2501 UNIFORM PRINCIPAL AND INCOME LAW §690...2501 UNIFORM PRINCIPAL AND INCOME LAW 690.15 regularly...

2501 UNIFORM PRINCIPAL AND INCOME LAW §690.15

regularly recurring charges shall be considered to have accrued from day to day, and shall be apportioned on that basis whenever the right of the tenant begins or ends at some date other than the payment date of the expenses. Where the expenses to be paid out of income are of unusual amount, the trustee may distribute them throughout an entire year or part thereof, or throughout a series of years. After such distribution, where the right of the tenant begins or ends during the period, the expenses shall be apportioned between tenant and remainderman on the basis of such distribution.

(4) Where the costs of, or special taxes or assessments for, an improvement representing an addition of value to property held by the trustee as part of principal are paid out of principal, as provided in subsection (2) hereof, the trustee shall reserve out of income and add to the principal each year a sum equal to the cost of the improvement divided by the number of years of the reasonably expected duration of the improvement.

Hlstory.-§12, ch. 18392, 1937; CGL 1940 Supp. 5671(13).

690.14 Expenses; nontrust estates.-(1) The provisions of §690.13, so far as applicable and excepting those dealing with costs of, or assessments for improvements to property, shall govern the apportionment of expenses between tenants and remaindermen where no trust has been created, subject, however, to any legal agreement of the parties or any spe-

cific direction of the taxing or other statutes; but where either tenant or remainderman has incurred an expense for the benefit of his own estate and without the consent or agreement of the other, he shall pay such expense in full.

(2) Subject to the exceptions stated in subsection (1) the cost of, or special taxes or assessments for, an improvement representing an addition of value to property forming part of the principal shall be paid by the tenant, where such improvement is not reasonably expected to outlast the estate of the tenant. In all other cases a portion thereof only shall be paid by the tenant, while the remainder shall be paid by the remainderman. Such portion shall be ascertained by taking that percentage of the total which is found by dividing the present value of the tenant's estate by the present value of an estate of the same form as that of the tenant except that it is limited for a period corresponding to the reasonably expected duration of the improvement. The computation of present values of the estates shall be made on the expectancy basis set forth in the official mortality tables and no other evidence of duration or expectancy shall be ·considered.

Hlotory.-§13, ch. 18392, 1937; CGL 1940 Supp. 5671(14).

690.15 Uniformity of interpretation.-This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

Hlotory.-§14, ch. 18392, 1937; CGL 1940 Supp. 5671(15).

§691.01 UNIFORM TRUST ADMINISTRATION LAW 2502

CHAPTER 691 UNIFORM TRUST ADMINISTRATION LAW

691.01 Short title. 691.02 Definitions. 691.03 Powers of trustees.

691.01 Short title.-This chapter may be cited or referred to as the "Uniform Trust Administration Law."

History.-§5, ch. 18397, 1937; CGL 1940 Supp, 6671(16) .

691.02 Definitions.-The term "trust" as used in this chapter includes any express trust, except trust deeds in the nature of a mortgage to secure the payment of money due on notes, bonds or other like obligations, and also excepting what are commonly known as voting trusts. "Trust instrument" includes any writing which legally creates, limits, declares, manifests or otherwise evidences the existence of a trust. "Trustee" includes corporations, individuals and any other legal entity authorized to act and that is acting as a trustee.

Hlstory.-§1, ch. 18397, 1937; CGL 1940 Supp. 6671(17) . cf.-§1.01, General definitions.

691.03 Powers of trustees.-In the absence of contrary or limiting provisions in the trust instrument or a subsequent order or decree of a court of competent jurisdiction, the trustee of an express trust is authorized:

(1) To exchange, reexchange, subdivide, develop, improve, dedicate to public use, make or obtain the vacation of public plats, adjust boundaries, partition real property and on exchange or partition to adjust differences in valuation by giving or receiving money or money's worth . Easements may be dedicated to public use without consideration if deemed by the trustee to be for the best interests of the trust.

(2) To grant options and to sell real property at public auction or at private sale for cash or upon credit, secured by lien upon the property sold or upon other property deemed to be adequate security. Where a trustee is authorized to sell, mortgage, lease, or otherwise dispose of land, such authority shall in-

. elude the right to sell, mortgage, lease, or otherwise dispose of part thereof whether the division is horizontal, vertical, or made in any other way.

(3) To grant leases of real property of which the trustee is the fee owner, to begin at once or within three years from the date thereof, and to grant leases of all rights and privileges above or below the surface of such real property for any term of years not exceeding ninety-nine years, with or without option of purchase and with or without covenants as to erection of buildings, or as to renewals, thereof, though the term of the lease or renewals thereof or of such options extends beyond the term of the trust.

( 4) To raze existing party walls or buildings and erect new party walls or buildings,

691.04 Investments; mortgages, etc.; survivor and successor trustees; action of less than all; notice to trustee.

691.05 Provisions not deemed exclusive.

alone or jointly with owners of adjacent property.

( 5) To make ordinary or extraordinary repairs or alterations in buildings or other structures.

(6) To effect and keep in force, fire, rent, title, liability, casualty or other insurance of any nature, in any form and in any amount, for the proper protection of the real property and the ownership thereof.

(7) To hold without liability, other than that involved in holding property legal for investment of trust funds, any and all property, whether or not permissible for investment of funds of that particular trust, received from or through the settlor of the trust, and 4ny property lawfully coming into the hands of the trustees in lieu of or in substitution therefor. This provision shall not be construed to cover reinvestments of cash made by the trustee.

(8) To make division, allotment and distribution of principal to legatees, beneficiaries, distributees, and remaindermen, wholly or partly in property in kind.

(9) To compromise, contest, submit to arbitration or otherwise settle any and all claims in favor of or against the trust estate or the trustee.

(10) To vote at corporate meetings in person or by proxy. ,

( 11 ) To pay calls, assessments, and any other sums chargeable or accruing against or on account of shares of stocks, bonds, debentures or other corporate securities in the hands of the trustee, where such payment may be legally enforceable against the trustee or any property of the trust, or the trustee deems payment expedient and for the best interests of the trust. To sell or exercise stock subscription or conversion rights, participate in foreclosures, reorganizations, consolidations, mergers, liquidations, pooling agreements and voting trusts; and to assent to corporate sales, leases and encumbrances. In the exercise of the powers named in this subsection, the trustee shall be authorized, where he deems such course expedient, to deposit stocks, bonds or other securities with any protective or other similar committee, under such terms and conditions respecting the deposit thereof as the trustee may approve.

(12) To dispose of, call in or change and make new investments legal for such trust. An authority in general terms to invest in such securities or in such manner as the trustee may deem or think best or fit or to the advantage of the estate or in good safe securities, or in other terms conferring a discretion not expressly limited to property legal

2503 UNIFORM TRUST ADMINISTRATION LAW §691.05

for investment of trust funds, shall be construed as not so limited.

(13) To hold any corporate stock in his Qwn name or in the name of a nominee, with Qr without disclosing any fiduciary relationship, but the trustee, however, shall be responsible for all acts and omissions of such nominee relating to such property.

(14) To create reserves out of income for depreciation, obsolescence, amortization or to insure prompt payment of taxes or assessments, general or special and other obligations, and to restore to income such reserves as may be unused.

(15) To make payments of income directly to minor beneficiaries over the age of eighteen years as though they were of full age; and when income is directed to be paid to minors, to apply and expend the same for their benefit ~ither with or without the intervention of a guardian.

(16) To borrow money and to mortgage or Qtherwise encumber or pledge trust property or future income or principal as security for its repayment.

(17) To advance income to or for the use Qf the benefiiciaries for which advance such trustee shall have a lien on the future benefits of such beneficiary.

(18) To advance money for the protection of the trust or its property and for all expenses, losses and liabilities incurred in or about the ~xecution or protection of the trust or because Qf the holding or ownership of any property subject thereto. For all such advances, the trustee shall have a lien on the trust property and may reimburse himself with interest therefor out of the trust property.

History.-§2, ch. 18397, 1937; CGL 1940 Supp. 6671(18).

691.04 Investments; mortgages, etc.; survivor and successor trustees; action of less than all; notice to trustee.-The following provisions shall apply to all trusts but shall not be exclusive of others imposed by law unless contrary thereto:

(1) A trustee in making investments of trust funds may rely upon information and Qpinions deemed by him reliable concerning facts necessary or proper to be taken into consideration in determining whether such investment conforms to the requirements of such trust.

(2) The trustee shall not be liable for breach of trust by reason only of his continu-

ing to hold an investment, which because of changing conditions has ceased to be an investment authorized by the trust instrument or the law applicable thereto.

(3) A trustee shall not be responsible for the genuineness or validity of execution of any instrument representing an investment made by him in good faith and without negligence.

( 4) Where a trustee is authorized by the trust instrument or by law to pay or apply capital money subject to the trust for any purpose or in any manner, he shall have power to raise the money required by sale, conversion, mortgage, calling in, or by otherwise encumbering all or any part of the trust property for the time being in his possession.

(5) Where a power or trust is given to or imposed on two or more trustees jointly, the same may be exercised or performed by the survivors or survivor of them for the time being.

( 6) A successor trustee shall succeed to all of the powers, duties and discretionary authority of an original trustee.

(7) Where there are three or more trustees of a trust, the action of a majority shall be sufficient unless the trust instrument provides otherwise.

(8) A trustee shall be answerable and accountable only for his own acts, receipts, neglects, or defaults, and not for those of any co-trustee, nor for any banker, broker or other person with whom any trust money or securities may be lawfully deposited, nor for any loss unless the same occurs through his own default or negligence.

(9) A trustee, acting for more than one trust, shall not, in the absence of fraud, be affected by notice of any instrument, matter, fact or thing in relation to any particular trust if he has obtained notice thereof merely by reason of his acting or having acted for another trust or in some other fiduciary capacity.

History.-§3, ch. 18397, 1937; CGL 1940 Supp. 6671(19). cf.-§518.01 et seq., Investment of fiduciary funds.

691.05 Provisions not deemed exclusive.The powers, duties and liabilities stated in this chapter shall not be deemed to exclude other powers, duties and liabilities not inconsistent herewith.

History.- §4, ch. 18397, 1937; CGL 1940 Supp. 6671(20).

§692.01 CONVEYANCES BY CORPORATIONS 2504

CHAPTER 692 CONVEYANCES BY CORPORATIONS

692.01 Conveyances by corporations.

692.01 Conveyances by corporations.-Any corporation may convey lands by deed sealed with the comm<m or corporate seal and signed in its name by its president or any vice-president or chief executive officer.

Hlstory.-RS 1955; GS 2459; §1, ch. 6183, 1911; RGS 3799; CGL 5672.

692.02 Validation of conveyances.-Conveyances by corporations of lands in this state,

692.02 Validation of conveyances.

bP.retofore executed, which have been sealed with the common or corporate seal of such corporation and signed in its name by a vicepresident or the chief executive officer thereof, shall be as valid and effective and shall bear the same presumptions as if signed in the name of such corporation by its president.

Hlstory.-§2, ch. 6183, 1911; RGS 3800; CGL 5673. ct.-§610.26, Misnomer ot corporation In deeds and instru

ments.

2505 CONVEYANCES OF MARRIED WOMEN'S INTEREST IN REAL ESTATE §693.14

CHAPTER 693

CONVEYANCES OF MARRIED WOMEN'S INTEREST IN REAL ESTATE

693.01 Married women may convey. 693.02 Release of dower. 693.03 Married women's acknowledgments. 693.04 Relinquishment of dower by minor.

693.01 Married women may convey.-Any married woman owning real property may sell, convey or mortgage it as she might do if she were not married, provided her husband join in such sale, conveyance or mortgage.

History.-U, Feb. 4, 1835; RS 1956 ; GS 2460; RGS 3801; CGL 5674. cf.-§708.01 et seq., Married women's property.

§708.04, Husband must join in transfer. §708.07, Specific performance against married woman.

693.02 Release of dower.-Any married woman having a right of dower in any real property may relinquish it by joining in the conveyance or mortgage thereof, or by a separate instrument without the joinder of her husband, executed in like manner as other conveyances.

Hlstory .-§7, Nov. 15, 1828; §1, cb. 3011, 1877; RS 1957; GS 2461 ; l,l.GS 3802 ; CGL 5675; §7, ch. 20954, 1941.

693.03 Married women's acknowledgments. (1) The acknowledgment by a married woman

of deeds, conveyances, mortgages, relinquishments of dower, contracts for the sale of lands, powers of attorney and other instruments shall be necessary to entitle any such instrument to be recorded, but no private examination separate from the husband of such married woman shall be necessary for any purpose, and the acknowled~ment of any such instrument by a married woman shall not constitute any part of the execution of any such instrument. Any form of certificate of acknowledgment which is sufficient in the case of an acknowledgment by a single person shall be sufficient in the case of an acknowledgment by a married woman.

(2) A certificate of acknowledgment in substantially the following form shall be sufficient as a certificate of acknowledgment, by any individual, of any of the instruments mentioned in §693.03 of the Florida Statutes, 1941, as hereby amended, to wit: "STATE OF ..................... ___________ _ COUNTY OF ___________________________________ .. ____ _

"I HEREBY CERTIFY, that on this day, before me, an officer duly authorized in the state aforesaid and in the county aforesaid to take acknowledgments, personally appeared .. ______ .. _____ , to me known to be the person described in and who executed the foregoing instrument and ___ __ ______ acknowledged before me that ____ he ___ exe-cuted the same.

·'WITNESS my hand and official seal in the count~y and state last aforesaid this _____________ day of.. ___ __ ______ , A. D. 19 ___ __ .

Notary Public, My commission expires: ________________ ,

693.05 Execution of deeds by minor. 693.13 Married women's covenants. 693.14 Powers of attorney by married woman.

(3) All acknowledgments by a married woman m accordance with §693.03 of the Florida Statutes, as hereby amended, made before May 13, 1943, are hereby validated, unless the same shall be questioned in a court of competent jurisdiction within one year after May 13, 1943.

Hlstory.-§1, Feb. 4, 1835; §1, ch. 3011, 1877; RS 1958; GS 2462; RGS 3803; CGL 5676; §§1-3, cb. 21746, 1943. cf.-§694.04, Conveyances of married women defective In

acknowledgment validated. §708.07, Specific performance against married women

regardless of acknowledgment.

693.04 Relinquishment of dower by minor. -A relinquishment of dower executed and acknowledged by a wife shall be valid notwithstanding her minority at the time of such execution and acknowledgment.

HIBtory.-RS 1959; GS 2463; RGS 3804; CGL 5677.

693.05 Execution of deeds by minor.-The execution of a deed by a married woman conveying real estate belonging to her, joined in said deed by her husband, and duly acknowledged, shall be valid notwithstanding her minority at the time of such execution and acknowledgment.

56~~story.-§1, ch. 4954, 1901; GS 2464; RGS 3805; CGL

693.06 Repealed.-History.-§1, ch. 4150, 1893; GS 2465; RGS 3806· CGL

5679; §8, ch. 20954, 1941; repealed by §4, ch. 22750, 1945.

• 693.07 -693.12--Repealed.-History.-§ §1-6, ch. 3580, 1885; RS 1960_1965; GS 2466-

2471; RGS 3807-3812; CGL 5680-5685· repealed by §4, ch. 22750, 1945. '

693.13 Married women's covenants.-A married woman who joins with her husband in executing a conveyance or mortgage of real property, or of any estate therein, may enter mto any covenants as to the title or against encumbrances or of warranty, but such covenants shall have no other effect than to estop her and all persons claiming as her heirs or by or through her, in the same manner a~ if she were not married; except that her covenants and warranties which have been or may be made with respect to her separate statutory property shall bind her to the amount of the purchase price received by her for such property, as if she were not married.

:Uistory.-RS 1966; GS 2472; RGS 3813· §1 cb. 12083, 1927; CGL 568~. ' '

693.14 Powers of attorney by married woman.-Any deed, conveyance, mortgage, lease or other transfer of real property or of any interest therein, being the sepa~ate ~rope.rty of a married woman, and every reJmqmshment of dower executed by virtue of a power of attorney from such married woman shall have the same force and effect as if executed by her in person, if her husband join

§693.14 CONVEYANCES OF MARRIED WOMEN'S INTEREST IN REAL ESTATE 2506

with her in the execution of such power of attorney, and if she execute and acknowledge the same in the form and manner prescribed for the execution and acknowledgment of the conveyance of her separate real estate or re-

linquishment of dower, as the case may be, provided such power of attorney be recorded as other powers of attorney are recorded.

History.-§1, ch. 2069, 1875; RS 1967; GS 2473 ; RGS 3814 ; CGL 5687.

2507 CERTAIN CONVEYANCES MADE VALID §694.06

CHAPTER 694 CERTAIN CONVEYANCES MADE VALID

694.01 Those executed between 1817 and 1822. 694.02 Married women's conveyances validated. 694.03 Married women's conveyances by attorney

validated. 694.04 Conveyances of married women defective

in acknowledgment validated. 694.05 Certain other conveyances validated. 694.06 Deeds executed by state board of education. 694.07 Certain grant of lands confirmed. 694.08 Certain instruments validated, notwith

standing lack of seals or witnesses, or defect in acknowledgment, etc.

694.01 Those executed between 1817 and 1822.-All deeds of conveyance, bills of sale, mortgages or other transfers of property, either real or personal, within the limits of this state, made and received bona fide and upon good consideration at any time between the seventeenth day of January, 1817, and the first day of October, 1822, shall be as good and efficient in law and equity as if the same had been made and executed according to the formalities of the Spanish law as against the maker or makers thereof, and every person or persons claiming by, through or under him, her or them; provided, that nothing in this section contained shall be so construed as to affect the interest of persons not parties to any of the contracts aforesaid; and provided, also, that the said deeds of conveyance, bills of sale, mortgages and other transfers were recorded agreeably to the laws of the state within six months from the twenty-fourth day of June, 1823. c!fLst5

67s.-:-:rune 21, 1823; RS 1968; GS 2474; RGS 3815;

694.02 Married women's conveyances validated.-All sales, conveyances, transfers or mortgages made prior to February 14th, 1835, by married women of their real estate of in~ heritance where the husbands of such married women have joined therein shall be as valid as if the same had been conveyed by fine as at common law. c!fLst5sls·-:-§2, Feb. 4, 1835; RS 1969; GS 2475; RGS 3816;

694.03 Married women's conveyances by attorney validated.-Any deed, release or conveyance executed and acknowledged before the passage of the act approved February 20th, 1875, entitled, "An act to authorize married women to convey their separate estate and release dower by attorney," yet in the manner therein provided, shall have the same force and effect and be as valid as if the same had been executed and acknowledged after the passage of the said act.

Hlstory.-§1970 RS 1892; GS 2476; RGS 3817; CGL 5690.

694.04 Conveyances of married women defective in acknowledgment validated.- All deeds of conveyance, bills of sale, mortgages or other instruments of transfer of real or personal property within the limits of this state made and received bona fide and for a

694.09 Certified copies admissible in evidence. 694.10 Certain titles not affected. 694.11 Certain deeds of county commissioners

validated. 694.12 Validation of instruments in which name

of corporation is incorrectly set out. 694.13 Ratifying, validating and confirming con

veyances of real estate by county commissioners, etc.

valuable consideration, when a consideration is essential or required by law, free from fraud, executed by any married woman whether for the purpose of conveying her separate estate or of relinquishing her dower or right of dower at any time prior to the 1st day of July, 1941, and which may be defective only in such married woman's acknowledgment, or in the officer's certificate of acknowledgment, by a defective statement or the omission of a statement relating to acknowledging separate and apart from her husband, or by an omission of either or all of the words, "freely, voluntarily, compulsion, constraint, apprehension or fear" shall be deemed and held good and sufficient in law or equity to convey the right or interest of any such married woman attempted or intended to be conveyed under any such instrument as if the same had been made and executed according to statutory requirements, as against the maker or makers thereof and every person or persons claiming by, through or under such married woman;

Provided, there appears in such acknowledgment either one or more of said words or any words of similar import;

Provided, however, that this section shall not apply to any instrument heretofore made, the validity of which shall be contested by suit commenced within one year of the effective date of this law.

History.-Ch. 5412, 1905; §1, ch. 6217, 1911; RGS 3818; CGL 5691; §9, ch. 20954, 1941.

694.05 Certain other conveyances validated. -Any deed or conveyance heretofore executed and acknowledged in accordance with the provisions of the act approved February 24, 1873, entitled "An act providing for the acknowledgment of deeds and other conveyances of lands," · shall be held good and valid.

Hlstory.-§2, ch. 2069, 1875; RS 1971; GS 2477; RGS 3819; CGL 5692.

694.06 Deeds executed by state board of education.-All deeds conveying lands granted to or held by the state for educational purposes heretofore executed by the members of the state board of education of Florida are hereby confirmed and declared to be valid and binding as conveyances of the title to such lands.

Hlstory.-§2, ch. 4999, 1901; GS 2478; RGS 8820; CGL 5693.

§694.07 CERTAIN CONVEYANCES MADE VALID 2508

694.07 Certain grant of lands confirmed.The State of Florida does hereby grant and confirm to purchasers, grantees and assigns of the several railroad companies which accepted the provisions of the act entitled, "An act to provide for and encourage a liberal system of internal improvements in this state," approved January 6, 1855, and their assigns, the lands and titles thereto which were granted to the State of Florida by the United States of America to aid in the construction of certain railroads in the State of Florida, by act of congress, approved May 17, 1856, which said land has been selected and located for the several railroad companies accepting the provisions of said act along the line of their reGpective roads, to the extent and proportiOn to which they severally became entitled under said act to provide for and encourage a liberal system of internal improvements in this state and the act of congress granting the same above referred to. And to confirm and convey the title to any lands which may hereafter be selected and approved to the State of Florida for the use of the several railroads as aforesaid, to the purchasers, grantees and assigns of said railroads.

Hlstor y.-§1, ch . 4707, 1899 ; GS 2479; RGS 3821 ; CGL 5694.

