New York Life Ins. Co. v. Oates

• Decision Date: 05 April 1935
• Citation: 166 So. 269,122 Fla. 540
• Court: Florida Supreme Court
• Parties: NEW YORK LIFE INS. CO. v. OATES et ux.

166 So. 269

122 Fla. 540

NEW YORK LIFE INS. CO. v. OATES et ux.

Florida Supreme Court

April 5, 1935

On Rehearing Jan. 13, 1936.

Rehearing Denied Feb. 5, 1936.

On Motion for Additional Directions March 9, 1936.

Suit by the New York Life Insurance Company against A. Y. Oates and wife. From an adverse decree, complainant appeals.

Reversed and cause remanded, with directions.

See also, 113 Fla. 678, 152 So. 671.

BROWN and BUFORD, JJ., dissenting.

On Motion for Additional Directions. Appeal from Circuit Court, Polk County; H. C. Petteway, judge.

COUNSEL

Bradford G. Williams and Richard M. Naylor, both of Lakeland, and Raymond D. Knight, Henry P. Adair, John M. McNatt, and Knight, Adair, Cooper & Osborne, all of Jacksonville, for appellant.

Ira C. Hopper, of Lakeland, and B. K. Roberts, H. H. Wells, and William K. Whitfield, all of Tallahassee, for appellees.

OPINION

PER CURIAM.

In this cause Mr. Chief Justice WHITFIELD, Mr. Justice TERRELL, and Mr. Justice DAVIS are of the opinion that the decree of the circuit court should be reversed for further appropriate proceedings, while Mr. Justice ELLIS, Mr. Justice BROWN, and Mr. Justice BUFORD are of the opinion that the decree should be affirmed. When, the members of the Supreme Court sitting six members in a body and after full consultation, it appears that the members of the court are permanently and equally divided in opinion as to whether the decree should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the court, the decree should be affirmed. Therefore it is considered, ordered, and adjudged under the authority of State ex rel. Hampton v McClung, 47 Fla. 224, 37 So. 51, that the decree of the circuit court in this cause be, and the same is hereby, affirmed.

Affirmed.

WHITFIELD, C.J., and ELLIS, TERRELL, BROWN, BUFORD, and DAVIS, JJ., concur.

Statement.

On March 20, 1930, the original bill of complaint in a foreclosure suit was filed by the New York Life Insurance Company, a corporation, against A. Y. Oates and his wife, Almena Oates. On April 5, 1930, prior to the appearance day, an amended bill of complaint was filed. By leave of court on June 18, 1930, a second amended bill of complaint was filed, in which it is in effect alleged that on or about June 1, 1926, A. Y. Oates and his wife, Almena Oates, executed to Telfair Stockton Company, a corporation, their promissory note payable to the order of the corporation in semiannual installments, with interest at 6 1/2 per cent. per annum during a period of five years, with provisions for accelerating the maturity of the note for defaults of the makers. That on or about June 1, 1926, A. Y. Oates and his wife Almena Oates, to secure the note given by them, executed to Telfair Stockton Company a mortgage instrument duly witnessed and acknowledged and recorded. That on or about June 22, 1926, the Telfair Stockton Company, for valuable consideration, duly assigned and transferred the note and mortgage to New York Life Insurance Company, a corporation.

That complainant 'paid for and accepted delivery of said note, mortgage and assignment without any notice or knowledge of any defect or irregularity in the transaction between said Telfair Stockton & Company and these defendants and each of them, and without notice or knowledge of any defect or irregularity in the execution of said note or of said mortgage, if any irregularity or defect there was, and that your orator is the present bona fide owner and holder for value of said mortgage deed, together with the note thereby secured, and all moneys due or to become due thereon, and that the same were purchased before maturity and before default of any kind or character in the payment of any of the obligations evidenced by said note and secured by said mortgage. * * *

'That the defendants filed an Answer to the original Bill of Complaint herein wherein and whereby they admitted that they signed the Note and Mortgage referred to therein and in this Second Amended Bill of Complaint, and that the defendant, A. Y. Oates, received the proceeds of the said Note and paid the amounts alleged in the Bill of Complaint herein to have been paid thereon, but they asserted in said Answer that the defendant, Almena Oates, did not know that the said Mortgage covered the land involved in this suit; that the Note and Mortgage were signed in the presence of the defendant, A. Y. Oates, only, and that neither of the witnesses who signed said mortgage was present when the said Almena Oates signed the same, and that the said Almena Oates did not appear before the Notary Public whose certificate is attached to said Mortgage and did not acknowledge said instrument in the presence of the Notary at the time she signed the same or at any other time; that she did not know of the existence of said Mortgage on the land involved in this suit until many months after June 1st, 1926; that she received no part of the proceeds of said Note and Mortgage, wherefore the defendants claim in their said Answer that the Mortgage involved in this suit was and is void and of no force and effect.

