18 Fla. 103 | Fla. | 1881
delivered the opinion of the court.
This is the second appeal in this case. Upon the former appeal the decree of the Circuit Court was reversed, and the case remanded for further proceedings.
A statement of the case then before the court- will be seen by reference to 16 Fla., 267.
The cause being remanded, the plaintiffs, who are respondents here, set the cause down for hearing upon the bill and the plea and answer in support thereof, and the cause came on to be heard on the 14th of May, 1879. After argument of counsel the defendant asked leave to amend her answer. The court heard the motion and denied it. Afterwards, upon a hearing upon the bill, plea and answer in support thereof, the court held that the plea and answer set up no defence, and, after decree of reference to a master and proceedings before him, the relief prayed by the bill was decreed.
The first ground upon which a reversal of the decree is here sought is the refusal of the court to permit the amended answer to be filed.
The bill is to foreclose a mortgage of land, executed by husband and wife, in the execution of which both the husband and wife joined.
In the mortgage they “ waived all benefit of exemption and homestead,” and stipulated that the “ same shall never; be claimed to the prejudice of the grantees, their successors or assigns.” In the separate and private examination of the wife she acknowledged that she “ made herself a party to and executed the foregoing deed of mortgage for the purpose of conveying and mortgaging all of her estate in esse and in futuro in the lands therein described.”
The original plea set up a claim of homestead. The answer in support of the plea admits the execution of the.
What are the circumstances under which this amended answer is sought to be filed ?
It is after a final decree, appeal therefrom, reversal of the decree, a remanding of the cause for hearing upon the plea and answer originally filed, after the cause being set down for hearing, and after the expiration of nearly four years from the filing of the original answer.
No reason is given for this delay, and no averment is made that all the facts set forth in the proposed amended
The application here made was addressed to the discretion of the court, for according to no known rule of practice controlling the subject did the defendant have a right to amend at this stage of the proceedings and under the circumstances stated. The general rule is that an amendment to a sworn answer by the addition of material facts known to the defendant at the time the original answer was sworn to, will not be permitted on a final hearing, (23 N. J. Eq., 498; 1 Daniell Chy. Prac., 778, 780,) and certainly the rule must apply to this case where there had been a final hearing, an appeal, a reversal of the decree, and a remanding of the case.
In Smith vs. Babcock, 3 Sum., 585, Mr. Justice Story said: “ It seems to me that before any court of equity should allow such amended answers, it should be perfectly satisfied that the reasons assigned for the application are cogent and satisfactory; that the mistakes to be corrected, or the facts to be added, are made highly probably, if not certain ; that they are material to the merits of the case in controversy; that the party has not been guilty of gross negligence, and that the mistakes have been ascertained and the new facts have come to the knowledge of the party since the original answer was put in and sworn to.”
In this case we do not see that the amended answer sets up such facts as are material to the defence. In other words, what is proposed to be set up by way of amended answer does not constitute a good defence. The original answer sets up that while she executed the deed and the acknowledgment that its execution was her voluntary act, still she did not thus act voluntarily, but
In the case of Kerr vs. Russell, 69 Ill., 670, Mr. Justice Breese, speaking for the court, said : “ The unsupported testimony of a party to a deed that he did not execute it shall not prevail over the official certificate of the officer taking the acknowledgment. Public policy, the security of titles, the peace, of society, demand such a rule and a strict adherence to it. This court has often said that the provision of the law authorizing a Justice of the Peace,- or other designated officer, to take the private examination of the wife was designed as a substitute for the proceedings at
In the case of the Singer Manufacturing Company vs. Rook, et ux., 84 Pen. State, 442, the Supreme Court of Pennsylvania state the law to be that “ where a married woman joins her husband in a mortgage to encumber her separate estate as to a bona fide mortgagee for value, without notice of fraud or imposition in the procurement of the execution of such instrument, the certificate of the magistrate who takes the acknowledgment is conclusive of every material
Accepting the law as thus stated, this proposed amended answer set up no meritorious defence, and for this alone the court could have properly refused permission to file it.
The only other action of the court which the record presents for our consideration is the final decree made upon the bill, the plea and answer in support of the plea. The appellant here discusses the case as though it were the case of a hearing upon bill and answer. The hearing was had upon bill, plea and answer in support of the plea. The rule in such heai’ings is that every fact stated in the bill, and not denied by the averments in the plea, or by the answer in support of the plea, must be taken as true. Hart’s Extrx. vs. Sanderson’s Admrs., 16 Fla., 267, and cases there cited. This is the rule as to facts stated in the bill and not denied by the plea or answer, and as to the facts stated in the plea and answer, they must be taken to be true as pleaded.
Now, neither the plea nor the answer in this case denies the execution of the mortgage or the acknowledgment by defendant. The result of this is that such execution is admitted. Indeed, the defendant admits such execution expressly. Not only is this true, but (except as to the allegation that the money, to secure which the mortgage was given, was expended upon the mortgaged premises, which is denied,) the case as stated by the bill, that is the facts set up and properly pleaded, are admitted by the plea and answer ; the plea and answer proposing to set up matter constituting a sufficient reason why the plaintiff should not
Now, the plea here sets up that the mortgaged premises were the homestead of the mortgagor; 'that the defendant was the wife of the mortgagor; that he was dead; that she has an interest as his heir-at-law, and that she was the executrix of his will; that said premises have been occupied as a homestead since-his death, and that no part of the money borrowed was used in the purchase of or to improve the premises. The answer in support of this plea, while admitting the execution of the mortgage deed and acknowledgment, makes the same denial as to the use of the moneys, and she affirms therein that her action in the matter of the execution of the mortgage and acknowledgment was not free and voluntary, but that while no actual force was employed she had a well-grounded apprehension and fear that unless she signed the same the peace and happiness of her marriage relation with her husband would be materially disturbed, and that this, her apprehension, was known to her husband.
