Oates v. New York Life Ins. Co.
| Citation | 130 Fla. 851,178 So. 570 |
| Parties | OATES et ux. v. NEW YORK LIFE INS. CO. |
| Decision Date | 22 December 1937 |
| Court | United States State Supreme Court of Florida |
Rehearing Denied Feb. 15, 1938.
En Banc.
Suit by the New York Life Insurance Company against A. Y. Oates and wife. From an adverse decree, defendants appeal.
Reversed with directions. Appeal from Circuit Court, Polk County; H. C Petteway, judge.
Ira C Hopper, of Lakeland, for appellants.
Bradford G. Williams, of Lakeland, Raymond D. Knight and Henry P Adair, both of Jacksonville, and John M. McNatt and Knight, Adair, Cooper & Osborne, all of Jacksonville, for appellee.
The only question presented by this appeal is whether, in the circumstances established by the record, a married woman, the owner by entireties with her husband of certain real property which constitutes the homestead of the husband, is estopped from contesting the validity of a mortgage which was placed upon the homestead by the husband to secure a loan to him upon the ground that she did not appear before the notary public separately and apart from her husband, or at all, and before such officer acknowledge separately from her husband that she executed the instrument freely and voluntarily and without any compulsion, constraint, apprehension, or fear of or from her said husband.
The circumstances in which the mortgage involved in this case, and which is sought to be foreclosed by an assignee of the original mortgagee, was executed are as follows: On the 1st 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 a promise of a loan from the mortgagee, Telfair Stockton & Company, prepared a mortgage to secure the payment of the note executed by him and his wife for the payment of the loan, which was in the sum of $15,000, and taking the mortgage to his home 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 Leone 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 Leone 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 instrument 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 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.
On the 3rd of August, 1934, in a final decree based upon the pleadings and the evidence in the case, the court definitely found the fact to be that Mrs. Oates did not acknowledge the execution of the mortgage before the notary public or any notary public, 'therefore, that the said certificate was and is a legal fraud and a nullity, and therefore, this Court finds that the said mortgage was not and is not a properly and validly executed mortgage and is unenforceable, and cannot be foreclosed against the property' therein described.
It is also a fact that when Mrs. Oates signed the mortgage there was a blank unexecuted certificate of acknowledgment appended thereto immediately below and upon the same sheet; that it is was this certificate which was subsequently executed by the notary public, although Mrs. Oates did not appear before her and make the requisite acknowledgment of the execution of the mortgage; that the mortgage was filed for record in the office of the clerk of Polk county, and duly recorded. In June, 1926, the New York Life Insurance Company purchased the note and mortgage from the mortgagee at par value. Neither at the time of the delivery of the mortgage to Telfair Stockton & Company, or 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 notarial certificate of execution of the mortgage by the wife, Mrs. Oates.
In June, 1930, the assignee of the Oates note and mortgage exhibited its second amended bill of complaint in the circuit court of Polk county against A. Y. Oates and his wife, Almena Oates, for the foreclosure of the mortgage, alleging that the same was in default and unpaid and praying the usual relief.
In August, 1931, the chancellor made a decree finding the equities with the complainant and decreeing a foreclosure of the mortgage. From that decree and from an order denying the defendants' motion to vacate it, for leave to take further testimony and for a rehearing, the defendants Oates took an appeal.
The decree of the chancellor was reversed on the authority of the cases of Menendez v. Rodriguez, 106 Fla. 214, 143 So. 223, and McEwen v. Schenck, 108 Fla. 119, 146 So. 839, 840. See Oates v. New York Life Ins. Co., 113 Fla. 678, 152 So. 671.
The Menendez Case, supra, was a suit for partition and involved an estate by the entireties. The court held that where a homestead was held by a man and his wife by the entireties, upon the death of the husband the entire fee passed to the wife to the exclusion of the husband's children by a former marriage. Mr. Justice Whitfield, in a concurring opinion, elucidated fully that proposition of law.
In the McEwen Case, supra, the defense interposed was that Mrs. McEwen did not appear before the notary public and did not make the acknowledgment as certified to by the notary public. The chancellor, in his decree, stated that there was substantial evidence to support that defense but did not decide the weight and sufficiency of the evidence, and entered a decree for the complainant. The decree was reversed because the chancellor failed to consider the weight and sufficiency of the evidence upon that averment of the plea. The court definitely held that where a married woman, in the attempted alienation of the homestead, appeared before the notary public and made the acknowledgment, the certificate of the officer authorized to take such acknowledgment is, in the absence of fraud or duress in the matter of the acknowledgment by the married woman, conclusive of the fact stated in the officer's certificate, but it was also definitely held that where the married woman did not appear before the officer who made the certificate of acknowledgment, then he was without 'jurisdiction, or power to take the acknowledgment of the married woman, or to make the statutory certificate with reference thereto.' In the concurring opinion by Mr. Chief Justice Davis, the thought was suggested that in such case fraud was shown on the part of the officer purporting to make the certificate, and therefore the presumed verity of the certificate was impeached.
The instant case, being reversed upon the first appeal, was considered by the chancellor upon the pleadings and the evidence taken, and in August, 1934, he decreed the equities to be with the defendants, Oates, and dismissed the bill on the merits.
In that opinion the chancellor found from the evidence in the case that Mrs. Oates did not appear before the notary public and therefore made no acknowledgment of the execution of the mortgage as the statute requires, Comp.Gen.Laws 1927, § 5676, and consequently the officer who made the certificate was without 'jurisdiction, authority or power to take the acknowledgment' of Mrs. Oates. From that decree and an order entered later denying the plaintiff's petition for rehearing the complainant took an appeal.
By an evenly divided court, the decree was affirmed. A rehearing was granted, and the following order was entered:
'Let judgment be entered on rehearing vacating and reversing the final decree without prejudice, and without costs to either side, with directions that the whole cause be remanded to the circuit court for further consideration and disposition, after a full rehearing and reconsideration of all of the issues of law and fact in the light of the opinion of this court hereinbefore approved by a majority of the court as the applicable law of this case to be considered and applied to its disposition.' See New York Life Ins. Co. v. Oates, 122 Fla. 540, 166 So. 269, 279.
It will be noticed from a reading of the opinions that there was no OPINION in the case approved by a majority of the court. On the contrary, the court was evenly divided so that there could have been no other order than that of an affirmance. See State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51.
On motion for additional directions subsequently filed in this court, the court made the following order:
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