S. B. BURGE, APPELLANT,
v.
H. V. MAUND, APPELLEE
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Burge appealed a decree enforcing mortgage liens held by Maund, claiming he had been discharged through a novation when Maund released the original mortgages and took a note and mortgage from Burge's mother instead. The Florida Supreme Court affirmed, holding that no valid novation occurred because the new contract was executed solely by a married woman without her husband's joinder and without proper creditor authorization.
No valid novation occurred. For a novation to operate as a discharge of a prior obligation, it must be agreed to by all interested parties, be valid and binding, and extinguish the former contract. Here, the new contract was executed solely by a married woman without her husband's joinder and allegedly under coercion, the creditor did not authorize the cancellation of the original mortgages, and the indebtedness was not shown to have been paid. Therefore, the original mortgage liens remained enforceable against Burge.
“In order to operate as a novation, a contract obligation made to take the place of a prior valid obligation, should be agreed to by all the interested parties and be valid and binding and should extinguish the former contract.”
Establishes the three-part test for a valid novation under Florida law
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Join FLexlaw to unlock all legal intelligenceMaund brought a bill in equity to enforce mortgage liens given by Burge to Maund. Burge claimed Maund had released him from liability by accepting a r…
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Whitfield, J.
Maund brought a bill in equity to enforce mortgage liens given by Burge to Maund. The defendant Burge answered that he had been discharged of liability or indebtedness to complainant in that complainant elected to release him from further liability and to take a note on one Susan Burge, the mother of defendant, and gave defendant a release and cancellation of the mortgages which was duly recorded, and that complainant by his agent took a note and mortgage on the property of the said Susan Burge, and has said note and mortgage in his possession, and in so doing has released defendant and has elected to look to Susan Burge for the payment of said amounts, and has thereby created a novation herein.
A replication was filed and testimony taken. There was a final decree for the complainant and the defendant appealed.
In order to operate as a novation, a contract obligation made to take the place of a prior valid obligation, should be agreed to by all the interested parties and be valid and binding and should extinguish the former contract. Tysen v. Somerville, 35 Fla. 219, 17 South. Rep. 567; Hargadine-McKittrick Dry Goods Co. v. Goodman, 55 Fla. 361, 45 South. Rep. 995; 29 Cyc. 1130.
Here the new contract was executed solely by a married woman who was stated to have been coerced and she was not joined by her husband, and there is evidence that the creditor did not authorize the cancellation of the original contract mortgages by one purporting to act as his agent in doing so. Under these circumstances there was no novation, and the findings of the chancellor are not shown to be materially erroneous. It is not claimed that the indebtedness was in fact paid. There is a manifest clerical error in the decree in designating the county in which, the publication shall be made of the contemplated sale of the property. This may be corrected by the chancellor in due course. The decree accords with the allegations and prayer of the bill oí complaint which were not tested by demurrer or otherwise.
The decree appealed from is affirmed.
Shackleford, C. J., and Taylor, Cockrell and Hocker, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cap. Nat'l Bank OF Tampa v. Hutchinson, 435 F.2d 46 (5th Cir. 1970)…ossman, 5 Cir. 1963, 323 F. 2d 937, 942; Murphy v. Green, 102 Fla. 102, 135 So. 531, 534 (1931). Necessarily incident to any novation is the extinction of the prior contractual obligation. Fontainbleau Hotel Corp. v. Crossman, supra; Burge v. Maund, 66 Fla. 173, 63 So. 708 (1913). In Murphy v. Green, supra, the leading Florida case with regard to novation, the Florida Supreme Court commented: If there is an express agreement by the creditor to receive a note as absolute payment, and to run the risk of it…
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Travis v. Cent. Sur. & Ins. Corp., 117 F.2d 595 (5th Cir. 1941)…2d 870, 79 A.L.R. 71; John Wanamaker, New York, Inc. v. Comfort, 5 Cir., 53 F. 2d 751; Fidelity-Philadelphia T. Co. v. Hale & Kilburn Corp., D.C., 24 F.Supp. 3; Hargadine-McKittrick Dry Goods Co. v. Goodman, 55 Fla. 361, 45 So. 995; Burge v. Maund, 66 Fla. 173, 63 So. 708. Cf. Griffin v. International Trust Co., 9 Cir., 161 F. 48; John Wanamaker, New York, Inc. v. Comfort, supra; Hargadine-McKittrick Dry Goods Co. v. Goodman, 55 Fla. 361, 45 So. 995; Burge v. Maund, 66 Fla. 173, 63 So. 708.…1 / 2
Authorities Cited
- J. R. Tysen & Co. v. Somerville, 35 Fla. 219 (Fla. 1895)
- Hargadine McKittrick Dry Goods Co. v. Goodman, 55 Fla. 361 (Fla. 1908)