Opinion
March 14, 1950. Rehearing Denied April 13, 1950.
Appeal from the Circuit Court, Dade County, George E. Holt, J.
Bernstein Hodsdon, Miami, for appellants.
Jeptha P. Marchant and Pallot Tatham, Miami, for appellee.
The controlling question presented on this appeal is whether or not the appellants-defendants were bona fide purchasers, for value without notice, of a one-fourth undivided interest in 320 acres of Everglades lands, as defined by the several provisions of Section 695.01, F.S.A., and our adjudications. The final decree entered below held against the contentions of the appellants-defendants and additional thereto required the payment of the sum of $1,000.00 to the Special Master for services rendered by him in the cause.
It appears by the record that the appellants assert title to the one-fourth interest under a deed of conveyance dated May 28, 1943, from Phron Woodruff Rehorn and husband Robert Rehorn, and Burton Woodruff to S.S. McCahill and wife Elva A. McCahill. This deed was duly recorded on June 2, 1943, in Deed Book 2294 on page 531, appearing in the office of the Clerk of the Circuit Court of Dade County, Florida. The appellee claims title to the one-fourth interest under a deed from Phron Woodruff Rehorn and husband Robert Rehorn and Burton Woodruff to C.R. Wilks, Inc., dated April 15, 1943, but not recorded or filed for record with the Clerk of the Circuit Court of Dade County, Florida, for recordation until June 16, 1943. On June 17, 1943, C.R. Wilks, Inc., conveyed the property here involved to The Travis Co., plaintiff-appellee. It will be observed that the parties claim title to the one-fourth interest from a common source: The plaintiff-appellee's deed was executed and delivered first but was not recorded in the Clerk's office of Dade County, Florida, until some 14 days after defendants-appellants' deed was placed on record.
The evidence discloses that the land involved is covered, in part, by water and is not suitable for farming purposes and for this reason the possession of the property on the question of notice is not helpful. It is not disputed that the appellants-defendants claimed title to the one-fourth interest under a duly recorded deed which had been recorded for some 14 days prior to the date of the conveyance into C.R. Wilks, Inc., was filed for record. C.R. Wilks, Inc., withheld its deed from record from April 15, 1943, until June 16, 1943. Pertinent portions of Section 695.01, supra, are viz: " 695.01. Conveyances 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; * * *"
In construing the above statute we have held on many occasions that subsequent purchasers, acquiring title without notice of a prior unrecorded deed, mortgage or transfer of real estate, or any interest therein, will be protected against such unrecorded instrument, unless the party claiming thereunder can show that such subsequent purchaser acquired title with actual notice of such unrecorded conveyance. The burden of showing such notice by law is placed upon the party claiming under such unrecorded instrument. The presumption in such a case being that such subsequent purchaser acquired his title in good faith and without notice of the prior unrecorded conveyance. Pierson v. Bell, 138 Fla. 104, 189 So. 679; Lesnoff v. Becker, 101 Fla. 716, 135 So. 146; Rambo v. Dickenson, 92 Fla. 758, 110 So. 352; West Coast Lumber Co. v. Griffin, 56 Fla. 878, 48 So. 36, and similar cases.
The burden of showing that the defendants-appellants had actual notice of the unrecorded deed under which the plaintiff-appellee claimed title to the undivided one-fourth interest, under our adjudications, rested on the party claiming under it. We have reviewed all the evidence appearing in the record and it is our conclusion that the plaintiff-appellee failed to carry the burden of proof required by the above statute and our decisions interpreting the same. It therefore follows that the decree appealed from must be reversed and a decree of partition must be entered in behalf of the defendants-appellants.
We find nothing in the record to justify the allowance of $1,000.00 to the Special Master for his services in this cause. The record fails to disclose extraordinary duties performed by the Special Master above the average run of the mill case and such expenditures cannot be sustained but his compensation should be computed under the applicable statute. The decree appealed from is reversed for further proceedings below not inconsistent with the views herein expressed.
Reversed.
THOMAS and ROBERTS, JJ., and GERALD, Associate Justice, concur.
ADAMS, C.J., and HOBSON, J., dissent.
TERRELL and SEBRING, JJ., not participating.