the examiner should first find the law which
was in force at the time the proceeding was had

1Jarrell vs. McRainey, 65 Fla. 141, 61 So. 240.


at which the land was sold. After ascertaining
what the requirements of the law were at that date,
he can then determine whether the several officials
charged with the assessment and collection of taxes
have complied therewith by examining the public
records.2 The principal steps in the proceedings
to be examined are:
i. The levy of taxes and fixing of the millage
by the Board of County Commissioners, which
will be found in the minutes of the Board. This
is one of the most important steps in the proceed-
ing. The law has for a long time required that the
County Commissioners determine the amount of
money necessary to defray county expenses for the
following year and that such determination be en-
tered at large upon their minutes. This, however,
is not often done, but a bare statement of the mill-
age to be assessed entered of record.
It sometimes happens, too, that a larger mill-
age than is authorized by law is levied. This, of
course, would be a serious objection to the validity
of the tax deed. The Legislature levies the mill-

2Sections 428 to 596 inclusive, Fla. Comp.
Laws and subsequent Legislation, embrace the
present requirements and provisions of the Stat-
utes relating to taxation.
3See Sec. 532, Fla. Comp. Laws.


age for State purposes at its biennial sessions, and
authorizes a levy for county purposes.4

2. The assessment roll as prepared by the
County Tax Assessor, and delivered to the Collec-
tor, which, except for the current year, will be
found in the office of the Clerk of the Circuit
Court. The examiner should note to whom the
property was assessed and the description thereof
on the roll. These two matters are important.5
It is preferable to examine the assessment roll
which was used by the Tax Collector. At the be-
ginning of the roll should be found the warrant
from the Assessor to the Collector.6 The presence
of the warrant is essential to the authority of the
Collector to receive the taxes. A copy of the war-
rant also should have been recorded in the minutes
of the Board of County Commissioners.7 At the
end of the assessment roll should be found the af-
fidavit of the Assessor as to the correctness of the
roll,s and also the certificate of the Board of Coun-

4For example, see Chapter 7807, Acts of 1919.
5See Sections 513, 518, 519, 522, 522a (and
note), Fla. Comp. Laws.
6Sec. 535, Fla. Comp Laws.
'Sec. 529, Fla. Comp. Laws.
8Sec. 533, Fla. Comp. Laws.


ty Commissioners that they have examined the
rolls and that they are correct.9

3. The proceedings of the Board of County
Commissioners for the equalization of the assess-
ments of valuations should be examined, as it con-
stitutes an important step in the assessment of the
taxes. If, for instance, the value of the property
in question had been raised by the Board but no
notice of such increase in valuation given, serious
objection could be raised on this score, unless per-
haps, there had been a great lapse of time.'0

4. Notice of the tax sale. The law formerly
required that the notice of sale be recorded," but
at the present time a copy of the newspaper con-
taining the notice is all that is required to be
filed.ll' The actual publication of the notice of
sale for:the length of time required by law, is nat-
urally of vital importance to the validity of the
tax sale and deed based thereon.12 There are also
certain details as to proof of publication of the no-

9Sec. 529, Fla. Comp. Laws.
"0Sec. 525, Fla. Comp. Laws.
"Sec. 559, Genl. Stats. of 1906.
111Sec. 559, Fla. Comp. Laws. This Section
also prescribes the form of notice.
"Sec. 558, Fla. Comp. Laws.


tice, etc., which should be examined, but we do not
believe that these are strictly mandatory.13
5. The record of the report of tax sale made
by the Tax Collector. It is important that the re-
port of tax sale be recorded, but we do not think
that a slight variation from the form of report pre-
scribed by the Statute would invalidate the sale.14
6. Form of tax certificate, which is prescribed
by Statute.1" We do not believe that a variation
from the form prescribed by the Statute would
render a tax deed void.
7. Publication of application for tax deed, and
mailing of copy of notice to owner of land or per-
son who last paid taxes thereon. Compliance with
these requirements of the law are of vital impor-
tance to the validity of the tax sale and deed. As
a rule no record is kept of the published notice or
copy sent to the owner, but information as to this
may be obtained from the Clerk of the Circuit
8. Form of tax deed. The form of a tax deed
is prescribed in the general revenue acts, but we
think that a tax deed based on an earlier revenue

"Sec. 560, Fla. Comp. Laws.
"Sec. 565, Fla. Comp. Laws.
"Sec. 567, Fla. Comp. Laws.
"Secs. 574-576, Fla. Comp. Laws.


act, but issued after the passage of a later revenue
act prescribing the form, should be in the form
prescribed by the latter act. The present form of
a tax deed is prescribed by the Statute1 as is the
manner of execution.18
The Clerk of the Circuit Court is the proper
party to issue a tax deed on a sale of.property for
non-payment of municipal taxes, unless this is reg-
ulated by municipal charter.19
Not every omission on the part of the public
officers to strictly follow the requirements of the
law relating to the assessment and collection of the
public revenue will justify the bringing of a suit
to set aside a tax deed. The following language,
which has been used by our Supreme Court on
several occasions in decisions involving the valid-
ity of tax deeds, may serve as a guide in determin-
ing whether a tax deed will be upheld or over-
thrown by the court: "A failure to comply strict-
ly with those provisions of tax laws which are in-
tended for the guide of officers in the conduct of
business devolved upon them, designed to secure
order, system and dispatch in proceedings, and by
a disregard of which the right of parties interested
cannot be injuriously affected, will not usually ren-
der the proceeding void; but where the requisites

"Sec. 577, Fla. Comp. Laws.
"Sec. 590, Fla. Comp. Laws.
"Secs. 589-590, Fla. Comp. Laws.


prescribed are intended for the protection of the
citizen and to prevent a sacrifice of his property
and a disregard of them might and generally
would injuriously affect his rights, they cannot be
disregarded, and a failure to comply with them
will render the proceeding invalid."
An illustration of the first proposition laid
down by the court may be found, we think, in the
failure of the proprietor of the newspaper pub-
lishing the notice of tax sale to send copies of the
newspaper containing the notice of sale to the Tax
'Collector and Clerk of the Circuit Court, and
Comptroller, as required by Statute. Failure of
the Clerk of the Circuit Court to publish notice of
the application for tax deed or to mail a copy of
the notice to the owner or the party last paying
taxes on the property will illustrate the second



As the examiner already knows, a Sheriff's
Deed is the result of a sale of land by the Sheriff
of the county under an execution issued upon a
judgment in a legal proceeding. If the abstract
discloses that the property has been sold under ex-
ecution and a Sheriff's Deed made to the pur-
chaser, the examiner should, as suggested in the


discussion of Masters' Deeds, secure the original
papers in the suit, if access may be had thereto,
and carefully examine them for the purpose of
ascertaining whether a valid judgment has been
rendered. Here, as in the case of Masters' Deeds,
service of process is of prime importance, and, if
there has been no legal service on the defendant,
the judgment is void. As before pointed out, Sec-
tion 1402, Florida Compiled Laws, provides how
legal service may be had. Of course, if the de-
fendant appeared or defended the suit, defective
service of process is waived.
A claimant through a Sheriff's Deed must
prove a valid judgment, execution and the judg-
ment debtor's title.'
The examiner should also note whether the
Sheriff advertised notice of the sale of the land for
the length of time required by law.2
Sale of property under execution should take
place on the first Monday of the month, between

