Bank of Jennings v. Jennings

Citations

• 71 Fla. 145
• 71 So. 31

Syllabus

<p>1. A “mortgage duly executed * by husband and wife,” sufficient to create a lien upon homestead real estate of the husband, as between the mortgagors and mortgagee must be duly executed by the husband and wife and the execution by . the wife duly acknowledged by her, since under the statute due acknowledgment by the wife of the execution of the deed or mortgage by her is essential to the validity of- any conveyance or relinquishment of an interest in real estate by the wife even as between the parties to the instrument.</p> <p>2. The law which authorizes designated officers to take the private examination of the wife was designed as a substitution for the proceedings at common law by fine and recovery, whereby the right of the wife on the one hand might be guarded, and a sure indefeasible and unquestionable transfer of her right secured on the other.</p> <p>3. 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 certificate. When fraud is alleged, proof of it must be of the clearest, strongest and most convincing character.</p> <p>4. Where a married woman signed a mortgage of land in the presence of witnesses and the only contention in avoidance of the mortgage is that she did not acknowledge to or before the officer separate and apart from her husband the execution of the mortgage, the certificate of the officer of due acknowledgment of the execution of the mortgage by her separate and apart from her husband, will prevail where there is evidence to sustain the certificate, and it is not overcome by clear, strong and convincing testimony.</p>