Florida Savings Bank & Real Estate Exchange v. Rivers, 36 Fla. 575

Florida Savings Bank & Real Estate Exchange v. Rivers

36 Fla. 575 | Fla. | 1895

Mabry, C. J.:

In November, 1889, a bill was filed by the appellant-bank against the appellees for the purpose of foreclosing a mortgage on a lot of land situated in the county of Duval in this State. The bill was amended after demurrer thereto was sustained for formal defects, and as amended alleged that appellees, being indebted to the bank, executed to it on the 12th of June, 1888, a promissory note for a sum of money mentioned, and to secure the same executed a mortgage on the north half of the north half of lot 182, block 2-7, in the village of Oakland, as recorded in Book E, page 443 of Duval county. The bill alleges the maturity of the note and its non-payment, and prays for a decree for *581the amount due, with interest, costs and attorney’s tees, as provided for in the mortgage.

The wife alone answered, and she denied that she was indebted to the bank in the sum of money mentioned, or that she executed the mortgage mentioned in the bill. She also alleges that she did not execute .a mortgage on the land described in the bill; that said land belonged to her in her own right, and not to her husband, and he had no interest in the same except such as he might have by virtue of the marital relation. The answer was also asked to be considered as a demurrer to the bill, and it is alleged that the mortgage was void upon its face, as will appear by the statute of this State touching conveyances of real estate.

After the testimony was taken the court dismissed the bill, and the bank has appealed.

There is no apparent defect on the face of the mortgage, and its execution by the wife is in proper form under the laws of this State. Both husband and wife signed the note, but it is conceded that the former owed the debt and executed the note. The acknowledgment of the mortgage was before. John F. Rollins, Notary Public, and J. C. Greeley testified on cross examination that when the mortgage was executed Rollins was vice-president of the bank.

The sole ground upon which the chancellor based his decree dismissing the bill is, as stated by him; that the mortgage was not executed as required by the statutes of this State. The decree states that “the evidence shows that the officer taking the acknowledgment was the vice-president of the complainant corporation, the. grantee in the mortgage, and must therefore have been a stockholder and a party in interest.” 'The conclusion reached was that the execution of the *582mortgage by the wife was void because made before an officer interested in the instrument, and as it further appeared from the evidence that the parties signing the same lived on the lot therein described as a home, it was void in toto as not being a joint conveyance of the homestead by husband and wife. If the execution or acknowledgment of the mortgage by the wife-was void for the reason stated, the other conclusion as to its effect would seem to follow. There is no direct testimony in the record that Rollins was a stockholder-in the bank, and, in fact, there is no other evidence on this subject than the statement of Greeley on cross-examination that Rollins was at the time the mortgage was executed vice-president of the bank. The conclusion of the court was, that if Rollins was vice-president he must be a stockholder, and therefore interested in the mortgage. We are of the opinion that the court was in error in concluding that because it was shown that Rollins was vice-president he was therefore a stockholder. It is alleged, and' not denied, that the bank was a corporation organized under the daws of the State of Florida, and we find no provision in the-statutes that must have been applicable to the organization of this bank requiring a vice-president to be a stockholder therein. Under the facts admitted by the-pleadings appellant must have been organized under the general incorporating acts in force prior to June, 1888,- and what its by-laws were we have no information. It is stated in Morawetz on Private Corporations (sec. 505) that ‘ ‘it is not necessary that a director-should be a shareholder also, unless this be expressly required by the company’s charter, and a director may at the same time act as secretary or managing agent, unless this be expressly prohibited.” In the case of National Fire Insurance Co. vs. Crane, 16 Md. 260, S_ *583C. 77 Am. Dec. 289, a question arose as to the right of the president and secretary of the company to testify for it under the law as it formerly existed excluding interested parties from testifying, and it was held that such officers not being stockholders could testify. It appeared that the officers mentioned had divested themselves of all shares in the company before testifying, and that the charter and by-laws did not require them to be stockholders. It was also held in Ohio that it was not necessary for .directors to be stockholders in a corporation existing under a statute requiring only that they should be residents of the State. The decision was that the statute only required the directors to be residents of the State, and in the absence of a statute requiring it, the discretion of the stockholders in electing directors was not limited to stockholders. State ex rel. vs. McDaniel, 22 .Ohio St. 354.

In the absence of any showing as to the eligibility of the vice-president required by the articles of incorporation or by-laws of the bank, we do not see that it can be assumed as matter of fact or of law that because Rollins was vice-presidsnt, he was also a stockholder. Without such assumption it can not be said that Rollins was interested in the mortgage, and his certificate of acknowledgment was for that reason void. It is clearly established that a grantee in a deed, or a party interested therein, can not take an acknowledgment of the deed. Hogans vs. Carruth, 18 Fla. 587; Tiedeman on Real Property, sec. 810. In the present case we do not deem it necessary to say what would have been the effect of the acknowledgment taken by Rollins if ic had been sufficiently shown that he was a stockholder in the bank. On the record before the *584court it was error to assume that Rollins was a stockholder, and therefore interested in the mortgage.

The case is not argued here for appellees, and as we ■find that the court erred in dismissing the bill on the ground stated, the decree will be reversed without reference to any other questions.

It is ordered accordingly.