694.08 Certain instruments validated, notwithstanding lack of seals or witnesses, or ·defect in acknowledgment, etc.- Whenever any power of attorney has been executed an d delivered, or any conveyance h as been executed and delivered to any grantee by the person owning t he land therein described, or conveying the same in an offi cial or representative capacity, and has, for a period of seven years or more been spread upon the records of t he county wherein t he land therein described has been or was at the t ime situated. and one or more subsequent conveyances of said land or parts thereof have been made, executed, delivered and recor ded by parties claiming under such instrument or instruments, and such power of attorney or conveyance, or the public record thereof, shows upon its face a clear purpose and intent of the person executing the same to authorize the conveyance of said land or to convey the said land, t he same shall be taken and held by a ll t he courts of this state, in t he absence of any showing of fraud, adverse possession , or pending litigation, to have authorized the conveyance of, or to have conveyed, t he fee simple title, or any interest ther ein, of the person signing such instruments, or t he person in behalf of whom the same was conveyed by a person in an offi cial or representat ive capacity, to t he land therein described as effectively as if ther e had been no defect in the acknowledgment or t he certificate of acknowledgment, if acknowledged, or t he relinquishment of dower , and as if there had been no lack of t he wor d "as" pr eceding t he t itle of t he person conveying in an offi cial or represent ative capac ity, of any seal or seals, or of any witness or witnesses, and

shall likewise be taken and held by all the courts of this state to have been duly recorded so as to be admissible in evidence under section 21, article XVI of the constitution;

Provided, however, that this section shall not apply to any conveyance the validity of which sha ll be contested or have been cont ested by suit commenced heretofore or within one year of the effective date of this law.

History.-§1, ch. 10169, 1925; COL 5695; §15, ch . 209 54, 1941; §1, ch. 25277, 1949 ; a m . §1, ch . 26957, 1951.

cf.-§§95.23-95.26, Limitations where deed or will of record for t en years or more.

694.09 Certified copies admissible in evidence.-A copy of any of the instruments referred to in §694.08 duly certified, under the hand and seal of office of the officer in whose office the same may be recorded, to be a true and correct copy of the original, on file or of record in his office, shall in all cases and in all courts be admitted and received in evidence with the like effect and force as the original thereof might be.

Jllstory.- §2, ch. 10169, 1925; CGL 5696.

694.10 Certain titles not affected.-N othing in §694.08 contained shall be taken or held to validate or perfect any title to any land as against one or more in adverse possession thereof or holding or claiming title under a different or adverse chain of title from either a common or different source.

Hlsto ry.- §3, ch. 10169, 1925 ; CGL 5697.

~ 694.11 ·certain deeds of county commissioners validated.-All deeds of conveyance of lands in this state heretofore made and executed prior to the year 1915 by the board of county commissioners of any county in this state of lands lying and being within such county, or that wer e made and executed by

- some one acting by or under the authority of any such board of county commissioners, of any such lands, be and the same are hereby r atified, validated and confirmed, and declared to convey s uch title, right or interest therein as s uch county may have had or held at the time of the conveyance, and as was expressed in any such deed of conveyance, and intended to be conveyed thereby. Provided, that nothing in t his section shall va lidate any deed that was f raudulently obtained or that is now in litigation.

H isto ry.- §1, ch . 1362, 1929 ; CG L 1936 Supp. 5697(1) .

694.12 Valida tion of instruments in which name of corporation is incorrectly set out.All deeds of conveyance, bills of sale, mortgages, or other transfers of real or personal property within the limits of this state, heretof ore made and r eceived bona fide and upon good consideration by any corporation, or to any corporation, in which the name of said corporation shall be incorrectly set out in such deed, bill of sale, mortgage or other instrument by omitting a word from the corporate name, or by adding a word thereto or by misspelling any part of the name of ~aid corporation, and the identity of said corporation shall plainly appear from the contents of

2509 CERTAIN CONVEYANCES MADE VALID §694.13

said instrument, or otherwise, such deed, bill of sale, mortgage or other instrument, shall be taken and deemed valid and effectual as though the name of said corporation were correctly set out in said deed, bill of sale, mortgage or other instrument, and the same shall, notwithstanding such irregularity or defect, be deemed and taken as properly executed.

Hlstory.-§1, ch. 14838, 1931; CGL 1936 Supp. 5673(1); am. §7, ch. 22858, 1945. cf.-§610.26, Mis nomer of corporation In deeds and Instru

m ents .

694.13 Ratifying, validating and confirming conveyances of real estate by county commissioners, etc.-

(1) That all conveyances of real estate heretofore made by any of the several counties of the State of Florida or the county commissioners thereof, or any county school board, or any board of bond trustees or commissioners or supervisors of a drainage or other special improve-

ment district, be and the same are hereby ratified, validated, and confirmed; provided, however, that this section shall not ratify, validate, or confirm any such conveyances which are the subject of litigation on June 16, 1947, or any tax deed, or title acquired by failure of the owner of lands to pay taxes or assessments.

(2) That the several counties of the State of Florida by a majority of the county commissioners thereof or any county school board or any board of bond trustees or commissioners or supervisors of a drainage or other special improvement district or a majority of the members thereof, are hereby authorized to execute and deliver deed to real property in which any such county, county school board, board of bond trustees or commissioners or supervisors of a drainage or other special improvement district may have been interested.

Hlstory.-§§1-2, ch. 24307, 1947. Am. §11, ch. 25035, 1949.

§695.01 RECORD OF CONVEYANCES OF REAL ESTATE 2510

CHAPTER 695

RECORD OF CONVEYANCES OF REAL ESTATE

695.01 Conveyances to be recorded. 695.12 Imperfect record. 695.02 Blank or master form of instruments may 695.13 Want of certificate of record.

be recorded. 695.14 Unsigned certificate of record. 695.03 Acknowledgment and proof; validation of 695.15 Recording conveyances lost by fire.

certain acknowledgments. 695.16 When mortgage or lien is destroyed. 695.031 Affidavits and acknowledgments by mem- 695.17 United States deeds and patents may be

bers of armed forces. recorded. · 695.04 Requirements of certificate. 695.18 Indorsement by clerk. 695.05 Certain defects cured as to acknowledg- 695.19 Certified copies of recorded instruments

ments and witnesses. may be recorded. 695.06 Certain irregularities as to venue validated. 695.20 Unperformed contracts of record. 695.07 Use of scrawl as seal. 695.21 Instruments relating to real estate to con-695.08 Prior use of scrawl as seal. tain post-office address of grantee; excep-695.09 Identity of grantor. tions. 695.10 Proof by others. 695.22 Same; duties of clerks. 695 .11 Instruments deemed to be recorded from 695.23 Same; fees.

time of filing.

695.01 Convey;ances to be recorded.-No conveyance, transfer or mortgage of real property, or of any interest therein, nor any lease for a term of one year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law; nor shall any such instrument made or executed by virtue of any power of attorney be good or effectual in law or in equity against creditors or subsequent purchasers for .a valuable consideration and without notice unless the power of attorney be recorded before the accruing of the right of such creditor or subsequent purchaser.

Grantees by quit-claim, heretofore or hereafter made, shall be deemed and held to be bona fide purchasers without notice within the meaning of the recording acts ;

Provided, however, that this section shall not apply to quit-claims heretofore made, the priority of which shall be contested by suit commenced within one year of the effective date of this law.

History.-§§4, 9, Nov. 15, 1828; RS 1972; GS 2480; RGS 3822; CGL 5698; §10, ch. 20954, 1941.

695.02 Blank or master form of instruments may be recorded.-Any person may have a blank or master form of mortgage or other instrument conveying, transferring or reserving an interest in, or creating a lien on, real or personal property, filed, indexed and recorded in the office of the clerk of the circuit court.

When any such blank or master form is filed with the clerk of the circuit court, he shall record and index the same in the manner provided by law for recording and indexing mortgages and such other instruments respectively, except that the namt of the person whose name appears on such blank or master form shall be inserted in the indexes as grantor and also as grantee.

When any instrument conveying, transferring or reserving an interest in, or creating a lien on, real or personal property, incorporates by reference the provisions, terms, covenants, conditions, obligations, powers and other contents, or any of them, set forth in any such

recorded blank or master form, such incorporation by reference, for all purposes, shall be equivalent to setting forth iu extenso in such instrument that which is incorporated by reference.

The fee for filing, recording and indexing such blank or master form shall be five dollars; provided, that nothing herein shall be construed as otherwise affecting existing provisions relating to fees for filing, recording and indexing instruments mentioned in this section.

History.- §§1-4, ch. 17109, 1935 ; CGL 1936 Supp. 5698(1). c!.-§1.01 (3), "Person" defined.

695.03 Acknowledgment and proof; validation of certain acknowledgments.-In order to entitle any of the instruments named in §§695.01 and 695.02, or any other instrument concerning real property to such record, the execution thereof must be acknowledged by the party executing the same; or the execution thereof by the said party must be proved by a subscribing witness thereto before the officers and in the form and manner following:

(1) IN THIS STATE.-If such acknowledgment or proof be made within this state, it may be made before any judge, clerk or deputy clerk of any court of record, or a United States commissioner, or a notary public, or justice of the peace of this state, and the certificate of acknowledgment or proof shall be under the seal of the court or of the officer, as the case may be.

(2) WITHOUT THIS STATE BUT WITHIN THE UNITED STATES.-If the acknowledgment or proof be made out of this state but within the United States, it may be made before a commissioner of deeds appointed by the governor of this state, or before a judge or clerk of any court of the United States or of any state, territory or district, having a seal, or before a notary public, justice of the peace, master in chancery, register or recorder of deeds, of such state, territory or district having an official seal, and the certificate of acknowledgment or proof shall be under the seal of the court or officer, as the case may be.

(3) IN FOREIGN COUNTRIES.-If the acknowledgment or proof be made in any foreign

2511 RECORD OF CONVEYANCES OF REAL ESTATE §695.05

country, it may be made before any commissioner of deeds appointed by the governor of this state to reside in such country, or before any notary public of such fo1·eign country having an official seal, or before any ambassador, envoy extraordinary, minister plenipotentiary, minister, commissioner, charge d'affaires, consul general, consul, vic-e-consul, consular agent, or any other diplomatic or consular officer of the' United States appointed to reside in such country, military or naval officer authorized by the laws or articles of war of the United States to perform the duties of notary public, and the certificate of acknowledgment or proof shall be under the seal of the officer.

All affidavits and acknowledgments heretofore made or taken in the manner set forth above are hereby validated.

History.-RS 1973 ; ch. 5404, 1905; GS 2481· ch 7849 1919; RGS 3823; CGL 5699; am. §7, ch. 22858, i945 . . ' ct.-§117.07, Duty ot notary public to state time ot ex

piration ot commission.

695.031 Affidavits and acknowledgments by members of armed forces.-

(1) In addition to the manner, form and proof of acknowledgment of instruments as now provided by law, any person serving in or with the armed forces of the United States including the army, navy, marine corps, coast' guard, or any component or any arm or service of any thereof, including any female auxiliary of any thereof, and any person whose duties require his or her presence with the armed forces of the United States, as herein designated, or otherwise designated by law or military or naval command, may acknowledge any instrument, wherever located, either within or without the State of Florida, or without the United States before any commissioned officer in active servic~ of the armed forces of the United States as herein de.s~gnated, or otherwise designated' by law, or m1htary or naval command, or order, with the rank of. second lieutenant or higher in the army or marme corps, or of any component or any arm or service of either thereof, including any female auxiliary of any thereof, or ensign or higher in the navy or United States Coast Guard, or of any component or any arm or service of either thereof, including any female auxiliary of any thereof.

(2) The instrument shall not be rendered invalid ~Y the failure to state therein the place of executiOn or acknowledgment. No authentication of the officer's certificate of acknowledgment or otherwise shall be required, and no seal shall be necessary, but the officer taking the acknowledgment shall endorse thereon or attach thereto a certificate substantially in the following form:

On this _________ day of.. ________ , 19 _____ , before me __ ___ _ ------------• the undersigned officer, personally ap-peared ____________ ___ , known to me (or satisfactorily proven) to be serving in or with, or whose duties require his presence with the armed forces of the United States, and to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained, and the un-

dersigned does further certify that he is at the date of this certificate a commissioned officer of the rank stated below and is in the active service of the armed forces of the United States.

Signature of commissioned officer.

Rank of commissioned officer and command or branch of service to which officer is attached.

(3) Such acknowledgments by a married woman, who is a member of the armed forces of the United States, shall be sufficient in all respects to bar the dower, homestead rights or separate property rights of such married woman in any real estate described in the instrument thus acknowledged by her, as fully and completely as though such married woman had acknowledged such instrument as now required by other statutes of Florida.

(4) Any instrument or document acknowledged in the manner and form herein provided shall be entitled to be recorded and shall be recorded as in the case of other instruments or documents properly acknowledged.

( 5) This section is to be liberally construed in favor of the validity of any such acknowledgments by any such member of the armed forces of the United States and any acknowledgments heretofore taken, containing words of similar import, are hereby confirmed and declared to be valid and binding. This section shall be construed as an enabling act and as an exception to existing laws rather than, inferentially or otherwise, as a repeal of the same or any part of the same.

History.-Transterred from §120.08 by §7, ch. 22858, 1945. I

695.04 Requirements of certificate. - The certificate of the officer before whom the acknowledgment or proof shall be taken shall contain and set forth substantially the matter required to be done or proved to make such acknowledgment or proof effectual.


695.05 Certain defects cured as to acknowledgments and witnesses.-All deeds, conveyances, bills of sale, mortgages or other transfers of real or personal property within the limits of this state, heretofore or hereafter made and received bona fide and upon good consideration by any corporation, and acknowledged for record before some officer, stockholder or other person interested in the corporation, grantee, or mortgagee as a notary public or other officer authorized to take acknowledgments of instruments for record within this state, shall be held, deemed and taken as valid as if acknowledged by the proper notary public or other officer authorized to take acknowledgments of instruments for record in this state not so interested in said corporation, grantee or mortgagee; and said instrument whenever recorded shall be deemed notice to all persons ;

Provided, however, that this section shall not apply to any instrument heretofore made, the

§695.06 RECORD OF CONVEYANCES OF REAL ESTATE 2512'

'validitY of which shall be contested by suit commenced within one year of the effective date of this law.

History.-§1, ch. 4953, 1901; GS 2483; RGS 3825; §1, ch. 11991, 1927; CGL 5701, 5702; §1, ch. 14706, 1931; CGL 1936 Supp. 5702 (1).

695.06 Certain irregularities as to venue validated.-Whenever, in the acknowledgment to any deed or other instrument relating to real estate, heretofore recorded in this state, it shall appear, either from the recitals in such acknowledgment, or following the signature of the officer taking the same, or from the seal of such officer that the said acknowledgment was not taken, or may not have been taken in the place as stated in the caption or ve~ue thereof, said deed or other instrument shall, notwithstanding such irregularity or defect, be deemed and taken as properly ac~ knowledged and of record.

History.-§1, ch. 11990, 1927; CGL 6703.

695.07 Use of scrawl as seaL-A scrawl or scroll, printed or written, affixed as a seal to any written instrument shall be as effectual as a seal.

History.-§1, ch. 4148, 1893; GS 2484; RGS 3826; CGL 6704.

695.08 Prior use of scrawl as seaL-All written instruments heretofore or hereafter made with a scrawl or scroll, printed or written, affixed as a seal are declared to be sealed instruments, and shall be construed and received in evidence as such in all the courts of this state.


695.09 Identify of grantor.-No acknowledgment or proof shall be taken by any officer within or without the United States unless he shall know, or have satisfactory proof, that the person making the acknowledgment is the individual described in and who executed such instrument, or that the person offering to make proof is one of the subscribing witnesses to such instrument.


695.10 Proof by others.-Where the grantors and witnesses of any instrument which may be recorded are dead, or cannot be had, the judge of the circuit court, or the county judge for the county wherein th~ rel;ll property is situated, may take the exammatwn of any competent witness or witnesses, on oath, to prove the handwriting of the witness or witnesses, or where such proof cannot be had, then to prove the handwriting of the grantor or grantors, which shall be certified by the judge, and the instrument being thus proved may be recorded.


695.11 Instruments deemed to be recorded from time of filing.-All instruments relating to real and personal property which are authorized or required to be recorded shall be deemed to be recorded from time the same are

filed with the officer whose duty it is to record the same and as so recorded and transcribed upon the record shall be notice to all persons.

History.-§1, ch. 3592, 1885; RS 1977; GS 2488; RGS 3830; CGL 5708; §1, ch. 17217, 1935.

695.12 Imperfect record.-Whenever any instrument authorized or required by law to be recorded in any county either has been or may be so imperfectly or erroneously recorded as to require a new record thereof, if the officer who so recorded the same be still in office, he shall, upon demand of the owner of such instrument, or person controlling the same, record it anew free of any charge or fee than the fee allowed by law for one perfect record thereof.

Hlstory.-§1; ch. 3896, 1889; RS 1978; GS 2489; RGS lJl31; CGL 5709.

I 695.13 Want of certificate of record.Whenever any instrument authorized or required by law to be recorded shall appear to be recorded in the appropriate record book in the proper office, whether the record shall be in the handwriting of the officer whose duty it was to record such instrument. or in the handwriting of any other person, the record shall be presumed to have been made by the officer whose duty it was to make it, and the absence of a certificate of such officer that such instrument was recorded by him shall in no wise affect the validity of the record.

History.-§1, ch. 3894, 1889; RS 1979; GS 2490; RGS 3832; CGL 5710.

695.14 Unsigned certificate of record.Whenever any unsigned certificate on such record of the instruments mentioned in §695.13 shall contain the date of filing or of recording such instrument, it shall be prima facie evidence of the time of filing or of recording such instrument.

Hlstory.-§2, ch. 3894, 1889; RS 1980; GS 2491; RGS 3833; CGL 6711.

695.15 Recording conveyances lost by fire. -Whenever the record in the office of the clerk of the circuit court of any county in this state of any deed, conveyance, contract, mortgage, deed of trust, map or plat or other instrument in writing affecting real estate in such county has been heretofore destroyed by fire, any such instrument, or a copy thereof from such former record duly certified, may be re-recorded in such county, and in re-r~ cording the same the officer shall record the certificate of the previous record, and the date of filing for record appearing in said original certificate so recorded shall be deemed and taken as the date of the record thereof. And copies of such record so authorized to be made hereunder, duly certified by said officer, under the seal of said court, shall be received in evidence under the same circumstances and conditions under which a certified copy of the original record would be so received, and shall have the same force and effect as a certified copy of the original record.

Hlstory.-§1, ch. 4950, 1901; GS 2492; RGS 3834; CGL 5712; am. §7, ch. 22868, 1945.

2513 RECORD OF CONVEYANCES OF REAL ESTATE §695.22

695.16 When mortgage or lien is destroyed. -Whenever any mortgage or other lien required by law to be recorded, to be good and effectual against creditors or subsequent purchasers for a valuable consideration and without notice, has been heretofore recorded, and the record thereof has been destreyed by fire prior to May 30th, 1901, such mortgage or other lien or a certified copy thereof, as aforesaid shali be re-recorded within nine months fro~ said date, or such mortgage or other lien shall not be good or effectual in law or equity against any creditor or subsequent purchaser for valuable consideration and without notice; provided, however, that if the original instrument of mortgage or other lien has been lost or destroyed, the foregoing provision of this section shall not apply thereto, but such mortgage or other lien shall not be good or effectual in law or equity against creditors, or subsequent purchasers for a valuable consideration and without notice, unless legal proceedings to reestablish the same were begun in the proper court prior to March 3rd, Hl02.

Hlstory .-§2, ch. 4950, 1901; GS 2493; RGS 3835 ; CGL 5713.

695.17 United States deeds and patents may be recorded.-Deeds and patents issued by the United States government and photographic copies made by authority of said government from its records thereof in the general land office, embracing lands within the State of Florida, shall be admitted to record in this state in the county or counties where the land lies, when presented to the clerk of the court of the county where same is to be recorded, and when said deeds, patents or photographic copies shall appear to him to be genuine.

Hlstory.-§1, ch. 8565, 1921; CGL 6714.

695.18 Indorsement by clerk.-Upon recording said deed, patent or certified copy, the clerk of the court shall indorse thereon and also upon the record made by him the following:

"This deed and patent (or certified copy as the case may be) having been presented to me on the____________ day oL________________________________ for record, and same appearing to me t o be genuine and to have been made and issued by the authority of the United States government, I have duly recorded same in __________________________ on page __ __ __________ of the public records of my office.

Witness my hand and official seal at _______________ _ Florida, this________________ day of ____ -------------------------

Clerk." Hlstory .-§2, ch. 8565, 1921; CGL 6715.

695.19 Certified copies of recorded instruments may be recorded.-Certified copies of deeds, mortgages, powers of attorney and all other instruments of any kind which have been or may hereafter be duly recorded or filed among the public records of any county in this state, may be recorded or re-recorded among the public records of any other county

of this state as fully and in the same manner and with like effect as if such certified copy were the original instrument.

Hlstory.-§1, ch. 11989, 1927; CGL 6717.

695.20 Unperformed contracts of record.Whenever anyone shall have contracte~ to P';lrchase real estate in the State of Flonda, pnor to January 1, 1930, by written !lg:eement requiring all payments to be made w1thm ten years from the date of the contract, or has accepted an assignment of such an agreement, and the fact of the existence of such a contract of purchase or assignment, appears of record from the i~strument itself or by reference in some other recorded instrument, and shall not have obt~ned and placed of record a deed to the property or a decree of a court of competent jurisdiction recognizing his rights thereunto, and is not in actual possession of the property covered by the contract or by the assignment, as defined in §95.17 he, his widow, heirs, personal representatives, successors and assigns, shall have no further interest in the property described in the contract, or the assignment, by virtue thereof, and the record of such contract, assignment or other record reference thereto, shall no longer constitute either actual or constructive notice to a purchaser, mortgagee, or other person acquiring an interest in the. property unless within six months after this law shali take effect, (approved April 26, 1941) he or some one claiming under him shall:

(1) Place on record a deed or other conveyance of the property from the holder of the record title; or

(2) Place on record a written instrument executed by the holder of the record title evidencing an extension or modification of the original contract and showing that the original contract remains in force and effect; or

(3 ) Institute, or have pending, in a court of competent jurisdiction a suit for the enforcement of his rights under such contract.