'Davis vs. Shuler, 14 Fla. 438; Donald vs. Mc-
Kinnon, 17 Fla. 746; Kendrick vs. Latham, 25 Fla.
819, 6 So. 871; Clem et al. vs. Messerole, 44 Fla.
234, 32 So. 815, 103 Am. St. Rep. 145; Hoodless
vs. Jernigan, 46 Fla. 213, 35 So. 656.
2Sec. 1631, Fla. Comp. Laws; Wofford vs.
Dykes, 67 Fla. 118, 64 So. 451.


the hours of 11 :oo o'clock A. M. and 2:oo0 o'clock
P. M.,3 and at the court house door.4
The Statutes provide that upon sale being
made, the officer making the same shall execute a
deed to the purchaser on payment of the purchase
price, but no particular form of deed is pre-
scribed.5 The deed, however, usually contains re-
citals of the judgment, execution, levy, notice and
If the judgment debtor was a married man, his
wife's dower rights are not defeated by the Sheriff's
Deed." Particular attention should be called to
this in the opinion. We think, however, that per-
haps seven years adverse possession under a Sher-
iff's Deed as color of title, after the death of the
execution debtor, would bar the widow's right of

3Sec. 1632, Fla. Comp. Laws.
4Sec. 1633, Fla. Comp Laws.
5Sec. 1634, Fla. Comp. Laws; Johnson etal. vs.
McKinnon, 54 Fla. 221, 45 So. 23, 127 Am. St.
Repts. i35, 13 L. R. A. (N. S.) 874.
6Roan vs. Holmes, 32 Fla. 295, 13 So. 339, 21
L. R. A. 180.
7See generally Johnson vs. Rhodes, 62 Fla. 220,
56 So. 439; Kendrick vs. Latham, 25 Fla. 819, 6
So. 871.


Prior to the date when the Revised Statutes of
1892 became effective (June 13, 1892), the lands
of a deceased person were assets in the hands of an
administrator and he might sue to recover the
same or defend a suit therefore 1 But since the Re-
vised Statutes became effective, lands of a decedent
have descended directly to the heirs or devisees
and remain in their possession until taken posses-
sion of by the executor or administrator.
The provisions of the Revised Statutes of 1892
(Sections 1917 to 1936, inclusive), relating to the
sale of decedents' real estate for the payment of
debts, were brought forward in the General Stat-
utes of 1906 (Sections 2414 to 2433, inclusive),
and remained the same until amended by the Leg-
islature of 1919.2 It is essential that the provisions
of the statutes be complied with, particularly as
to jurisdictional matters, such as publication of no-
tice of intention to apply to the court for authority
in the premises. An analysis of the statutes on this
subject will not be undertaken here but a careful
reading and study thereof will show the examiner
what is required and he can determine whether

1McClellan's Digest, Section 37, page 85.
2Chapter 7854, Laws of Florida, Acts of 1919.


these provisions have been complied with by ex-
amining the papers and records in the proceeding.
We would suggest that the examiner make a writ-
ten analysis of the sections of the statutory provi-
sions hereinbefore cited. He will observe that the
amendment by the Legislature of 1919 made rad-
ical changes in the procedure. One can hardly be
too critical in passing upon the validity of a pro-
ceeding of this character, but he must exercise
judgment here, as in passing upon the validity of
proceedings generally.
It will be observed that the numbers of the sec-
tions of the General Statutes of 1906 purported to
be amended by Chapter 7854, Acts of 1919, are
erroneously referred to. We do not believe that
this would render the act invalid or the amend-
ments ineffectual, but are not prepared to say that
it would not.3
Proceedings by administrators and executors
to sell real estate of decedents for the payment of
debts are usually had in the County Judge's
Courts, but the Circuit Court also has jurisdiction
in the premises.4
The statutes also make provision for the sale of
decedents' lands which lie in a county or counties

3See 36 Cyc. 968, n 87.
4Sec. 2418 (2), Fla. Comp. Laws.


other than that in which letters testamentary or of
administration are granted."
The sale may be made privately, if the court
permits, but if made at public out-cry, notice
thereof must be published for four weeks.6 But
see Section 2617, Florida Compiled Laws.
The Statutes also provide for sales under de-
fective wills.7
Section 2423 of Florida Compiled Laws pro-
vides that the sale shall be made by a commissioner
to be appointed by the court, but Section 2617,
while appearing in an article entitled "Manage-
ment of Infants' Estates," seems clearly to author-
ize the administrator or executor, as the case may
be, to make the sale and deed, and the sale and
deed are frequently so made. The title of the act
from which Section 2617 is taken (Chapter 5144,
Acts of 1903), shows that it was a general act.8
It is essential that the commissioner or executor
or administrator, as the case may be, report the sale
of the lands to the court for confirmation or rejec-

5Sec. 2420, Fla. Comp. Laws, and Sec. 9, Chap.
7854, Acts of 1919.
6Sec. 2424, Fla. Comp. Laws.
7Sec. 2417, Fla. Comp. Laws; Sec. 4, Chap.
7854, Acts of 1919.
8See also Sec. I, Chap. 7854, Acts of 1919.
9Sec. 2428, Fla. Comp. Laws.


Particular attention is called to the provisions
of the Statute when the abstract discloses that the
administrator or executor has purchased the land
when it was sold under the statutory proceeding
hereinbefore discussed.'1 The law does not look
with favor upon purchasers of property by persons
standing in a fiduciary relation thereto, hence the
importance of ascertaining that the law has been
complied with in this particular.
The examiner will sometimes find that the ex-
ecutor or administrator has conducted a proceed-
ing for the sale of a decedent's lands for the pur-
pose of distribution among the heirs where the
property was so situated that it could not be equit-
ably divided. This proceeding was based upon an
old Statute making provision for the sale of the
lands for distribution.1
When a decedent has, during his lifetime,
made a written agreement or contract for the con-
veyance of real estate, and shall have died before
the execution of the conveyance, his executor or ad-
ministrator is authorized to execute such convey-
ance in the manner prescribed by law for the con-
veyance of real estate in this State.12

"0Secs. 2427-2428 (2).
"McClellan's Digest, Section 42, page 88; Sec-
tion 43, page 89; Section 44, page 90.
12Sec. 2431, Fla. Comp. Laws.




