MAX BAUER, D/B/A MAX BAUER MEAT PACKER, INC., APPELLANT,
v.
LOUISE KAPLAN, APPELLEE

Fla. 3d DCA | 1970-03-31
No. 69-659
Before CHARLES CARROLL, HEN-DRY and SWANN, JJ.
233 So. 2d 430 Florida District Court of Appeal, Third District (1970) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Max Bauer obtained a judgment lien against Alan Kaplan and sought to enforce it against real property that Alan and Louise Kaplan had conveyed to Louise pursuant to their divorce decree. The court held that Louise Kaplan had priority because Bauer had constructive notice of the divorce decree through its recordation in the Chancery Order Book, which put him on notice before his judgment was recorded.


Holding

The court held that Bauer had constructive notice of the divorce decree through its recordation in the Chancery Order Book, and therefore Louise Kaplan's interest in the property had priority over Bauer's judgment lien. Recordation in the Chancery Order Book provided notice equivalent to recordation in the Official Record Book.


Headnotes

[1] A recorded final decree of divorce, even if recorded in the Chancery Order Book rather than the Official Record Book, provides constructive notice to subsequent judgment…

[2] A judgment lien does not defeat the priority of a prior conveyance of property when the judgment creditor had constructive notice of the conveyance.

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Key Quotes

“The basic issue is whether the appellant as judgment creditor of Alan Kaplan, was without notice of the prior, but unrecorded (in the Official Record Book of the Dade County Public Records) deed. We have concluded that appellant had notice. The final decree of divorce served to put the appellant on constructive notice.”

Establishes the central legal issue and the court's holding regarding constructive notice

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Facts & Procedural History

Alan and Louise Kaplan were divorced in 1962. On January 15, 1962, they executed a warranty deed conveying their property to Louise Kaplan pursuant to…

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Opinion of the Court
HENDRY, Judge.

HENDRY, Judge.

Louise Kaplan initiated this law suit by filing her complaint for declaratory judgment, quieting of title, and other relief against the appellant. The relief which the plaintiff sought in this action was a finding by the circuit court that a certain recorded judgment, owned by the appellant, created no lien on certain real property; she also requested an injunction barring any claim to that property by appellant. Final judgment was entered in favor of the appellee, wherein the court found that the judgment owned by appellant created no lien or liens or encumbrances on the real property.

During her marriage, the appellee and Alan Kaplan resided as husband and wife at the property in issue. Differences arose between the parties in 1961, and on January 5, 1961, a Property Settlement Agree*431ment was entered into between Alan Kap-lan and Louise Kaplan. On January IS, 1962, Alan Kaplan and Louise Kaplan executed and delivered to the appellee’s attorney a warranty deed which conveyed the real property to Louise Kaplan.

On January 31, 1962, the final decree of divorce was entered in the circuit court, which final decree included the Property Settlement Agreement. That final decree of divorce was recorded in the Chancery Order Book of the Dade County Public Records on February 2, 1962. The final decree of divorce was not, however, then recorded in the Official Record of the court.

About the same time that the divorce proceedings were drawing to a conclusion, Alan Kaplan was engaged in a separate, independent law suit involving the appellant, Max Bauer, d/b/a Max Bauer Meat Packer, Inc. The forum for that litigation was the Civil Court of Record and appellant Bauer obtained a summary final judgment against Alan Kaplan for $3,618.00. That final judgment was entered on February 16, 1962, and recorded in the Official Record Book of the Dade County Public Records on February 20, 1962.

On March 15, 1962, the warranty deed from Alan Kaplan and Louise Kaplan, his wife, to Louise Kaplan, which conveyed the property to Louise Kaplan pursuant to the divorce decree, was then recorded in the Official Record Book of the Dade County Public Records.

Thus, the chronology outlined above presents the issue as to which of the parties to this appeal has priority in regard to the real property. We hereby hold that the circuit court correctly determined that the priority was with the appellee.

The basic issue is whether the appellant as judgment creditor of Alan Kaplan, was without notice of the prior, but unrecorded (in the Official Record Book of the Dade County Public Records) deed. We have concluded that appellant had notice. The final decree of divorce served to put the appellant on constructive notice. We choose to base this conclusion on the fact that the final decree of divorce was duly recorded in the Chancery Order Book. See 28 Fla.Jur. Records and Recording Acts, § 6.

Section 28.21(5) Fla.Stat., F.S.A. (1967) authorizes the clerk of the circuit court to keep a Chancery Order Book such as the one in which the appellee’s divorce decree was recorded. In § 28.221, Fla.Stat., F.S.A. (1967) the Legislature authorized an alternative method by which the clerks of the circuit courts could record all official instruments of the court in a general series to be called “the official records”. We hold that the recordation of the divorce decree in the Chancery Order Book, as prescribed by § 28.21, supra, served to put the appellant on notice as effectively as a recordation in the Official Record Book, pursuant to § 28.221, supra, would have done had that method been used. Compare Sapp v. Warner, 105 Fla. 245, 141 So. 124, 143 So. 648, 144 So. 481.

Therefore, for the reasons stated above, we hereby hold that the conveyance of the property by warranty deed, pursuant to the final decree of divorce which was recorded in the Chancery Order Book, put the appellant on notice so that his judgment lien could not defeat the priority of the appellant to the property. The final judgment is therefore affirmed.

Affirmed.


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Citator

Cited By

  • Paterson v. Isidore Brafman, 530 So. 2d 499 (Fla. 3d DCA 1988)
    …CA 1980), pet. for review denied, 397 So. 2d 778 (Fla. 1981). The applicability of this immutable doctrine to this situation is established by two Florida decisions. First Fed. Sav. & Loan Ass’n v. Fisher, 60 So. 2d 496 (Fla.1952); Bauer v. Kaplan, 233 So. 2d 430 (Fla. 3d DCA 1970), cert, denied, 238 So. 2d 430 (Fla. 1970). In Fisher, the Supreme Court held that a subsequent mortgagee’s interest was subject to an earlier transfer of title effected by a separation agreement which was incorporated- only by ref…
  • Bauer v. Kaplan, 238 So. 2d 420 (Fla. 1970)
    …Certiorari denied. 233 So. 2d 430. ERVIN, C. J., and ROBERTS, DREW, CARLTON and ADKINS, JJ., concur.…
  • SUN Bank OF Miami v. Villalon, 438 So. 2d 1052 (Fla. 3d DCA 1983)
    …; Continental Development Corporation of Florida v. Duval Title and Abstract Co., 356 So. 2d 925 (Fla. 2d DCA 1978); Susman v. Schuyler, 328 So. 2d 30 (Fla. 3d DCA 1976); DeCamp v. Allen, 156 So. 2d 661 (Fla. 1st DCA 1963); Compare: Bauer v. Kaplan, 233 So. 2d 430 (Fla. 3d DCA 1970).…

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