Judges: BROWN, J. —
Attorneys: Oxford Cutts for Appellant;
W. W. Whitehurst, for Appellees.
Filed: Apr. 04, 1935
Latest Update: Mar. 02, 2020
Summary: This was a mortgage foreclosure case wherein *Page 590 the plea of the defendants (which was a plea in the nature of confession and avoidance) sought to avoid the lien of a homestead mortgage upon the ground that the wife never did personally appear before the officer whose certificate of acknowledgment is shown appended to the mortgage sued upon. The plea of the defendants was as follows: "COME NOW The Defendants, John C. McEwen and Virginia McEwen, in the above entitled cause, and for a plea t
Summary: This was a mortgage foreclosure case wherein *Page 590 the plea of the defendants (which was a plea in the nature of confession and avoidance) sought to avoid the lien of a homestead mortgage upon the ground that the wife never did personally appear before the officer whose certificate of acknowledgment is shown appended to the mortgage sued upon. The plea of the defendants was as follows: "COME NOW The Defendants, John C. McEwen and Virginia McEwen, in the above entitled cause, and for a plea to..
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In view of what has been said in the opinion prepared by Mr. Justice Brown as a basis for denial of petition for rehearing, and which I understand meets and expresses the views of a majority of the Court, I can not understand why or on what theory the decree of the learned Chancellor is reversed. In that decree the Chancellor says:
"Said cause being now before the court for consideration of the weight and sufficiency of the testimony in this cause upon the question of whether the Notary Public whose certificate of acknowledgment appears upon the mortgage sought to be foreclosed had jurisdiction to make such certificate by having the married woman, whose purported acknowledgment is attacked by a Plea of the defendants in this cause, present; and the court having considered the testimony, is of the opinion that the weight of the evidence in this case is in support of the Plea of the defendants, and the court is of the opinion that the testimony in this case sufficiently shows that the Notary Public who took and certified the acknowledgment upon the mortgage sought to be foreclosed did not have jurisdiction to make such certificate for the reason that Virginia McEwen, 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 and the testimony of the defendants in this cause to that effect is supported and corroborated by other circumstances which the Court has fully considered."
What more can the Chancellor say other than to insert a few adjectives in the statement of his findings which he has already made? It appears to me, as I stated in my dissenting opinion filed April 4, 1935, that the Chancellor has already determined the case in accordance with the law of the case, as enunciated in the majority opinion rendered in disposing of the case on first appeal (McEwen v. Schenck, 108 Fla. 119, 146 So. 839), but I am convinced that a rehearing would avail nothing and, therefore, am willing that it be denied.
ELLIS, J., concurs.
