
    E. B. EDENFIELD, Appellant, v. J. D. WINGARD and W. E. Duggan, etc., et al., Appellees.
    Supreme Court of Florida. En Banc.
    Sept. 19, 1956.
    Rehearing Denied Oct. 25, 1956.
    
      Clyde Campbell, Crestview, for appellant.
    Gillis E. Powell, Crestview, for appellees.
   DREW, Chief Justice.

C. B. Edenfield mortgaged certain property to the appellant, E. B. Edenfield, and the mortgage was recorded. Later, C. B. Edenfield mortgaged the same property to the appellees, Wingard and Duggan. Wingard and Duggan foreclosed their mortgage without joining E. B. Edenfield in the suit.

The present case arose when E. B. Ed-enfield subsequently brought a complaint of foreclosure on his mortgage naming C, B. Edenfield, Wingard and Duggan as defendants. Wingard and Duggan moved to dismiss the complaint .on the contention that the acknowledgment was insufficient to entitle E. B. Edenfield’s mortgage to record, so that the actual recording did not constitute constructive notice to subsequent mortgagees. The chancellor granted the ap-pellees’ motion to dismiss the complaint, allowing appellant thirty days to amend. Appellant petitioned the chancellor for a rehearing, which was denied; and then chose not to amend, but to prosecute his appeal on the original complaint.

The pertinent part of the acknowledgment appearing on E. B. Edenfield’s recorded mortgage reads:

“This day before the undersigned personally appeared E. B. Edenfield! to me well known to be the individual described in and who executed the foregoing Deed of Mortgage, and acknowledged that he executed the same for the uses and purposes therein ex-pressed.” (Emphasis ours.)

Appellant suggests that the acknowledgment is sufficient although it appears on the surface that the mortgagee, E. B. Eden-field, rather than the mortgagor, C. B. Edenfield, made the acknowledgment, because the document as a whole shows the true state of facts, or because the doctrine of “obvious clerical error” should lead the court to disregard the defect.

The general rule, which' Florida has followed, is that a defect in an acknowledgment which would prohibit recordation prevents the primary document from acting as constructive notice, even though actual-1 y recorded. Edwards v. Thom, 25 Fla. 222, 255, 5 So. 707; Lassiter v. Curtiss-Bright Co., 129 Fla. 728, 732, 177 So. 201. See Tiffany on Real Property, Third Edition, Section 1264.

The crux of the present case is the sufficiency of the acknowledgment under the Florida Recording Act, F.S. Ch. 695 F.S.A. A material portion of the statute, Sec. 695.-03, requires:

“In order to entitle any of the instruments named in §§ 695.01, and 695.02 [mortgage] * * * to such record, the execution thereof must be acknowledged by the party executing the same * * * ” (Emphasis ours.)

However, another material portion of the statute, Sec. 695.09, requires that:

“No acknowledgment * * * shall be taken by any officer * * * unless he shall know, or have satisfactory proof, that the person making the acknowledgment is the individual described in and who executed such instrument, * * * ”

We cannot assume the notary failed to obey his official duty set out in Sec. 695.09. Therefore, there can be no doubt that the certificate of the notary that the person who personally appeared before him was “the individual described in and who executed the foregoing deed of mortgage, and acknowledged that he executed the same for the uses and purposes therein expressed” was sufficient to establish that such person was C. B. and not E. B. Eden-field.

In Summer v. Mitchell, 29 Fla. 179, 10 So. 562, 14 L.R.A. 815, we laid down the rule, from which there has been no departure, that the whole of the instrument acknowledged may be resorted to for support of the acknowledgment. This is a fundamental principle of construction. Moreover, in the foregoing case, we pointed out the policy of the law to uphold certificates of acknowledgment wherever possible. In the' present age of modern recording statutes, abstracts of title and other means of investigation of record titles, this principle of .law is of greater force than when it was first pronounced. But even then we declared:

“It is the established policy of the law to uphold certificates of acknowledgment * * * and, wherever substance is found, obvious clerical errors and all technical omissions will be disregarded. Inartificialness in their execution will not be permitted to defeat them, if looking at them as a whole, either alone or in connection with the [instrument], we find that they reasonably and fairly indicate a compliance with the law. Clerical errors will not be permitted to defeat acknowledgments when they, considered either alone or in connection with the instrument acknowledged, and viewed in the light of the statute controlling them, fairly show a substantial compliance with the statute ” (Emphasis ours.)

The foregoing citation from Summer v. Mitchell, supra, is taken from House of Lyons v. Marcus, Fla.1954, 72 So.2d 34, where we upheld a questioned acknowledgment by officers of a corporation.

The acknowledgment, supported by the whole instrument, fairly shows a substantial compliance with the statute. We, therefore, reach the conclusion that the acknowledgment is sufficient within the contemplation of the law.

The judgment is hereby reversed.

HOBSON, ROBERTS and O’CON-NELL, JJ., concur.

