F. W. JONES, MILDRED A. JONES, F. W. JONES, JR., AND D. B. JONES
v.
FEDERAL FARM MORTGAGE CORP.
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This mortgage foreclosure case addresses whether a married woman who executed a mortgage on homestead property was the head of the family, which would determine if the mortgage was void without her husband's consent. The Florida Supreme Court affirmed the lower court's decision that she was not the head of the family, thus rejecting the defense that the mortgage was invalid.
The court affirmed that Mrs. Jones was not the head of the family on the facts presented. While circumstances may constitute a married woman the head of a family entitled to homestead exemption benefits, the burden of proving such status was not met in this case. Therefore, the mortgage could not be voided on the ground that it violated homestead protections.
“the homestead cannot be mortgaged without the joint consent of husband and wife but whether or not the wife is the head of the family is a question of fact that must be determined by proof and that burden was not carried in this case”
Establishes the controlling legal principle that homestead mortgages require spousal consent and that head-of-family status is a factual question with burden of proof on the party asserting it
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Join FLexlaw to unlock all legal intelligenceRebecca E. Jones, a married woman, executed a mortgage on land in her name to secure a loan. The mortgaged property served as the family home where Mr…
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This is a mortgage foreclosure and the second time it has appeared in this Court. See F. W. Jones, et al., v. Federal Farm Mortgage Corporation, 132 Fla. 807, 182 So. 226. The instant appeal is from a decree striking an amended answer to the bill of complaint, the defense proffered therein being that the mortgage was void because it covered the homestead and the mortgagor was at the time the head of a family and could not execute such a mortgage.
The sole question presented for adjudication is whether or not Rebecca E. Jones, the mortgagor, was the head of a family at the time she executed the mortgage.
It is not disputed that Mrs. Jones was a free dealer when she executed the mortgage, that she executed it to secure a loan, that the lands mortgaged were in her name at the time and had been for a long time, that she and her husband had lived on the lands for years as their home, that Mr. Jones was' a jeweler and for business reasons had moved to another place while Mrs. Jones had continued on the mortgaged lands with the children, that Mr. Jones had made some contribution to the family support, that he and Mrs. Jones had never been divorced, that Mrs. Jones is now dead and that the heirs of .Mrs. Jones are the real parties to this litigation.
We are mindful of the rule to the effect that circumstances may constitute a married woman the head of the family, entitled to the benefits of the homestead exemption, Section 1, Article X, Constitution of Florida, but on the facts detailed herein, the Chancellor declined to so decree *67and we are convinced that his judgment should be overthrown. It is settled law that the homestead cannot be mortgaged without the joint consent of husband and wife but whether or not the wife is the head of the family is a question of fact that must be determined by proof and that burden was not carried in this' case.
We express no opinions as to the mortgagor’s power to execute the mortgage by virtue of her being a free dealer and the mortgaged property being in her name. Such had been the case for many years but the question is not invoked or relied on in this proceeding.
Affirmed.
Whitfield, P. J., and Brown, Chapman and Thomas, J. J., concur.
Buford, J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Anderson v. Anderson, 44 So.2d 652 (Fla. 1950)…, and the claim against the home place was prosecuted by an outside creditor. A married woman may be the head of a family. See Bigelow v. Dunphe, 144 Fla. 330, 198 So. 13, depending upon the facts and circumstances. Jones v. Federal Farm Mtg. Corp., 138 Fla. 65, 188 So. 804. And where the husband deserts his wife, leaving her in this state with dependent children she may constitute a head of a family. Jetton Lbr. Co. v. Hall, 67 Fla. 61, 64 So. 440, 51 L.R.A.,N.S., 1121. In the late case of Olsen v. Simps…
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Bigelow v. Dudley C. Dunphe, 143 Fla. 603 (Fla. 1940)…acteristics of a homestead as contemplated under the organic law, and that the facts may be interpreted as reflecting a typical case of a wife through extremity becoming the actual head of the family. See [*606] Jones v. Federal Farm Mortgage Corp., 138 Fla. 65, 188 South. Rep. 804. The reasons given by the chancellor for his decision hardly correspond with the elements of the questions as they have been framed for our answer for he held that the mortgage should be foreclosed because of the failure to dis…
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Claude v. Pitts, Jr., 561 So. 2d 297 (Fla. 2d DCA 1990)…of the wife”); Smith v. Smith, 375 So. 2d 1138 (Fla. 3d DCA 1979). . Robbins v. Robbins, 360 So. 2d 10 (Fla. 2d DCA), appeal dismissed, 365 So. 2d 714 (Fla.1978). . Jameson v. Jameson, 387 So. 2d 351 (Fla.1980); Jones v. Fed. Farm Mortgage Corp., 138 Fla. 65, 188 So. 804 (1939). . The 1985 amendment of this constitutional provision is not involved in this case, but it would not appear to alter the reasoning of this case. Art. X, § 4, Fla. Const. (1987). . Although not at issue in this case, it seems l…
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- Jones v. Fed. Farm Mortg. Corp., 132 Fla. 807 (Fla. 1938)