When the abstract discloses that the guardian
of a minor or minors has conveyed the property in
question under an order of court, the examiner
should scrutinize the proceedings very closely, for
one who purchases the property of an infant does
so at his peril.' A guardian of minors has no au-
thority to sell the real estate of his wards without
permission of a court of competent jurisdiction.
It is incumbent upon the purchaser to see that the
Statutes in such cases have been complied with.
A married woman who is a minor may legally con-
vey her property notwithstanding her minority, if
her husband joins in the deed and it is acknowl-
edged.2 The marriage of a male minor also re-
moves his disabilities.3
County Judges in Florida have authority to or-
der the sale of an infant's real estate upon applica-
tion of the guardian.4 The County Judge, how-
ever, has no power to grant authority to sell unless
the guardian shall have given previous notice pub-
lished once a week for four successive weeks in a

'McIntyre vs. Parker et al., 82 So. 253.
2Sec. 2464, Fla. Comp. Laws.
'Chap. 7364, Laws of Florida, Acts of 1917.
4Sec. 2608, Fla. Comp Laws.


newspaper published in the county where the ap-
plication is made, of his intention to apply for au-
thority to sell the land, setting forth in the notice
the time and place and to what judge such appli-
cation will be made. If the lands lie in more than
one county, application shall be made in each
The examiner should also ascertain if the sale
by the guardian was reported to and confirmed by
the court, especially since Chapter 5904, Acts of
1909, became effective.6
We call attention again tothe prime importance
of the notice required bythe Statute to be published
by the guardian. Statutes enacted to overcome ir-
regularities in sales of minors' lands cannot vali-
date a failure to publish the notice above referred
to, as such publication is jurisdictional. The Su-
preme Court has decided that four weeks' publica-
tion requires the intervention of twenty-eight days
between the first publication and the return day of
the notice.8 Under the Revised Statutes of 1892,
guardians of minors proceeded for the sale of their

'Sec. 2616, Fla. Comp. Laws.
6Sec. 2617a Fla. Comp. Laws.
7McIntyre vs. Parker et al., 82 So. 253.
8Myakka Co. v Edwards, 68 Fla. 372, 382, 67
So. 217.



wards' lands in the manner provided for the sale
of lands by executors and administrators.9
The Statutes of Florida also provide for the
sale of real estate belonging to a minor, by an ex-
ecutor or administrator having the control or man-
agement thereof.'1 We think, however, that the
examiner will rarely have occasion to examine a
proceeding under the Statute referred to, but if so,
the Statute is plain as to the course of proceeding.
A guardian of minors receiving his appoint-
ment in another state or territory in whose juris-
diction the infant is domiciled, may file a petition
for authority to sell the ward's land."
Guardians of idiots and lunatics may sell and
convey the real estate of their wards upon a pro-
ceeding had in the same manner as provided for
the sale of real estate of infants.12
The Statutes of Florida authorize the guar-
dian, curator, committee or conservator of a luna-
tic appointed by a foreign court in whose jurisdic-
tion the lunatic is domiciled, to sell and convey the
property of the lunatic situated in this State."

9Sec. i2oo, R. S. 1892. See also Secs. 2101-
2102, Id.
'0Sec. 2421, Fla. Comp. Laws.
"Secs. 2619-2621, Fla. Comp. Laws.
12Sec. 2632, Fla. Comp. Laws.
"Secs. 2633, 2634 and 2635, Fla. Comp. Laws.


County Judges in Florida are now authorized
to appoint guardians for idiots or lunatics residing
beyond the limits of this State, but who have prop-
erty within this State and such guardians may sell
and convey the property of their wards in the same
manner as now prescribed for the sale of the prop-
erty of minors.14
A married man, whose wife is insane and who
desires the release of her dower rights in his prop-
erty, may apply to the Circuit Court of the county
in which he resides for the appointment of a spe-
cial guardian to relinquish such dower right."5

The deeds here referred to are those resulting
from the creation of an express trust. The trust
may be created by deed, will,' or order of court
appointing a trustee. It will be necessary to dis-
miss this class of deeds with only a word, as the au-
thority of the trustee to convey is derived from the
instrument creating the trust and appointing the

"Chap. 6943, Laws of Fla., Acts of 1915.
"Secs. 2466-2471, Fla. Comp. Laws.
'Secs. 2452 and 2453, Fla. Comp. Laws and


trustee and an examination of such instrument is
necessary in each case to determine whether the
authority to convey actually exists. It therefore
behooves the examiner to carefully scrutinize the
trust deed, or the will, or the order of court, as the
case may be, appointing the trustee and setting
forth the terms of the trust. If the power to sell
and convey the property does not exist by express
words or strong and necessary implication, a con-
veyance by the trustee should be rejected and a
quit-claim deed should be obtained from the cre-
ator of the trust or those who would succeed to his
interest if the trust had not been created, and from
the beneficiary of the trust. /
A conveyance by a trustee under an express
trust should be executed by the trustee under seal
and acknowledged in his capacity as trustee and
not individually; that is, the acknowledgment
should recite that the trustee acknowledged that he
executed the deed in his capacity as trustee or as
trustee, for the uses, purposes and considerations in
the deed set forth. The deed should be signed in
the name of the trustee with the words "as trus-
tee" following, and a complete reference to the in-
strument creating the trust would be preferable.
However, we believe that if the deed shows upon
its face that the grantor purports to convey the title
as trustee only and not in his individual capacity,
the deed would be valid, although the trustee did

/* 4/^r/ /


not add the words "as trustee" or a more complete
reference to the nature of his authority to his sig-
It is not necessary that the wife of a trustee un-
der an express trust join in the execution of a deed
by the trustee, as she acquires no dower rights in
property held by her husband in a fiduciary ca-



When the abstract discloses that the property
in question has been conveyed by a trustee in bank-
ruptcy, the examiner should, before passing the
deed as a legal conveyance, carefully review the
Bankruptcy Act of July i, 1898, and amendments
thereto and prior Bankruptcy Statutes, if the deed
was made prior to July I, 1898, and investigate the
court decisions on the subject of bankruptcy so far
as they relate to the disposition of the bankrupt's
real property. As the purpose of this pamphlet
is to set forth the Florida law affecting the title to
real estate, no extended discussion of this subdivi-
sion will be attempted.
Under the bankruptcy law, upon the appoint-
ment of a trustee, title to the real estate owned by
the bankrupt prior to the filing of the petition in


bankruptcy vests in the trustee by operation of law,
as of the date of the adjudication of the debtor as
a bankrupt.1 If it should happen that the trustee
has conveyed property acquired by the bankrupt
after the filing of the petition, a quit-claim deed
should be obtained from the bankrupt and his
wife, if he is married.
The proceedings should be examined suffi-
ciently to determine that the court obtained juris-
diction of the bankrupt when an involuntary pe-
tition has been filed. In this instance jurisdiction
of his person is acquired by the filing of the peti-
tion against him and the due service upon him of
a copy of the petition and of a subpoena.2
The examiner should be careful to ascertain
that notice to creditors has been given by the ref-
eree of the trustee's intention to sell the property
as required by the Act.3
All sales should be by public auction unless oth-
erwise ordered by the court,4 and should be con-
firmed by the court and the property not sold for

