(No. C-870351

National Packaging Corporation, Appellant, v. Belmont et al., Appellees; Provident Bank et al.

— Decided March 16, 1988.)

Shannon, P.J., and Hilde­brandt, J., concur.

Frost & Jacobs and Mark H. Klusmeier, for appellant.

Robert W. Cettel & Assoc, and Robert W. Cettel, for appellees L. Michael and Elaine E. Belmont.

Michael Buschbacher, for appellees Richard E. and Yera DeCamp.

Doan, J.

In the instant appeal, we must determine whether to apply the venerable doctrine of idem sonans to the facts and circumstances set forth in the record. We choose not to adhere to the doctrine of idem sonans in the matter sub judice, not as an act of judicial insubordination, but for rea­sons of policy set forth below.

The record reveals that the plain­tiff, National Packaging Corporation (“NPC”), sued Michael Bolan, d.b.a. Trade Packaging, in the Franklin County Court of Common Pleas. On November 25, 1983, NPC obtained a judgment for $3,331.76 plus interest; and, at a later time, it certified the judgment in Hamilton County, with Bolan’s name incorrectly spelled “B-O-L-E-N” in the docket book. At the time the judgment was certified, Michael Bolan owned property in Hamilton County at 8107 Camargo Road and 815 Indian Hill Road.

Bolan’s ex-wife, Elaine (now Elaine Belmont), brought a foreclosure action against the property located at 815 Indian Hill Road to collect overdue child-support payments. The property was sold in a sheriff’s sale to L. Mich­ael and Elaine Belmont (Bolan’s ex-­wife and her new husband). Because NPC’s judgment was filed under an in­correct spelling of Bolan’s name, NPC did not receive notice of the sheriff’s sale and was unable to protect its in­terest in the property.

The Belmonts subsequently sold the Indian Hill Road property to Richard E. and Vera DeCamp. It was only after this second conveyance that NPC brought its own foreclosure ac­tion, asserting the certified judgment from Franklin County against both the Indian Hill Road property and the Camargo Road property.

The Belmonts moved to dismiss NPC’s complaint in a filing that the trial court treated as a motion for sum­mary judgment. The DeCamps then moved for summary judgment against NPC and the Belmonts. NPC re­sponded with its own motion for sum­mary judgment against the Belmonts and the DeCamps. On April 30, 1987, the trial court overruled NPC’s motion for summary judgment, entered sum­mary judgment for the DeCamps and the Belmonts against NPC and held that the DeCamps’ motion for sum­mary judgment against the Belmonts was moot. The court dismissed all other claims existing among these three parties, adding a Civ. R. 54(B) certification in a nunc pro tunc entry dated July 6, 1987, and this appeal followed.

In its single assignment of error, NPC asserts that the trial court erred to its prejudice by overruling its mo­tion for summary judgment. Relying upon the doctrine of idem sonans,1 it argues that the certified judgment filed under a similar sounding but in­correct spelling of the debtor Bolan’s name, retaining the same initial letters as the correctly spelled name, should have been held to give rise to a valid lien for the benefit of NPC and to pro­vide the appropriate constructive notice to title searchers.

The doctrine of idem sonans was adopted by the Ohio Supreme Court in Lessee of Pillsbury v. Dugan’s Ad­ministrator (1839), 9 Ohio 117. There the court held that Mrs. Pillsbury was on sufficient notice that her one-eighth interest in certain real estate was be­ing adjudicated, even though the peti­tion for partition listed her as “Pillsby.” Its reasoning was expressed in these terms:

“In adjudicating upon transactions occurring in the early settlement of our state, we must never forget the absence of precedents and system, the different usages introduced by people emigrating from every part of the country, the want of knowledge or neglect of technical learning, and the risk of loss of evidence from the lapse of time. Hence errors of form have always been overlooked, where the acts of a court are manifest, and its jurisdiction established. * * *

"* * *

“It is not every mistake in names which will invalidate an instrument or proceeding. This effect will follow where the person can not be identified, or where the error is such as to describe another. But words are in­tended to be spoken; and where the sound is substantially preserved, bad spelling will not vitiate. * * *” (Em­phasis added.) Id. at 119-120.

The petition in Pillsbury otherwise identified Mrs. Pillsbury by reference to her father, who died seized of the subject real estate, and to her apparent siblings and in-laws. Further, the peti­tion correctly identified the real estate. Thus, she could be identified in spite of her misspelled name.

The Ohio Supreme Court next mentioned the doctrine of idem sonans in Buchanan v. Roy’s Lessee (1853), 2 Ohio St. 251, a quiet-title action in­itiated by Nicholas Longworth. The court, in dicta, mused that the mis­spelling of Sarah Roy’s name as Sarah Ray, in a notice by publication, stand­ing alone might be fatal to the action. Without squarely deciding the ques­tion, however, the court went on to note that Sarah Roy could otherwise be identified in the published notice. Thus the “otherwise identified” stan­dard was carried forward from Pills­bury to Buchanan.

In 1869, the Ohio Supreme Court again dealt with idem sonans, this time in a criminal matter. In Turpin v. State (1869), 19 Ohio St. 540, a case involv­ing an allegedly forged signature, there was a variance between the spell­ing of the name as it appeared on the state’s exhibit (“R-e-n-n-i-c-k” or “R-u-­n-i-c-k”), and the spelling of the name as it appeared in an indictment (“R-e-­n-i-c-k”). The court, however, found no fatal flaw in the variance, using this analysis:

“The general rule seems to be, that a change in the spelling of a word which does not alter its meaning, or in the spelling of a name where the idem sonans is preserved, is not deemed a material variance. * * *

“If the variance between the name to the order [the state’s exhibit] and the name appearing in the indictment had been plain, it would have been the duty of the court to refuse to allow the order to be given in evidence. But where the name to the order was un­certain, and was susceptible of being read and understood as agreeing with the name stated in the indictment, it was not, in our opinion, error for the court to submit the question to the jury. * * *” Id. at 545.

While it is not stated as part of the court’s rationale, we note that there was other evidence in Turpin to iden­tify the person whose name was al­legedly forged.

