51 Fla. 535 | Fla. | 1906
On September 8th, 1900, Theon Cummings and Sallie E. Cummings, his wife, filed their petition in the Circuit Court for Walton county to dismiss a certain levy executed August 2, 1900, and to vacate certain deficiency decrees and executions entered and awarded in 1896, under which the said levy was made.
The petition alleges in brief that in 1895, Charles B. Rice filed his bill against Sallie E. Cummings alone to foreclose five mortgages in favor of one C. W. Webster executed by her only; that at the time of the execution and long thereafter her husband Theon Cummings was in Colorado in bad mental and physical condition and knew nothing of the making of the mortgage nor of the
Evidence was taken and upon final hearing the prayers of the petition were granted. From this an appeal was
No attack has been made upon the validity of the decrees establishing the lien upon the mortgaged property and ordering the sale thereof to enforce the lien nor upon the validity of sales, nor upon the supplemental decrees in so far as they confirmed those sales, but only upon the general money judgments contained therein; our practice permitting the complainant in foreclosure case to obtain in the same proceeding a deficiency judgment without the necessity of restoring to a separate action in another forum. This, deficiency decree or judgment however does not obtain additional virtue by being born in a court of equity and is at last but a judgment at large and as sudh is without force against a married woman, nor can it by any process of reasoning be converted into a “charging in equity a married woman’s separate estate, nor a sequestration of the rents, issues and profits thereof”—• the only method under our constitution and laws whereby her separate estate may be subjected in invitum to the payments of her debts.
It would be usurpation of authority upon the part of a court in this State to decree a general personal judgment against a married woman, not a free dealer, and as to the force and effect of the “free dealer” statute, we express no opinion, and if such judgment or decree be in form rendered, it could only be attributed to a fraud upon the court, a suppression of the fact of coverture, or such ignorance of a constitutional right in her behalf, as would in law avoid the judgment.
It is immaterial to consider what effect should be given to a misrepresentation in the making of the mortgage on the part of the mortgagor that she was feme sole; the estoppel could only go to the validity of the mortgage as
Upon the facts set forth in the petition the court, whose process was being used in violation .of a constitutional right, based upon a judgment that it should no! and could not, within the limits of the law have entered, would be authorized to stay that process and vacate that judgment.
The proof was sufficient to sustain the petition and the decree was proper. We see nothing in the decision of the court permitting the testimony to stand; there was laches and looseness upon both sides as to time and manner of examining witnesses and the discretion of the court was not abused, nor was substantial injury done. The objections to specific questions were not passed upon by the court, nor called to his attention so far as we are advised, and will not therefore be considered here.
The decree appealed from was right and it is accordingly affirmed.