Hist ory.-§1, ch. 20235, 1941.

695.21 Instruments relating to real estate to contain post-office address of grantee; exceptions.-After October 1, 1945, it shall be the duty of the several clerks of the circuit courts to ascertain of all persons presenting for public record any instrument other than mortgages conveying or purporting to convey any interest in real estate the correct post-office address of the grantee or grantees named in such instrument, and it shall be the duty of the person presenting such instrument for recordation to furnish such information to said official.

Hlstory.-§1, ch. 23114, 1945.

695.22 Same; duties of clerks.-After October 1 1945, the several clerks of the circuit courts ~hall keep and furnish to the respective county tax assessors in the counties where such instruments are recorded a daily schedule of the aforesaid deeds and conveyances so filed for recordation, in which schedule shall be set forth the name of the grantor or grantors, the names and addresses of each grantee and a description

•

•

§695.23 RECORD OF CONVEYANCES OF REAL ESTATE 2514

of the land as specified in each instrument so filed.

History.-§2, ch. 23114, 1945.

695.23 Same; fees.-The said clerks shall collect from the person offering such instrument for record a fee of ten cents for each such instru-

ment, which shall be in addition to other fees prescribed by law as compensation for the cost of preparing and furnishing such daily schedules tothe county tax assessor of the county in which such instrument is recorded.

History.-§3, ch. 23114, 1946 .

251 5 RECORD OF CONTRACTS; PHOTOGRAPHIC RECORDING §696.05

CHAPTER 696

RECORD OF CONTRACTS; PHOTOGRAPHIC RECORDING

696.01 Contracts for sale of realty must be acknowledged in order to be recorded.

696.02 Assignments of contracts for sale of realty not entitled to record unless original is recorded or entitled to record.

. 696.03 When agreement executed by agent or attorney may be recorded.

696.01 Contracts for sale of realty must be ·acknowledged in order to be recorded.-No contract, agreement, or other instrument purporting to contain an agreement to purchase or sell real estate shall be recorded in the public records of any county in the State of Florida, unless such contract, agreement or other instrument is acknowledged by the vendor in the manner provided by law for the acknowledgment of deeds; and where there is no acknowledgment on the part of the vendor, the recording officers in the various counties of this state shall refuse to accept such instru-Inent for record. ·

Hioto ry.-§1, ch. 11813, 1927; CGL 6719.

696.02 Assignments of contracts for sale of realty not entitled to record unless original is recorded or entitled to record.-N o assignment ·Of any contract, agreement, or other instrument purporting to contain an agreement to purchase or sell real estate shall be recorded in ~ny of the public records of this state, unless the contract, agreement or other instrument sought to be assigned shall have been recorded, or is entitled to be recorded under the provisions of §§696.01-696.04.

Hlstory.-§2, ch. 11813, 1927; CGL 6720.

696.03 When agreement executed by agent or attorney may be recorded.-N o contract or agreement or other instrument purporting to contain an agreement to sell or purchase real estate, which has been executed by an agent or attorney in fact shall be recorded in any of the public records of this state, unless the authority of such agent or attorney in fact to execute the instrument sought to be recorded is produced and recorded by the recording officer, or is already recorded in the county where such instrument is sought to be recorded; and for the purposes of §§696.01-696.04 no authority for the execution of instruments by an agent or attorney In fact shall be accepted which is not executed in the manner provided by law for the execution of deeds.

Hlotory.-§3, ch. 11813, 1927; CGL 6721.

696.04 What instruments affected by §§696.-01-696.03.-§§696.01-696.03 shall apply to all contracts and instruments, which had not been recorded on June 6, 1927; but nothing therein contained shall enlarge, impair, alter, or diminish the obligation of any such contract or agreement affected thereby as between the parties privy thereto, or as to those who have actual notice thereof.

Hlotory.-§4, ch. 11813, 1927; CGL 6722.

696.04 What instruments affected by §§696.01-696.03.

696.05 Photographic recording authorized; clerk circuit court.

696.06 Same; county judges .

696.05 Photographic recording authorized; clerk circuit court.-

(1) In every county in the State of Florida, the clerk of the circuit court may record any and all instruments filed for record by photographic process, this phrase being used in its most general sense not excluding any photographic process heretofore or hereafter devised, however designated, such as may be recommended by the clerk from time to time and approved by the board of county commissioners, and the board of county commissioners shall provide out of the general revenue fund adequate equipment and supplies for making and preserving such records in accordance with the process so recommended and approved.

(2) In lieu of the fees now or hereafter prescribed by law for recording any instrument, other than an order, decree or judgment of any court filed for record in the public records of counties of this state using the photographic process of recording, the fee of the clerk of the circuit court shall be, for each necessary exposure, not more than fourteen inches by eight and one-half inches, as follows: Where the instrument consists of not more than one page, one dollar; where the instrument consists of more than one page, seventy-five cents for the first page, and sixty cents for each additional page or part thereof, which shall include the cost of indexing the record of such instrument, and no fee shall be allowed for the certification of the recordation of any such instrument, or for wri~ ten or printed matter on the back or cover thereof, which does not form a part of such instrument.

(3) For making, by photographic process, certified copies of any instrument recorded in the public records of any county of this state using the photographic process of recording, the clerk of the circuit court shall charge a fee for each necessary exposure of not more than fourteen inches by eight and one-half inches, of seventyfive cents, if the instrument consists of not more than one page, and where the instrument consists of more than one page, sixty cents for each such page or part of such page, and no additional fee shall be charged for the clerk's certification thereof.

( 4) All instruments heretofore recorded and all action of the boards of county commissioners and clerks of the circuit courts heretofore performed in the purchase of photographic equipment and its use in accordance with the provisions of this act are hereby validated and shall be held good and valid. All fees heretofore

§696.06 RECORD OF CONTRACTS; PHOTOGRAPHIC RECORDING 2516

charged by the clerks of the circuit courts in accordance with the provisions of this act are hereby approved and confirmed.

History.-§1, ch. 10300, 1925; CGL 1936 Supp. 5722(1); am. §§1-4, ch. 22051, 1943.

696.06 Same; county judges.-(1) In every county in the State of Florida,

the county judge may record any and all instruments filed for record by photographic process, this phrase being used in its most general sense not excluding any photographic process heretofore or hereafter devised, however designated, such as may be recommended by the county judge

from time to time and approved by the board of county commissioners, and the board of county commissioners shall provide out of the general revenue fund adequate equipment and supplies for making and preserving such records in accordance with the process so recommended and approved.

(2) Any instrument heretofore recorded and any action of the boards of county commissioners or county judges heretofore performed in accordance with the provisions of this section shall be held good and valid.

Hlstory.-§1, ch. 11382, 1925; CGL 5723; am. §§1, 2, ch. 21785, 1943.

2517 INSTRUMENTS DEEMED MORTGAGES §697.04

CHAPTER 697

INSTRUMENTS DEEMED MORTGAGES AND THE NATURE OF A MORTGAGE

697.01 Instruments deemed mortgages. 697.03 Cooperative association mortgages. 697.02 Nature of a mortgage. 697.04 Future advances may be secured.

697.01 Instruments deemed mortgages.-All 697.04 Future advances may be secured.-conveyances, obligations conditioned or defeas- (1) Hereafter, any mortgage or other Instru-ible, bills of sale or other instruments of writ- ment given for the purpose of creating a lien ing conveying or selling property, either real on real or personal property, or both, includor personal, for the purpose or with the inten- ing agricultural, horticultural, or fruit crops, tion of securing the payment of money, whe- planted, growing, or to be planted, grown. or ther such instrument be from the debtor to the raised, to secure agricultural loans, may secure creditor or from the debtor to some third per- not only existing indebtedness but also such son in trust for the creditor, shall be deemed future advances, whether obligatory or otherand held mortgages, and shall be subject to the wise, as are made within six years from the date same rules of foreclosure and to the same regu- thereof, to the same extent as if such future adlations, restraints and forms as are prescribed vances were made on the date of the execution in relation to mortgages. of such mortgage or other instrument, although

Provided, however, that no such conveyance there may be no indebtedness outstanding at the shall be deemed or held to be a mortgage, as time any advance is made. Such lien, as to third against a bona fide purchaser or mortgagee, for persons without actual notice thereof, shall be value without notice, holding under the grantee. valid as to all such indebtedness and future ad-

History.- §1, Jan. 30, 1838; §1, ch. 525, 1853; RS 1981; vances from the time the mortgage or other in-GS 2494 ; RGS 3836; CGL 5724; §12, ch. 20954, 1941. strument is filed for record as provided by law.

697.02 Nature of a mortgage.-A mortgage The total amount of indebtedness that may be shall be held to be a specific lien on the prop- so secured may decrease or increase from time erty therein described, and not a conveyance to time, but the total unpaid balance so secured of the legal title or of the right of possession. at any one time shall not exceed a maximum

Hlstory.-§§1, 2, ch. 525, 1853; RS 1982; GS 2495; RGS principal amount which must be specified in such 8837; CGL

5725· mortgage or other instrument, plus interest

697.03 Cooperative association mortgages.- thereon, and any disbursements made for the (1) Hereafter, any mortgage or other payment of taxes, levies, or insurance on the

instrument given by a cooperative association property covered by the lien, with interest on for the purpose of creating a lien on real or per- such disbursements. This section shall not apply sonal property, or both, may secure not only to any mortgages, shipping contracts, or other existing indebtedness, but also such future ad- instruments made and given by naval stores opvances, whether obligatory or otherwise, as are erators and producers to secure existing loans made within ten years from the date thereof. and future advances by naval stores factors. Such lien, as to third persons without actual notice thereof, shall be valid as to all such in- (2) As against the rights of creditors or debtedness and future advances from the time subsequent purchasers for a valuable considerathe mortgage or other instrument is filed for tion, actual notice or record notice of advances record as provided by law. The total amount of to be made at the option of the lender, under indebtedness that may be so secured may de- the terms of such mortgage or other instrument, crease or increase from time to time, but the shall be valid only as to such advances as are to total unpaid balance so secured at any one time be made within six years from the date of such shall not exceed a maximum principal amount mortgage or other instrument; provided that which must be specified therein, plus interest this section shall not apply to any mortgages, thereon, and any disbursements made for the shipping contracts, or other instruments made payment of taxes, levies, or insurance on the and given by naval stores operators and proproperty covered by the lien, with interest on ducers to secure existing loans and future adsuch disbursements. vances by naval stores factors. (2) A "Cooperative association" within the meaning of this section means any corpo- (3) Any such mortgage or other instrument ration formed, reorganized or brought under any shall be prior in dignity to all subsequent engeneral or special law of this or any other state cumbrances, including statutory liens, except as a cooperative association. landlords' liens.

Hlwtory.-§§1, 2, ch. 20248, 1941. Hlstory.-§§1-3, ch. 20846, 1941.

§698.01 CHATTEL MORTGAGES 2518.

CHAPTER 698 CHATTEL MORTGAGES

698.01 698.02 698.03

698.04 698.05 698.06 698.07

To be recorded. Acknowledgment. Power of sale may be included in certain

mortgages; exercise of power. Sale under power. Remedy concurrent. Mortgages to secure future advances. Same; notice to extend only one year;

exception.

698.01 To be recorded.-N o chattel mortgage shall be valid or effectual against creditors or subsequent purchasers for a valuable consideration and without notice unless it be recorded, or unless the property included in it be delivered to t he mortgagee and continue to remain truly and bona fide in his possession.

History.- §1983 RS 1892; GS 2496; RGS 3833; CGL 6726. cf.-§695.03, Acknowledgment.

698.02 Ack;nowledgment.-To entitle such mortgage to record, its execution must be acknowledged or proved in the manner provided for mortgages of rea l property.


698.03 Power of sale may be included in certain mortgages; exercise of power.-In all mortgages to or in favor of the government of the United States or any agencies thereunder making agricultural loans, or to secure principal indebtedness not exceeding five hundred dollars, bearing interest not in excess of the general legal rate, on farm machinery and equipment, and agricultural, horticultural or fruit crops in being, it may be provided or covenanted that the mortgagee, his legal representatives or assigns, shall have the power to sell the mortgaged property upon any breach or default by the mortgagor of the terms, covenants, conditions or stipulations of such mortgage or of the obligation thereby secured or upon nonpayment of the indebtedness secured by such mortgage or interest thereon, when due and payable in such manner and on such terms as may be provided in such mortgage, and all such provisions and covenants shall be valid, effectual and enforceable, and every such sale thereunder shall vest in the purchaser, or purchasers, the title in and to the property mortgaged and described in such mortgage.

In case of the exercise of such power of sale, written notice of such sale shall be given to the mortgagor and all persons claiming by, through or under him by instrument duly recorded, not less than fifteen days prior to such_ sale. Such ntJtice may be served in the same manner as summons ad respondendum are served pursuant to the laws of Florida, and a copy of such notice shall be published at least twice, the first publication of which shall be not less than twenty days prior to such sale, in a newspaper published in the county where such sale shall occur, and another copy of such notice shall be served upon any person in charge or having or taking part in the supervision or care of such mortgaged property, or any part thereof.

698.08 Notice given by filing for record of chat

698.09 698.10 698 .11

tel mortgages generally, to extend seven years.

Extension of period of notice . Effect on certain existing instruments. Duties of clerk in connection with ex-

tension.

If there be no newspaper .published in such county, then such publication may be made in a newspaper published in any county adjoining that wherein such sale is to be made. Such notice may be served upon any of said parties wherever they may be within the State of Florida. If a ny person to whom notice is required to be given under this statute shall not reside in the State of Florida, or his residence· be unknown to the mortgagee, his legal representatives or assigns, then it shall not be necessary to make personal service of such notice upon him, and in such case, the publication of· such notice as above provided shall be sufficient; provided, that where the address of such nonresident be known to the mortgagee, hislegal representative or assigns, a copy of such notice shall be mailed to him at such address,. by registered mail.

Every such sale shall occur upon a rule day of the circuit court, during the hours prescribed for sheriff's sales at the courthouseof the county where such property is situateat the time of the sale, and if the property is situate in more than one county, the sale may occur in any county where any part of such property is located. The actual possession of such mortgaged property, or its presence, at the place of sale shall be unnecessary to the· validity of any such sale.

Every such notice of sale shall describe the· mortgaged property to be sold and state thetime and place of sale, the name of the person who will conduct the sale and the amount claimed to be due and secured by such mortgage and for the payment of which such sale is being held.

The proceeds of every such sale shall beapplied first to the payment of the costs and expenses of such sale, including the cost of advertising and serving notices and of the person conducting such sale (which shall be the same as the fees prescribed by law to be paid sheriffs for conducting sales and executing sheriff's deeds under executions) and attorney's fees of ten per cent of the principal and accrued interest of the obligation secured by such mortgage, for the services of the attorney for the mortgagee or his assigns, and then to the payment of the obligation secured by such property mortgage, including unpaid interest, if any, and the balance or excess, if any, shall be paid to the owner of such mortgaged property if he be known; otherwise, such excess shall be paid by the person conducting such sale into the registry of the circuit court

2519

for such county to be there held for the benefit of the person lawfully entitled to the same.

Hlstory.-§1, ch. 17108, 1935; CGL 1936 Supp. 5727 (1).

698.04 Sale under power.-In case of any sale of property under a power of sale as provided in §698.03, the sale may be conducted by the mortgagee or assignee, or by any person appointed by the mortgagee or as assignee, and the person conducting such sale shall execute a bill of sale to the purchaser or purchasers, which shall effectively transfer title to the property so sold. The mortgagee or assignee may bid and become the purchaser at any such sale. All rights and remedies of the mortgagee provided in §§698.03-698.05 shall extend to the mortgagee's legal representatives and assigns.


698.05 Remedy concurrent. - Nothing in §§698.03 and 698.04 shall prevent the holder of any such mortgage from foreclosing such mortgage in equity; the remedy by poWer of sale given in said section s being intended to be cumulative and concurrent, but not exclusive. In a ll other respects, the laws relating to chattel mortgages shall be applicable to such mortgages.

History.-§3, ch. 17108, 1935 ; CGL 1936 Supp. 5727(3).

698.06 Mortgages to secure future advances. -Any mortgage or other instrument creating a lien on farm equipment, livestock, agricultural, horticultural and fruit crops, planted, growing and to be planted, grown and raised, or any of them, securing existing indebtedness or future advances to be made, whether or not such advances are to be made at the option of the lender, shall be valid to the same extent as if such advances were made on the date of the execution of such mortgage or other instrument; provided, however, that as against the rights of creditors or subsequent purchasers for a valuable consideration, without actual notice, such mortgage or other instrument, shall be valid for the aggregate of sums specified therein, only from the time it is filed for record as provided for by law.


698.07 Same; notice to extend only one year; exception.-As against the rights of creditors or subsequent purchasers for a valuable consideration, actual notice or record notice of advances to be made at the option of the lender, under the terms of such mortgage or other instrument, shall be valid only as to such advances as are to be made within one year from the date of such mortgage or other instrument, provided that this section shall not apply to any mortgages; shipping contracts, or other instruments made and given by naval stores operators and producers to secure existing loans and future advances by naval stores factors.

Hlstory.-§2, ch. 17110, 1935; CGL 1936 Supp. 5727(6); §1, ch. 18024, 1937.

698.08 Notice given by fi ling for r ecord of chattel mortgages generally, t o extend seven years.-The notice given to third persons by

CHATTEL MORTGAGES §698.11

the filing for record of any mortgage, or other security instrument creating a lien on, or conveying or reserving an interest in, personal property, or agricultural, horticultural or fruit crops planted, growing or to be planted, grown or raised, shall, unless otherwise provided by law, expire at the end of seven years from the date of the filing thereof for record.

Provided, however, that this law shall not apply to any mortgage or other security instrument creating a lien on, or conveying or reserving an interest in, or in respect of property owned by, or sold or leased to, or agreed to be sold or leased to, any railroad corporation, where such mortgage has been or shall be recorded in the county in the State of Florida in which the mortgaged property is situated or, in the case of such other instrument, where such other instrument has been or shall be recorded in the office of the secretary of state of the State of Florida. Provided further, however, that this law shall not apply to any mortgage or other security instrument given to secure any indebtedness to the United States of America, or any agency or instrumentality thereof, incurred under the rural electrification act of 1939, as amended.

History.-§1, ch. 17112, 1935; CGL 1936 Supp. 5727(7); §1, ch. 20921. 1941.

3rd paragra ph Comp. § 1, ch. 26889 , 1951. ct.-§95 .. 11 Limitation o! actions on sealed Instruments.

698.09 Extension of period of notice.-The effect as to third persons of the filing of any such instrument for record, may, in all respects, including the preservation of priority thereof, be extended for successive additional periods, each not exceeding seven years from the date of the filing in the office of the clerk of the circuit court, wherein any such instrument is recorded, upon the filing by the owner or holder thereof, of an affidavit identifying such instrument, stating his interest therein and the nature and amount unpaid on the obligation still secured thereby.

Hlatory.-§2, ch. 17112, 1935; CGL 1936 Supp. 5727(8).

698.10 Effect on certain existing instruments.-The notice given by the filing of any mortgage, or other security instrument creating a lien on, or conveying or reserving an interest in, personal property, or agricultural, horticultural or fruit crops planted, growing or to be planted, grown or raised, filed or . recorded, prior to May 1, 1935, shall not extend more than seven years from said date, unless within seven years therefrom such an affidavit is so filed.

Hlatory.-§3, ch. 17112, 1935; CGL 1936 Supp. 5727(9).

698.11 Duties of clerk in connection with extension.-The clerk of the circuit court shall file such affidavit, reindex the instrument mentioned therein, and enter on the margin of the record of such instrument a reference to the filing of such affidavit, stating thereon the date of filing of such affidavit and the amount unpaid on the obligation secured by such instrument for which services the clerk of the circuit ~ourt shall be entitled to a fee of twentyfive cents.

Hlltory.-§4, ch. 17112, 1935; CGL 1936 Supp. 5727 (10),

§699.01 LIVESTOCK MORTGAGES AND OTHER INSTRUMENTS 2520

CHAPTER 699

LIVESTOCK MORTGAGES AND OTHER INSTRUMENTS

699.01 Definitions. 699.02 Power of sale may be included in livestock

mortgages; exercise of power. 699.03 Form of livestock mortgages. 699.04 Livestock mortgages to cover progeny, and

to secure extensions of indebtedness. 699.05 Lien of mortgage attaches to future-ac

quired livestock. 699.06 Record of livestock mortgages. 699.07 Where instruments relating to livestock

must be recorded in order to constitute notice.

699.01 Definitions.-For the purpose of this chapter the word "livestock" shall include horses, mules, asses, cows, bulls, steers, calves and all kinds of cattle, goats, sheep, hogs and livestock of all kinds without limitation. The word "obligation" as herein used shall include promissory notes, bonds, debts and evidences of indebtedness of all kinds.

Hlstory.-§1, ch. 7936, 1919; CGL 6728.

