florida statutes 1959, volume 2 · honor must be given to the drawer and to each indorser, and any...

NEGOTIABLE INSTRUMENTS; DISHONOR AND DISCHARGE Ch. 675

CHAPTER 675 NEGOTIABLE INSTRUMENTS; DISHONOR AND DISCHARGE

875.01 Dishonored for nonpayment. 875.02 Recourse to parties secondarily liable. 875.03 Time instrument is payable. 875.04 Instruments payable at bank. 875.05 When payment is made in due course. 875.06 Notice of dishonor must be given. 875.07 How notice given. 675.08 May be given by agent. 875.09 Notice given on behalf of holder. 675.10 Notice given on behalf of party entitled ~

give notice. 675.11 Dishonored in hands of agent. 875.12 Written notice. 875.13 May be oral and to either party or his

agent. 875.14 Notice where party is dead. 875.15 Notice to partners and Joint parties who

are not partners. 875.16 Notice to bankrupts.

675.01 Dishonored for nonpayment.- The instrument is dishonored by nonpayment when:

(1) It is duly presented for payment and payment is refused or cannot be obtained; or

(2) Presentment is excused and the instrument is overdue and unpaid.

HlatorT.-183, ch. 4624, 1897; GS 8016; RGS 4769; CGL t846.

675.02 Recourse to parties secondarily liable.-8ubject to the provisions of this law, when the instrumt:nt is dishonored by nonpayment, an immediate right of recourse to all parties secondarily liable thereon accrues to the holder.

HlatorT.-184, ch. 4524, 1897; GS 3016; RGS 4760; CGL t846.

675.03 Time instrument is payable.-Every negotiable instrument is payable at the time fixed therein, without grace. When the day of maturity falls upon Sunday, or a holiday, the instrument is payable on the next succeeding business day. Instruments falling due on Saturday are to be presented for payment on the next succeeding business day, except that instruments payable on demand may, at the option of the holder, be presented for payment before 12 o'clock noon on Saturday when that entire day is not a holiday.

Where the instrument is payable at a fixed period after date, after sight, or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run, and by including the date of payment.

Hletnry.-1§85, 86, ch. 4624, 1897; GS 8017; RGS 4761; CGL 6847.

675.04 Instruments payable at bank. -Where the instrument is made payable at a bank, it is equivalent to an order to the bank to pay the same for the account of the principal debtor thereon.

HlatorT.-187, ch. 4524, 1897; GS 8018; RGS 4762; CGL C848.

675.05 When payment is made in due course. -Payment is made in due course when it is made at or after the maturity of the instrument

675.17 Time notice may be given. 675.18 Time of notice where persons residing tn

different places. 675.19 Giving notice by mail. 675.20 Giving notice to antecedent parties. 675.21 Where notice of dishonor to be sent. 675.22 Notice of dishonor waived. 675.23 When dispensed with. 675.24 When delay excused. 675.25 Where notice of dishonor not required. 675.26 Omission to give notice of dishonor by

nonacceptance. 675.27 Protesting for nonacceptance. 675.28 How negotiable instruments discharged. 675.29 When not discharged. 675.30 Renouncing rights. 675.31 Unintentional cancellation. 675.32 Materially altering instrument.

to the holder thereof in good faith and without notice that his title is defective.

HlatorT.-188, ch. 4624, 1897; GS 3019; RGS 4718; CGL 6849.

675.06 Notice of dishonor must be given.Except as herein otherwise provided, when a negotiable instrument has been dishonored by nonacceptance or nonpayment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged.

HlatorT.-§89, ch. 4624, 1897; GS 3020; RGS 4764; CGL 6850.

675.07 How notice given.-The notice may be given by or on behalf of the holder, or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who upon taking it up would have a right to reimbursement from the party to whom the notice is given.

Hlator:r.-190, ch. 4524, 1897; GS 8021; RGS 4765; CGL 6851.

675.08 May be given by agent.-Notice of dishonor may be given by an agent, either in his own name or in the name of any party entitled to give notice, whether that party be his principal or not.


675.09 Notice given on behalf of holder.Where notice is given by or on behalf of the holder, it enures for the benefit of all subsequent holders and all prior parties who have a right of recourse against the party to whom it is given.


675.10 Notice given on behalf of party entitled to give notice.-Where notice is given by or on behalf of a party entitled to give notice, it enures for the benefit of the holder and all parties subsequent to the party to whom notice is given.

Blatory.-fll3, ch. 4liU, 18ll'7; 08 3024; R08 4'781; COL 6864.

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Ch. 675 NEGOTIABLE INSTRUMENTS; DISHONOR AND DISCHARGE

675.11 Dishonored in hands of agent.Where an instrument has been dishonored in the hands of an agent, he may either himself give notice to the parties liable thereon, or he may give notice to his principal. If he gives notice to his principal, he must do so within the same time as if he were the holder, and the principal, upon the receipt of such notice, has himself the same time for giving notice as if the agent had been an independent holder.

Hlstory.-§94, ch. 4624, 1897; GS 3025; RGS 4769; CGL 6855.

675.12 Written notice.-A written notice need not be signed, and an insufficient written notice may be supplemented and validated by verbal communication. A misdescription of the instrument does not vitiate the notice unless the party to whom the notice is given is in fact misled thereby.

Hlatory.-§95, ch. 4524, 1897; GS 8026; RGS 4770; CGL 6856.

675.13 May be oral and to either party or his agent.-The notice may be in writing or merely oral, and may be given in any terms which sufficiently identify the instrument and indicate that it has been dishonored by nonacceptance or nonpayment. It may in all cases be given by delivering it personally or through the mails.

Notice of dishonor may be given either to the party himself or to his agent in that behalf.

Hlatory.-§§96, 97, ch. 4524, 1897; GS 8027; RGS 4771; CGL 6857.

675.14 Notice where party is dead.-When any party is dead, and his death is known to the party giving notice, the notice must be given to a personal representative, if there be one, and if with reasonable diligence he can be found. If there be no personal representative notice may be sent to the last residence or l~st place of business of the deceased.

Hlatory.-198, ch. 4524, 1897; GS 8028; RGS 4772; CGL 6858.

675.15 Notice to partners and joint P!lrties who are not partners.-Where the parties to be notified are partners, notice to any one partner is notice to the firm, even though there has been a dissolution.

Notice to joint parties who are not partners must be given to each of them, unless one of them has authority to receive such notice for the others.

Hlatory.-§99, 100, ch. 4524, 1897; GS 8029; RGS 4778; CGL 6859.

675.16 Notice to bankrupts.-Where a party has been adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors notice must be given either to the party hi~self or to his trustee or assignee.


675.17 Time notice may be given.-N otice may be given as soon as the instrument is dishonored; and unless delay is excused as herein provided, must be given within the times fixed by this law.

Where the person giving and the person to receive notice reside in the same place, notice must be given within the following times:

(1) If given at the place of business of the person to receive notice, it must be given before the close of business hours on the day following.

(2) If given at his residence, it must be given before the usual hours of rest on the day following.

(3) If sent by mail, it must be deposited in the post office in time to reach him in usual course on the day following.

Hlotory,-§§102, 103, ch. 4524, 1897; GS 8031; RGS 4775; CGL 6861. ct.-Ch. 683, Legal holldayB.

675.18 Time of notice where persons residing in different places.-Where the person giving and the person to receive notice reside in different places, the notice must be given within the following times:

(1) If sent by mail, it must be deposited in the post office in time to go by mail the day following the day of dishonor, or if there be no mail at a convenient hour on that day, by the next mail thereafter.

(2) If given otherwise than through the post office, then within the time that notice would have been received in due course of mail, if it had been deposited in the post office within the time specified in the last subdivision.


675.19 Giving notice by mail.-Where notice of dishonor is duly addressed and deposited in the post office, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails.

Notice is deemed to have been deposited in the post office when deposited in any branch post office or in any letter box under the control of the post office department.

Hlatory.-1§105, 106, ch. 4524, 1897; GS 8033; RGS 4777; CGL 6863.

675.20 Giving notice to antecedent parties. -Where a party receives notice of dishonor, he has, after the receipt of such notice, the same time for giving notice to antecedent parties that the holder has after the dishonor.


675.21 Where notice of dishonor to be sent. -Where a party has added an address to hi!l signature, notice of dishonor must be sent to that address; but if he has not given such address, then the notice must be sent as follows:

(1) Either to the post office nearest to his place of residence or to the post office where he is accustomed to receive his letters; or

(2) If he lives in one place and has his place of business in another, notice may be sent to either place; or

(3) If he is sojourning in another place, notice may be sent to the place where he is sojourning.

But where the notice is actually received by the party within the time specified in this law.

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NEGOTIABLE INSTRUMENTS; DISHONOR AND DISCHARGE Ch. 675

it will be sufficient, though not sent in accordance with the requirements of this section.

BlatoJT.-1108, ch. 4524, 1897; GS 8035; RGS 4779; CGL MG.

675.22 Notice of dishonor waived.-Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied.

Where the waiver is embodied in the instrument itself, it is binding upon all parties; but where it is written above the signature of an indorser, it binds him only.

A waiver of protest, whether in the case of a foreign bill of exchange or other negotiable instrument, is deemed to be a waiver, not only of a formal protest but also of presentment and notice of dishonor.

HlatAr;r.-1§109·111, cb. 4524, 1897; GS 3036; RGS 4780; CGL 6866.

675.23 When dispensed with.-Notice of dishonor is dispensed with when after the exercise of reasonable diligence it cannot be given to or does not reach the parties sought to be charged.

Hl&tor;r.-1112, ch. 4524, 1897; GS 3037; RGS 4781; CGL 8867.

675.24 When delay excused.-Delay in giving notice of dishonor is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, notice must be given with reasonable diligence.

Hlator;r.-1113, cb. 4524, 1897; GS 3038; RGS 4782; COL t868.

675.25 Where notice of dishonor not required.-(!) Notice of dishonor is not required to be given to the drawer in either of the following cases:

(a) Where the drawer and drawee are the same person.

(b) Where 'he drawee is a fictitious person or a "person not having capacity to contract.

(c) Where the drawer is the person to whom the instrument is presented for payment.

(d) Where the drawer has no right to expect or require that the drawee or acceptor will honor the instrument.

(e) Where the drawer has countermanded payment.

(2) Notice of dishonor is not required to be given to an indorser in either of the following eases:

(a) Where the drawee is a fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the instrument.

(b) Where the indorser is the person to whom the instrument is presented for payment.

(c) Where the instrument was made or aceepted for his accommodation.

Where due notice of dishonor by nonacceptance has been given, notice of a subsequent -dishonor by nonpayment is not necessary, un-

less in the meantime the instrument has been accepted.

HlatoJT.-§§114-116, cb. 4524, 1897; 08 3039; ROB 4781; CGL 6869.

675.26 Omission to give notice of dishonor by nonacceptance.-An 0mission to give notice of dishonor by nonaccc~tance does not prejudice the rights of a holcier in due course subsequent to the omission.

lllator;r.-1117, cb. 4524, 1897; OS 3040; RGS 4784; COL 6870; 11, ch. 19162, 1939.

675.27 Protesting for nonacceptance. -Where any negotiable instrument has been dishonored, it may be protested for nonacceptance or nonpayment, as the case may be; but protest is not required except in the case of foreign bills of exchange.

Hlator;r.-1118, ch. 4524, 1897; GS 3041; RGS 4785; COL 6871.

675.28 How negotiable instruments discharged.-(!) A negotiable instrument is discharged:

(a) By payment in due course by or on behalf of the principal debtor.

(b) By payment in due course by the party accommodated, where the instrument is made or accepted for accommodation.

(c) By the intentional cancellation thereof by the holder.

(d) By any other act which will discharge a simple contract for the payment of money.

(e) When the principal debtor becomes the holder of the instrument at or after maturity, in his own right.

(2) A person secondarily liable on the instrument is discharged:

(a) By any act which discharges the instrument.

(b) By the intentional cancellation of his signature by the holder.

(c) By the discharge of a prior party. (d) By a valid tender of payment made by

a prior party. (e) By a release of the principal debtor,

unless the holder's right of recourse against the party secondarily liable is expressly reserved.

(f) By any agreement binding upon the holder to extend the time of payment, or to postpone the holder's right to enforce the instrument, unless made with the assent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved.

Hlotor;r.-§§119, 120, ch. 4524, 1897; GS 3042; RGS 4786; CGL 6872; §2, ch. 19162, 1939.

675.29 When not discharged.-When the instrument is paid by a party secondarily liable thereon, it is not discharged; but the party so paying it is remitted to his former rights as regards all prior parties, and he may strike out his own and all subsequent indorsements, and again negotiate the instrument, except:

(1) Where it is payable to the order of a third person, and has been paid by the drawer; and

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Ch. 675 NEGOTIABLE INSTRUMENTS; DISHONOR AND DISCHARGE

(2) Where it was made or accepted for accommodation, and has been paid by the party accommodated.

Hl•toi'J'.-1121, ch. 4524, 1897; GS 80,5; RGS '787; CGL 6873.

675.30 Renouncing rights.-The holder may expressly renounce his rights against any party to the instrument, before, at or after its maturity. An absolute and unconditional renunciation of his rights against the principal debtor, made at or after the maturity of the instrument, discharges the instrument. But a renunciation does not affect the rights of a holder in due course without notice. A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon.

lll•tor;,-.-1122, ch. -l62,, 1897; OS 80''; RGS 4788; COL asH.

675.31 Unintentional cancellation.-A can·· cellation made unintentionally, or under a mistake, or without the authority of the holder, is inoperative; but where an instrument, or any 3ignature thereon, appears to have been canceled, the burden of proof lies on the party who alleges that the cancellation was made unintentionally, or under a mistake or without authority.

675.32 Materially altering instrument. -Where a negotiable instrument is materially altered without the assent of all parties liable thereto, it is voided, except as against a party who has himself made, authorized or assented to the alteration, and subsequent indorsers.

But when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.

Any alteration which changes: (1) The date: (2) The sum payable, either for principal or

interest; (3) The time or place of payment; ( 4) The number or the relations of the par

ties; (5) The medium or currency in which pay

ment is to be made; Or which adds a place of payment where no

place of payment is specified, or any other change or addition which alters the effect of the instrument in any respect, is a material alteration.

Blator:r.-1123, ch. 41124, 1887; OS 3CM5; RGS <&788; COL 687~.

cc!'~"~-ll:-11124, 125, ch. 452<&, 1887; as 3046; R08 &'110;

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NEGOTIABLE INSTRUMENTS; BILLS, NOTES. CHECKS. ETC. Ch. 676

CHAPTER 676

NEGOTLABLEINSTRUMENTS; B~.NOTES,CHECKS, ACCEPTANCE, PROTEST, PAYMENT

6"16.01 Bills of exchange. 676.02 Inland b1ll of exchange. 676.03 Drawer and drawee same person. 676.04 Referee. 676.05 Acceptance of bill. 676.06 Unconditional promise is acceptance. 676.07 Time allowed to accept. 676.08 Drawee destroying bill. 676.09 When bill may be accepted. 676.10 General and qualified acceptance. 676.11 Effect of qualified acceptance. 676.12 When presentment for acceptance must

be made. 676.13 When drawer and indorser discharged. 676.14 When and to whom presentment must be

made. 676.1:> When bill may be presented for acceptance. 676.16 When presentment excused. 676.17 When bill dishonored for nonacceptance. 676.18 Recourse to drawers and indorsers of dis-

honored bill. 676.19 Protesting dishonored bill. 676.20 Manner of protest. 676.21 When and where protested. 676.22 Protest for nonpayment. 676.23 Acceptor adjudged bankrupt. 676.24 When protest dispensed with. 676.25 Lost or destroyed bill. 676.26 Damages.

676.01 Bills of exchange. - A bill of exchange is an unconditional ordEr in writing addressed by one person to another, signed by the person giving it, req,Jiring the person to whom it is addressed to pay, on <iemand or at a fixed or determinable future time, a sum certain in money to order or to bearer.

A bill of itself does not operate as an assignment of the funds in the hands of the drawee available for the payment thereof, and the drawee is not liable on the bill unless and until he accepts the same.

A bill may be addressed to two or more drawees jointly, whether they are partners or not; but not to two or more drawees in the alternative or in succession.

Hlotory.-§§126-128, ch. 4524, 1897; GS 3047; RGS 4791; CGL 6877.

676.02 Inland bill of exchange.-An inland biH of exchange is a bill which is, or on its face purports to be, both drawn and payable within this state. Any other bill is a foreign bill. Unless the contrary appears on the face of the bill, the holder may treat it as an inland bill.

Hlotory.-§129, ch. 4524, 1897; GS 3048; RGS 4792; CGL 6878.

676.03 Drawer and drawee same person.Where in a bill drawer and drllwee are the same person, or where the drawee is a fictitious person, or a person not ha,·ing capacity to contract, the holder may treat t.he instrument, at his option, either as a bill of exchange or a promissory note.

Ulotory.-§130, ch. 4524, 1897; GS 3049; RGS 4793 ; CGL 8879.

676.27 Acceptance for honor. 676.28 Must be in writing. 676.29 Presumed for honor of drawer. 676.30 Acceptor for honor liable to holder. 676.31 Date of maturity. 676.32 Acceptance of dishonored bill. 676.33 Presentment for payment. 676.34 When delay in presentment excused. 676.35 Acceptor for honor. 676.36 Payment for honor supra protest. 676.37 Notarial act of honor. 676.38 Preference between parties offering to pay. 676.39 When parties are discharged. 676.40 When holder refuses to receive payment. 676.41 Whole of parts constitute one bill. 676.42 True owner of bill. 676.43 Liability of indorsers. 676.44 Acceptance. 676.45 Liability of acceptor. 676.46 When bill is discharged. 676.47 Negotiable promissory note. 676.48 Check. 676.49 When check must be presented for pay-

ment. 676.50 Certified check. 676.51 Holder of check. 676.52 When bank becomes liable. 676.55 Checks and drafts; when deemed paid or

accepted.

676.04 Referee.-The drawer of a bill and any indorser may insert thereon the name of a person to whom the holder may resort in case of need-that is to say, in case the bill is dishonored by nonacceptance or nor.payment. Such person is called the referee ;n case of need. It is in the option of the holder to resort to the referee in case of net-d or not, as he may see fit.

Hlstor:r.-§131, ch. 4524, 1897; GS 8060; RGS 4794; CGL 6880.

676.05 Acceptance of bili.-The acceptance of a bill is the signification by the drawee or his assent to the order of the drawer. The acceptance must be in writing ar.d signed by the drawee. It must not express that the drawee will perform his promise by any other means than the payment of money.

The holder of a bill presenting the same for acceptance may require that the acceptance be written on the bill, and if such request is refused, may treat the bill as dishonored.

Where an acceptance is written on a paper other than the bill itself, it does not bind the acceptor, except in favor of a person to whom it is shown, and who, on the faith thereof, receives the bill for value.

Hlstory.-§§132-134, ch. 4524, 1897; GS 8061; RGS 4796; CGL 6881.

676.06 Unconditional promise is acceptance. -An unconditional promise in writing to accept a bill before it is drawn is deemed an actual acceptance in favor of every person who, upon the faith thereof, receives the bill for value.

Hlotory.-§135. ch. 4524, 1897; GS 8062; RGS 4796; CGL 6882.

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Ch. 676 NEGOTIABLE INSTRUMENTS; BILLS, NOTES, CHECKS. ETC.

676.07 Time allowed to accept.-The drawee is allowed twenty-four hours after presentment ln which to decide whether or not he will accept the bill; but the acceptance, if given, dates as of the day of presentation.

lllstorT.-§136, ch. 4524, 1897; GS 3053; RGS 4797; CGL 6883.

