Oates v. New York Life Ins. Co.

• Decision Date: 04 January 1934
• Citation: 117 Fla. 892,152 So. 671
• Parties: OATES et ux. v. NEW YORK LIFE INS. CO.
• Court: Florida Supreme Court

152 So. 671

117 Fla. 892

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

Florida Supreme Court, Division B.

January 4, 1934

Rehearing Denied Feb. 7, 1934.

Suit between A. Y. Oates and wife and the New York Life Insurance Company. From the decree, the two parties first named appeal.

Reversed and cause remanded. Appeal from Circuit Court, Polk County; Harry G. Taylor, judge.

COUNSEL

Ira C Hopper, of Lakeland, for appellants.

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

OPINION

PER CURIAM.

We have examined the record and briefs filed in this case and have also heard the questions involved presented by counsel in oral argument.

The decree appealed from was entered on the 26th day of August, 1931. Since that time the controlling questions involved in this appeal have been determined in accordance with the contentions of the appellant by this court in the cases of Mendez et al. v. Rodriguez, opinion filed July 18, 1932, 106 Fla. 214, 143 So. 223, and McEwen et ux. v. Schenck, opinion filed January 18, 1933, reported 146 So. 839.

We do not mean to hold that subscribing witnesses to a written instrument or an officer who the instrument shows to have taken the acknowledgment can be heard to impeach their respective certificates.

Therefore the decree appealed from should be reversed and the cause remanded for further proceedings. It is so ordered.

Reversed and remanded.

DAVIS, C.J., and WHITFIELD, TERRELL, and BUFORD, JJ., and HUTCHISON, Circuit Judge, concur.

BROWN, J., not participating because of illness.

On Rehearing.

BUFORD Justice.

Motion for rehearing has been filed in this case in which it is contended that because the appellee was a bona fide purchaser for value and before maturity and without notice, the rules enunciated in the opinion cited in which original opinion was filed January 4, 1934, are not applicable.

The property embraced in the mortgage is shown to have been a homestead and, therefore, for the mortgage to be valid, it must have been executed in compliance with section 1, article 10, of the Constitution, which provides as follows:

'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, kowned 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 forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists.' Section 1, article 10.

'Nothing in this article shall be construed to prevent the holder of a homestead from alienating his or her homestead so exampted by deed or mortgage duly executed by himself or herself, and by husband and wife, if such relation exists.' Section 4, article 10, Constitution.

The words, 'by deed or mortgage duly executed * * * by husband and wife, if such relation exists' mean by deed or mortgage executed as the statutes require deeds and mortgages executed by husband and wife to be executed, viz., 'by deed in writing, signed, sealed and delivered in the presence of at least two subscribing witnesses.' Section 5660(3787), Comp. Gen. Laws. See form of warranty deed, and effect when signed by a married woman. Sections 5661, 5662, 5663, Comp. Gen. Laws. As to proof of execution for recording purposes, see sections 5698-5700, Comp. Gen. Laws.

'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.' Section 5674(3801), Comp. Gen. Laws.

'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.' Section 5676 (3803), Comp. Gen. Laws.

There may be a homestead in which husband and wife have an estate by the entireties. Menendez v. Rodriguez, 106 Fla. 214, 143 So. 223. A mortgage upon such a homestead must be 'duly executed' by husband and wife, viz., 'by deed in writing, signed, sealed and delivered in the presence of at least two subscribing witnesses,' and the wife '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.' See McEwen v. Schenck (Fla.) 146 So. 839.

'The statute authorizing the private examination of the wife to bar dower is a substitute for the proceeding at common law to bar dower by fine and recovery. As against a mortgage of the fee of the husband, which mortgage was accompanied by a relinquishment of the dower of the wife, an acknowledgment thus made cannot be impeached...