699.02 Power of sale may be included in livestock mortgages; exercise of power.-In all mortgages on livestock it may be provided or covenanted that the mortgagee, his legal representatives or assigns, shall have the power to sell the mortgaged property upon any breach or default by the mortgagor of the terms, covenants, conditions or stipulations of such mortgage or of the obligation thereby secured or upon nonpayment of any indebtedness secured by such mortgage or interest thereon, when due and payable in such manner and on such terms as may be provided in such mortgage, and all such provisions and covenants shall be valid, effectual and enforceable, and every such sale thereunder shall vest in the purchaser or purchasers the title in and to the livestock mortgaged and described in such mortgage. In case of the exercise of such power of sale, written notice of such sale shall be given to the mortgagor and all persons claiming by, through or under him by instrument duly recorded, not less than ten days prior to such sale. Such notice may be served in the same manner as summons ad respondendum are served pursuant to the laws of Florida, and a copy of such notice shall be published at least twice, the first publication of which shall be not less than fifteen days prior to such sale, in a newspaper published in the county where such sale shall occur, and another copy of such notice shall be served upon any person in charge or having or taking part in the supervision or care of such mortgaged livestock, or any part thereof. If there be no newspaper published in such county, then such publication may be made in a newspaper published in any county adjoining that wherein such sale is to be made. If any person to whom notice is required to be given under this statute shall not reside in the State of Florida, then it shall not be necessary to make personal service of such notice upon him, and in such case, the publication of such notice as above provided and

699.08 What description sufficient. 699.09 Mortgaged livestock not to be removed

from coUn.ty or otherwise disposed of; remedies of mortgagee.

699.10 Limitation on enforcement of livestock mortgages.

699.11 Provisions of this chapter to be cumulative. 699.12 Powers of circuit courts in aid of rights

of mortgagee. 699.13 Sale under power contained in mortgage. 699.14 Penalty for disposing of property under

lien.

mailing copy of such notice to such nonresident by registered mail shall be sufficient. Such notice may be served upon any of said parties wherever they may be within the State of Florida. Every such sale shall occur during the hours prescribed for sheriff's sales at the courthouse of the county where such livestock are situate at the time of the sale, and if the livestock are situate in more than one county, the sale may occur in any county where any part of such livestock is located. The actual possession of such mortgaged livestock, or its presence, at the place of sale shall be unnecessary to validity of any such sale. Every such notice of sale shall describe the mortgaged property to be sold and state the time and place of sale, the name of the person who will conduct the sale and the amount claimed to be due and secured by such mortgage and for the payment of which such sale is being held. The proceeds of every such sale shall be applied first to the payment of the costs and expenses of such sale, including the cost of advertising and serving notices and of the person conducting such sale, (which shall be the same as the fees prescribed by law to be paid sheriffs for conducting sales and executing sheriff's deeds under executions) and attorney's fees of ten per cent of the principal and accrued interest of the obligation secured by such mortgage, for the services of the attorney for the mortgagee or his assigns, and then to the payment of the obligation secured by such livestock mortgage, including unpaid interest, if any, and the balance or excess, if any, shall be paid to the owner of such mortgaged livestock if he be known; otherwise, such excess shall be paid by the person conducting such sale into the registry of the circuit court for such county to be there held for the benefit of the person lawfully entitled to the same.

Hlstory.-§2, ch. 7936, 1919; CGL 6729. ct.-§699.13, Sale under power contained In the mortgage.

§702.01 et seq., Foreclosure tn g.eneral.

699.03 Form of livestock mortgages.-Mortgages on livestock may be in substantially the following form:

This mortgage made the ________ day of _____________ _____ , A. D. ___________________ , by --------------------------- --------------------of ---------------------------------------------------• mortgagor, to - ---------- ------- ------------------------------------------------------- of ---- ----------------------------------------------• mortgagee;

2521 LIVESTOCK MORTGAGES AND OTHER INSTRUMENTS §699.10

WITNESS: That the mortgagor does hereby mortgage, bargain, sell and convey to the mortgagee the following livestock now situated in ---------- ---------------------- _______ cow.nty, Florida, (here describe the property to be mortgaged) as security for the payment of (here describe the indebtedness, note or obligation to be secured).

And the mortgagor agrees to pay said obligation when due, with interest as stated therein, and to comply with all the terms of said obligation, and to pay all expenses of collectiOii thereof including an attorney's fee of ten per cent of the unpaid principal and interest of said obligation.

In the event of the failure or refusal of the mortgagor or __ __ _ _ ___ heirs, legal rep-resentatives or assigns to pay this mortgage and the obligation secured thereby, principal and interest, or of the breach or nonperformance of any of the covenants or provisions of this mortgage, then the mortgagee ---------------------lega l representatives or assigns may and is hereby authorized to take immediate possession of said above described livestock and sell the same at public sale to the highest bidder for cash, at the courthouse in _________ ------------ --------------county, Florida, after giving fifteen days notice thereof, as provided by law, and the proceeds of such sale shall be applied, first to the cost of making such sale and then to the payment of the amount of principal, interest and attorney's fees due upon said obligation and the remainder of the proceeds, if any, shall be paid to the mortgagor or____ ________________________ legal representatives or assigns.

(Here insert any additional covenants , conditions, stipulations or agreements agreed upon by the parties, including such covenants, stipulations and provisions relating to power of sale without judicial foreclosure as may be desired).

IN WITNESS WHEREOF, the mortgagor has subscribed this instrument the day and year first above written.

Hlstory.-§3, ch. 7936, 1919; CGL 5730.

699.04 Livestock mortgages to cover progeny, and to secure extensions of indebtedness. -The lien of a ll mortgages on livestock shall, unless otherwise expressly provided therein, include and extend to a ll progeny or offspring of such mortgaged livestock; and every such mortgage shall secure all extensions and renewals in whole or in part of the obligation or indebtedness, or evidences of indebtedness mentioned or referred to in such mortgage as fully and to the same extent as the original obligation or indebtedness is secured by such mortgage.

Hlstory.-§4, ch. 7936, 1919; CGL 5731.

699.05 Lien of' mortgage attaches to futureacquired livestock.-All mortgages upon livestock shall constitute a lien upon the livestock mentioned, described or referred to therein, whether at the time of the execution of such mortgage, such livestock shall be in the county or state where the same shall be stated to be or not, and whether actually in the possession

of the mortgagor or not, provided that the mortgagor is or at any time before the payment of such mortgage shall become the owner of such property.

Hlstory.-§5, ch. 7936, 1919; CGL 5732; am. §7, ch. 22858, 1945.

699.06 Record of livestock mortgages.-All livestock mortgages shall be entitled to record in like manner and under the same circumstances as other mortgages on personal property.

Hlstory.-§6, ch. 7936, 1919; CGL 5733.

699.07 Where instruments relating to lives tock must be recorded in order to constitute notice.-All bills of sale, conditional bills of sale, retain title contracts, contracts, mortgages, liens and leases upon livestock to be of any force and effect against any bona fide purchaser or party acquiring an interest in or a lien upon said livestock, without actual knowledge of outstanding claims against same, must be recorded and indexed in the county where said livestock is located or in the county from which said livestock has just recently been removed.


699.08 What description sufficient.-Mortgages on livestock may cover or include specified numbers of animals constituting a part or all of a stock, flock or herd and having the same mark or marks and brand or brands, and in such cases a ll such mortgages shall be valid and effectual without any other or more specific description.

Hlstory.-§7, ch. 7936, 1919; CGL 5734.

699.09 Mortgaged livestock not to be removed from county or otherwise disposed of; remedies of mortgagee.-No person who shall give or execute any mortgage on livestock nor

. any person who shall buy, hold, possess or acquire or have any interest or lien in such livestock subordinate or inferior to any mortgages thereon shall remove or permit the removal of said livestock from the county, or otherwise sell or dispose of the same, without the written consent of the mortgagee; and in case of any violation of the provisions of this section the obligation secured by such mortgage shall at the option of holder of such mortgage become immediately due and the mortgagee shall have the right to enforce forthwith all of his rights and remedies for the payment and collection of such mortgage and of the obligation thereby secured, whether at s uch time by its terms due and payable or not, and the mortgagee shall be entitled to take immediate possession of such mortgaged livestock.

Hlstory.-§8, ch. 7936, 1919; CGL 5735; am. §7, ch. 22858 , 1945. ct.-§699.14, Penalty t or disposing of property under lien.

699.10 Limitation on enforcement of livestock mortgages.- Mortgages on livestock filed and recorded in any county in this state shall be presumed to have been paid and shall not be enforceable or collectible after the expiration of seven years from the date of maturity

§699.11 LIVESTOCK MORTGAGES AND OTHER INSTRUMENTS 2522

of the debts or obligations secured by such mortgages, unless the owner or holder of such livestock mortgage, his agent or attorney, shall, prior to the expiration of the said period of seven years, file and cause to be recorded in the record of mortgages in the county where such livestock mortgage was recorded an affidavit stating that such debt or obligation has not been paid and the amount still due thereon.

History.-§9, ch. 7936, 1919; CGL 5736. c!.-§95.11, Limitation o! actions on sealed Instruments.

699.11 Provisions of this chapter to be cumulative.-N othing in this chapter shall preclude . the use of any other form or forms of livestock mortgages than that set forth in §699.03, or render invalid any special provision, condition, agreements or covenants in any mortgage of livestock (including the form set forth in said §699.03) which would be valid or enforceable in any mortgage of other kinds of personal property or under this chapter; nor shall anything in this chapter prevent the holder of any such mortgage on livestock from foreclosing such mortgage in equity as in other cases of mortgages on other classes of property, the remedy by power of sale given in this chapter being intended to be cumulative and concurrent, but not exclusive.

History.-§10, ch. 7936, 1919; CGL 5737.

699.12 Powers of circuit courts in aid of rights of mortgagee.-The circuit courts of this state in equity shall have full power to issue writs of injunction to prevent the removal of mortgaged livestock from the county in which they were situate when mortgaged, or the unlawful disposition thereof, and to appoint receivers for such mortgaged livestock whenever in the discretion of such court any such remedy shall be necessary for the preservation of the lien of the mortgage, or for the protection and preservation of such livestock or to prevent the security from being impaired, or depreciated. Such courts may also order such mortgaged livestock to be sold pending any such suit, when livestock is returned to the county where mortgaged, and the proceeds held in court to abide the result of such suit. Such remedies may be granted either on an original bill of complaint or in connection with any suit to foreclose any such mortgage

or the exercise of any power of sale under such mortgage. For the exercise of any such remedies it shall not be necessary to allege or prove that the mortgagor. is insolvent, or that the mortgaged property is insufficient to pay the mortgaged indebtedness.

History.-§11, ch. 7936, 1919; CGL 5738.

699.13 Sale under power contained in mortgage.-In case of any sale of livestock under a power of sale, provided for by such livestock mortgage and hereunder, the sale may be conducted by any person appointed by the mortgagee, and the person conducting such sale shall execute a bill of sale to the purchaser or purchasers which shall effectually transfer title to the property so sold. The mortgagee or his assigns may bid and become the purchaser at any such sale. All the rights and remedies of the mortgagee provided in this chapter shall extend to the mortgagee's legal representatives and assigns.

llistory.-§12, ch. 7936, 1919 ; CGL 5739. c!.-§702.01 et seq., Foreclosure o! mortgage.

699.14 Penalty for disposing of property under lien.- Whoever shall pledge, mortgage, sell or otherwise dispose of any livestock to him belonging, or which shall be in his possession and which shall be subject to any mortgage upon such livestock or to any written lien or to any statutory lien whether written or not, without the written consent of the person holding such livestock mortgage or lien, or whoever shall remove or cause to be removed beyond the limits of the county any such livestock without the consent aforesaid, and whoever shall willfully conceal such livestock or willfully obstruct, delay or hinder the holder of such mortgage thereon in the prosecution of his rights or remedies against such livestock shall, if the value of the property shall be less than one hundred dollars be punished by fine not exceeding five hundred dollars or by imprisonment in the county jail not exceeding six months; if the value of the property shall be more than one hundred dollars, the offender shall be punished by a fine of not exceeding five thousand dollars or by imprisonment in the state prison for not exceeding five years.

Hlotory.-§13, ch. 7936, 1919; CGL 7322. cf.-§775.06, Alternative punishment.

2523 CROP MORTGAGES §700.03

CHAPTER 700

CROP MORTGAGES

700.01 Crop mortgages authorized. 700.02 Necessity for recording.

700.01 Crop mortgages authorized.- Valid mortgage liens may be created upon agricultural, horticultural or fruit crops, then planted, growing, or to be thereafter planted, grown or raised; provided that the lands upon which said crops are grown or raised, or are to be thereafter grown or raised, are fully described in said mortgage.

Hlstory.-§1, ch. 10279, 1925; CGL 5741. ct.-§85.22, Liens tor loans and advances.

700.02 Necessity for recording.-In order to be valid, however, against subsequent encumbrances, or subsequent purchasers in good faith, all such mortgages shall be executed, acknowledged and recorded, as is now, or may be hereafter provided by law, upon mortgages upon real estate.

Hlstory.-§2, ch. 10279, 1925; CGL 6742. ct.-§695.01 et seq., Recordation ot conveyances and mort

gages ot real estate.

700.03 Fee for recording certain instruments in favor of United States or its agencies, etc.; copy may be used in recording.-The fee which shall be charged for the filing, indexing and recording of any mortgage, or other instrument creating a lien on or conveying or reserving an interest in personal property, or

700.03 Fee for recording certain instruments in favor of United States or its agencies, etc.; copy may be used in recording.

agricultural, horticultural, or fruit crops planted, growing or to be planted, grown or raised, or any transfer or assignment thereof, to or in favor of the government of the United States, or any department, agency, or .officer thereof, the reconstruction finance corporation, the land bank commissioner, the federal farm mortgage corporation, any corporation organ-ized under the act of congress known as the farm credit act of 1933, and amendments thereto, any corporation organized under the act of congress known as the federal farm loan act, and amendments thereto, or any corporation which rediscounts notes or other obligations with, or procures loans from a federal intermediate credit bank, shall be not more than fifty cents, provided, that a copy or duplicate of such instrument be furnished to the recording officer.

When a copy of any such mortgage, or such other instrument, or any transfer or assignment thereof, shall be presented with the original thereof for record, the pasting or otherwise securely fastening of such copy in the book or books provided for the recording of such instrument shall be a good and sufficient record thereof.

Hlotory.-§§1, 2, ch. 17106, 1935; CGL 1936 Supp. 5723(6) .

§701.01 ASSIGNMENT AND CANCELLATION OF MORTGAGES 2524

CHAPTER 701 ASSIGNMENT AND CANCELLATION OF MORTGAGES

701.01 Assignment. 701.02 Assignment not efiectual against creditors

unless recorded. 701.03 Cancellation. 701.04 Cancellation of mortgages, liens and judg

ments.

701.01 Assignment.- Any mortgagee may assign and transfer any mortgage made to him, and the person to whom any mortgage may be assigned or transferred may also assign and transfer it, and he or his assigns or subsequent assignees may lawfully have, take and pursue the same means and remedies which the mortgagee may lawfully have, take or pursue for the foreclosure of a mortgage and for the recovery of the money secured thereby.

History.- §1, Dec. 11, 1834; RS 1986; GS 2498; RGS 3840; CGL 6743.

701.02 Assignment not effectual against creditors unless recorded.-No assignment of a mortgage upon rea l property or of any interest therein, shall be good or effectual in law or equity, against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless the same be recorded according to law.

The provisions of this section shall also extend to assignments of mortgages resulting from transfers of all or any part or parts of the debt, note or notes secured by mortgage, and none of same shall be effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration without notice, unless a duly executed assignment be recorded according to law.

Any assignment of a mortgage, duly executed and recorded according to law, purporting to assign the principal of the mortgage debt or the unpaid balance of such principal, shall, as against subsequent purchasers and creditors for value and without notice, be held and deemed to assign any and all accrued and unpaid interest secured by such mortgage, unless such interest shall be specifically and affirmatively reserved in such assignment by the assignor, and no reservation of such interest or any part thereof shall be implied.

Hlstory.-§1, ch. 6909, 1915; RGS 3841; CGL 6744; §13, ch. 20954, 1941. ct.-§695.01 et seq., Recordation of conveyances and mort

gages of real estate.

701.03 Cancellation.-Whenever the amount of money due on any mortgage shall be fully paid, the mortgagee or assignee shall within sixty days thereafter cancel the same in the manner provided by §28.22.

Hlstory.-RS 1986; GS 2499 ; RGS 3842; CGL 6745.

701.05 Failing or refusing to satisfy lien; punishment for.

701.06 Certain cancellations and satisfactions of mortgages validated.

701.04 Cancellation of mortgages, liens and judgments.-Whenever the amount of money due on any mortgage, lien or judgment shall be fully paid to the person or party entitled to the payment thereof, the mortgagee, creditor or assignee, or the attorney of record in the case of a judgment, to whom such payment shall have been made, shall enter on the margin of the record of such mortgage, notice of lien or judgment, in the presence of the custodian of such record, to be attested by said custodian, satisfaction of said mortgage, notice of lien or judgment, and sign the same with his, her or their hand; or shall execute in writing an instrument acknowledging satisfaction of said mortgage, lien or judgment, and have the same acknowledged or proven, and duly entered of record in the book provided by law for such purposes in the proper county.

Hlstory.-§1, cb. 4138, 1893; §1, cb. 4918, 1901; GS 2500; RGS 3843; CGL 6746.

701.05 Failing or refusing to satisfy lien; punishment for.-Any person entitled to and receiving the payment of the amount of money due upon any mortgage, lien or judgment, who shall fail for thirty days after written demand made by the person paying the same, to cancel and satisfy of record, as provided by law, any such mortgage, lien or judgment so paid, shall be punished by fine not exceeding one hundred dollars, or imprisonment not exceeding six months.

Hlstory.-§2, ch. 4918, 1901; GS 3712; RGS 5663; CGL 7866. ct.-§775.06, Alternative punlshmem.

701.06 Certain cancellations and satisfactions of mortgages validated. -All cancellations or satisfactions of mortgages made prior to the enactment of chapter 4138, laws of Florida, acts of 1893, by the mortgagee or assignee of record of such mortgage entering same on the margin of the record of such mortgage in the presence of the custodian of such record and attested by the said custodian and signed by said mortgagee or assignee of record of such mortgage, shall be valid and effectual for every purpose as if the same had been done subsequent to the enactment of chapter 4138, laws of Florida, acts of 1893.

Hlotory.-§1, cb. 14763, 1931; CGL 1936 Supp. 5746(1).

2525 FORECLOSURE OF MORTGAGES §702.08

CHAPTER 702

FORECLOSURE OF MORTGAGES

702.01 Chancery. 702.02 Bill of complaint. 702.03 Certain foreclosures validated. 702.04 Mortgaged lands in ditierent counties. 702..05 Mortgaged lands sold for taxes. 702.06 Deficiency decree; common law suit to re

cover deficiency.

702.01 Chancery.-All mortgages shall be foreclosed in chancery, unless otherwise provided by statute.

Hlstory.-§1987 RS 1892; GS 2501; RGS 3844; CGL 5747; am. §7, ch. 22858, 1945. cf.-§§37.01(!) and 81.25, Foreclosure of certain mortgagee

in courts of justice of the peace. §§698.03 and 699.02, Foreclosure of certain mortgages

under power of sale.

702.02 Bill of complaint.- In foreclosure, the original mortgage or a copy thereof shall be annexed to the bill of complaint as a part thereof.

Hlstory.-§1, ch. 2004, 1874; RS 1988; GS 2502; RGS 3845; §1, ch. 12095, 1927; CGL 5748.

702.03 Certain foreclosures validated.-All mortgage foreclosures heretofore made, or now pending, wherein there has been annexed to the bill of complaint in such cause, an uncertified copy of the mortgage, as provided by chapter 12095, laws of Florida, acts of 1927, entitled: "An act to amend section 3845 (2502) of the revised general statutes of Florida, relating to bills of complaint in foreclosure of mortgages" be and the same are hereby validated and confirmed insofar as relates to the copy of the mortgage attached to such bill of complaint, to the same extent and effect as if section 3117, revised general statutes of Florida, 1920, had been expressly repealed by chapter 12095, laws of Florida, acts of 1927, entitled: "An act to amend section 8845 (2502) of the revised general statutes of Florida, relating to bills of complaint in foreclosure of mortgages."

History.-§1, ch. 13642, 1929; CGL 5748(1).

702.04 Mortgaged lands in different counties.- When a mortgage includes lands, or railroad track, or right-of-way, or terminal facilities and station grounds, lying in two or more counties, it may be foreclosed in any one of said counties, and all proceedings shall be had in that county as if all the mortgaged land, or railroad track, or right-of-way, or terminal facilities and station grounds lay therein, except that notice of the sale must be published in every county wherein any of the lands, or railroad track, or right-of-way, or terminal facilities and station grounds to be sold lie. After final disposition of the suit, the clerk of the circuit court shall prepare and forward a certified copy of the decree of foreclosure and sale and of the decree of confirmation of sale to the clerk of the circuit court of every county wherein any of the mortgaged lands, or railroad tracks, or rightof-way, or terminal facilities and station grounds lie, to be recorded in the foreign

702.07 Power of courts and judges to set aside foreclosure decrees at any time before sale.

702.08 Etiect of setting aside foreclosure decree. 702.09 Definitions.

judgment book of each such county, and the costs of such copies and of the record thereof shall be taxed as costs in the cause.

Hlstory.-RS 1989; §1, ch. 44%0, 1895; GS 2503; §1, ch. 7339, 1917; RGS 3846; CGL 6749.

702.05 Mortgaged lands sold for taxes. -Any person who has a lien by mortgage or otherwise upon lands sold for taxes may, within the time allowed by law for redemption, redeem such lands, and the receipt of the officer · authorized to receive the amount paid for redemption money shall entitle the lien holder to collect the said amount, with interest at the rate of ten per cent per annum, as a part of and in the same manner as the amount secured by his original lien.

Hlstory.-§1, ch. 3903, 1889; RS 1990; GS 2504; RGS 3847 ; CGL 5750.

702.06 Deficiency decree; common law suit to recover deficiency.-In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court, but the complainant shall also have the right to sue at common law to recover such deficiency, provided no suit at law to recover such deficiency shall be maintained against the original mortgagor in cases where the mortgage is for the purchase price of the property involved and where the original mortgagee becomes the purchaser thereof at foreclosure sale and also is granted a deficiency decree agdnst the original mortgagor.

