Edwards v. Thom

Citations

• 25 Fla. 222

Syllabus

<p>1. Proof by a subscribing witness to a mortgage that he saw the mortgagor sign the instrument and acknowledge that he did so, is not sufficient proof of its execution to authorize its admission to record.</p> <p>2. The record of a mortgage made upon insufficient proof of its execution does not constitute notice of the mortgage to a subsequent bona fide mortgagee for value.</p> <p>3. A notary public can take xsroof of the execution of a mortgage of real estate, for record.</p> <p>4. A bona fide mortgagee who has been made a party defendant with the mortgagor to a bill hied to foreclose a duly recorded prior mortgage and has become the purchaser at the sale made under the decree in such suit, is entitled to priority of payment out of the excess of the proceeds of sale as against a mortgage executed before his, but not legally recorded, and of which he had no notice when he took his own mortgage.</p> <p>•5. If a person holding a first mortgage surrenders it, and the promissory note it secures, to a subsequent owner of the land mortgaged, and takes from such owner a mortgage securing both the sum he paid for an assignment of the former mortgage and note and sums of money which he has advanced to such subsequent owner, and the latter has the record of the mortgage can-celled, and delivers the note to the party making it and the first mortgage, such first mortgage will be held to be satisfied as to a subsequent mortgagee for value and without notice, actual or constructive, of the second mortgage.</p> <p>6. When a decree is so framed as' to cover certain charges made by the bill, and put in issue by the other x>leadings, but not sirstained by the testimony, it should be so modified as to make it cover only the issues sustained by the testimony, if it seems that such modification may, under some circumstances, be essential or material to defendant.</p>