25 Fla. 927 | Fla. | 1889
This is an appeal from an order denying an injunction and dismissing a bill of review.
The bill of review considered as one for error of law apparent upon the face of the record is maintainable. The term, record, as used in connection with such bills, meaus the pleadings and decree in the canse as to which the complaint is made. Whiting vs. Bank of the United States, 13 Peters, 6; Shelton vs. Van Kleeck, 106 U. S., 532. Looking at the Paisley decree complained ol, we perceive one of its features to be a personal recovery against Mrs. Prentiss, and the pleading or bill shows the claim to be tor a money demand growing out of a contract; the sum recovered being the amount oí a cash payment alleged to have been made on a •contract for the sale of land in which the complainant charges lie has been defrauded.
A married woman is by the common law incapable of making a contract that will bind her personally either in
A married woman is personally liable for her wrongful civil acts, or actual torts, including frauds not growing out of or founded upon, or directly connected with, or a part of or the means of effecting-a contract which she has undertaken to make; and she may be sued jointly with her hus
The bond for title executed by Prentiss and wife not being a basis for the money recovery against Mrs. Prentiss personally, Norton vs. Turrill, 2 Williams, 144; Dollner, Potter & Co. vs. Snow, supra, 1 Bishop, section 842, the order of the Chancellor was erroneous, still it is proper, in view of possiblefuture proceedings, to notice another feature of the proceedings before remanding the cause. The Paisley bill states, in effect, that the land involved in this controversy was included in a deed of trust made by Dr. Butte, the former husband of Mrs. Prentiss, to Mrs Simmons, and providing that the land could not be conveyed by Mrs. Butte, but could be conveyed by the trustee upon the written request of Mrs. Prentiss. The .bill of review represents
These allegations would not have the effect to create any exception to the doctrine announced above as to the money decree, aud the only further observation necessary to be made as to them now, is : if it be that a cash payment was made to Mrs. Prentiss, or to her husband for her with her consent, or as her authorized agent, which relation he could sustain to her, Tresch vs. Wirtz, 34 N. J. Eq., 124; Baum vs. Mullen, 47 N. Y., 577; Pentz vs. Simonton, supra, and under the circumstances of the case, as they may be shown to exist, the land involved or her other property, if she have any, can be charged with such payment, the trustee is, as suggested by counsel for appellants, a necessary party to any proceeding seeking to charge any property included in
Though the decree assailed is one absolute upon a decree pro oonfesso, we think a bill of review for error apparent is a proper remedy. Stribling vs. Hart, 20 Fla., 226; Maynard vs. Percault, 30 Mich., 160. The purpose of a bill of review for error apparent is to have the court rendering the decree, give the same relief that the appellate court might under the same circumstances. Evans vs Clement, 14 Ill., 206. Whex-e the bill does not justify the final decree which has been taken upon a decree pro ooufesso, relief may be had from the appellate court on an appeal, Hart vs. Stribling, 21 Fla., 136, and the same may be secured through a bill of review from the court rendering the decree.
The decree appealed from should be set aside. If Paisley shall desire to amend his bill he should he permitted to do so, and as a consequence his decrees should be vacated and his cause proceed on the bill as it may be atnended, but should he elect rather to stand upon his decree modified to the extent of the personal money recovered against Mrs. Prentiss, his decree should be xnodified merely as to such relief against her.
The cause will be remanded for proceedings not inconsistent with this opinion.