History.-§1, ch. 11993, 1927; CGL 5751; §1, ch. 13625, 1929.

702.07 Power of courts and judges to set aside foreclosure decrees at any time before sale.-The circuit courts of this state, and the judges thereof at chambers, shall have jurisdiction, power and authority to rescind, vacate and set aside a decree of foreclosure of a mortgage of property at any time before the sale thereof has been actually made pursuant to the terms of such decree, and to dismiss the foreclosure proceeding upon the payment of all court costs.

Hlstory.-§1, ch. 11881, 1927; CGL 5752.

702.08 Effect of setting aside foreclosure decree.-Whenever a decree of foreclosure has been so rescinded, vacated and set aside and the foreclosure proceedings dismissed as provided in §702.07, the mortgage together with its lien and the debt thereby secured shall be, both in law and equity, completely relieved of all effects of any kind whatsoever

§702.09 FORECLOSURE OF MORTGAGES

resulting from or on account of the foreclosure proceedings and the decree of fot·eclosure and fully restored in all respects to the original status of the same as it existed prior to the foreclosure proceedings and the decree of foreclosure, and thereafter the same shall be for all purposes whatsoever legally of force and effect just as if foreclosure proceeding had never been instituted and a decree of foreclosure had never been made.

History.-§2, ch. 11881, 1927; CGL 5753.

702.09 Definitions.- For the purposes of §§702.07 and 702.08 the words "decree of foreclosure" shall include a judgment or order ren-

2526

dered or passed in the foreclosure proceedings in which the decree of foreclosure shall be rescinded, vacated and set aside; the word "mortgage" shall mean any written instrument securing the payment of money or advances; the word "debt" shall include promissory notes, bonds and all other written obligations given for the payment of money; the words "foreclosure proceedings" shall embrace every action in the circuit courts of this state wherein it is sought to foreclose a mortgage and sell the property covered by the same; and the word "property" shall mean and include both real and personal property.

Hlstory.- §3, ch. 11881, 1927 ; C G L 5754.

2527 ABSTRACTS OF TITLE §703.07

CHAPTER 703 ABSTRACTS OF TITLE

703.01 County commissioners authorized to require clerk to make abstracts.

703.02 Abstracts of real estate upon petition; fees of clerk.

703.03 What abstract to show. 703.04 Abstracting tax sales. 703 .05 Fees of clerk for furnishing abstract. 703.06 Board may purchase abstract books. 703.07 Abstracts of records destroyed by fire; pur

chas~ of abstract books by county; proceedmgs for.

703.08 Copies of abstracts as evidence. 703.09 Condemnation of abstracts, maps, etc., by

county where records have been destroyed.

703.10 Order to show cause; enjoining owners from removing abstracts, etc. beyond jurisdiction of court. .

703.01 County commissioners authorized to require clerk to make abstracts.--The county commissioners in and for any county of this state, whenever the said board deems it advisable, may require the clerk of the circuit court !n and for said county to abstract any or all mstru!llents o.f writing affecting any real estate situated m the county as the same is recorded. For such services the clerk shall receive a fee of ten cents for each piece of property so abstracted, provided there are not more than two descriptions. In instruments to be recorded, where there are more than two descriptions, the fee of the clerk shall be ten cents for each of the first two descriptions and an additional fee of three cents for each of the others. These fees are to be taxed as a part of the recording fee of said instruments.

57~~etory.-§1 , ch. 5173, 1903; GS 2505; RGS 3848; CGL

. 703.02 Abstracts of real estate upon petition; fees of clerk.-Upon a petition of a majority. of the registered voters of any county of this state, the board of county commissioners of said county, if they deem it adv~s~.ble, shall. have abstracted, under the superVISion of smd clerk, any or all instruments of record relating to real estate situated in said county. For such services the clerk shall receive a compensation not to exceed seventyfive dollars per month for himf'elf or each deputy employed in the actual performance of such service.

57~~story.-§2, ch . 5173, 1903; GS 2506 ; RGS 3849; CGL

703.03 What abstract to show.- The said abstract books shall be so ruled and headed as to show the description of the property, the names of the grantors and grantees, mortgagors and mortgagees, nature of the instrument, consideration, date, release of dower number of witnesses, number of book and page of record, and such other information and arranged in such order, as the said board of commissioners may deem advisable.

5ll/.etory.-§8, cb. 5173, 1903; GS 2607; RGS 3850; CGL

703.11 Order granting petition; jury to assess compensation; copies of original abstracts, etc.

703.12 Power of judge as to amendments and new trial.

703.13 Payment of compensation and delivery of abstracts, etc.; petitioner to pay cost.

703.14 Penalty for failure to deliver abstracts, etc. 703.15 Abstracts, etc., acquired by condemnation. 703.16 Appeal by writ of error. 703.17 Alteration of abstracts condemned by coun

ty for use of the public. 703.18 Refusing to make abstract. 703.19 Filing untrue copies of abstracts ordered

flled for use of public.

703.04 Abstracting tax sales.- Whenever the said board of county commissioners deem it advisable, they shall have abdracted any or all of the tax sales relating to any real estate situated in the county. This shall' be done under the supervision of the clerk, who shall receive a monthly compensation for himself or deputy, or deputies, not to exceed seventy-five dollars per month during the performance of such services. The said abstract books shall be so ruled and headed as to show number of certificate, date of sale, the year for which taxes were unpaid, number and page of book where recorded, date of redemption or cancellation, date of deed, number and page of book where recorded, and such other information and in such order as may be deemed advisable.

57~~story.-§4, ch. 5173, 1903; GS 2508; RGS 3851; CGL

703.05 Fees of clerk for furnishing abstract.-When the records of the county have been abstracted, the fee of the clerk for making an abstract shall be fifty cents for the first transfer and twenty-five cents for every other record affecting the same.

57~~story.-§5, ch. 5173, 1903; GS 2509 ; RGS 3852; CGL

703.06 Board may purchase abstract books. -Upon a petition of a majority of the registered voters of any county in this state, the board of county commissioners of said county, if the said board deems· it advisable, may purchase a set of abstract books, for whatever price and on whatever terms the board may deem expedient. The clerk of the court shall have custody of said books, and they shall be open to examination free of charge.


703.07 Abstracts of records destroyed by fire; purchase of abstract books by county; proceedings for.-When the records, or any material part thereof, in any county in this state, concerning the title to property have been heretofore destroyed by fire, so that a connected chain of title cannot be taken there-

§703.08 ABSTRACTS OF TITLE

from, the judge of the circuit court of such county, if requested by the board of county commissioners of such county by resolution of such board, shall appoint three competent and trustworthy persons as commissioners to examine into the state of the records in such county, and in case they find any abstracts, copies, minutes, extracts, maps or plats from such records, existing after such destruction as aforesaid, and find that such abstracts, copies, minutes, extracts, maps or plats were fairly made before such destruction of the records by any person or persons in the ordinary course of business, and that they contain a material and substantial part of such records, they shall certify the facts found by them in respect to such copies, abstracts, minutes, extracts, maps or plats, and also (if they are of that opinion) that such abstracts, copies, minutes, extracts, maps or plats tend to show a connected chain of title to the lands in said county, and shall file such certificates with the county clerk of the proper county, and the board of county commissioners thereof may, with the approval of the judge of the circuit court of the county, purchase from the owners thereof such abstracts, copies, minutes, extracts, maps or plats, or such parts thereof as may tend to constitute a connected chain of title to the lands in said county, in· eluding all judgments and decrees that form part of such chain of title, paying therefor such reasonable price as may be agreed upon between them and such owners; provided, that such price shall be approved by said board of three commissioners appointed by such circuit judge as aforesaid, and also by said circuit judge; or such board of county commissioners may, with such approval and upon such conditions, procure a copy of said abstracts, copies, minutes, extracts, maps or plats, instead of the originals, to be paid for in like manner, upon approval of the price thereof by said circuit judge and said board of three commissioners as aforesaid.

The compensation of said three commissioners to be appointed by said circuit judge as aforesaid shall be fixed and allowed by the board of county commissioners, and shall be paid by the county. Hlstory.-~2 . ch . 4951, 1901; GS 2511; RGS 3854; CGL

6761.

703.08 Copies of abstracts as evidence. -The abstracts, copies, minutes, maps and plats of said county purchased under the provisions of §703.07 shall thereupon be placed in the office of the clerk of the circuit court of said county, to be copied or arranged in such form as the board of county commissioners shall deem best for the public interest. And in case the originals have been lost or destroyed, and no certified copy from the records of the original papers shall be in the power, custody or control of the party asking to use the same on any trial or other proceedings, copies of the Bame, or any part thereof, duly certified by the clerk of the circuit court of said county, shall be admitted in evidence in all courts

2528

o! law and equity in this state. Such clerk · shall furnish to any and all parties requesting it, upon being paid his proper fees, certified copies of the same, or parts thereof.


703.09 Condemnation of abstracts, maps, etc., by county where records have been destroyed.-When the records, or any material part thereof, in any county in this state, concerning the title to property, have been destroyed by fire or other causes, so that a connected chain of title cannot be taken therefrom, and any person or corporation is possessed of any abstracts, copies, minutes, extracts, maps or plats, made from said records before such destruction, the boa1·d of county commissioners of any such county may acquire such abstracts, copies, minutes, extracts, maps or plats in whole or in part, as the board may determine, or copies thereof, to be placed in the office of the clerk of the circuit court for the use of the public as part of the public records, in the following manner: (1) first, the said board shall determine, by an entry in their minutes, what abstracts, copies, minutes, extracts, maps or plats so owned by any person or corporation they desire to acquire for the use of the public; (2) second, the said board of county commissioners shall thereupon cause a petition in the name of such county, to be presented to the judge of the circuit court of the circuit in which such county is situated, setting forth what abstracts, copies, minutes, extracts, maps or plats, so made from such burned records, are required, and giving the name of any person, persons or corporation owning the same or in possession thereof, and praying that the said abstracts, copies, minutes, extracts, maps or plats, or copies thereof sworn to by the custodian thereof to be correct copies of the same, may be condemned and placed in the clerk's office for the use of the public as part of the public records.

Hlstory.-§1, ch. 5414, 1905; RGS 3856; CGL 6763.

703.10 Order to show cause; enJOining owners from removing abstracts, etc., beyond jurisdiction of court.-Upon the presentation of such petition to such judge, he shall make an order requiring the owner or custodian of such abstracts, copies, minutes, extracts, maps or plats to appear before him at a day by him fixed, not less than ten nor more than thirty days from the date of such order, and show cause why the petition should not be granted, and the said judge shall at the time make an order enjoining the owners or persons in charge of such abstracts, copies, minutes, extracts, maps or plats from removing the same beyond the jurisdiction of the court pending the litigation.


703.11 Order granting petition; jury to assess compensation; copies of original abstracts, etc.-Upon the day fixed, or any day to which the hearing may be adjourned, if no person

2529

shall appear, or if no sufficient cause be shown why the prayer of the petition should not be granted, then the said judge shall make an order granting the prayer of the petition and issue an order to the sheriff to empanel a jury of twelve men to try what shall be just compensation for the said abstracts, copies, minutes, extracts, maps or plats, or copies thereof, sought to be taken for the county. If the defendant so appearing shall, in his return to such order, elect that the condemnation sought by the petitioner shall, if any such condemnation be allowed, be of copies of such abstracts, copies, minutes, extracts, maps or plats and not of the originals thereof, no condemnation shall be allowed of such originals, and the petition, in case it shall have sought a condemnation of such originals, shall thereupon be amended so as to seek only a condemnation of a copy of said abstracts, copies, minutes, extracts, maps or plats.


703.12 Power of judge as to amendments and new triaL-The said judge shall have full power to grant amendments and to make all orders necessary to the justice of the cause and to grant new trials.


703.13 Payment of compensation and delivery of abstracts, etc.; petitioner to pay cost. ~Upon the rendition of the verdict, the said judge shall make an order that, upon the payment into court for the use of the defendant, within ten days, unless further time be allowed by the court, of the compensation ascertained by the jury, the prayer of the petition is granted, or else the proceedings shall be null and void, and the said judge shall fix a time within which, after such payment into court, the defendant shall place in the office of the clerk of the circuit court for said

,county, for the use of the public, such ab-stracts, copies, minutes, extracts, maps or plats, or copies thereof, sworn to by the custodian of the said abstracts, copies, minutes, extracts, maps or plats, in accordance with th~ prayer of said petition, and said judge shall render judgment against the petitioner for the cost.

History.-§5, ch. 5414, 1905; RGS 3860; CGL 6767.

703.14 Penalty for failure to deliver abstracts, etc.-Any person or the officers of any corporation in possession of, or having under their control such abstracts, copies, minutes, extracts, maps or plats who shall fail or refuse to comply with such order, sl1all be guilty of a contempt of court and may be imprisoned until such order is obeyed.

Hlstory.-§6, ch. 5414, 1905 ; RGS 3861; CGL 5768.

703.15 Abstracts, etc., acquired by condemnation.- Upon the filing of such abstracts, copies, minutes, maps or plats, or such copies thereof, in the office of the clerk of the circuit court for such county, they shall have the

ABSTRACTS OF TITLE §703.18

same force and effect as is now provided in §§703.07 and 703.08 for those obtained and filed in such clerk's office under the provisions of said sections.

History.- §8, ch. 5414, 1905; RGS 3862; CGL 6769.

703.16 Appeal by writ of error.-Any party aggrieved by the final order of the court may have a writ of error as in common law cases, and a supersedeas may be had by giving bond with good and sufficient surety in such sum as the judge may direct conditioned to obey the order of the court if affirmed.


703.17 Alteration of abstracts condemned by county for use of the public.-Any person or persons making any erasure, alteration, interlineation or interpolation in any abstracts, copies, minutes, extracts, maps or plats, or in any copies thereof filed in the clerk's office under the provis ions of §§703.09-703.16 shall be guilty of the crime of forgery and upon conviction thereof shall be punished by imprisonment not exceeding five years.


703.18 Refusing to make abstract. -Any person or any employee thereof, who may be engaged in such business of making abstracts, writing, entries or maps in aiJy county in which the records have been destroyed, shall furnish such abstract or copy, or any portion thereof and a certificate and affidavit of the correctness thereof to any person from time to time applying therefor in the onier of application, and without unnecessary delay, and for a reasonable consideration to be allowed therefor, which in no case shall exceed the sum of sixty cents for each deed, mortgage or other instrument for which such abstract is furnished, and five dollars for the certificate and affidavit, and only one certificate and afdavit shall be necessary or shall be charged to or for all the entries, instruments or items of the abstract of any chain of title, and any and all persons so engaged, whose business is hereby declared to stand upon a like footing with that of common carriers, who shall refuse so to do, if tender or payment be made to him or them of the amount demanded for such abstract or copy, and not exceeding the amount aforesaid, as soon as such amount is made known and ascertained, or of a sum adequate to cover such amount before it is ascertained, shall be guilty of the crime of extortion, and shall be punished by fine not less than one hundred dollars and not exceeding one thousand dollars therefor; and shall also be liable in any action for any and all damages, loss or injury which any person applying therefor may suffer or incur by reason of such failure to furnish such abstract or copy, as aforesaid, and shall also be ... -.Qject to be compelled to furnish such abstract by mandamus or other legal proceedings.

74~1story.-§7, ch. 4951, 1901; GS 3484; RGS 6368; CGL

cf .-§1.01(3), "Person" defined.

§703.19 ABSTRACTS OF TITLE

703.19 Filing untrue copies of abstracts ordered filed for use of public. - Any person making copies of abstracts, copies, minutes, extracts, maps or plats, where copies are prayed for under the provisions of §§703.09-703.16, and ordered filed in the office of the clerk of the circuit court for the use of

2530

the public, who shall not make the same truly and without alteration or interpolation, shall be guilty of a felony, and upon conviction shall be punished by imprisonment for not less than two nor more than five years.

Hlotory.-§7, ch. 5414, 1905 ; RGS 5359; CGL 749 •.

2531 EASEMENTS §704.03

CHAPTER 704 EASEMENTS

704.01 Easement over certain lands for certain 704.03 The term "practicable", as used in chapter, purposes. defined.

704.02 When lands inclosed person using easement to maintain gates.

704.01 Easement over certain lands for certain purposes.-When any land which is being used as a home or for agricultural or stockraising purposes shall be shut off or hemmed in by lands, fencing or other improvements of other persons, so that no practicable route of egress and ingress shall be available therefrom to the nearest practicable public or private road, it shall be lawful for the owner or tenant thereof to use for persons, vehicles and stock an easement over and upon the lands which lie between the said shut-off or hemmedin lands and such public or private road; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided, that such easement shall be used only for the purposes aforesaid; and provided further, that such use thereof shall be in orderly and proper manner.


704.02 When lands inclosed person using easement to maintain gates.-When the lands over which the easement referred to in §704.01 shall be in use, or afterwards put to the use of inclosing farm or grove products, or livestock, the person using the easement over the same shall, when requested by the owner or occupant, erect and maintain a gate at each place where said easement intersects a fence, which gate shall be kept closed when not opened for passage; and the gate so erected and maintained shall be in substantial conformity with the character of the fence at such intersection.


704.03 The term "practicable," as used in chapter, defined.-That for the purposes of this chapter the word "practicable," as used in §704.01, shall be held and construed to mean "without the use of bridge, ferry or turnpike." History.-§3, ch. 7326, 1917; RGS 5001; CGL 7090.

§705.01 WRECKED AND DERELICT PROPERTY, GENERALLY 2532

CHAPTER 705

WRECKED AND DERELICT PROPERTY, GENERALLY

705.01 County Judge to order sale. 705.06 Recovery from person wrongfully in pos-705.02 Mode o! ascertaining salvage. session. 705.03 Disposition of proceeds of sale. 705.07 Finder o! derelict goods failing to report. 705.04 Liability of sherif!. 705.08 Finder appropriating derelict goods. 705.05 Sherif! to report to county judge.

705.01 County judge to order sale.-Whenever any wrecked derelict goods, abandoned motor vehicle or other personal property shall be found in any county in this state, the county judge shall ascertain the amount and situation of the same, and by his written order shall cause the sheriff to take charge thereof and sell the same at public outcry, after giving a reasonable public notice of the time and place of such sale.

History.-§1, ch. 1005, 1859; RS 2010; GS 2532; RGS 8887; CGL 5794; am. §1, ch. 22031, 1943.

705.02 Mode of ascertaining salvage. - In order to ascertain the quantum of salvage to be paid to the person finding and reporting such wrecked derelict goods, abandoned motor vehicle or other personal property, the county judge shall appoint two disinterested citizens of the county as arbitrators (who shall be authorized in case of disagreement to select an umpire), who shall determine the quantum of salvage, not to exceed one-half the proceeds of such goods, to be paid to the salvors or persons finding and reporting such goods, and the county judge shall draw his order upon the sheriff, who shall pay the same for the amount so awarded in favor of the salvors or persons finding and reporting.

History.-§2, ch. 1005, 1859; RS 2011; GS 2533 ; RGS 3888; CGL 5795; am. §2, ch. 22031, 1943.

705.03 Disposition of proceeds of sale.-The sheriff shall hold the balance of the proceeds of such sale, after paying to the county judge one per cent of the balance for his services and retaining two and one-half per cent of the gross amount of sale for his commission, for the term of one year and a day, unless the same shall be cla imed and the said claim or claims established within said period, and after the lapse of said period the sheriff must pay the same over to the commissioner of agriculture, to be by him paid into the state treasury.

Hlstory.-§3, c h. 1005, 1859; RS 2012; GS 2534; RGS 3889; CGL 5796.

705.04 Liability of sheriff.-On faiiure of the sheriff to pay over such money within one month, he shall pay interest thereon at the rate of twelve per cent per annum from the time it becomes due to the state until paid~ and he shall also be liable on his bond for

double the amount withheld, and the state's attorney shall sue upon his bond upon the request of the commissioner so to do.


705.05 Sheriff to report to county judge.The sheriff shall place in the hands of thE! county judge within one month of the time at which any money is received a statement of the amount of money received by him, the time at which and the source from which said money was received; which statement shall be kept by the county judge, and a copy thereof forwarded without unnecessary delay to the state comptroller.

History.-§6, ch. 344, 1850 ; RS 2014; GS 2536; RGS 3891; CGL 5798.

705.06 Recovery from person wrongfully in possession.-Whenever any property described in this chapter, chapter 706, or chapter 707, is ascertained to rightfully belong to the state, and the person in possession refuses to give it up to the sheriff on demand, the state's attorney of the circuit in which the property is situated, when · required to do so by the commissioner, shall enter a suit for said property and prosecute it to a final recovery; all money derived from these sources shall be paid by the sheriff to the commissioner, to be paid by him into the state treasury. The state's attorney shall receive two and a half per cent on the amount so recovered.

History.-§§4, 6, ch. 344, 1860; RS 2016; GS 2537 ; RGS 3892; CGL 5799.

705.07 Finder of derelict goods failing to report.- Whoever finds wrecked or derelict goods and fails to report them to the county judge of the county wherein the same are found, shall be punished by a fine not exceeding five hundred dollars.


705.08 Finder appropriating derelict goods. -Whoever finds wrecked or derelict goods and secretes or appropriates the same to his own use, or shall refuse to deliver the same when required, shall be punished by imprisonment not exceding one year, or by fine not exceeding five hundred dollars.

Hlstory.-§2502 ,RS 1892; GS 3385; RGS 5233; CGL 7352.

2533 WRECKED COTTON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT §706.09

CHAPTER 706

WRECKED COTTON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT

706.01 Finder of wrecked cotton to advertise. 706.02 Owner to pay expenses and salvage. 706.03 Sale. 706.04 Persons to adopt brand for lumber. 706.05 Damages for fraudulently using stamp. 706.06 Booms may ·be constructed. 706.07 Public custodian for certain ports. 706.08 To what ports §§706.04-706.15 apply. 706.09 Custodian; duties as to vessels. 706.10 Custodian; duties as to lost timber. 706.11 Notice of finding lost timber. 706.12 Stamp to be evidence.

