Equitable Building & Loan Ass'n v. King
Equitable Building & Loan Ass'n v. King
Opinion of the Court
(after stating the facts). — The conveyance to appellant, by Louise G. King and her husband, is executed and acknowledged with all the formalities required by our statutes regulating the conveyance of married women’s property. It appears upon its face to be collateral to or security for a loan, and, therefore, under our statutes relating to mortgages, it must be construed to be a mortgage. The effort here is to foreclose it as a mortgage for the amount due upon the bond executed by Louise G. King, or if the bond be declared invalid, then for the amount of the
We will first ascertain the validity of the bond. It contains a clause that “this obligation is a Georgia contract, and in all respects subject to and governed by the laws of Georgia.” Appellant argues that as the bond purports to have been executed with reference to the laws of that State, its validity should be tested by those laws, and not by the laws of Florida. Without admitting that the rule contended for would apply in this case, it is sufficient to say that the court does not take judicial notice of the laws of a sister State, and there is no proof in this record that the bond is valid under the laws of Georgia. Sammis v. Wightman, 31 Fla. 10, 12 South. Rep. 526. Its validity must, therefore, be tested by the laws of this State, where the parties resided and executed it, and where it is sought to be enforced.
It has been frequently held by this court that in the absence of statute authorizing a married woman to make notes or bonds, her contracts of that nature are not binding upon her personally either at law or in equity. Section 2208, Revised Statutes, 1892, authorizes married women to hold stock in building and loan associations and to borrow money, and to execute a note or bond secured by mortgage upon her separate real estate to secure such loan, but expressly provides • that the husband “must join in the execution of such note or bond and mortgage to give it validity.” The appellant is a foreign building and loan association, but the statute authorizing it to engage in business in this State (chap. 4158, acts of 1893) does not relieve it from the general rule, which requires that the validity of its contracts made in this State must be tested by the laws applicable to domestic corporations of like character. Skinner v. Southern Home Building & Loan Association, 46 Fla. 547, 35 South. Rep. 67. The bond being executed by the married woman alone, is invalid under the statute above referred to, and even if the mortgage was intended as security for its per
Though the amount of the debt is not specified in this instrument it purports on its face to have been given in consideration of the sum of $1,200, lawful money paid by the grantee to the grantors and as collateral for a loan. We are not required to determine whether where the mortgage or deed given as security by a married woman does not state the amount intended to be secured, a debt exceeding the sum stated as the consideration can be proved by evidence dehors the mortgage itself, because here we hold on other grounds, that the mortgage deed can be enforced only for the amount of the loan, which is the same as the amount of the consideration expressed in the instrument. See First National Bank of Florida v. Ashmead, 33 Fla. 416, 14 South. Rep. 886.
J. W. F. King, the husband of Louise G. King, in no manner bound himself for the payment of the loan made by the association to his wife. He did not sign the application for the loan, nor did he ever promise either verbally or in writing to make himself personally responsible for the debt. On the contrary, it very clearly appears that he merely assisted his wife in obtaining the loan which was for the benefit of her separate property, and its repayment was intended to be secured by conveyances of her separate property alone. The mortgage deed contains no covenant to repay the loan upon which he could be held personally responsible. The question as to the validity of the mortgage under these circumstances is an interesting as well as a difficult one. Section 1956, Rev. Stats. 1892, provides that “any married woman owning real property may sell, convey or mortgage it as she might do if she were not married; provided her husband join in such sale, conveyance or mortgage.” In Hodges v. Price, 18 Fla. 342, it was held that the promissory note of a married woman was void; that it was not effective to bind her person either at law or in equity; that her separate property could not be charged for the amount due upon her simple promissory note though a mortgage was
The precise question we are now called upon to decide, viz: whether a mortgage duly executed by husband and wife upon the wife’s separate statutory property, to secure repayment of money loaned the wife and used by her, for the benefit of her separate statutory property, where neither the husband nor any other person has made himself liable for the debt, is valid, has not been decided in this State, though it has been frequently held by this court that a married woman’s separate statutory property may be charged in equity for the purchase price thereof and for debts contracted for its benefit, and the constitution of 1885 expressly provides (Sec. 2, Art. XI) that “a married woman’s separate real or personal property may be charged in equity and sold, or the uses, rents and profits thereof sequestrated for the purchase money thereof; or for money or thing due upon any agreement made by her in writing for the benefit of her separate property; or for the price of any property purchased by her, or for labor and material used with her knowledge or assent in the construction of buildings, or repairs, or improvements upon her property, or for agricultural or other labor bestowed thereon with her knowledge and consent.” While it is true that married women can not make contracts of any kind, except those expressly
It is contended, however, that the debt for the security of which this mortgage was given was one falling within the second clause of the constitutional provision quoted, “for money or thing due upon any agreement made by her in writing for the benefit of her separate property,” and that there is no such agreement in writing in the present case as is contemplated by the constitution. Whether the mortgage alone is a sufficient writing we do not find it necessary to decide, but the written application for the loan taken in connection with the mortgage, answers, in the opinion of the court, every requirement of the constitution, as no particular form of the agreement required to be in writing is prescribed. Those instruments show a loan of $1,200 in money to Louise G. King for the purpose of paying off a mortgage upon her separate statutory property, and that she agreed to repay the money so borrowed. The mortgage deed is therefore valid and enforceable for the loan, though not for the bond, but no deficiency decree can
The decree of the Circuit Court will be reversed with directions to ascertain the amount due upon the loan of $1,200, with interest, less such sums as have been paid to appellant by Louise G. King for installments upon stock, premiums, fines and interest, and to enter a decree in favor of appellant foreclosing the mortgage deed and directing sale of the property to pay the sum found to be due.