NPC cites Rauch v. Immel (1936), 55 Ohio App. 71, 23 Ohio Law Abs. 629, 8 O.O. 354, 8 N.E. 2d 569, and Horton v. Matheny (1943), 72 Ohio App. 187, 27 O.O. 69, 51 N.E. 2d 41, as the basis for validation of its claimed error. We note, however, that in Rauch the doctrine was applied to a misnomer in a notice of a lawsuit, and in Horton it was applied to a misspell­ing in a deed description. In these two cases, as in Pillsbury, Buchanan, and Turpin, the error did not involve misspellings in a name index.

The case of Gleich v. Earnest (1930), 36 Ohio App. 326, 173 N.E. 212, is NPC’s best authority because it is factually analogous to the instant matter. In Gleich, the court held that idem sonans validated the assertion of a mechanic’s lien against the purchaser of the property at a foreclosure sale, even though the foreclosure suit did not name the lienholder. The lienhold­er had filed its lien against “C. C. Ernest,” when in fact the property was held in the name of “Chester C. Earnest.” The court’s decision uphold­ing the lienholder’s position rested upon the testimony of two abstractors who testified that they would have searched the records under both “Ernest” and “Earnest.”

In the matter sub judice, three ex­perts have given affidavits stating that the doctrine of idem sonans should not be applied today as a standard for de­termining the marketable title of real estate on the basis of irregularities in last names or surnames, and that by custom it is not applied by abstractors in southwestern Ohio.

We hold that the doctrine of idem sonans is inapplicable to names that are misspelled in judgment-lien name indexes. We are not a frontier society of pioneers with little education or an absence of precedent and system. Since the Supreme Court issued its opinion in Pillsbury in 1839, we have experienced a tremendous growth in the population and the economy, and those developments have spawned countless real estate sales and a volume of litigation resulting in an abundance of indexed judgment liens. In modern society we cannot overlook matters of form by continuing to in­dulge the outmoded premises of our societal infancy. To impose rigidly the doctrine of idem sonans to name in­dexes now maintained for judgment liens would tax all land abstractors beyond reasonable limits and require them to be poets, phonetic linguists, or multilingual specialists. The additional time necessary to examine name in­dexes under such a stringent doctrine would make the examinations finan­cially prohibitive.

The appellees, in their brief, demonstrate the difficulty in applying the doctrine of idem sonans to the range of spellings implicated in the in­stant case: Bolan, Bolen, Bolin, Bowlin, Bowlan, Bowlen, Bolun; the addition of double “l,” “ein,” and “ien” spellings does not even exhaust all conceivable spelling possibilities. The impossibility of the task created by the doctrine of idem sonans is further illustrated by the fact that we, as a society and state, are no longer a small homogeneous population primarily of European abstraction. Since our infan­cy, we have added Asian, African, South American, Oriental and Arabic surnames. The spelling, sound, and pronunciation of our population’s sur­names create an insurmountable bur­den for an abstractor to face in ap­preciating all the possible variations. Under all the circumstances, a strict application of the doctrine today would leave a real estate purchaser with a lingering fear that misspelled lienhold­ers, either negligently or deliberately, might be lurking under the idem sonans doctrine in the judgment-­debtor indexes.

We further conclude that the mis­spelling of Bolan as “B-o-l-e-n,” does not rise to being “otherwise iden­tifiable.” Unlike many states that statutorily require land descriptions with lien filings, Ohio’s indexes merely require a name.

Finally, with the exception of Gleich, the courts have not strictly ap­plied idem sonans. We find instead a conditional application, which includes as a factor whether the individual is otherwise identified, and in only one case has the doctrine been applied to listings in a judgment-lien name index. We cannot, in sum, find any authority mandating strict application of the idem sonans doctrine.

The trial court did not err in deny­ing NPC’s motion for summary judg­ment because reasonable minds could only conclude that NPC was not en­titled to judgment as a matter of law. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 O.O. 3d 466, 472, 364 N.E. 2d 267, 274.

The judgment of the trial court is affirmed.

Judgment affirmed.

1

The doctrine of idem sonans is defined in 70 Ohio Jurisprudence 3d (1986) 21-22, Names, Section 18, as follows:

“The arbitrary orthography and pro­nunciation given to proper names, and the variant spelling resulting from ignorance have led the courts to formulate the doc­trine of ‘idem sonans,’ which means ‘sound­ing the same.’ Under this doctrine a mistake in spelling the name of a party is immaterial if both modes of spelling have the same sound. The grounds for applying the doctrine to slight variations in spelling is that of de minimis non curat lex—the principle that the law is not concerned with trifles. The general rule in Ohio seems to be that a change in the spelling of a word which does not alter its meaning, or in the spelling of a name where the idem sonans is preserved, is not a material variance. Thus, it is not every mistake in names which will invalidate an instrument or proceeding. To have this effect, the mistake must be such that a person cannot be identified, or that the error describes another. Since words are intended to be spoken, bad spelling will not vitiate their intended effect where the sound is substantially preserved.” (Foot­notes omitted.)

Court of Appeals of Indiana.

No. 82A01-9910-CV-336.

Timothy W. HARTIG, Appellant-­Defendant, v. Melvin J. STRATMAN and Louise Stratman, Appellees-­Plaintiffs.

May 31, 2000.

Rehearing Denied Aug. 30, 2000.

BAILEY, J. concurs.

ROBB, J. concurs with separate opinion.

Robert L. Burkart, Ziemer Stayman Weitzel & Shoulders, Evansville, Indiana, Attorney for Appellant.

Jack N. Vanstone, Evansville, Indiana, Attorney for Appellees.

OPINION

SHARPNACK, Chief Judge

This case comes to us on interlocutory appeal. Timothy Hartig appeals the trial court’s order denying his motion for sum­mary judgment. Hartig raises three is­sues, which we consolidate and restate as whether the trial court erred in denying his motion for summary judgment. We raise one issue sua sponte: whether Har­tig’s motion for summary judgment re­quested the resolution of less than all the issues or claims involved. We affirm in part, reverse in part, and remand for fur­ther proceedings.

The relevant facts follow. Melvin and Louise Stratman are the owners of real property located at 2208 E. Walnut St. in Evansville, Indiana. The property next door, at 2210 E. Walnut St., is owned by Hartig. The instant dispute centers around a shared driveway that is located on both parcels of property, with the ma­jority of the driveway being on Hartig’s property.

