Smith v. Mcewen

• Decision Date: 04 April 1935
• Citation: 119 Fla. 588,161 So. 68
• Parties: SMITH v. McEWEN et ux.
• Court: Florida Supreme Court

161 So. 68

119 Fla. 588

SMITH v. McEWEN et ux.

Florida Supreme Court

April 4, 1935

Rehearing Denied May 10, 1935.

En Banc.

Suit by M. A. Smith, as liquidator of the Bank of Wauchula, against John C. McEwen and wife. From an adverse decree, complainant appeals.

Reversed and remanded, with directions.

ELLIS P.J., and BUFORD, J., dissenting. Appeal from Circuit Court, Hardee County; W. J. Barker, Judge.

COUNSEL

Oxford & Cutts, of Lakeland, for appellant.

W. W Whitehurst, of Wauchula, for appellees.

OPINION

DAVIS Justice.

This was a mortgage foreclosure case wherein the plea of the defendants (which was a plea in the natue of confession and avoidance) sought to avoid the lien of a homestead mortgage upon the ground that the wife never did personally appear before the officer whose certificate of acknowledgment is shown appended to the mortgage sued upon.

The plea of the defendants was as follows:

'Come now the defendants, John C. McEwen and Virginia McEwen, in the above entitled cause, and for a plea to the Bill of Complaint filed herein say that long prior to the execution and delivery of the mortgage herein sought to be foreclosed the premises therein described constituted the homestead of these defendants, who sustain each to the other the relation of husband and wife; and that these defendants, as husband and wife, together with their children, were actually residing upon said premises as their home and homestead prior to and at the time of the execution of the said mortgage and at all times hitherto, and that their said homestead constitutes less than one-half of an acre within the corporate limits of the City of Wauchula, Florida.

'These defendants aver that the defendant Virginia McEwen, did not acknowledge before any officer authorized to administer oaths and take acknowledgments that she executed the said mortgage; and they aver that the defendant, Virginia McEwen, did not appear before any officer so authorized to administer oaths and take acknowledgments for the purpose of acknowledging the execution thereof; and these defendant say that the certificate of acknowledgment appearing upon the said mortgage is wholly false, fraudulent and untrue and that the defendant, Virginia McEwen, did not acknowledge the execution of said mortgage before the said officer purporting to take the said acknowledgment, nor did the defendant, Virginia McEwen, ever appear in the presence of the said officer who pretended and purported to take the said acknowledgment for the purpose of acknowledging the execution thereof; and the defendants aver that the said mortgage is absolutely void and that the complainant has no lien thereunder.

'John C. McEwen,

'Virginia McEwen,

'Defendants.'

The certificate of acknowledgment thus attacked reads as follows:

'State of Florida, County of Hardee.

'I, an officer authorized to take acknowledgments of deeds according to the laws of the State of Florida, duly qualified and acting, hereby certify that John C. McEwen and Virginia McEwen to me personally known, this day personally appeared and acknowledged before me that they executed the foregoing mortgage, and I further certify that I know the said person making said acknowledgment to be the individual described in and who executed the said mortgage.

'And I further certify that said Virginia McEwen is known to me to be the wife of said John C. McEwen and that she this day personally appeared and acknowledged before me, separately and apart from her husband, that she executed the said mortgage freely and voluntarily and without compulsion, constraint, apprehension or fear of or from her husband, for the purpose of relinquishing and conveying all her right, title and interest in the property therein described, whether of dower or separate estate.

'In witness whereof, I hereunto set my hand and official seal at Wauchula, said County and State, this 25th day of September, A. D. 1928.

'Edith Wilson

'Notary Public

'Notary Public, State of Florida at Large

'My Commission Expires July 12, 1931.'

When the case was here before upon the first appeal herein ( McEwen v. Schenck, 108 Fla. 119, 146 So. 839, 841), it was considered by this court in the light of the chancellor's decree then before this court, which recited: '* * * From the Court's interpretation of the decision in the case of Herald v. Hardin, 95 Fla. 889, 116 So. 863, announcing the rule that the certificate of acknowledgment of a married woman to a deed or mortgage is conclusive against her in the absence of fraud or duress. The Court finds, therefore, that it is concluded by this rule from a consideration of the weight or sufficiency of the evidence introduced to impeach the acknowledgment.'

