This case has heretofore been before us on an appeal from a decree rendered in favor of the complainant in the court below, New York Life Insurance Co., 113 Fla. 678, 152 So.2d 671.
As I read the chancellor's carefully prepared opinion, rendered in connection with his final decree after the retrial of the case in the court below he had considered the question of estoppel, and he also overruled a petition for rehearing filed by the New York Life Insurance Company which was largely based upon the doctrine of estoppel. In his order overruling said petition for rehearing, the chancellor stated nothing was set forth therein which the court had not previously considered.
I think, therefore, that the only thing for us to consider on this appeal, is whether or not the record shows sufficient *Page 561 facts to estop Mrs. Oates from interposing the defense to the mortgage which was interposed.
The chancellor in his opinion commented upon the testimony and stated that it undoubtedly shows that Mrs. Oates never appeared before the Notary who took the acknowledgment, and I take it that the majority opinion does not intend or purport to overthrow this finding of the chancellor on the evidence. Under our well established rule, we would not be authorized to reverse the chancellor's findings on the facts unless they were clearly erroneous. That the chancellor was not inclined to reach this conclusion from the facts unless the evidence compelled him to do so is shown by the following quotation from his opinion:
"Very frankly, this Court does not approve of defenses of this character. It is the policy of this Court, and has been the policy of this Court in situations of this kind, wherever this Court could consistently do so without stultifying himself by findings contrary to that which he was clearly convinced the record proved, to hold such mortgage good, or in the event that he could not do so, to enforce the lien on some other theory, either by equitable lien in the case of Homestead, or a married woman's separate estate, or by subjection of the property to the payment of a debt of a married woman, where that was permissible under the record. This Court, however, has repeatedly refused to find the facts with reference to acknowledgments to the contrary to what the record clearly proves to the mind of this Court, merely in order to attempt to prevent defendants from availing themselves of such a defense. I recall distinctly that in many cases this Court has held, even though it very much hated to do so, that the wife did not appear before the notary public and that the mortgage was not validly executed, but in most, if not all cases heretofore, this *Page 562 Court has been able to enforce the payment of all, or the major portion of such indebtedness on other equitable grounds. This Court recalls especially that in the case of Virginia Oates, etal., v. Prudential Life Insurance Company, and Morrow, et al., v. Jefferson Standard Life Insurance Company, and Boynton v. Williams, three cases which went to the Supreme Court and were affirmed; this Court decided that the mortgages were not properly executed mortgages because the wife did not appear before the notary public, and the Court would have so decided, having been convinced that the record proved such to be the case, even if the Court had not been able to have enforced the payment of all, or the major portion of the indebtedness in each of said cases by record and other classes of liens. I think it would be and is the policy of all Courts where the record will permit it without stultification, to enter such decree as will preclude such defense being successfully made. Nevertheless, it is not the policy of this Court, and I do not think it is the policy of any Court, to deliberately make a finding of fact which the Court considers contrary to all the evidence, simply because some defendant interposes a defense which the Court does not approve of, but which is a perfectly valid and legal defense under the laws of our State. I have carefully considered the evidence in this cause and there can be no doubt in my mind and there is no doubt in my mind from the record in this cause, but that Mrs. Almena Oates, the wife of A.Y. Oates, one of the defendants in this cause, did not appear before the notary public who purported to take the acknowledgment of the mortgage held by the complainant in this cause. To my mind, the evidence is too clear and convincing on this point to leave any doubt in the mind of the Court." *Page 563
The chancellor evidently considered carefully every phase of the testimony.
Unless the mere signing of the mortgage by Mrs. Oates can estop her from questioning the validity of the notary public's certificate of acknowledgment upon the grounds that she never appeared before such notary, the evidence in the case as I understand it, is not sufficient to show estoppel as against Mrs. Oates. And, to hold that the mere signing of the mortgage would estop a married woman from questioning the validity of a certificate of acknowledgment which was taken by an officer before whom the party executing the mortgage never appeared, would defeat the purpose of the constitutional and statutory provisions on that subject which are referred to in the majority opinion. I think that Section 5676 C.G.L., plainly establishes a legislative policy to the effect that to render a conveyance or mortgage effectual to pass a married woman's estate or right, she must acknowledge before some officer authorized to take acknowledgments and 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 that the officer's certificate must set forth all the foregoing requirements.
Undoubtedly, a married woman can estop herself to question the validity of the certificate of acknowledgment in various ways, but the mere signing of the mortgage or deed involved, under the circumstances shown by this case, is not sufficient, in my judgment, to create such estoppel. Like the chancellor below, I do not look with favor upon defenses of the sort interposed in this case, except where the wife has plainly been imposed upon and compelled to sign a mortgage or deed against her will. But we must have respect for, and enforce, the plain provisions of our *Page 564 Constitution and statutes, and the public policy therein expressed, where, as here, the married woman took no part in the negotiation of the loan and received none of the money and where she never appeared before the notary who pretended to take her acknowledgment.
Frankly, I wish that I might reach a different conclusion but it seems to me that this conclusion is inevitable under the law and the facts in this case, and that the decree of the chancellor should therefore be affirmed.
ELLIS, J., concurs in the conclusion.
BUFORD, J., concurs specially.