Opinion
Original Opinion filed December 16, 1930. Petition for rehearing granted February 4, 1931. Opinion on rehearing filed May 8, 1931.
An appeal from the Circuit Court for Polk County; H. C. Petteway, Judge.
Decree reversed.
Huffaker Edwards, for Appellant;
Johnson, Bosarge Allen and Peterson, Carver, Langston O'Quin, for Appellee.
Clara Ackley, complainant below, joined by her husband filed her bill of complaint seeking to have cancelled a certain deed from herself and husband to the defendant and to have reinstated a certain lease by said deed transferred and assigned to defendant, and for an accounting. Defendant demurred to the bill for want of equity. The demurrer was overruled and defendant appealed.
The bill alleges that John B. Thornhill conveyed certain lands to S. K. Ackley and took back a purchase-money mortgage; that S. K. Ackley leased the said lands to the defendant for a term of years and thereafter conveyed the same lands to Clara Ackley, his wife, subject to the Thornhill mortgage and subject also to the lease from S. K. Ackley to Defendant; that complainant acquired all the rights of the lessor in the aforesaid lease; that thereafter complainant by and through her husband, agreed to sell the said land to defendant for $10,000.00 cash, upon condition that defendant would assume and agree to pay the Thornhill mortgage; "that your oratrix understood and alleges the defendant was willing to purchase said land subject to such terms and conditions;" that complainant caused to be prepared a certain warranty deed from herself and husband covering the said land and in which deed was contained an assignment and transfer of the lease theretofore made by S. K. Ackley to defendant and also a recital that the defendant assumed and agreed to pay the mortgage held by Thornhill; that this deed was executed and acknowledged by complainant and her husband and name of the grantee left blank and thereupon delivered by complainant to her husband to complete the sale upon compliance on the part of the defendant with the conditions therein named; that S. K. Ackley did deliver said deed and did receive for the complainant the cash consideration of $10,000.00 paid by defendant; that at the time of delivery of the deed in blank, the defendant inserted therein its name as grantee and thereupon without knowledge or authority on the part of complainant so altered and changed said deed as to strike therefrom all reference to assumption by grantee of the Thornhill mortgage; that complainant has never ratified or consented to the alteration in said deed made and offers to credit the cash consideration of $10,000.00 against rents in excess thereof now accrued under the terms of the lease, which she now seeks to have reinstated.
A married woman who, joined by her husband, executes and acknowledges a deed upon her separate property, complete in all respects except that the name of the grantee is left blank, and thereupon authorizes and directs its delivery by her husband to an intended purchaser, who at the time of delivery fills in its name as grantee and accepts the said deed and pays the agreed consideration therefor, will be estopped in a bill brought by her to cancel such deed from claiming that such deed was invalid by reason of the name of the grantee being inserted therein after the execution thereof by her. Thompson on Real Property, Sec. 3978; Ponce de Leon Fountain of Youth Co. v. Day, 90 Fla. 197, 105 So. 814. See also Annotation, 32 A. L. R. 737, et seq.
Complainant contends that as consideration for the deed, she was to have received $10,000.00 cash, and defendant was to assume the Thornhill mortgage.
The deed recites a consideration of $10.00 and other valuable considerations and a cash consideration of $10,000.00 is admitted to have been paid.
The purpose and function of an expressed consideration in a deed is complete when it fixes and identifies itself as either a good or a valuable consideration, and the validity of the deed does not depend on the real consideration being expressed therein. Knighton v. Des Portes Merc. Co., 119 S.C. 340, 112 S.E. 343. And an agreement by the defendant at the time of taking the deed of conveyance to the real estate, that it would assume the mortgage indebtedness upon the property as a part of the consideration of the conveyance need not have been set forth in the deed. Herrin v. Abbee, 55 Fla. 769, 46 So. 183, 18 L.R.A. (N.S.) 907.
It is contended by appellee, Clara Ackley, that striking of the assumption clause in the deed was sufficient alteration of the deed to render it void.
An alteration in a deed, to render it void, even when made by a party to it must be a material one; that is one which causes the deed to speak a language different in legal effect from that which it spoke originally. Murray v. Klinzing, 64 Conn. 78, 29 A. 244; Delvin on Deeds, Section 462; Thompson on Real Property, Sec. 3982; Monographic Note, 32 L. R. A. (N.S.) 284, et seq; Stewart v. Preston 1 Fla. 10, 44 Am. Dec. 621.
Clara Ackley was not personally liable for the Thornhill mortgage. Her husband, who was obligated to pay this mortgage, delivered the deed, collected the consideration paid and must be presumed to have known of the assumption clause being stricken from the deed at the time of delivery. The joinder of S. K. Ackley as a party complainant herein, with his wife, is merely pro forma to enable his wife to sue. He does not complain of the deed being altered, nor does he contend that such deed was altered without his knowledge or consent. He seeks no relief in this case.
Striking of a mortgage assumption clause from a deed is not such a material alteration as to cause the deed to speak a language different in legal effect as to the rights of a grantor who was not liable for the mortgage debt, where there remains sufficient consideration to support the deed. Cohen v. Bredfeld, 241, Mich. 173, 216 N.W. 376; Murray v. Klinzing, supra; Thompson on Real Property, Sec. 3986-7.
The order appealed from is reversed with directions to the court below to enter an order sustaining the demurrer of the defendant to the bill of complaint as amended.
The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered, and decreed by the Court that the order of the court below should be, and the same is hereby reversed with directions to the court below to enter an order sustaining the demurrer of the defendant to the bill of complaint as amended.