Shackleford and Whitfield, JJ., concur.
Taylor, C. J., and Cockrell, J., concur in the opinion.
Hocker, J., being disqualified, took no part in the consideration of the case.
Reference
- Full Case Name
- The Equitable Building and Loan Association, a Corporation Under the Laws of the State of Georgia v. Louise G. King, R. R. Rosborough and Lee Graham
- Cited By
- 20 cases
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- Syllabus
- 1. The courts of one State do not take judicial notice of the laws of a sister State. 2. Chapter 4158 acts of 1893, authorizing foreign building and loan associations to do business in this State, does not relieve them from the general rule which requires that the validity of their contracts made in this State shall be tested by the laws applicable to domestic corporations of like character. 3. Under section 2208, Rev. Stats, of 1892, the bond of a married woman, and a mortgage given by her upon her separate real estate to secure a loan from a building and loan association, must be executed by the husband, in order to render same valid for any purpose, and a bond so given executed by the wife alone is void. 4. Under section 1981, Rev. Stats, of 1892, a deed absolute made for the purpose or with the intention of securing the payment of money is deemed to be merely a mortgage, and it may be enforced as such. 5. The record of a deed absolute or of a mortgage which does not state the amount or other particulars of a debt which on its face it purports to secure, is sufficient to put creditors and subsequent purchasers upon notice that the grantee has rights in the property conveyed, and upon inquiry as to the extent of those rights. 6. While married women can not make contracts of any kind that will bind them personally either at law or in equity, yet their agreements made for the benefit of their separate statutory property have never been regarded as absolutely void for all purposes, but, on the contrary, courts of equity have charged the separate property for money due thereon, and, as the agreements are valid to that extent, it is competent to secure the money due upon such agreements by mortgage upon the separate statutory property where the capacity to mortgage is conferred in general terms by statute, and the mortgage is duly executed and acknowledged in compliance with law, and the husband joins in such execution when required by the statute. 7. Under section 2, Article XI, constitution of 1885, which provides that “a married woman’s separate real or personal property may be charged in equity and sold, or the uses, rents and profits thereof sequestrated * * * for money or thing due upon any agreement made by her in writing for the benefit of her separate property,” a married woman’s separate property can not be charged for money borrowed by her to pay off a valid incumbrance on her separate statutory property in the absence of an agreement made by her in writing. 8. A married woman with the knowledge and consent of her husband obtained a loan from a building and loan association of $1,200 for the purpose of paying off a valid purchase money mortgage then existing upon her separate statutory property, and the money so obtained was used for that purpose. The wife alone executed her bond to the building and loan association, and she and her husband duly executed and acknowledged a conveyance to the building and loan association of the separate Statutory property of the wife, which though absolute in form expressed a consideration of $1,200, and contained a clause as follows: “This deed of conveyance is made by the parties of the first part as collateral for a loan and the party of the second part does agree that on payment of said loan good and sufficient title with limited covenants of warranty will be furnished to the parties of the first part, and the party of the second part has given its bond for -the fulfillment of this agreement.”' The husband did not sign the bond, nor did he ever promise verbally or in writing to make himself personally responsible for the repayment of the loan. The mortgage deed contained no covenant to repay the loan upon which the husband could be held personally responsible for the debt. The loan was obtained upon a written application signed by the wife which stated the amount of the loan, the purpose for which it was to be used, and that the loan was to be repaid. Held, that the mortgage deed was a valid security, and could, be enforced in equity for the amount of such loan, though not for the bond which was void.