Mcewen v. Schenck

• Decision Date: 18 January 1933
• Parties: McEWEN et ux. v. SCHENCK.
• Court: Florida Supreme Court

146 So. 839

108 Fla. 119

McEWEN et ux. v. SCHENCK.

Florida Supreme Court

January 18, 1933

En Banc.

Suit by Arthur C. Schenck, receiver for the Bank of Wauchula, against John C. McEwen and wife. Decree for complainant, and defendants appeal.

Reversed and remanded.

BUFORD J., dissenting. Appeal from Circuit Court Hardee County; W. J. Barker, judge.

COUNSEL

W. W Whitehurst, of Wauchula, for appellants.

S. D Williams, of Wauchula, for appellee.

OPINION

WHITFIELD Justice.

In a suit against husband and wife to foreclose a mortgage upon the husband's homestead real estate, the defendants by plea 'aver that the defendant, Virginia McEwen, did not acknowledge before any officer authorized to administer oaths and take acknowledgments that she executed the said mortgage; and they aver that the defendant, Virginia McEwen, did not appear before any officer so authorized to administer oaths and take acknowledgments for the purpose of acknowledging the execution thereof; and these defendants say that the certificate of acknowledgment appearing upon the said mortgage is wholly false, fraudulent and untrue and that the defendant, Virginia McEwen, did not acknowledge the execution of said mortgage before the said officer purporting to take the said acknowledgment, nor did the defendant, Virginia McEwen, ever appear in the presence of the said officer who pretended and purported to take the said acknowledgment for the purpose of acknowledging the execution thereof.'

The court decreed for the mortgagee complainant, and defendants appealed.

Article 10 of the Constitution provides that the homestead 'real estate shall not be alienable without the joint consent of husband and wife, when that relation exists.' Section 1. '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.' Section 4.

A mortgage upon homestead real estate is 'duly executed' by husband and wife when it is in writing, signed, sealed, and delivered in the presence of at least two subscribing witnesses, and when the wife acknowledges before some officer authorized to take such acknowledgment, '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.' Section 5676(3803), Compiled General Laws; Hutchinson v. Stone, 79 Fla. 157, 84 So. 151.

In order to entitle a mortgage of real estate to be recorded so as to 'be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice' (section 5698(3822), Compiled General Laws), the execution thereof must be duly acknowledged or proved for record, and the instrument must be duly filed for record. See section 5699(3823), Compiled General Laws.

The mortgage in this case appears to have been executed and acknowledged as follows:

'In Witness Whereof, The said Mortgagors have hereunto set their hands and seals the day and year first above written.

'John C. McEwen [L. S.]

'Virginia McEwen [L. S.]

'Signed, Sealed and Delivered in the Presence of:

'E. F. McIlwain

'W. W. Gillett

'State of Florida

'County of Hardee

'I, an officer authorized to take acknowledgments of deeds according to the laws of the State of Florida, duly qualified and acting, hereby certify that John C. McEwen and Virginia McEwen to me personally known, this day personally appeared and acknowledged before me that they executed the foregoing mortgage, and I further certify that I know the said person making said acknowledgment to be the individual described in and who executed the said mortgage.

'And I further certify that said Virginia McEwen is known to me to be the wife of said John C. McEwen and that she this day personally appeared and acknowledged before me, separately and apart from her husband, that she executed the said mortgage freely and voluntarily and without compulsion, constraint, apprehension or fear of or from her husband, for the purpose of relinquishing and conveying all her right, title and interest in the property therein described, whether of dower or separate estate.

'In witness whereof, I hereunto set my hand and official seal at Wauchula, said County and State, this 25th day of September, A. D. 1928.

'Edith Wilson

'Notary Public

'Notary Public, State of Florida at Large.

'My Commission Expires July 12, 1931.

'Filed for record on the 18th day of October, 198, and recorded in Mortgage Book 7, page 531 public records of ----- County, Florida.

'S. W. Conroy, Clerk Circuit Court.

'By Ruth Harlan, Deputy Clerk, Hardee County, Fla.'

'While the certificate of an officer who is authorized to take acknowledgment of deeds and mortgages, stating in effect that a named married woman duly acknowledged before him the execution of a deed or mortgage alienating homestead real estate, is a quasi judicial act, and where the married woman who made the acknowledgment and the executed instrument are in fact before the officer, and he undertakes to act officially, the certificate of the official as to the acknowledgment, when duly made, is, in the absence of fraud or duress, conclusive of the facts stated in the official certificate; yet, if the married woman who made the acknowledgment was not in fact before the officer when the acknowledgement was made, the officer is without jurisdiction, authority, or power to take the acknowledgement of the married woman, or to make the statutory certificate with reference thereto. 1 C.J. 775. The absence of such jurisdiction, authority, or power to take the acknowledgment or to make the certificate relative to it because the married woman was not before the officer when the acknowledgement was taken may be shown aliunde; and, when it is duly and clearly made to appear that the married woman was not in fact before the officer when the acknowledgement of the execution was made, the officer's certificate as to the acknowledgement is of no validity or effect to show that the deed or mortgage of homestead real estate was 'duly executed' as is mandatorily required by the Constitution.' Hutchinson v. Stone, 79 Fla. 157, text 169, 84 So. 151, 155.

In Morris...