Hutchinson v. Stone

• Citation: 84 So. 151,79 Fla. 157
• Parties: HUTCHINSON et ux. v. STONE.
• Decision Date: 25 February 1920
• Court: United States State Supreme Court of Florida

84 So. 151

79 Fla. 157

HUTCHINSON et ux. v. STONE.

Florida Supreme Court

February 25, 1920

Rehearing Denied April 13, 1920.

Appeal from Circuit Court, Hillsborough County; F. M. Robles, Judge.

Suit by K. Stone against C.J. Hutchinson and wife. Decree for complainant, and defendants appeal. Reversed.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

Upon the death of 'the holder of a homestead,' the homestead 'inures' to the widow, as widow, if there be one, and to the 'heirs' of the owner.

A wife has a dower interest in her husband's homestead real estate.

Exempt property is for the benefit of the 'heirs' as well as the 'widow' of the owner.

If a 'deed or mortgage' 'alienating' the homestead is not 'duly executed * * * by husband and wife, if such relation exists,' the deed or mortgage is ineffectual to convey or to encumber the homestead property.

On the mortgage or conveyance of homestead real estate, none of the requirements of the Constitution or the statute may be waived by the husband and wife or by either of them.

It is the wife's acknowledgment before a proper officer separate and apart from her husband, that she executed an instrument conveying real estate freely and voluntarily without compulsion, constraint, apprehension, or fear of or from her husband, and not merely the wife's signature to the instrument, that makes it effective as to her.

The 'heirs' of the homestead owner, as well as the owner and his wife if he has one, have an interest in the homestead real estate that can be 'alienated' only as provided in the Constitution.

If the requirements of the Constitution and statutes are not complied with in 'alienating' homestead real estate the attempt is a nullity as to the 'heirs' of the homestead owner and also as to the husband and wife.

A deed or mortgage, to be 'duly executed * * * by husband and wife,' must be executed as required by the statutes, that is, signed, sealed, and delivered by each of them, attested by two witnesses as to each signature, and as to the wife, a statutory 'acknowledgment' is a part of the due execution of a deed or mortgage.

Under the statute the acknowledgment by a married woman of the execution of a deed of conveyance to be effective as a conveyance must be 'before some officer authorized to take acknowledgments 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.'

The 'acknowledgment' of a married woman in executing a deed or mortgage of real estate must be 'before' a proper officer, which means to him and in his presence, and it must be made 'separately and apart from her husband.'

The 'acknowledgment' of a married woman must in legal effect be a statement made by her to the officer in his presence 'that she executed' the deed or mortgage 'freely and voluntarily, and without compulsion constraint, apprehension, or fear of or from her husband.' And the officer's certificate must state in substance and legal effect that all the foregoing requirements were complied with.

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.

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.

Unless the married woman who makes an acknowledgment that she executed a deed or mortgage appears in person before the officer, he has no authority under the statute to take her acknowledgment.

An acknowledgment that she executed a conveyance, made to an officer over a telephone wire by the married woman, who is not present with the officer, is not an acknowledgment 'before' the officer, as is expressly required by the statute.

The Constitution provides that homestead real estate may be alienated only by deed or mortgage duly executed by husband and wife when that relation exists with the owner of a homestead, and such requirements are exclusive and mandatory. A failure to comply with controlling organic provisions is fatal to a deed or mortgage attempting to alienate homestead real estate.

COUNSEL Shackleford & Shackleford, of Tampa, for appellants.

W. C. Bigger and Hilton S. Hampton, both of Tampa, for appellee.

OPINION

WHITFIELD J.

K. Stone brought a suit to enforce a mortgage lien upon real estate alleged to have been executed by Hutchinson and his wife. By answer the defendant Harriet M. Hutchinson----

'admits that she signed the mortgage deed referred to in said paragraph, but alleges that she was tricked into doing so, and denies that she ever acknowledged same; that she and Currie J. Hutchinson, named as defendants herein, are husband and wife, and have occupied that relation to each other for some years prior to the 17th day of March, A. D. 1916, the date on which the mortgage sought to be foreclosed in this proceeding was signed, and that she and her said husband, Currie J. Hutchinson, are citizens of the state of Florida, and that the property upon which the mortgage lien is claimed and sought to be enforced by the bill in this proceeding constituted, on or before the said 17th day of March, A. D. 1916, and has ever since constituted, the homestead of herself and her family, consisting of this defendant and her said husband, and their two minor children, upon which they then, and have ever since, actually resided as their home and have not resided anywhere else during that period, said premises embracing less than one-half acre in the incorporated limits of the city of Tampa, Fla., and were then, and are now, used exclusively as the homestead of this defendant, her husband and said family;' that 'when she signed this mortgage sought to be foreclosed she was deceived as to the property described in said mortgage deed, her husband stating to her that this mortgage was merely a renewal of a prior mortgage which she and her husband had executed on some lands belonging to her said husband situated in the vicinity of West Tampa. This defendant, believing the aforesaid representations of her said husband, and relying upon them, signed the said mortgage deed, and did not at the time know that she was signing a mortgage deed to the said homestead, and would not, under any circumstances, have signed any such deed had she been aware of its contents. This defendant says that she did not make the acknowledgment dated the 21st day of March, A. D. 1916, and forming a part of the said mortgage deed, and that the first knowledge that she had of any such certificate of acknowledgment was when her attention was called to the fact that a bill of foreclosure had been filed against her homestead, and that knowledge reached her after the final decree and order of sale had been entered in this cause. This defendant says that she did not appear before the notary signing this certificate of acknowledgment and did not have any conversation with her in regard to acknowledging this instrument, either personally or over the telephone, and in fact had no communication with the said notary in any way, shape, or form in regard to the execution of the acknowledgment of the mortgage deed sought to be foreclosed upon this proceeding; that her husband, well knowing that under no circumstances would she consciously sign or acknowledge any deed, mortgage, or other instrument seeking to convey her homestead, or place any incumbrance thereon, resorted to the deceit hereinbefore described in order to get her signature to this paper, and that he, in some way unknown to this defendant, contrived to have the said acknowledgment signed by the said notary in some manner unknown to this defendant.'

Testimony was taken and a final decree rendered for the complainant. The defendant mortgagors appealed.

The testimony shows that the property is the homestead of the defendant mortgagors, and that the acknowledgment of the execution of the mortgage by the wife was taken over a telephone; the wife and the notary who took the acknowledgment not being at the same place in the city.

The Constitution of the state contains the following provisions:

'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

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