This suit was brought by the assignee of the mortgagee to foreclose a mortgage by husband and wife upon an estate by the entireties on which their homestead was located. There was a final decree for defendants and complainant appealed. On a prior appeal a final decree for complainant was reversed for further proceedings. Oates v. New York Life Ins. Co., 113 Fla. 678,152 So.2d 671.
The mortgage and the loan note payable by installments during five years, were dated June 1, 1926, and were assigned to the complainant, June 22, 1926, the original mortgagee being Telfair Stockton Company, a corporation.
In substance the defense interposed was that the mortgage is invalid because the wife did not acknowledge its execution before the officer who made the certificate of acknowledgment attached to the mortgage as shown in the statement of this case.
The court held that the evidence showed the execution of the mortgage was not acknowledged by the wife before the officer who made the certificate of such acknowledgment, and dismissed the bill of complaint.
On this appeal the appellant in effect contends that the evidence does not overcome the official certificate which states that the execution of the mortgage by the wife was acknowledged by her before the officer; and that the admitted and proved conduct of the husband and wife in the matter of signing, recording and delivery of the mortgage, the receipt of a loan thereon and the payments made on the loan, warrants an adjudication of estoppel of the husband and wife to deny that the wife did acknowledge the execution *Page 553 before the officer, the mortgage being now held by an assignee for value and without notice of any latent defect, if any, in the mortgage that on its face is duly executed by the husband and the wife.
The appellees contend that the evidence clearly shows that the wife did not acknowledge before the officer the execution of the mortgage as required by the Constitution and the statutes; and that consequently the mortgage is void and inoperative.
If the mortgage is effectual or ineffectual as to the homestead, it is likewise effectual or ineffectual as to the other property, if any, owned by the mortgagors and covered by the mortgage, the circumstances of the case applying to the mortgage as a whole.
The married woman here is not shown to have been a free dealer under the statute when the mortgage was executed. Secs. 5024 (3218), 5027 (3221) C.G.L.; Lerch v. Barnes, 61 Fla. 672, 54 So.2d 763.
Under the Constitution and laws of Florida as set out in the statement, the due execution by husband and wife of a mortgage on real estate held by the entireties or on homestead real estate includes:
(1) The appropriate signing, under seal, of the mortgage instrument by the husband and wife, each in the presence of at least two persons who sign the instrument as attesting witnesses;
(2)The acknowledgment by the wife before an officer authorized to take acknowledgments of deeds, separately and apart from her husband, that she executed the identified mortgage instrument freely and voluntarily and without compulsion, constraint, apprehension or fear of or from her husband. *Page 554
(3) A certificate of such officer over his or her signature and seal of office, setting forth a compliance with all the foregoing statutory requirements as to the acknowledgment made before such officer;
(4) Delivery of the mortgage instrument.
In order to have the mortgage instrument duly recorded under Sections 5698 (3822), 5699 (3823), 5700 (3824) C.G.L., the execution of the mortgage instrument must be acknowledged by the parties executing the instrument, or the execution thereof by such parties must be proven by a subscribing witness thereto, before an authorized officer; and the certificate of the officer before whom the acknowledgment or proof shall be taken shall contain and set forth substantially the matter required to be done or proved to make such acknowledgment of proof effectual.
As shown in the statement, the official certificate appended to the mortgage instrument in this case contains a statement that the husband and wife acknowledged to and before the officer that they executed the mortgage for the purpose therein expressed. This satisfied the requirement of the statute to authorize the mortgage to be recorded.
The official certificate also states that the wife "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."
The certificate is duly authenticated; and it, together with the signing under seal of the mortgage instrument by the husband and wife, attested by two witnesses, shows at least prima facie that the provisions of the Constitution and the statutes on the subject have been complied with, whereby the mortgage is to be regarded as valid, unless under the *Page 555 averments of the answer the official certificate of the acknowledgment of execution of the mortgage by the wife is duly overcome so as to render the mortgage invalid.
"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." Bank of Jennings v. Jennings, 71 Fla. 145, 71 So.2d 31.
"The fact that a wife was induced to execute a mortgage by fraud and deception on the part of her husband in which the mortgagee did not participate and of which he had no knowledge, does not affect its validity." Smith v. Commercial Bank, 77 Fla. 163, 81 So.2d 154.
