FARLEIGH M. HERALD AND A. M. HERALD, APPELLANTS,
v.
J. B. HARDIN, APPELLEE
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This case involves a wife's appeal of a foreclosure suit on her separate property, which she mortgaged to secure her husband's debt. The appellate court affirmed the foreclosure, finding no valid grounds for challenging the mortgage based on lack of consideration, duress, or improper execution.
No, the mortgage is valid. A wife can encumber her separate property for her husband's debt, and the defenses of lack of consideration and duress were not sufficiently proven. Furthermore, the acknowledgment of the mortgage was in substantial compliance with the law and conclusive in the absence of fraud or duress.
“This Court has repeatedly held that a wife may incumber her separate statutory property to secure a debt made by her husband.”
Establishes the legal principle that a wife can mortgage her separate property for her husband's debt.
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Join FLexlaw to unlock all legal intelligenceThe appellants, husband and wife, appealed a final decree foreclosing a mortgage on the wife's separate statutory property. The wife argued lack of co…
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Terrell, J.
This appeal is from a final decree in a foreclosure suit. The appellants are husband and wife and were defendants below. The lands described in the mortgage was the separate statutory property of the wife. To the bill of complaint exhibited against them defendants filed their answer setting up as their defense to the foreclosure; (1) Total want of consideration in the execution of the mortgage, (2) That the said mortgage was executed under duress, (3) Set off in the sum of Two Thousand Dollars against complainant, and (4) Improper execution and acknowledgment of the mortgage. After hearing the testimony offered in support of these defenses the chancellor entered his final decree foreclosing the mortgage. Appeal was taken from that final decree. The defense of set off is not urged here so we treat it as abandoned. On the question of want of consideration the record discloses that the note and mortgage brought in question were given by Farleigh M. Herald, appellant, and wife of A.
M. Herald, to secure funds that appellant, A.
M. Herald, admitted that he had wrongfully taken from appellee, J.
B. Hardin, while in his (J.
B. Hardin) employ. This Court has repeatedly held that a wife may incumber her separate statutory property to secure a debt made by her husband. It makes no difference whether the consideration for the husband’s debt benefits the wife or enhances the value of her separate property. Dzialynski v. Bank of Jacksonville, 23 Fla. 346, - So. Rep. -; Ballard v. Lippman, 32 Fla. 481, 14 So. Rep. 154; Connor v. Elliott, 73 Fla. 217, 74 So. Rep. 649; Ocklawaha River Farms Co. v. Young, 73 Fla. 159; 74 So. 644.
It is next contended that the mortgage was executed under duress. Duress is a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or make a contract not of his own volition. 18 C. J. page 234. There is no testimony supporting duress except that of Mrs. Herald. The net result of her testimony is that the mortgage was executed on her part to secure an obligation that Mr. Herald owed to Mr. Hardin and that Herald was threatening to divorce her and take their children if she (Mrs. Herald) did not execute the mortgage.
The testimony of Harry E. Klein, the Notary Public who took the acknowledgment of the mortgage, corroborates Mrs. Herald’s testimony as to execution to secure the obligation owed by Herald to Hardin. There is no showing whatever that Hardin was in any way responsible for the domestic infelicity of Herald and his wife, nor was the mortgage executed at his (Hardin’s) suggestion but on the other hand it is shown that the proposition to make the mortgage originally came through Herald’s attorney. Hardin being in no way responsible for the unfortunate plight of appellants, the mortgage cannot be attacked on the ground of fraud or duress as to him. Smith v. Commercial Bank of Jasper, 77 Fla. 163, 81 So. Rep.