The record of title to Hartig’s property discloses that Hartig purchased the prop­erty from Sean Holmes on September 28, 1995. Holmes in turn purchased the prop­erty from John Connell on May 31, 1994. On the same day that Connell sold the property to Holmes, Connell entered into a written easement agreement with the Stratmans regarding the shared driveway. The agreement gave the Stratmans a per­petual easement over the portion of the driveway that is located upon the parcel at 2210 E. Walnut St. and gave the property owners at 2210 E. Walnut St. a perpetual easement over the portion of the driveway that is located upon the Stratman parcel. The Stratman-Connell easement agree­ment was recorded in the Vanderburgh County Recorder’s Office on June 8, 1994, at 2:25 p.m. The deed transferring the property at 2210 E. Walnut Street from Connell to Holmes was also recorded on June 8, 1994, but it was recorded one minute earlier, at 2:24 p.m. It is undisput­ed that when Holmes sold the property to Hartig, he did not inform Hartig about the existence of the driveway easement agree­ment.

Thereafter, on February 13, 1998, the Stratmans filed a complaint alleging that Hartig was blocking the driveway and re­fusing to allow them to use it. The com­plaint further alleged that prior to Hartig’s actions, “the owners of both 2208 East Walnut and 2210 East Walnut Street, used said easement under a claim of right, open, notoriously, and adverse to the interest of the adjoining owner.” On February 24, 1998, the trial court granted Hartig’s mo­tion to dismiss the Stratmans’ complaint pursuant to Indiana Trial Rule 12(B)(6). The Stratmans then filed an amended complaint alleging in substance that Hartig was trespassing upon their property. Then, on August 26, 1998, the Stratmans filed a “Second Paragraph of Amended Complaint,” asserting the right to use the driveway by virtue of the Connell-Stratman easement agreement. Record, p. 19. Thereafter, Hartig filed a motion for sum­mary judgment, which the trial court de­nied on June 29, 1999.

When reviewing the denial of a mo­tion for summary judgment, we apply the same standard as the trial court. Trotter v. Nelson, 684 N.E.2d 1150, 1152 (Ind.­1997). Therefore, summary judgment should only be granted when the designat­ed evidentiary material demonstrates that there is no genuine issue as to any materi­al fact and the moving party is entitled to judgment as a matter of law. Id. We resolve any doubt as to any fact, or infer­ence to be drawn therefrom, in favor of the nonmoving party. Id. The party appeal­ing the denial of a motion for summary judgment has the burden of persuading this court on appeal that the trial court’s ruling was improper. Jordan v. Deery, 609 N.E.2d 1104, 1107 (Ind.1993).

A.

Hartig first contends that he was entitled to summary judgment because the Stratmans’ claim is barred by the doctrine of election of remedies. The election of remedies doctrine is an equitable principle intended to prevent excessive and repeti­tive litigation. Hoover v. Hearth & Home Design Center, Inc., 654 N.E.2d 744, 745 (Ind.1995). It prevents a party who has two inconsistent remedies and elects to pursue one to a conclusion from later seek­ing recovery under the other theory. Id.

Hartig alleges that when the trial court granted his motion to dismiss the Stratmans’ original complaint alleging ad­verse possession, the dismissal constituted an adjudication on the merits and there­fore the Stratmans had pursued their claim to a final determination. Thus, ac­cording to Hartig, the Stratmans were barred from amending their complaint un­der the theory of easement by agreement, a theory that was inconsistent with the original theory of adverse possession. We disagree.

Indiana Trial Rule 12(B) provides that “[w]hen a motion to dismiss is sus­tained for failure to state a claim under subdivision (B)(6) of this rule the pleading may be amended once as of right ...” Ind. Trial Rule 12(B). Because the complain­ing party remains able to file an amended complaint, a dismissal under Trial Rule 12(B)(6) is without prejudice. Platt v. State, 664 N.E.2d 357, 361 (Ind.Ct.App.­1996), trans. denied, cert. denied, 520 U.S. 1187, 117 S.Ct. 1470, 137 L.Ed.2d 683 (1997). A Trial Rule 12(B)(6) “dismissal becomes an adjudication on the merits only after the complaining party opts to appeal the order instead of filing an amended complaint.” Id.

Here, after their original complaint was dismissed pursuant to Trial Rule 12(B)(6), the Stratmans filed an amended complaint within the allotted time. Therefore, the dismissal of their original complaint did not act as an adjudication on the merits, a prerequisite to invoking the election of remedies doctrine, as claimed by Hartig. See id.; see also Cohoon v. Fisher, 146 Ind. 583, 584, 44 N.E. 664, 665 (1896), reh’g denied, (stating that “[t]he amendment of the complaint superseded the original com­plaint. Therefore the remedy invoked therein is not being prosecuted to determi­nation”).

In response, Hartig alleges that even if the dismissal of the Stratmans’ original complaint was not a final judgment, their claim of easement by agreement is still barred by the election of remedies doc­trine. To support this claim, Hartig cites to an opinion denying rehearing in Cohoon wherein our supreme court allegedly “rec­ognized that the election of remedies doc­trine may apply even where there is not a final judgment.” Reply Brief, p. 3; Co­hoon v. Fisher, 146 Ind. at 588, 45 N.E. 787 (1897). However, in the portion of this opinion that Hartig refers to, the court was simply addressing the cases from oth­er jurisdictions, which dealt with fraud and rescission of a contract, that were cited by the nonprevailing party. See id., at 588-­589, 45 N.E. at 788. At the end of this discussion, the court stated: “All we mean to hold ... is that the cases cited by appellee are not necessarily inconsistent with the conclusions we have reached, and, if they were, our own previous cases would and ought to control this case ...” Id. at 589, 45 N.E. 787, 45 N.E. at 789. Accord­ingly, this argument is without merit.

Hartig, still insisting that the elec­tion of remedies doctrine is applicable, next points out that the amended com­plaint that the Stratmans filed after their original one was dismissed was a complaint for trespass, not easement by agreement: it was not until several months later that the Stratmans filed the second paragraph of the amended complaint alleging ease­ment by agreement. Pursuant to Trial Rule 15(A), a party may amend his com­plaint to adequately reflect alternate claims with the court’s leave, and such leave must be granted “when justice so requires.” Ind. Trial Rule 15(A). In keeping with the policy of this state to liberally allow the amendment of plead­ings, the trial court here permitted the Stratmans to amend their complaint to include a claim of easement by agreement. Therefore, we do not see the relevance in this argument, and hold that the Strat­mans’ claim is not barred by the election of remedies doctrine.1 See Platt, 664 N.E.2d at 361.

