Bank of Jennings v. Jennings
| Decision Date | 15 February 1916 |
| Citation | 71 Fla. 145,71 So. 31 |
| Parties | BANK OF JENNINGS v. JENNINGS et al. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Hamilton County; M. F. Horne, Judge.
Suit by the Bank of Jennings against W. P. Jennings and another. From decree for defendants, complainant appeals. Reversed and remanded, with directions.
Syllabus by the Court
A 'mortgage duly executed * * * by husband and wife,' sufficient to create a lien upon homestead real estate of the husband, as between the mortgagors and mortgagee must be duly executed by the husband and wife and the execution by the wife duly acknowleged by her, since under the statute due acknowledgment by the wife of the execution of the deed or mortgage by her is essential to the validity of any conveyance or relinquishment of an interest in real estate by the wife even as between the parties to the instrument.
The law which authorizes designated officers to take the private examination of the wife was designed as a substitution for the proceedings at common law by fine and recovery, whereby the right of the wife on the one hand might be guarded, and a sure indefeasible and unquestionable transfer of her right secured on the other.
The certificate of the officer as to the acknowledgment of the execution of a deed of conveyance or mortgage made before him, is a quasi judicial act, and where the person executing the instrument and the instrument are in fact before the officer, and he undertakes to act officially, the certificate of the officer as to the transaction, when made as the law requires, is, in the absence of fraud or duress, conclusive as to the facts stated in the official certificate. When fraud is alleged, proof of it must be of the clearest strongest, and most convincing character.
Where a married woman signed a mortgage of land in the presence of witnesses, and the only contention in avoidance of the mortgage is that she did not acknowledge to or before the officer separate and apart from her husband the execution of the morgage, the certificate of the officer of due acknowledgment of the execution of the morgage by her separate and apart from her husband will prevail, where there is evidence to sustain the certificate, and it is not overcome by clear, strong, and convincing testimony.
COUNSEL Blount, Blount & Carter, of Pensacola, and Stafford Caldwell, of Live Oak, for appellant.
I. J McCall and B. B. Johnson, both of Jasper, for appellees.
Suit was brought by the mortgagee bank to correct an error in the date of a certificate of the acknowledgment of the execution of a mortgage and to foreclose the mortgage upon real estate alleged to have been given by the appellees husband and wife. The defendants filed the following plea:
That the property was 'at the time of the purported execution of the alleged deed of mortgage, and some time prior thereto and is now, the homestead of these defendants, and upon which these defendants did then reside, and upon which these defendants do now reside, that these defendants have never conveyed the same to the complainant as is claimed in its bill of complaint herein, that neither of these defendants ever acknowledged the execution of the mortgage herein attempted to be foreclosed, and that the certificate of K. K Powell thereto attached is false.'
This plea was sworn to by each of the defendants. The bill of complaint was amended so as to allege matters of estoppel. The answer filed had reference to the amendment to the bill of complaint. Replications to the plea and answer were filed and testimony taken. The bill of complaint was dismissed on final hearing, but a rehearing was granted, and in a subsequent decree a foreclosure was decreed 'except as regards to the inchoate dower rights of the wife.' An appeal was taken by the complainant from both decrees.
The certificate of the officer as to the acknowledgment before him of the execution of the mortgage is as follows:
Sections 1 and 4 of article 10, the 'Homestead and Exemptions,' article of the state Constitution, provide that:
'A homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this state, together with one thousand dollars worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists.'
'Nothing in this article shall be construed to prevent the holder of a homestead from alienating his or her homestead so exempted by deed or mortgage duly executed by himself or herself, and by husband and wife, if such relation exists.'
The Constitution requires the mortgage to be 'duly executed * * * by husband and wife.' A due acknowledgment by the wife of the execution of the mortgage by her is essential to the validity of the mortgage. Acknowledgment of execution is under the statute an essential part of the execution of a deed or mortgage by a married woman conveying or relinquishing an interest in real estate.
Section 2462 of the General Statutes provides that:
'To render such sale, conveyance, mortgage or relinquishment, whether of separate estate or of dower, effectual to pass a married woman's estate or right, she must acknowledge, before some officer authorized to take acknowledgment of deeds, separately and apart from her husband, that she executed the same freely and voluntarily and without compulsion, constraint, apprehension or fear of or from her husband and the officer's certificate shall set forth all the foregoing requirements.' Florida Compiled Laws 1914, § 2462.
A 'mortgage duly executed * * * by husband and wife,' sufficient to create a lien upon homestead real estate of the husband, as between the mortgagors and mortgagee, must be duly executed by the husband and wife and the execution by the wife duly acknowledged by her, since under the statute due acknowledgment by the wife of the execution of the deed or mortgage by her is essential to the validity of any conveyance or relinquishment of an interest in real estate by the wife even as between the parties to the instrument. See Adams v. Malloy, 70 Fla. ----, 70 So. 463. As to the husband, acknowledgment of the execution of the instrument is essential only for purposes of recording and its effects.
If the mortgage in this case was duly executed by the husband and duly executed by the wife and the execution of it duly acknowledged by her, it is sufficient in this respect and as between the mortgagors and mortgagee as a mortgage upon homestead real estate.
The law which authorizes designated officers to take the private examination of the wife was designed as a substitution for the proceedings at common law by fine and recovery, whereby the right of the wife on the one hand might be guarded, and a sure indefeasible and unquestionable transfer of her right secured on the other. Hart v. Sanderson, 18 Fla. 103, text 109.
The certificate of the officer as to the acknowledgment of the execution of a deed of conveyance or mortgage made before him is a quasi judicial act, and where the person executing the instrument and the instrument are in fact before the officer, and he undertakes to act officially, the certificate of the officer as to the transaction, when made as the law requires, is, in the absence of fraud or duress, conclusive as to the facts stated in the official certificate. When fraud is alleged, proof of it must be of the clearest, strongest, and most convincing character. See Hart v. Sanderson, supra; McClure v. American Nat. Bank of Pensacola, 67 Fla. 32, 64 So. 427; 1 R. C. L. § 102; Wikins v. Baker, 77 S.C. 244, 57 S.E. 851; Young v. Duvall, 109 U.S. 573, 3 S.Ct. 414, 27 L.Ed. 1036; 1 C.J. p. 898; Holland v. Webster, 43 Fla. 85, 29 So. 625; American Freehold Land Mortgage Co. v. Thornton, 108 Ala. 258, 19 So. 529, 54 Am. St. Rep. 148; notes 41 L. R. A. (N. S.) 1176; 1 Jones on Mort. (7th Ed.)§ 500; notes 7...
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