676.08 Drawee destroying bill.- Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill, accepted or nonaccepted, to the holder, he will be deemed to have accepted the same.

lllatorT.-1137, ch. 4524. 1897; GS 3054; RGS 4798 ; CGL 6884.

676.09 When bill may be accepted.-A bill may be accepted before it has been signed by the drawer, or while otherwise incompjete, or when it is overdue, or after it has been dishonored by a previous refusal to accept, or by nonpayment. But when a bill payable after sight is dishonored by nonacceptance and the drawee subsequently accepts it, the holder, in the absence of any different agr'l<!mant, is entitled to have the bill accepted as of the date of the first presentment.

HletorT.-1138, cb. 4524, 11197; GS 3066; RGS 4799; CGL &885.

676.10 General and qualified acceptance.An acceptance is either general or qualified. A general acceptance assents without qualification to the order of the drawer. A qualified acceptance in express terms varies the effect of the bill as drawn.

An acceptance to pay at a particular place is a general acceptance, unless it expressly states that the bill is to be paid there only and not elsewhere.

An acceptance is qualified which is: (1) Conditional-that is to say, which makes

payment by the acceptor dependent on the fulfillment of a condition therein stated.

(2) Partial-that is to say, an acceptance to pay part only of the amount for which the bill is drawn.

(3) Local- that is to say, an acceptance to pay only at a particular place.

( 4) Qualified as to time. (5) The acceptance of some one or more

of the drawees, but not of all. History.-§§ ! 39-141, ch. 4524. 1897; GS 3056; ROS 4800 ;

CGL 6886.

676.11 Effect of qualified acceptance.-The holder may refuse to take a qualified acceptance; and if he does not obtain an unqualified acceptance, he may treat the bill as dishonored by nonacceptance. Where a qualified acceptance is taken, the drawer and indorsers are discharged from liability on the bill, unless they have expressly or impliedly authorized the holder to take a qualified acceptance, or subsequently assent thereto. When the drawer or an indorser receives notice of a qualified acceptance, he must within a reasonable time

express his dissent to the holder, or he will be deemed to have assented thereto. S~~~story.-§142, ch. 4524, 1897; GS 3067; RGS 41101; COL

676.12 When presentment for acceptance must be made. -Presentment for acceptance must be made:

(1) Where the bill is payable after sight, or in any other case where presentment for acceptance is necessary in order to fix the maturity of the instrument; or

(2) Where the bill expressly stipulates that it shall be presented for acceptance; or

(3) Where the bill is drawn payable elsewhere than at the residence or _;!lace of business of the drawee.

In no other case is presentment for acceptance aecessary in order to render any party to the bill liable. ~~etor7.-IH3, ch. 4524, 1897; GS 3068; RGS 4802; COL

676.13 When drawer and indorser diacharged.-Except as herein otherwise provided, tht holder of a bill which is required by the next preceding section to be presented for acceptance must either present it for acceptance or negotiate it within a reasonable time. If he fails to do so, the drawer and all indorsers are discharged. G~~~etor)'.-§144, cb. 4624, 1897; GS 3059; RGS 4808 ; CGL

E76.14 When and to whom presentment must be made.-Presentment for accept.:..nce must be made by or on behalf of the holder at a reasonable hour, on a business day and before the bill is overdue, to the drawee or some person authorized to accept or refuse acceptance on his behalf; and:

( 1) Where a bill is addressed to two or more drawees who are not partners, presentment must be made to them all, unless one has authority to accept or refuse acceptance for all, in which case presentment may be made to him only;

(2) Where the drawee is dead, presentment may be made to his personal representative;

(3) Where the drawee has been adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors, presentment may be made to him or his trustee or assignee. ssro~story.-§145, ch. 4524, 1897; GS 3060 ; RGS 4804; COL

676.15 When bill may be pre!"ented for acceptance.-A bill may be presented for acceptance on any day on which negotiable instruments may be presented for paymt~nt under the provisions of §§674.75 and 675.03. When Saturday is not otherwise a holiday presentment for acceptance may be made before 12 o'clock noon that day.

68~~:story.-§146, ch. 4524, 1897; GS 3061; RGS 4805; CGL

cf .-Ch. 683, Legal holidays.

6i6.16 When presentment excused.- Where the holder of a bill drawn payable elsewhere than at the place of business or the residence

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NEGOTIABLE INSTRUMENTS; BILLS, NOTES, CHECKS, ETC. Ch. 676

of the drawee has not time with the exercise of reasonable diligence to present the bill for acceptance before presenting it for payment on the day that it falls due, the delay caused by presenting the bill for acceptance before presenting it for payment is excuAed, and does not discharge the drawers and indorsers.

Presentment for acceptance is excused and a bill may be treated as dishonored by nonacceptance in either of the following cases:

(1) Where the drawee is dead, or has absconded, or is a fictitious person, or a person not having capacity to contract by hill.

(2) Where after the exercise of reasonable diligence presentment cannot be made.

(3 ) Where, although presentment has been irregular, acceptance has been refused on some other ground.

Hletory.-§§147, 148, ch. 4624, 1897; GS 3062; RGS 4806; CGL 6892.

676.17 When bill dishonored for nonacceptance.-A bill is dishonored by nonacceptance:

(1) When it is duly presented for acceptance and such an acceptance as is :prescribed by this law is refused or cannot be obtained; or

(2) When presentment for acceptance is excused and the bill is not accepted.

Where a bill is duly presented for acceptance and is not accepted within the prescribed time. the person presenting it must treat the bill as dishonored by nonacceptance, 01 he loses the right of recourse against the dz-awer and indorsers.

Hlator;r.-1§149, 160, ch. 4624, 1897; GS 6063; RGS 4807; CGL 6893.

676.18 Recourse to drawers and indorsers of dishonored bill.-When a bill is dishonored by nonacceptance, an immediate right of recourse against the drawers and indorsers accrues to the holder, and no presentment for payment is necessary.

Hl•tor;r.-§161, ch. 4624, 1897; GS 6064; RGS 4808; CGL 1894.

676.19 Protesting dishonored bill -Where a foreign bill appearing on its face to be such is dishonored by nonacceptance, it must be duly protested for nonacceptance, and where such a bill which has not previously been dishonored by nonacceptance is dishonored by nonpayment, it must be duly protested for nonpayment. If it is not so protested, the drawer and indorsers are discharged. Where a bill does not appear on its face to be a foreign bill, protest thereof in case of dishonor (s unnecessary.

Hlator;r.-116%, ch. 4624, 1897; GS 6066; RGS 4809; CGL 6896.

676.20 Manner of protest.-(1) The protest must be annexed to the bill, or must contain a copy thereof, and must be under the hand and seal of the notary making it, and must specify:

(a) The time and place of presentment. (b) The fact that presentment was made,

and the manner thereof.

(c) The cause or reason for protesting the bill.

(d) The demand made and the answer given, if any, or the fact that the drawee or acceptor could not be found.

(2) Protest may be made by: (a) A notary public; or (b) By any respectable resident of the place

where the bill is dishonored, in the presence of two or more credible witnesses. cJIL•ts8rs:-H163, 164, ch. 4524, 1897; GS 6066; RGS 4810;

676.21 When and where protested.-When a bill is protested, such protest must be made on the day of its dishonor, unless delay is excused as herein provided. When a bill has beeu duly noted, the protest may be subsequently extended as of the date of the noting.

A bill must be protested at the place where it is dishonored, except that when a bill drawn payable at the place of business or residence of some person other than the drawee has been dishonored by nonacceptance, it must be protested for nonpayment at the place where it is expressed to be payable, and no further presentment for payment to, or demand on the drawee is necessary. ' cJIL•~os9'7:-§§166, 166, ch .• 624, 1897; GS 6067; RGS 4811 ;

676.22 Protest for nonpayment. - A bill which has been protested for nonacceptance may be subsequently protested for nonpayment.

68:s~•tor;r.-§167, ch. 4624, 1897; GS 6068; RGS •su; CGL

676.23 Acceptor adjudged b an k r u p t. -Where the acceptor has been adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors before the bill matures. the holder may cause the bill to be protested for better security against the drawer and indorsers.

68:s~•tor;r.-§168, ch. 4624, 1897; GS 6069; RGS 4818; CGL

676.24 When protest dispensed with.-Protest is dispensed with by any circumstances which would dispense with notice of dishonor. Delay in noting or protesting is excused when delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, the bill must be noted or protested with reasonable diligence.

Rle&or.,-.-1169, ch. 46U, 1.897; GS 1070; RGS 4814; CGL 6900.

676.25 Lost or destroyed bill.-Where a bill is lost or destroyed, or is wrongfully detained from the person entitled to hold it, protest may be made on a copy or written particulars thereof.

Hl•tor;r.-1160, ch. 4524, 1897; GS 6071; RGS 4815; CGL 6901.

676.26 Damages.-Damages on foreign protested bills of exchange shall be at the rate of five per cent.

Hlotnr;r.-Feb. 17. 1833; RS %317; GS 1072; RG8 4811; CGL 6902.

2907

. Ch. 676 NEGOTIABLE INSTRUMENTS; BILLS, NOTES, CHECKS, ETC .

676.27 Acceptance for honor.-Where a bill of exchange has been protested for dishonor by nonacceptance, or protested for better security, and is not overdue, any person not being a party already liable thereon may, with the consent of the holder, intervene and accept the bill supra protest for the honor of any party liable thereon, or for the honor of the person for whose account the bill is drawn. The acceptance for honor may be for part only of the sum for which the bill is drawn; and where there has been an acceptance for honor for one party, there may be a further acceptance by a different person for the honor of another party.

Hlator;r.-§161, ch. 4624, 1897; GS 8073; RGS 4817; CGL 6903.

676.28 Must be in writing.-An acceptance for honor supra protest must be in writing, and indicate that it is an acceptance for honor, and must be signed by the acceptor for honor.

Jllator;r.-§162, ch. 4524, 1897; GS 8074; RGS 4818; CGL 6904.

676.29 Presumed for honor of drawer.Where an acceptance for honor does not expressly state for whose honor it is made, it is deemed to be an acceptance for the honor of the drawer.


676.30 Acceptor for honor liable to holder.-The acceptor for honor is liable to the holder and to all parties to the bill subsequent to the party for whose honor he has accepted.

The acceptor for honor by such acceptance engages that he will on due presentment pay the bill, according to the terms of its acceptance, provided it shall not have been paid by the drawee, and provided, also, that it shall have been duly presented for payment and protested for nonpayment and notice of dishonor given to him ..

llltot;.r:r.-§1164, 165, ch. 4624, 1897; GS 8076; RGS 4820; CGL 6906.

676.31 Date of maturity.-Where a bill payable after sight is accepted for honor, its maturity is calculated from the date of the noting for nonacceptance, and not from the date of the acceptance for honor.

Jlhitor;r._;§166, ch. 4524, 1897; GS 3077; RGS 4821; CGL '6907 • .

676.32 Acceptance of dishonored bill.Where a dishonored bill has been accepted for honor supra protest, or contains a reference in case of need, it must be protested for nonpayment before it is presented for payment to the acceptor for honor or referee in case of need.

Hlator;r.-1167, ch. 4524, 1897; GS 3078; RGS 4822; CGL 6908.

676.33 Presentment for payrnent.-Presentment for payment to the acceptor for honor must be made as follows:

(1) If it is to be presented in the place where the protest for nonpayment was made, it must be presented not later than the day following its maturity.

(2) If it is to be presented in some other place than the place where it was protested, then it must be forwarded within the time specified in §675.18.

lllator;r.-§168, ch. 4524, 1897; GS 8079; RGS 4823; CGL 6909.

676.34 When delay in presentment excused. -Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct or negligence.


676.35 Acceptor for honor.-When the bill is dishonored by the acceptor for honor, it must be protested for nonpayment by him.


676.36 Payment for honor supra protest.Where a bill has been protested for nonpayment, any person may intervene and pay it supra protest for the honor of any person liable thereon or for the honor of the person for whose account it was drawn.

The payment for honor supra protest, in order to operate as such and not as a mere voluntary payment, must be attested by a notarial act of honor, which may be appended to the protest or form an extension to it.

Rlator;r.-1§171, 172, ch. 4624, 1897; GS 8082; RGS 4821; CGL 6912.

676.37 Notarial act of honor.-The notarial act of honor must be founded on a declaration made by the payer for honor, or by his agent in that behalf, declaring his intention to pay the bill for honor and for whose honor he pays.


. 676.38 Preference between parties offering to pay.-Where two or more persons offer to pay a bill for the honor of qifferent parties, the person whose payment will di::~charge most parties to the bill is to be given the preference.

lllator;r.-§174, ch. 4524, 1897; GS 8084; RGS 4828; CGL 6914.

676.39 When parties are discharged.Where a _ bill has been paid for honor, all parties subsequent to the party for whose honor it is paid are discharged; but the payer for honor is : subrogated for and succeeds to both the rights and duties of the holder as regards the party -for whose honor he pays and all parties liable to the latter.

Hlstor;r.-1176, ch. 4524, 1897; GS 3086; RGS 4829; CGL 6916. .

676.40 When bolder refuses to receive payment.-Where the holder of a bill refuses to receive payment supra protest, he loses his right of recourse against any party who would have been discharged by such payment.

The payer for honor on paying to the holder the amount of the bill and the notarial expenses incidental to its dishonor is entitled to receive both the bill itself and the protest.

Rlatnr:r.-11176, 177, ch. 4624. 1897: GS SOH; RGS 4880; CGL 6916.

NEGOTIABLE INSTRUMENTS; BILLS, NOTES, CHECKS, ETC. Ch. 676

676.41 Whole of parts constitute one bill. -Where a bill is drawn in a set, each part of the set being numbered and containing a referer.ce to the other parts, the whole of the parts constitute one bill.

lll•tor;r.-U78, ch. 4524, 1897; GS 3087; RGS 4831; CGL e917.

676.42 True owner of bill.-Where two or more parts of a set are negotiated to different holders in due course the holder whose title first accrues is as between such holders the true owner of the bill. But nothing in this section affects the rights of a person who in due course accepts or pays the part first presen ted to him.

lllstor;r.-1179, ch. 4524, 1897; GS 8088; RGS 4832; CGL 6918.

676.43 Liability of indorsers.-Where the holder of a set indorses two or more parts to different persons, he is liable nn every such pc1rt, and every indorser subsequent to him is liable on the part he has himself indorsed as if such parts were separate l.lills.

111Ktor;r.-U80, ch. 4524, 1897; GS 3089; RGS 4833; CGL 69111.

676.44 Acceptance.-The acceptance may be written on any part, and it must be written on one part only. If the drawee accepts more than one part, and such accepted parts are negotiated to different holders in due course, he is liable on every such part as if it were a separate bill.

lll•tor;r.-§181, ch. 4524, 1897; GS 3090; RGS 4834; CGL 69ZU.

676.45 I.iability of acceptor.-When the acceptor of a bill drawn in a set pays it without requiring the part bearing his acceptance to be delivered up to him, and that part at maturity is outstanding in the hands of a hvlder in due course, he is liable to the holder thereon.

. lllstur;r.-§182, ch. 4524, 1897; GS 3091; RGS 4835; CGL 6921.

· 676.46 When bill is discharged.-Except as herein otherwise provided, where any one part of a bill drawn in a set is discharged by payment or otherwise, the whole bill is discharged.

lllstor;r.-§183, ch. 4524, 1897; GS 3092; RGS 4836; CGL 6922. .

676.47 Negotiable promissory note.-A negotiable promissory note within . the meaning of this law is an unconditional promise in

writing made by one person to another signed by the maker, engaging to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer. Where a note is drawn to the maker's own order, it is not complete until indorsed by him.

Hlstor;r.-1184, ch. 4624, 1897; GS 3093; RGS 4837; CGL 6923.

676.48 Check.-A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this law applicable to a bill of exchange payable on demand apply to a check.

Hl•tor;r.-1185, ch. 4624, 1897; GS 3094; RGS 4838; CGL 6924.

676.49 When check must be presented for payment.-A check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.

lllator;r.-1186, ch. 4624, 1897; GS 3096; RGS 4839; CGL 6925. .

676.50 Certified check.-Where a check is certified by the bank on which it is drawn, the certification is equivalent to an acceptance.

69~~~stor;r.-§187, ch. 4524, 1897; GS 3096; RGS 4840; CGL

676.51 Holder of check.-Where the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability thereon.

Hlstor;r.-§188, cb. 4524, 1897; GS 3097; RGS 4841; CGL 6927.

676.52 When bank becomes liable.-A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank; and the bank is not liable to the holder, unless and until it accepts c,>r certifies the check.

Hlstor;r.-§189, ch. 4524, 1897; GS 3098; RGS 4842; CGL 6928 •

676.55 Checks and drafts; when deemed paid or accepted.-A check or d-raft received for de:.. posit or collection by a solvent payor or drawee bank shall not be deemed paid or accepted until the amount is charged to the account of the maker or drawer unless, though not so charged, such item is retained by the drawee or payor bank longer than the end of the business day following its receipt.

Hlator;r.-11, ch. 22609, 1946.

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Ch. 678 WAREHOUSEMEN AND WAREHOUSE RECEIPTS

6'/8.01 678.02 678.03

678.04 678.05 678.06 678.07 678.08 678.09 678.10 678.11

678.12

678.13 678.14 678.15 678.16

678.17 678.18

678.19

678.20

678.21 678.22 678.23

678.24

678.25

678.26

878.27

878.28

678.29 678.30

CHAPTER 678 WAREHOUSEMEN AND WAREHOUSE RECEIPTS

Persons who may issue receipts. 678.31 Warehouseman need not deliver until lien Form of receipts; essential terms. is satisfied. Form cf receipts; what terms may be in- 678.32 Warehouseman's lien does not preclude

serted. other remedies. Definition of nonnegotiable receipts. 678.33 Satisfaction of lien by sale. Definition of negotiable receipt. 678.34 Perishable and hazardous goods. Duplicate receipts must be so marked. 678.35 Other methods of enforcing liens. Failure to m.ark "not negotiable." 678.36 Effect of sale. Obligation of warehouseman to deliver. 678.37 Sale of goods under specified circumstances. Justification of warehouseman in delivery. 678.38 Disposition of surplus. Warehouseman's liability for misdelivery. 678.39 Negotiation of negotiable receipts by de-Negotiable receipts must be canceled when livery.

goods delivered. 678.40 Negotiation of negotiable receipts by in-Negotiable receipts must be canceled or dorsement.

marked when part of goods delivered. 678.41 Transfer of receipts. Altered receipts. 678.42 Who may negotiate a receipt. Lost or destroyed receipts. 678.43 Rights of person to whom a receipt has Effect of duplicate receipts. been negotiated. Warehouseman cannot set up title in him- 678.44 Rights of person to whom a receipt has

self. been transferred. Interpleader of adverse claimants. 678.45 Transfer of negotiable receipt without in-Warehouseman has reasonable time to de- dorsement.

termine validity of claims. 678.46 Warranties on sale of receipt. Adverse title is no defense except as above 678.47 Indorser not a guarantor.

provided. 678.48 No warranty implied from accepting pay-Liability for nonexistence or misdescription ment of a debt.

of goods. 678.49 When negotiation not impaired by fraud, Liability for care of goods. mistake or duress. Goods must be kept separate. 678.50 Subsequent negotiation. Fungible goods may be commingled, if 678.51 Negotiation defeats vendor's lien.

warehouseman authorized. 678.52 When rules of common law still applicable. Liability of warehouseman to depositors of 678.53 Interpretation shall give effect to purpose

commingled goods. of uniformity. Attachment or levy upon goods for which 678.54 Definition.

a negotiable receipt has been issued. 678.55 Issuance and transfer of warehouse receipta Creditors' remedies to reach negotiable re- for goods not in warehouse.

ceipts. 678.551 Issuance and transfer of receipt by custo-What claims are included in the ware- dian of field warehouse; penalty.

houseman's lien. 678.56 Issue of receipt containing false statement. Against what property the lien may be en- 678.57 Issue of duplicate receipt not so marked.

forced. 678.58 Issue for warehouseman's goods of receipts How the lien may be lost. which do not state that fact. Negotiable receipt must state charges for 678.59 Delivery of goods without obtaining ne-

which lien is claimed. gotiable receipt. 678.60 Negotiation of receipt for mortgaged goods.