B.

Hartig next contends that he is entitled to summary judgment because the Connell-Stratman driveway easement agreement was recorded outside his chain of title and therefore not binding on him. Indiana’s recording statute provides:

“Every conveyance or mortgage of lands or of any interest therein ... shall be recorded in the recorder’s office ...; and every conveyance [or] mortgage ... shall take priority according to the time of the filing thereof, and such convey­ance [or] mortgage ... shall be fraudu­lent and void as against any subsequent purchaser, ... or mortgagee in good faith and for a valuable consideration, having his deed [or] mortgage ... first recorded.”

Ind.Code § 32-1-2-16. The purpose of this statute is to provide protection to subsequent purchasers and mortgagees. Szakaly v. Smith, 544 N.E.2d 490, 491 (Ind.1989). This protection is derived from the fact that a landowner will not be deemed to have constructive notice of ad­verse claims that appear outside the chain of title. Id. at 492.

To determine the chain of title, the pro­spective purchaser must go to the record­er’s office and search through the grantor index, beginning with the person who re­ceived the grant of land from the United States and continuing until the conveyance of the tract in question. Id. at 491. The particular grantor’s name is not searched thereafter. Id.

Here, when Hartig conducted a title search of the property at 2210 E. Walnut St., he would have discovered the convey­ance to Connell. Next, Hartig would have discovered the conveyance from Connell to Holmes that was recorded on June 8, 1994, at 2:24 p.m. Hartig would not have discov­ered the Connell-Stratford easement agreement that was recorded one minute later, however, because Connell’s name would not have been searched after the conveyance to Holmes was discovered. See id. Therefore, the easement agree­ment is not within Hartig’s chain of title and he cannot be deemed to have construc­tive notice of its existence. See id.; Key­bank Nat. Ass’n v. NBD Bank, 699 N.E.2d 322, 327 (Ind.Ct.App.1998) (holding that mortgage recorded outside the chain of title did not give the subsequent mortga­gor constructive notice of its existence). Accordingly, we hold that the trial court erred in denying Hartig’s motion for sum­mary judgment with respect to the issue of the driveway easement agreement.

C.

The final issue is one we raise sua sponte: whether Hartig’s motion for sum­mary judgment requested the resolution of less than all the issues or claims involved. Hartig has raised the following issues: -(1) whether the Stratmans’ complaint was barred by the election of remedies doctrine and; (2) whether the driveway easement agreement was recorded outside Hartig’s chain of title and therefore not binding on him. Because we hold that Hartig was not entitled to summary judgment with re­spect to the election of remedies doctrine, we turn our attention to the question of whether a grant of summary judgment in Hartig’s favor on the issue of the driveway easement agreement constitutes a resolu­tion of less than all of the issues or claims involved. We hold that it does.

The amended complaint that the Stratman’s filed provides, in relevant part:

“3. On or before January 1, 1998, de­fendant entered upon Plaintiff's land without authority and commit­ted a continuing trespass thereon.

4. While on Plaintiffs’ [sic] property, Defendant blocked a driveway which had been used in common by 2208 East Walnut Street and 2210 East Walnut Street, part of which is on Plaintiffs’ real estate, and converted the same for his own exclusive use, resulting in the fact that Plaintiffs were denied the use of said drive­way and the use of their own real estate, and depriving them of access to their garage at the rear of their real estate, making the rental of their real estate impossible and ren­dering the sale of said real estate impossible at its fair value.”

Record, p. 15. The pleading later filed by the Stratmans, which is entitled “Second Paragraph of Amended Complaint,” pro­vides, in relevant part:

“3. The properties at 2208 East Walnut Street and 2210 East Walnut Street have for more than fifty years last past used a common driveway for the use and benefit of both said parcels of real estate.”

Record, p. 19.

Clearly, issues other than the driveway easement agreement have been raised by the pleadings. Hartig alleges, without ci­tation to authority, that the “Stratmans subsequently dropped their trespass claim.” Appellant’s Brief, p. 2. This alle­gation is apparently based on the purport­ed fact that “[t]he trial court had instruct­ed the Stratmans to file a further amended complaint in light of the confusion caused by the document titled [’]Second Para­graph of Amended Complaint[’],” which they did not do. Appellant’s Brief, p. 2. However, our review of the record does not support the assertion that the Strat­mans abandoned any claim that was raised in the pleadings. Therefore, we hold that the summary judgment granted in favor of Hartig on the issue of the driveway ease­ment agreement constitutes a partial sum­mary judgment because it does not bring to resolution all of the claims or issues involved. See Ind. Trial Rule 56. There­fore, that leaves open for resolution those issues not covered by this opinion.

For the foregoing reasons, we affirm the trial court’s denial of summary judgment on the issue of election of remedies, but reverse the trial court and grant partial summary judgment in favor of Hartig on the issue of the driveway easement agree­ment.

Affirmed in part, reversed in part, and remanded for further proceedings.

1

From the face of the second amended com­plaint, it is clear that the claim of easement by agreement "arose out of the conduct, transac­tion, or occurrence set forth or attempted to be set forth in the original pleading.” Ind. Trial Rule 15(C), Moreover, Hartig did not raise a challenge regarding the relation back of amendments under Trial Rule 15(C) until his reply brief. It is well settled that an issue may not be raised for the first time in a reply brief. In re Adoption of H.M.G., 606 N.E.2d 874, 874 n. 1 (Ind.Ct.App.1993). Therefore, contrary to Hartig’s suggestion, the Strat­mans’ failure to argue that their second amended complaint related back to the date of the filing of the original complaint is of no consequence.

ROBB, Judge,

concurring

I concur in the majority’s resolution of the issue of the driveway easement agree­ment. As to the issue of the trespass claim, I agree that if the Stratmans are claiming that Hartig trespassed on their property in blocking off the driveway, their claim survives. If, however, they are claiming that Hartig blocked off only that part of the driveway which is on his prop­erty but over which the Stratmans claimed an easement, I believe our resolution of the easement issue also resolves the tres­pass issue in Hartig’s favor.

