Wm. H. Christy et al., Appellants, vs. Joshua L. Burch, Appellee, 25 Fla. 942

McWhorter, O. J.: Joshua L. Burch and Harriett H. Burch, in her own right and as the executrix of her husband, Smith Burch, filed a bill in the Circuit' Court of Duval county against Mary M. Christy and William H. Christy, husband of the said Mary. The bill alleges that on the 16th day of December, A.

D. 1868, one Edward Honstoun was seized in fee of the following lands in said State and county, to-wit; “All that certain piece or parcel of land situated and being one mile west of the City of Jacksonville, county of Du-val and State of Florida, upon a branch known as the ‘Brick Yard Branch,’ and more particularly described as follows, to-wit: Beginning at a point in the centre of the channel of the said Brick Yard branch, on the north side of the culvert of the Florida Central railroad over said branch, and running thence down and along said branch in its channel in all its meanderings to McCoy’s creek, thence eastwardly down said creek to the western boundary line of land formerly owned by J.

O. Jaques, thence north'westardly along the line of said land to a point such that a line drawn thence due west will strike the stump of a persimmon tree which was a station tree on the line separating the land of William Sedgwick froth the land herein described, and conveyed formerly of Joseph S.

Baker, thence westwardly along said line to a point such that a line drawn thence due north would strike the southwest corner oí a lot of land owned by one Burnham, thence northwardly on aline parallel with the boundary line of the aforesaid Sedgwick land to the southern boundary line of the aforesaid Burnham’s land, thence westwardly along the said southern boundary line to a lot known as the Brick Yard Church lot, thence along the boundary line of said church lot, southwardly, westwardly and northwardly to the starting point.

And also that other piece or parcel of land situated and being in the same county and State, in La Yilla, and known as the School House lot, being bounded on the north by lands belonging to the heirs of one Huffman, on the east by lands sold by the said Joseph S. Baker to F. E. L’Engle, on the south by a street separating it from lands sold to J. C. Jacques, and on the west by a thirty-foot street separating it from lands of William Sedgwick, containing one and a quarter acres, more or less.” That said Houstoun on said last mentioned day conveyed said lands by warranty deed to your orator, J. L.

I’nrch, and his brother, Smith Burch, unincumbered ; that at the time of the execution of said deed by said Houstoun, he delivered possession of said land to your orator, J. Lr Burch, and said Smith Burch, and that they jointly, in the life time of said Smith, held open and notorious possession of said land, and erected valuable brick buildings on the same, and since the death of said Smith Burch, your orators have held continued posssession of the same, and have continued to make improvements thereon. The bill further alleges that a short time before the sale by said Houstoun to J. L.

Burch, the defendant Mary L. Christy, being seized in her own right of the above described lands, together with her husband, William II.

Christy, conveyed by deed the said lands to said Houstoun, which deed was duly and properly acknowledged, but never recorded ; that this deed from said defendants to Houstoun is one of the links in the complainant’s chain of title, and that the loss of the same, as is afterwards set forth in said bill, is a cloud upon complainant’s title; that said deed from Christy and wife to Houstoun was lost, and that it was never recorded; that complainants had exhausted every means in their power to find said deed, but without success; that when it was found that said lost deed could not be discovered, said Houstoun employed one James M.

Daniel as his agent, who requested said defendants to give to said Iloustoun a quit claim deed of the said lauds, and that they agreed to do so, and that said Daniel prepared and tendered to them for execution a quit claim deed fir said lands, but the defendants failed to execute the same, and making various excuses for such failure; that said Houstoun died in they ear 1875 ; that said William H. Christy, on the 22d of August, 1872, in a letter to F. F.

L’Engle, admitted the making of the deed by himself and wife •(> said Houstoun, said letter is appended to the bill as an exhibit; that during all the time of the occupation of said land by orator J. L. Burch and his brother, Smith Burch, they have stood by and seen valuable improvements erected by them without claiming or attempting to claim the same ; that said defendants, taking advantage of the accidental loss of said deed, have commenced a suit in ejectment against your orators for the possession of said land, except the School mouse lot.

The bill prays for an injunction restraining the defendants from prosecuting further said ejectment suit, and that it may be decreed that all the interest of said defendants in said land passed by said deed to Houstoun, and that complainant’s title is perfect as against said defendants and any person claiming under them. Mary M. Christy and Win. H. Christy separately answered the bill. The answer of Mrs.

Christy alleges that she and her husband made an oral agreement with said Houstoun to sell him a certain tract of lands known as the Baker lands which she had purchased in her own right from one Baker, lying along and east of the brick yard branch south of the old alligator road about one and a half miles west of Jacksonville, but that said contract of purchase did not include the one and one-third acres on the west side of said branch, nor the school house lot mentioned in said deed to her from Baker; that afterwards said Iioustoun was unwilling to accept in execution of said contract of sale a deed conveying to him in the terms and by the description employed in rhe said deed to her from said Baker, nor was he willing to accept the acreage as estimated by the terms employed in said Baker deed, but he required a survey definitely fixing by links and chains the lauds to be conveyed to him.