Previous to the foregoing recital, the chancellor had stated in his final decree that 'substantial evidence has been introduced to show that the wife did not appear before or in the presence of the Notary Public who took the acknowledgment.' So the result of what the chancellor had said was that he would decide the case against the defendants without weighing or considering the testimony at all, one way or the other, on the theory that the rule of law referred to by him precluded his doing so. All that this court did on the first appeal was to reverse the chancellor on a point of procedure and remand the case to the court below to be determined by the chancellor in the light of the legally applicable rules of law, and not through an erroneous discarding of a portion of the evidence which the law required him to give his judicial opinion upon in order to arrive at a final decree by legal methods.

Neither the decision on the previous appeal nor the mandate ever undertook to go further than to reverse and remand the case for appropriate proceedings. By appropriate proceedings, as the opinion on that appeal affirmatively shows, was meant a legal and a judicial consideration of the evidence adduced under the averments of the plea--not an arbitrary deletion of it on the theory that it could not be legally considered at all. See McEwen v. Schenck, 108 Fla. 119, 146 So. 839, text page 841, supra.

Such reversal was in line with the previous holdings of this court which are to the effect that, while the Supreme Court is not concerned with the mere reasons given by a nisi prius court for arriving at a proper and correct decision, and will not reverse a correct result merely because the court below assigned as a ground for reaching it an incorrect reason for its conclusions (Warren v. Warren, 66 Fla. 138, 63 So. 726; Adams v. American Agricultural Chemical Co., 78 Fla. 362, 82 So. 850; Dunnellon Phosphate Co. v. Crystal River Lumber Co., 63 Fla. 131, 58 So. 786; Bell v. Niles, 61 Fla. 114, 55 So 392), yet the Supreme Court will and should reverse a judgment or decree that has demonstrably resulted from the judge's misconception of rules of law in their application to the particular facts offered in evidence in a case, as where it is made to appear that such misconception of an applicable rule of law probably resulted in the rendering of a particular decree or judgment that, without such misconception, might not have been suffered by the complaining party. Schmitt v. Bethea, 78 Fla. 304, 82 So. 817; Atlantic Shores Corporation v. Zetterlund, 103, Fla. 761, 138 So. 50, text 55; Earle v. Detroit & Security Trust Co., 103 Fla. 618, 138 So. 65, text 69; Barry v. Walker, 103 Fla. 533, 137 So. 711, text 714. ^[1]

In the present case it appears that, after the cause had been referred to a special master, there was testimony of the bank officials showing the amount due on the mortgage and showing an agreement made for the application of two payments to apply to costs and as a credit on attorneys' fees, and showing the balance due on the mortgage, and that the same was held by the receiver, being found in the bank's papers when the bank was taken over for the purpose of liquidation.

For the defendants, both husband and wife testified that the mortgage was signed by both parties at their home in Wauchula and that there was no notary present. Mrs. McEwen testified that she never at any time went before the notary to acknowledge, and never did acknowledge before the notary, the execution of such mortgage. She also testified that she used black ink at her home in her correspondence, and that the ink that was used in signing at her home was not the same ink used by the witnesses to the mortgage. The husband testified that he received the mortgage at the bank and carried it to his home for his wife's signature, and both signed it there.

The notary public whose certificate appears on the mortgage testified that the defendants did appear separately before her at the bank, the husband coming in first, and afterwards the wife, and each made a proper acknowledgment of the execution of the mortgage, and that she remembered the circumstances, because, while she was acquainted with Mrs. McEwen, she had not previously witnessed or taken an acknowledgment of a paper for Mrs. McEwen.

Since the reversal on the first appeal was for a study and weighing by the chancellor of that evidence which he had theretofore refused to consider at all, as his first decree expressly recited, the present appeal brings up the question whether or not the evidence adduced legally supports the chancellor's findings in favor of the defendants on the merits of their plea.

The plea being one in the nature of a plea in confession and avoidance, in that it confessed the signing of the mortgage by both husband and wife, as well as confessed the fact that the notary's certificate of acknowledgment appended thereto had been actually made out and attached to the controverted mortgage by one who was a...