The driveway at issue lies partially on the Stratmans property and partially on Hartig’s property. The Stratmans com­plaint, in two counts, alleged that there was an easement agreement allowing both property owners use of the entire drive­way, and also that Hartig “blocked a drive­way which had been used in common ..., part of which is on [the Stratmans’] real estate, and converted the same for his own exclusive use.... ” R. 15. I do not be­lieve the record is clear regarding whether the Stratmans claim that Hartig blocked only that part of the driveway which is on his own property or also blocked off that part which is on their property. If they claim that Hartig blocked off that part of the driveway over which they claimed an easement, and as we have already deter­mined that Hartig is entitled to summary judgment on the issue of the driveway easement agreement because the agree­ment was recorded outside his chain of title, then Hartig should also be entitled to summary judgment on the trespass issue, because he cannot be said to have tres­passed on land which is solely and exclu­sively his. On the other hand, if they claim that Hartig blocked off the entire driveway, including that part of the drive­way which is on their property, then their claim should be allowed to proceed.

As such, I concur in result with the majority’s holding that there remain issues to be resolved in the trial court regarding the trespass claim. In all other respects, I concur with the majority.

District Court of Appeal of Florida, Fifth District.

No. 5D09-4014.

ARGENT MORTGAGE COMPANY, LLC, Appellant, v. WACHOVIA BANK N.A., etc., Appellee.

Dec. 30, 2010.

PALMER, J., and PERRY, B., JR., Associate Judge, concur.

Jeffrey R. Dollinger, of Scruggs & Car­michael, P.A., Gainesville, for Appellant.

W. David Vaughn, of W. David Vaughn, P.A., Jacksonville, for Appellee.

GRIFFIN, J.

Argent Mortgage Company, LLC [“Ar­gent”] appeals the trial court’s entry of judgment in favor of Wachovia Bank Na­tional Association, as Trustee Under Pool­ing and Servicing Agreement Dated as of November 1, 2004, Asset Backed Pass-­Through Certificates Series 2004-WWF1 [“Wachovia”]. Argent argues that the tri­al court erred by finding that the mort­gage now owned by Wachovia has priority over Argent’s mortgage. We reverse.

On August 31, 2004, Gene M. Burkes and Ann Burkes [“the Burkes”] as borrow­er/mortgagor and Olympus Mortgage Company as lender/mortgagee executed a mortgage [“the Olympus Mortgage”] on real property as security for a $90,000.00 loan. The Olympus Mortgage was record­ed on January 5, 2005. Subsequently, the Olympus Mortgage was assigned to Wachovia. As a result of default, Wachovia filed a complaint to foreclose the Olympus Mortgage and to enforce lost loan docu­ments. Wachovia joined Argent as a de­fendant, alleging that Argent might claim some interest in or lien upon the subject property by virtue of a recorded mortgage.

On December 10, 2004, the Burkes as borrower/mortgagor and Argent as lend­er/mortgagee executed a mortgage [“the Argent Mortgage”] as security for a $65,000.00 loan on the same real property that is the subject of the Olympus Mort­gage. The Argent Mortgage was recorded on January 31, 2005. Subsequently, Wells Fargo Bank became the owner of the Ar­gent Mortgage. An action to foreclose the Argent Mortgage was initiated as a result of default.1

Argent filed a motion for summary judg­ment in its favor, requesting that the trial court determine that the Argent Mortgage has priority over the Olympus Mortgage. Likewise, Wachovia filed a motion for sum­mary judgment in its favor, requesting that the trial court determine that the Olympus Mortgage has priority over the Argent Mortgage. After conducting a hearing, the trial court entered an order on the competing motions for summary judgment as to priority. In the order, the trial court made findings on facts not in dispute, including the dates of execution and recordation of the two mortgages and Argent’s lack of actual or constructive no­tice of the Olympus Mortgage at the time of execution of the Argent Mortgage. Ul­timately, the trial court deemed “the Flori­da statutes on recordation,” namely sec­tions 695.01 and 695.11, Florida Statutes, “to be of the race-notice variety,” found that the Olympus Mortgage should have priority over the Argent Mortgage, and entered a partial final judgment in favor of Wachovia.

On appeal, Argent argues that the trial court erred by finding in favor of Wacho­via on the issue of mortgage priority be­cause the trial court erred in concluding that sections 695.01 and 695.11, Florida Statutes when read together, create a “race-notice” scheme. Argent asserts that section 695.01, Florida Statutes, alone de­termines which mortgage has priority, that section 695.01 is, and, for over a century, has been recognized to be a “notice” stat­ute, not a “race-notice” statute and that, under section 695.01, the Argent Mortgage has priority over the Olympus Mortgage.

Wachovia acknowledges that section 695.01, Florida Statutes, is a “notice” type of recording statute. However, Wachovia contends that amendments made to section 695.11, Florida Statutes, have converted Florida into a “race-notice” state.

As an initial matter, it bears explaining that recording statutes are classified into three categories: race, notice, and race-­notice. See Grant S. Nelson, William B. Stoebuck, and Dale A. Whitman, Contem­porary Property 1004 (West Group 2d ed. 2002). These can generally be described as follows:

• Under a race recording statute, a subsequent mortgagee of real property will prevail against a prior mortgagee of the said real property if the subsequent mortgage is recorded before the prior mortgage.

• Under a notice recording statute, a subsequent mortgagee of real property for value and without notice (actual and constructive) of a prior mortgage of the said real property will prevail against the prior mortgagee.

• Under a race-notice recording statute, a subsequent mortgagee of real property for value and without notice (ac­tual and constructive) of a prior mortgage of the said real property will prevail against the prior mortgagee if the subse­quent mortgage is recorded before the prior mortgage.

Importantly, under either a notice or a race-notice recording statute, the sub­sequent mortgagee cannot be without con­structive notice if the prior mortgage has been recorded as of the time of execution of the subsequent mortgage. See id. at 1004-07.

Application of each type of recording statute to the undisputed facts here yields the following results:

• Wachovia prevails under a race re­cording statute because the Olympus Mortgage was recorded before the Argent Mortgage;

• Argent prevails under a notice record­ing statute because it is a subsequent mortgagee for value and did not have no­tice of the Olympus Mortgage at the time of execution of the Argent Mortgage; and

• Wachovia prevails under a race-notice recording statute because, although Ar­gent is a subsequent mortgagee for value and did not have notice of the Olympus Mortgage at the time of execution of the Argent Mortgage, the Olympus Mortgage was recorded before the Argent Mortgage.