706.01 Finder of wrecked cotton to advertise.-Persons t~~.king up cotton afloat in the rivers of this state shall place it in a secure place out of the weather and give early notice, by advertisement at the port to which said cotton was destined, of the finding of the same, giving the marks or brands on said cotton, together with the place of finding and the name of the finder.

History.-§1, March 4, 1841; RS 2016; GS 2538; RGS 3893; CGL 5800.

706.02 Owner to pay expenses and salvage. -The person finding said cotton shall deliver it to the owner, on his paying the expense of advertisement and the sum of five dollars for each bale so saved.

Hlstory.-§2, March 4, 1841; RS 2017; GS 2539; RGS 3894; CGL 6801.

706.03 Sale. -If no owner shall appear within three months after the time of such advertisement, the person finding shall expose the same at public auction to the highest ~bidder, and shall hold the proceeds, after the payment of proper costs and ch:uges and the salvage aforesaid, for the benefit of the owner.

Hiotory.-§3, March 4, 1841; RS 2018; GS 2540; RGS 3895; CGL 5802.

706.04 Persons to adopt brand for lumber. -Any person floating lumber, logs or timber down the current of rivers, streams or watercourses in the state may adopt, to his exclusive use, a particular mark, brand or stamp, to be used and applied on all such lumber, logs or timber, to distinguish and designate his ownership thereof; but such person adopting any such mark, brand or stamp shall have it recorded in the office of the clerk of the circuit court, describing it particularly and its usual mode of application.

Hlotory.-§2, ch. 507, 1853; RS 2019; §1, ch. 4174, 1893; GS 2541; RGS 3896 ; CGL 5803.

706.05 · Damages for fraudulently . using stamp.-Any person who shall after such record knowingly use said mark, brand or stamp shall be liable in double damages to the party aggrieved.

Hlstory.-RS 2020; §2, ch. 4174, 1893; GS 2542; RGS 3897; CGL 5804.

706.06 Booms may be constructed.-Owners of timber or lumber floating down rivers or water-courses may make use of floating booms on such streams for the vurvose of securing

706.13 Fees. '706.14 Sale of lost timber. 706.15 Picking up lumber adrift. 706.16 Ports having no public custodian; lumber,

etc., not to be stayed before reaching the sea.

706 .17 Lumber taken up in sea, etc., to be ad-vertised.

706.18 Sale and disposition of proceeds. 706 .19 Selling rafted lumber adrift. 706.20 Proceedings like those for estrays.

such timber or lumber from loss, but such booms shall not be used in such manner as to cause any unnecessary delay to boats and vessels engaged in the navigation of such streams, nor shall they remain stretched out upon or across such streams any longer than is absolutely necessary to secure the timber or lumber from loss.

llistory.-§3, ch. 507, 1853; RS 2021; GS 2543; RGS 3898; CGL 5805.

706.07 Public custodian for certain ports.The governor shall appoint, by and with the advice and consent of the senate, for each port in the state into which have or shall come during any calendar year not fewer than fifty vessels of five hundred tons burden each, a public custodian of lost timber and lumber, who shall give a bond in the sum of one thousand dollars to the governor for the faithful discharge of his duties, and shall hold his office for four years, unless sooner removed by the governor for good cause.

Hlstory.-§1, ch. 5171, 1903; GS 2544; RGS 3899; CGJ. 5806.

706.08 To what ports §§706.04-706.15 apply. -Sections 706.04-706.15 shall apply to all ports, and none other, into which have come during the past five years vessels of five hundred tons burden and upwards, at the average of not less than two hundred and fifty vessels per year, according to the records of the United States custom house at or nearest the port for which such appointment shall be made.


706.09 Custodian; duties as to vessels.-The said public custodian shall keep in his office a register book, wherein he shall immediately upon the arrival of any vessel record the name, date of arrival, master, nationality, and the tonnage thereof, and the cargo stamp to be furnished as hereinafter provided. The said public custodian of timber and lumber shall furnish to the master of each vessel loading cargo from the water a suitable stamp, with which the master of the said veseel shall causeto be stamped all timber and lumber immediately upon its receipt alongside to be loaded as above set forth.

Hlstory.-§2, ch. 3899, 1889; RS 2023; GS 2545; RGS. 3900; CGL 5807.

§706.1() WRECKED COTTON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT 2534

706.10 Custodian; duties as to lost timber.The said public custodian, either by himself or his agent, shall keep at all times a careful watch over the waters of his port, and shall recover and place in a boom to be kept by him for the purpose, convenient to the shipping, all timber and lumber that shall be found adrift in said waters, and safely keep the same until disposed of in the manner hereinafter provided; but nothing in this section contained shall authorize the public custodian, or his agent, or any other person, to take possession of any lumber or timber afloat upon the waters of such port, or its tributaries, wh~n the owner thereof, or his bailee or agent, shall be in possession, view or immediate pursuit thereof.

History.-§3, ch. 3899, 1889; RS 2024; §2, ch. 5171, 1903; GS 2546; RGS 3901; CGL 5808.

706.11 Notice of finding lost timber.-The said public custodian of timber and lumber immediately upon the recovery of any timber or lumber shall give public notice for five days in some newspaper published at said port giving the description, quantity and stamp of such timber or lumber, and stating that unless said timber or lumber be called for and identified by the owner within five days, the same will be sold as provided in §706.14, and that if the proceeds of such sale be not called for by the person lawfully entitled to the same within ninety days after such sale, the same will be forfeited and paid into the county treasury for the use of county schools; and the owners of any such timber or lumber shall be entitled to have the same delivered when at said boom upon paying to the said custodian the fees hereinafter provided.

Hl•tory .-§4, ch. 3899, 1889; RS 2025; §3, ch. 5171, 1903; GS 2547; RGS 3902; CGL 5809.

706.12 Stamp to be evidence.-The stamp furnished and used under the provisions of §706.09 when appearing upon timber or lumber adrift shall be, in the courts of the state, prima facie evidence of ownership.

Hi•tory.-§5, ch. 3899, 1889; RS 2026; GS 2548; RGS 3903; CGL 5810.

706.13 Fees.-The said public custodian of lost timber and lumber shall be entitled to demand and receive from the master of each vessel using the stamp provided for in this chapter the sum of two dollars for the use of the same while engaged in loading, and for each stick of sawn timber recovered and delivered the sum of seventy-five cents and for each stick of hewn timber recovered and delivered the sum of one dollar and fifty cents, and for lumber recovered and delivered the sum of three dollars per thousand superficial feet measurement, two dollars and fifty cents for each chain and five cents for each iron dog recovered and delivered, and five dollars for each ship's boat or yawl recovered and delivered and the said custodian shall have a first lien upon timber, lumber, chains, iron dogs and boats or yawls so recovered b~ him for all his fees and dues for same until the

same be fully paid, and he shall not be required to deliver any timber, lumber, chains, iron dogs, boats or yawls until such payment is made.

Hlatoey.-16, ch. 4044, 1891; §1, ch. 4803, 1899; GS 2549; RGS 3904; CGL 5811; am. §7, ch. 22858, 1945.

706.14 Sale of lost timber.-After any lost timber or lumber has been advertised as above required for the period of five days, and no owner or claimant has appeared, the custodian shall sell the same at public sale, after publi(;! notice as aforesaid, advertised for five days, for the benefit of whom it may concern, tor which service he shall receive from the proceeds of such sale five per cent on the gross amount of such sale; the net proceeds of such sales to be held and paid by him to such person as shall be lawfully entitled to the same.

Hlstory.- §7, ch. 3899, 1889; §3, ch. 4044, 1891; RS 2028; GS 2551; RGS 3906; CGL 5813.

706.15 Picking up lumber adrift.-No person other than the custodian of lost timber, or his agents, in ports where such custodian has been appointed, shall pick up, recover, or in any manner interfere with any timber or lumber found adrift in the waters of such port, which has been stamped as required by law or which has not been stamped. Any person violating the provisions of this section shall be punished by fine of not less than five dollars and not more than fifty dollars or imprisonment for not more than thirty days.

History.-RS 2503; §8, ch. 3899, 1889; §4, ch. 5171, 1903; GS 3386; RGS 5234; CGL 7353.

706.16 Ports having no public custodian; lumber, etc., not to be stayed before reaching the sea.-In ports having no public custodian, no person other than the owner or his agents shall arrest, stay or take possession of any sawed lumber in rafts, hewed timber, round saw~mill logs or spars adrift before :the same shall have reached the mouths or outlets of the rivers and streams and have passed out into the open sea or bays where the said rivers or streams empty their waters.

H iotory.-§1, ch. 507, 1853 ; RS 2030; GS 2552; RGS 3907; CGL 5814.

706.17 Lumber taken up in sea, etc., to be advertised.-Whenever any person shall find any rafts of the timber or lumber mentioned in §706.16 in the said open sea or bays, he shall secure it in the place where found, or in the nearest place of safety, and shall proceed to advertise it at the door of the courthouse of the county wherein it was found, stating the kind and probable quantity of lumber, the place where found and where deposited.

IIiotory.-§1, Feb. 10, 1834; RS 2031; GS 2553; RGS 3908; CGL 5815.

706.18 Sale and disposition of proceeds.If after the expiration of sixty days from the date of the advertisement no person shall claim and establish his right of property to said timber or lumber to the satisfaction of the justice of the peace of the district (to

2535 WRECKED COTTON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT §706.20

prove which right the person claiming to be the owner of said timber or lumber shall not be required to produce testimony upon oath to the identity thereof, but such circumstantial proof as the nature of the case admits) then the finder may take it to the nearest market and deliver it to some justice of the peace, who shall forthwith sell the same to the best advantage, pay to the finder all necessary and reasonable expenses, reserve to himself five per cent as compensation for his services, and . place the balance in the hands of the clerk of the circuit court, whose receipt he shall take. But if before the expiration of the sixty days the owner shall appear and establish his right to said lumber such owner shall pay all expenses and reasonable charges for securing the same, to be determined, in case of difference between the parties, by an arbitrator appointed by each; but if after the expiration of another term of sixty days no right shall have yet been established to said lumber, then the balance of said money remaining in the hands of the clerk shall be paid over, one-half to the finder and the other half to the county treasury, to be applied in common with other funds to county purposes.

Hlstory.-§2, Feb. 10, 1834; RS 2032; GS 2554; RGS 3909 ; CGL 68lfl.

706.19 Selling rafted lumber adrift.-Whoever finding any timber or lumber adrift, outside of ports for which a public custodian for lost timber and lumber is appointed, sells it without complying with the law relative to lumber adrift, or disposes of it, in the place or places where found, as his timber or lumber, or appropriates it to his own use, shall be deemed guilty of larceny, grand or petit, as the case may be, and shall be punished accordingly.

Hlstory.-§3, Feb. 10, 1834; RS 2446; GS 3294; RG~ 6128 ; CGL 7229. ct.-§811.01, LarcenT.

706.20 Proceedings like those for estrays. -If any person shall take up any boat or other vessel adrift, he shall as in the case of estrays, make application to some justice of th~ peace of the district where such boat or vessel was taken up for his warrant to have the same valued and described by her kind, burthen and build, and shall proceed in all other respects and shall have the same benefits as directed in the case of estrays.

History.-§8, Nov. 21, 1828; RS 2033; GS 2555; RGS 3910; CGL 6817.

§707.01 ESTRAYS 2536

CHAPTER 707

ESTRAYS

'107.01 Definitions. 707.02 Maliciously taking up animals as estrays. 707.03 Failure to comply with regulations. 707.04 Who may take up estrays. 707.05 Proceedings for estrays broken to service. 707.06 Proceedings for other animals. 707.07 Justice to record certificate. 707.08 Clerk to record certificate and to advertise

estray. 707.09 Sale and disposition of proceeds in case

of horses, etc. 707.10 Sale and disposition of proceeds in case

of cattle, etc. 707.11 Claim by owner of estray. 707.12 Taker-up not responsible for death of

estray.

707.01 Definitions.- Cattle of all kinds, hogs, sheep and goats wandering about the neighborhood for six months, and stud-horses, geldings, mares, fillies, colts, asses and mules for three months, shall be considered estrays.


707.02 Maliciously taking up animals as estrays.-If any person shall vexatiously or maliciously take up any animal as an estray contrary to law, he shall be liable to an action for damages to the party injured.

History.- §7, Nov. 21, 1828; RS 2035; GS 2557; RGS 3912; CGL 5819.

707.03 Failure to comply with regulations. -Any person taking up any estray and failing or neglecting to comply with the regulations of this chapter relative to such estray, and being thereof duly convicted before a court of competent jurisdiction, shall for every such offense (except when otherwise provided) forfeit and pay a sum equal to double the value of the estray, which appraisement and and advertised as aforesaid, to be recovered by suit or action at law by any person who may prosecute for the same to the use of the county school fund.


707.04 Who may take up estrays.-Any person may take up all estrays that may be found straying away from their owners.

History.-§2037 RS 1892; GS 2559; RGS 3914; CGL 5821.

707.05 Proceedings for estrays broken to service.-If the estray has been broken to service, the person taking it up shall within five days take or drive it before the justice of the peace of the district, who shall take down in writing a full description of the estray, including a particular description of its marks, natural and artificial brands, stature, age and color, and shall immediately cause it to be appraised by two or more discreet persons of the vicinage, under his warrant, they being first sworn well and truly to ascertain the value of such estray so neglected to be tolled description, together with the name of the taker-up and his place of residence, the jus-

707.13 707.14 707.15 707.16

707.17 707.18

707.19

707.20 707.21

707.22

707.23

Estray may be put into service. Compensation to taker-up. Fees. • Clerks to render statement of proceeds of

sales. Penalty for malfeasance of justice or clerk. Owners of strayed animals may enter pas

ture of another to seek for same. Owner of strayed animals to notify owner

of pasture of intention to enter. Duty of owner of pasture to facilitate entry. Refusing entrance to pasture to seek stray

ed domestic animals. Stud horse or ass running at large may be

gelded by permission of justice of peace. Proceedings, when not gelded.

tice shall within five days transmit to the clerk of the circuit court, having special care that the taker-up do solemnly swear that he has not altered, or caused to be altered, the marks or brands of such estray, and that to the best of his knowledge and belief such marks or brands have, or have not (as the case may be), in any case been altered, r..nd that the owner is to him unknown.

History.-§1, F eb. 12, 1833; §1, Feb. 11, 1837; RS 2038; GS 2560; RGS 3915; CGL 5822.

707.06 Proceedings for other animals.-ln case any person shall take up any estrayed "eat cattle, sheep, goats or hogs, he shal, cause the same to be viewed by a householder in the county, and the taker-up shall be compelled to advertise said estray at least five days at the place of holding justice's courts, as in the district prior to tolling, and shall immediately thereafter go with such householder before the justice of the peace and make oath before him that the same was taken by him, and that the marks or brands of such estray have (or have not) to the best of his knowledge and belief been altered, and the said justice shall take from the taker-up and householder, upon oath, a particular and exact description of the marks and brands, color and age of all and every such neat cattle, sheep, goats or hogs, and such justice shall, in manner as above directed, issue his warrant for the appraisement of such estrays, which descript!on and valuation shall by said justice within five days be transmitted to the clerk of the circuit court, by him to be disposed of as hereinafter directed.

Hiotory.-§2, Feb. 12, 1833; RS 2039; GS 2561; RGS 3916 ; CGL 5823.

707.07 Justice to record certificate.- The justice shall enter a true copy of the certificate by him transmitted to the clerk of the circuit court in a book to be by him kept for that purpose.

Hlstory.-§3, Feb. 12, 1833; RS 2040; GS 2562; RGS 3917; CGL 5824.

707.08 Clerk to record certificate and to advertise estray.- The clerk of the circuit court in each county shall receive and enter

2537

in a book by him to be provided and kept for that purpose all such certificates of description or appraisement as to him shall be transmitted from the respective justices, and he shall also advertise the estray, with description, and the name of the taker-up, as returned to him by the justice of the peace, at the courthouse door of the county and in a newspaper published in the county once a week for four weeks.

Hlstory.-§4, Feb. 12, 1833; §2, Feb. 11, 1837; RS 2041; GS 2563; RGS 3918; CGL 5825.

707.09 Sale and disposition of proceeds in case of horses, etc.-The taker-up shall bring to the courthouse, or place of holding court in the county in which he resides, every such strayed horse, mare, colt, filly, ass or mule, on the first sheriff's sale day that shall happen after the expiration of the said advertisement, and the clerk of the circuit court of the county, on said sheriff's sale day, upon giving ten days' notice at such places as is usual for advertising the sheriff's sales of said county, shall cause the estray to be sold at public outcry to the highest bidder for cash, and pay over the proceeds of such sale to the clerk, after defraying the charges and fees directed for county school fund purposes. Every taker-up who shall neglect or refuse to comply with the requirements of this section shall be liable for double the amount of the appraisement to be recovered before a court of competent jurisdiction, which shall be applied to the use of the county school fund, after deducting the legal fees.

Hlstory.- §5, Feb. 12, 1833; §2, Feb. 11, ·1837; RS 2042· GS 2564; RGS 3919; CGL 5826. '

707.10 Sale and disposition of proceeds in case of cattle, etc.-In case any person shall take up as aforesaid any neat cattle, sheep, goats or hogs, and no person shall appear and make satisfactory proof that the said estray is his property, the justice of the peace before whom the estray h as been tolled, having given five days' notice by advertisement in two of the most public places in the justice's district wherein he resides, shall proceed to sell the said estray, at such place and by such person as he may consider most to the interest of the county upon one of his regular court days, between the usual hours for ready money, to the highest bidder: and the justices of the peace shall pay to the county treasury of their respective counties, within twenty days after receipt, all moneys in their hands that have arisen from the sale of estrays as aforesaid, deducting five per cent for commission and such other charges as are allowed by law.

Hlstory.-§6, F eb. 12, 1833; §3, Feb. 11, 1837; RS 2043; GS 2565; .RGS 3920; CGL 5827.

707.11 Claim by owner of estray.-If any person shall, within six months from the time of such sale, prove to the satisfaction of the board of county commissioners of the county that the estray so sold was his own property,

ESTRAYS §707.15

or that · of his employer (as th~ c.ase may be), the board of county comm1ss1oners shall, after, deducting the fees and charges hereinafter allowed, direct the money arising from such sale to be paid to the claimant of said estray. If no person shall so make proof, the boll.rd of county commissioners shall cause the moneys arising from such sale, after deducting the said fees and charges, to be paid to the county school fund.

Hlstory.-§7, Feb. 12, 1833; §2, Feb. 11, 1837; ·Rs 2044; GS 2566; RGS 3921; CGL 5828.

707.12 Taker-up not responsible for death of estray.-If after notice published as aforesaid any estray shall happen to die, or by any casualty get out of the possession of the person who took up the same without his default, such taker-up shall not be answerable for the same or the valuation thereof.


707.13 Estray may be put into service.-The taker-up of such estrays shall, as a compensation for maintaining and keeping the same, put them to immediate service (if capable of service), and if incapable, or if he should prefer it, receive from the owner, if the estray be claimed, or from the board of county commissioners, if it be sold, a reasonable satisfaction, to be adjudged by the clerk of the circuit court and a justice of the peace of the county according to the circumstances of the case. In case of putting such estray to labor, he shall be bound to produce the same to the owner, if claimed, or the clerk of the circuit . court, if sold (casualties excepted), in as good condition as when appraised.

Hlstory.-§9, Nov. 12, 1833; RS 2046; GS 2568; RGS 3923; CGL 5830.

707.14 Compensation to taker-up.- Upon the delivery of any such estray to the legal owner, or in case of sale, upon the sale thereof, the taker-up shall receive from the owner or the clerk of the circuit court, as the case may be, the sum of one dollar for each horse, mare, colt, filly, ass, mule or ox, in addition to the sum by him paid to the justice of the peace, and the sum of twelve and a half cents for each head of neat cattle, sheep, goats or hogs, in addition to the sum above mentioned for the keeping and maintaining of the same.


707.15 Fees.-The justice of the peace, for his services, shall receive from the taker-up, at the time such estray shall be brought before him, or description or valuation presented to him as above, the sum of twenty-five cents for each horse, mare, colt, filly, ass or mule, and the sum of six and one-quarter cents for each head of neat cattle, sheep, goats or hogs. The clerk of the circuit court shall receive, for the receiving, entering and publishing every certificate as above directed, the sum of six cents, to be paid by the owner claiming the property, or deducted from the moneys arising from the sale of such property, and the further sum

§707.16 ESTRAYS

of five per cent upon the balance of such money as a compensation for selling or collecting and paying.

Hlstory.-§§8, 11, Nov. 12, 1833; RS 2048; GS 2570; RGS 8925; CGL 5832.

707.16 Clerks to render statement of proceeds of sales.-The clerk of the circuit court in each county shall render to the chairman of the board of county commissioners annually a true statement of all moneys arising from the sale of estrays as aforesaid, accompanied with the proper vouchers, and exhibit a correct statement as aforesaid to the grand jury at every fall term thereof, if required.

Hlstory.-§12, Nov. 12, 1833; RS 2049; GS 2571; RGS 3926 ; CGL 5833.

707.17 Penalty for malfeasance of justice or clerk.-If any justice of the peace or clerk of the circuit court shall refuse or neglect to perform the duties requued by this chapter, chapter 705, or chapter 706; such justice or clerk so neglecting or refusing shall for every such neglect or refusal forfeit the sum of ten dollars to the use of the county school fund of the county where such offense shall be committed, to be recovered by action of debt in any court having jurisdiction of the same, and shall moreover be liable to an action of damages to the party injured.

Hlstory.-§14, Nov. 12, 1833; RS 2050; GS 2572; RGS 3927; CGL 5834.

