New York Life Insurance v. Oates

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 542 In this cause Mr. Chief Justice WHITFIELD and Mr. Justice DAVIS are of the opinion that the decree of the Circuit Court should be reversed for further appropriate proceedings while Mr. Justice ELLIS, Mr. Justice BROWN and Mr. Justice BUFORD are of the opinion that the decree should be affirmed. When the members of the Supreme Court, sitting six members in a body and after full consultation, it appears that the members of the Court are permanently and equally divided in opinion as to whether the decree should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the decree should be affirmed; therefore it is considered, ordered and adjudged under the authority of State, ex rel. Hampton, v. McClung, 47 Fla. 224, 37 So.2d R. 51, that the decree of the Circuit Court in this cause be and the same is hereby affirmed. *Page 543 Affirmed. WHITFIELD, C.J., and ELLIS, TERRELL, BROWN, BUFORD and DAVIS, J.J., concur. STATEMENT On March 20, 1930, the original bill of complaint in a foreclosure suit was filed by the New York Life Insurance Company, a corporation, against A.Y. Oates and his wife, Almena Oates. On April 5, 1930, prior to the appearance day, an amended bill of complaint was filed. By leave of court on June 18, 1930, a second amended bill of complaint was filed in which it is in effect alleged that on or about June 1, 1926, A.M. Oates and his wife, Almena Oates, executed to Telfair Stockton Company, a corporation, their promissory note payable to the order of the corporation in semi-annual installments with interest at 6 1/2 per cent. per annum during a period of five years, with provisions for accelerating the maturity of the note for defaults of the makers; that on or about June 1, 1926, A.Y. Oates and his wife, Almena Oates, to secure the note given by them, executed to Telfair Stockton Company a mortgage instrument duly witnessed and acknowledged and recorded; that on or about June 22, 1926, the Telfair Stockton Company for valuable consideration duly assigned and transferred the note and mortgage to New York Life Insurance Company, a corporation; that complainant, "paid for and accepted delivery of said note, mortgage and assignment without any notice or knowledge of any defect or irregularity in the transaction between said Telfair Stockton Company and these defendants and each of them, and without notice or knowledge of any defect or irregularity in the execution of said note or of said mortgage, if any irregularity or defect there was, and that your orator is the present bona fide owner and holder *Page 544 for value of said mortgage deed, together with the note hereby secured, and all moneys due or to become due thereon, and that the same were purchased before maturity and before default of any kind or character in the payment of any of the obligations evidenced by said note and secured by said mortgage. * * * "That the defendants filed an Answer to the original Bill of Complaint herein wherein and whereby they admitted that they signed the Note and Mortgage referred to therein and in this Second Amended Bill of Complaint, and that the defendant, A.Y. Oates, received the proceeds of the said Note and paid the amounts alleged in the Bill of Complaint herein to have been paid thereon, but they asserted in said Answer that the defendant, Almena Oates, did not know that the said Mortgage covered the land involved in this suit; that the Note and Mortgage were signed in the presence of the defendant, A.Y. Oates, only, and that neither of the witnesses who signed said mortgage was present when the said Almena Oates signed the same, and that the said Almena Oates did not appear before the Notary Public whose certificate is attached to said Mortgage and did not acknowledge said instrument in the presence of the Notary at the time she signed the same or at any other time; that she did not know of the existence of said Mortgage on the land involved in this suit until many months after June 1st, 1926; that she received no part of the proceeds of said Note and Mortgage, wherefore the defendants claim in their said Answer that the Mortgage involved in this suit was and is void and of no force and effect. "* * * that even though the said Note was executed and delivered and the said Mortgage was executed, delivered and recorded as aforesaid and the proceeds of said Note were delivered to said A.Y. Oates as aforesaid and the *Page 545 principal reductions and interest payments were made by the said A.Y. Oates as aforesaid, that never at any time until the filing of said Answer did the said Almena Oates, or any one in her behalf, make to Telfair Stockton Company aforesaid or to your orator the aforesaid claims or representations as to lack or failure of consideration, as to lack of knowledge on her part that said Mortgage covered the property described therein, as to defective execution or acknowledgment, or any claim whatsoever as to the invalidity of said Note or said Mortgage. Your orator avers that at the time set for the execution of said Note and Mortgage the said A.Y. Oates appeared before the agent of Telfair Stockton Company aforesaid, at the office of said Company, and requested that he be allowed to take the said Note and Mortgage to his said wife, Almena Oates, in order that she might execute the same, stating that it was inconvenient for her to