"We have already seen that wffiat is here alleged as to an acknowledgment and relinquishment of dower upon examination, as required by the statute, constitutes no defence where there is such a relinquishment as conforms to the statute.
Is there such a relinquishment here ?
This question is not expressly raised by the plea and answer, nor is there any cross-bill; still it arises upon the face of the bill, and exhibits thereto. But however this maybe in view of the conclusion we reach, neither the defendant nor plaintiff can wTell complain, as the defendant.argues the question generally ; and the plaintiff cannot well do so, the conclusion of the court being in his favor. The mort
The statute does not require that the terms “ relinquishment of dower ” shall be contained in the deed which is signed, or the acknowledgment which is made, in order that a good and sufficient relinquishment of dower may be made. The statute provides that dower may be extinguished by the wife making herself a party to the deed for the purpose of relinquishing the same, accompanied by an acknowledgment, made separate and apart from her husband, that the relinquishment and renunciation of dower is made freely, &c.
In this case the wife makes herself a party to the deed, signs it, and acknowledges, upon an examination made under the statute, that she executed the deed “ for the purpose of conveying and mortgaging all of my (her) estate in esse and in futuro in the lands therein described.”
The Supreme Court of the United States, 5 Wall., 807, states the rule in reference to the private examination of a feme covert to be that equivalent words, or words which convey the same meaning, may be used instead of those to be found in the statute. See also 3 Ohio, 153. This is in reference to the words used as descriptive of the manner of making the acknowledgment, but we see no good reason for the application of a different or other rule when the extent and nature of the estate conveyed is considered, and certainly in this case the wife must have known that she intended to part with all her interest when she says that
The only other remaining questions in this case are whether, after the express waiver of all right of homestead by the husband and wife, and their joint deed of mortgage, a sale under a decree in equity is a “ forced sale,” and whether there has been an alienation of this real estate by the joint consent of the husband and wife, within the meaning of the Constitution.
The first question, we think, has in principle been settled by this court in the case of Patterson vs. Taylor and Randall, 15 Fla., 337. A sale under a mortgage of personal property was there held not to be a forced sale within the meaning of the Constitution. In this case we have not simply a mortgage, as in that case, but we have each of these parties, husband and wife, expressly waiving in their deed “ all benefit of exemption and homestead,” and a stipulation “ that the same ” (the land) “ shall never be claimed to the prejudice of the grantees.” Certainly, when they thus expressly contract, a court ■ of equity will not assist them in interposing an obstacle to the recovery of this money. ... ' .
An individual cannot be said to. have been compelled to do an act when it is' the result of his own express agreement. • The view, as expressed, by this court, is that a sale- resulting from contract, a mortgage in the case referred to, while it may be a sale under process of law, is not a forced sale within the meaning of the Constitution, and that without any express waiver of homestead exemption in that case. That view, we think, is correct. The framers of the Constitution, we think, never intended to restrict the right of the owner of property to an absolute and clear-sale of his inT
We think, for the reasons stated, that the sale here decreed is not a forced sale. Has there been such consent to an alienation as the Constitution contemplates ? To this mortgage the wife has made herself a party; she has therefore consented to it. There is nothing in the Constitution or the statutes requiring any separate examination of the wife in order to evidence such consent. She has, by virtue of her power to refuse assent to an alienation, no estate in the land, (46 Wis., 683;) and this assent is certainly shown by her joining in the deed.' She has, under her hand and seal, solemnly given her consent jointly with her husband, and this' is sufficient.
It remains to consider the effect and purpose of the word “ alienable,” as used in the Constitution in the connection in which it is found. The provision is that the “ real estate ” (meaning' real estate constituting the homestead) “ shall not be alienable without the joint consent of husband and wife.” It’ follows the exemption from “ forced sale.”
This provision is simply a restriction upon an admitted
In conclusion we will remark that the Constitution having expressly contemplated the power to mortgage according to a fair construction of the power to “ alienate,” the terms “ forced sale,” which, to say the least, are indefinite and uncertain, should be controlled to some extent by the obvious meaning of the other portion of this clause. To construe the Constitution so as to confer or admit a power to mortgage, and at the same time prohibit a sale under a decree to sell- under such mortgage, cannot be sanctioned by any proper rule of construction. Such a construction is absurd. One or the other of these propositions is wrong, and there is less doubt that the term alienable confers or admits a power to mortgage than there is that the terms “ forced sale ’’'should be restricted to sales involving no assent by contract, referable to the special property to be sold.
We have discussed the question of homestead exemption in the light of the argument and of the pleadings in this case. We do not, however, see clearly how the widow, where there is a will, either as widow or executrix, in view
The decree is affirmed.