On petition for rehearing, it is contended that the opinion of the Court heretofore rendered lays down the rule that the testimony of the parties alone cannot be sufficient to overcome the recitals in the certificate of acknowledgment of the jurisdictional fact of the acknowledging party's personal appearance before the officer, and that this holding is erroneous and not sustained by our previous decisions.
I do not so understand the meaning and effect of the opinion concurred in by a majority of the Court in this case. It was not the intention of the Court, in the opinion written by Mr. Justice DAVIS, and concurred in by a majority of the Court, as I understand that opinion, to hold that in no case could the testimony of the parties to the instrument be accepted as sufficient to prove that the certificating officer was without jurisdiction to take the acknowledgment because of the fact that the party or parties whose acknowledgment he is supposed to have taken was not as a matter of fact personally present before him.
The gist of the opinion is that an acknowledgment certified by a duly authorized officer, valid and regular on its face, is presumptively valid and sufficient, and that where *Page 606 it is sought to be impeached on the ground that the officer was without jurisdiction because the party in fact never appeared before him, this can only be done by clear, convincing and satisfactory evidence, "whether by the parties alone or otherwise," thus applying the same rule that is well established where a sheriff's return, made under the sanction of his official oath and responsibility, is sought to be impeached.
In the petition for rehearing, counsel for appellees contend that the majority opinion of the Court in this case fails to distinguish between the class of cases involving an attack upon the truth of the facts certified to in the acknowledgment, other than the jurisdictional fact of the presence of the parties before the officer who took the acknowledgment, and that class of cases where the presence vel non of the party before the officer taking the acknowledgment is involved, and that this confusion of the two classes of cases has resulted in the holding in this case that the testimony of the parties to the instrument is presumed to be rebutted by the recitals in the certificate of the acknowledgment without excepting the judicial fact of the presence of the parties, thereby predetermining the weight and sufficiency of the evidence of the parties in a reconsideration of the cause by the lower court.
While there are some clauses in the opinion which standing alone, and segregated from their context might possibly lead to this impression, I do not think that the able opinion of Mr. Justice DAVIS, expressing the view of a majority of the court, when considered as a whole, is subject to this criticism. The following quotation from the opinion of Mr. Justice DAVIS, I think, disposes of this contention:
"The certificate of acknowledgment of an officer as to the acknowledgment of a deed of conveyance or mortgage *Page 607 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. Green v. First Nat. Bank, supra; Shen v. Robinson, 18, Fla. 397. But the foregoing rule of law applies only to a certificate made under circumstances when the party acknowledging and the instrument acknowledged were admittedly before the officer so as to give him jurisdiction. As a corollary to the foregoing rule is the rule announced in Herald v. Hardin, 95 Fla. 889, 116 So.2d 865, relating to the character and weight of evidence required to impeach a certificate of acknowledgment made within the rule."
"The rule declared in Herald v. Hardin, supra, is to the effect that, as a matter of evidence, the testimony of the parties alone is not to be regarded as legally satisfactory and sufficient to overthrow a prima facie valid certificate of acknowledgment to a deed or mortgage purporting to have been executed and acknowledged by such parties in accordance with law. The stated rule is in line with the overwhelming weight of authority on the subject, and has never been expressly or impliedly overruled in this state. On the contrary, it has been often followed and applied in this jurisdiction." (Citing numerous cases.)
"The rule of Herald v. Hardin, supra, is not, however, a rule of law applicable where there is an issue raised as to the officer's jurisdiction to take the acknowledgment certified to. It does not, as the Chancellor decided in his first decree in this case (which we reversed for that reason) *Page 608 amount to a rule of law constituting a legal estoppel that closes out of all consideration the evidence of the parties alone as to whether or not they in fact ever appeared before the acknowledging officer. On the contrary, the rule for deciding an issue of jurisdiction on as against the jurisdictional recitals of a certificate of acknowledgment is analogous to that which obtains when an attempt is made to defeat jurisdiction over a party's person by impeaching a sheriff's return showing the service of process on such party. It is generally held that where a sheriff's return has been made under the sanction of the officer's official oath and responsibility, it cannot be impeached except by clear, convincing evidence, whether by the parties alone or otherwise."
There is much to be said in behalf of appellees' contention that on the findings of fact already made by the Chancellor, the decree appealed from should be now affirmed, but the majority of the Court are of the opinion, that, without attempting in any way to influence the Chancellor's action, it is proper and advisable under all the circumstances to remand the cause for a reconsideration by the Chancellor in the light of the rules of law announced in the opinion. If, after having so done, the Chancellor reaches the conclusion that the evidence in this case in support of the plea of the defendants, is clear, convincing and satisfactory to the effect that the notary public who took the acknowledgment upon the mortgage sought to be foreclosed did not have jurisdiction to make such certificate for the reason that the wife of the defendant, John C. McEwen, was never in the presence of such officer for the purpose of acknowledging the execution of such mortgage, the Chancellor would of course render a decree to the same effect as the one appealed from; but if he does not so find, his decree *Page 609 of course should be to the contrary and the foreclosure case should proceed.
I concur therefore with the majority in holding that the petition for rehearing should be denied.
WHITFIELD, C. J., and TERRELL, and DAVIS, J. J., concur.
ELLIS, and BUFORD, J. J., concur specially.