SAM LIEBERMAN AND MARY LIEBERMAN, HIS WIFE, APPELLANTS,
v.
CHARLIE BURLEY AND BESSIE BURLEY, HIS WIFE, APPELLEES
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The Florida District Court of Appeal affirmed a lower court's decision, holding that a mortgage on homestead property is unenforceable if it is not signed in the presence of two subscribing witnesses, as required by Florida law.
No, a mortgage on homestead property is not enforceable if it is not executed in the presence of two subscribing witnesses, unless the doctrine of estoppel applies, which was not raised in this case.
“The party or parties making a mortgage on homestead property must sign it in the presence of two subscribing witnesses, and unless so executed the mortgage can not be enforced against the homestead in the absence of an estoppel.”
This quote states the core legal principle the court applied to resolve the issue.
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Join FLexlaw to unlock all legal intelligenceThe appellants sought to foreclose a mortgage on homestead property. The appellees, the mortgagors, raised the defense that the mortgage was invalid b…
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This suit was for the foreclosure of a mortgage against homestead property. There were no subscribing witnesses to the execution of the mortgage. The appellees asserted the defense that the mortgage was defective and insufficient to encumber the homestead property because there were no witnesses to the signatures of the mortgagors. There is no dispute as to the facts. The chancellor ruled that this defense was *89complete as a bar against the foreclosure proceeding. The appeal is from that order.
The sole question presented by this appeal is whether the lack of two subscribing witnesses to the execution of the mortgage prevents its enforcement against the homestead property.
The question has been resolved. The party or parties making a mortgage on homestead property must sign it in the presence of two subscribing witnesses, and unless so executed the mortgage can not be enforced against the homestead in the absence of an estoppel. Estoppel is not here raised. See Perry v. Beckerman, Fla.1957, 97 So.2d 860, 862; Article X, section 4, Constitution of the State of Florida, F.S.A.; .and section 689.01, Florida Statutes, 1955, F.S.A.
The order of the chancellor is hereby .affirmed.
ALLEN, J., and SMITH, CULVER, A. J., concur.
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The Wickes Corp. v. Moxley, 342 So. 2d 839 (Fla. 2d DCA 1977)…ties required of a deed. Hence, the requirement for two witnesses on a homestead mortgage was carried forward into later cases. Perry v. Beckerman, 97 So. 2d 860 (Fla.1957); Hamilton v. Corcoran, 177 So. 2d 64 (Fla.2d DCA 1965); Lieberman v. Burley, 100 So. 2d 88 (Fla.2d DCA 1958). The new constitutional provision on the subject is Article X, Section 4(c) which reads: “(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to…
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Hamilton v. Corcoran, 177 So. 2d 64 (Fla. 2d DCA 1965)…gage and a non-homestead mortgage. A homestead mortgage, to be effective, must be properly attested by two witnesses. Perry v. Beckerman, Fla.1957, 97 So. 2d 860; Hutchinson v. Stone, 1920, 79 Fla. 157, 84 So. 151; Lieberman v. Burley, Fla.App.1958, 100 So. 2d 88. The lack of two subscribing witnesses operates as a complete bar to enforcement of the mortgage in the absence of an estoppel. Perry v. Beckerman, supra; Lieberman v. Burley, supra. In the early case of Coogler v. Rogers, 1889, 25 Fla. 853, 873, 7…
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Commercial Acceptance Corp. v. Barnes, 179 So. 2d 251 (Fla. 1st DCA 1965)…60 (1957): “Lack of two witnesses, however, prevents the enforcement of the mortgage against the homestead .absent an estoppel, which is not here apparent.” Similarly, the District Court of Appeal, Second District of Florida, in Lieberman v. Burley, 100 So. 2d 88 (1958), which was a suit to foreclose a mortgage against homestead property, said the following: “The sole question presented by this appeal is whether the lack of two subscribing witnesses to the execution of ■the mortgage prevents its enforcement…
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- Perry v. Beckerman, 97 So. 2d 860 (Fla. 1957)