678.01 Persons who may issue receipts.Warehouse receipts may be issued by any warehouseman.

(i) A statement of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien. If the precise amount of such advances made or of such liabilities incurred is, at the time of the issue of the receipt, unknown to the warehouseman or to his agent who issues it, a statement of the fact that advances have been made or liabilities incurred and the purpose thereof is sufficient.

Hl•to..,..-11, cb. 7408, 1917; RGS aal; CGL mo. 678.02 Form of receipts; essential terms.( 1) Warehouse receipts need not be in any

particular form, but every such receipt must embody within its written or printed terms

(a) The location of the warehouse where the goods are stored.

(b) The date of the issue of the receipt. (c) The consecutive number of the receipt. (d) A statement where the goods received

will be delivered to the bearer, to a specified person, or a specified person or his order.

(e) The rate of storage charges. (f) A description of the goods or of the

packages containing them. (g) The signature of the warehouseman,

which may be made by his authorized agent. (h) If the receipt is issued for goods of

which the warehouseman is owner, either solely or jointly or in common with others, the fact of such ownership, and

(2) A warehouseman shall be liable to any person injured thereby, for all damage caused by the omission from a negotiable receipt of any of the terms herein required.

Rl•toJT.-1!, ch. 7408, 1117; RGS 4884; CGL an. 678.03 Form of receipts; what terms may

be inserted.-A warehouseman may insert in a receipt, issued by him, any other terms and conditions, provided that such terms and conditions shall not-

(1) Be contrary to the provisions of thia chapter.

(2) In any wise impair his obligation to exercise that degree of care in the aafekeepln•

2910

WAREHOUSEMEN AND WAREHOUSE RECEIPTS Cit. fl78

of the goods intrusted to him which a reasonably careful man would exercise in regard to similar goods of his own.

Hlatory.-§3, ch. 7403, 1917; RGS 4885; CGL 6972.

678.04 Definition of nonnegotiable receipts. -A receipt in which it is stated that the goods received will be delivered to the depositor, or to any other specified person, is a nonnegotiable receipt.

Hlatoey.-14, ch. 7403, 1917; RGS 4886; CGL 6973.

678.05 Definition of negotiable receipt.-A receipt in which it is stated that the goods received will be delivered to the bearer, or to the order of any person named in such receipt, is a negotiable receipt.

No provision shall be inserted in a negotiable receipt that it is nonnegotiable. Such provision, if inserted, shall be void.

Hlatory.-§6. ch. 7408, 1917; RGS 4887; COL 6974.

678.06 Duplicate receipts must be so marked.-When more than one negotiable receipt is issued for the same goods, the word "duplicate" shall be plainly placed upon the face of every such receipt, except the one first issued. A warehouseman shall be liable for all damage caused by his failure so to do, to any one who purchased the subsequent receipt for value supposing it to be an original, even though the purchase be after the delivery of the goods by the warehouseman to the holder of the original receipt.

Hletory.-§6, ch. 7408, 1917; RGS 4888; CGL 6976.

678.07 Failure to mark "not negotiable."A nonnegotiable receipt shall have plainly placed upon its face by the warehouseman issuing it, "nonnegotiable," or "not negotiable." In case of the warehouseman's failure so to do, a holder of the receipt who purchased it for value supposing it to be negotiable, may, at his option, treat such receipt as imposing upon the warehouseman the same liabilities he would have incurred had the receipt been negotiable.

This section shall not apply, however, to letters, memoranda, or written acknowledgments of an informal character.


678.08 Obligation of warehouseman to deliver.-

( 1) A warehouseman, in the absence of some lawful excuse provided by this chapter, is bound to deliver the goods upon a demand made either by the holder of a receipt for the goods or by the depositor, if such demand is ac!!ompanied with-

(a) An offer to satisfy the warehouseman's lien.

(b) An offer to surrender the receipt, if negotiable, with such indorsements as would be necessary for the negotiation of the receipt, and

(c) A readiness and willingness to sign, when the goods are delivered, an acknowledgment that they have been delivered, if such signature is requested by the warehouseman.

(2) In case the warehouseman refuses or faila to deliver the goods in compliance with a demand by the holder or depositor so accompanied, the burden shall be upon the warehouseman to establish the existence of a lawful excuse for such refusal.

Hlator:r.-18, ch. 7403, 1917; RGS 48SO; CGL 6977.

678.09 Justification of warehouaeman ID delivery.-

A warehouseman is justified in delivering the goods, subject to the provisions of the three following sections, to one who is-

(1) The person lawfully entitled to the possession of the goods, or his agent.

(2) A person who is either himself entitled to delivery by the terms of a nonnegotiable receipt issued for the goods, or who has written authority from the person so entitled either indorsed upon the receipt or writte~ upon another paper, or

(3) A person in possession of a negotiable receipt by the terms of which the goods are deliverable to him or order or to bearer or which has been indorsed to him or in biank by the person to whom delivery was promised by the terms of the receipt or by his mediate or immediate indorsee.

Blator;r.-19, ch. 7403, 11117; RGS 4891; CGL 6978.

678.10 Warehouseman's liability for misdelivery.-

Where a warehouseman delivers the goode to one who is not in fact lawfully entitled to the possession of them, the warehouseman shall be liable as for conversion to all having a right of property or possession in the goods if he delivered the goods otherwise than as authorized by subsections (1) and (2) of §678.09, and though he delivered the goods as authorized by said subsections he shall be so liable, if prior to such delivery he had either-

(1) Been requested, by or on behalf of the person lawfully entitled to a right of property or possession in the goods, not to make such delivery, or

(2) Had information that the delivery about to be made was to one not lawfully entitled to the possession of the goods.

Hletoey.-§10, ch. 7403, 1917; RGS 4892; CGL 6979.

678.11 Negotiable receipts must be canceled when goods delivered.-Except as provided in §678.36, when a warehouseman delivers goods for which he had issued a negotiable receipt, the negotiation of which would transfer the right to the possession of the goods, and fails to take up and cancel the receipt, he shall be liable to any one who purchases for value in good faith such receipt, for failure to deliver the goods to him, whether such purchaser acquired title to the receipt before or after the delivery of the goods by the warehouseman.

lllotory.-§11, ch. 7403, 1917; RGS 4893; CGL h80.

678.12 Negotiable receipts must be canceled or marked when part of goods delivered.Except as provided in §678.36, where a ware-

2911

Ch. 678 . WAREHOUSEMEN AND WAREHOUSE RECEIPTS

houseman delivers part of the goods for which he had issued a negotiable receipt, and fails either to take up and cancel such receipt, or to place plainly upon it a statement of what goods or packages have been delivered, he shall be liable to any one who purchases for value in good faith such receipt, for failure to deliver all the goods specified in the receipt, whether such purchaser acquired title to the receipt before or after the delivery of any portion of the goods by the warehouseman.

Hl•to17.-112, ch. 7403, 1917; RGS 4894; CGL 6981.

678.13 Altered receipts.-(1) The alteration of a receipt shall not ex

cuse the warehouseman who issued it from any liability if such alteration was-

(a) Immaterial, (b) Authorized, or (c) Made without fraudulent intent. (2) If the alteration was authorized, the

warehouseman shall be liable according to the terms of the receipt as altered. If the alteration was unauthorized, but made without fraudulent intent, the warehouseman shall be liable according to the terms of the receipt as they were before alteration.

(3) Material and fraudulent alteration of a receipt shall not excuse the warehouseman who issued it from liability to deliver, according to the terms of the receipt as originally issued, the goods for which it was issued, but shall excuse him from any other liability to the person who made the alteration and to any person who took with notice of the alteration. Any purchaser of the receipt for value without notice of the alteration shall acquire the same rights against the warehouseman which such purchaser would have acquired if the receipt had not been altered at the time of the purchase.

HlatorT.-113, ch. 7403, 1917; RGS 4895; CGL 1981.

678.14 Lost or destroyed receipts.-Where a negotiable receipt has been lost or destroyed, a court of competent jurisdiction may order the delivery of the goods upon satisfactory proof of such loss or destruction, and upon the giving of a bond with sufficient sureties, to be approved by the court, to protect the warehouseman from any liability or expense, which he or any person injured by such delivery may incur by reason of the original receipt remaining outstanding. The court may also, in its discretion, order the payment of the warehouseman's reasonable costs and counsel fees.

The delivery of the goods under an order of the court, as provided in this section, shall not relieve the warehouseman from liability to a person to whom the negotiable receipt has been or shall be negotiated for value without notice of the proceedings or of the delivery of the goods. Hl•to~T.-114, ch. 7403, 1917; ROS 4891; COL 6983.

678.15 Effect of duplicate receipts.-A receipt upon the face of which the word "duplicate" is plainly placed is a representation and

warranty by the warehouseman that such receipt is an accurate copy of an original receipt properly issued and uncanceled at the date of the issue of the duplicate, but shall impose upon him no other liability.

HlatorT.-115, ch. 7403, 1917; RGS 4897; CGL 6984.

678.16 Warehouseman cannot set up title in himself.-No title or right to the possession of the goods, on the part of the warehouseman, unless such title or right is derived directly or indirectly from a transfer made by the depositor at the time of or subsequent to the deposit for storage, or from the warehouseman's lien, shall excuse the warehouseman from liability for refusing to deliver the goods according to the terms of the receipt.

Hl•to17.-l16, ch. 7403, 1917; RGS 4898; CGL 6t86.

678.17 Interpleader of adverse claimants.If more than one person claim the title or possession of the goods, the warehouseman may, either as a defense to an action brought against him for nondelivery of the goods, or as an original suit, whichever is appropriate require all known claimants to interplead. '

Hl•torT.-117, ch. 7403, 1917; RGS 4899; COL 1988.

678.18 Warehouseman has reasonable time to determine validity of claims.-If some one other than the depositor or person claimin1 under him has a claim to the title or possession of the goods, and the warehouseman hu information of such claim, the warehouseman shall be excused from liability for refusin1 to deliver the goods, either to the depositor or person claiming under him, or to the adverse claimant, until the warehouseman has had a reasonable time to ascertain the validity of the adverse claim or to bring legal proceedings to compel all claimants to interplead.

Hlatoi"T.-118, ch. 7403, 1917; RGS 4t00; CGL 1987.

678.19 Adverse title is no defense except as above provided.-Except as provided in §§678.09, 678.17, 678.18 and 678.36, no right or title of a third person shall be a defense to an action brought by the depositor or person claiming under him against the warehouseman for failure to deliver the goods according to the terms of the receipt.

HlstorT.-119, ch. 7408, 1917; RGS 4901; CGL 8981.

678.20 Liability for nonexistence or misdescription of goods.-A warehouseman shall be liable to the holder of a · receipt, issued by him or on his behalf by an agent or employee the scope of whose actual or apparent authority includes the issuing of warehouse receipts, for damages caused by the nonexistence of the goods or by the failure of the goods to correspond with the description thereof in the receipt at the time of its issue. If, however, the gooda are described in a receipt merely by a statement of marks or labels upon them, or upon packagea containing them, or by a statement that the goods are said to be goods of a certain kind, or that the packages containing the goods are said to contain goods of a certain kind, or by worda of like purport, such statements, if true, shall

2912

WAREHOUSEMEN AND WAREHOUSE RECEIPTS Ch. 678

not make liable the warehouseman issuing the receipt, although the goods are not of the kind which the marks or labels upon them indicate, or of the kind they were said to be by the depositor.

Hlstory.-§20, ch. 7403, 1917; RGS 4902; CGL 6989; am. 11, ch. 23967, 1947.

678.21 Liability for care of goods.-A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, but he shall not be liable, in the absence of an agreemE:nt to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of such care.

Hlstory.-§21, ch. 7403, 1917; RGS 4903; CGL 6990.

678.22 Goods must be kept separate.-Except as provided in the following section, a warehouseman shall keep the goods so far separate from goods of other depositors and from other goods of the same depositor for which a separate receipt has been issued, as to permit at all times the identification and redelivery of the goods deposited.

Hlotory.-122, ch. 7403, 1917; RGS 4904; CGL 6991.

678.23 Fungible goods may he commingled, if warehouseman authorized.-If authorized by agreement or by custom, a warehouseman may mingle fungible goods with other goods of the same kind and grade. In such case the various depositors of the mingled goods shall own the entire mass in common, and each depositor shall be entitled to such proportion thereof as the amount deposited by him bears to the whole.

Hlotory.-§23, ch. 7403, 1917; RGS 4905; CGL 8992.

owner of a negotiable receipt shall be entitled to such aid from courts of appropriate jurisdiction, by injunction and otherwise, in attaching such receipt or in satisfying the claim by means thereof as is allowed at law or in equity, in ·regard to property which can not readily be attached or levied upon by ordinary legal process.

Hlstory.-§26, ch. 7403, 1917; RGS 490!1; CGL 6995.

678.27 What claims are included in the warehouseman's lien.-8ubject to the provisions of §678.30, a warehouseman shall have a lien on goods deposited or on the proceeds thereof in his hands, for all lawful charges for storage and preservation of the goods; also for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing, coopering, and other charges and expenses in relation to such goods; also for all reasonable charges and expenses for notice and advertisements of sale, and for sale of the goods where default has been made in satisfying the warehouseman's lien.

Hlotory.-§Z7, ch. 7403, 1917; RGS 4909; CGL 6996.

678.28 Against what property the lien may be enforced.-Subject to the provisions of §678.30, a warehouseman's lien may be enforced-

(!) Against all goods, whenever deposited, belonging to the person who is liable as debtor for the claims in regard to which the lien is asserted, and

(2) Against all goods belonging to others which have been deposited at any time by the person who is liable as debtor for the claims in regard to which the lien is asserted, if such person had been so entrusted with the possession of the goods that a pledge of the same by him at the time of the deposit, to one who took the goods in good faith for value, would have been valid.

678.24 Liability of warehouseman to depositors of commingled goods.-The warehouseman shall be severally liable to each depositor for the care and redelivery of his Hlotory.-123, ch. 7403, 1917; RGS 4910; CGL 8997.

share of such mass to the same extent and 678.29 How the lien may he lost.-A ware-under the same circumstances as if the goods houseman loses his lien upon goods-had been kept separate. (1) By surrendering possession thereor,

Hlotory.-§24, ch. 7403, 1917; RGS 4906; CGL 8993. or 678.25 Attachment or levy upon goods for (2) By refusing to deliver the goods when

which a negotiable receipt has been issued.- a demand is made with which he is bound to 1f goods are delivered to a warehouseman by comply under the provisions of this chapter. the owner or by a person whose act in con- Hlotory.-§29, cb. 7403, 1917; RGS 4911; CGL 6998.

veying the title to them to a purchaser in good 678.30 Negotiable receipt must state ·faith for value would bind the owner, and a charges for which lien is claimed.-If a nenegotiable receipt is issued for them, they can- gotiable receipt is issued for goods the warenot thereafter, while in the possession of the houseman shall have no lien thereon, except warehouseman, be attached by garnishment or for charges for storage of those goods subse-otherwise, or be levied upon under an execu- quent to the date of the receipt, unless the tion, unless the receipt be first surrendered to receipt expressly enumerates other charges the warehouseman, or its negotiation enjoined. for which a lien is claimed. In Puch case 7he warehouseman shall in no case be com- tht>re shall be a lien for the charges enumpelled to deliver up the actual possession of the erated so far as they are within the terms of goods until the receipt is surrendered to him §678.27, although the amount of the charges or impounded by the court. so enumerated is not stated in the receipt.

Hl8tory.-§25, ch. 7403, 1917; RGS 4907; CGL 8994. Hl•tory.-§30. ch. 7403, 1917; RGS 4912; CGL 6999.

678.26 Creditors' remedies to reach negoti- 678.31 Warehousman need not deliver un-able receipts.-A creditor whose debtor is the til lien is satisfied.-A warehoU!~em-tn having

2913


a lien valid against the person dem~tnding the goods may refuse to deliver the goods to him until the lien is satisfied.

Hlstory.-§31, ch. 7403, 1917; RGS 4913; CGL 7000.

678.32 Warehouseman's lien does not preclude other remedies.-Whether ~> warehouseman has or has not a lien upon the goods he is entitled to all remedies allowed by law to a creditor against his debtor, for the collection from the depositor of all charges and advances which the depositor has exoressly or impliedly contracted with the warehouseman to pay.

Hlstory.-§32, ch. 7403, 1917 ; RGS 4914; CGL 7001.

678.33 Satisfaction of lien by sale.-A warehouseman's lien for a claim which

has become due may be satisfied as follows: The warehouseman shall give a written

notice to the person on whose account the goods are held, and to any other person known by the warehouseman to claim an interest in the goods. Such notice shall be given by delivery in person or by registered letter addressed to the last known place of business or abode of the person to be notified. The notice shall contain:

(1) An itemized statement of the warehouseman's claim, showing the sum due at the time of the notice, and the date or dates when it became due.

(2) A brief description of the goods against which the lien exists.

(3 ) A demand that the amount of the claim as stated in the notice, and of su'!h further claim as shall accrue, shall be pa id on or before a day mentioned, not less than ten days from the d_elivery of the notice if it is personally delivered, or from the time when the notice should reach its destination, according to the due course of post, if the notice is sent by mail, and

(4) A statement that unless the claim is paid within the time specified, the goods will be advertised for sale and sold by auction at a specified time and place.

In accordance with the term of a notice so given, a sale of the goods by audion may be had to satisfy any valid claim of the warehouseman for which he has a lien on the goods. The sale shall be had in the place where the lien was acquired, or If such place is manifestly unsuitable for the purpose, at the nearest suitable place. After the time for the payment of the claim specified in the notice to the depositor has elapsed, an advertis€ment of the sale, describing the goods to be sold, and stating the name of the owner or person on whose account the goods are held, and the time and place of the sale, shall be pubJished once a week for two consecutive weeks in a newspaper pubJished in the place where such sale is to be held. The sale shall not be held less than fifteen days from the time of the first publication. If there is no newspaper published in such place, the advertisement shall be posted at least ten days

before such sale in not less than six conspicuous places therein.

From the proceeds of such sale the warehouseman shall satisfy his lien including the reasonable charges of notice, advertisement and sale. The balance, if any, of such proceeds shall be held by the warehouseman, and delivered on demand to the person to whom he would have been bound to deliver or justified in delivering the goods.

At any time before the goods are so sold any person claiming a right oi property or possession therein may pay the warehouseman the amount necessary to satisf~ his lien and to pay the reasonable expet!ses and liabilities incurred in serving notices and advertising and preparing for the sale up to the time of such payment. The warehouseman shall deliver the goods to the person making such payment if he is a person entitled, under the provisions of this chapter, to the possession of the goods on payment of charges thereon. Otherwise the warehouse shall retain possession of the goods according to the terms of the original contract of deposit.

