Morris Et Ux. v. Shepard

Buford, C.J.

—This was a suit to foreclose a mortgage alleged to have been made, executed and delivered by husband and wife. The defense interposed was in effect that the mortgage embraced homestead property and that the wife had not acknowledged the execution of the mortgage, as is required by section 3803 R. G. S., 5676 C. G. L. The mortgage appears upon its face to have been regularly and legally executed and acknowledged. The Chancellor found in favor of the complainants and rendered his decree accordingly, from which order appeal was taken.

The defendants both testified that the wife did not appear before the notary public and acknowledge the execution of the mortgage at the time at which she signed the same, or at any other time. A stipulation between counsel is to the effect that the notary public had no independent recollection of having taken the acknowledgment; that she attached certificates of acknowledgment to various papers executed by the defendants, some of which were acknowledged before her by the wife and others were not. There were no other witnesses called to testify in regard to the acknowledgment.

It appears that the chancellor in entering his decree followed the rule enunciated by this Court in Herald vs. Hardin, 95 Fla. 889 , 116 Sou. 863 , and cases there cited. Under the facts disclosed by the record the chancellor was warranted in so doing and the decree should be affirmed. It is so ordered.

Affirmed.

Ellis and Brown, J.J., concur.

■Whitfield, P.J., and Terrell and Davis, J.J., concur in the opinion and judgment.