Herring v. Fitts, 43 Fla. 54

Herring v. Fitts

43 Fla. 54 | Fla. | 1901

Mabry J.

(After stating the facts.)

The two controlling questions now presented for decision arise upon the respective appeals taken by parties in this case. The one presented by the appeal of defendants Louisa Fitts and her husband Wm. R. Fitts comes first in natural order, and will be first considered. We *61find that it is not free from difficulty. The court found from the evidence submitted that a mutual mistake was made as to the description of part of the land embraced in the mortgage executed by Wm. R. and Louisa Fitts to the complainant Herring, bearing date May 26th, 1890, and decreed that it be corrected and reformed so as to embrace, in addition to the lots as to which there was no question, the north half of the south half of the southeast quarter of the northwest quarter of the southeast quarter of section 8, township 17 south, range 30 east, containing two and one-half acres more or less. It will be seen by comparison that the description in the Herring mortgage before its reformation, did not include the identical parcel of land embraced in the correction. The conclusion of the court that a mutual mistake existed as to the description of the parcel of land containing two and one-half acres, must be sustained on the evidence. Some evidence of a mistake is apparent from the description inserted in the mortgage at the time of its execution. It describes a parcel of land containing ten acres, and it is stated to contain two and one-half acres, the amount included in the parcel which it is claimed the parties mutually intended should be embraced in the mortgage. The draughtsman of the mortgage testified positively that he made the mistake in the description, which it will be seen is an unusual one, on account of the shape of the parcel of land, and Wm. R. Fitts also testified that there was a mistake. In the subsequent mortgage executed by Fitts and wife to the bank, in which there is a correct description of the two and one-half acres, and also the three lots, there is a recital that it was a second mortgage “on the above described pieces of land, and subject to a mortgage thereon *62given to W. C. Herring, bearing, date May 26th, 1890.” Neither Wm. R. Fitts nor his wife owned the ten acre parcel described in the Herring mortgage, but Mrs. Fitts did own the two and one-half .acre parcel which it is claimed they designed to mortgage.

The recital in the bank mortgage that the Herring mortgage was given on the two and one-half acre parcel correctly described may not operate as an estoppel on Mrs. Fitts that such was the fact, but it contains a very deliberate declaration On her part to that effect, and, taken in connection with all the evidence in the case, sufficiently sustains the conclusion of the court that the parties mutually intended to mortgage the two and one-half acre parcel, and by mistake another parcel was included. '

The jurisdiction of the court of chancery to correct a mutual mistake when clearly shown is not questioned, and were it not for the fact that the correction in this case relates to, the land of a married woman, the matter would end without difficulty.

At common law a married woman could not either alone or by uniting' with her husband in a deed bar herself, or her heirs, of her interest in real- estate. Such a deed and her contracts generally were void, except so far as they related to her equitable separate estate and permitted by its mature and holding. The only way she could convey real estate was by uniting with her husband in the solemn proceeding in a court, of record known as a fine and recovery. This mode of conveying real estate by married women is abolished in this State, but by the constitution and statute they can mortgage or deed their interests in realty, and the mode thereby provided is said to be a substitute for the fine and recovery of the common *63law. Hart v. Sanderson’s Administrators, 18 Fla. 103. The constitution provides that “all property, real and person, of a wife owned by her before marriage or lawfully acquired afterwards by gift, devise, bequest, descent, or purchase, shall be her separate property, and the same shall not be liable for the debts .of her husband without her consent giv.en by. some instrument in writing, executed according to the law respecting conveyances by married women.” Sec. 1, Art. XI constitution of 1885. By statute a married woman may sell, convey or mortgage her real property as she might do if she were not married, provided her husband join in such sale, conveyance or mortgage, and provided she acknowledge before some officer authorized to take acknowledgements of deeds, separately and apart from her husband, that she executed the same freely and voluntarily and without compulsion, constraint, apprehension or fear of or from her' husband, and the officer’s certificate must set forth such requirements. Rev. Stats. §§ 1956, 1958. In the case before us the Herring mortgage, in reference to which there was a mistake as to the description of the land sought to be encumbered, was executed with all the formalities required by the statute and the power of the court was not invoked to perfect a defectively executed or acknowledged instrument. The decree rendered does not undertake to compel the wife to execute another mortgage, but its effect is that the instrument duly executed by the parties shall operate upon the real subject-matter that the/'parties had in mind and purpose when they made it. Our opinion is that the decision of the court was correct. Confining the decision to the facts before us, we think.that where a married woman intends to convey or *64mortgage her real estate, and to accomplish this purpose executes a proper instrument in conjunction with her husband with all the formalities required by law, but by mistake of the scrivener an erroneous description of the land is inserted contrary to the intent of the parties, a court of chancery has power to correct the mistake upon clear proof of the facts, and that in so- doing the policy and intent of our laws, in reference to the alienation of real estate by married women, are not contravened. Causing the true description to be read into the deed neither makes a new conveyance nor changes an old one; it simply makes the conveyance affective by-applying it to the property intended to be included. There is a decided conflict of authority on¡ the point under law similar to ours, and there is much weight in those holding- a contrary view to- that we adopt; but after much reflection we think they do- not announce the correct doctrine. Our conclusion is sustained by the following decisions which we think state the correct view: Hamar v. Medsker, 60 Ind. 413; Styers v. Robbins, 76 Ind. 547; Gardner v. Moore, 75 Ala. 394, S. C. 51 Am. Rep. 454; Stevens v. Holman, 112 Cal. 345, 44 Pac. Rep. 670, S. C. 53, Am. St. Rep. 216; Note to Milliams v. Hamilton, 65 Am. St. Rep. commencing on page 511. It was supposed that California had adopted a different view in the case of Leonis v. Lazzarovich, 55 Cal, 52, but if this case can be so construed it has been overruled by Savings & Loan Soc. v Meeks, 66 Cal. 371, 5 Pac. Rep. 624. and Stevens v. Holman, supra. The mortgage executed by Mrs. Fitts was not voluntary in the sense of being without consideration. It was given to secure fifteen hundred dollars which her husband received, and this, of course, was a consideration for the security.

