Smith v. Hogan, (1934)
Court: Supreme Court of Florida
Number:
Visitors: 8
Judges: BUFORD, J. —
Attorneys: Baxter Walton, for Appellant;
R. R. Saunders, for Appellees.
Filed: Oct. 24, 1934
Latest Update: Mar. 02, 2020
Summary: The appeal before us is from a decree dismissing *Page 83 a bill of complaint in a foreclosure of mortgage suit. The defendants answering as a defense to the foreclosure alleged that the mortgage purported to encumber the homestead of the defendants and that the execution of the same was never acknowledged by the wife before a Notary Public and that she never at any time appeared before the Notary Public purporting to take the acknowledgment for the purpose of making an acknowledgment of any sor
Summary: The appeal before us is from a decree dismissing *Page 83 a bill of complaint in a foreclosure of mortgage suit. The defendants answering as a defense to the foreclosure alleged that the mortgage purported to encumber the homestead of the defendants and that the execution of the same was never acknowledged by the wife before a Notary Public and that she never at any time appeared before the Notary Public purporting to take the acknowledgment for the purpose of making an acknowledgment of any sort..
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I concur in the foregoing opinion but not in the conclusion. If the parties did not appear before a Notary who certified to the purported acknowledgment the Notary acquired no jurisdiction to make a conclusive certification against the parties, and that fact is capable of being established by the parties themselves as well as by other evidence. But the credulity of masters and Chancellors ought not to be liberally exercised in this acceptance as true as against a prima facie
valid certificate of acknowledgment constituting evidence of equal dignity contra, the unsupported denials of a husband and wife that
they did not do that which their very conduct in using an acknowledged mortgage to obtain bank credit implies that they did do, namely, appear before the officer and acknowledge the instrument. Volente non fit injuria should be applied here.
Source: CourtListener
