Bigelow v. Dunphe

• Decision Date: 02 July 1940
• Citation: 197 So. 328,143 Fla. 603
• Parties: BIGELOW et al. v. DUNPHE.
• Court: Florida Supreme Court

197 So. 328

143 Fla. 603

BIGELOW et al. v. DUNPHE.

Florida Supreme Court, Division A.

July 2, 1940

Rehearing Denied Oct. 1, 1940.

See 198 So. 13.

Suit by Dudley C. Dunphe, as executor of the last will and testament of Margaret C. Dunphe, deceased, against John Bigelow and others to foreclose a mortgage. From a judgment of foreclosure, the defendants appeal.

Reversed. Appeal from Circuit Court, Pinellas County; T Frank Hobson, judge.

COUNSEL

J. C Cain and Archie Clement, both of Tarpon Springs, for appellants.

D. G Haley and Harrison E. Barringer, both of Sarasota, for appellee.

OPINION

THOMAS Justice.

According to the briefs, the point to be borne in mind, as we examine the facts and the applicable principles of law, is the validity of a mortgage executed by a free dealer, without her husband joining, encumbering property standing in her name and occupied by the woman, her husband and her children. In stating the question appellants refer to the mortgagor as the head of the family and to the property as a homestead while appellee gives her no such designation and describes the land as 'separate property * * * used at the time as the home.'

To answer the respective parties we must determine first, who was the family head and, second, the status of the property.

The bill sought foreclosure of the mortgage executed by the wife, a free dealer, to the assignor of plaintiff's testatrix. There are no unusual features in the instrument nor is there any dispute about the amounts, if any, collectable under it.

Relevant to the answer it was developed by the witnesses that the husband and wife lived together for thirty-five years until the union was broken by the death of the latter in 1937. In 1910 the husband suffered a severe illness and was thereafter incapacitated, mentally and physically, so that he became the supportee of his wife rather than her supporter. He performed no appreciable amount of work, had no income and had no children who contributed to his livelihood. His spouse provided for the family from an orange grove inherited from a former husband.

The occupancy of the property as a home commenced in 1925, the year that it was deeded to the wife. She is depicted as the one who conducted all phases of the family's affairs and who supervised the grove from which the exchequer was replenished and maintained. She owned the house where she and her unfortunate husband and her children found shelter and her capacity for about twenty-five years was unquestionably that of family head. We feel no hesitancy in saying that the property in question was possessed of all of the characteristics 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 Jones v. Federal Farm Mortgage Corp., 138 Fla. 65, 188 So. 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 disclose to the mortgagee the circumstances establishing the status of the woman and the property and rebutting the presumption that the husband was the head of the family rather than the absence of such facts. His view was that 'It should have been made to appear at or before the execution of the mortgage * * *' that the headship was not in the husband.

Thus we, having reached the decision that the wife actually held the position and that the property was in truth a homestead, go a step farther and pass on the matter suggested by the chancellor's observations:

The condition of the title and the authority of the married woman to act as a free dealer could have been learned from public records kept for the purpose but the use of the property at the time and the peculiar conditions of the family living upon it were, of course, not ascertainable there.

The question arises, then, whether the lender could accept the mortgage without investigation of the use because of an obligation on the part of the borrower to advise him of the homestead character of the property or he was charged with inquiring as to the nature of the possession at the time of the encumbrance.

It is...