GASTON DRAKE, APPELLANT,
v.
MINNIE H. MARCH ET AL. APPELLEES
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In a foreclosure action, the Florida Supreme Court held that a married woman who joined her husband in mortgaging his lands to secure his debt cannot be held personally liable for a deficiency judgment, even if she is a 'free dealer' under Florida law, because the state constitution requires written consent before a married woman's property can be liable for her husband's debts.
The lower court did not err in refusing to render a deficiency decree against the married woman. Although a free dealer married woman may contract and bind herself as if unmarried, the Florida Constitution prohibits her separate property from being liable for her husband's debts without her written consent executed according to law respecting conveyances by married women.
“A personal 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; and consequently there was no error in declining to render a deficiency decree against the married woman.”
This is the court's core holding establishing that deficiency judgments cannot be enforced against a married woman's separate property without constitutional consent.
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Join FLexlaw to unlock all legal intelligenceDrake obtained a mortgage on lands owned by the husband, with both the husband and wife executing the mortgage document. The note was signed by the hu…
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Whitfield, J.
This appeal presents the question whether in foreclosure proceedings the lower court erred in refusing to render a deficiency decree against a free dealer married woman personally who joined her husband in executing the mortgage on his lands to secure his debt. The note was signed by the husband alone. The mortgage executed by the husband and wife as parties of the first part contains a covenant by “the parties of the first part” to pay the debt and expenses, &c; and the acknowledgement of the wife states that she executed the mortgage “for the purpose of mortgaging and of releasing, relinquishing, renouncing, and conveying all her right of • dower, separate estate, and homestead, and all her rights in and to the lands in said deed described and granted.”
The bill alleges that at the time the mortgage was executed, .the wife was a “free dealer unter the laws of Florida.”
Sections 1 and 2, Article XT of the Constitution provides :
“All property, real and personal, of a wife, owned by her before marriage, or lawfully acquired afterwards by gift, devise, bequest, descent, or purchase, shall be her separate property, and the same shall not be liable for the debts of her husband without her consent given by some instrument in ivriting, executed according to the law respecting conveyances by married women.
A married woman’s separate real or personal property may be charged in equity and sold, or the uses, rents and profits thereof sequestrated for the purchase money thereof ; or for money or thing due upon any agreement made by her in writing for the benefit of her separate property; or for the price of any property purchased by her, or for labor and material used with her knowledge or assent in the construction of buildings, or repairs, or improvements upon her property, or for agricultural or other labor bestowed thereon, with her knowledge and consent.”
The statute providing for removing certain disabilities of married women enacts that upon a decree rendered and compliance with stated requirements, a married woman “shall be authorized to take charge of and control her estate, to contract and be contracted with, to sue and be sued, and to bind herself in all respects as fully as if she were unmarried.”
This statute operates in the field noi covered by the sections of the constitution above quoted. Lerch v. Barnes, 61 Fla. 672, 54 South. Rep. 763.
Under the statute a married woman who has been duly declared to bé a “free dealer” is authorized “to contract and be contracted with, to sue and be sued, and to bind herself in all respects as fully as if she were unmarried," yet by the terms and superior force of the constitution the “property, real and' personal,” of a married woman “shall not be liable for the debts of her husband without her consent given by some instrument in writing, executed according to the law respecting conveyances by married women.”
A personal 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; and consequently there was no error in declining to render a deficiency decree against the married woman.
Affirmed.
Shackleford, C. J., and Taylor and Cockrell, J. J.. concur. Hocker, J., takes no part.
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Blood v. Hunt, 97 Fla. 551 (Fla. 1929)…nes, 61 Fla. 672, 54 So. R. 763; Com. Bldg. Co. v. Parslow, 93 Fla. 143, 112 So. R. 378. Smith v. Smith, 18 Fla. 789; Crawford v. Feder, 34 Fla. 397, 16 So. R. 287; Walling v. The Christian Craft Groc. Co., 41 Fla. 479, 27 So. R. 46; Drake v. Marsh, 66 Fla. 598, 64 So. R. 268; Martinez v. Ward, 19 Fla. 175. As to married women’s contracts to convey their separate property that may be specifically enforced, sec. Section 5872, Comp. Gen. Laws 1927; Smitz v. Wright, 64 Fla. 485, 60 So. R. 225. Another statut…
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First Nat'l Bank OF Melbourne v. Berg, 153 So. 2d 331 (Fla. 2d DCA 1963)…that the constitutional provision merely bars execution upon a judgment for the husband’s debts when the constitutional formalities are not observed and does not bar entry of the judgment. This argument cannot be sustained. In Drake v. March, 1914, 66 Fla. 598, 64 So. 268, the Supreme Court affirmed a refusal to enter a deficiency decree against a wife who had joined in a mortgage securing her husband’s debts. Discussing the aforementioned constitutional provision as it relates to judgments against the wi…
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Waechter v. Gen. Mills, Inc., 181 So. 2d 204 (Fla. 1st DCA 1965)…missory note but must be done by an instrument 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.” In Drake v. March, 66 Fla. 598, 64 So. 268 (1914), the Florida Supreme Court affirmed the trial court’s refusal to enter a deficiency decree against a married woman who had joined in the execution of a mortgage securing her husband’s debt, saying: “A personal decree or judgment…
Authorities Cited
- Lerch v. Claudius H. Barnes, 61 Fla. 672 (Fla. 1911)