'* * * That even though the said Note was executed and delivered and the said Mortgage was executed, delivered and recorded as aforesaid and the proceeds of said Note were delivered to said A. Y. Oates as aforesaid and the principal reductions and interest payments were made by the said A. Y. Oates as aforesaid, that never at any time until the filing of said Answer did the said Almena Oates, or any one in her behalf, make to Telfair Stockton & Company aforesaid or to your orator the aforesaid claims or representations as to lack or failure of consideration, as to lack of knowledge on her part that said Mortgage covered the property described therein, as to defective execution or acknowledgment, or any claim whatsoever as to the invalidity of said Note or said Mortgage. Your orator avers that at the time set for the execution of said Note and Mortgage the said A. Y. Oates appeared before the agent of Telfair Stockton & Company aforesaid, at the office of said Company, and requested that he be allowed to take the said Note and Mortgage to his said wife, Almena Oates, in order that she might execute the same, stating that it was inconvenient for her to come to the office of Telfair Stockton & Company aforesaid; that there was a Notary and witnesses before whom it would be more convenient for the said Almena Oates to appear and that he would attend to having the papers properly executed and acknowledged; that the said agent for Telfair Stockton & Company thereupon delivered the unexecuted Note and Mortgage to said A. Y. Oates, who carried them away and later returned with them, they being then to all appearances duly and regularly executed and acknowledged, and that he then presented them to said agent who then, relying upon the validity of the said Note and Mortgage, on to-wit, the 15th day of June, 1926, delivered the proceeds of said Note and Mortgage to the said A. Y. Oates and accepted delivery of said Note and Mortgage; * * * that if any fraud or deception was practiced upon the said Almena Oates by her said husband or by any one in the matter of procuring her signature to said Mortgage, the same was not participated in by said Telfair Stockton & Company or by your orator or by one of the agents of either of them, and neither they nor any of their agents knew of any fraud or misrepresentation in the premises; that if there was any irregularity whatsoever in the execution or acknowledgment of the said Mortgage or any irregularity, fraud or deception in the manner of procuring the same, such irregularity, fraud, and deception were each and every committed without notice to or knowledge of said Telfair Stockton & Company or your orator or any of their agents, and your orator avers that under the circumstances in this case the defendants and each of them by reason of their acts and conduct are estopped to deny in this Court of equity the validity of the said Note and Mortgage or to contest the lien of said Mortgage.'

The copy of the mortgage attached to and made a part of the bill of complaint shows the execution and certificate of acknowledgment of the mortgage to be as follows:

'In witness whereof, said Mortgagors have executed these presents under seal at Lakeland, in Polk County, Florida, the day and year first above written.

'A. Y. Oates [Seal]

'Almena Oates [Seal]

'Signed, sealed and delivered in the presence of the following witnesses:

'A. F. Pochard

'Leone C. McGowan

'State of Florida, County of Polk.

'Before me personally appeared A. Y. Oates and Almena Oates, his wife, both of whom are to me well known, and known to me to be the individuals described in and who executed the foregoing mortgage, and acknowledged to and before me that they executed said mortgage for the purpose therein expressed; and the said Almena Oates, well known to me and known to me to be the wife of said A. Y. Oates, upon a separate and private examination, taken and made separately and apart from her said husband, acknowledged before me that she executed said instrument freely and voluntarily, without any compulsion, constraint, apprehension or fear of or from her said husband, for the purposes herein set forth.

'Witness my hand and official seal, this 1st day of June, 1926.

'[Notarial Seal] Leone C. McGowan

'Notary Public for the State of Florida at Large.

'My Commission expires Dec. 15, 1929.'

By answer:

'The Defendants admit that the said Almena Oates never made known to Telfair Stockton & Company or to the Complainant her claims or representations as to the lack or failure of consideration or her lack of knowledge that the said mortgage...