1Sec. 7oa, Bankruptcy Act of 1898; In re Jud-
son et al., 192 Fed. 834, 113 CCA 154, 228 U. S.
474, 57 L. Ed. 927, 33 S. C. Rep. 568.
2Sec. i8a Bankruptcy Act of 1898 as Amended.
3Sec. 58 Bankruptcy Act of 1898.
4General Orders in Bankruptcy XVIII.


less than seventy-five per centum of its appraised
The dower rights of the bankrupt's wife are
not affected by the sale of his property by the trus-
If property is sold free of incumbrances, it
must have been authorized by the referee or
Ten days' notice by publication of the sale of
the property should be given in addition to the no-
tice to creditors hereinbefore referred to.8



The laws of Florida authorize a debtor to con-
vey his property to an assignee for the benefit of
his creditors. It is necessary that the assignment
be in writing and provide for an equal distribution
of all the assignor's real and personal property,

5Sec. 70b Bankruptcy Act of 1898.
6Porter vs. Lezear, 109 U. S. 84, 3 Sup. Ct,
Rep. 58, 27 L. Ed. 865.
'Sec. 471, Black on Bankruptcy, citing numer-
ous authorities.
8Sec. 58a (4) Bankruptcy Act of 1898.


except such as is exempted by law from forced
sale, among the creditors of the assignor in equal
proportion to their respective demands.1
The law further requires that the assignor
make and subscribe to an oath not more than ten
days after the assignment that he has placed or as-
signed and the true intention of his assignment was
to place in the hands of his assignee all of his prop-
erty of every description, except such as is exempt
by law from forced sale, to be divided among the
creditors in proportion to their respective de-
This provision of the Statute has been held to
be mandatory in a contest between the assignor and
creditors."21 We do not believe, however, that
such deed of assignment would be declared void if
considerable time has elapsed since the assignment
was made.
The deed of assignment and oath should be re-
corded in the clerk's office of the county or coun-
ties where the property assigned is situated.3
The assignee is required to give bond to be ap-
proved by the Clerk of the Circuit Court of the

'Sec. 2926, Fla. Comp. Laws.
2Sec. 2927, Fla. Comp. Laws.
2WWilliams vs. Crocker, 36 Fla. 61, 18 So. 52.
'Sec. 2928, Fla. Comp. Laws.


county where the assignor lives or does business or
where the property is situated, payable to the Gov-
ernor in double the value of the property assigned,
conditioned for the faithful performance of the
duties devolved upon him, which bond should be
filed immediately upon the assignee's taking pos-
session of the property.4
It is the duty of the assignee immediately upon
taking possession of the property to publish a no-
tice to creditors of such assignment for four con-
secutive weeks, calling upon the creditors to file
their claims, and to send a copy of the newspaper
to each of the creditors, so far as he may know
We believe the publication of this notice is es-
sential to the validity of an assignment, at least so
far as creditors are concerned.
After complying with the foregoing require-
ments, the assignee is authorized to dispose of the
property, either at public or private sale.6 Any
deed executed by the assignee should be made with
the same formality as an individual deed, but, of
course, it would not be necessary for the wife of the
assignee to join therein.

4Sec. 2929, Fla. Comp. Laws.
5Sec. 2930, Fla. Comp. Laws.
6Sec. 2931, Fla. Comp. Laws.


The assignee is required to file semi-annual
statements of all his acts as such assignee, in the of-
fice of the Clerk of the Circuit Court.7
The assignee obtains his discharge by publica-
tion of notice for thirty days in the newspaper in
which the notice to creditors was published and
applying by petition to the Judge of the Circuit
Court for letters of discharge.8

7Sec. 2932, Fla. Comp. Laws.
8Sec. 2933, Fla. Comp. Laws.



The disposition of real estate by last will and
testament constitutes a frequent and important
method of transfer of the title thereto. The
Statutes prescribe the essentials of a valid
will disposing of real estate in Florida,1
and declare that an instrument purporting
to be a will, but not executed in conform-
ity to the requirements set forth "shall be ut-
terly void and of non-effect." The section of Flor-
ida Compiled Laws cited in foot-note I, requires
at least two subscribing witnesses. Prior to June
13, 1892, when the Revised Statutes became effect-
ive, at least three subscribing witnesses were es-
sential to the validity of a will devising real es-
tate.2 Codicils attached to a will should be exe-
cuted with the same formality as that required of
the will itself.3 A person interested in a will as a
beneficiary thereunder should not act as a subscrib-
ing witness to the execution thereof, although we

'Sec. 2272, Fla. Comp. Laws.
2Brown vs. Avery, 63 Fla. 355, 58 So. 34, and
see McClellan's Digest, page 985, Sec. i.
"Sec. 2273, Fla. Comp. Laws.


know of no Florida decision to the effect that in-
terest would invalidate a will otherwise valid. If
we were examining such a will, we would make an
examination of the authorities of other states be-
fore passing the will as valid.
Ordinarily a will is submitted for probate by
the person named therein as executor and proven
by affidavits of the subscribing witnesses. The
Statutes prescribe, however, that a will devising
real estate may be admitted to probate upon the
oath of any person appointed executor thereof or
where the executor is interested in the estate be-
queathed, or where no executor is appointed, upon
the oath of any other credible person, having no
interest under the will, that he verily believes the
writing exhibited as the last will and testament to
be the true last will and testament of the deceased.4
The record of wills will be found in the office
of the County Judge.5
Non-residents of Florida frequently dispose of
real estate here by making their wills in the state
of their domicile. The laws of Florida provide
that the probate of such will may be admitted to
record in the County Judge's court and when so
recorded, shall have the same force and effect as to
the disposition of the property therein devised or

4Sec. 2284, Fla. Comp. Laws.
5Sec. 2289, Fla. Comp. Laws.


bequeathed as the probate of wills executed in this
State.6 It is necessary, however, that such wills be
executed as required by the laws of Florida.' A
will probated in another state is usually evidenced
when offered for record in this State, by a copy
thereof and probate proceedings thereon, exempli-
fied in accordance with the Acts of Congress,8 pre-
scribing the method of certifying the records of
the court of one state to the courts of another state
in order to entitle them to full faith and credit un-
der the Constitution of the United States. We do
not believe, however, that it is necessary that the
foreign will be evidenced in this manner, as the
Statutes of Florida expressly provide that the pro-
bate wills granted in any of the United States or
territories thereof, or in any foreign state, duly au-
thenticated and certified according to the laws of
the state or territory where such probate may have
been granted, shall be received in evidence in all
the courts of record in this State.9 We think, how-
ever, that the method of authenticating the foreign
will and probate thereof as set forth in the Florida

"Sec. 2287, Fla. Comp. Laws.
7Sec. 2287, Fla. Comp. Laws; Frazier vs.
Boggs, 37 Fla. 307, 20 So. 245.
8Sec. 906 U. S. Revised Stats., 3 Fed. Stat.
Anno. (2 ed.), 220.
9Sec. I519, Fla. Comp. Laws.


