Smith v. McEwen, Et Ux.

I concur in the statement of fact relating to the proceedings in this case, and views expressed by Mr. Justice BUFORD in his dissenting opinion.

I admit that a certificate of acknowledgment of the execution of a deed by a married woman as made by a duly appointed notary public, whose commission has not expired and who has not vacated the office, carries with it prima facie verity as to the jurisdictional fact of the presence of the married woman before the notarial officer when the recited acknowledgment occurs; that prima facie verity of the certificate of the officer as to the factual recitation showing jurisdiction, that is to say, presence of the married woman before him; derives its quality of verity from the seal of the officer and from the mere fact that the officer is under oath when he makes the certificate. Obviously, therefore, his subsequent oath as a witness when he testifies that the married woman did in fact appear before him as recited in the certificate does not and cannot add one iota of proof to the existence of the fact recited in the certificate. There is no more virtue in two oaths by the officer than in one.

The rule is that the certificate with the seal of office is usually prima facie evidence of the facts stated. See Fogarty v. Finlay, 10 Cal. 239, 70 Am. Dec. 714.

The presumption thus raised, however, is not conclusive but may be rebutted by any competent evidence showing that the certificate is false. See Moore v. Hopkins, 83 Cal. 270, 23 Pac. Rep. 318, 17 A. S. R. 248. *Page 602

In Minor v. State, 55 Fla. 77, 46 So.2d Rep. 297, this Court said: "Whatever sanctity may be attached to a notary's certificate, where one is authorized by law to be made, we know of no authority which attaches sanctity to an alleged extra-judicial affidavit such as the one we are considering."

This Court has held that a notary's certificate of acknowledgment of the execution of a deed is a quasi judicial act, but before the Certificate of acknowledgment becomes conclusive, except as to an attack on the ground of fraud or duress, the person executing the instrument and the instrument must be in fact before the officer. See Green v. First Nat. Bank, 85 Fla. 51, 95 So.2d Rep. 231; Randall v. Twitchell,98 Fla. 559, 124 So.2d Rep. 21; Hall v. Forman, 94 Fla. 682, 114 So.2d Rep. 560; Bank of Jennings v. Jennings, 71 Fla. 145, 71 So.2d Rep. 31.

When the jurisdictional fact is established the remainder of the certificate is the certificate of acknowledgment. To that part of the certificate the words of this Court apply that the certificate in the absence of fraud is conclusive and the attack upon it for fraud or duress must be sustained by clear and convincing evidence before it is effective, but they do not apply to the recitation of the fact of the presence of the person executing the instrument.

In the case of Van Eepoel Real Estate Co. v. Sarasota Milk Co., 100 Fla. 438, 129 So.2d Rep. 892, this Court recognized that distinction in saying that "when the notary acts within his jurisdiction" his certificate of acknowledgment is conclusive of the facts and acts recited and cannot be questioned collaterally. See 1 Devlin on Deeds, 3 Ed. Sec. 532; Borland v. Walrath, 35 Iowa 130.

The issue of fact was duly presented by the plea. The presence of Mrs. McEwen before the notary was denied. *Page 603 That plea was supported by both her testimony and that of her husband and corroborated by the circumstance that the ink in the writing was of a different color from that used by her usually.

The Chancellor found from the evidence presented that the notary did not have jurisdiction of the parties when the purported acknowledgment was made. The record does not disclose that the Chancellor erred. Therefore his finding and decree should not be disturbed. I think the decree should be affirmed.

BUFORD, J., concurs.