SAM HAMILTON AND EDITH HAMILTON, HIS WIFE, APPELLANTS,
v.
JOHN P. CORCORAN, JR., TRUSTEE, APPELLEE
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Florida appellate court reversed a foreclosure decree where mortgagors challenged the enforceability of a homestead mortgage lacking proper attestation by two witnesses. The court held that while homestead mortgages require two subscribing witnesses, the mortgagee failed to establish equitable estoppel after the mortgagee's own agent improperly supervised the mortgage execution.
The mortgage was unenforceable. Although homestead mortgages must be properly attested by two witnesses, and lack of such attestation operates as a complete bar to enforcement absent estoppel, the mortgagee failed to establish equitable estoppel because it was the mortgagee's agent who prepared and supervised the execution and caused the second witness to sign without witnessing the execution.
“A homestead mortgage, to be effective, must be properly attested by two witnesses.”
Establishes the legal requirement for valid homestead mortgages in Florida
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Join FLexlaw to unlock all legal intelligenceIn September 1960, Hurricane Donna damaged the Hamiltons' home. Bevis Shell Homes, Inc. repaired the house and provided funds to satisfy the existing …
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Appellants Hamilton, mortgagors, appeal from a final decree of foreclosure in favor of the trustee in bankruptcy for the mortgagee, Bevis Shell Homes, Inc.
In September of 1960, the house in which appellants and their minor daughter were living was hit by Hurricane Donna. The house was blown from its foundation and damaged considerably. The Bevis corporation repaired the house, replaced it on its foundation, and provided funds for the satisfaction of appellants’ existing mortgage. In return, appellants, on October 3, 1960, executed a note and mortgage for $4,200 to the Bevis people. Appellants defaulted in their payments in June of 1962.
The execution of the mortgage took place at a neighbor’s house, and although two wit*65nesses were present, only one signed. The second subscribing witness, a secretary of the Bevis representative, who was not present at the mortgage execution, signed the instrument when it was brought back to the office.
The chancellor declined to make any findings of fact or rulings of law in decreeing foreclosure. We therefore are without the benefit of his reasoning in reaching his decision.
Appellants argue on appeal that the mortgaged property was homestead property at the time the mortgage was executed, therefore the failure to have two subscribing witnesses to their signatures rendered the mortgage unenforceable. The appellee contends that appellants failed to prove sufficiently that the mortgaged property was homestead property, and therefore did not have the benefit of the defense. In the alternative, he argues an estoppel against the raising of the defense.
We feel the record, although admittedly weak, sufficiently establishes the homestead character of the property. We therefore address ourselves solely to the question concerning the defense of a defective mortgage.
It is clear that, despite whatever conceptual difficulties one might have in justifying a distinction, there are different requirements for the proper execution of a homestead mortgage 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 So. 391, 394, the essentials of equitable estoppel were stated as:
“* * * (1) Words and admissions, or conduct, acts, and acquiescence, or all combined, causing another person to believe in the existence of a certain state of things. (2) In which the person so speaking, admitting, acting, and acquiescing did so willfully, culpably, or negligently. (3) By which such other person is or may be induced to act so as to change his own previous position injuriously. * * * ”
See 12 Fla.Jur. Estoppel and Waiver §§ 24, 30.
It can be gleaned from the above that the party seeking to invoke the doctrine must show that he has been misled by the conduct of the other party. Under our facts this would consist of a showing by appellee that the Bevis corporation was led to believe, by an act (or language) of the appellants, that it was receiving a properly executed mortgage. See e. g., New York Life Ins. Co. v. Oates, 1935, 141 Fla. 164, 192 So. 637.
The record will not sustain such a finding. On the contrary, the record reveals it was the Bevis agent who prepared the papers and supervised their execution. Moreover, it was he who had the second witness sign although she had not witnessed the execution. Thus, no misleading conduct of the appellants can be established, and any attempt to assert an estoppel must fail.
Accordingly, the order of the chancellor is reversed.
SHANNON, J., and BARKER, ROGER A., Associate Judge, concur.
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Winans v. Jed P. Weber, M.D., 979 So. 2d 269 (Fla. 2d DCA 2007)…be no estoppel when the party seeking the estoppel was aware of the true facts and thus was not misled by the other party’s conduct. Watson Clinic, 816 So. 2d at 834; Schueler v. Franke, 522 So. 2d 904, 906 (Fla. 2d DCA 1988); Hamilton v. Corcoran, 177 So. 2d 64, 65 (Fla. 2d DCA 1965); Lennar Homes, 654 So. 2d at 652. Here, Dr. Weber’s claim of equitable estoppel fails for three reasons. First, Dr. Weber failed to prove that Mr. Winans made any type of representation about any material fact. Instead, it wa…
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The Wickes Corp. v. Moxley, 342 So. 2d 839 (Fla. 2d DCA 1977)…stead must be executed with the same statutory formalities 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 o…
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Cap. Bank v. Schuler, 421 So. 2d 633 (Fla. 3d DCA 1982)…ly where to refuse its application would be virtually to sanction fraud.” McAllister Enterprises, Inc. v. McAllister Hotel, Inc., 219 So. 2d 114 (Fla. 3d DCA 1969). Unless the party seeking to assert the estoppel is misled, see Hamilton v. Corcoran, 177 So. 2d 64 (Fla. 2d DCA 1965), estoppel will not lie. The only act of the Bank which arguably could have misled Schuler into believing that the amount stated in the stop-payment order did not have to be correct was the bank’s acceptance of the order with a qu…
Previewing 3 of 7 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)
- Coogler v. Rogers, 25 Fla. 853 (Fla. 1889)
- The N.Y. Life Ins. Co. v. Oates, 141 Fla. 164 (Fla. 1939)
- Perry v. Beckerman, 97 So. 2d 860 (Fla. 1957)
- Lieberman v. Burley, 100 So. 2d 88 (Fla. 2d DCA 1958)