A survey was thereupon made by said Houstoun, which survey defined by metes and bounds the exact limits thereof and determined the exact quantity of the land therein; that this survey did not take in all the lands embraced in the deed to her from Baker, hence that there was a deficiency in quantity in the lands so surveyed and defined as compared with acreage so contracted to be sold, and said Houstoun refused to execute said contract of sale and that said original contract of sale was abandoned; that subsequently negotiations were resumed and for the same consideration agreed on in the first contract for a conveyance of the lands embraced in said survey made bjr said Houstoun and the lauds known as the “school house lot, ” which lot was more valuable, acre for acre, than the Baker lands contiguous thereto; that the school house lot was made to supply, according to the last contract, the deficiency in the acreage of the original contract; that upon the payment of the purchase money by Iioustoun defendant, and her husband delivered to said Houstoun a deed ; that said deed was preparedby said Houstoun to be executed by said defendant and her husband as a conveyance ot the lands so defined by said survey and said school house lot, and no other lands or interest in lands; that she does not know whether the formalities required byr law as to the execution and acknowledgement of the deed were complied with or not; that she cannot now recall any fact or circumstance in connection with its execution and acknowledgement.

A map is appended to the answer showing what part of the Raker lands were not included in said survey and not intended to be sold. Win. IT. Christy, in his answer, denies that the deed from Houstoun to the Burches contained the true description sold to Houstoun by himself and wife,and alleges another survey with different metes and bounds, in which survey he was the chain bearer.

Does not remember whether said deed from himself and wife to Houstoun was signed, sealed or delivered by him or his wife, or whether it was in the presence of two witnesses, who, as such, subscribed their names thereto, or whether it was or not acknowledged by him and his wife; that notwithstanding it was his intention that said deed should be duly executed and acknowledged, he has reason to disbelieve and so denies that all the essential formalities prescribed were duly observed by him and his wife in its execution and acknowledgement; that no improvements have been erected on the portion of the tract which respondent claims were not included in the deed to Houstoun.

The defendants have not produced any evidence to sustain their answer as to new matters set up therein or to matters that are responsive to the bill. In considering the answer as evidence we are restricted to the statements therein that are responsive to the complainants’ allegations. The answer ot both defendants deny that the deed which they admit that they made to Houstoun was of the lands as described in the bill. Is there sufficient evidence in the record to overturn their answers ? We think there is.

The evidence of Burch is that when he bargained for the land from Houstoun the defendants had not made a deed to him; that he saw a deed from Christy and wife to Houstoun which was shown to him by J. M.

Daniel, this deed he says did not in-elude all the lands that he had bargained for from Houstoun; that there were two pieces or parcels left out; that he refused to accept that portion of the land and that Judge Daniel went to Christy and wife about it; they refused to put in the deed both of the pieces which were left out but included the school house lot; that he carefully compared the descriptions of the property in the deed thus made with the deed which Houstoun was to execute to himself and brother ; that they were both lying on the table before him; that Judge Daniel told him that he had forwarded the deed to Tallahassee, soon afterwards he received a deed from Houstoun and wife properly acknowledged.

It -was not the same deed that Judge Daniel had forwarded to Tallahassee but the description of the property was the same; that he was particular to look at it because it was not the same deed, afterwards learned that the deed was changed because Houstoun wished to change the form of warranty. The only difference in the deed prepared by Judge Daniel and the one executed by Houstoun was in the form.of the warranty clause. The deed from Christy and wife to Houstoun acknowledged before John S. Swaim, who was a Justice of the Peace in Duval comity. Swaim is now dead.

Witness is certain that there were two witnesses to the deed and believes that one of them was J. M. Daniel; that he had frequently received notes from Mrs. Christy and had seen her sign her name; had seen Christy write his name very often. The deed had all the appearance of a regularly executed deed. Patrick Houstoun, a son of Edward Ploustoun, testified that he wrote the deed from his father to the Burch Brothers and was one of the witnesses to it.

The description of the land therein was copied from a deed from the Christvs to Edward Houstoun; that Edward Houstoun died in 1875, does not remember whether the Christy-IToustoun deed was witnessed or not, nor whether it was ackowledged before a judicial officer or not; is unacquainted with the Christy's; have never seen either Christy or his wife write; cannot say' their signatures were genuine.

