34 Fla. 589 | Fla. | 1894
' The first two assignments of error on the appeal in ■•this case are, (1) ‘ ‘that the chancellor erred in rendering said decree for the reason that neither the pleadings nor the evidence show that the debt with which ■Minnie Halle’s property is charged is the purchase price of said property, or that said debt was due upon ..•any agreement in writing made by said defendant . Minnie Halle for the benefit of her separate property,
The second section of Article XI of the Constitution •of 1885, provides that “a married woman’s separate
In the case of Dollner, Potter & Co. vs. Snow, 16 Fla., 86, a liability was sought to be imposed by personal judgment in an action at law against married women on a note executed for the purchase money- of real estate bought by them. The distinction between a married woman’s equitable separate estate, and her statutory separate property was pointed out, and it was held that neither the Constitution of 1868, nor the statute of 1845, enabled her to bind her person, either at law or in equity, by contract, or to authorize a suit against her at law. It was also held that neither the Constitution nor the statute prohibited the wife from acquiring, since their enactment, such a separate estate-as was recognized and known before their existence, and that no restriction was imposed by them on the-
It is contended for appellants, in the first place, that whatever may have been the rule in this State on the subject of charging a married woman’s separate property in equity for her debts prior to the adoption of the Constitution of 1885, since that time the right to proceed in that court to subject her property for debt is controlled by that instrument; and, in the second place, conceding that under the constitution a married woman’s separate property, both real and personal, may be charged in equity for the purchase money thereof, or that her said property may likewise be charged for money or thing due upon any agreement
The bill, as an entirety, sufficiently alleges that the wife, Minne Halle, was possessed of personal and real statutory property. The averments in the first part of the bill as to the character of the personal property are not distinct, but it does appear in connection with the allegation as to the real estate that both were her separate statutory property. The admissions in the pleadings and proof show, we think, that Mrs. Halle was possessed of separate statutory personal property in the city of Jacksonville, and that she owed for the goods specified in the account attached to the bill. She conducted a mercantile business in her own name, bought goods and paid for them, and,
There is still another error in the decree rendered. It was adjudged that Philip Halle pay the sum of $436.25. There is nothing in the pleadings or proof to show any liability on his part to pay for the goods. It is distinctly alleged and shown that the goods were sold to Mrs. Halle on her sole credit, and not on the credit of her husband, and there is no showing that he ever in any way promised to pay for the goods.
There is a further contention here that the decree was erroneous because Mrs. Halle was the head of a family and entitled to a homestead exemption out of the real estate. This claim of exemption was set up in the answer, but it vanishes entirely in view of the fact that there is not a particle of evidence upon which to base
What we have said is sufficient to dispose of the assignments of error made. The decree, in so far as it orders a sale of the real estate therein mentioned and directs a personal liability against the husband, Philip TIalle, is erroneous for the reasons assigned, but was proper to the extent of ordering a sale of the separate statutory personal property of the wife, Minnie Halle, to pay the claim of appellee and costs of suit; and as it is within the power of this court to modify here a decree in chancery by eliminating errors therefrom (Garvin vs. Watkins, supra), an order will be entered modifying the decree appealed from so as t® include a sale only of the said personal property therein described to pay the amount decreed in favor of appellee and costs of suit.
Order to be entered accordingly.