Lieberman v. Burley

KANNER, Chief Judge.

This suit was for the foreclosure of a mortgage against homestead property. There were no subscribing witnesses to the execution of the mortgage. The appellees asserted the defense that the mortgage was defective and insufficient to encumber the homestead property because there were no witnesses to the signatures of the mortgagors. There is no dispute as to the facts. The chancellor ruled that this defense was complete as a bar against the foreclosure proceeding. The appeal is from that order.

The sole question presented by this appeal is whether the lack of two subscribing witnesses to the execution of the mortgage prevents its enforcement against the homestead property.

The question has been resolved. The party or parties making a mortgage on homestead property must sign it in the presence of two subscribing witnesses, and unless so executed the mortgage can not be enforced against the homestead in the absence of an estoppel. Estoppel is not here raised. See Perry v. Beckerman, Fla.1957, 97 So.2d 860, 862; Article X, section 4, Constitution of the State of Florida, F.S.A.; .and section 689.01, Florida Statutes, 1955, F.S.A.

The order of the chancellor is hereby .affirmed.

ALLEN, J., and SMITH, CULVER, A. J., concur.