It appears that a deed drawn by J udge Daniel for execuljion byr IToustoun to the Burches was submitted to the first witness, Burch, who carefully' compared the description of tile land therein with the description of the land in the deed from the Christys to Houstoun ; he knew their signatures; this deed thus identified as a genuine deed of the Christys, together with the copy prepared by Daniel, was sent to Houstoun at Tallahassee. Houstoun objecting to the form of the warranty' of the deed, his son prepares another, with a deed purporting to be from the Christys before him.

We must conclude that this was the deed testified to‘by. Burch. The deed written by7 Patrick Houstoun was duly' executed and sent to the Burches. Burch swears that seeing that it was not the same deed that was sent by Daniel for execution by Honstoun, looked at it particularly', and that there was no change in the description of the land.

In addition to this testimony, it would seem improbable that the Christys would have acquiesced so long in the occupation of the land by Burch without making an effort to recover the same, if his occupation was wrongful, and equally' improbable that Houstoun in selling land, which at the time of the sale he bad not received a deed for from his vendors, should, after obtaining a deed from them, execute a deed to his vendors with a warranty 0/ title of more land than his deed from them showed he owned ; the evidence shows that he was a man of large estate, and it it is difficult to believe that he would have involved himself in such a manner.

Another question arises: Was the deed from the Christys to Houstoun executed in accordance with the requirement of law? This deed having been lost, secondary evidence as to its contents is admissible. In case of a lost or destroyed writing, the law is liberal in allowing presumption as to its regularity. In the case of Hart vs. Hart, 1 Hare Eng. Chan. Rep., p. 1, the Vice Chancellor said : “It is manifest that the greatest injustice might ensue, if in the case of a lost instrument the presumption of regularity upon a merely collateral point were not used in favor of the parties claiming under it.” In Rex vs.

Long Buckley, 7 East, 45, it was held that an instrument which required a stamp, its loss being proven, would be presumed to have been properly stamped, although there was evidence of a negative character to rebut the presumption. So also it has been held that the subscribing wetnesses may be dispensed with when the deed is lost and the witnesses are unknown. Felton and Pittman, 14 Geo., 530; Phillips on Evidence, vol 2, p. 557.

The deed in question having been shown to be lost, and its contents having been established, we are bound to presume that it was executed in conformity with all the requirements of the law. Counsel for appellants insist that inasmuch as the deed was lost without having been recorded, that under Sec. 6, p. 755, McC’s Dig., it is invalid. This

section is as follows: “The husband and wdfe shall join in all sales, transfers and conveyances of the property of the wife, and the real estate of the wife shall only be conveyed by a joint deed of the husband and wife, duly attested, authenticated and admitted to record, according to the laws of Florida regulating conveyances of real property.” The language of the statute as to recording the deed would almost seem to be imperative, yet it is impossible to conclude that the Legislature whose only object was the protection of the wife should make the title to her vendor dependent upon his acts or omissions after she had made to him a deed to the property and which acts or omissions could not in any possible way effect her interest.

If she had sold the property and received the purchase money for it •she was protected as tar as there was any need of protection, and it was a matter of indifference to her interest what the purchaser did with his deed. We think that the only reasonable construction of the act is that the portion of it alluding to the recording of the •deed from a married woman is not intended to affect the validity of the deed as between the married woman and her husband, the grantors and their vendee, but can allude only to subsequent purchasers. We feel clear that this is the proper construction of the act.

To hold otherwise w ukl be to say that a purchaser from a married woman held his title upon'a condition which was not mentioned in the deed and the happening or non-happening of which was a matter of the utmost immateriality to her interest. A deed must be in existence and in the hands of the recording officer before it can be recorded. No time is fixed by the law within which it must be recorded. The vendee may delay its record to suit his convenience.

If it should be duly executed by a married woman and is lost, this loss alone, if the position of appellant’s counsel is true, would •operate as a reversion of the property to the grantor. It oould not be recorded because it was lost and it could not be re-established because it had not been recorded. The Kentucky case of Scarbrough vs. Watkins, 9 B. Monroe, 540, and reported in American Decisions, vol. 50, p. 529, is materially different from this. The Kentucky statute required the deed of a married woman to be recorded within eight months,aud if not so recorded it was not obligatory on herorherheirs.

Anotherstatutemadealldeedsdulyproven or acknowledged but not lodged for record in the proper office in the time prescribed by law,if subsequently recorded as effectual for all purposes from the time of recording as if recorded within the time prescribed by law.

The decision of the court turned upon the point that the latter statute was not intended by the Legislature to effect laws governing the recording of a deed from a married woman The Kentucky Court would not have refused relief where the deed was lost before the expiration of the eight months, upon are fusal of the grantor to execute another deed within that time and an application to re-establish it, nor can we, our statute fixing no time for its record, refuse relief when it has been lost without recordation and the time for recording it has not expired. Decree affirmed.