come to the office of Telfair Stockton Company aforesaid; that there was a notary and witnesses before whom it would be more convenient for the said Almena Oates to appear and that he would attend to having the papers properly executed and acknowledged; that the said agent for Telfair Stockton Company thereupon delivered the unexecuted Note and Mortgage to said A.Y. Oates, who carried them away and later returned with them, they being then to all appearances duly and regularly executed and acknowledged, and that he then presented them to said agent who then, relying upon the validity of the said Note and Mortgage, on to-wit, the 15th day of June, 1926, delivered the proceeds of said Note and Mortgage to the said A.Y. Oates and accepted delivery of said Note and Mortgage; * * * that if any fraud or deception was practiced upon the said Almena Oates by her said husband or by any one in the matter of *Page 546 procuring her signature to said Mortgage, the same was not participated in by said Telfair Stockton Company or by your orator or by any of the agents of either of them, and neither they nor any of their agents knew of any fraud or misrepresentation in the premises; that if there was any irregularity whatsoever in the execution or acknowledgment of the said Mortgage or any irregularity, fraud or deception in the manner of procuring the same, such irregularity, fraud and deception were each and every committed without notice to or knowledge of said Telfair Stockton Company or your orator or any of their agents, and your orator avers that under the circumstances in this case the defendants and each of them by reason of their act and conduct are estopped to deny in this Court of equity the validity of the said Note and Mortgage or to contest the lien of said Mortgage." The copy of the mortgage attached to and made a part of the bill of complaint, shows the execution and certificate of acknowledgment of the mortgage to be as follows: "IN WITNESS WHEREOF, said Mortgagors have executed these presents under seal at Lakeland, in Polk County, Florida, the day and year first above written. "A.Y. OATES (SEAL) "ALMENA OATES (SEAL) "Signed, sealed and delivered in the presence of the following witnesses: "A.F. PECHARD, "LEONE C. McGOWAN. *Page 547 "STATE OF FLORIDA, "COUNTY OF POLK. "Before me personally appeared A.Y. Oates and Almena Oates, his wife, both of whom are to me well known, and known to me to be the individuals described in and who executed the foregoing mortgage, and acknowledged to and before me that they executed said mortgage for the purpose therein expressed; and the said Almena Oates, well known to me and known to me to be the wife of said A.Y. Oates, upon a separate and private examination, taken and made separately and apart from her said husband, acknowledged before me that she executed said instrument freely and voluntarily, without any compulsion, constraint, apprehension or fear of or from her said husband, for the purposes herein set forth. "WITNESS my hand and official seal, this first day of June, 1926. "(NOTARIAL SEAL) "LEONE C. McGOWAN, "Notary Public for the State of Florida at Large. My Commission expires Dec. 15, 1929." By answer: "The Defendants admit that the said Almena Oates never made known to Telfair Stockton Company or to the Complainant her claims or representations as to the lack or failure of consideration or her lack of knowledge that the said mortgage covered the property described therein, or as to the defective execution or acknowledgment or any claim whatsoever as to the invalidity of said note or said mortgage, but the said Almena Oates avers that both the complainant and its agent, Telfair Stockton Company, had *Page 548 a better opportunity of knowledge as to said matters than the said Almena Oates had, and that she could make no such claims to the said parties because she had no knowledge of the existence of said mortgage and she had no knowledge of the existence of said note until foreclosure was threatened and until shortly before the same was actually instituted. * * * "The defendant, A.Y. Oates, of his own knowledge, and Almena Oates, on information and belief, aver that the note and mortgage were executed by both defendants, but that the said Almena Oates did not know that the said mortgage covered her said homestead property, but thought at the time she signed the same that the said mortgage covered other property belonging to the Defendant, A.Y. Oates, and that the said Almena Oates would never have signed said note and mortgage had she known that their purport was the creation of an indebtedness and lien against the said homestead property. Answering further, in the manner aforesaid, Defendants say that the note and mortgage were not signed by the said Almena Oates in the presence of the witnesses who signed said mortgage and that the said Almena Oates did not appear before the notary public whose certificate is attached to said mortgage and did not acknowledge said instrument in the presence of said notary or in the presence of any other notary at the time she signed the same or at any other time, and that the said Almena Oates received no part of the proceeds of said note and mortgage and did not know of their existence until shortly before this foreclosure was brought." Testimony was taken by a special master and reported to the court. The court struck testimony objected to by complainant