Hlstory.-§33, ch. 7403. 1917; RGS 4915: CGL 7802. cf.-§1.01{13) defines registered mall to Include certified mall

with return receipt requested.

678.34 Perishable and hazardous goods.If goods are of a perishable nature, or by keeping will deteriorate greatly in value, or by ~heir odor, leakage, inflammability, or explosIve nature, will be liable to injure other property, the warehouseman may give such notice to the owner, or to the person in whose name the goods are stored, as is reasorable and possible under the circumstancf\s, to satisfy the lien upon !mch goods, and to remove them from the warehouse, and in the event of the failure of such person to sa tisfy the lien and to remove the goods within the time so specifi<::!d. tb> v:arehouseman may sell the goods at public -.~r private sale without advertising. If the warehouseman, after a reasonable effort is unable to sell such goods, he may dispose of them in any lawful manner, and shall incur no liability by reason thereof.

The proceeds of any sale made under the terms of this section shall be disposed of in the same way as the proceeds of sale made under the terms of §678.33.

lllotory.-f34, ch. 7403, 1917; RGS 4918: CGL 7008.

678.35 Other methods of enforcing liens.T.he remedy for enforcing a Jien herein proVIded does not preclude any other remedies allowed by law for the enforcement of a lien against personal property nor bar the right to recover so much of the warehouseman's claim as shall not be paid by the proceeds of the sale of the property.

Hlatory.-§35, ch. 7403, 1917; RGS 4917; CGL 7004.

678.36 Effect of sale.-After goods have been lawfully sold to satisfy a warehouseman's lien, or have been lawfully sold or disposed of because of their perishable or hazardous nature the warehouseman shall not thereafter be liable for failure to deliver the ifOOda to

2914


the depositor, or owner of the goods, or to the holder of the receipt given for the goods when they were deposited, even if such receipt be negotiable.

Hlstor:y.-~36, ch. 7403, 1917; RGS 4918; ('QL 7005.

678.37 Sale of goods under spP.cified circumstances.-Warehousemen and ·.vharfingers may sell at public auction all good:; wares and merchandise or other articles comm,mly designated as "perishable," such as fruits, vegetables, meats and so forth, that shall have been received by them, remaining on hand unclaimed for the space of not less than ten days, and all goods, wares and merchandise, or other articles not perishable, that shall have been received by them and remaining on hand unclaimed for the space of not less than ninety days, but such sale shall, in no instance, take place without previous notice having been first given for at least two days after the expiration of said ten days, or more, in the case of perishable goods, wares and met·chandise or other articles, or for at least thirty days after the expiration of ninety days, or more, in the case of goods, wares and merchandise, or other articles that are not perishable, said previous notice to be given in one newspaper published at the place of sale, designating the time and place of sale. If there is no newspaper published at the place of said sale, wherein the legal notice can be given, then public notice may be given by five written notices posted in conspicuous places near the place of sale. The owner or consignee of such goods, wares and merchandise or other articles, may at any time prior to such sale come forward and claim the same, and after paying all charges be entitled to restitution. cJI~•\oi:i:-§1, ch. 1943, 1873; RS 2339; GS 3127; RGS 4919;

678.38 Disposition of surplus.-After all ch&rges upon said goods and merchandise or other articles are paid (not exceeding the ordinary mercantile charges for such locality), should there remain a surplus, the same shall be placed in the county treasury subject to the claim of the owner of said goods, wares and merchandise, or other articles. After the lapse of one year from the time of placing said surplus in the county treasury, ahould no person come forward to claim and receive the same, it shall be applied by the county commissioners of the county for the relief of the poor of such county.

Hlstor:y.-§§2, 3, ch. 1943, 1873; RS 2340; GS 3128; RGS 4920 ; CGL 7007.

678.39 Negotiation of negotiable receipts by delivery.-

A negotiable receipt may be negotiated by delivery-

(!) Where, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the bearer, or

(2) Where, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the order of a specified person, and such person or a subsequent indorsee of the receipt has indorsed it in blank or to bearer.

(3) Where, by the terms of a negotiable receipt, the goods are deliverable to bearer or where a negotiable receipt has been indorsed in blank or to bearer, any holder may indorse the same to himself or to any other specified person, and in such case the receipt shall thereafter be negotiated only by the indorsement of such indorsee.

Hlstor:y.-§37, ch. 7403, 1917; RGS 4921; CGL 7008.

678.40 Negotiation of negotiable receipts by indorsement.-A negotiable receipt may be negotiated by the indorsement of the person to whose order the goods are, by the terms of the receipt, deliverable. Such indorsement may be in blank, to bearer, or to a specified person. If indorsed to a specified person, it may be again negotiated by the indorsement of such person in blank, to bearer or to another specified person. Subsequent negotiations may be made in like manner.

Hl•tor;y.-§38, ch. 7403, 1917; RGS 4922; CGL 7009.

678.41 Transfer of receipts.-A receipt which is not in such form that it can be negotiated by delivery may be transferred by the hot.der by delivery to a purchaser or donee.

A nonnegotiable receipt cannot be negotiated, and the indorsement of such a receipt gives the transferee no additional right.

Hlator;y.-l:19, cb. 7403, 1917; RGS 4923; CGL 7010.

678.42 Who may negotiate a receipt.-A negotiable receipt may be negotiated-

( 1) By the owner thereof, or (2) By any person to whom the possession

or custody of the receipt has been entrusted by the owner, if by the terms of the receipt, the warehouseman undertakes to deliver the goods to the order of the person to whom the possession or custody of the receipt has been entrusted or if at the time of such entrusting the receipt is in such form thht it may be negotiated by delivery.

Hlstor;y.-§40, ch. 7403, 1917; RGS 4924 ; CGL 7011.

678.43 Rights of person to whom a receipt has been negotiated.-A person to whom a negotiable receipt has been duly negotiated acquires thereby-

(1) Such title to the goods as the person negotiating the receipt to him had or had ability to convey to a purchaser in good faith for value, and also such title to the goods as the depositor or person to whose order the goods were to be delivered by the terms of the receipt had or had ability to convey to a purchaser in good faith for value, and

(2) The direct obligation of the warehouseman to hold possession of the goods for him according to the terms of the receipt as fully as if the warehouseman had con~.racted directly with him.

Hlstor;y.-§41, ch. 7403, 1917; RGS 4925; CGL 7012.

678.44 Rights of person to whom a receipt has been transferred.-A person to whom a receipt has been transferred but not negotiated acquires thereby, as against thP transferer.

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the title of the goods, subject to the terms of any agreement with the transferer.

If the receipt is nonnegotiable, such person also acquires the right to notify the warehouseman of the transfer to him of such receipt, and thereby to acquire th<J direct obligation of the warehouseman to hold possession of the goods for him according to the terms of the receipt.

Prior to the notification of the warehouseman by the transferer or transferee of a nonnegotiable receipt, the title of the transferee to the goods and the right to acquire the obligation of the warehouseman may be defeated by the levy of an attachment or execution upon the goods by a creditor of the transferer, or by a notification to the warehouseman by the transferer or a subsequent purchaser from the transferer of a subsequent sale of the goods by the transferer.

HIAtor:v.-U2. ch. 7403, 1917; RGS 49%8; CGL 7013; am. 17. ch. 22858, 1945.

678.45 Transfer of negotiable receipt without indorsement.-Where a negotiable receipt is transferred for value by delivery, and the indorsement of the transferer is essential for negotiation, the transferee acquires a right aJrainst the transferer to compel him to indorse the receipt, unless a contrary intention appears. The negotiation shalJ take effect as of the time when the indorsement is actuaJly made.

Hl•totT.-143. ch. 7403, 1917; RGS 4927; CGL 7014.

678.46 Warranties on sale of receipt.-A person who for value negotiates or transfers a receipt by indorsement or deJivery. including one who assigns for value a claim secured by a receipt, unless a contrary intention appears, warrants:

(1) That the receipt is genuine. (2) That he has a legal right to negotiate

or transfer it. (3) That he has knowledge of no fact which

would impair the validity or worth of the receipt; and

( 4) That he has a right to transfer the title to the goods, and that the goods are merchantable or fit for a particular purpo!<e whenever such warranties would have been implied, if the contract of the parties had been to transfer without a receipt the go~ds represented thereby.

n l•tory.-§44, ch . 7403. 1917; RGS 4928: CGL 7015.

678.47 Indorser not a guarantor.-The indorsement of a receipt shalJ not make the Indorser liable for any failure on the part of the warehouseman or previous in·lorser!" of the receipt to fulfill their respective obligations.

HIAtory.-H5, ch. 7403, 1917; RGS 4929; CGL 7016.

678.48 No warranty implied from accepting payment of a debt.-A mortgagee, pledgee, or holder for security of a receipt, who in good faith demands or receives payment of the debt for which such receipt is security, whether from a party to a draft drawn for such debt or from any other person. shall not by so doing

be deemed to represent or to warrant the genuineness of such receipt or the- quantity or quality of the goods therein described.

Hlator;r.-§46, ch. 7403, 1917; RGS 4930; CGL 7017.

678.49 When negotiation not impaired b:r fraud, mistake or duress.-The validity of the negotiation of a receipt is not impaired by the fact that such negotiation was a breach of duty on the part of the person making the negotiation, or by the fact that the owner of the receipt was induced by frauti, mistake or duress to entrust the possession or custody of the receipt to such person, if the person to whom the receipt was negotiated or a person to whom the receipt was subsequently negotiated, paid value therefor, without notice of the breach of duty, or fraud, mistake or duress.

Hlatory.-147. ch. 7403, 1917; RGS 4931; CGL 7018. Am. §24, ch. 57-1.

678.50 Subsequent negotiation.-Where a person having sold, mortgaged or pledged goods which are in a warehouse and for which a negotiable receipt has been issued, or having sold, mortgaged or pledged the negotiable receipt representing such goods, continues in possession of the negotiable receipt, the subsequent negotiation thereof by that person under any sale, or other disposition fhereof to any person receiving the same in good faith, for value and without notice of th<:! previous sale, mortgage or pledge, shall have the same effect as if the first purchaser of the goods or receipt had expressly authorized the subsequent negotiation.

HletotT.-§48, ch. 7403, 1917; RGS 4932; CGL 7019.

678.51 Negotiation defeats vendor•s lien.Where a negotiable receipt has bE:en issued for goods, no seller's lien or right of stoppage in transitu shall defeat the right of any purchaser for value in good faith to whom such receipt has been negotiated, whether such negotiation be prior or subsequent to the notification to the warehouseman who issued such receipt of the seller's claim to a lie'l or right of stoppage in transitu. Nor &hall the warehouseman be obliged to deliver or justified in delivering the goods to an unpaid seller unless the receipt is first surrendered for cancellation.

Hhtor;r.-§49, ch. 7403, 1917; RGS 4933; CGL 7020.

678.52 When rules of common law still applicable.-ln any case not provided for in this chapter, the rules of law and equity, including the law merchant, and in particular the rules relating to the law of principal and agent and to the effect of fraud, misrepresentation, duress or coercion, mistake, bankruptcy, or other invalidating cause, shall govern.

Hletor;r.-§56, ch. 7403, 1917; RGS 4934; CGL 7021.

678.53 Interpretation shall give effect to purpose of uniformity.-This chapter shall be so interpreted and construed as to effectuate

2916 .


its general purpose to make uniform the law of those states which enact it.

Hlator;r.-§57, ch. 7403, 1917; RGS 4936; CGL 7022.

678.54 Definition.-In this chapter, unless the context or subject matter otherwise requires:

"Action" includes counter claim, setoff, and suit in equity.

"Delivery" means voluntary transfer of possession from one person to another.

"Fungible goods" means goods of which any unit is, from its nature or by mercantile custom, treated as the equivalent of any other unit.

"Goods" means chattels or merchandise in storage, or which has been or is about to be stored.

"Holder" of a receipt means 11 person who has both actual possession of such receipt and a right of property therein.

"Order" means an order by indorsement on the receipt.

"Owner" does not include mortgagee or pledgee.

"Person" includes a corporation or partnership or two or more persons having a joint or common interest.

To "purchase" includes to take as mortgagee or as pledgee.

"Purchaser" includes mortgagee and pledgee. "Receipt" means a warehouse receipt. "Value" is any consideration sufficient to

support a simple contract. An antecedent or pre-existing obligation, whether for money or not, constitutes value where a receipt is taken either in satisfaction thereof or as security therefor.

"Warehouseman" means a person lawfully engaged in the business of storing goods for profit.

A thing is done "in good faith" within the meaning of this chapter when it is in fact done honestly, whether it be done negligently or not.

HIAtor;r.-§58, ch. 7403, 1917; RGS 4936; CGL 7023. er.-§1.01, General definitions.

678.55 Issuance and transfer of warehouse receipts for goods not in warehouse.-N o warehouseman, or any officer, agent, or servant of a warehouseman, shall issue, or aid in the issuance of a warehouse receipt, and no person shall sell, assign, transfer, or pledge any warehouse receipt, except recognized lending agencies, unless he personally knows of his own knowledge that the goods for which such receipt is issued have been actually received and stored in such warehouse, and are under the actual control of such warehouseman at the time of the issuance of such receipt, or at the time such warehouse receipt is sold, assigned, transferred, or pledged. Any person violating the provisions of this section shall be deemed guilty of a crime and upon conviction, shall be punished for each such offense by imprison-

ment in the state prison not exceeding ten years or by a fine not exceeding five thousand dollars.

Hl•tnry.-§50. ch. 7408, 1917; RGS 5673; CGL 7883. Am. U. ch. 28237. 1953.

cf.-1775.06, Alternative punishment.

678.551 ~~~uance and transfer of receipt by custodian of field warehou~e: penalty.-Tt shall be unlawful for the cu~todian of a field warehouse to i!lsue a custodian's certificate or receipt, and it l'lhall be unlawful for a processor, owner of goods. or any other person to procure the issuance of such custodian's certificate or receipt, unless the goods for which such certificate is issued, are actually in existance and have been delivered to such custodian, and are in his physical possession and under his control. Any person violating the provisions of this section shall be deemed guilty of a crime and upon conviction. shall be punished for each such offense by imprisonment in the state prison for a period not exceeding ten years, or by a fine not exceeding five thousand dollars.

Blotory.--Comp. f2, ch. 2823'1, 1953.

6"7H.56 Issue of receipt containing false statement.-A warehouseman, or any officer, agent or t:~ervant of a warehouseman. who fraudulently ist:~ues or aids in fraudulently issuing a receipt for SZ"oods knowin~ that it contains any false statement. shnll be guilty of a crime, and upon ronviction shall be punished for each offense hy imprisonment not exceedinSZ" one yt>ar. or by a fine not exceeding one thousand dollars. Hl~tnry.-§51. ch. 7403, 1917: RGS 5674; CGL 7884.

cf.-§775.06, Alternative punishment.

67R57 Issue of duplicate re"eipt not so marked.-A warehouseman, or any officer, agent or 11ervant of a warehoaseman, who issues or aids in issuing a duplic·ate or additioPal neSZ"otiable receipt for goC'dll, knowing that a former negotiable receipt for the same goods or any part of them is outstanding and uncanrelled. without plainly nlacing upon the face thereof the word "duplicate." except in the case of a lost or de~troyed rt>ccipt, after proceeding!! as provided for in ~678.14, shall be guilty of a crime. and upon cor.vidion shall be punisht>d for each offen~~e by imprisonment not exceedinSZ" five yt>ars. or a fine not exceeding five thousand dollars. Hl~tnry.-~n2. ch. 7403. 1917: RGS 5675; CGL 7885.

cf.-~775.06. Alternative punishment.

67H.58 Tssue for warE'housE>man's good!'! of receipts which do not state that fnct.-Where there are depo!lited with or held by a warehouseman ,:!'ood!'l of which he i!l owner, either sclf'ly or jointly or in common with others, such warehou~t>man, or any of his officers. aSZ"ents. or servants. who, knowtn~ this ownership, is11ues or aids in iii!IHing a negotiable receipt for such SZ"oods whirh does not. state such ownership, shall be guilty of a crime, and upon conviction shall be punislted for each offense by imprisonment not exceeding one

2917


year, or by a fine not exceeding one thousand dollars.

Hlator;T.-§53, ch. 7403, 1917; RGS 6676; CGL 7886. ct.-§775.06, Alternative punishment.

678.59 Delivery of goods without obtaining negotiable receipt.-A warehouseman, or any officer agent or servant of a warehouseman, who delivers goods out of the possession of such warehouseman, knowing that a :negotiable receipt, the negotiation of ~hich would transfer the right to the possesswn of such goods, is outstanding and uncanceled, without obtaining the possession of such receipt at or before the time of such delivery, shall, except in the cases provided for in §§678.14 and 678.36, be found guilty of a crime, and upon conviction shall be punished for each offense

by imprisonment not exceeding one year, or by a fine not exceeding one thousand dollars.

Hlstory.-§64, ch. 7403, 1917; RGS 6677; CGL 7887. cf.-§775.06, Alternative punishment.

678.60 Negotiation of receipt for mortgaged goods.-Any person. who deposits . ~oods to which he has not title, or upon wmch there is a lien or mortgage, and who takes for such goods a negotiable receipt wh_ich ~e afterwards negotiates for value and w1th mtP.nt to deceive, and without disclosing his want of title or the existence of the lien or mortgage, shall be guilty of a crime, and upon .convicti?n shdl be punished for each offen!'.e I'Y tmpnsonment not exceeding one year, or by a fine not exceeding one thousand dollars.

Hlator;T.-§65, t::h. 7403, 1917; RGS 6678; CGL 7888. cf.-§776.06, Alternative punishment.

~.us

LEGAL HOLIDAYS Ch. 683

CHAPTER 683

LEGAL HOLIDAYS

683.01 Legal holidays designated. 683.02 Meaning of term "legal holidays" as used

In contracts. 683.03 Veterans' day.

683.01 Legal holidays designated.-(!) The legal holidays are: the first day of

the week, commonly called Sunday; the first day of January, New year's day; January 19, birthday of Robert E. Lee; February 22, Washington's birthday; April 26, Confederate memorial day; May 30, Memorial day for veterans of all wars; June 3, birthday of Jefferson Davis; July 4, Independence day; first Monday in September, Labor day; general election day; the day set apart each year by congress or the president of the United States, or, in the absence of the designation of a day by either congress or the president, the day set apart each year by the governor of Florida, Thanksgiving day; December 25, Christm ::ts day; Good Friday; October 12, Columbus day and Farmers' day; November 11, Veterans' day; and in cities or towns where carnival associations are organized for the purpose of celebrating the same, the day in each year known as Shrove Tuesday, shall for all purposes whatsoever as regards the presenting for payment or acceptance and of the protesting and giving notice of dishonor of negotiable instruments, be treated and considered as public holidays.

(2) Whenever any legal holiday shall fall upon a Sunday, the Monday next following shall be deemed a public holiday for all and any of the purposes aforesaid.

H""tor7.-RS 2315. 2316; 11, ch. 4487. 1895; 11. ch. 4488, 1895; §1, ch. 4198, 1898; 11. ch. 11295, 1903; lt. ch. 11392. 19011; GS 3102; 11, ch. 6872, llllli; ROS 4841; COL 11112; 11. oJa. 16067, 1933; 11, ch. 20260, 1941; 11, ch. 20525, 1941; am. 11. ch. 22810, 11145; 11, ch. 291128, 1955.

