78 Fla. 78 | Fla. | 1919
— Appellee brought suit to enforce the lien of a mortgage executed by Mary Richardson, a widow, to secure the payment of her note for $725.00 and interest, it in effect being alleged that when the note and mortgage were executed the mortgagor represented herself as being Mary Richardson, a widow, though she now claims to have then been Mary Wilkins, a married woman; that the assignee of the note and mortgage had no notice or knowledge that the mortgagor was other than as she represented herself to be in the note and mortgage, and relying on such representations the assignee of the note and mortgage purchased the same for value before the maturity of the note; that subsequent assignees of the note and mortgage took the same for full value, without notice that the mortgagor was a married woman, and relied on the representations contained in the note and mortgage that the maker was Mary Richardson, a widow; that the mortgagor paid interest on the note till long after the
A plea was filed averring “that at the time of the execution and delivery of the note and mortgage sued upon in this case, and at all times thereafter up to and including the time oí the filing of this plea, the defendant, Mary Wilkins, was lawfully married to Mitchel Wilkins, with whom she lived and cohabited as husband and wife, and who was at the time of the execution and delivery of the note and mortgage and all times thereafter living, and not divorced from the defendant, Mary Wilkins; that, at the time of the execution and delivery of the note and mortgage sued upon and at all times thereafter, the property described in the bill of complaint was, and is, the separate statutory property of this defendant, having been owned by her before her marriage to the said Mitchel Wilkins; that, this defendant’s lawful husband, Mitchel Wilkins, did not join said defendant in the execution and delivery of the note and mortgage
This plea having been set down for argument as to its sufficiency, the court made an order that “this cause coming on to be heard upon the amended bill of complaint of the complainant herein filed, and the plea of the defendant, Mary Wilkins, thereto, upon the sufficiency of said plea to the said amended bill, and the court having heard the argument of counsel for the respective parties, and being advised of its opinion in the premises; it is ordered and adjudged that the said defendant, Mary Wilkins, be and she is hereby decreed to be estopped from setting up the matters and things in said plea contained as a defense, either in whole or in part, to the said amended bill of complaint, and that the said plea be and the same is hereby adjudged and
Defendants appealed.
It is argued that by the execution of the mortgage as Mary Richardson, widow, the mortgagor is estopped from defending against the enforcement of the mortgage though she was in fact Mary Wilkins, a married woman, when the note and mortgage were executed, since the holder of the mortgage is an innocent purchaser for value who took the note and mortgage on the faith of their execution by the mortgagor as a widow, and not as a married woman. But this contention ignores the principle of law that married women can legally contract and convey property only as provided by law and that void contracts and conveyances of married women cannot be given effect by the doctrine of estoppel in the absence of a statute permitting it. Levering v. Shockey, 100 Ind. 558; Glidden v. Strupler, 52 Pa. St. 400; Bentley v. Goodwin, 26 Ind. App. 689, 60 N. E. Rep. 735; Smith v. Ingram, 130 N. C. 100, 44 S. E. Rep. 984, 61 L. R. A. 878; First Nat. Bank of Belmar v. Shumard, N. J. , 103 Atl. Rep. 1001.
The acts and conduct of a married woman in matters where she is legally competent to act, or where she acts in the manner required by law, may operate as an estoppel in pais as to her. See Warner v. Watson, 35 Fla. 402, 17 South. Rep. 654; Couch v. Palmer, 57 Fla. 57, 48 South. Rep. 995; Johnson v. Elliott, 64 Fla. 318, 59 South. Rep. 944; 13 R. C. L. 1348, sec. 388. But estoppel does
“Any married woman owning real property may sell, convey or mortgage it as she might do if she were not married, provided her husband join in such sale, conveyance or mortgage.”
“To render such sale, conveyance, mortgage or relinquishment, whether of separate estate or of dower, effectual to pass a married woman’s estate or right, she must acknowledge, before some officer authorized to take acknowledgment 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 shall set forth all the foregoing requirements.” Secs. 2460, 2462, Gen. Stats. 1906, Compiled Laws, 1914. This statute is mandatory, and unless observed conveyances' and mortgages of the property of married women are invalid. See Staley v. Hamilton, 19 Fla. 275; Equitable Building & Loan Ass’n v. King, 48 Fla. 252, 37 South.
As the mortgagor was in fact Mary Wilkins, a married woman, and not Mary Richardson, a widow, when she executed the note and mortgage, and as the mortgage was not executed as the statute specifically requires for a mortgage of a married woman’s real estate, the mortgage is void and is not binding on her; and she is not estopped by the execution of the mortgage not executed as required by the statute, even though the mortgagee or his assignees were misled as to the mortgagor’s capacity to mortgage her property, by the manner in which the mortgage was executed. Daniel v. Mason, 90 Tex. 240, 38 S. W. Rep. 161, 59 Am. St. Rep. 815; Lowell v. Daniels, 2 Gray (Mass.) 161, 61 Am. Dec. 448; Cook v. Walling, 117 Ind. 9, 19 N. E. Rep. 532, 10 Am. St. Rep. 17. The plea Should have been sustained.
The mortgagor is not a free dealer under the statute; nor is this a proceeding to subject the property of a married woman for the obligations stated in Article XI of the Constitution.
The decree is reversed.
