114 F. 284 | 5th Cir. | 1902
Dissenting Opinion
(dissenting). The bill in this cause was filed to foreclose two mortgages executed by appellees. One of these bears date August 24,1887; the other, February 23, 1893. The latter was executed upon an agreement for extension of time for payment of the original debt secured by the former. Both were designed to create a lien upon lands in Marion county, Fla.
The answer “admits the giving of” both these mortgages by the appellees, but defense is made as to the original one, of August 24, 1887, based exclusively upon the alleged facts that the property therein described was held by M. Julia Dickenson as her separate statutory property, she being at the time and ever since a married woman; that this mortgage was never executed and acknowledged as required by the state laws relating to the conveyances of such property; that the acknowledgment was “illegal, null, and void,” because taken in Marion county, Fla., by a notary public of the adjoining county of Alachua, this notary having been appointed for the latter county only. This is the only ground upon which the mortgage was assailed or the suit resisted, and is the only ground upon which the court below refused to decree appellants the substantial relief demanded.
January x, 1901, the learned special master, in his report against the right of the appellants to recover in this case, concluded as follows:
“In the case presented here we find a lady signing the mortgage with her husband in the presence of witnesses, making a declaration in writing under her own hand declaring that the officer who took her acknowledgment was an officer of the county in which she lived, and permitting complainants to go for years under the apprehension that this declaration was true, when the fact is when the lien is undertaken to be enforced she then discloses that this same officer was not the officer that she had previously declared that he was, and that he was an officer of another county, and it is to be presumed that he had simply gone across the border line of the two adjoining counties to her home for her convenience and accommodation, and took this acknowledgment. The authorities seem to sustain, however, just such transactions as this. W. S. Bullock, Special Master in Chancery.
“January 1, 1901.”
In his opinion confirming the master’s report, filed February 23, 1901, the learned judge of the circuit court admits the hardships of the case. The legislature of'the state seems also to have been advised of the injustice in this and perhaps other cases; for on the 22d of May, 1901, following, it enacted a law, which was approved and went into
As in the instant case, there is no dispute that the only irregularity in the whole transaction was and is that a duly qualified notary for Alachua county only took the acknowledgment of Mrs. M. Julia Dickenson in Marion county; and as it is admitted that this was done in good faith, and as the act is broad and full enough to cover the present case, I am of opinion that the legislative act aforesaid fully ratified and legalized such acknowledgment; and as the irregularity of this acknowledgment is the only ground upon which this court relieves Mrs. M. Julia Dickenson from the obligations of an honest contract, honestly entered into by all the parties, I enter my dissent.
There can be no doubt that the legislature by ratification may make valid any act which it had authority to previously authorize. I can see 110 reason why a ratifying act may not be available in the interest of justice, on appeal or writ of error, and there' are respectable authorities to that effect. Underwood v. Lilly, 10 Serg. & R. 97; King v. Course, 25 Ind. 202. I have no doubt the authorities can be multiplied on research.
And there is another feature of this ease which justifies some mention. The second mortgage, by and between the same parties, dated February 23, 1893, recites the first, and the indebtedness thereunder, acknowledging its full effect, and the said second mortgage was given to procure an extension of time for the payment of the indebtedness. This mortgage was regularly acknowledged according to the strictest requirements of the state law, and, among other things, it contains this provision:
“It is furtlier agreed that a failure to pay the taxes aforesaid or any part thereof, or of failure to pay the said debt or any part thereof, or of any interest due thereon, shall render the foreclosure of this mortgage and the said former mortgage liable to a foreclosure for the whole of the said debt, or for such part thereof, at the election of the mortgagors or their assigns.”
Except for the peculiar favor which it is claimed should be extended to married women, the second mortgage in this case would be held to estop Mrs. M. Julia Dickenson from setting up any irregularity in the acknowledgment of the first mortgage in any and all courts where decrees are rendered in accordance with equity and good conscience.
Lead Opinion
A majority of this court are of opinion that there is no reversible error in the record, and they approve the conclusions of the judge presiding in the circuit court, as shown by his opinion in the record.
Affirmed.