OLIVER J. JETTE
v.
H. WESLEY HARBISON, ET UX. MAY KATHLEEN HARBISON
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The Florida Supreme Court held that a married woman's separate property cannot be bound for her husband's debt by a simple promissory note; the constitutional requirement that such liability be created by a formal written instrument executed according to conveyancing laws for married women cannot be circumvented by statute or ordinary contract.
A wife's separate property cannot be bound for her husband's debt by a simple promissory note. The constitutional requirement that such liability be created by a formal instrument executed according to the law respecting conveyances of married women cannot be satisfied by a plain promissory note and cannot be modified by statute.
“Section .1, Article XI of the Constitution sets out in terms the requirement necessary to bind the property 'of - á marriéd: woman to pay her husband's debt. It cannot be done by plain promissory note but müst be done by án iñstrument in writing, executed according to the law respecting conveyances of married women.”
Establishes the constitutional requirement that cannot be satisfied by ordinary promissory note
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Join FLexlaw to unlock all legal intelligenceThe husband and wife jointly executed a promissory note given for the husband's debt. The note was not sealed or witnessed. Upon default, the payee su…
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This is a certificate under Rule 38 of the Rules of this Court. The question certified is whether or not a judgment secured by the payee on a promissory note executed jointly by the husband and wife may be satisfied by an execution against the wife’s separate property. It is admitted that the note was given for the husband’s debt and that it was not sealed or witnessed.
The note was executed by the husband and wife in the usual form and upon default in payment the payee sued them jointly in a law action. The wife demurred to the declaration raising the bar of Section 1, Article XI of the Constitution, the pertinent part of which is that the separate propérty of the wife “shall not be liable for the debts of the husband without her consent given by some instrument. in writing executed according to the law respective conveyances of married women.”
Petitioner avers that the question presented is ruled by Chapter 21932, Acts of 1943, Section 708.08, Florida Statutes of 1941, the pertinent part of which' says in substance that every married woman may take charge of and contract as she sees fit with reference to her separate property. It is .contended that to all intents and purposes, the note in question made the wife and her property liable for the debt in question.
We do not think there is any merit to this contention.' Section .1, Article XI of the Constitution sets out in terms the requirement necessary to bind the property ’of - á marriéd: woman to pay her husband’s debt. It cannot be done by plain promissory note but müst be done by án iñstrument in writing, executed according to the law respecting conveyances of married women. - 'No Statute can repeal or modify this requirement. Matthews v. McCain, 125 Fla. 840, 170 So. 323. When read in full the Statute shows- on its face a purpose to re-enact the constitutional requirement though it authorizes a *420married woman to make other Contracts relating to the sale or disposition of her separate property without the jointure of her husband.
The certificate is granted and the question certified in answer in the negative.
THOMAS, C. J., CHAPMAN, J., and FABISINSKI, Associate Justice, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Rice v. Cochran, 134 So. 2d 12 (Fla. 1961)…ration we are of the opinion that the petitioner is not unlawfully detained. His contention that he was unlawfully deprived of the right of counsel is disposed of adversely to him by former decisions of this court. See Johnson v. Mayo, 158 Fla. 264, 28 So. 2d 858, Carnley v. Cochran, Fla., 123 So. 2d 249, and Jones v. Cochran, Fla., 125 So. 2d 99. Accordingly, the writ of habeas corpus heretofore issued is quashed, the cause dismissed, and the petitioner remanded to the custody of the respondent. It is so…
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First Nat'l Bank OF Melbourne v. Berg, 153 So. 2d 331 (Fla. 2d DCA 1963)…l decree or judgment against a married woman for her husband’s debts cannot lawfully be enforced as against her separate property, real or personal, without her consent duly given as the Constitution requires, Similarly, in Jette v. Harbison, 1947, 158 Fla. 418, 28 So. 2d 858, the Supreme Court considered the question, “ * * * whether or not a judgment secured by the payee on a promissory note executed * * * by the husband and wife may be satisfied by an execution against the wife’s separate property,” and…
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Marinelli v. Weaver, 187 So. 2d 690 (Fla. 2d DCA 1966)…consent given by some instrument in writing executed according to the law respecting conveyances by married women”, which means it must be acknowledged and also witnessed by at least two witnesses. The Supreme Court case of Jette v. Harbison, 1947, 158 Fla. 418, 28 So. 2d 858, followed by the 2nd Dist. Ct. case of First National Bank of Melbourne v. Berg, Fla.App. 1963, 153 So. 2d 331, and the 3rd Dist. Ct. case of First National Bank of South Miami v. Hoover, Fla.App.1964, 163 So. 2d 543, are cited in sup…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Matthews v. Jewel Weldon McCain, 125 Fla. 840 (Fla. 1936)