MARGARET R. GALLION, APPELLANT,
v.
W. H. BELK, JR., APPELLEE
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Margaret Gallion appeals a dismissal of her complaint seeking to enjoin execution and levy on her separate property to satisfy a judgment based on a promissory note she executed with her husband. The court affirmed the dismissal, holding that because the borrowed funds were used for a joint venture—including redemption of the appellant's own separate property—her separate property was liable for the debt.
The court affirmed dismissal of the injunction complaint, holding that because the evidence showed the borrowed money was used for a joint venture rather than solely for the husband's benefit—specifically because part of the loan was used to redeem the wife's own separate property from mortgage—the wife's separate property was liable for the debt.
“the loan which was the original basis of the judgment was for a joint venture between the appellant and her then husband and that she was not entitled to the relief sought”
The chancellor's factual finding that justified sustaining the levy against the wife's separate property.
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Join FLexlaw to unlock all legal intelligenceWhile married, Gallion executed a promissory note for $15,000 with her then-husband, which was endorsed by Belk as guarantor. Upon default, Belk was s…
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Appeal from a final judgment dismissing a complaint of the appellant wherein the relief prayed was an injunction against execution and levy upon the separate real and personal property of the appellant, on the ground that said property was not liable for her husband’s debts.
It appears that the appellant, while married, joined in the execution of a promissory note with her then husband for $15,000, which note was endorsed by the appellee as a guarantor of the payment thereof. Upon default in the payment of said note, the payee sued the appellee as a guarantor of the note and collected judgment from him. He in turn, sued in assumpsit as guarantor, the appellant and her ex-husband, she having been divorced from him in 1959, and obtained judgment against them in 1961.
Execution was issued and levy made thereunder upon property of the appellant. The complaint was to enjoin this levy. Testimony was taken before the chancellor, and at the conclusion thereof, the chancellor ruled that the loan which was the original basis of the judgment was for a joint venture between the appellant and her then husband and that she was not entitled to the relief sought and dismissed her complaint. This is the order appealed.
The appellant’s primary question on appeal is directed at the right to subject a wife’s separate property to levy to satisfy debt against her husband. We agree that the cases cited by appellant, if they were applicable to the instant facts, would be a defense, but, the chancellor made a finding that the loan was for a joint venture, not just for the husband’s debts.
The evidence shows that one item for which the borrowed money was used, was to redeem some separate property of the appellant from a mortgage, and therefore, this item alone was sufficient to sustain the chancellor’s finding that the money borrowed was not for the husband’s benefit alone.
The chancellor raised the question during the taking of testimony that appellant’s defense that her separate property was not liable for her husband’s debts should have been asserted at the time appellee was suing as guarantor. We agree with the chancellor, but doubt that such defense would have been effective, even then, in view of the purpose for which the original loan was made.
The appellant has not presented the entire record on this appeal and we are therefore compelled to presume that any finding of fact made by the lower court is correct.
Phillips v. Blum, 139 So.2d 459 (3rd DCA, Fla.1962), Pan American Metal Products *351Co. Inc. v. Healy, 138 So.2d 96 (3rd DCA, Fla.).
The order appealed is therefore affirmed.
RAWLS, C. J., and CARROLL, DONALD K., J., concur.
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Foresight Enters., Inc. v. Leisure Time Props., Inc., 466 So. 2d 283 (Fla. 5th DCA 1985)…s held to determine appellees’ right to possess the aircraft. Accordingly, we will not overturn the trial judge’s findings nor his construction of the documents. Jackson v. Granger Lumber Company, 275 So. 2d 555 (Fla. 1st DCA 1973), Gallion v. Belk, 180 So. 2d 349 (Fla. 1st DCA 1965). Because of claimed breaches of the agreement, Ostgard took possession of the Beech Baron in April of 1979, and he refused to return it to appellees. Ostgard used the plane and he removed it to Minnesota. After appellees filed a…
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Am. Nat'l Bank OF Jacksonville v. Brantley, 204 So. 2d 251 (Fla. 1st DCA 1967)…as is required to be done by the rule pronounced in Jette v. Harbison, supra, the conclusion is inescapable that the money was lent to the husband and not to the appellee wife. Appellant relies heavily upon this Court’s decision in Gallion v. Belk, 180 So. 2d 349 (Fla.App. 1st 1965). However, the instant case is distinguishable from Gallion in that there the husband and wife were engaged in a joint venture in partial furtherance of which the note sued on was given, with some portion of the funds also being u…
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Fed. Deposit Ins. Corp. & Liquidator of S. Bank of St. Petersburg v. Playford, 217 So. 2d 584 (Fla. 2d DCA 1969)…Bank of Jacksonville v. Brantley, 204 So. 2d 251 (Fla.App.1967), the bank deposited the loan proceeds in the husband’s account, so the wife never had control over them although she had joined in the note. The wife was held liable in Gallion v. Belk, 180 So. 2d 349 (Fla.App.1965) on a finding that the purpose of loan was joint. Where by clear law the wife is entitled to obligate herself, it seems to us that she should not later be allowed to disavow the obligation without some stronger showing than that the h…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Athas S. Curtis v. Simon, 138 So. 2d 96 (Fla. 3d DCA 1962)
- Phillips v. Blum, 139 So. 2d 459 (Fla. 3d DCA 1962)