Statutes and above referred to, is not an exclusive
method, and are of the opinion that a copy of a
foreign will, authenticated in accordance with the
Act of Congress above referred to, would be enti-
tled to record and received in evidence in all the
courts of record in this State.
Copies of foreign wills and probate proceed-
ings thereon are usually authenticated by a certif-
icate of the clerk (or judge, if there be no clerk),
of the court in which the proceedings were had,
that the attached copies are true and correct copies
of what they purport to be, followed by a certifi-
cate of the judge of the court that the certificate of
the clerk is in proper form and by the proper of-
ficer and that his signature is genuine, or words to
like effect. This certificate is then followed by a
certificate of the clerk to the effect that the party
signing the certificate as judge is the presiding
judge of the court and that his signature is genuine,
or words of similar import. This paragraph has
reference to the method of authentication pre-
scribed by the Act of Congress hereinabove re-
ferred to.
All wills should be read carefully by the exam-
iner, not only to see that they were formally exe-
cuted, but also for the purpose of making certain
that title is properly deraigned by the party or
parties claiming under the will. Property in-
tended to be devised is frequently designated by a


general description, as, for instance, "all my prop-
erty, real, personal and mixed, wheresoever situ-
ate." This is sufficient, but if the will undertakes
to particularly describe the property intended to
be devised, it should be so described that there may
be no difficulty in ascertaining the property. It is
not necessary that words.of inheritance be used in
order to confer a fee simple title on the devisee,10
but the intention to convey the fee simple title ab-
solutely should be clear. The word "absolutely"
is frequently used to designate this intention. If,
for instance, the will only devised a life-estate in
the property in question, with remainder over to
some other party, the abstract should show a con-
veyance by the holder of the remainder in order
that the fee simple title may pass.
It is generally supposed that a will must be ex-
ecuted under seal. This, however, is not the case,
as a reading of the Statute" will plainly show.
Addition of a seal. is, of course, superfluous.
If the will is so worded as to create a doubt in
the mind of the examiner as to the nature of the es-
tate devised, a careful examination of the decisions
of this State should be made, and, if the question
has not been determined by the Supreme Court of
our State, authority must be sought elsewhere.

"0Robinson vs. Randolph, 21 Fla. 629.
"Sec. 2272, Fla. Comp. Laws.


Prior to June i3th, 1892, property acquired by
the testator after executing his will, did not pass
to devisees under the will, but became the prop-
erty of those who would have been entitled thereto
if the testator had died intestate.12 We think, per-
haps, that this would not be true if the testator died
after the Revised Statutes of 1892 became effect-
ive, although his will was executed prior there-
The homestead, or property upon which the
testator resided with his family, was not subject to
testamentary disposition under the Constitution
of I868.14 Under the Constitution of 1885, where
the holder of the homestead was without children
he could devise the same subject to the widow's
right of dower,1" until Chapter 4730, Acts of 1899

12Frazier vs Boggs, 37 Fla. 307, 20 So. 245.
13Sec. 1794, Rev. Stats. 1892, Sec. 2271, Fla.
Comp. Laws.
1Wilson vs. Fridenburg, 19 Fla. 461, 21 Fla.
386; Brokaw vs. McDougall, 20 Fla. 212; Scull
vs. Beatty, 27 Fla. 426, 9 So. 4.
"Purnell vs. Reed, 32 Fla. 329, 13 So. 887. See
Walker vs. Redding, 40 Fla. 124, 23 So. 565; Caro
vs. Caro, 45 Fla. 203, 34 So. 309; DeCottes vs.
Clarkson, 43 Fla. I, 29 So. 442; Palmer vs. Pal-
mer, 47 Fla. 200, 35 So. 983.


(Sec. 2297, Fla. Comp. Laws), became effective,
and since this time the homestead has not been sub-
ject to testamentary devise if there be a widow or
children."1 The examiner should insist upon a
quit-claim deed from the testator's heirs to the
property in question, if he finds that an attempt
has been made thus to dispose of the homestead.
It is well to make inquiry as to whether the testator
was the head of a family and resided upon the
The administration of an estate of an intestate
decedent; that is, one who has died without leav-
ing a last will and testament, is initiated in manner
similar to that of a testate estate. A petition is
filed in the County Judge's court setting forth the
death of the party whose estate is to be adminis-
tered; that he left property in the county in which
the petition is filed, to be administered upon; the
number and names of his heirs at law, and praying
that an administrator be appointed. The Statutes
prescribe who may serve as an administrator,17 and

1Johns vs. Bowden, 68 Fla. 32, 66 So. 155;
Griffith vs. Griffith, 59 Fla. 512, 52 So. 609; 138
Am. St. Rep. 138; see Thomas vs. Williamson, 51
Fla. 332, 40 So. 831; Saxon vs. Rawls, 51 Fla. 555,
41 So. 594.
17Secs. 2334-2338, Fla. Comp. Laws.


also what preferences shall be given in the ap-
The property of a decedent is subject to the
payment of his debts and it is important for the
examiner to ascertain if the initial notice to cred-
itors prescribed by Statue has been published once
a week for the space of eight weeks.19 We do not
believe that failure to publish this notice will ex-
tend the statute of limitations indefinitely, and we
think a title may be passed as valid where the no-
tice has not been published, if sufficient time has
elapsed to insure that any outstanding debts would
be barred. If the notice has not been published
the fact that there were not any outstanding debts
or that they have been fully paid, is sometimes es-
tablished by affidavit of some one familiar with the
facts. If letters of final discharge have been
granted to the executor or administrator, the rec-
ords should show that he published a notice once
each month for six months under the former Stat-
ute,20 or once each week for sixty days, under the
present Statute,21 of his intention to apply for a

"Sec. 2339, Fla. Comp. Laws.
"Sec. 2398, Fla. Comp. Laws, and notes, and
see Sec. 2399, Fla. Comp. Laws.
20Sec. 2368, Fla. Comp. Laws.
"Chap. 7876, Laws of Fla., Acts of 1919.


discharge as executor or administrator, as the case
may be. See also Chap. 7365, Acts 1917.
As observed in the discussion of deeds, if a deed
purports to have been made by parties described
as the heirs at law of a decedent, the examiner
should see that these parties correspond to the par-
ties named in the administration proceedings as
heirs at law, if administration was had. If there is
nothing of record connecting the parties making
the deed with the decedent, an affidavit should be
obtained from some one acquainted with the par-
ties that they are the heirs at law. The statute of
descent defines who shall constitute the heirs at
law of a decedent. (See Sec 2295, Gen Stats. 1906
and Sec. 2295-2305, Fla. Comp. Laws.)
When an intestate decedent is not indebted it
is proper for the heirs, before making an amicable
division of the property, to make a showing to that
effect before the County Judge and have him enter
an order finding that the estate was not indebted,
who are the heirs and setting forth the proposed
division of the property.22 We do not believe,
however, that failure to do this would render a
conveyance by the heirs invalid if the decedent was
not, in fact, indebted.