683.02 Meaning of term "legal holidays" as used in contracts.-Wherever in contracts to be performed in the state, reference is made to "legal holidays," legal holidays shall be understood to be the following:

The first day of the week, Sunday; January 1, New year's day; January 19, birthday of Robert E. Lee; February 22, Washington's birthday; April 26, Memorial day; June 3, birthday of Jefferson Davis; July 4, Independence day; first Monday in September, Labor day; general election days; Thanksgiving day; December 25, Christmas day; Good Friday; October 12, Columbus day and Farmers' day; November 11, Veterans' day; and also the day known as Shrove Tuesday, commonly known as Mardi Gras in counties where there may be a ca.rnival association.

Blatnr:r-11, ch. 5392, 1905; ch. 6872, 1915; RGS 4847; OOL 81133; 12, ch. 18067, 11133; 12, ch. 291128, 11155.

683.03 Veterans' day.-The eleventh day of November each year shall be known as Veterans' day, and shall be a legal holiday. All public schools, city, county, and state offices may

683.04 Arbor day. 683.05 Pan-American day. 683.06 Pascua Florida day. 683.07 Memorial day, state legal holiday.

remain closed on Veterans' day, and the governor of this state shall each year issue a proclamation calling upon the citizens of this state to set aside all business and to rejoice with the free peoples of the earth.

Jlletor;r.-§1, ch. 7754, 1918; RGS 4848; 11, ch. 9326, 1921; COL 6934; 13, ch. 29928, 1955.

683.04 Arbor day.-The third Friday in January of each year be and is hereby designated as Arbor Day in the state.

Hlator;r.-§1, ch. 22538, 1945.

683.05 Pan-American day.-(1) The governor shall proclaim the four

teenth day of April of each year to be "PanAmerican Day," which day shall be suitably observed in the public schools of the state as a day honoring the republics of Latin America, and which day shall otherwise be suitably observed by such public exercises in the state capitol and elsewhere as the governor may designate. If the fourteenth day of April shall fall on a day which is not a school day, "Pan-American Day" shall be observed in the schools on the school day next preceding or on such preceding day as may be designated by local school authorities.

( 2 ) The purpose of the Ia~ is to esta~Iish .a day on which the mutually, frtendly relabonshtp between the state and the Pan-American Republics will be recognized and perpetuated.

Blator;r .-§11, 2, ch. 22975, 1945.

683.06 Pascua Florida day.-(1) April 2 of each year is hereby desig

nated as Florida state day. The day to be known as "Pascua Florida Day."

(2) The governor may annually issue a proclamation designating April 2 as said state day and designating the week of March 27 to April 2 as "Pascua Florida" week at the suggestion of Mary A. Harrell, and calling upon public schools and citizens of Florida to observe the same as a patriotic occasion. Said day will be observed on April 2 unless the day fall on Saturday or Sunday, in which event the governor may declare the preceding Friday or following Monday as state day.

Hlator7.-comp. I I 1, :1, ch. 21083, 11153.

683.07 Memorial day, state legal holiday.-(1) The governor shall proclaim May SO

of each year to be Memorial day which day shall be suitably observed by the schools of the state as a day honoring the American soldiers of all wars who have given their last full meaaure of devotion to their country.

(2) The governor shall issue a proclamation each year on May 30 calling upon the people of Florida to set aside all business for the proper observance of this day.

Hla&817.--comp. Ill, :1, oh. :INI:I, 1111.

2919 '

Ch. 685 COLLATERAL SECURITIES

CHAPTER 685 COLLATERAL SECURITIES

685.01 Collaterals attached to bills of lading, etc.

685.01 Collaterals attached to bills of lading, etc.-Whenever any goods, wares or merchandise shall be shipped into or out of this state, or between points within the limits of the state, and the bill of lading or other evidence of shipment thereof shali be attached to, or transmitted with, any commercial paper, for the price or purchase money of such goods, or any part thereof, the collector or holder of such commercial paper shall not, under any circumstances, except by express contract in writing, be held to be the warrantor of the quality or quantity or title of the goods, wares or merchandise represented by the bill of lading, or other evidence of shipment.

Hlstory.-§1, ch. 4760, 1899; GS 3100; RGS 4844; CGL 6930.

685.02 Sale of collateral securities.-In all eases in which any stock in a corporation, eontract, obligations, security or evidence of indebtedness, shall be :>ledged or deposited as security for the payment of any indebtedness, the person or corporation to whom the same may be pledged, hypothecated or transferred, and their as~igns, may sell the same in such manner and on such terms as may be agreed upon in writing by the parties at the time of making the pledge, or thereafter, and such sale shall vest

685.02 Sale of collateral securities.

in the purchaser or purchasers the title in and to said pledges, collaterals or securities; provided ten days' notice of said sale be given to the pledgor or his legal representative by personal delivery or by registered mail addressed to the pledgor at the address given by him to the pledgee for that purpose, such period of notice to begin to run from the date of such personal delivery or from the date of posting if such notice is given by registered mail; and provided further that whenever such notice has been waived by the written agreement of the pledgor incorporated in said pledge, or in a separate written instrument executed at the time of or at any time after the making of such pledge, any stocks, bonds or other securities which are listed upon the New York stock exchange, the New York curb exchange, the Boston stock exchange, the Chicago stock exchange, the Philadelphia stock exchange, the Pittsburgh stock excharge, or the San Francisco stock exchange, may be sold by the pledgee without notice at a price not less than the lowest market price of such securities on the date of such sale.

Bl&tory.-§1, ch. 4376, 1895; GS 8101; 11, ch. 5905, 190t; RGS 4845; CGL 6931; fl. ch. 19013, 1939; am. 11, ch. 13181. 1947. cf.-11.01(13) defines registered mall to Include certified mall

with return receipt requested.

··, ,

INTEREST AND USURY Ch. 687

CHAPTER 687

INTEREST AND USURY

687.01 Rate of interest. 687.02 Usurious contracts defined. 687.03 Unlawful rates of interest defined; proviso. 687.031 Construction, §§687 .02 and 687.03. 687.04 Penalty for usury; not to apply to trans

feree of negotiable paper unless usury appears on face.

687.05 Provisions for payment of attorney's fees. 687.06 Attorney's fee in enforcing nonusurious

contracts; proviso; insurance premiums; attorney's fee provided in note.

687.07 Forfeiture and penalL in case of excessive interest or charges.'

687.01 Rate of interest.-In all cases where interest shall accrue without a special contract for the rate thereof, the rate shall be six per cent per annum, but parties may contract for a lesser or greater rate by contract in writing.

Hlator;y.-§1, ch. 1483, 1866; §§1, 2, ch. 1562, 18!nf; ftS 2320; GS 3103; RGS 4849; CGL 6936; am. §1, ch. 22745, 1945. c!.-§§65.03, 55.04 Judgments.

687.02 Usurious contracts defined.-All contracts, other than of a corporation, for the payment of interest upon loan, advance of money, or forbearance to enforce the collection of any debt, or upon any contract whatever at a higher rate of interest than ten per cent per annum, are hereby declared usurious; and any such contract whereby a corporation undertakes to pay an interest rate higher than fifteen per cent per annum is hereby declared usurious.

Hlator;y.-§1, ch. 4022, 1891; GS 3104; 11, ch. 6960, 1909; ROS 4850; COL 6937; f 1, ch. 29705, 1955. ct.-Ch. 516, Small Loan Business.

§668.09, Collection of fines, Interest or premium on Joana made by bulldlne and loan aaaoclatlona.

687.03 Unlawful rates of interest defined; proviso.-It shall be usury and unlawful for any person, or for any agent, officer or other representative of any person, to reserve, charge or take for any loan, or for any advance of money, or for forbearance to enforce the collection of any sum of money, except upon an obligation ·of a corporation, a rate of interest greater than ten per cent per annum, either directly or indirectly, by way of commission for . advances, discounts, exchange, or by imy contract, contrivance or device whatever, whereby the debtor is required or obligated to pay a sum of money · greater than the actual principal sum received, together with interest at the rate of ten per cent; and such transactions with a corporation shall, whereby the corporation pays interest, be usury and unlawful if for a rate of interest greater than fifteen per cent per annum. The provisions of this section shall not apply to sales of bonds in excess of one hundred dollars and mortgages securing the same, or money loaned on bonds.

Hlotor;y.-~2. ch. 4022, 1891; GS 3105; 12, ch. 5960, 1909; ROB 4851; COL 6938. 12. eh. 29705, 1955. ct.-11.01 (3), "Person" defined.

687.031 Construction, §§687.02 and 687.03.Sections 687.02 and 687.03 shall not be construed to repeal, modify or limit any or either of the special provisions of existing statutory

687.08 Persons lending money to give borrower receipt for payments; contents of receipt; penalty for violation.

687.09 Persons accepting chattel mortgage as security for loans under one hundred dollars to cause amount as principal, etc., to be inserted.

687.10 Not applicable to chartered banks, tT?st companies, building and loan associations, savings and loan associations, or insurance companies.

law creating exceptions to the general law governing interest and usury (chapter 687) ~nd specifying the interest rates and charg~s wh1.ch may be made pursuant to such exceptions •. Including but not limited to those exceptions which relate to banks, Morris plan banks, discount consumer financing, small loan coml?anies and domestic building and loan associa-tions.

Bldor;r.-Comp. f3, ch. 29705, 1955.

687.04 Penalty for usury; not to apply to transferee of negotiable paper unless usury appears on face.-Any person, or any agent, officer or other representati':e. of any person, willfully violating the provisions of ~687.03 shall forfeit the entire interest so charged, or contracted to be charged or reserved, .and only the actual principal sum. of such usurlO';IS contract can be enforced m. any ~ou.rt m thif: state, either at law or .m equity, and when said usurious interest IS taken or r~ served, or has been paid, then and in that evf'nt the person. ":'ho ha~ taken or. re~erved, or has been paid, etther dtrectly or ~ndtrectly, such usurious interest, shall forfP.It to the party from whom such usurious _interest has been reserved, taken or exacted m any way, double the amount of interest so reserved, taken or exacted; provided, however, that this shall not apply to a bona fide endorsee or transfe;ee of negotiable paper purchased before matur1ty, unless the usurious character should appear upon its face or that the said endorsee or transferee shall h;ve had actual notice of the same before the purchase of such paper, but in such event double the amount of such usurious interest may be recovered after payment, by action ~gainst the party originally exac•ing the same, m any court of competent jurisdiction in this st.ate, t~gether with an attorney's fee, as provtded m §687.06.

nt8 tnr;y.-l3, eb. 4022. 1891; GS Slot: 13, eh. 6980, 1901; RGS 4852; CGL 6939.

687.05 Provisions for payment of attorney's fees.-No provision for the payment of .at~orney's fees, or charge for e~change or stm~lar charge shall render such mstr~ment su~Je.ct to the terms of any statute of th1s state, hmlting the amount of interest which shall be chl:lrged on such instrument. ·

lll•tur7 .-§2, eh. 4874, 1895; GS 8107; RGS 4853; CGL 6940 •.

2921

Ch. 687 INTEREST AND USURY

687.06 Attorney's fee in enforcing nonusurious contracts; proviso; insurance premiums; attorney's fee provided in note.-This chapter shall not be so construed as to prevent provision for the payment of such attorney's fees as the court may determine in cases brought before the court to be reasonable and just for legal services rendered in enforcing nonusurious contracts, ~ither at law or in equity; provided, that no attorney's fees shall be allowed in any court of the justice of the peace for a sum to exceed five dollars; provided further, that this chapter shall not be construed so as t o prohibit mortgagee~ from contracting for or collecting premiums for insurance actually issued on the property mortgaged, with the usual loss payable or mortgage clause attached thereto; provided further, that It shall not be necessary for the court to adjudge an attorney's fee, provided in any note or other instrument of writing, to be reasonable and just, when such fee does not exceed ten per cent of the principal sum named in said note, or other instrument in writing. clfL·~s'l!:-§4, ch. 6960, 1909; 11. ch. 6870, 1916; RGS 4864;

687.07 Forfeiture and penalty in case of excessive interest or chnrges.-Any person, or the agent, officer or other representative of any person, lending money in this state who shall willfully and knowingly charge or accept· any sum of money greater than the sum of money loaned, and an additional sum of money equal to twenty-five per cent per

· anrium upon the principal sum loaned, by any contract, contrivance or device whatever, directly or indirectly, by way of col!lmissions, discount, exchange, interest, 'prttended sale of any article, assignment of salary or wages,

·inspection fees or other fees or otherwise, or for forbearing to enforce the collection of such ·moneys or otherwise, shall forfeit the entire sum, both the principal anj interest, to · the party charged such usurious interest, and shall be deemed guilty of a misdemeanor, and on conviction, be fined not more than one hundred dollars, ' or be imprisoned in the county jail not more than ninety days.

Hlator;r.-§6, ch. 6960, 1909; RGS 4866, 5889 ; CGL 8942, TVOS. rt.-f7TIUHI Alternathe paaS.hm•t.

687.08 Persons lending money to ~:ive borrower receipt for payments; contents of receipt; penalty for violation.-Every person, or the agent, officer, or other rept·esentative of any person, lending money in this state upon security shall, whenever the borrower of such money makes payment of any money, either principal or interest, immediately upon such payment being made, give to said borrower, a receipt, dated of the date of such payment, which receipt shall state the amount paid and for what such payments is made. If such payment is for interest on the sum borrowed, the receipt shall so state. If the sum so paid is to be applied to the payment of the principal sum borrowed, the receipt shall so state. All such receipts shall be duly and properly signed by the person, or the agent, officer or other representative of the person, to whom such money is paid. Whoever refuses, upon demand, to give a receipt complying with the requirements of this section shnll forfeit the entire interest upon said principal sum to the borrower.

Blstory.-§6, ch. 6960, 1909; RGS 4868: CGL 8943. cf.-§1.01(3) "Person" defined.

687.09 Persons accepting chattel mortgage as security for loans under one hundred dollars to cause amount as principal, etc., to be inserted.-Every mortgagee accerting a mortgage on personal property as security for the repayment of a loan of money less than one hundred dollars shall cause to be stated in such mortgage, separately and distinctly, the several amounts secured as principal, interest and fees, and any mortgagee wil!fu!ly violating the provisions of this section shall forfeit ali interest and fees secured by such mortgage. and be entitled to recover only the principal sum.


687.10 Not applicable to chartered banks tru~t companies, building and loan associationS: savmgs and · loan associations, or insurance companies.-The provisions of §§687.08 and 687.09 shall not apply to chartered banks state or national, trust companies, building and loan associations or to savings and loan associations whether chartered under state or federal stat: utes, or insurance companies.

Blotory.-§8, ch. 5960, 1809; ROB 'ISS; COL 8945; §1, ch. 59-110.

2922

TITLE XXXIX REAL AND PERSONAL PROPERTY

CHAPTER 689

CONVEYANCES OF LAND AND DECLARATIONS OF TRUST

689.01 689.02 689.03 689.04 689.05 689.06 689.07

How real estate conveyed. 689.11 Conveyances between husband and wUe Form of warranty deed prescribed. direct. Effect of such deed. 689.12 How state lands conveyed for educational· How executed. purposes. How declarations of trust proved. 689.13 Rule against perpetuities not applicable to How trust estate conveyed. dispositions of property for private cem~-. "Trustee" or "as trustee" added to name of teries, etc.

grantee, transferee, assignee or mortga- 689.14 Entailed estates. gee transfers interest or creates lien as "if 689.15 Estates by survivorship. additional word or words not used. 689.17 Rule in Shelley's case abolished.

689.08 689.09 689.10

Fines and common recoveries. 689.18 Reverter or forfeiture provisions, limita-Deeds under statute of uses. tions: exceptions. Words of limitation and the words "fee 689.19 Variances of names ln recorded instruments.

simple" dispensed with. 689.20 Limitation on use of word "minerals."

689.01 How real estate conveyed.-No estate or interest of freehold, or for a · term of more than one year, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shaH be created, made, granted, transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party . creating, making, granting, conveying, transferring or releasing such estate, interest, or term of more than one year, or by his agent thereunto lawfully authorized, unless by will and testament, or other testamentary appointment, duly made according to law; and no estate or inter- · est, either of freehold, or of term of more than one year, or any uncertain interest of, in, to or out of any messuages, lands, tenements or hereditaments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by his attent thereunto lawfully authorized, or by the act and operation of law. No seal shaH be necessary to give validity to any instrument executed in conformity with this section. Corporations may convey in accordance with the provisions of this section or in accordance with the provisions of §§692.01 and 692.02.

Blotor,..-§1, Nov. 15, 1828; RS 1950; OS 2448; ROB 3717; COL 5860; §4, ch. 20954, 1941. cf.-§194.01 et seq., Tax sale certificates and tax deeds.

§692.01 et seq., Conveyances by corporations to be sealed.

§693.01 et seq., Conveyances of married women's In-terest In real estate.

§695.01, Recordation of conveyances. §695.03, Acknowledgment and proof. §695.031, Affidavits and acknowledgments by membera

ot armed service.

1725.01 Fraudulent sales. 727.01 et seq., General assignment.

689.02 Form of warranty deed prescribed.Warranty deeds of conveyance to land may be in the following form, viz.:

"This indenture, made this -----------------·-- day of -------- ---------- A. D. ________ , between ____________________ , of the county of ----------------------- in the State of -------------------------- • party of the first part, and -------------------• of the county of ...... ·-· --- ____ , in the

~ State of ______________________ , party of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of -------------------- dollars, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained and sold to the said party of the second part, his heirs and assigns forever, the following described land, to-wit: ------------------------

~~-------- ---------------------___ :,. __________ ______________________________ ._ __ And the said party of the first part does hereby fully warrant the title to said land, and will defend the same against the lawful claims of all persons whomsoever."

Blator,-.-§1, ch. 4038, 1891; GS 2449; RGS 8188; CGL 6661.

689.03 Effect of such deed.-A conveyance e~ecuted substantially in the foregoing form shall be held to be a warranty deed with full ·common law covenants, and shall just as effectually . bind the grantor, and his heirs, as if said cove.:.: nants were specifically set out therein. And this · form of conveyance when signed by a married · woman shall be held to convey whatever inter- · est in the property conveyed which she·. may ' possess.

Hlstor,-.-§2. ch. 4038, 1891; GS 2460; RGS 8789; CGL · 6662: §6, ch. 20954, 1941.

689.04 How executed.-Such deeds shall be executed and acknowledged as is now or may hereafter be provided by the law regulating conveyances of realty by deed.

Hlatory.-§3, ch. 4038, 1891; GS 2451; RGS 8790; CGL . 5663. .. cf.-§693.03, Married women's acknowledgments.

§695.03, Acknowledgment. . §696.031, Acknowledgments by member~~ of armec!

forces.

689.05 How declarations of trust proved.AII declarations and creations of trust and confidence of or in any messuages, lands, tene- · ments or hereditaments shall be manifested · and proved by some writing, signed by th4J! party authorized by law to declare or create ·

2923

Ch. 689 CONVEYANCES OF LAND AND DECLARATIONS OF TRUST

such trust or confidence, or by his last will and testament, or else they shall be utterly void and of none effect; provided, always, that where any conveyance shall be made of any lands, messuages or tenements by which a trust or confidence shall or may arise or result by the implication or construction of law, or be transferred or extinguished by the act and operation of law, then, and in every such case, such trust or confidence shall be of the like force and effect as the same would have been if this section had not been made, anything herein contained to the contrary in anywise notwithstanding.

Hletor;,-.-§2, Nov. 16, 1828; RS 1961; GS :&462; RGS 8791: CG L 6664.

appear in the instrument; provided that there shall not appear of record among the public records of the county in which the real property is situate at the time of the recording of such instrument, a declaration of trust by the assignee or transferee so described declaring the purposes of such trust, if any, or declaring that the interest in real property is held other than for the benefit of the transferee or assignee.

