H. J. GREEN AND WILLIE GREEN, APPELLANTS,
v.
FIRST NATIONAL BANK OF MARIANNA, A CORPORATION, APPELLEE
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H. J. Green and Willie Green appealed a mortgage foreclosure decree entered against them by the First National Bank of Marianna. The Florida Supreme Court affirmed the foreclosure, rejecting the defendants' claims that the wife's signature on the mortgage was invalid due to lack of understanding and improper acknowledgment procedures.
The court affirmed the foreclosure decree, holding that the officer's certificate of acknowledgment is conclusive as to the facts stated therein absent clear, strong, and convincing proof of fraud or duress, and the evidence presented was insufficient to meet this stringent standard.
“The certificate of the officer as to the acknowledgment of the execution of a deed of conveyance or mortgage made before him, is a quasi-judicial act, and where the person executing the instrument and the instrument are in fact before the officer, and he undertakes to act officially, the certificate of the officer as to the transaction, when made as the law requires, is in the absence of fraud or duress, conclusive as to the facts stated in the official certificates.”
Establishes the legal standard that officer certificates of acknowledgment are conclusive absent fraud or duress.
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Join FLexlaw to unlock all legal intelligenceH. J. Green (husband) and Willie Green (wife) executed a mortgage on their homestead property to secure a debt. The wife signed the mortgage by mark, …
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West, J.
From a final decree for complainant in a suit, to foreclose a mortgage on real estate an appeal was taken to this court. There are a number of assignments of error based upon rulings of the chancellor. They present questions of procedure alone and error is found in none of them. Finding the equities to be with the complainant and entering final decree in favor of complainant are assigned as error. The mortgagors, defendants in the court below, are husband and wife. The complainants, so the bill alleges and the proof shows, became the owner of the indebtedness and the mortgage securing its payment by endorsement and assignment before maturity and for a valuable consideration. There was a decree pro confesso against the defendant husband. But no decree pro confesso having been entered against the wife, she answered the bill. The defense interposed by her answer is, first, that although she signed the mortgage, her signature being made by mark, she is unable to read and was misinformed as to the character and contents of the instrument,, that she believed it to be a note and would not have signed it if she had-known it to be a mortgage; and second, that the mortgaged property is defendants’ homestead and the mortgage was not acknowledged by the defendant wife separate and apart from her husband.
It was proved that the officer who-took the acknowledgment was dead at the time the evidence was taken. That the defendant husband was fully informed as to the character and contents of the mortgage and the nature of the transaction, is undisputed. The mortgagee testified, as a witness for complainant, that the defendant wife-was informed, before its execution, that the instrument was a mortgage, that she understood the nature of the transaction and that she acknowledged it separate and apart from her husband. She, on the other hand, testified, as a witness for' defendants, that while she signed the mortgage she had not been'informed and did not know that it was a mortgage on'the homestead, and that it was not acknowledged separate and apart from her husband but in his presence. There was corroboration of her evidence upon the point that her acknowledgment was not separate and apart from her-hus band, by the defendant husband and two others who were present when the mortgage was executed. '
Upon the decisive question in the case there is conflict in the evidence. The evidence was taken before the chancellor who held in effect that the proof offered was insufficient to vitiate the instrument or impeach the certificate of the officer who took the acknowledgment.
In Bank of Jennings v. Jennings, 71 Fla. 145, 71 South. Rep. 31, this court said: “The certificate of the officer as to the acknowledgment of the execution of a deed of conveyance or mortgage made before him, is a quasi-judicial act, and where the person executing the instrument and the instrument are in fact before the officer, and he undertakes to act officially, the certificate of the officer as. to the transaction, when made as the law requires, is in the absence of fraud or duress, conclusive as to the facts stated in the official certificates. When fraud is alleged, proof of it must be of the clearest, strongest and most convincing character.” This rule is well established in this jurisdiction. Hutchinson v. Stone, 79 Fla. 157, 84 South. Rep. 151; McClure v. American National Bank, 67 Fla. 32, 64 South. Rep. 427; Holland v. Webster, 43 Fla. 85, 29 South. Rep. 625; Shear v. Robinson, 18 Fla. 379; Hart v. Sanderson, 18 Fla. 103.
The evidence in this record is not of such character as to require a reversal of the decree. There is evidence to support it.
The decree is affirmed.
Taylor, C. J., and Whitfield, Ellis and Browne, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Farleigh M. Herald and A. M. Herald v. Hardin, 95 Fla. 889 (Fla. 1928)…, Text 443; Bank of Jennings v. Jennings, 71 Fla. 145, 71 So. Rep. 31; Rausch v. Eq. Life Assur. Society of the United States, 77 Fla. 846, 82 So. Rep. 295; Hutchinson v. Stone, 79 Fla. 157, 84 So. Rep. 151; Green v. First National Bank of Marianna, 85 Fla. 51, 95 So. Rep. 231. We are mindful of the fact that this rule does not obtain everywhere. In some states under certain conditions the evidence of the officer taking an acknowledgment may be used to impeach it. Qualls v. Qualls, 196 Ala. 524, 72 So. R…
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Fla. E. Coast Ry. Co. v. Thompson, 93 Fla. 30 (Fla. 1927)…. S. A. L. Ry., 67 S. E. Rep. 978; St. Louis & S. F. R. R. Co. v. Bruner, 152 Pac. Rep. 1103. See also Sommers v. Apalachicola N. R. R. Co., 85 Fla. 9; 96 South. Rep. 151; Dova v. Hancock, 88 Fla. 503; 102 South. Rep. 642; Green v. First Natl. Bank, 85 Fla. 51; 95 South. Rep. 231; Glass v. Craig, 83 Fla. 408; 91 South. Rep. 332. The burden resting upon the releasor to escape the legal effect of a formal written release, such as Jhe one here involved, is a heavy one. Borden v. Sandy River & R. L. R. Co., 8…
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N.Y. Life Ins. Co. v. Oates, 122 Fla. 540 (Fla. 1935)…d to enforce the mortgage. See Shear v. Robinson, 18 Fla. 379; Bank of Jennings v. Jennings, 71 Fla. 145, 71 So. 31; Smith v. Commercial Bank, 77 Fla. 163, 81 So. 154; Rausch v. Eqt. L. Assn. Soc., 77 Fla. 846, 82 So. 295; Green v. First Nat’l Bank, 85 Fla. 51, 95 So. 231; Herald v. Hardin, 95 Fla. 889, 116 So. 863; Morris v. Shepard, 104 Fla. 121, 139 So. 189. In their answer the husband and wife admit that the wife signed the mortgage instrument; but the answer avers that the wife did not appear before…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hutchinson v. Stone, 79 Fla. 157 (Fla. 1920)
- McClure v. Am. Nat'l Bank of Pensacola, 67 Fla. 32 (Fla. 1914)
- Eliza N. Shear v. Robinson, 18 Fla. 379 (Fla. 1881)
- The Bank of Jennings v. Jennings, 71 Fla. 145 (Fla. 1916)
- Hart v. Sanderson's Administrators, 18 Fla. 103 (Fla. 1881)
- Mizell Live Stock Co. v. Garrison A. Pollard, 71 Fla. 192 (Fla. 1916)
- Georgia v. Holland and James J. Holland, 43 Fla. 85 (Fla. 1901)