Where a mortgage on homestead real estate owned and held as an estate by the entireties, appears upon its face and by the appended official certificate to have been executed and acknowledged by the husband and wife in accordance with the requirements of the Constitution and laws of the State, such mortgage instrument is at least prima facie valid as an encumbrance upon the property; and the official certificate of due acknowledgment of the execution of the mortgage instrument by the wife, being quasi judicial in its nature, will stand to sustain the validity of the mortgage until it is overcome as may be authorized by law.
Where in a suit to foreclose such a mortgage, it is admitted or duly proven that the mortgage was signed by both the husband and the wife, but it is averred as a defense *Page 556 that the wife did not appear before or acknowledge the execution of the mortgage before the officer whose certificate states that she did so appear and acknowledge the execution of the mortgage, then, in the absence of estoppel, such averment as a defense may be proven by convincing evidence. Hutchinson v. Stone, 79 Fla. 157, 84 So.2d 151; Randall v. Twitchell, 98 Fla. 559, 124 So.2d 21; Morris v. Shepard, 104 Fla. 121, 139 So.2d 189; Smith v. Hogan,117 Fla. 82, 157 So.2d 183; Suttle v. Wold, 117 Fla. 802, 158 So.2d 447; Smith v. McEwen, decided at this term.
Where it is admitted or duly proven that the wife did appear before the officer concerning the execution of the mortgage by her, she will be estopped to assert that she did not make the statutory acknowledgment of the execution of the mortgage as may be properly stated in the officer's certificate. But if it be clearly shown by convincing testimony of disinterested witnesses that there was fraud or duress in procuring the execution of the mortgage or in taking acknowledgment of the execution by the wife, in which fraud or duress the holders of the mortgage or their privies participated, or of which fraud or duress they had or could reasonably have had knowledge or notice, the mortgage holders will be estopped to enforce the mortgage. See Shear v. Robinson, 18 Fla. 379; Bank of Jennings v. Jennings, 71 Fla. 145, 71 So.2d 31; Smith v. Commercial Bank, 77 Fla. 163, 81 So.2d 154; Rausch v. Eqt. L. Assn. Soc., 77 Fla. 846, 82 So.2d 295; Green v. First Nat'l Bank, 85 Fla. 51, 95 So.2d 231; Herald v. Hardin,95 Fla. 889, 116 So.2d 863; Morris v. Shepard, 104 Fla. 121,139 So.2d 189.
In their answer the husband and wife admit that the wife signed the mortgage instrument; but the answer avers that the wife did not appear before the officer and did not acknowledge the instrument in the presence of the officer. *Page 557 On such averment it may be shown by positive, clear, convincing and legally sufficient evidence, as by sufficient competent testimony and corroborating circumstances, that the wife did not appear before the officer who certified that she did appear before him and acknowledge the execution of the mortgage; and such showing may invalidate the mortgage, unless in estoppel it may be and is shown that by reason of the conduct of the wife in knowingly signing the mortgage instrument with the blank certificate of acknowledgment appended thereto and designed to be executed under the law, or by reason of other conduct of the wife concerning the transaction, her husband or his agent was enabled to have the appending certificate of the wife's acknowledgment that she executed the mortgage, authenticated by an officer, thereby making the mortgage valid on its face, upon the faith of which a loan was made.
It is claimed that such conduct and its consequences are shown, for which the husband and wife should be estopped to assert as a defense to the suit that the wife did not appear before or acknowledge before the officer the execution of the mortgage by her. If such estoppel is adjudicated, the official certificate will stand to sustain the mortgage which on its face is duly executed and acknowledged as required by the Constitution and laws of the State.
Without determining whether the evidence justifies the finding of the chancellor that the wife did not appear before the officer and did not acknowledge before any officer that she executed the mortgage, the decree should be reverssd, because an issue of estoppel was made and not adjudicated by the court, though such issue of estoppel was referred to in grounds of the petition for rehearing which the chancellor by order denied; and such order is appealed from and assigned and argued here as error. *Page 558
It is alleged that a previous mortgage to another party was given by the husband and wife upon the same property and that the proceeds of the present mortgage loan on the property were used, or procured on the representation that the same would be used, in the payment of the previous mortgage loan, wherefore it is claimed that the original mortgagee and its assignee, the complainant, are subrogated to all the rights, titles and interests which the mortgagee in the previous mortgage had. But the right of subrogation so asserted was not duly shown to exist.
