BROCATO
v.
BROCATO
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A wife who jointly executed a purchase-money mortgage with her husband and later acquired the note and mortgage sued to foreclose against her husband. The Florida Supreme Court affirmed dismissal, holding that a wife cannot enforce a mortgage she signed on property held by both spouses as tenants by the entirety.
The wife cannot enforce the mortgage against her husband because she and her husband purchased the property together and held it in an estate by the entirety, making her unable to enforce a mortgage she signed on property held jointly with her spouse.
“the wife could not enforce a mortgage signed by her on property she and her husband held in an estate by the entirety”
States the core holding that a wife cannot enforce a jointly-signed mortgage on property held by both spouses as tenants by the entirety
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Join FLexlaw to unlock all legal intelligenceA husband and wife together purchased property and executed a purchase-money mortgage note, both signing as makers. The mortgagees subsequently sold a…
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THOMAS, Justice.
The appellant and appellee, husband and wife, executed a purchase-money mortgage, both signing the note which it secured. Subsequently the mortgagees sold and assigned the note and mortgage to the wife, appellant, who brought suit to foreclose against the appellee, her husband.
The husband moved to dismiss on the lone ground that no cause of action had been stated and the chancellor concluding that the wife by the purchase had simply paid the debt, since she was “one of the makers of the note and the mortgage and personally liable,” dismissed the bill with prejudice.
The appellant presents here a question based on the premise that the title to the property on which the mortgage was given was taken by the husband “In His Own Name Only” and argues that the wife was an accommodation party, surety for the husband, and entitled to recover from him the amount she paid.
We do not feel obliged to give appellant an answer because we cannot construe the allegations as support for appellant’s premise unless we indulge her a presumption to which she is not as a pleader entitled. Evidently she thinks that an averment in the complaint that the mortgage was given on property “then in the possession of James E. Brocato * * * and to which he claimed the fee simple title” is synonymous with the statement in the brief that “the defendant, James E. Brocato, took title in his own name.” We cannot agree, especially as the allegation is preceded by one that the two persons “being indebted [to the mortgagees] for the purchase of the * * * property * * * executed and delivered their promissory note” for a certain amount and “thereby promised to pay” the debt.
We do not wish to appear hypertechnical but if the bill is construed against the plead•er, we come to the conclusion that man and wife bought a tract of land, received a deed to it, owed part of the purchase price and .gave a mortgage to secure their debt. This is a factual situation far different from one where a man purchases and gives a purchase-money mortgage which the wife need not sign. In the first instance, which we think is the one presented here, the wife could not enforce a mortgage signed by her on property she and her husband held in an estate by the entirety.
We have been shown no reason to disturb the decree so it is
Affirmed.
ROBERTS, C. J., and HOBSON and DREW, JJ., concur.
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The First Nat'l Bank IN ST. Petersburg cum testamento annexo of the Est. of Stanley C. Minshall v. Ursula G. Cooper and Elva W. Minshall, 266 So. 2d 191 (Fla. 2d DCA 1972)…the mortgage would have been discharged, it being security for his own debt. Even had he (the decedent) taken an assignment back from the mortgagee, he could not have foreclosed against his wife’s interest in the property. Brocato vs. Brocato, Fla., 74 So. 2d 58. Had he paid the debt only minutes before his death, the discharge would occur and the mortgage lien could not have been revived in favor of the personal representative. It would seem that the Administrator must stand in decedent’s shoes, and that p…