Oates v. New York Life Ins. Co.

• Decision Date: 12 November 1940
• Citation: 144 Fla. 744,198 So. 681
• Parties: OATES et ux. v. NEW YORK LIFE INS. CO.
• Court: Florida Supreme Court

198 So. 681

144 Fla. 744

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

Florida Supreme Court

November 12, 1940

Rehearing Denied Dec. 9, 1940.

En Banc.

Suit by New York Life Insurance Company against A. Y. Oates, and his wife to foreclose a mortgage lien. From a decree for plaintiff, defendants appeal.

Affirmed.

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

COUNSEL

Ira C Hopper and Emory E. Walker, both of Lakeland, and J. Lewis Hall, of Tallahassee, for appellants.

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

OPINION

PER CURIAM.

This suit was brought in the Circuit Court for Polk County Florida, to foreclose a mortgage lien upon homestead property held by husband and wife by the entireties, the defense being that the wife's execution of the mortgage was not acknowledged by her before an officer as required by the statute. Section 5676 (3803), C.G.L. The wife signed the note and mortgage, and the officer's certificate states that she acknowledged before him the due execution of the mortgage by her.

The decree appealed from was for plaintiff and was reversed for error in striking evidence as to whether the married woman duly acknowledged the execution of the mortgage. Oates v. New York Life Ins. Co., 113 Fla 678, 152 So. 671.

The second appeal was from a final decree for the defendants, estoppel being one of the issues. The opinion of this Court discussed the principles of law applicable to estoppel by conduct of the married woman who signed the mortgage to deny that she acknowledged the execution of the mortgage before the officer whose certificate of her acknowledgment was a part of the mortgage instrument when it was delivered to the mortgagee. Such an issue of estoppel had not been decided in any previous case in this court. The decree appealed from was reversed without prejudice, '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.' New York Life Ins. Co. v. Oates, 122 Fla. 540, text pages 552, 566, 166 So. 269, text pages 273, 279.

On the third appeal from a final decree for the plaintiff, the opinion discussed the evidence and the law; and, as it appeared that though the Chancellor had discussed the evidence and made findings on the question of estoppel, he had not adjudicated the issue of estoppel; and as this Court has only appellate jurisdiction in chancery matters, the court would not anticipate a decision of the chancellor on the issue of estoppel; and at the conclusion of the discussion in the opinion this court rendered its appellate decree as follows: 'The decree of the chancellor is reversed, with directions to adjudicate the question of estoppel as the same is involved against Mrs. Oates, and in so doing to determine whether the evidence discloses in this case that by her words or deed she authorized her husband to cause the certificate of acknowledgment to be made out in her absnece to the end that a loan, as set forth in the instrument, might be procured from the mortgagee. Reversed.' Oates v. New York Life Ins. Co., 130 Fla. 851, 178 So. 570, 578.

The fourth appeal was from a final decree adjudicating the issue of estoppel against the contentions of plaintiff and dismissing the foregoing suit. New York Life Ins. Co. v. Oates, 141 Fla. 164, 192 So. 637, 644.

The opinion of this Court on the fourth appeal contains the following:

'Under the circumstances shown, the wife is, by her conduct in signing and delivering the mortgage to her husband thereby enabling him to make the mortgage effective, estopped in law to impeach the validity of the official certificate of acknowledgment that is legal on its face as a full compliance with the requirements of the constitution and the statutes in the execution of mortgages of homestead real estate and of her interest in the real property held by the entireties.

'This merely estops the wife from claiming against the mortgage and leaves the mortgage as it was delivered and recorded, being on its face a complete compliance with the requirements of the constitutions and statutes in the premises. The constitution is not violated. Both the husband and the wife signed the mortgage, thereby joining in its execution as required by the constitution. The mortgage is on its face executed and acknowledged, as required by the statute. The wife's conduct in willingly signing and delivering the mortgage to her husband enabled him to have the requisite official certificate to acknowledgment affixed to the mortgage in her absence; and on the evidence in this case the law imputes to the wife knowledge that the mortgage she had signed and delivered was intended by her husband to be made effective under the law as security for a loan.

'Even if Mrs. Oates did not know that the law required mortgages of real estate executed by her to be acknowledged before an officer separate and apart from her husband, and even if she also did not know the mortgage she signed in this instance embraced the homestead, it must be assumed that she did intend the mortgage she signed to be made effective according to its terms. On this record the inference is fair and convincing that, in accordance with her usual course in previously signing many such documents when requested by her husband, she willingly signed the mortgage knowing she was joining her husband in executing an instrument affecting the title to real estate with the tacit understanding on her part that such execution of the instrument was intended by her husband to be made effective for the purpose shown by the contents of the instrument signed by her and by her husband.

'The mortgage was, on its face, when delivered to the mortgagee and as recorded, properly signed, witnessed and acknowledged by the husband and the wife as required by the constitution and the statutes; and as both the husband and the wife intentionally signed the mortgage; and as the wife committed the signed mortgage to the husband for the purpose as intended by him, whom she trusted in all such matters, thereby enabling him to have the required attestation and the official acknowledgment certificate supplied so as to make the mortgage show on its face a complete compliance with the law in its execution and acknowledgment, and as the validity of the mortgage had not been contested by her and had been for several years recognized and acted upon by the husband in receiving the consideration for the mortgage and in paying installments thereon, the wife will not in a court of equity be permitted to now avoid the mortgage by testimony that, though an official certificate of her acknowledgment of the execution of the mortgage before the officer is shown on the mortgage and on the record of it, yet such acknowledgment was not in fact made by her before the officer who made the certificate of acknowledgment. The certificate is in law prima facie and presumptively valid to make effective the mortgage signed by husband

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