This cause comes before us again pursuant to a rehearing granted after the original opinion was filed herein on March 20, 1935. *Page 123
As stated in the original opinion, the suit was instituted in the court below by the appellant here seeking to vacate and have adjudicated null and void a certain purported deed conveying certain property from Cecil I. McDonald and a complainant in the court below, Mrs. Winifred Alma McDonald, to McDonald Holding Corporation, a corporation organized under the laws of the State of Florida. That opinion was written upon the theory that the conveyance by which Winifred Alma McDonald and Cecil I. McDonald ascertained the property conveyed to them an estate by the entireties and, therefore, the question of whether or not the complainant in the court below acknowledged the execution of the deed to and in the presence of the notary public purporting to take the acknowledgment was a material and controlling factor.
Upon rehearing, it is brought to our attention that the record without contradiction shows that insofar as the title to the following described property, to-wit:
"Lots 1 to 7 inclusive, Nora V. Haynes' Subdivision, as recorded in Map Book 2, Page 176, Volusia County records, the above property is a subdivision of that property lying East of Beach Street and of Lots 1, 2 and 3, Block 1, Hodgman's Daytona, according to Map Book 2, Page 82, Volusia County Records, and also beginning at a point in the East line of Beach Street where the North line of Lot 1, Block 60, Daytona, would intersect same when extended Easterly across said Beach Street; Thence running Easterly along the extended North Line of Lot 1, Block 60, 300 feet more or less, to the water or shore line of marsh; Thence running in a southerly direction along said shore line of marsh to a point in said shore line where it would be intersected by the Easterly extended South line of Lot 1, Block 60, a distance of about 118 feet; thence running Westerly along the Easterly *Page 124 extended South line of Lot 1, Block 60, 300 feet, more or less, to East line of Beach Street; thence Northerly along said East line of Beach Street 118 feet to place of beginning, as per Map in Deed Book 1, page 704, public records of Volusia County, Florida. It being intended to convey a strip of land one hundred and eighteen feet wide running from East line of Beach Street to water line of marsh in the unsurveyed marsh land lying in front of said Lot one (1) Block Sixty (60) of Higbee's Addition to Daytona (Volusia County, Florida, and of record in said Court, excepting, however, insofar as that portion of the immediately above described property, to-wit:
"Beginning at a point in the East line of South Beach Street, where the South line of Lot 1, Block 60, of Daytona, Florida, would intersect the same where extended Easterly across said Beach Street; thence from that point running Easterly along the extended South line of Lot 1, Block 60, 125 feet to a point; thence running Northerly 60 feet to a point; thence running Westerly 125 feet to a point in Beach Street; thence running Southerly along the Easterly side of Beach Street 60 feet, more or less to the place of beginning, it being intended to convey a strip of land approximately 60 feet wide by 125 feet deep, of the unsurveyed marsh land lying in front of said Lot 1, Block 60, being a portion of the land conveyed by Harriett L. Higby, to E.T. Conrad and recorded in Deed Book 35, page 45, of the Public Records of Volusia County, Florida, said land being a portion of Higbee's Daytona, map of which is on record in the public records of Volusia County, Florida,"
is concerned, it was conveyed by Charles M. McDonald and Maggie McDonald his wife, by deed executed on the 19th day of September, 1927, to Cecil I. McDonald and Winifred Alma McDonald for the sole purpose of having the title *Page 125 rest in the grantees until such time as it could be reconveyed without intervention of creditors to Charles M. McDonald and his wife, Maggie McDonald, the grantors. That it was never intended between the parties to pass the beneficial interest in the property to Cecil I. McDonald and his wife, Winifred Alma McDonald and that the property was to be reconveyed on demand by the grantees to the grantors. That while the property was so held by Cecil I. McDonald and wife, Charles M. McDonald died and left surviving him as his only heirs at law his wife, Maggie McDonald and his son, Cecil I. McDonald. That after the death of Charles M. McDonald, Cecil I. McDonald and his mother, Maggie McDonald, organized a corporation called the McDonald Holding Corporation for the purpose of taking over the assets of the estate of Charles M. McDonald.
It is further shown that the conveyance here involved was for the purpose of returning to the estate of Charles M. McDonald the property which had been deeded by Charles M. McDonald and wife to Cecil I. McDonald and wife under the terms and conditions above mentioned. Under this state of facts Section 3803 R.G.S., 5676, C.G.L., is inapplicable, as is also Section 1, of Article XI of the Constitution. Mrs. McDonald did not hold the property either as her separate estate nor did she have in it any rights under the deed from Charles M. McDonald and Maggie McDonald except the rights of one holding in trust for the grantors. It was her duty under the terms of the argument by which the conveyance was made to Mrs. McDonald and her husband to reconvey the property on demand. It is shown conclusively that no consideration passed for the making of either of the deeds involved.
Aside from this, we are forced to the conclusion that the Chancellor was authorized to consider the certificate of *Page 126 the Notary Public as evidence of the contents thereof and that prima facie that certificate was valid and in contradiction of that he was authorized to consider the testimony of Mrs. McDonald to the effect that the Notary Public did not have jurisdiction to take her acknowledgment because she did not appear before the Notary Public and did not at any time acknowledge the execution of the instrument before the Notary Public and that, therefore, the Notary Public never acquired jurisdiction to make and execute the acknowledgment.
While the record leads us to strongly suspect, and probably warrants the belief, that Mrs. McDonald did not in fact appear before the Notary Public, this was a question which was presented to the Chancellor and which he determined, upon consideration of the evidence presented by the certificate itself and upon the evidence given by Mrs. McDonald, adversely to Mrs. McDonald. The rule is too well settled that this Court will not disturb the findings of the Chancellor on questions of fact upon conflicting evidence, unless it is made clearly to appear that the findings of the Chancellor are erroneous, for us to now disregard the findings of the Chancellor in this behalf.
For the reasons stated, we now, therefore, recede from the opinion and judgment filed herein on March 20, 1935, and affirm the decree of the Chancellor.
It is so ordered.
WHITFIELD, C.J., and TERRELL, BROWN and DAVIS, J.J., concur.
BROWN, J., concurs in the conclusion.
ON FURTHER REHEARING