22Sec. 2390, Fla. Comp. Laws; Bradley et al.
vs Raulerson, 66 Fla. 601, 64 So. 237, and see Phi-
fer vs. Abbott, 68.Fla. o1, 65 So. 869.





When the abstractdiscloses an unsatisfied or un-
released mortgage upon the property, the title to
which is being examined, it is not material that
irregularities occurred in the execution or acknowl-
edgment of the mortgage, as a purchaser would
not care to assume the risk of being able to defeat
the mortgage.1
The Statute of limitations begins to run as
against a mortgage from the date of the maturity
of the indebtedness secured,2 hence if the mortgage
has not been released of record, but is apparently
barred by the Statute, which is twenty years in this
State, if the mortgage is under seal,3 it should be

'See Walker vs Heege, 83 Sou. 605.
2Jordan vs. Sayre, 24 Fla. I, 3 So. 329; Browne
vs. Browne, 17 Fla. 607, 35 Am. Rep. 96.
3Sec. 1725, Fla. Comp. Laws.


examined to ascertain just when the lien was in
fact barred.
If the abstract shows that the mortgage has
been released of record, the date of the mortgage,
date of recordation or filing, book and page of the
record of the mortgage, description of land con-
tained in the mortgage, and the names of the mort-
gagor and mortgagee should be compared with
these items as set forth in the satisfaction or re-
lease. Mere discrepancies here, however, would
not constitute serious objection to the title if the
mortgage intended to be released is sufficiently
identified. The Statute requires that a satisfaction
of mortgage, in order to entitle it to record, be in
writing and acknowledged in the manner required
for the acknowledgment of deeds.4 The examiner
will find that satisfactions have been in many cases,
entered merely by a notation on the margin of the
mortgage, attested by the clerk of the court. These
are usually passed as being sufficient, as the mort-
gagee would, probably be stopped to take advan-
tage of informalities in the satisfaction of the
mortgage, if it has, in fact, been paid./If the
mortgage had not in fact been paid, the mortgagee
would not be stopped to assert that the execution
of a satisfaction, no matter how formally done, was
obtained through mistake or fraud, unless, prob-

4Sec. 1832 Fla. Comp. Laws.



ably, the rights of innocent purchasers had inter-
If the abstract shows a mortgage upon the
premises which has not been released of record,
the examiner should insist upon a satisfaction
thereof being obtained and placed of record if the
mortgage has been paid, and if it has not been
paid, then particular attention should be called
thereto as a subsisting lien.
If a satisfaction of mortgage has been executed
by one other than the original mortgagee, but the
abstract does not show that the mortgage was as-
signed to the party satisfying the same, the exam-
iner should ascertain if the mortgage was in fact,
assigned, and if an assignment was executed by the
mortgagee, such assignment should be obtained
and placed of record.5 If no written assignment
was executed, then the practical way to overcome
the difficulty would be to have the original mort-
gagee execute a satisfaction and place the same of
record. No assignment of mortgage is entitled to
record unless it be in writing and acknowledged
in the manner required for the acknowledgment of
If the mortgagee was a married woman, we are
of the opinion that her husband should join her in

5Secs. 1832 and 2498, Fla. Comp. Laws; Chap.
6909 Acts of 1915.
6Sec. 1832, Fla. Comp. Laws.


the execution of a satisfaction or assignment there-
of,7 and our opinion in regard to this is strength-
ened since our Supreme Court has decided that a
married woman who obtains a loan of money upon
a .representation that she was unmarried, and se-
cures the same by a mortgage upon her separate
property, is not stopped to deny that she was not



If the abstract shows the entry of a judgment
or judgments against an owner of the land in ques-
tion or before the judgment debtor acquired title
thereto, such judgment or judgments should be ob-
jected to as subsisting liens upon the property,1 and
the same is true of decrees in chancery for the pay-
ment of money. Here, too, a prospective pur-
chaser or mortgagee, as the case may be, would not
desire to assume the risk of defeating the lien of a
judgment by reason of irregularities in obtaining
it. If the judgment has, in fact, been paid, but not
satisfied of record, the examiner should insist that

7Sec. 2590, Fla. Comp. Laws.
8Wilkins vs. Lewis, 82 So. 762.
1Sec. 1600, Fla. Comp. Laws.


a satisfaction thereof be obtained from the holder
and placed of record. There is no particular form
for a satisfaction of a judgment. It usually con-
sists in a written acknowledgment tht the jud-
ment has been paid and discharged -t r_ "-'
A judgment is barred in Florida in twe
years,2 unless it has been revived. The abstract
should show a revivor of judgment but it is well to
state when the judgment appears to be barred that
it is barred, unless it has been revived, which the
abstract does not indicate to have been done, if
such is the case.
The question as to just when the lien of a judg-
ment attached does not often arise, but if it does, as
for instance, between a purchaser of the property
and a judgment creditor, it may be said to be the
rule that a judgment becomes a lien as to real es-
tate from the date of the entry thereof.3 Of course,
if the purchaser had notice of the rendition of the
judgment, he would not be protected as an inno-
cent purchaser.
If the judgment was against principal and
surety and it has been paid by the surety, the Stat-
utes keep the lien of the judgment alive against the
principal's property in favor of the surety.4

2Sec. 1725, Fla. Comp. Laws.
3See Wilson vs. Matheson, 17 Fla. 630.
4Sec. 1605, Fla. Comp. Laws.


Hence, the proceeding leading up to the judgment
should be carefully examined to ascertain whether
any party in the capacity of a surety was a defend-
ant in the suit, and an effort to ascertain whether
the judgment was paid by the surety.
Judgments are frequently transcribed from
the Circuit Court of one county to the Circuit
Court of another county and when this is properly
done, they become liens upon the property of the
judgment debtor in the county to which they are
transcribed.5 When the sheriff's deed is based on
such a judgment, it is of equal importance that the
examiner obtain the records in the case to ascer-
tain if a valid judgment has been rendered, as
when the judgment is rendered in the local court.
Judgments of County Courts, County Judge's
Courts, and Justice of the Peace Courts become a
lien on the real estate of the defendant situated in
any county, from the time of the filing in the office
,of the Clerk of the Circuit Court for said county
,of a transcript of such judgment and the entry
thereof by the clerk in a book kept by him for such
A personal judgment cannot be entered on
service by publication. The examiner will rarely

5Sec. 1601, Fla. Comp. Laws.
6Sec. 1602, Fla. Comp. Laws.


find such a judgment, but it is well to bear the
above stated rule in mind.
A mortgage upon land for the purchase price
of it executed at the same time that the deed of con-
veyance is executed, constitutes a lien superior to
that of judgments obtained before the deed was ex-
Property which is the homestead of the judg-
ment debtor may be exempted from forced sale.8
We think, if the abstract shows that property has
been exempted by the judgment debtor in accord-
ance with the Statute cited in the foot-note and
subsequently conveyed by the debtor, the title may
be passed if otherwise valid.
The Statutes of Florida particularly prescribe
how service of process may be had,9 and the exam-
iner should frequently consult the Statutes until
he becomes familiar with the provisions thereof
in passing upon the validity of service, especially
in proceedings recently had. He must exercise

7Cheves et al. vs. First Natl. Bank of Gaines-
ville, 83 So. 870.
SSec. 2520, Fla. Comp. Laws.
9Secs. 1402-1405, 1406 (as amended by Chap.
6908, Acts of 1915 and Chap. 7752, Acts of 1918),
1407-1410-1411 (as amended by Chap. 7928, Acts
of 1919), 1413-1415.


judgment here as to whether there has been a sub-
stantial compliance with the Statutes, many re-
turns of service not being minutely correct.