relating to the attestation and acknowledgment of the mortgage, and decreed for the complainant. *Page 549 A rehearing sought on the ground of newly discovered evidence as to the execution and acknowledgment of the mortgage by Mrs. Oates was denied on the ground "that the said proffered testimony is inadmissible by reason of the negotiation of the said mortgage and of the note thereby secured to an innocent party prior to the maturity thereof and without notice of any defects therein." Defendants appealed from the final decree and from the order denying a rehearing. The final decree was reversed and the cause remanded for further proceedings. Oates v. New York Life Ins. Co., 113 Fla. 678, 152 So.2d 671. Upon being remanded, further testimony was taken by a special master and by depositions. Thereupon on August 3, 1934, a final decree was rendered for the defendants in which it is stated that "There is no question in this cause but that Mr. and Mrs. Oates both signed the mortgage, and there is no question of duress or fraud in procuring the signature of Mrs. Oates. Likewise, there is no question but that Mr. Oates got the money secured, or attempted to be secured, by the mortgage. Likewise, there is no question but that Mr. Oates took the mortgage from the office of Telfair Stockton Company to have same executed, and returned same to the Telfair Stockton Company, signed by himself and wife and showing on its face to be properly witnessed and acknowledged. "* * * this Court * * * finds that the defendant, Almena Oates, did not appear before the notary public whose certificate is appended to the mortgage described in the bill of complaint, that she did not acknowledge same before said notary public, or any notary public, * * *" A petition for rehearing was presented for the complainant containing grounds which in effect state that the evidence *Page 550 does not sustain the finding that Mrs. Oates did not acknowledge before the notary the execution of the mortgage, and in effect state that the evidence warranted an adjudication that the defendants are estopped to assert as a defense to the suit, that Mrs. Oates did not acknowledge before the notary public the execution of the mortgage by her. The petition for rehearing was denied and complainant appealed from the final decree of August 3, 1934, and also from the order denying a rehearing of August 14, 1934. The Constitution provides that the homestead "real estate shall not be alienable without the joint consent of husband and wife when that relation exists." Sec. 1, Art. 10. "Nothing in this article shall be construed to prevent the holder of a homestead from alienating his or her homestead so exempted by deed or mortgage duly executed by himself or herself, and by husband and wife, if such relation exists." Sec. 4, Art. 10. "All property, real and personal, of a wife owned by her before marriage, or lawfully acquired afterward by gift, devise, bequest, descent, or purchase, shall be her separate property, and the same shall not be liable for the debts of her husband without her consent given by some instrument in writing executed according to the law respecting conveyances by married women." Sec. 1, Art. XI. Conveyances of real estate are required to be "by deed, signed, sealed and delivered in the presence of at least two subscribing witnesses." Sec. 5660 (3787) C.G.L. See Springfield Co. v. Ely,44 Fla. 319, 32 So.2d 892; Cobb v. Bear, 57 Fla. 370, 49 So.2d 29; Russell v. Henslee, 101 Fla. 1318, 132 So.2d 489. The statutes of the State contain the following: *Page 551 "Any married woman owning real property may sell, convey or mortgage it as she might do if she were not married, provided her husband join in such sale, conveyance or mortgage." Sec. 5674 (3801) C.G.L. "Any married woman having a right of dower in any real property may relinquish it by joining in the conveyance or mortgage of such real property, or by a separate deed executed in like manner as other conveyances." Sec. 5675 (3802) C.G.L. "To render such sale, conveyance, mortgage or relinquishment, whether of separate estate or of dower, effectual to pass a married woman's estate or right, she must acknowledge, before some officer authorized to take acknowledgment of deeds, separately and apart from her husband, that she executed the same freely and voluntarily and without compulsion, constraint, apprehension or fear of or from her husband, and the officer's certificate shall set forth all the foregoing requirements." Sec. 5676 (3803) C.G.L. Homestead real estate is defined and the method of its alienation is stated in the Constitution. It may be alienated only in the manner provided by the Constitution, which is "by deed or mortgage duly executed" by husband and wife, if that relation exists. "Duly executed * * * by husband and wife" means executed by husband and wife in the manner prescribed by law for the execution by them of conveyances or mortgages of real estate. The wife has an equal interest with the husband in an estate by the entireties. English v. English, 66 Fla. 427, 63 So.2d 822; Ohio Butterine Co. v. Hargrave, 79 Fla. 458, 84 So.2d 376; Bailey v. Smith, 89 Fla. 303, 103 So.2d 833; Ferris-Lee Lbr. Co. v. Fulghum,98 Fla. 171, 123 So.2d 697. *Page 552 As to homesteads in estates by the entireties, see Oates v. New York Life Ins. Co., 113 Fla. 678, 152 So.2d 671; Menendez v. Rodriguez, 106 Fla. 214, 143 So.2d 223.