ARNOLD SANTOS, APPELLANT,
v.
ANNA W. BOGH, APPELLEE
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In this creditor's execution levy case, the court affirmed that a quit claim deed lacking the statutorily required two subscribing witnesses cannot be validated by recharacterizing it as a contract to convey, and therefore cannot shield property from execution on a judgment against the grantor.
The deed was defective and cannot be given effect either as a valid conveyance (the notary's acknowledgment signature does not serve as a second subscribing witness) or as a valid contract to convey. Therefore, the property remains subject to execution on the judgment against Santos.
[1] A deed must have two subscribing witnesses to be valid for the transfer of an interest in real estate under Florida law.
[2] A notary's signature on an acknowledgment does not satisfy the requirement for a subscribing witness to a deed.
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Join FLexlaw to unlock all legal intelligence“The deed was signed and acknowledged by Santos but had only one subscribing witness, whereas the presence thereon of two subscribing witnesses was essential to its validity under § 689.01 Fla.Stat., F.S.A.”
Establishes the statutory defect in the deed that is central to the case
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Join FLexlaw to unlock all legal intelligenceA judgment was entered against Arnold Santos and another in favor of Anna W. Bogh on March 26, 1973. An execution levy was made on real estate titled …
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PER CURIAM.
Predicated upon a judgment dated March 26, 1973, obtained by the appellee Anna W. Bogh against Arnold Santos and another, an execution levy was made upon certain real estate. The judgment defendant Santos moved to quash the levy and proposed sale thereunder on the ground “that title to the property upon which the levy has been made is held in the name of Arnold Santos and Carolyn Santos, as tenants by the entireties, according to a warranty deed”. Attached to the motion was a copy of a quit claim deed dated June 1, 1967, from Arnold Santos to himself and his wife Carolyn Santos. The deed was signed and acknowledged by Santos but had only one subscribing witness, whereas the presence thereon of two subscribing witnesses was essential to its validity under § 689.01 Fla.Stat., F.S.A. There was no contention that the deed in question represented a transfer in fraud of the creditor.
The trial court denied the motion to quash the levy and sale. Appealing therefrom, Santos argues that because the acknowledgment included a recitation that the grantor was known to be the person described in and who executed the deed, the notary’s signature to the acknowledgment should be regarded as that of a second subscribing witness.
We find no merit in that argument, for which no supporting authority was cited.
Appellant argues further that although the deed was not effective as a conveyance to Carolyn Santos of an interest in the property, because it did not have two subscribing witnesses as required by § 689.01, it should be regarded' as a valid contract by Santos to convey to himself and his wife, thereby creating in Carolyn Santos an equitable interest in the property, so as to preclude an execution levy on the judgment against Santos. As authority for that proposition the appellant cited Zimmerman v. Diedrich, Fla.1957, 97 So. 2d 120.
We find nothing in that decision to aid the appellant here. That case dealt with the question of whether a contract for sale of real estate, which did not have two subscribing witnesses, could be specifically enforced. In Zimmerman the Supreme Court did not hold or imply that a deed which does not have two subscribing witnesses would be valid to effect the transfer of an interest in real estate.
No reversible error having been shown, the order appealed from is affirmed.
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M. Lucius Walker et ux. v. City OF Jacksonville, 360 So. 2d 52 (Fla. 1st DCA 1978)…sses unless Blub is one. Glover further urges that since the instrument is acknowledged before a notary public the notary may be considered a witness. An identical contention was rejected by our sister court of the Third District in Santos v. Bogh, 334 So. 2d 833 (Fla. 3rd DCA 1976). Certainly there is nothing to prevent a notary from also being a witness. However, it is not necessary to the validity of an acknowledgment that the acknowledged instrument be signed in the presence of the notary: It is only nec…
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Paris v. Joseph, 329 So. 3d 775 (Fla. 4th DCA 2021)…uity, Inc. v. Countrywide Home Loans, Inc., 769 So. 2d 508, 509 (Fla. 5th DCA 2000) (determining that “nothing in the notary’s affidavit . . . establishes or raises a question of fact that he was the second subscribing witness”); Santos v. Bogh, 334 So. 2d 833, 833 (Fla. 3d DCA 1976) (rejecting the argument that the notary’s acknowledgment should be regarded as that of a second subscribing witness); see also Witness, Black’s Law Dictionary (11th ed. 2019) (defining a “subscribing witness” as “[s]omeone…
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Am. Gen. Home Equity, Inc. v. Countrywide Home Loans, Inc., 769 So. 2d 508 (Fla. 5th DCA 2000)…cifically provides that a conveyance may not be accomplished “in any other manner.” Thus a deed which lacks two subscribing witnesses is insufficient to convey title. Walker v. City of Jacksonville, 360 So. 2d 52 (Fla. 1st DCA 1978); Santos v. Bogh, 334 So. 2d 833 (Fla. 3d DCA), cert. denied, 341 So. 2d 293 (Fla.1976). A “subscribing witness” is defined as: He who witnesses or attests the signature of a party to an instrument, and in testimony thereof subscrbes his own name to the document. C ne who sees a…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frieda Zimmerman v. Diedrich, 97 So. 2d 120 (Fla. 1957)