Liens for unpaid taxes are evidenced by the tax
sale record to be found in the office of the Clerk of
the Circuit Court, and such liens are usually re-
ferred to in the abstract as tax sale certificates, cer-
tificates being issued for the respective tracts of
land sold. Prior to the sale by the tax collector for
such unpaid taxes, the only evidence of a lien for
taxes is to be found in the tax assessment roll.
Tax certificates held by the State of Florida for
unpaid taxes due for any year prior to the year
1893 have been cancelled by the Legislature,1 but
if the abstract shows that the certificate is held by
an individual, the examiner should insist that it be
redeemed before declaring the title to be free and
clear of incumbrances. There is no limitation
which will bar a tax certificate, hence the impor-
tance of insisting that the certificate be redeemed.
If the holder of the certificate cannot be located,

'Chap. 6859, Laws of Florida, Acts of 1915.


it may be redeemed by paying to the Clerk of the
Circuit Court such amount as may be necessary to
redeem and having him note such redemption on
the face of the record of the sale.
The Statutes of Florida provide that the State's
lien for taxes shall relate back to the first of Jariu-
ary preceding the making of the assessment roll,
after the roll is made,2 and it is always proper to
call attention to the fact that a lien may exist for
taxes for the current year. The matter of taxes for
the current year is usually taken care of in the
agreement relating to the property, but this is not
always the case.



If the abstract does not show the record of no-
tice of a mechanics' lien, there is nothing that the
examiner can say along this line unless he has
knowledge of the existence of a claim for labor or
material furnished. If one purchases property or
lends money thereon at a time when improvements
are being made on the property, the purchaser or
mortgagee, as the case may be, will take the same

2Sec. 545, Fla. Comp. Laws.


subject to the claim of the mechanic or material-
A notice of a claim of lien for labor done or
material furnished should be filed within three
months after performing the labor or furnishing
the material,2 and if the lien is not foreclosed with-
in one year after filing notice of the lien, or, if no
notice of lien is filed, within one year after per-
forming the labor or furnishing the material, it is
barred.3 If the abstract shows the filing of a no-
tice of lien and more than a year has elapsed, the
existence of the notice is usually only noted with
the statement that it is barred.



If the claim of the vendor of real property for
unpaid purchase money is evidenced in writing in
any manner as by a reference thereto in the deed
conveying the property, the examiner will, of
course, call attention thereto in the opinion and re-

1Secs. 2210 and 2211, Fla. Comp. Laws; Bond
Lumber Co. vs. Masland, 45 Fla. 188, 34 So. 254.
2Sec. 2210, Fla. Comp. Laws.
3Sec. 2223, Fla. Comp. Laws.


quire that the property be released therefrom be-
fore declaring the title to be free and clear of liens.
It is not necessary that a vendor's lien be evidenced
by writing, as such lien -arises by implication of
law. Of course, an innocent purchaser for value
would be protected against a claim of a vendor for
unpaid purchase money, but if one purchases
property with a knowledge that it is not paid for,
he takes it subject to the vendor's lien for the un-
paid purchase price.1 If the examiner is aware of
such a condition we think he should call his client's
attention to the fact, as the client may also have
such knowledge but not be aware of its legal ef-

When a writ of attachment is levied upon real
estate of the debtor, it is not effectual against sub-
sequent creditors or purchasers unless notice of the
levy thereof and a description of the property lev-
ied upon be recorded by the clerk of the Circuit
Court in the lien book.2

1Rewis vs. Williamson, 51 Fla. 529, 41 So. 449.
Bowen vs. Grace, 64 Fla. 28, 59 So. 563; DeLong
vs. Marshall et al., 63 So. 723, 66 Fla. 410.
2Sec. 2115, Fla. Comp. Laws.



In the offices of the Clerks of the Circuit
Courts of the several counties of the State will be
found plat or map books containing copies of the
plats or maps of lands which have been subdivided
into smaller parcels than the government survey.
When the property, the title to which is being ex-
amined, is embraced by a subdivision of a larger
tract, the examiner should carefully examine the
record of the plat or map of the subdivision and
verify as nearly as possible the measurements of
the property as shown thereon. Such plats or
maps also sometimes disclose the existence of pub-
lic highways or easements across the property
which the records do not show, and if such is found
to be the case, attention should be called thereto in
the opinion.
There are no Statutes in this State regulating
or prescribing the manner of making plats or maps
of subdivided property. Hence, no exact rule can
be laid down as a guide for the examiner in de-
termining the sufficiency of the plat or map. Of
course, it should state what property is covered
thereby and there should be given such measure-
ments of the property whereby the several parts of
the subdivision may be located. In short, we may


say that if the plat or map is not prepared so that
the property may be identified with reasonable
certainty, an objection should be offered to the suf-
ficiency thereof. Many informalities will be en-
countered here, and the examiner must exercise his
best judgment in the premises.



Real estate is frequently conveyed in the name
of the owner by his or her attorney in fact, as the
case may be. If the property of a married woman
has been so conveyed, the abstract should show the
record of the power of attorney. This is also true
of a mortgage, lease or other transfer of the prop-
erty of a married woman. The power of attorney
should be carefully examined in such case with
the same care as if the deed had been executed by
the married woman in person. It is necessary that
the husband join the wife in the execution of a
power of attorney by her, and that she execute and
acknowledge the same in the form and manner
prescribed for the execution and acknowledgment
of the conveyance of her separate real property or
relinquishment of dower.' The Statute also re-
quires that the power of attorney be recorded.2
There are no particular requirements for the exe-
cution of a power of attorney by an unmarried
person, but it should be recorded.3

1Sec. 2473, Fla. Comp. Laws.
2Sec. 2473, Fla Comp. Laws.
3Sec. 2480, Fla. Comp. Laws.


The law has validated prior conveyances by
married women by attorneys in fact, if such power
of attorney was executed in accordance with the
Act of Feb. 20, 1875. (Sec. 2473, Fla. Comp.