(3) Every mortgage of any interest in real estate or assignment thereof heretofore or hereafter made or executed in which the words "trustee" or "as trustee" are added to the name of the mortgagee or assignee and in which no beneficiaries are named nor the nature and

689.06 How trust estate conveyed.-All purposes of the trust, if any, are set forth, shall grants, conveyances or assignments of trust vest and is hereby declared to have vested or confidence of or in any lands, tenements full rights of ownership to such mortgage or or hereditaments, or of any estate or interest assignment and the lien created thereby with therein, shall · be by ·deed signed, sealed and full power in such mortgagee or assignee to delivered, in the presence of two subscribing assign, hypothecate, release, satisfy or forewitnesses, by the party granting, conveying close such mortgage unless a contrary intention or assigning, or by his attorney or agent there- shall appear in the mortgage or assignment; unto lawfully authorized, or by last will and provided that there shall not appear of record testament duly made and executed, or else the among the public records of the county in same shall be void and of none effect. which the property constituting security is

Hletor:r.-13, Nov. 16, 1828; RS 1952; as 2453; RGS 8792; situate at the time of recording of such mort-caL 5665• gage or assignment, a declaration of trust by

689.07 "Trustee" or "as trul'ltee" added to such mortgagee or assignee declaring the purname of grantee, transferee, assignee or mort- poses of such trust, if any, or declaring that gagee transfers interest or creates lien as if such mortgage is held other than for the bene-additional word or words not used.- fit of the mortgagee or assignee.

(1) Every deed or conveyance of real ( 4) Nothing herein contained shall prevent estate heretofore or hereafter made or exe- any person from causing any declaration of cuted, in which the words "trustee" or "as trust to be recorded before or after the recordatrustee" are added to the name of the grantee, tion of the instrument evidencing title or ownand in which no beneficiaries are named ership of property in a trustee; nor shall this nor the nature and purposes of the trust, section be construed as preventing any beneif any, are set forth, shall grant and is hereby ficiary under an unrecorded declaration of trust declared to have granted a fee simple estate from enforcing the terms thereof against the with full power and authority in and to the trustee; provided, however, that any grantee, grantee in such deed to sell, convey and grant transferee, assignee or mortgagee, or person oband encumber both the legal and beneficial in- taining a release or satisfaction of mortgage terest in the real estate conveyed, unless a con- from such trustee for value prior to the placing tary intention shall appear in the deed or con- of record of such declaration of trust among veyance; provided, that there shall not appear the public records of the county in which such of record among the public records of the real property is situate, shall take such intercounty in which the real property is situate at est or hold such previously mortgaged property the time of recording of such deed or convey- free and clear of the claims of the beneficiaries ance, a declaration of trust by the grantee so of such declaration of trust and of anyone described declaring the purposes of such trust, claiming by, through or under such beneficiif any, declaring that the real estate is held aries, and such person need not see to the appliother than for the benefit of the grantee. cation of funds furnished to obtain such trans-

(2) Every instrument heretofore or here- fer of interest in property or assignment or after made or executed transferring or assign- release or satisfaction of mortgage thereon. ing an interest in real property in which the (5) Iri all cases in which tangible personal words "trustee" or "as trustee" ·are added to property is or has been sold, transferred or the name of the transferee or assignee, and mortgaged in a transaction in conjunction with in which no beneficiaries are named nor the and subordinate to the transfer or mortgage of nature and purposes of the trust, if any, are real property, and the personal property so set forth, shall transfer and assign and is transferred or mortgaged is physically located hereby declared to have transferred and as- on and used in conjunction with such real signed the interest of the transferor or assignor property, the prior provisions of this section to the transferee or assignee with full power are applicable to the transfer or mortgage of and authority to transfer, assign and encumber such personal property, and, where the prior such interest, unless a contrary intention shall provisions of this section in fact apply to a

2924 .

CONVEYANCES OF LAND AND DECLARATIONS OF TRUST Ch. 689

transfer or mortgage of personal property, then any transferee or mortgagee of such tangible personal property shall take such personal property free and clear of the claims of the beneficiaries under such declaration of trust (if any), and of the claims of anyone claiming by, through or under such beneficiaries, and the release or satisfaction of a mortgage on such personal property by such trustee shall release or satisfy such personal property from the claims of the beneficiaries under such declaration of trust (if any) and from the claims of anyone claiming by, through or under such beneficiaries.

HIRtory,-§1, cb. 6925, ]915: §10, OIUb-§11, ch. 7!!38, 1919; RGS 3793; COL 5666; (1) , (2) - (5) N. by §1, ch. 59-251 .

Note.- §2, ch. 59-251 provides tha.t subsections (2), (3) , (4) a.nd (5) do not apply to pending lltlga.tlon.

689.08 Fines and common recoveries.Conveyance by fine or by common recovery shall neYer be used in this state.

Rl•tor:v .-~2. Feb. 4, 1835; RS 1953; GS 2454; RGS 8794 ; CGL 5667.

689.09 Deeds under statute of uses.-By deed of bargain and sale, or by deed of lease and release. or of covenant to stand seized to the use of any other person, or by deed operating by way of covenant to stand seized to the use of another person, of or in any lands or tenements in this state, the possession of the bargainor, releasor or covenantor shall be deemed and adjudged to be transferred to the bargainee, releasee or person entitled to the ose as perfectly as if such bargainee, releasee or person entitled to the use had been enfeoffed by livery of seizin of the land conveyed by such deed of bargain and sale, release or covenant to stand seizerl; provided, that livery of seizin can be lawfully made of the lands or tenements at the time of the execution of the said deeds or any of them.

HIRtor:v.-§12, Nov. 16, 1828; R:;l1954; GS 2455; RGS 3796 : CGL 56il8.

689.10 Words of ]imitation and the words "fee simple" dispensed with.-Where any real estate has heretofore been conveyed or granted or shall hereafter be conveyed or granted without there being used in the said deed or conveyance or grant any words of limitation, such as heirs or successors, or similar words, such conveyance or grant, whether heretofore made or hereafter made, shall be construed to vest the fee simple title or other whole estate or

grantee need not join in the execution of such· conveyances. An estate by the entirety may be created by the spouse holding fee simple title conveying to the other by a deed in which the purpose to create such estate is stated.

(2) All deeds heretofore made by a husband direct to his wife or by a wife direct to her husband are hereby validated and made as effectual to convey the title as they would have been were the parties not married;

(3) Provided, that nothing herein shall be construed as validating any deed made for the purpose, or that operates to defraud any creditor or to avoid payment of any legal debt or claim; and

(4) Provided further, that this section shall not apply to any conveyance heretofore made, the validity of which shall be contested by suit commen.:ed within one year of the effective date of this law.

Hletory.-11, ch. 5147, 1903; GS !457; RGS 8797; CGL 5670; §6, ch. 20954, 1941; §1, ch. 23964, 1947.

689.12 How state lands conveyed for educational purposes.-The title to all lands granted to or held by the state for educational purposes shall be conveyed by deed executeli by the members of the state board of education, with an impression of the seal of the department of agriculture of the state thereon, attested by the commissioner of agriculture, and no other witnesses to the execution thereof shall be required to entitle the same to record and to be received in evidence in all courts and judicial proceedings.

HIBtory.-§1, ch. 4999, 1901; GS 2458; RGS 3798; COL 5671.

689.13 Rule against perpetuities not applicable to dispositions of property for private cemeteries, etc.-No disposition of property, or the income thereof, hereafter made for the maintenance or care of any public or private burying ground, churchyard, or other place for the burial of the dead, or any portion thereof, or grave therein, or monument or other erection in or about the same, shall fail by reason of such disposition having been made in perpetuity; but such disposition shall be held to be made for a charitable purpose or purposes.

Hlstory.-§1, ch. 14655, 1931; CGL 1936 Supp. 5671(1).

interest which the grantor had power to dispose 689.14 Entailed estates.-No property, real of at that time in the real estate conveyed or or personal, shall be entailed in this state. Any granted, unless a contrary intention shall instrument purporting to create an estate tail, appear in the deed, conveyance or grant. express or implied, shall be deemed to create an

Hletory.-§1. ch . ~145, 1903; GS 2456; RGS 3796; 11. ch estate for life in the first taker with remainder 10110. 1925; coL 5669. per stirpes to the lineal descendants of the first

689. t 1 Conveyances between husband and taker in being at the time of his death. If the wife direct.- remainder fails for want of such remainderman,

(1) A conveyance of real e!!tate, made by a then it shall vest in any other remaindermen husband direct to his wife, or by a wife direct designated in such instrument, or, if there is no to her husband, shall be effectual to convey the such designation, then it shall revert to the legal title to such wife, or husband, as the case original donor or to his heirs. may be, in all cases in which it would be effect- mstory.-§20, Nov. 17, 1829; RS 1818; GS 2293; RGS Ual l'f the partt'es were not marrt'ed, and the 8616; CGL 5481; 12, ch. 20954, 1941; am. 11. ch. 23126, 1945. cf.-1689.17, Rule In Shelley's Case abolished. ·

2925

Ch. 689 CONVEYANCES OF LAND AND DECLARATIONS OF TRUST

689.15 Estates by survivorship.-The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in this state; that is to say, except in cases of estates by entirety, a devise, transfer or conveyance heretofore or hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship; and in cases of estates by entirety, the tenants, upon divorce, shall become tenants in common.

Hlstory.-§20, Nov. 17, 1829; RS 1819; GS !294; RGS 8817; CGL 5482; §3, ch. 20954, 1941.

689.17 Rule in Shelley's case abolished.The rule in Shelley's case is hereby abolished. Any instrument purporting to create an estate for life in a person with remainder to his heirs, lawful heirs, heirs of his body or to his heirs described by words of similar import, shall be deemed to create an estate for life with remainder per stirpes to the life tenant's lineal descendants in being at the time said life estate commences, but said remainder shall be subject to open and to take in per stirpes other lineal descendants of the life tenant who come into being during the continuance of said life estate.

Hlstory.-§2, ch. 23128, 1945. ct.-§689.14, Entailed estates.

689.18 Reverter or forfeiture provisions, limitations; exceptions.-

(!) It is hereby declared by the legislature of the state that reverter or forfeiture provisions of unlimited duration in the conveyance of real estate or any interest therein in the state constitute an unreasonable restraint

portation, charitable or non-profit corporation or association are hereby excepted from the provisions of this section.

(6) Any holder of a possibility of reverter who claims title · to' any real property in the state, or any interest therein by reason of a reversion or forfeiture under the terms or provisions of any deed heretofore executed and delivered containing such reverter or forfeiture provision shall have one year from July 1, 1951, to institute suit in a court of competent jurisdiction iri this state to establish or enforce such right, and failure to institute such action within said time shall be conclusive evidence of the abandonment of any such right, title or interest, and all right of forfeiture or reversion shall thereupon cease and determine, and become null, void and unenforceable.

(7) This section shall not vary, alter or terminate the restrictions placed upon said real estate, contained either in restrictive covenants or reverter or forfeiture clauses, and all said restrictions may be enforced and violations thereof restrained by a court of competent jurisdiction whenever any one of said restrictions or conditions shall be violated, or threat to violate the same be made by owners or parties in possession or control of said real estate, by an injunction which may be issued upon petition of any person adversely affected, mandatorily requiring the abatement of such violations or threatened violation and restraining any future violation of said restrictions and conditions.

Blstory.-Comp. §§1-7, ch. 26927, 1951. Effective date July 1, 1951.

on alienation and are contrary to the public 689.19 Variances of names in recorded in-policy of the state. struments.-

(2) All reverter or forfeiture provisions (1) The word "instrument" as used in this of unlimited duration embodied in any plat section shall be construed to mean and include or deed executed more than twenty-one years not only instruments voluntarily executed but prior to the passage of this law conveying also papers filed or issued in or in connection real estate or any interest therein in the state, with actions and other proceedings in court and be and the same are hereby cancelled and an- orders, judgments and decrees entered therein nulled and declared to be of no further force and transcripts of such judgments and proand effect. ceedings in foreclosure of mortgage or other

(3) All reverter provisions in any con- liens. veyance of real estate of any interest therein (2) Variances between any two instruments in the state, now in force, shall cease and termi- affecting the title to the same real property nate and become null, void and unenforceable both of which shall have been spread on the twenty-one years from the date of the convey- record for the period of more than ten years ance embodying such reverter or forfeiture among the public records of the county in provision. which such real property is situated, with

(4) No reverter or forfeiture provision respect to the names of persons named in the contained in any deed conveying real estate respective instruments or in acknowledgments or any interest therein in the state, executed thereto arising from the full christian name on and after July 1, 1951, shall be valid and appearing in one and only the initial letter of binding more than twenty-one years from the that christian name appearing in the other date of such deed, and upon the expiration of or from a full middle name appearing in one such period of twenty-one years, the reverter and only the initial letter of that middle name or forfeiture provision shall become null, void appearing in the other or from the initial letter and unenforceable. of a middle name appearing in one and not

(5) Any and all conveyances of real prop- appearing in the other, irrespective of which erty in this state heretofore or hereafter made one of the two instruments in which any such to any governmental, educational, literary, variance occurred was prior in point of time scientific, religious, public utility, public trans- to the . other and irrespective of whether the

2926

CONVEYANCES OF LAND AND DECLARATIONS OF TRUST Ch. 689

instruments were executed or originated before or after August 5, 1953, shall not destroy or impair the presumption that the person so named in one of said instruments was the same person as the one so named in the other of sa1d instruments which would exist if the names in the two instruments were identical; and, in spite of any such variance, the person so named in one of said instruments shall be presumed to be the same person as the one so named in the other until such time as the contrary appears and, until such time, either or both of such instruments or the record thereof or certified copy or copies of the record thereof

shall be admissible in evidence in the same manner as though the names in the two instruments were identical.

Blatory.-Comp. §1. ch. 28208, 1953.

689.20 Limitation on use of word "minerals."-Whenever the word "minerals" is hereafter used in any deed, lease or other contract in writing, said word or term shall not include any of the following: topsoil, muck, peat, humus, sand and common clay, unless expressly provided in said deed, lease or other contract in writing.

Hlstory.-§1, ch. 59-375.

2927

Ch. 690

CHAPTER 690 UNIFORM PRINCIPAL AND INCOME LAW

690.01 Short title. 690.02 Definition of terms. 690.03 Application of chapter; powers of settlor. 690.04 Income and principal; disposition. 690.05 Apportionment of income. 690.06 Corporate dividends and share rights. 690.07 Premium and discount bonds.

690.01 Short title.-This chapter may be cited as the "Uniform Principal and IncomA Law."


690.02 Definition of terms.-"Principal" as used in this chapter means any realty or personalty which has been so set aside or limited by the owner thereof or a person thereto empowered that it and any substitutions for it are eventually to be conveyed, delivered or paid to a person, while the return therefrom or use thereof or any part of such return or use is in the meantime to be taken or received by or held for the same or another person.

"Income" as used in this chapter means the return derived from a principal.

"Tenant" as used in this chapter means the person to whom income is presently or currently payable, or for whom it is accumulated or who is entitled to the beneficial use of the principal presently and for the time prior to its distribution.

"Remainderman" as used in this chapter means the person ultimately entitled to the principal, whether named or designated by the terms of the transaction by which the principal was established or determined by operation of law.

"Trustee" as used in this chapter includes the original trustee of any trust to which the principal may be subject and also any succeeding or added trustee.

Hlator;r.-11. ch. 18392, 1937; CGL 1940 Supp. 6671(2-a).; am. 17, ch. 22858, 1945. cf.-11.01, General deftnlUons.

690.03 Application of chapter; powers of settlor.-This chapter shall govern the ascertainment of income and principal, and the apportionment of receipts and expenses between tenants and remaindermen, in all cases where a principal has been established with or unless otherwise stated hereinafter, without th~ interposition of a trust; except that in the establishment of the principal provision may be made touching all matters covered by this chapter, and the person establishing the principal may himself direct the manner of ascertainment of income and principal and the apportionment of receipts and expenses or grant discretion to the trustee or other person to do so, and such provision and direction, where not otherwise contrary to law, shall control notwithstanding this chapter.

Hl•tor;r.-12, ch. 18392, 1937; CGL 1940 Supp. 6671(3).

690.08 Principal used in business. 690.09 Principal comprising animals. 690.10 Disposition of natural resources. 690.11 Principal subject to depletion. 690.12 Unproductive estate. 690.13 Expenses; trust estates. 690.14 Expenses; nontrust estates. 690.15 Uniformity of interpretation.

690.04 lncome and principal; disposition.(!) All receipts of money or other property paid or delivered as rent of realty or hire of personalty or dividends on corporate shares payable other than in shares of the corpora· tion itself, or interest on money loaned, or interest on or the rental or use value of property wrongfully withheld or tortiously damaged, or otherwise in return for the use of principal, shall be deemed income unless otherwise expressly provided in this chapter.

(2) All receipts of money or other property paid or delivered as the consideration for the sale or other transfer, not a leasing or letting, of property forming a part of the principal, or as a repayment of loans, or in liquidation of the assets of a corporation, or as the proceeds of property taken on eminent domain proceedings where separate awards to tenant and remainderman are not made, or as proceeds of insurance upon property forming a part of the principal except where such insurance has been issued for the benefit of either tenant or remainderman alone, or otherwise as a refund or replacement or change in form of principal, shall be deemed principal unless otherwise expressly provided in this chapter. Any profit or loss resulting upon any change in form of principal shall enure to or fall upon principal.

(3) All income after payment of expenses properly chargeable to it shall be paid and delivered to the tenant or retained by him if already in his possession; or held for accumulation where legally so directed by the terms of the transaction by which the principal was established; while the principal shall be held for ultimate distribution as determined by the terms of the transaction by which it was established or by law.

Hlator:r.-13, ch. 18392, 1937; CGL 1940 Supp. 6671(4),

690.05 Apportionment of income. -Whenever a tenant shall have the right to income from periodic payments, which shall include rent, interest on loans, and annuities, but shall not include dividends on corporate shares, and such right shall cease and determine by death or in any other manner at a time other than the date when such periodic payments should be paid, he or his personal representative shall be entitled to that portion of any such income next payable which amounts to the same percentage thereof as the time elapsed from the last due date of such periodic payments to and including the day of the determination of his right is of the total period during which

2928

UNIFORM PRINCIPAL AND INCOME LAW Ch. 690

such income would normally accrue. The remaining income shall be paid to the person next entitled to income by the terms of the

· transaction by which the principal was established. But no action shall be brought by the trustee or tenant to recover such apportioned income or any portion thereof until the day on which it would have become due to the tenant but for the determination of the right of the tenant entitled thereto. The provisions of this section shall apply whether an ultimate remainderman is specifically named or not. . Likewise when the right of the first tenant accrues at a time other than the payment dates of such periodic payments, he shall only receive that portion of such income which amounts to the same percentage thereof as the time during which he has been so entitled is of the total period during which such income would normally accrue; the balance shall be a part of the principal.

Hlstor:r.-§4, ch. 18392, 1937; CGL 1940 Supp. 6671(6). Am. §10, ch. 27991, 1953.

690.06 Corporate dividends and share rights. -(1) All dividends on shares of a corporation which form a part of the principal and are payable in the shares of the corporation shall be deemed principal. Subject to the provisions of this section, all dividends payable otherwise than in the shares of the corporation itself, including ordinary and extraordinary dividends payable in shares or other securities or obligations of corporations other than the declaring corporation, shall be deemed income. Where the trustee shall have the option of receiving a dividend either in cash or in the shares of the declaring corporation, it shall be considered as a cash dividend and deemed income, irrespective of the choice made by the trustee.

