DAN MORRIS AND WIFE, CARRIE B. MORRIS, JOINED BY HER HUSBAND, DAN MORRIS, APPELLANTS,
v.
GUY B. SHEPARD, LIQUIDATOR OF THE AMERICAN BANK & TRUST COMPANY, APPELLEE
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The Florida Supreme Court affirmed a foreclosure decree, holding that the wife's acknowledgment of a mortgage on homestead property was valid despite her testimony to the contrary, based on the presumption of regularity in notarized documents.
Yes, the acknowledgment was valid. The court held that the chancellor was warranted in following the rule that presumes the regularity of notarized acknowledgments, even in the face of conflicting testimony.
“The defense interposed was in effect that the mortgage embraced homestead property and that the wife had not acknowledged the execution of the mortgage, as is required by section 3803 R. G. S., 5676 C. G. L.”
This quote outlines the primary defense raised against the mortgage foreclosure.
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Join FLexlaw to unlock all legal intelligenceHusband and wife appealed a foreclosure decree, arguing the mortgage on their homestead property was invalid because the wife did not properly acknowl…
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—This was a suit to foreclose a mortgage alleged to have been made, executed and delivered by husband and wife. The defense interposed was in effect that the mortgage embraced homestead property and that the wife had not acknowledged the execution of the mortgage, as is required by section 3803 R. G. S., 5676 C. G. L. The mortgage appears upon its face to have been regularly and legally executed and acknowledged. The Chancellor found in favor of the complainants and rendered his decree accordingly, from which order appeal was taken.
The defendants both testified that the wife did not appear before the notary public and acknowledge the execution of the mortgage at the time at which she signed the same, or at any other time. A stipulation between counsel is to the effect that the notary public had no independent recollection of having taken the acknowledgment; that she attached certificates of acknowledgment to various papers executed by the defendants, some of which were acknowledged before her by the wife and others were not. There were no other witnesses called to testify in regard to the acknowledgment.
It appears that the chancellor in entering his decree followed the rule enunciated by this Court in Herald vs. Hardin, 95 Fla. 889, 116 Sou. 863, and cases there cited. Under the facts disclosed by the record the chancellor was warranted in so doing and the decree should be affirmed. It is so ordered.
Affirmed.
Ellis and Brown, J.J., concur.
■Whitfield, P.J., and Terrell and Davis, J.J., concur in the opinion and judgment.
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Frazier v. Frazier, 109 Fla. 164 (Fla. 1933)…gate of two weeks. This appeal has been taken by the father, Frank Duff Frazier, to the order amending the final decree. It has previously been dealt with by an opinion filed in this cause on the 14th day of January, 1932, reported in 105 Fla. 102, 139 So. Rep. 189, with respect to appellant’s motion for allowance of a supersedeas pending his appeal. The original decree of January 26, 1926, in accordance with a written stipulation between the parents of the child, filed in the record and approved in the decre…
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McEwen v. Schenck, 108 Fla. 119 (Fla. 1933)…is of no validity or effect to show that the deed or mortgage of homestead real estate was ‘duly executed’ as is mandatorily required by the constitution.” Hutchinson v. Stone, 79 Fla. 157, text 169, 84 So. 151. In Morris v. Shepard, 104 Fla. 121, 139 So. 189, it was held that the evidence was not sufficient to overcome the certificate of the notary public that the married woman personally appeared before the notary and made the requisite acknowledgment that she executed the mortgage. The certificate of…
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N.Y. Life Ins. Co. v. Oates, 122 Fla. 540 (Fla. 1935)…ecution of the mortgage, then, in the absence of estoppel, such averment as a defense may be proven by convincing evidence. Hutchinson v. Stone, 79 Fla. 157, 84 So. 151; Randall v. Twitchell, 98 Fla. 559, 124 So. 21; Morris v. Shepard, 104 Fla. 121, 139 So. 189; Smith v. Hogan, 117 Fla. 82, 157 So. 183; Suttle v. Wold, 117 Fla. 802, 157 So. 447; Smith v. McEwen, decided at this term. Where it is admitted or duly proven that the wife did appear before the officer concerning the execution of the mortgage by…1 / 2
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- Farleigh M. Herald and A. M. Herald v. Hardin, 95 Fla. 889 (Fla. 1928)