Blood v. Huey

• Decision Date: 16 April 1929
• Citation: 97 Fla. 577,121 So. 896
• Parties: BLOOD et al. v. HUEY.
• Court: Florida Supreme Court

121 So. 896

97 Fla. 577

BLOOD et al. v. HUEY.

Florida Supreme Court, Division B.

April 16, 1929

Suit by P. K. Huey against Laura Blood and husband. Decree overruling a demurrer to the bill of complaint, and defendants appeal.

Reversed.

Syllabus by the Court

SYLLABUS

Constitution authorizing sale of married woman's separate property for debts, does not authorize recovery of attorney fees Constitution, authorizing sale of married woman's separate property for debts, does not permit subjecting married woman's other property for purchase price of property secured by mortgage (Const. art. 11, § 2; Comp. Gen Laws 1927, §§ 5674-5676, 5866, 5868). Section 2, art. 11, of the Constitution of 1885, defining the classes of cases in which a married woman's separate real and personal property may be charged in equity and sold, or the uses rents, and profits thereof sequestrated for debts incurred by her, makes no provision for attorney fees in suits brought under the section; and the organic provision does not contemplate the use of the remedy therein provided for, even against the property purchased by a married woman, when the purchase price of the property is secured by a mortgage upon the purchased property executed by the married woman and her husband, as provided by the statutes in force when the Constitution of 1885 was adopted.

Appeal from Circuit Court, Polk County; H. C. Petteway, judge.

COUNSEL

Touchton & Dinsmore, of Winter Haven, for appellants.

Huffaker & Edwards, of Bartow, for appellee.

OPINION

WHITFIELD P.J.

It appears that a married woman, not a free dealer, executed a second mortgage upon her separate property to secure the payment of a note given by the wife and husband to J. J. Sternberg for the purchase price of the property; it being purchased by the wife as her separate property, subject to a first mortgage held by M. L. Paterson when it was purchased. The notes and mortgage were assigned. Payments were not made, and the holder of the notes and mortgage brought this suit in equity to subject other separate property of the married woman for the price of the property purchased by her, the mortgage holder claiming the right to so subject the married woman's other separate property under section 2, art. 11, of the state Constitution of 1885.

The bill of complaint alleges that 'subject to the first mortgage on said premises in favor of one Morton L. Paterson in the sum of Seven Thousand Nine Hundred Ninety-nine &amp 98/100ths ($7,999.98) Dollars, and that as a part of the consideration for said sale and conveyance the said Laura Blood, joined by her husband, Norman W. Blood, upon the same day and date executed and delivered to the said J. J. Sternberg a second mortgage upon said premises'; that M. L. Paterson, the holder, brought suit to foreclose the first mortgage, and that complainant 'by virtue of his ownership of the said second mortgage was made a party defendant to said cause and that the said foreclosure suit was prosecuted to a final decree, and the said premises were sold in part satisfaction of the decree of foreclosure of the said Morton. L. Paterson, and at the sale of said premises was struck off and bid in by the said Morton L. Paterson and that thereby your orator had been deprived of his lien upon said premises for the payment of the said promissory note'; that complainant's 'said note has long since matured and become due and payable, and that complainant has demanded payment of the said Laura Blood and Norman W. Blood of the said note but that they have wholly failed, neglected to pay same; that there is due to complainant upon said promissory note the principal sum of Two Thousand ($2,000.00) Dollars and interest at eight per cent. from the date thereof until paid, and that in and by said promissory note the defendant promised to pay a reasonable sum as attorneys fees for the services of counsel employed after maturity or default to collect the said note; that it has become necessary for complainant to employ attorneys to enforce collection of said note and that by reason thereof he is entitled to recover a reasonable attorneys' fee of $50.00 plus ten per cent. of the principal and interest due, and complainant attaches hereto as a part of this bill of complaint a true and correct copy of the said promissory note; that the said note represents a part of the purchase price of the said lands and tenements purchased from the said J. J. Sternberg and wife, aforesaid, and that the said Laura Blood purchased said premises to be added to and become a part of her separate statutory property and that same became a part of her separate statutory estate subject to the said mortgages, and that said mortgage and notes were executed and delivered by the said Laura Blood for the benefit of her separate statutory property and as a part of the purchase price of same'; that said Laura Blood owns described separate real and personal, property,...