(2) All rights to subscribe to the shares or other securities or obligations of a corporation accruing on account of the ownership of shares or other securities in such corporation, and the proceeds of any sale of such rights. shall be deemed principal. All rights to subscribe to the shares or other securities or obligations of a corporation accruing on account of the ownership of shares or other securities in another corporation, and the proceeds of any sale of such rights, shall be deemed income.

(3) Where the assets of a corporation are liquidated, amounts paid upon corporate shares as cash dividends declared before such liquidation occurred or as arrears of preferred or guaranteed dividends shall be deemed income; all other amounts paid upon corporate shares on disbursement of the corporate assets to the stockholders shall be deemed principal. All disbursements of corporate assets to the stockholders, whenever made, which are designated by the corporation as a return of capital or division of corporate property shall be deemed principal.

(4) Where a corporation succeeds another by merger, consolidation or reorganization or otherwise acquires its assets, and the corporate shares of the succeeding corporation are issued

in substitution for those of the original corporation, the two corporations shall be considered a single .!orporation in applying the provisions of this section. But two corporations shall not be considered a single corporation under this section merely because one owns corporate shares of or otherwise controls or directs the other.

(5) In applying this section the date when a dividend accrues to the person who is entitled to it shall be held to be the date specified by the corporation as the one on which the stockholders entitled thereto are determined, or in default thereof the date of declaration of the dividend.


690.07 Premium and discount bonds.Where any part of the principal consists of bonds or other obligations for the payment of money, they shall be deemed principal at their inventory value or in default thereof at their market value at the time the principal was established, or at their cost where purchased later, regardless of their par or maturity. value; and upon their respective maturities or upon their sale any loss or gain realized thereon shall fall upon or enure to the principal.

Hlstor;,-.-§6, ch. 18392, 1937; CGL 1940 Supp. 6671(7) ,

690.08 Principal used in business.-(1) Whenever a trustee or a tenant is authorized by the terms of the transaction by which the principal was established, or by law, to use any part of the principal in the continuance of a business which the original owner of the property comprising the principal had been carrying on, the net profits of such business attributable to such principal shall be deemed income.

(2) Where such business consists of buying and selling property the net profits for any period shall be ascertained by deducting from the gross returns during and the inventory value of the property at the end of such period, the expenses during and the inventory value of the property at the beginning of such period.

(3) Where such business does not consist of buying and selling property, the net income shall be computed in accordance with the customary practice of such business, but not in such way as to decrease the principal.

(4) Any increase in the value of the principal used in such business shall be deemed principal, and all losses, after the income from such business has been exhausted, shall fall upon principal.

Hlstor;,-.-§7, ch. 18392, 1937; CGL 1940 Supp. 6671(8).

690.09 Principal compr1smg animals. -Where any part of the principal consists of animals· employed in business, the provisions of §690.08 shall apply; and in other cases where the animals are held as a part of the principal partly or wholly because of the offspring or increase which they are expected to produce, all offspring or increase shall be deemed principal to the extent necessary to maintain the original number of such animals

2929

Ch. 690 UNIFORM PRINCIPAL AND INCOME LAW

and the remainder shall be deemed income; and in all other cases such offspring or increase shall be deemed income.

Hutor,Y.-§8, ch. 18392, 1937; CGL 1940 Supp. 6671(9).

690.10 Disposition of natural resources.Where any part of the principal consists of lands from which may be taken timber, minerals, oils, gas or other natural resources and the trustee or tenant is authorized by law or by the terms of the transaction by which the principal was established to sell or dispose of such natural resources, and no provision is made for the disposition of the proceeds thereof, such proceeds shall be considered principal. Nothing in this section shall be construed to abrogate or extend any right which a tenant may otherwise have by law to exploit or develop such natural resources for his own benefit.

Butoey.-19, ch. 18392, 1937; CGL 1940 Supp. 6671(10).

690.11 Principal subject to depletion.Where any part of the principal consists of property subject to depletion, such as leaseholds, patents, copyrights and royalty rights, and the trustee or tenant in possession is not under a duty to change the form of the investment of the principal, the full amount of rents, royalties or return from the property shall be income to the tenant; but where the trustee or tenant is under a duty, arising either by law or by the terms of the transaction by which the principal was established, to change the form of the investment, either at once or as soon as it may be done without loss, then the return from such property not in excess of five per cent per annum of its inventory value or in default thereof its market value at the time the principal was established, or at its cost where purchased later, shall be deemed income and the remainder principal.

Hl•tor,Y.-§10, ch. 18392, 1937; CGL 1940 Supp. 6671(11).

690.12 Unproductive estate.-(1)Where any part of the principal in the possession of a trustee consists of realty or personalty which, for more than a year and until disposed of as hereinafter stated, has not produced an average net income of at least one per cent per annum of its inventory value or in default thereof its market value at the time the principal was established or of its cost where purchased later, and the trustee is under a duty to change the form of the investment as soon as it may be done without sacrifice of value and such change is delayed, but is made before the principal is finally distributed, then the tenant, or in case of his death his personal representative, shall be entitled to share in the net proceeds received £rom the property as delayed income to the extent hereinafter stated.

(2) Such income shall be the difference between the net proceeds received from the property and the amount which, had it been placed at simple interest at the rate of five per cent per annum for the period during which the change was delayed, would have produced the net proceeds at the time of change, but in

no event shall such income be more than the amount by which the net proceeds exceed the inventory value of the property or in default thereof its market value at the time the principal was established or its cost where purchased later. The net proceeds shall consist of the gross proceeds received from the property less any expenses incurred in disposing of it and less all carrying charges which have been paid out of principal during the period while it has been unproductive.

(3) The change shall be taken to have been delayed from the time when the duty to make it first arose, which shall be presumed, in the absence of evidence to the contrary, to be one year after the trustee first received the property if then unproductive, otherwise one year after it became unproductive.

( 4) If the tenant has received any income from the property or has had any beneficial use thereof during the period while the change has been delayed, his share of the delayed income shall be reduced by the amount of such income received or the value of the use had.

(5) In the case of successive tenants the delayed income shall be divided among them or their representatives according to the length of the periods for which each was entitled to income.

Hl•tor,Y.-§11, ch. 18392, 1937; CGL 1940 Supp. 6671(1%).

690.13 Expenses; trust estates.-(1) All ordinary expenses incurred in connection with the trust estate or with its administration and management, including regularly recurring taxes assessed against any portion of the principal, water rates, premiums on insurance taken upon the estates of both tenant and remainderman, interest on mortgages on the principal, ordinary repairs, trustees, compensation except commissions computed on principal, compensation of assistants, and court and other fees on regular accountings, shall be paid out of income. But such expenses where incurred in connection with unproductive estate as defined in §690.12 shall be paid out of principal, subject to the provisions of subsection (2) of §690.12.

(2) All other expenses, including trustee's commissions computed upon principal, cost of investing or reinvesting principal, attorney's fees and other costs incurred in maintaining or defending any action to protect the property or assure the title thereof, unless due to the fault or cause of the tenant, and costs of, or assessments for, improvements to property forming part of the principal, shall be paid out of principal. Any tax levied by any authority, federal, state or foreign, upon profit or gain defined as principal under the terms of subsection (2) of §690.04 shall be paid out of principal, notwithstanding said tax may be denominated a tax upon income by the taxing authority.

(3) Expenses paid out of income according to subsection (1) hereof which represent

2930

UNIFORM PRINCIPAL AND INCOME LAW Ch. 690

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.

Hl•tor;,-.-112, cb. 1839Z, 1937; CGL 1940 Supp. 6671(18).

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.

Hl•tor;,-.-118, cb. 1839Z, 1987; CGL 1940 Supp. 11671(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.

Hl•tor;,-.-114, cb. 183112, 1937; CGL 1940 Supp. li671(15).

2931

Ch. 691 UNIFORM TRUST ADMINISTRATION LAW

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."

HlatoJ7.-§5, ch. 18397, 1937; CGL 1940 Supp. 5671(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.

HiatorJ'.-11, ch. 18397, 1937; CGL 1940 Supp. 5671(17). cf.-11.01, General deftn!Uons.

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, re-exchange, 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 include 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 Prection of buildings, or as to renewals, thereof, though the term of the lease or renewals thereof or of such options extends beyond the tP.rm 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 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 any 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 anv other sums chargeable or accruing against or on account of shares of stocks, bonds, debentures or other corporate securities in the handR of the trustee, where such payment may be legally enforceable against the trustee or anv 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

2932

UNIFORM TRUST ADMINISTRATION LAW Ch. 691

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

(13) To hold any corporate stock in his owr. name or in the name of a nominee, with or 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 either with or without the intervention of a guardian.

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

(17) To advance income to or for the use of 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 execution or protection of the trust or because of 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 there:. for out of the trust property. ·· · ·

Hlatory.-§2, cb. 18397: 1937: CGL 1940 Supp. 6671(18). Sub. § (6) am. §1, ch. 29876, 1955; (1) by 124, ch. 57-1.

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 opinions 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 require:d 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 · ttu stee, acting. for more 'than one trust: shall ' not, oin: 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.

lllotnry.-§3, cb. 18397, 1937; CGL 1940 Supp. 6671(19). ct.-§518.01 et seq., Investment of ftductary 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.

Hl•tor;r.-14, ch. 18397, 1931; COL 1940 Supp. 6671(20).

2933

Ch. 692 CONVEYANCES BY CORPORATIONS

CHAPTER692 CONVEYANCES BY CORPORATIONS

692.01 Conveyances by corporations. 692.04 Validation of deeds, etc., executed by corpo-892.02 Validation of conveyances. rations. 892.03 Validity of conveyances by certain foreign

corporations recorded for seven years: limitation.

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

Hlator;v.-RS 1965; GS 2459; 11, ch. 6183, 1911; RGS 8799; CGL 5672.

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

Hlator;v.-12, cb. 6183, 1911; RGS 3800; CGL 6678. c1.-f608.48, Misnomer of corporation 1D dee<la and lnatru

menta.

692.03 Validity of conveyances by certain foreign corporations recorded for seven years; limitation.-

(!) Whenever any conveyance, by the surviving directors or trustees of a foreign corporation, which has been dissolved for any cause, or which has had its permit to transact business in the state cancelled for failure to pay fees due the secretary of state, or which has failed to comply with the provisions of laws of this state, has been executed and delivered to any grantee or grantees, and has for a

period of seven years or more been spread upon the records of a county wherein the land therein described is situated, the same shall be taken and held by all the courts of this state in the absence of any showing of fraud, adverse possession, or pending litigation, to have authorized the conveyance of, or to have conveyed, the fee simple title, or any interest therein, of the corporation on whose behalf said instrument has been executed to the land therein described.

(2) This section shall not apply to any conveyance, the validity of which shall be contested or shall have been contested by suit commenced heretofore or prior to July 1, 1954. Biator7.~omp. f f 1, 2, ch. 28071, 1DS3.

692.04 Validation of deeds, etc., executed by corporations.-All deeds and other instruments relating to the conveyance, transfer, lease, assignment, release, subordination, encumbrance or satisfaction of any right, title, interest, claim, lien or demand in, to or upon real property, heretofore made or hereafter made, and in all other respects executed in due form, by a corporation, not dissolved or expired, but delinquent for six months or more as to payment of capital stock taxes at the time of the making or executing of such deed or other instrument, are, notwithstanding said delinquency, hereby validated. Blstor7.~omp. fl, ch. 57-264.

CONVEYANCES OF MARRIED WOMEN'S INTEREST IN REAL ESTATE Ch. 693

CHAPTER 693

CONVEYANCES OF MARRIED WOMEN'S INTEREST IN REAL ESTATE

89!i.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.

Hl•tor:y.-§1, Feb. 4, 1835; RS 1956; GS 2460; RGS 8801: CGL 6674. at.-1708.01 et seq., Married women's property.

1708.04, Husband must join In transfer. 1708.07, 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.

Hl•toJT.-17, Nov. 15, 1828; 11. ch. 8011, 1877; RS 1967; GS 2461; RGS 3802; CGL 5675; 17, 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 shalf 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.llment 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, as hereby amended, to wit: "STATE OF --- ··----------------------------------COUNTY 0 F ·------------------···---··------------·--

"! 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: _____ ______ ,

(3) All acknowledj.!ments by a married woman m accordance with §693.03, as hereby amended, made before May 13, 1943, are hereby validated. unless the same shall be questioned

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

in a court of competent jurisdiction within one year after May 13, 1943.

Hlator;y.-§1, Feb. 4, 1836; 11, ch. 8011, 1877; RS Uli8; GS 2462; RGS 8803; CGL 6676; 111-3, ch. 21746, 1Kl. ct.-1694.04, Conveyances of married women detective ID

acknowledcment validated. 1708.07, Specific performance against married woiDA

regardless ot 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.

Hlstor;r.-RS 1969; GS 2463; RGS 3804; CGL 6677.

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.

Hl•tory.-11, ch. 4954, 1901; GS U64; ;{tGS 8805; CGL 6678.

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 into 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 as 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.

lllstory.-RS 1966; GS 2472; RGS 8813; 11, ch. 12083, 1927; CGL 6686.

693.14 Powers of attorney by married woman.-Any deed, conveyance, mortgage, lelj.se or other transfer of real property, or of any interest therein, being thE' separate property of a married woman, and every relinquishment 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 with her in the execution of such power of attorney, except that if such power of attorney is by a married woman to her husband, the husband need not join with her in the execution thereof, and if she execute a.nd acknowledge the same in the form and manner prescribed for the execution and acknowledgment of the conveyance of her separate real estate or relinquishment of dower, as the case may be, provided such power of attorney be recorded as other powers of attorney are recorded.

Hlstory.-H, ch. 2069, 1875 ; RS 1967; GS 2473; RGS 3814; CGL 5687; §1, ch. 57-99.

2935

Ch •. 694 CERTAIN CONVEYANCES MADE VALID

CHAPTER 694

CERTAIN CONVEYANCES MADE VALID

694.01 Those executed between 1817 and 1822. 694.02 Married wome&'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 tran~fe!s of ~roperty, either real or personal, w1thm the hm1ts 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 nad 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. und~r hi~, ner or them; provided, that nothmg m th1s 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 ;ale, mortgages and other transfers were recorded agreeably to the laws of the state within six months from the twenty-fourth day of June, 1823.

Hlstnry.-June 21, 1823; RS 1968; GS 2474; RGS 3815; CGL 5688.

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 inheritance where the husbands of such married women have joined therein shall be as valid as if the same had been conveyed by tine as at common law.

Hlotory.-§2, Feb. 4, 1835; RS 1969; GS 2475; RGS 8816; CGL 5689,

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.

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

694.04 Conveyances of married women defective in acknowledgment validated.- All •leeds of conveyance, bills of sale, mortgages ur 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.

694.14 Validation of deeds executed by guardians appointed under uniform veterans' guardianship law.

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 hw 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 ever) 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.

Hlstnry.-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.

Hiotory.-§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 are hereby confirmed and declared to be valid and binding as conveyances of the title to such lands.

Hlatory.-§2, ch. 4,999, 1901; GS 2478; RGS 8820; CGL 5693.

2936

CERTAIN CONVEYANCES MADE VALID Ch. 694

694.07 Certain grant of lands confirmed.The state 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 by the United States to aid in the construction of certain railroads in the state, 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 respective 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 for the use of the several railroads as aforesaid, to the purchasers, grantees and assigns of said railroads.

Hlstor:y.-11, 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 and delivered, or any conveyance has been executed and delivered to any grantee by the person owning the land therein described, or conveying the same in an official or representative capacity, and has, for a period of seven years or more been spread upon the records of the county wherein the land therein described has been or was at the time situated, and one or more subsequent conveyances of said land or parts thereof have been made, executed, delivered and recorded 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, the same shall be taken and held by all the courts of this state, in the absence of any showing of fraud, adverse possession, or pending litigation, to have authorized the conveyance of, or to have conveyed, the fee simple title, or any interest therein, of the person signing such instruments, or the person in behalf of whom the same was conveyed by a person in an official or representative capacity, to the land therein described as effectively as if there had been no defect in the acknowledgment or the certificate of acknowledgment, if acknowledged, or the relinquishment of dower, and as if there had been no lack of the word "as" preceding the title of the person conveying in an official or representative capacity, 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 shah not apply to any conveyance the validity of which shall be contested or have been contested by suit commenced heretofore or within one year of the effective date of this law.

Hldor:r.-§1, ch. 10169, 1925; COL 5695; f15, ch. 209M. 1941; §1, ch. 25277, 1949; am. §1, ch. 26957, 1951. cf.-1§95.23-95.26, Limitations where deed or will of record

for ten 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.

Hlstory.-§2, ch. 10169, 1925; CGL 6696.

694.10 Certain titles not affected.-Nothing 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.

Hlstory.-§3, ch. 10169, 1925; COL 6697.

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 were 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 ratified, validated and confirmed, and declared to convey such title, right or interest therein as such 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 this section shall validate any deed that was fraudulently obtained or that is now in litigation.

History.-§1, ch. 1362, 1929; CGL 1936 Supp. 6697(1).

694.12 Validation 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, heretofore made and received 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 said corporation, and the identity of said corporation shall plainly appear from the contents of

2937

Ch. 694 CERTAIN CONVEYANCES MADE VALID

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.

Hletor;r.-11, ch. 14838, 1931; CGL 1936 Supp. 6673(1); am. §7, ch. 22858, 1945.

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

(1) All conveyances of real estate heretofore made by any of the several counties of the state 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 improvement 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) The several counties of the state 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.

Hletor;r.-111-2, ch. 24307, 1947.

Am. Ill, ch. 26085, 1949.

694.14 Validation of deeds executed by guardians appointed under uniform veterans' guardianship law.-

(1) Any deed of conveyance, executed bona fide and for a valuable consideration authorized and approved by order of the probate court, by any limited guardian, who was appointed as guardian under the uniform veterans' guardianship law of Florida (of A.D. 1929) and who acted under that law and the order of the probate court in the execution of the deed of conveyance, the said deed is hereby cured and it shall be deemed and taken as if properly executed notwithstanding the fact said deed was executed to property that said mentally incompetent veteran did not directly or otherwise acquire with money received by the veteran from the veterans bureau and notwithstanding the fact the conveyance is to property acquired by the mentally incompetent veteran before he or she became a veteran or was declared insane; and notwithstanding the fact that some of the information required by said uniform veterans' guardianship law was not set out in the petition for appointment of the guardian; and notwithstanding the fact the guardian did not publish the notice of application for an order of sale as required by §294.10; and notwithstanding any other defect in any part of the said guardianship proceeding that resulted in said court-authorized and court-approved proceeding that resulted in the execution of such guardians' deed as aforesaid.

(2) Any person, firm or corporation having an interest in land affected by this section shall have until July 1, 1958, to institute proceedings to enforce any such rights. After July 1, 1958, no such action shall be instituted.

Hlstory.-comp 1§1, 2, ch. &7-341 .

2988

RECORD OF CONVEYANCES OF REAL ESTATE Ch. 695

CHAPTER 695 RECORD OF CONVEYANCES OF REAL ESTATE

695.01 Conveyances to bP. recorded. 695.02 Blank or master form of instruments may

be recorded. 695.03 Acknowledgment and proof; validation of'

certain acknowledgments. 695.031 Affidavits and acknowledgments by mem

bers of armed forces and their spouses. 695.04 Requirements of certificate. 695.05 Certain defects cured as to acknowledg-

ments and witnesses. 695.06 Certain irregularities as to venue validated. 695.07 Use of scrawl as seal. 695.08 Prior use of scrawl as seal. 695.09 Identity of grantor. 895.10 Proof by others. 695.11 Instruments deemed to be recorded from

time of .filing.

695.01 Conveyances to be recorded.-N o 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 equ~ty 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 attol'Dey be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consider.ation and without notice unless the power of attorney be recorded before the accruing o! 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.

Hlatory.-§§4, 9, Nov. 15, 1828; RS 1972; GS 2480; RGS 8822; CGL 6698; §10, ch, 20964, 11!41.

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 name of the person whose name appears on such blank or master form shaii 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 incor-

695.12 Imperfect record. 695.13 Want of certificate of record. 695.14 Unsigned certificate of record. 695.15 Recording conveyances lost by fire. 695.16 When mortgage or lien is destroyed. 695.17 United States deeds and patents may be

recorded. 695.18 Indorsement by clerk. 695.19 Certified copiE,s of recorded instruments

may be recorded. 695.20 Unperformed contracts of record. 695.21 Instruments relating to real estate to con

tain post-offi1~e address of grantee; exceptions.

695.22 Same; duties of clerks.

poration by referenc.e, for all purposes, shall be equivalent to setting forth ill 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.

Hlstory.-§11-4, ch. 1710!1, 1935; CGL 1936 Supp. 5698(1). cf.-11.01 (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, or judge of a small claims court 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. All affidavits and acknowledgments heretofore made or taken in the manner set forth above are hereby validated.

(2) WITHOUT THIS STATE BUT WITHIN THE UNITED STATF.S.-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.

2939

Ch. 695 RECORD OF CONVEYANCES OF REAL ESTATE

(3) IN FOREIGN COUNTRIES.-If the acknowledgment or proof be made in a!ly foreign 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 foreign country having an official seal, or before any ambassador, envoy extraordinary, minister plenipotentiary, minister, commissioner, charge d'affaires, consul general, consul, vice-consul, consular agent, or any other diplomatic or consular officer of the United States appointed to reside in such country, milit~>.ry 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 ackn .... wledgments heretofore made or taken in the manner set forth above are hereby validated.

lflMtnr:v.-RS 1973: ('b. 5404. 190!\; GS 2481: cb. 7849, 1919; ROS 3823; COL 5699; 17, ell. 22858, 1945; aub.§ (1) am. 11, eh. 28225, 1953. cf.-§117.07, Duty of notary public to state time of ex

piration of commission.

695.031 Affidavits and acknowledgments by members of armed forces and their spouses.-

(!) 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, or without the United States, before any commissioned officer in active service of the armed forces of the United States, as herein designated, or otherwise designated by law, or military or naval command, or order, with the rank of second lieutenant or higher in the army or marine 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 by 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 undersigned 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.

(4) An acknowledgment by the spouse of a member of the armed forces of the United States shall be sufficient in all respects if it is acknowledged in the manner and form herein provided and shall have the same force and effect as though the instrument had been acknowledged as now required by other statutes and such acknowledgment by a married woman who is a spouse of 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.

(5) 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.

(6) 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.

Hlstory.-Transferred from §120.08 by §7, cb. 22868, 1945; (4) N and renumbering subsequent subsections by fl, ch. 57-40.

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.

Hlstory.-§1974 RS 1892; GS 2482; RGS 3824; CGL 6700.

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 limita

2940


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

lllstory.-§1, ch. 4953, 1901; GS 2483; RGS 3825; 11, ch. 11991, 1927; CGL 6701, 6702; §1, ch. 14706, 1931; CGL 1J36 Supp. 6702(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 tht! 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 venue thereof, said deed or oth('r instrument shnll, notwithstanding such irregulartty or defect, be deemed and taken as properly ackr.cwledged and of record.

Hl8tory.-§1, ch. 11990, 1927; CGL 6703.

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

lll8tory.-§1, ch. 4148, 1893; GS 2484; RGS 3826; CGL 6704.

(;95.08 Prior use of scrawl as seai.-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 con~trued 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 sh11ll 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.

Hl•tory.-§1976 RS 1892; GS 2486; RGS 8828; CGL 6706.

695.10 Proof by others.-Where the grantors and witnesses of any instrument which

may be recorded are dead, or cannct be had, the judge of the circuit court, or the county judge for the county wherein the real property is. situated, may take the examination of any competent witness or witnesses, on oath, to prove the handwriting of the wi;;ness or witneases, 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.

Hlstory.-§1976 RS 1892; GS 2487; RGS 3829; CGL 6707.

695.11 Instruments deemed to be recorded from time of filing.-AII 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 ii is to record the same and as so recorded and transcribed upon the record shall be notice to all persons.

Hlstory.-§1, ch. 8592, 1886; RS 1977; GS 2488; RGS 8830; CGL 6708; §1, ch. 17217, 1936.

695.12 Imperfect record.-Whenever any instrument authorized or requir('d 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.

Hl8tory.-§1, ch. 8896, 1889; RS 1978; GS 2489: RGS 3831; CGL 6709.

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.

Hlstory.-§1, ch. 3894, 1889; RS 1979; GS 1490; RGS 3832; CGL 6710.

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 8833; 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

2941

Ch. 695 RECORD OF CONVEYANCES OF REAL ESTATE

fire, any such instrument, or a copy thereof from such former record duly certified, may be re-recorded in such county, and in re-recording 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 8834; CGL 6712; am. 17, ch. 22868, 1945.

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 subRequent purchasers for a valuable consideration and without notice, has been heretofore recorded, and the record thereof has been destroyed by fire prior to May 30th, 1901, such mortgage or other lien or a certified copy thereof, as aforesaid, shall be re-recorded within nine months from said date, or such mortgage or other lien shall not be good or effectual in law or equity against a creditor or subsequent purchaser for valuable consideration and without notice; provided, however, that if the original instrument of mortgage or other lien has been lo11t 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, 1!>02.

Hlstory.-§2, ch. 4950, 1!01; 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, shall be admitted to record in this state in the eounty 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.

Hlstor;r.-§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 cert!fied copy as the case may be) having been presented to me on the___________ day of_________________ for record. and same appearing to me to be genuine and to have been made and issued by the

authority of the United States Jrovernment, 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."

Hl•tory.-§2, ch. 8565, 1921; CGL 5715.

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 publir. rP.cordR 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.

Hl•tory.-§1, ch. 11989, 1927; CGL 6717.

695.20 Unperformed contracts of record.Whenever anyone shall have contracted to purchase real estate in the state, prior to January 1, 1930, by written agreement requiring all payments to be made within 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 instrument itself or by reference in some other recorded instrument, and shall not have obtained 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 shall 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.

Hlatory.-§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 publie record any instrument other than mortgages con-

2942


veying 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.

Hlator;r.-§1, ch. 23114, 1945.

695.22 Same; duties of clerks.-After October 1, 1945, the several clerks of the circuit

courts shall 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 namea and addresses of each grantee and a description of the land as specified in each instrument so filed.

Hlator:r .-12, ch. 23114, 1945.

2948

Ch. 696 RECORD OF CONTRACTS; PHOTOGRAPHIC RECORDING

CHAPTER 696 RECORD OF CONTRACTS; PHOTOGRAPffiC 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, 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 instrument for record.

Hletor;y.-§1, cb. 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.-No assignment of any contract, agreement, or other instrument purporting to contain an agreement to purchase or sell real estate shall be recorded in hny 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.

Hlator;y.-§2, cb. 11813, 1927; CGL 6720.

696.03 When agreement executed by agent or attorney may be recorded.-No 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; nnd 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 wnich !s not executed in the manner provided by law for the execution of deeds.

Hlstor;y.-§3, cb. 11813, 1927; CGL 6721.

tW6.04 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 therem contained shall enlarge, impair, alter, or dtminish the obligation of any such contract or agreement affected thereby ail between the parties privy thereto, or as to those who have actual notice thereof.

Hlstory.-§4, cb. 11813, 1927; CGL 6722.

696.05 Photographic recording authorized; clerk circuit court.-

696.04 What instruments affected by 1§696.01-696.03.

696.05 Photographic recording authorized; clerk circuit court.

696.06 Same; county judges.

(1) In every county in the state, 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 and including miniature photographic, microfilming or microphotographic processes or any other photographic, mechanical or other 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. 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, and shall also provide adequate equipment for reproduction, and for viewing where said recording process is miniature photographic, microfilming or microphotographic, it being the intent hereof that such records shall be readily available for public inspection and copying.

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

HIRtor;y.-§1, cb. 10300, 1926; CGL 1986 Supp. 6722(1); am. 1 §1-4, cb. 22051. 11143; (2) and (3) R. by f8, cb. 20741, 18&8, remaining subsection renumbered; (1) by §1, ch. 59-429.

696.06 Same; county judges.-(1) In every county in the state, the coun

ty 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 helrl good and valid.

Hl•tory.-§1, ch. 11382, 1926; CGL 6723; am. Ill, 2, ch. 21786, 1948.

2944

INSTRUMENTS DEEMED MORTGAGES, ETC. Ch. 697

CHAPTER 697

INSTRUMENTS DEEMED MORTGAGES AND THE NATURE OF A MORTGAGE

897.01 Instruments deemed mortgages. 897.02 Nature of a mortgage. 697.03 Cooperative association mortgages. 697.04 Future advances may be secured.

697.01 Instruments deemed mortgages.-All conveyances, obligations conditioned or defeasible, bills of sale or other instruments of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money, whether such instrument be from the debtor to the creditor or from the debtor to some third person in trust for the creditor, shall be deemed and held mortgages, and shall be subject to the same rules of foreclosure and to the same regulations, restraints and forms as are prescribed in relation to mortgages.

Provided, however, that no such conveyance shall be deemed or held to be a mortgage, as against a bona fide purchaser or mortgagee, for value without notice, holding under the grantee.

Hlotory.-n, .Tan. 30, 1838; 11. ch. 626, 1863; RS 1981; GS 2494 ; RGS 3836; CGL 6724; 112, ch. 20964. 1941.

697.02 Nature of a mortgage.-A mortgage shall be held to be a specific lien on the property therein described, and not a ~onveyance of the legal title or of the right vf possession.

lllotory .-§11, 2, ch. 626, 1863; RS 1982; GS 2496; RGS 1837; CG L 6726.

697.03 Cooperative association mortgages.(!) Hereafter, any mortgage or other

instrument given by a cooperative association for the purpose of creating a lien on real or per-8onal property, or both, may secure not only -existing indebtedness, but also such future ad·vances, whether obligatory or otherwise, as are made within ten years from the date thereof. Such lien, as to third persons without actual notice thereof, shall be valid as to all such indebtedness and future advances from the time the mortgage or other instrument is filed for l'ecord as provided by law. The total amount of indebtedness that may be so secured may de-crease or increase from time to time, but the total unpaid balance so secured at any one time shall not exceed a maximum principal amount which must be specified therein, plus interest thereon, and any disbursements made for the payment of taxes, levies, or insurance on the property covered by the lien, with interest on such disbursements.

(2) A "Cooperative association" within the meaning of this section means any corporation formed, reorganized or brought under any general or special law of this or any other state as a cooperative association.

Bl•tory.-fll, Z. ch. 20248, 1941 .

697.04 Future advances may be secured.(1) Hereafter, any mortgage or other Instru-

ment given for the purpose of creating a lien on real or personal property, or both, including agricultural, horticultural, or fruit crops, planted, growing, or to be planted, grown, or raised, to secure agricultural loans, or loans of

697.05 Balloon mortgages; scope of law; definition; requirements as to contents; penalties for violations; exemptions.

any other character, may secure not only existing indebtedness but also such future advances, whether obligatory or otherwise, as are made within ten years from the date thereof, to the same extent as if such future advances were made on the date of the execution of such mortgage or other instrument, although there may be no indebtedness outstanding at the time any advance is made. Such lien, as to third persons without actual notice thereof, shall be valid as to all such indehtedness and future advances from the time the mortgage or other instrument is filed for record as provided by law. The total amount of indebtedness that may be so secured may decrease or increase from time to time, but the total unpaid balance so secured at any one time shall not exceed a maximum principal amount which must be specified in such mortgage or other instrument, plus interest thereon, and any disbursements made for the payment of taxes, levies, or insurance on the property covered by the lien, with interest on such disbursements. 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.

(2) 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 ten years 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.

(3) Any such mortgage or other instrument shall be prior in dignity to all subsequent encumbrances, including statutory liens, except landlords' liens.

Bllt•1'7·-lfl-3, ch. 20141, llfol; am. fl, ch. :111111, 11113.

697.05 Balloon mortgages; scope of law; definition; requirements as to contents; penalties for violations; exemptions.-

(!) Any conveyance, obligation conditioned or defeasible, bill of sale or other instrument of writing conveying or selling real property for the purpose or with the intention of securing the payment of money, whether such instrument be from the debtor to the creditor or from the debtor to some third person in trust for the creditor, shall be deemed and held to be a mortgage, and shall be subject to the provisions of this section.

(2) Every mortgage in which the final pay-

2945

Ch. 697 INSTRUMENTS DEEMED MORTGAGES, ETC.

ment or the balance due and payable upon maturity is greater than twice the amount of the regular monthly or periodic payment of the said mortgage shall be deemed a balloon mortgage, and shall have printed or clearly stamped on such mortgage: THIS IS A BALLOON MORTGAGE AND THE FINAL PAYMENT OR THE BALANCE DUE UPON MATURITY IS

This legend including the total amount due upon maturity shall appear at the top of the first page or face sheet of the mortgage and also immediately above the place for signature of the mortgagor. The legend shall be conspicuously printed or stamped in type as large as the largest type used in the text of the instrument, either as an over-print or by a rubber stamp impression.

(3) Failure of a mortgagee, creditor or a third party in trust for a mortgagee or creditor to comply with the provisions of this section shall automatically extend the maturity date of such mortgage in the following manner:

The final payment or the balance due and payable is to be divided by the regular monthly or periodic payment and the quotient so secured is to be the number of months or periods the

maturity date of the montgage is extended. The mortgagor shall continue to make such monthly or periodic payments until the principal of the mortgage is paid. All such payments shall be credited to the principal only.

(4) Any mortgagee, creditor, bona fide holder, assignee, transferee, endorsee, or any agent, officer, or other representative of any such person violating the provisions of this section shall forfeit the entire interest charged, contracted to be charged or reserved under any such mortgage written in violation of this section, and only the principal sum of such mortgage can be enforced in any court in this state, either at law or in equity. Any interest, collection charge or attorney fee that has been paid or reserved or contracted for, either directly or indirectly, shall be forfeited to the person or mortgagor presently obligated under such mortgage.

(5) This section does not apply to any mortgage in effect prior to January 1, 1960; provided further that all first mortgages and all other mortgages created for a term of more than five years are exempt from the provisions of this section.

motor:r.-Ul·ll, cb. &a-3118.

2946

CHATTEL MORTGAGES Ch. 698

CHAPTER 698 CHATTEL MORTGAGES

098.01 098.02 098.03

698.04 698.05 698.06 898.07

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.-No 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 the mortgagee and continue to remain truly and bona fide in his possession.

HlatoQ".-§1983 RS 1892; GS J4116; RGS 8833; CGL 6731. cf.-1696.03, Acknowledgment.

698.02 Acknowledgment.-To entitle such mortgage to record, its execution must be acknowledged or proved in the manner provided for mortgages of real property.

HlatoQ'.-11984 RS 1892; GS 2497; RGS 8839; CGL 6727

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 pur-chasers, 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 Jess than fifteen days prior to such sale. Such nQtice may be served in the same manner as :summons ad respondendum are served pursu.ant 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. If there be no newspaper published in such

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.

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. If any person to whom notice is required to be given under this statute shall not reside in the state, 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, his legal 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 courthouse of the county where such property is situate at 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 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 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 for such county to be there held for the benefit of the person lawfully entitled tP the same.

BlatoQ'.-11. ch. 17108, U35: CGL 1tl4 Supp. 1'71'1(1) .

2947

Ch. 698 CHATTEL MORTGAGES

698.04 Sale under power.-In case of any sale of proper ty 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.

HletorT.-§2, ch. 1710S, 1936; CGL 1936 Supp. 6727(2) .

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 sections being intended to be cumulative and concurrent, but not exclusive. In all other respects, the laws relating to chattel mortgages shall be applicable to · such mortgages.

Hl•torT.-§3, ch. 17108, 1935; CGL 1936 Supp. 6727(3) .

698.06 Mortgages to secure future advances. -Any mortgage or other instrument creating a lien on farm equipment, livestock, agricultural, hortictlltural 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 lo 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.

Rletor,..-11, ch. 17110. 1936; CGL 1936 Supp. 6727(6) .

698.07 Same; notice to extend only one year; exception.-As against the rights of credttors 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.

Hl&tflr,..-§2. ch. 17110, 1935; CGL 1936 Supp. 6727(6); 11. ch. 18024. 1937.

698.08 Notice given by filing for record of chattel mortgages generally, to extend seven years.-The notice given to third persons by 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 mor.tgage has been or shall be recorded in the county in the state 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. 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, or any agency or instrumentality thereof, incurred under the rural electrification act of 1939, as amended.

Hl&tor)·.-§1, ch. 17112. 1935; CGL 1936 Supp. 6727(7) ~ fl. ch. 20D21, 1841; 3rd paragraph Comp. f 1, ch. Hllll, 1151. cf.-§95.11 Limitation of action• on aealed Instrument&

698.09 Extension of period of notice.-Tbtt 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 additionaV 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. Provided, however, that where a mortgage or other security instrument has been amended or supplemented one or more times and an identifying affidavit is so filed for record by the owner or holder thereof with respect to the original mortgage or other security instrument and mention is made in such affidavit of any instrument or instruments amendatory or supplemental thereto such identifying affidavit need not be filed with respect to such amendatory or supplemental instrument or instruments so mentioned therein and the effect of such amendatory or supplemental instrument or instruments and the preservation of any lien or priority thereof shall be extended along with the original mortgage or other security instrument as to which affidavit or affidavits have been filed in accordance with the requirements of this §698.09.

Hletor;,-.-12, ch. 17112, 1936; CGL 1936 Supp. 6727(8). Am. fl. ch. 28013, 1953. Note: f614.17 to expressly not modified, repealed or othenrtM

affected by the 1853 amendment of this section.

698.10 Effect on certain existing instruments.-The notice given by the filing of any mortgage, or other security instrument creat-ing a lien on, or conveying or reserving an interest in, personal property, or agricultural, horticulturar or fruit crops planted, growing

2948

CHATTEL MORTGAGES Ch. 698

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.

BlatorJ'.-13, ch. 17112, 1935; CGL 1936 Supp. 6727(9).

698.11 Duties of clerk in connection with extension.-The clerk of the circuit court shall file such affidavit, reindex the instrument men-

tioned 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 court shall be entitled to a fee of twentyfive cents.

Hl•torJ".-14, ch. 17112, 19S6; CGL 1936 Supp. 6727(10).

2949

Ch. 699 LIVESTOCK MORTGAGES AND OTHER INSTRUMENTS

CHAPTER 699

LIVESTOCK MORTGAGES AND OTHER INSTRUMENTS

699.01 Deflnitions. 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 ordet 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 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, 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 county 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. 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.

Wstory.-§2, ch. 7936, 1919; COL 5729; 12, ch. 29737, 195&. cf.-§699.13, Sale under power contained In the mortgagL

§702.01 et seq .. Foreclosure In general. §1.01(13) defines registered maU to tnclude certified maU with return receipt requested.

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;

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florida statutes 1959, volume 2 · honor must be given to the drawer and to each indorser, and any...

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