707.18 Owners of strayed animals may enter pasture of another to seek for same.-It shall be lawful for the owner or owners of any cattle or other domestic ar.lmals or the agent or agents of said owners to enter the pasture of another for the sole purpose of seeking and recovering any cattle or other domestic animals that may have strayed or broken into, or which may have been driven into, such inclosure, inadvertently or otherwise and to drive from such inclosure ~my cattle or other domestic animals belonging to such owners or under the control of such agent or agents so entering.


707.19 Owner of strayed animals to notify owner of pasture of intention to enter.-The owners of any cattle or other domestic animals or their agent or agents, desiring to enter any pasture of another for the purpose as set forth in §707.18, shall notify the owner or owners or their agent or agents of the time and place they desire to enter such pasture for the purposes set forth in said section. Such notice may be given verbally or in writing.

Hlstory.-§2, ch. 5417, 1905 ; RGS 3929; CGL 6836.

707.20 Duty of owner of pasture to facilitate entry.-The owner or owners, their agent or agents shall facilitate the entering into any pasture owned by them or controlled by their agent or agents when request is made by any party or parties entitled to the benefits of

2538

§707.18, the request to be made according to §707.19.

Hiotor;,-.-§3, ch. 6417, 1905; RGS 3930; CGL 6837.

707.21 Refusing entrance to pasture to seek strayed domestic animals.-Any person or owner of any pasture, who refuses to allow entrance or who hinders any owner or owners of cattle or other domestic animals, or their agent or agents, who have complied with §707.19, either by their own acts ox· the acts of their agent or agents, shall be deemed guilty of a misdemeanor, and when convicted of the same by a competent court having jurisdiction thereof, shall be fined in a sum not to exceed two hundred dollars for each and every such offense, or by imprisonment in the county jail at hard labor not to exceed one month. Provided, that this section shall not apply to any county having no-fence districts.

History.-§§1, 4, ch. 5417, 1905; RGS 5238; CGL 7357. ct.-§775.06, Alternative punishment.

707.22 Stud horse or ass running at large may be gelded by permission of justice of peace.-It shall not be lawful for any studhorse or ass to run at large, and if any such shall be found running at large, any person may take up the same, and having taken him before the justice of the peace of the district, may geld the same stud-horse or ass, with the permission of the justice, taking care that the operation be performed by a person usually doing such business, for which the person so gelding shall receive five dollars, to be paid by the owner of the horse or ass, to be recovered from him by summary proceedings before a justice of the peace. But if any person shall take up and geld such stud-horse or ass contrary to §§707.22 and 707.23, or without fully pursuing the directions of this section, he shall for every such offense forfeit to the party injured double the value of such horse or ass, to be recovered in a court of competent jurisdiction.

History.-§11, Nov. 21, 1828; RS 2051, 2052; GS 2573; RGS 3931; CGL 5838.

707.2.3 Proceedings, when not gelded.-Any person who shall take up any stud-horse or ass, and may not choose to geld him, may take him before the justice of the peace of the district, and shall cause the said horse or ass with his brands and marks, if he has any, and if not, with a description of him, to be advertised is not less than three of the most public places of the county, and the person taking up said horse or ass shall recover from the owner thereof, before the proper justice of the peace, the sum of five dollars and all reasonable expenses of keeping such horse or ass. If such stud-horse or ass shall not be claimed by any person within ten days the person taking up the stud-horse or ass shall proceed as in other cases of estrays but in no case shall he forfeit or lose the' sum of five dollars and all reasonable expenses allowed him by this chapter.

History.-~12, Nov. 21, 1828 ; RGS 3932 ; CGL 5839 .

2539 MARRIED WOMEN'S PROPERTY §708.08

CHAPTER 708

MARRIED WOMEN'S PROPERTY

708.01 Rights reserved under the Spanish laws. 708.06 Right to wages and earnings. 708.02 Right to separate property. 708.07 Specific performance against married 708.03 Custody and management of such property. woman. 708.04 Sales and conveyances. 708.08 Married women's rights; separate property. 708.05 Husband not liable for antenuptial debts 708.09 Same; agreements with husband, power of

of wife. attorney, etc.

708.01 Rights reserved under the Spanish laws.-Whereas some doubts have been entertained as to the effect and operation of the introduction of the common law of England upon the separate rights of husband and wife under the laws of the provinces of East and West Florida upon marriages solemnized before the change of government; to obviate any donbts in future, be it enacted, that all the rights and privileges of husband and wife established or derived by marriage under the civil laws of Spain while this state was under the jurisdiction of that government, shall be held, possessed and exercised by the husband and wife respectively in this state, and each shall be permitted to sell, succeed to, dispose of and convey by sale, devise or will their goods, chattels, lands and tenements in the same manner as they could or might have done under the laws of Spain, observing only the formalities of conveyance required by any other laws established, or which may hereafter be established, in this state.

History .-§1, D ec. 23, 1824; RS 2069; GS 2587 ; RGS 3946; CGL 5865.

708.02 Right to separate property.- All property rea l and personal, of a wife, owned by her before marriage or lawfully acquired afterward by gift, devise, bequest, descent, or purchase, ·shall be her separate property, and th~ same shall not be liable for the debts of her husband without her consent given by some instrument in writing executed according to the law respecting conveyances by married women.

History.-§§1, 2, March 6. 1945; RS 2070; GS 2588; RGS 3947; CGL 5866. cf.-§2, Art. XI, Canst.

708.03 Custody and management of such property.-The property of the wife shall remain in care and management of the husband but he shall not charge for his care and management, nor shall the wife be entitled to sue her husband for the rent, hire, issues, proceeds or profits of her said property.

History.-§ §1, 3, March 6, 1845; RS 2071; GS 2589; RGS 3948; CGL 5867. cf.-§§62.27 through 62.31, Removal of disabilities of mar

ried women.

708.04 Sales and conveyances.-The husband and wife shall join in all sales, transfers and conveyances of the property of the wife, other than personal property and chases in action.

History.-§4, March 6, 1845; RS 2072; GS 2590; RGS 3949; §1, ch. 12255, 1927 ; CGL 5868.

708.10 Same; construction of law.

708.05 Husband not liable for antenuptial debts of wife.-The husband shall not be liable to pay the debts of the wife contracted before marriage, but the property of the wife shall be subject to such debts.

Hiotory.-§5, l\i"arch 6, 1845; RS 2073; GS 2591; RGS 3950; CGL 5869.

708.06 Right to wages and earnings.- A married woman's wages and earnings acquired by her in any employment separate from her husband shall be her separate property and subject to her own disposal, and she shall be entitled to sue for and recover the same as though she were a single woman.

History.-§2076 RS 1892 ; GS 2593; RGS 3952; CGL 5871.

708.07 Specific performance against married woman.-Coverture shall not prevent a decree against husband and wife or either of them to specifically perform their written agreement to sell or convey the separate property of the wife or to relinquish her right of dower in the property of the husband, regardless of whether the same shall be acknowledged or not.

History.-§2076 RS 1892; GS 2594; RGS 3953; CGL 5872; am. §1, ch. 23820, 1947.

708.08 Married women's rights; separate property.-Every married woman is hereby empowered to take charge of, and manage and control her separate property, to contract and to be contracted with, to sue and be sued, and to sell, convey, transfer, mortgage, use and pledge her property, real and personal, and to make, execute and deliver instruments and documents of every character, without restraint, without the joinder or consent of her husband, in all respects as fully as if she were unmar ried. Every married woman, without the joinder or consent of her husband, shall have and may exercise all rights and powers with respect to her separate property, income and earnings, and may enter into, obligate herself to perform, and enforce contracts or imdertakings to the same extent and in like manner as if she were unmarried· provided, however, that no deed, mortgage or other instrument conveying or encumbering real property owned by a married woman shall be valid without the joinder of h er husband; provided, further, that any claim or judgment against any married woman shall not be a claim or lien against such married woman's inchoate right of dower in her husband's separate property.

History.-§1, ch. 21932, 1943. cf.-§46 .10, Righi to sue intlividua lly.

§§62.27 through 62.31, Removal of disabilities of mar-ried women.

§689.01 et seq., Conveyances of r eal property §689.11, Conveyance between hus b a nd and wife §693.01, Requiring Joinde r o f husband. · §693.03. M a rri ed women's acknowledgments.

§708.09 MARRIED WOMEN'S PROPERTY

708.09 Same; agreements with husband, power of attorney, etc.-Every married woman may enter into agreements and contracts with her husband, may become the partner of her husband or others, may give a power of attorney to her husband, and may execute powers conferred upon her by her husband, including the power to execute and acknowledge deeds to property owned by her or by herself and her husband as tenants by the entirety or by her husband. All powers of attorney heretofore executed by a wife to her husband and vice versa, and the execution of all documents executed thereunder, are hereby validated and confirmed.

History .-§1, ch. 21696, and §2, cb. 21932, 1943.

2540

708.10 Same; construction of law.-This law shall not be construed as (1) relieving a husband from any duty of supporting and maintaining his wife and children; (2) abolishing estates by the entireties or any of the incidents thereof; (3) abolishing dower or any of the incidents thereof; ( 4) changing the rights of either husband or wife to participate in the distribution of the estate of the other upon his death, as may now or hereafter be provided by law; (5) dispensing with the joinder of husband and wife in conveying or mortgaging homestead property.

History.- §3, cb. 21932, 1943.

2541 POWERS OF ATTORNEY AND SIMILAR INSTRUMENTS §709.07

CHAPTER 709

POWERS OF ATTORNEY AND SIMILAR INSTRUMENTS

709.01 Power of attorney; authority of nominee when principal dead.

709.02 Power of appointment; method of release. 709.03 Same; property held in trust.

709.01 Power of attorney; authority of nomin~e when principal dead.-If any agent, constituted by power of attorney or other authority, shall do any act for his principal which would be lawful if such principal were living, the same shall be valid and binding on the estate of said principal, although he or she may have died before such act was done; provided, the party treating with such agent dealt bona fide, not knowing at the time of the doing of such act that such principal was dead. An affidavit, executed by the attorney in fact or agent setting forth that he has not or had not, at the time of doing any act pursuant to the power of attorney, received actual knowledge or actual notice of the death of the principal, or notice of any facts indicating his death, shall in the absence of fraud be conclusive proof of the absence of knowledge or notice by the agent of the death of the principal at such time. If the exercise of the power requires the execution and delivery of any instrument which is recordable under the laws of this state, such affidavit shall likewise be recordable. No report or listing, either official or otherwise, of "missing" or "missing in action" regarding any person in connection with any activity pertaining to or connected with the prosecution of any war in which the United States is then engaged, as such words "missing" or "missing in action" are used in military parlance, shall constitute or be interpreted as constituting actual knowledge or actual notice of the death of such principal, or notice of any facts indicating the death of such person, or shall operate to revoke the agency.

Illstory.-§1, ch. 23011, 1945.

709.02 Power of appointment; method of release.-Powers of appointment over any property, real, personal, intangible or mixed, may be released, in whole or in part, by a written instrument signed by the donee or donees of such powers. Such written releases shall be signed in the presence of two witnesses but need not be sealed, acknowledged or recorded in order to be valid, nor shall it be necessary to the validity of such releases for husbands of married donees to join such donees in the execution of releases, in whole or part, of powers of appointment.

Hletory.-§1, ch. 23007, 1945.

709 .04 Same: effect of revocation. 709.05 Same; prior powers validated. 709.06 Same; powers included in law. 709.07 Same; effect on title to property.

709.03 Same; property held in trust.-If property subject to a power of appointment is held in trust by a person, firm or corporation other than the donee or donees of the power, a written release, in whole or in part, of a power to appoint the same shall be delivered to such trustee or trustees before the written release becomes legally effective. In no other instance shall a delivery of a release, in whole or in part, of a power of appointment be necessary to the validity of such release.

Histo r y .- §2, ch. 23007, 1945.

709.04 Same; effect of revocation.-Any power of appointment wholly released by a written instrument signed by the donee or donees of such power shall be, in legal effect, completely revoked, and shall not, after such release, be subject to being exercised in any manner whatsoever. Any power of appointment partially released by a written instrument signed by the donee or donees of such power shall be, in legal effect, as to such released part, completely revoked, and shall not after such release be subject to being exercised in any manner whatsoever as to such released part.

History.-§3, ch. 23007, 1945.

709.05 Same; prior powers validated.-All releases, in whole or in part, of powers of appointment heretofore executed in a manner that conforms with the provisions of this law be and they are hereby validated and shall be given the same force and effect as if executed subsequently to the effective date of this law.

History.-§4, ch. 23007, 1945.

709.06 Same; powers included in law.Powers of appointment referred to in this law shall include not only those recognized as such by general law but also those designated as such under the tax law of the United States.

llistory.-§5, ch. 23007, 1945.

709.07 Same; effect on title to property.-No such release, in whole or in part, of a power of appointment shall affect the title to property of any bona fide purchaser for value who does not have notice or knowledge of such release.

llistory.-§7, ch. 23007, 1945.

§715.01 PROPERTY GENERALLY 2542

CHAPTER 715

PROPERTY GENERALLY 715.01 Title to personal property found in public

places.

715.01 Title to personal property found in public places.-The titl.e to all personal prop~rty found in or upon pubhc conveyances, premises at the time used for business purposes, parks, places of amusement, public recreation areas and other places open to the public is hereby vested in the finder unless the same be called for or claimed by the rightfu l owner thereof within six months after the finding thereof. Employees of public transportation systems shall be deemed agents of such transportation sys

. terns and personal property found on public conveyances, in depots, and garages of said transportation system shall be turned in to the proper person or department designated to receive such property by the said transportation systems, and such property shall be securely kept for the period of time as required by this section after which time if unclaimed by the rightful owner the title of such property shall

715 .02 Prohibiting recovery from seller of forfeited deposit or down payment made by check, draft, or obligation refused through no fault of seller.

be vested in the transportation system and not in the employee.

Hlstory.-§1, cb. 24313, 1947.

715.02 Prohibiting recovery from seller of forfeited deposit or down payment made by check, draft or obligation refused through no fault of seller.-In any action by any person against the seller of real property for any share of a forfeited deposit or down payment by a prospective purchaser, no check, draft or other obligation of such prospective purchaser shall be construed to be a deposit and the action shall not be maintained by any person against the seller by reason thereof, if payment of said check, draft or obligation is refused through no fault of the seller, notwithstanding any recitation of a receipt of said deposit in any written agreement.

History .-§1, cb. 24304, 1947. Am. §11, ch. 25035, 1949.

2543 ESCHEATS, F ORFEITURE, ETC. §716.02

CHAPTER 716

ESCHEATS, F ORFEITURE, ETC.

716.01 Declaration of policy. 716.02 Escheat of funds in the possession of fed

eral agencies. 716.03 Comptroller may recover federal funds . 716.04 Jurisdiction.

716.01 Declaration of policy.-It is hereby declared to be the policy of the State of Florida, while protecting the interests of the owners thereof, to possess all unclaimed and abandoned money and property for the benefit of all the people of the State of Florida, and this law shall be liberally construed to accomplish such purpose.

Hi otnry.- §1, c h . 24333, 1947.

716.02 Escheat of funds in the possession of federal agencies.-All property within the provis ions of subsections (1), (2 ) , (3 ) , (4) and (5) of this section, are declared to have escheated, or to escheat, including all principal and interest accruing thereon, and to have become the property of the State of Florida.

(1) All money or other property which has rema ined in, or has been deposited in the custody of, or under the control of, any court of the United States of America, in and for any district within this state, or which has been deposited with and is in the custody of any depository, registry, clerk or other officer of such court, or the United States treasury, which money or other property the rightful owner or owners thereof, either:

(a ) Has been unknown for a period of five or more consecutive years; or,

(b) Has died, without having disposed thereof, and without having left heirs, next of kin or distributees, or

(c ) Has made no demand for such money or other property for five years; are declared to have escheated, or to escheat, together with all interest accrued thereon, and to have become the property of the State of Florida.

(2) After June 16, 1947, all money or other property which has remained in, or has been deposited in the custody of, or under the control of, any court of the United States, in and for any district within this state, for a period of four years, the rightful owner or owners of which, either:

(a ) Shall have been unknown for a period of four years; or,

(b ) Shall have died without having disposed thereof, and without having left or without leaving heirs, next of kin or distributees; or,

(c) Shall have failed within four years to demand the payment or delivery of such funds or other property; is hereby decla red to have escheated, or to escheat, together with all interest accrued thereon, and to have become the property of the State of Florida.

· (3) All money or other property which has remained in , or has been deposited in the custody of, or under the control of any officer, department or agency of the United States for five or more consecutive years, which money or other

716.05 Money recovered to be paid into the state treasury.

716 .06 Public records. 716.07 Recovery of escheated property by claimant.

property had its situs or source in this state, except as hereinafter provided in subsection ( 4) of this section, the sender of which is unknown, or who sent the money or other property for an unknown purpose, or money which is credited as "unknown", and which said governrr:ental agency is unable to credit to any particular account, or the sender of which has been unknown for a period of five or more consecutive years; or when known, has died without haying disposed thereof, and without leaving

• heirs, next of kin or distributees, or for any reason is unclaimed from such governmental agency.

(4) In the event any money is due to any resident of this state as a refund, rebate or t ax r ebate from the United States commissioner of in ternal r evenu e, the Un ited States treasurer, or other governmental agency or department which sa id resident will, or is likely to have hi~ rights to apply for and secure such refund or r ebate barred by any statute of limitations or in any eyent, ~as fa iled for a period of one yea; after said resident could have filed a cla im for ~aid. refund or reb~te, the comptroller of FlorIda IS hereby appomted agent of such resident to demand, file and apply for said refund or rebat~, and is hereby appointed to do any act which a natural person could do to recover said money, and it is hereby declared that when the comptroller files said application or any other proceeding to secure said refund or rebate his agency is coupled with an interest in the m~ney sought and money recovered.

(5) It is the purpose of this chapter to includ~ all funds or other property in the possessiOn of the government of the United States of America, and of its department officers and agencies, which property has its 'situs in' this state or belonged to a resident thereof and not to li!fiit the applic3:tion of this chapt~r by the namm.g of any particular agency. This chapter shall mclude all funds held in the veterans administration, comptroller of currency, United States treasury, department of internal revenue federal courts, registry of federal courts and ~uch evidences of indebtedness as adjusted'servIce bonds, old matured debts issued prior to 191 y, unclaimed :'1-nd interest thereon, postal savmgs bonds, liberty bonds, victory notes, ~reasury bonds, treasury notes, certificates of mde.btedness, t reasury bills, treasurer's saving certificates, bonuses and adjusted compensation, allotments, and a ll unclaimed refunds or rebates of whatever kind or nature, which are subjects o~ escheat, under the terms of this chapter. ProVIded, however, that nothing in this chapter shall be construed to mean that any funds now held or controlled by the United States postal savings deposits or any refunds due ratepayers

§716.03 ESCHEATS, FORFEITURE, ETC.

under order of any court of the United States of America shall become property of the state. Provided, however, that nothing in this chapter shall be construed to mean that any refunds due ratepayers under order of any court of the United States of America shall become the prop· erty of the state.

History .- §2, ch . 24333, 1947. A m . §11, c h . 25035, 1949.

254-l-

five days after receipt of such claim, shall submit said verified claim or a verified copy thereof, to the comptroller. All claims made for recovery of property, funds or money, not filed within five years from the date that said property, funds or money is received by the state treasurer, shall be forever barred, and the treasurer of the State of Florida shall be without power to consider or determine any claims so made by any claimant after five years from the

716.03 Comptroller may recover federal date that the property, funds or money was refunds.-When t here exist s, or may exist, ceived by the state treasurer. The comptroller, escheated f unds or property under this chapter, shall, within thirty days after he has received the compt roller shall demand and /or institute said claim from the state treasurer, approve or proceedings in the name of t he State of Florida disapprove the same. If the claim is approved, for an adj udication that an escheat to the State the funds, money or property of the claimant, of Florida of such funds or property has oc- less any expenses and costs which shall have cm·red; and shall take appropriate action to been incurred by the state in securing the pos-recover such funds or property. • session of said property, as provided by this

History .-§3, ch . 24333, 1947 . chapter, shall be delivered to him by the state A m . §11, cb . 25035, 1949. treasurer upon warrant issued according to law

716.04 Jurisdiction.-Whenever the comptroller is of the opinion an escheat has occurred, or shall occur, of any money or other property deposited in the custody of, or under the control of, any court of the United States, in and for any district within the State of Florida, or in the custody of any depository, registry or clerk or other officer of such court, or the treasury of the United States, he shall cause to be filed a complaint in the circuit court of Leon county, Florida, or in any other court of competent jurisdiction, to ascertain if any escheat has occurred, and to cause said court to enter a judgment or decree of escheat in favor of the State of Florida, with costs, disbursements and attorney fee.

llistory.-§4, c b. 24333, 1947.

716.05 Money recovered to be paid into the state treasury.-When any funds or property which have been escheated within the meaning of this chapter, shall have been recovered by the comptroller, he shall first pay all costs incident to the collection and recovery of such funds and property, and shall promptly deposit the remaining balance of said funds or property with the treasurer of the State of Florida, to be distributed in accordance with law.

Hlstory.- §5, ch. 24333, 1947.

716.06 Public records.-All records in the office of the state treasurer or comptroller relating to federal funds, pursuant to this chapter, shall be public records.

Hlstory.-§6, ch. 24333, 1947.