Commentators appear uniformly to cate­gorize section 695.01 as a “notice” type of recording statute. See 2-26 Ralph E. Boy­er, Florida Real Estate Transactions § 26.02 (Matthew Bender & Co., Inc. 2010) (“Florida has a notice type recording stat­ute [see § 695.01, Fla. Stat.] the primary function of which is to protect subsequent purchasers (which for purposes of this dis­cussion includes mortgagees and creditors who are within the statute’s protection) against claims arising from prior unrecord­ed instruments .... ” (citations omitted)).

Florida courts over time have described and applied Florida’s recording statute in a manner that is consistent with a “notice” type of recording statute. See Lesnoff v. Becker, 101 Fla. 716, 135 So. 146, 147 (1931) (“‘Under our recording statutes, subsequent purchasers, acquiring title without notice of a prior unrecorded deed, mortgage, or transfer of real property, or any interest therein, will be protected against such unrecorded instrument, un­less the party claiming thereunder can show that such subsequent purchaser ac­quired the title with actual notice of such unrecorded conveyance or mortgage; and the burden of showing such notice is upon the party claiming under such unrecorded instrument, the presumption in such case being that such subsequent purchaser ac­quired his title in good faith and without notice of the prior unrecorded convey­ance.’” (quoting Rambo v. Dickenson, 92 Fla. 758, 110 So. 352, 353 (1926))); Morris v. Osteen, 948 So.2d 821, 826 (Fla. 5th DCA 2007) (“Generally, competing inter­ests in land have priority in the order in which they are created;” “[t]he important caveat to this rule is that those acquiring rights later will have priority if they took without ‘notice of the first created rights.’” (citation omitted)); F.J. Holmes Equip., Inc. v. Babcock Bldg. Supply, Inc., 553 So.2d 748, 750 (Fla. 5th DCA 1989) (“The first rule is that competing interests in land have priority in order of their cre­ation in point of time;” “[t]his rule is sub­ject to the important exception created by the recording statute that notice of the first created rights must be available to those later acquiring rights in the same land;” and “[t]his normally means that un­recorded rights, titles or lien interests, such as the equitable rights of the benefi­ciaries of resulting trusts, constructive trusts and equitable liens, are generally held to be inferior to rights subsequently acquired without actual notice of the earli­er created but unrecorded rights” (foot­notes omitted)). Florida’s approach to the problem was succinctly described by the Florida Supreme Court in Van Eepoel Real Estate Co. v. Sarasota Milk Co., 100 Fla. 438, 129 So. 892, 895 (1930):

[I]t is generally held, in states having recording statutes similar to ours, that if A conveys lands to B, a bona fide pur­chaser for value, who does not go into possession and who failed to record his deed until after A conveys the same land to C, a second bona fide purchaser for value without notice of B’s interest, and B then records his deed before C rec­ords his, the title of C shall nevertheless prevail as between C and B, because it is the fault of B that he did not immedi­ately record his deed, thereby permit­ting C to deal with the property and part with his consideration without knowledge of B’s interest. So B is estopped and the equities are with C.

Section 695.01, notwithstanding, the trial court accepted Wachovia’s argument that a 1967 amendment to a different statute, section 695.11, Florida Statutes, entitled, “Instruments deemed to be recorded from time of filing” converted Florida from a “notice” to a “race-notice” jurisdiction. The earliest version of section 695.11 dates back to 1885. Examination of the lan­guage of the 1906, 1920, and 1935 itera­tions of section 695.11, make clear that this statute was intended to provide a mecha­nism for determining the time at which an instrument was deemed to be recorded. Nothing in the case law suggests that sec­tion 695.11 modifies section 695.01.2

As a result of the 1967 amend­ment, section 695.11 now includes the fol­lowing language: “The sequence of such official numbers shall determine the pri­ority of recordation. An instrument bear­ing the lower number in the then-current series of numbers shall have priority over any instrument bearing a higher number in the same series.” (Emphasis added). Wachovia contends that the inclu­sion of this language converted Florida from a “notice” state to a “race notice” state. We disagree. The amendment to section 695.11 is designed to refine the test for determining the time at which an in­strument is deemed to be recorded, not to alter the recording requirement found in section 695.01.3

Section 695.11 also applies to index­ing errors. To the extent that an instru­ment bears an official register number but has been indexed incorrectly, it is never­theless deemed to be recorded. See Anderson v. N. Fla. Prod. Credit Ass’n, 642 So.2d 88, 89 (Fla. 1st DCA 1994) (“[A]n instrument is deemed to be ‘official­ly recorded’ when the instrument is ac­cepted by the court clerk and is given ‘official register numbers.’ ... While in­dexing is required, priority is not contin­gent upon such, and the cases cited to us by appellants do not alter the plain lan­guage of th[e] statute which provides that ‘[t]he sequence of such official numbers shall determine the priority of recorda­tion.’”); see also Orix Fin. Servs., Inc. v. MacLeod, 977 So.2d 658, 658 (Fla. 1st DCA 2008).

Wachovia relies on an earlier opinion of this Court, Rice v. Greene, 941 So.2d 1230 (Fla. 5th DCA 2006), in support of its contention that Florida has a race-notice type of recording statute. In Rice, this Court quoted section 695.01 and found:

In other words, “an unrecorded deed is not good or effectual in law or equity against creditors or subsequent purchas­ers for valuable consideration who are without notice of the transaction.” Fryer v. Morgan, 714 So.2d 542, 545 (Fla. 3d DCA 1998). Therefore, because Mr. Greene had no notice of the earlier warranty deed between Mr. Rice and Mrs. Schwartz and paid valuable con­sideration for the property, Mr. Greene’s recording of his warranty deed before Mr. Rice gives Mr. Greene priori­ty to the property.