. 2476, Fla. C



The partition of lands in Florida is a statutory
proceeding and the requirements of such a pro-
ceeding are plainly set forth.1 The Statutes pre-
scribe what the bill of complaint shall set forth;2
therefore, the examiner in investigating the pro-
ceedings can easily determine whether the allega-
tions of the bill of complaint conform to those set
forth in the Statutes. If, however, the case has
been determined, we do not believe failure to com-
ply minutely with the provisions of the Statutes as
to what the bill of complaint shall set forth, would
be a fatal defect in the proceedings, or render the
title of one of the co-owners invalid. Also, we do
not believe that the section of the Statute referred
to is jurisdictional in its requirement, so that if de-
cree pro confesso has been entered against any of
the defendants they could later raise a question on
this point; that is, after time for taking an appeal
has elapsed, which is six months.

1Secs. 1939-1946, Fla. Comp. Laws.
2Sec. 1942, Fla. Comp. Laws. See also Mil-
ton vs. Milton, 62 Fla. 564, 56 So. 947.


Observations heretofore made in connection
with other proceedings in regard to service of pro-
cess apply with equal force in partition proceed-
ings. Defendants in such proceedings may be
brought into- court by publication.3 As service of
process is jurisdictional, the examiner should be
careful to ascertain that service has been had on all
of the defendants, and if service has been had by
publication, that the order was published for the
required time. If minors were made defendants,
the records should show that service of process was
had upon them and a guardian ad litem then ap-
pointed. If service of process has been had upon
minors by publication, a guardian ad litem should
not be appointed until such service has been per-
fected; that is, until after the order has been pub-
lished for the required length of time.4 It is a
rule of law, applicable in every proceeding in
which a minor is interested, that a guardian ad
litem should have notice of each step in the pro-
ceeding.5 We are not ready to say that failure to
give a guardian ad litem notice of each step in a
proceeding would necessarily render any title
based thereon invalid, if the records show that the

3Secs. 1866, i866a, Fla. Comp. Laws.
4Sec. i866d Fla. Comp. Laws; Laflin vs. Gato,
52 Fla. 529, 42 So. 387-
5Mote vs. Morton, 52 Fla. 548, 41 So. 607.


minor and the guardian were properly brought
before the court by service of process."
Upon entry of decree pro confesso or after the
pleadings have been settled, the court enters a de-
cree finding and establishing the interests of the
several parties to the suit in the land or lands, and
directs a partition thereof to be made if it is of the
opinion that the parties to the suit are entitled to
it.7 The decree should be carefully examined to
see that it adjudicates the rights of all of the par-
ties to the suit who have established their interest
in the land.
After the entry of the decree referred to in the
preceding paragraph, the court appoints three
suitable persons to act as commissioners to divide
the land. These parties, however, may be selected
by agreement of the parties. The law requires
that the commissioners shall be sworn by the clerk
of the court, or any judicial officer, before entering
upon their duties, to faithfully and impartially ex-
ecute the trust imposed, in them.8 If the records
show that the commissioners did not take the re-
quired oath, we are of the opinion that title to the

"Day et al. vs. Hurchman, 65 Fla. 186, 61 So.
7Sec. 1943, Fla. Comp. Laws; Stewart vs. Hun-
ter, 65 Fla. 325, 61 So. 623.
'Sec. 1944, Fla. Comp. Laws.


property partitioned would not be invalidated
thereby, especially if considerable time has
elapsed, and in addition, we think it would be in-
cumbent upon any person seeking to take advan-
tage of such omission, to show that the division of
the land was unfair. Having made a division of
the lands in question, the commissioners are re-
quired to make a report of such division in writing
to the court.9 The report of partition should par-
ticularly describe the tracts of land allotted to the
several owners. This report should be recorded,
as it is the basis of the title of future owners of the
property allotted thereunder.
The report of the commissioners in partition
should be confirmed by the court. The decree
confirming the report, vests in the respective par-
ties the title to the land or lands allotted to them
by the commissioners. However, an opportunity
is given by the Statute to the parties in interest to
object to the commissioners' report of partition.
If the parties in interest are accessible for service
of notice of the commissioners' report, they have
ten days in which to except to such report, and if
they are absent from the State, they have thirty
days after the report is filed in which to except to
it. Notice of the filing of the report of the com-
missioners is usually given by the commissioners

9Sec. 1944, Fla. Comp. Laws.


themselves, but the Statute does not prescribe how
or by whom such notice is to be given.10
If the commissioners report that the land is so
situated that a partition thereof cannot be made
without great prejudice to the owners of the same,
and the court is satisfied that such report is just and
correct, upon application of any party to the pro-
ceeding and notice to other parties to the suit, if
they are in the State, the court may order the
premises to be sold at public auction to the high-
est bidder, by and under the direction of the com-
missioners.11 It is important to observe that the
commissioners complied with the order of the
court in giving notice of the sale, which is usually
done by publication. The Statute permits the
property to be sold on terms for good cause
It is imperative that the sale of the property be
reported to and confirmed by the court before a
deed is made by the commissioners. If the records
do not show that the sale was confirmed by the
court, serious objection should be raised on this
point, as the Statute positively requires that the
sale be reported to and confirmed by the court be-

"0Sec. 1944, Fla. Comp. Laws.
"Sec. 1945 (i), Fla. Comp. Laws.
"Sec. 1945 (2), Fla. Comp. Laws.


fore deed is made.13 If, however, there has been a
great lapse of time since the land was sold and
deed made by the commissioners, we do not think a
title should be declared to be invalid, merely be-
cause the salewas not confirmed by the court.
Lands are sometimes divided among the own-
ers thereof without resort to a legal proceeding
therefore. If the lands so partitioned belonged to
a decedent and the division among heirs has taken
place within a reasonably short time, the examiner
should ascertain if the estate of the decedent has
been settled up, as partition cannot be made among
the heirs until the estate is settled and indebtedness
thereof paid.14
The decisions of the Supreme Court of Florida
have been amply digested in the Florida Compiled
Laws of 1914, and likewise in Wurts' Digest,
hence another digest has not been attempted here.
When a suit affecting real estate is instituted,
a lis pendens notice is usually filed as a protection
against purchasers or creditors. The statute pre-
scribes the contents and requires such notice to be

"Sec. 1945 (3), Fla. Comp. Laws.
"Mattair vs. Payne, 15 Fla. 682.
"Sec. 1649, Fla. Comp. Laws.



Sometimes the abstract will disclose that an
owner of the property in question has made a writ-
ten contract of sale thereof to one party and has
conveyed it to another, without a release or assign-
ment of the contract having been obtained. If
there has been a great lapse of time between the
making of the contract and deed of conveyance,
the title may be passed without raising serious ob-
jection on this point, as laches probably would bar
recovery on the part of the holder of the contract.
If the contract is of recent date, however, it is
well to require a release or quit-claim deed from
the holder of the contract, even though he may
have breached it, especially if he is known to be
asserting any rights thereunder or is likely to do
The usual form of contracts of sale employed.
provides that upon failure of the vendee to make
required payments, or comply with any of the cov-
enants contained therein, the contract shall, "at the
option," of the vendor, be forfeited. The use of
such words requires that the vendor exercise the
option before the rights of the vendee are forfeited

University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs