RUTH M. WISDOM, ET VIR,
v.
M. A. SMITH, AS LIQUIDATOR, ETC.
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The Florida Supreme Court affirmed a foreclosure decree on a chattel mortgage executed by Ruth M. Wisdom and her husband to secure a corporate debt, holding that a married woman may validly mortgage her separate property to secure third-party debts and that the statute of limitations on the underlying note does not bar enforcement of the sealed mortgage covenant.
A married woman may validly mortgage her separate property to secure payment of a third-party debt, and the statute of limitations on an unsealed promissory note does not bar foreclosure of a sealed mortgage containing a specific covenant to pay the debt secured by the mortgage.
“The parties of the first part do covenant and agree that the said Ruth M. Wisdom is the owner of the above described personal property and that they will pay or cause to be paid, the indebtedness secured by this instrument according to the true tenor and effect of the promissory note above described or of any renewal notes, and should it become necessary to collect such indebtedness through or by an attorney, that they will pay all costs of such collection, including a reasonable attorney's fee.”
The binding covenant in the sealed mortgage that created an independent obligation to pay the debt
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Join FLexlaw to unlock all legal intelligenceRuth M. Wisdom and her husband Louis E. Wisdom executed a chattel mortgage on March 24, 1928, to the Bank of Ybor City to secure a $1,400 promissory n…
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The appeal in this case brings for review final decree of foreclosure on a chattel mortgage made and executed on March 24, 1928, by Ruth M. Wisdom, joined by her husband, Louis E. Wisdom, to the Bank of Ybor City to secure payment of a note made and executed by Strickland and Wisdom, Inc., and endorsed by Louis E. Wisdom for the sum of $1400.00 payable ninety (90) days after date. The mortgage contained the following clause:
“The parties of the first part do covenant and agree that the said Ruth M. Wisdom is the owner of the above described personal property and that they will pay or cause to be paid, the indebtedness secured by this instrument according to the true tenor and effect of the promissory note above described or of any renewal notes, and should it become necessary to collect such indebtedness through or by an attorney, that they will pay all costs of such collection, including a reasonable attorney’s fee.”
Foreclosure proceedings were instituted after the statute of limitations had run as to the promissory note secured by the mortgage, but the mortgage was under seal, and the mortgagors specifically covenanted and agreed that they “will pay or cause to be paid the indebtedness secured by this instrument according to the true tenor and effect of the promissory note above described,” etc.
When the husband agreed by the terms of the mortgage to pay the debt he made the same his obligation and became liable for its payment. The wife may mortgage her separate property to secure the payment of her husband’s debts. Sec. 1, Art. XI, of the Constitution. The Springfield Co. v. Ely, 44 Fla. 319, 32 So. 892.
*373The appellant says that there are two questions for us to determine, which are as follows:
“Under the laws of the State of Florida may a married woman validly pledge or mortgage her personal property to secure a debt of a third person other than her husband, from which transaction neither she nor her estate derived any benefit?
“If a married woman, joined by her husband, executes under seal a mortgage on her personal property to secure a note made by a corporation and afterward the note, not being under seal, becomes barred by the statute of limitations, is such bar a defense available to the married woman in an action thereafter brought against her to foreclose the mortgage?”
We think the questions presented must be determined and resolved adversely to the appellant on the authority of the opinion and judgment of this Court in Mercantile Exchange Bank v. Taylor, 51 Fla. 473, 41 So. 22. This conclusion is supported by the opinion and judgment in Blood v. Hunt, 97 Fla. 551, 121 So. 886, and on authority of the opinions and judgments in these cases the decree appealed from should be affirmed.
It is so ordered.
Affirmed.
Ellis, P. J., and Terrell and Buford, J. J., concur.
Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
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Bank of Wildwood v. Kerl, 138 Fla. 527 (Fla. 1939)…ed: “No deficiency judgment or decree can be made in foreclosure proceedings where the debt secured by a mortgage is barred by the statute of limitations.” The case of Mercantile Exchange Bank v. Taylor, 51 Fla. 473, 41 So. 22, and Wisdom v. Smith, 124 Fla. 371, [*532] 168 So. 814, did not involve this exact question. In Jones on Mortgages, 8th ed., Vol. 11, Sec. 1545, it is stated: “There can be no decree for the deficiency after the debt is barred. It was held, however, in an Arkansas case, that a court…
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Alropa Corp. v. McNamee, 143 Fla. 785 (Fla. 1940)…es at law on a covenant such as we have here the declaration must show by apt allegations that [*787] the debt is collectible by virtue of the notes mentioned in the covenant. The declaration here does not so allege. In the case of Wilson v. Smith, 124 Fla. 371, 168 Sou. 814, we had under consideration a different covenant. There the covenant was: “The parties of the first part do covenant and agree that the said Ruth M. Wisdom is the owner of the above described personal property and that they will pay o…
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Cont'l Can Co. v. Lee Co., 40 So.2d 783 (Fla. 1949)…e effect of releasing the other. Defendants contend that when the Lee Company, Inc., failed to pay, the debt then became the debt of W.E. Lee, the husband, for which the separate property of the wife, Mrs. M.M. Lee, cannot be bound. Wisdom v. Smith, 124 Fla. 371, 168 So. 814 and Jette v. Harbison, 158 Fla. 418, 28 So.2d 858 are relied on to support this contention. We do not think there is any merit to this contention. At the time the contract of guaranty was executed, Chapter 21932, Acts of 1943, Section…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blood v. Hunt, 97 Fla. 551 (Fla. 1929)
- Sweetland v. Sweetland, 121 So. 886 (Fla. 1929)
- The Springfield Co. v. Ely, 44 Fla. 319 (Fla. 1902)
- The Mercantile Exch. Bank v. Taylor, 51 Fla. 473 (Fla. 1906)