Unlike numerous previous cases, estoppel of the defendants is pleaded in this case; and evidence relating thereto was adduced. The doctrine of estoppel is a part of the common law of the State adopted by statute, see 87 (71) C.G.L.; and the Constitution does not forbid the operation of such law where duly adjudicated.
A married woman in proper cases may be estopped by her conduct concerning the execution of acknowledgment of instruments affecting real estate in which she is interested. See Maiben v. Bobs, 6 Fla. 381; Hobbs v. Frazier, 61 Fla. 611, 55 So.2d 848; Ponce de Leon Fountain of Youth Co. v. Day, 90 Fla. 197, 105 So.2d 814; Phillips v. Lowenstein, 91 Fla. 89, 107 So.2d 350; Mexican Rubber Co. v. Ackley, 101 Fla. 552, 134 So.2d 585; Kansas City Life Ins. Co. v. Harroun, 44 Idaho 643, 258 P. 929; Ehle v. Looker,182 Mich. 248; Hamling v. Aetna Life Ins. Co., 34 F.2d 112; 32 A.L.R. 737.
In Coogler v. Rogers, 25 Fla. 853, 7 So.2d 391, it is said:
"This court in an early day and in a well considered case, used the following language: `The technicalities incident to an estoppel, especially in pais, are gradually giving way to considerations of reason and practical utility; and the courts of the present day seem disposed to give force and *Page 559 efficiency to a doctrine which is based upon principles of justice and the purest morality.' Camp v. Moseley, 2 Fla. 197, text.
"From cases cited above, and numerous others adjudicated, the law of estoppel may be briefly laid down as follows:
"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 wilfully, 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 also Warner v. Watson, 35 Fla. 402, 17 So.2d 654; Johnson v. Elliott, 64 Fla. 318, 59 So.2d 944. First Nat. Bank v. Ashmond,33 Fla. 416, 14 So.2d 886.
This suit does not relate to title, but to the recovery of money loaned upon the faith of a mortgage instrument which appears on its face to be duly executed.
Payment of the debt will extinguish the claim of a lien and prevent foreclosure decree and sale of the property. Complainant assignee of the mortgage for value, is not at fault; and defendants have received a loan which if repaid or otherwise settled will satisfy the demand for repayment of the loan.
In McClure v. American National Bank, 67 Fla. 32, 64 So.2d 427, estoppel was decreed upon the face of the note and mortgage held by an assignee in due course. Here the estoppel asserted is predicated upon the conduct of the mortgagors which it is in effect alleged operated to the detriment of a bona fide assignee for value of a mortgage alleged to have been defectively executed by the mortgagors, but which mortgage is valid on its face. See First National *Page 560 Bank v. Ashmead, 33 Fla. 416, 14 So.2d 886; Hutchinson v. Stone,79 Fla. 157, 84 So.2d 151; McEwen v. Schenck, 108 Fla. 119,146 So.2d 839; Flowers v. Schenck, 110 Fla. 256, 148 So.2d 581. In Cobb v. Bear, 57 Fla. 370, 49 So.2d 29, the question of estoppel was not adjudicated.
In Wilkins v. Lewis, 78 Fla. 78, 82 So.2d 762, the husband did not join the wife in executing a mortgage on her separate property, and the wife was not a free dealer.
In the following cases the transaction had reference to conveyances, and not to mortgages. See Carn v. Haisley, 22 Fla. 317; Walling v. C. C. Groc. Co., 41 Fla. 479, 27 So.2d 46; Adams v. Malloy, 70 Fla. 491, 70 So.2d 463; Shad v. Smith, 74 Fla. 324, 76 So.2d 897; Wright v. Wright, 75 Fla. 7, 77 So.2d 616; Phillips v. Lowenstein, 91 Fla. 89, 107 So.2d 350; McDonald v. McDonald Holding Co., decided at this term.
TERRELL and DAVIS, J.J., concur.
ELLIS, BROWN and BUFORD, J.J., dissent.