SUZANNE S. DELONG, APPELLANT,
v.
SID LARKIN AND MARGARET P. LARKIN, HIS WIFE, APPELLEES
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In this mortgage foreclosure case, the Florida Supreme Court upheld a deficiency decree against a married woman by holding that a joint purchase money mortgage obligation is not protected by the constitutional provision limiting liability of a married woman's separate property for her husband's debts. The court affirmed that deficiency proceedings may be pursued on jointly incurred obligations.
A deficiency decree may be enforced on a joint purchase money mortgage obligation because such a debt is a joint obligation assumed by both spouses in exchange for property conveyed to both, and constitutional protections for a married woman's separate property do not apply to debts jointly incurred by husband and wife. The operation of a business by the husband on the premises does not affect the enforceability of the joint debt.
“the debt involved in this proceeding is not that of appellant's husband but instead is her joint obligation, given in exchange for a conveyance of property to her and her husband”
Establishes the court's key distinction that the obligation is jointly incurred by both spouses, not solely the husband's debt, making constitutional protections inapplicable
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Join FLexlaw to unlock all legal intelligenceAppellees instituted a foreclosure action on a purchase money mortgage securing a promissory note executed by appellant DeLong and her husband for pro…
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The appeal in this case is from an interlocutory order denying a motion by the *831defendant DeLong, appellant in this Court, to strike an application for a deficiency decree in a mortgage foreclosure proceeding.
Suit was instituted by appellees to foreclose a purchase money mortgage securing a note executed by appellant and her husband, defendants, in payment for real property conveyed to defendants, husband and wife. Following foreclosure sale of the mortgaged property, application was made for a deficiency decree in an amount representing the balance due on the defendants’ note together with foreclosure costs and expenses.
We agree with the conclusion below, on motion to strike this application, that Sec. 1 of Article XI1 of the Florida Constitution, F.S.A. is irrelevant because the debt involved in this proceeding is not that of appellant’s husband but instead is her joint obligation, given in exchange for a conveyance of property to her and her husband. In these circumstances the operation of a business by appellant’s husband on the premises does not affect the joint debt of the parties.2
Section 23 of Art. XI simply defines a limited equitable charge granted to provide some remedy against a married woman’s property even prior to enactment of F.S. Sec. 708.08, F.S.A. Cases 4 construing Article XI before the effective date of Sec. 708.08 are not authority, of course, for appellant’s contention that deficiency proceedings in the present case should be similarly limited, nor do they indicate any collision between the law and constitutional provisions.
The court below correctly found that appellant’s mortgage note constituted an independent obligation the enforcement of which is unaffected by the constitutional language.
Affirmed.
ROBERTS, Acting C. J., and THOR-NAL, ERVIN and ADAMS, JJ., concur.
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Citator
Cited By
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Maxine Sanson Turek (formerly Maxine M. Sanson) v. The First Nat'l Bank AT Orlando, 228 So. 2d 419 (Fla. 3d DCA 1969)…int financial statements. The notes, it says, evidenced a joint indebtedness to the Bank, and since this was a joint obligation, the remarried widow and her separate property were, and are, personally liable. It relies on DeLong v. Larkin, Fla.1968, 208 So. 2d 830; Federal Deposit Insurance Corporation v. Playford, Fla.App.1969, 217 So. 2d 584; and Gallion v. Belk, Fla.App.1965, 180 So. 2d 349. The Bank advances other arguments to support an affirmance of these orders. Notwithstanding the able argument of co…
Authorities Cited
- Blood v. Hunt, 97 Fla. 551 (Fla. 1929)
- Sweetland v. Sweetland, 121 So. 886 (Fla. 1929)
- John J. Phare and wife v. Warner E. Randall, 97 Fla. 858 (Fla. 1929)
- Waechter v. Gen. Mills, Inc., 181 So. 2d 204 (Fla. 1st DCA 1965)
- Am. Nat'l Bank OF Jacksonville v. Brantley, 204 So. 2d 251 (Fla. 1st DCA 1967)