716.07 Recovery of escheated property by claimant.-Any person who claims any property, funds or money delivered to the state treasurer under this chapter, shall, within five years from the date of receipt of said property, funds or money, file a verified claim with the state treasurer, setting forth the facts upon which said party claims to be entitled to recover said money or property. The state treasurer, within

and his receipt taken therefor. If the comptroller shall disapprove the claim so filed, upon the ground that it does not show or state facts legally sufficient to entitle said claimant to recover said property, funds or money, then the claimant may file a verified petition or complaint in the circuit court of Leon county, Florida, naming therein the treasurer and the comptroller of the State of Florida as defendants in said action, setting forth in said petition or complaint all the facts supporting his claim to said property, funds or money. A hearing on said petition or complaint shall b'e held by the court not less than thirty nor more than sixty days from the date of the filing of said petition or complaint, and a copy of said petition or complaint, and notice of the date of hearing, must be served upon the comptroller and the state treasurer within ten days from the date of filing thereof; the comptroller and the state treasurer may plead to or answer said petition or complaint, as in other chancery actions. Any party interested and aggrieved by the decision of said court may appeal from such decision or judgment to the supreme court of Florida, as provided by law for appeals in chancery cases. After hearing of the issues upon the merits of the case, if the court finds that the petitioner or plaintiff is entitled to the property, money or funds claimed, and shall render judgment in his or its favor, declaring that the petitioner or plaintiff is entitled to said property, funds or money, then upon presentation of said judgment or a certified copy thereof to the state comptroller, said comptroller shall draw his warrant for the amount of money stated in said judgment, without interest or cost to the state, less any sum paid by the state as costs or expenses in securing possession of said property, funds or money. When payment has been made to any claimant, no action thereafter shall be maintained by any other claimant against the state or any officer thereof, for or on account of said money, property or funds.

Hlstor,·.-§7, ch. 24333, 1947.

TITLE XL STATUTE OF FRAUDS, FRAUDULENT CONVEYANCES AND

GENERAL ASSIGNMENTS

CHAPTER 725 UNENFORCEABLE CONTRACTS

725.01 Promise to pay another's debt, etc. 725.02 Contracts to sell personalty.

725.01 Promise to pay another's debt, etc.No action shall be brought whereby to charge any executor or administrator upon any special promise to answer or pay any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements or hereditaments, or of any uncertain interest in or concerning them, or for any lease thereof for a period longer than one year, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized.

History.- §10, N ov. 15, 1828 ; RS 1995 ; GS 2517; R G S 3872 ; CGL 5779.

725.03 Newspaper subscription.

725.02 Contracts to sell personalty.- No contract for the sale of any personal property, goods, wares or merchandise shall be good, unless the buyer shall accept the goods (or part of them) so sold and actually receive the same, or give something in earnest to bind the bargain or in part payment, or some note or memorandum in writing of the said bargain or contract be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.

Hiotory.-§11, Nov. 15, 1828 ; RS 1996 ; GS 2518; RGS 3873; CGL 5780.

725.03 Newspaper subscription.-No person shall be liable to pay for any newspaper, periodical or other like matter, unless he shall subscribe for or order the same in writing.

Hlstory.-§1, ch. 379, 1851 ; RS 1997 ; GS 2519; RGS 3874; CGL 5781.

2545

§726.01 FRAUDULENT CONVEYANCES, SALES, AND LOANS 2546

CHAPTER 726 FRAUDULENT CONVEYANCES, SALES, AND LOANS

726.01 Fraudulent conveyances void. 726.06 Punishment for making false statements to 726.02 Vendee of stock of goods in bulk to de- vendee of stock of goods in bulk.

mand from vendor statement of creditors, 726.07 Fraudulent conveyance void against sub-etc. sequent purchasers.

726.03 Notice to creditors by vendee. 726.08 Conveyances with power of revocation void 726.04 Sale without notice to creditors presumed against subsequent purchasers.

fraudulent. 726 .09 Fraudulent loans void. 726.05 What sales deemed fraudulent; proviso. 726.10 Watches, used ; sales regulated.

726.01 Fraudulent conveyances void.-Every to each of such creditors; and it shall be feoffment, gift, grant, alienation, bargain, sale, th~ duty of such vendor to furnish such stateconveyance, transfer and assignment of lands, ment, whether he be a wholesale or a retail tenements, hereditaments, and of goods and merchant. chattels, or any of them, or any lease, rent, History.-§1, ch. 5679, 1907; RGS 3865; CGL 5772.

use, common or other profit, benefit or charge 726.03 Notice to creditors by vendee.-whatever out of lands, tenements, heredita- Thereupon it shall be the duty of the purments or goods and chattels, or any of them, chaser, at least five days before the comby writing or otherwise, and every bond, note, pletion of said purchase, or the payment thercontract, suit, judgment and execution which for, to notify personally or by registered mail, shall at any time hereafter be had, made or executed, contrived or devised of fraud, covin, each of said creditors of the said proposed collusion or guile, to the end, purpose or in- sale, the price to be paid therefor, and the

terms and conditions thereof. tent to delay, hinder or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, demands, penalties or forfeitures, shall be from henceforth as against the person or persons, or bodies politic or corporate, his, her or their successors, executors, administrators and assigns, and every one of them so intended to be delayed, hindered or defrauded, deemed, held, adjudged and taken to be utterly void, frustrate and of none effect, any pretense, color, feigned consideration, expressing of use or any other matter or thing to the contrary notwithstanding; proviued, that this section, or anything therein co:r;.tained, shall not extend to any estate or interest in lands, tenements, hereditaments, leases, rents, uses, commons, profits, goods or chattels which shall be had, made, conveyed or assured if such estate shall be, upon good consideration and bona fide, lawfully conveyed or assured to any person or persons, or body politic or corporate, not having at the time of such conveyance or assurance to them made any manner of notice or knowledge of such covin, fraud or collusion as aforesaid, anything in this section to the contrary notw ithstanding.

History.-§1, Jan. 28, 1823; RS 1991; GS 2513; RGS 3864; CGL 5771; am. §7, ch. 22858, 1946.

726.02 Vendee of stock of goods in bulk to demand from vendor statement of creditors, etc.-It shall be the duty of every person who shall bargain for or purchase any stock of goods, wares or merchandise in bulk for cash or credit, before paying or delivering to the vendor any part of the purchase price therefor. to demand and receive from the vendor thereof, and if the vendor be a corporation, then from the managing officer or agent thereof. a written statement under oath of the names and addresses of all the creditors of said vendor, together with the amount of indebtedness due or owing by the said vendor


726.04 Sale without notice to creditors presumed fraudulent. -When any person shall purchase any stock of goods, wares or merchandise in bulk, and shall pay the price or any part thereof, or execute or deliver to the vendor thereof, or to his order, or to any person for his use, any promissory note, or other evidence of indebtedness, for said purchase price, or any part thereof, without having first demanded and received from said vendor the statement under oath mentioned in §726.02, and without first giving to each of the creditors whose names have been furnished by said vendor the notice provided for in §726.03, such sale or transfer shall, as to any and all creditors of the vendor, be presumed to be fraudulent.


726.05 What sales deemed fraudulent; proviso.-Any sale or transfer of a stock of goods, wares or merchandise out of the usual or ordinary course of business or trade of the vendor, or whereby substantially the entire business or trade theretofore conducted by the vendor shall be sold or conveyed, or attempted to be sold or conveyed, to one or more persons, shall be deemed a fraudulent transaction or transfer in bulk in contemplation of §§726.02-726.06 ; provided, that nothing contained in said sections shall apply to sales by executors, administrators, receivers or any public officer under judicial process.


7 26.06 Punishment for making false statements to vendee of stock of goods in bulk.Any vendor of a stock of goods, wares or merchandise in bulk who shall knowingly or willfully make or deliver, or cause to be made or delivered, any fal se statement or any statement of which any material portion is false,

2547 FRAUDULENT CONVEYANCES, SALES, AND LOANS ~726. 10

or shall fail to include the names of all his creditors in any such statement, as is required in §726.02, shall be guilty of a misdemeanor. ana upon conviction thereof shall be punished by a fine of not more than five hundred dollars or oy imprisonment for not more than six months.


726.07 Fraudulent conveyance void against subsequent purchasers. -Every feoffment, deed, conveyance, mortgage, grant, charge, lease, transfer, assignment, estate, encumbrance, interest, and limitation of use or uses of. in or out of any lands, tenements or other hereditaments whatsoever, which shall at any time hereafter be had, made, executed or contrived for the intent and purpose of defrauding and deceiving such person or persons, bodies politic or corporate, as shall afterward purchase the same lands, tenements and hereditaments, or any part thereof, or any estate, ~nterest, rent, property, right or commodity, m, to or out of the same, or any part thereof, so formerly conveyed, granted, leased, charged transferred, assigned, encumbered or limited in use, shall be deemed, adjudged, taken and held as against the person or persons, bodies politic or corporate, their heirs, successors executors, administrators and assigns and against all and every person and person; lawfully having or claiming by, from, through or under them, or any of them who shall have so purchased for money or other good consideration · the same lands, tenements or heredita~ents, or any part thereof, or any estate, right, mterest, profit, benefit or commodity, in, to or out. of the same, to be utterly void, frustrate ax:d of ?one effect, any pretense, feigned consideratiOn or expressing of use or uses to the contrary notwithstanding; provided that nothing in this section contained shall e~tend or be construed to impeach, make void or frustrate any conveyance, assignment or lease, ass.ur~nc~, grant, charge, lease, estate, interest or hmitahon, or use or uses of, in, to or out of any lands, tenements or hereditaments, which sh1lll be made upon and for good consideration an~ ?ona fide, to any person or persons, bodies pohhc or corporate, anyth ing in this section t o the contrary notwithstanding.

38~~~·tc<Ji..-Jii6 . .Jan. 28, 1823; RS 1992; GS 2514; RGS

726.08 Conveyances with power of revocation void against subsequent purchasers. -If any person or persons shall make any conv_eyance, gift, grant, demise, charge, limitation of use or uses, or assurance of, in or out of any lands, tenements or hereditaments, witb any clause, provision, article or condition of revocation, determination or alteration at his her or their will or pleasure, of such con~ veyance, gift, assurance, grant, demi-;e, charge limitation of use or uses contained in th~ same, or in any other writing whatever of in or out of the said lands, tenements o; heredibments, or any part and parcel of them, and after such conveyance, grant, gift, de-

mise, charge, limitation of uses or assurance so made or had, shall or do bargain, sell, demise, ·grant, convey, transfer or charge the same lands, tenements or hereditaments, or any part or parcel thereof, or any estate, right or interest in the same to any other person or persons, bodies politic or corporate, for mnney or other good consideration (the said first conveyance, assurance, gift, grant, demise, charge or limitation not being revoked, made void or altered according to the power and authority reserved or expressed in and by the said first conveyance or other writing), then the said former conveyance, assurance, grant, demise, charge or limitations, as touching the said lands, tenements and hereditaments and estate, right or interest in the same so afterward bargained, sold, granted, conveyed, demiged, transferred or charged, as against the said bargainees, vendees, grantees, lessees and every of them, their heirs, successors, executors, administrators and assigns, and as against all and every person and persons who shall or may lawfully claim by, thnmgh, from or under them, or any of them, shall be deemed, taken and adjudged to be void and of none effect.

History.- §3, .Jan. 28, 1823; RS 1993; GS 2515; RGS 3870; CGL 5777.

726.09 Fraudulent loans void.-When any loan of goods and chattels shall be pretended to have been made to any person with whom or those claiming under him, possession shall have remained for the space of two years without demand and pursued by due process of law on the part of the pretended lender, or where any reservation or limitation shall be pretended to have been made of a use or property by way of condition, reversion, remainder or otherwise in goods and chattels, and tht possession thereof shall have remained in an· other as aforesaid, the same shall be taken, as to the creditors and purchasers of the per,;;ons aforesaid so remaining in possession, tc be fraudulent within this chapter, and the absolute property shall be with the possession, unless :;uch Joan, reservation or lirnitation ot use or property were declared b:y will or deed in writing proved and recorded.

History.-§4, .Jan. 28, 1823; §1, ch . 872, 1859; RS 1994; GS 2516; RGS 3871; CGL 5778.

726.10 Watches, used; sales regulated.(1) The purpose of this law is to identify all

watches other than new, with a label or designation of "used" in order to safeguard the public from being misled in purchasing used, rebuilt or reconditioned watches as new.

(2) Any person, firm, partnership, association or corporation engaged in the business of buying or selling watches, or any agent or servant thereof, who shall sell or exchange, or offer for sale or exchange, expose for sale or exc:hange, possess with the intent to sell or exchange, or display with the intent to sell or exchange any used watch, shall affix and keep affixed to the same a tag with the word "used" clearly and legibly written or printed thereon, and the said

§726.10 FRAUDULENT CONVEYANCES, SALES, AND LOANS 254

tag shall be so placed that the word "used" shall be in plain sight at all times.

(3) Any person, firm, partnership, association or corporation engaged in the business of buying or selling watches, or any agent or servant thereof, who shall sell a used watch or in any other way pass title thereto shall deliver to the vendee a written invoice bearing the words "used watch" in bold letters larger than any of the other written matter upon said invoice. Said invoice shall further set forth the name and address of the vendor, the name and address of the ' vendee, the date of the sale, the name of the watch or its maker, and the serial numbers (if any), and any other distinguishing numbers or identification marks upon its case and movement. If the serial numbers or other distinguishing numbers or identification marks shall have been erased, defaced, removed, altered or covered, said invoice shall so state. The vendor shall keep on file a duplicate of said invoice for at least two years from the date of the sale thereof, which shall be open to inspection during all business hours by the sheriff or any prosecuting officer of the county in which the vendor is engaged in business.

( 4) Any person, firm, partnership, association or corporation, or any agent or servant thereof, who may advertise or display in any manner a used watch for sale or exchange shall state clearly in such advertisement or display that said watch is a used watch.

(5) A watch shall be deemed to be used if: (a) It as a whole or the case thereof or the

movement thereof has been previously sold to or acquired by any person who bought or acquired the same for his use or the use of another, but not for resale; provided, however, that a watch which has been so sold or acquired and is there-

after returned either through an exchange or for credit to the original individual, firm, partnership, association or corporation who sold or passed title to such watch within ten days after the sale or acquisition thereof, shall not be deemed to be a used watch for the purpose of this section, if such vendor shall keep a written or printed record setting forth the name of the purchaser thereof, the date of the sale or transfer thereof and the serial number (if any) on the case and the movement, and any other distinguishing numbers or identification marks, which said record shall be kept for at least two years from the date of such sale or transfer and shall be open for inspection during all business hours by the sheriff or any prosecuting officer of the county in which such vendor is engaged in bYsiness; or,

(b) Its case serial numbers or movement numbers or other distinguishing numbers or identification marks shall be erased, defaced, removed, altered or covered; or,

(c) Its movement is more than five years old and has been repaired by any person or persons, including the vendor. Cleaning and oiling a watch movement or recasing the movement in a new case shall not be deemed a watch repair for the purpose of this section.

(6) Any person, firm, partnership, association or corporation, or any agent or servant thereof, who shall violate any of the provisions of this section shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment, in the discretion of the court.

Hlstor)·.- §§1-6, ch. 22040 , 1943.

2549 GENERAL ASSIGNME NTS §727.08

CHAPTER 727

GENERAL ASSIGNMENTS

727.01 'To be in writing and to ferences.

contain no pre- 727.05 Notice of assignment. 727.06 Disposition of property.

727.02 Oath of assignor. 727.03 Record of assignment and oath. 727.04 Qualifications of assignee.

727.01 To be in writing and to contain no preferences.-No assignment made for the benefit of creditors shall be valid in this state, except the same shall be made in writing and shall provide for an equal distribution of all the assignor's real and personal property, except such as is exempted by law from forced sale, among the several creditors of the said assignor in equal proportion to their respective demands.

llistory.-§1, ch. 3891, 1889; RS 2307; GS 2926; RGS 4666; CGL 6752.

727.02 Oath of assignor.-The said assignor shc.ll make and subscribe an oath in writing before any officer authorized to administer oaths in the county in which he lives and does business, or of the county or counties wherein is situated the property assigned, not more than ten days after the assignment, that he has placed or assigned, and that the true intention of his assignment was to place in the hands of his assignee all of his property of every description, except such as is exempt by law from forced sale, to be divided among the creditors in proportion to their respective demands.

Hist.ory.-§2, c h. 3891, 1889; RS 2308; GS 2927; RGS 4667; CGL 6753.

727.03 Record of assignment and oath.Both the said deed of assignment and oath of assignor shall be recorded in the office or offices of the clerk or clerks of the county or counties in which the property assigned is situated.


727.04 Qualifications of assignee.-No one shall be selected and appointed as assignee by the assignor, in such assignment, who does not give bond to be approved by the clerk of the circuit court of the county wherein the assignor lives or does business, or of the county wherein is situated the property assigned, payable to the governor of Florida, in double the value oi the property assigned, conditioned for the faithful discharge of the duties devolved on him as such assignee, said bond to be filed in the office aforesaid, immediately upon the assignee'R taking possession of the assigned property.


727.05 Notice of assignment.-Said assignee in.mediately upon taking possession of the as-

727.07 Semiannual statements. 727.08 Application for discharge of assignee.

signed property shall give notice by publication in a newspaper, published in the county where the assigned property is situated or wherein a portion of the same is, once a week for four consecutive weeks, to all the creditors of the assignor, of the fact of the assignment, and calling upon said creditors to file with him within sixty days, if such creditors reside in the state, or if beyond the limits of the state, within four months, sworn statements of their claims against said assignor, and he shall send by mail a copy of the newspaper containing said notice to each of the said creditors, as far as he may know them.

llistory.-§6, ch . 3891, 1889; RS 2311; GS 2930; RGS 4670; CGL 6756.

727.06 Disposition of propert.y.-The said assignee shall, as soon as the foregoing provisions have been complied with, proceed to dispose of all the property mentioned in the deed of assignment to him, to the best interest of all the parties concerned, either at public or private sale, as to him may seem best, and to collect and to recover by law, or otherwise, all debts due the assignor in the same manner as said assignor might or could do in his own right if such assignment had not been made, and for this purpose said assignee may employ an attorney to prosecute such claims.


727.07 Semiannua l statements.-Semiannually, as long as shall be necessary after his appointment, said assignee shall file his sworn statement in the office of the clerk of the circuit court, of all his doings and financial transactions as said assignee.


727.08 Application for discharge of ass ignee.-After the final statement of the assignee of all the matters pertaining to his position, he may, after publication for thirty days in a newspaper in the county where he published his notice mentioned in §727.05, apply by petition to the judge of the circuit court of said circuit for his letters of discharge as said assignee, and if the said circuit judge shall be satisfied that the said assignee has complied with his duties as such assignee, he shall then grant him such letters as prayed for.

Ulstory.-§9, ch. 3891, 1889; RS 2314; GS 2933; RGS 4673; CGL 6759.

TITLE XLI ESTATES OF DECEDENTS

CHAPTER 731

FLORIDA PROBATE LAW, FIRST PART

Short title. Application. Definitions. Who may make a will. Property which may be devised. Requisites of nuncupative wills. Execution of wills.

731.18 Republication of wills by re-execution. 731.19 Charitable devises and bequests. 731.20 Lapsed or void legacies or devises. 731.21 Vesting of legacies or devises. 731.22 Income from legacies or devises . 731.23 Order of succession. 731.24 Half blood.

731.01 731.02 731.03 731.04 731.05 731.06 731.07 731.08 Effect of fraud, duress, mistake or undue 731.25 Inheritance per stirpes.

731.09 731.10 731.11 731.12

influence. Revocation by fraud. Marriage after execution of will. Children born after execution of will. Implied revocation by subsequent incon-

sistent wilL 731.13 Revocation by written instrument. 731.14 Other revocation. 731.15 Revival by revocation. 731.16 Revocation of codiciL 731.17 Republication of wills by codicil.

731.01 Short title.-This chapter, together with the three chapters next following, shall be known and may be cited as the Florida probate law.

History.-§1, ch. 16103, 1933; CGL 1936 Supp. 5457(1) am. §1, ch. 22783, 1945.

731.02 Application.-This Florida probate law shall apply to and govern the estates of all decedents, whether dying prior to or after its enactment; provided, however, that estates of decedents dying prior to October 1, 1933, which are now irt the process of administration may be completed and closed in accordance with the statutes and laws under which they have heretofore been administered.

Hlstory.-§2, ch. 16103, 1933; CGL 1936 Supp. 5457(2); am. §1, ch. 22783, 1945.

731.03 Definitions.-In these statutes, when applied to wills and the probate thereof, descent and distribution of decedents' estates, dower, administration of decedents' estates, and practice and procedure. relating thereto, where the context permits, the word, phrase or term:

(1) "Administration" refers to the administration of estates and to all probate proceedings;

(2 ) "Bequeath" means to dispose of personal property by will, but it may be used interchangeably with the word "devise";

(3) "Bequest" means a gift of personal property received by the beneficiary in a will, but it may refer to real estate also ;

( 4) "Curator" means a person appointed by the county judge to take charge of the estate of a

731.26 Presumption . of order of death. 731.27 Descent of homesteads. 731.28 Alien. 731.29 Illegitimate child as heir. 731.30 Adopted child. 731.31 Murderer. 731.32 Inheritance from persons of color. 731.33 Escheat. 731.34 Dower in realty and personalty. 731.35 Election to take dower. 731.36 Articles in addition to do}Ver.

deceased person until letters testamentary or of administration are granted;

(5) "Devise" when used as a verb, means to dispose of real estate by will, but it may be used interchangeably with the word "bequeath";

( 6) "Devise" when used as a noun, means a g ift of real estate by will, but it may be used interchangeably with the word "bequest";

(7) "Gift" means either devise or bequest, or both;

(8) "Heir" and "heir at law" have the same meaning as "next of kin";

(9) "Interested persons" and "persons interested in the estate" mean heirs, legatees, devisees, distributees, spouses and creditors, or others having a property right in or claim against an estate being administered; and such words mean the persons entitled to the estate of a decedent in the event of intestacy; •

(10) "Legacy" has the same meaning as "bequest," hereinbefore defined;

(11) "Legatee" and "devisee" may be construed as synonymous;

(12) "Letters" means letters of administration or letters testamentary;

( 13 ) "Personal representative" means the executor or administrator;

(!JJ,) "Probate" means not only probate proceedings pertaining to wills, but also the administration of estates;

(15) "Property" means real estate, personalty, choses in action, or any interest in the same, legal or equitable .

History.-§3, ch . 16103, 1933; CGL 1936 Supp. 5457(3); am . §1, ch. 22783, 1945.

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