New York Life Ins. Co. v. Oates

Decision Date22 December 1939
Citation192 So. 637,141 Fla. 164
PartiesNEW YORK LIFE INS. CO. v. OATES et ux.
CourtFlorida Supreme Court

En Banc.

Suit to foreclose mortgage by the New York Life Insurance Company against A. Y. Oates and his wife, Almena Oates. From the decree, the plaintiff appeals.

Reversed and remanded for appropriate decree to be rendered for plaintiff.

BROWN and BUFORD, JJ., dissenting.

Appeal from Circuit Court, Polk County; H. C Petteway, judge.

COUNSEL

Raymond D. Knight and Henry P. Adair, both of Jacksonville, Bradford G. Williams, of Lakeland, and John M. McNatt, of Jacksonville, for appellant.

Ira C. Hopper, of Lakeland, for appellees.

Richard P. Marks, Wm. H. Rogers, and George A. Pierce, all of Jacksonville, as amici curiae.

In rendering the decree appealed from, the Chancellor found from the evidence that:

'On the first day of June, 1926, Mr. and Mrs. A. Y. Oates were the owners by the entireties of a certain parcel of land, with improvements thereon, located in Casa Bella, a subdivision of Lakeland in the County of Polk in this State. Mr. Oates having obtained the promise of a loan from the Mortgagee, Telfair Stockton & Company, had prepared a mortgage to secure the payment of a note executed by him and his wife for the payment of the loan, which was in the sum of $15,000.00, and took the mortgage to his wife and procured the signature thereto of his wife.
'The signatures of Mr. and Mrs. Oates appear to have been made in the presence of two witnesses: A. F. Pickard and Leona C. McGowan. The latter named person is the notary public before whom the certificate of acknowledgment of the execution of the mortgage appears to have been made. Mrs. Oates, at the request of her husband, signed the mortgage at her home and did not appear in person before Leona C. McGowan, the notary public, who was an employee in the office of Mr. Pickard, which office was located elsewhere in the City of Lakeland.
'Mrs. Oates had on many occasions before signed deeds or mortgages at the request of her husband without appearing before a notary public to acknowledge the execution of the instruments in accordance with the requirements of the statute. She did not know that the mortgage in question in this case described the homestead, nor does it appear that there was any conversation between her and her husband relating to the subject matter of the transaction.
'There is no evidence that Mrs. Oates acted under duress in signing the mortgage, nor is there any evidence that Mr. Oates did not receive the money for which the mortgage was given. Mr. Oates took the mortgage and delivered it to the mortgagee, Telfair Stockton & Company, the mortgage appearing upon its face to have been duly executed and acknowledged.
'Mr. Oates at the time of applying for the loan from Telfair Stockton & Company, and at the time of the execution of the mortgage and delivery of the same, and afterwards, was the head of a family residing in this State, and the property covered by the mortgage was, as stated, the homestead of Mr. Oates, although it was owned by himself and his wife by the entireties.
'The Court further finds that at the time Mrs. Oates signed the mortgage in question there was a blank unexecuted certificate of acknowledgment appended thereto immediately below the place for signatures and upon the same sheet. This certificate was subsequently executed by the notary public, although Mrs. Oates did not appear before her and made the requisite acknowledgment of the execution of the mortgage, and the mortgage was subsequently filed for record in the office of the Circuit Clerk of Polk County, Florida, and duly recorded. Later the New York Life Insurance Company purchased the note and mortgage from the mortgagee at par value and neither at the time of the delivery of the mortgage to Telfair Stockton & Company nor at the time of delivery by it to the New York Life Insurance Company was either party advised that there was any defect whatsoever in the certificate of execution of the mortgage by the wife, Mrs. Oates, and the said New York Life Insurance Company was therefore purchaser for value before maturity without notice of any defect whatsoever.
'The Court further finds that Mrs. Oates did not participate in the reception of that loan or the inception of that loan or the benefit derived from it, neither did Mrs. Oates either by her conduct or by her words induce Telfair Stockton & Company to make the loan to her husband on the faith of the security represented by the mortgage involved in this controversy, nor did she participate in any manner in the transaction by which the loan was secured, but she merely, at the request of her husband, signed the mortgage without knowledge for what purpose it was executed or upon what property it purported to constitute a lien. She was not even aware that the property described was the homestead which was held by her and her husband by the entireties. She did not know that Mr. Oates, after procuring her signature to the mortgage, carried it before a notary public and, in her absence, caused the certificate of acknowledgment of Mrs. Oates to be made out and signed by the notary public and thereupon carried the mortgage to Telfair Stockton & Company and received therefor the sum of money evidenced by the promissory note, the payment of which the pretended mortgage purports to secure.
'Wherefore, this Court is of the opinion that there are no facts and circumstances in this cause presented in the evidence in this cause that would justify invoking the doctrine of estoppel against the defense herein set up by the defendants, Almena Oates and A. Y. Oates; that the mortgage was not properly executed because Mrs. Oates did not appear before the notary public and acknowledge the execution of same; and this Court finds that there is no evidence in this cause which would warrant this Court in finding that Mrs. Oates by her words or deeds authorized her husband to cause the certificate of acknowledgment to be made out in her absence to the end that a loan, as set forth in the instrument, might be procured from the mortgagee.'

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. Pechard,

'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 first day of June, 1926.

'(Notarial Seal)

'Leone C. McGowan,

'Notary Public for the State of Florida at Large.

'My Commission expires Dec. 15, 1929.'

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

"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.' Sec. 4, Art. 10.

"All property, real and personal, of a wife owned by her before marriage, or lawfully acquired afterward by gift, devise, bequest, descent, or purchase, shall be her separate property, and the same shall not be liable for the debts of her husband without her consent given by some instrument in writing executed according to the law respecting conveyances by married women.' Sec. 1, Art. XI.' See Act No. IX, Territorial Laws, March 6, 1845.

'Conveyances of real estate are required to be 'by deed * * * signed, sealed and delivered in the presence of at least two subscribing witnesses.' Sec. 5660(3787) C.G.L. See Springfield Co. v. Ely, 44 Fla. 319, 32 So. 892; Cobb v. Bear, 57 Fla. 370, 49 So. 29; Russell v. Henslee, 101 Fla. 1318, 132 So. 489.

'The statutes of the State contain the following:

"Any married woman owning real property may sell, convey or mortgage it as she might do if she were not married, provided her husband join in such sale, conveyance or mortgage.' Sec. 5674(3801) C.G.L.' (Acts Feb. 4, 1835)
"Any married woman having a right of dower in any real property may relinquish it by joining in the conveyance or mortgage of such real property, or by a separate deed executed in like manner as other conveyances.' Sec. 5675(3802) C.G.L.
"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.' Sec. 5676(
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    ...notarized, Mrs. Palmero has not, in this appeal, challenged the validity of the mortgage on this basis. New York Life Ins. Co. v. Oates, 141 Fla. 164, 192 So. 637, 641 (1939) (recognizing that, subject to the doctrine of estoppel, the validity of the mortgage may be challenged where both sp......
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    ...State ex rel. Watson v. Gray, 48 So.2d 84 (Fla.1950); Steen v. Scott, 144 Fla. 702, 198 So. 489 (1940); New York Life Ins. Co. v. Oates, 141 Fla. 164, 192 So. 637 (1939); Coogler v. Rogers, 25 Fla. 853, 7 So. 391 (1889); Collins v. Mitchell, 5 Fla. 364 (1853); Camp v. Moseley, 2 Fla. 171 (1......
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