Id. at 1282 (emphasis added). According to Wachovia, this language proves that priority in recording is key. Notably, however, Rice does not mention section 695.11 and recording was not an issue. The subsequent purchaser in Rice (Mr. Greene) had priority to the property under a notice type of recording statute because he paid value for the property and did not have notice (actual or constructive) of the earlier warranty deed at the time of the conveyance. The fact that Mr. Greene’s deed was recorded before Mr. Rice’s does not affect the outcome under a notice type of recording statute. Although a portion of the sentence in Rice, on which Wachovia relies, mentions recording, in that case, it was superfluous.

We conclude that Florida is, and re­mains, a “notice” jurisdiction, and notice controls the issue of priority. Since Ar­gent is a subsequent mortgagee for value and did not have notice of the Olympus Mortgage at the time of execution of the Argent Mortgage, the Argent Mortgage has priority over the Olympus Mortgage. As such, the trial court erred by entering partial summary final judgment in favor of Wachovia on the issue of priority.

REVERSED and REMANDED.

1

The trial court entered an order consolidat­ing the two foreclosure actions.

2

Contrary to Wachovia’s contention, when read together, sections 695.01 and 695.11 do not appear to be similar to the wording of New Jersey’s race-notice recording statute on which the trial court relied in its decision.

3

Case law confirms that the purpose of sec­tion 695.11 is to determine the time at which an instrument is deemed to be recorded and to serve as notice. See Broward County v. Recupero, 949 So.2d 274, 276 (Fla. 4th DCA 2007) ("Florida Statutes section 695.11 pro­vides that instruments are deemed to be re­corded from the time of filing.”); Winn-Dixie Stores, Inc. v. Dolgencorp, Inc., 964 So.2d 261, 266-67 (Fla. 4th DCA 2007) ("Section 695.11, Florida Statutes (2006) states that an instrument, like a lease, which is ‘authorized or required to be recorded’ by the clerk 'shall be notice to all persons' once it is ‘officially recorded’ pursuant to the statute.”); In re Forfeiture of $91,357.12, 595 So.2d 998, 999 (Fla. 4th DCA 1992) ("Section 695.11, Florida Statutes, specifically provides that the effec­tive time of recording is the point at which the document is officially accepted and officially recorded.” (emphasis in original)); Pa­terson v. Brafman, 530 So.2d 499, 500 (Fla. 3d DCA 1988) (“Our reversal is founded upon the basic, irrefutable principle that those who subsequently deal with real property are placed on constructive notice of the relevant contents of a properly recorded instrument ....” (citing section 695.11, Florida Stat­utes)). Section 695.11 has an important pur­pose to determine the priority between judg­ment liens. See Lamchick, Glucksman & Johnston, P.A. v. City Nat’l Bank of Fla., 659 So.2d 1118, 1119 (Fla. 3d DCA 1995); Dollar Sav. & Trust Co. v. Soltesiz, 636 So.2d 63, 66 (Fla. 2d DCA 1994); Martinez v. Reyes, 405 So.2d 468, 469 (Fla. 3d DCA 1981). Because a certified copy of a judgment must be record­ed in order to create a lien on real property, a judgment that is recorded earlier in time, namely one that bears a lower official register number, will win priority.

Nos. 17,623—(176).

BOARD OF EDUCATION OF CITY OF MINNEAPOLIS v. LUCIUS A. HUGHES and Others.1

July 5, 1912.

C. S. Deaver and Everett Moon, for appellants.

Daniel Fish, City Attorney, and Henry C. Flannery, Assistant City Attorney, for respondent.

Reversed and new trial granted.

1

Reported in 136 N. W. 1095.

Bunn, J.

Action to determine adverse claims to a lot in Minneapolis. The complaint alleged that plaintiff owned the lot, and the answer denied this, and alleged title in defendant L. A. Hughes. The trial resulted in a decision in favor of plaintiff, and defendants appealed from an order denying a new trial.

The facts are not in controversy and are as follows: On May 16, 1906, Carrie B. Hoerger, a resident of Faribault, owned the lot in question, which was vacant and subject to unpaid delinquent taxes. Defendant L. A. Hughes offered to pay $25 for this lot. His offer was accepted, and he sent his check for the purchase price of this and two other lots bought at the same time to Ed. Hoerger, husband of the owner, together with a deed to be executed and returned. The name of the grantee in the deed was not inserted; the space for the same being left blank. It was executed and acknowledged by Carrie B. Hoerger and her husband on May 17, 1906, and delivered to de­fendant Hughes by mail. The check was retained and cashed. Hughes filled in the name of the grantee, but not until shortly prior to the date when the deed was recorded, which was December 16, 1910. On April 27, 1909, Duryea & Wilson, real estate dealers, paid Mrs. Hoerger $25 for a quitclaim deed to the lot, which was exe­cuted and delivered to them, but which was not recorded until De­cember 21, 1910. On November 19, 1909, Duryea & Wilson exe­cuted and delivered to plaintiff a warranty deed to the lot, which deed was filed for record January 27, 1910. It thus appears that the deed to Hughes was recorded before the deed to Duryea & Wilson, though the deed from them to plaintiff was recorded before the deed to defendant.

The questions for our consideration may be thus stated: (1) Did the deed from Hoerger to Hughes ever become operative? (2) If so, is he a subsequent purchaser whose deed was first duly recorded, within the language of the recording act?

1. The decision of the first question involves a consideration of the effect of the delivery of a deed by the grantor to the grantee with the name of the latter omitted from the space provided for it, without express authority to the grantee to insert his own or another name in the blank space. It is settled that a deed that does not name a grantee is a nullity, and wholly inoperative as a conveyance, until the name of the grantee is legally inserted. Allen v. Allen, 48 Minn. 462, 51 N. W. 473; Clark v. Butts, 73 Minn. 361, 76 N. W. 199; Id. 78 Minn. 373, 81 N. W. 11; Casserly v. Morrow, 101 Minn. 16, 111 N. W. 654. It is clear, therefore, and this is conceded, that the deed to defendant Hughes was not operative as a conveyance until his name was inserted as grantee.

Defendant, however, contends that Hughes had implied authority from the grantor to fill the blank with his own name as grantee, and that when he did so the deed became operative. This contention must, we think, be sustained. Whatever the rule may have been in the past, or may be now in some jurisdictions, we are satis­fied that at the present day, and in this state, a deed which is a nul­lity when delivered because the name of the grantee is omitted be­comes operative without a new execution or acknowledgment if the grantee, with either express or implied authority from the grantor, inserts his name in the blank space left for the name of the grantee.