TERRELL, C.J., AND WHITFIELD, ELLIS AND BUFORD, J.J., concur.
STRUM, AND BROWN, J.J., dissent.
This was a suit for cancellation of a deed on the theory that it was wholly void. The court below over-ruled a demurrer to the bill of complaint and this decree was reversed by this court in an opinion filed December 16, 1930.
Re-hearing has been granted and the case re-argued before Division B. It is again insisted that the deed should be cancelled on two grounds (1) that the deed was an unaccepted offer of a contract which never resulted in a valid agreement because the deed was materially changed before its delivery by eliminating therefrom a mortgage assumption clause; (2) that the deed was void because it was made by a married woman and contained no grantee at the time it was executed and acknowledged.
The object of this suit is to cancel the deed itself. The record of it is not sought to be cancelled on the theory that the record shows something of record in the form of a deed which does not legally exist. Reformation or rescission are both omitted from the theory of complainant's case.
In a recent opinion handed down by this Court it was said by Mr. Chief Justice Buford in Shell Creek Land Co. v. Watson, opinion filed April 13, 1931:
"Cancellation will not be decreed for mistake where reformation of the instrument will furnish an adequate remedy. Where an agreement had been actually entered into, but the contract, deed or other instrument, in its written form, does not express what was really intended by the parties thereto, equity has jurisdiction to reform the written instrument so as to make it conform to the intention, agreement and understanding of all the parties."
So insofar as the mortgage assumption clause is concerned, complainant's remedy is to have the deed reformed to re-insert such clause rather than to ask that such deed be cancelled in its entirety.
The elimination of the mortgage assumption clause was, it is true, in one sense a material alteration, but since such assumption clause was merely an undertaking in the deed on the part of the grantee which could have rested in a separate agreement or even in parol, it was in a strict sense of the word no part of the deed itself insofar as the deed operated as a conveyance of the land. Therefore the alteration of the deed by the elimination of this separate, independent provision on the part of the grantee tho for grantor's benefit, was not so material as to render the whole deed void as a conveyance of the land and subject to cancellation on that theory.
In Woods v. Hildebrand, 46 Mo. 284, 2 Am. Rep. 513, it is said:
"It is a mistake to suppose that an alteration in a deed of conveyance, after delivery, operates to reconvey the title to the original grantor. A total destruction of the instrument will not have that effect, but the title remains in the grantee, and he may bring ejectment on it. The title passed by deed; it has performed its office, and its continued existence or integrity is not essential to the title, although a fraudulent and material change may disable the holder from bringing an action upon its covenants."
Neither can we sustain the contention that there was no meeting of the minds of the parties because the deed contained no name of a grantee when it was executed and acknowledged by the grantor, a married woman, or because the mortgage assumption clause had been eliminated.
In its previous opinion, this Court held that a married woman will be estopped, in a bill brought by her to cancel a deed, from claiming that the deed executed by her was invalid by reason of the name of the grantee being inserted therein after the execution thereof.
We are cognizant of the general rule invoked by appellee to the effect that contracts of married women cannot be given effect by estoppel but such rule has no application to the case at bar.
Here the estoppel arises out of the married woman's acknowledgment of the instrument executed by her as a deed. The officer's certificate of acknowledgment recites that Mrs. Ackley executed a deed. This certificate was completed and Mrs. Ackley certainly had knowledge of it before the deed was delivered with such certificate attached to it. Having acknowledged that she executed a deed, Mrs. Ackley is estopped to deny that such instrument was a deed, merely because when acknowledged the deed had no grantee named in it. Therefore the deed was not void whatever may be its insufficiency otherwise.
Married women have heretofore been held estopped by recitals in an officer's certificate of acknowledgment to papers which as married women they had the legal right to execute with reference to their property, when there was no showing that such married woman was not actually before the officer who made the certificate.
The rule as stated in Green v. First National Bank, 85 Fla. 51, 95 So. 251, is:
"The certificate of the officer as to the acknowledgment of the execution of a deed of conveyance or mortgage made before him is a quasi-judicial act, and where the person executing the instrument and the instrument are in fact before the officer, and he undertakes to act officially, the certificate of the officer as to the transaction, when made as the law requires, is, in the absence of fraud or duress, conclusive as to the facts stated in the official certificate. When fraud is alleged, proof of it must be of the clearest, strongest and most convincing character."
This rule was applied to married women in the case of Bank of Jennings v. Jennings, 71 Fla. 145, 71 So. 31, where it was held that the unsupported denial of a married woman that she voluntarily executed a mortgage would not prevail over the certificate of the officer taking the acknowledgment.
No good reason appears to exist why a married woman should be allowed to achieve the same inequitable result by admitting that she did execute and acknowledge the instrument as stated in the officer's certificate of acknowledgment but that the instrument so executed altho recited to be a deed and delivered by her as a deed, was nevertheless void as such because the name of the grantee was omitted, thereby making it according to her contention, not a deed at all.
The previous holding of this Court must be adhered to on this re-hearing and the decree reversed and the cause remanded for such further proceedings as may be consistent with this opinion.
Decree reversed.
WHITFIELD, P.J., AND TERRELL, J., concur.
BUFORD, C.J., concurs in the opinion and judgment.
ELLIS, J., agrees to the conclusion reached upon the reasoning in the first opinion.
BROWN, J., dissents.
I think the allegation as to the unauthorized and unratified striking of the assumptive clause after execution of the deed is a charge of material alteration which requires a response from defendant.
BROWN, J., concurs.