TERRELL, THOMAS and THORNAL, JJ., dissent.

THORNAL, Justice

(dissenting).

I respectfully dissent. We have held on several occasions that the recording of a mortgage upon the public records without proof of the execution of the instrument as required by statute is a nullity insofar as the giving of constructive notice is concerned. We are not here passing on the validity of the document as between the immediate parties. Our problem relates solely to the existence of notice to subsequent encumbrancers. The record of a legally insufficient acknowledgment gives no notice to subsequent purchasers or en-cumbrancers. House of Lyons v. Marcus, Fla.1954, 72 So.2d 34, and cases there cited.

In passing, we do not overlook the rule announced by the majority to the effect that the entire instrument acknowledged may be resorted to for support of the acknowledgment. It is conceded to be the established policy of the law to uphold certificates of acknowledgment where substantial compliance with the statutory requirements is found. In such cases clerical errors and technical omissions will be disregarded. I would continue to adhere to the rule that clerical errors will not be permitted to defeat acknowledgments when it is considered either alone or in connection with the entire instrument acknowledged and when viewed in the light of controlling statutes it fairly complies with the requirements of the statute. House of Lyons v. Marcus, supra; and helpful annotations in First National Bank of Casselton v. Casselton Realty & Invest. Co., 44 N.D. 353, 175 N. W. 720, 29 A.L.R. 911, and Seale Motor Co. v. Stone, 218 S.C. 373, 62 S.E.2d 824, 25 A.L.R.2d 1118.

It is not intended to recede from the rules heretofore announced. However, here, we are confronted with an unusual situation and one for which we have found very little precedent. Our basic problem is whether we can conclude as a matter of law from an examination of the face of the acknowledgment, supplemented by the body of the mortgage, that an obvious clerical error was committed. Unfortunately for the appellant, it happens that he was actually a party to the instrument and that his surname and the surname of the mortgagor are identical. I am of the view that we cannot safely conclude that this record presents an obvious clear-cut clerical misprision that can be disregarded in applying the requirements of our recording statutes.

The general rule is well stated in 1 Am. Jur., Acknowledgments, Sec. 119, p. 365, as ' follows:

“A variance between the certificate and the instrument acknowledged in respect of the name of the grantor is immaterial where it arises from obvious clerical error, where the names are idem sonans, or where they are merely different forms of the same name, and hence, no uncertainty as to the identity of the acknowledger and the grantor arises. But an acknowledgment setting out a/n entirely different person from the one signing the instrument has been held not good” (Emphasis ours.)

Consistent with this rule the Supreme Court of Nebraska in Maxwell v. Higgins, 38 Neb. 671, 57 N.W. 388, 389, held:

“ * * * There was offered in evidence the record of a deed dated January 9, 1867, from Oscar B. Selden and wife, purporting to convey the land to Mehitable Higgins and Stephen Hewitt Higgins. This record was objected to, and properly excluded, for the reason that the deed appeared to have been acknowledged by the grantees, and not by the grantors. * * * ,r

In Wood v. Cochrane, 39 Vt. 544, the Supreme Court ;of Vermont held (quoting second headnote):

“C. executed a mortgage of certain premises to W., but by the certificate of the magistrate taking the acknowledgment it appeared that W., the grantee, instead of G, the grantor, acknowledged the instrument. Held, that, as it cannot be determined by the face of the instrument whether an error was committed in writing the name of the man who acknowledged it, or in taking the acknowledgment of the wrong man by mistake, the court would not be warranted in treating the instrument the same, and giving it the same legal effect, as though the error had not been committed.”

The cases from which we have quoted are the only ones our research has revealed involving a situation substantially analogous to the one here before us. An examination of the mortgage and acknowledgment in this record fails to sustain a conclusion that we can determine from the face of the instrument that an obvious clerical error was committed. We would be guilty of nothing more than pure speculation to undertake to decide that the error was committed by the unintentional naming of the mortgagee instead of having been committed by taking the acknowledgment of the wrong party to the instrument. We are not authorized to indulge in such speculation.

While, admittedly, to some it might appear that the draftsman of the document merely through oversight inserted the name of the mortgagee instead of the mortgagor, it is equally justifiable that one could conclude that the Notary Public took the acknowledgment of the wrong party. Although obviously not a point for decision, if the draftsman had merely mispelled the name of the mortgagor in the acknowledgment, for example, if he had used the correct initials and then spelled the last name “Edenfelt”, we could see some area for applying the rule of idem sonans or obvious clerical error. This is merely illustrative of the type of obvious clerical error that might be disregarded; but this was not the case here.

From all that appears from the record, the Notary took the acknowledgment of the wrong party to the instrument. I am, therefore, compelled to conclude that the acknowledgment is defective to the extent that it was not entitled to record and this being so, the recording of it could not give constructive notice to subsequent en-cumbrancers. I would therefore affirm the ruling of the Chancellor.

TERRELL and THOMAS, JJ., concur.  