73 Fla. 159 | Fla. | 1917
In January, 1915, the Ocklawaha River Farms Company, a corporation, exhibited its bill in chan
The bill as amended alleges in substance that the complainant is “seized and possessed of a fee simple estate” in certain lands located in Marion County, and that it acquired the lands in 1913 under a deed of conveyance from Z. C. Chambliss, Trustee, for the defendants Young and Kyle; that Chambliss as Trustee acquired the lands under a warranty deed from Young and Kyle and their wives, and that Young and Kyle acquired the lands from Ru.by C. Connor and her husband Claude E. Connor by warranty deed in 1909. That complainant has been in possession of the lands since the Spring of 1913, and has expended a large sum of money on them in improvements; that on March 23, 1908, Ruby C. Connor, who
The original bill alleges that in July, 1910, Elliott in order to defeat the purpose of the suit brought by Ruby Connor by her next friend J. D. Young against Elliott and Connor her husband, undertook to convey the lands to the Alabama City Land & Development Company for an expressed consideration of ten thousand dollars. This deed however was not recorded until March 16, 19x2. It was alleged that the Alabama City Land & Develoment Company was dominated and controlled by Elliott, and the deed to it was an attempt by Elliott to perpetrate a fraud on Ruby C. Connor; that the deed was not made .until after the decree in the suit of Ruby Connor ag'ainst Connor and Elliott was affirmed by this court, and after Elliott had lost an ejectment suit against Mrs. Connor and her husband involving the same lands, decided in December, 1909; that before Elliott took any steps to take or obtain possession of the lands Young and Kyle had expended a large sum of money bn the lands in the work of reclamation that the deed from Elliott to the Alabama City Land & Development Company was without consideration, and the deeds from the Connors to Elliott in 1908 were intended merely as security for any proper debt then owing from Connor to Elliott.
It is alleged that Elliott died in November, 1914; that his will was duly probated and letters'testamentary execute^ to the defendant Nena Kyle Elliott.
It is insistéd, and the bill so charges, that the deeds
A demurrer was interposed to the bill upon the grounds that the facts stated did not render the deeds from the Connors to Elliott void; that the complainánt did not offer to do equity, and there was no equity in the bill. The demurrer was sustained, and this appeal was taken from the order sustaining the demurrer.
The controversy in this case arises upon two points: First, whether the deeds from Ruby 0. Connor and her husband to J. 'M. Elliott Jr. executed in March, 1908, were void under Article XI of the Constitution of 1885, as being voluntary and without consideration and because they do not contain an expressed consent of Ruby C. Con-nor that the lands therein described shall be liable for the debt which the instruments were given to secure. Incidental to this point arises the further question whether the amount secured by the deeds, if they are valid, is not limited by the consideration named therein, namely, five thousand dollars.
Second, does the conduct of J. M. Elliott Jr. since the execution of the deeds to him by Ruby C. Connor and her husband in 1908 render them void as to the complainants under Section 2514 of the General Statutes of Florida ?
The bill alleges that the deeds from the Connors to Elliott, executed in 1908, were given for the purpose of ' securing the payment of money, and if they had any binding effect constituted a mortgage.
In the case of Connor v. Connor, 59 Fla. 467, 52 South. Rep. 727, Mrs. Connor, by her next friend J. D. Young, in a suit against her husband and J. M. Elliott Jr* sought to have the deeds of 1908 executed by her and husband to J. M. Elliott Jr. declared to be a mortgage to secure the indebtedness of her husband to Elliott. In that bill she alleg'ed that she consented to secure the payment of the indebtedness of her husband to Elliott, and any future indebtedness of her husband to Elliott, and offered to pay any and all amounts due to him by her husband the payment of which was secured by said conveyances. The prayer was for an accounting and that she might redeem the land upon proper payments. A demurrer to the bill was sustained and an appeal taken from that order. This court held that the-allegations of the bill indicated that the intention of the parties was to secure the payment of money due to the mortgagee by the husband of the mortgagor and. reversed the order sustaining the demurrer. The case came to this court again upon an appeal from a decree on the pleadings and evidence, in which decree the Chancellor found the equities of the cause to be with the complainant and referred
The husband was said to have been seized of the freehold in his wife’s lands jure nxoris. It was held to be a-vested estate in him and it was not competent for legislation, without his consent, to take it from him and give it back to the wife. See Bishop on Law of Married Women, Sec. 40. The Act of March 6, 1845, Daws of Florida, changed the rule of the common law and provided that when a woman shall marry being seized or possessed of real property her title to the same shall continue separate, independent and beyond the control of her husband, and shall not be taken in execution for his debts, and further provided that a married woman may become seized of real property during coverture by bequest, demise, gift, purchase or distribution. But this acts also required that the property so acquired should be inventoried and recorded in the clerk’s office of the county in which the property was situated at the peril of being liable for her husband’s debts “as if this act had not been passed.”' See Mercer v. Hooker, 5 Fla. 277; Price v. Sanchez, 8 Fla. 136.
The Constitution of 1868, Art. IV, Sec. 26, secured to the married woman all property, real and personal, owned by her before marriage, or lawfully acquired afterward, as her separate property, and provided that it should not be liable for the debts of her husband. This provision repealed such portions of the statute as prior to the adoption of the constitution made the wife’s property conditionally liable for her husband’s debts. The Constitution of 1868 created an unconditional exemption of the wife’s separate property from such debts. See Fairchild v. Knight, 18 Fla. 770. In the case of Staley v.