In State v. Young, 23 Minn. 551, the instrument was an official bond given by a county treasurer, and no penal sum was named in the bond when it was delivered to the county commissioners; but it was inserted by the county auditor by direction of the commissioners, without the knowledge of the obligor or sureties. The language of Judge Mitchell is pertinent here in answer to more than one of plain­tiff’s contentions:

“Whatever may formerly have been the rule, or may still be the holding of some courts upon this question, we think the better opinion, both on principle and authority, is that parol authority is adequate and sufficient to authorize an addition to, or alteration of, even a sealed instrument. At the present day the distinction be­tween sealed and unsealed instruments is arbitrary, meaningless, and unsustained by reason. * * * We therefore hold that parol au­thority is sufficient to authorize the filling of a blank in a sealed in­strument, and that such authority may be given in any way by which it might be given in case of an unsealed instrument.”

As in the case at bar, there was no claim that any express author­ity was given. It was held that this was unnecessary—that authority could be implied from circumstances, when the facts proved, all taken together and fairly considered, justify the inference.

In Casserly v. Morrow, 101 Minn. 16, 111 N. W. 654, the name of an assignee in an assignment of a mortgage was absent when the instrument was delivered. The Chief Justice said: “If, however, Morrow’s name was inserted as assignee in the instrument by the authority of the mortgagee, express or implied from circumstances, and then recorded, he was in law the legal owner of record of the mortgage and entitled to foreclose. State v. Young, 23 Minn. 551; Van Etta v. Evenson, 28 Wis. 33, 9 Am. Rep. 486; Friend v. Yahr, 126 Wis. 291, 104 N. W. 997, 1 L.R.A.(N.S.) 891, 110 Am. St. 924.”

The Wisconsin cases cited as authority in the Morrow case ex­press the law as we think it ought to be and is in this state.

Van Etta v. Evenson was the case of a note and mortgage exe­cuted with a blank in each for the name of the payee and mortgagee, and delivered to an agent who was to procure a loan thereon for the maker from whomever he could. It was held that the facts showed an intention that the agent should fill the blanks, and that, when so filled, the instruments were valid, without a new execution and de­livery. Dixon, C. J., said in regard to the supports of conflicting de­cisions: “They are grounds of the purest and most unalloyed techni­cality, originating in a state of things and condition of the law which have long since passed away.”

In Friend v. Yahr the instrument was an assignment of a mort­gage, in which the blank space was filled by the assignee with his own name after the delivery of the instrument to him. Marshall, C. J., said: “It will be found decided, in some cases holding that blank spaces, such as the one in question, may be filled up after delivery of the paper by authority in writing, that parol authority is insuf­ficient, and that, if it were otherwise, authority could not be im­plied from the mere delivery of the paper in its incomplete con­dition; but the general rule is that when one delivers an instrument, whether the same be required to be under seal or not, so executed as to, in form, give it full validity upon the filling up of blanks, au­thority for the holder thereof to do that is implied.”

The same rule exists in Iowa. Hall v. Kary, 133 Iowa, 465, 110 N. W. 930, 119 Am. St. 639; Augustine v. Schmitz, 145 Iowa, 591, 124 N. W. 607. In the Hall case it was held that a deed in which the name of the grantee is left blank, but otherwise fully executed, vests title in the person whose name is subsequently written in by the person to whom it was delivered with authority to do so, and that when the grantor accepts the consideration and delivers the deed, authority to the grantee to fill up the blank must be presumed. The facts in the Augustine case were the same, as was the ruling. Further authorities are cited in Devlin, Deeds, § 457, notes.

Unquestionably the authorities are in conflict; but this court is committed to the rule that in case of the execution and delivery of a sealed instrument, complete in all respects save that the blank for the name of the grantee is not filled, the grantee may insert his name in the blank space, provided he has authority from the grantor to do so, and, further, that this authority may be in parol, and may be implied from circumstances. We consider this the better rule, and also that it should be and is the law that when the grantor receives and retains the consideration, and delivers the deed in the condition described to the purchaser, authority to insert his name as grantee is presumed. Any other rule would be contrary to good sense and to equity. The same result could perhaps be reached by applying the doctrine of estoppel; but we prefer to base our decision on the ground of implied authority. Clearly the facts in the case at bar bring it within the principle announced, and we hold that Hughes, when he received the deed from Mrs. Hoerger, had implied authority to insert his name as grantee, in the absence of evidence showing the want of such authority. The delay in filling up the blank has no bearing on the question of the validity of the instrument when the blank was filled.

It is argued that holding that parol authority to fill the blank is sufficient violates the statute of frauds. This theory is the basis of many of the decisions that conflict with the views above expressed; but we do not think it sound. The cases in this state, and the Wis­consin, Iowa, and other decisions referred to, are abundant authority for the proposition that the authority of the grantee need not be in writing. Our conclusion is, therefore, that the deed to Hughes be­came operative as a conveyance when he inserted his name as grantee.

2. When the Hughes deed was recorded, there was of record a deed to the lot from Duryea & Wilson to plaintiff, but no record showing that Duryea & Wilson had any title to convey. The deed to them from the common grantor had not been recorded. We hold that this record of a deed from an apparent stranger to the title was not notice to Hughes of the prior unrecorded conveyance by his grantor. He was a subsequent purchaser in good faith for a valuable con­sideration, whose conveyance was first duly recorded; that is, Hughes’ conveyance dates from the time when he filled the blank space, which was after the deed from his grantor to Duryea & Wil­son. He was, therefore, a “subsequent purchaser,” and is protected by the recording of his deed before the prior deed was recorded. The statute cannot be construed so as to give priority to a deed recorded before, which shows no conveyance from a record owner. It was necessary, not only that the deed to plaintiff should be recorded be­fore the deed to Hughes, but also that the deed to plaintiff’s grantor should be first recorded. Webb, Record of Title, § 158; 3 Wash­burn, Real Property, 292; Losey v. Simpson, 11 N. J. Eq. 246; Burke v. Beveridge, 15 Minn. 160 (205); Schoch v. Birdsall, 48 Minn. 443, 51 N. W. 382.

Our conclusion is that the learned trial court should have held on the evidence that defendant L. A. Hughes was the owner of the lot.

Order reversed, and new trial granted.