*65The next question arises on the appeal of Herring from the portion of the decree subordinating his mortgage as corrected to that of the bank, and in this we are of opinion that the court committed an error. The bank’s mortgage, in reference to the property, contains the^ following statement: “all those lots, pieces or parcels of land lying and being in the city of DeLand, Volusia county, Florida, described as follows, to-wit: the north half of the south half (S. 1-2) of the southeast quarter (S. E. 1-4) of the northwest quarter (N. W. 1-4) of the southeast quarter (S. E. 1-4) of section eight (8), township seventeen (17) south, range thirty east, containing two and one-half acres, more or less, also lots B, C and F of block ten (10) according to map and survey of Rich’s Addition to the town (now city) of DeLand, in said county of Volusia, and State of Florida. This being a second mort gage on the above described pieces of land, and subject to a mortgage thereon given to W. C. Herring", bearing date May 26th, 1890.” It is argued for the bank that the recitation in its mortgage about its being subject to the one given to W. C. Herring refers to lots B, C and F only, and if this be incorrect there is ambiguity whether it does or not, and that, as a matter of fact disclosed by the evidence, the bank did not know of the intention to include the two and one-half acre parcel in the Herring mortgage. We do not perceive any ambiguity about the recital. It contains a clear statement that the bank’s mortgage was second on the “above described pieces of land,” — which included all that had been described in the immediate connection, with nothing to indicate the absence of any part, and that it was subject .to a mortgage thereon given to Herring on May 26th, 1890. The bank accepted this mortgage and *66is bound by its recitals and conditions. In terms it con-, tracted with the mortgagors for a second mortgage to that of Herring on the land described and the reformation of , the first mortgage does not alter the contractual relation voluntarily assumed by the second one. It does not appear that the representatives of the bank ever made any investigation or enquiry in the right direction to ascertain whether or not Herring had any mortgage claim on the land, and its mortgage clearly imparted information of this fact. It must, therefore, be accepted that the bank received its mortgage under the agreement and belief that Herring was entitled to a prior lien on the land, and as he was in fact so entitled, it would be contrary to equity to deprive him of his rights. It was held in Council Bluffs Lodge v. Billups, 67 Iowa 674, 25 N. W. Rep. 846, that where a mortgagee has notice of a first but unrecorded mortgage, which is recited in his mortgage as being a first lien, he cannot claim that his mortgage takes precedence of a new mortgage, executed after his mortgage, to correct a mistake in the description of the property in the first mortgage. This view is also sustained in Gale’s Executors v. Morris, 29 N. J., Eq. 222; Ibid. 30 N. J. Eq. 285.

There is some contention made that appellant Herring rvas guilty of laches'in not proceeding earlier to correct the mistake in his mortgage as the proof showed” he had information of it not long after his mortgage was recorded, but we do not see how the bank can complain of the delay. Its mortgage furnished unmistakable evidence that it was second and subordinate to Herring’s .on the land, and no just complaint can be made, after accepting such a mortgage, for the delay in this case.

*67The part of the decree of the chancellor correcting the description of the land in the mortgage given to W. C. Herring, bearing date May 26th, 1890, is affirmed, and the part subordinating the mortgage as reformed'to the lien of the mortgage given to the Volusia County Bank is reversed, with directions for further proceedings consistent with this opinion.