154. We do not believe that the facts in this ease show that the “free agency” of Mrs. Herald was destroyed or that the mortgage in question was not of her “own volition” but if they did as against the holding of the chancellor the unsupported testimony of the person who executed the mortgage would be insufficient to set it aside. Appellant next undertakes to impeach her acknowledgment of the mortgage. The acknowledgment in this case has been examined and we find that it is in substantial compliance with the requirements of the law. The rule is well settled in this State (and we think in the majority of the states) that the certificate of acknowledgment of a married woman to a deed or mortgage is conclusive against her in the absence of fraud or duress, and that the testimony of the parties alone is not sufficient to overcome it, nor can the testimony of the officer taking the certificate be admitted to contradict his official certificate. Hart v. Sanderson’s Admin., 18 Fla. 103; Shear v. Robinson, 18 Fla. 379, Text 443; Bank of Jennings v. Jennings, 71 Fla. 145, 71 So. Rep. 31; Rausch v. Eq. Life Assur. Society of the United States, 77 Fla. 846, 82 So. Rep. 295; Hutchinson v. Stone, 79 Fla. 157, 84 So. Rep. 151; Green v.
First National Bank of Marianna, 85 Fla. 51, 95 So. Rep. 231.
We are mindful of the fact that this rule does not obtain everywhere. In some states under certain conditions the evidence of the officer taking an acknowledgment may be used to impeach it. Qualls v. Qualls, 196 Ala. 524, 72 So. Rep. 76; Parlin & Orendoff Co. v. Hutson, 198 Ill. 389, 65 N. E. Rep. 93; Davis v. Monroe, 187 Pa. St. 212, 41 Atl. Rep. 44; Winn v. Itzel, 125 Wis. 19, 103 N. W. Rep. 220.
Affirmed.
Whitfield, P. J., and Buford, J., concur. Ellis, C. J., and Strum and Brown, J. J., concur in the opinion and judgment.
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Citator
Cited By (37 total)
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City OF Miami v. Kory, 394 So. 2d 494 (Fla. 3d DCA 1981)…ccupied had it not been tendered — that is, as a non-probationary civil service employee — with full back pay and emoluments. We are unable to approve this conclusion. An early, and often-cited definition of duress is contained in Herald v. Hardin, 95 Fla. 889, 116 So. 863, 864 (1928): Duress is a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or make a contract not of his own volition. Accord, e.…1 / 2
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McEwen v. Schenck, 108 Fla. 119 (Fla. 1933)…Davis, C. J., (concurring). — As was said by this Court in Herald v. Hardin, 95 Fla. 889, 116 So. Rep. 863, the certificate of acknowledgment of a married woman is conclusive against her in the absence of fraud or duress, and the testimony of the parties alone is not sufficient to overcome it, nor can the testimony of the officer taking…1 / 3
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Cooper v. Cooper, 69 So. 2d 881 (Fla. 1954)…ad to prove the coercion the same as if the man to whom she was still technically bound were a stranger. Her assault even had it not been inherently feeble, could not have succeeded when based upon her own uncorroborated testimony, Herald v. Hardin, 95 Fla. 889, 116 So. 863, and wc have been shown nothing to buttress hei story, except the statement of a relative that she saw bruised places on appellee’s leg supposed to have been the result of the “pinching” incident. Taking the evidence as a whole the app…
Previewing 3 of 37 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Hutchinson v. Stone, 79 Fla. 157 (Fla. 1920)
- Eliza N. Shear v. Robinson, 18 Fla. 379 (Fla. 1881)
- The Bank of Jennings v. Jennings, 71 Fla. 145 (Fla. 1916)
- Hart v. Sanderson's Administrators, 18 Fla. 103 (Fla. 1881)
- Mizell Live Stock Co. v. Garrison A. Pollard, 71 Fla. 192 (Fla. 1916)
- Rausch v. The Equitable Life Assurance Soc'y of the United States, 77 Fla. 846 (Fla. 1919)
- Dzialynski v. The Bank of Jacksonville, 23 Fla. 346 (Fla. 1887)
- Green v. First Nat'l Bank of Marianna, 85 Fla. 51 (Fla. 1923)
- Smith v. Commercial Bank of Jasper, 77 Fla. 163 (Fla. 1919)
- Ballard v. Lippman Bros., 32 Fla. 481 (Fla. 1893)