RUBIE C. CONNER ET AL., APPELLANTS,

v.

NENA K. ELLIOTT, AS EXECUTRIX, APPELLEE

Whitfield, J.

On March 23rd, 1908, Rubie C. Connor and her husband, C. E. Connor, in the State of Alabama, executed to J. M. Elliott, Jr., of that State a deed of conveyance of lands in the State of Florida, the lands' being the separate property of the married woman.

On March-28, 1908, Rubie C. Connor and her husband, C. E. Connor,, in the State of Florida, executed another deed of conveyance of the lands to correct an error in the description of the lands in the first mentioned deed.

In a suit of Rubie O. Connor, by her next friend, brought against her husband and J. M. Elliott, Jr., the grantee, the conveyance of the lands was decreed to be under the statute of this State only a mortgage lien on the lands, and a right to redeem the lands from the lien of the mortgage was decreed in favor of Rubie C. Connor. Connor v. Connor, 59 Fla. 467, 52 South. Rep. 727; Elliott v. Connor, 63 Fla. 408, 58 South. Rep. 241.

Subsequently the executrix of J. M. Elliott, Jr., brought suit to enforce the mortgage lien given by the deed executed to Elliott by Rubie C. Connor and her husband. An order overruling a demurrer to the bill of complaint was affirmed. Connor v. Elliott, 73 Fla. 217, 74 South. Rep. 649. See also Ocklawaha River Farms Co. v. Young, 73 Fla. 159, 74 South. Rep. 644.

Thereafter an amended and supplemental bill of complaint was filed by the executrix of J. M.' Elliott, Jr., against numerous defendants to . enforce the mortgage lien on lands in Florida given by the mortgage deed executed to J. M. Elliott, Jr. Rubie C. Connor was by an order of the court allowed to file such pleadings as she desired to do, separate from and not joined in by her husband. The following “separate plea of Rubie O'. Con-nor” was filed: “Comes now the said Rubie C. Connor, who has heretofore been permitted by an order of the court to file pleadings separate from her husband, and for plea to the complainant’s supplemental' and amended bill of complaint herein, says: That the alleged transactions set forth and described in the complainant’s bill of complaint were had wholly in the State of Alabama and not in the State of Florida; that the alleged indebtedness of the said Claude E. Connor accrued and arose in the State of Alabama, and that the alleged mortgage was made, executed and delivered by this defendant and said Claude E. Connor in the State of Alabama; that at the time of the execution and delivery of the same, this defendant and the said Claude E.- Connor resided in Gadsden, in the State of Alabama;, defendant further says that by the laws oí the State of Alabama, to-wit, Section 4497, Alabama Code of 1907, which law was' in force at the time of the execution and delivery of said deed, it is specially provided as follows: ‘4497. Contracts between husband and wife; she cannot become his surety. The husband and wife may contract with each other, but all contracts into which they enter are subject to the rules of. law as to contracts by and between persons standing in confidential relations; but the wife shall not directly or indirectly become the surety for the husband.’ Defendant further says that the alleged debt of the said Claude E. Connor was a past indebtedness that arose prior to the time of the making of said deed or mortgage, and that no new or other consideration existed or was paid to this defendant for the execution of the said deed or mortgage, and that the same was given wholly to secure the said indebtednes of the said Claude E. Connor, the husband of this defendant; defendant further says that the lands described in, and involved in said deed or mortgage, were, at the time of the making of same, the separate statutory property of this defendant, and that the effect of the same was to make this defendant a surety for her said husband, which by the terms of the statute law aforesaid was forbidden; by reason of which the said deed or mortgage aforesaid so executed upon the separate property of this defendant to secure the debt of her said husband as aforesaid was and is void and unenforceable. And this defendant pleads the said matters in bar of this suit, and prays the judgment of the court if she shall be required to make further answer to said bill.”

This plea was overruled by the court.

By answer, the defendant, C. E. Connor, husband of Rubie C. Connor, presented averments seeking to show that he was only a nominal party to the suit brought by his wife against him and J. M. Elliott, Jr., as defendants to have the deed of conveyance decreed to be a mortgage, and that he was not bound by the decree therein adjudging the amount of the indebtedness, since it would deprive him of his property without due process of law.

These averments of the answer were stricken.

Other proceedings had in the cause need not be stated at this time.