But is this a contract of suretyship? The wife does not assume any obligation to pay the debt of her husband. It is not perfectly clear thát the constitution even requires the instrument to be in the form of a contract, or mortgage, nor is it clear that any of the essentials of a contract are necessary. It is not required that there should be any mutuality of obligation between the wife and creditor of the husband, their minds are not required to meet on any proposition, her.consent may be given without the creditor’s knowledge, and it is not unreasonable to say that she may even limit the amount of indebtedness for •which her property is to be liable as well as the portion of her separate property which she consents to subject to his debts. The “some instrument in writing” of the constitution may be very informal as to language and recitations so that the .formalities of execution are duly observed.
This court said in the case of Fritz v. Fernandez, 45 Fla. 318, 34 South. Rep. 315, speaking through Mr. Justice Hocker : “There is of course a difference between a wife’s power of disposition of a purely equitable estate, and of her purely statutory property. In the former case
The. reciprocal obligations, duties and responsibilities, both legal and moral, of husband and wife, growing out of the status of marriage may take the case out of the general rule. The consideration which may induce the wife to consent to the subjugation of her separate property to the payment of the valid debts of her husband, may exist solely between her and her husband, it may grow out of the tenderest and most beautiful of sentiments which make the marital status a blessing to the principals and a benefit to society. These communications between husband and wife are privileged. Public policy forbids the curious from prying into them, yet they may afford the most potent reason for the wife’s consent. So .even as he may mortgage his property to secure the payment of a pre-existing debt, we think his wife may give her consent in the manner provided by law that her property may be subjected to the same purpose, without requiring the acceptance of a dollar from a stranger to give validity to the consent. The effect of these changes made by the statutes and constitution upon the common law is beneficial both to the married woman and the husband’s creditors; on the one hand she is protected from annoyance in the enjoyment of her property, while upon the other hand the creditor by obtaining the wife’s
As to the contention of counsel that the written consent of the wife should expressly state that the instrument given is for the purpose of making her property liable for the debt of her husband, we think there is no reason for such a rule, and that the language of the constitutional provision does not necessarily carry such meaning. The language is as follows: “All property, real and personal, 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 given by some instrument in writing, executed acording to the law respecting conveyances by married women.” The giving of the instrument in writing which is to be executed acording to the requirements of the statute respecting conveyances by married women, is the only evidence of consent required. . If it is in the form of a mortgage, the mere placing of the lien upon the property is sufficient evidence of the consent. The only attribute required of the written instrument, is that its execution must be in accordance with the formalities of the statute which does not require that the real consideration or purpose of the conveyance shall be stated.
It is insisted by appellant that the mortgage made by Ruby C. Connor and her husband to J. M. Elliott, Jr., in 1908, is void under Section 2514 of the General Statutes of Florida as to complainant and those under whom it claims, by reason of Elliott’s conduct since the mortgage was executed, and that as he paid no consideration for the mortgage he was not a bona fide purchaser, and was in the same position as a voluntary grantee. We do not
Section 2514 of the General Statutes of Florida contains a proviso to the same effect. The language of the proviso is as follows: “Provided, That nothing in this section contained shall extend or be construed to impeach, make void or frustrate any conveyance, assignment or lease, assurance, grant, charge, , lease, estate, interest or limitation, or use or uses of, in, to or out of any
According to the view which we have of the above statute, and our understanding of the argument of counsel for appellant, the proviso of the act is itself an answer to the argument if it be admitted that the deed of 1908 was not a> voluntary conveyance, that is to say, that Elliott was not in the position of a voluntary grantee. The history of the law of fraudulent conveyances shows that from the earliest times transfers of personal property in fraud of creditors have been deemed void at common law. The principle underlying the law was that the creditor had a claim upon the property of his debtor constituting the fund from which the debt should be paid. If the debtor therefore in the exercise of his right in the matter of disposing of his property, ignores the equitable right of his creditors to be paid out of the property in his hands, and exceeds the legitimate authority over his property by disposing of it with intent to delay or defraud his creditor, such disposition was deemed inequitable and void. The common law however was deemed' too rigid in requiring proof of fraud; so statutes were passed in England to protect society from the imposition of cheats and swindlers and other fraudulent persons, and to hold in check the fraudulent contrivances of such persons. See 12 R. C. L. 465; People v. Garnett, 35 Cal. 470; Sands v. Codwise, 4 Johns (N. Y.) 536. The first statutes were aimed at the fraudulent gifts of chattels. The 13th Elizabeth c 5 at conveyances of land as well as chattels to defeat creditors, and the 27th Elizabeth c 4 against fraudulent conveyances to defeat subsequent purchasers. Seé Fleming v. Townsend, 6 Ga. 103; Springer v. Drosch,
A purchaser who acquires a deed from an owner who has already incumbered his land, must occupy an analogous position to a creditor of such owner before he can complain of the prior incumbrance, and if the prior incumbrance was made in good faith for a good consideration it is valid as to such subsequent purchaser who has no right to have it declared void.
The appellant was bound by the prior deed, he was charged with notice of its existence, and by common prudence and. ordinary diligence could have ascertained the extent of the incumbrance.
The order sustaining the demurrer to the bill is affirmed.
Browne, C. J., and Taylor, Shackleford arid Whitfield, JJ., concur.